La réception de l’ouvrage emporte la réception de l’ensemble des prestations de maîtrise d’œuvre

Acceptance of the work entails receipt of all project management services

CE December 2, 2019, Sociétés Guervilly, Puig Pujol Archtiecture, req.n ° 423544

In this case, the Council of State recalls on the one hand that the reception puts an end to the contractual relations between the project owner and the project manager as regards the services inseparable from the realization of the work in number of which include design missions; on the other hand, that the absence of notification of the general statement allows the owner to call in guarantee the main contractor for the assumption of additional works.

Lesson 1: Receipt of the work entails receipt of all project management services

In its judgment, the Council of State considers that there is no reason to distinguish within the missions of project management, those relating to the design of the work from those linked to the realization of the work so that it must be considered that acceptance puts an end to the contractual relationship between the owner and the project manager with regard to all of the construction and design missions of the work.

Acceptance of the work therefore entails receipt of all project management services, including those relating to the design of the work


Lesson 2: failure to notify the general account allows the contracting authority to call the project manager as security

This judgment is also an opportunity to recall that as long as the contracting authority has not notified the general account of the contract, it is entitled to call in guarantee the project manager for the taking charge in particular of delays or additional work.

Acceptance by itself has no effect on the financial rights and obligations arising from the performance of the contract, the determination of which takes place definitively when the balance of the final account is established. Only the intervention of the general and final account of the market has the consequence of prohibiting the contracting authority any complaint in this regard.

The Council of State then recalls that if the final charge of compensating the cost of additional work essential to the completion of a work in the state of the art to which the contractor is entitled falls, in principle, to the master of the work, it is justified, in the event of fault of the project manager, to call it in guarantee and that it is so:

When the need to carry out this work only appeared after the award of the contract, due to an incorrect initial assessment by the project manager, and he established that he would have abandoned his construction project or modified it if it had been notified in good time.

When, due to a fault of the project manager in the design of the work or in the monitoring of works, the amount of all the works which were essential for the realization of the work in the rules of the art is higher than the cost which should have been that of the work if the project manager had committed no fault, up to the difference between these two amounts (application of the solution identified in CE December 20, 2017, Agglomeration community of Grand Troyes, n ° 401747).


CE December 2, 2019, Sociétés Guervilly, Puig Pujol Archtiecture, req.n ° 423544

Considering the following:

