Methods of apportioning and contesting penalties by members of a joint group
In this case, the Council of State ruled for the first time on the procedures for contesting late payment penalties by the members of a joint group and the jurisdiction of the administrative judge to settle this type of dispute.
Lesson 1: Methods for distributing late payment penalties in a joint group
Article R2142-20 of the Public Order Code recalls that a group is (1) spouse when each of the economic operators members of the grouping undertakes to perform the service or services which are likely to be allocated to them in the market, or (2) in solidarity when each of the economic operators members of the grouping is financially committed for the entire market.
In a joint consortium, the general account of the market drawn up by the contracting authority, must distinguish the accounts of each member of the consortium by indicating the sums to which he is entitled in respect of the services he has performed and the penalties for delay inflicted on him.
The contracting authority fixes the amount of penalties for each member of the group according to the indications given by the agent. In the event of the agent's inaction, the contracting authority charges all of the penalties to the latter's general and final statement. The Council of State recalls that " if it is the responsibility of the contracting authority to liquidate the total amount of late payment penalties owed by all the companies, it is up to the sole joint representative to distribute the penalties which he advances in advance between the companies until that he has provided the information necessary for their distribution. In the event of inaction by the joint representative, the client is responsible for imputing all of the penalties to him. In this case, unless he is unable to effectively recover the amount of these penalties from the agent, the client may not charge them to another company ".
On the other hand, when the joint agent has fulfilled the obligation to provide the contracting authority with the information necessary for the distribution of late payment penalties between the contracting parties, the contracting authority may not replace the agent for the modify, and is required to comply with it in order to distribute the penalties among the members of the grouping.
Lesson 2: Modalities for contesting late payment penalties in a joint group
The members of a joint consortium may contest the existence of delays attributable to the consortium as well as the principle or the amount of late penalties imposed on it by the contracting authority, within the framework of the financial regulation of their market share .
If one of the members of a joint grouping also intends to contest the distribution resulting from the general statement of the grouping, which the contracting authority has operated between them in accordance with the indications provided by the joint representative, it is up to him, failing to find between them an amicable resolution, to present conclusions directed against the other companies members of the group tending to the settlement, by the administrative judge, of the final distribution of these penalties between them.
If the judge grants this request, in whole or in part, he takes it into account in establishing the balance specific to each member company. Concretely, this challenge must be made in the context of the challenge of the account by calling in guarantee the agent and the other member (s) of the grouping if he also intends to contest the distribution of the penalties between them and the administrative judge will be competent to deal with all of these conclusions.
If the judge finds on the occasion of the contestation of his statement by a member of the grouping that the client has taken into account a number of days of excessive delays, he must begin by reducing the overall amount of the penalties. It is only subsequently that he will have to check whether this reduction should result in a reduction in the amount of the penalties charged to the applicant. If this is not the case, this error will not have the effect of reducing the applicant's share.
If the dispute concerns only the distribution of penalties between the members of the joint group, the applicant must accept the statement but may then act against the other members of the group, on the basis of their quasi-tort liability because this action will not be not based on the application of the grouping agreement, but on the delays committed by the other members of the grouping in the execution of the public contract, which will have caused it damage.
This action also falls under the jurisdiction of the administrative judge (TC, 2 June 2008, London Lloyds Subscribers, n ° 3621, p. 555). The members of a joint grouping can thus seek the responsibility of the joint representative if they consider that he has committed a fault for having communicated to the contracting authority of the erroneous, imprecise or insufficient indications, provided that this resulted for they financial or economic damage.
Considering the following:
- The appeal of the company Giraud-Serin registered under n ° 422615 and its request registered under n ° 425080 are directed against the same judgment of June 26, 2018 of the administrative court of appeal of Bordeaux. They should be joined to rule by a single decision.
