Un candidat évincé qui a déposé une offre irrégulière peut contester l’attribution du contrat à une offre qui est également irrégulière

An ousted candidate who has submitted an irregular offer may contest the award of the contract to an offer which is also irregular

by Sébastien Palmier on June 1, 2020 | Category: Folders of the month
Un candidat évincé qui a déposé une offre irrégulière peut contester l’attribution du contrat à une offre qui est également irrégulière Un candidat évincé qui a déposé une offre irrégulière peut contester l’attribution du contrat à une offre qui est également irrégulière

CE May 27, 2020, Sté Clean Building, n ° 435982

The Council of State now considers that within the framework of a pre-contractual or contractual summary procedure, the fact that the offer of the ousted competitor is irregular does not prevent it from being able to take advantage of the irregularity of the offer of the company awarded the contract to obtain the cancellation of the procedure or the contract. In this hypothesis, the judge in summary proceedings cannot invoke the irregularity of the offer of the ousted candidate and must examine the regularity of the offer of the successful candidate.

What you must remember :

The Council of State aligns itself with the case law of the Court of Justice of the European Union to consider that the irregularity of the offer of an ousted candidate does not deprive it of the possibility of arguing that the offer deduction is also irregular to obtain the cancellation of the procedure or the contract 

Point n ° 1: Reminder of the jurisprudence of the Court of Justice of the European Union

 The case law of the Court of Justice of the European Union considers that as soon as the successful tenderer's offer is irregular, the judge cannot invoke the irregularity of the offer of the ousted candidate to avoid the cancellation of the procedure or contract at issue.

In other words, the Court of Justice of the European Union considers that the applicant who has presented an irregular offer is injured by the award of the contract to the successful tenderer whose offer is also irregular.

In doing so, the Court of Justice of the European Union considers that the plea alleging the irregularity of the tenderer's offer is effective notwithstanding the circumstance that the ousted candidate also made an irregular offer.

In a judgment of April 5, 2016, Puligienica Facility Esco Spa, Aff.C-689/13, the CJEU recalls this rule in these terms:

" In this regard, it should be recalled that, according to the provisions of Article 1st, paragraphs 1, third subparagraph, and 3, of that directive, so that appeals against decisions taken by a contracting authority can be considered effective, they must be accessible at least to any person having or having had an interest in obtaining a specific contract and having been or likely to be harmed by an alleged violation.

24 In paragraph 33 of the Fastweb judgment (C ‑ 100/12, EU: C: 2013: 448), the Court considered that the incidental action of the successful tenderer could not lead to dismissing the action of an ousted tenderer in the event that the regularity of the offer of each of the operators is called into question within the framework of the same procedure, given that, in such an assumption, each of the competitors can assert a legitimate interest equivalent to the exclusion the offer of others, which may lead to the finding of the impossibility, for the contracting authority, to proceed to the selection of a regular offer.

25 In paragraph 34 of the same judgment, the Court therefore interpreted Article 1st, paragraph 3, of Directive 89/665 in the sense that that provision precludes the action of a tenderer whose tender has not been accepted from being declared inadmissible following the prior examination of the 'objection of inadmissibility raised in the context of the adjudicator's cross-appeal, without a ruling on the conformity of the two offers in question with the specifications in the specifications.

26 This judgment constitutes an expression of the requirements of the provisions of Union law cited in paragraph 23 of this judgment, in circumstances where, following a procedure for the award of a public contract, two tenderers bring actions seeking their reciprocal exclusion.

27 In such a situation, each of the two tenderers has an interest in obtaining a specific contract. On the one hand, the exclusion of a tenderer may result in the other winning the contract directly under the same procedure. On the other hand, in the event of exclusion of the two tenderers and the opening of a new public procurement procedure, each of the tenderers could participate and, thus, indirectly obtain the contract.

28 The interpretation, recalled in paragraphs 24 and 25 of this judgment, which was given by the Court in Fastweb (C ‑ 100/12, EU: C: 2013: 448) is applicable in a context such as that of the main proceedings. First, each of the parties to the dispute has a legitimate interest equivalent to excluding the offer from other competitors. On the other hand, as the Advocate General pointed out in point 37 of his conclusions, it is not ruled out that one of the irregularities justifying the exclusion both from the tenderer's offer and from that of the tenderer contesting the award decision of the contracting authority also vitiates the other tenders submitted within the framework of the invitation to tender procedure, which could lead the latter to have to launch a new procedure.

