REIMBURSEMENT OF ADDITIONAL COSTS – OBLIGATION TO REPORT
14.09.2017
When implementing a construction project, unforeseen difficulties and delays often arise. This article is intended to provide an insight into how to proceed in this situation and who has to bear any additional costs.
According to Section 1168 of the Austrian Civil Code (ABGB), the contractor is entitled to “additional costs” if additional services were caused by circumstances on the part of the client. The client’s sphere of responsibility includes, for example: delays in planning, changes in geological conditions, etc.
The client's fault is not required here because a claim for additional costs under Section 1168 ABGB represents a claim for compensation and not for damages. The amount of the claim for additional costs results from a comparison between the actual expenditure caused by the hindrance and the target expenditure calculated by the contractor.
According to the prevailing opinion, the WU must inform the WB about impending additional costs. The Supreme Court has ruled that there is no obligation to report, but this decision remains an isolated case. It can therefore only be strongly recommended that the WB be informed as specifically as possible about the reason, extent and costs of impending additional work.
Particular caution is required if the applicability of ÖNORM B 2110 has been agreed. This provides for a special "registration regime" that must be complied with. Firstly, the WB must be informed as soon as possible about the disruption to the construction process so that it has the opportunity to make appropriate arrangements. If the WU does not report this and the WB suffers damage as a result, the WU risks a reduction in its claim for remuneration due to a breach of the obligation to mitigate damages. In a next step, the WU must register additional claims resulting from the disruption in a verifiable form without unnecessary delay. If it fails to do so, it risks losing its claim. If the WB requires additional documents, it must request them as soon as possible. It must check the registration immediately and explain itself. This should quickly give the WU clarity as to whether it should provide the additional services registered.
The conclusion is that, in order to avoid the risk of losing a claim, a WU should report any identifiable disruptions in the construction process and the resulting additional costs to the WB as soon as possible and in an auditable manner.