1. Introduction

The main/general contractor has a fundamental need to supervise and control the subcontractor's works.

This control is not about distrust of the contractor. Control is carried out in virtually all construction projects and all standard contracts provide for such control.

Most often, the control is carried out by hired construction managers.

A separate standard contract has been released for construction manager assignments, namely NS 8403 “General contract provisions for construction manager assignments” from 2005.

‍From NS 8403 paragraph 3.2.1, it is stated that the construction manager shall safeguard the interests of the builder by, among other things, conducting inspections at the construction site.

2. Overview of the rules

3. The right of the general contractor or general contractor to exercise control — purpose

We find the provisions on master/general contractor control in NS 8415 paragraph 14.1, NS 8416 paragraph 14 and NS 8417 paragraph 20.2.

In NS 8415 paragraph 14.1, first paragraph, this is expressed by the fact that the main contractor “have the right to exercise control over materials, workmanship and contract work in general”whereas NS 8417 paragraph 20.2 states that the general contractor has “the right to exercise control” Total subcontractor “fulfillment of contractual obligations”.

Such control is carried out for many reasons, and it has several purposes.

The obvious reason is that control is carried out at the construction site to check that the works are carried out in a qualitatively good manner and in accordance with the agreed requirements.

Very many works are not physically controlled when completed.

An example is the correct reinforcement of concrete structures to be cast in place. Once the structure is cast, it is no longer possible to do anything if the reinforcement is performed in an inadequate manner.

Another example is insulation in walls, floors and ceilings to be clad in. When all walls and ceilings are closed, a repair of the insulation can be very extensive, especially if you first have to look for the deficiencies.

A third example is the work to ensure tight vapor barrier using the right materials and careful clinging of the vapor barrier. Once the structure is closed, it will be very demanding to find leakage points and then open the structure for remediation.

Another purpose of active and present control at a construction site is to ensure that the subcontractor respects the builder's public law obligations to the proper SHA under the Builders Regulations.

A third purpose is to ensure that actual propulsion corresponds to a coherent propulsion plan. The latter plan forms, among other things, the basis for the agreed invoicing plan, which in turn forms the basis for the instalment invoices sent by the subcontractor to the general or general contractor.

4. Briefly about the total or general contractor's duty to notify if defects etc are detected

In the article about the contractor's design, we have mentioned, among other things, that the general or general contractor has the obligation to notify the subcontractor if he discovers errors, etc.

Furthermore, we have pointed out that failure to notify may result in partial or partial relief of the subcontractor's liability for failure, cf. NS 8415 paragraph 13.2 and NS 8417 paragraph 20.3, last paragraph.

The general contractor or general contractor has a corresponding duty of notification if he discovers errors in the execution, see paragraph 6 below.

5. The control or approval of the general contractor or the general contractor does not exempt the subcontractor from liability for defects

Not infrequently, disagreements arise between the parties about what the consequence of the control of the total or main contractor should be for the final result.

In the registration business, for example, errors and deficiencies that the total or general contractor complains about are revealed, and then the subcontractor dismisses the complaints on the grounds that the total or general contractor has exercised control.

The main rule and starting point is that the responsibility of the subcontractor for errors and defects is not changed by the control of his works.

This is clear from NS 8417 paragraph 20.3, first paragraph, where it is stated that the control and approval of the builder does not exempt the total subcontractor “from delivering the subject matter of the contract in accordance with the requirements of the contract”.

The corresponding rule follows from NS 8415, paragraph 14.1, second paragraph, which expressly states that the subcontractor cannot claim that the works have taken place “under the control of the general contractor or builder” if it later turns out that the contract work is defective.

The same rule follows from NS 8416 paragraph 14, first paragraph.

The first paragraph of NS 8417 paragraph 20.3 covers not only the passive control, but also the active approval.

This is pretty hefty, but still has a lot going for it.

It is not uncommon for a total subcontractor to make statements that the general contractor has participated in design meetings and where approved solutions have been reached in the design group.

However, the challenge for a general contractor is that he or she normally has little insight into much of what is being designed by professionals within the design team.

The general contractor is far from being left to rely on what the general contractor and his advisers come up with.

There is a reason why the general subcontractor has a duty of guidance towards the general contractor. In addition, mention is made of the freedom of choice that the total subcontractor has with regard to its fulfilment of the functional requirements.

When it comes to the choice of technical solutions, it will also often be the case that several technical systems will work together, and there are interfaces that must be taken care of.

All these are moments that are mentioned to illustrate that the situation can be complex. The extent to which a general contractor has approved anything is therefore debatable.

In addition, in many cases, it is only when testing that defects and deficiencies are revealed.

The first paragraph of NS 8417 paragraph 20.3 cuts through all this and establishes that any approval does not exempt the total subcontractor from contracting.

Consequently, it is very important that the total subcontractor does not misunderstand its responsibilities and risks by assigning an approval from the general contractor too much importance.

If it is later discovered that the final result was in breach of contract, it is the total subcontractor who suffers the greatest damage because the defects must be corrected.

6. Details on the obligation of the main/general contractor to notify of defects

The general contractor or general contractor is obliged to notify if defects are discovered in the works of the subcontractor and must notify immediately.

In NS 8415 paragraph 14.1, first paragraph, it states that the general contractor must “immediately report to subcontractor” if he becomes aware of mistakes.

