Civil Code > TITLE XIX ADMINISTRATIVE CONTRACTS 3

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Chapter 3. Contract of public works

Art. 3244 – Definition.

(1) A contract of public works is a contract whereby a person, the contractor, binds himself in favour of an administrative authority to construct, maintain or repair a public work in consideration of a price.

(2) Where the contract only relates to the supply of materials for the purpose of carrying out a public work and the supplier himself takes no part in the carrying out of the work, the contract shall not be one of public works but one of supplies.

Art. 3245 – Industrial contracts.

(1) The provisions of this Chapter relating to contracts of public works shall apply to industrial contracts concluded by the administrative authorities.

(2) An industrial contract is a contract concerning supplies which, both by the complexity of their manufacture and by their specialized character, are indicated for the needs of the administrative authorities.

Section 1. Formation of contract

Art. 3246 – Competition. – 1. Principle.

The administrative authorities may put up for competition the working out of a project of a work among skilled persons or among specialized undertakings.

Art. 3247 – 2. Fixing of conditions.

(1) The administrative authorities shall fix freely the time within which the competitors shall send in their projects, the conditions of form and of substance to which such projects shall conform and all other conditions of the competition.

(2) The administrative authorities shall also determine, as they think fit, by whom and in which manner the competitions shall be judged and ranked.

(3) They shall choose freely the persons whom they admit to take part in the competition, without having to give a reason for their choice.

Art. 3248 – 3. Administrative authorities bound thereby.

The administrative authorities shall be strictly bound to respect the rules of the competition made by them.

Art. 3249 – 4. Conclusion of contract.

After the competition, they shall be free to allot the contract to whom they thing fit, unless they have expressly undertaken to choose the competitor who is ranked first.

Section 2. Normal performance of contract

Paragraph 1. – Direction of work

Art. 3250 – Right of administrative authorities.

(1) The administrative authorities may supervise the performance of the works.

(2) They may also prescribe to the contractor the manner of performance of this work.

(3) The provision of the following Articles shall regulate the right of supervision and of direction of the administrative authorities, without prejudice to any stipulation to the contrary in the contract.

Art. 3251 – Right of supervision.

(1) The representatives of the administrative authorities may at any time enter the yards and require of the contractor the information necessary for their control.

(2) The contractor shall observe the regulations made by the administrative authorities in order to ensure good order and security in the yards.

(3) Any stipulation to the contrary shall be of no effect.

Art. 3252 – Direction of works.

(1) The administrative authorities shall regulate, by means of requisition orders, the development of the works and prescribe to the contractor the manner of performance of such works.

(2) The contractor shall comply with the plans and models given to him by the administrative authorities in the execution of the specification.

Art. 3253 – Rhythm of works.

(1) Unless otherwise provided in the contract, the administrative authorities may fix atone and the same time the general period and the periods for the performance of each part of the work or only the special periods for each part.

(2) Where the contract fixes only the general period within which the whole of the works are to be performed, the administrative authorities shall specify the time at which the work shall begin.

(3) They shall regulate the order of sequence and the rhythm of the works within the general period laid down in the contract.

Art. 3254 – Starting point of periods.

(1) Periods shall run from the date of notification of the contract.

(2) Where the beginning of the performance of the obligations of the contractor is made dependent on a decision of the administrative authorities or on a material action on the part of the latter, the periods shall run from the completion of such acts.

Art. 3255 – Personnel of the undertaking and materials.

(1) The administrative authorities shall decide on the extent of the means to be employed both as regards personnel and material.

(2) They shall supervise the personnel and may require that employees be changed or dismissed.

(3) They shall control the quality of the materials used and may refuse them.

Art. 3256 – Defective work.

In the course of the performance of the contract, the administrative authorities may require the demolition and the reconstruction of any defective work at the expense of the contractor.

Art. 3257 – Written or verbal orders.

(1) The contractor shall carry out such requisition order only as are given to him in writing.

(2) Orders given verbally shall not bind him unless they are given within the limits of the execution of the specification without causing any change thereto or the contract has expressly imposed upon the contractor the obligation to conform thereto.

