Addresses the daily challenges faced by contractors who use the NEC3 ECC with clear, practical and useable advice on how to solve them
Written in plain English for contractors and their staff, this book explains how the NEC3 contract works and provides answers to common questions. It presents complicated concepts in a simple, straightforward and understandable way, focusing mainly on day-to-day use. Steven Evans, an expert with thirty years of experience in construction, considers all the provisions of the contract and explains the procedures, obligations, and liabilities contained within it.
NEC3 ECC is a process-based contract based on project management best practices. The basic philosophy behind it differs radically from the more adversarial approaches embodied by traditional contracts. While the NEC3 ECC may appear quite simple on the surface, it is often misunderstood and mismanaged by its day-to-day users. Despite the clear and urgent need for expert guides for those who use the NEC3 ECC, or who are considering adopting this increasingly popular contract, available books on the subject are highly technical and written for lawyers and professional consultants--until now. Written specifically for contractors using the NEC3 ECC contract, this book is aimed specifically at a level consistent with the knowledge and experiences of contractors and their staff.
* A practical guide to the procedures in the NEC3 Engineering and Construction Contracts
* Written specifically for those using and administering the contracts--not for lawyers or professional consultants
* Considers all the provisions of the contract and explains the procedures, obligations and liabilities
* Covers all NEC3 ECC versions and variations created by the Main and Secondary Options
* Provides clear, concise, practical, and straightforward explanations of the NEC3 ECC form used by commercial and operational staff of main contractors
The Contractor's NEC3 EEC Handbook is a vital working resource for main contractors and their employees, including quantity surveyors, commercial managers, contracts managers, project managers, site managers, and estimators.
About the NEC Contract
Construction contracts are complex, adversarial and onerous. This has always been the case. But, in 1986 the Institute of Civil Engineers sought to change that by commissioning the development of a new form of contract that had clearer language, better allocation of risk and responsibility, an increase in collaboration and reduced opportunities for claims.
From that commission, in 1993 the New Engineering Contract was first issued and from the outset it was clearly different in style, content and risk allocation to other standard forms.
Its characteristics were claimed to be:
Clarity and Simplicity
The contracts are written using short sentences, with clear objectives. Typical construction terminology such as 'extension of time' is missing; vague notions such as 'practical completion' give way to a defined state of Completion. The contract is short and to the point.
But there is a downside to this; fewer words equate to greater ambiguity. Legal interpretation has been difficult because guidance from the courts is almost non-existent, not least because adjudication is compulsory in the first instance, so very few disputes arrive at court. When they have arrived, the courts have tended to be critical.
There are extensive, officially produced Guidance Notes and Flow Charts, but these are expressly excluded from being used to assist in legal interpretation. Also, to a casual or first-time user of the contracts, the Guidance Notes and Flow Charts are often as confusing as the contract itself, sometimes saying nothing more than the clause they seek to provide guidance on, but using more words.
Many say it is more a procedure manual than a contract.
The contracts are designed for use internationally with little or no amendment, for a wide range of projects from the smallest to the largest and for a wide range of pricing mechanisms from lump sum to cost plus. The secondary Options allow an Employer to construct a near bespoke contract to suit his needs from a menu of standard clauses and then add additional conditions of contract as 'Z clauses' that are specific to his requirements.
Stimulus to Good Management
One of the cornerstones of the NEC philosophy is that the contracts should be an aid to good management, to effective and efficient construction, rather than a barrier to it.
The NEC suite of contracts places a great deal of emphasis upon early and effective communication, risk management and project management to the extent that it introduces, occasionally significant, sanctions against those Parties who ignore these requirements.
When used properly, there are many reports that it successfully achieves those aims.
The NEC suite ensures collaboration by the existence of real and effective sanctions against the Parties should they fail to comply with the various obligations under the contracts that are deemed to be the cornerstone of good and effective management. It is not just a question of the Parties wanting to work together; the NEC suite ensures the Parties do work together.
The Latham Report
It is often thought that the NEC suite of contracts was born out of the Latham Report; that is not the case, the Latham Report was published in 1994, one year after the first edition of the NEC.
The Report, called Constructing the Team, identified key issues that Latham believed should be adopted in all construction contracts, as follows:
- A specific duty for all parties to deal fairly with each other, and with their subcontractors, specialists and suppliers, in an atmosphere of mutual cooperation.
- Firm duties of teamwork, with shared financial motivation to pursue those objectives. These should involve a general presumption to achieve 'win-win' solutions to problems which may arise during the course of the project.
