NEC4: 100 Questions and Answers

Kelvin Hughes has been a leading authority on the NEC contracts for over 20 years, during which time he has advised on numerous NEC based projects and provided over 1,700 NEC training courses at all levels from Introduction through Advanced to Masterclass. He was also Secretary of the NEC Users Group representing worldwide users of the contract, for ten years.

• ContentsChapter 0Introduction to the NEC4 ContractsUse of NEC4 Contracts What are the general differences between the NEC3 and NEC4 contracts? We are compiling tender documents for a project we have valued at approximately £500,000, and are wondering whether we should consider using the NEC4 Engineering and Construction Contract or the NEC4 Engineering and Construction Short Contract? What is the difference between the two, and is there any project for which the NEC4 contracts would not be applicable? We wish to engage a Contractor to carry out electrical testing within existing council housing stock over a period of three years. The work is fairly straightforward, can we use the NEC4 Term Service Short Contract or should we use the NEC4 Term Service Contract? We wish to purchase large quantities of rock salt for treating roads during winter periods. Is the NEC4 Supply Short Contract sufficient, or should we use the NEC4 Supply Contract because of the large quantities? When should we use the new NEC4 Design Build and Operate Contract? Do the NEC4 contracts comply with the requirements of the Housing Grants, Construction and Regeneration Act 1996, and the Local Democracy, Economic Development and Construction Act 2009? We wish to use the NEC4 Engineering and Construction Contract for a series of projects, and assume that the contracts include all the necessary ancillary documents to be incorporated into the contract, for example: Form of Agreement Performance Bond Parent Company Guarantee Advanced Payment Bond Novation Agreement Collateral Warranty Retention Bond We wish to appoint a Contractor to carry out some work with the Client's design team on pre-construction value engineering and buildability options for a proposed project, for which we may eventually appoint him to be our Contractor to build the project, or we may decide to carry out a selective tendering process to select our Contractor, can we do this with an NEC4 contract? We have been using the NEC3 Engineering and Construction Contract for a number of years, and have used all the Main Options except Option D (target contract with bill of quantities), and wonder, why anyone would use that option? When would it be appropriate to use Option E within the NEC4 Engineering and Construction Contract? We would like to use the NEC4 Engineering and Construction Contract to carry out a project using Construction Management as a procurement method. We note that Main Option F is a Management Contract, but there is no Construction Management Option? We wish to use the NEC4 contracts for a number of international infrastructure projects in various locations around the world, is that possible? Roles What is the role of the Project Manager on an NEC4 Engineering and Construction Contract, and does he have an obligation to act impartially between the Parties? What construction discipline is best suited to being the Supervisor on an NEC4 Engineering and Construction Contract, and how much "supervising" does the Supervisor actually have to do? General Under Clause 14.2 of the NEC4 Engineering and Construction Contract, the Project Manager or Supervisor may delegate actions. What does this mean? Is there anything that the Project Manager or Supervisor cannot, or must not, delegate? What is the meaning of the wording in Clause 10.1 and 10.2 of the NEC4 contracts, the parties named "shall act as stated in the contract" and "act in a spirit of mutual trust and co-operation"? What is the order of precedence of documents in an NEC4 contract? What does the term "Working Areas" mean in an NEC4 Engineering and Construction Contract? Presumably this is simply, the Site? How do the NEC4 contracts deal with verbal communications? What do the words "in a form which can be read, copied and recorded" mean? We wish to name Subcontractors which the Contractor is required to use in an NEC4 Engineering and Construction Contract. How can we do that? What happens under an NEC4 Engineering and Construction Contract Option B (priced contract with bill of quantities) if something is clearly indicated on the tender drawings, but it is missing from the bill of quantities? In an NEC4 Engineering and Construction Contract Option E (cost reimbursable contract), how are insurance premiums recovered by the Contractor? We wish to include for price fluctuations within a NEC4 Engineering and Construction Contract. How can we do that? A new legal requirement has just come into force, the Contractor on an NEC4 Engineering and Construction Contract Option C (target contract with activity schedule) has stated that he is entitled to additional payment to recover this. Is he correct? We are entering into a partnering arrangement with the Contractor within an NEC4 Engineering and Construction Contract. What can we do in order to achieve this? Within the NEC4 Engineering and Construction Contract, when would we use Option X15 (The Contractor’s Design)? We note that the NEC3 Engineering and Construction Contract includes Option X17 (low performance damages). What is this, and how is it calculated and paid to the Client? We do not understand NEC4 Engineering and Construction Option X18 (limitation of liability). When would this be applied? We wish to include for Key Performance Indicators (KPI’s) with an NEC4 Engineering and Construction Contract? How can we do this? How should Z clauses be incorporated into an NEC4 contract? Are there any recommended Z Clauses? We are confused by the fact that within the NEC4 Engineering and Construction Contract, there is the Schedule of Cost Components and the Short Schedule of Cost Components? What are these for and what is the difference between the two? How are Subcontractors dealt with within the NEC4 Engineering and Construction Contract Schedules of Cost Components? Some of the NEC4 Contracts include a Price List. What is this and how do we use it? Can you explain what a Task, and a Task Order are under the NEC4 Term Service Contract? Chapter 1Early Warnings and Risk Registers Is there a standard format within