Art. 3258 – Appeal of contractor.

The contractor may not appeal against a requisition order unless he has refused to sign it or he has signed it with a reservation.

Art. 3259 – Right of contractor to compensation.

(1) The normal exercise of the powers of control of the administrative authorities, within the limits prescribed in the contract, shall not give right to any compensation.

(2) The contractor shall be entitled to compensation where the administrative authorities have though their fault caused him damage either by making abusive requirements or by postponing the performance of the contract, in violation of the contact.

(3) The administrative authorities shall pay compensation to the contractor for the expenses and for the damage caused to him, notwithstanding that no fault or abuse has been committed, where the normal conditions of the performance of the contract have been aggravated.

Art. 3260 – Liability of contractor.

(1) The control of the administrative authorities shall not relieve the contractor of his liability.

(2) The liability of the contactor shall cease where he has merely carried out requisition orders with which he is bound to comply.

(3) Such liability shall remain within the measure of initiative which he could retain under the supervision of the administrative authorities.

Paragraph 2. Payment of price

Art. 3261 – Remuneration of contractor. – 1. Contractor with a fixed price.

The remuneration due to the contractor may be fixed by way of a lump sum.

Art. 3262 – 2. Contract with series of prices.

The contract may be restricted to fixing the different prices respectively applicable to each kind of work included in the contract, without determining precisely at the time of its conclusion the extent of the work to be performed.

Art. 3263 – 3. Contract according to specification or by units of measures.

The contract may determine at one and the same time the quantities of the works to be performed and the series of prices applicable to each kind of works.

Art. 3246 – 4. Contract by controlled expenses.

The contract may provide that the contractor shall merely be reimbursed of his main expenses duly controlled, and that he shall partake of the total increases s as to cover his other expenses and ensure for himself a suitable margin of profit.

Art. 3265 – 5. Contract by order.

(1) Where circumstances so require, the contract may be restricted to establishing a provisional price corresponding to essential services or to technical phases in the performance of the contract.

(2) In such case, an additional clause shall be made in order to fix the final price or the exact conditions for determining such price, before the expiration of the first third part of the time for the performance of the contract.

(3) In default of agreement between the contracting parties, the price shall be fixed by the administrative authorities within three months, without prejudice to the right of the contractor to appeal to the court.

Art. 3266 – 6. Supplementary services.

(1) The contractor may be compelled by virtue of requisition orders of the administrative authorities to perform services not originally mentioned in the contract.

(2) The additional clause fixing the price of supplementary service shall be made within six months.

(3) In default of agreement between the contracting parties, the price shall be fixed by the administrative authorities within three months without prejudice to the right of the contractor to appeal to the court.

Art. 3267 – Price how paid.

The administrative authorities may not introduce in any specification or in any contract a clause of deferred payment other than a payment by bills of exchange or by annual instalments.

Art. 3268 – Time of payment.

(1) Where the ascertainment of the services performed constitutes a preliminary condition for the determination of the price, such ascertainment shall be made within the periods specified in the contract.

(2) The default of an ascertainment fifteen days after the expiration of the period shall automatically create a right to interest for delay, where it is attributable to the administrative authorities.

Art. 3269 – Right to receive installments.

The contractor may demand the payment of installment where:

(a) he has deposited in the yard, factory or workshop materials or supplies belonging to him in full ownership and intended to be used in the performance of the contract; or

(b) he has paid wages in respect of labour employed by him exclusively in the performance of the contract.

Art. 3270 – Payment of instlments.

(1) At the end of each month there shall be drawn up, at the request of the contractor and in order to serve as a basis for the payment of instalments, a provisional calculation of the works performed and expenses made by the contractor.

(2) Unless otherwise provided in the contract, instalments shall be paid every three months.

(3) The amount of the installments shall be equal to the value of the materials or supplies or to that of the wages mentioned in Art. 3229.

Art. 3271 – Sums advanced by administrative authorities.

(1) The contractor may receive sums in advance from the administrative authorities in respect of the contract only after having named a guarantor or given other securities guaranteeing the reimbursement of at least half the sums advanced.

