Additional and reduced work

Additional and reduced work

In many cases, the contractor and the client agree on a fixed contract sum. This means that the contractor performs specific work for a fixed amount. This work may, for example, be listed in an approved quotation, an order confirmation, or a contract for services. When the contractor begins carrying out the work, they may be required to perform certain tasks that are not included in the quotation. In that case, this is referred to as additional work. Furthermore, the situation may arise where the contractor is not required to perform certain tasks after all. When the foregoing applies, this is referred to as reduced work. Additional work occurs in many projects. Often, a contractor will have to perform extra work beyond what was determined in advance. It may also happen that the client modifies the design, requiring the contractor to perform additional work.

Often, the contractor and client agree that a quotation for additional work may be drawn up and accepted, either in writing or orally. The UAV 2012 includes a separate provision regarding additional and reduced work. Furthermore, a provision concerning additional work is included in the Dutch Civil Code.

Questions regarding additional or reduced work? Contact us.

The contractor's duty to warn regarding additional work

The legal essence of additional work is found in Article 7:755 of the Dutch Civil Code. This stipulates that the contractor may only claim a price increase for an addition or alteration to the work desired by the client if he has notified the client in a timely manner of the necessity of that price increase. There is one important exception to this duty to warn: the so-called "unless" clause. A warning is not required if the client should have understood the necessity of the price increase on his own initiative.

The Supreme Court clarified this rule on July 1, 2022. For the application of the 'unless' clause, it is not required that the client also had insight into the extent of the price increase; it is sufficient that he knew or should have understood the necessity of the price increase. It therefore remains advisable for the contractor to always notify the necessity of a price increase in a timely and demonstrable manner and, where possible, to make agreements in advance regarding the amount of additional work. We advise both contractors and clients – from international construction conglomerates to contractors with just a handful of staff – on whether a valid warning has been given and whether additional work is being charged justifiably.

Additional work, target price and the reasonable price

When the parties have not agreed on a fixed amount for the price increase, a reasonable price is due pursuant to Article 7:752 of the Dutch Civil Code. If the parties only agreed on a target price when concluding the agreement, that target price may in principle not be exceeded by more than ten percent. The contractor may only charge more than ten percent above the target price if he has warned the client as early as possible of the likely further overrun, so that the client can still limit or simplify the work. This provision is of a dispositive nature: the parties may deviate from it in their agreement. The contractor's duty to inform and warn is interpreted strictly, particularly with regard to consumers.

Reduced work and the final settlement

The Dutch Civil Code does not provide for a separate general regulation regarding reduced work—work that was included in the contract price but is ultimately not performed. Often, recourse is had to the provision for partial termination, whereby the client remains liable for the full price reduced by the savings the non-performance yields for the contractor. This can lead to a dispute regarding the amount the contractor actually saved and the margin to which he is entitled.

If the UAV 2012 applies, additional and reduced work are offset against each other in the final settlement. A special rule is found in paragraph 35 of the UAV 2012: if the final settlement shows that the total reduced work exceeds the total additional work, the contractor is entitled to an amount equal to ten percent of the difference between those totals. This rule is intended to compensate the contractor for the lost margin resulting from a net reduction in the scope of work.

Settlement of additional and reduced work under the UAV 2012

If the Uniform Administrative Conditions 2012 are declared applicable to the construction contract, Chapter X contains a detailed system for the settlement of additional and reduced work. Pursuant to Section 35 of the UAV 2012, settlement takes place in the following cases, among others:

Amendments to specifications (paragraph 36), where the client or management amends the specifications.
Deviations from the amounts of provisional sums (paragraph 37): estimated amounts for components whose price has not yet been fixed.
Deviations from estimated quantities (paragraph 38).
Deviations from reimbursable quantities (paragraph 39), which are settled on the basis of the actual quantities processed.

In practice, provisional sums and adjustable quantities are a common source of dispute between contractor and client. Which regulations apply—the statutory framework under Book 7 of the Dutch Civil Code or that of the UAV 2012—strongly determines the outcome. We assess for you which regime applies and what that means for your position.

Common disputes and burden of proof

In practice, disputes regarding additional and reduced work often revolve around the same recurring questions. Does this actually constitute additional work, or was the work already included in the original contract? Did the contractor warn of the price increase in a timely and clear manner? What amount is reasonable when no fixed price has been agreed upon? And how much did the contractor actually save in the case of reduced work? The contractor claiming additional work generally bears the burden of proof that the order for the additional work was given and that the duty to warn was fulfilled. Proper written documentation – in order confirmations, construction reports, and emails – is therefore of great importance.

Our lawyers and in-house counsel litigate these matters before the ordinary courts and, if agreed upon, before the Arbitration Board for Construction Disputes. We do so for clients and contractors of varying sizes, from an international group to the baker on the corner having his premises renovated.

MKB Juristen assists you with additional and reduced work

Additional and reduced work is part of our broader specialization in Construction Law. Within this, we also advise on related topics such as purchase and construction contracts, liabilities for defective construction , and the right of retention.

At MKB Juristen, lawyers and in-house counsel work together in mixed teams. This allows us to combine the litigation experience of the legal profession with the practical, commercial perspective of the in-house counsel. Whether you are disputing a large contract sum or receiving an invoice for unexpected additional work, we will work with you to determine the best course of action. Do you have questions regarding additional or reduced work? Please feel free to contact us.