1. Introduction

Neither party to a contract is able to fulfil all contractual obligations without the assistance of contract assistants.

The developer will normally have contracted several people to design and prepare a preliminary project as the basis for a tender competition where the purpose is to contract a general contractor. In an execution center, the builder's designee will also continue with detailed design after the contractor is contracted.

However, it is not the builder's contract assistants who are referred to in the standard contract provisions on contract assistants, but the contractor's.

In turnkey contracts, the general contractor will need several categories of contract assistants, namely architects, consulting engineers and other designers, as well as subcontractors in various fields. For this reason, the term is used “contract assistants” in NS 8407 paragraph 10.

In the execution contracts, on the other hand, it is not common for a contractor to need a designer, so the term is used “subcontractors” in NS 8405 paragraph 15 and NS 8406 paragraph 12.

To simplify the manufacturing process a little, contract helper is also used as a term for subcontractors.

2. Overview of the rules

3. The responsibility of the contractor to the builder does not change

Common to all three standard contracts is that the contractor's contractual liability to the builder does not change with the use of contract assistants.

The work performed by the contractor's contract assistants is deemed to have been carried out (and designed) by the contractor himself.

This follows from NS 8407 paragraph 10.1, first paragraph, NS 8405 paragraph 15.1, first paragraph, and NS 8406 paragraph 12, first paragraph.

4. Obligation of the contractor to notify the builder

It also follows from all three standard contracts that the contractor has an obligation to notify the builder of which parts of the work he wants to have a contract assistant perform, and which contract helper he wishes to use.

Reference is made to NS 8405 paragraph 15.1, second paragraph, NS 8406 paragraph 12, second paragraph, and NS 8407 paragraph 10.1, second paragraph.

When the builder receives such notification, the builder has the opportunity to request that information about the contract assistant be transmitted “economy, financial position, capacity and technical competence”, cf NS 8405 paragraph 15.1, third paragraph and NS 8407 paragraph 10.1, third paragraph.

‍The fact that this type of information is requested is in order to be able to decide on the contractor's desire for the contract assistant in question in a prudent and factual manner.

5. The builder can refuse the contractor's choice of contract assistants

Furthermore, it follows from NS 8407 paragraph 10.2, first paragraph and NS 8405 paragraph 15.2, first paragraph, that the builder may refuse the contractor the use of a contract assistant that the contractor wishes to use.

Such a rejection must be sent by the builder “without undue residence” and no later than 14 days after receiving documentation of finances etc to the extent requested by the builder.

The deadline is set for the builder to be given sufficient time to conduct a proper review and then assessment of the submitted documentation.

If the builder refuses without having a factual reason, the contractor may treat the builder's refusal as if there is an order for change.

In such a situation, the ordinary rules on the extension of the deadline and the adjustment of remuneration in the standard contracts apply.

In this case, the contractor must notify the builder of this “without undue residence” etc.

NS 8406 paragraph 12 does not contain provisions dealing with the builder's refusal of the contractor's choice.

Still, it says the contractor must notify the builder before contracting a contract helper.

For it to have any purpose to send the builder such information whatsoever, and before contracting, speaks volumes that the builder has the right to refuse. In that case, the condition must be that he has a factual reason.

6. Contract assistants specified in the contract

Often, the contractor's contract assistants are named in the contract.

This will be the case when the developer has asked the contractor to provide the names of the contract assistants who wish to be employed in, for example, specific fields of expertise in his offer.

Once the contract is concluded, the contractor's offer will be included as part of the contract documents.

In those cases, the situation is essentially the opposite when it comes to the replacement of the contractor's contract assistants.

The builder will then have approved the contractor's contract assistants. Perhaps the situation was that the contractor was chosen precisely because he offered the builder a good team of contract assistants to fulfill his contractual obligations.

For such reasons, it follows from NS 8407 paragraph 10.3 that the contractor cannot replace contract assistants “without the builder's approval”.

The same follows from NS 8405 paragraph 15.3, last paragraph and NS 8406 paragraph 12, third paragraph.

From this main rule, exceptions are made if the desire for replacement is “factually substantiated” in the contract helper's relationship, cf NS 8407 paragraph 10.3, last paragraph, NS 8405 paragraph 15.3, last paragraph and NS 8406 paragraph 12, last paragraph.

What is “factually substantiated” must be considered concretely.

If the financial position of the contract assistant is dramatically reduced so that the contractor is unable to meet its contractual obligations, or must be expected to fail to do so, there will usually be a factual reason.

Another example is that key people at the contract assistant quit and this becomes unable to provide qualified personnel.

A third example may be that the contract assistant constantly acts in violation of the SHA regulations on the construction site, thereby exposing personnel to danger. If he acts directly detrimental to the contractor's progress by not complying with his coordination obligation or in other ways creating challenges for other, subordinate contractors, the contractor will have factual grounds for replacing the contract assistant.

Most often, you will also have relatively good documentation for such critical matters. Either way, it's hard to envisage that a builder would object to replacement in such cases.