Précision sur l'évaluation du manque à gagner d'un candidat irrégulièrement évincé d'une procédure de passation d'un marché public

Clarification on the assessment of the shortfall of a candidate improperly removed from a procurement procedure

by gmorales 22 March 2015 | Category: Public markets
Précision sur l'évaluation du manque à gagner d'un candidat irrégulièrement évincé d'une procédure de passation d'un marché public Précision sur l'évaluation du manque à gagner d'un candidat irrégulièrement évincé d'une procédure de passation d'un marché public

Précision sur l'évaluation du manque à gagner d'un candidat irrégulièrement évincé d'une procédure de passation d'un marché public Rule n ° 1:

When a company applying for the award of a public contract seeks compensation for the damage resulting from its unlawful eviction from the latter, it is up to the judge to check first whether or not the company has no chance of winning. this market. If so, the company is not entitled to any compensation. If not, she is entitled, in principle, to reimbursement of the costs she incurred to present her offer.

The judge must then investigate whether the company had a serious chance of winning the contract. If this is the case, the company is then entitled to compensation for its shortfall, including necessarily, since they were included in its expenses, the costs of presentation of the offer that do not have to do the object, unless otherwise specified in the contract, of a specific compensation (CE 18 June 2003, Group of solidarity companies ETPO Guadeloupe, Biwater Company and Aqua TP Company, Req.No. 249630, CE 8th February 2010, Municipality of La Rochelle, req.n ° 314075).

In the end, the company applying for the award of a public contract which was improperly evicted from a public contract had a serious chance of being entitled to compensation for its shortfall. On the other hand, the person who was not without any chance of winning the contract is simply entitled to reimbursement of the costs of presenting his tender (time spent preparing the application file, drawing up the tender, possible transport costs in case negotiation, various expenses of sending the file etc ...).

To determine or place the cursor, it is up to the judge, once the irregularity is established, to verify that it is the direct cause of the candidate's ouster and, consequently, that there is a direct causal link between the resulting fault and the damage for which the claimant seeks compensation.

Rule n ° 2:

This shortfall must be determined by taking into account the net profit that this contract would have provided to the company. The indemnity payable in this respect, which is not the counterpart of the loss of an asset but is intended to offset a loss of commercial revenue, should be regarded as a profit in the period in which it was incurred. been allocated and, as such, subject to corporation tax. As a result, the Council of State considers that the shortfall must be calculated from the net profit without deduction of corporation tax.

Observations:

In this case, the company that had serious chances of winning the contract challenged the judgment of the Marseilles Administrative Court of Appeal in so far as it reduced its loss to 23,817.91 euros considering that its shortfall was due to calculated from its operating profit, after deduction of corporation tax. However, the Council of State censures this position for error of law. It states that "[...] this shortfall must be determined by taking into account the net profit that this contract would have provided to the company; compensation payable in this respect, which does not constitute consideration for the loss of an asset but is intended to offset a loss of commercial revenue, should be regarded as a profit in the period in which it is has been allocated and, as such, subject to corporation tax ". In other words, the shortfall must be calculated from net profit without deduction of corporation tax.

Tips

To have a chance to be compensated for the shortfall, it is strongly recommended to build a damage file from its cost accounting. This document must be certified by your Statutory Auditor and produced in the context of the proceeding. Moreover, it is advisable to propose to the administrative judge to order an expert opinion if he considers that the supporting documents provided do not seem to him sufficient to establish the amount of the damage. In doing so, the judge can not dismiss the claim for compensation after a stereotype motivation that the applicant company does not produce any relevant document establishing the reality of its prejudice. In this case indeed, the usefulness of the expertise will prevail and failing that the judgment will be tainted with error of law.

