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NEC4 ECC Practitioner Course · Module 1 · Lesson 2 of 4

Who is who

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Why it matters

Dana is not a Party, so is she bound by the two-week period for reply?

Dana Whitfield is the Project Manager, Tom Barrow the Supervisor.

2Parties: Aldermere Water, the Client, and Merrow Vale, the Contractor
2not Parties, but act for the Client: Dana and Tom

Source: ECC 11.2(13). Aldermere Contract Data part one.

The rule

Dana and Tom act for the Client but are not Parties

The are “the Client and the Contractor” (11.2(13)).

PartyAldermere Water

The .

PartyMerrow Vale

The Contractor, which .

Not a PartyDana Whitfield

The . Instructs, replies, certifies payment.

Not a PartyTom Barrow

The . Watches tests, notifies .

Source: ECC 11.2(13), 13.4, 14.3, 20.1, 41.3, 43.2, 51.1.

The rule

Clause 10 binds the Project Manager and the Supervisor as well as the Parties

Not being a Party frees nobody from the rules.

10.1Act as the contract says

So time limits such as the bind Dana.

10.2Trust and co-operation

All four “act in a spirit of mutual trust and co-operation” (10.2).

Source: ECC 10.1, 10.2.

The rule

A firm's work decides if it is a Subcontractor

Judge a firm by what it does.

Yes, if it

  • builds or installs part of the works
  • designs part of the works
  • gives a needed service in the

No, if it only

  • designs its own
  • hires out
  • supplies people paid for time worked

Source: ECC 11.2(19).

See it on the project

Dana accepts Cobalt, a Subcontractor, first

Leila Moss is Merrow Vale's commercial manager.

  1. 14 JanLeila sends Dana Cobalt's name.
  2. 23 JanDana accepts Cobalt (26.2).
  3. 26 JanCobalt is appointed on an unamended (26.3).

Are the utility firms under Station Road Subcontractors?

No. They have no contract with Merrow Vale. They are (11.2(12)).

Does accepting Cobalt move responsibility off Merrow Vale?

No. Merrow Vale stays “responsible for Providing the Works as if it had not subcontracted” (26.1).

Source: ECC 11.2(12), 11.2(19), 26.1, 26.2, 26.3. Aldermere storyline.

Try it

Sort the six firms Leila meets in January

Test each firm against the three limbs and the two exclusions you just saw.

Firm 1 of 6

…

Source: ECC 11.2(12), 11.2(19), 26.2.

Quick check · Who is who

Two questions on what you have just covered

Answer, then read why.

Quick checkPick an answer to see if you are right and why
1Dana replies late, saying time limits bind only the Parties. Right?
No, clause 10.1 binds her as well
Yes, as she is not a Party
Yes, her periods are only targets
No, but only because of mutual trust
2A Cobalt pump fails its test. Who answers to Aldermere Water?
Merrow Vale, which stays responsible
Cobalt, as it did the work
Nobody, as Dana accepted Cobalt
Cobalt and Merrow Vale in equal shares

2 questions to answer

Source: ECC 10.1, 26.1.

Recap

Know who may act, and test each firm by what it does

The Checklists' Setup tab sets the form of contract and time limits.

On Monday at work

  • List the Parties, the Project Manager and the Supervisor for your job.
  • Test each new firm against clause 11.2(19).
  • Send each Subcontractor's name to Dana before you appoint it.

In the Toolkit: NEC4 Contract Checklists (ECC and ECS) (Excel) Members

Next lesson: Reading and changing the words

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Independent course material. It is not published or endorsed by NEC. Clause references are to the NEC4 Engineering and Construction Contract, June 2017 with amendments January 2023. The project and the people are invented. Short quotes from NEC4 (© NEC 2017) and the FIDIC Red Book (© FIDIC 2017) are used for review and comment. Read the full clauses in your own copy of the contract.

Source: ECC 11.2(13), 11.2(19), 26.2.

Go deeper (optional)

Dana and Tom each hold their own actions

Optional. Whose desk each task sits on.

Dana, the Project Manager

  • Instructs (14.3)
  • Replies to submissions (13.4)
  • Assesses the amount due (50.1)
  • Certifies payment (51.1)

Tom, the Supervisor

  • May watch any test (41.3)
  • Instructs searches for Defects (43.1)
  • Notifies Defects (43.2)
  • Issues the (44.3)

Source: ECC 13.4, 14.3, 41.3, 43.1, 43.2, 44.3, 50.1, 51.1.

Go deeper (optional)

The Defects Certificate can come on the defects date or later

Optional. A date that matters years later, at the end of the job.

No notified Defect is left at the defects date. When does Tom issue it?

At the itself (44.3).

ECC 44.3

Some notified Defects are still open then. When does it come?

When they are all corrected or the last ends, whichever is first (44.3).

ECC 44.3

Source: ECC 44.3.

Go deeper (optional)

Subcontracting keeps the risk and passes the duty down

Optional. What subcontracting changes, and what it does not.

Does subcontracting move any risk?

No. Merrow Vale stays “responsible for Providing the Works as if it had not subcontracted” (26.1).

ECC 26.1

May Dana refuse a subcontract's documents?

Yes. One reason is that they leave out a statement that its parties act in mutual trust and co-operation (26.3).

ECC 26.3

Why did Cobalt's ECS not go to Dana?

It is an unamended NEC subcontract, so it need not be submitted. Its own clause 10.2 has the same duty.

ECC 26.3. ECS 10.2

Source: ECC 26.1, 26.3. ECS 10.2.