Bill of quantities beats sampling!

Approval of a product through sampling does not supersede the specifications of the bill of quantities for the product. This also applies if the client was able to recognize the deviations from the specifications during the sampling.

Decision of the OLG Schleswig of August 18, 2017, Ref. 1 U 11/16

We report on a recently published decision that gives reason to examine the requirements for sampling in construction contracts and to regulate the legal consequences of a selection or approval decision more precisely.

Initial case

Client (hereinafter “Client“) and Contractor (hereinafter “Contractor“) concluded a VOB contract for the laying of tiles in a staircase. The Contractor used tiles without ceramic surface sealing and with a different slip resistance class for the landings as opposed to the stair treads as part of the execution of this contract. This resulted in the tiles on the landings looking stained after completion and acceptance, and increased cleaning requirements. The parties had contractually stipulated that all tiles used must match each other and have the same slip resistance class. The tiles actually used, i.e. also the tiles for the landings without surface sealing, were presented to the customer during a sampling appointment and approved by him. The Contractor demanded payment of the remaining remuneration for the work. The customer counterclaimed and demanded the payment of an advance to remedy the defect.

Decision

The Higher Regional Court of Schleswig ruled that the Contractor’s performance was defective because he had laid tiles that did not comply with the agreed quality. The tiles on the landings and the steps do not match each other because they have different slip resistance class and roughness, and therefore different susceptibility to dirt.

According to the court, the sampling meeting was solely about the selection of the color of the tiles. Therefore, in the present case, the Contractor cannot rely on the fact that the Client had selected the tiles himself within the scope of the sampling appointment. Whether the difference between the step tiles and the other tiles was recognizable during the sampling is even irrelevant in the opinion of the OLG Schleswig. A Baulaie could possibly recognize a certain optical deviation of the tiles. The decisive factor, however, was that he could not recognize the consequences in use without being informed by the expert contractor.

The Higher Regional Court of Schleswig also emphasized that the Contractor could not rely on the price specified in the invitation to tender. It would have been incumbent on him to inform the customer about the advantages and disadvantages of ceramic sealing. Only then would the AG have been able to make a sensible decision as to whether to choose the tiles actually presented or to request higher quality tiles at a higher price.

Practice Notes

The decision of the Higher Regional Court of Schleswig makes it clear that the agreed quality of work is generally not determined or changed by the specifications in a sampling appointment. If the parties nevertheless wish to achieve that a sampling to be carried out supersedes the specifications of the bill of quantities, this must be clearly taken into account when drafting the construction contract. For example, wording in the specifications such as “…according to sampling” can be selected for this purpose. Even this brief addition makes it sufficiently clear that the sampling carried out by the Contractor is intended to concretize the specifications of the bill of quantities and therefore takes precedence over them. If the bill of quantities is designed accordingly, it is sufficient at the sampling date that the CL was able to recognize all deviations from the bill of quantities. Further clarification of the Contractor is then not required (see OLG Bremen, judgment of March 16, 2012, Case No. 2 U 94/09). It therefore seems advisable for the Contractor to provide information in appropriate situations about the differences between certain products or makes, for example by providing data sheets or other manufacturer information, and to document this information.