Public procurement: obligation to control the capacities the technical and professional financial capacities of the candidates
The contracting authority is obliged to check, at the examination stage, the technical, financial and professional capacities of the candidates.
Article 45 of the Public Procurement Code states that: The contracting authority may only require candidates to submit information or documents enabling them to assess their experience, professional, technical and financial capacities as well as documents relating to the powers of the persons empowered to hire them. (...)".
For its part, Article 52 of the Code des Marches Publics states that: Nominations (...) shall be examined in the light of the professional, technical and financial capacities mentioned in the public notice of competition, or, in the case of a procedure exempted from the sending of such notice, in the regulation of the consultation. Applications that do not meet these capacity levels are eliminated. (...)".
The Conseil d'Etat considers that the contracting authority must control the professional, technical and financial guarantees of the candidates for the award of a public contract and that this verification is carried out on the basis of the only information or documents provided for by the prescriptions of this contract. ministerial order. In addition, the Conseil d'Etat requires that the public notice of competition or the consultation regulation indicate the documents or information that will enable the contracting authority to control the financial, technical and professional guarantees of the candidates. This solution is in line with Article 44 of the Directive of 31 March 2004: the contracting authorities must check the suitability of the undertakings and may, in addition, require minimum levels of capacity, related and proportionate to the subject of the contract. The contracting authority must therefore carry out this verification.