Pre-contractual referral: the burden of proof is on the applicant
Administrative Court of Nîmes, Ord. October 20, 2014, ST GROUP Company, No. 1403076
In that case, an unsuccessful candidate decided to refer the matter to the pre-contractual judge on the ground that the bid of the successful bidder did not comply with the specifications without, however, providing the least prima facie evidence in support of his claims. allegations. The pre-contractual judge of the Tribunal administratif Nîmes took advantage of this dispute to recall the rules applicable to evidence before the administrative court.
In the dialectic of the evidence, it is up to the applicant company to provide the first elements to support its case and to raise a reasonable doubt that it would be up to the defendant to fight. In other words, the applicant can not invoke "blind" breaches, for example, of the irregularity of the successful tenderer's bid without providing any prima facie evidence to support his claims. The case-law of the Pre-contractual Pre-Trial Judge is consistent on this point (TA Paris, Ord 10 February 2014, STé PROACT Médical, No. 1400905).
The burden of proof of the irregularity of the successful tenderer's tender therefore lies with the applicant.
In the present case, the applicant company claimed that the successful tenderer's offer did not comply with the requirements of a CCTP concerning the floor covering process of the sports hall, but without providing the slightest proof of proof to the applicant. support for his allegations. It is therefore quite natural that the President of the Court of First Instance will reject that plea by finding that "in the absence of any evidence supporting the sole plea in law, alleging that the tender was not valid, the application can only be rejected.