Special court ruling: Implenia Construction lost 66 million Swiss francs due to a miscalculation
BLS Rail is renovating the Weissenstein tunnel and has signed a construction contract with Implenia. But now an Austrian company is fighting to put on display in court.
The Weissenstein Tunnel on the Solothurn-Moutier railway line collapses. The tracks are currently protected from falling stones by protective nets. Appropriate replenishment should start already in June. However, this was delayed due to the legal process which has now led to a special ruling.
The BLS rail operator did not properly award the construction contract. It was awarded the contract to the Zurich-based construction company Implenia for 66 million francs. In second place in the public call for tenders, a bid was received from Austrian construction company Bor, in cooperation with Fritus, specialist in the Aargau tunnel. This bidding consortium has filed a complaint against Implenia’s arbitration award and has now been won by the Federal Administrative Court. As a result, you automatically get a second-place multi-million dollar contract
Implenia gambles away
Judgment is special because the little thing determines where millions go. The controversial point is the proportion of subcontractors. In tender, it was defined as a requirement that a maximum of 35 percent of the work be performed by subcontractors. This percentage should not be so high that it remains clear who is responsible for the construction site and who is responsible for any damage.
Implenia offered a complex network that includes not only subcontractors, but also subcontractors of subcontractors, the so-called subcontractors. There was also a sister company of Implenia, which was converted into a subsidiary during the legal dispute. Who can still track? In any case, Implenia lost itself and gambled on the account.
The judges are picky about that
The Federal Administrative Court recalculated the percentage of subcontractors and reached a conclusion where the decimal places are relevant: 35.69 percent of the services that Implenia provides will be performed by subcontractors. That’s 0.69 percent more than necessary.
Judges are tough on this very important point. If a standard is specified with a maximum of 35 percent, then everything above is too much. Therefore, the Zurich construction company is now losing 66 million francs. BLS, which has always stuck with Implenia, is losing money because the Austrian offer is more expensive.
The last word may not have been pronounced yet. Implenia can appeal the decision to the Federal Supreme Court. Until the matter is finally decided, the four-kilometer tunnel must continue to be secured with temporary measures.