What NEC4 ECC supervisors do, and need to know

Richard Patterson

Alec Kowalski

Karen Redband

Key points:

• The NEC4 ECC supervisor is an invaluable member of the site team, focusing on quality and helping the contractor to get things right. 
• Supervisors should act as stated in the contract and in a spirit of mutual trust and co-operation, meaning they will need to read and understand the contract and, when appropriate, talk to others before writing. 
• Their contractual roles are testing, notifying defects and issuing the defects certificate – they cannot undertake project manager roles unless delegated those actions by the project manager.  

The role of the supervisor in an NEC4 Engineering and Construction Contract (ECC) is set out in just one and a half pages in part 4 of the contract. Essentially the supervisor’s role is monitoring how well the contractor is doing what it says in the scope, carrying out testing as stated in the scope (Clause 41.3), receiving test results from the contractor for tests as stated in the scope (Clause 41.3), instructing searches for defects (Clause 43.1), notifying defects (Clause 43.2) and issuing the defects certificate (Clause 44.3). 

The only other clause in the contract for the supervisor is Clause 71.1, which states, ‘The Supervisor marks Equipment, Plant and Materials which are outside the Working Areas if: 

• the contract identifies them for payment and 
• the Contractor has prepared them for marking as the Scope requires.’

All the other contract management roles are carried out by the NEC4 ECC project manager, including notifying early warnings, changing the scope and stopping the works, none of which the supervisor can do. However, it may be a good idea for the project manager to delegate authority to stop the works to the supervisor in the case of a health and safety issue. 

Pricing and preparing for the role

The effort required from a supervisor will be a function of the extent of tests and inspections required in the scope, the extent to which the contractor is complying with the scope and how much the client wants the supervisor to be looking over the contractor’s shoulder. 

Often the only way to price the role is to offer rates for different grades of staff. As the supervisors are not in control of the duration of construction and cannot quantify the extent of their involvement upfront, the role is usually best delivered on a cost-reimbursable basis. 

NEC4 ECC Clause 10.1 says the supervisor ‘shall act as stated in the contract’, clause 10.2 says ‘act in a spirit of mutual trust and co-operation’ and clause 13.1 effectively says they need to put everything in writing. Supervisors should therefore read and understand the contract and, when appropriate, talk to others before writing. 

It is worth noting there is only one clause in the NEC4 ECC where the supervisor does anything positive, namely testing and inspection before delivery. Clause 42.1 says, ‘The Contractor does not bring to the Working Areas those Plant and Materials which the Scope states are to be tested or inspected before delivery until the Supervisor has notified the Contractor that they have passed the test or inspection.’ 

Everything else is negative, with the key roles being to instruct searches for defects (Clause 43.1) and to notify defects (Clause 43.2). It should be noted that supervisors do not have to accept anything: while contractors often ask them to ‘sign off’ works, this is not their role. The supervisor may be seen as a ‘negative Nancy’, but a key thing is to remain collaborative. 

Quality management

The contractor must provide named ‘key persons’ for roles stated in Contract Data part two. It is good practice for one of those roles to be stated by the client as a quality manager as this gives the supervisor a clear contact in the contractor’s organisation for testing and defects.  

NEC4 ECC requires the contractor to use a quality management system (Clause 40.1) and to provide a quality policy statement and quality plan for acceptance (Clause 40.2). However, it is the project manager, not the supervisor, which accepts these documents.  

While there is no contractual definition of what needs to be included in the quality plan, any decent quality management system will set this out.  

Spotting and dealing with defects

In NEC4 ECC, there are no ‘snags’ or ‘non-conformance reports’, just ‘Defects’. However, there is often a reluctance to notify defects and just deal with things on a ‘snagging-list’, which is not good practice. Clauses 45 and 46 options for accepting and charging for not having corrected defects only applies to notified defects, so it is important they are named as such to keep all contractual tools available. 

The contractual definition of a ‘Defect’ (Clause 11.2(6)) includes something that is ‘not in accordance with the Scope’, so it important for supervisors to understand the scope fully. A defect is also defined as something ‘which is not in accordance with the applicable law or the Contractor’s design which the Project Manager has accepted.’ Spotting a defect therefore means the supervisor also must have copies of all the contractor’s design, which is not explicit in the contract. The supervisor will also need to have an understanding of the applicable law but, in relation to the design, may need help from the client’s designers.  

