Construction projects and risk management: NEC 4 – the evolution of contracts
For 12 years now the NEC3 contract has played a key role in delivering high profile projects through its reliance upon the values of proactive project and risk management procedures and the use of plain English.
Following the widely anticipated release of NEC4, we outline the key changes to be aware of and the potential implications these may have on the construction sector.
The next generation of NEC contracts, referred to as the NEC4 suite, has been described as an evolution of the existing NEC3 form, based on user feedback, rather than a revolution.
As such the traditional NEC values that have led to the successful delivery of many projects remain largely unchanged, although there are some interesting changes and additions. Five of these are reviewed within this paper.
Authored by Manoj Bahl, MSc MEng CEng MICE MCIArb, Senior Director, FTI Consulting and reproduced with his permission.
Case Study – Establishing Cause and Effect
In Claims Class Case Studies, we present a case study of a real situation for the reader to study and decide on the correct contractual outcome. The author’s opinion of the solution is presented underneath.
The project consists of a 36-storey hotel tower and a 36-storey serviced apartment tower constructed over a 4-storey podium and a 4-level basement car park. The basement and podium ‘footprint’ covers approximately 80% of the site.
Prior to the issue of tenders, the Employer arranged with the local municipality, that an area of land owned by the municipality in front of the Site could be used for the Contractor’s site establishment and this information was included in the tender documents.
The general conditions of contract are the Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, First Edition 1999.
The Employer engaged a separate contractor to…
Download the full case study on Establishing Cause and Effect.
We also published another case study earlier on cause and effect which you can read here.
[Source: http://www.housingnews.com.ng/prosecute-involved-building-collapse-niqs-president/ ]
In order to stop the incidence of building collapse in the country, the President, Nigerian Institute of Quantity Surveyors, Mrs. Mercy Iyortyer, has urged the government to prosecute anyone found culpable in the construction of such defective buildings.
She said this in an interview with journalists on the sidelines of a two-day national workshop organised by the institute, with the theme: ‘Procurement of infrastructural facilities: Professional perspectives’, held in Abeokuta.
She noted that if the necessary layers of supervision and monitoring were diligently carried out on any construction work, and the required quality and quantity of materials were used, cases of building collapse would not occur.
Iyortyer also explained that the issue of use of quacks in building construction could be responsible for the recurring building collapse in the country.
She said, “There are many areas to be looked at concerning the recurring cases of building collapse. It starts from the owners of buildings trying to use quacks for their building construction, to the failure of government agencies to provide the necessary supervision of such construction to ensure that standard materials are used.
“Again, some owners go and add additional floors to the already approved plans and some professionals involve themselves in preparing false designs. I want to suggest that the government should begin to prosecute those involved in any building that collapses, so that they would know that it is a serious issue.”
Iyortyer commended the state chapter of the NIQS for organising the programme, adding that it would definitely update the knowledge of its members.
Ogun State Governor, Ibikunle Amosun, who was represented at the event by his deputy, Mrs. Yetunde Onanuga, urged members of the NIQS to adopt modern technologies in the discharge of their professional duties for better service delivery.
The governor noted that in building infrastructure such building for shelter, school and health, the practitioners must ensure that not only the right quality was employed, but also “that the right quantity is used.”
Eurocom Ltd v Siemens Plc
Adjudication – Adjudicators – Appointments – Conflict of interest – Enforcement – Fraudulent misrepresentation – Implied terms – Jurisdiction – Summary judgments
In April 2011, Siemens PLC (“Siemens”), the contractor, engaged Eurocom Limited (“Eurocom”) to install communications systems at Charing Cross and Embankment underground stations. A dispute arose regarding delay to the start of the works, variations, prolongation and delay and disruption. In August 2012, Siemens terminated the Eurocom’s employment under the sub-contract.
In August 2012, Eurocom commenced an adjudication and an adjudicator was appointed. In his September 2012 decision, the adjudicator decided Eurocom should pay a net sum of £35,283 to Siemens.
In November 2013, Eurocom’s representatives served a notice of adjudication on Siemens. To the question, “Are there any Adjudicators who would have a conflict of interest in this case?“, in the RICS’ “REQUEST FOR NOMINATION OF AN ADJUDICATOR” form, Eurocom’s representative listed a number of names of individuals and firms, including the name of the first adjudicator. Accordingly, the RICS appointed a second adjudicator which was not on the list.
RICS did not copy the adjudicator application form to Siemens until 7 January 2014, at which point Siemens asked Eurocom’s representatives for an explanation regarding the alleged conflicts of interest. Siemens’ two letters went unanswered.
During the adjudication, Eurocom and Siemens exchanged multiple submissions (referral, response, reply, rejoinder, surrejoinder), as well as additional submissions in correspondence and following questions the adjudicator asked. The time for the adjudicator’s decision was extended several times. In his decision dated 28 January 2014, the second adjudicator awarded Eurocom £1.6 million.
In May 2014, Eurocom sought payment of the sums the second adjudicator had awarded. Siemens advised that it would resist enforcement proceedings and one of the issues would be the nomination process for the second adjudicator’s appointment. Eurocom commenced enforcement proceedings in July 2014.
At the hearing in September 2014, the issues before Mr Justice Ramsey were whether:
- the second adjudicator’s appointment was invalid because of the information provided by Eurocom’s representatives in the second adjudication to the RICS in making the application for the appointment of an adjudicator and/or because the RICS failed to raise conflicts of interest with Siemens in accordance with the procedure in their explanatory notes;
- the second adjudicator adjudicated again on the same or substantially the same matters as had been referred to and/or decided in the first adjudication;
- the procedure adopted by second adjudicator breached the rules of natural justice;
- there should be a stay of enforcement of any sums awarded by way of summary judgment.
