Site compte prorata: who bears the common costs and how the project owner protects itself

On a building project let in separate packages, the balance of the joint site expenses account (compte prorata) almost always arrives at the worst moment: at acceptance of the works, when the project owner (maître d'ouvrage) wants to settle the contracts, clear the snagging reservations and close the budget. The account manager, often the holder of the structural works package, then claims shares that three or four contractors dispute, either for lack of supporting documents or because the value of their contract doubled during performance; another is in court-supervised reorganisation (redressement judiciaire) and its arrears end up, in practice, borne by the site. At this stage the project owner discovers that it is legally a third party to an agreement it did not sign, yet economically suffers the disorder that agreement produces. This guide treats the compte prorata as a contractual mechanism to be built upstream: what the reference to standard NF P 03-001 covers, how to draft the clause in the works contract, how to arbitrate disputes over the allocation between packages, and what levers remain available when a contractor fails.

What the compte prorata covers, and what it is not

The compte prorata is the accounting vehicle for the common costs of a site, those from which several contractors benefit without it being possible, or economically reasonable, to charge them to a particular package. Traditionally within its scope are site water and electricity consumption, routine cleaning and skip management, security guarding, welfare and sanitary facilities, signage, maintenance of internal access roads, and the management costs of the account itself. The economic principle is simple: these costs are advanced by one party, then allocated among the contractors according to a key, generally proportional to the value of the contracts.

The difficulty begins where the scope becomes blurred. Three boundaries should be drawn from the tender documents onwards.

The first separates common costs from costs specific to a package. A contractor's specific facilities, its individual protective measures, the cleaning of dirt that it alone generated, and the remedial work following its defective workmanship do not fall within the common interest. Without a contractual definition, it is precisely on this line that disputes concentrate.

The second separates the compte prorata from costs of statutory origin, which fall on the project owner and cannot simply be “paid pro rata” through a clause in the contract. Article L. 4532-2 of the French Labour Code requires safety and health coordination on any building or civil engineering site where several self-employed workers or companies, including subcontractors, are called on to work, and provides that this coordination also has the purpose of providing for, where necessary, the use of common facilities such as infrastructure, logistical resources and collective protective measures. Likewise, Article R. 4532-77 of the same Code places on the project owner the duty to set up an inter-company committee on safety, health and working conditions where the site is expected to exceed 10,000 man-days and the number of companies, including self-employed workers and subcontractors, is greater than ten for a building operation or five for a civil engineering operation, that committee having to be in place at the latest twenty-one days before the works begin. The funding of common facilities decided within this framework must be coordinated with the compte prorata, not confused with it.

The third boundary, the one most often neglected in management, separates the compte prorata from retention money (retenue de garantie). These are two sums withheld from interim payment applications, for entirely different reasons and under entirely different regimes. We return to this below.

A contractual mechanism: standard NF P 03-001 has no normative force of its own

This must be said plainly, because the confusion is common in site correspondence: standard NF P 03-001, the general administrative terms applicable to building works under private contracts, is a normative document published by AFNOR. No statutory or regulatory provision makes it mandatory. The compte prorata therefore rests not on statute but on contract, by virtue of Article 1103 of the French Civil Code: legally formed contracts have the force of law for those who have made them.

The practical consequence is immediate. The standard has effect only if the works contract refers to it, and under the conditions of Article 1119 of the French Civil Code:

General conditions relied on by one party have effect against the other only if they were brought to the latter's attention and accepted by it. Where general conditions relied on by each party conflict, the incompatible clauses have no effect. Where general conditions conflict with special conditions, the latter prevail over the former.

Three drafting reflexes follow. Refer to the precise edition of the standard, by its year, and not to the standard “in force”, a formula that opens a debate on the applicable version. Establish proof that the document was brought to the contractor's attention, which in practice means annexing it to the contract or having a receipt for the contract documents signed. Lastly, check consistency between the special administrative terms and conditions and the general conditions referred to: in the event of a conflict, it is the special conditions that prevail, which means that a compte prorata clause poorly aligned with the CCAP simply neutralises the normative framework to which the project owner thought it was referring.

