1. Introduction

In most construction projects, situations arise where the contractor notifies, and later demands, a deadline extension. The standards therefore have provisions governing such situations, and that is the topic of this article.

These provisions may also apply if the developer demands an extension of deadlines for his deliveries or his participation, but we do not take the space to describe this situation in particular.

As is known, the contractor's deadline is daymulch. The daily mulch can become very burdensome for a contractor as the amount has a direct consequence for the contractor's bottom line.

The deadline extension rules are therefore very practical and they are central to any construction project.

2. Overview of the rules

We find the provisions on deadline extension in NS 8405 paragraph 24, NS 8406 paragraph 22 and NS 8407 paragraph 33.

Below we have prepared a matrix showing which provisions belong to this topic, and where in the standard contracts to find them.

As before, we start from NS 8407 since this is the most widely used contract standard today. We do not deal with the two topics dealt with in NS 8407 paragraphs 33.2 (builder's claim for deadline extension) and 33.3 (force majeur).

Although the starting point is NS 8407, we try, as otherwise, to make the most comprehensive treatment possible, including references to NS 8405 and NS 8406.

3. Main/general contractor claims for extension of deadline due to the circumstances of the builder

In order for a deadline extension to be required, two main conditions must be met.

First, the progress of the total/general contractor must “hindered” and second, the obstacle must be due to conditions the builder has the risk of.

In NS 8407 paragraph 33.1, several types of obstacles are listed that may entitle the contractor to claim an extension of the deadline. These are listed in the letters a, b and c.

The letter a refers to changes, and we have dealt with this in the article “Changes and irregular changes”.

In paragraph b, reference is made to “delay or failure of the builder's services pursuant to paragraphs 22, 23 and 24”.

We have written articles on several of these topics under the category “Builder's benefits” which you can read more about here.

However, we mention that it is “Builder's complicity” (paragraph 22), “The risk of conditions at the ground” (paragraph 23) and “Builder's choice of solutions and other engineering” (paragraph 24).

Corresponding provisions are found in NS 8405 and NS 8406, as can be seen from the matrix above.

Finally, in NS 8407, paragraph 33.1 (c), there is a clause in which it is stated that the general contractor may also demand an extension of the deadline if progress is hindered as a result of “other conditions the builder has the risk of”.

A similar determination is found in NS 8405 paragraph 24.1 and NS 8406 paragraph 19.4, first paragraph.

It falls far too far to go into all types of such relationships.

4. Notice of deadline extension

It follows from NS 8407 paragraph 33.4 and NS 8405 paragraph 24.4 that the total/general contractor must notify the builder “without undue residence” even if one cannot make a specified claim.

In other words, the total contractor must notify that he has been, or will be, hindered in his progress, even if it is too early to say anything about the length of the deadline extension that he will claim as compensation.

If you do not notify within the deadline (“without undue residence”) It follows from NS 8407, paragraph 33.4, that the requirement for an extension of time is lost. The same applies according to the provision of NS 8405 paragraph 24.4, second paragraph.

In this regard, we remind you of the conditions for the provision of notifications about which there is a separate article, read more here.

NS 8406 does not contain exclusionary provisions and, accordingly, it is sufficient for the contractor to notify the builder “within a reasonable time”, cf NS 8406 paragraph 19.4, second paragraph. For the same reason, the provision is silent on the consequence of non-compliance with the deadline “within a reasonable time”. Claims are not lost on deadline in NS 8406 contracts.

5. Calculation of deadline extension

In NS 8407 paragraph 33.5 and NS 8405 paragraph 24.5, provisions have been introduced which, to some extent, specify how to calculate the number of days of deadline extension.

It is understood that the extension of the deadline “must correspond to the effect on the momentum” the current conditions “has caused”.

If the extension of the deadline has the consequence that the works have to be shifted to, for example, another season, this could be the consequence.

A not impractical example is work in the final stages such as the paving of courtyards and supply roads, the works of a landscape architect, etc. If the winter is particularly cold, the casting works may also have to be shifted to a milder season, but it usually takes quite a bit before something like this happens.

Further to this, we must highlight the second paragraph of the provision, which states that the parties have a loss limitation obligation.

The contractor shall try to “Preventing and Limiting Harmful Effects” as far as this can be done. At the same time, the parties are obliged to work together to make the deadline extension as short and non-intrusive as possible if possible.

