Vignette dossier marchés publics

Terms of settlement of a public contract terminated at the expense and risk of a defaulting party

by gmorales on 12 December 2014 | Category: Public markets
Modalités de règlement d'un marché public résilié aux frais et risques d'un cocontractant défaillant Modalités de règlement d'un marché public résilié aux frais et risques d'un cocontractant défaillant

Modalités de règlement d'un marché public résilié aux frais et risques d'un cocontractant défaillant This case makes it possible to recall the procedures for executing a public contract at the expense and risk of a defaulting contractual partner and the terms of settlement of the terminated contracts. In this case, the Protect Sécurité company, awarded a contract for the maintenance and full guarantee of the fire extinguishers of Paris Habitat - OPH, requested the termination of the contract, given its inability to properly execute the market, and requested the establishment of the termination statement. The contracting authority refused to terminate the contract on these terms and put the company on notice to comply with its contractual commitments. In the event of the contractor's default, the contracting authority then pronounced the termination of the contract to the wrongs with execution at the expense and risk of the winning company.

Rule n ° 1: 

Provided it is expressly provided for in the specifications, the contracting authority may provide for the performance of the services provided for in the contract by another company at the expense and risk of the defaulting contractor.

Rule n ° 2:

In case of execution at the expense and risk, the additional cost being known only after the settlement of the substitute market to the successor company, the defective holder can not obtain the general statement of his market, for the settlement of sums in respect of the services performed, only after final settlement of the new contract awarded for the completion of the benefits.

Rule n ° 3:

In the event of termination of the contract holder's costs and risks, the latter shall bear the additional costs incurred by the contracting authority with the award of a substitute contract with another firm entrusted with the performance of the defaulting contractor's performance. .

Rule n ° 4:

Subject to binding the dispute (that is to say, to be able to bring an action for compensation, the applicant must first submit a request to the administration making his claims), the defective holder whose contract has terminated at its expense and risk, may appeal to the contract judge to have the irregularity or unfoundedness of the termination noted. He may demand the settlement of the sums due to him without waiting for the final settlement of the new contract after, if need be, that the judge of the contract has obtained from the parties the elements making it possible to establish the general account of the terminated contract.

Practical advice :

- If you are a contracting authority : Take time to write the clauses of termination of the contract by considering the various hypotheses (fault of the holder, unilateral termination by the administration, case of absolute necessity ...). Give as much practical and technical information as possible to allow candidates to propose an adapted offer, failing to oppose, in case of litigation, an imbalance in the general market economy.

- If you are a candidate: Respond to a consultation only if you are able to perform the service in the best conditions, at the risk of having to pay penalties or to be opposed by the market to your faults, which, in the end, will result in additional costs.

CAA Paris, September 30, 2014, Protect Security Company, req. n ° 12PA02325

CAA of PARIS

No. 12PA02325
Unpublished at Lebon collection
7th bedroom
Mrs. DRIENCOURT, President
Mr Frédéric PUIGSERVER, rapporteur
Mr BOISSY, public rapporteur
CHATON, lawyer (s)

Reading of Tuesday, September 30, 2014
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the request, registered on May 29, 2012, presented for the company Protect Security, whose head office is at 18-22 rue d'Arras, in Nanterre (92000), by Me Chaton; Protect Security asks the Court:

1 °) to cancel the judgment n ° 1111225 of March 30, 2012 by which the Administrative Court of Paris rejected his request tending to the establishment of the general count of termination of the contract passed on December 29, 2009 with the Public Office of l Paris housing (Paris Habitat - OPH);

2 °) to establish this count, by charging Paris Habitat - OPH the unpaid invoices, up to 17,071, 30 euros, and by setting aside the penalties for delay in execution;

3 °) to charge Paris Habitat - OPH the sum of 3,000 euros on the basis of Article L. 761-1 code administrative justice and the sum of 35 euros corresponding to the contribution for the aid provided by Article R. 761-1 of the Administrative Justice Code;

Considering the other parts of the file;

Considering the general administrative clauses of the public supply and service contracts, approved by order of January 19th, 2009;

Considering the code of administrative justice;

Parties having been regularly informed of the day of the hearing;

After hearing during the public hearing on September 12, 2014:

