With the NEC Suite of Contracts being built on proactive management and timely communication, that statistic raises questions about why responses are still delayed on construction projects, especially at a time when technology is as advanced as it is and contract management systems are in place.
This problem is the foundation of this webinar ‘What Happens When the Project Manager Goes Quiet?’, where the guest speakers cover both the contractual requirements for a Project Manager’s response and the lessons that Contractors and Project Managers can take away from the construction webinar to improve communication.
What Does the NEC Contract Say?
The NEC Contracts specifically state when the Project Manager, Supervisor, or Contractor needs to reply to a communication. Sometimes the duration for responses are stated in the clause, and for all other communications where there is no set timescale, it reverts to the period for reply (13.3). The relevant clause will specify the timescale for this, meaning the Project Managers are essentially always against the clock. What’s interesting is that 37% of attendees found that the Project Manager only sometimes or rarely responds to a communication within the contractual timescale.
If a Project Manager’s response to something issued for acceptance is that it is not accepted, they must provide the rationale behind the response in sufficient detail to allow the Contractor to correct and be able to resubmit.
Which NEC Clauses Need and Do Not Need a Project Manager’s Response?
During the webinar, Robert Gerrard, Senior NEC Consultant (Thomas Telford Ltd), provided several examples of Engineering and Construction Contract (ECC) clauses that require a Project Manager’s response. A couple of these were:
16.3 – Refers to the Contractor submitting a proposal to add an area to the Working Areas to the Project Manager for acceptance. The Contractor could, for instance, hire land adjacent to the site because the original land does not have the capacity to store plant/materials. This has to be added to the Working Areas, meaning it is categorised under the Defined Cost (Options C,D, and E). This cannot happen until the Project Manager has accepted the proposal, meaning silence here is a major issue.
21.2 – Contractor’s Design is submitted for acceptance if the Scope requires it to be. This particular ECC clause can become messy when there is a delay in a Project Manager’s response to accept or not accept. There is a short time frame to reply (typically 14-21 days), and if the Project Manager does not reply within the period for reply (13.3), the Contractor cannot proceed with the relevant work. Yet again, this reinforces the importance of the Project Manager’s response needing to be efficient. In this instance, the lack of response would be a compensation event to the Contractor under clause 60.1(6).
A couple of the NEC clauses that do not require a response are:
15.1 – The Contractor issues an early warning notification
15.2 – The Contractor instructs the Project Manager to attend an early warning meeting
What Can Be Done About the Project Manager’s Response?
Rob – “What I would recommend to a Contractor is don’t wait till the allotted time is up, the 1 week, 2 weeks, 3 weeks, whatever it is. See how they’re getting on, touch base from time to time. Actually ask them, how are you getting on with this?”
It’s hard to know the Project Manager’s situation. They could be struggling either at home with ill health or in the work environment. They could even be conflicted about how to respond to the Contractor. The Contractor needs to consider reaching out to the Project Manager before notifying the failure of the Project Manager’s response as a Compensation Event under 60.1(6).
If the Contractor finds the Project Manager to be in a difficult situation, the Contractor and Project Manager can collectively agree to extend the period for reply to a communication (13.5).
Project Manager’s and Contractor’s Perspective
After Robert Gerrard had discussed the technical contractual terms, Martin Newman, Project Director (Turner & Townsend), and Richard Myers, Commercial Director (VSL UK), joined the discussion, focusing on the soft skills involved in the Project Manager’s response. The intention was for both construction experts to have a debate-style chat about the Project Manager’s response, but this turned into a roundtable discussion because their points had synergies that applied to both the Project Manager and the Contractor in the construction industry.
Build Relationships On-Site
Developing working relationships with the relevant parties can help with stakeholder engagements, and an essential route to get to that stage is in-person meetings, which are far more effective than having virtual meetings online (which have become far more common since the COVID pandemic).
Martin – “If you’re in person, you step away from the meeting to make a coffee and your guard drops to an extent. You then get to know the person and understand how that person operates.”
After getting to know a person’s natural interests and natural characteristics outside of the workplace, there is a better understanding of that person’s thought process, improving stakeholder management.
Richard – “Understanding who your opposite number is in terms of Project Manager and Contractor is critical. What is their preferred method of communication? WhatsApp? Teams?”
Keep Communication Simple
The Project Manager receives a significant amount of communication, so the Contractor could, in the informal sense, speak to the Project Manager. This would happen before communicating within the means of the NEC Contract under clause 13.
When the Contractor’s communication is written and formally sent, using a NEC4 contract management software like Contract Bee, the tone can be interpreted differently from how the relevant party intended. The language should be clear and, importantly, readable. The Project Manager should be able to understand the narrative from start to finish.
Richard – “Don’t rush communications. Write it down, and get it checked by anyone. Sometimes you’re so far in the detail, you forget to take a step back and read what you’ve actually written.”
Another method to ensure these communications are clear is to have a sense of the Project Manager’s key performance indicators and what motivates them to want to respond. Often, terminology and phrasing can become misinterpreted. Contractors may utilise phrasing that is standard for them on their technical project, but the Project Manager may not be familiar with it. The Project Manager should stay curious and ask for help with understanding any terminology.
The webinar demonstrates how the NEC Contracts alone can’t provide the solution to improving the timeliness of the Project Manager’s response, but there is a strong need to build rapport with stakeholders to understand each other, so things will be easy once there is a contractual obligation to communicate. The points that the experienced professionals have stressed in this ‘NECtar session’ are that proactive communication and willingness to understand the viewpoint of others are essential to preventing the silence of the Project Manager ever becoming a construction project issue.
About The Guest Speakers
Robert Gerrard, Senior NEC Consultant at Thomas Telford Ltd, NEC4 Contract Drafter and accredited mediator with over 43 years experience in the industry, including 31 of those with NEC Contracts. He is a recognised NEC authority, having authored several leading NEC publications and delivered training and consultancy around the world.
Martin Newman is Project Director at Turner & Townsend. He brings 17 years of NEC experience across a wide range of sectors. He started his career on the contractor side before transitioning to consultancy, where he’s spent 13 years as project manager. He’s an approved NEC tutor of nine years, and he regularly delivers NEC accreditation training and bespoke training packages for clients.
Richard Myers is Head of Commercial at VSL UK, and an experienced Quantity Surveyor with more than 20 years in the construction industry, working mainly with Tier 1 contractors across water, highways and rail projects. He is a member of the Chartered Institution of Civil Engineering Surveyors and brings extensive commercial experience with a focus on using technology to improve project delivery.
