Freedom of access to public procurement and discriminatory nature of technical requirements
Rule n ° 1:
The Conseil d'Etat recalls that the pre-contractual summary procedure can be introduced by any unsuccessful candidate but also by any candidate who has been prevented from participating in the competitive bidding procedure and who warrants a professional specialty in relation to the subject of the contract (reminder of the solutions identified by CE 8 August 2008, Burgundy region, n ° 307143- CE 5 August 2009, Région Center, n ° 307117).
Rule n ° 2:
The Conseil d'État considers that if Article 6 of the Code des Marches Publics forbids the contracting authorities to mention trademarks in their CCTP, with regard to service contracts, it is necessary to examine whether the technical specification in question whether or not it has the effect of favoring or eliminating certain economic operators and, in the event only of such an infringement of competition, whether that specification is justified by the subject of the contract or, if it is not the case, if a sufficiently precise and intelligible description of the object of the market is not possible without it. In other words, it is a matter of verifying whether the prescription is likely to give an advantage to a particular candidate. In this case, the software solution was freely and freely accessible and modifiable by all the specialized candidates. Candidates could therefore submit an offer meeting the needs of the contracting authority on a strictly equal footing. The Conseil d'État therefore considered that there was no infringement of the equal treatment of the candidates.