Irregular recourse to the adapted procedure is likely to harm a candidate
TA Paris September 11, 2014, ROBOSOFT Company, Req. No. 1414608
The judge of the pre-contractual injunction first proceeded to the requalification of the supply contract work market on the basis of the decomposition of the global and fixed price which showed that the amount of the work provided for by the provisions of the special technical clauses was significantly lower than the amount of vehicle supply and installation of equipment necessary for the proper functioning of the transport system.
This requalification of the market implied important consequences for the choice of procedure, in particular with regard to the thresholds defined in article 26 of the Code des Marches Publics as it implied finally passing a formalized procedure. By improperly resorting to the adapted procedure - instead of the formalized procedure - the contracting authority had given itself the possibility to negotiate with the candidates under conditions which did not allow to ensure the respect of the principle of transparency. The result was a breach by the contracting authority of its publicity and competition requirements.
The Administrative Court concluded that "in view of the fact that the final difference between the marks of the two highest ranked candidates is less than three points, it is not possible to say that the irregularly organized the choice of the successful tenderer and that Swisslog, on the sole basis of its initial offer before any negotiation, would inevitably have been awarded the contract, that Robosoft is thus likely to have been wronged by the breach ".
This reasoning is in line with the case law SMIRGEOMES on the injury: an unsuccessful candidate does not have to demonstrate that he was directly harmed by the breach he invokes, but at least likely to be .