As an employer using the NEC3 Engineering and Construction Contract (ECC), we can find plenty of information about the responsibilities of the project manager and supervisor under the contract. It is not so obvious to determine the contractor's responsibilities though.
On many contracts we deal with, the contractor's team will have many points of contact for correspondence with the project manager and supervisor and their delegates. However, for important contractual notifications from the contractor to the project manager, what would the status of such notifications be if an individual had not previously been given specific authority or delegation by notice to the project manager?
We suspect that the use of the key people in the contract data part two may be the answer. But does the notice have contractual effect only if the person listed as a key person by the contractor, and given the requisite role and responsibility, actually issues the notice? Should we ask the contractor to clarify the roles and responsibilities if there is any doubt in this regard?
Notifications and other communications from the contractor can be given by anybody with its apparent authority. The contractor is a corporate body and they therefore has to act through its employees and others who represent it. The same applies to you as the employer – you can also allow anybody with apparent authority to carry out your actions under the contract. However, the project manager and supervisor are named individuals and are required to carry out the actions required of them personally, unless they have delegated such actions in accordance with the contract.
It is irrelevant as to whether or not the people communicating on behalf of the contractor are named as a key person, as the contract makes no such requirement for them to be so. In any event such a requirement would be impractical and ill advised. For example, an early warning is required to be notified ‘as soon as’ the contractor is aware of a matter listed under clause 16.1. The person who firsts becomes aware will often be the site manager and it is therefore good management to allow him or her to notify accordingly.
Of course it is good management to discuss and agree with the contractor who will usually be making the various communications required by the contract. But that will not preclude the contractor from using other people for communications, and it would not render those communications invalid.