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Muir Wood casts doubt on NEC in wake of HEX verdict

THE UK'S LEADING tunnelling expert Sir Alan Muir Wood has questioned the use of the New Engineering Contract for tunnelling projects in the wake of this week's Heathrow Express trial verdict.

The former ICE president acted as an expert witness for the Health & Safety Executive in the HEX prosecution (see accompanying stories). The project was one of the first uses of the NEC contract which is produced by the Institution.

In an open letter to NCE this week Muir Wood called for an immediate 'health warning' to be issued by the Institution over use of the NEC on tunnelling schemes.

His views were backed by HEX contractor Balfour Beatty and David Cornes, one of the UK's top ten construction lawyers.

But ICE director general Roger Dobson moved swiftly to challenge Muir Wood's claims.

'The NEC is designed as a handbook of project management and this is where I have to differ with our revered past president,' he said. 'It is the project team that is important, not the contract. Your success comes down to the leadership and quality of the team. To say that the NEC is not appropriate in tunnelling is to not recognise the success that this form of contract has had elsewhere.'

In his letter, Muir Wood catalogues his reservations about using the NEC in tunnelling. 'I was one of those invited to comment on a draft of the NEC,' he writes, 'and expressed astonishment that the concept of the Engineer was to be abandoned without any other mechanism for providing the engineering continuity essential for a project in which design continued into the phase of construction.'

He adds: 'No attempt was made to remove this defect from the published document. For this reason, the NEC provides no adequate basis for tunnelling, where the continuity of design is an imperative'.

Muir Wood also criticises the ICE guide, Sprayed concrete linings (NATM) for tunnels in soft ground, which was produced in 1996 in response to the Heathrow collapse. This, he writes, was wrong to state that all standard forms of contract can be used for SCL system tunnels (see Letters, page 18).

Balfour Beatty Civil Engineering managing director Andy Rose - in charge of the contractor's work on HEX - said this week: 'At the time I had some reservations [about the use of the NEC]. The NEC contract requires one party to concede defeat on every issue - this is not in conjunction with human nature'.

He added: 'Evaluation of events is often substantial and complex. The NEC demands this happens in a short time with no provision for dealing with the consequential nature of civil engineering. The net result is that problems go unresolved.'

Concerns over the use of the NEC were echoed by Winward Fearon partner David Cornes, a lawyer and ICE fellow.

He said: 'Much of the philosophy of the NEC is fine, like the advance pricing of variations, but the drafting leaves many uncertainties in the allocation of risk and a great deal of scope for legal argument about the effect of its provisions. I would never recommend the use of the NEC because of the lack of certainty.'

However Dobson insisted that the ICE would not be issuing any NEC 'health warning'.

He said: 'Everything in the industry is moving towards the concept of project teams - getting the right information to the right people at the right time. The best contract is still the one that stays in the bottom left hand drawer.'

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