Board of state

N ° 384653
Mentioned in the tables of Lebon collection
7th and 2nd subsections combined
Mr François Lelièvre, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP ROCHETEAU, UZAN-SARANO, lawyer (s)

Reading of Monday, January 19th, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the appeal, registered on 22 September 2014 to the litigation secretariat of the Conseil d'Etat, presented for the company Spie Est, whose head office is 2 route de Lingolsheim in Geispolsheim (67118); the society Spie Est asks the Council of State:

1 °) to cancel the judgment n ° 13NC01775 of July 25th, 2014 as the administrative court of appeal of Nancy reduced to the sum of 23,817,81 euros the amount that the Public Office of the habitat (OPH) of Thionville had been ordered to pay him for his illegal eviction from a market by the judgment No. 0906004 of 3 July 2013 of the Administrative Court of Strasbourg;

2 °) settling the case on the merits, to reject the appeal of the OPH Thionville;

3 °) to charge the DPO Thionville payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice;

Considering the other parts of the file;
Given the general tax code;
View the code of public contracts;
Considering the code of administrative justice;

After hearing in open session:

- the report of Mr François Lelièvre, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Rocheteau, Uzan-Sarano, lawyer of the company Spie Est;

1. Considering that the company Spie Est seeks the cancellation of the judgment of 25 July 2014 of the Administrative Court of Appeal of Nancy as it reduced to 23,817,81 euros the sum that the Public Office of the habitat (OPH) of Thionville was condemned to pay him by judgment of 3 July 2013 of the Administrative Court of Strasbourg in compensation for the loss of profit following its illegal eviction from a market relating to the operation of heating installations collective;

2. Considering that the company applying for the award of a public contract which has been improperly evicted from this contract which it had a serious chance of winning is entitled to compensation for its loss of profits; that this shortfall must be determined by taking into account the net profit that this contract would have provided to the company; compensation payable in this respect, which does not constitute consideration for the loss of an asset but is intended to offset a loss of commercial revenue, should be regarded as a profit in the period in which it is has been allocated and, as such, subject to corporation tax;

3. Considering that it follows that in considering that it was appropriate to evaluate the shortfall of the company Spie Est from its operating profit, after deduction of the corporation tax, the court Nancy's administrative appeal system tainted her mistake of law judgment; that, therefore, the company Spie Est is justified, without it being necessary to examine the other grounds of the appeal, to request the annulment of the judgment under appeal as it has reformed the judgment of the Administrative Court of Strasbourg ;

4. Considering that it is appropriate, in the circumstances of the case, to apply the provisions of Article L. 761-1 code administrative justice and to charge the OPH Thionville the EUR 3 000 in respect of the costs incurred and not included in the costs;

DECIDE:
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Article 1: The judgment of 25 July 2014 of the Administrative Court of Appeal of Nancy is canceled in so far as it reduced to 23,817.81 euros the amount that the public housing office (OPH) of Thionville was ordered to pay him by judgment of 3 July 2013 of the Administrative Court of Strasbourg.
Article 2: The case is remitted, to the extent of the cassation pronounced, to the Administrative Court of Appeal of Nancy.
Article 3: The OPH Thionville will pay the company Spie Est the sum of 3 000 euros pursuant to Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the company Spie Est and the public housing office of Thionville.

Summary :

The company applying for the award of a public contract which has been improperly evicted from this market that it had a serious chance of winning is entitled to compensation for its shortfall. This shortfall must be determined by taking into account the net profit that this contract would have provided to the company. The indemnity payable in this respect, which is not the counterpart of the loss of an asset but is intended to offset a loss of commercial revenue, should be regarded as a profit in the period in which it was incurred. been allocated and, as such, subject to corporation tax. As a result, an error of law is made by the Administrative Court of Appeal, which assesses the loss of earnings of the unsuccessful candidate from the operating profit after deduction of corporation tax.

The company applying for the award of a public contract which has been improperly evicted from this market that it had a serious chance of winning is entitled to compensation for its shortfall. This shortfall must be determined by taking into account the net profit that this contract would have provided to the company. The indemnity payable in this respect, which is not the counterpart of the loss of an asset but is intended to offset a loss of commercial revenue, should be regarded as a profit in the period in which it was incurred. been allocated and, as such, subject to corporation tax. As a result, an error of law is made by the Administrative Court of Appeal, which assesses the loss of earnings of the unsuccessful candidate from the operating profit after deduction of corporation tax.