Pre-contractual referral: pre-contractual judge's review of the competence of a private candidate to perform the services of a public contract
CE 4 May 2016, ADILE of Vendée req.no. 396590
In a judgment of 4 May 2016, ADILE of Vendée, the Council of State recalls that the methods of control of the pre-contractual judge referred to the legal capacity of a legal person private law to perform the services of a public contract.
Rule 1: Pre-contractual judge's review of the legal capacity of a legal person governed by private law to perform the services of a public contract
It does not belong to the judge of the pre-contractual injunction, when a legal entity of private law is a candidate for the attribution of a contract of public order, to verify that the execution of this contract enters the field of its object social. However, this is different in the case where a law or regulation has precisely defined its social purpose and its missions. In this case, the Council of State carries out this control and considers that it results from articles L. 366-1 and R. 366-5 of the code of the construction and the house as well as articles L. 232 -1 and L. 232-2 of the energy code that the departmental associations for information on housing (ADILE) are competent to offer consulting services to individuals in terms of energy performance and renovation of their homes and can therefore apply for a public contract for such services.
Rule n ° 2: reminder of the control procedures and qualification of abnormally low tender
Whatever the procurement procedure implemented, it is incumbent on a public purchaser who finds that an offer seems abnormally low to ask the author for any clarifications and justifications that might explain the price offered. If the clarifications and justifications provided are not sufficient to ensure that the proposed price is not regarded as clearly undervalued and thus likely to compromise the proper performance of the contract, it is then up to the applicant to reject the offer by decision. justified, except to undermine the equality between the candidates for the award of the contract.
In the present case, the Conseil d'Etat considers first of all that the public purchaser asked the candidate suspected of having proposed an abnormally basic tender so that he could provide all the useful details concerning the price of the services proposed so that It can not be blamed for failing to comply with the obligation under Article 55 of the Code des Marches Publics to request in writing the necessary clarifications in such a case.
Next, the Conseil d'Etat considers that a difference in price of 52 % can not establish, on its own, that the offer is abnormally low, particularly in the light of the information provided by the offeror. At this rate, we will arrive soon in case a difference in price of 100 % will no longer translate an abnormally low supply if the recipient is relatively skilful and clever in its justifications given: the jurisprudence of the Council of State becomes somewhat laughable and it would be better for the High Jurisdiction to consider that this means is now inoperative except to ridicule even more.
Rule 3: Reminder of the scope of the pre-contractual judge's review of the candidates' offers
The Conseil d'Etat also recalls the rule of principle that it is not for the pre-contractual judge to decide on the assessment of the value of an offer or the respective merits of the various offers. On the other hand, it belongs to it when it is seized of a means in this sense, to verify that the contracting authority did not distort the content of an offer by disregarding it or by obviously altering the terms and thus the selection of the successful tenderer in breach of the fundamental principle of equal treatment of candidates.
Rule 4: Reminder on the motivation of rejection letters
Under Article 83 of the Public Procurement Code then in force, the contracting authority must notify any unsuccessful candidate of the reasons for the rejection of his application or offer within fifteen days of receipt of a written application to that candidate. the characteristics and relative advantages of the successful tender and the name of the successful tenderer. In this case, the Conseil d'Etat considers that in the case of a suitable procedure, the buyer has complied with these provisions by indicating in the rejection letter the name of the successful tenderer, the total price offered by him as well as the scores obtained by the latter against the criteria set by the consultation regulation.
Board of state
N ° 396590
7th - 2nd rooms together
Mrs Charline Nicolas, rapporteur
Mr Olivier Henrard, public rapporteur
SCP LYON-CAEN, THIRIEZ; CORLAY, lawyer (s)
Reading of Wednesday, May 4, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The association Elise applied to the judge of the administrative court of Nantes for an application tending, on the basis of Article L. 551-1 code administrative justice, on the one hand, the cancellation of the procedure for awarding the energy consulting services contract to individuals contracted by the community of communes of the Pays des Herbiers, as well as decisions rejecting its offer and awarding this contract to the Departmental Housing Information Agency and the (ADILE) of Vendée, and, secondly, that it is enjoined to the community of communes of the country of Herbiers to communicate to him the analysis report of the offers relative to the litigious market.
By an order no. 1510472 of 15 January 2016, the judge of the Nantes Administrative Court dismissed the award procedure of the disputed contract as from the examination of the tenders.