(2) The sums advanced shall be reimbursed at the rate fixed by the contract, by deducting them from the sums subsequently due to the contractor by way of installments or in settlement.

Art. 3272 – Final calculations.

(1) Final calculations constitute a means of settlement of accounts which determine the amount due by the administrative authorities and thenceforth bind the parties in an irrevocable manner.

(2) In order to produce their juridical effects, they need be accepted by the contractor.

(3) Final calculations may, in accordance with the provisions of the contract, be made before the completion of the works, when determinate periods have passed or a specified part of the works has been performed.

Art. 3273 – Revision of approved accounts.

(1) The accounts approved by the parties may not be revised, except in case of material errors, omission or items entered falsely or twice.

(2) The omissions or material errors mentioned in sub-art. (1) are only those the correction of which does not require any measurement or discussion of the price or of the clauses of the contract.

Paragraph 3. Acceptance of works

Art. 3274 – Provisional acceptance. – 1. Nature.

(1) A provisional acceptance is a joint ascertainment of the works made immediately after the completion of the works.

(2) A provisional acceptance shall result from the effective taking of possession, where this has been made under reservation.

Art. 3275 – 2. Effect.

(1) A provisional acceptance shall not exonerate the contractor from any defect which may appear after it is made.

(2) It shall amount to a tacit acceptance of the modifications which the contractor may have made in the project.

(3) It shall mark the beginning of the period of warranty at the expiration of which the final acceptance shall be made.

Art. 3276 – 3. Risks of loss or deterioration.

(1) Destructions or damage resulting from force majeure shall be borne by the contactor so long as the works have not been provisionally accepted by the administrative authorities.

(2) The general clauses and conditions may derogate such rule.

(3) In such case, they shall fix the amount of the right to compensation of the contractor as well as the conditions regarding the form and time of his claim.

Art. 3277 – period of warranty. – 1. Nature.

(1) The period of warranty is a period during which the administrative authorities have the possibility of controlling the proper performance of the works before their final acceptance.

(2) Its duration shall be fixed by the contract.

Art. 3278 – 2. Effect.

(1) During the period of warranty, the contractor shall maintain the works.

(2) He shall be liable for defects and shall repair them when he receives from the administrative authorities a requisition order to this effect.

Art. 3279 – Final acceptance. – 1. Nature.

(1) The final acceptance is the act whereby the administrative authorities definitively appropriate the works after having ascertained that the contractor has performed his obligations in their entirety.

(2) It shall be made jointly and a record shall be drawn up.

Art. 3280 – 2. Default of administrative authorities.

(1) In the case of default on the part of the administrative authorities, the contactor may require the court to ascertain that the works are in a condition to be accepted.

(2) In such case, the final acceptance shall be deemed to have taken place on the expiration of the period of warranty or, failing such period, on the day fixed by the court.

Art. 3281 – 3. Effect.

(1) The final acceptance shall release the contractor from his obligation to maintain the works.

(2) The contractor shall be entitled to the payment of the balance of the price and to the reimbursement of the amount retained as guarantee and of the security.

Art. 3282 – Warranty in respect of defects of construction.

(1) Unless otherwise provided, the contractor shall be liable to the administrative authorities fro the defects of construction of the works during ten years from the day on which they have entered into possession of the works.

(2) The warranty shall not be due, however, in respect of the defects which were apparent at the time of the final acceptance of the works.

(3) The warranty shall apply to such defects only as prevent the works from being used for the purpose mentioned in the contract or a s render such use more onerous or less profitable.

Section 3. Rescission of contract

Art. 3283 – Unilateral modification of contract. – 1. Right of administrative authorities.

(1) During the currency of the contract of public works, the administrative authority may, notwithstanding any stipulation to the contrary, impose unilaterally upon the contractor changes in the original conditions of the contract as indicated in the specifications.

(2) Such changes may affect only the provisions which concern the arrangement of the public works.

(3) They may not affect the financial conditions of the contract.

Art. 3284 – 2. New works.

(1) The administrative authorities may, against payment of an additional remuneration, require the contractor to perform works which were not mentioned in the contract.

