Sanction with variable geometry of the rupture of equality between the candidates!
The sanction of the break of equality between the candidates is not sanctioned in the same way as it results from the behavior of the public purchaser or a candidate
The public purchaser who implements a competitive tendering procedure in order to award a contract must ensure respect for the principle of equality between candidates. The judge of the pre-contractual injunction must annul the procedure if he raises a cause affecting the impartiality of the purchaser or if he notes a break of equality between the candidates because of the information privileged which benefited one of them. In the first case, doubt is enough to bring about the annulment, while in the second, the break in equality must be established.
Hypothesis 1: In the event of the public purchaser's failure to comply with the principle of impartiality of proceedings, the irregularity of the procedure is not subject to proof that a candidate has been favored or at a disadvantage
The principle of impartiality of the public purchaser and a general principle of law (EC 14 October 2015, Nord Pas de Calais Region, req.no. 390968). It implies that the public purchaser remains neutral with regard to the candidates for obtaining the contract, that is to say that he has no interest in favoring one of them under conditions of a nature to characterize a market. conflict of interest situation.
Article 48-I-5 of the Ordinance of 23 July 2015 on public procurement finalizes the conflict of interest as follows: "A situation of conflict of interest constitutes any situation in which a person who participates in or is likely to influence the outcome of the public procurement procedure has, directly or indirectly, a financial, economic or other interest personal interest that could compromise his impartiality or independence in the procurement process"It follows from this definition that the obligation of impartiality only applies to the public purchaser who must ensure that none of the persons who contribute to the performance of his duties in the preparation and conduct of the procedure of selection have a particular interest in its outcome.
In such a case, the Council of State recalls that the administrative judge must retain a objective interpretation the notion of impartiality: he it is not necessary to demonstrate that the equality between the candidates was broken by the presence of a person in situation of potential conflict of interest but simply to note that the presence of the latter is of a nature to "give rise to a legitimate doubt" as to the impartiality of the procedure.
In this case, the Council of State considered that the procedure for awarding a contract for the purpose of setting up a dematerialized card was illegal if the buyer's contracting assistant The public had in the past held positions in the company designated as the awarding of the contract. Although this person left the company for almost two years, the Conseil d'Etat considered that if it does not follow from the investigation that the person concerned still holds interests in the company, the very recent character of their collaboration, at a high level of responsibility, could legitimately give rise to a doubt on the persistence of such interests and, consequently, on the impartiality of the procedure followed by the Nord-Pas-de-Calais region ".
In its decision, the Council of State stresses that professional or business ties, including past, do not exclude the risk of conflicts of interest to the extent that they can continue beyond the material links that gave rise to them, so that the mere fact that the link is broken is not sufficient to eliminate any risk of profit sharing.
The public purchaser must ensure that none of the persons who contribute to the performance of his duties in the preparation and conduct of the selection procedure have any particular interest in his outcome in favor of a candidate. A breach of the principle of impartiality results from the fact that a person involved in the process of designating the successful tenderer may be reasonably suspected of having a particular interest in one of the candidates obtaining the contract.
In his conclusions on this judgment, the Public Rapporteur Gilles Pelissier recalls that:" irregularity the procedure is not subject to proof that a candidate has been favored or disadvantaged, but that the participation of a person with a particular interest at the end of the procedure with the possibility of influencing legitimately suggests that this may have been the case [... ..] This interest does not have to be demonstrated. There must only be sufficient elements for it to appear possible ".
And to conclude that: A word to close this presentation of the method on the consequences for the regularity of the procedure of a conflict of interests within the contracting authority. Whatever the ability of the contracting authority to avoid it, it always taints the procedure, as any infringement of the principles of equality, transparency and competition. If the definition of the conflict of interest and the modalities for its identification must be realistic in order to arrive at proportionate solutions that allow the contracting authorities to take appropriate measures to prevent conflicts of interest, as they must do as those responsible for the award procedure (ECJ, judgment cited above, § 42-43), they have an obligation of result in this respect: the fact that the contracting authority has ignored, even legitimately, the existence of a conflict of interest which may have affected the neutrality of the procedure does not affect the irregularity of that procedure. latest ".
Hypothesis 2: In the event of an irregularity that does not affect the neutrality of the buyer in the choice of the successful tenderer, the doubt is not sufficient to bring the cancellation of the procedure
The mere fact that a person who assisted a public purchaser in a tendering procedure joins a candidate is not likely to create a conflict of interest situation within the buyer unless, as the public rapporteur points out, Gilles Pelissier « anticipating his transfer, he exercised the tasks entrusted to him by the public purchaser so as to benefit his future employer, for example by inserting conditions of execution or selection criteria that would be easier for the latter. to satisfy ". Except for this hypothesis, the fact that a candidate benefits from information likely to confer on him an advantage in the competitive bidding procedure, including if he obtained them thanks to the previous collaboration of one of his employees with the The public purchaser, if it is likely to break the equality between the candidates, does not constitute a breach by the public purchaser of the principle of impartiality. The person who could thus have influenced the choice of the successful bidder left the public buyer before the decision process was initiated.