There remains the case of the silent contract. Article 1194 of the French Civil Code provides that contracts bind the parties not only to what is expressed in them, but also to all the consequences that equity, usage or the law give them. This door exists, and building industry practice is regularly invoked to justify the existence of an unstipulated compte prorata. It remains narrow and uncertain: it requires establishing the usage, its content and its enforceability against the contractor concerned. A project owner that bases its arrangements on Article 1194 has already lost control of the subject.

The architecture of the legal relationships: two tiers, and a project owner who is a third party

The compte prorata operates on two contractual tiers that must be rigorously distinguished.

On the first tier, the works contracts concluded between the project owner and each contractor. On the second, the compte prorata agreement concluded among the contractors themselves, which organises the management of the account, appoints the manager, and sets the allocation key and the reporting arrangements.

Article 1199 of the French Civil Code governs the reading of this architecture: a contract creates obligations only between the parties. Third parties can neither demand performance of the contract nor be compelled to perform it. The project owner, which is not a party to the compte prorata agreement, can therefore in principle neither demand its performance nor have it enforced against it. This is the keystone of the subject: every lever the project owner intends to have, withholding from payment applications, set-off, penalty, management mandate, arbitration power, must be stipulated in its works contract, with each contractor, and not in the inter-company agreement.

The characterisation of the account manager

The legal characterisation of the compte prorata manager, often the holder of the structural works package, is a matter of analysis and not of a dedicated provision. If one adopts the mandate analysis, two provisions become available. Article 1999 of the French Civil Code requires the principal to reimburse the agent for the advances and costs that the latter has incurred in carrying out the mandate, and provides that, absent fault on the part of the agent, the principal cannot have the amount of the costs and advances reduced on the ground that they could have been lower. Article 2002 adds that where the agent has been appointed by several persons for a common matter, each of them is jointly and severally liable to the agent for all the effects of the mandate.

This characterisation is not settled, and other analyses circulate, from the sui generis contract to the undisclosed partnership (société en participation). It nonetheless has considerable practical significance for the contractor that carries the account, and the project owner has an interest in having the contract expressly settle the nature of the role entrusted to the manager rather than leaving the question to be resolved at the end of the project, before the court.

Joint and several liability is not presumed

Article 1310 of the French Civil Code lays down a rule that is often lost sight of on sites let in separate packages: joint and several liability is statutory or contractual; it is not presumed. There is therefore no joint and several liability in principle among the contractors for the common costs of the site, nor any automatic transfer of a defaulting contractor's share to the remaining packages. Such a transfer requires either an express clause accepted by each contractor, or the formation of a joint and several consortium. Failing that, the unrecovered balance stays where it fell: with the party that advanced the funds, that is, the manager, who will most often turn to the project owner by way of a claim on its final statement of account.

Drafting the compte prorata clause in the works contract

The project owner's aim is not to take over the compte prorata, which remains a matter between contractors, but to equip itself with a power of regulation and a shield against end-of-project claims. The clause inserted in the CCAP should cover the following points.

• the positive and negative definition of the scope of common site costs, with a list of excluded costs (own facilities, cleaning of attributable dirt, specific measurable consumption)
• the obligation on each contractor to join, within a set period from notification of the contract, the compte prorata agreement, a model of which is annexed to the tender documents
• the appointment of the manager, the extent of its remit, its remuneration if any and its obligation of periodic reporting with supporting documents
• the allocation key and the method of updating it for additional works and variations, a point that on its own generates a significant share of disputes
• the dispute procedure: time limit, form, documents required, technical arbitration body, effect of silence
• the authorisation given to the project owner to withhold from payment applications the share called for and not paid, and to transfer that amount to the compte prorata
• the sanction for breaches of site obligations (cleaning, waste sorting, removal of rubble, clearing of common areas)
• the fate of the account balance, positive or negative, and its relationship with the drawing up of the final overall statements of account (décomptes généraux définitifs)

On the penalty clause, Article 1231-5 of the French Civil Code strictly limits contractual freedom. The judge may, even of their own motion, moderate or increase the penalty thus agreed if it is manifestly excessive or derisory, and reduce it in proportion to the benefit obtained from partial performance, any stipulation to the contrary of these two rules being deemed unwritten. The text adds that, except in the case of definitive non-performance, the penalty is incurred only once the debtor has been served with formal notice (mise en demeure). A cleaning penalty calibrated on the real cost of intervention by an outside company will stand up better than a deterrent lump sum, and prior formal notice must be built into the site process, not improvised. The conditions of validity and judicial revision of this stipulation are dealt with separately in our article on the rules governing the penalty clause.

