Practical Guide to the NEC3 Engineering and Construction Contract

Launched in 1993, the NEC Engineering and Construction Contract has become one of the UK's leading standard forms of contract for major construction and civil engineering projects. The third edition, popularly known as NEC3, is a process based contract embodying project and commercial management best practice, so its basic philosophy differs from the more adversarial approach of other standard construction contracts. Since the first edition of this book, the third edition of the contract has seen the introduction of a new secondary option for use in the UK and amendments to a number of clauses. In addition, in September 2011, changes were introduced to cater for the amendments to the Housing Grants, Construction and Regeneration Act 1996 contained in the Local Democracy, Economic Development and Construction Act 2009, which became effective for all new contracts entered into from 1 October 2011. These amendments have been incorporated into the text. A Practical Guide to the NEC3 Engineering and Construction Contract will be useful to everyone in the construction industry working on a project under this contract. It will be of interest to the complete construction supply chain, including employers, construction professions, contractors and sub-contractors, as well as consultants and lawyers advising any of these parties, either in the preparation of contract documentation or the day to day management or the resolution of problem situations which may arise.

1 Introduction 1 1.1 General 1 1.2 Mechanics not law 2 1.3 A simple formula for understanding a contract 3 1.4 Mandatory or discretionary 4 1.5 Conditions precedent 4 1.6 Note on use of upper case in key words and phrases 5 2 Background to the NECECC 7 2.1 The background: First edition 7 2.2 The second edition 8 2.3 The third edition 9 2.4 The third edition (re ]printed) 9 2.5 Endorsement of NEC3 by the Office of Government Commerce 10 2.6 General philosophy: Aims and objectives 11 2.7 Flexibility 11 2.8 Clarity and simplicity 11 2.9 Stimulus to good management 12 2.10 Other characteristics 13 3 The Options: An Overview 15 3.1 General arrangement of the ECC 15 3.2 Other documents referred to 17 3.3 Contract Data 18 3.4 The published documents 18 3.5 Main Options: General outline 19 4 Spirit of Mutual Trust and Cooperation 23 4.1 Introduction 23 4.2 Core clause 10.1 23 4.3 What does it mean? 25 4.4 Practical issues 26 5 The Cast of Characters 29 5.1 Introduction 29 5.2 The Employer 29 5.3 The Project Manager 31 5.4 The Supervisor 33 5.5 The Contractor 34 5.6 The Adjudicator 35 5.7 Subcontractors 36 5.8 Others 36 5.9 Named Suppliers 37 5.10 Designers 37 5.11 Principal Designer 38 5.12 Principal Contractor 39 5.13 Practical issues 39 6 Communications, Early Warnings and other General Matters 41 6.1 Introduction 41 6.2 Communications: The clause 41 6.3 Communications: Practical issues 42 6.4 Early warnings: The clause 45 6.5 Early warnings: Practical issues 46 6.6 Other matters: The clauses 49 6.7 Other matters: Practical issues 52 7 The Contractor s Main Responsibilities 55 7.1 Introduction 55 7.2 Providing the Works 55 7.3 Contractor s design 57 7.4 Other matters 58 7.5 Practical issues 61 8 Subcontracting 65 8.1 Introduction 65 8.2 Definition of a Subcontractor 65 8.3 The core clauses 66 8.4 Provisions in the Main Options 67 8.5 Practical issues 67 8.6 Options for forms of subcontract in the NEC3 family 68 9 Testing and Defects 71 9.1 Introduction 71 9.2 Tests and inspections 71 9.3 What is a Defect? 73 9.4 The Defect procedure 73 9.5 The Defects Certificate 75 9.6 Uncorrected Defects 76 9.7 Practical issues 77 10 Title 81 10.1 Introduction 81 10.2 The core clauses 81 10.3 Practical issues 82 11 Risks and Insurance 85 11.1 Introduction 85 11.2 The core clauses 85 11.3 Practical issues 88 12 Time 91 12.1 Introduction 91 12.2 The programme: Contents 92 12.3 The programme: Submitting, accepting and revising 97 12.4 The programme: Practical issues 99 12.5 Starting and finishing 108 12.6 Other matters 111 12.7 Secondary Options related to Time 114 12.8 Practical issues 117 13 Payment 121 13.1 Introduction 121 13.2 The payment process 121 13.3 Payments in multiple currencies 124 13.4 The amount due and the PWDD 124 13.5 Supporting documents and records 134 13.6 The Contractor s share 138 13.7 The Contractor s share: Practical issues 139 13.8 Special provisions for the UK 141 13.9 Related Secondary Options 143 13.10 Practical issues 148 14 The Schedules of Cost Components 153 14.1 Introduction 153 14.2 The Schedule of Cost Components 153 14.3 The Shorter Schedule of Cost Components 158 14.4 Application to Subcontractors 159 14.5 Practical issues 160 15 Compensation Events: Theory and Events 165 15.1 Introduction 165 15.2 The theory 165 15.3 The events 167 15.4 Practical issues 182 16 Compensation Events: Procedures 187 16.1 Introduction 187 16.2 Notification by the Project Manager 189 16.3 Notification by the Contractor and the Project Manager s reply 192 16.4 Other matters associated with notifying compensation events 195 16.5 Quotations: Substance 197 16.6 Quotations: Submission and reply 199 16.7 Assessments by the Project Manager 204 16.8 Implementing compensation events 206 16.9 Practical issues 207 17 Compensation Events: Assessment 215 17.1 Introduction 215 17.2 Changes to the Prices 216 17.3 Changes to the Completion Date and any Key Dates 220 17.4 Project Manager s assumptions 223 17.5 Other related matters 224 17.6 Practical issues 226 18 Termination 229 18.1 Introduction 229 18.2 Reasons for termination 229 18.3 Implementing termination 233 18.4 Procedures after termination 234 18.5 Assessing the amount due after termination 235 18.6 Practical issues 237 19 Dispute Resolution 239 19.1 Introduction 239 19.2 Option W1 240 19.3 Option W2 243 19.4 Practical issues 248 20 Secondary Options 251 20.1 Introduction 251 20.2 X2: Changes in the law 251 20.3 X4: Parent company guarantee 252 20.4 X12: Partnering 252 20.5 X13: Performance bond 257 20.6 X17: Low performance damages 258 20.7 X18: Limitation of liability 258 20.8 X20: Key Performance Indicators 259 20.9 Y(UK)3: The Contracts (Rights of Third Parties) Act 1999 260 20.10 Z: Additional conditions of contract 260 20.11 Practical issues 262 21 Completing the Contract Data 263 21.1 Introduction 263 21.2 Purpose and form of the Contract Data 263 21.3 Part One: Data for the core clauses 264 21.4 Part One: Data for the Main Option clauses 268 21.5 Part One: Data for the Secondary Option clauses 269 21.6 Part Two: Data for the core clauses 273 21.7 Part Two: Data for the optional statements 274 21.8 Part Two: Data for Main Option A or B 275 21.9 Part Two: Data for Main Option C, D or E 276 21.10 Practical issues 278 22 The Supporting Documents: Need and Content 283 22.1 Introduction 283 22.2 Works Information 283 22.3 Site Information 293 22.4 Practical issues 294 Bibliography 297 Appendix 1 Tables of Clause Numbers, Case Law and Statutes 299 Appendix 2 Tables of Employer s, Project Manager s, Supervisor s, Contractor s and Adjudicator s Actions 309 Appendix 3 Tables of Communication Forms and Their Uses 337