Incompétence du juge du référé précontractuel pour contrôler la compétence de l’acheteur public qui lance la procédure !

Incompetence of the judge of the pre-contractual summary procedure to control the competence of the public purchaser who launches the procedure!

by Sébastien Palmier on June 12, 2020 | Category: Pre-contractual & Contractual referral
Incompétence du juge du référé précontractuel pour contrôler la compétence de l’acheteur public qui lance la procédure ! Incompétence du juge du référé précontractuel pour contrôler la compétence de l’acheteur public qui lance la procédure !

CE June 9, 2020, Métropole Nice-Côte d'Azur, req. n ° 436922

In this case, the Council of State confirms its case-law according to which it is not for the judge of the pre-contractual summary procedure to control the competence of the public purchaser who launches the procedure. The sole circumstance that the procedure for the conclusion of the contract is initiated and conducted by a public person who is not yet competent to sign it does not result in the irregularity of the procedure for the conclusion of the procedure.

Lesson 1: It is not for the judge of the pre-contractual summary procedure to control the competence of the public purchaser who initiates the procedure 

In a judgment of June 30, 1999, Demathieu and Bard, n ° 198993, the Council of State has already had the opportunity to recall that the judge of the pre-contractual summary procedure is not competent to check if the public purchaser is effectively competent to sign the contract: " that if SA DEMATHIEU ET BARD maintains that the contract was signed by a public authority incompetent in road investments, it is not for the judge, ruling on the basis of the aforementioned article L. 22, to control the competence of the public authority with regard to the subject of the contract whose award is made ".

In a judgment of November 19, 2004, No. 266975, Municipality of Auxerre v. Société Saur France, the Council of State confirmed its case law by recalling that the plea based on the incompetence of the public authority to sign the contract is inoperative before the judge of the pre-contractual summary procedure: " Considering that, if the company Saur France maintains that the delegation was signed by a public authority henceforth incompetent in matters of treatment and purification of waste water, it does not belong to the judge, ruling on the basis of article L 551-1 of the code of administrative justice, to control the competence of the public authority with regard to the purpose of the delegation whose handover is under way; that as a result, the plea alleging the incompetence of the COMMUNE D'AUXERRE is ineffective and can only be rejected ".

In its judgment of June 9, 2020, the Council of State completes its jurisprudence by indicating that it is not for the judge of the pre-contractual summary procedure to check whether, with regard to the object of the contract whose conclusion is entered into, the person public is, on the date it signs the contract, competent for this purpose. More precisely, the Council of State considers that the judge of the pre-contractual summary procedure cannot deduce from the sole circumstance that the procedure for the award of the contract is initiated and conducted by a public person who is not yet competent to sign it that this procedure is irregular.

In fact, when a public person is called upon to exercise the competence necessary for the conclusion and execution of a public order contract, in particular because it is being created or transformed or because a procedure, by which the necessary competence must be devolved to it, is already engaged, no rule or principle precludes it from initiating the procedure for the award of the contract, even though it is not yet competent on that date to conclude it.

It is only up to the public person to indicate, as soon as the award procedure is launched, that the contract will only be signed after it has become competent for this purpose. A public person may also sign a contract whose procurement procedure has been initiated and conducted by another public person, to whom, on the date of signing the contract, he is automatically substituted, without this procedure being, in the absence of proper vice, tainted with irregularity.

Teaching n ° 2: It is not for the judge of the pre-contractual summary procedure to control the validity of the signature of the contract

In a judgment of March 27, 2006, SA Les Compagnons paveurs, n ° 282035, the Council of State recalled that the judge of the pre-contractual summary procedure is not competent to control the validity of the signing of a public contract: “ Considering that under these provisions, SOCIETE LES COMPAGNONS PAVEURS asked the magistrate delegated by the president of the administrative court of Montpellier to order the city of Nîmes to redo a new tender procedure open for the award , as part of the redevelopment of the Arènes-Esplanade-Feuchères public space, of the market relating to lot no. 2 for the supply and execution of paving, concrete, stone cladding, street furniture and locksmith work; it follows from the instruction that after the rejection of this request by an order dated June 7, 2005, the city of Nîmes has completed the procedure for awarding the contract which was signed on July 5, 2005; that it does not belong to the judge in summary proceedings, seized in application of the aforementioned provisions of article L. 551-1 of the code of administrative justice, to control the validity of such a signature; that if the applicant company maintains that on the one hand, the contract would contain contradictions on the date of its signature and on the amount of work and that on the other hand, the pages of the act of engagement would not have been initialed by the parties, these circumstances, even if they are established, are not sufficient to make the signature of the contract appear to be non-existent "

