BuildLaw Issue 29 September 2017 | Page 16

One example would be the use of tense in the contract. Despite the criticism of the NEC’s use of the present tense mentioned above, it is at least used consistently and therefore the intentions of the parties are understood by those adjudicating, arbitrating or otherwise deciding on its terms. What would happen, however, if Z clauses changed the tense? In the event that a new obligation was inserted to state “The Contractor shall in carrying out the works…” How would the NEC provision of “The Contractor Provides the Works…” (ECC Clause 20.1) be then interpreted? Would the latter obligation now be seen as simply an objective statement of fact rather than an obligation given the conflicting style of the earlier provision?

Incorrect Incorporation of Specification

Many practitioners will have seen parties seek to use a generic standard specification used on previous projects for different standard forms of contract on an NEC project without making the necessary changes to reflect the NEC form. The person drafting the contract simply sought to incorporate the specification by using a short cut statement of “all references to Specification shall mean Works Information”. Sometimes the shortcut states that the specification is intended to comprise “both the Works Information and Site Information”. This less than diligent drafting ignores, amongst many issues:

- the fact that the positions of Project Manager and Supervisor are likely to be different to Architect or Contract Administrator or Engineer within the specification;
- the roles and responsibilities of Client and Contractor may differ and the authority given to the NEC role of Project Manager will differ also; and
- the acceptance of a communication by a Project Manager under ECC Clause 14.1 will differ from an Engineer’s approval in other contract.

Conclusion

As the NEC is becoming more prevalent throughout the construction industry examples of bad practice in structuring and amending the contract should be less frequently seen. Whilst there are different ways to structure Works Information, Site Information documents and Z clauses consistency in form and structure are required to maximise the project management benefits of the contract and avoid embarrassing ambiguity.

About the Author
Ian specialises in construction and engineering law, working closely with utility and engineering companies, energy and water industry suppliers, contractors and developers. He normally works on standard form and bespoke construction and engineering contracts in addition to international plant supply and installation, power and fuel supply, and collaboration and research development agreements.

BPE Solicitors

Partner, Construction & Engineering