Chapter 1. General provisions
Art. 3131 – Rules applicable to contracts of administrative authorities.
(1) Contracts concluded by the State or other administrative authorities shall be governed by the provisions of this Code which relate to contracts in general or special contracts.
(2) The provisions of this Title shall supplement or replace such provisions where the contract is in the nature of an administrative contract.
Art. 3132 – Administrative contracts.
A contract shall be deemed to be an administrative contract where:
(a) it is expressly qualified as such by the law or by the parties; or
(b) it is connected with an activity of the public service and implies a permanent participation of the party contracting with the administrative authorities in the execution of such service; or
(c) it contains one or more provisions which could only have been inspired by urgent considerations of general interest extraneous to relations between private individuals.
Art. 3133 – Application to certain business organizations.
Business organizations which appeal to public savings or place their shares with the public may be compelled by the competent authorities to comply, in the conclusion of their contracts, with the procedures and formalities prescribed by law for administrative authorities.
Section 1. Formation of contracts
Paragraph 1. Consent
Art. 3134 – Form of acceptance.
(1) Unless otherwise provided by administrative laws or regulations, the conclusion of a contract by the administrative authorities implies an express manifestation of will on their part.
(2) Where authority competent to approve a contract keeps silent, such silence shall not, in the absence of a formal provision, be deemed to amount to approval.
(3) The provisions of sub-art. (1) and (2) shall apply to the prorogation of, or modifications to, a contract.
Art. 3135 – General conditions applicable to administrative contracts. – 1. Drawing up.
Model specifications, general clauses and conditions and common directives may be drawn up by each interested administrative authority and may be declared to be applicable by Legal Notice published in the Negarit Gazeta.
Art. 3136 – 2. Definition.
(1) Model specifications shall constitute standard specifications, formulated in advance and in a general was by the administrative authority, for the concession of public services.
(2) General clauses and conditions shall fix the provisions applicable to all or some o f the contracts concluded by a specified administrative authority.
(3) Common directives shall fix the technical provisions applicable to all contracts relating to a given kind of works or supplies.
Art. 3137 – Effect of specifications, clauses, conditions and directives. – 1. Conclusion of contract.
The provisions of general clauses and conditions concerning the manner in which a contract is to be concluded by the administrative authority may be invoked by the candidates to the contract and in particular by the tenderers in the case of allocation of contracts by tender.
Art. 3138 – 2. Contents of contract.
(1) The provisions of model specifications, general clauses and conditions or common directives, concerning the interpretation, contents and execution of a contract shall not apply to a specified contract unless such contract expressly makes reference thereto.
(2) Specifications specially relating to a concession or to a given contract may derogate such provisions
Art. 3139 – Modification to specifications, etc.
(1) Where the rights and obligations of the parties are determined by reference to specifications, general clauses and conditions or common directives, such specifications, clauses, conditions and directives shall be considered such as they existed at the time when the contract was concluded.
(2) The rights and obligations of the contracting parties shall not be affected by modifications subsequently made to such specifications, clauses, conditions and directives.
Art. 3140 – Opening of credits in favour of administrative authority.
(1) The opening of credit accounts authorized by the budgetary authorities in favour of an administrative body shall not in itself give private individuals the right to use the credits which have been opened.
(2) The Authorisation given to an administrative authority to incur an expense shall not amount to an authorization to contract, where this is necessary for concluding a contract.
Art. 3141 – Contractual freedom of administrative authorities.
(1) The authorization given to an administrative authority to conclude a contract shall not compel such authority to conclude such contract.
(2) It shall only give the right of doing so to such authority.
Art. 3142 – Lack of credit.
A contract concluded by an administrative authority shall be valid notwithstanding that such authority has not received the necessary credits for the performance of the contract.
Art. 3143 – Absence of authorization.
(1) A contract concluded by an administrative authority shall be of no effect where the authority which has concluded it has not received the necessary authorization prescribed by administrative laws or regulations.
(2) Those provisions in the Title of this Code relating to “Contracts in general” which apply to nullity on the ground of the object of the contract being unlawful shall apply to such nullity.
Art. 3144 – Approval of contract.
(1) Where the conclusion of the contract is subjected to the necessity of a further approval, the contract shall not be complete until such approval is given.
(2) The administrative authority which has concluded the contract shall perform all the acts necessary to obtain such approval.
(3) It may do noting which might hinder or imperil such approval.
Art. 3145 – Late approval.
The party contracting with an administrative authority may release himself from the contract by giving notice to such authority, where the contract concluded is not approved within six months or such other period as has been fixed by the parties.
Art. 3146 – Liability in case of non-conclusion of contract.
