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Rating of the price criterion: No consideration of the particular situation of candidates with regard to VAT

by gmorales on November 15th, 2016 | Category: Public markets
Notation du critère prix : Pas de prise en compte de la situation particulière des candidats au regard de la TVA Notation du critère prix : Pas de prise en compte de la situation particulière des candidats au regard de la TVA

CAA Bordeaux, November 15, 2016, Bordeaux Métropole, n ° 15BX00253

The Communauté urbaine de Bordeaux, which succeeded Bordeaux Métropole, had launched two subsequent training contracts, following a multi-awarding framework agreement. One of the foreclosed companies in one of the subsequent contracts filed an application with the Administrative Tribunal seeking cancellation of the contract and compensation for its injury, which was upheld by the trial judge. The Administrative Court of Appeal annuls this judgment, stating that the method of rating the price criterion can not be assessed according to the particular tax situation of the candidates with regard to VAT.

Rule n ° 1: The price rating method can not depend on the tax situation of candidates with regard to VAT

In this case, the letter of consultation provided that the prices were exclusive of taxes and would be increased by all taxes and duties in effect on the date they became due. To note the price criterion, the Bordeaux Urban Community had therefore compared the pre-tax prices proposed by the candidates, without distinguishing between those who were subject to VAT and those who were not. This is the point which the applicant company challenged: being exempt from VAT, it considered that this advantage should have been taken into account by the contracting authority. His reasoning was followed by the Administrative Court, which held that the Urban Community of Bordeaux had made an error of law. This judgment is annulled by the Administrative Court of Appeal on the basis of the fundamental principles of equal treatment of candidates and transparency of procedures. Recalling that a method of marking is tainted with irregularity if, in disregard of these principles, it is itself such as to deprive the selection criteria of their scope or to neutralize their weighting and thus lead to the the best score is not awarded to the best offer, the Court states that "the regularity of a method of rating the price of services is assessed without regard to the particular situation of each of the candidate companies and can not therefore depend, in particular, on their respective tax situation with regard to value added tax (VAT) ". The contracting authority could not therefore compare the proposed prices by adding any VAT that may be due on the services of the companies subject to this tax. Consequently, the Administrative Court of Appeal considers that the Bordeaux Urban Community had not made an error of law and annulled the judgment.

Rule 2: An application for an injunction to reimburse sums paid pursuant to a void judgment is not applicable

Since the subsequent award procedure is not vitiated by the sole irregularity raised by the applicant company, the Court considers that it is neither justified in seeking the annulment of the contract nor in being compensated for the damage alleged. . Consequently, the Urban Community of Bordeaux was wrongly ordered to pay the applicant company a sum of € 25,000 in compensation for its shortfall. The community asked the court to order the court to repay the amount paid. However, recalling that the decisions of the administrative courts are enforceable and thus make it possible to obtain, if need be ex officio, the reimbursement of sums already paid, the Administrative Court of Appeal considers that this request is not applicable.

CAA of BORDEAUX
N ° 15BX00253  
Unpublished at Lebon collection

2nd room (training 3)

Ms. JAYAT, President
Mr Philippe DELVOLVÉ, rapporteur
Mr KATZ, public rapporteur
CABINET CABANES, lawyer

Reading of Tuesday, November 15, 2016

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

Previous litigation procedure:

The company ECF-CESR-FP asked the administrative court of Bordeaux to cancel the contract passed on February 8, 2011 between the Bordeaux urban community and the company Fauvel Training for the compulsory training of heavy goods vehicles drivers and condemn the urban community of Bordeaux to pay him the sum of 40 000 euros for his loss of earnings.

By a judgment n ° 1101649 of November 19th, 2014, the administrative court of Bordeaux condemned the urban community of Bordeaux to pay the company ECF-CESR-FP a sum of 25 000 euros in repair of its shortfall, this sum being accompanied interest capitalized at the legal rate effective April 18, 2011 and rejected the surplus of the conclusions of his request.

Court procedure:

By an application, registered on January 20, 2015, supplemented by additional briefs registered on January 21 and September 28, 2016, Bordeaux Métropole, which comes to the rights of the urban community of Bordeaux, represented by MeA ..., asks the court, in the last state of his writings:

1 °) to annul the judgment of 19 November 2014 of the Administrative Court of Bordeaux in so far as it grants an indemnity of 25 000 euros to the company ECF-CESR-FP, in addition to moratory interests;

2 °) to reject the application for the first instance of the company ECF-CESR-FP;

3 °) to order the company to refund the sum of 26 478,49 euros, in addition to moratory interests from the date of payment until the date of the return of the principal;

3 °) to charge the company ECF-CESR-FP the sum of 4 000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file.

Viewed:
- the general tax code;
- the code of public contracts;
- Decree No. 2014-1599 of 23 December 2014 creating the metropolis called "Bordeaux Métropole";
- the code of administrative justice.

The parties were regularly notified of the day of the hearing.

The following were heard during the public hearing:
- the report of Mr Philippe Delvolvé;
- the conclusions of Mr David Katz, public rapporteur;
- and the observations of MeC ..., representing Bordeaux Métropole, and Me B ..., representing the company ECF-CESR-FP.

Considering the following:

1. Following a framework agreement drawn up by the Bordeaux Urban Community, the latter has launched a procedure for awarding two contracts with purchase orders for mandatory minimum initial training and mandatory continuing training for truck drivers assigned to transport. December 22, 2010. These two markets had an execution period expiring on December 31, 2011. If ECF-CESR-FP was selected for the first referenced market M101142U, it was informed on February 21, 2011 that it had not been selected for the second market referenced M101143U, which was spent with the company Fauvel, ranked first after the analysis of the offers. She applied to the Administrative Court of Bordeaux for the cancellation of the contract between the Bordeaux Urban Community and the Fauvel company on 8 February 2011, and the condemnation of the community to pay her the sum of 40,000 euros in compensation for it considers that it has suffered as a result of its exclusion from the procurement procedure No MU101143U. Bordeaux Métropole, which comes to the rights of the urban community of Bordeaux, raises appeal of the judgment dated November 19, 2014 as he sentenced to pay the company ECF-CESR-FP the sum of 25 000 euros interest at the legal rate.

