Public procurement: non-discriminatory criteria

According to what modalities and limits could a geographical criterion be inserted in a public contract?

Article R. 2152-7 of the Code de la Commande Publique states that: "in order to award the public contract to the tenderer or, where appropriate, to the tenderers who have submitted the most economically advantageous offer, the purchaser shall rely on :

• Either on a single criterion which may be:
  1. The cost
  2. Le coût
• Either a plurality of non-discriminatory criteria linked to the subject matter of the public contract or its conditions of performance within the meaning of Article 38 of the Order of 23 July 2015, including the price or cost criterion and one or more other criteria including qualitative, environmental or social aspects (...)".

Either a plurality of non-discriminatory criteria linked to the subject matter of the public contract or its conditions of performance within the meaning of Article 38 of the Order of 23 July 2015, including the price or cost criterion and one or more other criteria including qualitative, environmental or social aspects (...)".

Moreover, the Conseil d'Etat (CE), in a judgment of 12 September 2018, Département de la Haute-Garonne, req. n°420585 2018 published in the Lebon case, reaffirmed the irregularity of a criterion of the geographical location with regard to its discriminatory effects.

Indeed, in this case, in order to take account of the cost of travel (provided for in the specifications) between the geographical location of the candidate bookshops and the departmental media library, the Department of Haute-Garonne inserted a criterion relating to travel expenses based exclusively on distance.

This in fact corresponds to a geographical criterion, favouring the closest candidates and restricting the possibility for the furthest candidates to be selected by the contracting authority.

Nevertheless, the CE acknowledged that it was "open to the department of Haute-Garonne to provide for a monthly consultation, by the agents of the media library, of the funds on the premises of the contract holder and, consequently, to adopt a criterion for the selection of tenders which takes into account the cost of such travel".

However, the criterion laid down in the present case did not make it possible to effectively value the offer representing the lowest travel costs.

Indeed, the Public Rapporteur indicated that the Department should not have limited this criterion to the calculation of the route between the premises of the candidate bookshop and the media library only, as other elements could have been taken into account.

Therefore, of all the above, it would be appropriate for the buyer to include two clauses in its Cloud/server contract, instead of establishing award criteria that might conflict with the abovementioned principles.

➢ A clause in the CCTP recalling that in accordance with the General Data Protection Regulations (GDPR) 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (repealing Directive 95/46/EC General Data Protection Regulations)

• The controller or processor should adopt solutions which guarantee data subjects effective and enforceable rights with regard to the processing of their data within the Union once the data have been transferred, so that they continue to enjoy fundamental rights and guarantees ;
• the controller or processor should adopt (and present) solutions that ensure compliance with the safeguards of the DPMR, where data are processed in countries recognised by the European Commission as having an adequate level of protection;
• that the Datacenter should not be located in a geographical area outside the EU.

➢ IIn the event that the CCTP does not integrate the c) of the previous clause, as well as in the event that it does. A clause should be included in the CCAP relating to the assumption of the cost of an audit ordered by the purchaser and borne by the holder. This clause would define the terms and conditions for the payment of the costs incurred by the contractor.