Subcontractor: from when a request for direct payment to the client is no longer admissible?
In this case, the Council of State provides useful procedural details on the stage from which the subcontractor loses its right to direct payment for the services provided to the contracting authority. To benefit from the right to direct payment by the contracting authority for the services which it has carried out within the framework of the performance of the contract, the approved subcontractor must submit its request for direct payment to the contracting authority before notification of the contract statement to the holder.
Lesson 1: Useful reminder of the subcontractor's direct payment procedure
The procedure for direct payment to the subcontractor of a public contract is codified by articles R 2193-10 to R 2193-16 of the public procurement code. Article R 2193-16 of the public procurement code
The subcontractor who intends to benefit from direct payment sends his request to the holder by registered mail with acknowledgment of receipt or deposits it directly with him against receipt. This request for direct payment must correspond to the balance of the work carried out or to a deposit.
From the completion of this formality, the holder has a period of 15 days to accept or refuse the request for direct payment. To do this, it examines the request and checks whether it corresponds to the services which have actually been performed by the subcontractor. The holder can accept all the supporting documents, part of the supporting documents and reject some or reject the entire request.
Once the decision has been made, the holder notifies the subcontractor and the buyer. In the event of express acceptance, he attaches to the draft statement sent to the buyer or his representative a certificate and indicates the amount of the sums to be deducted for the benefit of the subcontractor. In the event that the holder opposes direct payment to the subcontractor, he must justify his decision to the subcontractor and the buyer. The buyer does not have to assess the legality of the reason invoked by the holder in support of his refusal.
At the end of the 15-day period, the holder who has not come forward is deemed to have accepted the request for direct payment sent by the subcontractor. In addition to the request addressed to the holder, the subcontractor addresses his request to the buyer, which he accompanies with copies of the invoices addressed to the holder and the acknowledgment of receipt or the receipt attesting that the holder has received the request or the postal notice attesting that the fold was refused or not claimed.
Upon receipt of this request, the purchaser then in turn sends the contract holder a copy of the invoices produced by the subcontractor without delay. It then informs the holder of the direct payment of the subcontractor which he has carried out for the services which the latter has performed. This parallel request addressed to the buyer allows the subcontractor to protect against the possible negligence of the holder in the transmission of the payment request to the buyer and to demand from the latter the payment of the services he has executed.
In the event that the public contract holder has neither opposed a reasoned refusal to the payment request from the subcontractor within the period of 15 days set following its reception, nor transmitted it to the buyer, the sub -processor who has not transmitted his payment request to the buyer in parallel cannot claim direct payment and no default interest can be claimed. This parallel transmission in fact allows the buyer to ensure that the payment request has been sent to the holder and to know the date from which, without manifestation on his part, he must make direct payment of the sub- dealing
Lesson 2: The stage from which the direct payment procedure becomes inadmissible to the contracting authority
To be admissible, the approved subcontractor must submit his request for direct payment to the contracting authority before notification of the contract statement to the contractor.
In its judgment of December 2, 2019, the Council of State poses this rule in a principle recital according to which “ to obtain direct payment by the contracting authority of all or part of the services which it has performed within the framework of its subcontracting contract, the regularly approved subcontractor must send its request for direct payment in good time to the main contractor, contract holder, and […] the contracting authority. A request sent after notification of the general contract statement to the holder of the contract cannot be regarded as having been sent in good time. ". A request for direct payment sent by the subcontractor after notification of the general statement of the contract by the contracting authority to the contractor is inadmissible.
In his conclusions on this case, the Public Rapporteur Gilles Pellissier provides two particularly useful details:
- First of all, by transmitting his request too late to the contracting authority, the subcontractor does not lose his right to payment for his services by the contractor, but only the possibility of obtaining payment for them from the contracting authority. work. In other words, the subcontractor may turn against the contractor to obtain payment for his services, especially since the latter has been paid for the services performed by his subcontractor.
- Then, the late transmission of the direct payment request does not prevent the contracting authority from paying the subcontractor directly. It only obstructs the fact that the payment which he may have made to the contractor is considered to be at fault and that he is still obliged to pay the subcontractor. But, as long as he has not paid the cardholder, and if the request for direct payment encounters no objection from the latter, he must accede to it at any time that it reaches him. In the event that this sum has been entered in the credit of the holder in the account which has become final, the Public Rapporteur suggests that the client obtains from the holder that he accepts a modification of the account on this point before paying the subcontractor, so that the holder does not then oppose him the final statement to force him to pay him this sum.
