Illegality of the request for delivery of a conditional offer taking into account the simultaneous award of another contract by another public purchaser
A commune had launched a procedure for the award of a delegation of public water distribution service, under the authority of the ordinance n ° 2016-65 of January 29, 2016 and the decree n ° 2016-86 of the 1st February 2016 relating to concession contracts. As this contract was awarded to Suez Eau France, the Urban and Rural Development Corporation (SAUR), an unfortunate candidate, appealed to the judge hearing the application for interim relief asking her to set aside all the decisions relating to the and if the municipality intended to conclude the contract, to order the resumption of the award procedure at the notice stage. Since the judge hearing the application for interim relief annulled the award procedure as of the analysis of the tenders, the municipality lodged an appeal in cassation before the Council of State, which pronounces in this case on the legality of the request by the buyer. public of a conditional offer taking into account the simultaneous award of another contract by another public purchaser.
Rule # 1: Illegal application for conditional offer taking into account the simultaneous award of another contract by another public purchaser
At the same time, the commune passed a delegation of public water distribution service, and an intercommunal syndicate in the same geographical area launched a public service delegation procedure. sanitation. Wishing to mutualize these two contracts, the municipality and the union sent the candidates a request to submit a final financial offer for the drinking water service in the event of the simultaneous assignment to the same candidate of the two contracts of delegation of public service of drinking water and sanitation, even though the candidates had already negotiated with the municipality and that it had asked them to submit their final offer.
The President of the Court of First Instance sanctioned that practice on the ground that the municipality had based its assessment of the overall economic advantage offered by the tenders on elements unrelated to the public service conceded and unrelated to that overall economic advantage and disregarded the rules it itself for the award of the delegation contract for the public drinking water service. The President of the Court of First Instance therefore annulled the award procedure for that first ground.
The Council of State validates this reasoning. On the basis of Articles 46 and 47 of the Order of 29 January 2016, he considers that that a conceding authority can not modify in the course of the procedure the elements of appreciation of the candidatures or the offers by questioning the conditions of the initial call for competition; that it can not, without disregarding the object of the concession which it intends to conclude and the obligation to select the best offer with regard to the overall economic advantage which presents for it this offer, to ask the candidates of him submit a conditional offer taking into account a procurement procedure implemented by another licensing authority or take into account, in order to choose a delegate, elements unrelated to this contract ". The appeal in cassation is therefore rejected on this first point.
Rule 2: The introduction of a new sub-criterion after the submission of tenders is illegal
In addition, the municipality had modified, after the submission of bids, the modalities of implementation of the selection criteria, by introducing a new sub-criterion for the evaluation of economic criteria: the "amount of the sum allocated to the improvement program" . The President of the Court of First Instance held that that factor of assessment had the effect of modifying the respective weight of the other factors of assessment and that that failure had been such as to cause injury to the applicant company. The Conseil d'Etat considered that the order of the judge hearing the application for interim relief was not tainted by distortion and therefore dismissed the appeal on points of law for the second reason.
Board of state
N ° 407431
7th - 2nd rooms together
Play of Wednesday, May 24, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The urban and rural development company (SAUR) asked the judge of the interim administrative court of Montpellier, ruling pursuant to Article L. 551-1 code administrative justice, on the one hand, cancel the all the decisions relating to the procedure for placing the delegation by leasing of the public drinking water distribution service of the municipality of Limoux (Aude) and, on the other hand, if it intends to conclude the contract, order its resumption at the notice stage.
By an order n ° 1606090 of January 17, 2017, the judge of the Montpellier administrative court has canceled this procurement procedure from the analysis of the offers.
By a summary appeal and an additional memorandum, registered on 1 February and 16 February 2017 to the litigation secretariat of the Conseil d'Etat, the municipality of Limoux asks the Conseil d'Etat:
1 °) to cancel this order;
2 °) settling the case under the procedure of interim relief, to reject the application of the SAUR;
3 °) to charge the SAUR the sum of 6,000 euros under Article L. 761-1 code administrative justice.
