Irregular eviction of a public contract and compensation for the damage suffered: the irregularity must be the direct cause of the prejudice suffered
The Council of State indicates the reading pattern that the administrative judge must retain when an unsuccessful candidate seeks compensation for the damage he believes he has suffered as a result of his eviction.
When an unsuccessful candidate claims compensation for the damage he believes he has suffered as a result of the irregularity which, in his opinion, has affected the procedure leading to his removal, it is for the judge, if that irregularity is established, to verify is the direct cause of the candidate's ouster and, as a result, that there is a direct causal link between the resulting fault and the loss of which the unsuccessful candidate seeks compensation.
Rule n ° 1:
When an unsuccessful candidate seeks compensation for the damage which he considers he has suffered as a result of the irregularity which, in his opinion, affected the proceedings which led to his removal, it is for the judge to verify, on the one hand, whether that irregularity is established.
Rule n ° 2:
The irregularity found must then be the direct cause of the eviction of the ousted candidate who seeks compensation for the damage suffered.
Rule n ° 3:
There must be a direct causal link between the fault committed by the contracting authority and the damage for which the applicant seeks compensation.
The contracting authority which has not requested details of an offer of less than the amount suspected of being abnormally low is guilty of an irregularity on the basis of equality between the candidates. However, that irregularity is not in itself sufficient to establish the correctness of the compensation for the loss claimed by the unsuccessful candidate. To obtain compensation, this irregularity must indeed be the direct cause of the eviction.
Practical advice :
- If you are a contracting authority In case of suspicion of an abnormally low offer, always ask the candidate in writing for an explanation of his offer. You must be able to check the economic viability of the company so as not to compromise the proper performance of the services of the market. An offer considered abnormally low is not necessarily an offer too low financially: it may be before an offer "incoherent" (ex: it is not possible to achieve the desired service at such a rate or for such number of hours…). The candidate can not limit himself to confirming his prize based on his experience, the economic context, or to announce his status as outgoing. In the case of a claim for compensation for alleged unlawful eviction by a candidate, check whether there is a direct link between the fault committed and the injury.
- If you are a candidate : If you think you have been improperly evicted, be able to prove first, the irregularity and then, that this is the cause.
Board of state
ECLI: FR: CESJS: 2014: 374462.20141015
Unpublished at Lebon collection
Mrs Charline Nicolas, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP DIDIER, PINET; BOUTHORS, lawyer (s)
read on wednesday 15 october 2014
IN THE NAME OF THE FRENCH PEOPLE
Considering the summary appeal and the complementary memorandum, registered on January 7 and April 8, 2014 to the litigation secretariat of the Council of State, presented for the inter-communal syndicate of wastewater collection and treatment (SICTEU) of the region of Soultz-sous -Forest, whose seat is 14 rue des Eglises in Hoffen (67250); the SICTEU of the region of Soultz-sous-Forêts asks the Council of State:
1 °) to cancel the judgment n ° 12NC01498 of November 7th, 2013 by which the administrative court of appeal of Nancy has, on the request of the company TST-Robotics, first, canceled the judgment n ° 0702508 of the 6 July 2012 by which the Administrative Court of Strasbourg rejected his request for the conviction of the SICTEU of the region of Soultz-sous-Forêts to pay him, following his improper eviction during the award of a public contract, mainly , an amount of EUR 62 941 corresponding to the loss of earnings which it has suffered or, in the alternative, EUR 2 313.16 corresponding to the costs incurred to present its tender, these sums bearing interest at the legal rate as from May 16, 2007 and these interests being capitalized from May 16, 2008, and, secondly, sentenced the SICTEU of the region of Soultz-sous-Forêts to pay the company TST-Robotics the sum of 10 000 euros with interests at legal rate starting May 16th 2007, interest accrued on May 16, 2008 being capitalized on that date as well as on each annual maturity from that date to produce their own interests;
2 °) settling the case on the merits, to dismiss the TST-Robotics appeal request
3 °) to charge the company TST-Robotics the payment of the sum of 6 000 euros under Article L. 761-1 code administrative justice;
Considering the other parts of the file;
Given the code of public contracts;
Considering the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Didier, Pinet, lawyer of the intermunicipal syndicate of wastewater collection and treatment of the region of Soultz-sous-Forêts, and to Me Bouthors, lawyer of the company TST-Robotics;
1. Considering that it appears from the documents in the file submitted to the judge of the bottom that by a notice of public call published on January 19, 2007, the union intermunicipal collection and wastewater treatment (SICTEU) of the region de Soultz-sous-Forêts has opened a negotiated procedure for awarding a works contract "General Sanitation - Multiannual Plan - 2007 Program"; that the SICTEU of the region of Soultz-sous-Forêts appeals in cassation against the judgment of November 7, 2013 by which the administrative court of appeal of Nancy condemned him to pay the company TST-Robotics the sum of 10 000 euros with interest at the legal rate from May 16, 2007 in compensation for the damage suffered as a result of its illegal eviction from the disputed market, attributed to Phoenix;
2. Considering that when a candidate for the award of a public contract seeks compensation for the damage which he considers he has suffered as a result of the irregularity which, in his opinion, affected the proceedings which led to his removal, he to the judge, if this irregularity is established, to verify what is the direct cause of the eviction of the candidate and, consequently, that there is a direct link of causality between the resultant fault and the damage which the candidate requests the compensation;
3. Considering that the Administrative Court of Appeal of Nancy noted that it resulted from the instruction that the procedure of award of the lot n ° 1 of the market had disregarded the principle of equal treatment of the candidates for the attribution of a public contract for failure by the contracting authority and the contractor to have requested, pursuant to Article 55 of the Code des Marches Publics, justifications from Phoenix on the amount of the price quoted, in its latest offer, even though this new price was lower than the price quoted in TST-Robotics' first offer, and which had itself been the subject of a request for justification pursuant to these provisions; that, however, that this illegality was directly at the origin of a serious loss of chance by the TST-Robotics company to obtain the market even though its offer was, according to its statements, the most advantageous before the negotiation having allowed the successful tenderer to lower his prices, the court erred in legal qualification;
4. Considering that it follows from the foregoing, without it being necessary to consider the other grounds of his appeal, that the SICTEU of the region of Soultz-sous-Forêts is entitled to request the annulment of the judgment under appeal;
5. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to SICTEU in the region of Soultz-sous-Forêts which does not is not, in this proceeding, the losing party; whereas, on the other hand, TST-Robotics should be charged the sum of EUR 3,500 for the costs incurred by the SICTEU in the Soultz-sous-Forêts region and not included in the costs , pursuant to the provisions of Article L. 761-1 of the Administrative Justice Code;
Article 1: The judgment of 7 November 2013 of the Administrative Court of Appeal of Nancy is annulled.
Article 2: The case is referred to the Administrative Court of Appeal of Nancy.
Article 3: The company TST-Robotics will pay a sum of 3 500 euros to the SICTEU of the region of Soultz-sous-Forêts in application of article L. 761-1 code administrative justice.
Article 4: The conclusions of the company TST-Robotics presented under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the intermunicipal syndicate of sewage collection and treatment of the region of Soultz-sous-Forêts and the company TST-Robotics.