Pre-contractual referral: how can an applicant be wronged by the irregular admission of an application at any stage of the procedure?
A recent order of the judge of the pre-contractual summary of the Administrative Court of Grenoble of November 5th, 2010 specifies the conditions of access to the public order of the newly created companies and gives an unprecedented illustration of the jurisprudence "SMIRGEOMES" by admitting that a candidate ousted can be harmed by the irregular admission of a candidature at all stages of the procedure.
A new illustration of the "Smirgeomes" case law: How to claim an injury at any stage of the procedure.
The Office of the Pre-contractual Pre-Trial Judge as evidenced by the SMIRGEOMES judgment is characterized by a reduction of the purely objective control previously performed on the alleged defects (EC 3 October 2008, SMIRGEOMES, Req. No. 305420). The Council of State now requires that the irregularity is likely to have harmed or threatened the company, albeit indirectly by benefiting a competing company. The sanction is no longer mechanical and the cancellation of the procedure is no longer automatic. It is now a question of no longer allowing an applicant to invoke a breach that is insusceptible to prejudice him, taking into account the scope of the breach, but also the moment when it was committed. In other words, any irregularity can no longer be raised at any point in the proceedings. Thus, an unsuccessful competitor whose candidacy has been admitted is no longer eligible to criticize the conditions for the admission of candidatures (CE 21 May 2010, Commune de Bordeaux, Req. No. 334845). In the opposite direction, the company whose application has been rejected for any reason whatsoever is not likely to be injured by a breach which is at a later stage of the procedure. In the same way, an ousted competitor is not likely to have been harmed by the irregular admission of an offer if it is not finally accepted (EC 24 October 2008, Syndicat intercommunal d'eau et d sanitation of Mayotte, Req. No. 300034).
The interest of the commented prescription is at an intermediate stage. One where one can admit that a company is likely to be harmed by the irregular admission of a candidacy.
Recall that in the context of its full-fledged review, the pre-contractual judge is indeed competent to verify the reasons for the exclusion of a candidate with regard to the requirements of the specifications (EC 10 November 2010, Minister of Defense, Ref. No. 341133, EC April 28, 2006, SABTP, Req. No. 286443). But it seems you forgot he is also competent to verify the reasons for admission of a candidate, which opens up very good prospects for the candidates ousted against their competitors where the winner of the market. However, once the irregularity is found, it is still necessary for the means to be operative that the applicant company is able to demonstrate that this irregular admission is likely to have harmed it even at the stage of judging the tenders (SG 3 October 2008, SMIRGEOMES, Req. No. 305420).
With regard to the selection phase for applications, whether it is a public procurement procedure or a public service delegation, the pre-contractual judge has two levels of control. First, it verifies that the conditions laid down by the Public Procurement Code have been respected and that their purpose or effect is not to undermine the call for competition. Secondly, it will ensure that the criteria for the admissibility of applications that have been issued by the contracting authority have been respected. In these conclusions on the judgment of 14 December 2009, Commune de la Roche sur Yon, n ° 325830, the public rapporteur Bertrand DACOSTA had issued an hypothesis not yet settled by the case law and which he thought would not fail to to be, that of the admission of an irregular candidacy which would certainly vitiate the procedure if it is the candidate in question who sees his successful offer ".
It's done now. In his order dated November 5, 2010, the Pre-contractual Pre-Trial Judge of the Administrative Court of Grenoble has indeed officially devote this assumption by recalling that the injury can result from the irregular admission of an application including the judgment stage offers : " Considering [...] that in examining an offer without establishing the admissibility of the corresponding application, the Department of Isère has breached its obligation to call for competition; that the elements of the file do not allow to exclude that this failure was likely to injure the applicant company ranked only fourth out of twelve, since the outcome of the procedure, in case the application of the grouping retained n ' would not have been declared admissible, can not be determined in view of the possible impact of the elimination of the first ranked candidate on the rating of the other candidates "(TA Grenoble, Ord 5 November 2010, HC Provence Rhône Valley, n ° 1,004,487).
The "irregular" admission of an application is now liable to distort the competition and this whatever the stage of the procedure if the candidate is declared a winner of the contract. In fact, the fact of noting an offer which should never have been examined by the contracting authority if its application had previously to be rejected is liable to distort competition and equal treatment between candidates. . In the present case, the applicant company did not criticize the conditions for the admission of candidatures in which case, indeed, the "Smirgeomes" case law could have applied fully, but asked the judge of the pre-contractual summary to find the non-respect of these conditions by the contracting authority for the benefit of the successful tenderer, which is not the same. For all those reasons, the President of the Court considered that the means developed by the applicant company were perfectly admissible and effective.
Access to the public order of newly created companies: pay attention to the drafting of the specifications!
The Council of State has already had the opportunity to recall that in the presence of an application inadmissible because incomplete, the contracting authority has related competence and must remove it (EC 13 November 2002, Municipality of Le Mans, Req.n ° 245354). The contracting authority is indeed bound by the provisions of the regulation of the consultation which it has adopted. One of the consequences of this rule is that it has the effect of tainting the selection of an application that does not meet the requirements of the consultation rules or does not provide the documents required by the regulation. That obligation derives from the principle of equality between candidates which gives it the widest scope and which it is for the pre-contractual judge to ensure respect. In a judgment of May 10, 2006, Sté BRONZO, the Council of State recalled this obligation including when it is about a newly created company unless the documents of the consultation authorize the production of what it calls alternative means of proof of technical, financial and professional capabilities, that is by any other means. In his conclusions on this case, the Public Reporter Didier CASAS had already had the opportunity to clarify the use of this case law: " The consultation regulation required candidates to produce overall turnover in the last three years and references for similar services in the course of execution or execution, dating from less than one year. three years. The company QUEYRAS ENVIRONNEMENT did not produce any such product: in January 2005, it had only a few months of seniority at the date of the call for tenders. (....) We do not see Under these circumstances, it would be forbidden to allow new companies with real banking experience to be awarded the contract. But it is still necessary, and this point is important, that in such a case, the documents of the consultation expressly provide it by opening the possibility to the companies which, because of their date of creation, could not provide the requested elements, d build their capacities by other means. If you accept that these other evidences can be made even though the public purchaser has not even mentioned them, you would accept as a matter of principle that the requirement set out in the consultation documents is not binding on candidates and, the public purchaser at the time of selection, only if the candidate is able to provide them. Such a conception would, in our opinion, go too far. It would, in fact, completely abrogate your REVILLON case law. If you follow us in this analysis, it will be enough for you to note that the urban community had not considered, alternative modes of proof of the technical and financial capacities of the new companies. It was therefore impossible for him to take into account the documents produced to that effect by QUEYRAS ENVIRONNEMENT. The award procedure is thus irregular ".
Two hypotheses can therefore be envisaged:
Hypothesis n ° 1:
the regulation of the consultation does not authorize "alternative modes of proof" of technical, financial and professional capacities. In this case, the contracting authority is obliged to reject all applications that do not contain the documents listed in its consultation rules, even if it is a recently created company. The only possibility for the latter to participate in the procedure will be to apply either in a group or possibly with a subcontractor.
In the end, it turns out that the policy to promote access of newly created companies to the public order depends largely on the good will of the contracting authorities since in the end everything is a matter of drafting ......... ...
Reference: TA Grenoble Ord. November 5, 2010, Company HC Provence Rhône Valley, No. 1004487