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Remuneration and payment

Kortversjonen

Lytt til artikkelen

1. Introduction

The main obligation of the builder is to pay the contractor for the work performed and, incidentally, in accordance with the agreement of the parties. Non-payment may, in its extreme consequence, constitute a material default with the serious consequences that this can have if the contractor ceases its works.

The rules on payment are therefore very central, and we will deal with these below.

2. Overview of the provisions

Naturally, all three standard contracts have rules on remuneration and payment, namely NS 8405 Chapter V, NS 8406 paragraph 23 and NS 8407 Chapter VI, see the matrix below.

Since NS 8407 is the standard contract that is used most often, we start from this.

3. Briefly about the agreed remuneration

NS 8407, paragraph 26.1, states that the general contractor “is entitled to agreed remuneration”.

The agreed remuneration will normally be the agreed contract amount. In NS 8407 paragraph 1.6, contract sum is defined as “the originally agreed consideration (...) including VAT. The contract sum shall also include the originally agreed estimate of remuneration for services to be settled at unit prices or at bill of charge'.

This is also the definition in NS 8405 paragraph 2.8 and NS 8406 paragraph 2.

In NS 8407 contracts, a fixed price will usually be agreed which is not to be regulated for quantities.

This is in contrast to contracts based on NS 8405 and NS 8406 where there is usually a quantity description in which the individual units are priced, and then a settlement is made in connection with the final settlement.

While NS 8407 has billing schedule provisions, we do not find provisions for this in NS 8405 and NS 8406.

4. Billing Schedule

It follows from NS 8407 paragraph 27.2.1 that “(K) the contract sum shall be paid on the basis of a billing schedule”. Furthermore, it follows that the parties should “Work it out together as soon as possible.” if it has not already been agreed “at the conclusion of the contract”.

The intervals for billing should be one month. If the construction time is estimated at 13 months, the starting point will be that the contract sum is distributed over 13 a account invoices. However, this does not mean that you get 13 account invoices with equal amounts.

Some guidelines are given on how the billing plan should be drawn up in NS 8407 paragraph 27.2.1, third and fourth paragraphs, but the starting point is that the parties can freely agree on what they themselves wish, cf NS 8407 paragraph 27.2.1, second paragraph.

The underlying principle of all invoicing in construction contracts is that contractor gets paid as value is added to construction site.

When creating an invoicing plan, it will therefore have to be based on what is planned to be carried out by works on the construction site, what is supplied by materials for embedding, etc.

In turnkey contracts, engineering is also carried out and then it is natural that invoicing for design work occurs as design material is handed over to the builder.

These general principles are also enshrined as governing how to create a billing plan in which the parties do not agree, cf. NS 8407 paragraph 27.2.1, second and fourth paragraphs.

From NS 8407 paragraph 27.2.1, third paragraph, it follows that the general contractor shall: “draw up a production plan based on the progress plan”.

This production plan shall “show the correlation between planned production and the billing schedule”.

The production plan will provide precisely the kind of information that concerns the planned supply of work and materials to the construction site, the handover of production material to the builder, etc.

In sum, it can therefore be established that the invoicing schedule will normally be harmonized with the planned progress as stated in the progress plan and the production plan, respectively.

5. Billing Schedule Adjustment

If there is an excessive lag between actual production and planned production, the parties may require adjustment of the billing schedule, cf. NS 8407 paragraph 27.2.1, fifth paragraph.

Usually, it will probably be the builder who requires such adjustment because actual progress has remained according to the original plan. Builders rarely want to be fortung in their payment to contractor.

In some cases, the general contractor may also require such adjustment if the works are to be continued, but in this case the condition is that “the forsertion is imposed or agreed with the builder”.

In practice, one may also find that the builder refuses to pay all or part of an a account invoice because it is considered that the progress has come too short compared to what was originally foreseen.

Whether this is considered a default on the part of the builder must be considered concretely.

6. TE/HE is not entitled to prepayment in case of prefabrication

It is not uncommon for parts of a general contractor's deliveries to be prefabricated elsewhere before the units are transported to a construction site for embedding.

Typical examples of this are concrete elements, aggregates, elevators, bathroom modules, etc.

Most often, factories that account for such prefabrication will require a down payment. From time to time, questions arise as to whether the general contractor may include such prepayment as part of the basis for a account payment.

There is freedom of agreement and the builder can of course accept that this is done.

If one does not agree, and must rely on the provisions of NS 8407 paragraph 27.2.1, fourth paragraph, the starting point will be that the general contractor cannot claim this.

In that regard, point (c) of the fourth paragraph of the provision states that “(M) materials, parts, etc. entitle to invoicing when supplied to the construction site to be incorporated”.

The quoted is the main rule and is also stated in NS 8405 paragraph 28.1, first paragraph where it states that installments “may be required on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

A contractor wishing to cover his advance payment to his own contract assistants when ordering goods and services produced elsewhere than on the construction site must therefore address this in particular with the builder.

7. Documentation requirements for a account billing

When an entrepreneur invoices according to an agreed billing plan, it follows from NS 8407 paragraph 27.4 that the contractor must attach the documentation required by the plan.

In other words, it will vary how much documentation is attached to an ordinary a account invoice.

Often it will not be accompanied by significant documentation because the builder has reasonable control that the actual progress matches the agreed progress schedule. As long as a account invoice matches the agreed billing schedule, the builder will be able to have the necessary confidence in the size of the invoice.

8. Progress payment in NS 8405 and NS 8406

There are no provisions in NS 8405 (or NS 8406) that prevent the parties from agreeing on a payment plan with ongoing a account billing as described in NS 8407.

On the contrary, NS 8405 paragraph 28.1 “Settlement of contract amount and withholding” assumes that the parties may have entered into an agreement on billing that does not follow the principles of NS 8405. In this regard, we refer to the provision in the preamble where it is stated that the contractor may “demand the installment of the contract sum”.

Unless otherwise agreed, the contractor may require installments “on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

Note also that the right to send an account invoice is limited to once a month as this is regulated in NS 8407.

We refer in this regard to NS 8405 paragraph 28.1, second paragraph, and NS 8406 paragraph 23.3, second paragraph.

9. Documentation requirements for installment payment in NS 8405 and NS 8406

It is stated in NS 8405 paragraph 28.3 that the contractor shall: “send the builder specified invoice which can be checked, if necessary by comparing with the contract documents”. Furthermore, it is stated in the second paragraph that “measurements and other documentation necessary for the builder's control shall be included”.

Similar rules can be found far along in NS 8406 paragraph 23.3.

If one compares the documentation requirement of NS 8405 and NS 8406 with NS 8407 it is probably correct to say that more supporting documentation for an installment invoice is expected in a contract governed by NS 8405 or NS 8406 than is the case in a NS 8407 contract.

10. The builder's payment is not an approval of the foundation

It is clear from the standard contracts that the builder's payment of an installment invoice is not to be regarded as an “approval of the basis of the invoice concerned”.

We refer in this regard to NS 8405 paragraph 28.1, third paragraph, NS 8406 paragraph 23.3, fourth paragraph and NS 8407 paragraph 28.1, second paragraph.

This is an important, and not least necessary, clarification.

11. Contractor's invoicing of other remuneration

It follows from NS 8405 paragraph 28.2, NS 8406 paragraph 23.3, paragraph 6 and NS 8407 paragraph 27.3 that for works other than those originally agreed, which include inter alia amendments, they must be invoiced separately and on separate invoices.

Normally, this is solved by having a separate series of invoices for a account invoices that are usually given the endorsement “A” and with running numbering such as “A-1”, “A-2”, etc., while amendment invoices are given a different endorsement such as “T” or “E” with running numbering.

It is important to note that all three provisions state that such works “to be billed (...) when completed”.

In the case of particularly extensive or costly modification works, this may be demanding for the contractor.

Accordingly, the provisions contain a possibility that the contractor may invoice monthly for the work performed.

The continuation is that the works “is of longer duration”.

For such works, there may be an agreed fixed price, but also the use of unit prices, adjusted unit prices or agreed that the works be carried out on account.

In principle, it does not matter if the contract is based on NS 8405, NS 8406 or NS 8407.

Common to all is that the invoices for modification works should be “specified and attached measurements and other documentation necessary for the builder's control”, cf NS 8407 paragraph 27.4, second paragraph.

A similar provision is found in NS 8405 paragraph 28.3, while NS 8406 paragraph 23.3 requires only that the invoice must be “specified”, which by a long way will imply the same thing.

I'm 12. Bill Worker

In all three forms of contract, there are rules on bill works. In order to keep the articles at a somewhat limited level, we have chosen to write about this topic in a separate article, read here.

I'm 13. Builder's payment obligation and right of withholding

It follows from all three standard contracts that the deadline for payment shall be 28 days unless otherwise agreed, cf. NS 8405 paragraph 29.1, NS 8406 paragraph 23.3, eighth paragraph and NS 8407 paragraph 28.1.

