What control of the weighting of the tender judgment criteria?
The public purchaser freely determines the weighting of the criteria for judging the offers. However, it cannot legally use a weighting, in particular for the price criterion, which clearly would not allow, having regard to the characteristics of the market, to select the economically most advantageous offer. The control of the judge is however limited to a limited control concerning the relevance of the weighting chosen by the public purchaser.
Lesson 1: Absence or obligation to weight the criteria according to whether it is an adapted or formalized procedure
As a reminder, article L 2152-7 of the public procurement code recalls that the contract is awarded to the most economically advantageous offer on the basis of one or more objective, precise criteria related to the subject of the contract or to its performance conditions. Article L 2152-8 of the public procurement code also recalls that the award criteria retained by the buyer must not have the effect of giving him discretionary freedom of choice and must guarantee the possibility of real competition . This is the reason why article R2152-11 of the public procurement code indicates that the award criteria as well as the methods of their implementation must be indicated in the consultation documents.
For adapted procedures, the indication of the methods of implementation consists at least in the prioritization of the criteria for judging tenders. In his conclusions on this judgment, the Public rapporteur Mireille Le Corre recalls indeed that within the framework of an adapted procedure, the public purchaser is not bound to proceed to a balancing of the criteria but can be satisfied with a simple prioritization (CE January 30, 2009, ANPE, n ° 290236). However, nothing prevents it from opting for a weighting of the tender judgment criteria for " objectify " his choice. In his judgment of June 10, 2020, Minister of the Armed Forces, req. n ° 431194, the Council of State confirms this solution in its recital n ° 4: " even though the relevant market was a market with an adapted procedure, subject to a simple obligation to prioritize criteria, the Ministry of the Armed Forces had decided to weight the criteria for choosing the market ".
In an adapted procedure, the public purchaser is therefore free to specify the methods of implementation of the criteria for choosing offers by proceeding either to their prioritization or to their weighting.
For formalized procedures, the indication of the methods of implementation consists at least in the weighting of the criteria for judging the offers.
Article R2152-11 of the public procurement code indicates that for contracts awarded according to a formalized procedure, the award criteria are subject to a weighting unless this proves impossible for objective reasons, in which case prioritization is permitted. The weighting can be expressed as a range with an appropriate maximum deviation.
In a formal procedure, the public purchaser is therefore required to specify the methods for implementing the criteria for choosing offers by weighing them, unless this is impossible for objective reasons.
Lesson 2: Judicial control over the weighting of criteria
According to the case law of the CJEU, the judge is competent to control the relevance of the weighting of the criteria for judging tenders with regard to the characteristics of the services targeted by the subject of the contract (CJEC, 4 December 2003, EVN and Wienstrom, C- 448/01, points 39 to 43).
In a judgment dated August 2, 2011, Parc Régional des Grands Causses, the Council of State had already had the opportunity to confirm this solution in these terms: Considering that it results from the instruction that the disputed market relates to seventy energy pre-diagnoses on public buildings, schools, town halls, municipal housing, village halls as well as on health establishments, campsites, lodges rural, holiday centers and hotels; that it provides for the completion of an energy assessment on each building as well as an assessment of energy saving deposits and an orientation towards simple interventions to be implemented or in-depth studies; that with regard to the technical nature of these services, the subject of the contract objectively justifies the use of the criterion, weighted up to 20%, relating to the candidates' references in order to take into account their experience; that taking this criterion into account had no discriminatory effect »(CE August 2, 2011, Grands Causses Regional Park, req.n ° 348254).
But above all, in a judgment of 7 May 2013, Department of Paris, the Council of State also had the opportunity to sanction the excessive weighting of the criterion of the price at 40 % having regard to the characteristics of the services targeted by the object of the in particularly clear terms: " 6. Considering that after having noted that the analysis services subject to the nomenclature, the invoicing of which could not be the subject of any form of re-application of the aforementioned provisions of the public health code, represented the major part of the total price of the contract at issue and that their price was thus binding on both the candidates and the contracting authority, the judge of interim measures of the Paris administrative court was able to deduce therefrom, without committing an error of law and by an assessment free of misrepresentation, in particular on the marginal and ancillary nature of the services likely to be invoiced, that the price criterion was not relevant for separating the offers and that its weighting of 40 % of the final score was manifestly excessive; that, if the ordinance further states that the cost of ancillary services such as collecting samples, administrative processing of files and training hours were not intended to be billed to Paris authorities, these reasons, whatever their merits, are overabundant and do not justify the requested cassation "(CE May 7, 2013, Department of Paris, req.n ° 364833).
