Självkostnadsprincipen i kommersiella entreprenadavtal : Kostnadsredovisning och ersättningsbestämning i entreprenader som utförs på löpande räkning enligt AB 04 och ABT 06

Sammanfattning: Commercial construction contracts often concern extensive and complicated projects. Consequently, the costs of executing a contract can reach a significant amount. It is thus not unforeseen that the compensation calculation may become a contentious issue between the parties. The prime cost principle (självkostnadsprincipen) as stated in widely utilized standard agreements AB 04 and ABT 06 6:9–10, is of great practical importance in the majority of constructions regulated by these standard agreements. The prime cost principle applies when construction work in its entirety is carried out on cost plus contract (löpande räkning), but is also actualized in a contract where another form of compensation has been agreed on – that is when contract variations occur. Despite this, several uncertainties regarding the interpretation and application of the prime cost principle can be addressed. The thesis aims to investigate how the prime cost principle in AB 04 and ABT 06 6:9–10 should be interpreted and applied. The overarching questions concern what is required for a cost to be reimbursable according to the prime cost principle, which requirements the rule sets up regarding the contractor’s cost reporting and what possibilities the employer has to object to the contractor’s compensation claim when the costs has been proven. The compensation calculation consists of two components. Firstly, full compensation for the cost price (självkostnaden) and secondly, a contractor’s fee (entreprenörarvode) which is calculated as a percentual surcharge upon the cost price. In order for the contractor to have his costs reimbursed, it is initially required that they are attributable to the construction at hand. Naturally, the costs should not have already been compensated by other means, such as being included in the contractor’s fee, the hourly rate or another payment practice.  An issue examined in the paper regards the employer’s right to inspect the contractor’s originals of vouchers (originalverifikationer). Results indicate that a contractor’s obligation to provide the employer with vouchers should not be too strictly interpretated. Vouchers should be provided upon request and the contractor is most likely not obliged to report his costs on his own initiative. The quality of the given information should provide the employer with the opportunity to evaluate the contractor’s compensation calculation without unreasonable effort. The critical factor for the right to compensation is whether the contractor has, by procedural means, proven his costs. This could be accomplished by other methods than through the provision of originals of vouchers. The prime cost principle should in this regard merely be considered a duty of disclosure, meaning that the court can issue an order which obliges the contractor to submit the auditable material he possesses. Additionally, it is probable that disloyal and negligent practices may result in a breach of contract which could give rise to liability for damages. Another matter concerns the employer’s opportunities to object to the requested compensation when the costs have been proven and the obligation to provide vouchers has been realized. When the prime cost principle has been agreed on, the employer's possibilities of objection regarding the price seems to be the duty of care as stated in AB 04 and ABT 06 6:10 item 1, the procurement rule in AB 04 and ABT 06 6:10 item 3 and the adjustment rule in Section 36 of the Swedish Contracts Act. It is argued that Section 36 of the Swedish Contracts Act has a highly restricted applicability when the compensation is regulated by to the prime cost principle.  The rule on procurement can perhaps be considered a clarification of the duty of care. It is likely, according to both rules in the standard agreements, required that the contractor can be considered negligent to be liable for damages. To assess whether the contractor has failed in his duty of care, the requirements of professionalism and loyalty are important components.  The prime cost principle in its pure form can be considered to manifest an uneven distribution of risks, to the detriment of the employer. Due to this risk, in combination with the insignificant evidentiary possibilities that the employer in general has, it is argued that the burden of proof might be adjusted to become more beneficial to the employer. Whether such a solution could be considered as applicable law is yet to be determined.