Any contractor who fails to take into account an identifiable presence of unexploded ordnance must bear the additional costs themselves. This was the ruling recently handed down by the Higher Regional Court of Schleswig.
A shipping company put out a tender for the repair of a ferry jetty in an island’s harbour that had been damaged in an accident. The specifications guaranteed the absence of explosive ordnance only within the area of the foundations of two bridge spans. Outside this area, such a guarantee was expressly not provided. An accompanying ground investigation report also indicated the presence of stones, boulders and metal parts in the harbour seabed. A specialist hydraulic engineering firm was awarded the contract at a detailed lump-sum price of EUR 850,000.00 net. It intended to anchor a pontoon and a lifting platform on piles outside the spans and to carry out a ferromagnetic survey of the seabed beforehand. In May 2019, it encountered steel, reinforced concrete and construction rubble over a large area. It was forced to switch to a complex visual survey using lifting equipment. The contractor reported delays and additional costs. The shipping company immediately rejected both claims. In Supplement No. 1, the contractor later demanded EUR 1,108,415.02 net. The Itzehoe Regional Court dismissed the additional costs claimed by the contractor in the supplement.
The Schleswig-Holstein Higher Regional Court dismissed the appeal. Mere difficulties in carrying out the construction work do not constitute a change in scope of work giving rise to a claim for additional remuneration. There is no legal principle according to which the client is ‘liable’ for the ground conditions.
A claim under Section 2(5) and (6) of the VOB/B failed due to the absence of an instruction from the client. The survey for explosive ordnance outside the spans was already part of the contractual scope of works. Furthermore, the shipping company had expressly rejected the additional costs. An adjustment of the lump-sum price pursuant to Section 2(7) of the VOB/B in conjunction with Section 313 of the German Civil Code (BGB) was also ruled out. The burden was recognisable and foreseeable. The functional specification left the choice of construction method to the contractor. In doing so, the client also bore the associated risk.
The decisive factor is whether the ground conditions were apparent or whether the client’s information was incomplete or unclear. Information on the building site and the presence of unexploded ordnance forms part of the ‘information on the building site’. In the absence of such information, the tenderer may assume normal conditions. In this case, however, the information provided was unambiguous. Furthermore, the working platform was merely a temporary structure and not the foundation of the actual building. Nor did Section 2(8) of the VOB/B provide any assistance: a service provided without a contract is not remunerated if the contractor is aware of the client’s contrary intention. This was the case here due to the rejection of the additional costs.
Contractors must carefully evaluate tender documents and accompanying expert reports before submitting a tender. This applies in particular to areas which they themselves intend to use for temporary structures such as pontoons, scaffolding or work platforms. If information regarding unexploded ordnance or obstacles is unclear, tenderers should request further investigations before submitting their tenders or factor the risk into their pricing. A notification of obstruction alone does not constitute grounds for a claim for remuneration. If the client rejects additional costs, the contractor should insist on a clear instruction or a supplementary agreement before carrying out the additional work. Clients should note: those who clearly describe the building site and the presence of unexploded ordnance, and explicitly demarcate risk areas, can effectively fend off claims for supplementary payments.
(Higher Regional Court of Schleswig, judgement of 8 July 2026 – 12 U 39/25)
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