  1. It appears from the documents in the file submitted to the trial judges that, for the construction of its new hospital, the Francis Vals hospital center, located in Port-la-Nouvelle, entrusted the project management to a solidarity group formed between the companies Guervilly, Puig Pujol and Bâti Structure Ouest and the carrying out of foundations and structural work for the building at the company SM Entreprise. The Administrative Court of Appeal of Marseille, after having condemned, by a judgment of December 21, 2017 which was the subject of a correction on April 9, 2018, the hospital center to be paid to this company, within the framework of the financial regulation of its market, the sum of 619,889.79 euros including tax for the additional work it had to carry out, has, by a new judgment of July 2, 2018 intervened at the end of an investigative measure, jointly condemned the Guervilly, Puig Pujol Architecture and Bâti Structure Ouest companies to guarantee the hospital center in the amount of € 518,372.11 including tax for the additional construction cost. The companies Guervilly, Puig Pujol Architecture and Bâti Structure Ouest appeal to the Court of Cassation against this last judgment.
  2. Firstly, it appears from the documents in the file that, contrary to what is argued, the minute bears the signatures required by the provisions of article R. 741-7 of the code of administrative justice.
  3. Secondly, it appears from the statements in the judgment under appeal that, in order to consider that the Francis Vals hospital center was justified in asking for the joint and several condemnation of Guervilly, Pujol and Bati Structure Ouest to guarantee it the sentence pronounced against him for the additional cost of construction, the Marseille Administrative Court of Appeal, on the one hand, noted that this additional cost was directly attributable to the lack of design of the work of the project managers and, on the other hand, considered that the latter could not rely on the receipt of the work or the finality of the statement of the works contract.
  4. On the one hand, the contractor has the right to be compensated for the cost of additional work essential to the realization of a work in the rules of art. The final charge for compensation rests, in principle, with the contracting authority. However, the project owner is entitled, in the event of fault of the project manager, to call him in guarantee, without hindering the reception of the work. This is the case when the need to carry out this work only appeared after the award of the contract, due to an initial incorrect assessment by the project manager, and he establishes that he would have renounced his construction project or modified it if he had been notified in good time. The same applies when, due to a fault on the part of the project manager in the design of the structure or in the follow-up of works, the amount of all the works which were essential for the realization of the work in the rules of the art is higher than the cost which should have been that of the work if the project manager had committed no fault, up to the difference between these two amounts.
  5. By the judgment under appeal, the court held that the increased cost of construction resulted not only from the constructive needs of the site, but from the existence of a designer's fault with the design resulting from a poor initial assessment, the consequences in terms of additional works only appeared after the contracting of project management and works and that the Francis Vals hospital established that it would have modified the construction project if it had been notified in time useful of the need to carry out this additional work. The court was able to legally infer from the findings and assessments it made within the framework of its sovereign power, which are free from denaturing, that the prime contractors had to be jointly and severally condemned to guarantee the contracting authority of the sentence pronounced against him for the additional construction cost directly attributable to this error.
  6. On the other hand, the receipt of a work is the act by which the owner declares to accept the work with or without reservation. It applies to all participants in the work operation, even if it is only pronounced with regard to the contractor, and terminates the contractual relationship between the owner and the builders with regard to concerns the completion of the work. If it therefore prohibits the contracting authority from invoking, after it has been pronounced, and subject to the guarantee of perfect completion, apparent disorders caused to the structure or disorders caused to third parties, which it is then deemed to have renounced to request compensation, it does not terminate the contractual obligations of manufacturers only to this extent. Acceptance therefore remains, in itself, without effect on the financial rights and obligations arising from the performance of the contract, notably due to delays or additional work, the determination of which takes place definitively when the balance of the account is established. final. Only the intervention of the general and final account of the market has the consequence of prohibiting the contracting authority any complaint in this regard.
  7. If, under the provisions of article 32 of the general administrative clauses applicable to intellectual services contracts, applicable to the project management contract in question: “The services covered by the contract are subject to verifications intended to note that they meet the stipulations stipulated in the contract (…) “, and under the stipulations of article 33.2 of the same book:“ The person responsible for the contract declares the reception of the services if they meet the stipulations of the contract. The effective date of acceptance is specified in the acceptance decision; failing that, it is the date of notification of this decision (…) “, it follows from what was said in the previous point that regardless of the decision of the client to accept the project management services provided by the aforementioned stipulations of article 32 of the general administrative clauses applicable to intellectual services contracts, the reception of the work puts an end to the contractual relationships between the project owner and the project manager with regard to the services inseparable from the realization of the work, among which are, in particular, the design missions of this work.
  8. It follows from this that by justifying by the fact that the reception of the work is not intended to note any design faults attributable to the prime contractor of the operation, which are intended to be noted and reserved , where applicable, when receiving the services from the project management contract, the acknowledgment that this reception does not prevent the contractual responsibility of the project managers from being sought due to design errors that they may have committed, the Marseille Administrative Court of Appeal committed an error of law. However, this reason, which does not justify the solution adopted by the court in the light of what has been said in point 4, is overabundant. Consequently, the plea alleging error of law affecting this part of the judgment can be rejected as ineffective.
  9. It follows from all of the above that the companies Guervilly, Puig Pujol Architecture and Bâti Structure Ouest are not justified in asking for the annulment of the judgment they are attacking.
  10. The provisions of article L. 761-1 of the code of administrative justice prevent the claims presented in this respect from the companies Guervilly, Puig Pujol Architecture and Bâti Structure Ouest from being granted. However, these companies should be charged with the sum of 3,000 euros presented in the same way by the Francis Valls hospital center.

 

DECIDE:
Article 1: The appeal of Guervilly, Puig Pujol Architecture and Bâti Structure Ouest is rejected.
Article 2: The companies Guervilly, Puig Pujol Architecture and Bâti Structure Ouest are charged the total sum of 3,000 euros under article L. 761-1 of the code of administrative justice.
Article 3: This decision will be notified to Guervilly, the sole representative, as well as to the Francis Valls hospital center.