Some years ago at an NEC Users’ Group conference, I overheard someone observing that the weakest part of the NEC documentation was the contract data. The rationale for this was that, unlike the rest of the NEC, it was left to the parties to fill in the relevant parts.
While this was not quite right − because parties can add Z clauses (or even, dare I say it, amend clauses) − I had some sympathy with the sentiment. I recently recalled the comment when I came upon an example of NEC3 contract data with lots of blanks and an attached works information (scope in NEC4) that contained minimal information.
Many of the core clauses in NEC contracts assume the parties have dealt with the relevant matters in the contract data. This is frequently the case when referring to the scope; but if the scope does not deal with such matters, it will become exceedingly difficult to operate the contract as intended.
Examples of matters missing
Perhaps I should provide a few examples of contractual matters which can easily be overlooked when writing the scope of NEC works contracts (this is not intended to be an exhaustive list).
- Does the scope state whether the working areas are to be shared with others (clause 25.1)?
- Does the scope state who is to provide services and things such as water and power (clause 25.2)?
- Does the scope state the health and safety requirements that are to apply to the contractor (clause 27.4)?
- Does the scope state the form in which the programme is to be provided (clause 31.2)?
- Have the requirements relating to any quality management system been included in the scope (clause 40.1)?
- Has the contractor been informed in the scope about the materials, facilities and samples to be made available for testing (clause 41.2)?
- Is the form of payment application stated in the scope (clause 50.2)?
- Does the scope contain requirements for the marking of plant and materials (to be used under the contract) outside the working areas (clause 70.1)?
It is essential to pay very careful attention when filling in the contract data and to take the greatest care when writing the scope of any NEC contract. Failure to adhere to this advice could lead to misunderstandings from the outset, a possible deluge of early warnings and even serious disputes.
Written by Rudi Klein, NEC Users' Group President