By a summary appeal, a supplementary memorial and a reply, registered on 29 January, 12 February and 10 March 2016 at the litigation secretariat of the Conseil d'Etat, ADILE de Vendée asks the Conseil d'Etat to:
- cancel this order;
- to charge the association Elise the sum of 6,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of construction and housing;
- the energy code;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs. Sophie Roussel, master of petitions,
- the conclusions of Olivier Henrard, public rapporteur;
The word having been given, before and after the conclusions, to Me Corlay, lawyer of the Departmental Agency for information on housing and energy (ADILE) of Vendée, and to the SCP Lyon-Caen, Thiriez, lawyer of the Elise association;
Considering the note under deliberation, registered on April 27, 2016, presented by the association Elise;
1. Considering that according to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, can be seized in case of breach of the obligations of publicity and competitive bidding to which the contracting authorities are subject to administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service (...) ";
2. Considering that it appears from the documents of the file submitted to the Judge of the Administrative Court of Nantes that the community of communes of the country des Herbiers engaged, by a notice of public call for competition published on October 22, 2015, a adapted procedure for awarding a contract with purchase orders for consulting services to individuals in the field of energy renovation of dwellings; that these services consist in providing "permanent advice and energy evaluation to Herbiers" and to offer residents a "technical instruction of aid files", "energy audits on plan" and "energy diagnostics on site" ; that the offer of the association "Departmental Agency for information on housing and energy (ADILE) of Vendée" was retained; that, by an order of January 15, 2016, against which the ADILE de Vendée appeals cassation, the judge of the interim relief, at the request of association Elise, canceled this procedure as from the examination of the offers;
3. Whereas, in order to set aside the contested proceedings, the judge hearing the application for interim measures upheld the plea that he did not enter into the statutory mission of a departmental housing information association, as it is defined by the provisions of Articles L. 366-1 and R. 366-5 of the French Construction and Housing Code, to provide specialized auditing and advisory services to individuals for the improvement of energy performance their habitat and the processing of applications for financial assistance to undertake work for this purpose;
4. Considering that it does not belong to the judge of the pre-contractual summary, when a legal entity of private law is a candidate for the attribution of a contract of public order, to verify that the execution of this contract enters in the field of its social object; however, it is different in the case where a law or regulation has precisely defined its object and its missions;
5. Considering that under the terms of Article L. 366-1 of the Construction and Housing Code: "At the joint initiative of one or more departments, a city and the State, an association of information on housing can be created (...). This association of information on housing has the mission to inform users free of charge of their rights and obligations, on housing solutions that are adapted to them, including the conditions of access to rental housing and the legal and financial aspects of their home ownership project, this excluding any administrative, litigation or commercial action (...) "; that under the appendix to article R. 366-5 of the same code: "The purpose of the association is to inform the public about any question concerning housing and housing. (...) The association also aims to ensure for the benefit of its members of the actions of advice and legal or economic expertise and to undertake any studies, research or prospective steps related to its field of activity. (...) "; that under the terms of Article L. 232-1 of the Energy Code: "The public service of energy performance of housing provides support for consumers wishing to reduce their energy consumption. It assists homeowners and tenants in carrying out work to improve the energy performance of their housing and provides them with information and personalized advice "; Finally, pursuant to Article L. 232-2 of the same code, the departmental housing information agencies, including local authorities and their groups, participate in the management of this public service;
6. Considering that it follows from the aforementioned provisions of the Construction and Housing Code and the Energy Code that the departmental housing information associations are competent to offer advice to individuals in matters relating to housing. performance and energy renovation of their homes; that it follows that in judging that the execution of the contract in dispute, which related to such benefits, did not fall within the competence of the ADILE of Vendée, the judge of the summary of the administrative court of Nantes tainted its order with an error of law; that thus, without it being necessary to consider the other means of the appeal, its order must be canceled;
7. Considering that, in the circumstances of the case, it is necessary, pursuant to the first paragraph of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings committed;
8. Considering, in the first place, that as stated in paragraph 6, the performance of the disputed contract falls within the area of competence of ADILE de Vendée, as defined by the abovementioned provisions of the Code construction and housing and the energy code;
