The signing of the general and final settlement does not preclude the direct payment of a subcontractor
Rule n ° 1: The subcontractor must send his request for direct payment before signing the DGD
In order to obtain the direct payment by the contracting authority of all or part of the services he has performed under his subcontracting contract, the regularly approved subcontractor must send " in proper time His request for direct payment to the main contractor, the contract holder, and to the developer.
The Council of State lays down the rule that a request sent by the subcontractor to the main contractor and the contracting authority before the signature of the general and final settlement of the contract must be regarded as made " in proper time ".
Rule n ° 2: The signature of the DGD does not then preclude the request for direct payment from the subcontractor
Once the subcontractor has sent his direct payment request to the main contractor and the contracting authority before the signature of the general account, the latter can no longer invoke the finality of the DGD to oppose the payment of the services of the subcontractor.
Board of state
Reading of Monday, October 23, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Colas Ile-de-France Normandie has asked the judge of the Court of Administrative Court of Châlons-en-Champagne to condemn the municipality of Vivier-au-Court to pay him, as a provision, the sums of 77,721.45 euros, 19 864.97 euros and 9 815.28 euros in settlement of the balance of various invoices. By an order No. 1600194 of 6 December 2016, the judge of the administrative court of Châlons-en-Champagne rejected this request and the counterclaims of the town of Vivier-au-Court.
By an order n ° 16NC02850 of April 12th, 2017, the judge of summary of the administrative court of appeal of Nancy rejected, on the one hand, the call formed by the society Colas Ile-de-France Normandie against this order in as long as it did not grant his request, on the other hand, the incidental appeal filed by the commune of Vivier-au-Court against this order insofar as it did not accede to its conclusions counterclaims.
By a summary appeal, a supplementary brief and a reply, registered on May 2, May 12 and September 13, 2017 to the litigation secretariat of the Conseil d'Etat, Colas Ile-de-France Normandie asked the Conseil d'Etat :
1 °) to annul the article 1 of this order of the Administrative Court of Appeal rejecting its conclusions of appeal;
2 °) to charge the commune of Vivier-au-Court the sum of 4,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- Law No. 75-1334 of 31 December 1975;
- Decree No. 2016-360 of 25 March 2016;
- the order of 8 September 2009 approving the general administrative clauses applicable to public works contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Grégory Rzepski, master of requests in extraordinary service,
- the conclusions of Mr Gilles Pellissier, public rapporteur.
- Considering that under the terms of Article R. 541-1 of the Administrative Justice Code: "The judge hearing the application for interim relief may, even in the absence of a request on the merits, grant a provision to the creditor who seized it when the existence of the obligation is not seriously questionable (...) ";
- Considering that it emerges from the statements in the order under appeal that Lesueur TP subcontracted to SCREG Ile-de-France Normandy (SCREG IDFN) part of the execution of the lot "Earthworks, roads and development of exterior "of a construction contract passed by the commune of Vivier-au-Court; that the 23 January 2013, the main contractor has validated a situation n ° 6 presented by the company Lesueur TP for an amount of 235 399,23 euros TTC and a certificate of direct payment in favor of the company SCREG IDFN for an amount 126 762.67 euros including tax; that while this sum had been paid to him, the subcontractor, believing that his share was in fact of 230,324.90 euros, seized, on 18 February 2013, the owner of a request for direct payment for the payment of an amount of € 103,562.23 including tax corresponding to the difference between what he felt was due to him and what had already been paid by the municipality ; that this letter of February 18, 2013 was completed by a letter of February 26 following Colas Ile-de-France Normandy (Colas IDFN), substituted on February 22, 2013 to the company SCREG IDFN as a subcontractor; that the company Colas IDFN has applied to the judge of the administrative court of Châlons-en-Champagne for a motion to condemn the municipality of Vivier-au-Court to pay him, as a provision, the sum of 77 721,45 euros corresponding, according to her, to the overpayment by the society Lesueur TP of an amount of 103 562,23 euros TTC, decreased by an amount of 25 840,78 euros corresponding to the payment of a part of the services object of this claim in April 2014; that by an order of December 6, 2016, the judge of the interim administrative court of Châlons-en-Champagne rejected this request; that, by an order of 12 April 2017, the judge of summary of the Administrative Court of Appeal of Nancy rejected the appeal filed against this order by the company Colas IDFN as well as the conclusions to end of incidental appeal of the commune from Vivier-au-Court; that the company Colas IDFN appeals in cassation against article 1 of this order by which the judge of summary of the administrative court of appeal of Nancy rejected his appeal;
- Considering that under the terms of Article 8 of the law of 31 December 1975 on subcontracting: "The main contractor has a period of fifteen days, counted from receipt of the supporting documents used as a basis to the direct payment, to accept them of his acceptance or to signify to the subcontractor his reasoned refusal of acceptance. / After this period, the prime contractor is deemed to have accepted those supporting documents or parts of the vouchers that he has not expressly accepted or refused. The notifications provided for in paragraph 1 shall be sent by registered letter with acknowledgment of receipt "; that under the terms of Article 116 of the Code des Marches Publics in force on the date of the dispute, taken again with the exception of its penultimate paragraph in I of Article 136 of the decree of 25 March 2016 relating to public contracts : "The subcontractor sends his payment request in the name of the contracting authority to the holder of the contract, by registered mail with acknowledgment of receipt, or deposits it with the holder against a receipt. / The holder has a period of fifteen days from the signature of the acknowledgment of receipt or the receipt to agree or notify a refusal, on the one hand, to the subcontractor and, on the other hand, the contracting authority or the person designated by him in the contract. / The subcontractor also sends his request for payment to the contracting authority or to the person designated in the contract by the contracting authority, together with the invoices and the acknowledgment of receipt or the receipt stating that the holder has received the request or of the postal notice attesting that the envelope was refused or not claimed. The contracting authority or the person designated by it in the contract shall without delay send the contractor a copy of the invoices produced by the subcontractor. The contracting authority shall pay the subcontractor within the time limit laid down in Article 98. This period runs from the date on which the contracting authority receives the agreement, in whole or in part, from the holder on the requested payment, or the expiry of the period mentioned in the second paragraph if, during this period, the holder has not notified any agreement or refusal, or the reception by the contracting authority of the postal notice mentioned in the third paragraph. / The contracting authority informs the holder of the payments it makes to the subcontractor ";