(1) Where the administrative authorities do not conclude a contract, they shall indemnify the person who has incurred expenses in view of the conclusion of such contract, where such expenses have been incurred through the fault of the administrative authority, by reason of the attitude taken by the latter in the course of the pre-contractual negotiations.
(2) The administrative authorities shall, even in the absence of fault, indemnify the person who, as a consequence of negotiations with such authorities, has made studies, drawn up plans, initiated works or incurred expenses, where such expenses or disbursements have been made with the consent of the administrative authorities and the latter have derived a benefit thereform.
Paragraph 2. – Procedure for the allocation of contracts by tender
Art. 3147 – Use of such procedure.
(1) Administrative contracts may be concluded by the procedure of allocation by tender.
(2) They shall be concluded by such procedure, under pain of nullity, whenever the law imposes such obligation.
Art. 3148 – Notice of allocation by tender. – 1. Principle.
The allocation which is to take place shall be notified to the public in the manner prescribed by administrative regulations or, in default of such the manner prescribed by administrative regulations or, in default of such regulations, in the manner which appears the most appropriate.
Art. 3149 – 2. Contents.
The notice of allocation shall show:
(a) the place where the specifications may be consulted; and
(b) the authorities who are to proceed to the allocation; and
(c) the time prescribed for sending in the tenders; and
(d) the place, day and hour fixed for the allocation; and
(e) the amount of security or the other guarantees required from the tenderers.
Art. 3150 – 3. Time.
The notice of allocation shall be published, except in cases of urgency, not less than one month before the expiration of the time prescribed for sending in the tenders.
Art. 3151 – 4. Effect.
As from the publication of the notice, no modification may be made to the specifications unless a new publication is made.
Art. 3152 – Specifications.
(1) The specifications of the allocation shall contain an indication of the conditions required from tenderers.
(2) The administrative authorities may impose in such specifications all the conditions relating to technical and professional qualifications which they consider desirable.
(3) They shall specify, where appropriate, the qualifications which are required for admission to tender and the eliminating tests to which the projects or samples submitted will be subjected.
Art. 3153 – Documents to be submitted.
The contractors or suppliers who intend to present themselves as tenderers shall deposit in the place indicated and within the time specified by the specifications a declaration of their intention to tender and their tender.
Art. 3154 – Declaration of intention to tender.
(1) The declaration of intention to tender shall indicate the name, first names, qualification and address of the candidate.
(2) References and, if this is required by the specifications, a regular act of surety ship shall be annexed thereto.
Art. 3155 – Tender. – 1. Contents and forms.
(1) The tender shall contain an offer of the price and the undertakings of the candidate.
(2) It shall be deposited in a sealed envelope according to the conditions fixed in the specifications.
Art. 3156 – Duty to maintain it.
(1) The tenderer may not withdraw or modify his tender until the allocation has been declared.
(2) However, he may expressly limit in his tender the period for which he binds himself.
Art. 3157 – Office of allocations.
The constitution of the office of allocation shall be fixed by administrative regulations and such internal regulations as are particular to the various administrative authorities.
Art. 3158 – Publicity of allocations.
The proceedings of allocation shall be held in public.
Art. 3159 – Admission of candidates. – 1. Duties of office.
(1) The office of allocations shall firstly take cognizance of the declarations of intention to tender.
(2) It shall verify whether these have been regularly deposited and whether the tenderers fulfill the conditions required for admission to the allocation.
Art. 3160 – 2. Discretionary power.
(1) The office shall admit to the allocation such tenders only as are made by contracts or suppliers who present all the desirable financial and professional guarantees.
(2) Unless otherwise provided in the specifications, it shall not be bound to hear the candidates whom it turns down.
(3) It shall not be bound to give reasons for its decision.
Art. 3161 – 3. Irrevocable character of decision taken.
From the moment that the envelopes containing the tenders have been unsealed, the decision to admit to the allocation a contractor or supplier may no longer be altered.
Art. 3162 – Reading of tenders.
(1) The envelopes containing the tenders shall be opened in public.
(2) The tenders shall be read out.
Art. 3163 – Minute of allocation.
The results of the allocation shall be reduced to a minute which shall state all the circumstances of the allocation.
Art. 3164 – Designation of provisional tenderer. – 1. Principle.
(1) The office of allocations shall declare the tenderer who has made the tender which is most advantageous for the administrative authorities to be provisionally the successful tenderer.
(2) For this purpose, the office shall take into account the price offered and all the modalities of the tender in conformity with the specifications.
Art. 3165 – 2. Exception.
(1) The office need not designate and provisional successful tenderer where the regulations of the allocation prescribe that the administrative authorities do not intend to negotiate beyond a certain price.