- report by Mr Puigserver, first counselor,
- the conclusions of Mr Boissy, public rapporteur,
- and the observations of Me Chaton, a lawyer of Protect Sécurité;

1. Considering that, by an undertaking signed on 29 December 2009, Paris Habitat - OPH, a local public establishment of an industrial and commercial nature, awarded Protect Sécurité a contract for the maintenance and total guarantee of fire extinguishers located both in the parking lots and in the spaces allocated to generators, distributed in the assets managed by the public office, for the period from 1 January 2010 to 31 December 2014; that difficulties of execution were quickly presented, which gave rise to various exchanges of letters and meetings as from November 2010; that, by a statement of claim received on April 14, 2011 by Paris Habitat - OPH, the company Protect Security asked for the termination of the contract, because of the difficulties of execution encountered, and the establishment of the count of termination; that, by a mail of May 30, 2011, the public establishment refused to proceed to the termination of the contract with these conditions and put in residence the holder to comply with its contractual commitments; that, failing for the holder to have deferred, Paris Habitat - OPH pronounced the termination of its market at its expenses and risks by a decision of July 12, 2011; that Protect Security Company is appealing the judgment of the

March 30, 2012 of the Administrative Court of Paris, as, by this judgment, the first judges, after finding that it was no longer necessary to rule on its conclusions for the purpose of termination, rejected his request to the drawing up of the contract statement as inadmissible;

The lawfulness of the judgment under appeal:

2. Considering that under Article 32 of the general administrative clauses of the public supply and service contracts (CCAG-FCS), devoted to the termination for fault of the holder: "32.1. The contracting authority may terminate the contract for fault by the holder in the following cases: (...) c) The holder has not fulfilled his obligations within the contractual deadlines (...) g) The holder declares, independently cases provided for in Article 30.1, not being able to fulfill its commitments (...) "; that under Article 36 of the same specification, relating to the performance of the performance at the expense and risk of the holder: "36.1. Provided that the particular contract documents so provide and the termination decision expressly mentions it, the contracting authority may have a third party carry out the services provided for in the contract, at the expense and risk of the contractor. .) in the event of termination of the contract pronounced to the fault of the holder (...) 36.3. The holder of the terminated contract is not allowed to take part, either directly or indirectly, in the performance of the services provided at his own expense and risk. However, he must provide all the information collected and the means used in the execution of the initial contract which would be necessary for the performance of this contract by the third party designated by the contracting authority. 36.4. The increase in expenses, in relation to market prices, resulting from the performance of the services at the expense and risk of the holder, is the responsibility of the holder. The decrease in expenses does not benefit him "; that according to Article 11 of the same book, specifying the terms of payment: "11.4.2 In the event of performance of services at the expense and risk of the defaulting holder, the additional cost borne by the contracting authority, corresponding to the difference between the price which he should have paid to the holder for the performance of the services and the price actually paid for the performance thereof in place of the defective holder, is deducted from the sums due to the holder in respect of the allowable benefits "; that according to article 34 of this book, devoted to the count of termination: "34.1. The cancellation is the subject of a termination statement, which is drawn up by the contracting authority and notified to the holder (...) 34.3. The notice of termination pursuant to a termination decision made under section 32 shall include: 34.3.1. Debit from the holder: - the amount of the sums paid as advance, down payment, final partial payment and balance; - the value, fixed by the contract and any amendments thereto, of the means entrusted to the holder which the latter can not restore, and the resumption value of the means which the contracting authority assigns to the owner by agreement; - the amount of the penalties; - where applicable, the additional expenditure resulting from the award of a contract at the expense and risk of the holder under the conditions laid down in Article 36. 34.3.2. To the credit of the holder: - the contractual value of the benefits received, including, where applicable, default interest; - the value of the services provided, if necessary at the request of the contracting authority, such as the storage of supplies (...) 34. 5. The notification of the statement by the contracting authority to the holder must be made at the latest two months after the date of effect of the termination of the contract. In this case, penalties for late payment are applied until the day before the day of the effective date of termination ";

