The Building Quality Assurance Act has been "hanging over the market" for years. Last year, the implementation did not seem to take long when the Senate passed the law in the spring and the intended implementation date of January 1, 2021 was communicated. Yet once again, implementation appears to be delayed. The main criticism concerns the feasibility, enforceability and affordability of introducing a new system.
This would almost make us forget that enactment of this law also imposes other important obligations on the contractor. One of the contractor's new obligations is to provide a completion file to the client prior to delivery of the work. In the absence of transitional law, this obligation has immediate effect upon introduction of the new law. This makes it necessary to anticipate already now.
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The contents
The obligation to provide a completion file applies not only in the relationship between main contractor and client, but also in the relationship between main contractor and subcontractor. Especially for the latter category, in practice a delivery file is not always used yet and the subcontractor often suffices with the delivery of the guarantee statements. This will no longer be enough after the new law takes effect.
In the new law, the legislature has included what information must not be missing from the completion file in any case: "a) drawings and calculations concerning the structure erected and its installations, and a description of the materials and installations used, as well as the functions of use of the structure; and b) data and documents necessary for use and maintenance of the structure."
What information?
The legislature's general description quoted above raises many questions. After all, in a construction process many different parties make a large number of drawings and calculations of all parts of the work. It is impractical - and also unnecessary - to provide all these drawings and calculations to the client. Which drawings and calculations are relevant is generally impossible to say and depends on the work completed and the professionalism of the client. It would be good if, for example, clarification is provided by the various industry and interest groups as to what information will have to belong to the completion file. Incidentally, for contracts with consumers, some guidance is provided in the draft National Practice Guideline 8092, but even that NPR does not yet excel in clarity.
Possibility of derogation
Under the new law, it is possible to contractually deviate from the legal obligation to provide a completion file. It is even possible to exclude this legal obligation. This opens possibilities to remove the ambiguity described above about the content of the completion file. It is therefore advisable to make agreements in advance with a client about the contents of the completion file and to record these agreements neatly in, for example, the building contract.
Make sure that the agreements made with the principal are also "carried through" in the relationship with subcontractors. This is to prevent the main contractor from being unable to fulfill its obligations to the client because a subcontractor has included in its agreement (or general conditions) that no completion file will be provided.
As mentioned, there is no transitional law. This means that the contractor is required to provide a completion file for all works delivered immediately after this law takes effect. Irrelevant is the start date of a work or the date the contracting agreement was concluded.
That the Building Quality Assurance Act will eventually come into being is not in dispute. Precisely because the obligation to provide a completion file will apply immediately after the introduction of this law, it is wise to prepare now by:
- In all new construction contracts, agree on the contents of the completion file;
- discuss with the client in all current contracts whether a completion file is valued and, if so, what the content should be;
- Lay out all agreements on the completion file in subcontracts.
