Fixed-price contract: validity of a limitation clause of the owner's responsibility in case of errors tainting the business consultation file
In a judgment dated 9 January 2015, the Council of State held that the contracting authority may provide in its specifications that it is up to the candidates to verify the information contained in the companies' consultation file. In this hypothesis, the holder of the contract does not then, in the course of execution, to take advantage of the insufficiency of the specifications to obtain the payment of additional works.
Rule n ° 1:
The contracting authority may stipulate in the specifications that the soil survey submitted is only indicative and that it is up to the applicant undertaking to undertake a complementary reconnaissance campaign if it considers that the soil investigation is insufficient, incomplete or even erroneous.
Such a clause has a dual advantage for the contracting authority: the first, to protect it against any action for contractual liability, the second, to exempt it from the payment of additional work, even if the latter were essential to the performance of the contract. contract in the rules of art.
Rule n ° 2:
In the same way, the contracting authority may stipulate in the specifications that the general description of the works communicated to the candidates does not commit it and that it is their responsibility to go to the site "before submitting their offers" to verify the the state of the existing works and to estimate exactly, according to this state, the volume and the cost of the works.
Such a clause has the same advantages for the contracting authority: the impossibility for the holder that he can usefully rely on a possible error of estimate on his part in the work to be carried out and to exonerate the contracting authority from the payment of the works even if they have been essential for the execution of the contract in the rules of art.
Observations alongside contracting authorities:
This judgment is in line with the jurisprudence of the Council of State that the contracting authority is free to insert in the specifications a clause to reduce or even to cancel any compensation in case of early termination of the contract (EC 19 December 2012, AB Trans, req. No. 350341).
Candidate side observations:
If the Council of State agrees to play such clauses during the execution of the contract, it remains that these:
- On the one hand, demonstrate a lack of need by the contracting authority, or an imprecision of the specifications preventing the candidates from submitting an offer in full knowledge of the essential elements of the agreement allowing them to assess the costs of the contracting party and to prepare a satisfactory offer (EC, 13 March 1998, Transport GALLIERO, application No. 165238);
- On the other hand, should lead the contracting authority, if it intends to require candidates to verify the soil study submitted in the consultation file of companies (and therefore to carry out at their own expense a new soil study) to compensate the candidates admitted to submit an offer pursuant to the provisions of Article 49 of the Code des Marches Publics.
The implementation of such a clause could therefore be criticized in the context of a pre-contractual summary proceeding by a candidate wishing to participate in the procedure or by an unsuccessful candidate.
Candidates have every interest in negotiating such clauses when they are authorized under the procedure.
Board of state
Unpublished collection Lebon7ème SSJS
Mrs Charline Nicolas, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP NICOLAY, DE LANOUVELLE, HANNOTIN; SCP LYON-CAEN, THIRIEZ, lawyer (s)
Reading of Friday, January 9, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the summary appeal and the complementary memorandum, registered on July 26th and October 28th, 2013 in the litigation secretariat of the Council of State, presented for the municipality of Agde, represented by its mayor; the municipality of Agde asks the Council of State:
1 °) to cancel the judgment n ° 10MA04563 of May 27, 2013 of the Administrative Court of Appeal of Marseilles as it, at the request of the company OTV France, on the one part, annulled the judgment n ° 0903566 of 22 October 2010 of the Administrative Court of Montpellier rejecting the request of this company tending to its condemnation to pay various sums in execution of a contract of works of extension and of putting in conformity of the municipal sewage treatment plant, and on the other hand, ordered it to pay the company € 350,428 with contractual interest from March 8, 2008;
2 °) settling the case on the merits, to dismiss the appeal of the company OTV France;
3 °) to charge the company OTV France the payment of the sum of 6,000 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 Mrs Charline Nicolas, auditor,
- 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 municipality of Agde, and to SCP Lyon-Caen, Thiriez, lawyer of the company OTV France;
1. Considering that, in the contested judgment ruling on the public works contract by which the municipality of Agde entrusted the company OTV France the extension and the compliance of the municipal wastewater treatment plant, the court appeal court of Marseilles condemned the municipality of Agde to compensate the company OTV France for, on the one hand, additional foundation work and, on the other hand, additional work carried out on the existing structures of treatment of sludge; that the court has also rejected the conclusions of the company tending to the application of the contractual clause of revision of the prices on the corresponding sums as well as the claims compensation related to the lengthening of the duration of the market; that the municipality appeals in cassation against this judgment insofar as it condemned to compensate society OTV France; By cross-appeal, that company seeks the annulment of the same judgment in so far as it does not retain the entirety of the sums of which it asked for payment.
2. Considering, firstly, that under Article 6 of the special technical clauses of the contract in question, the geotechnical characteristics of the soil "are defined in the soil survey report attached to this dossier. The assumptions concerning the calculation of the structures and the supports will be specified by the contractor in the light of the elements contained in this report. The company is reminded that all the information mentioned in the report is provided for information only, without it being considered as likely to engage the client or the project manager. / The company may undertake a complementary reconnaissance campaign at its expense if it considers that the elements mentioned in the soil study do not allow it to perform the works safely "; that according to the article 1.8 of the book of the particular administrative clauses of the market, on the state and the knowledge of places: "the entrepreneur is deemed to have realized on the site of the importance and of the the nature of the work to be carried out and all the difficulties of execution related to the nature of the land and the characteristics of the existing installations. / It is reminded that the entrepreneur can not claim, after the awarding of his prize, an insufficient knowledge of the sites, places and land of the works, the existing installations to be renovated and all the local elements likely to interfere in the execution of works, such as the nature of the soil (...). / The information given in the documents provided to it are only elements of information that it will be up to the contractor to complete under his responsibility. " that according to article 7.3 of the same booklet: "A geotechnical study is provided in the annex, however, during the study phase, and at his expense, the contractor may propose additional soil tests that he would consider it necessary to the right of the projected works. He will have to interpret the results to justify the proposed foundations. Any intervention must receive the prior consent of the supervisor. "
3. Considering that in considering that the insufficiencies and errors appearing in the study of ground joined by the municipality of Agde to the documents of the consultation constituted a fault incurring the contractual responsibility of the latter, while it results clearly from the contractual stipulations mentioned above that this soil survey was only indicative and could not engage the responsibility of the municipality, the court has distorted the documents of the file;
4. Considering, secondly, that under Article 8 of the special technical clauses of the contract in question, relating to existing works: "The general description of the works is given below. However, the company will have to go to the site to verify all the information given in this program to be able to determine as much as possible the work of modification of works and ancillary materials, or even their demolition and removal. (...) / The company could not in any case claim an imperfect knowledge of the site for the elaboration of its project ";
5. Considering that in judging that the stipulations cited above did not hinder the compensation of the additional work on the existing works of treatment of sludge since this work was essential to the execution of the contract in the rules of art, while, requiring applicants to check, before submitting their offers, the information provided by the municipality in the consultation file on the condition of existing structures and estimate according to this state the cost of work to be done, they prevented the company from availing itself of its error of estimation, the court also distorted the documents in the file;
6. Considering that it follows from all the foregoing that the municipality of Agde is entitled to request the annulment of the judgment under appeal as it condemns it to compensate the company OTV France and that it decides on the amount of this compensation; that, consequently, the incidental appeal formed by the company OTV France, which tends to the annulment of the judgment in so far as he did not condemn the commune to pay a higher sum, can only be rejected ;
7. Considering that it is necessary, in the circumstances of the case, to settle the case on the merits to the extent of the cassation pronounced, pursuant to the provisions of Article L. 821-2 code administrative justice
8. Considering that contrary to the claim of the applicant company, the Montpellier Administrative Court ruled on the plea alleging the contractual fault of the municipality resulting from the provision of an erroneous soil study; that his judgment is therefore not irregular;
9. Considering in the first place that, as was stated in points 2 and 3, the soil study attached to the consultation file by the municipality of Agde was provided, according to the very stipulations of the the special administrative clauses (CCAP) and the special technical clauses (CCTP), for information only and without being able to engage the responsibility of the municipality; whereas, moreover, it has not been established that this study was carried out on land other than that on which the work provided for by the contract was carried out; that the society OTV France is therefore unfounded to maintain that the errors or insufficiencies on the nature of the soil which would be contained in this study constitute a fault of the commune likely to engage its contractual responsibility for the compensation additional foundation work that she had to undertake because of the real nature of the soils; Nor is the applicant company justified in claiming compensation for the additional work of the foundations on the ground that it would have been indispensable for the performance of the contract in the rules of art, the company being required to bear - even in view of the terms of the contract, the pecuniary consequences of the lack of verification, by him, of the data of the soil survey provided for purely indicative purposes;
10. Secondly, as stated in paragraphs 4 and 5, the provisions of Article 8 of the CCTP required the applicant to verify the condition of existing sludge treatment and treatment equipment. to estimate exactly, according to this state, the volume of the works to be carried out without it being possible later to avail itself of a possible error of estimation on its part; that it has not been established that the fact that parts of the sludge treatment works were submerged made it impossible for the company to verify their condition; that, consequently, the company is not justified in claiming compensation for additional work on these works on the sole ground that they were essential to the execution of the contract in the rules of art;
11. Considering that it is also not established that the municipality of Agde knowingly concealed the real state of these works and that it thus committed a fault in not revealing this information; whereas, moreover, if the company invokes the unjust enrichment of the municipality, it does not adduce this means, moreover insusceptible to be presented by the co-contractor of the public person, precisions allowing to appreciate the scope;
12. Considering that it follows from all of the foregoing that the company OTV France is unfounded to maintain that it is wrong that, by the judgment under appeal, the Administrative Court of Montpellier rejected his request;
13. Considering that it is appropriate, in the circumstances of the case, to charge the company OTV France the sum of 4 500 euros to be paid to the municipality of Agde on the basis of the provisions of the Article L. 761-1 of the Code of Administrative Justice under the procedure followed before the Council of State and the Administrative Court of Appeal; These provisions, however, prevent an amount from being charged to the municipality of Agde, which is not, in the present case, the losing party;
Article 1: The judgment of 27 May 2013 of the Administrative Court of Appeal of Marseille is annulled in so far as it condemns the municipality of Agde to compensate the company OTV France and decide on the amount of this compensation.
Article 2: The cross-appeal of the company OTV France and its application presented to the Administrative Court of Appeal of Marseille are rejected, as well as its conclusions presented under Article L. 761-1 code administrative justice.
Article 3: The company OTV France will pay to the municipality of Agde a sum of 4 500 euros under Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the municipality of Agde and the company OTV France.