29 The number of participants in the public procurement procedure concerned, as well as the number of participants who have brought appeals as well as the divergence of the grounds raised by them, are not relevant for the application of the case-law principle resulting from the Fastweb judgment (C ‑ 100/12, EU: C: 2013: 448).

30 In the light of the foregoing considerations, the answer to the first question raised is that Article 1st, paragraphs 1, third subparagraph, and 3 of Directive 89/665 must be interpreted as meaning that it opposes a main action brought by a tenderer, having an interest in obtaining a specific contract and having been or likely to be injured by an alleged infringement of Union law in the field of public procurement or of the rules transposing that law , and aimed at excluding another tenderer from being declared inadmissible in application of the national procedural rules which provide for the priority examination of the cross-appeal brought by this other tenderer ".

 

This solution had already been mentioned by the Court of Justice in a judgment of July 4, 2013, Fastweb, Aff.C-100/12 ,:

" 31 In the main proceedings, the referring court, after checking the adequacy of the tenders submitted by the two companies concerned, found that the tender presented by Fastweb did not comply with all the technical specifications imposed by Specifications. However, it came to the same conclusion with regard to the offer presented by the other tenderer, Telecom Italia.

32 Such a situation differs from that at issue in the case which gave rise to the judgment in Hackermüller, cited above, in particular by the fact that it is found that the selected offer did not, wrongly, not excluded at the stage of the verification of the offers notwithstanding its non-compliance with the technical specifications of the specifications.

33 However, in the presence of such a finding, the incidental action of the successful tenderer cannot lead to dismissing a tenderer's appeal in the event that the regularity of the offer from each of the operators is called into question in under the same procedure and for reasons of an identical nature. Indeed, in such a situation, each of the competitors can assert a legitimate interest equivalent to the exclusion of the offer of the others, which may lead to the finding of the impossibility, for the contracting authority, to proceed to the selection of a regular offer.

For these reasons, the Court ruled that:

Article 1st, paragraph 3, of Council Directive 89/665 / EEC of 21 December 1989 coordinating the laws, regulations and administrative provisions relating to the application of appeal procedures in the award of public supply and works contracts , as amended by Directive 2007/66 / EC of the European Parliament and of the Council of 11 December 2007, should be interpreted as meaning that, if, in the context of an appeal procedure, the successful tenderer, having obtained the contract and having brought an incidental appeal, raises an objection of inadmissibility based on the lack of standing to act of the tenderer author of this appeal on the grounds that the offer which the latter had presented should have been rejected by the contracting authority because of its non-compliance with the technical specifications defined in the specifications, this provision precludes the said action being declared inadmissible as a result of the prior examination of this objection of inadmissibility without ruling on the conformity with the said technical specifications both of the offer of the successful tenderer, who obtained the contract, and that of the tenderer who brought the main action ".

In its judgment of September 5, 2019, Lombardi, Aff.C-333/18, the Court justifies this solution insofar as: " if the tenderer's appeal was found to be well founded, the contracting authority could take the decision to cancel the procedure and open a new award procedure on the grounds that the remaining regular tenders did not sufficiently meet the expectations of the contracting authority ".

Point n ° 2: The reversal of the jurisprudence of the Council of State

The Council of State now aligns itself with the case law of the Court of Justice of the European Union to consider that the irregularity of the offer of an ousted candidate does not deprive it of the possibility of arguing that the retained offer is also irregular to obtain cancellation of the procedure or contract

In its judgment of 27 May 2020, Sté Clean Building, n ° 435982, the Council of State considers that the fact that the offer of the ousted competitor has been declared as irregular by the public purchaser does not prevent this that he can take advantage of the irregularity of the offer from the company awarded the contract to obtain the cancellation of the procedure or the contract.

This solution was expected insofar as, since the offer of the successful tenderer and that of the applicant appeared to be irregular, neither of the two offers could be accepted except to favor the tenderer's offer to the detriment of that of the candidate ousted in conditions constituting an offense of favoritism punished by the provisions of article 432-14 of the penal code which are of public order.