the NEC4 contracts for an early warning notice? Is there any remedy if the Project Manager or the Contractor fail to give an early warning? What is an Early Warning Register, and what is its purpose within the NEC4 Engineering and Construction Contract? What is the purpose of an early warning meeting within the NEC4 contracts? Chapter 2Contractor’s Design We wish to use the NEC4 Engineering and Construction Contract and the NEC4 Engineering and Construction Short Contract for a number of design and build projects, can we do this and if so, how? In a design and build contract using the NEC4 Engineering and Construction Contract, which takes precedence, the Client's Requirements or the Contractor's Proposals? If the Project Manager on an NEC4 Engineering and Construction Contract accepts the Contractor's design and it is later found that the design will not work, or it is not approved by a third party regulator, who is liable? We wish to novate a design consultant from the Client to the Contractor under an NEC4 Engineering and Construction Contract with full Contractor’s design. Can we do this? The Contractor has designed a temporary access walkway bridging across two areas of the Site. He has not submitted his design proposals for the Project Manager’s acceptance before constructing the walkway, but we insist that he is in breach of contract by failing to do so. What can we do to remedy this breach? Chapter 3Time and the Accepted Programme Can we include liquidated or unliquidated damages in an NEC4 contract? How are these deducted in the event of delayed Completion? Do the NEC4 contracts have provision for Sectional Completion where the Client may wish to take over parts of the works before completion of the whole project? In an NEC4 Engineering and Construction Contract, what is the relationship between "Completion" and "Take Over"? We have a project where we require the Contractor to provide "as built" drawings, maintenance manuals and staff training as part of the contract, how do we include this requirement within an NEC4 Engineering and Construction Contract? We have a project under the NEC4 Engineering and Construction Contract Option C (target contract with activity schedule) to build a new college where we will require the Contractor to complete wall finishings to classrooms in order that a third party directly employed by the Client will be able to install audio visual equipment fixed to the walls. How can we incorporate this requirement into the contract? The Contractor on an NEC4 Engineering and Construction Contract was required to submit a programme with his tender. He has stated that as we accepted his tender, then we have also accepted his programme, and this is the first Accepted Programme, but how can it be so if it does not comply with Clause 31.2? Who owns the float in an Accepted Programme within an NEC4 Engineering and Construction Contract? The Contractor on an NEC4 Engineering and Construction Contract has failed to submit a programme to the Project Manager, what can we do to remedy this? Is there any remedy where the Project Manager fails to respond to a programme submission within the required two weeks? How often must the Contractor in an NEC4 Engineering and Construction Contract submit a revised programme? In an NEC4 Engineering and Construction Contract being carried out under Option A (priced contract with activity schedule), can we require the Contractor to bring forward Completion if the Client has a need to take over the project earlier? Chapter 4Quality Management We have identified a number of Defects on a project which a Contractor is carrying out under the NEC4 Engineering and Construction Contract, but the Contractor denies that they are Defects. How do the NEC4 contracts define a Defect? On an Engineering and Construction Contract using Option C (target contract with activity schedule), the Contractor has advised us that he is entitled to be paid for correcting a Defect, we disagree that we should be paying him for correcting Defects. What is the meaning of the term "search for a Defect" under Clause 43.1 of the NEC4 Engineering and Construction Contract? What can be done on an NEC4 Engineering and Construction Contract if the Contractor fails to correct Defects? When is the Defects Certificate issued under an NEC4 Engineering and Construction Contract, and who issues it? Our project, which we are about to carry out using the NEC4 Engineering and Construction Contract Option B (priced contract with bill of quantities), will be on completion a very high security building with restricted access. Once the Client has taken over the works, we cannot allow the Contractor to return to correct any defects. How do we then deal with any defects which may arise? The Contractor has installed the wrong suspended ceiling tiles to the training rooms within our new building, however, we urgently need to take over the works and cannot wait for him to correct the defect. How can we manage this issue? Chapter 5Payment Provisions We wish to make use of a Project Bank Account. Can we do this with an NEC4 contract? We note that the NEC4 Engineering and Construction Contract does not include provision for retention on payments to the Contractor. Why is this, and how can we include for retention? We need to pay the Contractor on an NEC4 Engineering and Construction Contract, partly in US dollars and partly in the local currency of the country in which the project is located. How can we do this? We wish to pay the Contractor on an NEC4 Engineering and Construction Contract a mobilisation payment equating to 10% of the value of the contract. How can we do this? What is the Fee in an NEC4 Engineering and Construction Contract intended to cover? The Contractor on an NEC4 Engineering and Construction Contract has failed to submit a programme to the Project Manager, what can we do to remedy this? On an NEC4 Engineering and Construction Contract Option A (priced contract with activity schedule), if the Contractor has completed an activity, should he paid for that activity if it contains Defects? We are Contractors tendering for a series of NEC4 Engineering and Construction Contracts using Option A (priced contract with activity schedule). How should we price our Preliminaries costs within the activity schedule so that we are paid correctly? On an NEC4 Engineering and Construction Contract Option B (priced contract with bill of quantities), the