Considering the following:
- It appears from the documents in the file submitted to the trial judges that by a contract signed on March 13, 1997, the department of Haute-Savoie entrusted the execution of the construction works of a paravalanche gallery on the departmental road n ° 106, in Corbalanche, to Bianco, which subcontracted to Seco / DG the production of a nailed wall and the installation of tie rods and micro-piles. The Bianco company sent the department, on October 23, 1998, a draft general statement of all the works in its batch, including those carried out by its subcontractors, in particular the company DG Entreprise, which succeeded the company Seco / DG, including, among other things, the additional costs alleged by the latter in connection with the extension of the duration of the work and requests for remuneration for additional work. The general statement of the company Bianco was established on January 7, 1999 by the department. He excluded the compensation requested and imposed late payment penalties on the contractor. The Bianco company challenged this statement before the Grenoble administrative court which, by judgment of September 23, 2010, condemned the department to pay him the sum of 176,696.69 euros corresponding to the only additional work that it had itself carried out. , excluding those carried out by subcontractors and the sums requested by them in respect of the extension of the duration of the work. By a judgment of April 26, 2012, the Lyon Administrative Court of Appeal dismissed Bianco's appeal against this judgment. The company EMJ, liquidator of the company DG Entreprise, has appealed to the Court of Cassation. By a decision of March 27, 2013, the Conseil d'Etat ruling on the litigation dismissed this appeal.
- It also appears from the documents in the file submitted to the trial judges that on December 9, 2013, the company EMJ seized the Grenoble administrative court with a request for the condemnation of the department to pay him the sum of 93,661.77 euros in compensation for damages resulting from the progress of the site and in compensation for the additional services performed for the delivery of the part of the work that it had carried out in its capacity as approved subcontractor. By a judgment of June 30, 2016, the Grenoble administrative court rejected this request. The company Fides, coming to the rights of the company EMJ, appeals in cassation against the judgment of August 30, 2018 by which the administrative court of appeal of Lyon rejected the appeal brought against this judgment.
- Under the terms of article 6 of the law of 31 December 1975 relating to subcontracting, in its wording applicable to the contract in dispute: “The subcontractor who has been accepted and whose payment terms have been approved by the master of the work, is paid directly by him for the share of the market which he ensures the execution (...) “. Under article 8 of this law: “The main contractor has a period of fifteen days, counted from the receipt of supporting documents serving as a basis for direct payment, to accept them or to signify to the subcontractor his reasoned refusal of acceptance. / After this deadline, the main contractor is deemed to have accepted those supporting documents or parts of supporting documents which he has not expressly accepted or refused (...) “.
- Under the terms of article 186 ter of the code of public contracts, in its then applicable version: “Authorizations to be made to the subcontractor are carried out on the basis of supporting documents which have been accepted by the contractor. / Upon receipt of these documents, the administration notifies the subcontractor of the date of receipt of the payment request sent by the holder and indicates to him the sums whose payment for his benefit has been accepted by the latter. In the event that the contractor has neither objected to the subcontractor's request for payment within fifteen days of its receipt, nor sent it to the administration, the subcontractor processing sends its request for payment directly to the Administration by registered letter with acknowledgment of postal delivery or gives it against a receipt duly dated and entered in a register kept for this purpose (...) “.
It follows from the combination of these provisions that, in order to obtain direct payment by the contracting authority of all or part of the services which it has performed within the framework of its subcontracting contract, the duly authorized subcontractor must send its request for direct payment in good time to the main contractor, the contract holder, and, in the case mentioned in the second paragraph of article 186b of the public contracts code, to the contracting authority. A request sent after notification of the general contract statement to the holder of the contract cannot be regarded as having been sent in good time.
- It appears from the documents in the file submitted to the trial judges that the company DG Entreprise did not submit a direct payment request intended for the contracting authority before the general statement was sent to the company Bianco, the contract holder, in January 1999. It follows from this that by ruling that the request for direct payment addressed to the contracting authority, in December 2013, by the company EMJ, in its capacity as liquidator of the company DG Entreprise, was late, the administrative court of Appeal from Lyon, which did not have to investigate whether this general statement had become final, did not commit an error of law. In so ruling, the court did not, in any event, deprive Fides of an effective remedy within the meaning of Articles 6 and 13 of the European Convention for the Protection of Human Rights and fundamental liberties.
- Finally, Fides cannot usefully maintain that the court erred in law in holding that the provisions of article 186 ter of the public procurement code then applicable required the subcontractor to address its request for direct payment to both to the contract holder and to the contracting authority, since the court did not rely on this overabundant reason to reject the request for appeal.
- It follows from this that the company Fides is not justified in requesting the annulment of the judgment it is attacking.
- The provisions of article L. 761-1 of the code of administrative justice prevent an amount from being put in this respect at the expense of the department of Haute-Savoie which is not, in this instance, the losing party. On the other hand, it is necessary, in the circumstances of the case, to charge Fides with the sum of 3,000 euros to be paid to the department of Haute-Savoie under article L. 761- 1 of the code of administrative justice.
Article 1: The appeal of Fides is rejected.
Article 2: The company Fides will pay to the department of Haute-Savoie a sum of 3,000 euros under article L. 761-1 of the code of administrative justice.
Article 3: This decision will be notified to the company Fides and to the department of Haute-Savoie.