It is therefore a particularly serious defect which operates not only in the context of a pre-contractual or contractual summary procedure but also in the context of an action to challenge the validity of the contract by being such as to invalidate the contract. Whatever the procedure initiated, the judge has the obligation to examine the plea alleging the irregularity of the candidate's bid or offer and, in the event that the irregularity appears from the documents in the file of sanction it both on the basis of the principle of legality and with regard to the general interest.

In the end, the irregularity of the applicant's offer or candidacy cannot preclude the possibility for an applicant who has presented an irregular application or offer to complain of the irregularity of the applicant's or offer accepted to obtain either the cancellation of the procedure for awarding a contract in support of a pre-contractual or contractual summary procedure or the cancellation of the contract in support of an action to contest the validity of the contract .  

 


 

CE May 27, 2020, Sté Clean Building, n ° 435982

Considering the following:

  1. It appears from the documents in the file submitted to the judge in summary proceedings that, by a notice of public call for competition published on February 26, 2019 in the Official Journal of the European Union and in the Official Bulletin of Public Contract Announcements, the local authority of Martinique has initiated a consultation with a view to concluding a framework agreement for cleaning services for premises and sites, divided into nine lots. The company Clean Building, which applied, was informed by letter of August 22, 2019, that lot n ° 8 was awarded to it and that its offer was rejected for the other lots, lots n ° s 1 to 6 and lot n ° 9 being allocated to the company Sadis'nov and lot n ° 7 to the company Madianet. The company Clean Building asked the judge of the summary proceedings of the administrative court of Martinique, on the basis of article L. 551-1 of the code of administrative justice, the cancellation of the procedure of award of the market for the lots which do not have not been assigned to him. The judge in summary proceedings decided, by an order of September 30, 2019 against which the cassation company Clean Building appeals, that there was no need to rule on the request of the company Clean Building presented on the basis of the 'Article L. 551-1 of the Code of Administrative Justice, then he rejected the remainder of the conclusions which she presented during the proceedings on the basis of Articles L. 551-13 et seq. of the same code.
  2. Firstly, 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 setting in 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 counterpart constituted by a price or a right of exploitation (.. .) / The judge is seized before the conclusion of the contract ". According to article L. 551-4 of this code: "The contract cannot be signed as from the referral to the administrative court and until the notification to the contracting authority of the jurisdictional decision". Under the terms of article L. 551-13 of the same code: "The president of the administrative court, or the magistrate whom he delegates, can be seized, once concluded one of the contracts mentioned in articles L. 551-1 and L. 551-5, of a remedy governed by this section ". According to article L. 551 14 of this code: "The persons empowered to act are those who have an interest in concluding the contract and who are likely to be injured by breaches of the obligations of publicity and competition which are subject to these contracts (...) / However, the recourse governed by this section is not open to the applicant who has made use of the recourse provided for in Article L. 551-1 or in Article L. 551-5 once the contracting authority or the contracting entity has complied with the suspension provided for in Article L. 551-4 or in Article L. 551-9 and has complied with the court decision rendered on this appeal ". Under the terms of article L. 551 18 of the same code: "The judge declares the contract void when none of the publicity measures required for its award have been taken, or when publication in the Official Journal has been omitted of the European Union in the event that such publication is prescribed./ The same cancellation is pronounced when the procedures for reopening the competition provided for the award of contracts based on a framework agreement or an acquisition system have been disregarded / The judge also declares the contract null and void when it has been signed before the expiration of the period required after the dispatch of the award decision to economic operators having submitted a bid or an offer or during the planned suspension in Article L. 551-4 or in Article L. 551-9 if, in addition, two conditions are met: failure to comply with these obligations has deprived the applicant of his right to exercise the recourse provided for in the articles L. 551 1 and L. 551 5, and the s publicity and competition obligations to which its execution is subject have been disregarded in a way which affects the chances of the author of the action to obtain the contract ". According to article L. 551-20 of the same code: "In the event that the contract was signed before the expiration of the period required after the dispatch of the award decision to the economic operators having presented an application or an offer or during the suspension provided for in Article L. 551-4 or in Article L. 551-9, the judge may declare the contract null, terminate it, reduce its duration or impose a financial penalty ". Finally, under the terms of article L. 551 21 of this code: "The measures mentioned in articles L. 551-17 to L. 551-20 may be ordered ex officio by the judge (...)".