In case of late payment, the builder shall pay late interest, cf. NS 8405 paragraph 30.1, NS 8406 paragraph 3.3, eighth paragraph and NS 8407 paragraph 29.1.

If the builder has counterclaims or objections to the contractor's breach of contract, he may “withhold so much of the payment that this covers the specified and substantiated claim”, see NS 8407, paragraph 28.3.

Similarly follows from NS 8405 paragraph 29.3 and NS 8406 paragraph 23.3, last paragraph.

In experience, such retention can create some challenges and become a burden on cooperation.

A not uncommon situation is that the contractor is so far behind schedule that a account invoice becomes too high compared to what has been added.

If the payment schedule has not been adjusted, the builder has no choice but to reduce the amount to be paid.

If so, the builder should have notified that this is going to happen.

The builder should also justify why he thinks a account invoice is not paid or not paid in full.

Another basis for backtracking is that the builder has uncovered failures in the contractor's works of such a nature that it will be costly to repair.

If one is in the final stages and most of the contract amount has been paid, such errors may justify a withdrawal.

As a builder, one wants a certain spaciousness with respect to the size of such a backstop, but it should be factual and concrete.

In the final stages, questions may also arise as to whether the contractor is, or is going to be, delayed. In that case, the builder will also be able to exercise restraint to obtain security for the expected day mulch.

With this being said, it is clarified that each party must bear the risk of the assumptions on which it is based in such a situation.

14. (Total-) contractor's right of termination in case of builder's payment default

If a builder fails to pay the contractor's invoices at maturity, a not insignificant liquidity challenge is applied to the contractor.

When an installment invoice is due for payment, the contractor will already have advance work and material procurement for a minimum of two months of production.

If a builder defaults on the payment of several instalment invoices or invoices for additional works, etc., the liquidity situation for a contractor may become precarious.

For this reason, among other things, a provision has been made in all three strandard contracts that the contractor has the right to stop his works if the builder defaults substantially on his payment obligation, cf. NS 8405 paragraph 30.2, NS 8406 paragraph 29.2 and NS 8407 paragraph 29.2.

The contractor also has the right to stop if “it is clear that such a default will occur”.

In the assessment of what is “substantially” There are a number of points to be drawn from, several of which have been reflected in the case-law.

What should be noted is that the cessation of works is a very serious reaction, and it is assumed that there is such a serious breach on the part of the builder that the requirement to terminate the contract is fulfilled, cf the materiality requirement.

One should also be aware that the builder may consider a stoppage to represent a material default on the part of the contractor, and decide to terminate the contract with the contractor himself.

For these reasons, our clear request is that you consult with competent legal counsel before deciding to stop.

Finally, it is pointed out that the contractor who wants to stop the works is obliged to notify the builder at least 24 hours before the stoppage takes effect.

The notification is sent in order for the builder to have time to correct his material default, namely, pay overdue claims.

Therefore, the notification must be sent so that there is one working day between the notice and the time of when the stoppage, if any, takes effect.

Tilbake

Remuneration and payment

Kortversjonen

Lytt til artikkelen

1. Introduction

The main obligation of the builder is to pay the contractor for the work performed and, incidentally, in accordance with the agreement of the parties. Non-payment may, in its extreme consequence, constitute a material default with the serious consequences that this can have if the contractor ceases its works.

The rules on payment are therefore very central, and we will deal with these below.

2. Overview of the provisions

Naturally, all three standard contracts have rules on remuneration and payment, namely NS 8405 Chapter V, NS 8406 paragraph 23 and NS 8407 Chapter VI, see the matrix below.

Since NS 8407 is the standard contract that is used most often, we start from this.

3. Briefly about the agreed remuneration

NS 8407, paragraph 26.1, states that the general contractor “is entitled to agreed remuneration”.

The agreed remuneration will normally be the agreed contract amount. In NS 8407 paragraph 1.6, contract sum is defined as “the originally agreed consideration (...) including VAT. The contract sum shall also include the originally agreed estimate of remuneration for services to be settled at unit prices or at bill of charge'.

This is also the definition in NS 8405 paragraph 2.8 and NS 8406 paragraph 2.

In NS 8407 contracts, a fixed price will usually be agreed which is not to be regulated for quantities.

This is in contrast to contracts based on NS 8405 and NS 8406 where there is usually a quantity description in which the individual units are priced, and then a settlement is made in connection with the final settlement.

While NS 8407 has billing schedule provisions, we do not find provisions for this in NS 8405 and NS 8406.

4. Billing Schedule

It follows from NS 8407 paragraph 27.2.1 that “(K) the contract sum shall be paid on the basis of a billing schedule”. Furthermore, it follows that the parties should “Work it out together as soon as possible.” if it has not already been agreed “at the conclusion of the contract”.

The intervals for billing should be one month. If the construction time is estimated at 13 months, the starting point will be that the contract sum is distributed over 13 a account invoices. However, this does not mean that you get 13 account invoices with equal amounts.

Some guidelines are given on how the billing plan should be drawn up in NS 8407 paragraph 27.2.1, third and fourth paragraphs, but the starting point is that the parties can freely agree on what they themselves wish, cf NS 8407 paragraph 27.2.1, second paragraph.

The underlying principle of all invoicing in construction contracts is that contractor gets paid as value is added to construction site.

When creating an invoicing plan, it will therefore have to be based on what is planned to be carried out by works on the construction site, what is supplied by materials for embedding, etc.

In turnkey contracts, engineering is also carried out and then it is natural that invoicing for design work occurs as design material is handed over to the builder.

These general principles are also enshrined as governing how to create a billing plan in which the parties do not agree, cf. NS 8407 paragraph 27.2.1, second and fourth paragraphs.

From NS 8407 paragraph 27.2.1, third paragraph, it follows that the general contractor shall: “draw up a production plan based on the progress plan”.

This production plan shall “show the correlation between planned production and the billing schedule”.

The production plan will provide precisely the kind of information that concerns the planned supply of work and materials to the construction site, the handover of production material to the builder, etc.

In sum, it can therefore be established that the invoicing schedule will normally be harmonized with the planned progress as stated in the progress plan and the production plan, respectively.

5. Billing Schedule Adjustment

If there is an excessive lag between actual production and planned production, the parties may require adjustment of the billing schedule, cf. NS 8407 paragraph 27.2.1, fifth paragraph.

Usually, it will probably be the builder who requires such adjustment because actual progress has remained according to the original plan. Builders rarely want to be fortung in their payment to contractor.

In some cases, the general contractor may also require such adjustment if the works are to be continued, but in this case the condition is that “the forsertion is imposed or agreed with the builder”.

In practice, one may also find that the builder refuses to pay all or part of an a account invoice because it is considered that the progress has come too short compared to what was originally foreseen.

Whether this is considered a default on the part of the builder must be considered concretely.

6. TE/HE is not entitled to prepayment in case of prefabrication

It is not uncommon for parts of a general contractor's deliveries to be prefabricated elsewhere before the units are transported to a construction site for embedding.

Typical examples of this are concrete elements, aggregates, elevators, bathroom modules, etc.

Most often, factories that account for such prefabrication will require a down payment. From time to time, questions arise as to whether the general contractor may include such prepayment as part of the basis for a account payment.

There is freedom of agreement and the builder can of course accept that this is done.

If one does not agree, and must rely on the provisions of NS 8407 paragraph 27.2.1, fourth paragraph, the starting point will be that the general contractor cannot claim this.

In that regard, point (c) of the fourth paragraph of the provision states that “(M) materials, parts, etc. entitle to invoicing when supplied to the construction site to be incorporated”.

The quoted is the main rule and is also stated in NS 8405 paragraph 28.1, first paragraph where it states that installments “may be required on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

A contractor wishing to cover his advance payment to his own contract assistants when ordering goods and services produced elsewhere than on the construction site must therefore address this in particular with the builder.

7. Documentation requirements for a account billing

When an entrepreneur invoices according to an agreed billing plan, it follows from NS 8407 paragraph 27.4 that the contractor must attach the documentation required by the plan.

In other words, it will vary how much documentation is attached to an ordinary a account invoice.

Often it will not be accompanied by significant documentation because the builder has reasonable control that the actual progress matches the agreed progress schedule. As long as a account invoice matches the agreed billing schedule, the builder will be able to have the necessary confidence in the size of the invoice.

8. Progress payment in NS 8405 and NS 8406

There are no provisions in NS 8405 (or NS 8406) that prevent the parties from agreeing on a payment plan with ongoing a account billing as described in NS 8407.

On the contrary, NS 8405 paragraph 28.1 “Settlement of contract amount and withholding” assumes that the parties may have entered into an agreement on billing that does not follow the principles of NS 8405. In this regard, we refer to the provision in the preamble where it is stated that the contractor may “demand the installment of the contract sum”.

Unless otherwise agreed, the contractor may require installments “on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

Note also that the right to send an account invoice is limited to once a month as this is regulated in NS 8407.

