Gilbert Kwok LLB (English Law), LLB (PRC Law), FHKIS, FRICS Partner, Construction & Engineering Group, Li & Partners

Transcription

1 Li & Partners 1 NEC Contract Gilbert Kwok LLB (English Law), LLB (PRC Law), FHKIS, FRICS Partner, Construction & Engineering Group, Li & Partners and Justin Yuen / Stephanie Lau / Christy Yiu / Edmund Chau Members of the Construction & Engineering Group of Li & Partners Li & Partners

2 Introduction Outline of Seminar Part 1 - Standard Form Construction Contracts by Gilbert Kwok and Stephanie Lau Part 2 - New Engineering Contract (NEC) by Justin Yuen, Christy Yiu and Edmund Chau Li Li & Partners 2 2

3 Part 1: Standard Form Construction Contracts Li Li & Partners 3 3

4 Introduction I. Procurement Methods (by Gilbert Kwok) II. Some Types of Contracts (by Gilbert Kwok) III. Forms of Contracts Commonly Used (by Stephanie Lau) IV. Why Getting the Right Form is Important? (by Stephanie Lau) Li Li & Partners 4 4

5 I. Procurement Methods Traditional Design and Build Management Contracting Construction Management Li Li & Partners 5 5

6 Traditional Employer Consultants Main Contractor Sub-contractors Li Li & Partners 6 6

7 Features Traditional 2 sets of contractual relationships Consultant s s role Main Contractor s s responsibility Advantages Criticism Li Li & Partners 7 7

8 Design and Build Employer Design and Build Contractor Sub-contractors Li Li & Partners 8 8

9 Design and Build Advantages Simple contractual relationship Single point responsibility Overlap of design and construction Criticism Quality of works Tendering Tamar Development Project Li Li & Partners 9 9

10 Management Contracting Employer Consultants Management Contractor Work Package Sub-contractors Li Li & Partners 10 10

11 Management Contract Contractual relationship Features The project team Remuneration of the Management Contractor Management Contractor s s roles and duties Advantages Criticism Li Li & Partners 11 11

12 Construction Management Construction Manager Employer Consultants Work Package Contractors Li Li & Partners 12 12

13 Construction Management Contractual relationship Distinguishing CM from MC Features Advantages Criticism Li Li & Partners 13 13

14 II. Some Types of Contracts Lump Sum Fixed Price Contract Based on BQ Based on Drawings and Specifications Measurement Contract Schedule of Rates Bills of Approximate Quantities Reimbursement Contract Option: Guaranteed Maximum Price (GMP) Area of dispute Li Li & Partners 14 14

15 III. Forms of Contracts Commonly Used Hong Kong Private Sector Hong Kong Public Sector International Li Li & Partners 15 15

16 Hong Kong Private Sector Standard Form of Building Contracts (1986( Edition & 2005 Edition) Published by HKIA / HKIS / HKICM 2005 Edition More detailed description of rights/obligations Lengthy references: procedures/management requirements More notice requirements Others Standard Form of Contract for Minor Works Standard Form of Domestic Sub-contract ( published by the Hong Kong Construction Association) Li Li & Partners 16 16

17 Hong Kong Public Sector - HK Govt / Public works a) General Conditions of Contract for:- Building Works, 1999 Edition Civil Engineering Works, 1993 & 1999 Edition Design and Build Contract, 1999 Edition E&M Engineering Works, 1999 Edition Term Contracts for Building Works, 2004 Edition Term Contracts for Civil Engineering Works, 2002 Edition Term Contracts for E&M Works, 1994 Edition b) Sub-Contract for Building Works, 2000 Edition - Government Forms Li Li & Partners 17 17

18 International a) JCT b) FIDIC c) ICE d) NEC Li Li & Partners 18 18

19 a) JCT Background Joint Contracts Tribunal Representative bodies of construction industry History 19 th Century Latest Edition Criticism: lengthy / complex Li Li & Partners 19 19

20 b) FIDIC The International Federation of Consulting Engineers International context Widely used building / engineering work Main types of Conditions of Contracts (99 Ed) Red Book Construction (for Building and Engineering Works) Yellow Book Plant & Design-Build Silver Book EPC / Turnkey Short Form of Contract Li Li & Partners 20 20

21 c) ICE Background The Institution of Civil Engineers ICE / Association of Consulting Engineers / Civil Engineering Contractors Association 1st ed 1945 UK Major engineering projects Main types of contracts and features ICE Conditions of Contract: Measurement Version (7th edition 1999) ICE Design & Construct Conditions of Contract (2nd edition 2001) Other forms Hong Kong Government Form Li Li & Partners 21 21

