Control of access to the public control of public operators
The Council of State reiterates the conditions under which a local authority or a public cooperative institution may apply for the award of a public contract and the scope of the judge's review of the summary proceedings in the event of a dispute with the from a competitor who has been ousted.
Teaching n ° 1: a public institution can be a candidate for the signature of a contract subject to the respect of the principle of specialty
The Council of State has already had occasion to recall that the public persons can be candidates for the attribution of a contract of the public order, in the same way and under the same conditions as a private enterprise (EC, opinion , 8 November 2000, Jean-Louis Bernard Consultants, Rec., 492).
The public purchaser must, however, "verify that the performance of the contract in question falls within the scope of his competence and, in the case of a public institution, does not disregard the principle of specialty to which he is bound" ( EC, September 18, 2015, Asso of Management of the National Conservatory of Arts and Crafts of the Pays de la Loire et al., No. 355563).
In other words, the Council of State specifies that if the public person can candidate still it is necessary that it can justify:
- Local public interest for local authorities (EC, 14 June 2019, Armor SNC, req. No. 411444);
- Or respecting the principle of specialty for public institutions (EC 18 September 2019, Community of communes of Ile-Rousse-Balagne, application No. 430368).
In its judgment of 18 September 2019, the Conseil d'État controls this condition by noting that the principle of specialty of the OEHC is provided for by law and codified in Articles L. 112-32 et seq. Of the Rural Code so that " the plea alleging breach of the principle of specialty of public establishments must therefore be rejected and the applicant company can not usefully argue that the intervention of the Office is not justified by any local public interest (Since it is not a territorial collectivity).
Teaching n ° 2: the thorough analysis of the offer of the public body only in case of substantial difference
As a candidate to obtain a public contract, it is not forbidden that the situation of the public body, its equipment certainly already depreciated and its staff in particular, may lead it to set a lower price than that private companies. In this case, the offer of the public corporation may distort competition.
In its decision of 18 September 2019, the Council of State recalls that the public purchaser is required to exert a strong control of the offer of the public candidate if it " differs substantially From those of private competitors.
However, the Council of State noted that the economic balance of the offer presented by the OEHC does not differ substantially from that of the competing bid ". Therefore, the nature of the public body of the OEHC should not be a condition for the dealer to require further clarification of the determination of his offer. The Council of State specifies that it is required to do so only in the presence of a difference " substantial ".
The Council of State does not give any precision on what constitutes an offer substantially different from the others. In accordance with the determination of an abnormally low tender, it seems that for the Council of State, the substantial difference is that which is obvious.
Considering the following:
- The appeals of the community of communes of Ile-Rousse-Balagne and the Hydraulic Equipment Office of Corsica are directed against the same decision. They must be joined to rule by a single decision.
- 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, the delegation of a service public or the selection of a shareholder economic operator of a joint venture company with sole operation (...) / The judge is seized before the conclusion of the contract ".
- It is apparent from the documents submitted to the judge hearing the application for interim relief from the Bastia Administrative Court that, by a notice of public tender published in the Official Bulletin of the Public Procurement Announcements on 14 August 2018, the community of communes of the basin of life Ile-Rousse, now the community of communes of Ile-Rousse-Balagne (CRIRB), has launched a procedure to concede the public service of distribution of drinking water. The company of the waters of Corsica was informed, by an email of March 21, 2019, of the rejection of its offer. The community council of the CRIRB approved, by a deliberation of March 28, 2019, the attribution of the concession contract to the Hydraulic Equipment Office of Corsica (OEHC). By the contested order, against which the CRIRB and the OEHC appealed to the Court of Cassation, the judge hearing the application for interim relief annulled, at the request of the Société des eaux de Corse, the disputed procedure.
