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New Zealand guide
New Zealand / NZS 3910 / Variations and unforeseen conditions

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

DutyWindow and sectionIf missed
Notify a variation claim within 1 months of the instruction1 monthcl 9.2.2no penalty statedMissed claims
Notify any other matter affecting time or cost within 1 months1 monthcl 9.2.3no penalty statedMissed claims
Propose the value of a variation within 1 months of the instruction1 monthcl 9.3.2no penalty statedMissed claims
Respond to a variation notice within 1 months1 monthcl 9.2.4no penalty statedMissed claims
Record day works on the day they occur1 daycl 9.4.3no penalty statedMissed claims
Notify a variation claim within 20 working days of the instruction20 working dayscl 9.2.2no penalty statedMissed claims
Notify any other matter affecting time or cost within 20 working days20 working dayscl 9.2.3no penalty statedMissed claims
Respond to a variation notice within 20 working days20 working dayscl 9.2.5no penalty statedMissed claims
Notify an unforeseen physical condition as soon as practicablenone setcl 9.5.2, 9.5.4no penalty statedLapsed compliance
Give full details of an unforeseen physical conditionnone setcl 9.5.3no penalty statedLapsed compliance
Do not claim weather, or conditions due to weather on the Site, as an unforeseen physical conditionnone setcl 9.5.1no 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.

    Common questions

    What does cl 9.2.2 require?

    Notify a variation claim within 1 months of the instruction (cl 9.2.2). Window: 1 month. Consequence: no penalty stated.

    What does cl 9.2.3 require?

    Notify any other matter affecting time or cost within 1 months (cl 9.2.3). Window: 1 month. Consequence: no penalty stated.

    What does cl 9.3.2 require?

    Propose the value of a variation within 1 months of the instruction (cl 9.3.2). Window: 1 month. Consequence: no penalty stated.

    What does cl 9.2.4 require?

    Respond to a variation notice within 1 months (cl 9.2.4). Window: 1 month. Consequence: no penalty stated.

    What does cl 9.4.3 require?

    Record day works on the day they occur (cl 9.4.3). Window: 1 day. Consequence: no penalty stated.

    What does cl 9.2.2 require?

    Notify a variation claim within 20 working days of the instruction (cl 9.2.2). Window: 20 working days. Consequence: no penalty stated.