Terminology: How it’s use is important with NEC
21/10/24
Newsletter #29:
Welcome to the Instruct newsletter. Almost as fun as doing air guitar when no-one is looking.
Terminology in any contract is important, and this week we explore some of the specific words and phrases used in NEC4. Why are they important, and what happens if you get them wrong, especially when drafting a Scope document!
Let’s go for our top 5 NEC4 terminology!
What to look out for when using and communicating with these terms.
Top 5 Terminology
“period for reply” - Defined in the Contract Data, this term is used to explain how long you have to reply to a communication, notification etc. It all links back to the duration inputted into the Contract Data. But don’t forget, this only applies when it is mentioned. Some clauses give specific timescales which can be different to the period for reply!
“Site Information” - What does Site Information mean? It’s referred in Contract Data with an opportunity to define where Site Information can be obtained. Site Information is defined in clause 11.2(18). But what is important is that it is correctly used in the context of compensation events (60.1(12)) to define what was identified before work was undertaken.
“Scope” - A term often used having been introduced in NEC4, moving away from ‘Works Information’ in NEC3. Scope is used to define what the Contractor is required to do
“boundaries of the site” - This is used to define the ‘Site’ (11.2(17)). Which is critically important because the Contractor will be responsible for the Site (generally speaking). The Site will also be used for things such as defining access to the Site, Client liabilities, objects and materials within the Site, and leaving of Equipment etc. Critical on many fronts!
“the Prices” - Used throughout NEC to define what the costs which have been agreed and therefore form part of the contract. The Prices are a key metric to track performance of the contract and cost direction. Prices are updated following compensation events and are used when calculating the Contractor’s share in options C & D.
Hidden Detail
These terms are used regularly in the contract and have powerful impacts which require their appropriate use.
The reason they are powerful is because the way the words are structure.
Note that italics are used in some instances, and Capitals are used in other. As per clause 11.1, this is used to define which words are identified in the Contract Data (italics), and which are defined terms (Capitals).
The intention is therefore to understand what the meaning of a word is based upon its use of italics or Capitals.
Drafting Scope Correctly
When drafting an accurate Scope you need to be absolutely sure that the terminology you are using is written correctly with the appropriate italics and Capitals.
For example if you need to define a constraint in the Scope which says “the Contractor can only accept deliveries to the site between the hours of 10:00 and 12:00”. If you fail to capitalise ‘site’, there could be confusion about which areas that are being referred to. Is it the Site as defined by the boundaries of the site? Or is it a general term referring to the site as an area elsewhere?
Be specific.
Likewise if you want to be refer to a part of the Scope during a communication, you should clearly capitalise Scope and ensure you are using the terminology from the contract.
Without doing this, there can be confusion or worse, a legal challenge during dispute as to the intention and meaning of the wording.
Be clear and precise in the use of terms!
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