Contractual referent and unsuccessful candidates: the obligation to inform clearly the candidates who have been dismissed of the standstill deadline for the irregularity of the procedure!
The unsuccessful candidate who has not been informed, in the notification letter of the rejection of his offer, of the length of the standstill period prescribed by the Public Procurement Code is admissible to form a contractual referent even if he has previously a pre-contractual referral.
In the present case, a company is ousted in the context of a public contract for cleaning, waste management and cumberstripping on behalf of the public inter-departmental housing authority of Essonne, Val d'Or. Oise and Yvelines. Informed of the rejection of her offer, she brought an action for a pre-contractual summary which she withdrew after having learned that the market had in fact already been signed with one of its competitors. Immediately thereafter, it applies to the same court for an application for interim relief to which it is entitled. The administrative court considers that the prohibition of contractual recourse in cases of pre-contractual summary provided for by Article L. 551-4 of the Code of Administrative Justice does not concern " the competitor ousted ... in ignorance of the rejection of his bid and the signature of the contract as a result of the contracting authority's failure to comply with the provisions of Article 80 of the Public Procurement Code ". The Council of State confirms this solution.
The mere notification of the rejection is not enough: the letter must also mention the period of suspension observed by the contracting authority, in order to inform the unsuccessful candidate of the period during which he may usefully file a pre-contractual application for interim relief. In the absence of this mention, the suspension period does not run. However, by signing the contract, the contracting authority does not comply with the obligation to suspend even if this formality only occurs after the deadline which the contracting authority has set itself without informing tenderers ousted. He is thus exposed to a contractual referent while he has postponed the signing of his contract.