An offer suspected of being abnormally low must be rejected in the absence of justification!
The Réunion region had launched a procedure for the award of an alloti market for training actions. A company that applied for several lots was informed that all its offers were rejected. She applied to the President of the Court of First Instance for an annulment of the award procedure and to the resumption of that procedure at the stage of the analysis of the tenders. As this request was granted by the judge hearing the application for interim relief, the Réunion region appealed. In this judgment, the Council of State provides particulars on the assessment of abnormally low offers under the order of 23 July 2015 and the decree of 25 March 2016.
Rule n ° 1: The non-salaried workforce must be taken into account to assess the human resources in the absence of a contra-indication of the specifications
The President of the Court of First Instance first annulled the proceedings on the ground that the tender of the company awarded the contract was irregular. The CCTP stipulated that bidders had to have an administrative team to manage the execution of the contract and a teaching team involving at least three trainers. Considering that the awarding company had for its only human resources a person in charge of the training establishment, the administrative court considered that the offer was irregular because it did not respect the requirements formulated in the documents of the consultation. The Conseil d'Etat censored this solution, observing that the public list of training organizations provided for by the Labor Code, which had been submitted to the judge hearing the application for interim relief, established that the successful firm did have a staff of three trainers. , who were not employees of this one. However, the consultation documents did not require that the trainers be necessarily employees of the applicant company. The Conseil d'Etat therefore considers that the judge of interim measures has distorted the documents in the file and annuls the order for this reason.
Rule 2: the contracting authority has the obligation to reject an offer suspected of being abnormally low in the absence of justification
Moreover, the offer of the applicant company had been rejected because it had been found to be abnormally low. The region had sent her a request for justification, which she had not answered. However, the President of the Court considered that this lack of response could not be taken into account in the present case and held that the applicant's tender was not abnormally low because it was higher than that of the successful tenderer. walk. The Conseil d'État censures this reasoning, ruling that, in the absence of an explanation of the proposed price, the region was under an obligation to reject the applicant's offer, pursuant to Articles 53 of the 23 July 2015 relating to public procurement and Article 60 of the decree of 25 March 2016 relating to public procurement. He therefore quashed the order of the President of the Court of First Instance for that second reason, finding that the latter had made an error of law.
Rule # 3: Holding an Offer Below An Offer Suspected of Being Abnormally Low is not sufficient to establish that it is undervalued
Lastly, the applicant claimed that the tender of the awarded company was abnormally low, merely observing that it was lower than the amount of its own tender, considered by the region as abnormally low. The Conseil d'Etat rejects this plea, noting that the applicant did not provide any information to establish that the tender selected was undervalued. He also noted that the region had also asked the awarding company for a justification of its prices, which had provided the requested information. Consequently, the Conseil d'Etat considers that the region did not make a manifest error of assessment in accepting an offer lower than that of the applicant.
To distract yourself a bit and see the problematic of the abnormally low offer in film : it's here
Board of state
Reading of Thursday, March 30, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure
The public interest group Continuing Education Professional Insertion (GIP FCIP) applied to the judge of the administrative court of the Meeting for the annulment of the procedure for the award of prizes no. s 4, 5, 6, 7 and 8 of the public contract for continuing vocational training actions relating to the "Tertiary and Services 2016" training program initiated by the Réunion region and, secondly, to the resumption of this procedure at stage of the analysis of the offers. By an order no. 1601084 of 14 November 2016, the judge of the Court of First Instance annulled, on the basis of Articles L 551-1 et seq. Of the Code of Administrative Justice, the procedure for awarding the contract with regard to the prizes Nos. 4, 5, 6, 7 and 8 and enjoins the resumption of this procedure at the stage of the analysis of the offers.
By an appeal and a new brief recorded on 22 December 2016 and 6 February 2017 to the litigation secretariat of the Conseil d'Etat, the Réunion region asks the Conseil d'Etat to:
1 °) to cancel this order;
2 °) ruling in summary proceedings, to reject the request of the GIP FCIP;
3 °) to charge the GIP FCIP the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the labor code;
- Ordinance No. 2015-899 of 23 July 2015;
- Decree No. 2016-360 of 25 March 2016;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Jean Sirinelli, master of requests in extraordinary service,
- the conclusions of Olivier Henrard, public rapporteur.
The word having been given, before and after the conclusions, to the SCP Monod, Colin, Stoclet, lawyer of the Region Reunion.
