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NEC ECC: Option A/C Contractor wording Employer Works Information and resultant changes
I work for a large organisation where we use NEC3 with all our framework contractors.
On a large number of contracts, the contractors either partly compile the Works Information or at least the contractors quotation is used as the wording for elements of the scope of works in the Works Information, as they often know more about the scope than the Employer.
The issue is, the Works Information is then worded very much in the contractor’s favour and often reflects the approach and even methodology selected by the Contractor to carry out the works, therefore any change to this is raised as a Compensation Event by the contractor under 60.1 (1).
Normally in such scenarios, particularly in any fixed price contract arrangement, the contractors’ methodology is their risk and is not stated anywhere as the Employer’s requirements.
In one case, a challenge of the methodology on site by a legislative body resulted in an extensive delay to the works until this was resolved , however as the contractor was involved in the Works Information part of this was included in the Works Information, therefore resulting that this was deemed a valid Compensation Event as a change…
This is not ideal, and results in the Employer carrying a large portion of the risk which would normally be carried by the contractor…
Is this something that can be addressed by additional wording in the Works Information to clarify or adding risk allocation elsewhere? Any advice on this would be appreciated
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A positive about both NEC3 and NEC4 is that it clearly differentiates between Employer's Works Information (NEC3) / Client's Scope (NEC4) and the Contractor's WI/Scope AND, although not stating directly the precedence of the documents which is E's / Client's over the Contractor's.
So the most obvious thing to do is to ensure that you state your requirements and constraints upfront in your Works Information and that any information developed by the Contractor is referenced as there Works Information.
However, I think that a deficiency of both NEC3 and NEC4 is that it fails to differentiate between Works Information / Scope for the Contractor's design (which is mentioned both in clause 60.1 (1) and the referenced in Contract Data part 2 which the Contractor fills in and WI/Scope for how the Contractor is to do the works which is not mentioned in either. What I have taken to do is write, as a Z clause, that all references to "Contractor's Works Information for his design" are replaced by "Contractor's Works Information" and then have two entries in the CD part 2.
Likewise, in structuring the E/Client's Works Information, I try to clearly differentiate between the technical documents of 'what' they have to do according to relevant standard and the 'how'. Consequently, the Contractor's 'how' has to comply with the E's 'how'.
I don't think doing this will solve your problem, but it will make it more visible and reduce it.
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Works Information is a defined term and;
- specifies and describes the works or
- states any constraints on how the Contractor Provides the Works
Essentially this means that you tell the Contractor what you want them to do and also state any particular ways in which you want this done.
The Works Information is an important contract document and plays a key part in certain contract procedures, such as deciding when Completion has occurred and whether a matter constitutes a Defect. Consequently it should be as precise and unambiguous as possible.
The best advice is really to take ownership of this document, using completed contract works as a 'learning experience' . There is an NEC guidance document available on how to write Works Information if you need any assistance.
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