Marché tacitement reconductible : quels droits à indemnisation ?

Tacitly renewable market: what rights to compensation?

CE December 2, 2019, North West Touraine Health Cooperation Group, req.n ° 423936

In this case, the Council of State provides useful details on the extent of the right to compensation of an ousted candidate when the market is tacitly renewable. This case is an opportunity to recall the compensation rules for fixed-term contracts and for contracts with automatic renewal.

Lesson 1: Reminder of the compensation rules for fixed-term contracts

When a candidate for the award of a public contract requests compensation for the damage resulting from his irregular eviction from this contract and there is a direct causal link between the fault resulting from the irregularity and the damage claimed by the Applicant because of his ouster, it is up to the judge to check whether or not the candidate had no chance of winning the contract.

In the absence of any chance, he is not entitled to any compensation.

If the judge considers that the candidate was not without luck, he is entitled in principle to reimbursement of the costs he incurred in presenting his offer.

If the judge considers that the irregularly ousted candidate had serious chances of winning the contract concluded with another competitor then he is entitled to be compensated for his loss of earnings, including necessarily, since they have been included in his charges, the costs of presentation of the offer (CE October 14, 2019, Sté les Téléskis de la Croix Fry, n ° 418317, CE June 18, 2003, Grouping of solidarity companies ETPO Guadeloupe and others, n ° 249630).

 

 

 

Hypotheses

 

 

Right to compensation

 

 

 

Amount of compensationnot

 

No chance of winning the contract

 

 

No

 

0 €

 

Not without chance of winning the contract without however proving the serious chance of being declared successful

 

Yes

 

Only the costs of presenting the application and the offer

 

 

Serious chances

 

Yes

Loss of profit: net profit over the certain duration of the contract including the costs of presenting the application and the offer

 

 

However, certain situations could reduce the amount of compensation due or even exclude it entirely. Thus, for example, as he does in matters of irregular termination or cancellation of a contract, the judge could take into account, for compensation for the lack of profit which the applicant has, if any, derived from the completion, as the holder or subcontractor of a new contract awarded by the contracting authority, of all or part of the services which had been entrusted to it by the terminated or canceled contract (See CE October 6, 2017, Cegelec Company Perpignan, n ° 395268, CE February 10, 2017, Société Bancel, n ° 393720).

Lesson 2: Recalling compensation rules for tacit renewal contracts.

When the market is tacitly renewable, the Council of State considers that the compensation is limited to the certain duration of execution. In other words, if the contract is likely to be the subject of one or more renewals if the contracting authority does not object, the shortfall is only certain if that it relates to the initial period of execution of the contract, in other words, the firm duration and not to the subsequent periods which can only result from possible renewals.

On the other hand, it seems useful to recall that the indemnity action forms part of the actions of full litigation or the judge must assess a situation on the date on which he rules. If on this date the applicant provides evidence that the market from which he has been irregularly ousted has indeed been renewed, then the shortfall must be calculated not only over the initial period of execution of the contract, in other words, the firm duration but also over the extended periods. The applicant may also claim the invoices paid by the public purchaser during the renewal periods to demonstrate his certain prejudice over the period considered.


CE December 2, 2019, North West Touraine Health Cooperation Group, req.n ° 423936

 

Considering the following:

 

  1. It appears from the documents in the case submitted to the trial judges that, by a notice of public call for competition published in the official bulletin of public procurement on June 4, 2015, the North West Touraine health cooperation group launched a procedure for call for tenders open for the award of a public contract for the supply of all raw or cooked items and consumable products and the performance of a technical assistance mission for catering operations, for a provisional annual number of meals of 390,000 and for a period of twelve months renewable twice from September 1, 2015. Four companies, including Sogeres and Valeurs Culinaires, presented offers. By email of July 31, 2015, the company Valeurs Culinaires was informed that it had been classified in second position and that the contract had been awarded to the company Sogeres. The company Valeurs Culinaires seized the administrative court of Orleans of conclusions tending to the cancellation of the market concluded on August 11, 2015 between the health group and the company Sogeres and to the condemnation of the health group to pay him the sum of 209,292, 60 euros corresponding to its shortfall over three years. By a judgment of February 16, 2017, the Orléans administrative court rejected his request. The administrative court of appeal of Nantes, by a judgment of July 6, 2018, annulled this judgment and condemned the grouping of health cooperation of North-West Touraine to pay to the company Valeurs Culinaires a sum of 200,000 euros. By a decision of March 29, 2019, the State Council, ruling in litigation, did not accept the conclusions of the appeal of the health cooperation group of North-West Touraine directed against this judgment that as only that it pronounced his order to compensate the loss of earnings of the company Valeurs Culinaires for a period exceeding twelve months.
  2. Under the terms of article 16 of the public procurement code applicable in this case, taken up since in article R. 2112-4 of the public procurement code: "A market may provide for one or more renewals provided that its characteristics remain unchanged and that the call for competition has been carried out taking into account its total duration. Unless otherwise stipulated, the renewal provided for in the market is tacit and the holder cannot oppose it. "
  3. When a candidate for the award of a public contract requests compensation for the damage resulting from his irregular eviction from this contract and there is a direct causal link between the fault resulting from the irregularity and the damage claimed by the Applicant because of his ouster, it is up to the judge to check whether or not the candidate had no chance of winning the contract. In the absence of any chance, he is not entitled to any compensation. Otherwise, he is entitled in principle to reimbursement of the costs he incurred in presenting his offer. It should also be examined whether the irregularly ousted candidate had a serious chance of winning the contract concluded with another candidate. If this is the case, he is entitled to be compensated for his shortfall, necessarily including, since they have been included in his expenses, the costs of presentation of the offer, which therefore do not have to make the subject, unless otherwise stipulated in the contract, to specific compensation. On the other hand, the candidate cannot claim compensation for this shortfall if the public body renounces to conclude the contract for a reason of general interest.

  4. When it is seized by a company which is entitled to compensation for its loss of profit due to its irregular eviction from the award of a contract, it is up to the judge to assess to what extent this damage has a character certain. In the event that the contract is likely to be subject to one or more renewals if the contracting authority does not object, the shortfall is only certain if it relates to the initial period of execution of the contract, and not on subsequent periods which can only result from possible renewals.

  5. It appears from the statements in the judgment under appeal that, ruling on the compensation claims submitted by the company Valeurs Culinaires by reason of its ousting, by the North West Touraine health cooperation group, from the award of a public contract having for the purpose of catering services, the administrative court of appeal of Nantes ruled that this company, irregularly ousted when it had serious chances of winning, could claim to be compensated for its shortfall. While it appears from the documents in the file submitted to the trial judge that the contract which is the subject of the contested award procedure was concluded for an initial performance period of twelve months, renewable twice, the court held that the compensation for the shortfall in the company Valeurs Culinaires was to be calculated over a total period of three years corresponding to the initial execution period as well as to the two additional years likely to be subject to extensions. It follows from what has been said previously that by ruling in this way, while the shortfall likely to give rise to compensation by the company Valeurs Culinaires could only be certain for the initial period of twelve months, the court erred in law.
  6. It follows from the above that the judgment under appeal must be set aside in so far as it has ordered the North West Touraine health cooperation group to compensate the loss of earnings of the company Valeurs Culinaires for a period exceeding twelve months, that is, taking into account the reasons for the judgment which have become irrevocable, for an amount greater than 66,666.66 euros.
  7. It is necessary, in the circumstances of the case, to settle, to this extent, the case on the merits in application of the provisions of article L. 821-2 of the code of administrative justice.
  8. As stated in point 5, the shortfall likely to give rise to compensation for the company Valeurs Culinaires is only certain for the initial period of twelve months from the contract in issue. The company's claims for compensation for the shortfall beyond this period can therefore only be rejected.
  9. It is necessary, in the circumstances of the case, to charge the company Valeurs Culinaires the sum of 3,000 euros to be paid to the North West Touraine health cooperation group under Article L. 761 -1 of the code of administrative justice.

 

DECIDE:

Article 1: Article 2 of the judgment of July 6, 2018 of the Nantes administrative court of appeal is set aside in so far as it allows the conclusions of the appeal of the Valeurs Culinaires company tending to compensation for its shortfall for a period exceeding twelve months.

Article 2: The conclusions of the appeal request from the company Valeurs Culinaires seeking compensation for its shortfall for a period exceeding twelve months are rejected. The amount of the conviction of the health cooperation group of North-West Touraine is reduced to the sum of 66,666.66 euros

Article 3: The company Valeurs Culinaires will pay the North West Touraine health cooperation group the sum of 3,000 euros under Article L. 761-1 of the Code of Administrative Justice.