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New Engineering Contract attacked as cause of conflict

THE ICE'S New Engineering Contract is 'predicated on conflict' and is a poor choice for partnering projects, the Construction Industry Council claimed this week.

Architect John Wright has been appointed by the pan-industry professional body to chair a group charged with developing a model partnering form. He said of existing contract forms - including the NEC - that there 'were none that came near' the partnering ideal of promoting co-operation and trust.

The Surrey-based architect criticised the NEC for including clauses dealing with 'fault' and 'claims'. Asked why clients such as Channel Tunnel Rail Link builders London & Continental Railways had chosen to use the NEC to deliver a partnering project, Wright replied: 'Because of the lack of alternatives.'

The ICE is a member of the CIC. But ICE Fellow and NEC author Martin Barnes said he was astonished by Wright's claims: 'NEC is the only standard form which actively encourages partnering and the avoidance of conflict,' he said. 'We included fault clauses as a fallback in case things go wrong. To have no fallback could get you into a lot of trouble.'

Barnes added that there had been no pressure from clients such as airports operator BAA to make the NEC more relevant to partnering. 'We have considered writing a version for multi-project framework deals but nobody is pressing for it,' he said.

The NEC got its biggest boost in 1994, when it was praised in Sir Michael Latham's procurement review for its encouragement of a non-adversarial approach (NCE 21 July 1994).

Wright claimed that the CIC had decided to develop a model partnering form because of the need to create a framework for encouraging co-operation.

He said: 'Sir John Egan suggested, in last year's review of industry efficiency, that there was no necessity to have a contract during a partnering project. However, we feel it is necessary to develop something which gives an orderly structure to partnering arrangements and could ensure that requirements such as those imposed by the health and safety Construction Design and Management regulations were properly catered for.'

The 'confrontation-free' form may take the partnering charter as its core and will not be written in 'esoteric, academic legalese'. Wright said the form would have a wide appeal encompassing 'the one-off client'. He added: 'We can't produce it soon enough.'

The CIC group includes representatives from most member bodies, including the ICE, as well as a number of construction industry lawyers. Wright said it was important that the model form, which would be sold commercially, was 'owned' by as wide a range of industry interests as possible. He added that the CIC might also seek endorsement for the form from the government/industry liaison group the Construction Industry Board.

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