The use of the draw validated by the Council of State for the rating of the prize
Conseil d'Etat, 19 October 2016, SNEF and City of Marseille, n ° s 401660 and 401710
The commune of Marseille had launched a consultation in which the price criterion was noted by applying the prices of the unit price list (BPU) provided by the candidates to an estimated quantitative detail (DQE) drawn up by the administration and not communicated allowing develop a fictional order. Several EQAs were developed, of which only one was randomly selected to serve as a basis for rating the price criteria. This procedure, which was censored by the judge in chambers, was validated by the Conseil d'Etat.
Rule n ° 1: The simulation of fictitious orders by application of the prices of the candidates to quantities not communicated is a valid method of notation of the criterion price
In the consultation regulation, it was specified that the score for the price criterion was based on the application to the BPU provided by the candidates of a so-called "masked construction site" DQE, drawn up by the administration, which had not been published. not communicated to the candidates. The price of a "masked yard" was thus reconstituted by the contracting authority and it was on this price that the candidates' bids were judged.
Recalling that the contracting authority freely defines the rating method for the implementation of each of the bid selection criteria which it has defined and made public ", The Council of State believes that this process, consisting of simulations by applying the unit prices proposed by candidates to quantities not communicated, is not a sub-criterion but a simple method of scoring offers. Consequently, the Conseil d'Etat considers that the contracting authority is not obliged to inform applicants that it will use this method.
Rule n ° 2: The buyer can elaborate several DQE and choose, by lot, the one that will serve as a basis for the price notation
It was further specified in the consultative regulation that the contracting authority would draw up several 'masked works' EQOs and that only one would be chosen, by lottery, to carry out the rating of the prices obtained using the method previously explained.
The President of the Court of First Instance criticized that method on the ground that the introduction of chance into the proceedings had deprived the selection criteria of their scope or neutralized their weighting.
The Conseil d'État censures this reasoning, considering that the drawing of lots is not, in itself, likely to prevent the most economically advantageous tender from being chosen in accordance with the provisions of the Code des Marches Publics.
However, the Council of State sets three conditions for the use of the draw in this case:
- The different simulations must all correspond to the purpose of the market
- The choice of the content of the simulation should not have the effect of favoring a particular aspect, so that the price criterion would be distorted.
- The amount of the offers proposed by each candidate must be reconstituted using the same simulation.
The Council of State therefore cancels the order of the judge of interim relief for error of law.
Board of state
N ° 401660
ECLI: FR: CECHR: 2016: 401660.20161116
Mentioned at Lebon collection tables
7th - 2nd rooms together
Mr Gregory Rzepski, rapporteur
Mr Olivier Henrard, public rapporteur
SCP RICHARD; SCP DELAPORTE, BRIARD, lawyers
Reading of Wednesday, November 16, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Previous litigation procedure:
The company Travaux électriques du Midi (TEM) has asked the judge of the Court of Administrative Court of Marseille, ruling on the basis of Article L. 551-1 of the Code of Administrative Justice, to annul the decision of the city of Marseille rejecting the offer of the group of which it was a member and awarding the contract for the operation and maintenance of the public lighting installations of the municipality to SNEF, as well as the entire procurement procedure since the origin and all subsequent decisions taken by the contracting authority.
By an order n ° 1604918 of July 5th, 2016, the judge of the summary of the administrative court of Marseilles canceled the decision of the city of Marseilles rejecting the offer of the grouping of which was the member company TEM and attributing the market having for object the operation and maintenance of its public lighting installations at SNEF, as well as the entire procedure for awarding this contract.
Proceedings before the Council of State:
1 ° Under n ° 401660, by a summary appeal and a complementary memorandum, registered on July 20 and August 3, 2016 to the litigation secretariat of the Council of State, the SNEF company asks the Council of State:
- cancel this order;
- to charge the company Electrical Works of the South the sum of 5,000 euros under Article L. 761-1 code administrative justice.
