Under the provisions of the NEC 3 contract, can an e-mail be considered as an early warning? My understanding is that any form of written communication could be considered a notification or early warning under the contract. Is this understanding correct?
The requirements of the NEC3 ECC for communications are set out in clause 13.1. To satisfy the requirements a communication must be capable of being “read, copied and recorded”. Clearly an email satisfies these requirements (as does a text message for that matter).
However, many clients limit the use of email through Z clauses - particularly for notifications under the contract which must also satisfy 13.7 which states that notices must be communicated separately from other communications.
This limitation is born of good practice and the dangers of using unregulated emails in a contractual environment. So whilst the contract does not prohibit the use of emails to notify early warnings I suggest that it is not good practice to do so unless there are some rules surrounding their use.
Also ‘firing off’ an email can result in it not being properly considered. Using a formal template to draft a contractual communication is one way of ensuring that its content is properly thought through and helps you to maintain your commercial position.
For instance you could establish dedicated mailboxes for your contract communications and agree that only communications to those mailboxes are contractually valid. Also agreeing a set of communication templates (generally readily available these days) helps to maintain the proper contractual rigour. All these potential problems are overcome by one of the NEC3 systems that are available - e.g. that provided by Conject and others. I strongly recommend that you use such a system on any NEC3 project.
Clause 13.2 is also relevant - an email address can only be used if the recipient has notified it for receiving communications.
Excellent point - thanks Dave
Further note that to use management systems then I would advise that specific Z clauses are incorporated to give them the proper contractual effect.