1. Introduction
All three standards have a provision dealing with alerts and requirements, see NS 8405 paragraph 8, NS 8406 paragraph 7 and NS 8407 paragraph 5.
The provisions are broadly similar in sound, but in NS 8405 and NS 8407 the consequence of not complying with the requirements for alerts is far more serious than in NS 8406.
The reason for this is that failure to comply with, among other things, the notification deadlines in NS 8405 and NS 8407 usually results in the loss of the claim that one wanted to notify. Failure to comply with notification provisions 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 8405 and NS 8407 on the one hand and NS 8406 on the other. This is why the use of NS 8405 and NS 8407 places extra high demands on the professionalism of the actors, not least routines and systems for contract administration.
At the same time, NS 8406 cannot be used for large construction or construction projects. An example of this is that Statens Vegvesen has used NS 8406 as a standard for its projects for many years.
2. Why own provision?
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 contractor will be of the opinion that this “something” is the responsibility and/or risk of the builder.
Not infrequently, the entrepreneur will think that this “something” will delay progress, that it will require an additional use of resources that the entrepreneur did not foresee or a combination of both.
Since the builder must be given the opportunity to participate in the decision on how to deal with this “something”, the contractor must notify the builder in a timely manner.
This “something” may concern matters that will have major consequences economically, cost-wise and/ or progression-wise. If this “something” is within the risk area of the builder, it is therefore important that the builder is given the opportunity to decide for himself how this “something” should be handled. One should (must) avoid that doubts may subsequently be raised about whether the builder was given the opportunity to make a decision himself, and what that decision might entail.
I guess it's so important that the contractor gets a quick feedback from the builder. The contractor should not have to go around wondering what the builder thinks about what he has notified about. Consequently, it is also absolutely central that for posterity one is in no doubt as to what the builder responded to the contractor's notice.
The system of exclusionary deadlines is central to motivating the parties to such notification and follow-up.
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 dealing with notifications and responses thereto. The consequences of not complying with the provisions can be very serious and, accordingly, one must know the provision on “Notifications and requirements” well.
We start from NS 8407 point 5, but clarify that it follows accordingly from NS 8405 point 8.
3. Requirements for addressee
It follows from NS 8407 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 more 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 builder 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.
4. Requirements for writing
From what was quoted, it was clear that “notifications and claims and responses thereto” must be in writing.
Letters, completed forms and minutes are written documents. The fact that minutes are considered in writing follows directly from the provision.
For most people, mail correspondence will also be considered something in writing, but this is regulated differently in the standard contracts.
In NS 8407, mail correspondence is considered to be in writing unless otherwise specifically agreed, whereas the opposite is the case in NS 840 and NS 8406.
This may be related to the fact that NS 8405 and NS 8406 were released a few years earlier than NS 8407.
5. LAPSE OF ENTITLEMENT
NS 8405 paragraph 8, last paragraph and NS 8407 paragraph 5, last paragraph contain a special provision not found in NS 8406 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.
