ECS vs ECSS - Limit of Liability

NEC3 and NEC4 Contracts
1

When deciding whether or not to let a subcontract using the ECS (Purple Book) or ECSS (Short Subcontract) often the advice from NEC3 experts is to base the choice on the complexity of the work rather than value. For example, a multi-disciplined contract with multiple subsubcontractors may be more suited to the ECS whereas a single trade contract may be more suited to the ECSS.

A key difference between the 2 forms however seems to be liability.
With the ECS you have the option to cap the subcontractor’s liability using Secondary Clause X18. There is no similar option in the ECSS. It simply requires the Contractor to stipulate the minimum amount of insurance cover required by the Subcontractor.

Should the choice between ECS and ECSS comedown therefore to risk as opposed to complexity or value?

To illustrate the point, we are in the process of trying to let a subcontract for the transportation of equipment. The degree of complexity is extremely low; ‘collect equipment at location A and deliver to location B’. The value is also relatively low, circa £100k.
The value of the equipment however is several million pounds and the location for delivery is a nuclear site where the risk of damage to buildings etc. is unknown.

The subcontractor is rightly asking to cap liability which will involve writing bespoke words into the ECSS. We are now thinking that it will be easier and simpler to revert to the ECS and use X18 to cap the liability.

2

Apologies. I would like to slightly change the question here.

The ECSS does cap the liability for ‘loss of or damage to the Employer’s or Contractor’s property’ by stating a value in the contract data.

It doesn’t appear to cap total liability though.

For example, on a transportation subcontract, the Subcontractor could damage the highway or a bridge for example. Neither of which is the property of the Employer or Contractor but could result in a sizeable liability.

Secondary Clause X18 in the ECS allows, in the contract data, for liability for ‘indirect or consequential loss’ as well as ‘total liability to the Contractor for all matters arising under or in connection with this contract’ to be capped.

So the question should be is there a gap in limiting liability in the ECSS compared with the ECS?