3. Considering that it follows from the aforementioned stipulations that, in the event of termination of the contract holder's costs and risks, pursuant to Article 32 of the CCAG-FCS, the latter shall bear, under the terms of the Article 36, the additional cost of expenses resulting from the award of a substitute contract, settled in the manner provided for in Article 11; whereas, since this additional cost is known only at the time of the settlement of the substitution market, the period of two months after the date of the termination of the contract provided for in Article 34 for the notification of the termination notice, can not be applicable in this case; that, consequently, the contracting party of the Administration whose contract has been terminated at his expense and risk can not obtain the general statement of this contract, with a view to the payment of the sums due for the services performed, only after final settlement the new contract awarded for the completion of benefits; that the conclusions presented to the judge of the contract for the settlement of amounts contractually due before the final settlement of the new contract are thus inadmissible; these provisions, applicable when the market has been terminated regularly, do not however prevent that, provided that the dispute is related, the contracting party whose contract has been terminated at his expense and risk to seize the judge of the contract in order to the irregularity or unfounded nature of the termination and, as a result, demand payment of the sums due to him, without waiting for the definitive settlement of the new contract after, if applicable, that the contract judge has obtained parts the elements allowing to establish the general account of the terminated contract;

With regard to the regularity of the termination:

4. Considering that under the terms of article 16 of the special administrative clauses (CCAP) applicable to the contract and relating to the termination: "16.1 General provisions. In accordance with the provisions of chapter VI of the CCAG-FCS, the different cases of termination applicable to this contract are the following: - termination for events outside the market (death, liquidation, etc.); - termination for market-related events (special technical difficulties, force majeure); - termination for fault of the holder; - termination for reasons of general interest. 16.2 Execution at the expense and risk of the holder. Paris Habitat - OPH may have the services provided by the contract performed by a third party, at the expense and risk of the holder, or in the event of non-performance by the latter of a service which, by its nature, can not suffer no delay, or in the event of termination of the contract pronounced to the fault of the holder. In this case, the termination decision will expressly mention the use of this provision "; that under Article 32 of the CCAG-FCS applicable to the contract: "32.1. The contracting authority may terminate the contract for fault by the holder in the following cases: (...) c) The holder has not fulfilled his obligations within the contractual deadlines (...) g) The holder declares, independently cases provided for in Article 30.1, not being able to fulfill its commitments (...) 32.2. Except in the cases provided for in i, m and n of 32.1 above, a formal notice, together with a time limit for execution, must have been notified in advance to the holder and be unsuccessful. As part of the formal notice, the contracting authority shall inform the holder of the proposed penalty and invite him to submit his comments ";

5. Considering that, contrary to what the company Protect Security supports, it follows from the stipulations mentioned in the preceding point that, in the case of termination of the contract to the fault of the holder, as is the case here, Paris Habitat - OPH had the possibility, after notification of a formal notice, to have a third party, at its own expense and risk, perform the services provided for in the contract; it follows that the termination pronounced by Paris Habitat - OPH at the expense and risks of the holder, after the formal notice of May 30, 2011, is not tainted with irregularity;

As to the merits of the termination:

6. Considering, on the one hand, that under Article 3 of the special technical clauses (CCTP) applicable to the contract: "The services defined below are intended to maintain or upgrade the characteristics extinguishers to comply with the regulations in force. As such, the holder must, in addition to maintenance services, all the services of decennial overhaul, replacement and renewal of equipment (parts and extinguishers NF EN3). The tests, adjustments and measurements that validate the operating conditions comply with the legislative and regulatory texts (...) as well as the normative texts (...) and professional rules (...) ";

7. Whereas, if Protect Sécurité relies on the obsolescence of the equipment of Paris Habitat - OPH, it results from the stipulations mentioned in the preceding point that it was incumbent on the holder, under the fixed part of its market, to put in accordance with extinguishers with the regulations in force;

8. Considering, on the other hand, that under section 3.1 of the CCSI of the market:

"This contract is a mixed market comprising: - a flat-rate part to ensure the continued operation of fire extinguishers present in parking lots and in the rooms affected by generators. The fixed part covers the preventive and curative maintenance as well as the total vandalism guarantee, - a part at unit prices for the services not included in the lump sum type defined in the CCTP, in particular, the restoration of the installations after the disaster and for groups not listed in annex no. 1 to the act of engagement (...) "; Article 6.1 of the same specification provided: "The services of a fixed nature shall ensure the continued operation of the extinguishers present in the parking lots and in the generating sets. They concern the preventive and curative maintenance as well as the total vandalism guarantee. Benefits are defined in article 3 of the CCTP (...) "; that according to article 2 of the CCTP: "1. The service. The holder generally organizes the maintenance of all extinguishers in place in parking lots and local generators. This is a preventive and curative maintenance, the latter resulting mainly from vandalism. Only claims are excluded from this total guarantee ";

