On the possibility of setting the maximum amount of a framework agreement to purchase orders during the procedure!
In connection with the signing of a framework agreement with purchase orders, an unsuccessful candidate obtained from the Toulon Administrative Court the cancellation of the procedure on the grounds in particular of the absence of a maximum amount previously set by the buyer. . This order was annulled by the Council of State and is the subject of our comment.
Teaching n ° 1: the pre-contractual summary for the security and defense markets is not that of Article L. 551-1 of the Code of Administrative Justice
If it is customary to always associate the provisions of Article L. 551-1 of the Code of Administrative Justice with the pre-contractual summary, we must not lose sight of the II of Article L. 551-2 the same code. In fact, for contracts relating to defense or security matters, the unsuccessful candidate must refer the case to the pre-contractual judge on the basis of the provisions of Articles L. 551-6 and L. 551-7 of the Administrative Justice Code. .
Thus, "the judge may order the offender to comply with his obligations by setting a time limit for that purpose. It may require it to suspend the execution of any decision relating to the awarding of the contract. [...] He may, moreover, pronounce a temporary provisional penalty upon expiry of the time limits "(Article L. 551-6). It is also provided that if the public interest so directs, the judge hearing the application for interim relief may "set aside the measures set out in the first paragraph of Article L. 551-6 when their negative consequences may outweigh their advantages" (art. L. 551-7).
Teaching n ° 2: the recall of information in value for a framework agreement with purchase orders
The decision raises the sensitive issue of value and quantity information in a framework agreement. On this point, the rigor of the pre-contractual summary judge of the administrative court of Toulon certainly led the Palais-Royal to recall the regulations in force. It should be noted that the said regulation in this case was based on the texts in force before the entry of the Public Order Code. Since 1 April 2019, the relevant article on minimum and maximum framework agreements is R. 2162-4.
Thus, on the basis of the former Article 70 of the Decree of 25 March 2016, the contracting authority could conclude a framework agreement according to the following formulas: either with a minimum and a maximum in value or quantity; either with a minimum or a maximum; or without a minimum or maximum. Therefore, the Council of State recalled that "the public purchaser is not required to set the maximum amount for the framework agreement he intends to conclude".
Teaching n ° 3: the amount can be fixed during the procedure
If no text requires the contracting authority to fix a maximum amount before the start of the procedure, nothing prevents it from being determined during the negotiation. To be convinced of this, let us re-read the decision: "No rule or principle forbids him, in the context of a negotiated procedure, whether or not he informed the candidates in the consultation documents that the negotiations could lead him to do so. to fix a maximum amount, to actually fix such an amount at the end of the procedure ".
This is the main contribution of this decision and the Council of State has annulled the interim order of the Administrative Court of Toulon based on this particular point.
Teaching No. 4: Failure to maintain a minimum and maximum quantity or overall scope does not necessarily affect the applicant
Since the decision of the Communauté d'Agglomération de l'Artois (EC, 24 Oct. 2008, Req., No. 313600), the overall quantity or scope of a framework agreement must be presented in the contract notice. . It is on this ground that the unsuccessful candidate obtained the annulment of the proceedings before the court.
However, if the Council of State has annulled the order for interim relief, it is not on the absence of default, but on the absence of injury to the ousted candidate. Since 2008, the SMIRGEOMES case-law (EC, 3 Oct. 2008, No. 305420) imposes a connection between the applicant's interest in bringing proceedings and the injury. In other words, being an unsuccessful candidate is not sufficient to claim a breach of an obligation to advertise or compete. However, it must be demonstrated that the alleged breach is at the origin of the injury invoked. In order to rule out this plea and annul the order for interim relief, the Conseil d'État has shown that the details provided by the contracting authority under negotiation, with the candidates who have been admitted, were sufficient to precisely determine the overall volume. Consequently, the applicant having been removed from the proceedings, he certainly did not obtain details, but the other companies either did not. There was therefore no break in equality between the candidates. Only companies that were admitted then benefited from the details of the contracting authority.
