Modalités de calcul de l'indemnisation des dépenses exposées en raison des sujétions imprévues

Calculation of compensation for expenses incurred due to unforeseen constraints

by gmorales on September 6, 2015 | Category: Public markets
Modalités de calcul de l'indemnisation des dépenses exposées en raison des sujétions imprévues Modalités de calcul de l'indemnisation des dépenses exposées en raison des sujétions imprévues

Modalités de calcul de l'indemnisation des dépenses exposées en raison des sujétions imprévues CE 1 July 2015, Régie des eaux of the Belletrud Canal, n ° 383613
In this case, the Council of State provides useful information on how to calculate compensation for expenses incurred due to unforeseen constraints.

Rule n ° 1:

Where a public contract has been awarded on a fixed price basis, the contractor or subcontractor shall be entitled to compensation for expenses incurred as a result of unforeseen constraints, that is to say, exceptional and unforeseeable hardship. whose cause is external to the parties, if these subjections have had the effect of upsetting the general economy of the market.
In this case, an inter-municipal syndicate entrusted a company with the construction of a solar drying unit for the sludge of a wastewater treatment plant for a total and fixed amount of € 695,940 excluding tax. For the purpose of performing earthworks, the contractor has entered into a subcontracting contract in the amount of € 156,000 excluding tax. The subcontracting company subsequently lodged with the administrative court a request for the condemnation of the principal to pay him a sum of € 94,034.30 corresponding to the additional cost of the works which it bore, the soils having proved to be of a different nature from that analyzed by the soil survey carried out prior to the conclusion of the contract.

Rule n ° 2:

In order to assess whether unforeseen difficulties arising during the performance of the subcontracted services have led to a change in the general scheme of the subcontracting contract, it is necessary to compare the amount of the expenditure resulting from these constraints to the total amount of the contract and no to the amount of the subcontract.
In the present case, the Conseil d'Etat notes that the amount of the expenses to which the subcontractor claims to have had to pay for the performance of its subcontracting contract as a result of unforeseen constraints is estimated at 11.3 % of the contract concluded between the contracting authority and the holder of the contract considers that such a percentage can not reflect a disruption of the general market economy so that the subcontractor is not entitled to claim any compensation. .

Observations:
The basis of calculation is the amount of the main contract and not the amount of subcontracts. Such an approach greatly reduces the possibilities for subcontractors to obtain compensation for unforeseen hardship.

Board of state
N ° 383613
ECLI: FR: CESSR: 2015: 383613.20150701
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mrs Charline Nicolas, rapporteur
Mr Bertrand Dacosta, public rapporteur
BALAT; SCP DELAPORTE, BRIARD, TRICHET, lawyer (s)
read date Wednesday, July 1st, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

 

Considering the following procedure:

The company Sud Terrassement asked the administrative court of Nice to condemn the community of communes of the lands of Siagne to compensate it for 94 034,30 euros for unforeseen subjections in the execution of a works contract.

By a judgment n ° 0902701 of December 16, 2011, the administrative court of Nice rejected this request.

By a judgment n ° 12MA00617 of June 10, 2014, the administrative court of appeal of Marseilles has, on the call of the company South earthworks, annulled this judgment and sentenced the community of communes of lands of Siagne to pay to the company the sum of € 94,034.30 with interest at the legal rate from November 28, 2008.

By a summary appeal and a supplementary memorandum, registered on 11 August and 12 November 2014 to the litigation secretariat of the State Council, the water authority of the Canal de Belletrud (RECB), which came to the rights of the community of communes of the lands of Siagne, asks the Council of State:

1 °) to annul this judgment;
2 °) settling the case on the merits, to reject the call of the company South terracing;
3 °) to put at the expense of the society South earthworks the payment of the sum of 4 000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
Viewed:
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Delaporte, Briard, Trichet, lawyer of the water management of the channel of Belletrud, and to Me Balat, lawyer of the company Sud terrassement;

1. Considering that it appears from the documents in the file submitted to the judges of the merits that, by a contract price of 695 940 euros HT entered into on March 7, 2006, the intercommunal union of the five communes of water and sanitation entrusted Degrémont with the construction of a solar sludge drying unit at the Peymeinade wastewater treatment plant; for the purpose of performing earthworks, the company Dégrémont has concluded a subcontracting contract for an amount of 156 000 euros HT with the company Sud terrassement; that the client has approved this subcontractor and accepted its terms of payment; that the society Sud terrassement has seized the administrative court of Nice of a request tending to the condemnation of the community of communes of the lands of Siagne, come to the rights of the syndicate intercommunal of the five communes of water and sanitation, to to pay the sum of EUR 94 034.30 corresponding to the additional cost of the works it has supported, the soils being of a different nature from that analyzed by the soil survey which had been carried out prior to the conclusion of the contract; that, by a judgment of December 16, 2011, the Administrative Court of Nice rejected this request; that the administrative court of appeal of Marseilles has, by a judgment of June 10, 2014, annulled this judgment and condemned the community of communes of lands of Siagne to pay to the company South earthworks the sum of 94 034,30 euros TTC under unforeseen constraints; that the Régie des eaux of the Belletrud Canal (RECB), which came to the rights of the community of communes of the lands of Siagne, appeals in cassation against this judgment;