We refer in this regard to NS 8405 paragraph 28.1, second paragraph, and NS 8406 paragraph 23.3, second paragraph.

9. Documentation requirements for installment payment in NS 8405 and NS 8406

It is stated in NS 8405 paragraph 28.3 that the contractor shall: “send the builder specified invoice which can be checked, if necessary by comparing with the contract documents”. Furthermore, it is stated in the second paragraph that “measurements and other documentation necessary for the builder's control shall be included”.

Similar rules can be found far along in NS 8406 paragraph 23.3.

If one compares the documentation requirement of NS 8405 and NS 8406 with NS 8407 it is probably correct to say that more supporting documentation for an installment invoice is expected in a contract governed by NS 8405 or NS 8406 than is the case in a NS 8407 contract.

10. The builder's payment is not an approval of the foundation

It is clear from the standard contracts that the builder's payment of an installment invoice is not to be regarded as an “approval of the basis of the invoice concerned”.

We refer in this regard to NS 8405 paragraph 28.1, third paragraph, NS 8406 paragraph 23.3, fourth paragraph and NS 8407 paragraph 28.1, second paragraph.

This is an important, and not least necessary, clarification.

11. Contractor's invoicing of other remuneration

It follows from NS 8405 paragraph 28.2, NS 8406 paragraph 23.3, paragraph 6 and NS 8407 paragraph 27.3 that for works other than those originally agreed, which include inter alia amendments, they must be invoiced separately and on separate invoices.

Normally, this is solved by having a separate series of invoices for a account invoices that are usually given the endorsement “A” and with running numbering such as “A-1”, “A-2”, etc., while amendment invoices are given a different endorsement such as “T” or “E” with running numbering.

It is important to note that all three provisions state that such works “to be billed (...) when completed”.

In the case of particularly extensive or costly modification works, this may be demanding for the contractor.

Accordingly, the provisions contain a possibility that the contractor may invoice monthly for the work performed.

The continuation is that the works “is of longer duration”.

For such works, there may be an agreed fixed price, but also the use of unit prices, adjusted unit prices or agreed that the works be carried out on account.

In principle, it does not matter if the contract is based on NS 8405, NS 8406 or NS 8407.

Common to all is that the invoices for modification works should be “specified and attached measurements and other documentation necessary for the builder's control”, cf NS 8407 paragraph 27.4, second paragraph.

A similar provision is found in NS 8405 paragraph 28.3, while NS 8406 paragraph 23.3 requires only that the invoice must be “specified”, which by a long way will imply the same thing.

I'm 12. Bill Worker

In all three forms of contract, there are rules on bill works. In order to keep the articles at a somewhat limited level, we have chosen to write about this topic in a separate article, read here.

I'm 13. Builder's payment obligation and right of withholding

It follows from all three standard contracts that the deadline for payment shall be 28 days unless otherwise agreed, cf. NS 8405 paragraph 29.1, NS 8406 paragraph 23.3, eighth paragraph and NS 8407 paragraph 28.1.

In case of late payment, the builder shall pay late interest, cf. NS 8405 paragraph 30.1, NS 8406 paragraph 3.3, eighth paragraph and NS 8407 paragraph 29.1.

If the builder has counterclaims or objections to the contractor's breach of contract, he may “withhold so much of the payment that this covers the specified and substantiated claim”, see NS 8407, paragraph 28.3.

Similarly follows from NS 8405 paragraph 29.3 and NS 8406 paragraph 23.3, last paragraph.

In experience, such retention can create some challenges and become a burden on cooperation.

A not uncommon situation is that the contractor is so far behind schedule that a account invoice becomes too high compared to what has been added.

If the payment schedule has not been adjusted, the builder has no choice but to reduce the amount to be paid.

If so, the builder should have notified that this is going to happen.

The builder should also justify why he thinks a account invoice is not paid or not paid in full.

Another basis for backtracking is that the builder has uncovered failures in the contractor's works of such a nature that it will be costly to repair.

If one is in the final stages and most of the contract amount has been paid, such errors may justify a withdrawal.

As a builder, one wants a certain spaciousness with respect to the size of such a backstop, but it should be factual and concrete.

In the final stages, questions may also arise as to whether the contractor is, or is going to be, delayed. In that case, the builder will also be able to exercise restraint to obtain security for the expected day mulch.

With this being said, it is clarified that each party must bear the risk of the assumptions on which it is based in such a situation.

14. (Total-) contractor's right of termination in case of builder's payment default

If a builder fails to pay the contractor's invoices at maturity, a not insignificant liquidity challenge is applied to the contractor.

When an installment invoice is due for payment, the contractor will already have advance work and material procurement for a minimum of two months of production.

If a builder defaults on the payment of several instalment invoices or invoices for additional works, etc., the liquidity situation for a contractor may become precarious.

For this reason, among other things, a provision has been made in all three strandard contracts that the contractor has the right to stop his works if the builder defaults substantially on his payment obligation, cf. NS 8405 paragraph 30.2, NS 8406 paragraph 29.2 and NS 8407 paragraph 29.2.

The contractor also has the right to stop if “it is clear that such a default will occur”.

In the assessment of what is “substantially” There are a number of points to be drawn from, several of which have been reflected in the case-law.

What should be noted is that the cessation of works is a very serious reaction, and it is assumed that there is such a serious breach on the part of the builder that the requirement to terminate the contract is fulfilled, cf the materiality requirement.

One should also be aware that the builder may consider a stoppage to represent a material default on the part of the contractor, and decide to terminate the contract with the contractor himself.

For these reasons, our clear request is that you consult with competent legal counsel before deciding to stop.

Finally, it is pointed out that the contractor who wants to stop the works is obliged to notify the builder at least 24 hours before the stoppage takes effect.

The notification is sent in order for the builder to have time to correct his material default, namely, pay overdue claims.

Therefore, the notification must be sent so that there is one working day between the notice and the time of when the stoppage, if any, takes effect.

Tilbake

Remuneration and payment

Kortversjonen

Lytt til artikkelen

1. Introduction

The main obligation of the builder is to pay the contractor for the work performed and, incidentally, in accordance with the agreement of the parties. Non-payment may, in its extreme consequence, constitute a material default with the serious consequences that this can have if the contractor ceases its works.

The rules on payment are therefore very central, and we will deal with these below.

2. Overview of the provisions

Naturally, all three standard contracts have rules on remuneration and payment, namely NS 8405 Chapter V, NS 8406 paragraph 23 and NS 8407 Chapter VI, see the matrix below.

Since NS 8407 is the standard contract that is used most often, we start from this.

3. Briefly about the agreed remuneration

NS 8407, paragraph 26.1, states that the general contractor “is entitled to agreed remuneration”.

The agreed remuneration will normally be the agreed contract amount. In NS 8407 paragraph 1.6, contract sum is defined as “the originally agreed consideration (...) including VAT. The contract sum shall also include the originally agreed estimate of remuneration for services to be settled at unit prices or at bill of charge'.

This is also the definition in NS 8405 paragraph 2.8 and NS 8406 paragraph 2.

In NS 8407 contracts, a fixed price will usually be agreed which is not to be regulated for quantities.

This is in contrast to contracts based on NS 8405 and NS 8406 where there is usually a quantity description in which the individual units are priced, and then a settlement is made in connection with the final settlement.

While NS 8407 has billing schedule provisions, we do not find provisions for this in NS 8405 and NS 8406.

4. Billing Schedule

It follows from NS 8407 paragraph 27.2.1 that “(K) the contract sum shall be paid on the basis of a billing schedule”. Furthermore, it follows that the parties should “Work it out together as soon as possible.” if it has not already been agreed “at the conclusion of the contract”.

The intervals for billing should be one month. If the construction time is estimated at 13 months, the starting point will be that the contract sum is distributed over 13 a account invoices. However, this does not mean that you get 13 account invoices with equal amounts.

Some guidelines are given on how the billing plan should be drawn up in NS 8407 paragraph 27.2.1, third and fourth paragraphs, but the starting point is that the parties can freely agree on what they themselves wish, cf NS 8407 paragraph 27.2.1, second paragraph.

The underlying principle of all invoicing in construction contracts is that contractor gets paid as value is added to construction site.

When creating an invoicing plan, it will therefore have to be based on what is planned to be carried out by works on the construction site, what is supplied by materials for embedding, etc.

In turnkey contracts, engineering is also carried out and then it is natural that invoicing for design work occurs as design material is handed over to the builder.

These general principles are also enshrined as governing how to create a billing plan in which the parties do not agree, cf. NS 8407 paragraph 27.2.1, second and fourth paragraphs.

From NS 8407 paragraph 27.2.1, third paragraph, it follows that the general contractor shall: “draw up a production plan based on the progress plan”.

This production plan shall “show the correlation between planned production and the billing schedule”.

The production plan will provide precisely the kind of information that concerns the planned supply of work and materials to the construction site, the handover of production material to the builder, etc.