- Considering that according to the article L. 551-1 of the code of administrative justice: " The chairman of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the disclosure and competitive bidding requirements to which the contracting authorities are subject to administrative contracts for the performance of works , the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service (...) "according to Article L. 551-2 of this code:" I. The judge may order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the award of the contract, unless he considers, in consideration of all interests to be harmed, including the public interest, that the negative consequences of these measures may outweigh their benefits. It may, moreover, annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to appear in the contract which do not comply with those obligations. " ;
- Considering that it emerges from the statements in the order under appeal that the Reunion Region has initiated a procedure for the award, by an adapted procedure, of a contract for continuing vocational training actions relating to the "Tertiary" training program. and services 2016 ", divided into eight lots; that the group of economic operators consisting of the GIP FCIP and GRETA Reunion, of which the GIP FCIP is the agent, has applied for the allocation of lots 4, 5, 6, 7 and 8 of this contract ; that the group was informed on 28 September 2016 that its offers were not retained for any of these lots; that by the order contested, the judge of the interim administrative tribunal of Reunion, seized by the GIP FCIP, has, on the basis of the article L. 551-1 of the code of administrative justice, canceled the procedure of issue of this contract for each of these lots at the stage of the analysis of the bids and enjoins the Reunion region to relaunch the procedure at the bid analysis stage; that the Region Réunion appeals in cassation against this order;
- Considering, in the first place, that under the provisions of article 59 of the decree of 25 March 2016 relating to public contracts: " I. - The buyer verifies that tenders that have not been eliminated pursuant to IV of Article 43 are regular, acceptable and appropriate. / An irregular offer is an offer that does not comply with the requirements set out in the consultation documents, in particular because it is incomplete, or which does not comply with applicable legislation, particularly in the social and environmental field / ... II. - In tender procedures and adapted procedures without negotiation, irregular, inappropriate or unacceptable offers are eliminated. However, the buyer may allow all tenderers concerned to regularize irregular tenders within an appropriate period, provided that they are not abnormally low " ;
- Considering that the documents in the file submitted to the judge hearing the urgent application of the Tribunal administratif de la Réunion show that, according to the provisions of Article XIII of the special technical clauses of the contract in question, the tenderers must have an administrative team in charge of managing the execution of the contract and a teaching team involving at least three trainers; that, however, there was no provision in the consultation documents which required that the trainers be necessarily employees of the applicant company; that in addition, information from the public list of training organizations provided for in Article L. 6351-7-1 of the Labor Code, submitted to the judge hearing the application for interim measures, established that BFAOI had a staff of 3 people ; that in these circumstances, by stating that the human resources of the company BFAOI were limited to the only person of a head of a training establishment and relying in particular on this circumstance to judge that the offer of the BFAOI company for lots Nos. 4 and 5 should have been rejected as irregular, since it lacked an administrative team and an educational team complying with the conditions laid down in the documents for the consultation, the judge hearing the application for interim measures misrepresented the parts of the file;
- Considering, secondly, that under Article 53 of the Ordinance of 23 July 2015 on public procurement: " When an offer seems abnormally low, the buyer requires the economic operator to provide details and justifications on the amount of his / her offer. If, after checking the justifications provided by the economic operator, the buyer establishes that the offer is abnormally low, it rejects it under conditions laid down by regulation "that, according to the provisions of article 60 of the decree of March 25, 2016 relating to public markets:" I. - The buyer requires the tenderer to justify the price or the costs proposed in his tender when it appears to be abnormally low in relation to the works, supplies or services, including for the part of the public contract which he envisages under -treat / ... II. - The buyer rejects the offer / 1 ° When the elements provided by the tenderer do not satisfactorily justify the low level of the price or the proposed costs ... " ;
- Whereas the fact that a contracting authority may withhold an abnormally low tender affects the equality of candidates for the award of a public contract; It follows from the above-mentioned provisions that, irrespective of the award procedure used, it is incumbent upon the contracting authority to find that an offer appears abnormally low to request from its author all the details and justifications which might explain the price. offers ; if the details and justifications provided are not sufficient to ensure that the proposed price is not regarded as manifestly undervalued and thus liable to jeopardize the proper performance of the contract, it is for the contracting authority to reject the tender;
- Whereas, in order to find that the Réunion region had made a manifest error of assessment in rejecting the offer of the GIP FCIP-GRETA Reunion Group for lots Nos. 6, 7 and 8 as abnormally low, the judge hearing the application for interim relief noted that the fact that the group has refrained from answering the request for justification of the region could not be taken into account in this case and that the price of its offer was higher than that of the offer of the company BFAOI, winner of the contract; that in so basing, to estimate that the offer of the grouping was not abnormally low, on the only difference of price with the competing supply, then in addition that in the absence of any precision given by the grouping of a nature to explain the proposed price, it was incumbent upon the region to reject its offer, the judge of the summary proceedings erred in law;
- Whereas it follows from the foregoing, and without it being necessary to examine the other ground of appeal, that the Region Réunion is justified in seeking the annulment of the order under appeal;
