Irregular offer: the need to draft a regulation for consultation
The Council of State recalls that an offer that does not include all the documents or information required by the documents of the consultation is irregular and must be eliminated. The consultation rules may also be that for the rating of a criterion, an offer that does not contain certain information may be awarded a score of zero.
Teaching n ° 1: An offer that does not respect a mandatory prescription of the regulation of the consultation is irregular
The texts and the case law recall the mandatory nature of the consultation rules
Article L 2152-2 (public procurement) L 3124-3 (concessions) of the Public Order Code states that an offer which does not comply with the requirements set out in the documents of the consultation must be regarded as an irregular offer and be excluded as such unless the right of regularization on the part of the public purchaser.
The case law of the Conseil d'Etat also considers that an offer which generally does not comply with the requirements of the specifications in all its references is irregular (EC 25 March 2013, Département de l'Hérault, n ° 364824, CE 23 November 2005, Société Axialogic, Req.no. 267494) unless the said requirements are themselves either illegal or of a nature to defeat the principle of equal access to public procurement (EC 6 November 1998, AP - HM , at the tables on page 1019) that the irregularity committed is both formal and devoid of any impact (EC 8 March 1996, Mr Pelte, application no 133198, EC 9 November 2007, Société Isosec, application no. 288289) or that the method of transmission of tenders provided for by the consultation regulation is not respected (EC 22 May 2019, Sté Corsica Ferries, n ° 426763).
The public purchaser can not therefore award the contract to an irregular offer that does not comply with one of the requirements imposed by the consultation rules. He is obliged to eliminate it, without appreciating its value. Such is the case of an offer that does not contain all the documents or information required by the documents of the consultation.
Lesson 2: An offer that does not provide all the information needed to score the criteria can be given a score of zero
In his submissions on this case, the Public Rapporteur Gilles Pellissier recalls that the irregularity of an offer applies only in the absence of production of the elements, information or characteristics whose production is required by the regulation of the consultation. .
On the other hand, it does not concern the mere vagueness of the content of the offers, which will have an effect on their evaluation, nor on the elements whose settlement of the consultation provides only for the communication of information and the production of which is not not required but suggested for bid evaluation.
Take for example a contract for a public bus service. One of the selection criteria is to give the best score to the offer of the most recent vehicles. If the regulation of the consultation imposes the indication of the age of the vehicles, an offer which does not indicate it will be irregular and will have to be eliminated. If the regulation of the consultation does not require it, it can however indicate that for the application of the criterion relating to the age of the vehicles, the offer which will not specify this age will have zero.
Considering the following:
- According to the documents submitted to the Judge, on 18 July 2014, the Corsican local authority concluded a public works contract with a group composed of the Raffalli and Pompeani companies for the reconfiguration and development of the project. Furiani junction on the national road n ° 193. The Vendasi company, agent of a consortium composed of the companies Antoniotti, Via Corsa and PM Raffali, has applied to the Bastia administrative court for the cancellation of this contract and compensation for the damage resulting from his removal from the procurement procedure. In a judgment of 4 October 2016, the administrative court of Bastia rejected his request. In a judgment of 30 March 2018, against which the local authority of Corsica appeals in cassation, the Administrative Court of Appeal of Marseilles annulled this judgment and the market in dispute, then ordered an expertise for the purpose of determining the amount of the lack to win, as a result of his unlawful eviction, by the grouping of which Vendasi is an agent.
- A contracting authority may not award a contract to a candidate who fails to comply with one of the requirements laid down in the consultation rules. It is obliged to eliminate, without appreciating the value, the incomplete offers, that is to say those which do not contain all the pieces or information required by the documents of the consultation and are, for this reason, irregular. This obligation does not prevent such documents from providing, in addition, for the submission by tenderers of information which, without being necessary for the definition or assessment of tenders, and without their communication being required to be prescribed. barely irregularity of the offer, are useful to the contracting authority to enable it to assess the value of tenders in terms of a criterion or a sub-criterion and specify that in the absence of such information, the offer will be marked zero with respect to the criterion or sub-criterion in question.
- To find that the offer of the group Raffalli and Pompeani was incomplete and therefore irregular, the Administrative Court of Appeal of Marseilles noted that it did not include certain information, in particular relating to the materials used for the realization of the works and their data sheets. In so holding that the disclosure of those elements relating to the content of the tenders was prescribed by the rules of the consultation, it did not distort the latter. She has not made any mistake of law. Even though, as is apparent from the file submitted to the Court, that regulation provided, among the award criteria, a criterion of technical merit divided into a sub-criterion relating to the methodology used, a sub-criterion -criteria relating to equipment used and personnel affected and a sub-criterion relating to the quality of materials and services and that he added, in ambiguous terms, that "any absence of information of a sub-criterion will be sanctioned by a score of zero ", the production of information on the quality of the materials used, in particular their data sheets, could only be regarded as a production of the necessary elements prescribed by the Regulation, the absence of which in an offer necessarily entailed its irregularity.
- It follows from the foregoing that the territorial authority of Corsica is not justified in seeking the annulment of the judgment under appeal.
- The provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment to Vendasi, which is not the losing party, of the payment of the amounts claimed by the local authority of Corsica as such. On the other hand, it is appropriate to charge the territorial authority of Corsica, under the same provisions, the payment of a sum of € 3,000 to Vendasi.
Article 1st : The appeal of the local authority of Corsica is rejected.