Disputes over allocation between packages: anatomy and arbitration

Allocation disputes follow recurring patterns, which a well-constructed clause neutralises upstream.

The first is the absence of supporting documents. The manager calls for shares on the basis of a table with no attached invoices; the contractors dispute it, the account stalls, the costs continue. The remedy is contractual: make the payability of the call for funds conditional on production of a detailed statement accompanied by the documents, and provide for a periodic validation point at a site meeting with minutes.

The second is variation in the basis of calculation. Where the key is based on the value of the contracts, a technical package that absorbs significant variation works sees its share swell at the end of the project, sometimes with no relation to its real use of common facilities. Two corrections are conceivable: freeze the key on the initial amounts, which creates an opposite distortion, or provide for an adversarial update on a fixed date. In both cases the rule must be written before the first call for funds.

The third is disputed attribution. An expense presented as common in fact corresponds to the repair of damage caused by an identified package. The contract must provide that any expense attributable to a specific contractor is charged to its debit alone, on a joint finding by the works supervisor (maître d'œuvre d'exécution).

The fourth concerns contractors that come in late or for a short period, and refuse to bear costs incurred before their arrival. A time-based pro rata (prorata temporis), combined with the value-based key, settles the question if the agreement provides for it.

The arbitration of these disputes should be organised in stages: finding by the project supervisor, examination at a site meeting, reasoned opinion, then referral to the court. It is useful to stipulate that a dispute does not suspend the obligation to pay the undisputed portion, failing which any discussion over one line blocks the whole account.

The project owner's levers in the event of default

Withholding and set-off against payment applications

The most effective lever remains withholding from sums due to the contractor. Its implementation rests on Article 1347 of the French Civil Code, under which set-off is the simultaneous extinction of reciprocal obligations between two persons and takes effect, provided it is invoked, to the extent of the lesser amount, on the date on which its conditions are met. Two lessons: set-off does not operate unless invoked, which requires written and traceable notification to the contractor; and it presupposes reciprocal obligations between the same two persons.

This is precisely where the relative effect of Article 1199 regains its full significance. The project owner is not, in principle, the creditor of the compte prorata share: its counterparty owes it to the account, not to the project owner. Withholding that sum without a contractual basis exposes the project owner to an action for payment of the balance of the payment application. Hence the absolute need to stipulate in the contract, on the one hand the contractor's obligation towards the project owner to show that it has paid its shares, and on the other hand the mandate or authorisation to withhold and to pay over.

Where the claim does exist in the bilateral relationship, Article 1348-1 eases the set-off of connected debts: the judge cannot refuse it solely on the ground that one of the obligations is not liquidated or not yet due, and the acquisition of rights by a third party over one of the obligations does not prevent its debtor from relying on set-off. This last point is decisive in the face of an assignment of business receivables, a bank pledge or the intervention of a creditors' representative (mandataire judiciaire).

Do not confuse with retention money

The withholding made on account of the compte prorata is not retention money, and mixing the two is a classic source of litigation. In private contracts, Article 1 of Law No. 71-584 of 16 July 1971, in the wording in force since 1 January 2020, authorises a retention of no more than 5 per cent of the amount of the interim payments, contractually securing performance of the works so as to satisfy, where applicable, the reservations made at acceptance. The text requires the project owner to deposit with a depositary, accepted by both parties or failing that appointed by the president of the judicial court (tribunal judiciaire) or of the commercial court, a sum equal to the retention made, unless the contractor provides a personal and joint and several guarantee of an equal amount. Article 4 extends the application of the law to subcontracting agreements. Applying this retention to a compte prorata balance amounts to diverting it from its statutory purpose. On the use of this retention to obtain the clearing of reservations, see our analysis of retention money in the face of contractor default.

In public procurement, Article R. 2191-33 of the French Public Procurement Code, in the wording resulting from Decree No. 2024-1251 of 30 December 2024, sets the ceiling for retention money at 5% of the initial contract value, increased where applicable by the amount of modifications during performance. This rate cannot exceed 3% where the contractor is a small or medium-sized enterprise referred to in Article R. 2151-13, but only for contracts awarded by the State, by State administrative public bodies other than public health bodies whose operating costs in the financial account of the penultimate closed financial year exceed €60 million, and by local authorities, their public bodies and their groupings whose actual operating expenditure in the penultimate closed financial year exceeds the same amount. Article L. 2191-7 also recalls that contracts may provide for retention money, a first-demand guarantee or a personal and joint and several guarantee.

