The lack of control of the financial capabilities of a candidate can be very expensive!
In this case, the Council of State recalls the importance for public purchasers to check the financial capacity of the successful tenderer otherwise the contract may incur cancellation.
Teaching n ° 1: Obligation for the public purchaser to control the financial capacities of the prospective beneficiary of the contract
The Council of State has already had the occasion to remind several times that the public purchaser has the obligation to control the professional, technical and financial capacities of the candidates for the award of a public contract (EC 12 November 2015 SAGEM, No. 386578, EC 26 March 2008, Urban Community of Lyon, application No. 303779). In a judgment of March 15, 2019, SAGEM, No. 413584, the State Council also recalled that if the economic operator intends to avail the financial capacity of another economic operator, his application must necessarily contain a commitment formalized of it.
In the event of a challenge to the financial standing of the successful tenderer by an applicant, the public purchaser is required to provide proof that he has actually been able to check his technical and financial capacities as well as the supporting documents. this control (EC 15 March 2019, SAGEM, n ° 413584, CE September 17, 2014, Delta Process Company, req. No. 378722).
These obligations are also binding for all public contracts, public contracts and concessions.
In its judgment of 13 May 2019, the Paris Administrative Court of Appeal considers that, at the date of submission of its tender, the company declared to be awarded the contract did not have sufficient financial guarantees to be awarded the contract on the basis of on the various negative financial statements produced by the applicant. The Court concludes that its tender should have been rejected at the stage of the first envelope in order to respect the equality of the candidates, which has not been done.
In the end, the Paris Administrative Court of Appeal considers that the public purchaser made a manifest error in assessing the financial standing of the company awarded the contract by awarding it the contract and that this error had the effect of directly the interest pursued by the applicant company, placed in second position.
Teaching n ° 2: The absence of control of the financial capacities constitutes a defect of a particular gravity justifying the cancellation of the contract
In its judgment of 13 May 2019, the Paris Administrative Court of Appeal considers that the failure to take into account the financial capacities of the company declared a successful tenderer had a decisive influence in the choice of the successful tenderer and constitutes this is a serious irregularity, such as to undermine the rules of freedom of competition and equal access to the public order imposing the total cancellation of this contract.
However, since the retroactive effect of this annulment is such as to have manifestly excessive consequences, because of the general interest in maintaining the air ambulance evacuation missions of the SAMU, it considers that to postpone the effects of its cancellation on 1 November 2019 to allow CHT Nouméa to restart the canceled procurement procedure.
CAA Paris 13 May 2019, AIR ALIZE, n ° 17PA00023
- The Court of Justice, by judgment n ° 13PA00041 of October 6, 2014, canceled, with effect deferred on October 1, 2015, the market of "Services transports ambulances by air of the SAMU" concluded on March 21, 2011 for a duration of 5 years between the company Air Loyalty and the territorial hospital center (CHT) of Nouméa. The CHT of Nouméa launched a new award procedure for this contract on May 11, 2015. The company Air Alizé submitted an offer on July 3, 2015. The contract was awarded on September 23, 2015 to the outgoing Air Loyalty Company, for a six-year period, starting on October 1, 2015. Air Alizé, an unsuccessful candidate, is appealing the judgment of November 3, 2016, by which the Administrative Court of New Caledonia rejected its request for the cancellation of this new walk.
On the validity of the contract:
- Regardless of the actions available to the parties to an administrative contract and the actions brought before the judge of the excess of power against the statutory clauses of a contract or before the judge of the contractual representative on the basis of Articles L. 551-13 and Code of Administrative Justice, any third party to an administrative contract liable to be prejudiced in his interests in a sufficiently direct and certain manner by its execution or its clauses is admissible to form before the judge of the contract an appeal of unlimited jurisdiction contesting the validity contract or some of its non-statutory clauses that are divisible. This action before the judge of the contract is also open to the members of the deliberative body of the local authority or group of local authorities concerned as well as the representative of the State in the department in the exercise of the control of legality. If the representative of the State in the department and the members of the deliberative body of the local authority or group of local authorities concerned, taking into account the interests in their charge, may invoke any means in support of the appeal thus defined, the other third parties can only invoke vices directly related to the injured interest which they claim or those of a gravity such that the judge should raise them automatically. The third party acting as a competitor who has been excluded from the conclusion of an administrative contract can not, in support of an appeal contesting the validity of the contract, usefully claim, in addition to the defects of public order, that rules applicable to the execution of this contract which are directly related to his eviction.
