The paperwork can weigh heavily on the project manager, but the partnership approach in the 2012 Olympic contracts are a welcome relief to the GCCCs

Since the Engineering and Construction Contract was first published as the New Engineering Contract (NEC) in 1993, its use and reputation has steadily grown in the United Kingdom. Now in its third edition (the NEC3 was issued in July 2005), the contract has been recommended by the UK Office of Government Commerce for use by public sector procurers and is set to be used extensively in the run up the London 2012 Olympics.

The frequent use of the NEC in the United Kingdom and Northern Ireland is in direct contrast to the Republic of Ireland, where the NEC is rarely used, and where little is known about it. The notable exceptions have been two design and build road contracts for the N8, where the target cost approach was used, in one case with early contractor involvement.

The two of the distinguishing features of the NEC for which it receives praise are, firstly, its embrace of good project management and partnering and secondly what many refer to as its use of “simple language”.

Partnering
For some considerable time, discussions and seminars have taken place in Ireland on the merits of partnering, particularly in the engineering sector. However in practice the concept of partnering is often regarded with suspicion and has not been adopted across the industry. This is somewhat understandable given the traditional adversarial nature of Irish contractual relationships. In the eyes of some, this traditional attitude is being perpetuated by the new Public Works Contracts. While the Public Works Contracts may reduce the amount of disputes between parties, it remains to be seen whether they foster a spirit of mutual trust and cooperation.

The indications from the United Kingdom are that the partnering approach
used in the NEC has reduced disputes, although the NEC partnering method does place a high administrative burden on the Project Manager.

Style and layout

The drafting style adopted in the NEC is to use non-legal language. The contract uses the present tense throughout. Such an approach is starkly different and refreshing compared to the other established forms of building and engineering contracts. Non-lawyers appreciate the drafting of the NEC as clauses are generally short and easily understandable.
Unsurprisingly it is the lawyers who are the greatest critics of the NEC’s drafting and the argument has been made that the use of nonlegal language can result in a degree of ambiguity.

This article was written by Patrick Smyth, solicitor at A&L Goodbody Solicitors

This  is an extract from an article featured in the Irish Construction Industry Magazine - Click HERE to Subscribe