In sum, it can therefore be established that the invoicing schedule will normally be harmonized with the planned progress as stated in the progress plan and the production plan, respectively.

5. Billing Schedule Adjustment

If there is an excessive lag between actual production and planned production, the parties may require adjustment of the billing schedule, cf. NS 8407 paragraph 27.2.1, fifth paragraph.

Usually, it will probably be the builder who requires such adjustment because actual progress has remained according to the original plan. Builders rarely want to be fortung in their payment to contractor.

In some cases, the general contractor may also require such adjustment if the works are to be continued, but in this case the condition is that “the forsertion is imposed or agreed with the builder”.

In practice, one may also find that the builder refuses to pay all or part of an a account invoice because it is considered that the progress has come too short compared to what was originally foreseen.

Whether this is considered a default on the part of the builder must be considered concretely.

6. TE/HE is not entitled to prepayment in case of prefabrication

It is not uncommon for parts of a general contractor's deliveries to be prefabricated elsewhere before the units are transported to a construction site for embedding.

Typical examples of this are concrete elements, aggregates, elevators, bathroom modules, etc.

Most often, factories that account for such prefabrication will require a down payment. From time to time, questions arise as to whether the general contractor may include such prepayment as part of the basis for a account payment.

There is freedom of agreement and the builder can of course accept that this is done.

If one does not agree, and must rely on the provisions of NS 8407 paragraph 27.2.1, fourth paragraph, the starting point will be that the general contractor cannot claim this.

In that regard, point (c) of the fourth paragraph of the provision states that “(M) materials, parts, etc. entitle to invoicing when supplied to the construction site to be incorporated”.

The quoted is the main rule and is also stated in NS 8405 paragraph 28.1, first paragraph where it states that installments “may be required on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

A contractor wishing to cover his advance payment to his own contract assistants when ordering goods and services produced elsewhere than on the construction site must therefore address this in particular with the builder.

7. Documentation requirements for a account billing

When an entrepreneur invoices according to an agreed billing plan, it follows from NS 8407 paragraph 27.4 that the contractor must attach the documentation required by the plan.

In other words, it will vary how much documentation is attached to an ordinary a account invoice.

Often it will not be accompanied by significant documentation because the builder has reasonable control that the actual progress matches the agreed progress schedule. As long as a account invoice matches the agreed billing schedule, the builder will be able to have the necessary confidence in the size of the invoice.

8. Progress payment in NS 8405 and NS 8406

There are no provisions in NS 8405 (or NS 8406) that prevent the parties from agreeing on a payment plan with ongoing a account billing as described in NS 8407.

On the contrary, NS 8405 paragraph 28.1 “Settlement of contract amount and withholding” assumes that the parties may have entered into an agreement on billing that does not follow the principles of NS 8405. In this regard, we refer to the provision in the preamble where it is stated that the contractor may “demand the installment of the contract sum”.

Unless otherwise agreed, the contractor may require installments “on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

Note also that the right to send an account invoice is limited to once a month as this is regulated in NS 8407.

We refer in this regard to NS 8405 paragraph 28.1, second paragraph, and NS 8406 paragraph 23.3, second paragraph.

9. Documentation requirements for installment payment in NS 8405 and NS 8406

It is stated in NS 8405 paragraph 28.3 that the contractor shall: “send the builder specified invoice which can be checked, if necessary by comparing with the contract documents”. Furthermore, it is stated in the second paragraph that “measurements and other documentation necessary for the builder's control shall be included”.

Similar rules can be found far along in NS 8406 paragraph 23.3.

If one compares the documentation requirement of NS 8405 and NS 8406 with NS 8407 it is probably correct to say that more supporting documentation for an installment invoice is expected in a contract governed by NS 8405 or NS 8406 than is the case in a NS 8407 contract.

10. The builder's payment is not an approval of the foundation

It is clear from the standard contracts that the builder's payment of an installment invoice is not to be regarded as an “approval of the basis of the invoice concerned”.

We refer in this regard to NS 8405 paragraph 28.1, third paragraph, NS 8406 paragraph 23.3, fourth paragraph and NS 8407 paragraph 28.1, second paragraph.

This is an important, and not least necessary, clarification.

11. Contractor's invoicing of other remuneration

It follows from NS 8405 paragraph 28.2, NS 8406 paragraph 23.3, paragraph 6 and NS 8407 paragraph 27.3 that for works other than those originally agreed, which include inter alia amendments, they must be invoiced separately and on separate invoices.

Normally, this is solved by having a separate series of invoices for a account invoices that are usually given the endorsement “A” and with running numbering such as “A-1”, “A-2”, etc., while amendment invoices are given a different endorsement such as “T” or “E” with running numbering.

It is important to note that all three provisions state that such works “to be billed (...) when completed”.

In the case of particularly extensive or costly modification works, this may be demanding for the contractor.

Accordingly, the provisions contain a possibility that the contractor may invoice monthly for the work performed.

The continuation is that the works “is of longer duration”.

For such works, there may be an agreed fixed price, but also the use of unit prices, adjusted unit prices or agreed that the works be carried out on account.

In principle, it does not matter if the contract is based on NS 8405, NS 8406 or NS 8407.

Common to all is that the invoices for modification works should be “specified and attached measurements and other documentation necessary for the builder's control”, cf NS 8407 paragraph 27.4, second paragraph.

A similar provision is found in NS 8405 paragraph 28.3, while NS 8406 paragraph 23.3 requires only that the invoice must be “specified”, which by a long way will imply the same thing.

I'm 12. Bill Worker

In all three forms of contract, there are rules on bill works. In order to keep the articles at a somewhat limited level, we have chosen to write about this topic in a separate article, read here.

I'm 13. Builder's payment obligation and right of withholding

It follows from all three standard contracts that the deadline for payment shall be 28 days unless otherwise agreed, cf. NS 8405 paragraph 29.1, NS 8406 paragraph 23.3, eighth paragraph and NS 8407 paragraph 28.1.

In case of late payment, the builder shall pay late interest, cf. NS 8405 paragraph 30.1, NS 8406 paragraph 3.3, eighth paragraph and NS 8407 paragraph 29.1.

If the builder has counterclaims or objections to the contractor's breach of contract, he may “withhold so much of the payment that this covers the specified and substantiated claim”, see NS 8407, paragraph 28.3.

Similarly follows from NS 8405 paragraph 29.3 and NS 8406 paragraph 23.3, last paragraph.

In experience, such retention can create some challenges and become a burden on cooperation.

A not uncommon situation is that the contractor is so far behind schedule that a account invoice becomes too high compared to what has been added.

If the payment schedule has not been adjusted, the builder has no choice but to reduce the amount to be paid.

If so, the builder should have notified that this is going to happen.

The builder should also justify why he thinks a account invoice is not paid or not paid in full.

Another basis for backtracking is that the builder has uncovered failures in the contractor's works of such a nature that it will be costly to repair.

If one is in the final stages and most of the contract amount has been paid, such errors may justify a withdrawal.

As a builder, one wants a certain spaciousness with respect to the size of such a backstop, but it should be factual and concrete.

In the final stages, questions may also arise as to whether the contractor is, or is going to be, delayed. In that case, the builder will also be able to exercise restraint to obtain security for the expected day mulch.

With this being said, it is clarified that each party must bear the risk of the assumptions on which it is based in such a situation.

14. (Total-) contractor's right of termination in case of builder's payment default

If a builder fails to pay the contractor's invoices at maturity, a not insignificant liquidity challenge is applied to the contractor.

When an installment invoice is due for payment, the contractor will already have advance work and material procurement for a minimum of two months of production.

If a builder defaults on the payment of several instalment invoices or invoices for additional works, etc., the liquidity situation for a contractor may become precarious.

For this reason, among other things, a provision has been made in all three strandard contracts that the contractor has the right to stop his works if the builder defaults substantially on his payment obligation, cf. NS 8405 paragraph 30.2, NS 8406 paragraph 29.2 and NS 8407 paragraph 29.2.

The contractor also has the right to stop if “it is clear that such a default will occur”.

In the assessment of what is “substantially” There are a number of points to be drawn from, several of which have been reflected in the case-law.

What should be noted is that the cessation of works is a very serious reaction, and it is assumed that there is such a serious breach on the part of the builder that the requirement to terminate the contract is fulfilled, cf the materiality requirement.

One should also be aware that the builder may consider a stoppage to represent a material default on the part of the contractor, and decide to terminate the contract with the contractor himself.

For these reasons, our clear request is that you consult with competent legal counsel before deciding to stop.

Finally, it is pointed out that the contractor who wants to stop the works is obliged to notify the builder at least 24 hours before the stoppage takes effect.

The notification is sent in order for the builder to have time to correct his material default, namely, pay overdue claims.

Therefore, the notification must be sent so that there is one working day between the notice and the time of when the stoppage, if any, takes effect.

