Can we admit an offer that does not meet the formalism of the regulation of consultation in a public contract?
In public procurement law, the Council of State holds consistently that the regulation of the consultation of a contract is mandatory in all its mentions. The contracting authority can not therefore award the contract to a candidate who does not comply with one of the requirements imposed by the Regulation (EC 23 November 2005, Axialogic, EC, 10 February 1997, Révillon Company). Exceptions to this principle, apart from the assumption of unlawful prescriptions, are non-compliance with requirements that are not relevant for the assessment of the offer, notably the lack of provision of public information (EC 22 December 2008, City of Marseille) and formal or minor irregularities such as the presentation of an uncertified certificate, which it is up to the candidate to establish himself (EC, November 6, 1998, Assistance Publique - Marseille Hospitals).
In a judgment dated January 12, 2011, Department of Doubs, the Council of State considers that a candidate who is satisfied to produce a signed estimate obtained from a garage and bearing the mention "read and approved" while the specifications required candidates to indicate the equipment they would have to perform the contract, did not meet the requirements of the specifications. Accordingly, its offer must be considered as incomplete and rejected: "Considering, firstly, that under Article 53-III of the Code des Marches Publics relating to the general rules for procurement: Inappropriate, irregular or unacceptable offers are eliminated. The other offers are sorted in descending order. The highest ranked tender is selected; that is particularly irregular an offer which, failing to contain all the pieces or information required by the documents of the consultation, is incomplete; that in this case, the consultation rules required the applicants to fill in Annex 1 to the special technical clauses (CCTP) relating in particular to the characteristics of the salting and snow clearing vehicle that they intended to make available. to perform the market services and provided that the technical merit of the bids would be assessed in the light of this information; that the judge of the Besançon administrative court could deduce from a sovereign appreciation without denaturation that if the candidates were not required to justify that they already had this material on the date of submission of their offer, he it was their duty, however, on the same date, to justify that they would dispose of them for the execution of the contract; The judge hearing the application for interim relief did not misrepresent the documents in the file by noting that at the date of submission of his tender, the company Roy, who had provided only a signed quote obtained from a garage and with the words read and approved, did not justify that it had taken sufficient steps to effectively dispose of a salting and snow removal vehicle for the commencement of performance of the contract and concluding from these findings that the company Roy had not justified, when submitting its bid, that it would have such a vehicle for the performance of the contract; that finally, retaining that the DEPARTMENT OF DOUBS was held, failing for this company to have provided such justification, to eliminate its offer as incomplete and therefore irregular, the judge of the summary of the administrative court of Besançon has not no mistake of law "