Le Conseil d’Etat consacre le droit pour un acheteur public de résilier un contrat irrégulier

The Council of State establishes the right for a public purchaser to terminate an irregular contract

by Sébastien Palmier on September 11, 2020 | Category: Public markets
Le Conseil d’Etat consacre le droit pour un acheteur public de résilier un contrat irrégulier Le Conseil d’Etat consacre le droit pour un acheteur public de résilier un contrat irrégulier

CE July 10, 2020, Company Comptoir Négoce Equipment, req. n °430864

In this judgment, the Council of State specifies the conditions under which a public purchaser can unilaterally terminate a contract tainted with irregularity as well as the terms of compensation of the co-contractor.

Palmier-Brault-Associés is very honored to be at the origin of this jurisprudential advance!

What you must remember :


Point n ° 1: The textual consecration of the unilateral termination provision for reasons of general interest

In its judgment of July 10, 2020, the Council of State first of all recalls the jurisprudential principle according to which under the general rules applicable to administrative contracts, the contracting public entity can always, for a reason of general interest, unilaterally terminate such a contract, subject to the rights to compensation of its co-contracting party (CE 2 May 1985, Distillerie de Magnac-Laval, Lebon, p.246).

It is important to note that these general rules are now codified by the Public Order Code (even if the CCAGs of the different markets had already undertaken this textual consecration). Article L 6.5 ° of the Public Order Code indicates that “ the contracting authority may unilaterally terminate the contract under the conditions provided for in this code ". Articles L 2195-1 to L 2195-6 of the CCP for public contracts and L 3136-3 to L 3136-10 for concession contracts determine the cases in which a public buyer can terminate a public contract as well as the terms of 'compensation of the co-contracting party.

When the termination occurs for a reason of general interest, article L 6.5 ° of the Public order code recalls that the co-contractor is entitled to compensation, subject to the stipulations of the contract. The disappointment can then be very great since the case law admits that the clauses of the contract can limit or even exclude any compensation (CE December 19, 2012, Sté AB Trans, req.n ° 350341).


Point n ° 2: The jurisprudential consecration of the power of unilateral termination of an irregular contract

Apart from the various cases now codified by the Code of Public Procurement, the Council of State also enshrines the right for a public purchaser to unilaterally terminate a public contract for a reason based on its irregularity.

The conditions under which a public purchaser can terminate a contract tainted with irregularity.

Not all irregularities allow the contract to be called into question to escape its contractual obligations.

The Council of State subordinates the power of unilateral termination for a reason based on the irregularity of the contract to the same conditions as those which allow the parties to contest its validity before the contract judge and the latter to pronounce the termination of the contract. contract (CE Ass. December 28, 2009, Municipality of Béziers, request n ° 304802). In other words, only public order defects or cases where the irregularity is substantial and cannot be regulated can justify such termination.

Thus, in the event of a dispute, it will be up to the judge to verify whether the irregularity could be invoked by the public body with regard to the requirement of loyalty in contractual relations and whether it was of such seriousness that, if it had been seized, the contract judge could have ordered the cancellation or termination of the contract in dispute, and, if so, without defining the amount of compensation due to the holder.

The Council of State creates a new case of termination according to which " in the particular case of a contract tainted with an irregularity of such gravity that, if seized, the contract judge could pronounce the cancellation or termination, the public person may, subject to the requirement of fairness in contractual relations, unilaterally terminate the contract without having to first refer the matter to the judge ".

After such termination, the co-contracting party can claim reimbursement of all expenses which have been useful to the community to which he was committed, on quasi-contractual land.

In addition, if the irregularity of the contract results from a fault of the administration, the co-contracting party may, subject to the sharing of responsibilities arising from its own faults, if applicable, claim compensation for the damage attributable to the fault of the 'administration. Seized of a claim for compensation on this second basis, it is then for the judge to assess whether the alleged damage is certain and whether there is a direct causal link between the administration's fault and the damage suffered. .


CE July 10, 2020, Company Comptoir Négoce Equipment, req. n °430864

Considering the following:

