To be informed and to take action in the event of rejection of a tender for a public contract

Verified 15 December 2023 - Legal and Administrative Information Directorate (Prime Minister)

Following the call for competition, the buyer must choose the most economically advantageous tender. He must then inform the unsuccessful candidate companies. They have the opportunity to appeal.

To award the contract, the buyer evaluates and analyzes the bids received.

Before any ranking or rating, it must discard irregular, unacceptable or inappropriate offers. The applicant company must carefully read all the consultation documents to prevent his offer from being rejected.

Tenders are therefore automatically eliminated without being examined in the following cases:

  • Irregular offer : incomplete offer that does not meet the requirements set out in the consultation documents (e.g. some requested documents are missing, several items in the price list are not fulfilled). It is also an offer that does not comply with the applicable social and environmental legislation, or the rules on subcontracting or taxation.
    An abnormally low bid (OAB) also constitutes an irregular bid. This is a bid which is significantly underpriced and likely to jeopardize the proper performance of the contract. In the event of suspicion of an abnormally low tender, the buyer is obliged to ask the applicant company to justify the price or costs quoted in its tender. This also applies where the applicant company uses subcontracting.
  • Unacceptable offer : tender the price of which exceeds the budget appropriations established for the contract before the procedure was launched. If the buyer's budget allows him to accept the offer received, he cannot dismiss it even if its price is well above the estimated amount of the contract.
  • Inappropriate offer : Offering that meets a need other than that expressed by the buyer (for example: Offering desktop computers while the subject of the contract is notebook computers)

FYI  

Irregular tenders, and tenders which are unacceptable in certain procedures, may be regularized.

The buyer who detects a abnormally low supply must ask the applicant company to provide details and justification of its amount.

The justifications which may be taken into account include the following:

  • Method of manufacture of products, methods of service provision or method of construction
  • Technical solutions adopted or exceptionally favorable conditions of the applicant to supply the products or services
  • Applicable environmental or social regulations at the place of supply

The buyer who requests details must seriously check the composition and quality of the offer in the light of the justifications. After verification, the buyer rejects the offer if the bidder does not satisfactorily justify the low price or costs he has offered. If, on the other hand, the applicant has properly justified the price of the tender, the tender shall be reclassified as a tender normal.

Where the applicant company uses the subcontracting, the purchaser must carry out a check to ensure that, depending on the subcontracted services announced, the amount is not abnormally low. Where the amount appears to be abnormally low, the purchaser must require the supplier to provide him with details and justifications concerning the amount of subcontracted services. If, after verification, the information and justifications provided by the supplier do not enable the purchaser to explain the price applied, the tender shall be regarded as abnormally low and the public purchaser must reject it.

Tenders may be adjusted but only at the request of the public purchaser.

Adjustment must not lead to changes in the substantive characteristics of the tenders. It is used to correct material errors or to correct minor omissions. For example, a price indicated over the total duration of the contract, when it was requested on an annual basis, may give rise to regularization.

Where the public purchaser wishes to permit the regularization of tenders, it must do so for all candidate companies whose tenders may be regularized in the name of the principle of equal treatment of candidates.

The type of offer that can be regularized depends on the procedure.

Adapted procedure without negotiation or tendering

Only offers irregular may be regularized. This is not the case for unacceptable or inappropriate offers.

The regularization of the tender must not lead to a change in the substantive characteristics of the tender. Where the irregularities are manifestly too great to be regularized without bringing about a significant change in the offer, regularization shall not be possible. An offer that does not include an important document such as the technical brief cannot be regularized.

The buyer

Example :

The following offers may be regularized:

  • Offer with a simple hardware error
  • Offer of which the unit price statement (BPU) refers to a cleaning product that does not comply with environmental legislation.
  • Tender submitted in paper form, although it was necessary to submit it in electronic form.
Other procedures

Inappropriate offers are eliminated. The offers irregular or unacceptable may be negotiated to become regular or acceptable.

At the end of the negotiations, if certain offers are still irregular, they may be regularized at the request of the buyer.

Warning  

An abnormally low supply (OAB) cannot never be regularized.

The buyer first rejects irregular, unacceptable or inappropriate offers, and then ranks the admissible offers.