(2) Such price shall not be brought to the knowledge of the tenderers.
Art. 3166 – 3. Where several tenders and equal.
(1) Where several tenderers have made equivalent tenders between which it is not possible for the office of allocations to choose, regulations of allocations may provide that the assignment of the contract shall be decided by ballot between such tenderers.
(2) In default of such provision, a new allocation shall take place.
Art. 3167 – 4. Effects.
(1) The designation of a provisional successful tenderer by the office shall not conclude the contract.
(2) It shall have as its effect the designation of the only tenderer with whom the contact may be concluded.
(3) It shall release the other tenderers from the obligations arising out of their tender.
Art. 3168 – Approval by administrative authorities.
(1) The administrative authorities who have caused the allocation to be made may in their discretion approve or refuse to approve the result thereof.
(2) The contract shall be complete where such approval is given.
Art. 3169 – Additional clauses.
(1) Contracts made by the allocation may be subjected to additional clauses agreed on by the parties.
(2) They may also, on their expiry, be maintained in effect or renewed by mutual agreement.
Paragraph 3. – Cause
Art. 3170 – Absence of cause.
A contract shall be null on the ground of lack of cause where, at the time when it is made, the contract makes it impossible to attain the result desired by the administrative authorities and known to the other contracting party.
Art. 3171 – Unlawful cause.
(1) A contract shall be null on the ground of unlawful cause where it is made by the administrative authorities with an unlawful object in view.
(2) The provisions of sub-art. (1) shall apply in particular where the contract is made by the administrative authorities with a view to procuring advantages of a pecuniary nature to the other contracting party and not for a reason of general interest.
Section 2. Effect of Contracts.
Paragraph 1. – Normal performance of contracts
Art. 3172 – Contents of contract.
(1) The contracting parties shall perform their obligations in the manner provided in the contract.
(2) They shall perform them in a correct manner, deemed to be satisfactory according to the rules of art prevailing at the time and in the kind of activity concerned.
(3) They shall perform them diligently.
Art. 3173 – Manner of performing obligations.
(1) Unless otherwise agreed, the party having contacted with the administrative authorities may choose the suppliers fro the purpose of buying materials and things necessary for the performance of his obligations.
(2) Unless otherwise agreed, he may choose the workmen or employees to perform such obligations under his responsibility.
Art. 3174 – Time. – 1. Principle.
(1) Each contacting party shall perform his obligations within the time fixed by the contract.
(2) Failing a specific provision in the contract, each contracting party shall perform his obligations within a reasonable time.
Art. 3175 – 2. Prerogatives of administrative authorities.
The administrative authorities may not impose unilaterally on the other contracting party a time which has not been agreed upon for the performance of his obligations unless they may under the contract fix such time by means of requisition orders.
Art. 3176 – Payment of price.
The price due by the administrative authorities shall be paid in accordance with the rules of finance laws and of public accountancy.
Art. 3177- Exception non adimpleti contractus.
(1) The non-performance by the administrative authorities of their obligations shall not entitle the other party to fail to perform his obligations unless it makes impossible the performance of such obligations.
(2) In other cases, the other party may not avail himself of the failure by administrative authorities to perform their contractual obligations in order to suspend the performance of the contract.
Art. 3178 – Set-off.
Set-off may not be invoked by a person contracting with the administrative authorities except in the case of debts other than fiscal debts.
Paragraph 2. – Revision of contracts
A – Prerogatives of administrative authorities
Art. 3179 – Principle.
The administrative authorities may, notwithstanding that the contract makes no provision to this effect, unilaterally impose on the person contracting with them certain modifications of the contract, where a change of circumstances justifies such modifications in the general interest.
Art. 3180 – Termination of contract.
The administrative authorities may terminate the contract, notwithstanding that the other party has committed no fault, where the contract has become useless to the public service or unsuitable for its requirements.
Art. 3181 – Compensation.
(1) The party who has contracted with the administrative authorities shall be entitled to compensation equal to the loss sustained by him by reason of the modification or termination of the contract.
(2) In fixing such compensation, regard shall be had to all the benefits which the party could legitimately expect to derive from the contract.
(3) The court may, however, limit the amount of compensation in so far as it refers to loss of profit, where it appears that the modification or termination of the contract is due to extraneous causes and not to a fault of the administrative authorities which have concluded the contract.
Art. 3182 – Termination at the request of other party.
(1) The party who has contracted with the administrative authorities may require the termination of the contract where an intervention by the administrative authorities has as its effect to upset the general economy of the contract.
