Definition of Others in NEC3

The contractor has a (sub)contract with an organisation that would fall within the definition of a subcontractor at clause 11.2(17).

The project is in significant delay and the Employer would like to bring forward some post completion works that it requires to be carried out. The organisation that the employer has contracted with to carry out these works is the same organisation that is the subcontractor to the contractor under the contract.

The PM considers that this organisation falls within the definition of “Others” (11.2(10)) and has given an instruction changing the works information that requires the contractor to treat this organisation as ‘others’ and share the working area etc.

The contractor has concerns that the Employers/PM’s actions in appointing this organisation (that still has work to complete under the subcontract) at this crucial stage, with only a weeks notice of the commencement of works to be carried out, will divert its attention away from completing works under the subcontract. The works to be carried out under the PM’s instruction are also not discrete, standalone works, and will possibly involve modifying the works provided/carried out under the contract by the contractor, which has as yet not achieved completion.

Can the PM do this, and can an organisation that is engaged directly in the contract and defined as a subcontractor also be defined as others, simply on the basis that the employer now has a contract with this (sub)contractor/same organisation to carry out these works?

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Welcome to the community.

I refer you to the definition of “Others” in clause 11.2 (10):

Others are people or organisations who are not the Employer, the Project Manager, the Supervisor, the Adjudicator, the Contractor or any employee, Subcontractor or supplier of the Contractor” (my emphasis)

Therefore, provided that the PM is aware of this organisation being a Subcontractor or supplier of the Contractor, the issuing of such an instruction is a breach of the Contract conditions. That would entitle the Contractor to a CE under 60.1 (18) because the PM, when issuing instructions, is acting for the Employer.

All the above, in relation to an unamended NEC3 ECC form.

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