After selecting the most economically advantageous tender, it shall inform the unsuccessful candidates that their tender has been rejected.

The information transmitted depends on the procedure:

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Adapted procedure (Mapa)

In Mapa, the buyer must notify each applicant of the rejection of its application or offer.

On the other hand, in order to ascertain the reasons for the rejection of its tender, the candidate company must make a written request to the public purchaser.

The buyer sends him the grounds for rejection of the tender within 15 days of receipt of the request. This is the final ranking and the marks awarded in the implementation of the judgment criteria. The mere communication of scores obtained without explanation is not sufficient.

Where the tender was not inappropriate, irregular or unacceptable, the buyer must also inform the applicant company of the characteristics and advantages of the tender selected and of the name of the person to whom the contract was awarded.

Formalized procedure

The buyer notify each applicant shall reject his tender, stating the reasons for the rejection.

It shall also specify the name of the candidate selected and the reasons for selecting his tender and the expected date of signature of the contract.

In addition, at the request of any candidate (also called tenderer) whose rejected offer was not irregular, unacceptable or inappropriate, the buyer shall, within 15 days of such request, communicate the following:

  • Information on the progress and progress of negotiations or dialog, where they have not yet been completed
  • Features and benefits of the winning bid

The notification of a rejection of an application shall cause the time-limits for appeals to run. It is also the starting point for formalized procedures standstill period.

The candidate company who is not selected is informed by the public purchaser of the following manner :

  • For public contracts below €40,000 HT, it is the operational services that inform the unsuccessful candidate by e-mail or by post with AR.
  • Where the public contract is greater than or equal to €40,000 HT, the application dossier and the tender must be sent via a dematerialization platform called " buyer profile ”. The unsuccessful candidate is informed through this buyer profile.

A candidate who considers that he or she has been unjustly removed may challenge the rejection of his or her offer. It may carry out so-called "emergency" procedures either before the contract is signed or after it has been signed.

For this purpose, he may exercise pre-contractual interim measures before the contract is signed or contractual interim measures after the contract has been signed.

Before the contract is signed

A candidate who considers that he has been unjustly removed may challenge the rejection of his tender in the course of a pre-contractual interim measure.

This is an emergency appeal that automatically suspends the signing of the public contract until the administrative judge rules.

The pre-contractual interim measures court may be seised until the contract has been signed.

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Adapted Procedure Contract (Mapa)

In an adapted procedure contract, there is no no minimum time limit obligatory between the date of dispatch of the notification to the unsuccessful candidate and the date of signature of the contract. However, the buyer generally applies a waiting period of at least 24 hours.

The evicted company must therefore act quickly if it wishes to refer the matter to the administrative judge.

Formalized procedure

A minimum period of 11 days must be respected by the buyer between the notification to the candidate that he is not selected and the signature of the contract.

This standstill period allows the ousted company to bring the matter before the administrative court.

Please note

It is recommended to get in touch with a lawyer to refer the matter to the administrative judge even if this is not an obligation.

The judge has 20 days to deliver his judgment.

The powers of the pre-contractual interim relief judge are very broad. For example, it may order the buyer to comply with his obligations, delete the terms of the contract, order the whole procedure to be repeated, require the reinstatement of an ousted candidate or require the communication of the reasons for rejection.

After the contract has been signed

Contractual interim measures are urgent procedures which may be exercised by an unsuccessful candidate after the contract has been signed.

You have to respect the time limits following:

  • or 31 days from the publication of a notice of award for formal procedures
  • six months after the conclusion of the contract, if no notice of award has been published or if no notification of the contract has been given.

This procedure may be used in the following cases:

  • Failure to comply with disclosure rules (e.g. failure to publish in the Official Journal of the European Union (OJEU) if mandatory)
  • Failure to observe the waiting period between the date of notification and the signature of the contract (standstill period)
  • Infringement of the suspension of the signature of the contract linked to the referral to the pre-contractual interim measure

Once seized, the administrative judge has a one-month period to decide.

It verifies that the shortcomings alleged by the ousted candidate “affected his chances of obtaining the contract”.

The judge can take one of the decisions to suspend performance of the contract for the duration of the proceedings, to annul or terminate the contract or to impose a financial penalty, for example in the event of infringement of the standstill period.

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