Contractor contends that if the quantities change, he is entitled to revise his rates, is that true? What are "accounts and records" as required under an NEC4 Engineering and Construction Contract Option C, D, E and F? The Contractor has stated that there are certain accounts and records of costs that he cannot make available to the Project Manager as they are confidential, and also in some cases would breach data protection law. How can we pay the Contractor these costs? What are Disallowed Costs and how are they deducted from payments due? Can Disallowed Cost be applied retrospectively to a payment made in a previous month? Is there a maximum time period for deducting Disallowed Cost? How is the Contractor's Share under the NEC4 Engineering and Construction Contract Option C (target contract with activity schedule) set and calculated? How are unfixed materials on or off Site dealt with under the NEC4 contracts? How is interest calculated on late payments on an NEC4 Engineering and Construction Contract? The Contractor on an NEC4 Engineering and Construction Contract has failed to submit an application for payment by the assessment date, the Project Manager has stated that no payment is therefore due to the Contractor this month. Is this correct? We have a contract under the NEC4 Engineering and Construction Contract where the Contractor has stated that he must be paid for compensation events if he has done the relevant work. Is the Project Manager required to certify payments "on account" for compensation events not yet agreed? We have heard that there are some substantial changes to the payment terms within the NEC4 Professional Service Contract? What are they? Chapter 6Managing compensation events How do the NEC4 contracts deal with unforeseen ground conditions on the Site? How do the NEC4 contracts deal with delays and/or costs incurred by exceptionally adverse weather conditions? Do the NEC4 contracts include provision for "force majeure" events? How long do the Project Manager and the Contractor have on an NEC4 Engineering and Construction Contract to notify compensation events? We are working on an Option A (priced contract with activity schedule) under the NEC4 Engineering and Construction Contract and have submitted quotations for compensation events to the Project Manager, but he has not responded, and he has said he will discuss them with us when we submit the Final Account. Can he do this? How should a Contractor under the NEC4 Engineering and Construction Contract prepare a quotation for a compensation event? We are Contractors carrying out a refurbishment contract under NEC4 Engineering and Construction Contract Option A (priced contract with activity schedule) and have had several individual compensation events, each with time delays of less than one day. However, the total cumulative effect of all these compensation events will cause a delay to the Completion Date of approximately 9 days, how do we recover these delays and their associated costs under the contract? We have a Consultant carrying out survey work under Option A (priced contract with activity schedule) of the NEC4 Professional Service Contract. The survey has been substantially delayed due to extremely bad weather conditions. Is such a delay the Consultant's own risk? We have a compensation event in an NEC4 Engineering and Construction Contract where, in discussion with the Contractor during an early warning meeting he has stated that it is extremely difficult to price one element of the work, and we agree with him. The Contractor has suggested including a Provisional Sum within his quotation, which he can adjust later? Can he do this? How should a Project Manager on an NEC4 Engineering and Construction Contract make his own assessment of a compensation event? The Project Manager on an NEC4 Engineering and Construction Contract has instructed the omission of a part of the works. Can the Contractor claim for loss of profit on the omitted works? We have an Engineering and Construction Contract Option B (priced contract with bill of quantities), and a description of a product in the bill of quantities states "or similar approved". If the Contractor then proposes a cheaper alternative (which is approved) does this saving get administered as a negative compensation event? We would like to include value engineering within the NEC4 contracts and to reward the Contractor if he proposes a change which can save the Client money. Is there any provision for value engineering within the NEC4 contracts? What does the term "implemented" mean within the NEC4 contracts when referring to compensation events? Chapter 7Title During excavations for the foundations to a new building as part of a project to build a new school using the NEC4 Engineering and Construction Contract Option A (priced contract with activity schedule), the Contractor has discovered some archaeological remains. How should this discovery be dealt with under the contract? Chapter 8Indemnity, insurance and liability What are the insurance requirements within the NEC4 contracts? Can we include a requirement in an NEC4 contract for a Contractor or a Consultant to have Professional Indemnity (PI) insurance? Chapter 9Termination provisions We are Contractors on an NEC4 Engineering and Construction Contract Option A (priced contract with activity schedule), and we wish to terminate our employment under the contract due to non-payment by the Client. Can we do this, and if so how? Chapter 10Dealing with disputes What is the difference between Option W1, W2 and W3 within the NEC4 Engineering and Construction Contract? When are we required to select and name the Adjudicator on our NEC4 contract? What is the NEC4 Dispute Resolution Service Contract, and when should we use it? In an NEC4 contract, what is the tribunal? Chapter 11Preparing and assessing tenders What documents do we need to compile to invite tenders for an NEC4 Engineering and Construction Contract using Option B (priced contract with bill of quantities)? We are preparing the Bill of Quantities for a project to be carried out under Option B (priced contract will bill of quantities). Is the preparation of the Bill of Quantities any different to any other contract? The Client wishes to make a decision about certain landscaping elements as the project proceeds, so we are intending to include Provisional Sums within the Bill of Quantities for the time being?