Delays in building sites and the responsibility of the owner: a review of case law
In this case, the Council of State confirms the rule that the owner can not be held liable for difficulties in the execution of the work which are not directly attributable to him.
Rule n ° 1: the owner can not be held responsible if he is not directly at the origin of the difficulties of execution of the building site
The rule is now well established: the difficulties encountered in the performance of a fixed-price contract can only give rise to compensation for the benefit of the firm which owns the contract to the extent that it justifies, or that these difficulties find their origin in unforeseen constraints having had the effect of upsetting the economy of the contract, or that they are attributable to a fault of the principal.
In this case, the Council of State reasons in two stages: firstly, it notes that the difficulties encountered in the execution of the market have their origin in the faults of the prime contractor and the company in charge of the construction of the platform on which a new emergency airlock was to be erected, so that the owner could not be held responsible for the damage caused by the applicant companies as a result of the lengthening of the period of execution of the works contract, provided that these losses result from the failure of another contractor or the prime contractor.
This is the classic application of the solution already released by the Council of State in its judgment of 5 June 2013, Region of Upper Normandy, n ° 352917 (Considering in principle: "The difficulties encountered in the performance of a fixed-price contract may be compensable for the benefit of the firm which is the owner of the contract only to the extent that it justifies either that those difficulties have had the effect of upsetting the economy of the contract, or that they are attributable to fault by the public body, but not solely because of misconduct by other parties ").
In practice, it is now necessary to demonstrate the existence of a particular fault at the expense of the owner, for example because of delay in making decisions during construction or modifications to the work under construction (CAA Bordeaux 1st June 2010, Sté CARI, req.no 09BX02069).
In the absence of fault on the part of the contracting authority, the company suffering delays in the execution of a construction site must seek the quasi-delictual liability of the other wrongdoers not before the Administrative Court but before the General Court. Commerce (EC 2 August 2011, Central Region, No. 330982).
In doing so, the Council of State transfers the risk of a default of the company or the member of the prime contractor who is causing the delays to the claimant company and no longer to the contracting authority. .
Rule n ° 2: The possibility to engage the responsibility of the contracting authority in certain cases
In a judgment of November 12, 2015 the Council of State admits that in some cases, the responsibility of the owner may be still committed. This is the case where the claimant company can show that the client has committed a fault in assessing the capacity of the failing company when awarding the contract and that this fault is due to origin of the difficulties of execution of the site: "Considering, lastly, that the Administrative Court of Appeal has, by a sovereign appreciation without any distortion, dismissed the plea based on the fact that the master of the work had committed a manifest error in the assessment of the capacity of the lessee of the shellwork lot to conduct the work, that, consequently, the court did not incorrectly qualify the facts by holding that the municipality did not commit fault because of the choice of the successful tenderer of this contract ". It is therefore an extension of the possibilities offered to the claimant company.
The State Council intends here to sanction the public purchasers who will not really control the technical, financial and professional capacities of the candidates at the stage of the award of contracts. The judge's control is nevertheless limited to the manifest error of assessment, which will undoubtedly be exercised rigorously.
This opening of the Council of State is welcome and may have a bright future with the entry into force, since 26 January 206, of Commission Implementing Regulation 2016/7 establishing the DUME adopted in application of the Article 59 of Directive 2014/24 / EU which consists in a system of declaration on the honor of candidates who claim to have all the financial, technical and professional capacities required to perform the services of the market. It is indeed to be feared that the control of the capacities of the candidates by the public purchaser who will intervene after the selection of the offers risks to be even lighter than it is today ... ..
Board of state
N ° 383245
Mrs Marie-Anne Lévêque, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP NICOLAY, DE LANOUVELLE, HANNOTIN; SCP BOULLOCHE; SCP WAQUET, FARGE, HAZAN, lawyers
Reading of Wednesday, January 6th, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Eiffage Construction Alsace Franche-Comté and the company Campenon Bernard Franche-Comté have asked the administrative court of Besançon to condemn the hospital of Belfort Montbéliard to pay them the sums of 29 172.64 euros TTC for the balance of the batch of structural work on the construction market of the gynecological-surgical center, of 391 494,26 euros for the damage related to the delays in the provision of the platform of the accommodation building and in the supply of the plans of reinforced concrete and 214 € 319.90 for additional costs related to longer lead times. By a judgment n ° 0900391 of March 15th, 2012, the administrative court of Besançon rejected their requests.