  3. It follows from these provisions that the contracting authority, when an action for pre-contractual interim measures is brought against the procedure for the award of a contract, must suspend the signing of this contract from the date of communication of the appeal by the registry of the administrative court, either of its notification by the representative of the State or the author of the action acting in accordance with the provisions of article R. 551-1 of the code of administrative justice. In the case of an appeal sent to the competent service of the contracting authority by means of communication allowing the transmission of a document in real time, the fact that the notification was made outside the opening hours of this service has no impact, the period of suspension running from the effective knowledge of the appeal by the contracting authority, but from the receipt of the notification made to it. Under the provisions of article L. 551-14 of the same code, the breach by the contracting authority of the obligation to suspend the signing of the contract opens the way for recourse in contractual summary proceedings to the claimant who had made use of the pre-contractual summary procedure . In addition, by virtue of the provisions of article L. 551-20 of the same code, which must be read in the light of those of article 2 sexies of the Council directive of December 21, 1989 which they ensure transposition, in the event of the conclusion of the contract before the expiration of the period required after the dispatch of the award decision to economic operators who have submitted an application or an offer, or, as in this case, during the suspension provided for in Article L. 551-4 or in article L. 551-9 of the same code, the judge of the contractual summary procedure is held either to deprive of effects the contract by canceling it or by canceling it, or to pronounce a sanction of substitution consisting of a financial penalty or a reduction in the duration of the contract. Finally, the rejection of the conclusions presented on the basis of article L. 551-18 of the code of administrative justice does not preclude the imposition, even ex officio, of a sanction on the basis of the provisions of the article L. 551-20 of the same code, if the disputed contract was signed before the expiration of the period required after the dispatch of the award decision to economic operators having submitted a bid or an offer or during the suspension provided for in the 'article L. 551-4 or article L. 551-9 of the administrative justice code.
  4. It appears from the documents in the file submitted to the judge of summary proceedings of the administrative court of Martinique that the contract in dispute was concluded on September 6, 2019 in the morning, after the reception by the services of the local authority of Martinique of the fax and e-mail from the lawyer for the applicant company notifying him of his pre-contractual summary proceedings. The contract was thus signed by the community in violation of the obligation provided for in article L. 551-4 of the code of administrative justice. Consequently, even though he had rejected the conclusions of the company Clean Building presented on the basis of article L. 551-18 of the code of administrative justice, the judge of the contractual summary proceedings of the administrative court was bound to pronounce the one of the sanctions provided for in article L. 551-20 of the same code. By failing to pronounce one of them, he committed an error of law.
  5. Secondly, under the terms of article 53 of the order of July 23, 2015 relating to public contracts, applicable to the dispute, the substance of which was included in article L. 2152-6 of the public procurement code: "When an offer seems abnormally low, the buyer requires the economic operator to provide details and justifications on the amount of his offer. / If, after checking the justifications provided by the economic operator, the buyer establishes that the "the offer is abnormally low, it rejects it under conditions fixed by regulation. / The buyer implements all means to detect the abnormally low offers allowing him to dismiss them". According to article 60 of the decree of March 25, 2016 relating to public procurement, applicable to litigation, the substance of which was included in articles R. 2152-3 and R. 2152-4 of the public procurement code: "I. - The buyer requires the tenderer to justify the price or the costs offered in his offer when it seems abnormally low having regard to the works, supplies or services (...) / II. - The buyer rejects the offer: / 1 ° When the elements supplied by the tenderer do not satisfactorily justify the low level of the price or the proposed costs (...) ".
  6. It follows from these provisions that, whatever the award procedure implemented, it is incumbent on the contracting authority which notes that an offer seems abnormally low to seek from its author all details and justifications likely to explain the price offered. If the details and justifications provided are not sufficient for the price offered not to be regarded as manifestly undervalued and likely to jeopardize the proper performance of the contract, it is for the contracting authority to reject the offer.
  7. It appears from the statements in the order under appeal that the judge in summary proceedings noted that the contracting authority had asked Sadis'nov, when examining the offers, to justify the prices it offered. Then considering, to judge that this offer was not abnormally low, that it was not established that the average rate of work retained by the company would not allow him to perform the services at the proposed price, the judge of summary proceedings , which gave sufficient reasons for its order, neither distorted the documents in the file nor committed an error in law.
  8. Thirdly, the fact that the offer of the ousted competitor, the author of the interim relief, is irregular does not preclude him from being able to avail himself of the irregularity of the offer from the company awarded the contract in dispute. This is particularly the case when an offer can be assimilated, by the President in the context of his office, to an irregular offer because of its abnormally low character.