The same requirement for reaction follows from NS 8416 paragraph 14, while the rule in NS 8417 paragraph 20.3, second paragraph is that the general contractor must notify the total subcontractor “without undue residence”.

The difference between “immediately” and “without undue residence” is probably not accidental.

In turnkey contracts, it can be somewhat more time-consuming to clarify what is the right solution since one relates to functional requirements where there may be several solution options.

Consequently, it may take some more time to determine whether what is observed is in fact an error.

In execution centres, there is normally a detailed design for which the general contractor has the risk, and thus he has better conditions to detect any deviations quickly.

With that said; “without undue residence” It doesn't seem like it can take a long time to react. In practice, it is a matter of days, not weeks or months.

The next question is what consequences should be if the total or general contractor fails to notify and thereby fails to notify and thereby fails to notify its duty of notification.

NS 8415 and NS 8416 are silent while NS 8417 paragraph 20.3, second paragraph has a clear provision on the consequence of such default.

It follows from NS 8417 paragraph 20.3, second paragraph, that the general contractor becomes “responsible for the effects that would have been avoided on timely notice” if he does not notify the general subcontractor “without undue residence” after observing that “the design or execution is not in accordance with the contract”.

The costs of correcting errors can become partly significant if this has to be done after the works have been completed. As a rule, it is always less demanding to correct errors along the way and before completion.

7. Non-contractual performance and damage to the subject of the contract during the construction period

NS 8417 paragraph 20.5, first and second paragraphs apply where the general subcontractor himself discovers that something is wrong or that the contract work has been damaged.

In this case, the general subcontractor shall notify the general contractor of the relationship and take remedial measures. The total subcontractor is responsible for the costs incurred.

In NS 8417 paragraph 20.5, second paragraph, a reservation is made in case the cost of remediation becomes “disproportionately large compared to what is achieved”.

In this case, the general contractor is not obliged to repair.

Instead, the general contractor may demand a price reduction according to the rules of NS 8407 paragraph 42.4.

For a general contractor, a price reduction will not normally be satisfactory. For this reason, a general contractor should be on duty and check on an ongoing basis and notify any errors at the earliest possible time.

Experience-wise, it costs less to rectify if a fault is detected early, than when everything is done.

If defects in the reinforcement have been observed before casting of load-bearing structures, it is necessary to notify before casting. The costs of straightening are then minimal, while the costs would have been disproportionately large if rectification were to occur after completed casting.

The corresponding provision of NS 8415 we find in paragraph 11.2.

Furthermore, it refers to the provisions of “Risk of injury” on the subject of the contract during the construction period in NS 8417 paragraph 19.1, NS 8415 paragraph 17 and NS 8416 paragraph 10, respectively.

In the first paragraph of these provisions it is established that it is the subcontractor who bears the risk of his works until the takeover.

That does not mean that any damage that affects the subject of the contract is the responsibility of the subcontractor. If it is possible to assume that the damage caused is someone other than the subcontractor, the damage caused will naturally be held liable.

8. Complaints before takeover

It follows from NS 8415 paragraph 14.4 that the subcontractor may “in writing summons to befaring” of contract work which “not subsequently adjudicable without extraordinary measures or costs”.

This will typically apply to works that will later be dressed in, cast again, etc.

We are a little unsure how often this provision is used, but would encourage subcontractors to apply it anyway.

The General Contractor is obliged to attend such an inspection and it follows from Section 14.4, second paragraph, that the General Contractor “cannot subsequently invoke deficiencies which he has discovered or which he should have discovered by ordinary due diligence”.

In other words, for the subcontractor, the benefit of such a faring is twofold.

Firstly, it will be far less expensive to repair before dressing, casting, etc., and secondly, the right of the general contractor to advertise after the works have been completed will be restricted.

One must remember to write the protocol of such a consultation and the protocol should be signed by both parties.

In addition, care should be taken to ensure that the inspection is carried out by representatives of the parties or by someone with special authority to oblige the party.

We cannot see that NS 8416 and NS 8417 contain the same type of provision.

9. What can a general or general contractor do if the subcontractor disputes that something is wrong with his works?

The parties to a construction project will often have different opinions on whether the work is deficient, or not.

If the subcontractor disputes that something is wrong, the total or general contractor must make a choice.

He can let the relationship remain as it is until the takeover, and then invoke the relationship as a deficiency. After all, the total or general contractor has notified that he considered the relationship to be a mistake, and thus cannot be “punished” for repeating his complaint.

On the other hand, if he waits until the takeover to take action, he runs the risk that the deficiency will be disproportionately expensive to rectify.

On the other hand, the subcontractor may run the risk of the total or general contractor refusing to take over if the conditions for this are met.

Neither of these solutions is necessarily preferable - for either party.

Another option is for the total or general contractor to order the subcontractor to remediate while the works are in progress.

If the subcontractor disagrees with the rectification order, the subcontractor may respond by notifying that it considers the instruction to be an order for a so-called irregular amendment. Then the subcontractor will also notify a request for an extension of the deadline if there is a basis for this, and in any case demand an adjustment of remuneration.

The total or general contractor will normally dispute that there is a change, but maintain that the relationship needs to be remedied.

The subcontractor has a duty to perform the work in question even if the change order requirement is disputed. One says the subcontractor has a jumping obligation.

By the way, we refer to the article “Change orders and irregular changes”, read here.

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