(2) The court shall determine whether, having regard to the nature of the contract, the importance of the modifications made thereto by the administrative authorities exceeds or not what could be expected on the making of the contract.
(3) Unless otherwise expressly agreed, the party may not of his own motion declare the termination of the contract.
B – Unforeseen circumstances
Art. 3183 – Principle.
(1) Where circumstances which could not be foreseen on the making of the contract upset the balance of the contract, the party contracting with the administrative authorities shall perform his obligations where such performance remains materially possible.
(2) Such person may, however, require that the administrative authorities with which he has contracted assist him in overcoming the supervening difficulties by sharing in the loss arising from such circumstances.
Art. 3184 – Unsetting of contract.
The balance of the contract shall be deemed to be upset where new circumstances impose on the party contracting with the administrative authorities additional obligations which certainly surpass the extreme limits which could be expected by the parties on the making of the contract.
Art. 3185 – Unforeseeable events.
(1) An event shall be deemed to be unforeseeable where it could not reasonably be envisaged by the parties on the making of the contract.
(2) An event shall not be deemed to be unforeseeable where it is due to the act of the person who avails himself thereof.
(3) The fact that an event was not foreseen may be invoked by reason of unforeseeable consequences or an unforeseeable extension of events which had already happened on the making of the contract.
Art. 3186 – Provisions for the variation or revision of prices.
The existence in the contract of a provision relating to the variation or revision of prices shall not prevent compensation being due where:
(a) such provision has not been enforced; or
(b) it appears that the enforcement of such provision is not sufficient top remedy the effects of the economic upsetting of the contract, as in the case where there are fluctuations affecting element, other than those which have been chosen as an index in the variation clause.
Art. 3187 – Loss necessary.
No compensation may be claimed where circumstances have only reduced or taken away the benefits, without bringing about a loss for the party.
Art. 3188 – Amount of compensation.
(1) The compensation granted shall leave at the charge of the party a part of the loss arising from the circumstances.
(2) To this effect, regard shall be had to the efforts made by the party to overcome his difficulties, the general position of the enterprise and all other equitable elements.
Art. 3189 – Cessation of events being considered as unforeseen.
(1) The state of being unforeseen shall cease where the balance of the contract is re-established.
(2) Where the unbalancing of the contract appears to be definitive, each contracting party may require the court to ascertain the situation thus created.
(3) Failing amicable agreement on the revision of the contract, the court shall declare the cancellation of the contract.
C – Acts of Government
Art. 3190 – General measures. – 1. Affecting substance of contract.
(1) Laws, regulations, orders and other measures of general application, made by the public authorities, which directly modify the provisions of the contract or prevent the enforcement of some provisions of the contract or prematurely put an end to the performance of the contract shall enable the party having contracted with the administrative authorities to claim compensation.
(2) Such compensation may not be refused unless the measure of general application has specified that no compensation shall be paid.
Art. 3191 – 2. Making the performance of the contract more onerous.
(1) Measures of general application taken by the public authorities shall not create any right to compensation where, without affecting the substance of the contract, they only modify the conditions of its performance and render such performance more difficult or more onerous.
(2) Compensation shall however be due where the measure made or the contract itself provides that there shall be a right to compensation.
Art. 3192 – Particular measures. – 1. Taken by contracting authorities.
(1) Particular measures taken by the contracting public authority shall create a right to compensation in favour of the person contracting with such authority, where they affect the substance of the contract or render the performance of the contract more difficult or more onerous.
(2) No compensation shall however be due where the measure taken is merely the ascertainment or the inevitable consequence of economic facts extraneous to the parties.
Art. 3193 – 2. Taken by another authority.
(1) No compensation shall be due where the act which is the cause of the damage emanates from an authority other than that which has concluded the contract.
(2) In such case, noting shall affect the rules relating to unforeseen circumstances or to the responsibility of public authorities.
Paragraph 3. – Non-performance of contracts
Art. 3194 – Compulsory performance of contracts.
(1) The court may not order the administrative authorities to perform their obligation.
(2) It may, however, make an order for the payment of damages unless the administrative authorities prefer to perform their obligations.
(3) Unless otherwise provided by law, it may also cancel such measures as have been taken by the administrative authorities in violation of their contractual undertakings.
Art. 3195 – Requisitioning powers.
(1) The right of requisition may not be used by the administrative authorities for the purpose of ensuring the performance of a contact concluded by them.
(2) The personnel of the public services may, however, be requisitioned to put an end to a strike.
Art. 3196 – Interest for delay.
