Pre-contractual referral and sub-criteria for judging tenders: Should the bid evaluation sub-criteria be weighted?
Rule n ° 1:
To ensure compliance with the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures, the appropriate information of candidates on the criteria for awarding a public contract is necessary, as soon as possible. the initiation of the contract award procedure, in the public call for tender or the terms of reference made available to the candidates.
Two hypotheses must be considered:
- Hypothesis 1: the contracting authority does not allow candidates to download the specifications immediately. In other words, the specifications are not, in the words of the Council of State, kept at the disposal of the candidates. In this case, the criteria for judging the bids must imperatively be indicated in the advertising notice.
- Hypothesis 2: the contracting authority allows candidates to download the specifications immediately. In this case, the criteria for judging tenders may be indicated either in the advertisement notice or in the specifications provided to candidates.
Rule n ° 2:
The contracting authority is obliged to indicate in the consultation documents the criteria for awarding the contract and their conditions of implementation. In practice, the contracting authority is required to weight the criteria for judging the tenders and to indicate the different elements that will be taken into consideration to score the criterion (the sub-criteria). On the other hand, it is not obliged to inform the candidates of the method of rating the offers.
Rule n ° 3:
If the contracting authority decides, in order to implement these selection criteria for the tenders, to make use of sub-criteria, it must inform the candidates of their implementation conditions, provided that these sub-criteria are capable of influence the candidates' submission of tenders and their selection and must therefore themselves be regarded as selection criteria.