- According to Article 13-3 of the aforementioned decision of 1 March 1967: "The execution of contracts may be entrusted only to companies having the necessary legal, technical and financial capacities. The administration appreciates these capacities (...) ". Article 5 of the consultation regulation states that: "5. Opening of the first envelope: administrative and technical file (...) c) unacceptable offer: will be considered as unacceptable any offer (...) which shows that the candidate clearly does not have sufficient professional and financial guarantees in relation to the service subject of the contract (...) ".
As a result of the investigation, the financial statements of Air Loyauté have been in serious deficit since the year 2012, these deficits ranging from 2.2 million euros in 2012 and 2013 to 3.8 million euros in 2015. If, in their defense, the respondents argue that the company Air Loyalty held in 2014 important assets in its balance sheet, it appears however in light of the report of the auditor in 2015, that at that date, this company was not its survival only current account contributions paid by its majority shareholder SODIL, which is a mixed economy company, itself deficit, owned by the province of the Loyalty Islands. The director of SODIL attests to the deficit of its subsidiary as of March 31, 2015, indicating that a debt write-off and a capital increase of approximately 60,000,000 CFP francs will be carried out by the end of the year. year. It therefore appears that at the date of submission of its offer, Air Loyauté did not have sufficient financial guarantees to be awarded the contract. Consequently, its tender should have been rejected, pursuant to the aforementioned Article 5 of the Rules of Procedure, at the stage of the first envelope, which has not been done. CHT Nouméa therefore made a manifest error in assessing the financial capacity of the company Air Loyalty by awarding the market, this error having had the effect of directly damage the interest pursued by the company Air Alizé.
On the consequences of operating vice affecting the validity of the contract:
- It is up to the judge, when he finds the existence of defects vitiating the validity of the contract, to appreciate the consequences. It is incumbent upon it, having taken into consideration the nature of these defects, either to decide that the continuation of the performance of the contract is possible, or to invite the parties to take regularization measures within a time limit which it fixes, except to terminate or terminate the contract. In the presence of irregularities which can not be covered by a regularization measure and which do not allow the continuation of the execution of the contract, it is his responsibility to pronounce, if necessary with a delayed effect, after having verified that his decision does not will not cause an excessive breach of the general interest, either the termination of the contract, or if the contract has an unlawful content or if it is affected by a defect of consent or any other defect of a particular gravity that the judge must thus automatically raise the total or partial cancellation of it. Lastly, if it is seised of the case, it may, including when it invites the parties to take regularization measures, grant a claim for compensation for the damage resulting from the infringement of injured rights.
The failure to take into account the financial capacity of the company Air Loyauté, retained in point 4, had a determining influence in the choice of the successful tenderer and constitutes a serious irregularity, likely to undermine the rules of freedom of the competition and equal access to the public order imposing the total cancellation of this contract. However, since the retroactive effect of this annulment is such as to have manifestly excessive consequences, because of the general interest in maintaining the air ambulance evacuation missions of the UAS, the effects must be postponed. its cancellation on 1 November 2019 to allow CHT Nouméa to restart the procedure for awarding the canceled contract.
- It follows from all the foregoing, without it being necessary to rule on the lawfulness of the judgment under appeal, that Air Alizé is justified in maintaining that it is wrong that, by the judgment under appeal, the Administrative Court of New Caledonia rejected its request for the cancellation of the "EMS ambulance transport services" contract.
Article 1: The judgment of the Administrative Court of New Caledonia n ° 1500466 of November 3, 2016 and the market of "Services ambulance transports by air of the SAMU" attributed by the territorial hospital center of Nouméa (CHT) to the company Air Loyalty the September 23, 2015 are canceled with effect from November 1, 2019.
Article 2: CHT Nouméa will pay the company Air Alizé a sum of 2,000 (two thousand) euros pursuant to Article L. 761- code administrative justice.
Article 3: The conclusions of the respondent companies presented on this same basis are rejected.
Article 4: The present judgment will be notified to the companies Air Alizée and Air Loyauté, and the territorial hospital of Nouméa. Copy will be sent to the High Commissioner of New Caledonia.