Terms of compensation for damages suffered in the event of cancellation of the contract by the judge of the contractual representative
This case provides an opportunity to recall the rules of indemnification that can be claimed by the incumbent companies in the event of cancellation of their contract by the judge of the interim relief.
The Narbonne Hospital Center has launched an open tendering procedure for the construction of a gerontology center. At the end of the call for competition, the batch "HVAC - plumbing - wet bench" was awarded and notified to the company awarded for an amount of 2 849 735.72 euros HT.
However, by an order of 7 July 2011, the judge of the contractual order of the Administrative Court of Montpellier pronounced the cancellation of this contract for two reasons: on the one hand, because the contract was signed before the expiry of the deadline regulatory requirement by depriving an unsuccessful candidate of his right to usefully form a pre-contractual on the other hand, because several irregularities affected the selection criteria for the tenders under conditions which affected its chances of obtaining the contested contract. This order has not been challenged (which is certainly an error in this case).
The hospital center of Narbonne then launched a new call for tender at the end of which the company which had initially been awarded the contract during the first procedure was not selected. As a result of this eviction, she decided to ask the hospital center to compensate her for damages she considered to have suffered as a result of the cancellation by the judge of the contractual representative of the contract of which she was the holder.
Rule No. 1: The terms of compensation for useful expenses
The holder whose contract has been annulled by the judge hearing the application for interim relief may first of all claim compensation for damage suffered as a result of unjust enrichment, in other words, reimbursement of all the expenses which have been useful to him. public buyer to whom he had committed.
Any mistakes made by the holder prior to the signing of the contract do not affect his right to compensation on this basis, unless the contract was obtained under conditions that vitiate the consent of the public purchaser (example: false statements, prohibition of hidden bidding, etc ...).
Rule n ° 2: The modalities of compensation of the loss of profit
In the event that the contract is canceled due to a fault on the part of the public purchaser, the holder may also claim (in addition to the relevant expenses), subject to the sharing of responsibilities arising from his own mistakes, the payment of all the sums committed for the execution of the contract but also the loss of profit of which it was actually deprived because of the non-execution of the contract.
Before granting such an award, the administrative judge must ascertain whether the alleged damage is of a certain character and whether there is indeed a direct causal link between the fault of the public purchaser and the damages invoked by the applicant.
In the present case, the Conseil d'Etat considers that the breaches of the advertising and competition rules relating to the bid selection criteria had a decisive impact on the awarding of the first canceled contract to the applicant company. Clearly, without the irregularities committed, the Council of State considers that the applicant had no chance of obtaining the contract which was canceled by the judge of the contractual referent. Accordingly, the Conseil d'Etat considers that the applicant company could not claim any right to the conclusion of the contract and that, therefore, having regard to the reasons given by the judge of the contractual representative, the link between the fault of the administration and the shortfall which the company intended to obtain the compensation can not be regarded as direct.
The reasoning of the Council of State seems to be summarized as follows: irregularities were committed, and irregularities allowed a company to obtain the contract. Therefore, in the event of cancellation of its contract, the latter is not entitled to any compensation for damages suffered.
Board of state
N ° 395268
Reading of Friday, October 6, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company CEGELEC Sud-Ouest asked the administrative court of Montpellier to condemn the hospital of Narbonne to pay him the sum of 150 397.21 euros HT with legal interest and their capitalization, compensation for damages resulting from the cancellation by the court hearing the contract awarded to him for the execution of lot 8 "HVAC - plumbing - wet bench" of the construction contract for a gerontology center. By a judgment n ° 1203291 of December 10, 2013, the administrative court of Montpellier partially granted his request by condemning the hospital of Narbonne to pay him the sum of 132 616 euros with the legal interests from the 26 July 2012, these interests being themselves capitalized.
By a judgment n ° 14MA00603 of October 12, 2015, the administrative court of appeal of Marseilles has, on call of the hospital center of Narbonne, reduced to 12 470 euros HT the sum which the hospital center had been condemned to pay to the company Cegelec Southwest and reformed the judgment of December 10, 2013 in that it was contrary to his judgment and, finally, rejected the surplus of the conclusions of the parties.
By a summary appeal, a supplementary memorial and a reply, registered on 14 December 2015, 15 March 2016 and 27 February 2017 at the Secretariat of the Litigation of the Council of State, the company CEGELEC Perpignan, coming to the rights of the company CEGELEC Sud West, asks the Council of State:
1 °) to annul this judgment;
2 °) settling the case on the merits, to grant his conclusions of appeal;
3 °) to put at the charge of the hospital of Narbonne the sum of 6 000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Marc Pichon de Vendeuil, master of petitions,
- the conclusions of Olivier Henrard, public rapporteur.
The word having been given, before and after the conclusions, to the SCP Lyon-Caen, Thiriez, lawyer of the company Cegelec Perpignan and the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the hospital center of Narbonne.
Considering the note under advisement, recorded on September 21st, 2017, presented by the company CEGELEC Perpignan.
