Introduction
This NEC4 Engineering and Construction Subcontract (ECSS) high-level overview is intended to be a quick reference guide as to where a particular subject matter can be found within the contract. This guide focuses on the most used and day to day clauses likely to be most relevant. For a specific project, any bespoke clause amendments introduced by a Subcontractor would have to be taken into account.
With this particular contract the first section to be filled in is all the elements of Contract Data. This includes:
- Contractor’s Subcontract Data
- Subcontractor’s Subcontract Data
- Subcontractor’s Offer and Contractor’s Acceptance
- Price List
- Scope
- Site Information
It is worth noting that Scope is further divided into separate sections again all of which need completing before entering into a signed agreement:
- Description of the Works
- Drawings
- Specifications
- Constraints on how Subcontractor provides the Works
- Requirements for the Programme
- Services and other things provided by Contractor
Section 1 – General
Actions
10.1 Reminder that all Parties are to act as stated in the contract.
10.2 Obligation to also act in a spirit of mutual trust and cooperation.
Defined Terms
11.2 16 no. listed in alphabetical order.
Communications
13.1 All communications issued in a form that can be read, copied and recorded.
13.2 Responses within period for reply or as stated in contract.
Project Manager
14.1 Subcontractor obeys written instructions given by Contractor.
14.2 Contractor can issue instructions to change the Scope.
14.3 Contractor gives an instruction to correct a mistake in Price List.
14.4 Contractor acceptance of a communication does not change Subcontractor liability.
Early Warnings
15.1 Reasons for which an early warning should be notified.
15.2 Both Parties co-operate in considering proposals to avoid or reduce the risk and deciding actions.
Access to site
16.1 Contractor allows access to site as necessary for the work.
16.2 Contractor provides services and other things as stated in the Scope.
Corrupt Acts
17.1 Subcontractor does not do a Corrupt Act.
Section 2 – Subcontractor’s Responsibilities
Providing the Works
20.1 Subcontractor obligation to Provide the Works in accordance with Scope.
20.2 Subcontractor does not start work which Subcontractor has designed, until Contractor has accepted.
Subsubcontracting and people
21.1 Subcontractor responsible to provide the works whether or not it has been subsubcontracted.
21.3 Contractor may instruct Subcontractor to remove a person within one day from instruction.
Access for the Contractor
22.1 Subcontractor provides access to work being done and to stored Plant and Materials.
Section 3 – Programme
Starting, Completion and programme
30.1 Subcontractor does not start work on site until starting date and completes work by Completion Date.
30.2 Subcontractor submits weekly forecast of the date of Completion.
30.3 Contractor decides date of Completion and certifies within 1 week.
30.4 Contractor may instruct Subcontractor to stop or not start work, and to re-start or remove from Scope.
31.1 Subcontractor submits programme as stated in Scope
Section 4 – Quality Management
Tests and Inspections
40.1 Requirement to carry out tests and inspections as per Scope.
Searching/Notifying Defects
41.1 Contractor can instruct Subcontractor to search for a defect.
41.2 Contractor can notify a defect up until the defects date.
Correcting Defects
42.1 Subcontractor obligation to correct a defect.
42.2 Before Completion defects corrected within a timescale to avoid impact Contractor or others.
42.3 After Completion defects corrected within defect correction period.
42.4 Contractor obligation and timing to issue Defects Certificate.
Accepting Defects
43.1 Can propose for defect to not be corrected and Scope changed accordingly for reduced Prices.
Uncorrected Defects
44.1 Contractor can assess costs of uncorrected defects and charge Subcontractor.
Section 5 – Payment
Assessing the Amount Due
50.1 Contractor to assess the amount due at each assessment day.
50.2 Subcontractor to include in application explanation of build-up.
50.4 If Subcontractor does not submit application on time, it will be assessed as zero that period.
50.5 Contractor may make own assessment of application if they consider one submitted to be incorrect.
50.6 Subcontractor liable for delay damages for each day beyond Completion Date.
50.7 Retention amount will be withheld from applications and paid upon Completion/Defect Certificate.
50.8 25% PWDD can be withheld if no 1st programme issued showing information Scope requires.
Payment
51.1 Payment made within 3 weeks of assessment date and is a cumulative application.
51.2 Interest recoverable on late or corrected items.
Section 6 – Compensation Events
Compensation Events
60.1 List of what events would be valid compensation events (12 reasons).
60.2 Any ambiguity in Site Information favours Subcontractor.
Notification
61.1 Contractor or Subcontractor may notify a compensation event.
61.2 Subcontractor submits quote within one week if Contractor notifies, or includes quote in their notification.
61.3 Subcontractor may be time barred if not notifying compensation event within three weeks.
Quotations
62.1 Subcontractor can state assumptions upon which quotation is based.
62.2 Contractor replies to quotation within period stated in Subcontract data.
62.3 Non-response to quotation within contractual timescales means deemed acceptance.
62.4 Contractor assesses quotation within one week if Subcontractor does not issue on time.
62.5 Contractor may state assumptions if assessing the quotation value which may then be corrected later.
Assessment
63.1 Price List used for compensation events that only change quantity.
63.2 Other events will be assessed upon actual/forecast Defined Cost.
63.3 Rates or lump sums may be used by agreement to assess compensation events.
63.5 New People Rates by agreement or by Contractor assessment for any missing categories.
63.7 Risk may be included within quotation and requires Subcontractor to react promptly to event.
63.8 Details how ambiguities will be assessed in terms of a compensation event.
63.10 Confirms agreed compensation events not revised.
Section 7 – Title
70.1 Subcontractor has no title to anything found/existing on the site.
70.2 Subcontractor has title to materials from excavation and demolition.
Section 8 – Risks and Insurance
80.1 List of Contractor’s liabilities.
81.1 List of Subcontractor’s liabilities.
82 Recovery of costs between Subcontractor/Contractor.
83 Insurance policies and who needs to provide what to whom.
Section 9 – Termination
90.1 List of valid reasons for termination.
91 Procedures to follow upon termination.
92 Payment rules upon termination.
93 Dispute resolution adjudication process and rules.