What is the purpose of the compensatory remedy?
A competitor who considers that he has been improperly evaded from a procurement procedure may claim compensation for the damage he considers he has suffered.
Who can seize the administrative judge?
Only companies that have participated in the contested procedure, ie who have applied and / or submitted an offer, have the right to lodge an appeal.
When can the administrative judge be seized?
Attention: If the applicant requests both the nullity of the contract concluded with the competing company and the compensation for the damage suffered, his appeal is equivalent to an appeal in contestation of the validity of the contract (see sheet n ° 72).
On the other hand, if the plaintiff merely claims compensation for the injury suffered, his action is tantamount to a genuine compensatory remedy.
In this case, the applicant is not obliged to lodge an appeal within a period of two months from the completion of the appropriate publicity measures (see sheet n ° 72) but may lodge an appeal for four years from 1 January following the year in which the injury was suffered.
This is called the quadrennial prescription. This is the rule that the claim on a public person, whatever the nature, is extinguished after four years. The starting point of foreclosure is, since 1 January 1969, fixed at 1 January of the financial year following that in which the claim arose. Thus, the quadrennial prescription includes a period which may vary between four years and one day and five years less a day (Conseil d'Etat, 11 January 1978, AUDIN, Conseil d'Etat, Digest, page 8).
Article 1 of Law No. 68-1250 of 31 December 1968:
"are prescribed, for the benefit of the State, the departments and municipalities, without prejudice to the specific deprivations enacted by law, and subject to the provisions of this law, all claims that have not been paid within a period of four years from the first day of the year following the year in which the rights were acquired.Are prescribed, within the same period and subject to the same reservation, claims on public institutions with a public accountant. "
Example : The company wishes to claim the prejudice that it considers to have suffered as a result of its improper eviction of which it learned the knowledge by mail AR dated June 10, 2009. It thus has until June 10, 2014 to seize the administrative judge a compensatory remedy.
How can we seize the administrative judge?
The applicant company can not directly refer to the administrative court a claim for indemnity.
He must first give notice to the contracting authority to pay him the sum corresponding to the loss suffered by means of a "prior application indemnity".
This prior request must be sent to the contracting authority by letter AR before referral to the judge. If the company has failed to address this request and has seized the administrative court, it must immediately rectify its appeal before the contracting authority raises the issue of inadmissibility before the judge.
What means to raise before the administrative judge?
The administrative judge compensates a company for its shortfall according to the assessment of the candidate's chances of obtaining the contract:
- the candidate had no chance of success and therefore suffered no harm;
- the candidate was not without a chance of winning the contract without, however, having serious chances: in this case, he is only entitled to reimbursement of the costs incurred in presenting his tender (EC, 3 July 1968, Lavigne, rec. p.1000);
- the candidate had serious chances of being retained and in this case he is entitled to compensation for the shortfall which necessarily includes the costs of presenting the tender (EC, 13 May 1970, Monti c / Cne de Ranspach, rec.22).
CE 27 January 2006, Commune of Amiens, Req. No. 259374
" Considering that when a company applying for the award of a public contract seeks compensation for the damage caused by its improper eviction from that market, it is up to the judge to first check whether the company has no chance of winning. the market ; that, if so, the company is not entitled to any compensation; that, in the negative, she is entitled in principle to reimbursement of the expenses she incurred to present her bid; that, in the event that the company had a serious chance of winning the contract, it is entitled to compensation for the entire loss of profit it has suffered; that, consequently, after having recalled that the company Delattre had been deprived by the COMMON D'AMIENS of a serious chance to take away the market relating to the construction of antennas of wastewater collectors and of rain water , the realization of particular connections as well as the maintenance of the existing network in this commune, the Administrative Court of Appeal of Douai could deduce, without committing any error of law, that the repair of the damage suffered by the company Delattre was incumbent on the COMMON D'AMIENS "
June 18, 2003, Group of solidarity companies ETPO Guadeloupe, Tp865
The Conseil d'Etat considers that a company must be given a serious chance of winning the contract in the event that the parts of the market show that the contract should have been awarded to it:
" Considering that it results from the instruction that the GROUPING OF COMPANIES SOLIDAIRES ETPO GUADELOUPE, COMPANY BIWATER, COMPANY AQUA TP was designated like recipient of the contract of works for the extension of the purification station of Blachon in the commune of Lamentin, at the meeting of the tender commission of March 9, 2001; that if a municipality can, for reasons of general interest, renounce a contract already awarded, it can not, without committing an illegality, ask the commission to proceed to a new examination of the offers; that therefore the decision by which the tender commission was reversed its first decision in a meeting of June 6, 2001 and decided to entrust the work SOGEA-DODIN group is tainted illegal; that in these circumstances it is not seriously contestable that the applicant group, which had a serious chance of retaining the market, is entitled to compensation for the loss of profits it expected; that consequently the obligation of the municipality of Lamentin with regard to the GROUPING OF SOLIDARITY COMPANIES ETPO GUADELOUPE, COMPANY BIWATER, SOCIETY AQUA TP must be regarded as not seriously questionable for a sum of 47 000 euros, corresponding to the profit margin of this type of enterprise for works of this nature "
How to manage the procedure?
The administrative judge will award an indemnity based on the elements that are apparent from the parts of the market and the arguments developed.
For this type of appeal, it is therefore recommended that the applicant first request disclosure of the contract documents and in particular the bid analysis report.
Indeed, it is on the basis of the information contained in this document that the company will be able to demonstrate to the administrative judge that it had serious chances to obtain the contract instead of the awarded company.
This procedure can also be initiated by the company declared successful but whose contract is then canceled on appeal of an unsuccessful candidate.
Indeed, in this case, the harm is very easy to demonstrate. If the contracting authority did not commit an irregularity, the company could continue the performance of the contract. It is therefore entitled to claim the loss of profits.