Do Your Specs & Fitness for Purpose Provisions Conflict?
/After coming across conflicting specification and fitness for purpose provisions in a recent negotiation, I have issued an article that examines the Supreme Court judgment in Højgaard v. E.ON. The decision shows just how much a clause containing a purposive goal can cost a contractor and protect the contractor's employer, even where the contractor follows the specifications set out in the contract.
Although the case concerns offshore wind turbines, it is relevant to any design, construction or fabrication contract.
E.ON engaged Højgaard to design and install foundations for two offshore wind farms in the Solway Firth. The foundations failed shortly after completion. Højgaard applied the internationally recognised design standard specified in the contract but was still found liable for the €26.25M cost of repair: the requirement for a 20-year life for the foundations set out in the technical annex to the contract was found to prevail.
The article discusses what you can do to avoid a conflict, whether you are the employer or the contractor.