Public works contract: pay attention to the ratcheting effect of the final billing project!
CE 16 December 2015, RUIZ St, req.n ° 373509
In this case, the Council of State recalls the rule according to which the sums which do not appear in the project of final count do not have in principle to be regulated by the master of work. In the context of a public works contract governed by the provisions of the GAC-Works, the final draft bill is an essential document since its primary purpose is to freeze the various sums that the holder is likely to claim from the master of the Contractual performance of the contract: forgetting an item of damage in the draft final statement prevents in principle any subsequent claim from the company including during the contestation of the market statement.
Rule n ° 1: the draft final settlement freezes the sums that can be claimed by the company
For the Council of State, the draft final statement is intended to trace all the sums to which the contractor can claim as a result of the execution of the contract to allow the contractor, if he wishes, to rectify this project within the framework of the procedure for drawing up the general statement (CE 8 April 2009, Compagnie Française Eiffel Construction Metallique, application number 295342). The incumbent company must therefore include in the final draft bill all the sums corresponding to the services provided, including any additional work and the additional costs associated with the project.
Article 13.3.3 of the CCAG-Travaux in its version resulting from the decree of 8 September 2009 confirms this rule by stating that "the holder is bound by the indications appearing in the draft final account". The comment that appears on Legifrance in the body of the decree is very clear: "in the draft final count, the holder must summarize the reservations he has issued and have not been lifted, under penalty of see abandoned ". In concrete terms, this implies that after submitting the final draft bill, the contractor can no longer claim the payment of a sum that would not be included in the contestation of the contract statement, regardless of whether it corresponds to the initial market forecasts or additional work and / or unforeseen additional costs.
The absence of any indication in the draft final statement is therefore a waiver of claim (CAA Nancy 28 May 2009, Sté Locatelli, application No. 08NC00637). It follows that the failure to take into account in the general statement of a sum for which the contractor did not ask for payment on the occasion of his final draft statement, can not therefore be blamed on the master of the book and characterize a dispute that may be raised by the contractor in his statement of claim relating to the general statement.
The draft final settlement therefore has the effect of definitively freezing the financial rights that the contractor can claim in the framework of the procedure of drawing up the general and definitive account. In the event that it is unable to quantify certain claims at the drafting stage of the final settlement, it therefore has every interest in formulating specific reservations in order to preserve its subsequent financial rights. In the same way, it is up to the entrepreneur to include in his draft final statement all the financial claims made during the performance of the contract including those already subject to legal proceedings in application of the provisions of Article 50 of the CCLS-Works.
Rule # 2: Strategies to try to escape the ratcheting effect of the final draft bill
The contractor who has failed to include certain amounts in his final draft bill has no choice: either he realizes that he has failed to include in his draft final statement the full amount of the amounts corresponding to the services performed but waives the right to invoke them at the stage of the contestation of the general and definitive account. The sums are then definitely lost; or he may attempt to reinstate them in the context of the procedure for establishing and contesting the general and final settlement.
Two hypotheses can then be considered. In the first hypothesis, the entrepreneur attempts to reinstate the sums he has forgotten to indicate in his draft final settlement in the framework of the contestation of the general account via a claim. If the principal owner of the work primarily invokes the clickquet effect of the provisions of article 13.3.3 of the GCC-Works without ruling on the merits of the claim, the enterprise has no chance of recover the amounts omitted (CAA Nancy February 3, 2015, Chaumont Hospital, # 13NC01240)
The second hypothesis is identical to the second one, but this time the client is instructing the protest brief and notifying the decision on total or partial rejection on the merits, without taking advantage of the ratcheting effect of the final draft bill. . In this case, the Paris Administrative Court of Appeal has already had the opportunity to consider that the developer is in this case deemed to have implicitly renounced to avail himself of the ratcheting effect of the final draft statement if did not prevail during the examination of the statement of claim of the contractor relating to the general count. In other words, the defense on the merits of the client has the effect of purging the omission that taints the draft final statement of the contractor, and the latter can then validly bring his claim for payment before the judge administrative, the master of work can no longer rely before the judge ratchet effect of the draft final count to the no of the principle of loyalty of contractual relations (CAA Paris 18 December 2012, SA Colomboa, n ° 11PA01446 ).
In the present case, the Council of State unsurprisingly recalls an enterprise that fails to include in its draft final settlement compensation for damages related to possible delays in the project or the revision of the price of its market is not more receivable to claim this sum from the principal at the stage of the contestation of the general contract statement, in accordance with the stipulations of article 13.3 CCAG-Travaux. This point is therefore acquired. On the other hand, the judgment does not shine by its clarity concerning the confirmation or the reversal of the solution released by the Paris Administrative Court of Appeal. To read more closely, but this point will have to be confirmed, it seems that the Council of State considers, contrary to the solution released by the Administrative Court of Appeal of Paris, that the master of work can claim for the first time before the administrative judge the ratcheting effect of the draft final settlement. The principle of the loyalty of the contractual relations would thus only play for the master of the work and more for the entrepreneur. A kind of reversal of jurisprudence in keeping with the times ....