Tilbake

Remuneration and payment

Kortversjonen

Lytt til artikkelen

1. Introduction

The main obligation of the builder is to pay the contractor for the work performed and, incidentally, in accordance with the agreement of the parties. Non-payment may, in its extreme consequence, constitute a material default with the serious consequences that this can have if the contractor ceases its works.

The rules on payment are therefore very central, and we will deal with these below.

2. Overview of the provisions

Naturally, all three standard contracts have rules on remuneration and payment, namely NS 8405 Chapter V, NS 8406 paragraph 23 and NS 8407 Chapter VI, see the matrix below.

Since NS 8407 is the standard contract that is used most often, we start from this.

3. Briefly about the agreed remuneration

NS 8407, paragraph 26.1, states that the general contractor “is entitled to agreed remuneration”.

The agreed remuneration will normally be the agreed contract amount. In NS 8407 paragraph 1.6, contract sum is defined as “the originally agreed consideration (...) including VAT. The contract sum shall also include the originally agreed estimate of remuneration for services to be settled at unit prices or at bill of charge'.

This is also the definition in NS 8405 paragraph 2.8 and NS 8406 paragraph 2.

In NS 8407 contracts, a fixed price will usually be agreed which is not to be regulated for quantities.

This is in contrast to contracts based on NS 8405 and NS 8406 where there is usually a quantity description in which the individual units are priced, and then a settlement is made in connection with the final settlement.

While NS 8407 has billing schedule provisions, we do not find provisions for this in NS 8405 and NS 8406.

4. Billing Schedule

It follows from NS 8407 paragraph 27.2.1 that “(K) the contract sum shall be paid on the basis of a billing schedule”. Furthermore, it follows that the parties should “Work it out together as soon as possible.” if it has not already been agreed “at the conclusion of the contract”.

The intervals for billing should be one month. If the construction time is estimated at 13 months, the starting point will be that the contract sum is distributed over 13 a account invoices. However, this does not mean that you get 13 account invoices with equal amounts.

Some guidelines are given on how the billing plan should be drawn up in NS 8407 paragraph 27.2.1, third and fourth paragraphs, but the starting point is that the parties can freely agree on what they themselves wish, cf NS 8407 paragraph 27.2.1, second paragraph.

The underlying principle of all invoicing in construction contracts is that contractor gets paid as value is added to construction site.

When creating an invoicing plan, it will therefore have to be based on what is planned to be carried out by works on the construction site, what is supplied by materials for embedding, etc.

In turnkey contracts, engineering is also carried out and then it is natural that invoicing for design work occurs as design material is handed over to the builder.

These general principles are also enshrined as governing how to create a billing plan in which the parties do not agree, cf. NS 8407 paragraph 27.2.1, second and fourth paragraphs.

From NS 8407 paragraph 27.2.1, third paragraph, it follows that the general contractor shall: “draw up a production plan based on the progress plan”.

This production plan shall “show the correlation between planned production and the billing schedule”.

The production plan will provide precisely the kind of information that concerns the planned supply of work and materials to the construction site, the handover of production material to the builder, etc.

In sum, it can therefore be established that the invoicing schedule will normally be harmonized with the planned progress as stated in the progress plan and the production plan, respectively.

5. Billing Schedule Adjustment

If there is an excessive lag between actual production and planned production, the parties may require adjustment of the billing schedule, cf. NS 8407 paragraph 27.2.1, fifth paragraph.

Usually, it will probably be the builder who requires such adjustment because actual progress has remained according to the original plan. Builders rarely want to be fortung in their payment to contractor.

In some cases, the general contractor may also require such adjustment if the works are to be continued, but in this case the condition is that “the forsertion is imposed or agreed with the builder”.

In practice, one may also find that the builder refuses to pay all or part of an a account invoice because it is considered that the progress has come too short compared to what was originally foreseen.

Whether this is considered a default on the part of the builder must be considered concretely.

6. TE/HE is not entitled to prepayment in case of prefabrication

It is not uncommon for parts of a general contractor's deliveries to be prefabricated elsewhere before the units are transported to a construction site for embedding.

Typical examples of this are concrete elements, aggregates, elevators, bathroom modules, etc.

Most often, factories that account for such prefabrication will require a down payment. From time to time, questions arise as to whether the general contractor may include such prepayment as part of the basis for a account payment.

There is freedom of agreement and the builder can of course accept that this is done.

If one does not agree, and must rely on the provisions of NS 8407 paragraph 27.2.1, fourth paragraph, the starting point will be that the general contractor cannot claim this.

In that regard, point (c) of the fourth paragraph of the provision states that “(M) materials, parts, etc. entitle to invoicing when supplied to the construction site to be incorporated”.

The quoted is the main rule and is also stated in NS 8405 paragraph 28.1, first paragraph where it states that installments “may be required on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

A contractor wishing to cover his advance payment to his own contract assistants when ordering goods and services produced elsewhere than on the construction site must therefore address this in particular with the builder.

7. Documentation requirements for a account billing

When an entrepreneur invoices according to an agreed billing plan, it follows from NS 8407 paragraph 27.4 that the contractor must attach the documentation required by the plan.

In other words, it will vary how much documentation is attached to an ordinary a account invoice.

Often it will not be accompanied by significant documentation because the builder has reasonable control that the actual progress matches the agreed progress schedule. As long as a account invoice matches the agreed billing schedule, the builder will be able to have the necessary confidence in the size of the invoice.

8. Progress payment in NS 8405 and NS 8406

There are no provisions in NS 8405 (or NS 8406) that prevent the parties from agreeing on a payment plan with ongoing a account billing as described in NS 8407.

On the contrary, NS 8405 paragraph 28.1 “Settlement of contract amount and withholding” assumes that the parties may have entered into an agreement on billing that does not follow the principles of NS 8405. In this regard, we refer to the provision in the preamble where it is stated that the contractor may “demand the installment of the contract sum”.

Unless otherwise agreed, the contractor may require installments “on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

Note also that the right to send an account invoice is limited to once a month as this is regulated in NS 8407.

We refer in this regard to NS 8405 paragraph 28.1, second paragraph, and NS 8406 paragraph 23.3, second paragraph.

9. Documentation requirements for installment payment in NS 8405 and NS 8406

It is stated in NS 8405 paragraph 28.3 that the contractor shall: “send the builder specified invoice which can be checked, if necessary by comparing with the contract documents”. Furthermore, it is stated in the second paragraph that “measurements and other documentation necessary for the builder's control shall be included”.

Similar rules can be found far along in NS 8406 paragraph 23.3.

If one compares the documentation requirement of NS 8405 and NS 8406 with NS 8407 it is probably correct to say that more supporting documentation for an installment invoice is expected in a contract governed by NS 8405 or NS 8406 than is the case in a NS 8407 contract.

10. The builder's payment is not an approval of the foundation

It is clear from the standard contracts that the builder's payment of an installment invoice is not to be regarded as an “approval of the basis of the invoice concerned”.

We refer in this regard to NS 8405 paragraph 28.1, third paragraph, NS 8406 paragraph 23.3, fourth paragraph and NS 8407 paragraph 28.1, second paragraph.

This is an important, and not least necessary, clarification.

11. Contractor's invoicing of other remuneration

It follows from NS 8405 paragraph 28.2, NS 8406 paragraph 23.3, paragraph 6 and NS 8407 paragraph 27.3 that for works other than those originally agreed, which include inter alia amendments, they must be invoiced separately and on separate invoices.

Normally, this is solved by having a separate series of invoices for a account invoices that are usually given the endorsement “A” and with running numbering such as “A-1”, “A-2”, etc., while amendment invoices are given a different endorsement such as “T” or “E” with running numbering.

It is important to note that all three provisions state that such works “to be billed (...) when completed”.

In the case of particularly extensive or costly modification works, this may be demanding for the contractor.

Accordingly, the provisions contain a possibility that the contractor may invoice monthly for the work performed.

The continuation is that the works “is of longer duration”.

For such works, there may be an agreed fixed price, but also the use of unit prices, adjusted unit prices or agreed that the works be carried out on account.

In principle, it does not matter if the contract is based on NS 8405, NS 8406 or NS 8407.

Common to all is that the invoices for modification works should be “specified and attached measurements and other documentation necessary for the builder's control”, cf NS 8407 paragraph 27.4, second paragraph.

A similar provision is found in NS 8405 paragraph 28.3, while NS 8406 paragraph 23.3 requires only that the invoice must be “specified”, which by a long way will imply the same thing.

I'm 12. Bill Worker

In all three forms of contract, there are rules on bill works. In order to keep the articles at a somewhat limited level, we have chosen to write about this topic in a separate article, read here.

I'm 13. Builder's payment obligation and right of withholding

It follows from all three standard contracts that the deadline for payment shall be 28 days unless otherwise agreed, cf. NS 8405 paragraph 29.1, NS 8406 paragraph 23.3, eighth paragraph and NS 8407 paragraph 28.1.

