Introduction
If you’re working under an NEC4 Engineering and Construction Contract, the Scope, (or Works Information if you’re working under NEC3) is probably the most important document in the contract. If you get it wrong, the project is heading straight towards disputes, defects and cost overruns. In this article, we break down exactly what it should contain, why accuracy matters so much, what happens when things go wrong, and the difference between Scope and Site Information.
What should the Scope contain?
Think of it as the full technical brief for what the Contractor is being asked to build or deliver. It needs to contain a clear description of the works and detail what is to be constructed, installed, or commissioned. That could be anything from a building, a pipeline or a stadium.
It should include the technical specifications. These are the standards the work must meet. Materials, workmanship, testing requirements, performance criteria. Without these, the Contractor has no benchmark to work to.
Constraints are equally important. These are the restrictions on how the Contractor carries out the work, and include things like working hours, noise limits, access restrictions, or sequencing requirements imposed by the Client.
The Scope should also define what the Client is responsible for providing. For example, free-issue materials, access to specific areas, or third-party consents. If the Client is providing something, it needs to be explicitly stated.
Finally, it should cover design responsibilities. This will set out who is designing what, and to what standard that design must be developed and implemented.
Importance of accuracy
Clause 20.1 states “The Contractor Provides the Works in accordance with the Scope”. The Scope set’s out what the Contractor is required to provide. If the Client later wants something which isn’t on the scope, or want’s something different to that which is on the scope, then that will trigger a compensation event under clause 60.1(1), meaning additional time and cost.
A vague or incomplete Scope is one of the most common causes of project overruns. Ambiguity leads to disputes. If the Scope doesn’t clearly define the required outcome, you’ll spend more time arguing about what was meant, than actually building the project.
The Scope also sets the bar for what constitutes a Defect, which takes us on to the next point.
Defects
Under clause 11.2(6) of NEC4 ECC, a Defect is defined as “a part of the works which is not in accordance with the Scope or a part of the works designed by the Contractor which is not in accordance with the applicable law or the Contractor’s design which the Project Manager has accepted.”
The Scope is the benchmark. If the works do not match it, they are by definition defective.
Scope vs Site Information
Finally, let’s understand the difference between Scope and Site Information.
The Scope tells the Contractor what is required and sets any constraints on how the Contractor Provides the Works. Site Information tells the Contractor about the site; things like ground investigation reports, existing drawings, surveys, and environmental data. Under NEC4, Site Information is formally defined at clause 11.2(18) “Site Information is information which describes the Site and its surroundings and is in the documents which the Contract Data states it is in”
If the Contractor encounters physical conditions which an experienced contractor would have judged at the Contract Date to have such a small chance of occurring that it would have been unreasonable to allow for them, that can be a compensation event under clause 60.1(12). Clause 60.2 makes clear that the Contractor is assumed to have taken the Site Information into account when judging those conditions.
Both Scope and Site Information matter. However, they serve different contractual purposes.
Conclusion
In conclusion, the Scope is the foundation of every NEC ECC contract. It defines what is to be built, sets the quality standard, allocates design responsibility, and serves as the benchmark for defects. If it’s vague, incomplete, or inaccurate, the consequences are seen throughout the entire project. Make sure you take the time to get it right from the start.