The balance sheet of this jurisprudential policy in force for more than 10 years is a drastic reduction in the cancellation of the award procedures. These remain, despite proven irregularities. Legal certainty is then necessarily affected in favor of a stabilization - excessive - procedures in line with the objective of stability of contractual relations.
Considering the following:
1. The appeals of the Minister of the Armed Forces and the company Prezioso Linjebygg are directed against the same order. They must be joined to rule by a single decision.
2. According to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, may be seized in case of breach of the obligations of publicity and competition 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 counterpart consisting of a price or a right of exploitation, the delegation of a public service or the selection of a shareholder economic operator of a joint venture company with a single operation () The judge is seized before the conclusion of the contract ". According to Article L. 551-2 of the same Code: "I. The judge may order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the conclusion of the contract. unless it considers that, in the light of all the interests that may be adversely affected, including the public interest, the negative consequences of such measures may outweigh their benefits. the decisions relating to the awarding of the contract and the deletion of clauses or requirements intended to be included in the contract which do not comply with the said obligations / II .- However, the I is not applicable to contracts awarded in the fields of defense or security within the meaning of Article 6 of the Public Procurement Ordinance No. 2015-899 of 23 July 2015. For these contracts, Articles L. 551.6 and L. 551-7 "apply. According to Article L. 551-6 of the Code of Administrative Justice: "The judge may order the offender to comply with his obligations by setting a time limit for this purpose. execution of any decision relating to the awarding of the contract () It may, moreover, impose a temporary provisional penalty upon the expiry of the time limits.
3. It appears from the documents submitted to the pre-contractual summary court judge of the Toulon Administrative Court that the Toulon Fleet Support Department has initiated a negotiated procedure for the award of a framework agreement with purchase orders. on the supply and application of paintings on Navy ships and equipment based on the Mediterranean coast. By letter of 3 December 2018, the Toulon Fleet Support Department informed SONOCAR Industrie of the rejection of its offer. The minister of the armed forces and the company Prezioso Linjebygg, winner of the contract, appealed in cassation against the order of 11 January 2019 by which the judge of the interim administrative court of Toulon, seized on the basis of Article L. 551- 6 of the Administrative Justice Code by SONOCAR Industrie, ordered the Minister of Armed Forces to suspend the execution of all decisions relating to the procurement procedure and, if it intended to enter into such a contract, to resume the procedure at the stage of the notice of public tender.
The appeal of the Minister of the Armed Forces against the contested order in so far as it rejects the conclusions of the SONOCAR company that it be ordered to communicate the overall amount of the financial estimate of the offer from Prezioso Linjebygg
4. Under Article 44 (I) of the Public Procurement Ordinance of 23 July 2015: "() the buyer can not communicate the confidential information he holds in the framework of the public contract, such as the disclosure of which would breach business secrecy or could adversely affect fair competition between economic operators, in particular through the communication, during consultation, of the overall amount or the detailed price of the tenders However, the buyer may ask the economic operators to consent to the disclosure of certain confidential information that they have provided, specifically designated. " According to Article 88 of the Decree of 25 March 2016 on defense or security procurement: "() II - For public contracts awarded under a formal procedure, the buyer, as soon as he decides to reject an application or an offer, notifies each candidate or tenderer concerned of the rejection of his application or of his offer, indicating the reasons for his rejection. / Where this notification comes after the award of the public contract, it specifies, in addition, the name of the successful tenderer and the reasons which led to the choice of his tender and the date from which the buyer is likely to sign the public contract in accordance with the provisions of Article 89. A request of any tenderer who has made an unsuccessful bid on the grounds that it was irregular, unacceptable or inappropriate, the buyer shall notify as soon as possible and no later than 15 days after receipt of this request: / 1 ° When negotiations or dialogue have not yet been completed, information on the progress and progress of negotiations or dialogue; / 2 ° When the public contract has been awarded, the characteristics and advantages of the selected tender ".