If we start from the example of paving, a collaboration can be based on the fact that the main/general contractor still paves the asphalt in the autumn, but that the developer accepts the additional wear and tear applied to the asphalt as a result of the road being used as a construction road for a possibly shorter period until the takeover.

Whether the example is perceived as good by all parties is not given, but the point is that the standard provision encourages the parties to cooperate. You have to be pragmatic and find solutions.

In NS 8406 paragraph 22.5, it states, inter alia, that the parties shall: “seek to reach agreement on the deadline extension”. If such agreement is not reached, the extension of the deadline shall: “correspond to the impact on the momentum”

In practice, the calculation of the deadline extension creates many challenges.

In a good number of cases, building conditions will not hinder progress at all. None of the work operations of contractor lie on the critical line, there are a number of alternative attack points that do not require special preparation and the work in alternative attack points can be carried out with the same workforce. The conditions that delay the contractor in a place will therefore be able to be dealt with in parallel with the contractor working in these areas.

Contractor will have a “certain duty” to reschedule their work operations in this way, but there is a tolerance limit to how extensive this duty is. In the example we have pointed out some moments that must be taken into account, and there are certainly several factors that must be included in a real situation.

The counterpart is where the contractor's production is located on the “critical line”. Any obstacle regardless of location has the consequence that other work tasks are hindered. In that case, even minor circumstances attributable to the builder could have major implications for progress.

Often you will also be faced with a situation where there are very many change orders and where the contractor has notified a request for an extension of the deadline for each individual change. Claims for deadline extension should also be specified at some point, see more in paragraph 6 below. In such a situation, one can easily imagine that the contractor has demanded a certain number of days deadline extension for each individual change order. If you add up all the days, you get, for example, a 100 day deadline extension.

Most often, the work on these changes will have been carried out more or less in parallel, and not sequentially.

Then it goes without saying that the “net” impact of the changes on the construction time is not as much as 100 days. On closer analysis, one might conclude that the changes have caused an overall delay of only 12 days, and then 12 days are required.

In writing on this topic, we must also mention the discussion of contractor “slack” and whether this should be used to overcome such delays caused by the builder's circumstances. In this case, the issue becomes whether the contractor's slack should be used before the contractor gets the right to demand a deadline extension.

By “slack” we think of the safety margins that the contractor usually inserts into its progress planning to deal with unforeseen circumstances of which the contractor himself has the risk.

In our view, this “slack” belongs to the contractor, and thus cannot be expected to be used as a buffer in the interests of the builder.

True, the contractor has a certain obligation to cooperate and mitigate the consequences of builder relationships that affect progress, but that is something else.

6. Contractor's submission of concrete claim for deadline extension

It follows from NS 8407 paragraph 33.6.1 that the general contractor shall notify and justify his claim for a specific number of days extension of the deadline “without undue residence” after he “has a basis for calculating the extent”.

The corresponding provision follows from NS 8405 paragraph 24.6.

If the total/general contractor does not make such a specific claim for the number of days, it follows from the provisions that the contractor is only entitled to the number of days extension of the deadline as the builder “had to understand that he had a claim”.

Failure to comply with this notification provision does not have the consequence that the claim is dropped - it is not exclusionary.

In other words, a contractor should specify his requirements for a deadline extension as quickly as possible, and rather make an overall assessment when the time is ripe for it, see the example in paragraph 5 regarding change order requirements.

7. Builder's request

In NS 8407 paragraph 33.6.2 there is a provision that gives the builder the right to provoke a clarification on how many days the deadline extension the general contractor will require.

We find no equivalent provisions in NS 8405 and NS 8406.

This provision can easily seem like a trap for a general contractor if the builder asks the question early, and the general contractor handles the question somewhat superficially.

It follows from the provision that the general contractor has the right to respond that one cannot give an answer at the relevant time. In this case, the general contractor must justify why one cannot give an answer to the builder's question.

If, on the other hand, the general contractor has the opportunity to give an answer, he must do so.

In some cases, the fact that justified the notice of extension of the deadline may not have caused any disturbance whatsoever. The relationship was handled early in the construction period and the general contractor is “on plan” in relation to original progress plan. Then the builder may have an interest in clarifying whether there is really something to demand in the deadline extension, and if he asks, the general contractor must answer.

