Concrete & Steel in legal persperctive

A principal in a UAV-GC work being held liable in legal proceedings because of incorrect information in the tender documents regarding the (foundation) design provided by the principal. This does not happen easily, but in a recent judgment of the Den Bosch Court of Appeal of January 21, 2025 (ECLI:NL:GHSHE:2025:114) this was the outcome. A ruling that deserves attention. 

At issue in these very extensive proceedings was which party should bear the cost of the additional work presented by the contractor as a result of modifying the design of the foundation. The contractor claimed that from a report and drawing provided with the tender, information followed regarding the structural bearing capacity of the basement floor (the thickness and structural properties) and the soil under the floor (composition/compactness). In addition, it would follow from the client's information that the 40-centimeter-thick basement floor, as part of the foundation, was also bearing down on the soil below. The contractor had based his further elaboration on that information, but in practice, according to the contractor, it turned out that the information provided was not correct and thus the contractor's execution was not realizable without additional work.

Responsible

The client put forward an extensive defense and argued that it had not violated its obligation to provide information. According to the client, the contractor as designer and builder is responsible in accordance with the UAV-GC for incorrect assumptions in the design and the contractor should not have based the assumptions it made in the foundation design around the structural bearing capacity of the floor and of the soil on the tender documents, or at least the contractor should have at least asked questions or requested further information about this in the dialogue with the client.

Expert

Based on the UAV-GC agreement, the Court first of all ruled that the contractor is in principle responsible for the correctness of the design and for its execution. The principal, as the client, is responsible under the law and the UAV-GC for the incorrect data it provided, unless the contractor should have discovered the incorrectness and warned about it. For the substantive/technical discussion, the Court engaged an expert. This expert ruled that in reality the existing basement floor was not part of the foundation, was not 40 centimeters thick, but had a thickness of between 11 and 24 centimeters and did not (everywhere) bear directly on the subsoil because the subsoil appeared to have been raised with an intermediate layer of loose and disturbed soil. As a result, the premise of the contractor's foundation design (using the existing footings with additional footings on the basement floor), was not feasible without modifications such as reinforcement of the (lower) floor. 

According to the expert, a normally observant and properly informed structural engineer would have been entitled to assume, on the basis of the information provided by the client at the time of the tender, that both the footings and the floor were founded on steel and that the contractor was entitled to assume that there was virtually the same transfer to the ground at the footings as at the floor. A disturbed foundation as a result of which the load on the floor was considerably reduced, a normally attentive and properly informed structural engineer, partly on the basis of his/her experience, did not have to expect. With that, there was also no warning opportunity or duty.

Misinformation

The Court finds the expert's findings - despite the client's firm and numerous objections - understandable and convincing and adopts the expert's opinion. Accordingly, the Court declares as a matter of law that the client provided incorrect information to the contractor during the tender phase and that the client is obliged to bear the consequences of the information it provided incorrectly. In that context, the client must compensate the contractor for the cost increase of €1,010,698.00 excluding VAT.