Is the offer of a bankruptcy company that has not provided the judgments irregular?
CAA Bordeaux, December 1, 2016, Company building company DUS, No. 14BX01718
In the context of a procedure adapted for the award of a works contract, a company which had been placed in receivership and authorized to continue its activity, before a recovery plan is stopped by a judgment , has seen its offer dismissed. She then applied to the Administrative Court of Bordeaux for compensation, which was rejected. On appeal, the Bordeaux Administrative Court of Appeal held that the company should have indicated that it was in receivership and produce the judgments relating to this procedure. Consequently, it considers that its offer was irregular and that the applicant therefore had no chance of winning the contract. The Court therefore rejects the claim for compensation. This judgment is reminiscent of certain evidences, but it seems to us to be open to criticism on other points.
Rule n ° 1: Even if he has been authorized to continue his activity and benefits from a recovery plan, the candidate in receivership must produce the pronounced judgments
In the present case, the applicant company had not indicated, at the stage of the application, that it was in receivership and had not produced the copy of the judgment adopting the recovery plan. It considered that it did not have to do so because, on the one hand, the judgment adopting the recovery plan would, in its view, have put an end to the judicial reorganization proceedings and, on the other hand, it argued that she had been allowed to continue her activity. The Administrative Court of Appeal rejects this reasoning. Recalling that under the combined provisions of Article 8 of Ordinance No. 2005-649 of 6 June 2005 and Article 43 of the former Code des Marches Publics, applicable in this case, persons admitted receivership must justify that they have been authorized to continue their activity for the foreseeable duration of performance of the contract, as well as the provisions of Article 44 of the former Code des Marches Publics, according to which the candidate produces at the support of his candidacy the copy of the judgments pronounced if it is in receivership, the Court retains that the applicant company should have produced a copy of the judgment stopping the plan of recovery. That obligation results, according to the Court, from the obligation of the contracting authority to verify the capacity of the undertaking to perform the contract to ensure the admissibility of the application.
Rule No. 2: The Offer of a Bankruptcy Company which has not indicated that it was the subject of this proceeding and has not filed the judgments is improper
The Court considers that the application of the ousted company is incomplete, its offer is irregular. His reasoning seems to us to be questionable on this point. According to Article 35 of the former Public Procurement Code: "An irregular bid is an offer which, while providing a response to the need of the contracting authority, is incomplete or does not comply with the requirements set out in the public notice of competition or in the documents of the consultation. In our view, it follows from this provision that supply is irregular when it is the supply itself which is incomplete. In this case, the application was incomplete and not the offer. The company's offer does not therefore appear to me to be irregular in that it did not indicate that it was in receivership and that it did not produce the judgments relating to this procedure.
Rule n ° 3: The company having submitted an irregular offer can not claim any compensation because of its eviction
Finally, the Court held that the tender being irregular, the contracting authority was obliged to dismiss it. It considers that, as a result, the applicant company had no chance of winning the contract and therefore could not claim any compensation for its removal.
CAA of BORDEAUX
Unpublished at Lebon collection
4th bedroom - training 3
Mr POUZOULET, President
Mrs Marianne POUGET, rapporteur
Ms MUNOZ-PAUZIES, public rapporteur
CABINET PALMIER & ASSOCIATES, lawyer
Reading of the Thursday, December 1, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Previous litigation procedure:
The firm company Dus building asked the Administrative Court of Bordeaux to condemn the community of communes of Bazadais to pay him a sum of 135,346.72 euros before tax for the prejudice it believes to have suffered because of its eviction of awarded by the community of communes to SNB Dupiol.
By a judgment n ° 1202695 of April 16, 2014, the administrative court of Bordeaux rejected this request.
By a motion and briefs filed on June 11, 2014, December 29, 2015 and January 21, 2016, the company company Dus Building, represented by MeB ..., asks the court:
1 °) to annul this judgment of the Administrative Court of Bordeaux of April 16, 2014;
2 °) to condemn the community of communes of Bazadais to pay him compensation of 135,346.72 euros excluding tax;
3 °) to charge the community of Bazadais the sum of 5,000 euros pursuant to Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the commercial code;
- the code of public contracts;
- Ordinance No. 2005-649 of 6 June 2005 on contracts awarded by certain public or private entities not subject to the Public Procurement Code;
- the code of administrative justice.
The parties were regularly notified of the day of the hearing.
The following were heard during the public hearing:
- the report by Mrs Marianne Pouget,
- the conclusions of Ms Frédérique Munoz-Pauziès, public rapporteur,
- and the observations of MeA ..., representing the company Dus Building Company, and MeC ..., representing the community of Bazadais commune.
Considering the following:
1. The Bazadais community of communes has initiated an adapted procedure for the award of a contract for the completion of the modernization and extension of the Bazas slaughterhouse and the creation of a cutting workshop of meat broken down into seventeen lots. By a letter of 16 November 2011, the company company building Dus was informed of the rejection of its offer for lot 2 "Gros oeuvre" and the award of the lot to the company Dupiol. The firm company Dus building asked the Administrative Court of Bordeaux to condemn the community of Bazadais communes to compensate for the damage it believes to have suffered as a result of his unlawful eviction. By a judgment of 16 April 2014, the administrative court, even if it considered that the Bazadais community of communes had breached its obligations to call for competition, nevertheless rejected his claim for compensation on the grounds that the the company's offer was irregular and thus the latter had no chance of winning the contract. The company company building Dus falls under this judgment.