- Considering that it appears from the documents of the file submitted to the judge of the summary of the administrative court of Montpellier that, by a notice of public call published on June 29, 2016 in the Official Journal and the Official Bulletin of the announcements of the public markets, the Commune de Limoux (Aude) has launched a procedure for the award of a public service delegation for the distribution of drinking water; that, by a letter of December 9, 2016, the urban and rural development company (SAUR) was informed by the municipality that its offer had not been retained and that the city council had approved the choice of society Suez Eau France as delegate of the public service of drinking water; that, by an order of January 17, 2017, against which the municipality appeals cassation, the judge pre-contractual recourse has, at the request of the SAUR, annulled the procurement procedure litigious from the analysis of the offers;
On the final financial offer requested from candidates:
- Considering that pursuant to Article 46 of the Ordinance of 29 January 2016 on concession contracts: "The licensing authorities may freely organize a negotiation with one or more bidders under conditions laid down by regulation. the purpose of the concession, the award criteria or the minimum conditions and characteristics indicated in the consultation documents "; according to Article 47 of the same Ordinance: "The concession contract shall be awarded to the tenderer who has submitted the best tender in view of the overall economic advantage for the licensing authority on the basis of several objective criteria, specific and related to the subject matter of the concession contract or its conditions of performance.The award criteria do not have the effect of conferring unlimited freedom of choice on the granting authority and guarantee effective competition ";
- Considering that it follows from these provisions that a licensing authority may not modify the evaluation of tenders or tenders in the course of the procedure by calling into question the conditions of the initial call for tenders; that it can not, without disregarding the object of the concession which it intends to conclude and the obligation to select the best offer with regard to the overall economic advantage which presents for it this offer, to ask the candidates of him to submit a conditional offer taking into account a procurement procedure implemented by another licensing authority or to take into account, in selecting a delegate, elements unrelated to this contract;
Considering that it emerges from the statements of the order under appeal that after having indicated, by a letter of 9 August 2016 worth consultation letter, the criteria for the selection of tenders to the candidates admitted to submit an offer, the municipality of Limoux has, at the end of the negotiations and after having asked the candidates to submit their final proposal, sent on 14 November 2016 to the candidates, together with the single-purpose intercommunal syndicate (SIVU) of the Limouxin wastewater treatment plant which had launched in At the same time, a procedure for delegation of the public sanitation service, a letter asking them, given the unified billing of drinking water and sanitation services, to submit a final financial offer for the service. drinking water in the event of the simultaneous attribution to the same candidate of the two public service delegation contracts for drinking water and sanitation; that by proceeding in this way, the municipality of Limoux asked the candidates to give him a conditional offer taking into account a procurement procedure implemented by another granting authority, concerning the delegation of a public service for which both the object and the geographical area were different from the public service in question; that, consequently, the judge of interim relief did not err of law by estimating that the commune of Limoux had, in doing so, based its appreciation of the overall economic advantage that the tenders presented on elements foreign to the service public conceded and unrelated to this overall economic advantage and disregarded the rules it had itself laid down for the award of the delegation contract for the public drinking water service;
- Considering that the judge hearing the application for interim relief did not err in classifying the facts by holding that, in view of its scope, and while it is not disputed that the final difference between the offer of the SAUR and that of the company Suez Eau France was only 0.31 point, this failure had been likely to harm the SAUR;
- Considering that it is clear from the statements in the order under appeal that the judge hearing the application for interim measures, by a sovereign assessment devoid of denaturing, found that the municipality of Limoux had modified, after the submission of tenders, the detailed rules for implementing the criteria. by introducing a new sub-criterion for the assessment of economic criteria, the "amount of the sum allocated to the improvement program"; Nor is the order tainted by distortion in so far as it points out that this element of assessment was such as to change the weight of the other items of assessment; Finally, the judge in chambers did not incorrectly describe the facts by considering that this failure had been of a nature to harm the company SAUR;
- Whereas it follows from all the foregoing that the appeal of the commune of Limoux can only be dismissed;
The conclusions presented under Article L. 761-1 of the Administrative Justice Code:
- Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice prevent the sum requested by the municipality of Limoux from being put in charge of the SAUR, which is not in this proceeding, the losing party; that it is appropriate, in the circumstances of the case, to put at the charge of the town of Limoux the payment to the SAUR of a sum of 4 000 euros under the same provisions;
Article 1: The appeal of the municipality of Limoux is rejected.
Article 2: The town of Limoux will pay the urban and rural development society a sum of 4,000 euros under Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the municipality of Limoux and the urban and rural development society.