By a judgment n ° 12NC00891 of June 2nd, 2014, at the request of the companies Eiffage Construction Alsace Franche-Comté and Campenon Bernard Franche-Comté, the administrative court of appeal of Nancy canceled the judgment of the administrative court of Besançon as he had ruled on the claim for payment of 214,319.90 euros and rejected that claim.
By a summary appeal, a supplementary memorial and a reply, registered on 29 July and 29 October 2014 and on 2 December 2015 in the litigation secretariat of the Conseil d'Etat, Eiffage Construction Alsace Franche-Comté and Campenon Bernard Franche-Comté ask the Council of State:
- to annul the judgment of the Administrative Court of Appeal of Nancy;
- settling the case on the merits, upholding their findings of first instance and appeal;
- to charge the hospital center of Belfort Montbéliard the payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Marie-Anne Lévêque, State Councilor,
- 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 Eiffage Construction Alsace Franche-Comté and the company Campenon Bernard Franche-Comté, to the SCP Waquet, Farge, Hazan , a lawyer at the Nord Franche - Comté Hospital and at SCP Boulloche, a lawyer with Groupe 6;
1. Considering, first, that it is apparent from the statements in the judgment under appeal, which are not contested on this point by the appeal, that the difficulties encountered in the performance of the contract have their origins in the lack of control of the and the company responsible for the construction of the platform on which a new emergency airlock was to be built; that in judging that these difficulties were not attributable to a fault of the owner, the court did not incorrectly describe the facts of the case;
2. Considering, secondly, that the difficulties encountered in the performance of a lump-sum contract can only give rise to an indemnity for the benefit of the firm which is the owner of the contract to the extent that it justifies either that those difficulties originate in unforeseen constraints which have had the effect of upsetting the economy of the contract or that they are attributable to a fault of the public person committed in particular in the exercise of his powers of control and direction of the market, in the estimate of its needs, in the actual design of the market or its implementation, in particular in the case where several co-contractors participate in the execution of public works; that it follows that in judging that the hospital North Franche-Comté, owner, could not be held responsible for the damages which the applicant companies asked him for repair because of the lengthening of the duration of performance of the works contract resulting from breaches of their obligations by another contractor or project management, the Nancy Administrative Court of Appeal did not err in law;
3. Considering, thirdly, that the court dismissed the claimant companies' claims that the hospital should be ordered to pay them the sum of EUR 29 712.64 corresponding to the late payment penalties imposed on them; that the applicant companies did not contest the validity of these penalties; that in so ruling while the dispute was about the settlement of the market, and as such on the penalties inflicted for delays which the applicant companies felt should be compensated, the Administrative Court of Appeal of Nancy has ignored the scope writings that were before it; The applicants are therefore entitled to request the annulment of the judgment under appeal to that extent.
4. Considering that it is not necessary, in the circumstances of the case, to grant the claims submitted by the parties pursuant to the provisions of Article L. 761-1 code administrative justice;
Article 1: The judgment of 2 June 2014 of the Administrative Court of Appeal of Nancy is canceled in so far as it has pronounced on the penalties of delay put at the charge of the companies Eiffage Construction Alsace Franche-Comté and Campenon Bernard Franche-Comté .
Article 2: The case is referred to the Administrative Court of Appeal of Nancy to the extent of the cassation pronounced.
Article 3: The remainder of the appeal's appeal and the submissions of the parties submitted under the provisions of Article L. 761-1 of the Administrative Justice Code are dismissed. Article 4: This decision will be notified to Eiffage Construction Alsace Franche-Comté, Campenon Bernard Franche-Comté, Groupe 6, Ingerop Conseil et Ingénierie and Nord Franche hospital. -County.