  1. It appears from the documents in the file submitted to the trial judges that the Reims metropolis agglomeration community has launched a procurement procedure in the form of an open call for tenders for the award of a public contract having as its object the supply light points, supports and spare parts. This public contract was broken down into three distinct lots having for object the supply of light points (lot n ° 1), the supply of supports (lot n ° 2) and the supply of spare parts (lot n ° 3). These three lots were allocated to the company Comptoir Négoce Equipements, which began performing the services on January 1, 2015. On February 5, 2015, the Reims metropolis agglomeration community however informed it of the termination of the three lots to from April 1, 2015 due to the irregularity in the procurement procedure. Seized by the company Comptoir Négoce Equipements of a request for the resumption of contractual relations, together with compensation claims, the administrative court of Châlons-en-Champagne, by a judgment of August 8, 2017, found that there was no There was no longer any reason to rule on the conclusions in resumption of contractual relations, then condemned the urban community of Greater Reims, which came to the rights of the Reims metropolitan area community, to pay this company a sum of 172,560.73 euros, together interest at the legal rate from March 25, 2015, in compensation for the losses suffered, in respect of 2015, as a result of the termination of these lots. The urban community of Greater Reims appealed against this judgment and, by way of the incidental appeal, the company Comptoir Négoce Equipements contested the judgment in so far as it did not compensate the damages it considers to have suffered. for the years 2016 and 2017. By a judgment of March 19, 2019, against which the company Comptoir Négoce Equipements is appealing in cassation, the administrative court of appeal of Nancy essentially annulled the judgment of the administrative court of Châlons-en-Champagne in so far as he condemned the urban community of Greater Reims to pay the company a sum of 172,560.73 euros and rejected the remainder of the conclusions of the parties. Having regard to the pleas raised, the appeal must be regarded as directed against the contested judgment inasmuch as it partially annulled the judgment of August 8, 2017 of the Administrative Court of Châlons-en-Champagne and then rejected the conclusions of the cross-appeal by the requesting company.
  2. Under the general rules applicable to administrative contracts, the public co-contracting party may always, for reasons of general interest, unilaterally terminate such a contract, subject to the rights of its co-contracting party to compensation.
  3. In the particular case of a contract tainted with an irregularity of such gravity that, if seized, the contract judge could pronounce the cancellation or termination, the public person may, subject to the requirement of loyalty in contractual relations, unilaterally terminate the contract without the need for it to first refer the matter to the judge. After such a termination unilaterally decided for this reason by the public body, the co-contracting party may claim, on a quasi-contractual ground, for the period subsequent to the effective date of the termination, the reimbursement of those of its expenses which were useful to the community to which he was committed. If the irregularity of the contract results from a fault of the administration, the co-contracting party may, in addition, subject to the sharing of responsibilities arising from its own faults, as applicable, claim compensation for the damage attributable to the fault of the 'administration. Seized with a claim for compensation on this second basis, it is for the judge to assess whether the alleged damage is certain and whether there is a direct causal link between the administration's fault and the damage. 
  4. Under the terms of the second paragraph of article 29 of the general administrative clauses (CCAG) for public contracts for current supplies and services, applicable by virtue of article 5 of the special administrative clauses of the disputed contract: “The power contracting authority may also terminate the performance of the services at any time for reasons of general interest (...) “.
  5. Under the terms of IV of article 6 of the public procurement code, then in force, now included in article R. 2111-7 of the public procurement code: “The technical specifications may not mention a mode or a particular manufacturing process or of a given provenance or origin, nor to refer to a mark, a patent or a type, when such a mention or reference would have the effect of favoring or eliminating certain economic operators or some products. However, such a statement or reference is possible if it is justified by the subject of the contract or, exceptionally, in the event that a sufficiently precise and intelligible description of the subject of the contract is not possible without it and to the condition that it be accompanied by the words: “or equivalent” (...) “. For the application of these provisions, it is necessary to examine whether or not the technical specification has the effect of favoring or eliminating certain economic operators or certain products, then, in the event only of such an infringement of competition, if this specification is justified by the object of the contract or, if this is not the case, if a sufficiently precise and intelligible description of the object of the contract is not possible without it.
  6. It emerges from the statements in the judgment under appeal that the Nancy Administrative Court of Appeal ruled sovereignly, without altering the documents in the file submitted to it, in particular in view of other markets in which the documents of the consultation included the mention “Or equivalent” under the technical specifications, that the omission of this mention in the contract in dispute had the effect of favoring the application of the company Comptoir Négoce Equipements. However, the court erred in law in deducing that this irregularity justified the termination of the contract in dispute by the Greater Reims agglomeration community by application of the contractual provisions cited in point 4, without examining whether this irregularity could be invoked. by the public body with regard to the requirement of loyalty in contractual relations and if it was of such gravity that, if it had been seized, the contract judge could have ordered the cancellation or termination of the contract in dispute , and, if so, without defining the amount of compensation due to the requesting company in accordance with the rules defined in point 3.
  7. If the urban community of Greater Reims maintains, in defense, that the applicant company cannot claim any compensation on the grounds that the contract in dispute is a contract with purchase orders without minimum contractual requirements, this request for substitution of reasons cannot be accepted. since it does not follow from the rules set out in point 3 that the holder of such a contract would, in principle, have no right to compensation in this case of termination of the contract.
  8. It follows from the foregoing, without there being any need to rule on the other grounds of appeal, that the company Comptoir Négoce Equipements is entitled to request the annulment of the judgment which it is attacking in so far as it has partially annulled the judgment of August 8, 2017 of the administrative court of Châlons-en-Champagne then rejected its appeal conclusions.
  9. In the circumstances of the case, it is appropriate to make the urban community of Greater Reims responsible for paying the company Comptoir Négoce Equipements a sum of 3,000 euros under article L. 761. -1 of the administrative justice code. On the other hand, these provisions prevent a sum from being charged to this company which is not, in the present case, the losing party.

DECIDE:
Article 1: Articles 1 and 3 of the judgment of 19 March 2019 of the administrative court of appeal of Nancy, as well as its article 4 in so far as it rejected the appeal conclusions of the company Comptoir Négoce Equipements, are canceled.
Article 2: The case is referred, to this extent, to the Administrative Court of Appeal of Nancy.
Article 3: The urban community of Greater Reims will pay the Comptoir Négoce Equipements company a sum of 3,000 euros under article L. 761-1 of the code of administrative justice. The conclusions presented in the same way by the urban community are rejected.