Subcontracting and direct payment: the State Council reinforces the payment guarantees of the subcontractor!
CE 21 February 2011, Urban Community of Cherbourg, req. No. 318364
The difficulties in the financial relations between the market-holders and their subcontractors have existed for a long time and are natural between partners of economic weight, often very unequal. In order to fight against the real or induced failures of the main enterprises, the law n ° 75-1334 of 31 December 1975 relating to subcontracting set up an original system of protection of the financial guarantees of the first-tier subcontractor, notably to through the direct payment procedure against the owner of the work materializing his concern to involve him directly in the protective device. In a decision of 21 February 2011, Cherbourg Urban Community, the State Council intends now to make a strict application of this protection scheme in favor of subcontractors.
The conditions for implementing direct payment
Article 6 of the 1975 Act lays down a general principle: that the subcontractor who has been accepted and whose terms of payment have been approved by the developer is paid directly by him for the part of the contract that he performs. Article 8 of the Law of 75 nevertheless sets an exception to this principle: the possibility for the main company to oppose the request for direct payment of the subcontractor within a period of fifteen days counted from receipt supporting documents used as a basis for payment. This procedure is succinctly described by law so that, despite the very protective regime of the principles affirmed by the law, subcontractors have the greatest difficulty in being paid in the event of the refusal of the owner even when he intervenes. beyond the legal deadline. The Public Procurement Code and the recent case law of the Conseil d'Etat reinforced the 1975 law's simplification and efficiency.
Progress of the Public Procurement Code
The Code des Marches Publics has considerably reduced the deadlines for the direct payment procedure. Previously, the silence of the main contractor obliged the subcontractor to return its request to the owner, who gave the owner notice to prove it, within a new period of 15 days, which he had opposed. a reasoned refusal to his subcontractor. Henceforth, the procedure provided for in Article 116 of the Code makes it possible to halve the deadlines with payment within 15 days after sending the request to the holder of the contract, even if the latter remains silent during this period, refuses fold or do not claim it. In the new scheme set up by the Code, the subcontractor first sends his request for payment, made out in the name of the contracting authority, to the holder of the main contract. This application must be accompanied by all the required supporting documents. Then, the incumbent reviews the application to determine whether it corresponds to services actually performed. It has fifteen days from the signature of the acknowledgment of receipt to give its approval or notify a refusal, on the one hand, to the subcontractor, on the other hand, to the contracting authority. In case of refusal, the main contractor must motivate and notify the subcontractor. At the same time, the subcontractor sends his request for payment to the contracting authority accompanied by copies of the invoices and the acknowledgment of receipt or the receipt certifying that the holder has received the request. The contracting authority shall without delay send the contractor a copy of the invoices produced by the subcontractor.
Strengthening payment guarantees by the State Council
In a judgment of 21 February 2011, Communauté urbaine de Cherbourg, the Conseil d'Etat decided to sanction very strongly the non-respect of the fifteen-day deadline by considering that the principal contractor who did not formally refuse the supporting documents of the request for payment within this period shall be deemed to have accepted them "definitively", whether it has remained silent after their receipt, or whether it has decided to contest them, but after the expiry of the said period. Therefore, the client must automatically grant the direct payment request from the subcontractor. The terms used by the Conseil d'Etat in this judgment are significant: the claim of the subcontractor can no longer be challenged by the owner or the owner after the statutory period, since it will be considered as "definitive".
The solution reached by the Council of State can only be welcomed as it is part of the logic of the public order scheme for the protection of subcontractors set up by the legislator.Ce must remember:
- The contestation of the main enterprise beyond the 15-day period provided for by the 1975 Act can not constitute the reasoned refusal provided for by law to oppose the payment of sums due to the subcontractor.
- The fact that the main contractor has not contested the direct payment request within the 15-day period makes the subcontractor's claim final.
- The owner is obliged to grant the direct payment request sent by the subcontractor in the absence of a reasoned refusal from the main contractor within the 15 days.