The above adopted set of rules and ABT 93 also contain rules that prescribe that variations must be agreed in writing between the parties and that requirements in consequence of changes must be made in writing. However, there is no tradition in Danish construction law to attribute a preclusive effect to agreed formal requirements. In arbitration court case law, there is a clear tendency that preclusive rules and formal requirements are not maintained, but instead are construed as laws of evidence. Ergo, such that the formal requirements of section 14 of ABT 93 are only ascribed evidential importance.
In particular, the employer’s payment for variations on an informal basis will form the basis of considering formal requirements to have been deviated from. This is seen, i.a., in judgment Kfe 2001.203 VBA, in which one payment on an informal basis was considered to be adequate. In this case, a contractor could not present a written agreement for the extra work/variation, but was awarded payment for this with reference, i.a., to the fact that the employer had previously paid one claim on an informal basis.
Kfe 2001s.203 VBA gives the impression that only a very modest deviation from the formal requirements on the part of the employer can lead to the approval of all subsequent additional payments for extra work entered into on this basis. In this case, the concluded standard conditions stated:
“Extra work must be invoiced separately with reference to a work order or other attested documentation”
And
“Extra work must be agreed and attested by us in order that it can be considered accepted. This must be done before initiating work. Otherwise, any extra claim will be dismissed.”
It appears from the judgment that during the contract, the parties negotiated on several occasions whether installation of lift towers and sorting of glazing, etc., was included in the contract, or must be paid as extra work, but that no agreement could be reached to that effect. However, the defendant paid an extra bill concerning sorting.
The arbitration court held:
“.. that the plaintiff already in its offer and later during the process of the work made a clear reservation regarding extra payment for sorting and removal of frames and glazing which due to the size of the glazing has been very cost-intensive. The defendant has already paid the first invoice for this and must also pay the two other invoices totalling DKK 220,537.81 including VAT.”
In TBB2019.207, the arbitration court did not find any basis for preventing the contractor’s claim for payment with reference to the formal requirements, as the employer had not acted consistently in compliance with the agreed formal requirements concerning conclusion of agreements regarding and payment for extra work.
“The arbitration court is not satisfied that E at any time after the conclusion of the agreement has accepted that preliminary work orders should be considered maximum offers for the said extra work. Accordingly, and as BH has not acted consistently in compliance with the Joint Conditions, clause 14.4.1 regarding payment for extra work or the formal requirement for written format in connection with the conclusion of agreements for extra work, the arbitration court finds that E’s extra work in relation to price should be assessed as work performed according to invoice.”
However, there are also examples of the contractor not being awarded payment for variations with reference to the fact that the contractor could not carry the onus of proof for the construction management’s approval of the variations. In Kfe1975s.70DIV the contractor was awarded payment for some extra work notwithstanding the fact that an agreed requirement for written format had not been complied with, whereas other extra work was rejected because the contractor had failed to obtain evidence without prior approval thereof:
“Certain clearing-up operations were found to have been tacitly approved by the construction management, but after the construction management had made it clear at a site meeting that further clearing-up in addition to the description must be agreed in advance, it was found that the contractor had to carry the onus of proof for such an agreement. Statements in daily reports were not sufficient evidence.”
The fact that the employer pays for extra work on an informal basis has been stated as the reason for considering formal requirements to have been deviated from. An example thereof is a ruling of 27 November 2008 by the arbitration court, TBB2009.233, in which a contractor who had performed construction work at a number of residential properties made a number of claims for payment for variations. In this judgment, the arbitration court found that:
“Initially is should be noted that during the course of the construction, the parties have not followed the provision of the construction contract that variations of any nature could only be ordered through work orders, for which reason the defendant’s rejection of the extra claims due to missing work orders cannot be allowed.”
In a ruling by the arbitration court on 22 June 2016, TBB2016.861, the court established that several extra works must be paid for even if the prescribed procedure had, to a wide extent, not been followed in practice because:
“E prepared variation orders on an ongoing basis during the construction concerning extra work, which were not signed by the construction management or registered in the site meeting minutes, but which the municipality has nevertheless approved in a number of instances.”
The arbitration court further took into account that several of the variations were a natural element in the performance of the work and necessary to ensure the construction. Thus, in summary it can be established that an employer cannot dismiss extra work merely on the basis that formal requirements have not been complied with if the employer itself has deviated from them. In addition, it can be deducted that only a minor deviation from formal requirements during the construction can be of major importance.