Incomplete references make the application irregular
Conseil d'Etat, October 21, 2016, Philippe Vediaud Advertising Company, n ° 392355
The municipality of Bègles had concluded a contract for the provision of display modules for municipal information and advertising. An unsuccessful candidate appealed to the Administrative Court, which canceled the contract. The Administrative Court of Appeal quashed the judgment. The Council of State censures in turn the judgment of the Court, on the question of the regularity of the candidatures.
Rule n ° 1: Some erroneous references are not likely to distort the assessment of the professional qualification
The applicant company had raised two pleas concerning applications. By the first, she argued that the successful company would have obtained the market only by producing false references. In this respect, the Administrative Court of Appeal notes, on the one hand, that the choice of the tender commission was not made according to the references of the candidates but by taking into account their offers and, on the other hand, that the erroneous references produced by the successful candidate, of which there were six, were only some of the many, undisputed references relied on by the winning company. The Council of State validates this reasoning, considering that some inaccurate references are not likely to distort the assessment of the professional qualification of the candidate, since it presents a quantity of uncontested references much more important.
Rule n ° 2: The absence of dates and amounts in the references while the consultation rules required it makes the candidacy irregular
The applicant had also argued that the application of the company awarded the contract was irregular, since it had produced incomplete references, which did not mention the date or the amount of the contracts which it relied on in support of its application, while that the market regulation required it. It will be recalled that the decree of 28 August 2006 setting out the list of information and documents which may be requested of candidates for contracts awarded by the contracting authorities, applicable in this case and repealed since 1st April 2016, allowed contracting authorities to request, at the nomination stage, the submission of a list of the main supplies or services carried out during the last three years, indicating the amount, the date and the public or private recipient. The decree of March 29, 2016, applicable today, takes this possibility. The Administrative Court of Appeal did not examine this plea.
The Council of State annuls its judgment for this reason, considering that it is insufficiently motivated on this point and refers the case before the judge of the bottom.
Advice to contracting authorities and companies:
The contracting authorities may ask the candidates to provide their references, indicating the amount, the date and the addressee: in this case, applications which submit references should be rejected without specifying them, if necessary after having asked the candidates to complete them. However, it is not an obligation and if these indications are not of interest to the contracting authority, it may be preferable not to require them in the consultation rules, so as not to be obliged to eliminate candidates who have not provided these indications.
For the candidate companies, particular care should be taken to ensure that your references contain all the details required by the consultation rules, otherwise your application will be eliminated.
Board of state
N ° 392355
ECLI: FR: CECHS: 2016: 392355.20161021
Unpublished at Lebon collection
7th chamber judging alone
Mr Frederick God, rapporteur
Mr Olivier Henrard, public rapporteur
SCP SPINOSI, SUREAU; SCP ODENT, CHICKEN; SCP GASCHIGNARD, lawyers
Reading of Friday, October 21, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Philippe Vediaud Publicité has asked the Administrative Court of Bordeaux, on the one hand, to cancel the contract concluded in 2010 between the municipality of Bègles and the company Communication and Development Atlantic, having as its object "the provision of modules of "posting intended for municipal information and advertising", on the other hand, to condemn the municipality to compensate for damages suffered as a result of its improper eviction from this market. By a judgment n ° 1000736 of April 25th, 2013, the administrative court of Bordeaux canceled the market and condemned the municipality of Bègles to pay to the company Philippe Vediaud Publicité the sum of 2 000 euros in repair of its damage. The commune of Bègles and the company Philippe Vediaud Publicité have both appealed this judgment.
By a judgment n ° s 13BX01692, 13BX01693, 13BX1745 of June 2, 2015, the Administrative Court of Appeal of Bordeaux annulled this judgment and rejected the request presented by the company Philippe Vediaud Publicité before the court.
By a summary appeal, an additional memorial and a reply, registered on August 4, November 5, 2015 and October 3, 2016 to the litigation secretariat of the Conseil d'Etat, the company Philippe Vediaud Publicité asks the State Council:
- to annul that judgment;
- to charge the municipality of Bègles and the company Communication and Development Atlantic the payment of the sum of 4,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Olivier Henrard, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Gaschignard, lawyer of the company Philippe Vediaud Publicité, to the SCP Odent, Poulet, lawyer of the municipality of Bègles and the SCP Spinosi, Sureau, lawyer of the company Atlantic Communication and Development;
- Considering that it appears from the documents in the file submitted to the judges of the merits that the municipality of Bègles has concluded with the company Communication and Development Atlantic a contract for the provision of display modules intended for municipal information and information. advertisement ; that the competitor ousted, the company Philippe Vediaud Publicité, asked the administrative court of Bordeaux the cancellation of the market and the condemnation of the municipality to pay him compensation for damages caused by his illegal eviction; that, by a judgment of April 25, 2013, the administrative court of Bordeaux canceled the market and sentenced the municipality to pay the company Philippe Vediaud Publicité the sum of 2 000 euros; that, by the judgment attacked, the Administrative Court of Appeal of Bordeaux annulled this judgment and rejected the request presented by the company Philippe Vediaud Publicité before the court;
- Considering that under Article 45 of the Code des Marches Publics, applicable to the contract in question: "I. - The contracting authority may require candidates only information or documents to assess their experience, their professional capabilities, technical financial documents and documents relating to the powers of the persons empowered to commit them ... The list of such information and documents is fixed by order of the Minister in charge of the Economy. that under the terms of article 52 of the same code: "I. - (...) The candidatures (...) are examined with regard to the levels of professional, technical and financial capacities mentioned in the notice of call competition, or, in the case of a procedure exempted from the sending of such notice, in the regulation of the consultation.Applications that do not meet these levels of capacity are eliminated. The absence of references relating to the performance of contracts of the same nature can not justify the elimination of a candidate and does not dispense the contracting authority from examining the candidates' professional, technical and financial capacities ";
- Considering that if the Administrative Court of Appeal of Bordeaux rejected the means of the company Philippe Vediaud Publicité taken from that the appreciation of the merits of the application of the company Communication and Development Atlantic had been distorted by the taking into account of false professional references, it did not, on the other hand, consider the operative plea, distinct from the previous one, alleging that the company's application was unlawful, since that company, contrary to what was required by the rules of the consultation , had produced incomplete references that did not mention the date or the amounts of the contracts that she used in support of her application; that, consequently, the administrative court of appeal of Bordeaux on this point insufficiently motivated its judgment;
- Considering that it follows from the foregoing that the company Philippe Vediaud Publicité is entitled to request the annulment of the judgment under appeal;
- Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the fact that the company Philippe Vediaud Publicité, which is not, in the present case, the losing party, the payment of the amounts requested by the company Communication et Développement Atlantique and the municipality of Bègles; whereas, on the other hand, it is appropriate to charge each of them, on the same basis, the payment to Philippe Vediaud Publicité of the sum of 2,000 euros;
Article 1: The judgment of the Bordeaux Administrative Court of Appeal of 2 June 2015 is set aside.
Article 2: The case is referred to the Administrative Court of Appeal of Bordeaux.
Article 3: The company Communication et Développement Atlantique and the municipality of Bègles will each pay a sum of 2,000 euros to the company Philippe Vediaud Publicité under Article L. 761-1 code administrative justice.
Article 4: The conclusions presented by Communication et Développement Atlantique and by the municipality of Bègles under article L. 761-1 of the administrative justice code are rejected.
Article 5: This decision will be notified to the company Philippe Vediaud Publicité, the municipality of Bègles and the company Communication and Development Atlantic.