5. It is apparent from the documents in the file of the interim proceedings that the Minister for the Armed Forces spontaneously produced, in the context of the summary proceedings before the Toulon Administrative Court, the overall amount of the financial estimate of the tender. from the company Prezioso Linjebygg. The pre-contractual interlocutory judge took note of this and rejected the company's injunction findings for that purpose, having noted that these elements were indeed among the characteristics and advantages of the successful bid, which could be disclosed in application Article 88 of the Decree of 25 March 2016, the contracting authority does not establish that such a communication would have breached business secrecy. If, in its appeal, the Minister claims that the judge hearing the application for interim relief made an error of law in that regard, that challenge, which is not directed against the operative part of the order under appeal but only against its grounds, does not is, in any case, not admissible.
The conclusions of the appeals against the contested order insofar as it ordered the Minister of the Armed Forces to suspend the execution of all the decisions relating to the signing of the framework agreement:
6. In order to suspend the execution of all the decisions relating to the award of the contract, the pre-contractual judge of the Toulon Administrative Court pointed out, on the one hand, that the contracting authority had foreseen that the the maximum amount, but only at the end of the negotiation procedure, and secondly that the contract notice did not contain any reference to the quantity or overall extent of the framework agreement.
7. Firstly, under Article 70 of the Decree of 25 March 2016: "I. - Buyers may conclude framework agreements defined in Article 4 of the order of 23 July 2015 referred to above with one or several economic operators () Where the framework agreement lays down all the contractual stipulations, it shall be executed as and when the issue of purchase orders under the conditions set out in Article 72. () / II. The framework agreements may be concluded: 1 ° Either with a minimum and a maximum in value or quantity 2 ° Either with only a minimum or a maximum 3 ° Either without minimum or maximum () ".
8. It follows from those provisions that the public purchaser is not required to set a maximum amount for the framework agreement which he intends to conclude. Moreover, no rule or principle prohibits him, in the context of a negotiated procedure, from informing candidates in the consultation documents that the negotiations might lead him to fix a maximum amount. actually such an amount at the end of the procedure. Therefore, in considering that the contracting authority, under a negotiated procedure, was obliged, since it had envisaged assigning a maximum amount to a contract, to mention that amount in the documents of the consultation, the pre-contractual judge of the Toulon Administrative Court made an error of law.
9. Secondly, according to Annex IV to Directive 2009/81 / EC of the European Parliament and of the Council of 13 July 2009 on the coordination of the procedures for the award of certain works contracts, supplies and services by the contracting authorities or contracting entities in the fields of defense and security, the procurement notice must indicate, in the case of a framework agreement, in addition to the "quantity of services to be provided", "the total value estimated benefits for the entire duration of the framework agreement ". The model contract notice drawn up for the defense or security markets by Annex XIV to Regulation No 2015/1986 laying down standard forms for the publication of notices in the context of the award of public contracts, provides that in addition to the "overall quantity or scope" an "estimate of the total value of the acquisitions over the entire duration of the framework agreement" must appear in the contract notice.
10. The documents in the file submitted to the President of the Court of First Instance show that the overall quantity or scope of the contested public notice of competition of the contested framework agreement did not contain any of the information required. Consequently, by noting that the contracting authority had failed to meet its disclosure and competition requirements by not including any information, even for information or forecasting purposes, in the contract notice, and ruling that such an irregularity could not be mitigated either by the fact that the candidates admitted to submit an offer were provided with a scenario of orders, or by the transmission to the candidates at the end of the first negotiation meeting of a table summarizing the purchase orders and associated quantities notified under the previous contract, the pre-contractual judge did not taint his order, which is sufficiently reasoned, nor error of law, nor denaturation.
11. It is, however, for the pre-contractual injunction judge to inquire as to whether the undertaking which seizes it avails itself of deficiencies which, in view of their scope and the stage of the procedure to which they relate, are likely to have injured or risked to hurt it, even indirectly, by favoring a competing enterprise.