On the appeal:
- It appears from the documents in the file submitted to the trial judges that, by an act of engagement of 28 November 2006, the Midi-Pyrénées region, having as delegated contracting authority the Midi-Pyrénées construction and management company (COGEMIP), entrusted to a joint group of companies whose joint agent was the company Thomas et Danizan, lot n ° 2 "closed and covered" as part of the reconstruction work at the Gallieni high school in Toulouse, for a total amount of 41,403 683.24 euros including tax, increased by endorsements to the sum of 46,462,505.32 euros. The company Serin Metal Constructions, to whose rights the company Giraud-Serin now belongs, member of this grouping, was entrusted, among the seven sub-lots of lot n ° 2, sub-lot n ° 2- 2 relating to the structural steelwork and floors of the buildings "lessons" and "workshops". Following a dispute arising between the company Serin Metal Constructions and the contracting authority concerning the settlement of the balance of its share of the market in lot no. 2, relating in particular to the amount of late payment penalties, the company has seized the administrative court of Toulouse which, by a judgment of February 24, 2016, jointly condemned the Midi-Pyrenees region and COGEMIP to pay to the company Serin Constructions metallic, in payment of the balance of its market share, the sum of 1 212,015.64 euros with default interest and capitalization. By a judgment of June 26, 2018, against which the company Giraud-Serin appeals, the administrative court of Bordeaux has, on the one hand, on appeal from the Midi-Pyrénées region and from COGEMIP, established the amount of late penalties charged to the company Serin Metal Constructions at the sum of 4,693,038.75 euros, including tax, settled the negative balance of its market share at the sum of 4,285,388.21 euros, ordered that company to pay this amount to the Midi Pyrénées region became the Occitanie region and reformed the judgment under appeal in that it was contrary to the judgment.
- Firstly, under the terms of the provisions of article 20.7 of the general administrative clauses (CCAG) Works, applicable to the contract in dispute: "In the case of grouped contractors for which payment is made to separate accounts, the Penalties (…) are divided among the co-contractors in accordance with the indications given by the agent, unless otherwise stipulated in the book of specific administrative clauses. Pending receipt of these indications (…) the penalties are retained in full by the agent (…) “. It follows from these stipulations that if it is the responsibility of the contracting authority to liquidate the total amount of late payment penalties owed by all the companies, it is up to the sole common agent to distribute the penalties which he makes between the companies. advance until it has provided the information necessary for their distribution. In the event of inaction by the joint representative, the client is responsible for imputing all of the penalties to him. In this case, unless it is unable to effectively recover the amount of these penalties from the agent, the contracting authority may not attribute them to another company.
- When the joint agent has fulfilled the obligation set out in the previous point, by providing the contracting authority with the information necessary for the distribution of late payment penalties between the contracting parties, the contracting authority may not replace the agent to modify them, but is required to comply with them in order to distribute the penalties among the members of the grouping.
- Companies members of a joint consortium may contest the existence of delays attributable to the consortium as well as the principle or the amount of late penalties imposed on it by the contracting authority, within the framework of the financial regulations on their part. market. If, they also intend to contest the distribution resulting from the general statement of the grouping, that the contracting authority operated between them in accordance with the indications provided by the joint representative in application of article 20.7 of the general administrative clauses, it is up to them , failing to find an amicable resolution between them, to present claims against the other member companies of the group seeking settlement, by the administrative judge, of the final distribution of these penalties between them. If the judge grants their request, in whole or in part, he takes it into account in establishing the balance specific to each member company. These companies can, moreover, seek the responsibility of the joint representative if they consider that he has committed a fault for having, in application of article 20.7 of the general administrative specifications, communicated to the contracting authority of the erroneous indications, imprecise or insufficient, provided that financial or economic damage resulted to them.
- It follows from the above that by judging that the client, who has made use, in the present case, of the "distribution key" for late payment penalties between members of the joint grouping of lot no. 2 provided by the joint representative, was bound by these indications given in application of article 20.7 of the general administrative conditions book, and which, consequently, the Giraud-Serin company could not usefully contest, within the framework of the recourse which it had formed to establish the balance of its market share, the rate of 78.3 % that the client had applied to him in accordance with these indications, the administrative court of appeal did not commit an error of law.
