Självkostnadsprincipen enligt AB 04

Sammanfattning: Construction Contracts are not regulated by Swedish law. Instead, the construction industry uses standard agreements. Construction Contracts usually state that compensation shall be paid as a fixed award or performed on an open account basis. The Swedish standard agreement AB 04 regulates compensation performed on an open account basis in AB 04 chapter 6 paragraphs 9-10. AB 04 chapter 6 paragraph 9 states that compensation is paid for costs according to a specified list. Contractor fees consisting of costs for central administration and profit are then calculated as a percentage increase on the other costs. The provision does not describe the costs that entitle compensation in detail even though some guidance can be found in the form LR06, Compensation for contracted work on an open account basis. If the parties do not specifically agree on the costs that are to be re-imbursed, disputes may arise. According to AB 04 chapter 6 paragraph 10, the contractor has the obligation to perform the work so that the client receives the best technical and financial outcome. The contractor’s duty of care is to be defined as an obligation of care and not an obligation to provide a specific result. Therefore, the contractor must have been negligent in order for the client to avoid payment liability as regards the duty of care. The application of the provision is also governed by rules regarding discounts, procurement, and the client’s right to review the contractor’s accounting. According to previous practise the client has had the possibility to question the price through a retrospective assessment of whether the price is reasonable. That assessment is based on an analogous application of paragraph 45 of the Swedish purchase act. In the case T 10408-14, the Court of Appeal decided that an assessment of whether the price is reasonable cannot be done if the agreement contains the provision in AB 04 chapter 6 paragraph 9. Paragraph 45 of the Swedish purchase act is only applicable when the price is unregulated, but the use of the provision means that the price follows from the agreement. Compensation on an open account basis according to AB 04 has received a lot of criticism because the client carries almost all risks.