Counsel for Siemens argued that:
- the Eurocom’s application form misrepresented to the RICS that a number of individuals had a conflict of interest;
- there was a clear misrepresentation in that a false statement was made deliberately and/or recklessly and a nomination based upon such a misrepresentation was invalid and a nullity so as to go to the foundation of the adjudicator’s jurisdiction;
- it was an implied term of the sub-contract that the party seeking a nomination should not subvert the integrity of the nomination process by knowingly or recklessly making false representations to the ANB or so as to improperly limit or fetter the ANB’s ability to choose an adjudicator.
Mr Justice Ramsey dismissed Eurocom’s summary judgment application, finding that there was a “strong prima facie” case that the referring party’s representative, made a fraudulent misrepresentation on RICS nomination of an adjudicator form. The effect is that this invalidated the second adjudicator’s appointment, which meant he lacked jurisdiction to reach a decision. In summary, the Judge held, with regard to the issue of:
1. whether there was fraudulent misrepresentation:
a. the statement completed by Eurocom’s representatives in the RICS nomination form was a false statement;
b. there was clearly no conflict of interest for the first adjudicator to be nominated in a subsequent adjudication;
c. in such proceedings, based upon evidence in witness statements without the possibility of cross examination, it was not appropriate for the court to conclude that Eurocom’s representatives acted fraudulently in making that false statement;
d. the evidence gives rise to a very strong prima facie case that Eurocom’s representative deliberately or recklessly answered the question in the RCIS nomination form so as to exclude adjudicators who he did not want to be appointed;
e. it seemed more likely that the reason for including the first adjudicator’s name in RICS nomination form was because Eurocom did not want the first adjudicator to be appointed as a result of the unfavourable first decision;
f. it was difficult for the court to understand how Eurocom’s representative, a non-practising barrister, could otherwise complete the RICS nomination form in that way.
2. the materiality of the false statement:
a. where a party makes a material fraudulent representation to an independent body which is exercising a discretion, the exercise of that discretion would be invalidated;
b. it was not necessary to prove reliance by the RICS as the fraudulent misrepresentation voided the transaction altogether (Rous v Mitchell  1 WLR 469, Lazarus Estates Ltd v Beasley  1 QB 702 and Prest v Petrodel Resources Ltd);
c. the pool of potential adjudicators had been “improperly limited”, which was sufficient causation between “the fraudulent misrepresentation and the process of appointment” to defeat an application for summary judgment.
3. whether there was an implied term not to act with dishonesty:
a. parties enter contracts on the basis that the other party will act honestly, following Akenhead J’s obiter comments in Makers UK Ltd v The Mayor and Burgesses of the London Borough of Camden  EWHC 1836 (TCC),
b. a party applying for a nomination should not act dishonestly and any party that did so would be in breach of an implied term to that effect;
c. there was a breach of this implied term and there was a sufficient causal link between the fraudulent misrepresentation and the adjudicator appointment process; alternatively
d. if a party’s failure to follow the correct adjudication process went “to the heart of the appointment”, the adjudicator would lack jurisdiction (IDE Contracting v RG Carter Cambridge Ltd  EWHC 36 (TCC)).
4. whether there was a breach of natural justice:
a. the role of the RICS is limited to the proper exercise of its discretion to make a nomination; and
b. the RICS is not a body that is required to consult with the other party or achieve a balance between the parties that may be required by procedural fairness and therefore, its failure to send the application form to Siemens did not invalidate the adjudicator’s nomination.
5. whether the dispute referred to in the first and second adjudication were the same or substantially the same:
a. there was significant overlap between the two adjudications and that the second adjudicator had made decisions on claims that had already been adjudicated on. He did not have jurisdiction to do that;
b. the fact that the second adjudicator did not make any allowance for the claims in the first adjudication, it was not possible for the court to sever certain elements from the second decision;
6. whether procedure contravened the rules of natural justice:
a. the adjudicator had a discretion as to what further submissions and documents he allows during the adjudication, that time periods are short, in particular the need to work over Christmas/New Year;
b. it was proper for the adjudicator to ask questions and sought submissions from the parties.
Not only does this judgment provide some further guidance on enforcement proceedings and challenges, it also gives the whole business of adjudicator nomination a new dawn.
Referring parties can no longer have pre-emptive rejection list on the nomination form nor can they routinely identify names they do not want the ANB to appoint for reasons other than a conflict of interest. Further, simply identifying the name or names of individuals would not be sufficient. The Referring Party must state the reasons it believes the person named in conflicted.
As far as the RICS is concerned, following this judgment, it has amended its form “REQUEST FOR NOMINATION OF AN ADJUDICATOR BY RICS” to include the following passages:
at page 2:
“3.3 Conflict of interest
If in your view there are any adjudicators who would have a conflict of interest in this case, you should list them in this box. Please also provide for each such person, brief but clear reasons for this statement. Your attention is drawn to the decision in Eurocom Limited v Siemens PLC  EWHC 3710 (TCC) to the effect that misrepresentation in this statement could invalidate the appointments process in its entirety, rendering any decision/award made unenforceable.
RICS is by law not required to provide a copy of the application form to the non-applicant party and does not do so automatically. However, as a matter of good practice, RICS will provide a copy of the form to the non-applicant party on request.
Notwithstanding any such statements, the President of RICS always retains an unfettered discretion to appoint any adjudicator he/she regards as suitable”
at page 5:
“Conflict of Interest (Please refer to Section 3.3)
Please indicate below whether in your view there are there any adjudicators who would have a conflict of interest in this case. Please provide for each such person brief but clear reasons for this statement.
Name Firm Reasons”