Offer variant in adapted procedure: to read well its regulation of the consultation!
The Council of State reminds that in the context of an adapted procedure, in the absence of clarification of the regulation of the consultation, the tenderers can freely propose one or several variants instead of the basic offer except if the regulation of the consultation imposes the presentation of a basic offer.
The modalities of presentation of a variant offer in adapted procedure: possible in the silence of the regulation of the consultation
In the case of public contracts awarded under an adapted procedure, candidates may propose variants in the absence of clarification of the rules of the consultation.
Article R 2151-8 of the Public Order Code states that: for contracts awarded according to an adapted procedure, the variants are authorized unless otherwise stated in the documents of the consultation ".
In other words, in the absence of an express prohibition laid down in the consultation regulation, tenderers may freely propose one or more variants instead of the basic tender.
The buyer can mention in the documents of the consultation, in a succinct way, the minimum requirements, as well as the modalities of their presentation. In this case, only variants meeting these requirements will be considered.
In its judgment of 20 September 2019, the Council of State also recalls that the consultation rules may require the submission of a basic offer in addition to one or more alternative offers. In the absence of a basic offer required by the consultation rules, the variant offer must be considered as irregular.
The modalities of presentation of a variant offer in formalized procedure launched by a contracting entity: possible in the silence of the regulation of the consultation
For public contracts awarded under a formal procedure launched by a contracting entity, candidates may also propose variants in the absence of a clarification of the consultation rules.
Article R 2151-8 of the Public Order Code states that " Where the contract has been awarded by a contracting entity, variants are allowed unless otherwise stated in the contract notice or in the invitation to confirm the interest. ".
In other words, it is the same regime as that applicable to adapted procedure contracts that applies.
The modalities of presentation of a variant offer in formalized procedure:: prohibited in the silence of the regulation of the consultation
For public contracts awarded under a formalized procedure, candidates may not propose variants in the absence of a clarification of the rules of the consultation.
Article R 2151-8 of the Public Order Code states that " where the contract has been awarded by a contracting authority, variants are prohibited unless otherwise stated in the contract notice or in the invitation to confirm the interest "
In other words, in the absence of express authorization provided for in the consultation regulation, tenderers may not propose one or more variants instead of the basic tender.
In the event of authorization, the purchaser will be required to mention in the documents of the consultation, the minimum requirements of the specifications to be respected, as well as the modalities of their presentation.
Considering the following:
- It appears from the documents submitted to the judges of the merits that the commune of Sainte-Marie-aux-Chênes launched in 2013 a consultation for the award of a contract in adapted procedure for the construction of a sports hall. This contract was awarded to Groupe 1000 Lorraine. The company BGC, whose offer was ranked second, asked the Administrative Court of Strasbourg, on the one hand, to declare the cancellation of this contract, on the other hand, to condemn the municipality of Sainte-Marie -aux-Chênes to pay him the sum of 109 443 euros, in compensation for the prejudice resulting, according to her, from her irregular eviction. In a judgment of 9 November 2016, the Strasbourg Administrative Court dismissed the claim for annulment as inadmissible for being out of time, but sentenced the municipality of Sainte-Marie-aux-Chênes to pay BGC the sum of 87 020 euros. By a judgment of April 10, 2018, the Administrative Court of Appeal of Nancy, on appeal of the commune of Sainte-Marie-aux-Chênes, annulled this judgment and rejected the request presented by the company BGC before the administrative court of Strasbourg .
- In order to reject the claims of the BGC company, the Nancy Administrative Court of Appeal relied on the fact that it had not submitted a basic offer, but only variants, in breach of the resulting requirements. documents of the consultation. It inferred that because of this irregularity, the municipality was obliged to eliminate its offer and that, consequently, even though this offer had been noted and filed, the company had no chance of being awarded the market and could not therefore claim any compensation.
- In the first place, under Article 50 of the Public Procurement Code, applicable to the dispute: "(...) II For contracts awarded under an adapted procedure, where the contracting authority relies on several criteria to award the contract Candidates may propose variants unless the contracting authority has mentioned in the consultation documents that it objects to the exercise of this option.The contracting authority may mention in the consultation documents the minimum requirements as well as the In this case, only those variants meeting these minimum requirements are taken into consideration, but the minimum requirements and the modalities of their presentation may be succinctly stated (...) ". Although the public procurement code did not make the presentation of a variant subject to a basic offer in the context of a contract awarded by an adapted procedure, it was nevertheless open to the contracting authority to provide for such an obligation.
- The documents in the file submitted to the Court of First Instance show that paragraph 2.1 of the contested market regulation provides that the special technical clauses 'list details the services envisaged and (that) the technical variants are authorized'. According to point 5.1 of the same regulation, the price criterion must be graded "on the basic offer, then on the basic offer + options, then on the variant offer (...) thus allowing to establish three rankings of offers ". The same article indicates that the municipality reserves the right to "choose either the basic offer or the offer with one or more options, or the variant offer incorporating the option (s) without any dispute with the companies". In interpreting these stipulations as subordinating the presentation of variants to that of a basic offer, the Nancy Administrative Court of Appeal did not distort the terms of the market consultation regulation.
- Secondly, It is clear from the statements in the judgment under appeal that, in order to find that BGC did not submit a basic offer, the administrative court of appeal of Nancy was based on the technical brief established by the company itself as well as on the analysis report of the offers. On the basis of those documents, the content of which was reiterated in its judgment, the court did not vitiate it either with insufficient reasoning or error of law.
- Thirdly, the Administrative Court of Appeal of Nancy did not distort the documents of the file by noting that the technical memorandum proposed by the company BGC to the municipality included, under the heading "architectural proposal of the facades", three solutions bearing on different materials and colors of the cladding of the sports hall and presenting themselves as variants, without mention of the basic offer. In considering, in the light of all the evidence before it, that the company had only presented solutions that modified the specifications provided for in the basic solution described in the documents for the consultation, the court did not incorrectly qualified the facts that were submitted to him.
- It follows from all the foregoing that BGC 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 prevent the payment to the municipality of Sainte-Marie-aux-Chênes, which is not the losing party, the payment of an amount for costs incurred by BGC and not included in costs. On the other hand, in the circumstances of this case, BGC should be ordered to pay the sum of 3,000 euros to be paid to the commune of Sainte-Marie-aux-Chênes under the same provisions.
Article 1: The appeal of BGC is rejected.
Article 2: The company BGC will pay to the commune of Sainte-Marie-aux-Chênes a sum of 3,000 euros under article L. 761-1 code administrative justice.