Unspoken DGD and public procurement: first conviction by the State Council!
For the first time, the Council of State applies the procedure of the unspoken DGD to condemn a local authority to pay a company holder the payment of additional amounts of nearly € 250,000, almost equal to that of the market , as compensation for damages suffered as a result of the numerous disturbances suffered during the execution of the contract.
Cabinet Palmier-Brault Associés is pleased to be at the origin of this judgment on behalf of the Company Self Saint-Pierre-et-Miquelon.
Rule # 1: The Procedure for Establishing the Unspoken DGD
Public works contracts end with the establishment of a general and definitive account which summarizes all the rights and obligations of the parties. The general settlement may become tacit in the absence of any response by the Owner within the time frame provided by CCAG Travaux.
Articles 13.4.2 and 13.4.4 of the GCC Works provide that the Contractor shall submit his final draft invoice simultaneously to the prime contractor and the representative of the Contracting Authority within 30 days of the date of dispatch. date of notification of the decision to accept the works (CE 25 June 2018, Sté Merceron TP n ° 417738).
They also provide that the draft general account signed by the representative of the contracting authority and then becomes the general account will be notified to the contractor at the latest on the following two dates:
- 30 days from the date of receipt by the prime contractor of the request for final payment sent by the holder;
- 30 days after the representative of the contracting authority has received the request for final payment sent by the holder.
Once the overall statement has been notified to him, the Contractor shall send the Contracting Authority's representative, within 30 days, a copy of the signature, with or without reserve, to the supervisor, with a copy to the supervisor, or reasons for which he refuses to sign it.
The aforementioned provisions of the CCAG Travaux specify that if the representative of the contracting authority does not notify the contractor of the general account within the prescribed time, then the contractor shall notify the representative of the contracting authority, with a copy to the supervisor, of a proposed signed general account and if, within 10 days, the representative of the contracting authority has not notified the holder of the general account, the draft general statement sent by the holder becomes the general and definitive account.
This is called the general and final tacit count.
This is what happened in this case.
The territorial collectivity of Saint-Pierre and Miquelon entrusted SELF SPM with the execution of a public works contract for electricity and heating as part of the construction of the Maison de la nature and the environment in Miquelon. This contract was concluded for a total lump sum price of 245.017,18 € with an execution period of 12 months. But the execution of this market did not go as planned. On the one hand, many changes have been required from the various companies, without any extension of time being granted. On the other hand, the company SELF SPM was dependent on the delay accumulated by other companies.
On April 6, 2017, the local authority of Saint-Pierre and Miquelon delivered the receipt of the lot of the company with reservations.
Given the numerous disturbances suffered during the execution of the works, the company SELF SPM requested, in its draft final settlement, a complementary payment of € 247,382.87. This draft final count was received by the community, the owner, on June 12, 2017 and by the project manager on June 19 following. In the absence of notification of the general account within 30 days from the receipt of the draft final settlement, the company notified the owner of his draft bill on July 31, 2017, received the following August 3 . Copy was sent to project manager. No documents were notified by the community within the 10-day period provided in GCCA 13.4.4, Work 2014, so that the draft General Ledger became the general and definitive count of the contract.
It is in these circumstances that SELF SPM applied to the judge of the administrative court of Saint-Pierre and Miquelon on the basis of Article R. 541-1 of the Code of Administrative Justice of a motion tending to that the territorial collectivity of Saint-Pierre and Miquelon is sentenced to pay him a provision of 247,382.87 € with default interest at the rate of 8% from 14 September 2017.
By order of 22 January 2018, the judge of the interim relief provision of the administrative court of Saint-Pierre and Miquelon rejected this request. The exhibiting company has appealed this order. By order of 2 July 2018, the judge of the Bordeaux Administrative Court of Appeal dismissed this request.
The Council of State will break these two orders and condemn the territorial collectivity of Saint-Pierre and Miquelon to pay the company SEL SPM the amounts requested considering that the claim claimed results from the general countdown become final tacitly so that it can not be challenged by the parties.
It should be noted that in a judgment of 8 February 2018, the Court of Cassation also came to clarify its case law on the application of the deadlines laid down by the AFNOR NF P.03.001 standard concerning the process of setting the final general settlement, which is intended to settle the accounts between the client and the company (Cass.3th Civ.8 February 2018, No. 17-10.039). The unspoken DGD rule is likely to apply to public contracts submitted to CCAG-Travaux as well as to private contracts subject to AFNOR NF P.03.001.
Rule n ° 2: the possibility of demanding the regulation of the DGD via a provisional order
As a reminder, Article R. 541-1 of the Code of Administrative Justice states that the judge hearing the application for interim relief may, even in the absence of a claim on the merits, award a provision to the creditor who seized it when the existence obligation is not seriously questionable.
The judgment of the Conseil d'Etat of 25 January 2019, the Self Saint-Pierre-et-Miquelon Society, makes it possible to recall that a claim which finds its foundation in the definitive nature of the count, whether tacit or not, can not be to be considered as not seriously questionable. Therefore, the company is perfectly entitled to obtain payment through the procedure of the interim relief.
