NEC ECC: Who is responsible for getting rid of excavated material from site?

NEC3 and NEC4 Contracts Title
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NEC3 ECC Option A

What if the Works Information states that the Contractor is responsible for disposing of excavated material but also states that the Contractor has no title to materials from excavation and demolition?

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My reading of that is that

  • the Contractor is responsible for disposing of it somewhere i.e. moving it off-Site to where it is disposed of, but that …
  • it is has no ownership of the material. This implies that any disposal costs of (probably) excavation fall on the Employer as they still own the material. Equally, any proceeds of demolition material e.g. steel, they would receive.it.

The might not be what was intended by the drafters! I would notify an early warning and call a risk reduction meeting to try and resolve.

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Jon
The Works information states that the works include the excavation and disposal of the material and the Contractor has provided a priced activity schedule for the project so why is the employer liable for the cost of disposal?

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Because title is to do with ownership, so if the Contractor has no rights of ownership, then presumably the Employer does.

So the Contractor is responsible for excavating and the operation of getting it to wherever it is going to be disposed, but if they don’t own it, then how can they receive payments for selling it. The opposite of that is paying for someone to take off their hands - e.g. a land fill site owner - something that they don’t own.

That’s my reasoning, but I suspect, even with full knowledge of the contract, it would be open to debate.

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Hi Derek

Clause 20.1 requires you to provide the works in accordance with the Works Information, so if the WI requires you to dispose of the excavated material you will need to do this.

As @Jon_Broome points out clause 73.2 states “The Contractor has title to materials from excavation and demolition only stated in the Works Info”, so by default the ownership of the material is retained by the Employer unless he has stated otherwise in the WI. I have seen on major demolition contracts where this wording is amended via Z clause, because the scrap value of material from the demolition ran to several million pounds. You might want to check you don’t have any z clauses that change the title provisions under section 7, even if the value might be very low, it could affect you the answer to this question.

I don’t agree with Jon’s point

The contract doesn’t state this. The Employer can also change the Works Information via a PMI. I’d suggest thats a conversation or early warning is the sensible way forward. To my mind you would be wasting your time (and the Employer) trying to charge the clients for the disposal given the requirement is in the contract. @Rob_Horne, @stevencevans and @Mike_Tiplady welcome your thoughts and how this is interpreted.

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Interesting point Chris and probably one which many Employer’s / Client’s don’t even consider. If the Works Information / Scope doesn’t state a particular requirement for how the Contractor is to deal with such materials then the baseline assumption could sensibly be regarded as whatever is stated in the Site Waste Management Plan. Any change to this intention would require an instruction as a change to the requirements (WI/Scope).

In a sense the ‘title’ issue suggests that the Contractor has no rights when it comes to obtaining any residual value from such materials, as they don’t ‘belong’ to the Contractor. From my experience some contracts do consider this issue, especially for; planings on a highway project, rail and sleepers for re-railing, equipment from an HV substation, cabling for a signalling system upgrade etc where there are ‘materials’ of particular value.

I also note that NEC4 reverses the title position under clause 73.2, possibly to ‘force’ a Client to pro-actively manage this issue or to allow the Contractor, by default, to assume responsibility.

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