FAQs: Comparison of ECC with JCT 98 As the building sector continues to increase its use of the NEC, we have

received a number of questions requiring comparisons between the JCT 98 form of contract and the NEC Engineering and Construction Contract (ECC). Below is a selection of the most frequently asked questions. Programmes Question How does the ECC compare with the JCT 1998 form of contract in terms of the requirement for a contractor s programme? Answer As an example, JCT 1998 Private Edition with Quantities has the following clause 5.3.1.2 the Contractor without charge to the Employer shall provide the Architect (unless he shall have been previously so provided) with 2 copies of his master programme for the execution of the works and within 14 days of any decision by the Architect under clause 25.3.1 or of the date of issue of a confirmed acceptance of a 13A Quotation with 2 copies of any amendments and revisions to take account of that decision or of that confirmed acceptance. Essentially, one could interpret the use of the possessive term his master programme as the contract not requiring the contractor to do a programme and submit it, but merely to pass two copies to the Architect if he has one! Notwithstanding this, it is in the interest of all parties for the contractor to issue a programme, though there is no contractual procedure for accepting or rejecting the programme, or for it to be updated by the contractor as the project progresses. The ECC, however, is quite explicit in its requirement for a programme. Under clause 31, a programme may be identified in the contract data prior to the contract date and/or submitted to the project manager within a specified number of weeks of the contract date. The programme is an important document for administering the contract. It enables progress to be monitored and the time effects of compensation events to be properly assessed using live information, including changes to the completion date. Programmes submitted for acceptance are required to show dates which are stated in the contract data or the works information dates determined by the contractor method statements identifying equipment and resources which the contractor plans to use order and timing float and, separately, time risk allowances health and safety requirements other information required in the works information. The contractor is also required to submit revised programmes at regular periods. Within two weeks of the contractor submitting a programme, or a revised programme, the project manager either accepts it or notifies the contractor of its reasons for not accepting it. The reasons listed in the contract for not accepting a programme are that the contractor s plans which it shows are not practicable it does not show the information which the contract requires it does not represent the contractor s plans realistically it does not comply with the works information

Unfixed materials on site Question The JCT forms of contract specifically provide for the contractor to be paid for unfixed materials either on or off site. How does the ECC deal with payment for unfixed materials? Answer This depends on the option chosen. Under option A (priced contract with activity schedule), the price for work done to date is the total of the prices for completed activities. In order for the contractor to be paid for unfixed materials they must be identified as an activity. Under option B (priced contract with bill of quantities), the price for work done to date is the quantity of work which the contractor has completed for each item in the bills of quantities multiplied by the rate and proportions of lumps sums in the bills of quantities. In order for the contractor to be paid for unfixed materials, they would normally form part of method-related charges. Under options C, D and E (target contracts and cost reimbursable contract), the price for work done to date is actual cost which the contractor has paid plus the fee. The contractor would have to prove that he has paid for the unfixed materials on site. Under option F (management contract) the price for work done to date is the amount of actual cost which the contractor has accepted for payment plus the fee. Unfixed materials would be included within the subcontractor s accounts.

Insurances Question Can you please advise on the insurance provisions when working on an existing building under the ECC. Under the JCT forms of contract, the employer takes out and maintains a joint names policy for insurance of the works and the existing structure. Is this also the case under the ECC? Answer Under the ECC, the contractor provides insurances in the joint names of the parties as stated in the insurance table. The contract data also provides for the employer to provide the insurance as an alternative, so again similar to JCT clause 22. With regard to insurance of the works, this includes loss or damage to the works, plant (not the traditional meaning of plant that is not machinery, vehicles and tools but plant intended for installation into the works) and materials. The insurances cover events which are at the contractor's risk, that is they exclude the employer's risks listed under clause 80.1 from the starting date until the defects certificate has been issued. The duration of the insurance is therefore different to JCT in that JCT requires insurance to be maintained until the date of issue of the certificate of practical completion.

Contractor s design Question The JCT forms of contract provide for partial design by the contractor through contractor s design portions and also through the JCT Form with Contractor s Design for full contractor design responsibility. Can we carry out a design and build contract using the ECC? Answer Yes, you can. Under the ECC, the works information defines any part of the works and any equipment which is to be designed by the contractor. Clause 22 of the ECC then defines the procedures for the contractor to submit its design proposals and the reasons for the project manager not to accept the design.

Employer s requirements versus contractor s proposals Question Under the JCT 1998 Form with Contractor s Design, where there is a conflict between the employer s requirements and the contractor s proposals, the contractor s proposals take precedence as the recitals confirm that the employer is deemed to have satisfied itself that the contractor s proposals meet with its requirements. How does the ECC deal with such issues? Answer If any part of the contractor's design does not comply with the employer's requirements as stated in part 1 of the contract data, the employer's requirements take precedence. Hence, under the second bullet point of clause 60.1 (1) a change to the Works Information provided by the Contractor for his design which is made at his request or to comply with other Works Information provided by the Employer is not a compensation event. If the contractor wishes to propose a change to its design, then it has to submit the particulars under clause 21.2 for the project manager to accept or not accept. The project manager can reject the contractor's design as it does not comply with the works information and/or the applicable law. If the project manager accepts, then the works information can be changed accordingly. If it is changed to enable it to comply with the works information provided by the employer then it is not a compensation event. If it is changed for other reasons for example the employer wishes to make a change to the works or the contractor offers a lower spec solution, then it is a compensation event. The compensation event is priced based on the forecast change to the actual cost plus the fee percentage.

Construction management Question We frequently carry out building projects using construction management as our procurement method. Is there an option under the ECC for construction management? Answer There is no specific option for construction management under the ECC, but you can do this by appointing a construction manager under the Professional Services Contract and each of the trade contractors under the ECC. The construction manager would take the roles of project manager and supervisor under each of the ECC contracts.