Formal notice to establish the general count of the market: a simple mail is enough!
Rule n ° 1:
In the case where the client does not draw up the general statement of the contract, it is up to the contractor to put him in default to proceed, prior to any referral to the judge. This is an obligation of the contract holder pursuant to section 13-42 of the GAC-Works. The absence of formal notice renders inadmissible the referral to the judge for the purpose of establishing the balance of the contract (EC December 20, 1989, Gabrion, rec.Lebon p.784).
Rule n ° 2:
The Council of State considers that a simple letter asking for "kindly establish the general statement of the market" is worth warning within the meaning of the provisions of article 13-42 of the CCAG-Travaux. Remarks: this mail can be sent by post, by fax or even by email.
Board of state
N ° 371984
Stéphane Bouchard, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP BARTHELEMY, MATUCHANSKY, VEXLIARD, POUPOT; SCP BENABENT, JEHANNIN, lawyers
Reading of Wednesday, March 11, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the summary appeal and the complementary memorandum, registered on September 6 and December 3, 2013 to the litigation secretariat of the Conseil d'Etat, presented for the University Hospital Center of Nice, whose head office is 4 avenue Reine Victoria in Nice Cedex (06003) represented by its director; the University Hospital Center (CHU) in Nice asks the State Council:
1 °) to cancel the judgment n ° 11MA03509 of July 10, 2013 of the Administrative Court of Appeal of Marseilles as it, at the request of the company Tunzini Azur, after canceling the judgment n ° 0900383 of 17 June 2011 of the Administrative Court of Nice, sentenced to pay to this company the sum of 136,143.15 euros with interest from 30 December 2003 in compensation for the damage resulting from the extension of the duration of the contract of works of restructuring of the Pasteur Hospital in Nice;
2 °) settling the case on the merits to this extent, to reject the appeal findings of the company Tunzini Azur;
3 °) to charge the company Tunzini Azur the payment of the sum of 4 000 euros under Article L. 761-1 code administrative justice;
Considering the other parts of the file;
Considering the note under deliberation, recorded on February 26, 2015, presented for the CHU of Nice;
Given the code of public contracts;
Having regard to Decree No. 76-87 of 21 January 1976;
Considering the code of administrative justice;
After hearing in open session:
- the report of Mr. Stéphane Bouchard, Maître des Requests for Extraordinary Service,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Bénabent, Jehannin, lawyer of the university hospital center of Nice, and to the SCP Barthélemy, Matuchansky, Vexliard, Poupot, lawyer of the company Tunzini Azur;
1. Considering that it appears from the documents in the file submitted to the judges of the substance that the University Hospital Center (CHU) of Nice entrusted, by an act signed on June 19, 2000, within the framework of a public contract of works relating to a restructuring of the Pasteur Hospital in Nice, a lot of climatic engineering at Tunzini Industrie; that on appeal of the company Tunzini Azur, come to the rights of the company Tunzini Industrie, against a judgment of the administrative court of Nice of June 17, 2011, the administrative court of appeal of Marseilles has, by a judgment of July 10, 2013, condemned the University Hospital of Nice to pay the company a sum of 19,877.59 euros for the balance of the contract and a sum of 136 143,15 euros for the compensation of delays in the execution of work charged to the hospital, with default interest, and, moreover, has paid for expert fees; that the University Hospital Nice appeals against this judgment as it condemns to pay the sum of 136 143,15 euros with default interest from December 30, 2003;
2. Considering, in the first place, that under Article 13-41 of the general administrative clauses applicable to the relevant market: "The principal shall draw up the general account ..."; that according to the article 13-42 of the same cahier: "The general count, signed by the person in charge of the market, must be notified to the contractor by order of service ..."; that in the case where the principal does not establish the general account, it is up to the contractor to put it in default to proceed, prior to any referral to the judge; that, to judge the conclusions of the appellant company admissible, the Administrative Court of Appeal of Marseilles was able, without denaturing the parts of the file which was submitted to him nor taint his judgment of mistake of law, to judge that the mail in which the The company Tunzini Industrie asked the University Hospital of Nice to "kindly establish the general account" was in the nature of a formal notice to establish such a count;
3. Considering, secondly, that in order to find admissible the conclusions of the appellant Tunzini Azur before her, the court did not, contrary to the contention of the CHU of Nice, rely exclusively on the fact that the amendment signed by June 18, 2009 between the CHU and the company Tunzini Azur did not have the character of a transaction within the meaning of Article 2044 of the Civil Code; that, consequently, the University Hospital of Nice, which moreover does not support that the interpretation given by the court of this rider would be tainted of denaturation, is not founded to maintain that the court would have made the mistake of law consisting in reserving for the transactions only the faculty to include clauses of renunciation to form an appeal;
4. Considering, thirdly, that the court did not misrepresent the parties' submissions in holding that the CHU did not dispute the method of calculation used by the appellant company to quantify its damage; that his judgment is sufficiently motivated on this point;
5. Considering, fourthly, that under Article 178 of the Code des Marches Publics applicable to the facts of this case: "I. The Contracting Authority is obliged to proceed with the payment of advance payments and the balance in a This period may not exceed forty-five days, however, for the balance of certain categories of contract, a longer period may be fixed by order of the Minister responsible for the economy.This period may not be greater than three months. Failure to send an order within the period provided for in I. above shall entail default interest for the benefit of the contractor and the subcontractor from the day following the expiry of the said period until on the 15th day inclusive following the date of the principal's mandate "; that thus, the failure to mandate the balance of a market in the deadlines that it provides makes run as of right and without other formality, for the benefit of the holder or the subcontractor, interests moratory, which apply to all of the contractor's claims arising from the contract or a fault committed by the administration in the performance of this contract; that, consequently, the Administrative Court of Appeal did not make mistake of law by fixing, by application of the provisions of the code of the public contracts mentioned above, the point of departure of the interests moratory on the sum that it ordered the CHU to pay for the compensation for delays attributable to it, as of December 30, 2003, the expiry date of the mandate period for the contract in question;
6. Considering that it follows from all the foregoing that the University Hospital of Nice is not justified in requesting the annulment of the judgment under appeal;
7. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount to be put in this respect at the expense of Tunzini Azur company which is not, in the present instance, the losing party; whereas, on the other hand, in the circumstances of the case, it is necessary to charge the CHU of Nice a sum of 3,000 euros to be paid to Tunzini Azur under the same provisions;
Article 1: The appeal of the University Hospital Center of Nice is rejected.
Article 2: The University Hospital Center of Nice will pay a sum of 3,000 euros to the company Tunzini Azur under the provisions of Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the University Hospital of Nice and Tunzini Azur.