- According to article 27 of the decree of 1 February 2016 on concession contracts, then applicable: "I. - In order to award the concession contract, the licensing authority shall base itself, in accordance with the provisions of Article 47 of the order of 29 January 2016 referred to above, on a plurality of non-discriminatory criteria (...) / The criteria and their description are indicated in the concession notice, in the invitation to submit an offer or in any other document of consultation / II - For concession contracts falling under 1 ° of Article 9, the granting authority sets the award criteria in descending order of importance, and their hierarchisation is indicated in the concession notice. , in the invitation to submit an offer or in any other document of the consultation ". According to Article 9 of the same decree: "Concession contracts are awarded in accordance with the common procedural rules laid down in this Chapter." / This chapter also lays down the specific award rules respectively applicable to: / 1 ° Contracts whose estimated value excluding tax is equal to or higher than the European threshold published in the Official Journal of the French Republic 2 ° To the contracts defined in Article 10 ". Article 10 of the same decree states that: "The concession contracts mentioned in 2 ° of Article 9 are the following contracts: (...) / 2 ° Concession contracts which, whatever their estimated value , for object: / a) The activities falling under 3 ° of I of Article 11 of the order of 29 January 2016 referred to above ". Under Article 11 of the Ordinance of 29 January 2016 on concession contracts, then applicable: "I. - Are network operator activities within the meaning of this order: / (...) / 3 ° The provision, operation or supply of fixed networks intended to provide a service to the public in the field of production, transport or distribution of drinking water ".
- Referring to the activities mentioned in 3 ° of I of Article 11 of the Order of 29 January 2016, Article 10 of the Decree of 1 February 2016 relied on the material criterion of the object of the contract to exclude the application of the special award rules applicable to contracts whose estimated value excluding tax is equal to or greater than the European threshold, including the obligation for the granting authority, provided for in Article 27 (II) of the Decree, to set the criteria for awarding the contract in descending order of importance to contracts relating to the provision, operation or supply of fixed networks intended to provide a service to the public in the field of production, transport or distribution of drinking water, irrespective of their estimated value and concluded by a contracting authority or contracting entity.
- It is apparent from the documents submitted to the judge hearing the application for interim relief from the Bastia Administrative Court that the CCIRB's public water supply contract is for the purpose of operating the production, storage and distribution facilities of the CCIRB. drinking water to ensure the supply of water to the users of the service. A contract having such an object is among those referred to in 2 ° of Article 10 of the aforementioned Decree of February 1, 2016. It follows from what has been said in the preceding paragraph that the President of the Court of First Instance erred in law in holding that, in view of the estimated value of the contract, the CCIRB was required to carry out a hierarchy of the criteria for awarding of tenders and indicating this hierarchy in the concession notice, in the invitation to submit an offer or in any other document of the consultation. Thus, without it being necessary to examine the other grounds of the appeals, the CCIRB and the OEHC are justified in seeking the annulment of the order they are challenging.
- In the circumstances of this case, pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice, it is necessary to settle the case under the interlocutory proceedings instituted.
- Firstly, it is for the Pre-contractual Pre-Trial Judge, who is seized of the means on this point, to ensure that the assessment made by the Contracting Authority to exclude or admit an application does not characterize a failure to fulfill the obligations of advertising and in competition. In this context, where the candidate is a legal person governed by public law, he is responsible for verifying that the performance of the contract in question falls within the scope of his competence and, in the case of a public institution, would not disregard the principle of specialty to which he is bound.
- According to Article L. 112-32 of the Rural Code, the Hydraulic Equipment Office of Corsica is authorized, at the request of the local authorities, to "study, implement or operate the equipment necessary for the distribution of drinking water and the treatment of wastewater ". Article R. 112-34 of the same code states that: "The office may act as: ... b) concessionaire or operator on behalf of local authorities". It follows from these provisions that the operation of distribution networks on behalf of local authorities, throughout Corsica, is one of the tasks falling within the specialty of the Corsican Hydraulic Equipment Office. . The plea alleging breach of the principle of specialty of public establishments must therefore be rejected and the applicant company can not usefully argue that the intervention of the Office is not justified by any local public interest.
