BUSINESS AND TRAINING 17
10.1.5
10.2.3
10.3.1
10 3.2 the Employer ’ s Agent shall within 28 days after the Contractor has delivered his claim … deliver to the Contractor and the Employer his written and adequately reasoned ruling on the claim … the Employer ’ s Agent shall within 28 days after the Contractor or the Employer has delivered the dissatisfaction claim … give his adequately reasoned ruling on the dissatisfaction … refer specifically to this clause . The Contractor or the Employer ( the Parties ) may deliver to the other a written ‘ Dispute Notice ’ of any dispute arising out of or in connection with the Contract … provided the dispute arises from a rejected claim … within 28 days of the event giving rise to the dispute – failing such delivery the Parties shall have no further right to dispute the matter . If either Party shall have given Notice in compliance with clause 10.3.1 the dispute shall be referred immediately to Adjudication in terms of clause [ 10.5 ] unless amicable settlement [ 10.4 ] is contemplated .
NEC - the role of the contract administrator ( CA ) 2017 : 14 The Project Manager gives instructions as necessary to stop or start work or remove work from the scope , for additional work forming part of a compensation event , to accelerate the work or to consider any proposals the Contractor may make to simplify , or improve execution of the work
Early warning : the contractor and the project manager ( PM )… notify the other as soon as either becomes aware of any matter that may crease the total price ; delay completion ; delay meeting a key date ; impair the performance of works in use … register of ‘ EW Notices ’ – procedures to assess and / or implement .
NEC – Dispute resolution clauses in editions 2005 and 2017 … Option W 1 - either party may refer a matter to a ‘ senior representative ’ to solve – failing which it is referred to adjudication . A matter includes ‘ an action or inaction , a compensation event , a defined cost … or any other matter .’
NEC – Dispute avoidance clauses in the 2017 edition …
• Option W 3 - either party may appoint a Disputes Avoidance Board ( using the NEC Dispute Resolution Service Contract ) consisting of one or three members with the third member chosen jointly by the parties
• The DAB assists the parties in resolving potential disputes before they become disputes
• Potential Disputes are notified and referred to the DAB within 2-4 weeks of notification to other party and PM
• The parties make available to the DAB the copies of the contract , progress reports and any other relevant items
• The DAB visits the site / works , reviews potential disputes to settle them without formal resolution
• The DAB prepares ‘ notes ’ and at the request of the Parties makes recommendations to resolve the matter
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Open and honest communication means fewer issues .
settles the matter – it may review and revise any ( in ) action of the PM in terms of the dispute . The tribunal may follow arbitration procedures in terms of provision in the contract data . A DAB member cannot be a witness in tribunal proceedings .
Observations The parties and the contract administrator to any SfC can agree to manage the execution of the works to avoid disputes or conflicts by :
• Promptly notifying one another as a matter of concern arises to meet and / or discuss the options to for speedy resolution and implementation to avoid delay or additional cost claims
• Collect and maintain information as a project proceeds for future reference
• Maintain open honest communications ‘ without prejudice ’
• Actively ‘ scan the horizon ’ to proactively and timeously identify potential future problems
• Disputes cannot always be avoided , but the Parties can retain control of the process and resolve issues ‘ finally ’ in private in the most cost-effective manner without involving the legal profession
• Where the parties cannot resolve a matter between one another , they can agree to ‘ Low-Value Dispute Adjudication ’ ( not included in any SfC ,) as a potentially speedy , cost effective solution . PA
“ The tribunal may follow arbitration procedures in terms of provision in the contract data . A DAB member cannot be a witness in tribunal proceedings .”
Note A dispute is only referred to the tribunal after resolution has first been attempted by the DAB . The party dissatisfied with the DAB ’ s recommendation , after notice to the other party and PM may submit to the tribunal such matter within four weeks of a notice . The tribunal
January 2025 Volume 30 I Number 11 www . plumbingafrica . co . za