This judgment goes straight to the core when it comes to the difference between an execution centre and a turnkey contract. In execution centres, the starting point is that the builder sets specific requirements, while in turnkey contracts the starting point is that functional requirements are set.
In this case, the question was whether the builder was entitled to a savings as a result of the general contractor — in his detailed design — coming up with a solution that involved less excavation work than the builder had originally envisaged.
In the competition basis, the developer (a municipality) had described volume replacement down to 3 meters and backfilling with light masses such as glass pore. The general contractor found a solution where they only dug down to 1.6 meters in order to save money.
It was not disputed that the function, which was to avoid sentences, was fulfilled.
The district court concluded that digging down to 3 meters was not a specific requirement. The requirement was that one should avoid unwanted phrases, and it was a feature requirement.
Consequently, the builder lost in the district court with the consequence that the general contractor was entitled to his remuneration without reduction.
The Court of Appeals agreed with the district court.
The judgment shows how the Court of Appeal applies the principles of interpretation resulting from the ordinary contract law, and the interpretation provisions of NS 8407.
The starting point is that agreements between two professional parties must be interpreted objectively, and especially where the contract is designed by one party (here; the builder). Any ambiguities must also be interpreted in the disfavor of the person who had the urge to express himself more clearly, namely the builder.
If the builder had intended for the general contractor to receive a settlement for the quantities produced at an agreed unit price, the builder could have allowed this to be clearly expressed in the tender and competitive basis. This could have been resolved even if the contract form as such was a NS 8407 contract, but such was not the contract to be understood.
It was also stated in the contract that the builder's calculations for mass replacement were preliminary, and it provided that the general contractor had to design the final solution in detail.
The court also relied on NS 8407 paragraph 14.6 where it is stated that the general contractor has “right to choose (...) execution and solution” as long as he meets the functional requirements of the contract.