12. According to the documents submitted to the judge hearing the application for interim measures, Article 6 of the consultation regulation of the framework agreement states: 'The overall price () shall be calculated on the basis of the following amounts: / - The price of services that could be ordered on the basis of the scale (PBa), evaluated using a scenario of use of the scale established on the basis of the experience of the SSD and attached as Annex A to this Regulation () ". This employment scenario includes a column "total quantity ordered under the use scenario of the scale" which gives indications in particular in number of days or m2 for the 250 service lines, based on the services actually performed in the of the current market. In addition, candidates were able to seek clarification during the bargaining meetings. Therefore, the management of the Toulon fleet support service must be regarded as having provided sufficient information as to the extent of the needs to be met by the companies whose application has been accepted. Consequently, in holding that the failure to comply with the disclosure requirements resulting from the absence of any indication of the overall scope of the contract necessarily had an impact on the unit prices proposed by SONOCAR Industrie and, consequently, on the elaboration of its global price offer, and was therefore likely to harm it, even though that company had participated in the negotiations, the judge of the pre-contractual summary of the administrative court of Toulon tainted its order of an error of legal qualification.
13. It follows from the foregoing that the order of the pre-contractual summary proceedings judge of the Toulon Administrative Court must be set aside in so far as it rules on the claims seeking suspension of the execution of all the decisions relating to the signing of the framework agreement.
14. In the circumstances of this case, it is necessary, pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case, to that extent, under the referred committed.
15. In the first place, the pleas alleging the absence of mention of a maximum amount of the framework agreement in the documents for the consultation and the fact that the No mention was made of the overall quantity or scope of the framework agreement.
16. Secondly, the investigation shows that Prezioso Linjebygg has produced all the documents certifying the admissibility of his application. Consequently, the plea that the Minister of the Armed Forces should have rejected it on the ground that the company has not been up to date with its fiscal and social obligations can only be dismissed.
17. Thirdly, according to Article 6 of the Framework Agreement's consultation rules: "Any line of services on price lists not entered by the tenderer (non-encrypted or excluded service) shall be supplemented by the service. by the highest price of all offers multiplied by two ". Contrary to the support of SONACAR Industrie, the fact that it filled all the lines of this document while not obtaining a higher score than that of its competitor can not reveal, by itself, that this method the price criterion would not have been applied. Moreover, the few inconsistencies or approximations in the presentation of the services covered by the framework agreement, noted by the company in the financial annex which made it possible to compare the offers of the candidates, do not establish that this comparison would have been skewed.
18. Lastly, if SONACAR Industrie claims that the contracting authority distorted the terms of its bid on two points, thus affecting the rating of the "management" sub-criterion of the "technical and managerial value" criterion, it results from the that even if it had obtained a mark of 20 out of 20 on this sub-criterion and not a mark of 19,77 out of 20 which had been awarded to it, its overall score would have remained lower than that of Prezioso Linjebygg. Failure, therefore, to suppose that it has been established, is, in any event, not likely to have injured it.
19. It follows from all the foregoing that the conclusions of the SONOCAR Industrie company seeking to suspend the execution of all the decisions relating to the signing of the framework agreement must be rejected.
20. In the circumstances of this case, SOCOCAR Industrie should be ordered to pay Prezioso Linjebygg a sum of EUR 4,500 on the basis of Article L 761-1 of the Administrative Justice Code, under the whole procedure. The provisions of this article preclude the State and Prezioso Linjebygg from having to pay the sum, which are not the losing parties in this case.
Article 1: Articles 1 and 2 of the order of 11 January 2019 of the judge of the pre-contractual summary of the administrative court of Toulon are canceled.
Article 2: The conclusions for the suspension of execution of the decisions relating to the signing of the framework agreement presented by the company SONOCAR Industrie before the judge of the pre-contractual summary of the administrative tribunal of Toulon and its conclusions presented to the Council under Article L. 761-1 of the Administrative Justice Code are rejected.
Article 3: The company SONOCAR Industrie will pay the company Prezioso Linjebygg a sum of 4,500 euros under article L. 761-1 code administrative justice.