A financial offer equal to the purchase price of the supplies is not sufficient to characterize an abnormally low offer!
In this case, the Conseil d'Etat considers that the price offered by a candidate to the public purchaser which corresponds exactly to the purchase price of the equipment is not sufficient to characterize an abnormally low bid.
Teaching n ° 1:
Under Article 60-I of Decree No. 2016-360 of 25 March 2016 on public procurement, the public purchaser must require the tenderer to justify the price or the costs proposed in his tender when it appears to be abnormally low. in respect of the works, supplies or services, including the portion of the public contract which he intends to subcontract.
Whatever the procurement procedure is, it is the responsibility of the contracting authority, who finds that an offer appears abnormally low, to seek from the author all the details and reasons justifying the proposed price. If the clarifications and justifications provided are not sufficient to ensure that the proposed price is not regarded as clearly undervalued and thus likely to compromise the proper performance of the contract, it is then up to the bidder to reject his bid, except undermine the equality between the candidates for the award of a public contract "(EC May 29, 2013, Minister of the Interior, No. 366606, EC October 25, 2013, Department of Isère, No. 370573; EC 1 March 2012, Department of Southern Corsica, No. 354159, ECR).
In the present case, it is interesting to note that the Conseil d'Etat pursues a jurisprudential policy which progressively renders meaningless the notion of an abnormally low offer and which turns away from both the letter and the spirit of the rules. in force.
Indeed, the latest examples of case law show that the administrative judge does not apply the regulation of public contracts which "requires" to ask for evidence to a candidate whose offer appears suspicious under certain indices and this thanks to the extremely limited control of the manifest error of appreciation which finally leaves all latitude to place the cursor at the level which one wishes according to each case .......
As a result, a price difference of more than 50 % is no longer considered awake »The doubt of the public purchaser so that it needs clarifications (CE 4 May 2016, ADILE of Vendée, req.n ° 396590). It is not surprising, therefore, to see orders for interim relief as surprising as those which now consider that a price difference of more than 200 % is not enough to trigger the abnormally low bid detection system (TA Nantes , ord., April 11, 2017, Société ISL Informatique, No. 1702581).
Teaching n ° 2:
Should a company that decides to offer a particularly competitive financial offer by renouncing any profit margin be considered as posing a risk for the proper performance of market services? From an economic point of view, the lack of margin leads to working losses ....
In order to determine whether the public purchaser has not breached its competitive bidding obligations by failing to claim supporting documents, should we not start from the opposite premise of asking whether such an offer can be considered rational from an economic point of view. Otherwise, a financial offer without the slightest concern for profitability should not be considered suspicious?
A financial sacrifice considered as not rational from an economic point of view - here the absence of any profit margin - is finally no longer considered by the Council of State as "imposing" the obligation to trigger the detection device of abnormally low offers provided for by Article 60 of the Decree of 25 March 2016.
Board of state
N ° 414860
Reading of Monday, January 22, 2018
IN THE NAME OF THE FRENCH PEOPLE
- Considering that it appears from the documents in the file submitted to the judge of the summary proceedings that by a notice of public call for competition, the commune of Vitry-le-François has started a consultation according to an adapted procedure having for object the supply of equipment public led lighting for Place d'Armes; that at the end of this consultation, the municipality has, by two letters of August 23, 2017, informed the company Comptoir de negoce amenities of the rejection of its offer and awarded the contract to the company CVELUM; that by an order of September 20, 2017, the judge of the pre-contractual summary of the administrative court of Châlons-en-Champagne canceled the procedure of attribution of the market;
- Considering that under the terms of article L. 551-1 of the code of administrative justice: "The president of the administrative court, or the magistrate whom he delegates, can be seized in the event of failure to fulfill the obligations of publicity and setting in competition to which the contracting authorities are contracting for administrative contracts for the execution of works, the delivery of supplies or the provision of services, with an economic consideration consisting of a price or an operating right, the delegation of 'a public service or the selection of a shareholder economic operator of a mixed economy company with a single operation. / The judge is seized before the conclusion of the contract "; that article L. 551-2 of the same code provides that: "The judge may order the author of the default to comply with his obligations and suspend the execution of any decision relating to the conclusion of the contract, except if he considers, in consideration of all the interests likely to be injured, and in particular the public interest, that the negative consequences of these measures could outweigh their benefits. He may also annul the decisions which relate to the conclusion of the contract and delete the clauses or prescriptions intended to appear in the contract and which ignore these obligations ";