What the general contractor should not do anyway if he is asked such a question is neither answer concretely nor provide a justification for why he cannot answer.

If this happens, it follows from NS 8407 paragraph 33.6.2, third paragraph, that the requirement to extend the deadline is dropped.

Since this mechanism can have such great consequences, the builder's request should “sent by letter”, and it should be stated that the general contractor loses his claim if he does not respond.

The general contractor must, as a minimum, provide “a justification for why the basis for calculating the claim does not exist”, see paragraph 33.6.2, first paragraph, and the reply must be sent “without undue residence”, cf. 33.6.2, second paragraph.

8. The obligation of the builder to respond to the main/general contractor's notice of extension of the deadline

After the main/general contractor has submitted a specified claim for the number of days deadline extension, the builder is obliged to respond “without undue residence” about how he relates to the claim.

If he fails to do so, the objections are lost and the main/general contractor is entitled to the appropriate number of days deadline extension that he has requested.

This follows from NS 8407 paragraph 33.7, and the rule is the same in NS 8405 paragraph 24.7.

9. On enforcement in case of unjustified refusal of a justified claim for an extension of the deadline

The rules on enforcement can be found in NS 8407 paragraph 33.8, NS 8405 paragraph 24.8 and NS 8406 paragraph 21.

A contractor who does not obtain acceptance for a deadline extension claim runs the risk of the works being delivered after the agreed completion date.

The closing date in a construction contract is, as is known, day-mulched.

If the parties do not agree on a new closing date, the contractor risks daymulch liability. In order to reduce the risk, the contractor may wish to retrofit the works.

Forcing will entail additional costs.

True, part of the cost of a forfeiture will only imply that the job is carried out at an earlier time than planned, and therefore does not involve an additional cost.

However, a forfeiture will usually incur costs that are solely due to the forfeiture.

A typical cost would be hiring personnel because you need someone to work in parallel with your own employees. One may need additional personnel in management functions to keep an eye on hired crew, less rational work because there becomes something cramped about space and/ or crew have to wait for turn for use of stationary equipment, etc.

In sum, the additional costs of enforcement can be significant, and the question is who will pay for this.

If the builder's refusal of the contractor's claim for an extension of the deadline was justified, the contractor himself is responsible for his additional costs of forwarding. In such a situation, hopefully the advantage (for the contractor) is that he managed to delay his delay with the consequence that he avoided daylight.

If the builder's refusal was unjustified and the contractor was entitled to his claim for an extension of the deadline, then he can claim his insurance costs reimbursed by the builder.

Therefore, before the contractor initiates an enforcement order at the builder's expense, he must notify the builder that he intends to initiate enforcement, and he must notify “what the forseration is supposed to cost”, cf NS 8407 paragraph 33.8, last paragraph, NS 8405 paragraph 24.8, second paragraph and 8406 paragraph 21, second paragraph.

To prevent such requirements from being so high that they are not commensurate with the savings the contractor achieves by releasing a possible day mulch, the standards contain a quantitative restriction.

It follows from the provisions that the estimated remuneration for the cutting must not exceed the possible daily mulch requirement of 30%.

This can be illustrated with an example.

The requirement for an extension of the deadline is 20 days and the daily allowance is NOK 500,000. The total daily allowance is thus 10 MNOK if the requirement for an extension of the deadline is unjustified and the handover is 20 days late.

The contractor may then choose to fortify and claim the replacement costs by the builder if the assumed maintenance costs do not exceed 13 MNOK (10 MNOK x 1.3).

All types of costs must be taken into account when calculating the assumed costs, including plunder and heft. This follows from a judgment of the Supreme Court of 24.3.2023 (HR_2023-00534A) which you can read more about here.

It is also important to note that the provision refers to those “putative” costs. In other words, it is not expected that an exact amount can be calculated, and one is not legally bound to the amount that one has “assumed”. Costs can be higher without consequences for the claim made by the contractor against the builder. The key point, in our view, is the extent to which the contractor's assessments and calculations were sound when they were prepared before the investigation was initiated.

Finally, we would like to point out that consolidation is not a performance obligation where a claim for reimbursement of the costs of insurance is conditional on the fact that the entire delay was enforced.

If the contractor had the right to proceed, but only worked on part of the delay, he is still entitled to reimbursement of his costs.

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