A contractor may be not allowed to claim payment for works – even if the acceptance certificates have been signed – where the contractor is unable to prove that it in fact completed the work by reference to as-built documentation and other direct evidence. It may also be even more difficult to claim payment for additional works as not all unforeseen costs of the contractor trigger the client’s duty to provide additional payment. 

The Supreme Court is guiding lower courts to increase control over the recovery of payment for works under construction contracts. This trend is particularly evident in cases involving government customers and the use of budget financing.

In one case, the Supreme Court completely rejected all of the evidence of the performance of works presented by the contractor, ranging from acceptance certificates signed by the client to correspondence between the parties and the client’s formal acknowledgement of debt. At the same time, since the contractor was unable to present primary and as-built documentation for the works performed, the court could not order the expert study in order to determine the scope and cost of the works.

As for disputes relating to additional works, the Supreme Court has clarified that courts should always examine the reasons why the contractor exceeded the agreed contract price. Even where a court-appointed expert confirms that the contractor has performed works that were not envisaged in the original project, the court should determine whether such works can be legally classified as “additional works” and what caused the need for their performance. For example, if the additional works were caused by the contractor’s delay in construction, the contractor is not entitled to demand payment for such works. The contractor is also not entitled to argue that ordinary auxiliary works such as the provision of temporary electricity and site fencing are additional works and require separate payments, unless the contract expressly provides otherwise.