On the merits of the judgment under appeal:

2. Under Article 1 of the Public Procurement Code: "(...) II.- Public contracts and framework agreements subject to this Code shall respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures These principles make it possible to ensure the efficiency of public procurement and the proper use of public funds.These obligations are implemented in accordance with the rules laid down in this code (.. .). "The contracting authority shall freely define the rating method for the implementation of each of the bid selection criteria it has defined and made public. A grading method is vitiated by irregularity if, in breach of the fundamental principles of equal treatment of candidates and transparency of procedures, it 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 implementation of each criterion, that the best score is not awarded to the best offer or, in the light of all the weighted criteria, that the economically most advantageous offer is not chosen. The regularity of a method of rating the price of services is assessed without regard to the particular situation of each of the candidate companies and can not therefore depend, in particular, on their respective tax situation with regard to value added tax (VAT). ). In the light of that principle, a Community can not compare the prices offered by each of the undertakings by adding to the prices quoted, in accordance with the rules defined by it, by the candidates not exempt from tax on the date of the comparison, the VAT which will eventually be due by the community on the benefits.

3. In the present case, Article 5 of the tender specifications provides for two selection criteria for the tenders, the price, weighted at 40 %, and the execution time, weighted at 60 %. Article 8-1 of the order letter of the Bordeaux Urban Community states that: "the price presented by the holder is unitary, firm and definitive, expressed in euros excluding tax. (...) The prices provided for in the This letter of order is exclusive of taxes and will be increased by all the legally applicable duties and taxes in force on the day of their payment. "It follows from these provisions that the price proposed should be expressed exclusive of tax by the all candidates, without distinction between those who were exempt from VAT and the others. It follows from paragraph 2 that the method of comparing tenders which consisted in comparing prices as expressed by candidates made it possible to respect the principle of equality between candidates, regardless of their situation. particular tax. Contrary to the first judges' assessment, the Bordeaux Urban Community did not err in law in adopting such a price rating rule and did not therefore vitiate the procedure for awarding the contract in dispute. irregularity. It is up to the court, by way of the devolutive effect, to rule on all the claims of the company ECF-CESR-FP presented before the Bordeaux Administrative Court.

4. Seized by a third party of conclusions contesting the validity of the contract or of certain of its clauses, it is up to the judge of the contract, after verifying that the author of the action avails himself of an interest likely to be injured sufficiently direct and certain and that the irregularities which it criticizes are of those which it can usefully invoke, when it notes the existence of defects vitiating the validity of the contract, to appreciate the importance and the consequences. It is incumbent upon it, having taken into consideration the nature of these defects, either to decide that the continuation of the performance of the contract is possible, or to invite the parties to take regularization measures within a time limit which it fixes, except to terminate or terminate the contract. In the presence of irregularities which can not be covered by a regularization measure and which do not allow the continuation of the execution of the contract, it is his responsibility to pronounce, if necessary with a delayed effect, after having verified that his decision does not will not cause an excessive breach of the general interest, either the termination of the contract, or if the contract has an unlawful content or if it is affected by a defect of consent or any other defect of a particular gravity that the judge must thus automatically raise the total or partial cancellation of it. Lastly, if it is seised of the case, it may, including when it invites the parties to take regularization measures, grant a claim for compensation for the damage resulting from the infringement of injured rights.

5. As the procedure for the award of the contract in dispute is not vitiated by the sole irregularity relied on by ECF-CESR-FP, the latter is neither justified in seeking the annulment of the contract at issue nor in being compensated. injuries it invokes.

6. It follows from the foregoing, and without it being necessary to rule on the other grounds of the application, that Bordeaux Métropole, which comes to the rights of the Bordeaux Urban Community, is justified in maintaining that it is at that, by the judgment under appeal, the Bordeaux Administrative Court ordered her to pay ECF-CESR-FP a sum of EUR 25 000 in compensation for her loss of earnings.

On the conclusions at the end of the injunction:

7. Bordeaux Métropole requests that ECF-CESR-FP be ordered to reimburse the sum of EUR 26 478,49, together with default interest from the date of payment to the date of the refund. of the principal. However, it follows from the provisions of Article L. 11 of the Administrative Justice Code that the decisions of the administrative courts are enforceable. When the judge of appeal reverses a sentence pronounced at first instance, his decision, whose expedition notified to the parties is covered by the executory formula provided for in Article R. 751-1 of the Code of Administrative Justice, allows by itself even to obtain, if necessary ex officio, the repayment of sums already paid under this condemnation. Thus, Bordeaux Métropole's submissions that ECF-CESR-FP be ordered to reimburse the sum paid in execution of the contested judgment are not applicable. They can not, therefore, be rejected.

The conclusions presented under Article L. 761-1 of the Administrative Justice Code:

8. The provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount being charged to Bordeaux Métropole, which is not the losing party in the present proceedings, under expenses incurred by ECF-CESF-FP and not included in the costs. In the circumstances of this case, there is no need to charge ECF-CESF-FP for the costs incurred by Bordeaux Métropole in the same capacity.

DECIDE:
Article 1: The judgment n ° 1101649 of November 19, 2014 of the administrative court of Bordeaux is canceled.
Article 2: The application submitted by the company ECF-CESR-FP before the Administrative Court of Bordeaux is rejected.
Article 3: The surplus of the submissions of the parties is rejected.