- Secondly, if the Giraud-Serin company maintains that the court did not, in order to fix the amount of the late penalties it had to bear, take into account in its regard a postponement of execution of the works of July 30 on October 17, 2008, which would have made it possible to reduce the number of days of delay arrested by the contracting authority to 80 days to 80 days, the court held supremely that the postponement invoked only concerned the work of the boarding school to which the company was not associated and that no postponement of execution of works had intervened with regard to works for which delays had been retained against the company. Consequently, it did not vitiate its judgment of error of law by rejecting the plea based on the fact that the contracting authority had implicitly waived the application of the corresponding penalties.
- Thirdly, the penalties for delay provided for in the clauses of a public contract are intended to compensate on a flat-rate basis the damage which is likely to cause to the contracting authority if the contractor fails to comply with the execution deadlines. contractually provided. They are applicable for the sole reason that a delay in the performance of the contract is noted and even when the contracting authority would not have suffered any prejudice or that the amount of penalties charged to the holder of the contract which results from their application would be greater than the damage suffered.
- If, when dealing with a dispute between the parties to a public contract, the contract judge must, in principle, apply the clauses relating to the penalties agreed upon by the parties when signing the contract, he may, exceptionally , seized of conclusions to this effect by a party, moderate or increase the penalties for delay resulting from the contract if they reach an amount manifestly excessive or derisory, having regard to the amount of the contract and taking into account the extent of the delay noted in the performance of services.
- When the contractor submits conclusions to the judge tending to moderate the penalties imposed on him, he cannot usefully maintain that the contracting authority has suffered no prejudice or that the prejudice he has suffered is less the amount of penalties charged to him. It is up to him to provide the judges with all the elements, relating in particular to the practices observed for comparable markets or to the particular characteristics of the market in dispute, of a nature to establish to what extent these penalties appear to him to be manifestly excessive. In view of the arguments of the parties, it is incumbent on the judge either to reject the conclusions before it by applying the clauses of the contract relating to penalties, or to rectify the amount of penalties charged to the contractor in the only measure imposed by the correction of their manifestly excessive character.
- To rule out the request for moderation of late penalties formulated by the company Serin metallic constructions, the administrative court of appeal of Bordeaux was limited to noting that a significant part of the penalties for which this company was contractually liable towards the contracting authority was consecutive to the delays caused by its subcontractor and its supplier, and that it was free for him to bring an action against these before the judicial judge with a view to recovery of the share of the penalties which was due to them attributable and the percentage of which was determined in the context of an expert opinion. In ruling in this way, while it was up to it only to inquire whether the request for moderation of the penalties formulated by the titular company could be granted in the light of the rules recalled in points 8 to 10, the court committed an error of law.
- It follows from the above, without there being any need to examine the other plea raised on this last point by the appeal, that the company Giraud-Serin is entitled to request the annulment of the judgment under appeal as 'he rejected his claims for moderation of late penalties. The case should be referred to the Administrative Court of Appeal of Bordeaux so that it can rule again on these conclusions and draw the consequences for determining the balance of the market share relating to sublot n ° 2-2.
- The Council of State ruling by this decision on the appeal of the company Giraud-Serin, its conclusions tending to stay the execution of the judgment under appeal have become subject.
On the costs of the dispute:
- There is no need, in the circumstances of the case, to charge the Occitania region and COGEMIP with an amount to be paid to Giraud-Serin under Article L. 761-1 of the administrative justice code, or to charge this company a sum to be paid to the Occitanie region in the same way.
Article 1: The judgment of June 26, 2018 of the administrative court of appeal of Bordeaux is set aside as it has rejected the conclusions of the company Giraud-Serin tending to moderate the penalties for delay.
Article 2: The case is referred to this extent to the administrative court of appeal of Bordeaux.
Article 3: The remainder of the conclusions of the appeal of the company Giraud-Serin is rejected.
Article 4: There is no need to rule on the conclusions of application no. 425080 from the company Giraud-Serin.
Article 5: The conclusions presented by the Occitanie region under article L. 761-1 of the code of administrative justice are rejected.