The abnormally low nature of an offer is appreciated in a global way!
In this case, the Conseil d'Etat considers that the abnormally low price of an offer is assessed in relation to its overall price and the mere fact of proposing a financial offer that refrains from charging certain services is not sufficient. in itself to consider the offer as abnormally low.
Teaching n ° 1:
Whatever the procurement procedure and the type of contract, it is the responsibility of the contracting authority, who finds that an offer appears abnormally low, to request from the author all the details and justifications that would explain the price proposed in application of Article 60-I of Decree No. 2016-360 of 25 March 2016 on public procurement. If the clarifications and justifications provided are not sufficient to ensure that the proposed price is not regarded as clearly undervalued and thus likely to compromise the proper performance of the contract, it is then up to the bidder to reject his bid, except undermine the equality of candidates for the award of a public contract.
In its judgment of March 13, 2019, Sté Sepur, the Council of State now sets the rule that "the abnormally low price of an offer is assessed in terms of its overall price." On the face of it, this approach seems to be economically coherent since it is not because a candidate decides not to charge a service, in other words to encrypt it to zero, that his financial offer does not is not economically viable. The solution rendered will nevertheless complicate the analysis work of the buyers since when faced with such a situation, which will not fail to recur, it will be necessary to determine for each individual case, if the unbilled service or services are essential to the proper performance of the contract and if its lack of quantification is liable to jeopardize or not the proper performance of the services. It is not won when we know that previously the Council of State has considered that a financial offer this time globally equal to the purchase price of supplies is not sufficient to characterize an abnormally low supply (EC January 22 2018, Commune of Vitry-Le-François, Ref. No. 414860).
This decision is in line with the jurisprudence of the Conseil d'Etat, which has effectively rendered the notion of an abnormally low offer meaningless and devoid of both the letter and the spirit of the regulation. in force. As a result, a price difference of more than 50 % is no longer considered awake The public purchaser's doubt that he is seeking clarification (EC 4 May 2016, ADILE de Vendée, ref 396590) and thus to consider an offer as abnormally low. It is no longer surprising, therefore, to see orders for interim relief as surprising as those which now consider that a price difference of more than 200 % is not enough to trigger the abnormally low bid detection system (TA Nantes , ord., April 11, 2017, Société ISL Informatique, No. 1702581).
Teaching n ° 2:
The judgment of the Council of State is also interesting in that it now validates the practice of some bidders to quantify certain services of the market to " zero ", Proposing not to invoice it, even if the said services would be underweighted specifically within the price criterion.
- An offer that fails to provide certain prices of the BPU must be considered as an irregular offer if it does not comply with the requirements of the consultation rules that require all BPU prices to be filled (TA Rouen, 16 January 2014, n. 1303494, SOCIETE TERH HISTORICAL MONUMENTS);
- On the other hand, according to the judgment of the Council of State, an offer which fixes certain prices of the BPU at "zero" can not be considered as irregular. Clearly, to avoid the offer is considered irregular, it is appropriate to encrypt all BPU prices.
CE Mar. 13, 2019, Sté Sepur, req.no. 425191
Considering the following:
- According to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the publicity and competitive bidding requirements. subject to 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, or the delegation of a public service / The judge is seized before the conclusion of the contract ". According to Article L. 551-2 of the same Code: "I. - The judge may order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the execution of the except where it considers that, in the light of all the interests that may be adversely affected, including the public interest, the negative consequences of such measures may outweigh their benefits. , annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to be included in the contract which do not comply with those obligations ". According to Article L. 551-10 of the same Code: "The persons authorized to initiate the remedies provided for in Articles L. 551-1 and L. 551-5 are those who have an interest in concluding the contract and who are likely to to be aggrieved by the breach invoked (...) ".
- It appears from the documents in the file that, by a notice of competitive tender published on June 26, 2018, the agglomeration community of Grand Sénonais has launched an open tendering procedure for the award of a public contract for the collection and disposal of residual household waste and recyclable packaging waste from door-to-door collection as well as the collection of cartons from large producers. The Sepur company, candidate, was informed on 25 September 2018 of the rejection of its tender as abnormally low. She asked the pre-contractual judge of the Dijon Administrative Court to annul this decision. She appealed on a point of law against the order of 17 October 2018 rejecting her request.
- According to Article 53 of the Public Procurement Ordinance of 23 July 2015: "When an offer appears abnormally low, the buyer requires the economic operator to provide details and justifications on the amount of his bid. / If, after verifying the justifications provided by the economic operator, the buyer establishes that the offer is abnormally low, he rejects it under conditions fixed by regulation / The buyer implements all means to detect the offers abnormally low allowing him to spread them ". According to Article 60 of the Public Procurement Decree of 25 March 2016: "I. - The buyer requires the tenderer to justify the price or the costs proposed in his tender when it appears to be abnormally low in view of the works , supplies or services, including for the part of the public contract it intends to subcontract. (...) II - the buyer rejects the offer: / 1 ° When the elements provided by the tenderer do not justify satisfactorily the low price or the proposed costs (...) ".
It follows from those provisions that the existence of an abnormally low price in the tender of a candidate for only one of the services which are the subject of the contract does not in itself imply , the rejection of his tender as abnormally low, including when this benefit is the subject of a different method of remuneration or a specific underweight within the price criterion. The abnormally low price of an offer is indeed appreciating in terms of its overall price. It follows that the judge in chambers of the Dijon Administrative Court erred in law on the ground that the Grand Sénonais agglomeration community had not made a manifest error of assessment in rejecting the Sepur's offer as abnormally low, on the sole ground that it was proposing not to charge extra collection services for household waste produced by some large producers.
- However, the documents submitted to the Conseil d'Etat by the Grand Sénonais agglomeration community on 22 February 2019 and communicated to the applicant that the contract was signed on 18 October 2018, that is prior to 5 November 2018, date Appeal brought by the company Sepur. His appeal is therefore inadmissible.
- In the circumstances of this case, it is not necessary to grant the submissions made by the parties under Article L. 761-1 of the Code of Administrative Justice.
Article 1: The appeal of the company Sepur is rejected.
Article 2: The conclusions of the agglomeration community Grand Sénonais presented under Article L. 761-1 code administrative justice are rejected.
Article 3: This decision will be notified to the company Sepur and the agglomeration community of Grand Sénonais