Consequently, the judge of the pre-contractual summary procedure is not competent to find out whether the signatory of a contract proves a quality to sign it (CE February 8, 1999, Sté Campenon Bernard SGE, n ° 188100). In this case, the Council of State considered that: “ Considering [……….] That if the company CAMPENON BERNARD SGE maintains that neither the representative of the administration nor that of the co-signatory companies had quality or received delegation to sign this contract, it does not belong to the judge, ruling on the basis of the aforementioned Article L. 22, to control the validity of the signing of the contract in question. ”;

Lesson 3: It is not for the judge of the pre-contractual summary procedure to control the respect by a public establishment of the principle of specialty

In a judgment of June 21, 2000, Inter-municipal union of the Côte d'Amour and the Guérande peninsula, No. 209319, the Council of State also had the opportunity to specify that the judge of the pre-contractual summary proceedings is not not competent to monitor compliance by the contracting authority with the principle of specialty in the case of a public establishment: Considering however that it does not belong to the judge, ruling on the basis of the aforementioned article L.22, to control the respect, by an intercommunal syndicate with multiple vocation subjected to the provisions of article L.1411-1 of general code of the territorial collectivities, of the principle of specialty of the public establishments but the only respect of the obligations of publicity and competition with which this establishment is subjected; that thus, based on the sole circumstance that the delegation commission had been led to make an assessment on offers whose content responded to a variant disregarding the principle of specialty of public establishments, the judge of the administrative court of Nantes tainted its order with an error of law ".

 


CE June 9, 2020, Métropole Nice-Côte d'Azur, req. n ° 436922

 

Considering the following:

  1. The appeals referred to above present the same issues for judgment. They should be joined to rule by a single decision.
  2. It appears from the statements in the contested orders that the Nice-Côte d'Azur metropolitan area, which had decided at the start of 2018 to exercise the right of priority recognized by article L. 2124-4 of the general code of the property of public persons to benefit, on expiration, on December 31, 2019, from the concession of natural beaches allocated to the municipality of Nice, of the future concession of these beaches for the period from January 1, 2020 to December 31, 2031, launched in October 2018 a procedure for placing a delegation of bathing public service, covering fourteen beach operating lots, located in the maritime public domain and the metropolitan public domain. By a deliberation of October 25, 2019, the metropolitan council chose the Maka companies, the Baieta Plage company and the Servotel Sylnis company as new sub-concessionaires to operate, respectively, lots n ° 5, 9 and 10. By three orders of December 5, 2019, the judge of summary proceedings of the administrative court of Nice, ruling in application of article L. 551-1 of the code of administrative justice, has, at the request of the company Les Voiliers, of the company Lido Plage and of the company Sporting Plage, ousted competitors, canceled the procedure for awarding the public service delegation for lots 5, 9 and 10 and rejected the remainder of the claims of the applicant companies. The metropolitan area of Nice-Côte d'Azur is appealing to the French Supreme Court against these three orders insofar as they have canceled the procedure for the award of the public bathing service delegation for lots 5, 9 and 10.
  3. Under the terms of article L. 551-1 of the administrative justice code: “The president of the administrative court, or the magistrate whom he delegates, can be seized in the event of failure to comply with the obligations of publicity and competition which is subject to the awarding by the contracting authorities of administrative contracts having as their object the execution of works, the delivery of supplies or the provision of services, with an economic consideration consisting of a price or an operating right, the delegation of a service public or the selection of a shareholder economic operator of a mixed economy company with a single operation “.
  4. It is up to the judge in summary proceedings, ruling on the basis of Article L. 551-1 of the Code of Administrative Justice, to assess whether breaches of the obligations of publicity and competition which have been committed, having regard to their scope and at the stage of the procedure to which they relate, are likely to have injured or have risked to harm, even indirectly, the company which seizes it. It is not their responsibility to check whether, with regard to the subject of the contract, the public body of which is, on the date when they sign the contract, competent for this purpose.
  5. The judge of the pre-contractual summary procedure cannot further deduce from the sole circumstance that the procedure for the award of the contract is initiated and conducted by a public person who is not yet competent to sign it that this procedure is irregular, on the grounds in particular, if in the case of a public service delegation, that the public service delegation committee which assessed the tenders would necessarily, in such a case, be irregularly composed and that the procurement procedure would necessarily be conducted by an authority which does not is not empowered for this purpose. In fact, when a public person is called upon to exercise the competence necessary for the conclusion and execution of a public order contract, in particular because it is being created or transformed or because a procedure, by which the necessary competence must be devolved to it, is already engaged, no rule or principle precludes it from initiating the procedure for the award of the contract, even though it is not yet competent on that date to conclude it. This is particularly so when the contract in question is for the management of a public service. It is only up to the public person to indicate, from the start of the award procedure, that the contract will not be signed until it has become competent for this purpose. A public person may also sign a contract whose procurement procedure has been initiated and conducted by another public person, to whom, on the date of signing the contract, he is automatically substituted, without this procedure being, in the absence of proper vice, tainted with irregularity.
  6. It appears from the statements in the orders under appeal that, in order to annul the procedure for the award of the delegation of bathing public service for the three lots in dispute, the judge of interim measures of the Administrative Court of Nice relied on the fact that this procedure, including understood the choice of the awarding company, had been led by the metropolis Nice Côte d'Azur, while the contract by which the State was likely to award him the concession of the natural beaches of Nice, whose awardee was previously there the city of Nice, was not signed yet and that the preliminary public inquiry was not finished. He inferred from this circumstance that the metropolis was not competent to conclude the contract when it launched the procurement procedure or while it was conducting it and that it necessarily followed that the public service delegation commission of the mainland France could not regularly analyze the tenders, which should have been carried out by the commission of the city of Nice, and that the procurement procedure had necessarily been carried out by an authority which was not empowered for this purpose . Considering that these irregularities had been likely to injure the companies which had seized it, it judged that the whole procedure of contracting was, for the three lots in dispute, tainted with irregularity.
  7. It follows from what has been said in point 5 above that, in ruling thus, the judge of the summary proceedings of the administrative court of Nice, who did not find any inherent vice in the composition or the functioning of the delegation committee of public service of the Nice-Côte d'Azur metropolitan area and which also noted that the State had initiated the procedure for awarding the concession for the natural beaches of Nice to the mainland and that the latter had expressly stated, as of October 25, 2019, that the contract would only be signed after the award of this concession, committed an error of law.
  8. Consequently, without it being necessary to examine the other grounds of the appeals, the Nice-Côte d'Azur metropolitan area is justified in requesting the cancellation of the orders which it attacks in so far as they have canceled the award procedure of the seaside public service delegation for lots 5, 9 and 10.
  9. In the circumstances of this case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle cases under the summary proceedings initiated.

At the request of Les Voiliers relating to lot n ° 5:

Regarding the incompetence of the Nice-Côte d'Azur metropolis:

  1. It follows from what has been said in point 7 above that the plea based on the fact that the Nice-Côte d'Azur metropolis was not competent to carry out the procedure for awarding the delegation of seaside public service for the lot n ° 5 from the Nice beach and that the award procedure was therefore necessarily irregular can only be dismissed.