2. Whereas, even if a public contract has been concluded at a fixed price, its holder is entitled to compensation for expenses incurred as a result of unforeseen constraints, that is to say of exceptional and unforeseeable hardship; whose cause is external to the parties, if these subjections have had the effect of upsetting the general economy of the market; that a subcontractor receiving the direct payment of the subcontracted services is also entitled to this direct payment for expenses resulting for him from unforeseen constraints which have upset the general economy of the market;

3. Considering that, in order to award the sum of EUR 94 034.30 TTC to the company Sud Terrassement, subcontractor of the company Degrémont, holder of the relevant contract, the court relied on the fact that it had had to dealing with unforeseen constraints that had disrupted the general market economy; whereas, however, in order to assess whether unforeseen constraints arising during the performance of a subcontracted part of a market have led to a disruption of the general economy of that market, it is appropriate to compare the amount of expenditure resulting from these subject to the total amount of the contract and not to the amount of the subcontracted part; that the court incorrectly qualified the facts submitted to it by judging that the expenses incurred in this case, an amount estimated by it to 78 624 euros HT and 94 034 euros TTC, or 11.3 % of the total amount of 695 940 euros HT, had upset the general economy of the market; that, consequently, his judgment must be annulled;

4. Considering that it is necessary, in the circumstances of the case, to settle the case on the merits in application of the provisions of Article L. 821-2 of the Code of Administrative Justice;

5. Considering that the amount of the expenses to which the company South Earthworks claims to have had to face for the execution of its contract of subcontracting due to unforeseen subjections is evaluated by it to 94 034 euros TTC, that is to say 11.3 % of the contract between the contracting authority and the holder of the contract; whereas these expenses can not therefore be regarded as having upset the general economy of the market; that the company is thus unfounded to complain that, by the judgment attacked, the administrative court of Nice rejected his request;

6. Considering that the provisions of Article L. 761-1 code administrative justice preclude the payment of a sum to be charged to the RECB which is not, in the present instance, the losing party; whereas, on the other hand, it is appropriate to charge the company South terrassement payment of the sum of 3 000 euros to the RECB under these same provisions;

DECIDE:

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Article 1: The judgment of the administrative court of appeal of Marseille of June 10, 2014 is canceled.
Article 2: The motion presented by the company Sud terrassement before the Administrative Court of Appeal of Marseille is rejected.
Article 3: The company Sud Terrassement will pay to the water management of the canal of Belletrud a sum of 3 000 euros under article L. 761-1 of the code of administrative justice.
Article 4: The conclusions presented by the company Sud terrassement under Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the Water Board of Belletrud Canal and to the company Sud Terrassement.

Summary :

Even if a public contract has been concluded at a fixed price, the holder is entitled to compensation for the expenses incurred because of unforeseen constraints, that is to say of exceptional and unforeseeable subjections whose cause is external. to the parties, if these subjections had the effect of upsetting the general market economy. A subcontractor receiving the direct payment of the subcontracted services is also entitled to this direct payment for the expenses resulting for him from unforeseen constraints which have upset the general economy of the market. ,,, To assess whether unforeseen constraints arose during performance of a subcontracted part of a market has caused a disruption of the general economy of that market, it is appropriate to compare the amount of the expenditure resulting from those constraints to the total amount of the contract and not to the amount of the outsourced part.

Even if a public contract has been concluded at a fixed price, the holder is entitled to compensation for the expenses incurred because of unforeseen constraints, that is to say of exceptional and unforeseeable subjections whose cause is external. to the parties, if these subjections had the effect of upsetting the general market economy. A subcontractor receiving the direct payment of the subcontracted services is also entitled to this direct payment for the expenses resulting for him from unforeseen constraints which have upset the general economy of the market. ,,, To assess whether unforeseen constraints arose during performance of a subcontracted part of a market has caused a disruption of the general economy of that market, it is appropriate to compare the amount of the expenditure resulting from those constraints to the total amount of the contract and not to the amount of the outsourced part.