Sanction of unjustified use of the competitive dialogue procedure
I-The conditions for regularity of the use of the competitive dialogue procedure under the old public procurement rules (Article 36 of the CMP)
Under the old rules, the competitive dialogue procedure has always been reserved for complex public contracts when the contracting authority was not able either to define alone the technical means that could meet its needs, or to establish the legal or financial arrangement of the proposed project of the fact. The complexity of a project was then described under three possible approaches: the technical, legal or financial complexity of the proposed project. Only one of these approaches is sufficient to validate the use of the competitive dialogue procedure.
Article 36 of the Code des Marches Publics stated that recourse to the competitive dialogue procedure is reserved for particularly complex public markets : " The use of the competitive dialogue procedure is possible where a public contract is considered to be complex, ie where at least one of the following conditions is fulfilled: / 1 ° The contracting authority is not objectively able to define alone and in advance the technical means that can meet its needs / 2 ° The contracting authority is objectively unable to establish the legal or financial structure of a project ".
Administrative case law thus retained a relatively strict approach to the notion of complexity that could justify the use of the partnership contract under the competitive dialogue procedure.
It has thus been judged that the difficulties involved in setting up a national health and welfare insurance scheme for the staff of chambers of commerce and industry are gradually replacing the numerous local health protection contracts subscribed to. each chamber, in a context of profound reform of the consular network, made it objectively possible to competitive dialogue. In this case, the complex nature of the operation was exceptionally accepted only because it was the first time that such a large-scale operation had been implemented at national level (EC 11 March 2013, Assemblies of French Chambers of Commerce and Industry, Req.N ° 364551 with the conclusions of the Public Rapporteur Bertrand DA COSTA which highlights the uniqueness of the intended operation).
On the contrary, it was considered that the condition of technical complexity was not fulfilled for the project of the realization of the Cité du Surf and the extension of the Aquarium of the Musée de la Mer even though the Commune was trying to justify the use of the competitive dialogue procedure with regard to the exceptional dimensions of the structure to be constructed, which will have an area of more than 1300 m2 and will be carried out in a subterranean space adjoining a road tunnel and a former bunker involving the installation of high-tech equipment and the maintenance of the opening to the public of the existing installations during the duration of the works (EC July 30, 2014, Municipality of Biarritz, Req.No. 363007). In this case, the Council of State took care to recall the rule that " the mere invocation of the complexity of the technical processes to be implemented can not be sufficient to legally justify the use of the partnership contract "Passed according to the competitive dialogue procedure.
In its judgment of 18 December 2017, the Council of State also considered that the condition of technical complexity was not fulfilled for the establishment of a wind observation device via Lidar Doppler technology, precisely because the public purchaser had already identified the technology most suited to his needs before launching his procedure, so that there was no need to solicit candidates for innovative solutions. Similarly, the Conseil d'Etat considered that the mere indetermination of the choice between the purchase of the wind observation device via the identified technology or its lease with an option to purchase or the mere purchase of data did not reveal not, on its own, the objective incapacity of the contracting authority to establish the legal or financial arrangement of the project.
II-The conditions of regularity of the use of the competitive dialogue procedure in the light of the new regulation on public procurement (Article 25 of the Decree of 25 March 2016)
Competitive dialogue, however, contributes to the efficiency of public procurement by allowing the public purchaser to engage upstream with specialized economic operators in order to improve the definition of the solutions that best meet his needs. This is why Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014 on the award of public contracts considerably relaxes the various assumptions that will make it possible to use this derogatory procedure.
Thus, recital 42 of that directive states that: " It is absolutely necessary contracting authorities have more flexibility to choose a procurement procedure that provides for negotiations [...] Member States should be in able to provide for the use of the competitive procedure with negotiation competitive dialogue in a variety of situations where an open procedure or a restricted procedure without negotiation is not likely to give satisfactory results ".
The usefulness of the competitive dialogue procedure has in particular been affirmed by the same recital: "It should be recalled that in terms of volume of markets, recourse to competitive dialogue has grown considerably in recent years. This procedure has proved useful in cases where the contracting authorities are not in a position to define the means to satisfy their needs or to evaluate the solutions that the market can offer on a technical, financial or legal level. This can be the case, for example, with innovative projects, major integrated transport infrastructure projects, large computer networks or projects with complex and structured funding. Where appropriate, contracting authorities should be encouraged to appoint a project manager to ensure good cooperation between economic operators and the contracting authority during the award procedure ".
Article 25 of the Public Procurement Decree of 25 March 2016 indicates that contracting authorities may now use the "competitive dialogue" procedure, for all types of contracts, provided that at least one of the following five situations is fulfilled:
- Their needs can not be met without adapting immediately available solutions;
- Their needs include design or innovative solutions;
- The contract can not be awarded without prior negotiations because of particular circumstances related to its nature, its complexity or the legal and financial set-up or because of the risks associated with it;
- The contracting authority is not in a position to define the technical specifications with sufficient accuracy by reference to a standard, a European technical assessment, a common technical specification or a technical reference (...);
- Where only irregular or unacceptable offers have been submitted in an open or restricted procedure.
These different hypotheses imply a substantial widening of the conditions for resorting to the competitive dialogue procedure, in particular because of the very general nature of the first three hypotheses, even if the requirement relating to the justification of the complexity of the project persists and must always be justified.
