Modalités d’indemnisation des travaux supplémentaires et d’appel en garantie du maitre d’œuvre

Terms of indemnification for additional works and call for guarantee by the prime contractor

by Sébastien Palmier on 2 January 2018 | Category: Slider home
Modalités d’indemnisation des travaux supplémentaires et d’appel en garantie du maitre d’œuvre Modalités d’indemnisation des travaux supplémentaires et d’appel en garantie du maitre d’œuvre

CE 20 December 2017, Grand Toyes Agglomeration Community, Ref. No. 401747

This ruling gives the opportunity to recall the terms of compensation by the owner of the work essential for the realization of the work according to the rules of art and the terms of call guarantee of the master d ' in case of fault of the latter.

Rule n ° 1: the methods of indemnification of the works essential to the realization of the work according to the rules of the art

The Council of State recalls the rule according to which the entrepreneur has the right to be compensated for the cost of the additional works essential to the realization of a work in the rules of the art and the principle according to which the definitive load of the compensation is the responsibility of the project owner except in case of fault attributable to the project manager

Rule n ° 2: the modalities of call in guarantee of the master of work

Indeed, in case of fault of the project manager, the Council of State reminds that the owner of the work is entitled to call it as collateral.

This is the case when the need to carry out this work only appeared after the award of the contract, because of an initial bad assessment by the supervisor, and which he establishes that he would have given up construction project or modified if it had been notified in due time. However, in the present case, the owner did not establish that he would have abandoned the construction of the university campus or would have modified the project if it had known that additional work was essential to its realization in the rules of the 'art

The same applies when, due to a fault of the project manager in the design of the work or in the follow-up of works, the amount of all the works which were essential to the realization of the a work in the rules of the art is greater than the cost that should have been that of the work if the client did not commit any fault, up to the difference between these two amounts. In the same way, in the present case, the owner did not establish that the amount of works necessary for the realization of the work in the rules of the art, including the additional works, would have been superior to the cost of construction of the university campus if the project management had not made mistakes in the design of this book.

Therefore, the Council of State considers that the final charge for the cost of additional work must be borne by the sole owner without it being possible to have part of it borne by the prime contractor.


THIS
N ° 401747

Reading of Wednesday, December 20, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

  1. Considering that it emerges from the statements in the judgment under appeal that the Troyes agglomeration community, which became the Greater Troyes agglomeration community, as part of the project to build a university campus of four buildings in the city center of In 2006, Troyes awarded lot 6, "polycarbonate facades", to Poulingue for a total lump sum price of € 899,505.08 excluding tax; that the project management was entrusted to Lipsky-Rollet Architects; that after the receipt of the work, the company Poulingue asked the Greater Troyes agglomeration community for the payment of additional work; that, by a judgment of April 15, 2014, the administrative court of Châlons-en-Champagne has, on the one hand, sentenced the community of agglomeration to pay to the company Poulingue, for this work, the sum of 162 025 , 01 euros TTC and, secondly, condemned the company Lipsky-Rollet Architects to guarantee the agglomeration community of this condemnation up to 95 %; that by a judgment of May 12, 2016, against which the agglomeration community of Grand Troyes appeals in cassation, the administrative court of appeal of Nancy discharged partially the company Lipsky-Rollet Architects of its condemnation;
  2. Considering, in the first place, that the contractor has the right to be compensated for the cost of the additional works necessary for the realization of a work in the rules of the art; that the definitive burden of compensation lies, in principle, on the project owner; that, however, the owner is justified, in case of fault of the main contractor, to call it as collateral; this is the case when the need to carry out this work only appeared after the award of the contract, because of an initial bad assessment by the supervisor, and which he establishes would have abandoned or modified the construction project if it had been notified in good time; that is the same when, due to a fault of the supervisor in the design of the work or in the follow-up of works, the amount of the whole of the works which were essential to the realization of the work in the rules of the art is superior to the cost which should have been that of the work if the master of work had not committed any fault, with the height of the difference between these two amounts;

  3. Considering, on the one hand, that by noting, in order to dismiss part of the Grand Troyes agglomeration community's pleadings, that it did not establish that it would have abandoned the construction of the university campus or would have modified the project if it had known that additional work was essential to its realization in the rules of the art, the administrative court of appeal did not tarnish its judgment of mistake of law; that, on the other hand, it was not argued before it that the amount of work necessary for the realization of the work in the rules of the art, including the additional works, would have been higher than the cost of the construction the university campus if the company Lipsky-Rollet Architects had not made mistakes in the design of this book; that, consequently, the court did not err in law by judging that the agglomeration community of Grand Troyes had to bear the final load of the cost of this additional work, while this one argued that this cost was not included in its initial budget;
  4. Considering, secondly, that the plea alleging that the judgment under appeal, in so far as it concerns additional work No 41, is vitiated by inadequate reasoning, is in fact lacking; that if the agglomeration community of Grand Troyes supports, concerning the same reasons of the judgment, that the court would have made an error in its interpretation of the stipulations of article 23 of the particular administrative clauses, this means is, in in any event, inoperative, the court not having pronounced upon these stipulations;
  5. Considering, finally, that it follows from what has just been said that the agglomeration community of Grand Troyes is unfounded to seek the annulment of the judgment under appeal as it rejects the surplus its claims for warranty against Lipsky-Rollet Architects; that, consequently, the agglomeration community of Grand Troyes is not justified to ask, consequently, the cancellation of the judgment in so far as it puts at the expense of the expenses of expertise;
  6. Considering that the provisions of Article L. 761-1 of the Administrative Justice Code prevent the Lispky-Rollet Architects, who is not the losing party in the present case, from being charged with payment of the amounts requested by the Grand Troyes Urban Community; that on the other hand, it is appropriate, in the circumstances of the case, to put at the charge of the agglomeration community of Grand Troyes the payment of a sum of 3 000 euros to the company Lispky-Rollet Architects at the title of the same provisions;

DECIDE:

Article 1: The appeal of the Grand Troyes agglomeration community is rejected.

Article 2: The agglomeration community of Grand Troyes will pay Lispky Rollet Architectes a sum of 3,000 euros under Article L. 761-1 code administrative justice.

Article 3: This decision will be notified to the agglomeration community of Grand Troyes, the company Poulingue and Lipsky-Rollet Architects.