NEC3: Is there precedence of contract documents?

NEC3 and NEC4 Contracts General
1

According to my understanding, there is a clear provision of precedence of document in other standard form of contracts, such as JCT and FIDIC contract. However, it seems that relevant provision is intentionally omitted by the contract drafter of NEC contracts. If there is ambiguity or inconsistency, the only way out is to ask the Project Manager to step in under Clause 17.1.

So the question is: will it create uncertainties for the parties as they will never know how a document will be interpreted during the tendering stage?

Also, I would also like to know the reason behind such arrangement. Why don’t the contract simply say something regarding precedence of document? Thank you.

Last but not least, as a Project Manager, how can I access and instruct in accordance with Clause 17.1 so as to protect the parties’ interest and prevent my judgement from being challenged by subsequent adjudication / arbitration / litigation? Is there any rule of thumbs or guidelines I should follow? (Say, contra preferentem rule?)

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2

In relation to an NEC hierarchy of documents, Jon Broome wrote an excellent article on this very subject which can be found either following the below link;

https://www.jonbroome.com/getattachment/44704d3b-547d-4bd9-a278-b40389ffcc58/Is-there-a-hierarchy-of-documents-under-the-ECC.aspx

Or by reference to the NEC Users Group Newsletter Nr 43 pp 4-5

3

Thanks for the recommendation and it is indeed a very good article!

The only problem is that, why don’t the NEC drafter just write: Any Articles of Agreement precede Contract Data, Contract Data precede Conditions of Contract etc. This kind of arrangement may reduce uncertainty and make sure the Project Manager is comfortable to resolve ambiguity?

4

NEC deliberately avoids hierarchy of contract documents - it is too easy otherwise for a Client to create ambiguity, and then just say that their ambiguity takes precedence over anything else. Much better for the Employer to put more time and effort into their documents not creating such ambiguity.