- Whereas it follows from the combination of these provisions that, in order to obtain the direct payment by the contracting authority of all or part of the services he has performed under his subcontracting contract, the subcontractor regularly approved must send in due time his request for direct payment to the main contractor, holder of the contract, and to the contracting authority; whereas a request made before the drawing up of the general and definitive account of the contract must be regarded as being made in good time;
- Considering that to reject the request of the company Colas IDFN on the grounds that the obligation which it invokes against the municipality can not be regarded as having a nature not seriously questionable, the judge of the courts of the Administrative Court of Nancy's appeal firstly noted that the client was only seized with payment requests from SCREG IDFN and then from Colas IDFN after the services in question had been settled by the municipality, On the other hand, it was held that the option which the municipality would have had to retain on the following installments the disputed amount wrongly paid to the company Lesueur TP did not present a character of sufficient certainty; It appears from the documents in the file submitted to the judge hearing the application for interim relief that the subcontractor's requests for direct payment were, however, received by the contracting authority in due time since the general and final accounts were not drawn up. that the fact that the contracting authority had already settled the services performed by the subcontractor by attributing them in part to the contractor did not relieve him of his obligation to pay Colas IDFN directly; that it is therefore justified to argue that the judge of the interim Administrative Court of Appeal Nancy tainted its order of an error of legal qualification in finding that the existence of this obligation was not seriously questionable; that as a result and without it being necessary to examine the other grounds of appeal, Article 1 of the order under appeal must be annulled;
- Considering that in the circumstances of this case, pursuant to Article L. 821-2 of the Code of Administrative Justice, the case must be settled under the interlocutory proceedings instituted, in so far as the cancellation pronounced;
On the provision request:
With regard to the end of non-reception opposed by the municipality:
Whereas the drawing up of the general and definitive account of the contract can not preclude the ordering of the contracting authority to pay to a subcontractor a provision in respect of a non-seriously contestable obligation incumbent upon him in the contract; execution of the contract, provided that the request for direct payment was received in good time; that the municipality of Vivier-au-Court is therefore unfounded to argue that because of the finality of the general statement of the market it has concluded with the company Lesueur TP, the request of the company Colas IDFN would be inadmissible;
With regard to the existence of the claim:
- Considering, on the one hand, that if the commune raises for the first time in cassation a ground of appeal drawn from which the judge regulating the referred one after cassation would disregard the provisions of the article R. 541-1 of the code of justice paragraph 1 in ruling on an application which raises a question of law which raises a serious difficulty, it does not include the details necessary to assess its merits;
- Considering, on the other hand, that it follows from the investigation that an analysis drawn up on 1 August 2013 by the consulting firm in charge of scheduling, piloting and coordinating the operation confirms that the part of the services subject of situation n ° 6 to the company SCREG IDFN was 230 324,90 euros and not 126 762,67 euros TTC; whereas, as has been stated in paragraph 5, the request for direct payment from the subcontractor of EUR 103 562,23 corresponding to the difference between the amounts of EUR 230 324,90 and 126 762 , 67 euros, reached the client in good time; It follows from all the foregoing that the obligation to pay referred to Colas IDFN society in respect of the town of Vivier-au-Court is not seriously questionable;
Regarding the amount of the provision:
- Considering that it also follows from the investigation that after having paid this sum of EUR 103,562.23 in February 2013, the municipality paid, in April 2014, under Situation No. 6, 25 EUR 840.78 to Colas IDFN; It follows that in the state of the instruction, it is appropriate to set at 77 721,45 euros the amount of provision to the payment of which the municipality must be sentenced;
The conclusions presented under Article L. 761-1 of the Administrative Justice Code:
- Considering that it is appropriate, in the circumstances of the case, to charge the commune of Vivier-au-Court the sum of 4,000 euros to be paid to Colas Ile-de-France Normandie, at the Article L. 761-1 of the Code of Administrative Justice; that these same provisions prevent an amount being put, as such, the responsibility of Colas Ile-de-France Normandie, which is not, in the present case, the losing party;
Article 1 Article 1 of the order of the judge of summary of the Administrative Court of Appeal of Nancy of April 12, 2017 is canceled.
Article 2: The provision charged to the municipality of Vivier-au-Court in favor of Colas Ile-de-France Normandy is set at the sum of 77 721.45 euros.
Article 3: The order of the judge of the interim court of the administrative court of Châlons-en-Champagne of December 6, 2016 is reformed in that it has contrary to this decision.
Article 4: The commune of Vivier-au-Court will pay Colas Ile-de-France Normandie a sum of 4,000 euros under article L. 761-1 code administrative justice.
Article 5: This decision will be notified to Colas Ile-de-France Normandie and to the commune of Vivier-au-Court.