The NEC4 Engineering and Construction Contract: A Commentary

BRIAN EGGLESTON CEng, FICE, FIStructE, FCIArb, was a chartered arbitrator with extensive UK and international experience and was past President of the Chartered Institute of Arbitrators. He acted as an adjudicator and mediator, as an adviser to contractors and employers on contractual matters and was a well-known author and speaker on contract law and standard forms. In a career spanning over 40 years he worked on all sides of the construction industry, firstly as a bridge designer, then as a resident engineer and contracts administrator, and subsequently as a director of various building and civil engineering contracting companies.

Preface xv Author's notex vii 1 Introduction 1 1.1 Overview 1 1.2 Background 1 1.3 Objectives 1 1.4 Impacts of change 2 1.5 The NEC4 suite of contracts 3 1.6 Characteristics of NEC contracts 3 1.7 Structure of the NEC4 engineering and construction contract (ECC4) 4 1.8 Changes ECC3 to ECC4 6 1.9 Review of points of interest 7 1.10 Entire agreement 7 1.11 Exclusion of common law rights 8 1.12 Conditions precedent to compensation event claims 8 1.13 Role and powers of the project manager 8 1.14 Changes to scope (previously Works Information) 9 1.15 Prevention 9 1.16 Quotations for compensation events 9 1.17 Assessments of compensation events 9 1.18 Dispute avoidance and dispute resolution 10 2 Changes from ECC3 11 2.1 Evolution 11 2.2 Features and enhancements 11 2.3 Terminological changes 12 2.4 Changes to core clauses 12 2.5 Changes to dispute resolution procedures 15 2.6 Changes to secondary option clauses 16 2.7 Data sheet changes 16 3 Main options 17 3.1 Introduction 17 3.2 Contract strategy 18 3.3 Responsibility for design 19 3.4 Certainty of price 20 3.5 Allocation of risk 21 3.6 The Client's requirements 22 3.7 Operating restrictions 23 3.8 Early start and/or rapid finish 23 3.9 Flexibility in contractual arrangements 23 3.10 Aversion to disputes 23 3.11 Single point responsibility 24 3.12 Option A - priced contract with activity schedule 24 3.13 Option B - priced contract with bill of quantities 25 3.14 Target contracts generally 27 3.15 Options C and D - target contracts 29 3.16 Option E - cost reimbursable contract 30 3.17 Option F - management contract 31 3.18 Options W1, W2, W3 - resolving and avoiding disputes 31 4 Secondary options 32 4.1 Introduction 32 4.2 Choice of secondary option clauses 33 4.3 Status of secondary option clauses 33 4.4 Option X1 - price adjustment for inflation 34 4.5 Option X2 - changes in the law 34 4.6 Option X3 - multiple currencies 35 4.7 Option X4 - ultimate holding company guarantee 36 4.8 Option X5 - sectional completion 36 4.9 Option X6 - bonus for early completion 37 4.10 Option X7 - delay damages 37 4.11 Option X8 - undertakings to the client or others 42 4.12 Option X9 - transfer of rights 42 4.13 Option X10 - information modelling 43 4.14 Option X11 - termination by the Client 43 4.15 Option X12 - multiParty collaboration 44 4.16 Option X13 - performance bond 45 4.17 Option X14 - advanced payment to the contractor 47 4.18 Option X15 - the contractor's design 48 4.19 Option X16 - retention 49 4.20 Option X17 - low performance damages 50 4.21 Option X18 - limitation of liability 51 4.22 Option X20 - key performance indicators 55 4.23 Option X21 - whole life cost 56 4.24 Option X22 - early contractor involvement 56 4.25 Option Y(UK)1 - project bank account 57 4.26 Option Y(UK)2 - housing Grants, construction and regeneration act 1996 57 4.27 Option Y(UK)3 - contracts (Rights of Third Parties) act 1999 58 4.28 Option Z - additional conditions of contract 58 5 Contract documents 59 5.1 Introduction 59 5.2 Entire agreements 60 5.3 Clause 12.4 of ECC4 61 5.4 Construction of contracts generally 62 5.5 ECC4 documentation 63 5.6 Essential contract documents 64 5.7 Identified and defined terms 65 5.8 The Contract Date 66 5.9 Scope 67 5.10 Site Information 70 5.11 Contract Data 72 5.12 Schedules of cost components 72 5.13 Ambiguities and inconsistencies in the contract documents 74 5.14 Schedule of clauses referring to the Scope 74 6 Key players 79 6.1 Introduction 79 6.2 Others 81 6.3 Actions 82 6.4 Mutual trust and co-operation 83 6.5 The Client 84 6.6 Express obligations of the client 85 6.7 The Proj