Claims for additional costs in construction due to COVID-19: new case law of the Austrian Supreme Court!
A construction company claimed additional costs from the client because the measures taken in the wake of the COVID-19 pandemic resulted in significant additional costs. In particular, the contractor’s staff had to maintain a minimum distance of 1 m from the construction site, use disinfectants and wear masks (mouth and nose protection). Site accommodation had to be converted from double rooms to single rooms. These measures would not only have resulted in additional costs, but also a reduction in performance. The construction contract provided for the application of Ö-Norm B 2110. The construction company applied this standard. In order to determine the amount of the additional costs, the contractor obtained an expert opinion on construction economics, which detailed the additional costs.
The Austrian Supreme Court rejected the claim. First, the Supreme Court upheld the construction company’s view that the risk of COVID-19-related additional costs was inherently the client’s. This is because the parties had agreed to apply Ö-Norm B 2110 and clause 7.2.1 transfers to the client all events that were not foreseeable at the time the contract was concluded and could not reasonably be prevented by the contractor. The consequences of the pandemic are the responsibility of the contracting authority in accordance with Ö-Norm B 2110.
However, the contractor must specifically claim and prove the actual additional costs incurred as a result of the difficulties caused by COVID-19. Submitting a construction economics report that makes abstract calculations without reference to the specific site is not adequate evidence. This means that the contractor is obliged to state specifically how many masks were used on the site, how many workers were employed on the site and for how many days, how many single-bed rooms had to be used instead of double-bed rooms for how many nights, etc. It follows from Clause 7.4.1 of Ö-Norm B 2110 that the contractor is obliged to submit the claim for additional costs in a verifiable form. If the contractor fails to provide such specific information, the claim must be rejected for lack of conclusiveness.
Supreme Court of 21.12.2022, 6 Ob 136/22a