Regarding the selection criteria for offers:

Regarding the weighting of the selection criteria and sub-criteria:

  1. Under the terms of article 27 of the decree of February 1, 2016 relating to concession contracts, then applicable: “I. - To award the concession contract, the granting authority is based, in accordance with the provisions of article 47 of the abovementioned order of January 29, 2016, on a plurality of non-discriminatory criteria. These criteria may include, in particular, environmental and social criteria relating to innovation. When the management of a public service is delegated, the granting authority is also based on the quality of the service provided to users. / The criteria and their description are indicated in the concession notice, in the invitation to submit an offer or in any other document of the consultation. / II. - For concession contracts which fall under 1 ° of article 9, the conceding authority fixes the award criteria in decreasing order of importance. Their ranking is indicated in the concession notice, in the invitation to submit an offer or in any other document of the consultation.
  2. It follows from these provisions that the conceding authority is not required to weight the criteria for the award of tenders and has the sole obligation to indicate and describe these criteria and, for contracts above the European thresholds, to prioritize them. In this case, the Nice Côte d'Azur metropolitan area has chosen to weight the three criteria for awarding tenders - “quality of the operating project“, “technical criterion” and “financial criterion” and to prioritize sub-criteria for assessing these criteria. The plea alleging that the procedure for awarding the concession contract would be irregular for want of weighing the tender evaluation sub-criteria can only be rejected.
  3. Les Voiliers is furthermore not justified in maintaining that the weighting of the financial criterion up to 25 % clearly did not allow the most economically advantageous tender to be selected.

Regarding the regularity of the sub-criteria:

As for the criterion “Quality of the operating project“:

  1. The consultation regulations state that the criterion “Quality of the operating project“, weighted up to 40 %, is assessed according to four sub-criteria of decreasing importance: “catering (product diversity, qualification and experience of the personnel of kitchen, beach organization) “,“ beach (number of mattresses per m², quality and aesthetics of beach facilities and equipment) “,“ welcoming the public and satisfying customers (labeling process, public welcoming project , measurement of customer satisfaction) "," actions in favor of sustainable development and the environment ". Contrary to what Les Voiliers supports, the “beach” sub-criterion, whose consultation regulations specify the rating method by mentioning the density of the equipment as well as its quality and aesthetics, and the “actions in favor of sustainable development and the environment “, which relate to activities intended to meet the needs of the bathing public service, of which article R. 2124-13 of the general code of property of public persons specifies that they must be compatible with “the imperatives of preserving coastal sites and landscapes and biological resources as well as with the vocation of neighboring land areas”, are sufficiently precise and do not give the Nice-Côte d'Azur metropolitan area a margin of appreciation unconditioned.
  2. In addition, contrary to what the company Les Voiliers maintains, the Nice-Côte d'Azur metropolitan area could, without disregarding the principle of equality between candidates or tainting the irregularity procedure, assess the value of tenders with regard to the under- “public reception and customer satisfaction” criterion, taking into account the labeling procedures initiated or envisaged by the candidates.

As for the technical criterion:

  1. The consultation regulations set out two sub-criteria under the technical criterion, which is weighted up to 35 %: the “first establishment investment program” sub-criterion and the “renewal and maintenance of goods and equipment (amount and frequency) “. Contrary to what is argued, the “first establishment investment program” sub-criterion has neither the object nor the effect of disadvantaging the candidacy of the outgoing sub-concessionaire compared to other candidacies. Consequently, the plea alleging that this sub-criterion is discriminatory must be rejected.

As for the financial criterion:

  1. The consultation regulations stipulate that the financial criterion, weighted up to 25 %, is divided into two sub-criteria: “amount of fees paid to the metropolis“ and “credibility of the financial offer“. Contrary to what is argued, these two sub-criteria do not give rise to an assessment on the basis of only the tenderers' declarations, but to an assessment on the basis of the commitments made with regard to fees, investments or tariff conditions and on the basis of the financial guarantees provided by the candidates, the accuracy of which the mainland can control. Consequently, Les Voiliers is not justified in claiming that these sub-criteria are tainted with irregularity, failing to allow the best offer to be selected in the light of the overall economic advantage for the licensing authority.