2 ° Under the n ° 401710, by a summary appeal and a complementary memory, registered on July 21st and August 3rd, 2016 with the secretariat of the litigation of the Council of State, the city of Marseilles asks the Council of State:
- cancel this order;
- ruling in urgent proceedings, to dismiss the TEM's first instance findings;
- to charge the company TEM the sum of 4 000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the files;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Grégory Rzepski, Master of Applications in Extraordinary Service,
- the conclusions of Olivier Henrard, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Richard, lawyer of the company SNEF, to the SCP Delaporte, Briard, lawyer of the company Works electrical of the midi and to Me Haas, lawyer of the city of Marseilles;
Considering the note under deliberation, registered on October 25th, 2016, presented by the company Travaux électriques du midi;
- Considering that the appeals of the company SNEF and the city of Marseille are directed against the same order; whereas it is necessary to join them so that they are the subject of a single decision;
- 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, or the delegation of a public service (...) "; that under the terms of I of Article L. 551-2 of the 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 awarding of the contract, except where it considers that, in the light 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 in addition, 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 ... "; that under the terms of article L. 551-10 of the same code: "The persons authorized to initiate the recourse 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 be injured by the breach invoked (...) ";
- Considering that, by a notice published on February 8, 2016, the city of Marseilles has launched a formal open tendering procedure for the award of a works contract for the purpose of operating and maintaining its facilities street lighting; that this single market encompassed various types of works and services broken down into four separate positions, operation, maintenance, studies and maintenance of lighting installations; that, by an order dated July 5, 2016, the judge of the pre-contractual summary of the administrative court of Marseille, seized by the company Electrical Works of the South (TEM), canceled the whole procedure of procurement of this market, thus that the decision of the city of Marseilles awarding the contract to the company SNEF and rejecting the offer of the grouping of which was the member company TEM; that the company SNEF, under the number 401660, and the city of Marseilles, under the number 401710, are warring against this order;
- Whereas it follows from the statements in the order under appeal that the Rules of the Consultation provided that the score awarded to the candidates on the price criterion was based on six prices corresponding to the four market-provided benefit items; that under Article 6.2 of the Regulation for two of the benefit items, the price mark awarded to the candidates was based on the application to the unit price list (BPU) provided by the candidates of a " Estimated Quantitative Detail (DQE), called "hidden site", unpublished and not communicated to candidates (...) These "masked sites" DQEs include items and services of the Quantity Price List (BPU) allocated quantities ( ...) From the BPU supplemented by him, each candidate will see his masked sites reconstituted by the Administration (...) .By the Administration will retain for rating the price only one DQE "hidden sites" which will remain under seal until the opening of the bids, which will be drawn at the time of opening of bids by the Legal Representative of the Adjudicator or the person who has been given the power to represent him, among the two DQE "masked yards" prep which have been delivered to him under sealed cover in accordance with the preceding provisions. The fold not drawn by the Adjudicator on the day of the opening of the folds is kept sealed by the Administration ";
- Considering that the contracting authority freely defines the rating method for the implementation of each of the bid selection criteria it has defined and made public; that in carrying out a "simulation" of multiplying the unit prices proposed by the applicants by the number of proposed criterion, but with a simple method of scoring offers to evaluate them in terms of the price criterion; that he is therefore not obliged to inform the candidates in the consultation documents that he will have recourse to such a method; that it also does not fail in its obligations to call for competition by developing several fictitious orders and by drawing lots, before the opening of the folds, the one from which the price criterion will be evaluated, with the threefold condition that the simulations all correspond to the object of the contract, that the choice of the content of the simulation does not have the effect of favoring a particular aspect of it so that the price criterion would be distorted and the amount of offers proposed by each candidate is reconstituted using the same simulation; that by censoring the use of such a method of rating the price criterion solely on the ground that the introduction of chance in the procedure for the designation of the beneficiary of the contract in dispute, in the form of the application of the stipulations referred to in point 4 had necessarily stripped the selection criteria or neutralized their weighting and, as a result, that the best score was not necessarily awarded to the best offer or, in the light of all the weighted criteria that the economically the most advantageous offer is not chosen, since the choice of the successful tenderer does not result from the analysis conducted by the contracting authority but from the results of a random draw, the judge in chambers tainted his order error of law;
- Considering that it follows from the foregoing, without it being necessary to examine the other grounds of the appeals, that the company SNEF and the commune of Marseille are justified in seeking the annulment of the order under appeal;
- Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated;
- Considering that the company TEM argues that by proceeding to draws of DQE lot "masked sites", as was said above, the municipality resorted to a method of rating the criterion of the price which, in ignorance fundamental principles of equal treatment of candidates and transparency of procedures, is in itself such as to deprive the selection criteria of their scope or to neutralize their weighting and is therefore likely to lead, for the purposes of implementation of each criterion, so that the best score is not awarded to the best offer, or, in the light of all the weighted criteria, that the most economically advantageous tender is not chosen; that, however, as was stated in point 5, the choice and use of a lottery order made before the opening of the bids among several fictitious commands listed under sealed cover to enhance the offers of candidates according to the criterion of price are not, by themselves, likely to prevent the offer economically most advantageous being chosen in accordance with the provisions of Article 53 of the Code des Marches Publics; Consequently, the plea that by resorting to this method of rating the price criterion, the municipality would have failed in its obligations to advertise and call for competition can only be ruled out;
- Considering, secondly, that while TEM contends that the contracting authority has infringed its own consultation rules as regards the rating of tenders, it does not adduce any evidence to support that assertion;
- Considering, finally, that the mail dated June 1st, 2016, sent by the city of Marseille to the grouping of which the company TEM was a member to notify him the rejection of his offer, specified the classification of this one, the notes which he had been awarded, as well as the name of the grantee and the marks obtained by him; It follows that the plea alleging breach of Articles 80 and 83 of the Code des Marches Publics can only be dismissed.
- Considering that it follows from all the foregoing that the application of the company TEM must be rejected, including its conclusions presented under Article L. 761-1 code administrative justice; whereas, on the other hand, the payment to SNEF and the municipality of Marseille of the sum of EUR 4 500 each should be borne by the same for the entire procedure;
Article 1: The order of the judge of summary of the administrative court of Marseille of July 5, 2016 is canceled.
Article 2: TEM's requests for the annulment of the award procedure for the operation and maintenance of its public lighting installations in the city of Marseille and the decision of the city of Marseille rejecting the bid of the grouping of which TEM was a member and awarding the contract to SNEF are rejected.
Article 3: TEM will pay 4,500 euros to SNEF and the city of Marseille under article L. 761-1 of the administrative justice code.
Article 4: The findings of the company TEM presented under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the company TEM, the company SNEF and the city of Marseille.