Lack of notification of the claim to the project manager : a scope still uncertain on the admissibility of the claim
The question of the scope of the formality imposed by section 50.1.1 of the Book of General Administrative Clauses applicable to Public Works Contracts (hereafter “the GCCC Works”) is increasingly being put to the administrative judge.
However, the question has not yet been decided by the High Court, even though a recent ruling may suggest that the penalty for failure to notify the project management of the statement of claim is the inadmissibility of the claim.
Reminder of the GCC Letter Works
In accordance with GCC Article 50.1.1 :
« 50.1. Claim Submission:
50.1.1. If a disagreement arises between the holder and the project management, in the form of reservations made to a service order or in any other form, or between the holder and the representative of the contracting authority, the holder shall prepare a statement of claim. In its statement of claim, the holder shall set out the reasons for its disagreement, indicate, where applicable, the amounts of its claims and provide the necessary justifications corresponding to these amounts. The holder shall forward his statement of claim to the representative of the contracting authority and send a copy to the prime contractor.
If the claim relates to the general statement of account of the contract, this statement shall be transmitted within 45 days of the notification of the general statement of account. The memorandum shall set out, under penalty of foreclosure, the claims made prior to the notification of the general statement of account and which have not been settled definitively.»
The notification to the project management of the copy of the company’s statement of claim is valid :
- For disagreements arising in the course of the execution of the contract;
- For disagreements arising at the time of drawing up the general statement of account.
No doubt when the applicable GCC Work is that of 1976
The significance of this formality on the admissibility of the company’s claim has recently been the subject of interesting judgments and rulings in that they seem to highlight the willingness of administrative judges to take a strict reading of the GCC Works.
The Council of State, in an isolated case, has already been able to rule that a claim that had not been transmitted to the project manager[1] was inadmissible.
However, this ruling was endorsed by the 1976 GCCC Works and its scope is difficult to transpose to contracts governed by the 2009 GCCC Works, the stipulations of the two documents not being identical.
In a more recent case, the Bordeaux Administrative Court ruled that any disagreement between the person responsible for the contract and the contractor governed by article 50 of the GCC must be settled by a written statement of claim, which must be sent to the project manager and the project owner, failing which the claim for compensation[2] will be inadmissible:
« Secondly, however, if Razel-Bec claims that the group’s representative sent a statement of claim on its behalf to the project manager on December 17, 2009, and that the latter received notification of this on December 21, 2009, it produces in support of this claim only documents proving that it was sent only to the project owner, the CACEM. It does not establish, either before the court or in the first instance, that it had sent to the project manager, within the deadline set for it, the memorandum required by article 13.44 of the general administrative clauses applicable to public works contracts ».
Under these conditions, the administrative court rightly considered that, in the absence of having sent the memorandum required by articles 13-44 and 50-22 of the book of general administrative clauses applicable to public works contracts to the project manager, Razel-Bec’s claim for compensation was inadmissible. »
It should be noted, however, that here again the judges were dealing with a contract governed by the provisions of the 1976 CCLS Works.
So what about contracts subject to compliance with the 2009 CCLS Works?
To our knowledge, only the Administrative Court of Lille[3] has, at the time of writing of this article, been seized of the question.
In this case, a public purchaser concluded a works contract with a group of companies. After contesting the general statement of account of the contract, the grouping holding the contract brought the matter before the administrative court in order to order the buyer to pay it a total sum of 1,670,547.6 euros as the balance of the contract.
The court refused to grant the application and dismissed the group’s motion on the terms of a consideration that is interestingly worded on several levels :
« The absence of transmission by the holder of a copy of his statement of claim to the project manager within the deadline set to him prejudices the exercise by the latter of his mission of advising the project owner. Consequently, it prevents the holder from being considered as having usefully contested the general statement of account notified to him, this document becoming, under these conditions, the general and final statement of account of the contract. »
It should first be noted that the judge here drew all the consequences of the failure to comply with the formality provided for in the CCLS. It is clearly stated that :
- In the absence of notification of the statement of claim to the project manager, the claimant cannot be considered as having contested the notified general statement of account;
- From then on, this document is considered as not having been subject to reservations and becomes the general and final statement of account of the contract.
The court, applying the principle of intangibility of the final general statement of account, therefore declares inadmissible the motion to contest this statement of account.
It is also very interesting to note that the court based its decision on the 2009 letter of the GCC Works but also on the fundamental role played by the project manager in the event of a claim by the contractor.
The judge reiterated that the project manager must advise and assist the project owner on the action to be taken on the claim. If the brief is not notified to him, he cannot validly carry out these missions.
At the time of writing, the Council of State has neither reversed nor confirmed this solution.
For the time being, the question remains unresolved
As we specify it, the High Jurisdiction has not yet had to know the judgment of the Administrative Court of Lille.
Two cases dealt with by our firm could have shed some light on the issue, but the judges did not pay attention to the reasons for dismissal based on the lack of knowledge of the formality of 50.1.1 of the CCLS Works.
Thus, in an early case, the judges dismissed the challenge to the general count by settling the case on its merits. It should be noted that the Public Reporter had expressly invited the bench to accept the dismissal raised by our firm. However, the latter was not followed up.
A second case involved a refusal to terminate for late service order provided for in Article 46.2.1 of the 2009 GCCW. A claim had been forwarded to the project manager, but the claimant did not provide proof that a copy of the document had been forwarded to the project manager. The public reporter, agreeing with our analysis on this point, proposed to the court to consider that a dispute had arisen between the parties, leading to the application of Article 50.1.1 of the GCC Works to this case. The absence of proof of notification of the claim to the project manager should therefore lead the judges to declare the claim of the owner inadmissible. However, the court chose not to follow this reasoning and held that the termination for late service order could not give rise to the application of the claim procedure of Article 50.1.1 of the GCC Works.
Therefore, the matter remains outstanding for the time being.
It can be assumed that in view of the growing litigation relating to contracts subject to the 2009 GCCC, the Council of State will sooner or later have to deal with the matter.
In any event, in order to avoid a debate on the admissibility of the claim, we can only recommend that contracting authorities and contract holders alike pay particular attention to the management of claims, whether they arise during the course of the contract or at the stage when the general statement of account is drawn up.
Article written by Clarisse BAINVEL, Partner
[1]Council of State, April 8, 2009, n°297756
[2] CAA Bordeaux, January 3, 2017, n°14BX00708
[3] TA Lille, July 23, 2019, n°1600265