1. Introduction
It follows from all subcontracting standards that the subcontractor has a coordination obligation, cf. NS 8417 paragraph 21.4, NS 8415 paragraph 18.3 and NS 8416 paragraph 17.
We have written more about the duty of coordination in an article which here.
Today, it is most often the case that the builder chooses an implementation model with a general contractor, or with a general contractor. We do not often see the builder choosing a highly segmented and builder-led implementation model with many side contractors.
It will be different for total or general contractors who have to contract a number of subcontractors. It is primarily in this joint that the challenges of coordination arise.
Since turnkey contracts are also the most common, our starting point is NS 8417, but the rules are similar and therefore we also refer to NS 8415.
NS 8416 does not have its own rules for violation of the obligation to coordinate.
2. Breach of the obligation to coordinate
It follows from NS 8417 paragraph 41 and NS 8415 paragraph 35, respectively, that the general subcontractor may become liable for expenses incurred by the total/general contractor in the event that the subcontractor fails to comply with its coordination obligation.
The expenses which are to be replaced are expenses incurred as a result of “side contractors or others of” total/general contractor contract assistants “being delayed”.
In such a situation, for example, a side-arranged contractor may be entitled to an extension of the deadline as a result of the subcontractor's breach of the coordination obligation. An example of that might be that the subcontractor is obliged to complete his works within given deadlines so that others come to, but defaults as a result of misconduct.
Those affected by the misconduct will typically demand a deadline extension from the total/general contractor that bears the risk to its fellow contractors, including the subcontractor in question.
The Total/General Contractor then refuses the claim, or demands, for a deadline extension because a postponement could cause the Total/General Contractor to risk delays in relation to the builder with consequent daymulch liability.
The consequence could then be that those side contractors who are denied their claims for an extension of the deadline choose to proceed at the expense of the total/general contractor.
We have written about Forcing in Chapter 7 “Changes” and the article “Extension and extension of the deadline” and referring to this; read more here.
If several side contractors are forced to move, it is reasonably clear that the total/main contractor's total expenditure on these could be substantial. Other forms of expenditure can also be envisaged.
Either way, this implies a need to put a limit on how much financial liability the relevant (neglectful) subcontractor can be imposed.
It follows, therefore, from NS 8417 paragraph 41 and NS 8415 paragraph 35 that liability is limited upwards to 10% of the contract amount. Liability is not limited if the negligence is caused by circumstances that must be characterized as gross negligence or intent.
Considering that this corresponds to the limitation on daycare liability, it goes without saying that the responsibility can become burdensome. Today, it is probably far between those entrepreneurs who have a profit of 5% of total turnover.
It also follows from the two relevant provisions of NS 8417 and NS 8415, respectively, that if the negligence means that the total/general contractor may claim daily allowance for the same relationship representing a breach of the obligation to coordinate, then compensation for the additional expenses cannot be claimed.