22 d) NEC Background New Engineering Contract 1980s - Debates within ICE Focus: Obligations / Responsibilities of parties vs Project Management / Promote Cooperation / Reduction of Confrontation Main types of contracts NEC Engineering & Construction Contract NEC Engineering & Construction Sub-Contract Endorsed in the UK UK Office of Government Commerce London Olympic Delivery Authority Promoted by HK Govt Li Li & Partners 22 22

23 IV. Why Getting the Right Form is Important? Contracts govern: time, cost & quality Impact of the right contract Risk exposure and allocation Site / Market conditions Responsibilities of the parties E.g. time limits for written notices Governing law and dispute resolution Li Li & Partners 23 23

24 Why Getting the Right Form is Important? An example from the employer s s perspective If he assumes design responsibility Engage Engineer / Architect Pricing: Lump-sum / Remeasurement / Reimbursement Lump-Sum eg.. HKIS/HKIA Standard Form Reimbursement eg.nec Costs Reimbursable Contract If he does not assume design responsibility Eg.. FIDIC Yellow Book Eg.. FIDIC Silver Book Li Li & Partners 24 24

25 Part 2: New Engineering Contract (NEC) (now Engineering and Construction Contract (ECC)) Li Li & Partners 25 25

26 New Engineering Contract (NEC) I. Introduction (by Christy Yiu) II. Typical Contracts within the NEC ECC family (by Christy Yiu) III. Structure of a Typical NEC Contract (by Christy Yiu) IV. Other Features of NEC (by Edmund Chau) V. Compensation Events (by Edmund Chau) VI. VII. VIII. IX. Delay Damages (by Justin Yuen) Criticisms (by Justin Yuen) Benefits (by Justin Yuen) Conclusion (by Justin Yuen) Li Li & Partners 26 26

27 I. Introduction What is NEC ECC? Entirely new approach Focuses on cooperation and project management Objectives Flexibility Good project management Simplicity and clarity Li Li & Partners 27 27

28 II. Typical Contracts within the NEC ECC Family Priced Contract with Activity Schedule or BQ Target Cost Contract with Activity Schedule or BQ Cost Reimbursable Contract Management Contract Short Contract Framework Contract Sub Contract Professional Services Contract Adjudicator Contract Li Li & Partners 28 28

29 III. Structure of a Typical NEC Contract Li Li & Partners 29 29

30 a) Options, Core Clauses and Secondary Option Clauses Departure from traditional approach System of options and clauses Options Select for a particular project Core Clauses Basis for a range of construction contracts Secondary Option Clauses Li Li & Partners 30 30

31 b) What needs to be done by the Employer? To create a set of NEC 3 Conditions: Select one of the 6 Main Options Include the 9 Core Clauses Specify Dispute Resolution Option Select Secondary Option Clauses Include Secondary Option Z Additional clauses drafted specially for a particular contract Li Li & Partners 31 31

32 c) 6 Main Options One of which must be included Purpose A. Priced Contract with Activity Schedule B. Priced Contract with BQ C. Target Contract with Activity Schedule D. Target Contract with BQ E. Cost Reimbursable contract F. Management Contract Li Li & Partners 32 32

33 d) 9 Core Clauses 1. General General introductory matters Early warning procedure 2. The Contractor s s Main Responsibilities Design Equipment Personnel Sub-contracting Li Li & Partners 33 33

34 d) 9 Core Clauses 3. Time Key dates To meet specification or condition 4. Testing and Defects Basic regime Rectification and acceptance 5. Payment PM to assess Assessment dates in Contract Data Certify within 1 week Pay within 3 weeks or the period stated in Contract Data Interest on late payments Li Li & Partners 34 34

35 d) 9 Core Clauses 6. Compensation Events Time and money in each event 7. Title Plant and materials 8. Risks and Insurance Employer s s risks Contractor s s risks Insurance table Li Li & Partners 35 35

36 d) 9 Core Clauses 9. Termination Reasons and procedures Situations under which either party may terminate In the event of insolvency Situations under which the Contractor may terminate Not paid within 13 weeks Situations under which the Employer may terminate Substantially failed to comply with obligations Not provided a bond or guarantee Substantially hindered the Employer or others Substantially broken a health or safety regulation Li Li & Partners 36 36

37 e) Dispute Resolution Clause Options W1 and W2 W2 is used when UK Housing Grants, Construction and Regeneration Act 1996 applies. f) Secondary Options May be included Retention Delay damages for late completion Performance bonds Advanced payment Sectional completion Li Li & Partners 37 37

38 IV. Other Features Li & Partners 38

39 IV. Other Features a) Project Manager and Supervisor b) Site Management c) Early Completion d) Contractor s s Risk for Physical Conditions e) Terms used in NEC Li Li & Partners 39 39

40 a) Project Manager and Supervisor No the Engineer or the Architect Project Manager Instruction, payment and compensation events Supervisor standards and quality of work Legal Duty of PM NEC: spirit of mutual trust and cooperation To act impartially between Employer & Contractor Costain v Bechtel [2005] EWHC 1018 Li Li & Partners 40 40