Caution is therefore required and the entrepreneur must pay particular attention to the development of its final draft bill because the slightest oversight can be very expensive .......
Board of state
N ° 373509
7th / 2nd SSR
Mr Frédéric Dieu, rapporteur
Mr Olivier Henrard, public rapporteur
SCP NICOLAY, DE LANOUVELLE, HANNOTIN; SCP MASSE-DESSEN, THOUVENIN, COUDRAY, lawyer (s)
Reading of the Wednesday, December 16, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
By a decision of 11 June 2014, the Council of State, ruling in litigation admitted the appeal of the company Ruiz against judgment No. 13LY00323 of 19 September 2013 of the Administrative Court of Appeal of Lyon as to rule on the claims seeking, firstly, compensation for the damage resulting from the delay in starting the site and, secondly, the revision of the prices
By a statement of defense filed on 2 September 2014, the City of Lyon contends that the appeal should be dismissed and that Ruiz pay the sum of 6,000 euros under Article L. 761 -1 of the code of administrative justice. She submits that the grounds of appeal are unfounded.
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 Mr. Frédéric Dieu, master of petitions,
- the conclusions of Olivier Henrard, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the company Ruiz and to the SCP Masse-Dessen, Thouvenin, Coudray, lawyer of the city of Lyon;
1. Considering that it appears from the documents in the file submitted to the judges of the substance that, by a contract concluded May 9, 2006, the city of Lyon has entrusted to the company Ruiz the lot n ° 2 "carcass work" of the public market of work relating to the construction of a gymnasium; that, seized by the company Ruiz, the administrative court of Lyon has, by a judgment of November 23, 2012, condemned the city of Lyon to pay him the sum of 14 653,85 euros in settlement of the balance of this market; that, by the judgment attacked, the administrative court of appeal of Lyon carried this sum to 23 251,19 euros; that, by a decision of June 11, 2014, the Council of State, ruling in litigation has pronounced the admission of the conclusions of the appeal society Ruiz directed against this judgment in so far as it decides on the conclusions tending, d ' on the one hand, compensation for the damage resulting from the delay in the start of the project and, on the other hand, the price revision;
2. Considering, in the first place, that the defendant at first instance is entitled to invoke on appeal all means, even for the first time; that this faculty must however be combined with the obligation imposed on the appellant to state, within the time for appeal, the legal cause (s) on which he intends to base his appeal; it follows that, after the expiry of the said period and except where it avails itself of a measure of public policy, the appellant is entitled to invoke a new plea only in so far as it is it is based on the same legal cause as a submission made before the expiry of the appeal period; that where the defendant at first instance is a respondent, he is entitled to plead any defense for the first time, both in defense and in support of cross-appeal submissions, which must not present a separate dispute the main call;
3. Considering that it follows from the foregoing that the Administrative Court of Appeal of Lyon did not err in law in holding that the city of Lyon was admissible to invoke, in support of its incidental appeal , the plea alleging that, failing to include the amount in its draft final statement, in accordance with the provisions of Article 13.3 of the general administrative clauses applicable to public works contracts, the company was not admissible to claim from the contracting authority neither the compensation for the damage related to the delay in starting the construction site nor the revision of the market price; that, moreover, this plea is connected, in any event, to the same legal cause as its defense at first instance, alleging the lump-sum nature of the market price, since both these pleas relate to the execution of the same contract;
4. Considering, secondly, that, contrary to Ruiz's contention, the court ruled on its claim for additional compensation for the revision of the market price, the reference to the term "actualization" in place of the term "revision" which is a simple error of pen; that, moreover, the court did not err right and turned on the facts before it a sovereign appreciation free of denaturation by judging that the company Ruiz was not admissible to ask the revision of the price of the market failing to have requested and quantified in its draft final statement;
5. Considering that it follows from all the foregoing that the appeal of the company Ruiz must be dismissed;
6. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the charging of the City of Lyon, which is not, in the present case, the losing party , the payment of the amount requested by the company Ruiz; whereas, on the other hand, Ruiz should be charged to the same amount, to the same amount the payment to the city of Lyon of the sum of 3,000 euros;
Article 1: The appeal of Ruiz is dismissed.
Article 2: The company Ruiz will pay to the city of Lyon a sum of 3,000 euros under the provisions of Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to Ruiz and the City of Lyon.