2. The company submits that the first judges wrongly felt that it should have attached to the file of its application the judgment of the Commercial Court of Agen of 21 July 2011 which had adopted the plan of recovery concerning it: according to her, this decision marks the end of the legal recovery.
3. Under Article 8 (3) of Ordinance No. 2005-649 of 6 June 2005: "Can not bid on a contract awarded by a contracting authority: (...) Persons subject to the procedure judicial liquidation provided for in Article L. 640-1 of the Commercial Code (...) The persons admitted to the procedure of judicial redress instituted by Article L. 631-1 of the Commercial Code (.... ) must justify that they have been authorized to continue their activities during the foreseeable period of execution of the contract ". Article 38 of the same ordinance provides for the application of this provision to all public contracts. According to Article 43 of the Public Procurement Code applicable to the facts of the dispute: "Prohibitions to bid on contracts and framework agreements subject to this Code shall apply in accordance with the provisions of Article 38 of the Ordinance of 6 June 2005 (..) ". Article 52 of the same code provides that "(...) Candidates who can not bid on a contract pursuant to the provisions of Article 43 (...) shall not be admitted to participate following the procedure awarding of the contract ". According to Article 44 (I): "The candidate submitted in support of his candidacy: / 1 ° A copy of the judgment (s) pronounced, if he is in receivership; / 2 ° A declaration on his honor to justify that it does not enter into any of the cases mentioned in Article 43. / 3 ° The documents and information requested by the contracting authority under the conditions laid down in Article 45 ". According to article 3.3 of the regulations of the consultation of the contract in dispute: "" The offers will be drafted in French language, will be delivered and will include the particular pieces (...) / Letter of candidature (DC1) / Declaration of the candidate (DC2 and NOTI 1) / Declaration on honor in accordance with Articles 44 and 46 of the Public Procurement Code (...) ".
4. Article L. 631-1 of the French Commercial Code states: "An insolvency proceeding is instituted open to any debtor mentioned in Articles L. 631-2 or L. 631-3 who, in impossibility of coping with the liability payable with its available assets, is in cessation of payments (...) The procedure of judicial recovery is intended to allow the continuation of the activity of the company, the maintenance of employment and the clearance of the liabilities.It gives rise to a plan decided by judgment at the end of a period of observation (...) ". Under this article and the other provisions of Title III "Judicial Restoration" of Book VI of the Commercial Code, in particular Articles R. 631-32 to R. 631-36, the recovery plan is one of the terms of the adjustment. of a company in difficulty. Article R. 631-43 of the same code also provides that the closure of the legal proceedings at the end of the execution of the recovery plan is pronounced by an order of the president of the commercial court.
5. It follows from the abovementioned provisions of the Code des Marches Publics that it is the responsibility of the contracting authority to verify the capacity of the undertaking placed in receivership to perform the contract in view of its placement in this situation to ensure the admissibility of his candidacy. An enterprise placed in receivership is thus obliged to justify, when filing its bid, that it is entitled, by the judgment pronouncing its investment in this situation, to continue its activities during the period of execution of the contract, such as it emerges from the documents of the consultation.
6. This obligation is incumbent on the business, including when it is the subject of a recovery plan. Even if the company is then allowed, under certain conditions, to continue its activity despite its debit situation, the contracting authority must nevertheless be able to ensure its ability to perform the proposed contract while the company is still subject to the recovery plan.
7. It appears from the investigation that in a judgment of 8 September 2010, the Commercial Court of Agen pronounced the judicial reorganization of the company Dus Construction Company and authorized it to continue its activity after having ordered a period six-month observation period which was renewed until 1 September 2011. In a judgment of 21 July 2011, the Agen Commercial Court adopted a recovery plan.
8. It was therefore up to the company Dus Building Company to attach to its offer a copy of the judgment setting out the recovery plan. It is undisputed that the applicant company, which incorrectly stated in the nomination form that it had completed that it was not the subject of bankruptcy proceedings, did not produce that judgment with his application file. As a result, the company's application file was incomplete and the contracting authority was obliged to reject its offer, which was irregular.
9. Therefore, the company Dus Construction Company was in any event deprived of any chance of winning the contract. As a result, the company can not claim any compensation due to its eviction.
10. It follows from all the foregoing that the applicant company is not justified in maintaining that it is wrong that, by the judgment under appeal, the Bordeaux Administrative Court rejected its application.
The claims for the application of Article L. 761-1 of the Code of Administrative Justice:
11. The provisions of Article L. 761-1 of the Code of Administrative Justice preclude the finding of the construction company Dus, the losing party in the present case, being upheld. On the other hand, it is appropriate, in the circumstances of the case, to accede to the submissions made on this basis by the Bazadais community of communes and to charge the building company Dus the sum of 1,500 in respect of the costs incurred by it and not included in the costs.
Article 1: The request of the company Dus Building Company is rejected.
Article 2: The company Dus Building Company will pay the community of Bazadais a sum of 1 500 euros under Article L. 761-1 code administrative justice.