Decision n. 459678, Council of State, 03.05.2022, Commune de Saint-Cyr-sur-Mer
Article(s) in Directive 2014/24/EU: Art. 67(4)
Topic: Evaluation method of tenders
Member State: France
Court/rev. board: Conseil d’Etat
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 67(4) of Directive 2014/24/EU was implemented by the Public Procurement and Concession Code (PPCC), Art. L. 2152-7 and Art. L. 2152-8. The wording of national legislation regarding the award criteria and evaluation of tenders is similar to the wording of the Directive. However, Articles R. 2152-6 and R. 2152-7 of the PPCC specify the terms of application.
If the decision concerns concessions (PPCCC, art. L. 3124-5, art. R. 3124-5 et art. R. 3124-6), the solution can be transposed to public procurement.
The commune of Saint-Cyr-sur-Mer launched an award procedure for a beach sub-concession. To evaluate the bids, the contracting authority associated a qualitative assessment of the bids with each of the criteria set. This assessment consisted of a literal evaluation followed by an arrow that summarised it. A green arrow pointing upwards represented the best assessment, a red arrow pointing downwards the worst, while orange arrows pointing to the top right or bottom right were intermediate assessments. An unsuccessful company asked for a precontractual remedy before the Toulon administrative court arguing the illegality of the bid evaluation method. The judge agreed with the company, considering that such method left “too much room for arbitrariness”, and then cancelled the award procedure. The city appealed to the Conseil d’Etat, on the grounds that the awarding authorities were free to define the evaluation method.
The case law on methods of scoring (or evaluating) tenders is well established in the field of public procurement. The Court of Justice has indicated that they must not modify the contract award criteria defined in the tender specifications or their relative weighting, nor must they have a discriminatory effect on one of the tenders (CJEU, 24 November 2005, ATI EAC e Viaggi di Maio, aff. C331/04; CJEU, 14 July 2016, TNS Dimarso, aff. C-6/15). The Conseil d’Etat followed suit (CE 3 November 2014, n°373362, Commune de Belleville-sur-Loire) and sanctioned, for example, a method that did not award the best mark, on the price criterion, to the cheapest offer (CE 29 October 2013, Val d’Oise Habitat, n° 370789, (CE 29 October 2013, Val Oise Habitat, n° 370789, Rec.) or awarding a mark of 20/20 to the least expensive bid and 0/20 to the most expensive bid, regardless of the price difference between the two (CE 24 May 2017, Minister of Defence v. Techno Logistique, n° 405787), while admitting that there is no perfect proportion between the scores of the bids (CE 15 December 2013, Société SFR, n° 363854, Rec.).
In the judgment under review, the Court ruled, for the first time, on an evaluation method adopted for concessions, in this case for beaches. The judgment essentially takes up the formula adopted for public procurement contracts by the Belleville judgment mentioned above: “A method of evaluation is, however, vitiated by irregularity if, in disregard of the fundamental principles of equal treatment of candidates and transparency of procedures, the assessment factors taken into account to evaluate the tenders under each selection criterion have no connection with the criteria whose evaluation they allow, or if the methods of evaluation of the selection criteria by combination of these factors are, by themselves, such as to deprive these criteria of their scope or neutralise their ranking or, where appropriate, their weighting, and are therefore, likely to lead, for the implementation of each criterion, to the best tender not being the best ranked or, with regard to all the criteria, to the tender offering the best overall economic advantage not being chosen”. This was in fact what the rapporteur public proposed, despite the greater “flexibility” shown in the texts applicable to concessions (L. 3124-5 and R 3124-6 PPCCC). The only difference is the reference to the “best overall economic advantage” and not to the “most economically advantageous offer”.
The consequence that the Conseil d’Etat draws from this is to censure the judge of the pre-contractual remedy who had deemed illegal an evaluation method which resulted in the attribution of four arrows on each criterion and not in a mark, because the judge considered it too “arbitrary”. For the Conseil d’Etat, this method is legal, because it allows four levels of assessment of the bids to be identified, which could just as easily have resulted, as the rapporteur public said, in scores ranging from 1 to 4. If the Conseil d’Etat validated this method, it is not because it was a matter of a concession, but because it was a simple hierarchy of criteria. For the rapporteur public, the implementation of the weighting of criteria implies, on the other hand, the attribution of marks, but she considered that this system of arrows would be just as possible in the hypothesis where, in matters of public procurement contracts, weighting is objectively impossible (R. 2152-12 PPCCC).
This case, nevertheless, raises the question of the relevance of the absence of weighting provided for in the texts: when is weighting not possible in public procurement? More generally, does the absence of weighting lead to too much discretion left to the contracting authorities? It is certainly not up to the courts to amend the texts, but perhaps to go a little further in examining in depth the assessments made of the candidates’ bids.