Regarding the absence of information on the characteristics and advantages of the selected offer:

  1. Article 29 of the decree of February 1, 2016 relating to concession contracts, then applicable, provides that: “I. - For concession contracts whose value is equal to or greater than the threshold referred to in article 9, with the exception of concession contracts falling under a and b of 2 ° of article 10, the granting authority, as soon as it has made its choice for an application or an offer, shall notify all the other candidates and tenderers of the rejection of their application or their offer. This notification specifies the reasons for this rejection and, for the tenderers, the name of the successful tenderer (s) as well as the reasons which led to the choice of offer.
  2. It follows from the instruction that the Nice-Côte d'Azur metropolitan area informed the company Les Voiliers, by letter dated October 30, 2019, of the rejection of its offer, indicating the name of the company Maka, the concession holder. This letter specified the ratings obtained by the company Les Voiliers and by the company Maka under the three selection criteria and indicated that “the company Maka made a better offer, taking into account, in particular, its proposals in terms of labeling bathing equipment, work schedule and fees. ” The metropolis also communicated to Les Voiliers, on November 14, 2019, a copy of the deliberation of the metropolitan council of October 25, 2019 approving the choice of the company Maka, which specifies the characteristics of its offer in view of which it was chosen . Consequently, the plea alleging that the metropolitan area disregarded the aforementioned provisions of article 29 of the decree of February 1, 2016 must be rejected.

Regarding the selected offer:

  1. The company Les Voiliers maintains that the Maka company would have communicated to the metropolis erroneous financial information due to the defective nature of the response framework provided by the metropolis, that it would not have produced the bank guarantee required by article 6.2 of the regulation of the consultation relating to “documents to be supplied under the offer“ and that it would not be able to take over the staff of the previous sub-concession. In the absence of any details enabling the validity of these assertions to be assessed, the plea alleging that the offer by the Maka company would not comply with the conditions laid down in the documents of the consultation and should have been eliminated can only be dismissed.
  2. It follows from all of the above that the company Les Voiliers is not justified in requesting the cancellation of the procedure for placing the delegation of bathing public service initiated by the metropolis Nice-Côte d'Azur for the operation of the lot n ° 5 from the beach of Nice.

At the request of the company Lido Plage relating to lot n ° 10:

Regarding the perimeter of the concession:

  1. A public authority cannot, without ignoring the imperatives of good administration or the general obligations of competition which are imposed on it, give a concession a manifestly excessive perimeter or bring together within the same agreement services which would not have clearly no connection between them. Article R. 2124-14 of the general code of property of public persons provides that: “The concessionaire may entrust to one or more subcontractors, by operating agreements, all or part of the activities mentioned in the article R. 2124-13 “. Under article R. 2124-13 of the same code: “The concessionaire is authorized to occupy part of the conceded space, to install and operate activities there to meet the needs of the public bathing service. These activities must have a direct relationship with the exploitation of the beach and be compatible with the maintenance of the free and free use of the beaches, the imperatives of preservation of coastal sites and landscapes and biological resources as well as with the vocation neighboring land areas. "
  2. It follows from the instruction that the restoration activities, which are the subject of the first sub-criterion of criterion n ° 1 “quality of the operating project“, are not obviously unrelated to the needs of the bathing public service nor with the operation of the beach. Consequently, the company Lido Plage is not justified in claiming that the Nice Côte d'Azur metropolitan area would have breached its obligations of publicity and competition by grouping, within the same concession, the operating activities of the beach and restaurant activities.

Regarding the application and the offer of the selected company:

  1. On the one hand, under the terms of article L. 1411-5 of the general code of the territorial collectivities, in its version then applicable: “I.- A commission opens the folds containing the candidatures or the offers and draws up the list of the candidates admitted to submit an offer after examining their professional and financial guarantees, their compliance with the employment obligation of disabled workers provided for in Articles L. 5212-1 to L. 5212-4 of the Labor Code and their ability to ensuring the continuity of the public service and equality of users before the public service. ” It follows from this provision that if the delegating authority can require candidates to provide accounting documents and references capable of attesting to their capacities, this requirement, when it has the effect of restricting access to the contract for companies of recent creation or having hitherto only provided services of a smaller scale, must be objectively made necessary by the purpose of the delegation and the nature of the services to be provided. Otherwise, the delegating authority must allow candidates to justify their financial and professional capacity and their ability to ensure the continuity of public service by any other means. It is up to the administrative judge, seized on the basis of Article L. 551 1 of the Code of Administrative Justice, to verify the legality of the grounds for the exclusion of a candidate from a procedure for the award of a delegation of service public, in particular with regard to the principles thus defined.
  2. It follows from the instruction that having regard to the subject of the disputed lot, limited to the operation of a single beach, and to the duration, fixed at twelve years, of the sub-concession and taking into account the nature of the services required by the bathing public service, access to the disputed contract could not be prohibited for companies created during the award procedure. In addition, article 6.1 of the consultation regulations specifies, with regard to the technical and professional capacity of candidates, that "companies in the process of being created or newly created will produce the elements at their disposal". It follows that the company Lido Plage is not justified in claiming that, because of its creation during the award procedure, the company Baieta Beach, winner of the concession contract in dispute, could not be admitted to present an offer.
  3. On the other hand, it is not for the judge of the pre-contractual summary procedure to rule on the assessment made on the value of an offer or the respective merits of the different offers. It is up to him, on the other hand, when he is seized of a means in this direction, to verify that the contracting authority has not distorted the content of an offer by ignoring it or manifestly altering the terms and procedure thus at the choice of the contractor in breach of the fundamental principle of equal treatment of candidates.
  4. The company Lido Plage maintains that the metropolis Nice-Côte d'Azur would have tainted the irregularity procedure by retaining the offer of the company Baieta Beach, whose professional, technical and financial capacities and commitments would be, according to it, for the sole reason of its creation during the procedure, insufficient. However, it follows from what was said in the previous point that the Lido Plage company cannot usefully contest the assessment made by the metropolis on the value of the offer of the Baieta Beach company with regard to technical and financial criteria.
  5. It follows from all of the above that the company Lido Plage is not justified in requesting the cancellation of the procedure for placing the delegation of bathing public service initiated by the metropolis Nice-Côte d'Azur for the operation of the lot beach n ° 10 from Nice beach.

At the request of the company Sporting Plage relating to lot n ° 9:

Regarding the opinion of the public service delegation committee:

  1. Under the provisions of article L. 1411-5 of the general code of local authorities in its version then applicable, the public service delegation commission, after opening the envelopes containing the offers, gives an opinion on them. The plea alleging that the opinion issued by the public service delegation commission is irregular is not accompanied by sufficient details to enable it to assess its merits.

Regarding the negotiation procedure:

  1. On the one hand, under the terms of article L. 1411-5 of the general code of the territorial collectivities in its version then applicable: “In view of the opinion of the commission, the authority empowered to sign the convention can freely organize negotiation with one or more tenderers under the conditions provided for in article 46 of the aforementioned order of January 29, 2016 “. Contrary to what the company Sporting Plage maintains, these provisions, which do not regulate the methods of organizing the negotiation of tenders by the authority responsible for the delegating person, enabled the executive authority of the metropolis to entrust to one of the elected officials negotiating offers with the candidates admitted to negotiate, without the need for a formal delegation for this purpose. No rule or principle precludes the appointment of a member of the public service delegation committee to conduct negotiations. Consequently, the plea alleging that the procedure would be vitiated by an irregularity on the ground that the negotiation was conducted by an elected representative who had chaired the public service delegation commission and who did not benefit from a delegation for this purpose does not can only be dismissed. It does not moreover result from the investigation and is not moreover argued that the negotiations were conducted in breach of the principle of impartiality.
  2. On the other hand, the plea alleging that the information given to the members of the deliberative assembly was insufficient and of the too short time limit which it would have been given to decide on the choice of the delegatee cannot be usefully raised before the judge of pre-contractual referral.

