Is it a valid compensation event? · Module 1 · Lesson 4 of 4

Drafting that starts the argument

7 screensAbout 6 minutes

Why it matters

Two of Aldermere's compensation events began with how the Scope was written

Neither came from a change of mind. Both came from loose drafting, and both changed the Prices.

CE009Drawing and specification differed

GBP 11,100

CE011Silent on the inside of the joints

GBP 26,085

010,00020,00030,000

How do you write Scope that leaves less to argue about?

Source: ECC 17.1, 60.1(1), 63.10.

The rule

Performance drafting leaves the method open, prescriptive fixes it

One requirement, written both ways. The risk sits differently each time.

Performance: method open

A flotation check at the highest groundwater level in the Site Information.

Prescriptive: answer fixed

A 600 mm base slab, in Merrow Vale's design statement.

Its writer carries the risk. It failed (Module 4).

Source: ECC 11.2(16), 17.1, 60.1(1).

The rule

Most arguments start with one of six drafting habits

If you write or check Scope, look for these first. Two of them cost Aldermere money.

	What goes wrong
Vague wordsSuch as “as required” or “suitable”	Read two ways
Silence on a detailThe inside of the culvert joints	CE011, GBP 26,085
Work to someone's satisfactionThe Project Manager's, with no test	No standard
No clear design splitDrawings that do not say who designs what (21.1)	Whose Scope?
One rule written twiceDrawing C-210 and specification 5.12	CE009, GBP 11,100
Paper in the wrong placeTender answers in emails, rules in the Site Information	Not Scope

Source: ECC 11.2(16), 11.2(18), 17.1, 21.1.

See it on the project

Aldermere Water wrote two requirements as tests that pass or fail

Judge each, then open it. Here the drafting worked.

Key Date 1 asks for the embankment ready for planting. Measurable?

Yes. Aldermere Water's tender answer defining the words was put into the Scope, so it binds (11.2(16)).

The wet well's flotation check. Measurable?

Yes. It is a pass or fail test at the highest groundwater level in the Site Information.

The fix: measurable requirements, each stated once.

Source: ECC 11.2(16). Contract Data part one.

Try it

Sort six lines of draft Scope: measurable, or open to argument

Imagine you are checking the Scope before tender. The reason shows after each answer.

Line 1 of 6

…

Source: ECC 11.2(16), 17.1.

Quick check · Try it

Two questions on what you have just covered

Clash, then method.

Quick checkPick an answer to see if you are right and why

1The Scope sets a 450 mm pipe and a flow it cannot carry. What is it?

An inconsistency, which either side notifies

A Defect, which Merrow Vale corrects at its cost

A compensation event from the day it is found

2The method is left open. Dana, the Project Manager, instructs one. A change?

Yes, as it adds a constraint

No, as the performance was always required

Only if Aldermere Water agrees to pay

2 questions to answer

Source: ECC 11.2(16), 17.1, 60.1(1).

Recap

Write each requirement once, in one document, as a test someone can pass or fail

Three checks for any Scope you write.

On Monday at work

Replace vague words and satisfaction clauses with a measurable test.
State each requirement once, in one listed document (17.1).
Fold every tender answer into a listed document before the Contract Date (11.2(16)).

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

Next: the module check

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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(16), 17.1, 21.1.

Go deeper (optional)

Three drafting traps practitioners ask about

Opinion is split on the first. Take advice before you rely on it.

The work is subject to Dana's satisfaction. Can she ask for more?

The contract has no rule on this wording, and opinion is split. Some say she must judge against what the Scope plainly aims at (10.1, 10.2). Others say Merrow Vale priced the risk.

A tender answer never reached a listed document. Does it bind?

No. Scope sits “in the documents which the Contract Data states it is in” (11.2(16)), or in an instruction. Dana must instruct it, and that is a compensation event.

Dana told us how to meet a performance we missed. Change or not?

Meeting the performance was always required, so that cost stays with Merrow Vale. Fixing the method adds a constraint, so only the extra cost of her method is assessed (63.1).

Source: ECC 10.1, 10.2, 11.2(16), 63.1.

Go deeper (optional)

Courts read the Scope as written, so a buried requirement still binds

Three cases, the amendments and what changed from NEC3.

What did MT Højgaard (2017) decide?

Not an NEC case. The Supreme Court held that a 20-year design life in a technical schedule bound the contractor, though it met the industry standard the contract named.

What does Wales and West (2014) show?

The NEC3 lump sum covered coating for 2,000 m of pipe. The contractor said it laid about 8,000 m. An adjudicator found a change worth GBP 479,817.17. The court did not rule on the merits.

Is Atkins (2013) about more of the same work?

No. It turned on a bespoke clause 60.1(11) in a modified NEC3 contract. An arbitrator held that an excess of potholes was not a defect in the road network. The judge said the clause looked at each defect, not the total.

Which amendments narrow 60.1(1)?

Clauses saying the Contractor priced anything reasonably inferable, orders of precedence, and query procedures saying answers are not instructions. Read the Z clauses first.

What changed from NEC3?

Works Information became Scope, with the same two-part definition. NEC4 added the communication system rule (13.2). A delegation notice must now name the delegate and the actions (14.2).

Source: MT Højgaard v E.ON (2017). Wales and West v PPS (2014). Atkins v Secretary of State for Transport (2013). ECC 13.2, 14.2, 60.1(1).