INTRODUCTION

 

The question of the regularity of the methods of rating the criteria for awarding public contracts is today the subject of well-established case law. If the Council of State still considers that these rating methods and the elements of assessment taken into account by the buyer to evaluate the award criteria do not have to be published in the call for competition (CE, March 31, 2010, Collectivity of Corsica), it nevertheless requires the pre-contractual summary judge to carry out a check, albeit limited, of the regularity of these methods and elements of assessment. The evolution of jurisprudence has taken place in small steps, but we will remember the two main stages. First, in a Municipal decision of Belleville-sur-Loire (CE, November 3, 2014, Cne of Belleville-sur-Loire), the Council of State specified that the “grading methods are tainted by irregularity if, in disregard of the fundamental principles of equal treatment of candidates and transparency of procedures, they are in themselves likely to deprive their scope the selection criteria or to neutralize their weighting and are, therefore, likely to lead, for the implementation of each criterion, to the best score not being awarded to the best offer, or, with regard to of all the weighted criteria, so that the most economically advantageous offer is not chosen. Six years later, he split the question by integrating that of the regularity of the elements of assessment taken into account for the evaluation of the award criteria (CE, Nov. 20, 2020, Sté Evancia), considering that the rating methods are also irregular if “the assessment elements taken into account to rate the selection criteria of the offers are devoid of any link with the criteria whose evaluation they allow”.

 

In the decision commented on here, the High Court transposes this case law to the methods of evaluating the criteria for awarding concessions, with some adaptations made necessary by the particularities inherent in the award of these contracts. A word on the facts of the case. The municipality of Saint-Cyr-sur-Mer published, on March 28, 2021, a concession notice for the allocation of sub-concessions for Lecques beach. For the award of lot no. 5, one of the award criteria related to the "quality and consistency of the offer from a financial point of view", assessed in particular with regard to the forecast amount of royalties, itself dependent on the estimated turnover. The different offers were then evaluated, not in monetary terms, but by a literal assessment summarized in the analysis report of the offers by colored arrows (green arrow towards the north, orange arrow towards the north-east, orange arrow towards the southeast and red arrow to the south). An ousted competitor petitioned the Toulon administrative court for pre-contractual summary proceedings, considering the evaluation method to be irregular. The trial judge upheld these claims and annulled, initially, the entire procedure before, subsequently and following third party opposition from the awarded company, only annulling it at the stage of examination of offers. The court, taking up the Municipal case law of Belleville-sur-Loire, considered, without further reasons, that such a rating method left the licensing authority with "too much arbitrariness", such as to render the method irregular. .

 

Overturning the two interim orders of the Toulon administrative court, and ultimately validating the procedure, the Council of State will transpose its case law applicable to public contracts to concessions, not without some adaptations.
 

 

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I – CONDITIONS OF REGULARITY OF EVALUATION METHODS IN CONCESSIONS

 

The Council of State firstly recalls that in terms of evaluation methods, it is above all a principle of freedom which dominates: in the absence of requirements in the directive or the public procurement code, the The granting authority is free to determine the methods of evaluating the award criteria. However, this area of freedom is limited by the respect due to the fundamental principles of public procurement, here the equal treatment of candidates and the transparency of procedures. Therefore, as with public contracts, the evaluation method may be irregular if it results in depriving an award criterion of significance or neutralizing its weighting.

 

We will nevertheless note two variations compared to the case law relating to public procurement. First of all, the Council of State does not use the expression “rating method” here, but that of “evaluation method”, even though it always uses the first when it comes to public contracts. This suggests that, as is the case in this case, a numerical score is not essential in the evaluation of the concession criteria. Then, it substitutes the term “hierarchization” for that of “weighting”, thus taking note of the distinction made by the code: where, in principle, the award criteria are weighted in public contracts, they are simply hierarchical in concessions. The whole thing is then easily understood: if, as Mr. Le Corre points out in his conclusions, the weighting makes a numerical assessment of the merits of the offers necessary, this is not the case when the criteria are only hierarchical. There remains the question of the – frequent – hypothesis according to which a concession is awarded according to weighted award criteria. It then seems that recourse to the numerical note will be essential, or, at the very least, much less risky for the granting authority.

 

It being understood that the pre-contractual summary judge must only verify whether the method did not have the effect of depriving a criterion or of neutralizing the prioritization, the Council of State, settling the case on its merits, considers that the method literal here retained had not had such an effect.

 

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II – CONDITIONS OF REGULARITY OF ELEMENTS OF APPRECIATION IN CONCESSIONS

 

Second point, the Council of State also transposes its Sté Evancia case law to concessions, considering that the elements of assessment taken into account by the granting authority must not be devoid of any link with the criterion that they intend to evaluate. This calls for two remarks.

 

The first is that such a solution (this is also valid for public contracts) blurs the distinction between selection criteria and rating methods. As we know, this has never been easy – both participating in the judgment of the offers – although it is decisive, only the selection criteria must, in particular, be published in the call for competition . The Council of State considers that the selection criterion (or sub-criterion) is identifiable in that it is likely to “exert an influence on the presentation of offers by candidates as well as on their selection” (CE, June 18, 2010, Cne of Saint-Pal-de-Mons), which distinguishes it from the rating or evaluation method, which is supposed to be neutral. However, when an element of assessment is devoid of any link with the award criterion, there is in reality use, by the granting authority, of a hidden sub-criterion. Consequently, the question of the reality of the link between element of assessment and criterion of attribution is, in our opinion, more a question of legal qualification than of irregularity.

 

The second observation is that, in the same way as with regard to the regularity of the rating method itself, the summary judge carries out a limited control. It must only verify that the elements of assessment are not devoid of any link with the criterion that they purport to evaluate, the Council of State carrying out a review of the error of law in cassation.

 

In the present case, to conclude, the taking into account, as elements of assessment, of the forecast amount of royalties, itself dependent on the forecast turnover, was not devoid of any link with the criterion of the quality and consistency of the offers on a financial level.