Imagine you’re digging on a construction site and all of a sudden you uncover an ancient artifact! Well, what happens next? Although the NEC Construction Contract doesn’t have a dedicated clause, it does lay out a clear process for handling archaeological discoveries and keeping projects on track whilst staying compliant with the law. Let’s break it down further…
Relevant Clauses and General Approach
The NEC4 Engineering and Construction Contract (ECC) incorporates provisions that manage unforeseen events, including archaeological discoveries, under its general framework. One of the primary mechanisms in the NEC contract is the Early Warning process, established under Clause 15. This process requires the Contractor to notify the Project Manager of any issues, including the discovery of any significant archaeological finds, that may affect the project’s timeline, costs, or quality. The Contractor is required to give an early warning to help the Project Manager and the client understand the potential impact of the find on the project.
In this context, the discovery of an archaeological find would be considered an unforeseen event that has implications for the schedule and potentially also, costs of the project. The Contractor must promptly inform the Project Manager, and the parties must then assess how to proceed. In some cases, the discovery may require specific actions, such as halting work for investigations or involving archaeologists, which could delay progress.
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Under the NEC contract, risk allocation for such discoveries typically falls to the Employer, as they bear responsibility for unforeseen conditions that are outside the control of the Contractor. Archaeological finds are often considered an Employer’s risk. The Employer would typically be responsible for arranging for archaeological surveys or excavations and bearing the associated costs.
However, the Contractor still has an obligation to ensure that the site is adequately prepared, and the work does not cause unnecessary damage to potential archaeological finds. In this regard, the NEC contract places an onus on the Contractor to follow the Employer’s instructions once a find has been made. If the archaeological discovery is severe enough to impact the project’s scope, time, or cost, then the Contractor may be entitled to compensation events under the contract.
Handling Delays and Adjustments
If the archaeological find does indeed cause a delay to the construction programme, the Contractor’s entitlement to an extension of time (EOT) is covered under the Compensation Event provisions. Clause 60.1 of the NEC contract allows for the adjustment of the contract completion date due to such unforeseen events, which includes archaeological finds. The Contractor may submit a claim for an extension of time, which will be assessed by the Project Manager based on the actual delay caused by the find and the time taken for the necessary archaeological investigations or works.
Similarly, the contract also provides for the adjustment of the contract price in the case of an unforeseen discovery that leads to additional costs. Compensation for such events, under the NEC contract, requires proper documentation and substantiation of the costs incurred due to the find.
