NZS 3910:2013 v 2023: 4 changes that are easy to miss

The big change in NZS 3910:2023 is the Engineer being split into a Contract Administrator and an Independent Certifier. Everyone knows about that one. The smaller changes get less attention, but some of them change what you have to do the week a notice comes in.

These are 4 that are easy to miss if you’re carrying 2013 habits onto a 2023 contract. Clause numbers are from the 2 editions as published. Special conditions often amend the general conditions, so check your own contract first.

The 4 changes at a glance

1. Workmanship: tradesman-like is gone

Under 2013, clause 5.9.2 required the work to be done in a tradesman-like manner. Under 2023, clause 5.1.1 requires it to be done in accordance with good industry practice.

Tradesman-like was always hard to pin down. It came down to whether the work looked like a competent tradesman had done it and 2 people could look at the same finish and disagree.

My reading is that good industry practice is easier to test, because it points outside the job to what is normally done in that industry. That is usually written down somewhere: the specification, the relevant Standard, the manufacturer’s instructions or the industry guidance the work is normally done to.

In practice, when you reject work on a 2023 contract, name the document it falls short of and where. A rejection that only says the work isn’t good enough leaves the argument open. One that says it doesn’t meet a named section of the manufacturer’s installation instructions is much harder to argue with. It works the other way too. If you’re the contractor and work has been rejected, ask which practice it fails against.

2. No more deemed Variation on silence

Under 2013, clause 9.2.4 meant that if the Engineer said nothing for 1 month after a Variation notice, it became a deemed Variation. Silence cost the Principal.

2023 removes that. Clauses 9.2.1 to 9.2.5 require the Contract Administrator to confirm or disallow the Variation within 20 Working Days and give reasons.

For the Contract Administrator, silence no longer creates a Variation, but it isn’t free either. The 20 Working Days is still a contract obligation. A late answer is the CA not doing what the contract requires and it hands the contractor an easy point if the matter goes further. Diary 20 Working Days from the day each notice arrives, not from the day you get to it.

The reasons matter as much as the timing. They are what the contractor will argue against, so they need to say which clause and which facts. A disallowed Variation with no reasons is hard to defend and hard to respond to.

For the contractor, waiting out the clock no longer works. If 20 Working Days pass with no answer, follow it up in writing rather than treating the Variation as accepted.

3. Retention comes back without a claim

Under 2013, clause 12.3.2 released retention with the next progress payment. Most of us got used to releasing it when the claim came in.

Under 2023, clause 12.3.4 puts a standing obligation on the Independent Certifier. Within 7 Working Days after each release date, the IC issues the release, whether the contractor has claimed or not.

If you wait for the claim you can miss the deadline. At Practical Completion, list every release date for each separable portion and put them in the diary with the 7 Working Days. The bonds and retentions guide sets out what is held at each stage of a job.

4. When a Provisional Sum grows

A Provisional Sum is there because the scope isn’t known well enough to price at tender. The argument starts when the work turns out bigger than anyone expected.

Under 2023, clause 9.7.4 deals with this directly. Where the scope of a Provisional Sum turns out to be unforeseeable, the change gets full Variation status, including time. The 2013 Provisional Sum clauses (12.9 to 12.11) have no matching provision.

So under 2023 the question that decides it is whether the scope was foreseeable. That makes the tender record important: what the Provisional Sum described, what investigation information was available and what the contractor was told. Keep that together from the start. When a Provisional Sum starts to grow, write down at the time what has turned up that couldn’t have been seen from that information.

For whoever writes the contract, a tight Provisional Sum description helps both sides. A vague one makes almost any growth arguable as unforeseeable.

What I check on a 2023 job

• Which edition and special conditions apply and whether any of these 4 clauses have been amended.
• A diary entry for 20 Working Days from every Variation notice.
• Reasons in every Variation response, with the clause and the facts.
• A retention release schedule at Practical Completion, by separable portion.
• The tender record behind every Provisional Sum.
• Rejected work tied to a written standard.

None of these are hard. They just need setting up at the start, before the first notice arrives.

BlueWave provides contract administration and independent review on NZS 3910:2013 and 2023 contracts across the Bay of Plenty. If you’re setting up a 2023 contract or moving a team across from 2013, happy to have a chat.