Can we accept an offer that does not meet the formalism of the consultation regulation in a public service delegation?
In law of public service delegations a consultation regulation is not obligatory, nor even mentioned by the texts, although the delegating authority is held there if it decides to give in this form the information necessary for advertising and in competition. The Conseil d'Etat considers, on the one hand, that the collectivity can modify its requirements by bringing into the process of negotiation adaptations of a limited scope, objectively necessary to the service and presenting between the companies remaining in competition no discriminatory character (EC July 29, 1998, Dalloz Sirey Publishing House, June 21, 2000, Syndicat intercommunal de la Côte d'Amour and the Guérande peninsula); on the other hand, that the public authority may negotiate with a candidate whose offer is not accompanied by all the documents or information required " if this insufficiency, on the one hand, does not prevent the conformity of the tender from the requirements of the specifications and is not likely to have an influence on the comparison between the offers and the choice of candidates who will be admitted to the negotiation (December 15, 2006, Corsica Ferries Company). The existence of a negotiation which is not the common law of the markets explains this difference. It must lead the disputed judge to question the validity of an offer and can not confine himself to the observation of the irregularity of the offer to question the importance and the impact of non-compliance.
In a judgment dated January 5, 2011, Société des Voyages Dupas Lébéda, the Council of State recalls this solution and the difference that exists with the law of public contracts:
" Considering that when the regulation of the consultation or the specifications requires the production of documents or information in support of the tenders, the authority authorized to sign the convention of delegation of public service can not, after opinion of the commission mentioned Article L. 1411-5 of the General Code of Territorial Collectivities, to enter into negotiations with an economic operator whose offer is not accompanied by all these documents or information unless this insufficiency, on the one hand, the conformity of the tender with the requirements of the specifications and is not likely to have any influence on the comparison between the tenders and the choice of candidates who will be admitted. to participate in the negotiation; that, as a result, the travel company Dupas Lebeda AND OTHERS are justified in maintaining that in the belief that because of the inadequacies of their offer with regard to the requirements of the consultation file, the Department of the North could not regularly award them the contract of public service delegation envisaged, without ascertaining whether the irregularities impugned in their tender were such as to prevent them from assessing its conformity with the specifications or from making a useful comparison with the other tenders submitted, the judge hearing the application for interim relief from the administrative court de Lille has made an error of law; that the order under appeal must therefore, and without it being necessary to examine the other grounds of appeal, be annulled "
For the stop: CE 12th January 2011, Department of Doubs, n ° 343324