Reviewing the new standards 

In their review of NZS 3917:2013, Brendan Cash (Partner) and Miles Rout (Solicitor) in Dentons’ Major Projects and Construction team, review the key proposed changes in DZ 3917:2025

With the completion and publication of the NZS 3910:2023 standard, Standards New Zealand has turned its attention to updates to the related standards NZS 3916:2013 and NZS 3917:2013.

In our last article, we covered the proposed updates to 3916, and in this article we discuss the proposed updates to 3917. The window for submissions to be made on the proposed changes to 3917 closed on 3 March 2025.

While 3910 is the standard contract for construct-only projects and 3916 is the standard for design–construct projects, 3917 is for fixed-term construction and civil engineering projects such as maintenance contracts and service agreements – projects spanning a defined period of time rather than a defined scope of work. 

Beyond the difference in the way the scope of the contract is defined, there are some other key differences between 3910 and 3917. The contractor is only entitled to non-exclusive occupancy of the site to perform the works, and is responsible for the care of parts of the contract works and the site only between the commencement and completion of work on that part.

This is consistent with its intent as a maintenance contract. There are no extensions of time – and no liquidated damages for late completion – and the contract works period ends on a fixed expiry date. The contractor’s bond is released on final completion. There is no defects notification period, but the contractor is still obliged to rectify defects that arose before the end of the contract period. There is a provision for performance payments based on specified key performance indicators.

Many of the issues with 3917:2013 were also issues with 3910:2013, as the contracts share a common core. The contracts are simply out of date, requiring, for example, extensive amendments to health and safety provisions since the Health and Safety at Work Act 2015. The contracts’ insurance and risk allocation are outdated, and the COVID-19 pandemic and recent spate of natural disasters have revealed shortcomings in the contracts’ risk allocation and insurance provisions.

As such, as with 3916, a lot of the changes to 3917 mirror the changes that were made to 3910, and as we explained in our review of the proposed changes to 3916, the committee has said that it is not interested in revisiting decisions that were made in finalising 3910:2023. 

Changes mirroring 3910 and 3916

The big changes in 3910:2023 are carried over to 3917 without significant modification. 

The health and safety amendments to 3910, including updating the contract to reflect the requirements of the Health and Safety at Work Act 2015 and the introduction of a “Site-specific safety plan”, have been included. In addition to the Site-specific safety plan, there is provision for other Management Plans e.g. for managing assets, traffic, the environment, quality, sustainability, or other matters.

The Engineer’s position has been split into the dual roles of Contract Administrator and Independent Certifier, giving the parties the option of separating these roles between different persons, although as in 3910:2023, there is still the option of one person being appointed to both roles. 

A Target Price option has again been added and the dispute resolution mechanism has been simplified and made more flexible, to allow disputes to be resolved more quickly and efficiently.

Many of the changes proposed to be made to 3917 are also the same as changes that have been proposed for 3916. For example, the committee proposes the introduction of a definition of ‘Principal’s Requirements’ and the inclusion of a list of Principal’s Requirements in an annexure to the Contract Agreement. This is intended to make it simpler for the Contractor to understand the full list of requirements that the Principal expects the works to comply with.

The 3917 update overall

The changes proposed to 3917 are not the most exciting, but this reflects its nature as essentially a fixed-term version of 3910. The 3917 form is not meant to be a place for experimentation with new forms of contracting, and the committee’s consensus-based approach means it was unlikely that sweeping and experimental changes would be proposed. 

Instead, the changes mainly focus on maintaining a consistency running through the 391x series of contracts in their new editions to help to ensure that contractors and principals can understand the contracts and use them effectively.

It should also help to keep legal costs down by ensuring that bespoke special conditions can be ported over from one version of 391x to another without needing to be completely redrafted. Overall, it should make contracting easier for the market.  

Paul Buetow, Partner at Dentons, and Simon La Monica of Fletchers Construction are Civil Contractors New Zealand representatives on the Standards New Zealand committee for the reviews of 3916 and 3917.

• This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Dentons does not accept any liability other than to its clients, and then only in relation to specific requests for advice. For specific advice, contact your legal advisor or the Major Projects and Construction Team at Dentons on (09) 379 4196.