Having the unperformed common service carried out

Where a contractor fails to perform a site obligation that falls to it, such as cleaning an area, removal of materials or restoring a common access, Article 1222 of the French Civil Code offers a direct route: after formal notice, the creditor may also, within a reasonable time and at a reasonable cost, have the obligation performed itself and claim reimbursement from the debtor, the court being able to be seized so that the debtor advances the sums necessary. Destruction of what was done in breach of the obligation, on the other hand, requires the prior authorisation of the court. Carrying out the work at the defaulting party's expense (“mise en régie”) is therefore neither discretionary nor exempt from formal notice, and the reasonableness of the cost incurred will be argued: three quotations are better than a purchase order to the usual supplier. Article 1217 also confirms that the remedies for non-performance, suspension, specific performance, price reduction, termination and damages, may be combined where they are not incompatible.

The counterpart: the payment guarantee owed by the project owner

The balance of power does not run in one direction only. Article 1799-1 of the French Civil Code requires a project owner that concludes a private works contract to guarantee to the contractor payment of the sums due where they exceed a threshold set by decree of the Conseil d'État, by a joint and several surety given by a credit institution, a financing company, an insurance undertaking or a collective guarantee body, in the absence of specific credit or of a guarantee resulting from a particular stipulation. As long as no guarantee has been provided and the contractor remains unpaid for the works carried out, it may suspend performance of the contract after formal notice that has remained without effect at the end of a period of fifteen days. The text excludes this mechanism where the project owner concludes the contract on its own account and to meet needs unrelated to a professional activity connected with that contract, as well as for contracts concluded by a body referred to in Article L. 411-2 of the French Construction and Housing Code or by a mixed-economy company, for rental housing aided by the State. A project owner that makes withholdings on account of the compte prorata without a solid contractual basis gives the contractor an argument of non-payment, and therefore a lever to stop the works.

Default by a contractor: sequence and reflexes

The opening of collective proceedings against a contractor holding a package triggers a precise sequence.

The contract is not terminated by the mere fact of the opening. Article L. 622-13 of the French Commercial Code states that, notwithstanding any contractual clause, no termination or rescission of a contract in progress may result from the mere fact of the opening of safeguard proceedings, and that the counterparty must fulfil its obligations despite the debtor's failure to perform earlier commitments. The administrator alone has the power to require performance of the contract in progress. A project owner that wants to escape uncertainty must therefore put the administrator on formal notice to take a position on continuation of the contract: the contract is terminated by operation of law after a formal notice that has remained unanswered for more than one month, the supervisory judge (juge-commissaire) being able to set a shorter period or grant an extension not exceeding two months.

Arrears of compte prorata share predating the opening judgment cannot be paid: Article L. 622-7 I carries by operation of law a prohibition on paying any claim arising earlier, with the exception of payment by set-off of connected claims. This exception is the way out for the project owner and the account manager, provided they have taken care over connexity and have invoked set-off. Any payment made in breach of the text is annulled at the request of any interested party or of the public prosecutor, within three years of the payment.

At the same time, the earlier claim must be filed with the creditors' representative under the conditions of Article L. 622-24, which provides that claims must be filed even where they are not established by a title and that those whose amount is not yet definitively fixed are filed on the basis of an estimate. That is exactly the case of a compte prorata balance not yet settled. The current wording of this provision results from Law No. 2025-1403 of 30 December 2025, certain provisions of which apply only to collective proceedings opened and to compulsory liquidations ordered from 1 January 2027: the regime applicable on the date of opening must be checked before any filing. The time limits to observe and the content of an admissible claim are set out in our article on filing a claim in collective proceedings.

There remains the question of transferring the burden. Article 1310 closes the route of automatic transfer to the other packages. Only an express redistribution clause, accepted by each contractor, or a joint and several consortium makes it possible to organise this. In its absence, the project owner must allow for non-recovery in its budget and, if it wishes not to bear the burden, say so in its contract before signature, not after the opening hearing.