- A wholly interrelated package of documents which clearly defines the roles and duties of all involved, and which is suitable for all types of project and for any procurement route.
- Easily comprehensible language and with guidance notes attached.
- Separation of the roles of contract administrator, project or lead manager and adjudicator. The project or lead manager should be clearly defined as the client's representative.
- A choice of allocation of risks, to be decided as appropriate to each project but then allocated to the party best able to manage, estimate and carry the risk.
- Taking all reasonable steps to avoid changes to pre-planned works information. However, where variations do occur, they should be priced in advance, with provision for independent adjudication if agreement cannot be reached.
- Express provision for assessing interim payments by methods other than monthly valuation; that is, milestones, activity schedules or payment schedules. Such arrangements must also be reflected in the related subcontract documentation. The eventual aim should be to phase out the traditional system of monthly measurement or remeasurement, but meanwhile provision should still be made for it.
- Clearly setting out the period within which interim payments must be made to all participants in the process, failing which they will have an automatic right to compensation, involving payment of interest at a sufficiently heavy rate to deter slow payment.
- Providing for secure trust fund routes of payment.
- While taking all possible steps to avoid conflict on site, providing for speedy dispute resolution if any conflict arises, by a pre-determined impartial adjudicator/referee/expert.
- Providing for incentives for exceptional performance.
- Making provision where appropriate for advance mobilisation payments (if necessary, bonded) to contractors and subcontractors, including in respect of off-site prefabricated materials provided by part of the construction team.
The NEC contract current at the time of the report included eight of the above and the publication of NEC2 in 1995 encompassed all 13.
The growth of NEC3 has been significant; it is now the 'go-to' contract for many publicly funded projects in the UK, generally due to its adoption by the Government.
It is used in over 60 countries worldwide and there is little doubt that its popularity and use will continue to rise.
The NEC3 Suite
NEC3 contains a suite of contracts, of which the Engineering and Construction Contract (ECC) (the subject of this book) is just one. There are also forms of contract for subcontractors, suppliers, professionals, adjudicators and so on.
The contracts follow the same style and section numbering and contain similar section headings, differing only in respect of their specific application, for example Section 2 in the Engineering and Construction Subcontract, the ECS, is titled 'The Subcontractor's Main Responsibilities', whereas in the ECC it is 'The Contractor's Main Responsibilities'.
The contracts comprising the NEC3 suite are as follows:
- NEC3 Engineering and Construction Contract (ECC);
- NEC3 Engineering and Construction Contract Option A: Priced contract with Activity Schedule;
- NEC3 Engineering and Construction Contract Option B: Priced contract with Bill of Quantities;
- NEC3 Engineering and Construction Contract Option C: Target contract with Activity Schedule;
- NEC3 Engineering and Construction Contract Option D: Target contract with Bill of Quantities;
- NEC3 Engineering and Construction Contract Option E: Cost reimbursable contract;
- NEC3 Engineering and Construction Contract Option F: Management contract;
- NEC3 Engineering and Construction Subcontract (ECS);
- NEC3 Engineering and Construction Short Contract (ECSC);
- NEC3 Engineering and Construction Short Subcontract (ECSS);
- NEC3 Professional Services Contract (PSC);
- NEC3 Professional Services Short Contract (PSSC);
- NEC3 Term Service Contract (TSC);
- NEC3 Term Service Short Contract (TSSC);
- NEC3 Supply Contract (SC);
- NEC3 Supply Short Contract (SSC);
- NEC3 Framework Contract (FC);
- NEC3 Adjudicator's Contract (AC).
This book deals exclusively with the NEC3 Engineering and Construction Contract (ECC), although, as many provisions are common across all the contracts in the suite, this book may also prove useful for those other contracts.
Flow Charts and Guidance Notes
The NEC also produces flow charts, guidance notes and strategies to assist in the understanding and use of the suite of contracts, as follows:
- NEC3 Engineering and Construction Contract Guidance Notes;
- NEC3 Engineering and Construction Contract Flow Charts;
- NEC3 Engineering and Construction Short Contract Guidance Notes and Flow Charts;
- NEC3 Professional Services Contract Guidance Notes and Flow Charts;
- NEC3 Professional Services Short Contract Guidance Notes and Flow Charts;
- NEC3 Term Service Contract Guidance Notes;
- NEC3 Term Service Contract Flow Charts;
- NEC3 Term Service Short Contract Guidance Notes and Flow Charts;
- NEC3 Supply Contract Guidance Notes;
- NEC3 Supply Contract...