9. Considering, secondly, that, irrespective of the award procedure used, it is incumbent upon the contracting authority, who finds that an offer appears abnormally low, to request from the author all the details and justifications which might explain the proposed price; whereas if the clarifications and justifications provided are not sufficient for the proposed price not to be regarded as manifestly undervalued and thus of such a nature as to jeopardize the proper performance of the contract, it is for the contracting authority to reject the offer, except to affect the equality of candidates for the award of a public contract;
10. Considering, on the one hand, that it follows from the investigation that the community of municipalities has solicited ADILE de Vendée to provide details concerning the proposed price of the services; Consequently, the plea alleging that the contracting authority has failed to fulfill the obligation under Article 55 of the Code des Marches Publics to request in writing the particulars which it considers useful if an offer appears abnormally low, is made
11. Considering, on the other hand, that it follows from the investigation that the price offered by the ADILE of Vendée was 52 % lower than that of the association Elise; whereas, however, this difference in price alone can not establish that the offer of ADILE, which can not be assimilated to a legal person governed by public law, was abnormally low; that furthermore, it follows from the investigation, in particular from the information communicated by ADILE in its letter of 23 November 2015 to the contracting authority, that the latter did not commit a manifest error of assessment in Considering that the supply of ADILE was not abnormally low;
12. Considering, thirdly, that under Article 83 of the Code des Marches Publics: "The contracting authority shall notify any unsuccessful candidate who has not been the recipient of the notification provided for in point 1 of Article 1 of the Article 80 the reasons for the rejection of his candidacy or offer within fifteen days of receipt of a written request for that purpose. If the candidate has seen his tender rejected even though he was not in accordance with Article 35 inappropriate, irregular or unacceptable, the contracting authority must also inform him of the characteristics and relative advantages of the tender. successful tender and the name of the successful tenderer (s) of the contract or framework agreement "; that it results from the instruction that, in two letters of December 10 and 23, 2015, the community of communes of the country of Herbiers indicated to the applicant company the name of the recipient, the total price proposed by this one as well as that the scores obtained by the latter with regard to the criteria set by the consultation regulation; Consequently, the plea alleging that the contracting authority has failed to comply with the provisions of Article 83 of the Code des Marches Publics must be rejected.
13. Considering, finally, that it does not belong to the pre-contractual judge, who must only pronounce on the respect, by the contracting authority, of the obligations of advertising and of putting in competition to which is subjected the handover of a contract, to express an opinion on the assessment of the value of an offer or the respective merits of the various offers; whereas it is for it, however, when it is seized with a means to that effect, to verify that the contracting authority has not distorted the content of an offer by disregarding or clearly altering the terms and conditions; proceeded to the selection of the successful tenderer in breach of the fundamental principle of equal treatment of candidates; that if the association Elise maintains that the contracting authority would have made errors in the evaluation of the supply of the ADILE with regard to the criterion of the price, it does not result from the instruction that the contracting authority would have distorted the contents this offer;
14. Considering that it follows from the foregoing that the association Elise is unfounded to request the cancellation of the proceedings initiated by the community of municipalities of the country Herbarium for the award of the contract in dispute; that its conclusions presented under Article L. 761-1 of the Code of Administrative Justice, both before the Judge of the Administrative Court of Nantes and before the Council of State, can, therefore, be rejected ; whereas, on the other hand, in the circumstances of this case, the Elise Association should be charged, on the basis of those provisions, with the sum of EUR 5 000 to be paid to ADILE Vendée under the whole procedure and the sum of 2 000 euros to be paid to the community of communes of the country of Herbiers under the first instance;
Article 1: The order of the judge of the summary of the administrative court of Nantes of January 15, 2016 is canceled.
Article 2: The claim presented by the association Elise before the judge of the administrative court of Nantes is dismissed.
Article 3: The association Elise will pay the sum of 5,000 euros ADILE Vendée and the sum of 2,000 euros to the community of municipalities of the country Herbiers under Article L. 761-1 code administrative justice. His conclusions presented on the same basis before the Council of State are rejected.
Article 4: This decision will be notified to the Departmental Housing and Energy Information Agency of Vendée, to the Elise association.
In the case of a local authority, CE, Assembly, 20 December 2014, Société Armor SNC, No. 355563, p. 433 (to the Tables on other points); as regards the competence of a public person CE, 18 September 2015, Management Association of the National Conservatory of Arts and Crafts of the Pays de la Loire, No. 390041, to mention at Tables.,, [RJ2] Ab. jur on this point, EC, 16 October 2000, Mediterranean Water Services Exploitation Company, No. 212054, p. 422 (to Tables on other points).