Part of the work or additional work?

It is a common problem in construction: the contractor claims that there is additional work and invoices that additional work. However, the client believes that the work was part of the agreed work and leaves the invoices unpaid. A dispute then arises between the parties; is there additional work or not? Recently, the Council of Arbitration in Construction Disputes (RvA) made an interesting ruling about that. Construction law attorney Myrthe de Vries discusses that statement.  

Dispute at Board of Arbitration over extra work

This case involved a dispute between a province and a contractor who had entered into the contract to maintain green spaces following a tender. The contractor subsequently invoiced for approximately €1,500,000 in additional work, divided into several items. The largest item related to “Traffic measures at intersections and traffic circles” and amounted to over one million. According to the contractor, these costs had arisen as a result of additional work. The province disagreed. First, it argued that the work performed by the contractor regarding the traffic measures was simply part of the contract. For this, the contractor had already received compensation through payment of the contract price. In addition, the province felt that the contractor would only be entitled to payment for any additional work if an explicit additional work order had been given.  

Board of Arbitration: not part of specifications thus additional work

With respect to that first position, the COA held that only work that is part of the specifications may be seen as part of the contract. Indeed, the parties agreed on an amount for the performance of the work based on the work described in the specifications. The specifications did not mention the traffic measures performed. Therefore, the conclusion is that the work which the contractor claims is additional work is in any case not part of the agreement.  

Client: only entitled to payment for additional work in case of assignment

This does not yet entitle the contractor to immediate payment for the additional work, according to the province. In principle, an additional work order should have been given for this, the province argues, and it did not. The RvA disagrees with this as well. The Arbitration Council concludes that because the client assumed that the work was part of the contract, it is obvious that under those circumstances it therefore did not issue an additional order.  

Client requires execution of additional work

Nevertheless, the COA believes that the facts show that the client did require the contractor to perform the additional work. Indeed, the province was under the (incorrect) assumption that the specifications required the contractor to perform the work, expected the contractor to do so, and ordered it to do so.  

The fact that this was not given the heading “additional work” does not mean that there cannot be additional work. The RvA rules that the contractor is entitled to compensation for the extra work done on the traffic work. However, the contractor fails to prove that over a million in costs were actually incurred. The province is ordered to pay €100,000 for the item “Traffic measures at intersections and traffic circles.”. 

Contractor receives payment for additional work

So in this case, the contractor still received payment for his work, but things could have turned out differently. It is therefore very important for every client and contractor to be clear about which work is part of a building contract and which is not. In addition, it is important to always properly record additional work orders. If that is not clear, the client runs the risk of ordering additional work without that being his intention. And vice versa, the contractor runs the risk of not having to pay for the additional work. Therefore, take timely contact up with the construction law lawyer From Lexys Lawyers.