Obligation to carry out soil studies before submitting bids
The territorial collectivity of Saint-Pierre and Miquelon had awarded the company Hélène et Fils a lot of a works contract at a global price and lump sum, for the construction of housing. From the beginning of the works, the company informed the project manager and the client of difficulties related to the nature of the soil. As a result, the contractor has done additional work to provide a good foundation for the foundations and has requested payment for this work. As this request was refused by the client, the company asked the Administrative Court of Saint-Pierre and Miquelon for compensation for this additional work, which was granted. The community has appealed this judgment to the Bordeaux Administrative Court of Appeal, which annuls the judgment. In that judgment, the Court held that, unless otherwise stipulated by the SCC, soil surveys must be carried out prior to the tender in order to allow candidates to form their price with full knowledge of the facts and that work related to soil surveys carried out subsequent to the offer are not additional work.
Rule # 1: Unless otherwise stipulated by the SCC, the soil studies must be carried out by the contractor prior to his offer
The Tribunal notes that, pursuant to section 29-11 of the GCCA, it is the responsibility of the Contractor to establish, according to the Contract Documents, the documents required to complete the work, such as execution, calculation notes, detailed studies and to make all necessary statements on the spot. He also noted that the SCC indicated that the contractor was not responsible for carrying out the execution studies and that the contractor had to carry them out. In addition, the CCTP stipulated that the developer did not carry out the soil studies, that the company could carry out all the surveys it deemed necessary, the costs being included in the overall price, and that the surveys were at the discretion of the companies to make their offers. The Administrative Court of Appeal concluded that the soil tests were among the execution studies incumbent on the holder of the contract and that these surveys should have been conducted prior to his offer.
Rule n ° 2: Work related to the results of a soil study carried out after the offer does not have the character of additional works
Since the Court considered that the undertaking should have ascertained the consistency of the soil before proposing its price, which should include the cost of soil studies and work suited to the consistency of the soil, it concludes logically that as the holder of the contract did not carry out the soil studies prior to his bid, the works described as "supplementary" by the latter do not have this character. Consequently, it considers that it is wrong that the administrative court of Saint-Pierre and Miquelon has granted the claim for compensation of the contractor and cancels its judgment.
Business consultancy :
Companies responding to works contracts are advised to first ascertain whether or not the SCC specifies whether the execution studies are at the expense of the contractor or the contractor. If they are the responsibility of the contractor, it is appropriate to conduct appropriate surveys, including soil surveys, in order to include in the price all the costs of the work made necessary by the results of these surveys. Admittedly, these surveys will remain the responsibility of the company if it is eliminated, but it will cost him less, if it is retained, that unscheduled work and whose financial support will be refused by the owner!
N ° 15BX00263
4th bedroom - training 3
Reading of Thursday, February 16, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Previous litigation procedure:
The company Hélène et Fils asked the Administrative Court of Saint-Pierre-et-Miquelon to condemn the territorial collectivity of Saint-Pierre-et-Miquelon to pay him the sum of 44 842, 20 euros with interest on arrears with capitalization of interests .
By a judgment n ° 1300018 of October 14, 2014, the administrative court of Saint-Pierre-et-Miquelon condemned the territorial collectivity of Saint-Pierre-and-Miquelon to pay to the company Hélène et Fils the sum of 44 842,20 euros, with interest at the rate defined in Article 3.4.10 of the general administrative clauses applied to the market from 12 August 2006 and the capitalization of interest from 12 August 2007.
By an application filed on January 21, 2015 and a memorandum registered on January 6, 2017, the territorial collectivity of Saint-Pierre-et-Miquelon, represented by MeB ..., asks the court:
1 °) to annul the judgment of the Administrative Court of Saint-Pierre-et-Miquelon of October 14, 2014;
2 °) to reject the request for compensation from the company Hélène et fils;
3 °) to charge the company Hélène et Fils the sum of 2,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice.
The parties were regularly notified of the day of the hearing.
The following were heard during the public hearing:
- the report by Mrs Marianne Pouget,
- the conclusions of Ms Frédérique Munoz-Pauziès, public rapporteur,
- and the observations of MeC ..., representing the company Hélène et Fils;
A note under deliberation submitted by Hélène et Fils was registered on January 23, 2017.
