Market subject to the order of 6 June 2005 and referred pre-contractual
Market subject to the order of 6 June 2005 and referred pre-contractual: the Court of Cassation specifies the scope of the powers of the pre-contractual judge
Rule n ° 1: details on the content of information given to unsuccessful candidates
In this case, a contracting authority has initiated a procedure for awarding a private law contract governed by the rules of the public commission. He dismissed one of the candidates on the grounds that his bid was too high. The unsuccessful candidate appealed to the judge of the pre-contractual judicial injunction and challenged the validity of the eviction on the grounds that the contracting authority had not sufficiently indicated the reasons for his eviction. The judge of the pre-contractual judicial interlocutory then decides to cancel the procedure on the grounds that the rejection letter did not indicate the amount of the competing offers. The Court of Cassation will overturn this decision on the grounds that Article 46 of Decree No. 2005-1742 of 30 December 2005 only requires the rejection letter to indicate "the name of the successful tenderer and the reasons which led to the choice its offer to candidates who have submitted an offer and to those who have not yet received notification of the rejection of their application ". in other words, the rejection letter must at least specify (i) the name of the successful tenderer, (ii) the scores obtained by the unsuccessful candidate for each criterion for judging the offers, (iii) the scores obtained by the successful tenderer for each criterion for judging the tenders as well as (iv) the amount of the awarded contract. On the other hand, it is not planned to indicate the amount of the offers of the various candidates ousted.
Rule 2: Clarification of the injunction powers of the pre-contractual judge
The pre-contractual judge may not order the disclosure of the contract documents (undertaking of the declared company, BPU of the contract, etc.) to an unsuccessful candidate until the contract is signed. These different documents can be communicated only after the signing of the contract.