How do variations and unforeseen conditions work under NZS 3910 in New Zealand?
On an NZS 3910:2013 contract the contractor notifies a variation within 1 month of the instruction, proposes its value within 1 month, and notifies an unforeseen physical condition as soon as practicable. The 2023 edition moves the variation notice to 20 working days. Weather is not an unforeseen physical condition.
The duties, in the library's order
| Duty | Window and section | If missed |
|---|---|---|
| Notify a variation claim within 1 months of the instruction | 1 monthcl 9.2.2 | no penalty statedMissed claims |
| Notify any other matter affecting time or cost within 1 months | 1 monthcl 9.2.3 | no penalty statedMissed claims |
| Propose the value of a variation within 1 months of the instruction | 1 monthcl 9.3.2 | no penalty statedMissed claims |
| Respond to a variation notice within 1 months | 1 monthcl 9.2.4 | no penalty statedMissed claims |
| Record day works on the day they occur | 1 daycl 9.4.3 | no penalty statedMissed claims |
| Notify a variation claim within 20 working days of the instruction | 20 working dayscl 9.2.2 | no penalty statedMissed claims |
| Notify any other matter affecting time or cost within 20 working days | 20 working dayscl 9.2.3 | no penalty statedMissed claims |
| Respond to a variation notice within 20 working days | 20 working dayscl 9.2.5 | no penalty statedMissed claims |
| Notify an unforeseen physical condition as soon as practicable | none setcl 9.5.2, 9.5.4 | no penalty statedLapsed compliance |
| Give full details of an unforeseen physical condition | none setcl 9.5.3 | no penalty statedLapsed compliance |
| Do not claim weather, or conditions due to weather on the Site, as an unforeseen physical condition | none setcl 9.5.1 | no penalty statedLapsed compliance |
What the library notes on each duty
Quoted a whole sentence at a time from the library's note on each row.
Notify a variation claim within 1 months of the instruction
cl 9.2.2 · 1 month · no penalty stated
- Commonly treated as a condition precedent in practice (secondary characterisation); no express bar in the primary text read.
Notify any other matter affecting time or cost within 1 months
cl 9.2.3 · 1 month · no penalty stated
- Notice that another matter (not an instruction) is a Variation, from becoming aware.
Propose the value of a variation within 1 months of the instruction
cl 9.3.2 · 1 month · no penalty stated
- The DZ draft moves this to 20 Working Days, copied to the Independent Certifier, who decides the value under DZ cl 9.3.5 (draft only, 2023 published wording not confirmed).
Respond to a variation notice within 1 months
cl 9.2.4 · 1 month · no penalty stated
- Response to a variation notice; deemed a Variation unless disallowed within the month.
Record day works on the day they occur
cl 9.4.3 · 1 day · no penalty stated
- Recorded daily, signed daily where possible; signed copy accompanies the payment claim.
Notify a variation claim within 20 working days of the instruction
cl 9.2.2 · 20 working days · no penalty stated
- 'Within 20 Working Days or as soon as practicable'.
Notify any other matter affecting time or cost within 20 working days
cl 9.2.3 · 20 working days · no penalty stated
Respond to a variation notice within 20 working days
cl 9.2.5 · 20 working days · no penalty stated
- No deemed outcome (unlike 2013); a failure to respond restarts the 20 Working Days.
Notify an unforeseen physical condition as soon as practicable
cl 9.5.2, 9.5.4 · none set · no penalty stated
- 'As soon as practicable and where possible before the conditions are disturbed', confirmed in writing.
- No express time bar; a Variation to the extent unforeseeable (cl 9.5.4).
Give full details of an unforeseen physical condition
cl 9.5.3 · none set · no penalty stated
- Details (materials, plant, labour, programme, delay, estimate) due as soon as practicable after the NL1 notice; needed to seek a Variation.
Do not claim weather, or conditions due to weather on the Site, as an unforeseen physical condition
cl 9.5.1 · none set · no penalty stated
- Cl 9.5.1 defines 'physical conditions' for the unforeseen physical conditions claim under cl 9.5 to include artificial obstructions but not weather conditions or conditions due to weather, unless those conditions occur as a result of weather away from the Site.
- It does not exclude weather from an extension of time; cl 10.3.1 lists weather sufficiently inclement to interfere with the progress of the works as a ground for one.
What this page is, and is not
It is the section text this library holds for New Zealand's Construction Contracts Act 2002 (NZ), NZS 3910:2013 and Health and Safety at Work Act 2015, with the window and the consequence. The NZS 3910:2023 rows are read from secondary summaries of the draft, not the published text. It is not legal advice, and it is not a substitute for reading the Acts, the contract you signed and any special conditions.
These pages set out the duties the library holds for a New Zealand job.
No library of law is complete, and Demiton never says this one is. An obligation the library does not hold, and you did not add, is not protected. You can add your own to any job.