The rejection of a bid for a public contract can be a delicate situation for a company, but there are steps you can take to understand the reasons for the rejection and decide on the actions to be taken.

You can also consider appealing to the administrative court if there have been shortcomings.

The public purchaser evaluates and analyzes the offers received, classifying and rating them. It is important to identify at which stage of the public contract your offer was set aside, in order to identify the solutions you can bring to your future applications.

I- Initial Examination: Your offer must be regular, acceptable, and appropriate:

Before classifying and rating the offers of candidates for the public contract, the public purchaser must set aside irregular, unacceptable, or inappropriate offers, which are defined as follows:

  • Irregular offer: incomplete offer that does not comply with the requirements of the consultation documents, or the legislation on social and environmental matters, subcontracting, or taxation;
  • Unacceptable offer: offer whose price exceeds the budgetary credits established for the contract before the start of the procedure;
  • Inappropriate offer: offer that meets a need other than that expressed by the purchaser;

Your offer is thus automatically eliminated and not examined by the public purchaser. To avoid having your offer set aside in this way, it is important for your company to carefully review all the “consultation documents,” which are the documents necessary for candidates to respond to public contracts. These include the consultation regulations, financial documents, the special clauses booklet (CCP), etc.

When the contract is worth more than €40,000 exclusive of tax, these documents are available on a dematerialized platform, which also records the receipt of offers and documents submitted by candidates for the public contract. It is therefore imperative to become familiar with these documents and to prepare an offer taking into account their requirements.

II- Second Stage: Examination and Ranking of Offers

Admissible offers (regular, acceptable, and appropriate) are then ranked by the public purchaser, based on the criteria mentioned in the consultation documents and legal requirements. This ranking leads to the choice of an offer and therefore a candidate.

Candidates who have not been retained are immediately informed of the rejection of their offer. Even if your application for a public contract has been rejected, you have rights. Your rights depend on the type of public contract you applied for.

  • Public contracts awarded through an adapted procedure (contracts with a value between €40,000 exclusive of tax and European thresholds)

To know the reasons for the rejection of your offer, you must make a written request to the public purchaser. The public purchaser must provide you with these reasons within 15 days of receiving your request. Simply communicating the final ranking scores is not sufficient. The public purchaser must provide you with explanations and the implementation of the offer assessment criteria. Additionally, the public purchaser must communicate the characteristics and advantages of the selected offer as well as the name of the selected company to whom the public contract is awarded.

  • Public contracts awarded through a formalized procedure (contracts with a value exceeding European thresholds)

Rejected candidates do not need to request communication of the reasons for the rejection of their offer: the public purchaser is obligated to notify them. You have the right to obtain the following additional information:

  • Information regarding the progress of negotiations or dialogue, when they are not yet complete, the date of signing, etc.;
  • Characteristics and advantages of the selected offer; Similarly, it is up to you to request this information from the public purchaser, who must respond within 15 days of receiving your request.

III- Recourse for the Rejected Candidate

The analysis of the information provided by the public purchaser may lead to the conclusion or suspicion that a breach of a competition or advertising obligation has occurred.

This breach must harm your company, but this condition is logically met since you were not selected to carry out the public contract.

If you believe you have been unfairly excluded, you can challenge the contract award. In this case, filing a claim with the administrative court can be considered. Two “urgent” procedures are possible:

  • Pre-contractual interim measures (before the contract is signed):

This recourse suspends the signing of the public contract until the judge’s decision. The judge may order the public purchaser to comply with its obligations, remove certain clauses from the contract, order the procedure to be restarted, demand the reinstatement of a rejected candidate, or require the communication of rejection reasons.

  • Contractual interim measures (after the contract is signed) :

The judge may suspend the execution of the contract for the duration of the proceedings, annul or terminate the contract, impose a financial penalty on the public purchaser.

In both cases, the judge has extensive powers. LBV Avocats can assist you in your efforts.

IV- Beyond Judicial Recourse : Establishing a Strategy for the Development of Your Company

Beyond the possibility of challenging in court the ranking of offers and the award of the public contract to a candidate, it is important for rejected candidates to request the maximum amount of information that can be transmitted, in order to improve future offers.

The development of applications for public contracts must be part of a real development strategy for your company.

It is important to invest human and material resources so that the offers developed by the company pass the eligibility stage, then improve, in order to be better ranked, which will finally allow you to obtain the award of public contracts.

Useful Links:

https://entreprendre.service-public.fr/vosdroits/F32213