Student NEC dissertation

Dear all,

Another 5 mins of your time please for this student's research. In his own words....

I am presently completing a MSc in Construction Law and Dispute Resolution and would appreciate if you and any of your colleagues with experience of the ECC C would complete my survey.

 

The questionnaire aims to capture the opinions of construction professional experienced within the use of the ECC Option C form of contract and the research seeks to establish ‘if in administering disallowed costs under ECC Option C, the Project Manager is in danger of breaching the required spirit of mutual trust and co-operation’.

 

The survey will only take 5 minutes to complete and all  responses provided will be combined and analysed collectively to ensure no one contribution is identifiable, therefore ensuring the anonymity of the participant and their organisation

 

Many thanks for your assistance and time.

 

https://www.surveymonkey.com/s/MScNECSurvey

 

 

 

Student NEC dissertation

Dear all, more student research if you'd be so kind. In the student's own words......

As part of my up and coming university dissertation I am to construct and issue a survey relating to my chosen topic.

 

Chosen topic:  ‘AN ANALYSIS ON CONSTRUCTION PROJECT CHANGE’  

 

Can I ask you to answer the 10 questions by following the link below (should only take 5 minutes).

 

Thanking you in advance.

 

Kind regards,

 

Jamie Budgen

 

https://www.surveymonkey.com/s/XM5PYFW

Do we manage contracts or just administer them?

What's in a word (or two)?

A while ago we used to call the stage when the contract was running 'contract administration'. We employed Contract Administrators, I think the odd standard contract used this term. I'm not convinced we ever properly administered any contract but that's another theme for another day. My point is that things happened and we reacted accordingly. We used hindsight. We were on the back foot. We argued long into the night about who did or didn't do what and chaos ensued. We could have done something different but we did not. We have long running final accounts and even longer dispute resolution processes, with only ever one winner. The frame of mind needed for this style of contracting is actually quite negative.

Now, thankfully, I see the term 'contract management' used more and more, clients looking to engage 'Contract Managers'. For me, there is good synergy here with NEC3 contracts and the mind-set required to properly run/manage a contract. We need to be proactive, to make decisions on the basis often of just foresight, we are now rolling our sleeves up and getting stuck into jointly solving problems or exploiting opportunities.

Contract management is a good place to be, contract administration is (hopefully) a thing of the past.

Any thoughts?

Z clauses....thinking about them from a different angle (part III the decision)

Having established the mischief then justifying the need to address it, next we need to make a decision and perhaps test it.

So does it stack up (perhaps sometimes financial appraisal only will not justify the need) and shall we put this into effect? Do we really need this in a one-off contract or could we elevate it somehow to a barrier to entry to working with our organisation - if you (as supplier) cannot demonstrate this or have done that then unfortunately there's a mis-match and we cannot do business together. Policing issues at this level should be far more effective than trying to make it happen with countless contracts. Surround yourself with suppliers that should give you the best service possible.

Once you've made a decision that perhaps a z clause is needed why not test this - why not ask tenderers to offer a price with and without this z clause. What if this causes the tenderer to significantly increase his tender total beyond the level you thought it would? How will you otherwise ever know?

There are loads more things you could look at here but you think there is justification, you need to make a decision to effect the z clause but possibly have one more chance at tender stage to test the financial impact this brings to tenderers.

After this, you can only measure what impact this has and consider the applicability of this for future contracts. As usual, be careful what you wish for!!!

Z clauses....thinking about them from a different angle (part II the justification)

Having established the mischief and everyone being comfortable with that, I wonder if we can bring a simple scientific test to help justify the need.
Hopefully there are challengers in the drafting team and we are not letting people loose with blank cheques to write z clauses, so the challenger(s) says:
1. What is the likelihood of this mischief actually occurring on this project (somewhere between 0% and 100%)?
2. What would be the severity of this if it did occur (try not to complicate, 1st go at this just think about additional cost the client might be put to) - order or magnitude, is it £1, £100k, £1m or something else?
3. What would be your fee to write the z clause, write a corresponding guidance note and set of flow charts so all are completely clear what it addresses and how it fits into the rest of the NEC3 contract?

You must by now know where by stealth I'm going here.....if 3 in £££ will cost more than the £££ of 2 x the % of 1 then only the z clause salesperson will be better off. It would be cheaper to give half of the sum of 3 to charity and can the proposed z clause.

So this part of the note is making sure there is justification, the proposed z clause not only has merit but also is financially prudent. Funnily enough, this is now looking like a business case!

Z clauses...thinking about them from a different angle (part I the mischief)

I think I must be getting punch drunk not only on z clause discussions but on similar themes too. Many discussions are along these lines....

'We need to include a z clause for this particular bit of legislation.
Why?
Because we need to be seen to take it seriously (and of course they mean to take it seriously)
But how and why will a z clause saying you have to do what you have to do because statute says so make any difference at all in your contract?
Silence.
We just need to include this in our contract'

So in this line of questioning (where if you keep asking why you may just root out the mischief) we failed to discover the particular aspect of a piece of legislation for which there may not be a contractual remedy to run alongside some other remedy available to that party. If we could uncover that particular mischief then we can get our heads around the problem and decide a sensible way forward. Just randomly pointing to something in the hope everything will work out just fine is naïve at best.
So this note, part I, is about actually establishing the mischief you are trying to decide whether or not you need to contractually (or otherwise) address.