Interest for delay shall be due to as of right by administrative authorities without their having to be placed in default, where:
(a) within fifteen days after the time laid down in the contract, such authorities have not taken the steps necessary to effect the ascertainments giving a right to a payment to the other party; or
(b) within three months from the ascertainment, such authorities have not taken steps to make the orders for payments due by them.
Art. 3197 – Clause of non-responsibility.
Notwithstanding any stipulation to the contrary, the party contracting with the administrative authorities may claim from the latter interest for delay or compensation in the case of a delay in effecting payment due to him, where:
(a) the delay exceeds six months; or
(b) it is due to the contracting administrative authority’s intention to cause harm or to its gross negligence or grave fault.
Art. 3198 – Lapse of notice placing party in default.
(1) Where, after having placed the other party in default, the administrative authorities have begun negotiations with him with a view to resuming the contract on other bases, the notice placing in default shall lapse and need be renewed.
(2) The fact that the administrative authorities have allowed a long period to elapse after the notice without applying any sanction or have continued to have commercial relations with the other party shall not necessarily imply a tacit waiving of the right to apply sanctions and shall not make a new notice necessary.
Art. 3199 – Delay of suppliers.
(1) The contractant may not raise force majeure on the ground of the delay or default of his own suppliers.
(2) He may not raise that the delay or default of his suppliers constitutes a case of force majeure releasing him from his liability for the non-performance of the contract.
Art. 3200 – Preferential rights.
(1) The administrative authorities may not themselves decide that the other party is liable to a penalty by reason of the non-performance of the contract.
(2) Nor may they fix the amount of compensation due by the other party by reason of the non-performance or delay in the performance of his obligations.
(3) The court may order the administrative authorities to pay compensation for the damage caused to the other party in consequence of sanctions which such authorities have applied contrary to the law.
Paragraph 4. – Assignment of contracts and sub-contracts
Art. 3201 – Definitions.
(1) An assignment is an act whereby the party having contracted with the administrative authorities substitutes a third party for himself for the total performance of the contract.
(2) A sub-contract is a contract whereby the party having contracted with the administrative authorities substitutes a third party for himself for the performance by the latter of a part only or of an item of the contract.
Art. 3202 – Administrative authorization necessary.
(1) A assignments and sub-contracts concluded by the party having contracted with the administrative authorities shall be previously authorized by such authorities.
(2) Unless otherwise provided in the contract, the authority competent to authorize the assignment or sub-contract is the authority competent to conclude the contract.
Art. 3203 – Obligations and rights of administrative authorities.
(1) The administrative authorities shall within a reasonable time answer a request for the making of an assignment or the grant of a sub-contract.
(2) Where the assignment or sub-contract has been concluded by a grantee of a public service, the administrative authorities may refuse their authorisation only on grounds of technical or financial incapacity of the new grantee who is proposed.
(3) In other cases, the administrative authorities shall have a discretionary power to approve or refuse to approve the assignment or sub-contract.
Art. 3204 – Sanctions.
(1) An unauthorised assignment or sub-contract shall not affect the administrative authorities.
(2) It shall constitute a contractual fault justifying the cancellation of the contract through the fault of the party having contracted with the administrative authorities.
Art. 3205 – Effect of authorization. – 1. Assignment.
(1) The approval given by the administrative authorities to the assignment of a contract shall have the effect of substituting the assignee for the original contractant.
(2) Unless otherwise agreed, the original contractant shall cease to the liable for the performance of the contract.
(3) His securities may be retained by the administrative authorities only to the extent that there are litigations between them and him.
Art. 3206 – Sub-contract.
(1) The approval given by the administrative authorities to the sub-contract shall not affect the contractual bound between the administrative authorities and their contracting party.
(2) The original party shall remain liable for the works done and supplies made by the sub-contractor as though they had been done or made by himself.
(3) The approval of the sub-contractor by the administrative authorities shall however imply the exoneration of the contractant from the penalties for delay, where such delay is attributable to the sub-contractor.
Chapter 2. Concession of public service
Art. 3207 – Definition.
(1) Any activity which a public community has decided to perform for the reason that it has deemed it to be necessary in the general interest and considered that private initiative was inadequate for carrying it out shall constitute a public service.
(2) The concession of a public service is the contract whereby a person, the grantee, binds himself in favour of an administrative authority to run a public service getting a remuneration therefore by means of fees received on the use thereof.
Art. 3208 – Right of control of administrative authorities. – 1. Principle.
(1) The administrative authority responsible for the good running of the public service may at any time supervise the performance of the contract.
(2) The grantee shall render an account of his management to such authority and give it the necessary facilities for exercising its control.
Art. 3209 – 2. Regulations.
(1) The control of the grantee shall be organized in accordance with the provisions of regulations and with the contractual provisions made by the parties.
