1. Introduction
All three standards have a provision dealing with alerts and requirements, see NS 8415 paragraph 8, NS 8416 paragraph 7 and NS 8417 paragraph 5.
The provisions are broadly similar in sound, but in NS 8415 and NS 8417 the consequence of not complying with the requirements for alerts is far more serious than in NS 8416.
The reason for this is that failure to comply with, among other things, the notification deadlines in NS 8415 and NS 8417 usually results in the loss of the claim that one wanted to notify about. We say that non-compliance with notification regulations has so-called exclusionary effect. The fact that something is precluded simply means that it lapses.
This is perhaps the most important difference between NS 8415 and NS 8417 on the one hand and NS 8416 on the other. This is why the use of NS 8415 and NS 8417 places extra high demands on the professionalism of the actors, not least routines and systems for contract administration.
At the same time, NS 8416 cannot be used for large construction or construction projects. An example of this is that Statens Vegvesen has used NS 8416 as a standard for its projects for many years.
2. Why do the standards have a separate, overarching provision for notifications and requirements?
In the vast majority of construction projects, something unexpected, unforeseen and/ or uncovered something that neither party had foreseen.
Most often it is the case that this “something” is disclosed by the contractor, and often the entrepreneur will be of the opinion that this “something” is the main/general contractor's responsibility and/ or risk.
Not infrequently, the subcontractor will think that this “somewhat” will delay progress, that it will require an additional use of resources that the subcontractor did not foresee or a combination of both.
Since the main/general contractor must be given the opportunity to participate in the decision on how to deal with this “something”, the subcontractor must notify the main/general contractor in time.
As these may involve circumstances which may have partly major economic, cost and/ or progress implications, it is important that no doubt can subsequently be raised as to whether the main/general contractor was made aware of the relevant situation.
Conversely, it is so important that the subcontractor receives prompt feedback from the main/general contractor. The subcontractor should not have to go around wondering what the major/general contractor thinks about what he has notified about. In addition to this, it is essential that there is no doubt for posterity what the main/general contractor responded to the subcontractor's notice.
In the standard contracts, there are several rules that regulate when to notify, how quickly, to whom and how this should be handled by the person receiving the notification.
The provisions of the Standards on “Notifications and requirements” complements the other provisions on notifications and responses thereto.
Since the consequences of failure to comply with the provisions can be very serious, the provision “Notifications and requirements” very central. With that said, we must clarify that we are referring here to notices and claims made in contracts governed by NS 8415 or NS 8417. In these contracts, exclusionary deadlines are used with some form requirements which mean that claims can be lost if the formal rules are not properly complied with. Such rules do not exist in NS 8416.
We start from NS 8417 paragraph 5, but clarify that it follows accordingly from NS 8415 paragraph 8.
3. Requirements for addressee
It follows from NS 8417 paragraph 5, first paragraph that all “notifications and claims and responses thereto” must be sent in writing to “representatives of the parties (...) or to agreed addresses”.
We have written a separate article on “Representatives of the Parties” and their role, read here.
In other words, you cannot choose to whom you want to send such notifications.
The clear advice is that you establish good routines, you inform the other party in writing about who is the addressee for what, and you keep these routines up to date.
Often, a general contractor will have prepared a PA book stating this, and then you have to keep it up to date. There is nothing in the way of the contractor's persons and addresses being taken in the same place.
We emphasize that the same applies in execution centers, referring to NS 8415 paragraph 8.
4. Requirements for writing
From what was quoted, it was clear that “notifications and claims and responses thereto” must be in writing. Normally one would say that letters, completed forms, etc. are written, and today one would probably also think of mail correspondence as something written.
In NS 8417, first paragraph, last sentence it is specified that “e-mail to the agreed address is considered written unless otherwise agreed”.
Here NS 8417 differs from NS 8415 and NS 8416 where the rule is the opposite. In these contracts, it follows, for example, from NS 8415 paragraph 8 that the notice and requirements “provided by electronic communication is considered in writing only if this has been agreed”.
Accordingly, it is important that something is said about this in the agreement document itself or other contract documents.
Moreover, it follows from the provisions of “Notifications and requirements” that everything that is entered in the minutes of construction or builders' meetings “is considered in writing”.
Since everything referenced from builder/developer meetings is to be considered in writing, this means that all parties involved in such meetings must be careful.
Care must be taken to include everything relevant in the draft minutes, and anyone who receives the drafts for review should check and give their input if something is wrong or unclear.
We have also written more about the significance of this in the article on “Meetings”, read more here.
5. Loss of the right to claim that the counterparty has notified or responded too late
NS 8415 paragraph 8, last paragraph and NS 8417 paragraph 5, last paragraph contain a slightly special provision not found in NS 8416 paragraph 7.
As the headline signals, the provision is about lapses of entitlement.
The point is that whoever wants to plead that the other has sent a notice for ent, or responded to a notice too late, must report this without “unjustified stay”.
If you do not report “without undue residence” the person loses the right to claim that what the other notifies is precluded.
Such a message must be in writing.
We can use the rules on irregular change orders as an example.
It follows from NS 8405 and NS 8406 23.2 and NS 8407 paragraph 32.2 that if a contractor receives an order for something he believes to be a change, the contractor must notify the builder of this “without undue residence”.
If the contractor fails to notify within the deadline, the work for which it is deemed to have been ordered shall be considered to be part of the contract work.
It follows from the provisions of NS 8405 paragraph 23.3 and NS 8407 paragraph 33.3, respectively, that the builder must contest the existence of an order for amendment if one disagrees, and that reply must also be sent”without undue residence”.
If the builder wants to claim that the contractor sent his notice that something is an order for change too late, or the contractor will claim that the builder responded to his notice too late, it follows from NS 8405 paragraph 8, third paragraph and NS 8407 paragraph 5, third paragraph that one must state this in writing and “without undue residence”.
The condition “without undue residence” is set so that the person who wishes to invoke something must have time to check and check whether there are grounds for invoking the matter before reacting to his counterpart. The norm is to react within a few days. It is often said that it is a duty of activity where you count days, not weeks or months.
