MAPA: can we negotiate with an inadmissible or insufficient candidature?
A pre-contractual injunction order relaunches the debate on the free choice of candidates who can be admitted to the negotiation and in particular the question of whether, in MAPA, negotiations can be opened with an economic operator who has submitted an inadmissible or insufficient application?
The Code des Marches Publics does not provide for any special rules for the award of adapted procedure contracts, including when it includes a negotiation phase with candidates. Article 28 of the Code simply states that it is the responsibility of the public body to determine freely how to advertise and call for competition, taking into account certain parameters: object and characteristics of the market, amount of the contract, conditions in purchase is made, degree of competition between the economic operators potentially interested, knowing that it is of course necessary to respect the fundamental principles defined in Article 1 which are the freedom of access to the public order, equality candidates and the transparency of procedures. In the same way, the case law does not provide for any particular rule to be respected in the event of negotiation even though it considers that it constitutes one of the main characteristics of this type of procedure and the choice of the offer (see CAA Nantes, 7 June 2013, Sté Phytorem SA). The regulatory and jurisprudential context therefore remains relatively poor in this area, so that any new case law is always welcome to analyze the room for maneuver that is open to buyers, operators and practitioners. This is the case with a new pre-contractual injunction issued by the TA of Orléans which reopens the debate on the free choice of candidates who may be admitted to bargaining (see TA Orléans 26 August 2013, ISS Green Spaces).
Opportunity to enter into negotiations with candidates who have submitted an inappropriate, improper or unacceptable offer.
In its decision of November 30, 2011, Minister of Defense and Veterans Affairs (see EC November 30, 2011, Minister of Defense and Veterans Affairs), the Council of State has laid down the following rule: under the provisions of Article 28 of the Code des Marches Publics, the contracting authority may decide to negotiate with candidates who have submitted unsuitable, irregular or unacceptable offers within the meaning of Article 53 (III) of the Code. This solution is interesting compared to what can be done in the framework of the negotiated market procedure envisaged in 1 ° of I of Article 35 of the Code. In this procedure, the contracting authority is obliged to eliminate inappropriate offers, that is to say, according to the definition of Article 35, those which provide an answer unrelated to its need and which can therefore be equated with a lack of supply. This is not the case with regard to the adapted procedure: the contracting authority may enter into negotiations with all candidates, including those who have submitted an inappropriate offer. This is the first difference. Then, in formalized procedure, with the exception of those who have submitted an inappropriate offer, the contracting authority is required to enter into negotiations with all candidates. This is not the case with regard to the adapted procedure: except for specific stipulations of the consultation rules, negotiations can be initiated with the candidates of one's choice while keeping in mind that he must be able to justify his choice. and that, at the end of the negotiations, it will also have to reject, without classifying, bids that have remained unsuitable, irregular or unacceptable in order to respect the equal treatment of the candidates. The contracting authority may therefore ask candidates who have submitted an inappropriate, irregular or unacceptable offer to regularize them retrospectively in the context of the negotiations, knowing that, for the sake of equality, they must apply to the category of candidates concerned ( those who submitted an inappropriate and / or irregular and / or unacceptable offer) and not just one of them.
The possibility of entering into negotiations with candidates who have submitted an incomplete or insufficient nomination file?
In an order of August 26, 2013 (see TA Orleans August 26, 2013, ISS Green ESPACES ST), the judge pre-contractual referees has just laid a new rule previously unpublished that affects the selection of candidates admitted to negotiation: the same If it is possible for a contracting authority to enter into negotiations with candidates who have submitted an inappropriate, irregular or unacceptable offer, it is also possible to do so with those who have filed an incomplete or insufficient application. In that case, the President of the Court of First Instance admitted that a candidate who had not submitted the professional qualification certificates required by the consultation rules and sufficient professional references could complete his technical and professional guarantees during negotiation.
A solution that raises new questions regarding current regulations and the principle of equality
First of all, this solution somewhat upsets the usual chronology of the analysis work of the contracting authority: as we know, at first, it is supposed to check the completeness of the application files, before analyzing in a second step the capacities of the candidates then in a third time the offers and possibly, in a fourth time, to initiate or not negotiations with some of them. However, once the stage of analysis of the candidatures carried out, it is difficult to legitimize legally the solution which would be to return during negotiation to the first phase of analysis whereas this one is supposed to be definitively definitive at the moment negotiations begin. Once again, the justification for such a choice risks becoming a real conundrum for the contracting authority, except to admit that, in the case of an adapted procedure, it is free to organize the procedure as it should be. hears. Secondly, this solution also upsets the logic attached to the fate of unsuccessful or incomplete applications. In fact, it should be recalled that the system for regularizing incomplete or insufficient applications provided for by Article 52 of the CMP "imposes" on the contracting authority, when it decides to implement it, to address all candidates including those who have already submitted a complete file. This article makes no distinction whether it is a formalized procedure or an adapted procedure. Therefore, except to disregard the principle of equality which underlies the mechanism of regularization of the candidatures, the negotiation should be committed with "all" the candidates who submitted a file of candidature that is complete or not except to disregard the Article 52 of the Code under conditions of equality between the candidates. Viewed from this angle, the solution given by the judge of interim relief could ruin the case-law reached by the Council of State and no longer present any interest for public purchasers. To enter into a negotiation with an operator who has submitted an incomplete or insufficient application is no more and no less to operate a posteriori the regularization system but in this case, the contracting authority is obliged to do so with all the candidates .... to abolish any freedom of choice of the candidates admitted to the negotiation .... It could be a real time trap for the buyer he should be wary of ...
Moreover, the judge's solution does not go without posing a problem of compatibility between the provisions of the consultation regulation which may limit the number of candidates admitted to negotiations and the mechanism Article 52 of the Code des Marches Publics which, as we have seen, if it is implemented, requires all candidates to be drafted without exception: how in this case decide to enter into negotiations only with one or two of them who submitted an incomplete application? This does not seem possible and in any case difficult to justify. Moreover, the respect of the principle of equality between candidates will not fail to arise at the stage of admission to negotiations between those who are admitted even though they have submitted a candidacy or offer a priori inadmissible and those whose the candidacy or the offer has been considered perfectly regular: there is a multitude of very random combinations that the contracting authority has every interest in handling with care.
What to do to avoid any dispute?
In any case, in order for the negotiation not to be open to challenge, the drafting of the consultation rules should provide for this new admission case. Finally, it seems that the solution reached by the judge hearing the application for interim relief is not viable or only in the presence of two candidates, the contracting authority may then take the liberty to admit to the negotiations a candidate who has submitted an incomplete or insufficient application and ask him to provide the necessary guarantees during negotiation if the rules of the consultation so provide. In any case, the buyer must at the end of the negotiation, reject applications that have remained incomplete or inadmissible due to a lack of sufficient capacity always in order to respect the equality of treatment between candidates.
If case law now opens the bargaining power not only with candidates who have submitted an incomplete or insufficient application but also with those who have submitted an inappropriate, irregular or unacceptable offer subject to compliance with the principle of equality, it will be up to the judge to assess on a case-by-case basis the regularity of the practices implemented by the contracting authorities as the possible combinations risk generating criticism from the candidates.
Reference: TA Orléans August 26, 2013, ISS Green Spaces, n ° 1302265