The costs of a supplement are not recoverable!

What was the issue?

In the course of the implementation of a construction project for the construction of a road overpass over railway tracks, a late award of contract occurred in the course of the award procedure – after the binding period had been extended. This circumstance led to the construction schedule being adjusted and a new completion date being set. Subsequently, it turned out that individual permits were still missing, so that the start of construction was further delayed as a result of an ordered construction stop. The contractor claimed additional remuneration due to the delay in awarding the contract and the construction stop. In particular, he also wanted to be reimbursed for the costs of a private expert opinion on construction which he had obtained in order to determine the additional costs caused by the delay.

How did the BGH decide?

First of all, the BGH left open whether an ordered construction stop, which has its cause in the client’s sphere of risk, gives rise to claims for additional remuneration pursuant to section 2 (5) VOB/B. The BGH did so because the client was not entitled to claim for additional costs due to the delay. The BGH did so because it found that the costs of a private expert for determining the additional remuneration pursuant to section 2 (5) VOB/B do not constitute “additional costs” within the meaning of this provision. In justification, the BGH stated that when agreeing on a new price within the meaning of section 2 (5) VOB/B, the additional and reduced costs incurred by the contractor due to the performance of the respective service should be taken into account. However, the costs incurred for the determination or presentation of the remuneration owed were not included.

Reimbursement of the costs could not be made on the basis of section 2 (9) no. 1 VOB/B. According to this provision, the client had to reimburse drawings, calculations, or other documents that the contractor did not have to procure under the contract if the contracting client requested this from the contractor. However, such a “request” by the client did not exist.

Furthermore, the BGH held that the costs could not be reimbursed even if claims for additional remuneration pursuant to Section 2 (5) VOB/B were asserted due to a delay in awarding the contract.

Practice note

With the present decision of the BGH, costs for determining the additional remuneration pursuant to section 2 (5) VOB/B in the form of internal and external calculation and supplementary processing costs are no longer to be reimbursed in the future.

Other accompanying costs incurred in the course of the supplementary performance are only reimbursable under section 2 (9) no. 1 VOB/B if they are incurred in connection with the planning of the supplementary performance. However, a prerequisite for this is that the client is responsible for the planning and that it demands the corresponding planning by the contractor.

If you have any further questions on this topic, our experts in Construction Law and Law for Architects  will be glad to assist you.