Following the publication of NZS 3910:2023 ‘Conditions of contract for building and civil engineering construction’, the Standards New Zealand drafting committee has turned its attention to DZ3916:2025 ‘Conditions of contract for building and civil engineering - Design and construct’ and DZ3917:2025 ‘Conditions of contract for building and civil engineering - Fixed term’.

Michael Weatherall, our Construction National Practice Group lead, is a member of the Standards NZ drafting committee for these standards.

DZ3916 and DZ3917 are both closely based on NZS 3910:2023 with almost all changes made in NZS 3910:2023 carried over to DZ3916 and DZ3917

As a brief recap, some key changes include:

• The introduction of a Target Cost Contract Price, and provisions for the Contract Price to have various components including lump sum, cost reimbursement, measure and value (not applicable to NZS 3916), and Target Price (clause 2.1).
• A new clause dedicated to the protection of the environment (clause 5.21).
• The addition of clear contract administration processes throughout, including new content on reviewing instructions and decisions (clause 6.4).
• The elimination of the Engineer to the Contract and its dual role, replacing it with two distinct new roles of Independent Certifier and Contract Administrator. This ensures clarity on the purpose of each role, with the functions demanding fairness and impartiality all being undertaken by the Independent Certifier.
• The transition to a fault-based Contractor indemnity for loss suffered by the Principal and the introduction of a Contractor limitation on liability (Section 7).
• The introduction of the Final Account and Interim Final Account processes (clause 9.11) (not included in NZS 3917).
• Linking any dispute about rejection of Design Documentation to the more detailed review process that was introduced under NZS 3910:2023, including the provision for expert review.

Differences from NZS 3910 reflect those that were introduced in 2013, with some changes

Under NZS 3916 the Contractor is responsible for the design and construction of the Contract Works.

DZ3916 includes the following changes in addition to those made in NZS 3910:2023:

• An amended definition of ‘Principal’s Requirements’ which refers to a list of the documents (including Drawings and Specifications) included in a new Annexure 1 to the Contract Agreement.
• Clarification of the status of the Schedule of Prices (clause 2.2), including provisions to include measurable items (unlike NZS 3910, there is no provision for a measure and value Contract Price in NZS 3916).
• Refinement to include optional provision for novation of designers (clause 4.3) and the inclusion of a standard form “Deed of Novation” in Schedule 17.
• Provision for specifying stages of design development for submission of Design Documentation (clause 5.1.10).
• The addition of an optional requirement for a design management plan (clause 5.9.1).
• The addition of a design producer statement at Schedule 6a (the form of which is yet to be finalised).

NZS 3917 is a ‘Fixed Term’ contract (often used on fixed term maintenance contracts).

DZ3917 includes the following changes in addition to those made in NZS 3910:2023:

• Replacement of references to ‘Drawings’ and ‘Specifications’ with ‘Principal’s Requirements’ defined by reference to a list of the documents included in a new Annexure 1 to the Contract Agreement (which still may include Drawings and Specifications).
• The addition of ‘performance criteria set out in the Contract’ (clause 5.1).
• The addition of an optional requirement for an asset management plan under (clause 5.10.1).
• Provision for ‘other information’ to be included within the ambit of Completion Records (clause 5.20.1(d)).
• The Interim Final Account and Final Account processes introduced in NZS 3910:2023 (and included in DZ3916) are not included because there is no Defects Notification Period so the timeframe between the Date of Expiry and the final payment claim is relatively short.

Public submissions

The public consultation period is now open until 17 February 2025. If your organisation would like any assistance to make a submission on either DZ3916 or DZ3917, or if you would like to discuss the draft contracts, please do not hesitate to get in touch with one of our experts.

Submissions can be made via this link: Standards New Zealand - Citizen Space.

Updating your template contract documents - now is the time

Many of our clients are already updating their standard template documents to be based on NZS 3910:2023. With the publication of the new NZS 3916 and NZS 3917 due in the first half of 2025, now is a great time to make the move to the new suite of standard form contracts.