Regarding the selection criteria for offers:

Regarding the weighting of the criteria:

  1. The provisions of article 27 of the decree of February 1, 2016 relating to concession contracts, cited in point 11, have neither the object nor the effect of prohibiting the granting authority from weighing the criteria for allocation of offers. Consequently, the company Sporting Plage is not justified in maintaining that the Nice Côte d'Azur metropolitan area would have vitiated the procedure for the award of irregularities by carrying out such a weighting.

Regarding the regularity of the sub-criteria:

  1. On the one hand, as stated in point 17, the two sub-criteria “amount of fees paid to the mainland” and “credibility of the financial offer“ of the financial criterion do not give rise to an assessment on on the basis of only the tenderers' declarations, but on an assessment on the basis of the commitments made in terms of fees, investments or pricing conditions and on the basis of the financial guarantees provided by the candidates, whose accuracy the metropolis can check . The technical sub-criterion “investment program for the first establishment” does not, as has been said, either object or effect disadvantage the candidacy of the outgoing sub-concessionaire compared to the other candidacies. Consequently, the company Sporting Plage is not justified in claiming that these three sub-criteria are vitiated by irregularity.
  2. On the other hand, contrary to what the company Sporting Plage maintains, the technical sub-criterion “renewal and maintenance of goods and equipment“ and the financial sub-criterion “credibility of the financial offer“, which do not leave a margin of unconditional assessment to the granting authority, are sufficiently defined.

Regarding the absence of information on the characteristics and advantages of the selected offer:

  1. It follows from the instruction that the Nice-Côte d'Azur metropolitan area informed, by a letter of October 30, 2019, the company Sporting Plage of the rejection of its offer by indicating the name of the company Servotel Sylnis, recipient of the concession. This letter specified the ratings obtained by the company Sporting Plage and the company Servotel Sylnis under the three selection criteria and stated the superior quality of the proposals from the company Servotel Sylnis under the technical sub-criterion “renewal and maintenance of equipment “And the financial sub-criterion“ amount of fees “. The metropolis also communicated to Sporting Plage, on November 14, 2019, a copy of the deliberation of the metropolitan council of October 25, 2019 approving the choice of the company Servotel Sylnis which specifies the characteristics of its offer. Consequently, the company Sporting Plage is not justified in claiming that the metropolitan area disregarded the provisions cited in point 20 of article 29 of the decree of February 1, 2016.
  2. It follows from all of the above, without there being any need to rule on the purposes of non-reception opposed by the metropolis Nice-Côte d'Azur and by the company Servotel Sylnis, that the company Sporting Plage is not founded in request the cancellation of the procedure for awarding the delegation of bathing public service initiated by the Nice Côte d'Azur metropolitan area for the operation of beach lot n ° 9 of Nice beach.
  3. The provisions of article L. 761-1 of the administrative justice code prevent the Nice-Côte d'Azur metropolitan area, which is not the losing party in this proceeding, from being charged. payment of the amounts requested by Les Voiliers, Lido Plage and Sporting Plage under these provisions. On the other hand, in the circumstances of the case, it is necessary to charge Les Voiliers, Lido Plage and Sporting Plage with the payment of a sum of 4,000 euros each to the metropolis Nice Côte d'Azur, under the same provisions, for the procedure followed before the Council of State and before the judge of summary proceedings of the administrative court of Nice.

 

DECIDE:
Article 1: Articles 1 and 2 of order n ° 1905413 of December 5, 2019 of the judge of summary proceedings of the administrative court of Nice are canceled.
Article 2: Articles 1 and 2 of order n ° 1905411 of December 5, 2019 of the judge of summary proceedings of the administrative court of Nice are canceled.
Article 3: Articles 1 and 2 of order n ° 1905398 of December 5, 2019 of the judge of summary proceedings of the administrative court of Nice are canceled.
Article 4: The claims of the company Les Voiliers, the company Lido Plage and the company Sporting Plage before the judge of summary proceedings of the administrative court of Nice and their conclusions presented under the provisions of article L. 761-1 of code of administrative justice are rejected.
Article 5: The company Les Voiliers, the company Lido Plage and the company Sporting Plage will each pay to the metropolis Nice Côte d'Azur a sum of 4,000 euros, under article L. 761-1 of the code of administrative justice .