Recital 3 of the judgment recalls the old and constant rule that: all transactions resulting from the performance of a public works contract are included in an account of which no item can be isolated and only the balance of which is determined when the definitive statement determining the rights and obligations definitive parts ".
The general and definitive count is indivisible and intangible.
The principle of intangibility of the general and definitive account prohibits the parties to the contract from claiming sums which are not mentioned. This rule applies both to the public purchaser (EC 26 April 1968, General Insurance Company against fire and explosions, Rec.223), and to the holder of the contract which must be included in the general and the sums he considers to be entitled to claim in respect of the additional services (EC 11 February 1983, Société entreprise Caroni, n ° 2439), or any additional costs incurred as a result of delays in carrying out the work (EC 20 July 1971, city of Bagnères-de-Bigorre, Rec.P.564).
Just as it also prohibits the parties to the contract from challenging the amounts that are wrongly included. Recital 8 of the judgment recalls that the sums which are included in the general and definitive account and which the developer has not contested are due to the holder, without him being able to invoke the principle, yet of public order, according to which a person can not be condemned to pay a sum which it does not owe, or the principle of loyalty in the contractual relations. It does not matter that the client was able to express reservations when the works were received and that a contractual dispute is pending before the administrative court (EC 20 Mar. 2013, Center Hospitalier de Versailles, n ° 357636).
It follows that the administrative judge, seized of a claim for payment based on the general and definitive account can not dismiss the latter for reasons relating to the merits of the claim claimed.
Thus, he can not refuse to grant a request for the condemnation of the master of the work to the payment of a debt resulting from the general and definitive count on the grounds that the contracting party would not be justified to claim this sum since for example , the contract is a lump sum and global market, whether reserves have been issued, or as in the present case, that an amendment to the general and definitive account has been signed to extend the duration of the contract.
In the end, the administrative judge can only check whether the procedure for drawing up the general and definitive account is regular (CE 25 June 2018, Sté Merceron TP n ° 417738) and if so, it can not question the sums appear on substantive grounds, even if they are of public order.
Considering what follows:
- According to Article R. 541-1 of the Code of Administrative Justice: "The judge hearing the application for interim measures may, even in the absence of a claim on the merits, grant a provision to the creditor who seized it when the existence the obligation is not seriously questionable and may even, of its own motion, make the payment of the provision subject to the lodging of a security. " It follows from those provisions that, in order to regard an obligation as not seriously questionable, it is for the judge hearing the application for interim measures to ensure that the evidence submitted to him by the parties is such as to prove its existence with a sufficient degree of certainty.
- It is clear from the documents submitted to the judge hearing the application for interim relief from the Bordeaux Administrative Court of Appeal that, on 5 August 2014, the local authority of Saint-Pierre-et-Miquelon awarded Self Saint-Pierre and Miquelon the lot n ° 7A "electricity / heating" of a construction market of the house of the nature and the environment in Miquelon, of a lump sum of 245 017,18 euros. The community has pronounced the receipt of this lot with reservations on April 6, 2017. The company Self has submitted a claim for additional payment in the amount of € 247,382.87 excluding tax. The community having rejected this request, the company seized the judge of the emergency of the administrative court of Saint-Pierre-et-Miquelon of a request presented on the basis of the article R. 541-1 of the code of administrative justice tending to the conviction of the community to pay him a provision of this amount. By an order of 22 January 2018, the judge of the administrative court dismissed this request. The company Self Saint-Pierre and Miquelon appeals in cassation against the order of 2 July 2018 by which the judge of summary of the Administrative Court of Appeal of Bordeaux rejected his appeal directed against the first order.
- All the operations resulting from the execution of a public works contract shall be included in an account of which no element can be isolated and of which only the balance determined when drawing up the general and definitive account shall determine the rights and final obligations of the parties.
- According to Article 13.4.2. of the general conditions of contract (CCAG) for works contracts, applicable to the contract in dispute: "(...) The representative of the contracting authority shall notify the holder of the general account by the latest of the two following dates: - thirty days after receipt by the supervisor of the final payment request sent by the contractor - 30 days after the representative of the contracting authority has received the request for final payment sent by the contractor (.. .) ". Article 13.4.4. of the same leaflet stipulates that "If the representative of the contracting authority does not notify the holder of the general account within the time limits stipulated in Article 13.4.2., the holder shall notify the representative of the contracting authority, with a copy to the supervisor, a signed draft general account, consisting of: - the final draft invoice as transmitted pursuant to Article 13.3.1 - the draft statement of the balance excluding final price revision, drawn up from the draft invoice Final and the last draft monthly statement, showing the elements defined in Article 13.2.1 for the monthly installments, - the draft recapitulation of the monthly installments and the balance excluding final price revision.If within a period of ten days , the representative of the contracting authority has not notified the holder of the general account, the draft general account sent by the holder becomes the general and definitive account (...) The decree general and definitive act definitively binds the parties (...) ".
