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The liability of an authorized representative in public construction : a clarification

PUBLISHED ON 15/05/2017

In a judgement released on September 26, 2016, the French Council of State clarified the authorized representative’s liability regime towards both the constructors and the principal in the context of a public construction. Article 3 of Law n°85-704 of 12 July 1985 (the “Law”) provides for a mandate which is commonly used by project owners wishing to delegate a significant amount of their duties to a third party.

The Council of State reemphasizes that the project owner will only be liable to the constructor for misconducts committed by the authorized representative in the context of his mandate.
In such a case, the authorized representative can be held contractually liable to the project owner. Furthermore, the authorized representative can be held liable on a quasi-tortious basis, further to legal actions brought by the project owner or the constructors for misconducts committed outside his mandate, that is to say outside the scope of the duties set out in the Law.

As a consequence, the extent of the mandate has significant impacts in the context of disputes between the project owner, the authorized representative and the constructors.

(For more details, see V. Drain: « Eclaircissements sur le régime de responsabilité du mandataire de maîtrise d’ouvrage », in Contrats publics, February 2017, n°173, p.71)