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 consultation rules
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 indicates 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 formal procedure launched by a contracting entity: possible in the silence of the consultation regulations
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 formal procedure:: prohibited in the silence of the consultation rules
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 in the file submitted to the trial judges that the municipality of Sainte-Marie-aux-Chênes launched a consultation in 2013 with a view to the award of a contract under the adapted procedure relating to the construction of a sports hall. This contract was awarded to the company Groupe 1000 Lorraine. The company BGC, whose offer was ranked second, asked the Strasbourg administrative court, on the one hand, to order the cancellation of this contract, on the other hand, to condemn the municipality of Sainte-Marie -aux-Chênes to pay her the sum of 109,443 euros, in compensation for the damage resulting, according to her, from her illegal eviction. By a judgment of November 9, 2016, the Strasbourg Administrative Court rejected the claims for annulment as inadmissible due to their belatedness, but condemned the municipality of Sainte-Marie-aux-Chênes to pay the company BGC the sum of 87,020 euros. By a judgment of April 10, 2018, the Nancy Administrative Court of Appeal, on appeal from the municipality of Sainte-Marie-aux-Chênes, quashed this judgment and rejected the request made by the company BGC before the Strasbourg Administrative Court .
- To reject the compensation claims of the company BGC, the Nancy Administrative Court of Appeal based on the fact that the latter had not presented a basic offer, but only variants, in disregard of the requirements resulting consultation documents. It inferred from this that due to this irregularity, the municipality was required to eliminate its offer and that, consequently, even when this offer had been noted and classified, the company was without any chance of being awarded the market and could therefore not claim any compensation.
- Firstly, under the terms of article 50 of the public procurement code, applicable to the dispute: ”(…) II. For contracts awarded according to an adapted procedure, when the contracting authority is based on several criteria to award the contract, candidates may propose variants unless the contracting authority has mentioned in the documents of the consultation that it opposes the exercise of this faculty. The contracting authority may mention in the consultation documents the minimum requirements and the procedures for their presentation. In this case, only the variants meeting these minimum requirements are taken into account. However, the mention of the minimum requirements and the methods of their presentation may be succinct. (…) “. If the public procurement code did not make the presentation of a variant subject to that of a basic offer in the context of a contract awarded according to an appropriate procedure, it was however open to the contracting authority to provide for such an obligation.
- It appears from the documents in the file submitted to the trial judges that point 2.1 of the regulation of the consultation of the disputed market provides that the book of specific technical clauses "details the services envisaged and (that) the technical variants are authorized". Under point 5.1 of the same regulations, the price criterion must be rated "on the basic offer, then on the basic offer + options, then on the varying offer (…) thus allowing establish three offer rankings. " 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 varying offer integrating the option or options without any dispute from the companies". By interpreting these stipulations as subjecting 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 regulations.
- Secondly, it appears from the statements in the judgment under appeal that, in order to find that the company BGC had not presented a basic offer, the Nancy Administrative Court of Appeal was based on the technical brief drawn up by the company itself as well as on the offer analysis report. On the basis of these documents, the content of which it recalled in its judgment, the court did not vitiate it either for insufficient reasoning or for error of law.
- Third, the Nancy Administrative Court of Appeal did not misrepresent the documents in the file, noting that the technical brief proposed by the company BGC to the municipality included, under the heading "architectural proposal for facades", three solutions on different materials and colors of the sports hall cladding and presenting themselves as variants, without mentioning the basic offer. By considering, in light of all the elements at its disposal, that the company had thus only presented solutions modifying the specifications provided for in the basic solution described in the documents of the consultation, the court did not inaccurately qualified the facts before it.
- It follows from all of the above that the company BGC is not justified in requesting the annulment of the judgment under appeal.
- The provisions of Article L. 761-1 of the Code of Administrative Justice prevent payment from the municipality of Sainte-Marie-aux-Chênes, which is not the losing party. '' an amount in respect of the costs incurred by the company BGC and not included in the costs. On the other hand, in the circumstances of the case, it is necessary to charge BGC with a sum of 3,000 euros to be paid to the municipality of Sainte-Marie-aux-Chênes under the same provisions.
Article 1: The appeal of BGC is rejected.
Article 2: The company BGC will pay the municipality of Sainte-Marie-aux-Chênes a sum of 3,000 euros under article L. 761-1 of the Code of Administrative Justice.