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.
Lesson 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 author of the default to comply with his obligations by fixing a deadline for this purpose. He may order him to suspend the execution of any decision relating to the conclusion of the contract. […] He may, moreover, pronounce a provisional periodic penalty payment at the end of the time limits ”(art. L. 551-6). It is also provided that if the general interest requires it, the judge in summary proceedings may "exclude the measures set out in the first paragraph of article L. 551-6 when their negative consequences could outweigh their benefits" (art. L. 551-7).
Lesson 2: recalling valuable information 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 old article 70 of the decree of March 25, 2016, the contracting authority could conclude a framework agreement according to the following formulas: either with a minimum and a maximum in value or in quantity; either with a minimum or a maximum; or so without minimum or maximum. Consequently, the Council of State recalled that "the public purchaser is not bound to fix the maximum amount for the framework agreement which he intends to conclude".
Lesson 3: the amount can be fixed during the procedure
If no text requires the contracting authority to fix a maximum amount before the launch of the procedure, nothing prevents it from being determined during the negotiation. To be convinced of this, let us read the decision again: "There is no rule or principle preventing him, within the framework of a negotiated procedure, whether or not he informed the candidates in the documents of the consultation that the negotiation could lead him to fix a maximum amount, to effectively 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.
Lesson 4: the lack of minimum and maximum quantity or overall extent does not necessarily harm 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. Under the terms of article L. 551-1 of the administrative justice code: »The president of the administrative court, or the magistrate whom he delegates, can be seized in the event of breach of the obligations of publicity and competition. to which is subject the awarding by the contracting authorities of administrative contracts having for object the execution of works, the delivery of supplies or the provision of services, with an economic consideration constituted by a price or a right of exploitation, the delegation of a public service or the selection of an economic operator shareholder of a single-operation semi-public company. () The judge is seized before the conclusion of the contract. " Under the terms of 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 he considers, in consideration of all the interests likely to be injured and in particular the public interest, that the negative consequences of these measures could outweigh their benefits. He may, in addition, cancel the decisions relating to the conclusion of the contract and delete the clauses or prescriptions intended to appear in the contract and which disregard these obligations. / II. -However, the I is not applicable to contracts concluded in the fields of defense or security within the meaning of article 6 of ordinance n ° 2015-899 of July 23, 2015 relating to public contracts. For these contracts, articles L. 551.6 and L. 551-7 “apply. Under the terms of article L. 551-6 of the code of administrative justice: »The judge can order the author of the failure to comply with his obligations by fixing a deadline for this purpose. He can order him to suspend the execution of any decision relating to the conclusion of the contract () He can, moreover, pronounce a temporary periodic penalty payment at the expiration of the time limits () ".
3. It appears from the documents in the file submitted to the pre-contractual summary judge of the Toulon administrative court that the management of the Toulon fleet support service has launched a negotiated procedure for the award of a framework agreement to purchase orders relating to the supply and application of paints on ships and equipment of the French Navy based on the Mediterranean coast. By letter dated December 3, 2018, the management of the Toulon fleet support service informed SONOCAR Industrie of the rejection of its offer. The Minister for the Armed Forces and the company Prezioso Linjebygg, contractor, appealed to the French Supreme Court against the order of January 11, 2019 by which the judge of summary proceedings of the Toulon administrative court, seized on the basis of article L. 551- 6 of the administrative justice code by SONOCAR Industrie, ordered the Minister of the Armed Forces to suspend the execution of all decisions relating to the procurement procedure and, if she intended to award such a contract, to resume procedure at the stage of the notice of public call for competition.
