New Juridical Precisions on the Definition of an Irregular Offer
The Council of State clarifies the scope of the incomplete nature of an offer by considering that an offer of a candidate who does not include a prefectural approval necessary for the performance of the services of the market but not required by the regulation the consultation does not allow to declare the offer irregular.
Teaching n ° 1: Reminder of the scope of an incomplete offer
The Council of State has already had the opportunity to recall that the contracting authority can not award a contract to a candidate whose offer does not meet the requirements of the consultation rules (v ° eg: EC 23 Nov. 2005, Sté Axialogic, Req. No. 267 494 ; CE 23 May 2011, Cne d'Ajaccio, req. No. 339406).
Faced with an incomplete offer or an irregular offer, the contracting authority is obliged to eliminate it except in case of possible regularization (v ° eg: CE 12 Jan. 2011, Department of Doubs, Req. No. 343324).
Teaching n ° 2: The absence of an approval not required by the regulation of the consultation does not entail the incompleteness of the offer
In its judgment of 4 October 2019, the Conseil d'État states that the offer of a candidate who does not include a prefectural approval necessary for the treatment of non-household packaging waste does not make it possible to declare the offer irregular as soon as possible. when this requirement is not expressly provided for in the consultation rules.
In fact, the Conseil d'État states, after examining the regulation of the consultation that the prefectural approval should " to be mentioned in the "documentary evidence", but did not appear in the list of documents expressly mentioned in Article 6.1 of this Regulation as being obligatorily attached to the tender ".
In this case, the Council of State considers that the contracting authority could therefore validly ask the candidate " to produce this document after the deadline for submission of tenders ". It is therefore not a question of a regularization of an incomplete offer or of a substantial prohibited modification of the offer.
The modern society of sanitation and cleaning (SMA), whose rights comes the company Valéor, asked the Toulon Administrative Court to cancel the contract concluded between the Joint Union for Sustainable Development of East-Var for the treatment and recovery of household waste (SMIDDEV) and the company Ehol, and to condemn this union to pay him the sum of 2 167 072 euros, with interest at legal rates and their capitalization. By a preliminary judgment n ° 1303270 of May 31, 2016, the administrative court of Toulon canceled this market as of August 31, 2016, rejected the conclusions of the company Valéor tending to the payment of an allowance for the expenses social and ordered an expert report on the remaining indemnity claims.
By a judgment n ° 16MA03136 of March 30, 2018, the Administrative Court of Appeal of Marseilles rejected the call formed by the SMIDDEV against this judgment.
By a summary appeal and a supplementary appeal, registered on 29 May and 22 August 2018 at the Secretariat of the Council of State, the SMIDDEV asks the Council of State:
1 °) to annul this judgment;
2 °) settling the case on the merits, to grant his appeal;
3 °) to charge the company Valéor the sum of 5 500 euros under Article L. 761-1 code administrative justice.
Considering the following:
- It follows from the documents in the file submitted to the court that SMIDDEV entered into a contract with Ehol on 25 July 2013 for the purpose of "tri-conditioning selective collection materials". At the request of the company SMA, whose rights comes from the company Valeor, candidate ousted, the Administrative Court of Toulon has, by a judgment before saying right of May 31, 2016, canceled this contract and, having considered that this company had lost a serious chance of obtaining the contract and rejected part of its indemnity claims, ordered an expert opinion before deciding on the surplus of these. In a judgment of 30 March 2018, against which the SMIDDEV appeals in cassation, the administrative court of Marseille rejected the appeal he had lodged against this judgment.
- It is up to the contract judge, when he establishes the existence of defects vitiating the validity of the contract, to appreciate the importance and the consequences. Thus, after taking into account the nature of these defects, it is up to it 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 that it fixed, 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.
- In the first place, it is apparent from the statements in the judgment under appeal that, after citing the provisions of Article 35 of the Code des Marches Publics which give a definition of an irregular offer, then those of Article 53 of the Code which provide that an irregular offer is eliminated, the court relied on the provisions of Articles 6.1 and 6.2 of the consultation rules to hold that the offer of the company Ehol, awarded the contract in dispute, was incomplete and should therefore have been eliminated on the grounds that the file submitted before the deadline for submission of tenders did not include the prefectural approval for the treatment of non-household packaging waste, since that document had been produced after this deadline, at the request of the contracting authority. However, this document was cited in Article 6.2 of the consultation regulation as to be mentioned in the "documentary evidence", but did not appear in the list of documents expressly mentioned in Article 6.1 of that regulation as being to be must be attached to the offer. Thus, by asking the company Ehol, which had mentioned that approval in its "statement of evidence", to produce that document after the deadline for submission of tenders, the contracting authority merely applied the provisions of the consultation, without allowing the company Ehol to regularize an incomplete offer or to modify the content of it and without favoring this company to the detriment of the other candidate. As a result, the SMIDDEV is justified in claiming that the court misrepresented the documents in the file and erred in its legal characterization by finding that Ehol's offer was incomplete in the light of the consultation rules.
- Secondly, it is apparent from the statements in its judgment that the Marseilles Administrative Court of Appeal held that the defects on the one hand, the irregularity of the offer submitted by the company Ehol and other on the other hand, ignorance of the principle of the intangibility of the offer by the latter was "in view of their nature and their consequences on the choice of the successful tenderer", taken "separately and all the more reason together", to justify the cancellation of the disputed market. In so doing without seeking, on the one hand, whether the defects alleged were of a particularly serious nature justifying the cancellation of the contract nor, on the other hand, whether such annulment was not such as to bring about an excessive infringement the general interest, the court erred in law and insufficiently motivated its judgment.
- It follows from all of the above, without it being necessary to examine the other grounds of appeal, that the SMIDDEV is justified in seeking the annulment of the judgment it is challenging.
- It is appropriate, in the circumstances of the case, to charge the company Valéor a sum of 3,000 euros to pay the SMIDDEV on the basis of Article L. 761 1 code administrative justice. On the other hand, these same provisions prevent an amount being placed in this respect from SMIDDEV, which is not, in the present case, the losing party.
Article 1: The judgment of 30 March 2018 of the Administrative Court of Appeal of Marseille is canceled.
Article 2: The case is referred to the Administrative Court of Appeal of Marseille.
Article 3: The company Valéor will pay to SMIDDEV the sum of 3,000 euros on the basis of Article L. 761-1 code administrative justice. The same conclusions presented by Valéor are rejected.