(2) The provisions of the following Articles shall apply in addition, notwithstanding any stipulation to the contrary.
Art. 3210 – 3. Limits of control.
(1) The control of the concession may not be such as to alter the nature of such concession and to transform it in fact in a direct exploitation by the administrative authorities.
(2) The administrative authorities may not subject a whole section of the activity of the grantee to a system of preliminary approvals.
(3) Unless otherwise provided, the grantee may freely determine the manner in which he will perform the contract.
Art. 3211 – 4. Interpretation of contracts.
(1) The provisions of the contract may not be interpreted as being an obstacle to the application of new regulations concerning the control of the management and the regulation of public order.
(2) The administrative authority, however, may not give the force of regulations to measures intended to control and to ensure the performance of his contractual obligations by the grantee.
Art. 3212 – Contractual modification of prices or tariffs. – 1. Principle.
Provisions may be made in the contract to the effect that the prices or tariffs mentioned in the contract shall be modified, should a specified economic change take place.
Art. 3213 – 2. Variation clauses.
(1) The concession may provide that the change shall take place automatically in accordance with and in proportion to variations occurring in the prices of certain materials, commodities or services.
(2) Where the bases for the fixing of the new prices or tariffs automatically follow the application of a variation formula, in case of contestation the court shall fix the new tariffs and prices resulting from the application of the variation clause.
Art. 3214 – 3. Revision clauses.
(1) The contract may confine itself to stipulating that the prices and the tariffs shall be revised where economic circumstances change considerably, without establishing precisely the bases of such revision.
(2) In such case, where the conditions mentioned in the contract have taken place, the parties shall negotiate the adoption of an additional clause to the contract.
(3) In default of agreement between them, the court may fix a tariff which ensures an equitable remuneration to the grantee.
Art. 3215 – 4. Clauses when to be enforced.
(1) Unless otherwise provided, the grantee may invoke the variation clauses and those relating to the revision of prices and tariffs as from the date of the tender.
(2) He may not invoke such clauses on account of variations which take place after the expiry of the normal time laid down for the performance of his obligations under the contract unless an extension of such time has been expressly granted to him by the administrative authorities.
Art. 3216 – Unilateral modifications of contract. – 1. Principle.
(1) The administrative authorities having granted the concession may, during the currency thereof, impose on the grantee all the obligations which they thing fit for the proper operation or improvement of the service granted.
(2) They may impose on the grantee modifications of the organization of the service provided in the act of concession or in the specifications.
(3) Any stipulation to the contrary shall be of no effect.
Art. 3217 – 2. Clauses which may be modified.
(1) Only the clauses concerning the services and its operation may be modified.
(2) The administrative authorities may in particular increases or reduce the extent of the service to be operated by the grantee or impose upon him an extension of the service.
Art. 3218 – 3. Limits of modifications.
(1) The administrative authorities may not impose such modifications in the organization of the service as would actually modify the nature or object of the contract.
(2) In particular, they may not substitute a management under state control for the concession.
(3) Nor may they order the grantee to manage a service different to that which has been granted, or to manage a really new service or a service which obviously surpasses the potentialities of the grantee.
Art. 3219 – 4. Clauses which may not be modified.
(1) The administrative authorities may not unilaterally modify the financial benefits which the concession ensures to the grantee.
(2) In particular, they may not cause prejudice to any privilege of exclusivity accorded to the grantee.
(3) They may, however, unilaterally impose on the grantee a modification of the tariffs, provided that they compensate the grantee for the loss which such modifications may cause to him.
Art. 3220 – 5. Compensation due to grantee.
(1) Where the administrative authorities exercise their right of unilateral modification, the grantee shall be entitled to compensation for the loss sustained by him through such modification.
(2) The compensation due to him shall be equal to the increase of the charge imposed upon him by the administrative authorities.
Art. 3221 – Relations with users. – 1. Fixing of tariffs.
Where the concession authorizes the grantee to collect fees from the users within the limits of a maximum tariff fixed by the act of concession, the grantee may freely fix the fees within the limits of such maximum.
Art. 3222 – 2. Modification of tariffs.
Where the conditions or tariffs fixed by the authorities are modified, the new conditions or tariffs shall apply immediately, but without retroactive effect, to the contracts which are still in force between the grantee and the users.
Art. 3223 – 3. Concession binding.
The grantee may not, by a particular agreement concluded with a user, depart from the general rules of the service fixed by the act of concession or by the specifications.
Art. 3224 – 4. Equality of users.
(1) Neither the administrative authorities not the grantee may adopt measures discriminating between the users and destroy the equality of treatment of the latter.
