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 ordinance n ° 2015-899 of July 23, 2015 relating to public contracts recalls that a public contract is awarded to the tenderer who has presented the most economically advantageous tender on the basis of one or more objective, precise criteria linked to the subject of the public contract or its conditions of performance. Article 62 of decree n ° 2016-360 of March 25, 2016 relating to public procurement takes up this requirement by laying down as a condition that the criteria must not be discriminatory and linked to the subject of the public procurement or its conditions of 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
Failure to comply with the provisions of article 62 of decree n ° 2016-360 of March 25, 2016 relating to public procurement, more specifically the choice of an illegal criterion or one having discriminatory effects, arises from the breaches which it belongs to the judge of pre-contractual referrals to know, since it was likely to distort the conditions of competition.
With regard to the assessment of the lesion, the judgment of the Council of State is in line with the conclusions of its Public Rapporteur DACOSTA on the judgment of the Council of State of April 11, 2014 Minister of Defense , req.n ° 375245 who already observed that the choice of an irregular criterion is always likely to harm the applicant: This failure was likely to harm society. You are not entering into the logic of neutralizing an irregular criterion, because an illegality affecting the rules of the game is always regarded as likely to have had an influence on 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 under the terms of article L. 551-1 of the code of administrative justice: “The president of the administrative court, or the magistrate whom he delegates, can be seized in the event of breach of the obligations of publicity and setting in competition to which the contracting authorities award public administrative contracts for 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 public service or the selection of a shareholder economic operator of a mixed economy company with a single operation (…) / The judge is seized before the conclusion of the contract “; that under the terms of I of article L. 551-2 of the same code: “The judge may order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the award of the contract, unless he considers, in consideration of all the interests likely to be injured and in particular the public interest, that the negative consequences of these measures could outweigh their benefits. / He may, in addition, annul the decisions relating to the conclusion of the contract and delete the clauses or prescriptions intended to appear in the contract and which disregard said obligations “;
- Considering that it appears from the documents in the file submitted to the judge of the pre-contractual summary proceedings that the department of Haute-Garonne has launched a consultation with a view to the conclusion of a framework agreement relating to the acquisition of documents on all media and on associated services, for the benefit of the departmental media library; that the company La Préface presented an offer for lot n ° 1 relating to “adult novels in French, printed (including large print) or recorded except science fiction, fantasy, fantasy, detective novels“; that, by a letter dated April 4, 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 judge of the pre-contractual summary of the administrative court of Toulouse has, at the request of the company La Préface, on the basis of article L. 551-1 of the code of administrative justice, canceled the impugned procurement procedure; that the department of Haute-Garonne appeal in cassation against this order;
- Considering, in the first place, that the judge of the pre-contractual summary procedure noted, by an uncontested appreciation, that the book of the particular clauses relating to the execution of the framework agreement requires the contractor to allow, at least once per month, to the librarians of the media library to come and consult its holdings of works on its premises; that it also noted, without distorting the stipulations before it, that the consultation regulations provide, among the selection criteria for offers, a criterion relating to the travel costs incurred, for the media library, by the execution of this market and that the methods of calculating the costs incurred were based exclusively on the distance between the geographic location of the candidate bookshops and the departmental media library; that the judge was able to deduce therefrom, by a sovereign assessment free from denaturing, without refraining from drawing the consequences from his own findings, that this criterion of selection of tenders was likely to favor the closest candidates and to limit the possibility for more distant candidates to be retained by the contracting authority;
- Considering, in the second place, that the judge of the summary proceedings of the administrative court of Toulouse estimated, without distorting the documents of the file and, by doing so, without committing an error of law, that if it were open to the department of Haute- Garonne to plan a monthly consultation, by the agents of the mediatheque, of the funds in 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 'species, did not effectively enhance the offer representing the lower cost of travel;
- Considering that it follows from all of the above that the department of Haute-Garonne is not justified in requesting the cancellation of the order it is attacking;
- Considering that the provisions of article L. 761-1 of the code of administrative justice prevent an amount to be put in this respect at the expense of the company La Préface, which is not, in this proceeding , the losing party; that the department of Haute-Garonne should be ordered to pay La Préface 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 Haute-Garonne department will pay La Préface a sum of 3,500 euros under article L. 761-1 of the Code of Administrative Justice.