In a judgment dated May 16, 2025 (No. 23PA03909), the Paris Administrative Court of Appeal stated that the holder of a public works contract, concluded at a global and fixed price, was entitled to payment for additional work which, although not the subject of a service order notified in accordance with the conditions provided by the General Administrative Clauses applicable to public works contracts (CCAG-Travaux), had been requested by email from the project owner.
It should be noted that Article 3.8 of this CCAG provides that service orders must be written, dated, and numbered. It is well established that French public law is not overly formalistic, such that so the question is mainly whether or not there is a demand from the project owner or the project manager.
The requirement for written form does not imply any mandatory format. It may consist of a simple plan that has been submitted (CE, 26 July 2006, Commune de Châteauponsac, No. 269052), or one that has been validated by the project manager who instructed its execution (CE, 25 June 1975, Ville de Joigny, Nos. 84979 and 93218, published in the official record).
The judges also accept unwritten orders, provided that the contractor is able to prove that a request was made (CE, 19 June 1981, No. 03822; CE, 19 March 1982, No. 18632; CE, 5 November 1980, SARL Parachini, No. 15345; CE, 19 March 1982, Département de La Réunion, No. 18632).
These principles were recently reaffirmed in a recent decision by the French Administrative Supreme Court (Conseil d'Etat), which established the principle that a company is entitled to payment for additional work carried out at the request, including verbal requests, of the project owner or project manager, even without a service order (CE, March 17, 2025, Société Eiffage Construction Sud-Est, No. 491682).
The formalism of the CCAG, though somewhat outdated, is gradually adapting to the modern world and to the pragmatism often required for the smooth execution of public works projects.
In a fixed-price contract, the price is set globally with respect to the subject matter of the contract and, in principle, is not intended to be modified. The payment of additional work therefore raises a delicate issue, which is frequently debated in the context of performance-related disputes.
The case brought before the Paris Administrative Court of Appeal concerned the performance of a works contract relating to the renovation of a building complex on Boulevard Raspail (Paris 14th arrondissement), intended to house the headquarters of the National Center for Cinema and the Moving Image (CNC), concluded between the CNC, as project owner, and the company Les Ateliers de Reims.
The CNC had requested, by email, that the layout of the building’s relaxation areas be modified. The revised plans for these areas had also been approved by the project manager. Les Ateliers de Reims subsequently prepared a quotation detailing the cost of the modification.
This raised the question of whether the contractor was entitled to payment for the additional work, which had not been the subject of a formal service order, but had instead been requested by email from the CNC, acting as the project owner.
The Court answered in the affirmative, first recalling the principles established by the Conseil d'Etat in the aforementioned decision of 17 March 2025:
- When the contractor of a public works contract concluded at a lump-sum price carries out additional works at the request – whether verbal or written – of the contracting authority or the project manager, they are entitled to payment for such works, even if the request was not formalised by a service order notified in accordance with the provisions of Article 14 of the 2009 version of the CCAG-Travaux, which governs the case at hand (see Article 13 in the 2021 version of the CCAG-Travaux).
- However, when the contractor carries out additional works on their own initiative, they are only entitled to payment if such works were essential for the proper completion of the project in accordance with the rules of the art.
Applying these principles, the Court then found that the CNC, as project owner, had indeed formalised a request for additional works by email, thereby entitling Les Ateliers de Reims to payment of the corresponding quotation. The fact that this work had not been the subject of a formal service order had no bearing on the validity of the company’s claim for payment.
Recent case law from the Conseil d'Etat and, by extension, the ruling handed down by the Court, bring a welcome simplification to the legal framework applicable to additional works which, although carried out without a formal service order, were not performed on the contractor’s own initiative.
The use of a service order, as required by the CCAG-Travaux, therefore constitutes a formal requirement incumbent upon the project owner and the project manager. It does not condition the creation of the contractual obligation requiring the public purchaser to pay for the works it has requested. Where it is established that a request for additional works was made and that the contractor carried them out, there is no reason why such services should not give rise to payment.
The Conseil d'Etat goes further in reducing formal requirements, holding that the absence of a written request for additional works does not affect the contractor’s right to payment. However, as noted by the government commissioner (rapporteur public) Nicolas Labrune in his submissions on the aforementioned decision of 17 March 2025, it is often more difficult to prove the existence of a verbal order than a written one. In cases where the administration denies having verbally requested the contractor to carry out additional works, the judge would likely face difficulties in establishing the contrary.
This case law, which is favourable to contractors, will undoubtedly give rise to numerous applications by trial judges, who will be required to determine whether a request – written or verbal – was actually addressed to the contract holder. Taken as a whole, the rules are now clear and call for heightened vigilance on the part of the administration in its communications, whether written or oral, with construction companies.
While it is important to protect contractors from disorderly requests by project owners, it is equally advisable for all parties to formalise such requests in one way or another, in the common interest: this facilitates the judge’s task and limits the uncertainties arising from factual circumstances.