     

  9. It appears from the statements in the order under appeal that the judge hearing the applications considered that the justifications provided by the company Madianet, awarded the lot n ° 7 of the contract in dispute, were not sufficient for the price which it proposed not to not be seen as clearly undervalued. However, it considered that the applicant company could not usefully avail itself of this irregularity on the grounds that its own offer for this lot was also irregular, failing for it to have replied within the prescribed time limits to the request for justification of the prices of his offer addressed to him by the contracting authority on the basis of the provisions cited in point 5. In ruling in this way, the judge in summary proceedings was based on an ineffective plea and in doing so erred in law.
  10. It follows from all of the above that the applicant company is only justified in requesting the annulment of the order under appeal as the judge of interim measures of the administrative court of Martinique rejected his claims for the annulment of lot no. 7 of the market and failed to pronounce one of the sanctions provided for in Article L. 551-20 of the Code of Administrative Justice.
  11. It is necessary, in the circumstances of the case, to settle, to this extent, the case under the interim proceedings initiated in application of the provisions of Article L. 821-2 of the Code of Administrative Justice.
  12. Firstly, it follows from the instruction that the details and justifications provided by the company Madianet are not sufficient for the price it offered for lot n ° 7, more than 60 % lower than the estimate annual report of the contracting authority is not regarded, on the one hand, having regard to all the costs necessary for the performance of the service, as manifestly undervalued and, on the other hand, of a nature, in the circumstances of in this case, to jeopardize the proper performance of the contract. Consequently, it was for the contracting authority, as stated in point 6, to reject its offer. Consequently, the company Clean Building is entitled to request the cancellation of lot n ° 7 of the market.
  13. Secondly, in order to determine the sanction to be pronounced in application of the provisions of article L. 551-20 of the code of administrative justice, it is up to the judge of the contractual summary proceedings who notes that the contract was signed prematurely, in breach of obligations referred to in Article L. 551-20 of the Code of Administrative Justice, to assess all the circumstances of the case, taking into account in particular the gravity of the breach committed, its more or less deliberate nature, the greater or lesser capacity of the contracting authority to know and implement its obligations as well as the nature and characteristics of the contract.
  14. As mentioned in point 4, it follows from the instruction that the company Clean Building sent, on September 6, 2019 at the start of the morning, a fax and an e-mail informing the local authority of Martinique of its pre-contractual referral . Consequently, this community, which could not ignore its obligations in this area, signed the contract in question when it was informed of the existence of a pre-contractual summary procedure. Under these conditions, it is necessary to impose a financial penalty in the amount of 10,000 euros in application of the provisions of article L. 551-20 of the Code of Administrative Justice in respect of the award of lots no. s 1 to 6 and lot n ° 9.
  15. It is necessary, in the circumstances of the case, to charge the local authority of Martinique the sum of 3,000 euros to be paid to the company Clean Building, under article L. 761-1 of code of administrative justice.

DECIDE:
Article 1: The order of September 30, 2019 of the judge of the summary proceedings of the administrative court of Martinique is canceled as it rejected the conclusions of the company Clean Building tending to the cancellation of the lot n ° 7 of the market and has failed to pronounce one of the sanctions provided for in article L. 551-20 of the code of administrative justice.
Article 2: Lot n ° 7 "current cleaning service of the territorial analysis laboratory" of the market concluded by the local authority of Martinique with the company Madianet is canceled.
Article 3: A penalty of 10,000 euros, which will be paid to the Treasury, is imposed on the local authority of Martinique in application of the provisions of article L. 551-20 of the administrative justice code