Contractors and installation engineers are all contractors from a legal perspective

There is an essential similarity between ‘ordinary’ contractors, who work in construction and civil engineering, and installation engineers. This similarity, which usually comes as a surprise for installation engineers, is because both groups are considered contractors by law. This is because the activities of installation engineers and construction contractors meet the requirements of the legal definition of contracting work as set out in Article 7:750(1) of the Dutch Civil Code:

Contracting of work is the agreement whereby one party, the contractor, undertakes to the other party, the contracting party, to create and deliver a work of a material nature outside employment, for a price in money to be paid by the contracting party.

For example, the building contractor constructs a school complex and, in the process, creates a work of a material nature, and of course, a ventilation duct as well as other installations are just as much material as the building itself. The distinction becomes clear when you consider the installation consultant. Their work will eventually lead – thanks to the installation engineer’s efforts – to a work of a material nature, but the installation consultant does the design work. These design activities do not fall under contracting, but under the contract for the provision of services.

But the comparison ends with this legal agreement between the installation engineers and building contractors. This is clear from the type of disputes that building contractors generally have with their contracting party, because these usually concern traditional construction law disputes, such as:

  • defects
  • delivery
  • contract variations
  • delays and the consequent losses
  • etc.

Installation engineers are in a dependent position

Installation engineers often encounter other problems and these are related to their position in the construction process. Typically, installation engineers are highly dependent on other construction parties for the progress of their work. This might be the metal stud wall fitter, the steel constructor or the concrete supplier: these parties will do their work first – or must at least cooperate – because the installation engineer cannot start their work until these other tasks are completed. What one might call the ‘construction body’ would be missing.

It is therefore hardly surprising that some of the disputes installation engineers have can be explained by their heavy reliance on the progress made by other parties. These include poor coordination, subcontractors out-of-sync with the master plan, poorly accessible sites, planning changes, downsizing the work, over-staffing at the site and so on.

Inefficiencies, losses due to delays and impracticability of the design

The financial discussion resulting from this position in the construction process mainly focuses on inefficiencies and losses due to delays. These include overruns on budgeted hours because additional effort is required. Examples include making the place of work accessible or when the scheduled hours cannot actually be worked because a previous step is not complete, such as too few metal stud metres fitted in which ducting is to be installed.

A second main group of disputes for installation engineers concerns the impracticability of the design. These discussions arise more frequently, given the heavy design component that installation engineers have begun to take on in recent years. In some cases, the architectural design has not given sufficient thought to the actual space required by the equipment, and whether it will actually fit above the ceiling. Compared to 25 years ago, these installations have become much larger and require more space. These days, more often than not, the installation component dominates the entire construction work.

As a result, installation engineers regularly encounter architectural and/or structural obstacles that make it more difficult, or even impossible, to design and produce the intended installation within the architectural constraints.

In a more traditional setting, where the installer merely works out the design in detail and implements it, discussions tend to be about:

  • architectural and/or construction obstacles, also known as ‘run-ons’ or ‘clashes’
  • interpretations of the specifications
  • the number of engineering rounds
  • no or slow responses to requests for clarification or verification
  • delay in updating the data requirements schedule
  • additional work
  • etc.

In addition, these discussions regularly feature losses due to delays, including inefficiencies.

Other types of installations also affected

Besides the traditional work such as lifts, electrical and mechanical installations, our installation engineering clients are also involved with technical installations for thermal storage and building control systems. They operate in the following sectors:

  • non-residential & residential construction
  • infrastructure
  • oil, gas & petrochemicals
  • offshore

In addition to the traditionally common contracts – STABU, UAV 1989 & 2012, UAVTI 1992, ALIB 1992 and 2007 – installation engineers are increasingly facing design challenges and are obliged to work with design & construct contracts.

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According to our clients, we understand how the construction industry works. Even the technical aspects. They feel supported and helped and consider us to be the specialist in civil construction law.

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Van 't Hek Groep

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Vestigingsdirecteur Van Wijnen Dordrecht

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