If a public authority fails to comply with its advertising and competition obligations when awarding administrative contracts, a judge may be called upon to apply urgently for a pre-contractual summary procedure to force it to comply with its obligations.
In principle, the procedure falls within the remit of the administrative judge responsible for interim relief (juge administratif des référés).
However, some public contracts, simply because of their special nature, come under the jurisdiction of the judicial interim relief judge. In such cases, the procedure differs very little from the standard pre-contractual interim injunction procedure.
The lawyers at Cabinet Goldwin have the expertise to represent you before both the administrative and judicial courts to defend your interests.
Why file a pre-contractual summary procedure?
Pre-contractual interim relief allows a candidate who finds that the public purchaser has failed to comply with the rules on advertising and competitive tendering to obtain an order from the interim relief judge for measures to remedy the situation.
This procedure is both effective and rapid, but the scope is particularly limited in that it can only be initiated before the contract is signed.
Once the contract has been signed, the pre-contractual interim relief judge can no longer give a ruling.
Who can lodge a pre-contractual interim injunction?
Persons who have an interest in concluding the contract and who are likely to be adversely affected by the alleged breach of contract may bring a pre-contractual application for interim relief.
This concerns both unsuccessful candidates and potential candidates.
What shortcomings should be raised in a pre-contractual summary procedure?
The applicant can only claim that the public purchaser failed to fulfil its obligations to advertise and invite competition when the contract was awarded.
Such failings can be found at any stage of the procedure, from the phase prior to the launch of the call for tenders to the decision to award the contract.
However, the breach must be likely to have harmed or risk harming the candidate, even if indirectly by giving an advantage to a competitor.
In other words, it is necessary to demonstrate how the shortcoming identified in the award procedure had an impact on the rejection of the application of the unsuccessful candidate or on the absence of an application from the potential candidate.
Examples of breaches regularly sanctioned by the administrative court:
- Failure to subdivide the contract or failure to do so sufficiently
- Unsuitable scoring method for the contract
- Modification of the selection criteria after the bids had been selected
What powers does the pre-contractual interim relief judge have?
The judge’s powers are particularly extensive in pre-contractual interim relief cases:
- He can order the public purchaser to comply with its obligations
- He can suspend the execution of any decision relating to the award of the contract
- It can annul decisions relating to the award of the contract
- It can remove clauses or requirements intended to appear in the contract
The interim relief judge can even take measures ex officio, i.e. he can decide on a measure that has not been formulated by the applicant in his pre-contractual interim relief application.
Examples of measures decided by the judge:
- Resumption of the entire procedure or resumption from the time when the breach occurred
- reinstatement of an unsuccessful candidate
- Communication of the reasons for rejection
However, the pre-contractual interim relief judge has neither the power to order the disclosure of documents relating to the award procedure nor the power to order the contracting authority or entity to pay damages.
Nevertheless, it is highly recommended that you are assisted by a lawyer specialising in public procurement law, given the particularly technical nature of this type of appeal.
At Goldwin, our lawyers will assist and support you in your litigation and, more generally, throughout the procedure for awarding and performing public procurement contracts.