(2) The tariffs of service may not contain differentiations between categories of users unless such differentiations are in respect of different conditions of users in relation to the public service.
(3) Industrial and commercial public services shall observe such principle notwithstanding that the law prescribes that they are run according to the rules of private law.
Art. 3225 – 5. Relations between users and grantee.
(1) Mistakes or irregularities committed in giving effect to the conditions or to the tariffs shall be made good.
(2) An action of a user to claim the restitution of a sum collected unduly by the grantee shall be instituted within one year from the day of the payment unduly made.
(3) An action of the grantee to claim a supplement of the price shall be instituted within one year from the day when the incorrect payment has been made.
Art. 3226 – 6. Users not represented by administrative authorities
The administrative authorities may not claim compensation form the grantee by reason of the loss caused by him to the users of the service by the non-observance on his part of the provisions of the concession.
Art. 3227 – Duration of concession.
(1) The duration of the concession shall be fixed by the contract.
(2) It may not exceed sixty years,
(3) Unless otherwise expressly provided, the concession shall be deemed to have been made for a period of seven years.
Art. 3228 – Extension of concession.
(1) Unless otherwise expressly provided, the concession shall be extended by a tacit renewal where the intention to terminate it has not been signified by one of the parties to the other two years before the date when, according to the contract, it is to come to an end.
(2) In such case, the concession shall be extended for a period of seven years or for such shorter period as the parties may have originally fixed.
Art. 3229 – Winding up of concession. – 1. Principle.
(1) The termination of the concession of a public service shall entail its winding up and the settlement of accounts between the grantee and the authorities.
(2) The winding up shall be made in accordance with the stipulations of the specifications.
(3) Failing such stipulations, it shall be made in accordance with the provisions of the following Articles.
Art. 3230 – 2. Obligations of grantee.
(1) The grantee shall give the authorities all the information necessary to facilitate the taking back and exploitation of the concession.
(2) He shall deliver to the authorities in a good condition all the works and materials of the concession which are to be returned gratuitously to the authorities or which such authorities are entitled to take back against compensation.
Art. 3231 – 3. Things to be returned.
(1) The authorities shall take back without paying compensation the immovable property included in the concession.
(2) They shall take back without paying compensation the movable property the return of which to the authorities without compensation has been expressly provided in the specifications.
Art. 3232 – 4. Things which may be taken back.
(1) The authorities may take back against compensation any other thing used in the exploitation of the concession.
(2) The authorities shall not be bound to take back the things used in the exploitation of the concession unless such obligation has been imposed upon them by the specifications.
Art. 3233 – 5. Amount of compensation.
(1) In case of contestation, the amount of compensation provided in Art. 3232 shall be fixed by arbitrators appointed by the parties or, failing such, by the court.
(2) Where the grantee or the authorities establish the price which the property has cost, the compensation shall be fixed on the basis of such price from which a deduction shall, where appropriate, be made in respect of depreciation due to deterioration or to wear and tear.
(3) Where the price which the property has cost cannot be established, the compensation shall be fixed having regard to the value of the things at the time when they are taken back.
Art. 2334 – 6. Contracts.
(1) The grantee shall inform the authorities of all the contracts which are in course and which concern the concession.
(2) The authorities shall take the place of the grantee in all such contracts unless, within one month from having been informed of the existence of a contract, they inform the grantee and the party who has contracted with the latter oftheir intention to repudiate it.
(3) Unless otherwise expressly provided in the contract, the grantee shall not be liable to a contracting party for such repudiation.
Art. 3235 – 7. Securities.
After the accounts have been settled between the authorities and the grantee, the securities given by the latter shall be returned to him and the sureties which be has given be released.
Art. 2336 – Redemption of concession. – 1. Principle.
(1) The redemption of the concession is the decision whereby the administrative authorities put an end to the concession before the expiration of its time notwithstanding that the grantee has committed no fault.
(2) The administrative authorities may at any times redeem the comeession for the purpose of abolishing or reorganizing the public service.
(3) They may not redeem it in order to replace the grantee by another grantee.
Art. 3237 – 2. Effect.
(1) A concession which is redeemed shall be wound up in accordance with the provisions of the preceding Articles.
(2) The grantee shall be compensated for all the loss caused to him by the redemption and in particular for the loss which is caused to him by the making over to the authorities of property which he has not yet had the time to amortise.
(3) An equitable compensation may be granted to him having regard to the profit which he could reasonably have expected and of which he has been deprived by the redemption.
Art. 3238 – Loss of right of grantee. – 1. When ordered.
(1) The loss of right of the grantee may be ordered where he has committed a fault of a special gravity.