In this second hypothesis, as stated by the public rapporteur Gilles Pelissier the judge hearing the application for interim measures must not, as he has done, merely note that the information available to a candidate is likely to create a distortion of competition, ie to place himself at the level of doubt which is sufficient to taint the impartiality of the public purchaser, but to inquire whether in fact they have conferred on their holder an advantage over his competitor ".
In this case, in April 2017, the public purchaser had entered into a project management assistance contract with a company to assist it in launching a market for household waste collection. In December 2017, after the deadline for submission of tenders, the project manager assigned by this company to the assistance mission had joined one of the candidates for the award of the contract of collection who was declared the ultimate winner of the contract . According to the judge of the administrative court, the public purchaser had, in those circumstances, infringed the principle of impartiality of the SIOM.
This reasoning is not followed by the Council of State which considers that holding a breach of the obligation of impartiality of the public purchaser solely because there was a risk that the company Sepur, awarded the contract, could obtain confidential information on the occasion of the participation of one of its employees on the project management assistance mission ", while " this circumstance was in itself insusceptible to affect the impartiality of the public purchaser The judge erred in law.
The person in question had only worked for the project owner assistant during the months of April to June 2017 and had left before the development of the business consultation file. In addition, during this period, the former lot holder had refused to transmit to the project owner assistant general market data, believing that it was covered by industrial and commercial secrecy. In these circumstances, the Conseil d'Etat considers thatit does not follow from the investigation that the information held by this person was of such a nature as to favor one of the candidates' of a nature to break the equality between the candidates.
Board of state
No. 420 454
Reading of Monday, January 22, 2018
IN THE NAME OF THE FRENCH PEOPLE
- Considering that the appeals of the intermunicipal garbage syndicate (SIOM) of the Chevreuse Valley and the Sepur company are directed against the same order; whereas it is necessary to join them in order to give a decision;
- Considering that according to the article L. 551-1 of the code of administrative justice: "The president of the administrative court, or the magistrate which he delegates, can be seized in case of failure to the obligations of publicity and implementation. the award by the contracting authorities of administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation, or the delegation of a public service (...) ";
- Considering that the documents in the file submitted to the judge hearing the application for interim relief show that, on 16 November 2017, the SIOM of the Chevreuse Valley launched an open tendering procedure with a view to awarding a contract with for the purpose of collecting household and similar waste; Otus, the holder of a previous contract for the same purpose, applied for lot no. 1 "door-to-door collection, transport, weighing and unloading of household and similar waste"; that on March 26, 2018, the president of the SIOM of the Chevreuse valley informed her of the rejection of her bid and of the attribution of the lot n ° 1 of the market to the company Sepur; that the company Otus seized the judge of the pre-contractual recourse of the administrative court of Versailles, which canceled the procedure by order of April 25, 2018 against which the SIOM of the valley of Chevreuse and the company Sepur were used;
- Considering that among the general principles of law which are binding on the contracting authority as on all administrative authorities is the principle of impartiality, the lack of which constitutes a breach of the obligations of advertising and competition;
- Considering that to annul the procedure on the grounds that a doubt was born on the impartiality of the procedure followed by the SIOM of the Chevreuse Valley, the judge of the pre-contractual summary pointed out that to accompany him in the drafting and handing over of the contentious market, the SIOM of the Chevreuse Valley entrusted at the beginning of April 2017 a project management assistance mission to the Naldéo company and that the project manager assigned by this company to the SIOM project of the Chevreuse valley joined in December 2017, prior to the submission of tenders set for January 10, 2018, the company Sepur, designated winner of lot No. 1 of the market; that the judge hearing the application for interim measures relied on this circumstance alone to conclude that there was doubt as to the impartiality of the procedure followed by the SIOM of the Chevreuse Valley, while at the same time noting that when he was project manager of the project management assistance mission, MA ... did not participate in the drafting of the business consultation file, that his mission was confined to the collection of information prior to the development of this project. file, that he left the company in mid-June 2017 and only joined Sepur in December 2017;
- Considering, on the one hand, that in retaining the existence of a doubt on the impartiality of the public purchaser whereas he had not found any evidence to establish that his agent, the company Naldéo, had lacking impartiality in drawing up the documents for the consultation during the period in which Mr A. was his employee, the judge hearing the application for interim measures incorrectly described the facts before him;
- Considering, on the other hand, that if the confidential information which Mr A. .. could possibly have obtained during his mission of assistant to project owner could, if necessary, confer to his new employer, the company Sepur an advantage of such a nature as to break the equality between the competitors and to oblige the public purchaser to take the measures necessary to restore it, that fact was in itself insubstantial to affect the impartiality of the public purchaser; that, consequently, the judge of interim relief also made an error of law by retaining a breach of the obligation of impartiality of the public purchaser just because there was a risk that the company Sepur, winner of the market, was able to obtain confidential information on the occasion of the participation of one of its employees in the mission of assistance to the contracting authority when it previously worked for the company Naléo, agent of the union;
