Her kan du lese om en “one size fits all” varslingsrutine du fint kan bruke i enhver entreprisekontrakt
Many people find construction contracts difficult to deal with. This is particularly true of those based on Norwegian Standard contracts, but the rules in the Building Construction Act and the Craftsmen Services Act can also be challenging, as they all contain rules requiring the parties to send notifications to the other party in various situations.
Many people lack an overview of the rules and are unsure about when a notification should be sent, how it should be sent, and what it should contain. There is a significant risk of losing claims and rights due to failure to notify or errors in the notification and response.
Det finnes imidlertid en “one size fits all” Varslingsrutine i entreprisekontrakter som du kan følge og som stort sett vil fungere fint i alle entreprisekontrakter.
The notification procedure consists of three notification forms
The routine consists of three notification forms.
- Form 1 is a notification you give to the other party as soon as you discover a circumstance that you should report.
- Form 2 is a specification of the claims you have notified.
- Form 3 is a notification you use when you want to notify the other party that they have notified or responded too late.
These three forms are often all you need. The question is simply when the different forms should be used.
1 Form 1 in the notification procedure – notification of circumstances entitling the employee to an extension of the deadline and adjustment of remuneration
The notification rules are based primarily on the duty of loyalty that the parties to a contractual relationship have towards each other. As a party to the agreement, you must actively work to ensure that the agreement is fulfilled by both parties. If you discover circumstances that may prevent the other party from fulfilling their part of the agreement, you must of course notify the other party of the circumstances. By giving such notice, the other party is given the opportunity to take the necessary steps to resolve the problems caused by the circumstances.
The duty of loyalty and the duty to notify are so important that you may be held liable for any additional costs incurred by the other party as a result of your failure to notify them.
1.1 When must you notify?
You can have a fixed notification routine whereby you always notify the other party of matters that the other party can be assumed to have an interest in being notified of.
In any case, you must notify the client of any circumstances that you believe entitle you to a fee adjustment or extension of the deadline. This could be, for example, if something is preventing you from performing a job, or if you have not received what the other party was supposed to provide you with as a basis for your work. In such cases, you must notify the other party. Another example could be that the client has asked you to perform work that you believe falls outside the scope of the contract. The range of circumstances that you must notify the other party about is almost endless, and the frequency with which situations requiring notification arise varies from contract to contract.
One tip is to read the contract and note down all the provisions that require you to send notification, and keep this as a checklist/reminder list.
Norsk Standard sine kontrakter, bestemmer i stor grad at dersom du ikke varsler “uten ugrunnet opphold” etter at du ble kjent med et slikt forhold, kan du ikke bruke forholdet som grunnlag for krav.
Regardless of the rules in your contract, you should therefore make it a routine to always send notification 1 as soon as you become aware of such circumstances.
You must not wait to send the notification until you have an overview of the consequences of the matter you are reporting. The purpose of the notification is to make the other party aware of the matter and that it may lead to claims from you.
1.2 What should the notification contain?
First, describe the situation you want to inform the other party about. Remember that the description will be read by others. Avoid using keywords and incomplete sentences that only you and the other party understand. In the worst case, lawyers and judges may need to understand what you write. There are many examples of texts that assume that the reader already understands what the text is explaining, and that those who do not know this in advance will not understand the text.
If you believe that the circumstances entitle you to an extension of the deadline or an adjustment of the remuneration, you must state this in the notification. Use clear wording, for example.
- This situation will delay our work on … . We therefore request an extension of the deadline, corresponding to the delay we are experiencing.
- This situation incurs additional costs for us, as we have to use more concrete and reinforcement than anticipated. We will require you to cover these additional costs.
The rules in Norwegian Standard contracts are the most demanding in terms of what the notice must contain. Based on these, you can generally assume that there are five requirements that you should always consider including in the notice.
- Request for extension of deadline
- Claims for compensation adjustments
- Claims for coverage of increased costs for rigging and operation
- Claims for compensation for losses resulting from reduced productivity (plunder and damage)
- Requirement that modification work must be carried out in accordance with the rules on billing, or with adjusted unit prices
There are many notification forms available, and what they have in common is that they contain pre-filled text or checkboxes. We also have these available. If you would like us to send them to you free of charge, please contact us.
Vår anbefaling er at skjemaene bær være “ferdig” utfylt, og at du sletter det du ikke trenger. Det utfyllingen av skjemaet enklere, enn at du skal huske på hva du skal ta inn i skjemaet.
1.3 How should you report it?
As a general rule, you should send notifications in writing to the other party.
Verbal warnings have an unfortunate tendency to be forgotten by the other party when the level of conflict rises. Norwegian Standard contracts also state explicitly that warnings must be in writing. There is therefore no reason to deviate from the rule that warnings must be in writing.
You must also send the notice to the other party. Most agreements specify the address of the other party. Use this address. Where it has been agreed that a specific person is the party's representative, you can/must send the notice to this person.
If you send the notification to others, such as a more or less random employee of the other party, a project manager, or other contract assistant, you will quickly risk being met with the argument that you have not sent the notification to the other party and have therefore lost your claim.
Normally, only the party itself or its representative is the rightful recipient of notifications.
2 Form 2 in the notification procedure – Specification of requirements
Once you have grounds for specifying the requirement for compensation adjustment or deadline extension, you must inform the other party of the exact requirements.
You will often only obtain such documentation some time after you first discovered the circumstances that gave you the right to make the claim. You should therefore not wait to submit Form 1 until you have the documentation to support your claim.
If you have notified a claim for an extension of the deadline, you must specify the number of days you are requesting as soon as you have a basis for specifying the length of the extension. The length of the extension must be equal to the delay caused by the circumstances.
Remember that, in loyalty to the other party, you should try to limit the damage caused by a disruption. In other words, you can only request an extension of the deadline for delays that you were unable to avoid by taking reasonable measures.
If you have notified a claim for remuneration adjustment, you must specify the amount of the claim as soon as you have grounds for doing so. Remember that Norwegian Standard contracts have their own rules for how remuneration is to be adjusted. Either by using unit prices, adjusted unit prices or in accordance with the rules on cost-based work. You must assess whether your contract has such rules and specify the claim for remuneration adjustment based on these rules.
Norwegian Standard contracts stipulate that if you do not specify the requirement in this way, you are not entitled to more than what the client understands. In such situations, there is often a large gap between what the client and the contractor consider to be the correct size of the requirement. Therefore, you should send the specification of the requirement as soon as you have a basis for it.
3 Form 3 in the notification procedure – notification of late notification or response
Norsk Standard kontraktene har en regel som sier at den part som vi anføre at den andre part har varslet eller svart for sent, må varsle om dette “uten ugrunnet opphold” etter at varselet eller svaret er mottatt. Gjør ikke parten de, skal varselet eller svaret anses for å være sendt i tide.
Regelen har gode grunner for seg, og i vår “one size fits all” Varslingsrutine i entreprisekontrakter, har vi derfor innarbeidet et skjema 3 – varsel om for sent varsel eller svar.
Use this every time you believe that the other party has not given notice or responded in time. Whether or not you have correctly understood the deadline will be decided later. However, if you do not send such a Form 3, the notice or response from the other party will generally be considered to have been sent on time.
Notification forms in Word format
As mentioned, we have notification forms that can be provided free of charge. Simply contact
Lawyer/Partner Bent S. Kverme
kverme@ladv.no
907 28 682
Remember to provide both your email address and phone number.
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