(2) The loss of right may only be ordered by the court, unless an express stipulation to the contrary in the act of concession has gives such right to the administrative authorities.
Art. 3239 – 2. Effect.
(1) The loss of right shall entail a definitive cancellation of the contract.
(2) The grantee who has lost his right shall bear the onerous consequences of the transactions having the object of ensuring the continuation of the public service.
Art. 3240 – 3. Rights of grantee having lost his right.
(1) The concession shall be allocated by tender at the risk of the grantee who has lost his right.
(2) The grantee who has lost his right shall receive from the new grantee the price fixed by the allocation, which sum shall take the place of all his rights on the concession.
Art. 3241 – Sequestration. – 1. Conditions.
(1) A sequestration may be ordered in the case of total or partial interruption of the service due to the default, incompetence or incapacity of the grantee.
(2) In the absence of any fault of the grantee, it may also be ordered from the time when it appears that the grantee is unable to operate the service.
Art. 3242 – 2. Effect.
(1) The sequestration shall temporarily deprive the grantee of the exercise of the rights which he held under the concession.
(2) Where the sequestration is ordered as a sanction of a default due to the fault of the grantee, the service shall be managed, at the expense and risk of the grantee, by the authorities or by a manager appointed by them.
(3) In other cases, the expenses of the sequestration shall be borne by the authorities.
Art. 3243 – Power of the court.
(1) The court may cancel the sanctions of coercion or dissolution, such as measures of sequestration, state control, loss of right or termination, taken by the administrative authorities against the grantee of the public service.
(2) It may order the authorities to pay compensation for the damage caused to the grantee in consequence of sanctions applied by such authorities contrary to the law.
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.
Chapter 4. Contract of supplies
Art. 3297 – Performance of contract.
(1) The supplier shall have the initiative and choice as regards the manner of performing the contract.
(2) He may apply to whom he things fit for the purchase of the materials and articles required for the performance of his obligations.
Art. 3298 – Risks.
(1) The supplier shall bear the risks of the loss of the thing which supervenes through force majeure until the acceptance of the thing by the administrative authorities.
(2) The administrative authorities shall be bound by the liability of a depositary during the time between the dare of the deposit of the supplies in their warehouse and that on which a final decision is taken as to the acceptance or rejection thereof.
Art. 3299 – Acceptance of merchandise.
The acceptance of merchandise shall take place in the manner and at the time specified in the contract.
Art. 3300 – Postponement of acceptance.
(1) The administrative authorities may postpone the acceptance where the supplies are defective.
(2) In such case, they shall inform the supplier of the time within which he shall remedy the defects of the supplies.
Art. 3301 – Rejection of merchandise.
The administrative authorities shall reject the supplies which are not in conformity with the contract where such defect takes away the utility which such supplies have for the administrative authorities and the supplier is unable or refuses to remedy such defect within the required time.
Art. 3302 – Expenses of verification of merchandise.
(1) The expenses of the verification of the merchandise shall be borne by the supplier as regards the operations effected in his establishment and by the administrative authorities as regards other operations.
(2) The supplier may be present at the verifications.
(3) He shall be informed of the time chosen for such operations and be admitted to put forward his remarks.
Art. 3303 – Liability of supplier.
(1) The exercise of supervision on the part of the administrative authorities shall not affect the liability of the supplier.
(2) It shall not restrict the right of the administrative authorities is to reject the supplies which are recognized to be defective at the time of acceptance or to cause to be repaired during the period of warranty the parts which are recognized to be defective.
Art. 3304 – Performance by reason of default.
(1) In the case of a contract of supplies, the performance by reason of default may be ordered where the supplier fails to carry out an urgent delivery or a contract has been cancelled.
(2) The administrative authorities shall take the place of the defaulting supplier in purchasing the supplies from another supplier or in manufacturing them themselves.
(3) Nothing shall affect the right of the administrative authorities to claim damages from the defaulting supplier.
Art. 3305 – 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 supplies.
(2) In such contracts, it may only investigate whether the sanctions have been applied under conditions of such nature as to create a right to compensation in favour of the supplier.
(3) Nothing shall affect the provision of art. 3306.
Art. 3306 – Preliminary claim to the administrative authorities.
(1) The supplier shall firstly make his claim to the administrative authority in the case and within the measure in which the contract imposes upon him such preliminary procedure.
(2) A recourse to the judicial authorities which is not preceded by the obligatory claim to the administrative authorities shall not be admissible.
(3) Where the contract prescribed a period for the claim to the administrative authorities and the supplier has failed to make such claim in due time, such claim shall be barred and the recourse to the judicial authorities shall not be admissible.