- Whereas it follows from the foregoing, without it being necessary to examine the other grounds of the appeals, that the order under appeal must be set aside;
- Considering that, in the circumstances of the case, it is necessary, in application of the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated;
- Considering that under Article 1 of the Ordinance of 23 July 2015 on public procurement: "I. - The public contracts subject to the present order respect the principles of freedom of access to the public order, of equal treatment of candidates and transparency of procedures "; that under Article 48 of the same ordinance: "The buyers can exclude from the procedure of public procurement: (...) 3 ° The persons who, by their previous direct or indirect participation in the preparation of the procurement procedure, have had access to information which could distort competition vis-à-vis other applicants, where this can not be remedied by other means "; that under Article 5 of the decree of 25 March 2016 on public procurement: "The buyer takes appropriate measures to ensure that competition is not distorted by participation in the procedure of public procurement of a economic operator who, by virtue of his direct or indirect prior involvement in the preparation of that procedure, had access to information which was unknown to other candidates or tenderers. This operator is excluded from the procurement procedure only when it can not be remedied by other means, in accordance with the provisions of paragraph 3 of Article 48 of the order of 23 July 2015 referred to above ";
- Considering, in the first place, that the company Otus can not usefully argue that the SIOM of the Chevreuse Valley allegedly breached its obligations to advertise and call for competition in the context of the contentious procedure for awarding a contract for waste collection, by not imposing, in the separate project management assistance market, specific requirements, such as a non-competition clause or the signing of confidentiality undertakings;
- Secondly, it follows from the provisions of Article 48 of the Order of 23 July 2015 and Article 5 of the Decree of 25 March 2016 cited in paragraph 10 that the contracting authority is not required to exclude a candidate only if he has had access to information which has been ignored by other candidates or tenderers and which could create a distortion of competition;
- Considering, on the one hand, that it appears from the investigation that the SIOM of the Chevreuse Valley invited the candidates to provide a DC1 type letter of application, including a declaration on their honor that they did not fit into none of the bidding cases provided for in Articles 45 and 48 of the 2015 Ordinance and that in the absence of any evidence, of which he was aware, the existence of a situation likely to create a distortion of competition between the candidates, the SIOM of the Chevreuse Valley can not be criticized for not having taken additional measures to prevent the occurrence of such a situation;
- Considering, on the other hand, that it follows from the investigation that MA..n'a worked for the company Naléo at the beginning of the mission of assistance to project management, between April 4, 2017, date of this assignment, and June 16, 2017, date of his departure from the company; that he left the company before the development of the business consultation file began; that he only joined Sepur in December 2017; that the SIOM of the Chevreuse Valley supports, without being contradicted on this point, that in the context of the preliminary phase of collecting general data on the current market to which MA..had to proceed for his former employer, the company Naldéo the company Otus, then the market owner, refused to transmit the "detailed data" on the ground that they were covered by industrial and commercial secrecy; In these circumstances, it does not follow from the investigation that the information held by MA ... was likely to benefit Sepur company compared to other candidates for the award of the contract in dispute; Consequently, the plea that the SIOM of the Chevreuse Valley interfered with the equality of treatment between the candidates by awarding the contract to the Sepur company must be rejected. In any event, the same is true of the plea alleging breach of the principle of impartiality.
- Whereas it follows from all the foregoing that Otus' claim must be dismissed, including its submissions made under Article L. 761-1 of the Code of Administrative Justice;
- Considering that, in the circumstances of the case, it is appropriate to charge Otus for the payment of a sum of 3,000 euros respectively to Sepur and the SIOM of the Chevreuse Valley, to the costs incurred during the proceedings;
Article 1: The order of 25 April 2018 of the Administrative Court of Versailles is canceled.
Article 2: The request made by the company Otus before the judge of the court of the Administrative Court of Versailles and its conclusions presented under Article L. 761-1 of the Code of Administrative Justice before the Council of State are dismissed.
Article 3: The company Otus will pay the intermunicipal garbage garbage of the Chevreuse Valley a sum of 3 000 euros and the company Sepur the same sum of 3 000 euros, under Article L. 761-1 code of administrative justice.
Article 4: This decision will be notified to the intermunicipal garbage household of the Chevreuse Valley, Sepur society and Otus society.
Summary : Project manager within a company which was entrusted with a project management assistance mission in April 2017 by a public entity, having joined in December 2017, prior to the submission of bids, the company designated ° 1 of the relevant contract ... ,, If the confidential information which the interested party could possibly have obtained during his mission of assistant to the contracting authority could, if necessary, confer to his new employer a advantage of such a nature as to break the equality of the competitors and oblige the public purchaser to take the measures necessary to restore it, that circumstance was in itself insusceptible to affect the impartiality of the public purchaser. Consequently, an error of law by the judge hearing the application for interim measures in having held that the public purchaser had failed to fulfill the obligation of impartiality simply because there was a risk that the company awarded the contract could have obtained confidential information on the occasion of the participation of one of his employees in the assignment of assistance to the contracting authority when he previously worked for the union's agent company.