A Local Authority (LA) Client had appointed a consultant Project Manager through one of their Frameworks to oversee an NEC 3 Option B new build project. The Consultant has subsequently, over time, fallen short of providing his obligations and Scope of Services such that the Employer have now removed him from the Contract. Can the Employer (LA) now appoint its own NEC3 Accredited Project Manager who is an employee of the LA?
This is an area you need to be very cautious of. There is an important case on this point which while dealing with a contract administrator under a JCT-like form would be equally (if not more) applicable under NEC principles. The relevant case is SCHELDEBOUW BV -v- ST. JAMES HOMES (GROSVENOR DOCK) LTD. which you can find here, https://www.bailii.org/ew/cases/EWHC/TCC/2006/89.html.
The key part of the judgment comes right at the end and says “For the reasons set out above, in my judgment the employer is not entitled under any or all of the trade contracts to appoint itself as construction manager.” The reasoning for this is the perceived bias it introduces and that the intent and expectation of the parties was an independent third party certifier and changing that is a fundamental change to the basis of the contract.