Unilateral amendment of the penalty system after the choice of the holder invalidates the market
CE 1st July 2015, OPH Loire Atlantique, req.n ° 384209
The unilateral amendment of the penalty system by the contracting authority after the choice of the contract holder affects a substantial part of the offer.
Having regard to its effects on the equilibrium of the contract, such a modification constitutes a defect of a particularly serious nature such as vitiating the consent of the contracting party and justifying the nullity of the contract.
Rule to remember:
A contracting authority may not modify a substantial element of the tender after the choice of the contract holder, as soon as it is irregular.
In this case, by a contract signed in October 2008, after a competitive dialogue procedure, Aareon France undertook to provide the Public Housing Office of Loire-Atlantique with a rental fleet management software package. , to assist in the use of this software package and to maintain it for five years. The delay in regard to the schedule of execution and the malfunctions noted had then led the DPO to terminate the contract to the exclusive wrongs of its co-contractor and to establish accordingly a settlement of liquidation of the market whose balance was debited from society because of the heavy penalties of delay. The Council of State rejects the application of the penalties on the grounds that the method of calculation of the penalties of delay and the modalities of their release were modified unilaterally after the award of the market to the holder without this one can not to oppose it.
Attention: a public purchaser can not modify a substantial element of the offer during the finalization of the contract or after signature and the notification thereof without the express consent of his co-contractor. Even in the latter case, the amendment is prohibited if it relates to a substantial element of the offer that if it was known by the other candidates could have changed the game of the auction.
Board of state
Reading of the Wednesday, July 1, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Previous litigation procedure:
The Aareon France company has asked the Nantes Administrative Court to order the Loire-Atlantique Public Housing Agency to pay it the sum of 367,550.60 euros for the financial consequences of the termination of the contract relating to the acquisition of the Prem'Habitat software package and the sum of € 879,993.37 in respect of non-pecuniary and commercial damage and damage to its image.
The Public Housing Office of Loire-Atlantique for its part asked the Administrative Court of Nantes to condemn the company Aareon France to pay him a sum of 6 458 546,29 euros for the balance of the market litigious.
By a judgment n ° s 1006438, 1103622, 1206242, 1206375 of July 19, 2013, the tribunal administratif of Nantes, in the first place, made note to the company Aareon France of the discontinuation of proceedings of its conclusions tending to the cancellation of the decision dated 10 November 2010 whereby the Loire-Atlantique Public Housing Office terminated the contract relating to the acquisition of the Prem'Habitat integrated management software package, and secondly, sentenced Aareon France to pay the Public Housing Office of Loire-Atlantique a sum of EUR 3 402 950.69 in respect of the balance of the disputed contract, third, put the costs of appraisal, in equal parts, at the expense of the company Aareon and the Public Housing Office of Loire Atlantique, last, rejected the surplus conclusions of the company Aareon France and the Public Housing Office of Loire-Atlantique.
Aareon France has appealed this judgment.
In a judgment no. 13NT02676, 13NT02711 of 4 July 2014, the Nantes Administrative Court of Appeal first annulled Articles 2 to 8 of the judgment of the Administrative Court of Nantes, secondly, Loire Atlantique Public Housing Office for the withdrawal of its claims for the direct payment by Axa France Iard of the convictions handed down against Aareon France, thirdly, dismissed as having been brought before a court lacking jurisdiction to to know the conclusions of the company Aareon France that the company Axa France Iard is condemned to guarantee the convictions pronounced against him, fourth, pronounced a case not to rule on the conclusions of the company Aareon France directed Fifth, against the liquidation of the market, the claims for payment and compensation submitted by Aareon France against the Habitat 44 Board and the claims presented by the latter against Aareon France and, sixthly, the costs of appraisal, in equal parts, company Aareon France and the Public Housing Office of Loire-Atlantique.