- Considering, on the one hand, that under the terms of article 45 of the ordinance of July 23, 2015 relating to the public markets: "Are excluded from the procedure of public procurement: (...) 2 ° People who have not subscribed to the declarations incumbent on them in tax or social matters (...) "; that under I of article 48 of the decree of March 25, 2016 relating to public procurement: "The candidate produced in support of his application: / 1 ° A declaration on honor to justify that he does not fall under any of the cases mentioned in articles 45 and 48 of the aforementioned order of July 23, 2015 and in particular that it is in good standing with regard to articles L. 5212-1 to L. 5212-11 of the labor code concerning employment of disabled workers "; that under II of article 51 of the same decree: "The buyer accepts as sufficient proof attesting that the candidate is not in a case of prohibition to tender mentioned in 2 ° of article 45 of l ordinance of July 23, 2015 referred to above, the certificates issued by the competent administrations and bodies. An order of the ministers concerned fixes the list of taxes, taxes, contributions or social contributions which should give rise to the issue of a certificate as well as the list of administrations and competent bodies "; that under the terms of article 55 of the same decree: "(...) II. - The buyer verifies the information which appears in the application, including with regard to economic operators on whose capacities the candidate s This verification is carried out under the following conditions: / 1 ° The verification of the aptitude to exercise the professional activity, of the economic and financial capacity and of the technical and professional capacities of the candidates may be carried out at any time procedure and at the latest before the award of the public contract; 2 ° The buyer can only demand that the only candidate to whom it is intended to award the public contract that he justifies not being in a case of prohibition to tender ; / 3 ° However, when the buyer limits the number of candidates admitted to continue the procedure, these checks take place at the latest before sending the invitation to tender or to participate in the dial ogue. / ... / IV. - If a candidate or a tenderer is in a case of prohibition to tender, does not meet the conditions of participation set by the buyer, product, in support of his application, false information or documents, or cannot produce the supporting documents, the means of proof, the additional information or explanations required by the buyer within the time limit, his application is declared inadmissible and the candidate is eliminated. / In this case, when the verification of the applications takes place after the selection of the candidates or the classification of the offers, the candidate or the tenderer whose application or offer has been classified immediately after his is requested to produce the necessary documents "; that finally, under the IV of article 2 of the decree of May 25, 2016 fixing the list of taxes, taxes, contributions or social contributions giving rise to the delivery of certificates for the award of public contracts and contracts of concession: "The Association for the management of the development fund for the professional integration of the disabled, mentioned in article L. 5214-1 of the labor code, issues a certificate attesting the regularity of the employer's situation to regarding the obligation to employ disabled workers provided for in articles L. 5212-2 to L. 5212-5 of the same code ";
- Considering, on the other hand, that the employment obligation of disabled workers and the subsequent obligation to send an annual declaration relating to the employment obligation of disabled workers, provided respectively by articles L. 5212-2 and L. 5212-5 of the labor code, apply only, under article L. 5212-1 of this code, to employers with at least twenty employees;
- Considering that it follows from what has been said in point 4 that no provision requires an employer with less than twenty employees to employ disabled workers or to make an annual declaration of employment for disabled workers; that, therefore, the production of the certificate attesting the regularity of the situation of the employer with regard to the employment of disabled workers mentioned in the decree of May 25, 2016 cited in point 3 can not be required, when signing a public market, a candidate who employs less than twenty employees; that, as a result, the judge of summary proceedings of the administrative court of Châlons-en-Champagne made an error of law in considering that the company awarded the contract should, even though it was not subject to the obligation of employment of disabled workers, produce a certificate attesting to the regularity of his situation with regard to the employment of disabled workers and that the municipality has failed to fulfill its obligations of publicity and competition by awarding it the contract in question while its the offer should have been declared inadmissible; that the commune of Vitry-le-François is justified in requesting, for this reason, and without it being necessary to rule on the other ground of appeal, the annulment of the order challenged;
- Considering that, in the circumstances of the case, it is necessary to settle the case under the procedure of summary procedure initiated, in application of the provisions of article L. 821-2 of the code of administrative justice;
- Considering, in the first place, that the company Comptoir de negoce amenities maintains that the municipality has refrained from checking the financial, technical and professional capacities of the candidates and that the candidacy of the company CVELUM was incomplete, and therefore irregular, failing include an appropriate statement from banks or proof of insurance for professional risks, a document which, by virtue of the market consultation regulations, was to be supplied as information concerning the economic and financial capacity of the company; that it follows however from the analysis report of the candidacies drawn up by the commune that this one carried out an analysis of the technical, financial and professional capacities of the candidacies; that it follows from the instruction that the CVELUM company file was complete and compliant with the consultation regulations; that thus, the plea alleging the irregularity of the candidacy of the company awarded the contract must be rejected;
- Considering, in the second place, that as it was said above, the company CVELUM, from which it emerges from the file that it employed less than twenty employees, was not subject to the obligation of employment of disabled workers; that, as a result, the town of Vitry-le-François did not disregard its obligations of publicity and competition by not requiring society, so that it justifies not being in a case of prohibition to tender, the production of a certificate of compliance with regard to this obligation;
- Considering, thirdly, that the contracting authority freely defines the rating method for the implementation of each of the selection criteria for tenders that it has defined and made public; that it results from article 7.2 of the regulation of the consultation that the criteria of attribution of the litigious contract were the price of the services, representing 60 % of the final score, and the technical value of the offer, representing 40 % of the final grade; that the rules of the consultation provided that, for the implementation of the criterion of technical value, each offer would be rated according to the characteristics and quality of the products, representing 70 % of the note of the criterion, and the delivery conditions and packaging, representing 30 % of this note;