- In the second place, it follows from what has been said in paragraphs 5 and 6 above that the plea that the procedure for concluding the concession contract would be irregular, because the CCIRB failed to proceed with the prioritization of the contracts. award criteria and to have made this hierarchy known, must be rejected.
Thirdly, where a public person is a candidate for the award of a concession contract, it belongs to the granting authority, provided that the economic balance of the supply of that public person differs substantially from that of the offers of the other candidates, to ensure, by requesting the production of the necessary documents, that all direct and indirect costs have been taken into account for the determination of this offer, so that the conditions of competition are not distorted . It is incumbent upon the pre-contractual judge to have the effect of verifying that the contract has not been awarded to a public person who has submitted an offer which, failing to take into account all the costs incurred , distorted the conditions of competition.
It follows from the foregoing that the Corsican Water Board can not usefully argue before the pre-contractual injunction judge that the CCIRB should have ascertained, by requesting the production of the necessary documents, that the OEHC's offer had not distorted competition by failing to take into account all costs and by taking advantage of the resources and means allocated to it as part of its public service mission. Nor can it be usefully argued that OEHC does not operate any accounting separation between the means and resources allocated to it for its public service remit and those used for the execution of the public service concession contract. water supply. Furthermore, the investigation shows that the economic balance of the offer submitted by the OEHC does not differ substantially from that of the competing supply submitted by the Corsican Waters Corporation. It follows that, in accepting its offer, the CCIRB can not be regarded as having accepted an offer which, for the reasons mentioned above, would have distorted the conditions of competition and as having, for that reason, breached its obligations to advertising and competition.
- Lastly, the Corsican Water Company submits that the CCIRB disregarded the principle of equal treatment between the applicants, firstly by providing in the consultation file that the successful tenderer would buy the whole of the drinking water at the OEHC, while the latter was a candidate for the award of the concession, on the other hand, by assessing the offers in terms of their ability to control water losses, while the OEHC n on this point, it is not in the same position as the other candidates because of the interlinking of the OEHC's transmission network and the CCIRB's distribution network. However, on the one hand the clause relating to the obligation to purchase water from the OEHC is not of a nature, since each candidate must take into account, in his bid, the same price of purchase of water, to alter the conditions of competition between the candidates. On the other hand, it follows from the investigation that the water company of Corsica, current concessionaire of the public water service in the sector concerned, is, as much as the OEHC, able to take into account the possible losses network and adapt its offer accordingly. It follows that the plea of breach of equality between the candidates can only be rejected.
- It follows from all the foregoing that the claim submitted by the Corsican Waters Corporation to the judge hearing the application for interim relief from the Bastia Administrative Court must be dismissed.
- The provisions of Article L. 761-1 of the Code of Administrative Justice preclude the charging of CCIRB and OEHC, who are not the losing parties in the present case, requested by the Corsican Water Company under these provisions. On the other hand, in the circumstances of this case, it is appropriate to charge the Corsican Water Company, under the same provisions, for the payment to the CCIRB and the OEHC of a sum of 4 000 euros each for the procedure followed before the Council of State and the judge of the summary of the administrative court of Bastia.
Article 1: The order of the judge of summary of the administrative court of Bastia of April 18, 2019 is canceled.
Article 2: The request of the society of the waters of Corsica before the judge of the summary of the administrative court of Bastia and its conclusions presented under the provisions of the article L. 761-1 of the code of administrative justice are rejected.
Article 3: The company of the waters of Corsica will pay to the community of communes of Ile-Rousse-Balagne, on the one hand, and to the Office of hydraulic equipment of Corsica, on the other hand, a sum of 4 000 euros, pursuant to article L. 761-1 of the Code of Administrative Justice.
Article 4: This decision will be notified to the community of communes of Ile-Rousse-Balagne, the Hydraulic Equipment Office of Corsica and the water company of Corsica.