Irregularity of a criterion of geographical location having discriminatory effects!
This case provides an opportunity to recall the conditions under which a public purchaser may regularly use the criterion of geographical location as a criterion for judging offers.
The department of Haute-Garonne has launched a consultation for the signing of a framework agreement of 18 lots for the acquisition of documents on all media and associated services, for the benefit of the departmental media library. The consultation rules provided for three criteria for the judging of tenders, weighted on a total of 100 points, ie 70 points attributed to the quality of the service, 20 points attributed to the discount rate on public prices and 10 points attributed to the costs generated by execution of the framework agreement and supported by the departmental media library for the travel of its representatives to the holders.
The special clauses included the obligation for the incumbent to allow librarians to consult the funds on his premises at least once a month.
The Conseil d'Etat points out that if this obligation, which is likely to ensure the proper performance of the contract, can be set as a necessary condition for the performance of the service, it can not, however, lead to favoring service providers located nearby. of the media library to the detriment of any more distant candidate.
However, that was the case of the criterion of judgment relating to the expenses incurred by the departmental media library for the travel of its representatives to the holders who necessarily and systematically favor the closest candidates, and unfairly restrict the possibility for a candidate who is further away from to be retained.
Rule n ° 1: Conditions of use of the criterion of geographical location
As a reminder, Article 52 of the Ordinance of the Ordinance No. 2015-899 of 23 July 2015 on public procurement recalls that a public contract is awarded to the tenderer who submitted the most economically advantageous tender on the on the basis of one or more objective, precise criteria related to the subject of the public contract or its conditions of execution. Article 62 of Decree No. 2016-360 of 25 March 2016 on public procurement reiterates this requirement by stipulating that the criteria must not be discriminatory and related to the subject of the public contract or its conditions. execution.
These provisions allow the contracting authority to adopt a criterion based on the geographical proximity of the candidate when its consideration is made objectively necessary by the subject of the contract and the nature of the services to be provided ......... but only on condition that the terms and conditions appreciation of that criterion shall not have a discriminatory effect between the candidates.
However, in that case, the judge hearing the application for interim measures considered that the method of assessing the criterion of geographical location which was based exclusively on the distance between the geographical location of the candidate libraries and the departmental media library necessarily had the effect of favoring closest candidates, thereby restricting the possibility for candidates further away from being selected. Accordingly, the President of the Court of First Instance considered that the method of selecting the tenders was irregular.
Rule n ° 2: The assessment of the impact of an unlawful criterion by the pre-contractual judge
The lack of knowledge of the provisions of Article 62 of Decree No. 2016-360 of 25 March 2016 on public procurement, more specifically the choice of an illegal or discriminatory criterion, is a breach of the referred precontractual to know, since it was likely to distort the conditions of competition.
Regarding the assessment of the injury, the decision of the Council of State is in line with the conclusions of its public rapporteur DACOSTA on the decision of the Council of State of 11 April 2014 Minister of Defense 375245 which already observed that the choice of an irregular criterion is always liable to injure the applicant: " This breach was likely to harm the company. You do not enter into the logic of neutralizing an irregular criterion, because an illegality affecting the rules of the game is always regarded as likely to have influenced the results. ".
In the present case, it will be noted that the judge of the pre-contractual injunction did not content himself with noting the irregularity of the criterion of judgment of the offers but went a little further by pointing out that the irregular criterion was determining in the choice of the most economically advantageous offer without, fortunately, going so far as to check whether the breach could have caused the applicant's classification placed in 4th position.
The judgment of the Council of State thus validates the rule according to which the use of an illegal criterion is likely to hurt an unsuccessful candidate whatever his classification.
- Considering that according to the article L. 551-1 of the code of administrative justice: "The president of the administrative court, or the magistrate which he delegates, can be seized in case of failure to the obligations of publicity and implementation. the award by the contracting authorities of administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation, the delegation of 'a public service or the selection of a shareholder economic operator of a mixed economy company with sole operation (...) / The judge is seized before the conclusion of the contract "; that under I of Article L. 551-2 of the same code: "The judge may order the author of the breach to comply with its obligations and suspend the execution of any decision that relates to the award of the contract, except where it considers that, in view of all the interests that may be adversely affected, and in particular the public interest, the negative consequences of such measures may outweigh their benefits. / It may, moreover, annul the decisions relating to the awarding of the contract and delete the clauses or requirements intended to appear in the contract which do not comply with those obligations ";
- Considering that it appears from the documents in the file submitted to the judge of the pre-contractual summary that the department of Haute-Garonne has launched a consultation in view of the signing of a framework agreement for the acquisition of documents in all media and on associated services, for the benefit of the departmental media library; that the company La Préface has submitted an offer for lot # 1 relating to "French-language adult novels, printed (including large print) or recorded except science fiction, fantasy, fantasy, detective novels"; that, by a letter of 4 April 2018, the departmental council of Haute-Garonne informed her that her offer had not been accepted; that, by an order of April 27, 2018, the pre-contractual judge of the administrative court of Toulouse has, at the request of the company The Preface, on the basis of the article L. 551-1 of the code of administrative justice, canceled the award procedure in issue; that the department of Haute-Garonne appeals in cassation against this order;
- Considering, in the first place, that the judge of the pre-contractual injunction pointed out, by an undisputed assessment, that the special clauses relating to the implementation of the framework agreement require the holder of the contract to allow, at least once per month, to librarians of the media library to come and consult his funds of works on his premises; that it also noted, without distorting the stipulations which it was seized, that the regulation of consultation foresees, among the criteria of selection of the offers, a criterion relating to the expenses of displacement generated, for the media library, by the execution of this market and that the methods for calculating the costs incurred were based exclusively on the distance between the geographical location of the candidate libraries and the departmental media library; that the judge could deduce, by a sovereign appreciation without denaturing, without refraining from drawing the consequences of its own findings, that this criterion of selection of offers was likely to favor the closest candidates and to restrict the possibility for candidates who are further away from being selected by the contracting authority;
- Considering, secondly, that the judge of the Toulouse Administrative Court, without distorting the documents in the case-file and, in doing so, without making any error of law, that if it were open to the Department of the Haute- Garonne to provide for a monthly consultation, by the agents of the media library, funds on the premises of the holder of the market and, consequently, to retain a criterion of selection of the offers taking into account the cost of these displacements, the criterion fixed in l the species, did not allow to effectively value the offer representing the least cost of travel;
- Considering that it follows from all the foregoing that the department of Haute-Garonne is not justified in seeking the annulment of the order it is attacking;
- Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the sum to be charged to the company La Préface, which is not, in the present case the losing party; that it is necessary to condemn the department of Haute-Garonne to pay the company The Preface a sum of 3 500 euros under the same provisions;
Article 1: The appeal of the department of Haute-Garonne is rejected.
Article 2: The department of Haute-Garonne will pay the company The Preface a sum of 3 500 euros under Article L. 761-1 code administrative justice.