Litigation – Arbitration – Mediation
If the proposal has been made "subject to reservations", this period runs from the time these reservations are lifted, even for work that has not been the subject of reservations.
This is a useful clarification from the Conseil d'Etat on the particularly tricky subject of the starting point for drawing up the general and final statement of account.
Article 13.3.2 of the 2009 version of the CCAG Travaux (reproduced in article 12.3.2 of the new 2021 version of the CCAG) requires the contractor to notify its draft final account within 30 days of notification of the works acceptance decision.
Failing this, the contracting authority, via its project manager, is authorised, unless the contractor makes itself known within 15 days of being given formal notice, to draw up this draft final account on its own authority, without the contractor being able to contest its content.
The clarification provided here by the Conseil d'Etat relates to the situation where no express acceptance decision has been made.
This situation is in fact covered in a generic way by article 41.3 of the CCAG Travaux (2009 and 2021), which states that in the absence of an express acceptance decision within 30 days of the declaration of completion of the works, the project manager's proposals apply.
The Conseil d'Etat extends this rule to the issue of the contractor drawing up the draft final statement of account, and considers that in the absence of an express acceptance decision, the deadline for drawing up the draft statement of account must be determined on the basis of the project manager's proposal.
If this proposal is for acceptance subject to reservations (and not with reservations), this period runs from the date of the report on the lifting of these reservations for all the works, and not just for those actually affected by these reservations (logical application of the principle of indivisibility of the general account).
If the draft final account is notified before this time, it is premature and has no legal effect.
In particular, the mechanism for the creation of the tacit general and final account organised by article 13.3.4 of the CCAG Travaux cannot be triggered by the transmission of a draft final account before the report on the lifting of reservations.
The solution would have been different if the project manager had proposed acceptance with reservations. As we know, acceptance with reservations starts the period for sending the draft final account (CE, 8 December 2020, no. 437983). By extension, in the absence of an express decision, this period would run from the date of the project manager's proposal.
This decision, which confirms the position of the courts (e.g. CAA Bordeaux, 1 June 2022, 22BX00102), confirms, if confirmation were needed, that the tacit general and final account mechanism is, to say the least, fluctuating and tricky, both for the contracting authority and for the contractor.
We will therefore continue to advise our clients either to derogate from it altogether, or to regulate it much more precisely than is provided for in the GCCs.
CE 1 June 2023, no. 469268