On the conclusions of the appeal of the Minister for the armies directed against the order attacked insofar as it rejects the conclusions of the company SONOCAR tending to him that it is enjoined to him to communicate the total amount of the financial estimate of the Prezioso Linjebygg's offer
4. Under I of article 44 of the ordinance of July 23, 2015 relating to public contracts: ”() the buyer cannot communicate the confidential information which he holds within the framework of the public market, such as that the disclosure of which would violate business secrets or could harm fair competition between economic operators, in particular by communicating, during the consultation, the total amount or the detailed price of the offers. However, the buyer may ask economic operators to consent to the disclosure of certain confidential information which they have provided, specifically designated. " Under the terms of article 88 of the decree of March 25, 2016 relating to defense or security public contracts: ”() II. - For public contracts awarded according to a formalized procedure, the buyer, as soon as he decides to reject an application or an offer, shall notify each candidate or tenderer concerned of the rejection of his application or his offer, indicating the reasons for this rejection. / When this notification comes after the award of the public contract, it also specifies the name of the contractor and the reasons which led to the choice of its offer. It also mentions the date from which the buyer is likely to sign the public contract in compliance with the provisions of article 89. At the request of any tenderer who has made an offer which has not been rejected on the grounds that '' it was irregular, unacceptable or inappropriate, the buyer communicates as soon as possible and at the latest fifteen days from the receipt of this request: / 1 ° When negotiations or dialogue are not yet completed, the information relating the progress and progress of negotiations or dialogue; / 2 ° When the public contract has been awarded, the characteristics and advantages of the tender selected. "
5. It appears from the documents in the summary procedure that the Minister of the Armed Forces spontaneously produced, as part of the summary proceedings before the Toulon administrative court, the total amount of the financial estimate of the offer from the company Prezioso Linjebygg. The judge of the pre-contractual summary procedure took note of it and rejected the conclusions for the purposes of injunction presented for this purpose by the company, after having noted that these elements were indeed among the characteristics and advantages of the selected offer, communicable in application of article 88 of the decree of March 25, 2016, the contracting authority not establishing that such a communication would have breached business secrets. If, in her appeal, the Minister argues that the judge in summary proceedings had committed an error of law in this respect, this challenge, which is not directed against the operative part of the order under appeal but only against her reasons, does not is, in any event, inadmissible.
On the conclusions of the appeals brought against the order under appeal in so far as it enjoined the Minister for the Armed Forces to suspend the execution of all the decisions relating to the conclusion of the framework agreement:
6. To suspend the execution of all the decisions relating to the award of the contract, the judge of the pre-contractual summary of the administrative court of Toulon noted, on the one hand, that the contracting authority had provided that the agreement- framework would have a maximum amount, but had fixed it only at the end of the negotiation procedure, and, on the other hand, that the contract notice did not contain any mention relating to the quantity or the overall scope of the framework agreement.
7. Firstly, under the terms of article 70 of the decree of March 25, 2016: »I. - Buyers can conclude framework agreements defined in article 4 of the ordinance of July 23, 2015 referred to above with one or more several economic operators. () When the framework agreement fixes all the contractual stipulations, it is executed as and when the order forms are issued under the conditions set out in article 72. () / II. - Framework agreements can 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 these provisions that the public purchaser is not bound to fix a maximum amount for the framework agreement which he intends to conclude. Furthermore, no rule or principle prohibits him, in the context of a negotiated procedure, whether or not he informed the candidates in the documents of the consultation that the negotiation could lead him to fix a maximum amount, to fix actually such an amount at the end of the procedure. Consequently, in judging that the contracting authority, within the framework of a negotiated procedure, was required, since it had considered assigning a maximum amount to a contract, to mention this amount in the documents of the consultation, the judge of the pre-contractual summary procedure of the administrative court of Toulon committed an error of law.
9. Second, under Annex IV to Directive 2009/81 / EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works, supplies and services contracts by contracting authorities or contracting entities in the fields of defense and security, the contract notice must indicate, in the case of a framework agreement, in addition to the "quantity of services to be provided", "the total value services estimated for the entire duration of the framework agreement. " The model contract notice established, for defense or security contracts, by Annex XIV to Regulation No. 2015/1986 establishing standard forms for the publication of notices in the context of public procurement, provides that in the contract notice, in addition to the "total quantity or scope", an "estimate of the total value of the acquisitions for the whole duration of the framework agreement".
10. It appears from the documents in the file submitted to the judge that the "quantity or overall scope" of the public call for competition notice of the disputed framework agreement did not contain any of the required information. Consequently, by noting that the contracting authority had breached its obligations of publicity and competition by not including any information, even for information or forecast, in the contract notice, and by judging that such an irregularity could not be remedied either by the fact that the candidates admitted to submit an offer had been provided with an order scenario, nor 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 judge of the pre-contractual summary order tainted his order, which is sufficiently reasoned, neither of error of law, nor of distortion.
