Could you please give us your thoughts as to the practical application of the NEC3 clauses on Title in relation to excavated materials

The Works Information on our Option A contract states that “The Contractor has no title to materials from excavation and demolition.”

If the Contractor has no title to excavated material, we are wondering in particular:

  1. is the Contractor free to recycle that material and re-use it on the project (or indeed, on other nearby projects on which the Contractor is engaged) without offering a saving to the Employer?
  2. Is the Contractor obliged to leave the excavated material on site for the Employer’s use?
  3. Or if the excavated material has no value, can the Contractor actually dispose of material that he has no title to and is he liable for the cost of disposal?

Derek, clause 73.2 states that “The Contractor has title to materials from excavations and demolition only as stated in the Works Information”

Your WI says that the Contractor has no title…
The material belongs to the Employer and only the PM may instruct a change to the WI. Until he does, it must remain where the WI stated the spoil to be placed. During your communications you might inquire from the PM what they want to do with it?
Any instruction to the Contractor to handle or dispose or move will become a CE.

  1. First establish what the Employer intends to do with it. If the need is for the Contractor to “dispose” of it, you quote for that. Thereafter you have title and may use it as you deem fit.
  2. Yes you are obliged to leave it until you get instructed to deal with it - so ask?
  3. The Contractor has no responsibility to handle or dispose of it except as stated in the WI.
    This is a good position for the Contractor if the Employer wants to get rid of it because then it results in additional income for the Contractor.