T-403/12: A letter of the awarding authority informing a tenderer of the decision not to award the contract to the consortium of which it was part is a challengeable decision irrespective of the reference in it to a time-limit for informing the contracting authority of its disagreement or for requesting further information from it; the inertia of the contracting authority at the expiry of the time-limit fixed in paragraph of the Practical Guide cannot be classified as an implied decision to reject the applicant’s complaint; it cannot be accepted that the risk of a conflict of interests can be based on the mere fact that the applicant had access, before the other tenderers, to the documents specific to another call for tenders because it belonged to the consortium which prepared those documents which, subsequently, were retained to be used as a reference for the activities associated with the call for tenders at issue in the present case; to classify the documents prepared in the context of another tendering procedure as ‘preparatory work’, on the basis that they have been retained by the contracting authority as a reference for the activities connected to a subsequent tendering procedure, would lead, as the applicant rightly maintains, to it being automatically considered that the experience acquired through participation in an earlier call for tenders is liable to distort competition.

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