Clause 11.2(2) says completion is when the contractor has, ‘corrected notified Defects which would have prevented the Client from using the works or Others from doing their work.’ This effectively separates ‘big’ defects that stop the client from using the works and ‘little’ defects that the contractor can correct after completion (Clause 44.2). While it is the project manager which certifies completion (Clause 30.2), supervisors notifying a defect to the contractor should give a heads up that it might be a ‘big’ defect.  

Also, while there is no contractual requirement to keep a list of defects during the contract, supervisors should set one up from the start and share it with the project manager and contractor. The only mention of a list of defects in NEC4 ECC is when the supervisor issues the defects certificate (Clause 11.2(7)) at or soon after the defects date, typically 52 weeks after completion. This is a list of notified defects that have not been corrected, or a statement that there are none. 

Accepting corrected and uncorrected defects  

There is no clause under which the supervisor accepts that a defect has been corrected. In practice, the supervisor needs to set up a process for the contractor to say when a defect has been corrected so the supervisor can review and mark it as corrected on their list of defects. 

Only the project manager can accept an uncorrected defect. Under Cause 45.2, it is the project manager’s decision as to whether to make a deal with the contractor (lower prices and/or an earlier required completion date) to accept a defect.  

If the contractor does not correct a defect within the relevant defect correction period, it is the project manager who assesses how much the contractor will have to pay the client (Clause 46). The supervisor’s list of defects will be useful for the project manager to know when a defect has not been corrected within the correction period. 

A defect can come off the supervisor’s list of defects if: the supervisor agrees that a notified defect was not actually a defect (there is no clause for this); the contractor can convince the supervisor that it has corrected the defect (Clause 44.1); the defect has been accepted by the project manager (Clause 45); or the contractor has paid for not correcting the defect (Clause 46). 

Defects certificate

At or soon after the defects date, supervisors must issue the defects certificate to the client, project manager and contractor (Clauses 13.6 and 44.3). This is defined in Clause 11.2(7) as, ‘either a list of Defects that the Supervisor has notified before the defects date which the Contractor has not corrected or, if there are no such Defects, a statement that there are none.’ 

Supervisors will need to have done their job properly to be happy making such a statement – certainly this is not an action that should be delegated. However, the supervisor is protected in a few ways. The last sentence of Clause 44.3 says, ‘The Client’s rights in respect of a Defect which the Supervisor has not found or notified are not affected by the issue of the Defects Certificate.’ This means the supervisor is saying there are no remaining defects to be included on a defects list, not guaranteeing that there are no defects in the work at all. 

Clause 44.1 says, ‘The Contractor corrects a Defect whether or not the Supervisor has notified it’, and Clause 14.1 says, ‘the Supervisor’s acceptance of a communication from the Contractor or acceptance of the work does not change the Contractor’s responsibility to Provide the Works or liability for its design.’ These clauses exist as the supervisor cannot be everywhere and see everything. Contractors are responsible for their own work – the supervisor is an independent pair of eyes trying to help the contractor get things right. 

Delegation and record keeping

The named supervisor’s role may be carried out by more than one person due to the size of the project, where specialist skills are needed or to cover periods of absence. The named supervisor may delegate parts of the role to named individuals (Clause 14.2), and this must be done formally, in writing and notified to the contractor. 

There is nothing explicit in the contract about the supervisor keeping records – other than about testing and defects. But often the supervisor is on site full time and expected to keep records of construction progress. The project manager might also ask the supervisor to look out for disallowed cost, which is sensible but not strictly a role of the supervisor. Paterson (2017) provides further information on the necessary interaction between project managers and supervisors. 

Conclusion

The NEC4 ECC supervisor is an invaluable member of the site team. They can bring a focus to quality and compliance free from the commercial and time pressures that the contractor is subject to. They should help contractors get things right, building a relationship based on trust and honesty. But they must also remember their contractual obligations and use the mechanisms in the contract to do so.