NEC3 - Option C "Title"

NEC3 and NEC4 Contracts
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NEC 3 (Option C Contract) - Currently working on a large infrastructure project where a Tier 1 Contractor has installed and maintained significant edge protection around structural openings (underground excavation). The Contractors contract is close to ending and the Employer wants to keep the edge protection on site, for follow on trades. The PM believes they “own” the materials as this is an option C contract and they have paid for them already under Defined Cost. There were no details of Cl.70 “Title” listed in the Works Information and none of the edge protection panels were marked by the Supervisor when brought into the Working Area. The Contractor is countering that as the WI makes no mention of “Title” and it’s not been marked as belonging to the Employer, it will be taken off site on Completion of the works, and belongs to the Contractor.

I currently support the Contractors view on this, but understand the logic presented by the PM. This is a considerable sum of money. I believe this is an error in the drafting of the original contract, which should of clearly listed materials to provide the works, which become the Title of the Employer when brought into the Working Area. Any advice/views welcomed.

Clarification: The Contractor purchased the edge protection (Equipment) for this contract and was paid for the materials as Defined Cost in the AFP.

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Plant and Materials are defined as items intended to be included in the works. The edge protection will not be included in the work. Title passes for Plant and Materials as defined. Therefore in this case the title does not pass to the Employer. If the Employer wished for this to happen, the works information should have detailed the Plant and Materials.

Payment for equipment should be in line with the schedule of cost components. The payment by the Employer for the items referenced should be in accordance with Equipment point 22, therefore not making payment for the full cost. This is probably the error that is making the Employer believe they have Title.

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