11. However, it is up to the judge of the pre-contractual summary procedure to find out whether the company which seizes him avails himself of breaches which, having regard to their scope and to the stage of the procedure to which they relate, are likely to have injured him or risk to injure it, even indirectly by favoring a competing business.
12. It appears from the documents in the file submitted to the judge that the article 6 of the consultation regulations of the framework agreement stipulates: »The global price () is calculated inclusive of tax on the basis of the following amounts: / - The price of services which could be ordered on the basis of the scale (PBa), evaluated using a scenario of use of the scale established on the basis of feedback from the SSD and attached in annex A to these regulations () ". This employment scenario includes a column "total quantity ordered under the employment scenario of the scale" which gives indications in particular in number of days or m2 for the 250 lines of services, based on the services actually performed in the context of the current market. In addition, candidates were able to request clarification during the negotiation meetings. Consequently, the management of the Toulon fleet support service must be regarded as having provided sufficient details as to the extent of the needs to be met by the companies whose candidacies have been accepted. Consequently, by judging that the failure to comply with the advertising obligations resulting from the absence of any indication relating to the overall extent of the market had necessarily had an impact on the unit prices offered by the company SONOCAR Industrie and, consequently, on the 'elaboration of its global price offer, and had thus been likely to injure it, even though this company had participated in the negotiations, the judge of the pre-contractual summary procedure of the administrative court of Toulon vitiated his order of an error of legal classification.
13. It follows from the above that the order of the judge of the pre-contractual summary of the administrative court of Toulon must be annulled insofar as it rules on the conclusions tending to the suspension of the execution of the whole of the decisions relating when entering into the framework agreement.
14. 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, to this extent, under the procedure of committed referral.
15. In the first place, the pleas alleging the failure to mention a maximum amount of the framework agreement in the documents of the consultation and that the notice of no mention was made of the quantity or the overall scope of the framework agreement.
16. Secondly, it follows from the investigation that the company Prezioso Linjebygg has produced all the documents attesting to the admissibility of his application. Consequently, the plea alleging that the Minister for the Armed Forces should have rejected it on the grounds that the company had not been up to date with its fiscal and social obligations can only be rejected.
17. Thirdly, under the terms of article 6 of the consultation regulations of the framework agreement: »Any service line on scales not provided by the tenderer (service not quantified or including an exclusion) is completed by the service by the highest price of all offers multiplied by two. " Contrary to what SONACAR Industrie maintains, the fact that it filled in all the lines of this document while not obtaining a higher score than that of its competitor cannot in itself reveal that this method price criterion rating would not have been applied. Furthermore, 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 candidates' offers, do not establish that this comparison would have been distorted.
18. Finally, if the company SONACAR Industrie maintains that the contracting authority would have distorted the terms of its offer on two points, thus affecting the rating of the sub-criterion "management" of the criterion "technical and managerial value", it results from instruction that even if she had obtained a score of 20 out of 20 on this sub-criterion, and not the score of 19.77 out of 20 attributed to her, her overall score would have remained lower than that of Prezioso Linjebygg. Failure to do so, even if it is established, is therefore not likely to have injured her in any event.
19. It follows from all of the above that the conclusions of SONOCAR Industrie tending to suspend the execution of all decisions relating to the signing of the framework agreement must be rejected.
20. It is necessary, in the circumstances of the case, to charge SONOCAR Industrie with the payment of a sum of 4,500 euros to Prezioso Linjebygg on the basis of the provisions of Article L 761-1 of the administrative justice code, for the whole procedure. The provisions of this article prevent an amount from being charged to the State and to Prezioso Linjebygg, which are not, in the present proceedings, the losing parties.
Article 1: Articles 1 and 2 of the order of January 11, 2019 of the judge of the pre-contractual summary of the administrative court of Toulon are canceled.
Article 2: The conclusions at the end of the suspension of the execution of the decisions relating to the conclusion of the framework agreement presented by the company SONOCAR Industrie before the judge of the pre-contractual summary procedure of the administrative court of Toulon and its conclusions presented to the Council under Article L. 761-1 of the Code of Administrative Justice are rejected.
Article 3: SONOCAR Industrie will pay Prezioso Linjebygg a sum of 4,500 euros under article L. 761-1 of the Code of Administrative Justice.