Unsuccessful candidates: compensation for damages that have a direct causal link with irregular eviction
The State Council lays down the rule that when a candidate for the award of a public contract seeks compensation for the damage which he considers to have suffered as a result of the irregularity which, in his opinion, affected the procedure which led to if it is removed, it is for the judge, if this irregularity is established, to verify that there is a direct causal link between the resulting fault and the damage for which the plaintiff seeks compensation.
In its judgment of 19 November 2018, the Council of State states that the judge must verify that
- On the one hand, the irregularity invoked is the direct cause of the eviction of the ousted
- On the other hand, that there is a direct causal link between the resulting fault and the damage the claimant seeks compensation for
Recital 5 of the judgment summarizes the rule made by the Conseil d'Etat: Where an irregularity affecting the award procedure is established, it is for the judge, seized by a candidate to award the contract at issue, to check whether the irregularity may have had an effect on the fate of that candidate. to determine whether there is a direct causal link between the fault resulting from the irregularity and the damage alleged by the irregularity "
In the present case, the Conseil d'Etat considers that the simple fact that the applicant company was able to submit an offer is not sufficient to rule out the existence of a direct link between the irregularity of the procurement procedure. and the resulting loss of profit.
To note, that in a stop of the State Council, July 10, 2013, Compagnie Martinique de Transports No. 362777, the Council of State had already adopted this solution by stating that the irregularity should be "the direct cause of the eviction of the candidate".
CE 19 November 2018
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 notice of competition published on July 6, 2012, the community of the agglomeration of Le Havre (CODAH) launched a competitive dialogue procedure , with a view to concluding a works contract for the renovation of part of the aquatic complex known as the "Dock Baths"; that at the end of this procedure, the contract was awarded to SOGEA Nord-Ouest TP; SNIDARO, a member of a group which had been admitted to submit an offer, asked the Rouen Administrative Court to cancel this contract and to order CODAH to pay him the sum of 2 030 972,76 inclusive of taxes. for his loss of earnings and 6,452.42 euros for the costs of presenting his tender; that, by a judgment of June 23, 2015, the administrative court of Rouen canceled the market but rejected the surplus conclusions of the request; that, by a judgment of May 24, 2017, the administrative court of appeal of Douai rejected the appeal formed by the company SNIDARO against this judgment in so far as it rejects its conclusions compensators, as well as the incidental appeal formed by the CODAH against this judgment as it cancels the market; that the company SNIDARO appeals in cassation against this judgment insofar as it rejected his request for appeal; that, by way of cross-appeal, CODAH is appealing against this judgment in so far as it dismissed the conclusions of its cross-appeal;
On the cross-appeal brought by CODAH:
2. Considering that under Article 36 of the then applicable Code of Public Contracts: "The competitive dialogue procedure is a procedure in which the contracting authority conducts a dialogue with the candidates admitted to participate in order to define or develop one or more solutions to meet its needs and on the basis of which the participants in the dialogue will be invited to submit an offer. / Recourse to the competitive dialogue procedure is possible when a public contract is considered as complex, ie when at least one of the following conditions is met: / 1 ° The contracting authority is not objectively not able to define alone and in advance the technical means that can meet his needs; / 2 ° The contracting authority is objectively unable to establish the legal or financial structure of a project ";
3. Considering that it appears from the documents in the file submitted to the judges of the merits that, in order to maintain that it could legally resort to the competitive dialogue procedure, CODAH relied on the fact that, in this case, the condition mentioned in 1 ° of Article 36 of the Code des Marches Publics; that however, the court, which has supremely noted, without misrepresenting the documents in the file, that the market litigious covered the recovery of disorders not presenting an unusual character for equipment of this type, did not tainted inaccurate qualification judgment that the uncertainties as to how best to remedy them were not such that CODAH could be regarded as not being in a position to define, on its own, in advance the technical means capable of meeting its the information available or available to it on the date on which it had decided to award the contract, and that, as a result, the condition to use the competitive dialogue procedure was not filled; that thus, the CODAH's cross-appeal must be dismissed;
On the main appeal brought by SNIDARO:
4. Considering that when a candidate for the award of a contract seeks compensation for the damage which he considers he has suffered as a result of the irregularity which, in his opinion, affected the procedure for the awarding of the contract, he shall judge, if this irregularity is established, to verify that there is a direct causal link between the resulting fault and the damages for which the applicant seeks compensation; that where the irregularity affecting the award procedure is not capable of having affected the fate of the candidate, there can be no direct causal link between the misconduct resulting from the irregularity and the damage alleged by the applicant on the ground of his eviction; that his claim for compensation for the alleged damages can then be dismissed;
5. Considering that it emerges from the statements in the judgment under appeal that, in order to find that SNIDARO was not justified in claiming compensation for the damage which it considered to have suffered, the Douai Administrative Court of Appeal pointed out that that, to the extent that that company had submitted a final offer in the framework of the procurement procedure, the irregularity which affected that procurement procedure could not be regarded as the direct cause of its removal; whereas, however, as has just been said, where an irregularity affecting the award procedure is established, it is for the judge, seized by a candidate to award the contract at issue, to check whether the irregularity may have had an effect on the fate of that candidate in order to to determine whether there is a direct causal link between the fault resulting from the irregularity and the damage alleged by the irregularity ; it follows from this that by refraining from verifying whether the unlawful recourse by CODAH to the competitive dialogue procedure was likely to have had an impact on the eviction of the grouping of which SNIDARO was a member, the court erred in law;
6. Whereas it follows from the foregoing, and without it being necessary to examine the other ground of appeal, that SNIDARO is justified in seeking the annulment of the judgment under appeal in so far as it dismissed his appeal;
The conclusions submitted under the provisions of Article L. 761-1 of the Administrative Justice Code:
7. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to SNIDARO, which is not, in the present case the losing party; on the other hand, in the circumstances of this case, it is incumbent on CODAH to pay the sum of € 3,500 to SNIDARO for this purpose;
Article 1: The judgment of 24 May 2017 of the Douai Administrative Court of Appeal is set aside.
Article 2: The case is referred to this extent to the Douai Administrative Court of Appeal.
Article 3: The cross-appeal of the CODAH is dismissed.
Article 4: The CODAH will pay a sum of 3 500 euros to the company SNIDARO under Article L. 761-1 code administrative justice. The findings presented by CODAH under the same provisions are rejected.