- The documents in the file submitted to the interlocutory judges show that the company Self Saint-Pierre and Miquelon notified its request for final payment to the local authority of Saint-Pierre-et-Miquelon and to the principal respectively 12 and 19 June 2017. The local authority did not notify the self-assessment to the company Self Saint-Pierre and Miquelon at the expiry of the deadlines provided for in article 13.4.2 of the aforementioned CCAG, the company notified him on August 3, 2017. a draft general count. In the absence of a reply from the territorial authority within the ten-day period provided for in Article 13.4.4 of the CCAG, the company Self Saint-Pierre and Miquelon has lodged an appeal before the judge of summary proceedings of the Administrative Court of Bordeaux appeal of the existence of a general and definitive account tacitly born on August 14, 2017, pursuant to the aforementioned provisions of the CCLS, to justify its request for provision. By rejecting it on the ground that the parties had concluded, on 18 July preceding, an amendment to the contract for the purpose of extending until 31 January 2017 the period of execution of the works without financial compensation for the holder of the contract and that the contract had been awarded on a flat-rate basis, disregarding the fact that a general and final settlement existed, and while it was not apparent that by signing an amendment the parties would have intended to derogate from the aforementioned contractual provisions of the GCC, the Judge of the Court of Appeal of the Bordeaux Administrative Court of Appeal tainted his order of an error of law. The company Self Saint-Pierre and Miquelon is therefore justified in asking for the cancellation.
- In the circumstances of the case, it is necessary to settle the case under the interlocutory proceedings instituted, pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice.
Contrary to what the territorial collectivity of Saint-Pierre-et-Miquelon supports, it does not follow from the instruction that by signing on July 18th, 2017 a rider intended to prolong the execution of the contract until January 30th 2017 without any financial compensation for its owner, the parties would have intended to waive the application of the provisions of the CCAG relating to the establishment of a tacit general and definitive counting, mentioned in point 4. However, it follows from the instruction, as well as that it was said in point 5, that the territorial collectivity of Saint-Pierre-et-Miquelon did not notify the company Self Saint-Pierre and Miquelon of general countdown within ten days of the receipt of the draft bill of this society. Thus, a general and definitive account existed as of August 14, 2017, pursuant to the stipulations of GCC Article 13.4.4, even though, the principal contractor sent comments to the company on July 3, 2017 and that the general draft bill of the company did not include the latest monthly draft bill
In those circumstances, the territorial authority can not rely on either the breach of the principle of loyalty in contractual relations or the principle according to which a public person can not be ordered to pay an amount which he must not claim to support the company's claim is seriously questionable.
- It follows from the foregoing that the company Self Saint-Pierre and Miquelon is justified in maintaining, without it being necessary to examine the other pleas of its application for appeal, that it is wrong, by the impugned order of 22 January 2018, the judge of the Administrative Court of Saint-Pierre-et-Miquelon dismissed his request for the conviction of the territorial authority of Saint-Pierre-et-Miquelon to pay him the sum of 247,382 , 87 euros excluding taxes as a provision.
- According to Article 1 of the Decree of 29 March 2013 on combating late payments in public purchase contracts: "The payment period provided for in the first paragraph of Article 37 of the Law of 28 January 2013 referred to above is fixed at thirty (...) ". According to Article 2 (2) of the same decree: "For the payment of the balance of the works contracts subject to the Public Procurement Code, the payment period runs from the date of receipt by the master of the general and definitive statement of accounts drawn up under the conditions laid down in the general conditions of contract applicable to works contracts ". According to Article 7: "Where the sums due to the principal are not paid (...), the creditor is entitled (...) to the payment of the lump sum indemnity for recovery costs (.. .) ". Article 9 provides: "The amount of the fixed compensation for recovery costs is fixed at 40 euros".
- Pursuant to these provisions, the local authority of Saint-Pierre-et-Miquelon is ordered to pay to the company Self, as a provision, default interest on the sum of 247,382.87 euros excluding taxes as of September 14, 2017 as well as the sum of 40 euros corresponding to the lump sum indemnity for recovery costs.
- It is appropriate, in the circumstances of the case, to charge the territorial authority of Saint-Pierre-et-Miquelon, for the entire procedure, the payment of a sum of 5,000 euros to the company Self Saint-Pierre and Miquelon under Article L. 761-1 code administrative justice. These provisions, however, prevent an amount from being borne by Self Saint-Pierre and Miquelon, which is not the losing party in this case.
Article 1: The order of 2 July 2018 of the judge of the Court of Appeal of the Bordeaux Administrative Court of Appeal and the order of 22 January 2018 of the judge of the Court of Administrative Court of Saint Pierre and Miquelon are annulled.
Article 2: The territorial collectivity of Saint-Pierre-et-Miquelon is condemned to pay Self Saint-Pierre and Miquelon, as a provision, on the one hand, the sum of 247,382.87 euros HT with interests moratoriums from 14 September 2017 and, on the other hand, the sum of 40 euros corresponding to the lump sum recovery indemnity.
Article 3: The local authority of Saint-Pierre-et-Miquelon will pay the sum of 5,000 euros to the company Self Saint-Pierre and Miquelon under article L. 761-1 code administrative justice. The conclusions presented by the local authority in the same way are rejected.
Article 4: This decision will be notified to the company Self Saint-Pierre and Miquelon and the territorial collectivity of Saint-Pierre-et-Miquelon.