The subcontractor has the right to reassess the amount of the special act!
In this case, the Council of State rules for the first time on the right of the subcontractor to obtain the reassessment of the amount of its special act as soon as it performs additional services that the owner cannot ignore.
Lesson 1: On the obligation for the subcontractor to have its direct payment conditions approved
Article L 2193-10 of the Public Order Code recalls that the right to direct payment is subject to a double condition: the subcontractor must have been accepted by the contracting authority and the conditions for its direct payment agreed by the latter. According to article R 2193-1 of the Public Order Code, acceptance of the subcontractor and approval of its payment conditions may take place either at the time of submission of the offer or during the execution of the contract . In the first case, the notification of the contract implies acceptance of the subcontractor and approval of its payment conditions. In the second case, the acceptance of the subcontractor and the approval of its payment conditions are recorded by a special act signed by the owner and the owner or by the main market. In both cases, the contractor is required to indicate to the contracting authority the nature of the services subcontracted as well as the maximum amount of the sums to be paid to the subcontractor.
The absence of approval hinders the right to direct payment for the subcontractor's services.
In the event that the subcontractor provides proof that the owner could not have been unaware of its existence, the subcontractor may then attempt to obtain part of the payment for his services by engaging the quasi-tort liability of the contracting authority for the breach committed by the latter in its obligation to elicit from the contractor the approval of its subcontractor (CE November 7, 1980, SA Schmid-Valenciennes, n ° 12060, CE May 28, 2001, SA Bernard Travaux Polynesia, n ° 205449).
Lesson 2: On the right of the subcontractor to reassess the amount of the direct payment
The approved subcontractor cannot obtain direct payment from the contracting authority for an amount higher than that fixed by the contract or the special act, unless they correspond to essential work or unforeseen constraints (CE 24 June 2002, Department of Seine Maritime, n ° 240271, CE Sté Presspali SpA, n ° 304604).
This case is interesting insofar as the Council of State decides for the first time on the right of the subcontractor to the reassessment of the maximum ceiling of the direct payment as soon as he performs additional services that the master of the work can not ignore. According to the Council of State, it is the responsibility of the client, when he is aware of the performance, by the subcontractor, of services exceeding those provided for in the special act and leading to the exceeding of the maximum amount of sums to pay him by direct payment, to give notice to the contract holder or the subcontractor to take any useful measure to put an end to this situation or to regularize it, at the expense of the contract holder, if necessary that of the special act in order to take into account a new distribution of services with the subcontractor.
In doing so, the Council of State poses an obligation of the contracting authority to cause a modification of the ceiling of the direct payment appearing in the special act. The client may notice that a subcontractor is performing services beyond the direct payment ceiling, either because he has himself ordered new services falling within the scope of 'intervention of the subcontractor - imposing on the part of the client a modification of the special act; or, by receiving the invoices from the subcontractor for a higher amount - imposing on the part of the contracting authority a modification of the market or of the special act.
Considering the following:
- It appears from the documents in the file submitted to the trial judges that the Nord department concluded on March 2, 2007 with a group made up in particular of the company SES, a contract purchase order contract, for a period of one year renewable three times, relating to the carrying out of vertical staking signaling works on the roads of the department. By a special act notified the same day to the company Ysenbaert, the Nord department accepted the latter as a subcontractor of the company SES and approved its direct payment conditions within the limit of an annual ceiling set at 107,640 euros. incl. By a judgment of the Tours Commercial Court of June 30, 2011, SES was placed in compulsory liquidation. By letter dated August 2, 2012, the company Ysenbaert asked the Nord department for the payment of the sum of 128,520.19 euros, for services performed between January 27 and April 28, 2011. The department rejected this request by a letter dated September 7, 2012. An implicit decision to refuse the department was born following a new request presented on May 5, 2014 by the company Ysenbaert. By a judgment of October 18, 2016, the Lille administrative court rejected this company's request for the Nord department to pay him the sum of 128,520.19 euros. The North Department appeals on points of law against the judgment of October 18, 2016 by which the Douai Administrative Court of Appeal set aside this judgment and ordered it to pay the company Ysenbaert the sum of 42,164.83 euros. By way of cross-appeal, the company Ysenbaert requests the annulment of the judgment, in so far as it only partially granted its request for appeal.