- Considering that it appears from the documents in the file submitted to the judges of the merits that in 2011, the hospital of Narbonne launched an open tender procedure for the construction of a gerontology center; that at the end of the consultation, the lot n ° 8 of this market "CVC - plumbing - wet bench" was attributed to the company CEGELEC Sud-Ouest, whose rights has since come the company CEGELEC Perpignan; that this contract, amounting to € 2,849,735.72 excluding taxes, was notified on June 16, 2011; that, however, at the request of the Spie Sud-Ouest company, competitor ousted, the judge of the contractual referent of the Administrative Court of Montpellier, after having noted that the signing of the contract litigious before the expiration of the time required after the sending of the award decision to economic operators submitting an application or bid had deprived Spie Sud-Ouest of its right to usefully formulate a pre-contractual summary and that several irregularities affecting the selection criteria for the tenders constituted breaches of the advertising rules. and of competition having affected the chances of this company to obtain the contentious market, pronounced the cancellation of this market, by an order of July 7, 2011 become final; that the hospital center of Narbonne has launched a new call for tenders to which the company CEGELEC Sud-Ouest has again been a candidate, but at the end of which it was not retained; that the company CEGELEC Sud-Ouest asked the hospital center to compensate for the damages that it considered to have suffered due to the annulment by the judge of the contractual referent of the market which she held; that, seized by the company, the administrative court of Montpellier has, by a judgment of December 10, 2013, condemned the hospital center of Narbonne to pay him the sum of 132 616 euros, with the legal interests and the capitalization, under the loss of earnings to which she could claim; that, on appeal of the hospital of Narbonne, the administrative court of appeal of Marseilles has, by a judgment of October 12, 2015, against which the company CEGELEC Perpignan appeals in cassation, reduced to 12 470 euros the sentence pronounced and reformed the judgment in that he had the opposite;
- Considering that the contractor whose contract is rejected can claim, including in the event of cancellation of the contract by the judge of the interim relief, on a quasi-contractual ground, to the reimbursement of those of his expenses which were useful to the collectivity to which he had committed himself; that the possible errors committed by the interested person before the signature of the contract do not affect his right to compensation for the unjust enrichment of the collectivity, except if the contract was obtained under conditions of a nature to vitiate the the consent of the administration, which hinders the exercise of such action; that in the event that the contract is dismissed due to a fault of the administration, the contractor may further, subject to the sharing of responsibilities arising from his own faults, claim compensation for the damage attributable to the fault of the administration; that in this respect he can ask the payment of the sums corresponding to the other expenses exposed by him for the execution of the contract and the gains of which he was actually deprived because of his non-application, in particular of the profit to which he could claim, if, however, the indemnity to which he is entitled on a quasi-contractual ground does not already assure him a higher remuneration than that which the execution of the contract would have procured for him; that, seized with a claim on this basis, it is up to the judge to assess whether the alleged damage is of a certain character and if there is a direct causal link between the fault of the administration and the injury;
- Considering that it emerges from the statements in the judgment under appeal that, after having noted that the judge of the contractual referent had annulled the contract signed between the hospital of Narbonne and the company CEGELEC Sud-Ouest because of several failures to rules of publicity and competitive bidding on the tender selection criteria, which had affected Spie Sud-Ouest's chances of winning the contested contract, the Marseille Administrative Court of Appeal dismissed the application for compensation of CEGELEC Sud-Ouest, held that it could not "claim any right to the conclusion of the contract"; that it has thus been judged that the breaches of the award rules by the contracting authority had a decisive impact on the award of the contract to CEGELEC Sud-Ouest and that, therefore, in view of the reasons given in In the present case, the link between the fault of the administration and the loss of earnings which the company intended to obtain compensation could not be regarded as direct; that the court has not tainted its judgment on this point any error of law or any error of legal qualification; that, consequently, the company CEGELEC Perpignan is not justified to ask the cancellation of the judgment which it attacks;
- Considering that it is necessary, in the circumstances of the case, to put at the charge of the company CEGELEC Perpignan the sum of 3 000 euros to be paid to the hospital of Narbonne, under the provisions of the article L. 761-1 of the Administrative Justice Code; that, on the other hand, the same provisions prevent an amount from being placed in this respect at the expense of the Narbonne hospital center which is not, in the present case, the losing party;
Article 1 : The appeal of the company CEGELEC Perpignan is dismissed.
Article 2 : The company CEGELEC Perpignan will pay to the hospital of Narbonne a sum of 3,000 euros under Article L. 761-1 code administrative justice.
Article 3 : This decision will be notified to the company CEGELEC Perpignan and the hospital of Narbonne.
See CE, Section, April 10, 2008, Decaux and Department of the Alpes-Maritimes, Nos. 244950, 284439, 248607, p. 151. ,, [RJ2] Cf., stating, CE, Section, April 10, 2008, Decaux and Department of the Alpes-Maritimes, Nos. 244950, 284439, 248607, p. 151. ,, [RJ3] Appellant, with regard to an appeal on the merits, CE, Section, 10 April 2008, Decaux and Department of the Alpes-Maritimes, Nos. 244950, 284439, 248607, p. 151.