- Considering that, in the circumstances of the case, it is necessary, pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated by the GIP FCIP;
With regard to lots 4 and 5:
- Considering, in the first place, that under Article 55 of the decree of 25 March 2016 relating to public contracts: " I. - The buyer who finds that parts or information whose presentation was requested under the application form are absent or incomplete can ask all the candidates concerned to complete their application file within an appropriate and identical time for all / II . - The buyer checks the information contained in the application, including economic operators on whose abilities the candidate relies. This check is made under the following conditions / ... / IV. - If a candidate or tenderer is in a bidding case, does not meet the participation conditions set by the buyer or can not produce supporting documents, evidence, complements or explanations required by the buyer, his application is declared inadmissible and the candidate is eliminated " ;
- Considering that to argue that BFAOI's application should have been rejected as inadmissible for lack of sufficient technical and economic capacity, the GIP FCIP submits that it has performed a limited number of training hours for the year 2015 and that it does not have an administrative team or a teaching team; that, however, it follows from point 4 that the stipulations of Article XIII of the special technical clauses of the contract in question, which did not specify the composition of the administrative team responsible for managing the execution of the contract; market, did not require trainers to be employees of the applicant company; that it also results from the instruction that by estimating, in view in particular of the information of the public list of the organizations of formation envisaged by the article L. 6351-7-1 of the code of the work and the appendix relating the educational team assigned to the action produced by the company BFAOI, that the company BFAOI had sufficient technical and economic capacities, the region Réunion did not commit a manifest error of appreciation;
Considering, secondly, that it follows from the provisions cited in paragraph 5 that, irrespective of the award procedure used, it is incumbent on the contracting authority to find that an offer appears abnormally low to solicit from its author all clarifications and justifications to explain the proposed price; if the details and justifications provided are not sufficient for the proposed price not to be regarded as manifestly undervalued and thus of a nature to undermine the proper performance of the contract, it is for the contracting authority to reject the tender ;
- Considering that in order to establish that the Reunion region made a manifest error of assessment by retaining for all the lots the offer, which is alleged to be abnormally low, of the BFAOI company, the GIP FCIP confines itself to to compare its amount with the amount of its own offer, without providing any clarification or justification such as to justify that the offer of the company BFAOI, which incidentally had responded to the request for justification of the price of his offer that he had addressed the region in view of their low level, could be regarded as manifestly undervalued and thus of a nature to compromise the proper performance of the market; that, as a result, the GIP FCIP is not justified to maintain that the region Réunion had made a manifest error of appreciation by retaining an abnormally low offer for batches 4 and 5 of the market;
With regard to lots 6, 7 and 8:
Considering, in the first place, that it follows from the investigation that the Réunion region has, for the detection of abnormally low tenders, used a calculation method recommended by the Charter for the detection of abnormally low tenders and the choice of the most economically advantageous offer signed on March 26, 2012 under the aegis of the High Public Procurement Council, which revealed a clearly significant difference between the offer of the GIP FCIP-GRETA Meeting and the weighted average of the valid offers received ; that in view of these results, the region has asked the group GIP FCIP-GRETA Reunion and two other bidding companies to justify their prices by providing a detailed decomposition of various positions, bringing any other element to justify the prices and indicating whether they had exceptionally favorable conditions to perform this contract; that the GIP FCIP has refrained from responding within the reasonable time allotted to it, or even after the deadline, at the request of the contracting authority; that, in order to challenge the merits of the Region's decision to reject its tender for lots Nos. 6, 7 and 8 of the contract as abnormally low, the FCIP GIP merely states that were awarded to a candidate whose prices were lower by more than 30 % at the prices presented by the group; The applicant group, which relies only on the price difference with the competing offer of BFAOI, thus does not provide any evidence of a satisfactory nature to justify the low price of its own offer. that it follows from all these elements that the Region Réunion has not, by rejecting the offer of the group GIP FCIP-GRETA Reunion as abnormally low, committed a manifest error of appreciation ;
- Considering, secondly, that it follows from what has been said in points 11 and 13 that the Réunion Region also did not make a manifest error of assessment in not ruling out the application of the undertaking BFAOI as inadmissible and not rejecting the offer of this company as abnormally low;
- Considering that it follows from all the foregoing, and without it being necessary to rule on the objection of inadmissibility raised by the Meeting Region, that the GIP FCIP is not justified in seeking the annulment of the award of lots 4, 5, 6, 7 and 8 of the disputed contract;
- Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to the Reunion Region which is not, in the present case, the losing party; that, in the circumstances of the case, the GIP FCIP should be charged, under the same provisions, the sum of 3 500 euros to be paid to the Réunion region, as well as the sum of 3 000 euros to be paid to BFAOI under the procedure followed before the Administrative Court of Reunion;
Article 1: The ordinance of 14 November 2016 of the administrative court of Réunion is canceled.
Article 2: The request made by the GIP FCIP before the Administrative Court of Reunion is rejected.
Article 3: The GIP FCIP will pay to the Reunion region a sum of 3,500 euros and the company BFAOI a sum of 3,000 euros under Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the Reunion region, to the public interest group Formation Continued Insertion Professionnelle and to Bourbon Formation Avenir Océan Indien.