Calcul des préjudices subis pour les marchés à bons de commande avec et sans minimum

Calculation of damages suffered for contracts with purchase orders with and without minimums

by Sébastien Palmier on November 10, 2018 | Category: Public markets
Calcul des préjudices subis pour les marchés à bons de commande avec et sans minimum Calcul des préjudices subis pour les marchés à bons de commande avec et sans minimum

CE October 10, 2018, Doctor Dr Jacques Franc, req.no. 410501

 If the holder of a contract terminated improperly can claim compensation for the loss of the net profit of which he has been deprived, it is for him to establish the reality of the damage. This judgment provides an opportunity to determine the terms of compensation for damages suffered in the case of a contract with purchase orders they include a minimum value or quantity or not.

Teaching # 1: How to determine the harm suffered in the purchase order markets?

In a judgment dated October 10, 2018, sté Dr Jacques Franc, the State Council has just considered that in the event of a market with orders irregularly terminated which has a minimum in value or quantity, the loss of profits is certain in respect of this guaranteed minimum.

The Council of State nevertheless takes care to specify that this rule concerns only the hypothesis where the holder is not able to establish the reality of its prejudices beyond the minimum.

If that is the case, then the Council of State establishes as a rule of principle that the holder is entitled to compensation for all the damage he has come to establish the reality "3. Considering that if the holder of an irregularly terminated contract can claim compensation for the loss of the net profit of which he has been deprived, he has to establish the reality of this prejudice. ; whereas in the case of a contract with purchase orders whose contractual documents provide for a minimum in value or quantity, the loss of profits is only certain if it relates to this guaranteed minimum.

To put it another way:

  • In the event of a market with irregularly terminated purchase orders containing a minimum in value or quantity : the holder is entitled to claim " at least »The lack in gain calculated on the basis of the guaranteed minimum since this minimum makes it possible to establish the reality of the prejudices.
  • Assuming a contract with irregularly terminated purchase orders that does not include a minimum in value or quantity : the owner has the right to claim the loss of all the damages suffered as soon as, as indicated by the Council of State, he is able to establish the reality of his prejudices. That way, that its prejudices can present a certain character.


This rule of law laid down by the Council of State therefore applies to all markets with good orders with and without a minimum. It is also intended to apply to candidates who have been excluded from a procedure for awarding a public contract.

Teaching 2: the documents and information used by the administrative judge to determine the damages suffered

The Conseil d'Etat considers that in order to establish the net margin rate, the administrative judge is entitled to refer to the results of the four financial years preceding the termination of the contract. The administrative judge also admits that the attestation drawn up by an auditor or an accountant is a serious and reliable translation of the applicant's accounting records to establish the reality of the damages suffered (CE 31 July 2009, Mr Xavier A, req.no 290971- CAA Nancy, November 28, 2013, public office Metz Habitat Territory, Req No 13NC00967


Board of state
No.
410501
Reading of Monday, October 10, 2018
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

 

  1. Considering that it appears from the documents in the file submitted to the judges of the merits that, by a contract with purchase orders signed on March 1, 2010, the hospital center of Vendôme has entrusted to the company of Dr. Jacques Franc the interpretation of the X-rays taken within the hospital on prescription of the practitioners of it; that, by a decision of March 17, 2011, the hospital center terminated this contract at the expense and risk of the applicant company on the ground that it would have missed several of its contractual obligations; that, by a judgment before right say of the 14 February 2013, the administrative court of Orléans judged irregular this termination; that, by a second judgment of February 26, 2015, the same court sentenced the hospital center Vendome to pay the company the sum of 94 422 euros for loss of earnings suffered as a result of the termination; that, by a judgment of March 15, 2017 against which the company appealed in cassation, the administrative court of appeal of Nantes increased this sum of 3 000 euros and rejected the surplus conclusions of appeal of this company;
  2. Considering, firstly, that under Article 77 of the Public Procurement Code, then applicable: "I. - A contract with purchase orders is a contract concluded with one or more economic operators and executed as and when measurement of the issuance of purchase orders. (...) / In this market the contracting authority has the power to provide a minimum and a maximum in value or quantity, or a minimum, or a maximum, or to be concluded without minimum or maximum./ The issue of purchase orders shall be carried out without negotiation or prior call for competition from the holders, in accordance with the terms and conditions expressly provided for in the contract. / (...) III. - For occasional small-scale needs, the contracting authority may turn to a service provider other than the market owner (s) (...). The use of this possibility does not dispense the contracting authority from fulfilling its commitment to place orders up to the minimum amount of the contract when it is foreseen ";
  3. Considering that if the holder of a contract terminated irregularly can claim compensation for the loss of the net profit of which he was deprived, it is his responsibility to establish the reality of this prejudice; that in the case of a contract with purchase orders whose contractual documents provide for a minimum in value or quantity, the loss of profits is only certain in that it relates to this guaranteed minimum;
  4. Considering that it appears from the documents in the file submitted to the judges of the merits that the contract in dispute was a contract with purchase orders whose contractual documents provided that its amount would be between a minimum annual value of 200,000 euros and a maximum value of 400,000 euros; that, consequently, based on the minimum amount of orders thus guaranteed to evaluate the shortfall of which the co-contracting company was deprived as a result of the irregular termination of the contract in dispute, the Nantes Administrative Court of Appeal does not did not err in law;
  5. Considering, secondly, that the calculation of the profit being effected by subtracting the total of the proceeds from all the charges, the court did not err in law in holding that the margin rate had to be determined in taking into account not only the variable expenses of the company but also its fixed charges;
  6. Considering, lastly, that the court did not further tarnish its judgment of error of law by referring to the net results of the four fiscal years preceding the termination of the disputed market in order to evaluate the average markup rate of the applicant company;
  7. Whereas it follows from all the foregoing that the appeal of Dr. Jacques Franc's company must be dismissed;
  8. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of a sum in this respect to the hospital center of Vendôme, which is not, in the this proceeding, the losing party; whereas, on the other hand, in the circumstances of this case, the sum of 3 000 euros to be paid to the hospital center under the same provisions should be charged to Dr Jacques Franc's company;

DECIDE:

Article 1: The appeal of Dr. Jacques Franc's company is dismissed.
Article 2: Dr. Jacques Franc's company will pay a sum of 3,000 euros to the hospital center of Vendôme under article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the company of Dr. Jacques Franc and hospital Vendome.


Summary :  If the holder of a contract terminated improperly can claim compensation for the loss of the net profit of which he has been deprived, it is for him to establish the reality of the damage. In the case of a contract with purchase orders whose contractual documents provide for a minimum in value or quantity, the loss of profits is only certain in that it relates to this guaranteed minimum.