Decision of a member of an excluded consortium from a public procurement contract to appeal alone against the award decision

Facts

The companies A. Sàrl and B. SA formed a consortium to submit a joint bid in the context of a public tender issued by the City of Geneva. After the bids were opened, the City of Geneva issued the award decision in favor of another candidate. On November 4, 2002, A. Sàrl appealed against this award decision, concluding for its annulment and the referral of the case back to the City of Geneva for a new award, subsidiarily for the finding of the unlawful nature of this decision and the condemnation of the City of Geneva to pay it damages.

The Administrative Tribunal of the Canton of Geneva declared A. Sàrl's appeal inadmissible, on the grounds that the latter did not have standing to appeal within the meaning of Art. 60 of the Geneva law on administrative procedure, as it had not proceeded jointly with B. SA with which it had formed a consortium to submit its bid.

Considerations

The Federal Tribunal examines the admissibility of the appeals submitted to it ex officio and freely. It considers that A. Sàrl has a current and practical legal interest in having its appeal examined, because even if the contracting authority has already concluded the contract with the successful bidder, it still has a legally protected interest in having the unlawfulness of the award decision established in order to be able, if necessary, to take action for damages against the contracting authority.

However, the Federal Tribunal rejects A. Sàrl's grievance of a violation of its right to be heard. Indeed, the fact alleged by A. Sàrl, namely its ability to execute the disputed contract alone in the event of the appeal being upheld, was not a decisive element in assessing its standing to appeal and therefore did not have to be investigated.

The Federal Tribunal also considers that the Administrative Tribunal did not violate the principle of the protection of good faith by indicating to A. Sàrl that it could appeal within a period of 10 days, without specifying that it had to do so jointly with B. SA. Indeed, it is up to the recipient of such a decision to determine, in the light of the law and case law, whether it has standing to challenge it before the appeal authority.

Finally, the Federal Tribunal finds that the Administrative Tribunal did not act in an arbitrary manner in…