- Firstly, under the terms of article 3 of the law of 31 December 1975 relating to subcontracting: "The entrepreneur who intends to execute a contract or a contract by using one or more subcontractors must, at the time from the conclusion and throughout the duration of the contract or the contract, have each subcontractor accept and agree to the terms of payment of each subcontract by the contracting authority (…) / When the subcontractor n '' has not been accepted nor the terms of payment agreed by the owner under the conditions provided for in the previous paragraph, the main contractor will nevertheless be liable to the subcontractor but may not invoke the subcontract against the subcontractor. " Under article 5 of the same law: ”(…) During the performance of the contract, the main contractor may call on new subcontractors, on condition that they have declared them beforehand to the owner of the contract. 'work " . Under the terms of article 6 of the same law: »The direct subcontractor of the contract holder who has been accepted and whose terms of payment have been approved by the contracting authority, is paid directly by him for the share of the market which it ensures execution (…) ". Under article 14-1 of the same law: ”(…) The client must, if he is aware of the presence on the site of a subcontractor who has not done the subject of the obligations defined in article 3 or in article 6, as well as those defined in article 5, to put the main contractor or the subcontractor in default to fulfill these obligations.
- Under the terms of article 114 of the public procurement code, in the wording applicable to the dispute: »Acceptance of each subcontractor and approval of its payment conditions are requested under the following conditions: 1 ° In the case where the request for subcontracting occurs at the time of submission of the offer or proposal, the candidate provides the contracting authority with a declaration stating: (…) c) The maximum amount of sums to be paid by direct payment to the subcontractor (…); 2 ° In the case where the request is presented after the submission of the offer, the holder delivers against receipt to the contracting authority or sends him by registered letter, with request for acknowledgment of receipt, a declaration containing the information mentioned in 1 ° ./ Acceptance of the subcontractor and approval of the payment conditions are then noted by a special act signed by both parties. The above mentioned information in 1 ° appears in the special act; 3 ° If, after notification of the contract, the contractor intends to entrust subcontractors benefiting from direct payment to perform services for an amount greater than that indicated in the contract or special act, he requests the modification of the single copy or of the transferability certificate provided for in article 106 of this code (…). The contracting authority may not accept a subcontractor or accept its payment conditions if the single copy or the transfer certificate has not been modified or if the justification mentioned above has not been given to it. Any change in the distribution of services between the contract holder and the subcontractors paid directly or between the subcontractors themselves also requires the modification of the single copy or the transferability certificate or, where appropriate, the production of a certificate or release from the assignee (s). "
- It follows from the provisions cited in points 2 and 3 that it is the responsibility of the contracting authority, when he is aware of the performance, by the subcontractor, of services exceeding those provided for by the special act and leading to the overrun of the maximum amount of the sums to be paid to him by direct payment, to give notice to the contract holder or the subcontractor to take any useful measure to put an end to this situation or to regularize it, at the expense of the contract holder, if necessary, to request the modification of the single copy or of the transfer certificate and that of the special act in order to take into account a new distribution of services with the subcontractor.
- It follows from the documents in the case submitted to the trial judges that the Nord department was aware of the fact that the ceiling, provided for in the special act act notified on March 2, 2007, of 107,640 euros, below which he had to pay directly the company Ysenbaert for the subcontracting services carried out on behalf of the company SES, was to be exceeded around November 15, 2010, even though the subcontracting contract ran until the end of 2010. From then, by judging that the department of North had committed a fault by refraining from putting in residence the company SES, holder of the market of realization of works of vertical signaling of staking on the roads of the department, to regularize the situation of the company subcontractor Ysenbaert having regard to articles 3 and 6 of the law of December 31, 1975, the court did not vitiate its judgment neither of error of law, nor of error of legal classification.
- Secondly, the court did not incorrectly qualify the facts before it by considering that there was a direct link between the faulty behavior of the department and the damage suffered by the company Ysenbaert, the department having refrained from any approach towards the company SES and having paid to the latter, subsequently placed in receivership, the sums corresponding to the work carried out by the company Ysenbaert beyond the maximum amount fixed by the special act.
- In the third place, by judging that the company Ysenbaert and the company SES had each committed a fault likely to attenuate the responsibility of the department of North, the first by continuing the execution of the services beyond the maximum amount fixed by the act special without ensuring that his situation had been regularized, the second by neglecting to submit to the approval of the department the conditions of payment of the subcontractor for the services in question, the court did not err in law .
- Finally, it was by a sovereign assessment, free from denaturing, that the court operated a sharing of responsibility by third parties between the Nord department, the SES company and the Ysenbaert company, and ordered the department to pay the latter the sum of 42,164.83 euros.
- It follows from all of the above that neither the Nord department, by way of the main appeal, nor the Ysenbaert company, by way of the cross-appeal, are justified in requesting the annulment of the judgment under appeal.
- It is not necessary, in the circumstances of the case, to allow the conclusions of the two parties tending to the application of article L. 761-1 of the code of administrative justice.
Article 1: The appeal of the department of North is rejected.
Article 2: The cross-appeal of the company Ysenbaert and its claims for the application of article L. 761-1 of the code of administrative justice are dismissed.
Article 3: This decision will be notified to the Nord department and to the company Ysenbaert.