Conclusion

The compte prorata is not a question of site housekeeping: it is a financial risk item at the end of the project, housed in an agreement to which the project owner is not a party, and whose failure it nonetheless suffers. The reflex of referring to standard NF P 03-001 in the CCAP and then giving it no further thought is, on its own, the cause of the majority of balance claims. The standard is not a rule of law: it is worth only as much as the clause that incorporates it, and gives way to conflicting special conditions.

The defensible position is the opposite of current practice: deal with the compte prorata at the tender documents stage, as a self-standing contractual object. Annex the model inter-company agreement to the contract documents, make joining a condition of payment of the first payment application, expressly stipulate the right of withholding and set-off in the works contract with each contractor, isolate this mechanism from retention money, and lock down the dispute procedure with time-barring periods (forclusion). Before launching the tender for your next project let in separate packages, have the consistency between your CCAP, the general conditions referred to and the draft compte prorata agreement reviewed: a conflict between these three documents is enough to deprive the whole arrangement of effect.

Frequently asked questions

Does standard NF P 03-001 apply automatically to a private works contract? No. It is a normative document published by AFNOR, with no regulatory force of its own. It has effect only if the contract refers to it and under the conditions of Article 1119 of the French Civil Code: general conditions have effect only if they were brought to the other party's attention and accepted by it, and special conditions prevail in the event of a conflict. The edition must therefore be referred to by its year, and proof of its delivery to the contractor must be established.

Can the project owner withhold the compte prorata share from a payment application? Only if its contract so provides. The project owner is a third party to the compte prorata agreement, and Article 1199 of the French Civil Code provides that third parties can neither demand performance of the contract nor be compelled to perform it. Set-off under Article 1347 presupposes reciprocal obligations between the same two persons and must be invoked. A withholding made without a contractual basis exposes the project owner to an action for payment, and even to suspension of performance under Article 1799-1.

Must the other contractors bear the share of a defaulting package? Not as of right. Article 1310 of the French Civil Code states that joint and several liability is statutory or contractual and is not presumed. Transferring the burden of a defaulting contractor to the other packages requires an express clause accepted by each of them, or the formation of a joint and several consortium. Failing that, the loss remains borne by the party that advanced the funds.

Can retention money be applied to the compte prorata balance? No. In private contracts, Article 1 of Law No. 71-584 of 16 July 1971 limits the retention to no more than 5% of the amount of interim payments and applies it to satisfying the reservations made at acceptance, with deposit with a depositary unless a personal and joint and several guarantee of an equal amount is provided. In public procurement, Article R. 2191-33 of the French Public Procurement Code sets the ceiling at 5% of the initial amount increased by modifications during performance, reduced to 3% for SMEs only in the cases it lists. These sums have a statutory purpose distinct from the compte prorata.

What should be done when a contractor does not carry out the cleaning or removal that falls to it? Article 1222 of the French Civil Code allows, after formal notice, the obligation to be performed by a third party within a reasonable time and at a reasonable cost, and reimbursement then to be claimed from the debtor, the court being able to order the debtor to advance the sums. Destruction of what was done in breach of the obligation, on the other hand, requires the prior authorisation of the court. Prior formal notice and justification of the cost are the two usual points of weakness.

A contractor is placed in court-supervised reorganisation: what deadlines must be met? The contract is not terminated by the mere fact of the opening and the administrator alone has the power to require its performance; a formal notice to take a position that has remained unanswered for more than one month leads to termination by operation of law, subject to the periods that the supervisory judge may modify (Article L. 622-13 of the French Commercial Code). The earlier unpaid share cannot be settled, except by set-off of connected claims, which Article L. 622-7 I expressly reserves, and must be filed with the creditors' representative, on an estimate if its amount is not definitively fixed (Article L. 622-24).

Is a penalty clause sanctioning site breaches effective? It is if it is calibrated. Article 1231-5 of the French Civil Code allows the judge to moderate or increase of their own motion a penalty that is manifestly excessive or derisory, and to reduce it in the case of partial performance, any stipulation to the contrary being deemed unwritten. Except in the case of definitive non-performance, the penalty is incurred only after formal notice to the debtor. A penalty pegged to the real cost of a substitute intervention stands up better than a punitive lump sum.