- Considering, on the one hand, that contrary to what is argued by the applicant company, the sub-criterion "delivery and packaging conditions" was related to the subject of the contract, even though the tenderers were not in charge of manufacturing equipment; that, moreover, article 5.2 of the particular technical specifications specified that the supplies had to be "suitably" packed so as to withstand without damage the transport and possible storage in the municipal store; that this sub-criterion was therefore accompanied by sufficient details enabling it to be assessed; that, consequently, the applicant company is not founded to maintain that having regard to its imprecision, the sub-criterion "conditions of delivery and conditioning" conferred on the contracting authority a discretionary freedom of choice;
- Considering, on the other hand, that the offers of the applicant company and of the recipient company were both judged insufficient on the sub-criterion "delivery and packaging conditions"; that the only circumstance that, on this point, the literal appreciation of these two offers is identical whereas the marks allotted are different does not establish in itself that the grading method would be irregular;
- Considering, in the fourth place, that under the terms of article 60 of the decree of March 25, 2016: "I. - The purchaser requires that the tenderer justifies the price or the costs proposed in his offer when it seems abnormally low with regard to the works, supplies or services, including for the part of the public contract which it intends to subcontract. / (...) II. - The buyer rejects the offer: / 1 ° When the elements supplied by the tenderer do not satisfactorily justify the low level of the price or the proposed costs (...) ";
Considering that it follows from the aforementioned provisions that, whatever the award procedure implemented, it is incumbent on the contracting authority which notes that an offer seems abnormally low to seek from the author all clarifications and justifications likely to explain the proposed price; that if the details and justifications provided are not sufficient for the price offered not to be regarded as manifestly undervalued and of such a nature as to jeopardize the proper performance of the contract, it is for the contracting authority to reject the offer;
- Considering that it results from the instruction that the offer of the company CVELUM was in the amount of 79,090 euros HT whereas that of the applicant company was of the amount of 80,331.90 euros HT; that in order to establish that the municipality has committed a manifest error of assessment in retaining the offer from the company CVELUM, which it is alleged to be abnormally low, the company Comptoir de negoce amenities merely maintains that the amount of CVELUM's offer corresponds to the purchase price of the equipment and does not allow it to make a profit; that this circumstance alone is not sufficient for the price offered to be regarded as manifestly undervalued and of such a nature as to jeopardize the proper performance of the contract; that, consequently, the applicant company is not founded to maintain that the commune of Vitry-le-François would have committed a manifest error of assessment by retaining an abnormally low offer;
- Considering, lastly, that under the terms of I of article 99 of the aforementioned decree of March 25, 2016: "For public contracts awarded according to an adapted procedure, the buyer, as soon as he decides to reject an application or an offer, notifies each candidate or tenderer concerned of the rejection of their application or their offer / It communicates to the candidates and tenderers who so request in writing the reasons for the rejection of their application or their offer within fifteen days from the receipt of this request. If the tenderer has had his offer rejected while it was neither inappropriate, irregular or unacceptable, the buyer shall also communicate to him the characteristics and advantages of the offer selected as well that the name of the successful tenderer "; it follows from these provisions that for contracts awarded according to a suitable procedure, the buyer notifies the tenderer of the rejection of his offer and, if he makes a written request, communicates the reasons for the rejection; that it also communicates to it, if its offer was neither appropriate, irregular or unacceptable, the characteristics and advantages of the selected offer as well as the name of the successful tenderer;
- Considering that it results from the instruction that by a letter of August 23, 2017, the town of Vitry-le-François informed the company Comptoir de negoce amenities of the rejection of its offer and the reasons for this rejection; that following a written request from the company, the town of Vitry-le-François, by letter dated September 12, 2017, indicated the characteristics and advantages of the offer of the company CVELUM which had been selected; that contrary to what is maintained, the indications given on this point by the municipality were sufficient; that, consequently, the plea based on the fact that the commune of Vitry-le-François would have disregarded the provisions of I of article 99 of the abovementioned decree of March 25, 2016 by refraining from indicating the characteristics and advantages of the the selected offer must be rejected;
- Considering that it follows from all of the above that the company Comptoir de negocedesquipments is not justified in requesting the cancellation of the procedure for awarding the contract for the supply of LED public lighting equipment intended for the Place d'Armes in the town of Vitry-le-François;
- Considering that it is necessary, in the circumstances of the case, to charge the company Comptoir de negoce amenities with the sum of 4,000 euros to be paid to the municipality of Vitry-le-François in respect of Article L. 761-1 of the Code of Administrative Justice;
Article 1: The order of the summary judge of the administrative court of Châlons-en-Champagne of September 20, 2017 is canceled.
Article 2: The request presented by the company Comptoir de negoce amenities before the summary judge of the administrative court of Châlons-en-Champagne is rejected.
Article 3: The company Comptoir de negoce amenities will pay the sum of 4,000 euros to the municipality of Vitry-le-François under Article L. 761-1 of the Code of Administrative Justice.
Article 4: The present decision will be notified to the municipality of Vitry-le-François and to the company Comptoir de negoce d'études.