The NEC3 family of contracts is enjoying a high point in the life of a ‘standard form contract’ for use in the construction sector. It is the contract of choice for the Olympic Delivery Authority and has been wholly endorsed by the Office of Government Commerce (OGC) for use by the public sector. Building to timescale is non-negotiable for the 2012 Games and an irresistible question is: will the NEC3 now deliver? An allied question concerns the role (if any) for lawyers with the use of NEC3 in the 2012 Games.
The courts have, surprisingly, had very little involvement with the NEC family of contracts: McAlpine PPS Pipeline Systems Joint Venture v Transco [2004] and Rossco Civil Engineering v Dwr Cymru Cyfngedic (Welsh Water) [2004], where both cases considered whether earlier versions of the NEC were compliant with the adjudication provisions of The Housing Grants, Construction and Regeneration Act 1996, (the Construction Act); and Costain and others v Bechtel [2005] which considered the independence of the project manager in the certification process. The latter is clearly the more significant case and held that the project manager had to act impartially between employer and contractor when assessing payments.
