Le caractère définitif du décompte général d'un marché n'est pas d'ordre public

The definitive nature of the general statement of a contract is not of public order

by gmorales on 19 December 2014 | Category: Public markets
Le caractère définitif du décompte général d'un marché n'est pas d'ordre public Le caractère définitif du décompte général d'un marché n'est pas d'ordre public

Le caractère définitif du décompte général d'un marché n'est pas d'ordre public

The Conseil d'Etat confirms its case-law according to which the means relating to the unique, exhaustive and definitive character of a general statement are not of public order. In other words, the administrative court seised of a dispute over sums due under a public contract is not required to raise of its own motion the plea of finality of the contract.

Rule n ° 1:

The parties to a public works contract may contractually agree that all transactions resulting from the execution of the contract shall be included in an account of which no element can be isolated and of which only the balance, determined at the time of the establishment of the final account, determines their definitive rights and obligations.

Rule n ° 2:

The parties are free to derogate contractually from the principles of uniqueness, intangibility and completeness of the general statement.

Practical advice :

- If you are a contracting authority: In order to protect you from possible difficulties during the performance of the contract, it is useful to sign the general account with precisely defined reserves, in order to calculate and include in the account, on the liabilities of the holder, the amounts corresponding to the malfunctions, disorders or any other damage. For example, you can claim money from the owner who does not fix the imperfections (CE 20 March 2013, Versailles Hospital Center, n ° 357636). In practice, the contracting authority has no choice but to refuse the payment of certain sums included in the draft contract statement explaining the reasons for its refusal: this is the purpose of the reservations. Amounts not subject to a reservation may be paid immediately.

- If you are a candidate: Check the time limit to dispute the general count (cf article 13.4.5 of the CCAG travaux). Once this period has elapsed, the general statement becomes final and it is no longer possible to call it into question except in special cases such as fraud or fraud. The decision of the Council of State reminds that the parties are free to waive the intangibility of the count (CAA Lyon, July 4, 2013, BRB Construction Company, n ° 12LY02398).

CE November 3, 2014, Société Bancillon BTP, req. n ° 372040

Board of state

N ° 372040
ECLI: FR: CESSR: 2014: 372040.20141103
Mentioned in the tables of Lebon collection
7th and 2nd subsections combined
Mr François Lelièvre, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP NICOLAY, LANOUVELLE, HANNOTIN, lawyer (s)

Reading of Monday, November 3rd, 2014
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the summary appeal and the complementary memorandum, registered on September 10th and December 11th, 2013 with the secretariat of the litigation of the Council of State, presented for the company Bancillon BTP, whose seat is street of Equality with Garrigues-Sainte-Eulalie ( 30190); the company Bancillon BTP asks the Council of State:

1 °) to annul the judgment n ° 11MA02221 of July 8, 2013 of the Administrative Court of Appeal of Marseille insofar as it has, on the one hand, rejected its conclusions concerning the interests moratory on the monthly installments n 7 and 8 and, on the other hand, set 7 October 2008 as the starting point for default interest on the balance;

2 °) settling in this double measure the case on the merits, to grant his appeal;

3 °) to charge the State the payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice;

Considering the other parts of the file;
Given the code of public contracts;
Considering the code of administrative justice;
After hearing in open session:

- the report of Mr François Lelièvre, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the company Bancillon BTP;

1. Considering that the appeal of the society Bancillon BTP tends to the cancellation of the judgment of 8 July 2013 of the Administrative Court of Appeal of Marseilles only as it has, on the one hand, fixed to 7 October 2008 the starting point for default interest on the balance of the market it had concluded with the State and, secondly, rejected its conclusions on interest on the moratory installments on the monthly installments No. 7 and No. 8 of the same market ; that, consequently, the means which it raises in its memory in reply against other reasons of the judgment attacked must be dismissed as inoperative;

2. Whereas it follows from the uncontested statements in the judgment under appeal that a draft final statement prepared by Bancillon BTP was notified to the Minister of Defense on 18 July 2008; that if the Bancillon BTP company argues that a previous draft final statement would have been notified as of February 18, 2008, it is not apparent from the documents in the file submitted to the judges of the merits that the Minister of Defense would have received this first draft; that, consequently, by fixing the date of departure of the interests of moratorium taking into account the notification of July 18, 2008, the Administrative Court of Appeal of Marseilles did not distort the parts of the file which was submitted to him;

3. Whereas if the parties to a public works contract may agree that all the operations resulting from the execution of this contract are included in an account of which no element can be isolated and of which only the balance, when the establishment of the final account, determines their final rights and obligations, they are not required to do so; that, therefore, neither the unique and exhaustive character of such an account nor its final character, which are not of public order, can not be opposed of the office of the judge by the claims of a party; that, consequently, relying automatically on the uniqueness and exhaustiveness of the general count to reject the conclusions of the society Bancillon BTP which tended to the payment of interests moratory on installments, which had not been there resumed, the Administrative Court of Appeal of Marseille made an error of law; that, consequently, the society Bancillon BTP is justified to ask, in this single measure, the cancellation of the judgment attacked;

4. Considering that it is appropriate, in the circumstances of the case, to charge the State the payment of the sum of 3 000 euros to society Bancillon BTP under the provisions of Article L 761-1 of the Administrative Justice Code;

DECIDE:
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Article 1: The judgment of the Administrative Court of Appeal of Marseille of July 8, 2013 is set aside in so far as it rejects the conclusions of the company Bancillon BTP tending to the payment of interest on arrears on installments n ° 7 and n ° 8 .
Article 2: The case is referred, in the measure of the cassation pronounced, to the Administrative Court of Appeal of Marseilles.
Article 3: The State will pay the company Bancillon BTP the sum of 3 000 euros under the provisions of Article L. 761-1 code administrative justice.
Article 4: The remainder of the appeal is dismissed.
Article 5: This decision shall be notified to Bancillon BTP and the Minister of Defense.

Summary :

39-05-02-01 If the parties to a public works contract may agree that all transactions resulting from the execution of this contract are included in an account of which no element can be isolated and of which only the balance when they draw up the final statement of accounts, determine their final rights and obligations, they are not bound by them. Therefore, neither the unique and exhaustive nature of such an account nor its finality, which are not of public order, can not be automatically opposed by the judge to the claims of a party.

54-07-01-04-01-01 If the parties to a public works contract may agree that all operations resulting from the performance of this contract are included in an account from which no element can be isolated and of which only the balance, determined at the time of drawing up the final account, determines their definitive rights and obligations, they are not required to do so. Therefore, neither the unique and exhaustive nature of such an account nor its finality, which are not of public order, can not be automatically opposed by the judge to the claims of a party.

Rappr., On the conditions of enforceability of the finality of the count, CE, July 6, 1992 SARL Company J. Rabadan et Cie, T. p. 1113.