It is therefore not certain that in the case which gave rise to the judgment of 18 December 2017, the procedure was annulled by the Council of State in the light of the new rules as soon as the establishment the public would not have had to establish that it was objectively incapable of defining, on its own, in advance the technical means which could meet its needs or even that it was objectively not in a position to establish the legal or financial arrangement of a project. It would have been enough for him, for example, simply to show that the device he wishes to acquire requires some adaptations in view of the proposed project ............ ..
On the other hand, the Council of State recalls that the unlawful recourse to a competitive bidding procedure is likely to harm any candidate even if he has participated in the procedure until its end. This reminder is necessary as the lax control of some pre-contractual referees tends to raise more and more the question of the efficiency and therefore the usefulness of such a procedure today. The solution therefore deserves to be welcomed as well as the work of the judge of summary judgment in this case.
Board of state
N ° 413527
Reading of Monday, December 18th, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Leosphere company has asked the judge of the administrative court of Nice to annul the public procurement procedure undertaken by Météo-France for the provision of long-range Lidar Doppler long-range wind observation capability. Nice Côte d'Azur Airport. By an order No. 1702808 of August 4, 2017, the judge of summary of the administrative court of Nice canceled this procedure.
By a summary appeal and a supplementary memorandum, registered on 21 August and 1 September 2017 to the litigation secretariat of the Conseil d'Etat, the public establishment Météo-France asks the Conseil d'Etat:
1 °) to annul the order of August 4, 2017 of the judge of summary of the administrative court of Nice;
2 °) ruling in summary, to reject the application of the company Leosphere;
3 °) to charge the company Leosphere the sum of 6,000 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;
- Considering that the documents in the file submitted to the judge hearing the application of the Administrative Court of Nice show that Météo-France launched, in February 2016, a competitive dialogue procedure with a view to concluding a supply contract for a capacity wind observation by Lidar Doppler for Nice Côte d'Azur airport; that at the end of the procedure, the offer of the company Mitsubishi Electric Europe was retained; after having submitted a final offer, Leosphere applied to the judge of the pre-contractual claims for an annulment of this award procedure; that, by an order of 4 August 2017, against which Météo-France appeals in cassation, the judge of pre-contractual recalls granted this request
- Considering that under Article 36 of the Public Procurement Code, then applicable: "The competitive dialogue procedure is a procedure in which the contracting authority conducts a dialogue with the candidates admitted to participate in order to define or develop one or more solutions to meet its needs and on the basis of which the participants in the dialogue will be invited to submit an offer. / Recourse to the competitive dialogue procedure is possible when a public contract is considered as complex, ie when at least one of the following conditions is met: / 1 ° The contracting authority is not objectively not able to define alone and in advance the technical means that can meet its needs / 2 ° The contracting authority is objectively not able to establish the legal or financial structure of a project "; that according to the VI of article 67 of the same code, then applicable: "The dialogue opens with the selected candidates. The purpose of the dialogue is the identification and definition of the means that best meet the needs. All aspects of the market can be discussed with the selected candidates. "
Considering, firstly, that it appears from the documents in the file submitted to the judge hearing the application for interim relief that Météo-France has resorted to the competitive dialogue procedure and considers that it is not objectively able to define the technical means alone in advance; able to meet his needs; that the public establishment had, however, identified the Doppler Lidar as the most appropriate technology for its needs even before the launching of the procurement procedure; that it has not been established that, in order to equip Nice airport with this technology, it would be necessary to obtain from companies present on the market the specific development of innovative techniques; that, consequently, the judge of interim relief did not tainted its order of error of legal qualification by judging that the project in dispute was not of a technical complexity such that Météo-France could legally resort to the procedure of the competitive dialogue, having regard to the conditions then laid down by the provisions of Article 36 of the Public Procurement Code;
Considering, secondly, that it appears from the documents in the file submitted to the judge hearing the application for interim relief that Météo-France has also resorted to the competitive dialogue procedure, considering that it can not objectively be in a position to choose between different legal and financial arrangements which she had identified before launching the tender procedure; that, however, the mere indetermination of the choice between a purchase of the device, a lease of the device with an option to purchase or the purchase of data, which do not constitute complex legal and financial arrangements, did not reveal, on its own, the objective incapacity of the contracting authority to establish the legal or financial arrangement of the project; that, therefore, the judge of interim relief did not tainted its order of error of legal qualification by judging that the project in dispute was not of a legal complexity or financial such as Météo-France could legally resort the competitive dialogue procedure;
- Considering, lastly, that it belongs to the judge of the interim, seized under the provisions of the article L. 551-1 of the code of justice, to investigate if the enterprise which seizes it avails itself of failings which, considering their scope and the stage of the procedure to which they relate are likely to have injured or risk injury to it, albeit indirectly by favoring a competing enterprise; that thus, the judge of the recitals of the administrative court of Nice, did not make error of law by judging that the resort unlawful by Météo-France to the procedure of competitive dialogue was likely to have harmed the company applicant, although it took part in the procedure until its end, since the public establishment had indeed dialogued with the selected candidates about the identification and the definition of the means best to satisfy its needs and that he did not establish that he would have been able to do so under the same conditions if he had resorted to a call for tenders;
- Considering that it follows from the foregoing that the appeal of Météo-France must be rejected, including its conclusions presented under the provisions of Article L. 761-1 code administrative justice; that in the circumstances of the case, it should be borne by Météo France the payment to the company Leosphere of a sum of 3 000 euros the same way;
Article 1: The appeal of Météo-France is rejected.
Article 2: Météo-France will pay the company Leosphere a sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 3: This decision will be notified to Météo-France, Leosphere and Mitsubishi Electric Europe.