I PUBLIC LAW I Contractual Breach in Public Procurement: Must a Ground for Exclusion Exist Before the Rejection of a Bid?

A breach of contractual obligations during the performance of a previous public procurement contract, justifying exclusion from a tendering procedure, can only have occurred before the decision to reject the bid.

Grenoble Administrative Court, December 1, 2025, No. 2511760

1) Facts

The Savoie Public Housing Authority (OPAC de la Savoie) launched a negotiated procedure for the award of a public works contract. Eko Fenêtres was informed, by letter dated October 15, 2025, that its bid had been rejected due to serious and persistent breaches of its contractual obligations in the performance of a previous public procurement contract. It was in this context that the summary proceedings judge was seized.

2) Buyer’s Argument

The buyer argued that Eko Fenêtres was responsible for numerous shortcomings in other public contracts, including defective workmanship, failure to perform services, repeated, prolonged, and unjustified delays on construction sites, and finally, the termination of two contracts on November 7 and 10, 2025.

3) Court’s Decision

The court overturned the decision of the Savoie Public Housing Authority (OPAC de la Savoie) for two reasons.

Firstly, the various “shortcomings” cited by the buyer do not fall within the scope of Article L. 2141-7 of the French Public Procurement Code (CCP). Indeed, defective workmanship, failure to perform services, and repeated, prolonged, and unjustified delays cannot be equated with cases of “payment of damages” or “serious or persistent breach” of contractual obligations. The Court also adds that “no significant penalty is mentioned.”

Furthermore, the two terminations cited by the contracting authority cannot justify the candidate’s exclusion, since they occurred after October 15, 2025, the date of the rejection decision.

The candidate was therefore justified in arguing that the contracting authority disregarded the provisions of Article L. 2141-7 of the French Public Procurement Code (CCP) by excluding them from the procurement procedure. The Court therefore orders the contracting authority to restart the procedure at the stage of analyzing the applications.

4) What are the key takeaways from this decision?

With this ruling, the administrative judge clarifies Article L. 2141-7 of the French Public Procurement Code, stipulating that the termination referred to in this article, which justifies exclusion from the procurement procedure, must have occurred before the decision rejecting the application on this basis.

However, the usefulness of this decision and the order for the buyer to restart the procedure at the application review stage for the candidate is questionable. Given that the exclusion decision of October 15, 2025, was irregular (because it predated the terminations affecting the candidate), a new exclusion would be legitimate (because it would be subsequent to the terminations) if the buyer decided to continue the award procedure.

Thus, although Eko Fenêtres has won its case, it is highly likely that it will be excluded again, this time in a perfectly legitimate manner.