(2) They may not, however, require him to perform a work which by its object would be totally different to the work mentioned in the contact or which would have not relation to such work.

(3) Nor may they require him to perform a work under conditions entirely different to those which have been mentioned in the contract.

Art. 3285 – Rights of contractor.

(1) Unless otherwise provided in the contract, the contractor may cancel the contract where the increase or reduction of the works as a whole required by the administrative authorities involves a variation of more than one-sixth of the cost mentioned in the contract.

(2) In the case of reduction of the works as a whole, he shall be entitled to a compensation equal to the loss suffered by him and profit of which he is deprived by reason of the variation of the contract.

(3) The court may limit the amount of compensation for deprivation of profit where it appears that the variation is due to extraneous circumstances and not to the default of the authorities having made the contract.

Art. 3286 – Unforeseen difficulties. – 1. Principle.

(1) Where, in the performance of his contract, the contractor encounters material difficulties of an absolutely abnormal nature, unforeseeable at the time of the conclusion of the contract, he may require that the contract be revised.

(2) The administrative authorities with whom he has contacted shall in such case assume at their charge a part of the exceptional expenses due to such unforeseen difficulties, unless they prefer to cancel the contract.

(3) The provisions of this Title relating to cases of unforeseen events shall apply in such case (Art. 3183-3189).

Art. 3287 – 2. Duty to consult administrative authorities.

(1) Where the difficulty compels the contractor to perform a supplementary work not mentioned in the contract, the contractor may initiate such work only after having obtained a requisition order from the administrative authorities enjoining him to perform such work.

(2) However, where the work is absolutely necessary for the performance of the contract and it is of an urgent nature, the contractor may and shall initiate it even in the absence of a requisition order.

(3) In such case, he shall be entitled to compensation in accordance with the provision of this Code relating to the voluntary management of another person’s affairs (Art. 2257-2265).

Section 4. Non-performance of contract

Art. 3288 – Placing under State control. – 1. Conditions.

(1) A declaration to the effect that a contract of public works shall come under State control may be made where the contractor fails to perform his obligations.

(2) Notwithstanding any provision to the contrary, the administrative authorities may declare the placing under State control not less than ten days after having summoned the contractor to perform his obligations.

(3) The placing under State control may affect only a part of the works, where the undertaking permits a partial control.

Art. 3289 – 2. Effect.

(1) In the case of the placing under State control, the contractor shall be temporarily deprived of his contract.

(2) The control shall be carried out at the expense and risk of the contractor.

Art. 3290 – 3. Cessation.

The contractor may be relieved of State control where he shows that he has the necessary means to resume the works and to carry them out to completion.

Art. 3291 – Re-allocation.

(1) Where the contract has expressly foreseen the possibility, the contract of public works which has been cancelled may be re-allocated by auction by the administrative authorities or entrusted by them by agreement to a new contractor.

(2) In such case, the contractor who has been dispossessed shall bear the consequences which the transaction and the new contract cause to the administrative authorities.

Art. 3292 – Power of the court.

(1) The court may not cancel the sanctions of coercion or of dissolution applied by the administrative authorities against the other party to a contract of public works.

(2) In such contracts, it may only investigate whether the sanctions have been applied under conditions of such nature as to create a right of compensation in favour of the other party.

Section 5. Assignment of or giving of the contract in security

Art. 3293 – Giving of contract in security.

Public contracts may be given in security by the contractor or by the sub-contractors approved by the administrative authorities.

Art. 3294 – Assignment of contract.

In the case of a regular assignment of the contract, the assignee shall be the only person entitled to receive the price.

Art. 3295 – Rights of sub-contractor.

(1) The sub-contractor who has been expressly approved by the administrative authorities may receive directly from the administrative authorities the payment for the works performed by him where the holder of the contract has agreed thereto and the contract has specifically indicated the nature and value of the works to be performed by the sub-contractor.

(2) The records ascertaining the works performed by the sub-contractor shall be accepted by the holder of the contract.

(3) The direct payment to the sub-contractor may not be made where the holder of the contract has given the contract in security.

Art. 3296 – Prohibition of sums paid in advance.

The sub-contractor may in no case receive advances.

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