Considering the following:
- With a view to awarding an alloti contract for the construction of six youth housing units, the local authority of Saint-Pierre-et-Miquelon initiated a consultation procedure at the end of which lot no.1 "Terrassements -Voieries Various Networks (VRD) - Structural Concrete "comprising two sub-lots (lot n ° 1A: Earthwork-VRD and lot n ° 1B: carcass concrete) was awarded to the company Hélène et Fils for an amount of 94,190, 83 euros all taxes included. The project management was carried out by SPMA Islands Engineering. The territorial collectivity of Saint-Pierre-et-Miquelon is subject to the judgment of 14 October 2014 by which the administrative court of Saint-Pierre-et-Miquelon sentenced it to pay the company Hélène et Fils the sum of 44,802.20 euros for the additional works carried out by the latter, with default interest from 12 August 2006 and their capitalization as from 12 August 2007.
On the background :
- In the context of a lump-sum price contract, the firm holding the contract is entitled to claim a price supplement from the contracting authority only in so far as it justifies that it carried out, on the order of service, work not provided for in the contract, or that such work is indispensable to the completion of the work according to the rules of the art and regardless of the amount, even though such additional work would not not upset the economics of the contract and would not have been unpredictable.
- The result of the investigation is that, as a result of difficulties in the performance of the contract resulting from the nature of the ground, the company Hélène et Fils communicated to the project manager and the client from the beginning of the construction works. earthworks, the latter has carried out additional work following the instructions of its design office, the company ESTB, to allow a good foundation foundation. It is not disputed by the territorial collectivity of Saint-Pierre-et-Miquelon that these works, which consisted of the realization of additional earthworks up to the "good ground" then of three bars of foundation in big concrete on which have Longrines were positioned, which were indispensable for the proper execution of the work in the state of the art. But the local authority maintains that the company did not correctly estimate its offer according to the nature of the soil.
- The company Hélène et fils maintains that this work is attributable to a fault committed by the prime contractor in the design of the project itself, the chosen construction process having proved incompatible with the nature of the soil composed of non-embankments. homogeneous.
- However, it is clear from the documents of the contract concluded by the applicant company with the territorial collectivity of Saint-Pierre and Miquelon, and in particular from article 29-11 of the general administrative clauses of works then applicable, that it was up to the contractor, unless otherwise stipulated in the special administrative clauses, to establish according to the contract documents the documents necessary for the execution of the works, such as the execution plans, calculation notes, studies and make all the necessary readings on site. Article 8.3 of the special administrative clauses applicable to lots 1A and 1B stated: "The prime contractor is not responsible for carrying out the execution studies of the works. Execution studies of the works Article VI.7 "Surveys" of the CCTP applicable to Lot 1A expressly stated: "The client did not carry out any soil surveys on the site. The company will be able to carry out any surveys it deems necessary to determine the consistency of road foundations and the rate of tillage. The costs of surveys and reporting by an authorized geotechnician, at the option of the company, are his responsibility, it being understood that the work is to be treated at a global price and lump sum. "Article VI" Surveys " the CCTP applicable to Lot 1B left the surveys to the discretion of the companies to make their offers.
Thus, it is clear from these stipulations that the surveys were among the execution studies incumbent on the holder of the contract for the realization of the works.
- It follows from the foregoing that it was up to the contractor to assess the exact nature of the soil by carrying out a preliminary study to his tender and to verify at his own expense the homogeneity and solidity of the land with the required accuracy of a professional wise to carry out the work in the rules of art. In these circumstances, the work carried out by the company Hélène et fils, which neglected in the determination of its offer to conduct a soil study essential to assess the consistency and price of its offer and for which it was responsible, does not may not be regarded as additional work leading to a payment.
- It follows from the foregoing that, without it being necessary to rule on the prescription of the territorial collectivity of Saint-Pierre-et-Miquelon, the latter is justified in maintaining that it is wrong that, by the impugned judgment, the administrative court of Saint-Pierre-et-Miquelon granted the request of the company Hélène et fils.
The conclusions submitted on the basis of Article L. 761-1 of the Administrative Justice Code:
- Those provisions preclude that the claims made by Hélène et fils in respect of the costs incurred by it and not included in the costs are to be upheld. On the other hand, in the circumstances of this case, it is appropriate to charge the latter the sum of EUR 1,500 to be paid to the territorial authority of Saint-Pierre-et-Miquelon in accordance with those provisions.
Article 1: The judgment of the administrative court of Saint-Pierre-et-Miquelon is canceled.
Article 2: The request made by the company Hélène et fils before the administrative court of Saint-Pierre-et-Miquelon and the conclusions of the company under Article L. 761-1 code administrative justice are rejected.
Article 3: The company Hélène et fils will pay to the local authority of Saint-Pierre-et-Miquelon the sum of 1 500 euros under the provisions of Article L. 761-1 code administrative justice.