Is there a typo in the NEC4 (June 2017) affecting the interpretation of clause 16.2?
If you read the opening line of the clause, it states that:
"16.2 Within four weeks of the Contractor making the proposal the Project Manager
- accepts the Contractor’s proposal and issues an instruction changing the Scope,
- informs the Contractor that the Client is considering the proposal and instructs the Contractor to submit a quotation for a proposed instruction to change the Scope or
- informs the Contractor that the proposal is not accepted.
The Project Manager may give any reason for not accepting the proposal."
The problem I see is that the drafting has neglected to include:
- the word “either” after the Project Manager on the first line;
- the word “or” at the end of the first bullet point; and
- a comma between “Scope” and “or” on the last bullet point line.
This means that the first and second items in the bullet point list must always be carried out by the Project Manager to act as stated in the conditions of contract (clause 10.1). The Project Manager is therefore always forced to accept any proposal presented by the Contractor.
This isn’t obviously what was intended (I assume) as you want the Project Manager to have had the choice of any of the three options.
Unfortunately, the wording is what it is and so, both the first two bullet point items must always be carried out, nonsensical as it seems given the third bullet point is optional as it is worded correctly.
I know Glenn Hide and Jon Broome are quite active on this forum, perhaps they could confirm this is indeed an error and if so, whether there are plans to change it. We might have to stick in a Z clause to amend the wording in the meantime to put in the missing “either” and “, or”.
It is quite possible this has already been picked up in a later revision of NEC4, but from looking at the January 2019 amendments (link below) I do not believe it has.
I have learned since the NEC has some guidance on the use of bullet point lists (in their guide for drafting Works Information here:
See page 11.
Even after reading this guidance, the clause still reads a bit odd to me. I think it still needs an “either” before the start of the list, even if the remaining list items stay as is to highlight the PM can take its pick of the options listed. Happy to be wrong, as always.
And yes, the PM should be greeted with “Hail to the Chief” as indicated in the NEC guidance… maybe via a X clause in NEC5!
Notwithstanding any ‘presentation’ issues, the Works Information / Scope defines both what is to be done and how it is to be done, described in a clear and unambiguous manner, which should not include ‘optional’ requirements.
The conditions of contract contains ‘optional’ requirements as ‘rights’ (‘may’, etc) including where the PM has the right to change the Works Information / Scope at clause 14.3, so if the requirements of the Works Information / Scope change then this can be administered under the conditions of contract as a formal ‘change control’ process.
It does seem that there is not a consistent approach to the wording, which is also apparent in other clauses, such as clause 15.1 whereby you could read this as though an early warning notification must satisfy all of the 1st 3 bullet points or the last one, unless it must satisfy bullets 1 and 2 and either 3 or 4 !!.
If you strictly applied the wording then you could argue that the Disallowed Cost clause is unworkable as any such cost must satisfy ALL the stated main bullets, especially with the word ‘and’ at the end of the 7th bullet.
It comes down to contract interpretation and what the parties intended the wording to mean at the time., although it would be difficult to argue that it meant something different to the ‘considered view’ of the NEC drafters and commentators.
Having said this, it is always good to question everything.