In its judgment of June 10, 2020, the State Council laid down for the first time the rule according to which the public purchaser freely determines the weighting of the criteria for judging tenders while specifying that this weighting is subject to a limited control of part of the judge to avoid on the one hand, that the weighting selected leads to a criterion being neutralized because of the weighting assigned to it; on the other hand, that the weight given to the price criterion does not have the effect of ruling out the economically most advantageous offer: "The contracting authority freely determines the weighting of the criteria for the selection of tenders. However, it cannot legally use a weighting, in particular for the price or cost criterion, which clearly would not allow, having regard to market characteristics, to select the economically most advantageous offer".
CE June 10, 2020, Minister of the Armed Forces, req. n ° 431194
Considering the following:
- It appears from the documents in the file submitted to the trial judges that the Minister of Defense has launched the award of a contract to purchase orders, according to the appropriate procedure, with a view to carrying out, in particular, training services on “public procurement” “, Divided into seven geographic lots. The offers of the consortium made up of the companies Erics Associés and Altaris were rejected. By a judgment of April 30, 2017, the administrative court of Rennes rejected the requests of these companies for the condemnation of the State to pay them the sum of 218,400 euros in compensation for the damage caused by their eviction from this market. The Minister for the Armed Forces appealed on points of law against the judgment of March 29, 2019 by which the Nantes Administrative Court of Appeal, on appeal from the companies Erics Associés and Altaris, quashed this judgment, ordered the State to pay them the sum of 4,800 euros and dismissed the remainder of their appeal.
- On the one hand, when a candidate for the award of a public contract requests compensation for the damage arising from his irregular eviction from this contract and there is a direct causal link between the fault resulting from the irregularity and the damages invoked by the applicant because of his eviction, it is up to the judge to verify whether or not the candidate was without any chance of winning the contract. In the absence of any chance, he is not entitled to any compensation. Otherwise, he is entitled in principle to reimbursement of the costs he incurred in presenting his offer. It should also be investigated whether the irregularly ousted candidate had a serious chance of winning the contract concluded with another candidate. If this is the case, he is entitled to be compensated for his loss of earnings, which necessarily includes, since they have been included in his expenses, the costs of presentation of the offer, which therefore do not have to make l unless otherwise stipulated in the contract, subject to specific compensation. On the other hand, the candidate cannot claim compensation for this shortfall if the public body renounces to conclude the contract for a reason of general interest.
On the other hand, I of article 53 of the public procurement code, applicable on the date of award of the disputed contract, provided that: “To award the contract to the candidate who presented the most economically advantageous tender, the contracting authority is based: / 1 ° Or on a plurality of non-discriminatory criteria related to the subject of the contract, in particular quality, price, technical value, aesthetic and functional character, performance in terms of protection of the environment, performance in terms of development of direct supplies of agricultural products, performance in terms of professional integration of people in difficulty, overall cost of use, costs throughout the life cycle, profitability, innovative character, after-sales service and technical assistance, delivery date, delivery or execution time, security of supply, interoperability and operational characteristics tional. Other criteria may be taken into account if they are justified by the subject of the contract. 2 ° Or, taking into account the object of the contract, on a single criterion, which is that of the price “. It follows from these provisions that it is up to the contracting authority to determine the most economically advantageous tender on the basis of criteria enabling the overall performance of the tenders to be assessed in relation to its needs. These criteria must be linked to the subject of the contract or to its performance conditions, be defined with sufficient precision not to leave an indefinite margin of choice and not to create a breach of equality between the candidates. The contracting authority freely determines the weighting of the criteria for the selection of tenders. However, it cannot legally use a weighting, in particular for the price or cost criterion, which clearly would not allow, having regard to market characteristics, to select the economically most advantageous offer.
- It appears from the documents in the file submitted to the trial judges that even though the market in question was a market with an adapted procedure, subject to a simple obligation of prioritization of criteria, the Ministry of the Armed Forces had decided to weight the criteria of market choice. The consultation regulations stipulated that the offers would be assessed in the light of a technical value criterion weighted at 90 % and a price criterion weighted at 10 %. It follows from what has been said in point 3 above that, in considering that such a weighting was irregular on the ground that it was “particularly disproportionate”, that the Minister of Defense did not establish the need for it and that it led to “manifestly neutralizing” the price criterion, the Nantes administrative court of appeal committed an error of law.
- It follows from the above, without there being any need to consider the other grounds of appeal, that the Minister for the Armed Forces is entitled to request the setting aside of the judgment under appeal.
- The provisions of Article L. 761-1 of the Code of Administrative Justice prevent an amount from being paid in this respect at the expense of the State which is not, in the present proceedings, the losing party .
Article 1: The judgment of March 29, 2019 of the Nantes Administrative Court of Appeal is set aside.
Article 2: The case is referred to the Administrative Court of Appeal of Nantes.
Article 3: The conclusions of the companies Erics Associés and Ataris presented under the provisions of article L. 761-1 of the code of administrative justice are rejected.
Article 4: This decision will be notified to the Minister of the Armed Forces and to the companies Erics Associés and Altaris.