After 20 years the new general Uniform Administrative Conditions - UAV in short - for the implementations of works has been formally defined. Because of the implementation of the Civil Code (1992) and jurisprudence the revision of the UAV (1989) in 1992 was necessary. A new fundamental in the contract or subcontract between contractor and client has been put into place with the formal defining of the new conditions. Despite the fact that the renewal of the UAV came into being because of a workgroup - of politicians, professors and industry partners - it has no political support.
That is to say, Ministers Melanie Schultz (Infrastructure and Environment, VVD) and Hans Hillen (Defence, CDA) refuse to sign the new conditions. They claim that they can not sign the UAV 2012 because of the second paragraph of section 12:
-
First of all because of the unchanged conditions about the liability of the contractor. The paragraph states that the contractor has limited liability for hidden defects - that emerge despite close inspection. In the case of a hidden defect the contractor has to announce the defect within a period of 5 years after completion. A consequence of this is that if a hidden defect is noticed after 5 years, the contractor can not be blamed. In the case of a procedure on a hidden defect - noticed after at least 5 years -the decision will end negatively for the plaintiff because of this condition.
-
Secondly because of a change in the ergotism of hidden or serious defects. In the new condition the client needs to make it plausible that a hidden or serious defect was due to a shortcoming on the part of the contractor. With this the presumption of guilt towards the contract as in the UAV 1989 is gone. The consequence is that the client needs to inspect the construction activities more carefully for the purpose of ergotism. Without inspection a hidden defect can not be noticed by the client, after all.
A conclusion can be drawn that there is a shift in the bearing of responsibility, the onus and the maintaining of close inspection on the working activities. By removing the presumption of guilt and the change of the responsibility conditions the position of the client is pressurized in disputes. He is getting more responsibilities because of this condition and needs to inspect the building activities more closely. Despite the fact that these conditions matter little for projects of Rijkswaterstaat this data forms the basis for the position taken by the ministers. Because the contractor has the most to gain with the new UAV regarding liability and notice of fault after delivery, the ministers see the new condition as a potential risk when entering into a building contract or other contract.
If this condition would be added into the UAV 2012, there is a chance that there could no more agreement between contractor and client anymore. The consequence is that the UAV is losing support and conflicts could arise. Think of the setting up and drawing up of different demands and conditions up to the cancellation of projects. The majority of the industry shares these concerns. That is why the industry has filed in for a review request at the institute for construction law. In it they state that under these conditions they can not reach an agreement and therefore they request the institute to review the conditions. All the more reason for the ministers not to sign the UAV 2012.
And what do you think? Does UAV 2012 need to be reviewed or do you think you can work with this? Let us know.
Attachments: