Kelvin Hughes

NEC4: 100 Questions and Answers (eBook, PDF)

• Format: PDF

Produktbeschreibung

This book details some of the most important and interesting questions raised about the NEC family of contracts and provides clear, comprehensive answers to those questions.

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Produktdetails

• Verlag: Taylor & Francis eBooks
• Seitenzahl: 246
• Erscheinungstermin: 10. Mai 2019
• Englisch
• ISBN-13: 9780429774225
• Artikelnr.: 56786541

Autorenporträt

Kelvin Hughes has been a leading authority on the NEC contracts for over 20 years, during which time he has advised on numerous NEC based projects and provided over 1,700 NEC training courses at all levels from Introduction through Advanced to Masterclass. He was also Secretary of the NEC Users Group representing worldwide users of the contract, for ten years.

Inhaltsangabe

Contents
Chapter 0
Introduction to the NEC4 Contracts
Use of NEC4 Contracts
1. What are the general differences between the NEC3 and NEC4 contracts?
2. We are compiling tender documents for a project we have valued at
approximately £500,000, and are wondering whether we should consider
using the NEC4 Engineering and Construction Contract or the NEC4
Engineering and Construction Short Contract? What is the difference
between the two, and is there any project for which the NEC4
contracts would not be applicable?
3. We wish to engage a Contractor to carry out electrical testing within
existing council housing stock over a period of three years. The work
is fairly straightforward, can we use the NEC4 Term Service Short
Contract or should we use the NEC4 Term Service Contract?
4. We wish to purchase large quantities of rock salt for treating roads
during winter periods. Is the NEC4 Supply Short Contract sufficient,
or should we use the NEC4 Supply Contract because of the large
quantities?
5. When should we use the new NEC4 Design Build and Operate Contract?
6. Do the NEC4 contracts comply with the requirements of the Housing
Grants, Construction and Regeneration Act 1996, and the Local
Democracy, Economic Development and Construction Act 2009?
7. We wish to use the NEC4 Engineering and Construction Contract for a
series of projects, and assume that the contracts include all the
necessary ancillary documents to be incorporated into the contract,
for example:
* Form of Agreement
* Performance Bond
* Parent Company Guarantee
* Advanced Payment Bond
* Novation Agreement
* Collateral Warranty
* Retention Bond
1. We wish to appoint a Contractor to carry out some work with the
Client's design team on pre-construction value engineering and
buildability options for a proposed project, for which we may
eventually appoint him to be our Contractor to build the project, or
we may decide to carry out a selective tendering process to select
our Contractor, can we do this with an NEC4 contract?
2. We have been using the NEC3 Engineering and Construction Contract for
a number of years, and have used all the Main Options except Option D
(target contract with bill of quantities), and wonder, why anyone
would use that option?
3. When would it be appropriate to use Option E within the NEC4
Engineering and Construction Contract?
4. We would like to use the NEC4 Engineering and Construction Contract
to carry out a project using Construction Management as a procurement
method. We note that Main Option F is a Management Contract, but
there is no Construction Management Option?
5. We wish to use the NEC4 contracts for a number of international
infrastructure projects in various locations around the world, is
that possible?
Roles
6. What is the role of the Project Manager on an NEC4 Engineering and
Construction Contract, and does he have an obligation to act
impartially between the Parties?
7. What construction discipline is best suited to being the Supervisor
on an NEC4 Engineering and Construction Contract, and how much
"supervising" does the Supervisor actually have to do?
General
8. Under Clause 14.2 of the NEC4 Engineering and Construction Contract,
the Project Manager or Supervisor may delegate actions. What does
this mean? Is there anything that the Project Manager or Supervisor
cannot, or must not, delegate?
9. What is the meaning of the wording in Clause 10.1 and 10.2 of the
NEC4 contracts, the parties named "shall act as stated in the
contract" and "act in a spirit of mutual trust and co-operation"?
10. What is the order of precedence of documents in an NEC4 contract?
11. What does the term "Working Areas" mean in an NEC4 Engineering and
Construction Contract? Presumably this is simply, the Site?
12. How do the NEC4 contracts deal with verbal communications? What do
the words "in a form which can be read, copied and recorded" mean?
13. We wish to name Subcontractors which the Contractor is required to
use in an NEC4 Engineering and Construction Contract. How can we do
that?
14. What happens under an NEC4 Engineering and Construction Contract
Option B (priced contract with bill of quantities) if something is
clearly indicated on the tender drawings, but it is missing from the
bill of quantities?
15. In an NEC4 Engineering and Construction Contract Option E (cost
reimbursable contract), how are insurance premiums recovered by the
Contractor?
16. We wish to include for price fluctuations within a NEC4 Engineering
and Construction Contract. How can we do that?
17. A new legal requirement has just come into force, the Contractor on
an NEC4 Engineering and Construction Contract Option C (target
contract with activity schedule) has stated that he is entitled to
additional payment to recover this. Is he correct?
18. We are entering into a partnering arrangement with the Contractor
within an NEC4 Engineering and Construction Contract. What can we do
in order to achieve this?
19. Within the NEC4 Engineering and Construction Contract, when would we
use Option X15 (The Contractor's Design)?
20. We note that the NEC3 Engineering and Construction Contract includes
Option X17 (low performance damages). What is this, and how is it
calculated and paid to the Client?
21. We do not understand NEC4 Engineering and Construction Option X18
(limitation of liability). When would this be applied?
22. We wish to include for Key Performance Indicators (KPI's) with an
NEC4 Engineering and Construction Contract? How can we do this?
23. How should Z clauses be incorporated into an NEC4 contract? Are there
any recommended Z Clauses?
24. We are confused by the fact that within the NEC4 Engineering and
Construction Contract, there is the Schedule of Cost Components and
the Short Schedule of Cost Components? What are these for and what is
the difference between the two?
25. How are Subcontractors dealt with within the NEC4 Engineering and
Construction Contract Schedules of Cost Components?
26. Some of the NEC4 Contracts include a Price List. What is this and how
do we use it?
27. Can you explain what a Task, and a Task Order are under the NEC4 Term
Service Contract?
Chapter 1
Early Warnings and Risk Registers
1. Is there a standard format within the NEC4 contracts for an early
warning notice? Is there any remedy if the Project Manager or the
Contractor fail to give an early warning?
2. What is an Early Warning Register, and what is its purpose within the
NEC4 Engineering and Construction Contract?
3. What is the purpose of an early warning meeting within the NEC4
contracts?
Chapter 2
Contractor's Design
1. We wish to use the NEC4 Engineering and Construction Contract and the
NEC4 Engineering and Construction Short Contract for a number of
design and build projects, can we do this and if so, how?
2. In a design and build contract using the NEC4 Engineering and
Construction Contract, which takes precedence, the Client's
Requirements or the Contractor's Proposals?
3. If the Project Manager on an NEC4 Engineering and Construction
Contract accepts the Contractor's design and it is later found that
the design will not work, or it is not approved by a third party
regulator, who is liable?
4. We wish to novate a design consultant from the Client to the
Contractor under an NEC4 Engineering and Construction Contract with
full Contractor's design. Can we do this?
5. The Contractor has designed a temporary access walkway bridging
across two areas of the Site. He has not submitted his design
proposals for the Project Manager's acceptance before constructing
the walkway, but we insist that he is in breach of contract by
failing to do so. What can we do to remedy this breach?
Chapter 3
Time and the Accepted Programme
1. Can we include liquidated or unliquidated damages in an NEC4
contract? How are these deducted in the event of delayed Completion?
2. Do the NEC4 contracts have provision for Sectional Completion where
the Client may wish to take over parts of the works before completion
of the whole project?
3. In an NEC4 Engineering and Construction Contract, what is the
relationship between "Completion" and "Take Over"?
4. We have a project where we require the Contractor to provide "as
built" drawings, maintenance manuals and staff training as part of
the contract, how do we include this requirement within an NEC4
Engineering and Construction Contract?
5. We have a project under the NEC4 Engineering and Construction
Contract Option C (target contract with activity schedule) to build a
new college where we will require the Contractor to complete wall
finishings to classrooms in order that a third party directly
employed by the Client will be able to install audio visual equipment
fixed to the walls. How can we incorporate this requirement into the
contract?
6. The Contractor on an NEC4 Engineering and Construction Contract was
required to submit a programme with his tender. He has stated that as
we accepted his tender, then we have also accepted his programme, and
this is the first Accepted Programme, but how can it be so if it does
not comply with Clause 31.2?
7. Who owns the float in an Accepted Programme within an NEC4
Engineering and Construction Contract?
8. The Contractor on an NEC4 Engineering and Construction Contract has
failed to submit a programme to the Project Manager, what can we do
to remedy this? Is there any remedy where the Project Manager fails
to respond to a programme submission within the required two weeks?
9. How often must the Contractor in an NEC4 Engineering and Construction
Contract submit a revised programme?
10. In an NEC4 Engineering and Construction Contract being carried out
under Option A (priced contract with activity schedule), can we
require the Contractor to bring forward Completion if the Client has
a need to take over the project earlier?
Chapter 4
Quality Management
1. We have identified a number of Defects on a project which a
Contractor is carrying out under the NEC4 Engineering and
Construction Contract, but the Contractor denies that they are
Defects. How do the NEC4 contracts define a Defect?
2. On an Engineering and Construction Contract using Option C (target
contract with activity schedule), the Contractor has advised us that
he is entitled to be paid for correcting a Defect, we disagree that
we should be paying him for correcting Defects.
3. What is the meaning of the term "search for a Defect" under Clause
43.1 of the NEC4 Engineering and Construction Contract?
4. What can be done on an NEC4 Engineering and Construction Contract if
the Contractor fails to correct Defects?
5. When is the Defects Certificate issued under an NEC4 Engineering and
Construction Contract, and who issues it?
6. Our project, which we are about to carry out using the NEC4
Engineering and Construction Contract Option B (priced contract with
bill of quantities), will be on completion a very high security
building with restricted access. Once the Client has taken over the
works, we cannot allow the Contractor to return to correct any
defects. How do we then deal with any defects which may arise?
7. The Contractor has installed the wrong suspended ceiling tiles to the
training rooms within our new building, however, we urgently need to
take over the works and cannot wait for him to correct the defect.
How can we manage this issue?
Chapter 5
Payment Provisions
1. We wish to make use of a Project Bank Account. Can we do this with an
NEC4 contract?
2. We note that the NEC4 Engineering and Construction Contract does not
include provision for retention on payments to the Contractor. Why is
this, and how can we include for retention?
3. We need to pay the Contractor on an NEC4 Engineering and Construction
Contract, partly in US dollars and partly in the local currency of
the country in which the project is located. How can we do this?
4. We wish to pay the Contractor on an NEC4 Engineering and Construction
Contract a mobilisation payment equating to 10% of the value of the
contract. How can we do this?
5. What is the Fee in an NEC4 Engineering and Construction Contract
intended to cover?
6. The Contractor on an NEC4 Engineering and Construction Contract has
failed to submit a programme to the Project Manager, what can we do
to remedy this?
7. On an NEC4 Engineering and Construction Contract Option A (priced
contract with activity schedule), if the Contractor has completed an
activity, should he paid for that activity if it contains Defects?
8. We are Contractors tendering for a series of NEC4 Engineering and
Construction Contracts using Option A (priced contract with activity
schedule). How should we price our Preliminaries costs within the
activity schedule so that we are paid correctly?
9. On an NEC4 Engineering and Construction Contract Option B (priced
contract with bill of quantities), the Contractor contends that if
the quantities change, he is entitled to revise his rates, is that
true?
10. What are "accounts and records" as required under an NEC4 Engineering
and Construction Contract Option C, D, E and F? The Contractor has
stated that there are certain accounts and records of costs that he
cannot make available to the Project Manager as they are
confidential, and also in some cases would breach data protection
law. How can we pay the Contractor these costs?
11. What are Disallowed Costs and how are they deducted from payments
due? Can Disallowed Cost be applied retrospectively to a payment made
in a previous month? Is there a maximum time period for deducting
Disallowed Cost?
12. How is the Contractor's Share under the NEC4 Engineering and
Construction Contract Option C (target contract with activity
schedule) set and calculated?
13. How are unfixed materials on or off Site dealt with under the NEC4
contracts?
14. How is interest calculated on late payments on an NEC4 Engineering
and Construction Contract?
15. The Contractor on an NEC4 Engineering and Construction Contract has
failed to submit an application for payment by the assessment date,
the Project Manager has stated that no payment is therefore due to
the Contractor this month. Is this correct?
16. We have a contract under the NEC4 Engineering and Construction
Contract where the Contractor has stated that he must be paid for
compensation events if he has done the relevant work. Is the Project
Manager required to certify payments "on account" for compensation
events not yet agreed?
17. We have heard that there are some substantial changes to the payment
terms within the NEC4 Professional Service Contract? What are they?
Chapter 6
Managing compensation events
1. How do the NEC4 contracts deal with unforeseen ground conditions on
the Site?
2. How do the NEC4 contracts deal with delays and/or costs incurred by
exceptionally adverse weather conditions?
3. Do the NEC4 contracts include provision for "force majeure" events?
4. How long do the Project Manager and the Contractor have on an NEC4
Engineering and Construction Contract to notify compensation events?
5. We are working on an Option A (priced contract with activity
schedule) under the NEC4 Engineering and Construction Contract and
have submitted quotations for compensation events to the Project
Manager, but he has not responded, and he has said he will discuss
them with us when we submit the Final Account. Can he do this?
6. How should a Contractor under the NEC4 Engineering and Construction
Contract prepare a quotation for a compensation event?
7. We are Contractors carrying out a refurbishment contract under NEC4
Engineering and Construction Contract Option A (priced contract with
activity schedule) and have had several individual compensation
events, each with time delays of less than one day.
However, the total cumulative effect of all these compensation events
will cause a delay to the Completion Date of approximately 9 days,
how do we recover these delays and their associated costs under the
contract?
8. We have a Consultant carrying out survey work under Option A (priced
contract with activity schedule) of the NEC4 Professional Service
Contract. The survey has been substantially delayed due to extremely
bad weather conditions. Is such a delay the Consultant's own risk?
9. We have a compensation event in an NEC4 Engineering and Construction
Contract where, in discussion with the Contractor during an early
warning meeting he has stated that it is extremely difficult to price
one element of the work, and we agree with him. The Contractor has
suggested including a Provisional Sum within his quotation, which he
can adjust later? Can he do this?
10. How should a Project Manager on an NEC4 Engineering and Construction
Contract make his own assessment of a compensation event?
11. The Project Manager on an NEC4 Engineering and Construction Contract
has instructed the omission of a part of the works. Can the
Contractor claim for loss of profit on the omitted works?
12. We have an Engineering and Construction Contract Option B (priced
contract with bill of quantities), and a description of a product in
the bill of quantities states "or similar approved". If the
Contractor then proposes a cheaper alternative (which is approved)
does this saving get administered as a negative compensation event?
13. We would like to include value engineering within the NEC4 contracts
and to reward the Contractor if he proposes a change which can save
the Client money. Is there any provision for value engineering within
the NEC4 contracts?
14. What does the term "implemented" mean within the NEC4 contracts when
referring to compensation events?
Chapter 7
Title
1. During excavations for the foundations to a new building as part of a
project to build a new school using the NEC4 Engineering and
Construction Contract Option A (priced contract with activity
schedule), the Contractor has discovered some archaeological remains.
How should this discovery be dealt with under the contract?
Chapter 8
Indemnity, insurance and liability
1. What are the insurance requirements within the NEC4 contracts?
2. Can we include a requirement in an NEC4 contract for a Contractor or
a Consultant to have Professional Indemnity (PI) insurance?
Chapter 9
Termination provisions
1. We are Contractors on an NEC4 Engineering and Construction Contract
Option A (priced contract with activity schedule), and we wish to
terminate our employment under the contract due to non-payment by the
Client. Can we do this, and if so how?
Chapter 10
Dealing with disputes
1. What is the difference between Option W1, W2 and W3 within the NEC4
Engineering and Construction Contract?
2. When are we required to select and name the Adjudicator on our NEC4
contract?
3. What is the NEC4 Dispute Resolution Service Contract, and when should
we use it?
4. In an NEC4 contract, what is the tribunal?
Chapter 11
Preparing and assessing tenders
1. What documents do we need to compile to invite tenders for an NEC4
Engineering and Construction Contract using Option B (priced contract
with bill of quantities)?
2. We are preparing the Bill of Quantities for a project to be carried
out under Option B (priced contract will bill of quantities). Is the
preparation of the Bill of Quantities any different to any other
contract? The Client wishes to make a decision about certain
landscaping elements as the project proceeds, so we are intending to
include Provisional Sums within the Bill of Quantities for the time
being?