Procedure before the Council of State:
By a summary appeal, a supplementary memorial and a reply, registered on 4 September, 4 December 2014 and 8 April 2015 to the litigation secretariat of the Conseil d'Etat, the Loire-Atlantique Public Housing Office requests the Board of state :
1 °) to annul this judgment;
2 °) settling the case on the merits, to grant his conclusions of appeal;
3 °) to charge the company Aareon France the payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Piwnica, Molinié, lawyer of the Public Office of the habitat of Loire-Atlantique, and to the SCP of Nervo, Poupet, lawyer of the company Aareon France;
1. Considering that it appears from the documents in the file submitted to the judges merits that, by a contract signed in October 2008, after a procedure of competitive dialogue, the company Aareon France undertook to provide the Public Office with the habitat of Loire-Atlantique (OPH) a rental fleet management software package, called "Prem'Habitat", to assist in the use of this software package and to maintain it for five years; that the delay in regard to the timetable of execution annexed to the act of engagement and malfunctions noted have led the office to terminate the contract to the exclusive wrongs of his co-contractor and to establish accordingly a settlement of liquidation of the market of which the balance has been debited from the company; that, ruling on the requests of the parties to this contract, the tribunal administratif de Nantes, by a judgment of 19 July 2013, sentenced the company Aareon France to pay to the OPH the sum of 3 402 950.69 euros under the market balance; that the office seeks the annulment of the judgment of 4 July 2014 of the Administrative Court of Appeal of Nantes in so far as it cancels the judgment of the Administrative Court of Nantes on this point and rejects its claims compensators;
2. Considering, on the one hand, that when the parties submit to the judge a dispute relating to the performance of the contract which binds them, it is in principle incumbent upon him, having regard to the requirement of loyalty of the contractual relations, to enforce the contract; that, however, in the case only where it notes an irregularity invoked by a party or relieved of its own motion by him, relating to the unlawful nature of the contract or to a defect of a particularly serious gravity, in particular as regards the conditions under which the parties have given their consent, it must dismiss the contract and can not settle the dispute on the contractual ground;
3. Considering that, in rejecting the conclusions of the Public Housing Office of Loire-Atlantique, the Nantes Administrative Court of Appeal first noted that Article 9 of the contract relating to penalties for late payment had been amended, after the choice of the contract holder, the latter's sending of the contract and the beginning of the performance of the services, in July 2008; that it then considered that in view of both the purpose of this amendment, which consisted of a change in the method of calculating late penalties and the modalities for triggering their application, and its financial consequences, that it regarded as serious and unavoidable, a substantial element of the offer of the company, within the meaning of the provisions of VIII of Article 67 of the Code des Marches Publics, had been modified; that having considered that the company Aareon France had been constrained to accept this modification, she deduced that the consent of the company had been vitiated, that the contract had to be dismissed and that the dispute could not be settled on the contractual field ; that, having noted that the indemnity claims of the DPO were based exclusively on the stipulations of the contract, they rejected them;
4. Considering that it is by a sovereign appreciation free from denaturing that in support of the assertion that the application of strong penalties of delay on the basis of the modified Article 9 was inescapable, the Administrative Court of Nantes' appeal pointed out that the competitive dialogue procedure had been launched late by the DPO, that it had imposed on its co-contractor very short deadlines for the supply of services and that the implementation of a software package of the the type of person involved is accompanied by malfunctions during the first six months, which are not abnormal; that the court did not misrepresent the documents in the file or the stipulations of the contract submitted to it and did not err in law in holding that, having regard to its effects on the economic equilibrium of the contract, the modification of the system of late payment penalties related to the substantial elements of the company's offer, within the meaning of the provisions of VIII of Article 67 of the Code des Marches Publics; that it was without error of law that it found that the company's consent to this amendment and, consequently, to the contract as a whole was flawed and that the dispute could not be settled on the contractual ground;
5. Considering, furthermore, that the court did not disregard the scope of the appeal writings of the DPO and gave sufficient reasons for its judgment in holding that the Office was seeking exclusively the contractual liability of the company Aareon France and presented no claim for indemnity for the useful expenses or compensation for non-contractual fault of the company;
6. Considering that it follows from all the foregoing that the appeal of the Public Housing Office of Loire-Atlantique must be rejected, including its conclusions submitted under the provisions of Article L. 761-1 the administrative justice code; whereas, on the other hand, in the circumstances of this case, the Office should be ordered to pay the sum of EUR 3 000 to Aareon France under the same provisions;
Article 1: The appeal of the Public Housing Office of Loire-Atlantique is rejected.
Article 2: The Public Housing Office of Loire-Atlantique will pay a sum of 3,000 euros to Aareon France under the provisions of Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the Public Housing Office of Loire-Atlantique and Aareon France.