Contract Document Clarifications

NEC3 and NEC4 Contracts
1

The Contractor has engaged with a Subcontractor for a package of works using the NEC3 ECS.
Terms were largely agreed, with a few remaining exceptions.

The Contractor issued via email a final copy of the subcontract to the Subcontractor to review and sign, with the contended terms drafted to align with the Contractors contractual position.

The Subcontractor has returned via email a signed copy of the subcontract order, with an additional attachment to the email titled ‘Contract Return Letter’. This letter confirms receipt of the issued order, notes that enclosed with this letter is a signed copy of the subcontract which has ‘been agreed and executed’ by the Subcontractor, ‘along with the following clarifications…’
The letter then lists the contended terms are to align with the Subcontractors contractual position.

The Contractor believes there is now an executed subcontract and in accordance with clause 12.4 this is the entire agreement between the parties, with the contract return letter not forming part of the subcontract agreement.

The Subcontractor believes that by returning the contract return letter with the executed subcontract, their clarifications now form part of the subcontract.

Does anyone have any guidance on who’s terms should be used for the contended items?

1 Like
2

While I realise this is not the answer you are hoping for, I think you need legal advice.

3

With the limited information provided it’s difficult to fully advise.

If this issue has arisen prior to performance of the works/commencement the best course of action would be to seek to mutually agree the terms, if the issue has arisen during the course of the works and the terms cannot be mutually agreed, as Andy says legal advice would be appropriate.

On the issue itself, it is likely that the Subcontractors reply would be deemed a counteroffer, that would subsume your original offer - although this would be fact dependant.