In case of late payment, the builder shall pay late interest, cf. NS 8405 paragraph 30.1, NS 8406 paragraph 3.3, eighth paragraph and NS 8407 paragraph 29.1.

If the builder has counterclaims or objections to the contractor's breach of contract, he may “withhold so much of the payment that this covers the specified and substantiated claim”, see NS 8407, paragraph 28.3.

Similarly follows from NS 8405 paragraph 29.3 and NS 8406 paragraph 23.3, last paragraph.

In experience, such retention can create some challenges and become a burden on cooperation.

A not uncommon situation is that the contractor is so far behind schedule that a account invoice becomes too high compared to what has been added.

If the payment schedule has not been adjusted, the builder has no choice but to reduce the amount to be paid.

If so, the builder should have notified that this is going to happen.

The builder should also justify why he thinks a account invoice is not paid or not paid in full.

Another basis for backtracking is that the builder has uncovered failures in the contractor's works of such a nature that it will be costly to repair.

If one is in the final stages and most of the contract amount has been paid, such errors may justify a withdrawal.

As a builder, one wants a certain spaciousness with respect to the size of such a backstop, but it should be factual and concrete.

In the final stages, questions may also arise as to whether the contractor is, or is going to be, delayed. In that case, the builder will also be able to exercise restraint to obtain security for the expected day mulch.

With this being said, it is clarified that each party must bear the risk of the assumptions on which it is based in such a situation.

14. (Total-) contractor's right of termination in case of builder's payment default

If a builder fails to pay the contractor's invoices at maturity, a not insignificant liquidity challenge is applied to the contractor.

When an installment invoice is due for payment, the contractor will already have advance work and material procurement for a minimum of two months of production.

If a builder defaults on the payment of several instalment invoices or invoices for additional works, etc., the liquidity situation for a contractor may become precarious.

For this reason, among other things, a provision has been made in all three strandard contracts that the contractor has the right to stop his works if the builder defaults substantially on his payment obligation, cf. NS 8405 paragraph 30.2, NS 8406 paragraph 29.2 and NS 8407 paragraph 29.2.

The contractor also has the right to stop if “it is clear that such a default will occur”.

In the assessment of what is “substantially” There are a number of points to be drawn from, several of which have been reflected in the case-law.

What should be noted is that the cessation of works is a very serious reaction, and it is assumed that there is such a serious breach on the part of the builder that the requirement to terminate the contract is fulfilled, cf the materiality requirement.

One should also be aware that the builder may consider a stoppage to represent a material default on the part of the contractor, and decide to terminate the contract with the contractor himself.

For these reasons, our clear request is that you consult with competent legal counsel before deciding to stop.

Finally, it is pointed out that the contractor who wants to stop the works is obliged to notify the builder at least 24 hours before the stoppage takes effect.

The notification is sent in order for the builder to have time to correct his material default, namely, pay overdue claims.

Therefore, the notification must be sent so that there is one working day between the notice and the time of when the stoppage, if any, takes effect.

Remuneration and payment

Kortversjonen

Lytt til artikkelen

1. Introduction

The main obligation of the builder is to pay the contractor for the work performed and, incidentally, in accordance with the agreement of the parties. Non-payment may, in its extreme consequence, constitute a material default with the serious consequences that this can have if the contractor ceases its works.

The rules on payment are therefore very central, and we will deal with these below.

2. Overview of the provisions

Naturally, all three standard contracts have rules on remuneration and payment, namely NS 8405 Chapter V, NS 8406 paragraph 23 and NS 8407 Chapter VI, see the matrix below.

Since NS 8407 is the standard contract that is used most often, we start from this.

3. Briefly about the agreed remuneration

NS 8407, paragraph 26.1, states that the general contractor “is entitled to agreed remuneration”.

The agreed remuneration will normally be the agreed contract amount. In NS 8407 paragraph 1.6, contract sum is defined as “the originally agreed consideration (...) including VAT. The contract sum shall also include the originally agreed estimate of remuneration for services to be settled at unit prices or at bill of charge'.

This is also the definition in NS 8405 paragraph 2.8 and NS 8406 paragraph 2.

In NS 8407 contracts, a fixed price will usually be agreed which is not to be regulated for quantities.

This is in contrast to contracts based on NS 8405 and NS 8406 where there is usually a quantity description in which the individual units are priced, and then a settlement is made in connection with the final settlement.

While NS 8407 has billing schedule provisions, we do not find provisions for this in NS 8405 and NS 8406.

4. Billing Schedule

It follows from NS 8407 paragraph 27.2.1 that “(K) the contract sum shall be paid on the basis of a billing schedule”. Furthermore, it follows that the parties should “Work it out together as soon as possible.” if it has not already been agreed “at the conclusion of the contract”.

The intervals for billing should be one month. If the construction time is estimated at 13 months, the starting point will be that the contract sum is distributed over 13 a account invoices. However, this does not mean that you get 13 account invoices with equal amounts.

Some guidelines are given on how the billing plan should be drawn up in NS 8407 paragraph 27.2.1, third and fourth paragraphs, but the starting point is that the parties can freely agree on what they themselves wish, cf NS 8407 paragraph 27.2.1, second paragraph.

The underlying principle of all invoicing in construction contracts is that contractor gets paid as value is added to construction site.

When creating an invoicing plan, it will therefore have to be based on what is planned to be carried out by works on the construction site, what is supplied by materials for embedding, etc.

In turnkey contracts, engineering is also carried out and then it is natural that invoicing for design work occurs as design material is handed over to the builder.

These general principles are also enshrined as governing how to create a billing plan in which the parties do not agree, cf. NS 8407 paragraph 27.2.1, second and fourth paragraphs.

From NS 8407 paragraph 27.2.1, third paragraph, it follows that the general contractor shall: “draw up a production plan based on the progress plan”.

This production plan shall “show the correlation between planned production and the billing schedule”.

The production plan will provide precisely the kind of information that concerns the planned supply of work and materials to the construction site, the handover of production material to the builder, etc.

In sum, it can therefore be established that the invoicing schedule will normally be harmonized with the planned progress as stated in the progress plan and the production plan, respectively.

5. Billing Schedule Adjustment

If there is an excessive lag between actual production and planned production, the parties may require adjustment of the billing schedule, cf. NS 8407 paragraph 27.2.1, fifth paragraph.

Usually, it will probably be the builder who requires such adjustment because actual progress has remained according to the original plan. Builders rarely want to be fortung in their payment to contractor.

In some cases, the general contractor may also require such adjustment if the works are to be continued, but in this case the condition is that “the forsertion is imposed or agreed with the builder”.

In practice, one may also find that the builder refuses to pay all or part of an a account invoice because it is considered that the progress has come too short compared to what was originally foreseen.

Whether this is considered a default on the part of the builder must be considered concretely.

6. TE/HE is not entitled to prepayment in case of prefabrication

It is not uncommon for parts of a general contractor's deliveries to be prefabricated elsewhere before the units are transported to a construction site for embedding.

Typical examples of this are concrete elements, aggregates, elevators, bathroom modules, etc.

Most often, factories that account for such prefabrication will require a down payment. From time to time, questions arise as to whether the general contractor may include such prepayment as part of the basis for a account payment.

There is freedom of agreement and the builder can of course accept that this is done.

If one does not agree, and must rely on the provisions of NS 8407 paragraph 27.2.1, fourth paragraph, the starting point will be that the general contractor cannot claim this.

In that regard, point (c) of the fourth paragraph of the provision states that “(M) materials, parts, etc. entitle to invoicing when supplied to the construction site to be incorporated”.

The quoted is the main rule and is also stated in NS 8405 paragraph 28.1, first paragraph where it states that installments “may be required on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

A contractor wishing to cover his advance payment to his own contract assistants when ordering goods and services produced elsewhere than on the construction site must therefore address this in particular with the builder.

7. Documentation requirements for a account billing

When an entrepreneur invoices according to an agreed billing plan, it follows from NS 8407 paragraph 27.4 that the contractor must attach the documentation required by the plan.

In other words, it will vary how much documentation is attached to an ordinary a account invoice.

Often it will not be accompanied by significant documentation because the builder has reasonable control that the actual progress matches the agreed progress schedule. As long as a account invoice matches the agreed billing schedule, the builder will be able to have the necessary confidence in the size of the invoice.

8. Progress payment in NS 8405 and NS 8406

There are no provisions in NS 8405 (or NS 8406) that prevent the parties from agreeing on a payment plan with ongoing a account billing as described in NS 8407.

On the contrary, NS 8405 paragraph 28.1 “Settlement of contract amount and withholding” assumes that the parties may have entered into an agreement on billing that does not follow the principles of NS 8405. In this regard, we refer to the provision in the preamble where it is stated that the contractor may “demand the installment of the contract sum”.

Unless otherwise agreed, the contractor may require installments “on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

Note also that the right to send an account invoice is limited to once a month as this is regulated in NS 8407.

