NEC3 ECC: Guidance on Employers Delegated Actions under NEC3 Short Form

NEC3 and NEC4 Contracts General
1

As Architect/Lead consultant we are asked to accept the delegation from the Employer to us of various Delegated Actions for which a (long) list of items has been provided; as per the request below:

We are seeking guidance on whether this is its entirety is ‘normal practice’ under NEC, as we have been more conversant with JCT in the past.

With thanks for any enlightenment available.

"With reference to your appointment as Architect/Lead Consultant for the above we refer to the Building Contract for this project which uses the NEC3 Engineering and Construction Short Contract (as amended). Pursuant to clause 14.4 of the Building Contract, (client name) as the Employer delegates to (name) Architects those Employer actions noted in the Schedule of Delegated Actions attached to this letter, a copy of which we will be sending to the Contractor, in order to comply with our obligation to notify him of the delegation.

(name) Architects may in conjunction with the appointed Quantity Surveyor (name) and insofar as you scope of services allow, seek their recommendation in order to fulfil the delegated actions under the NEC3 Engineering and Construction Short Contract as appended to this letter.

SCHEDULE OF DELEGATED ACTIONS

NEC3 Short Form (APRIL 2013) (As amended)

The following clauses identified below have been delegated to Andrew Nesbitt Architects (Architect/Lead consultant):-

Standard Form Title
Standard Form Clause Number
Actions - 10.1
Communications 13.2
The Employer’s authority and delegation 14.1, 14.2, 14.3
Early warning 16.1, 16.2
Providing the Works 20.2
Subcontracting and people 21.3
Starting and Completion 30.2, 30.3, 30.4
Searching for and notifying Defects 40.1, 40.2
Correcting Defects 41.1, 41.2, 41.4
Uncorrected Defects 42.1
Repairs 43.1
Assessing the amount due 50.1, 50.4, 50.7
Compensation Events 60.1(1), 60.1(4), 60.1(5), 60.1(6), 60.1(7), 60.1(8), 60.1(11)
Notifying compensation events 61.1, 61.21, 61.3, 61.4
Quotation for compensation events 62.1, 62.2, 62.32, 62.43, 62.5,
Assessing compensation events 63.5
Objects and materials within the site 70.1
“Z” Clause Number Z2.2 new clause 21.5
Z3.1 new clause 23(2)
Z4.1 amended clause 31.1
Z4.3 new clause 31.3
Z6.1 amended clause 41.3
Z7.3 amended clause 50.7
Z9.3 new clause 60.1(15)
Z9.7 amended clause 63.2

1 Like
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The first part off this down to Z9.7 I found encouraging :
the Employer is delegating duties down to their consultants who will actually manage the contract as they need to do as the Consultants are not the Employer. If this was not done, then all decisions etc of the consultants would have to be issued by the Employer who :

  • at best, would be a post box and therefore cause a few delays in the communication, but
  • at worst, could completely undermine your authority / respect that they were held in by the Contractor as they change & modify etc anything agreed between the two organisations actually doing the work.
    If these delegations were not in place and the worst happened then, very soon, the Contractor would just stop talking with you (the Consultant) as the Employer was changing whatever you agreed.

So, as I said, I found this encouraging and it is not unusual for Employer’s, under the short forms to delegate authority.

I then read the last bit after Z9.7 and my heart sank a bit, before I becoming a bit happier again. Why ? Because you only have to “make a recommendation”, which does not mean that the Employer has to get back to you. I.e. you send an email making a recommendation to the Employer and having done that, can immediately communicate with the Contractor under your delegated authorities, regardless of what the Employer’s eventual response is or may be !

However, I suspect that that is not the Employer’s intention ! (which causes my heart to sink again)

3

I guess the simple answer is “Yes”, although it is important to see how you have been contractually engaged yourselves. I would assume (maybe wrongly) that you would be engaged under a PSC contract (professional services) to manage these works on their behalf. You are being asked to manage all of the main clauses that the Employer would be responsible for.

So the main answer is that as long as you have had the opportunity to price all of those things within your bid then there should be no issue. If you have already entered into a contract and THEN they are asking you to do all these extra elements then that will be a change, which under NEC3 contracts we would call a compensation event.