Institutional Legitimacy and Standard-Form Construction Contracts: Governance Lessons from NZS 3910

Abstract

Standard-form construction contracts shape more than project risk, they embed governance expectations into procurement systems. Using NZS 3910 as a case study, this paper examines whether a standard contract remains legitimate when the state both authors and predominantly uses it. NZS 3910, the dominant construction contract in New Zealand, is maintained within a state-aligned standards regime and widely used by public entities. This dual role raises concerns about neutrality, trust, and institutional legitimacy. Drawing on doctrinal analysis of New Zealand case law and comparative review of governance models in FIDIC, NEC, and US federal procurement, the paper shows that recent procedural reforms do not resolve the deeper issue of stewardship alignment. The analysis distinguishes structural legitimacy, achieved through independent oversight, from contingent legitimacy grounded in professional conduct. By framing NZS 3910 as governance infrastructure rather than merely a drafting instrument, the paper highlights the institutional stakes of standard-setting in public procurement.