We refer in this regard to NS 8405 paragraph 28.1, second paragraph, and NS 8406 paragraph 23.3, second paragraph.

9. Documentation requirements for installment payment in NS 8405 and NS 8406

It is stated in NS 8405 paragraph 28.3 that the contractor shall: “send the builder specified invoice which can be checked, if necessary by comparing with the contract documents”. Furthermore, it is stated in the second paragraph that “measurements and other documentation necessary for the builder's control shall be included”.

Similar rules can be found far along in NS 8406 paragraph 23.3.

If one compares the documentation requirement of NS 8405 and NS 8406 with NS 8407 it is probably correct to say that more supporting documentation for an installment invoice is expected in a contract governed by NS 8405 or NS 8406 than is the case in a NS 8407 contract.

10. The builder's payment is not an approval of the foundation

It is clear from the standard contracts that the builder's payment of an installment invoice is not to be regarded as an “approval of the basis of the invoice concerned”.

We refer in this regard to NS 8405 paragraph 28.1, third paragraph, NS 8406 paragraph 23.3, fourth paragraph and NS 8407 paragraph 28.1, second paragraph.

This is an important, and not least necessary, clarification.

11. Contractor's invoicing of other remuneration

It follows from NS 8405 paragraph 28.2, NS 8406 paragraph 23.3, paragraph 6 and NS 8407 paragraph 27.3 that for works other than those originally agreed, which include inter alia amendments, they must be invoiced separately and on separate invoices.

Normally, this is solved by having a separate series of invoices for a account invoices that are usually given the endorsement “A” and with running numbering such as “A-1”, “A-2”, etc., while amendment invoices are given a different endorsement such as “T” or “E” with running numbering.

It is important to note that all three provisions state that such works “to be billed (...) when completed”.

In the case of particularly extensive or costly modification works, this may be demanding for the contractor.

Accordingly, the provisions contain a possibility that the contractor may invoice monthly for the work performed.

The continuation is that the works “is of longer duration”.

For such works, there may be an agreed fixed price, but also the use of unit prices, adjusted unit prices or agreed that the works be carried out on account.

In principle, it does not matter if the contract is based on NS 8405, NS 8406 or NS 8407.

Common to all is that the invoices for modification works should be “specified and attached measurements and other documentation necessary for the builder's control”, cf NS 8407 paragraph 27.4, second paragraph.

A similar provision is found in NS 8405 paragraph 28.3, while NS 8406 paragraph 23.3 requires only that the invoice must be “specified”, which by a long way will imply the same thing.

I'm 12. Bill Worker

In all three forms of contract, there are rules on bill works. In order to keep the articles at a somewhat limited level, we have chosen to write about this topic in a separate article, read here.

I'm 13. Builder's payment obligation and right of withholding

It follows from all three standard contracts that the deadline for payment shall be 28 days unless otherwise agreed, cf. NS 8405 paragraph 29.1, NS 8406 paragraph 23.3, eighth paragraph and NS 8407 paragraph 28.1.

In case of late payment, the builder shall pay late interest, cf. NS 8405 paragraph 30.1, NS 8406 paragraph 3.3, eighth paragraph and NS 8407 paragraph 29.1.

If the builder has counterclaims or objections to the contractor's breach of contract, he may “withhold so much of the payment that this covers the specified and substantiated claim”, see NS 8407, paragraph 28.3.

Similarly follows from NS 8405 paragraph 29.3 and NS 8406 paragraph 23.3, last paragraph.

In experience, such retention can create some challenges and become a burden on cooperation.

A not uncommon situation is that the contractor is so far behind schedule that a account invoice becomes too high compared to what has been added.

If the payment schedule has not been adjusted, the builder has no choice but to reduce the amount to be paid.

If so, the builder should have notified that this is going to happen.

The builder should also justify why he thinks a account invoice is not paid or not paid in full.

Another basis for backtracking is that the builder has uncovered failures in the contractor's works of such a nature that it will be costly to repair.

If one is in the final stages and most of the contract amount has been paid, such errors may justify a withdrawal.

As a builder, one wants a certain spaciousness with respect to the size of such a backstop, but it should be factual and concrete.

In the final stages, questions may also arise as to whether the contractor is, or is going to be, delayed. In that case, the builder will also be able to exercise restraint to obtain security for the expected day mulch.

With this being said, it is clarified that each party must bear the risk of the assumptions on which it is based in such a situation.

14. (Total-) contractor's right of termination in case of builder's payment default

If a builder fails to pay the contractor's invoices at maturity, a not insignificant liquidity challenge is applied to the contractor.

When an installment invoice is due for payment, the contractor will already have advance work and material procurement for a minimum of two months of production.

If a builder defaults on the payment of several instalment invoices or invoices for additional works, etc., the liquidity situation for a contractor may become precarious.

For this reason, among other things, a provision has been made in all three strandard contracts that the contractor has the right to stop his works if the builder defaults substantially on his payment obligation, cf. NS 8405 paragraph 30.2, NS 8406 paragraph 29.2 and NS 8407 paragraph 29.2.

The contractor also has the right to stop if “it is clear that such a default will occur”.

In the assessment of what is “substantially” There are a number of points to be drawn from, several of which have been reflected in the case-law.

What should be noted is that the cessation of works is a very serious reaction, and it is assumed that there is such a serious breach on the part of the builder that the requirement to terminate the contract is fulfilled, cf the materiality requirement.

One should also be aware that the builder may consider a stoppage to represent a material default on the part of the contractor, and decide to terminate the contract with the contractor himself.

For these reasons, our clear request is that you consult with competent legal counsel before deciding to stop.

Finally, it is pointed out that the contractor who wants to stop the works is obliged to notify the builder at least 24 hours before the stoppage takes effect.

The notification is sent in order for the builder to have time to correct his material default, namely, pay overdue claims.

Therefore, the notification must be sent so that there is one working day between the notice and the time of when the stoppage, if any, takes effect.

Remuneration and payment

Kortversjonen

1. Introduction

The main obligation of the builder is to pay the contractor for the work performed and, incidentally, in accordance with the agreement of the parties. Non-payment may, in its extreme consequence, constitute a material default with the serious consequences that this can have if the contractor ceases its works.

The rules on payment are therefore very central, and we will deal with these below.

2. Overview of the provisions

Naturally, all three standard contracts have rules on remuneration and payment, namely NS 8405 Chapter V, NS 8406 paragraph 23 and NS 8407 Chapter VI, see the matrix below.

Since NS 8407 is the standard contract that is used most often, we start from this.

3. Briefly about the agreed remuneration

NS 8407, paragraph 26.1, states that the general contractor “is entitled to agreed remuneration”.

The agreed remuneration will normally be the agreed contract amount. In NS 8407 paragraph 1.6, contract sum is defined as “the originally agreed consideration (...) including VAT. The contract sum shall also include the originally agreed estimate of remuneration for services to be settled at unit prices or at bill of charge'.

This is also the definition in NS 8405 paragraph 2.8 and NS 8406 paragraph 2.

In NS 8407 contracts, a fixed price will usually be agreed which is not to be regulated for quantities.

This is in contrast to contracts based on NS 8405 and NS 8406 where there is usually a quantity description in which the individual units are priced, and then a settlement is made in connection with the final settlement.

While NS 8407 has billing schedule provisions, we do not find provisions for this in NS 8405 and NS 8406.

4. Billing Schedule

It follows from NS 8407 paragraph 27.2.1 that “(K) the contract sum shall be paid on the basis of a billing schedule”. Furthermore, it follows that the parties should “Work it out together as soon as possible.” if it has not already been agreed “at the conclusion of the contract”.

The intervals for billing should be one month. If the construction time is estimated at 13 months, the starting point will be that the contract sum is distributed over 13 a account invoices. However, this does not mean that you get 13 account invoices with equal amounts.

Some guidelines are given on how the billing plan should be drawn up in NS 8407 paragraph 27.2.1, third and fourth paragraphs, but the starting point is that the parties can freely agree on what they themselves wish, cf NS 8407 paragraph 27.2.1, second paragraph.

The underlying principle of all invoicing in construction contracts is that contractor gets paid as value is added to construction site.

When creating an invoicing plan, it will therefore have to be based on what is planned to be carried out by works on the construction site, what is supplied by materials for embedding, etc.

In turnkey contracts, engineering is also carried out and then it is natural that invoicing for design work occurs as design material is handed over to the builder.

These general principles are also enshrined as governing how to create a billing plan in which the parties do not agree, cf. NS 8407 paragraph 27.2.1, second and fourth paragraphs.

From NS 8407 paragraph 27.2.1, third paragraph, it follows that the general contractor shall: “draw up a production plan based on the progress plan”.

This production plan shall “show the correlation between planned production and the billing schedule”.

The production plan will provide precisely the kind of information that concerns the planned supply of work and materials to the construction site, the handover of production material to the builder, etc.