9. Considering that it follows from the investigation, and motives, undisputed by the company Protect Security, the judgment appealed, that it has not respected the contract deadlines, for applications for intervention having purpose of the services, relating to the fixed part of this contract, of recharging and maintenance of extinguishers; furthermore, it requested, by its statement of claim of 12 April 2011, the termination of the contract, because of its unprofitable nature, and should therefore be regarded as having admitted not being able to honor its commitments;

10. Considering, finally, that the Protect Sécurité company argues that the partial non-fulfillment of its contractual commitments is rooted in the behavior of Paris Habitat - OPH, insofar as it was confronted with problems of access and security during his interventions; whereas, however, the minutes of the meetings of 4 November 2010 and 17 March 2011 show that the public establishment was not informed of the access problems which, according to the incumbent, hindered its interventions; that on this occasion, it was reminded the holder that it belonged to him, in case of difficulty or impossibility of access to the sites, to inform the person in charge of sector; It also follows from these documents that the vandalism-related interventions at this stage concerned fifteen sites in six months and that the financial impact of these interventions "has not been included in the financial offer submitted by the company "; that notwithstanding the invoices newly filed on appeal, relating to security services invoiced to Paris Habitat - OPH by third companies in July, August and November 2012, it has not been established that the incumbent would have been confronted, because of the the public establishment, to problems of access or security such that it would have been impossible to comply with its contractual obligations; Protect Sécurité further argues that it was not able, at the consultation stage, to be aware of the extent of vandalism to which the public institution's assets were subject, which it did not as a result, could not formulate its price offer knowingly and this resulted in an imbalance in the general market economy; that, in support of this argument, it relies on the fact that the financial balance of the market necessarily implied that fire extinguishers should be the subject of measures designed to protect them against vandalism, and put forward the annual fixed price selected for substitution markets; It follows, however, from the provisions cited in paragraph 8 that vandalism was identified as a particularly important risk by the parts of the market; that in view of this circumstance and the absence of evidence of the absence of Paris Habitat - OPH in the protection of its patrimony, the appellant company can not claim an economic imbalance in the conditions of execution of its market ;

11. Considering that in view of what has been said in points 6 to 10, the termination measure in question, which falls under c and g of Article 32.1 CCAG-FCS, mentioned in points 2 and 4, does not can be regarded as having an unfounded character;

12. Considering that it follows from the foregoing that Protect Sécurité Company does not establish that the termination, at its expense and risks, of the contract which it held would have been irregular or would be unfounded; that it could not, therefore, without awaiting the definitive settlement of the new contracts awarded for the completion of the services, to ask the establishment of the count of cancellation of the market;

13. Considering that it follows from all the foregoing that the company Protect Security is unfounded to maintain that it is wrong that, by the judgment under appeal, the Administrative Tribunal of Paris rejected, as inadmissible, the conclusions his request for the establishment of the termination statement for the current supply and services contract concluded on

December 29, 2009 with Paris Habitat - OPH;

The claims submitted on the basis of Articles L. 761-1 and R. 761-1 of the Code of Administrative Justice:

14. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the charging of Paris Habitat - OPH, which is not, in the present case, the losing party , the payment of the amounts claimed by Protect Sécurité in respect of the costs incurred by it and not included in the costs and the contribution paid for the legal aid; On the other hand, it is necessary to charge Protect Sécurité a sum of 2,000 euros to be paid to Paris Habitat - OPH on the basis of the provisions of Article L. 761-1 of the Administrative Justice Code. ;

DECIDE:

Article 1: The request of the company Protect Security is rejected.
Article 2: The company Protect Sécurité will pay to Paris Habitat - OPH a sum of 2,000 euros under article L. 761-1 code administrative justice.