In sum, it can therefore be established that the invoicing schedule will normally be harmonized with the planned progress as stated in the progress plan and the production plan, respectively.

5. Billing Schedule Adjustment

If there is an excessive lag between actual production and planned production, the parties may require adjustment of the billing schedule, cf. NS 8407 paragraph 27.2.1, fifth paragraph.

Usually, it will probably be the builder who requires such adjustment because actual progress has remained according to the original plan. Builders rarely want to be fortung in their payment to contractor.

In some cases, the general contractor may also require such adjustment if the works are to be continued, but in this case the condition is that “the forsertion is imposed or agreed with the builder”.

In practice, one may also find that the builder refuses to pay all or part of an a account invoice because it is considered that the progress has come too short compared to what was originally foreseen.

Whether this is considered a default on the part of the builder must be considered concretely.

6. TE/HE is not entitled to prepayment in case of prefabrication

It is not uncommon for parts of a general contractor's deliveries to be prefabricated elsewhere before the units are transported to a construction site for embedding.

Typical examples of this are concrete elements, aggregates, elevators, bathroom modules, etc.

Most often, factories that account for such prefabrication will require a down payment. From time to time, questions arise as to whether the general contractor may include such prepayment as part of the basis for a account payment.

There is freedom of agreement and the builder can of course accept that this is done.

If one does not agree, and must rely on the provisions of NS 8407 paragraph 27.2.1, fourth paragraph, the starting point will be that the general contractor cannot claim this.

In that regard, point (c) of the fourth paragraph of the provision states that “(M) materials, parts, etc. entitle to invoicing when supplied to the construction site to be incorporated”.

The quoted is the main rule and is also stated in NS 8405 paragraph 28.1, first paragraph where it states that installments “may be required on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

A contractor wishing to cover his advance payment to his own contract assistants when ordering goods and services produced elsewhere than on the construction site must therefore address this in particular with the builder.

7. Documentation requirements for a account billing

When an entrepreneur invoices according to an agreed billing plan, it follows from NS 8407 paragraph 27.4 that the contractor must attach the documentation required by the plan.

In other words, it will vary how much documentation is attached to an ordinary a account invoice.

Often it will not be accompanied by significant documentation because the builder has reasonable control that the actual progress matches the agreed progress schedule. As long as a account invoice matches the agreed billing schedule, the builder will be able to have the necessary confidence in the size of the invoice.

8. Progress payment in NS 8405 and NS 8406

There are no provisions in NS 8405 (or NS 8406) that prevent the parties from agreeing on a payment plan with ongoing a account billing as described in NS 8407.

On the contrary, NS 8405 paragraph 28.1 “Settlement of contract amount and withholding” assumes that the parties may have entered into an agreement on billing that does not follow the principles of NS 8405. In this regard, we refer to the provision in the preamble where it is stated that the contractor may “demand the installment of the contract sum”.

Unless otherwise agreed, the contractor may require installments “on the basis of what has been carried out and what has been supplied to the construction site of materials and goods to be incorporated”.

Note also that the right to send an account invoice is limited to once a month as this is regulated in NS 8407.

We refer in this regard to NS 8405 paragraph 28.1, second paragraph, and NS 8406 paragraph 23.3, second paragraph.

9. Documentation requirements for installment payment in NS 8405 and NS 8406

It is stated in NS 8405 paragraph 28.3 that the contractor shall: “send the builder specified invoice which can be checked, if necessary by comparing with the contract documents”. Furthermore, it is stated in the second paragraph that “measurements and other documentation necessary for the builder's control shall be included”.

Similar rules can be found far along in NS 8406 paragraph 23.3.

If one compares the documentation requirement of NS 8405 and NS 8406 with NS 8407 it is probably correct to say that more supporting documentation for an installment invoice is expected in a contract governed by NS 8405 or NS 8406 than is the case in a NS 8407 contract.

10. The builder's payment is not an approval of the foundation

It is clear from the standard contracts that the builder's payment of an installment invoice is not to be regarded as an “approval of the basis of the invoice concerned”.

We refer in this regard to NS 8405 paragraph 28.1, third paragraph, NS 8406 paragraph 23.3, fourth paragraph and NS 8407 paragraph 28.1, second paragraph.

This is an important, and not least necessary, clarification.

11. Contractor's invoicing of other remuneration

It follows from NS 8405 paragraph 28.2, NS 8406 paragraph 23.3, paragraph 6 and NS 8407 paragraph 27.3 that for works other than those originally agreed, which include inter alia amendments, they must be invoiced separately and on separate invoices.

Normally, this is solved by having a separate series of invoices for a account invoices that are usually given the endorsement “A” and with running numbering such as “A-1”, “A-2”, etc., while amendment invoices are given a different endorsement such as “T” or “E” with running numbering.

It is important to note that all three provisions state that such works “to be billed (...) when completed”.

In the case of particularly extensive or costly modification works, this may be demanding for the contractor.

Accordingly, the provisions contain a possibility that the contractor may invoice monthly for the work performed.

The continuation is that the works “is of longer duration”.

For such works, there may be an agreed fixed price, but also the use of unit prices, adjusted unit prices or agreed that the works be carried out on account.

In principle, it does not matter if the contract is based on NS 8405, NS 8406 or NS 8407.

Common to all is that the invoices for modification works should be “specified and attached measurements and other documentation necessary for the builder's control”, cf NS 8407 paragraph 27.4, second paragraph.

A similar provision is found in NS 8405 paragraph 28.3, while NS 8406 paragraph 23.3 requires only that the invoice must be “specified”, which by a long way will imply the same thing.

I'm 12. Bill Worker

In all three forms of contract, there are rules on bill works. In order to keep the articles at a somewhat limited level, we have chosen to write about this topic in a separate article, read here.

I'm 13. Builder's payment obligation and right of withholding

It follows from all three standard contracts that the deadline for payment shall be 28 days unless otherwise agreed, cf. NS 8405 paragraph 29.1, NS 8406 paragraph 23.3, eighth paragraph and NS 8407 paragraph 28.1.

In case of late payment, the builder shall pay late interest, cf. NS 8405 paragraph 30.1, NS 8406 paragraph 3.3, eighth paragraph and NS 8407 paragraph 29.1.

If the builder has counterclaims or objections to the contractor's breach of contract, he may “withhold so much of the payment that this covers the specified and substantiated claim”, see NS 8407, paragraph 28.3.

Similarly follows from NS 8405 paragraph 29.3 and NS 8406 paragraph 23.3, last paragraph.

In experience, such retention can create some challenges and become a burden on cooperation.

A not uncommon situation is that the contractor is so far behind schedule that a account invoice becomes too high compared to what has been added.

If the payment schedule has not been adjusted, the builder has no choice but to reduce the amount to be paid.

If so, the builder should have notified that this is going to happen.

The builder should also justify why he thinks a account invoice is not paid or not paid in full.

Another basis for backtracking is that the builder has uncovered failures in the contractor's works of such a nature that it will be costly to repair.

If one is in the final stages and most of the contract amount has been paid, such errors may justify a withdrawal.

As a builder, one wants a certain spaciousness with respect to the size of such a backstop, but it should be factual and concrete.

In the final stages, questions may also arise as to whether the contractor is, or is going to be, delayed. In that case, the builder will also be able to exercise restraint to obtain security for the expected day mulch.

With this being said, it is clarified that each party must bear the risk of the assumptions on which it is based in such a situation.

14. (Total-) contractor's right of termination in case of builder's payment default

If a builder fails to pay the contractor's invoices at maturity, a not insignificant liquidity challenge is applied to the contractor.

When an installment invoice is due for payment, the contractor will already have advance work and material procurement for a minimum of two months of production.

If a builder defaults on the payment of several instalment invoices or invoices for additional works, etc., the liquidity situation for a contractor may become precarious.

For this reason, among other things, a provision has been made in all three strandard contracts that the contractor has the right to stop his works if the builder defaults substantially on his payment obligation, cf. NS 8405 paragraph 30.2, NS 8406 paragraph 29.2 and NS 8407 paragraph 29.2.

The contractor also has the right to stop if “it is clear that such a default will occur”.

In the assessment of what is “substantially” There are a number of points to be drawn from, several of which have been reflected in the case-law.

What should be noted is that the cessation of works is a very serious reaction, and it is assumed that there is such a serious breach on the part of the builder that the requirement to terminate the contract is fulfilled, cf the materiality requirement.

One should also be aware that the builder may consider a stoppage to represent a material default on the part of the contractor, and decide to terminate the contract with the contractor himself.

For these reasons, our clear request is that you consult with competent legal counsel before deciding to stop.

Finally, it is pointed out that the contractor who wants to stop the works is obliged to notify the builder at least 24 hours before the stoppage takes effect.

The notification is sent in order for the builder to have time to correct his material default, namely, pay overdue claims.

Therefore, the notification must be sent so that there is one working day between the notice and the time of when the stoppage, if any, takes effect.

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