41 b) Site Management Good site management is achieved by: Rapid communication Many notice requirements Regular meetings Risk reduction meeting Up-to to-date programmes Not only Start date, access date, key dates and completion dates But also Planned completion, order & timing of each operation PM to accept/ reject in 2 weeks Li Li & Partners 41 41

42 c) Early Completion Clause 36.1 of core clauses The project manager may request Quotation for accelerating the works Option X6 of secondary options Bonus for early completion Li Li & Partners 42 42

43 d) Contractor s s Risk for Physical Conditions Contractor shall allow for it Physical condition not a compensation event, unless, (clause 60.1(12))..an experienced contractor would have judged at the Contract Date to have such a small chance of occurring that it would have been unreasonable for him to have allowed for it. Li Li & Partners 43 43

44 e) Terms used in the NEC Different from other forms Examples: Usual terms NEC terms Variation Instruction Changing the works information Suspension Order Extension of Time Liquidated Damages An instruction to stop or not to start work Assessment of a delay to the completion date Delay Damages Problem for interpretation Li Li & Partners 44 44

45 Li & Partners 45 V) Compensation Events

46 a) Introduction Core Clause 6 Deal with at the same clause EOT, Loss and Expense and V.O. A comprehensive list (clause 60.1) 2 Stages Stage 1: Notification Stage 2: Quotation & Assessment Li Li & Partners 46 46

47 Stage 1: Notification Who and When to notify? Depends on the nature of the Events (i) Arise from P.M. s instruction PM at the time of instruction (ii) Others Contractor to notify a compensation event if fails to notify within 8 weeks Not entitled to change in Prices, Completion Date or a Key Date (clause 61.3) Reply to notification P.M. to reply his decision if fails to reply within 2 weeks Treated as acceptance and instruction to give quotation (clause 61.4) Li Li & Partners 47 47

48 Stage 2: Quotation & Assessment P.M. may request Contractor to submit Time and money implications Contractor to submit within 3 weeks P.M. to reply within 2 weeks Accept or request for revised quotation if P.M. fails to assess within time limit The Contractor may notify P.M. this failure If P.M. still fails to reply within another 2 weeks Treated as accepted by P.M. (clause 62.6) Li Li & Partners 48 48

49 VI) Delay Damages (a) (b) (c) (d) (e) Introduction Option Clause X7 Repayment of Delay Damages Proportioning Down Delay Damages Employer s s Benefit Li Li & Partners 49 49

50 a) Introduction Only a Secondary Option (Option X7) If not chosen If chosen No Certificate of Non-Completion The Rate of Delay Damages Change of Completion Date Interest Li Li & Partners 50 50

51 b) Option Clause X7 Intended to operate as LD Rate conforms with rules for LD Li Li & Partners 51 51

52 c) Repayment of Delay Damages Option Clause X7.2 deals with Change of Completion Date Interest Rate not stated Contract Data Clause 51.4 Li Li & Partners 52 52

53 d) Proportioning Down Delay Damages Deficiency of Option R of NEC2 The need and importance for proportioning down Clause X7.3 of NEC 3: If the Employer takes over a part of the works before Completion, the delay damages are reduced from the date on which the part is taken over. The rationale Clause X7.3: The Project Manager assesses the benefit to the Employer of taking over the part of the works as a proportion of the benefit to the Employer of taking over the whole of the works not previously taken over. The delay damages are reduced in this proportion. Li Li & Partners 53 53

54 d) Proportioning Down Delay Damages P.M. assesses the Employer s s Benefit The Usual Rule in other Contracts The benefit rule in Option Clause X7.3 of NEC Guidance Notes to NEC3 - benefits at the time of calculation Stipulated LD rates: genuine pre-estimates estimates of loss Circumstances anticipated at the time of Contract Advisable to amend the Option Clause Li Li & Partners 54 54

55 VII) Criticism a) NEC Appropriate for All Projects? b) What are the Contract Documents? c) Practical Problems d) Language problem - the use of present tense Li Li & Partners 55 55

56 a) NEC Appropriate for All Projects? Different procurement approaches Lack of differentiation Mechanical and Electrical Engineering projects Li Li & Partners 56 56

57 b) What are the Contract Documents? Contract documents not specifically stated Discrepancies between various documents Li Li & Partners 57 57

58 c) Practical Problems Programmes Compliance with all the requirements Sub-contractors Increase the staffing requirements Tight timescales Quoting for future effects Dealing with contentious matters 2 Functions of the construction team Li Li & Partners 58 58

59 d) Language problem - the use of present tense In Easily Comprehensible Language Present tense = Present tense Clause 11.2(16): Site Information is information which describes the Site. Statement imposing legal obligation e.g. Clause 30.3: The Contractor does the work so that the Condition stated for each Key Date is met by the Key Date. Clause 33.1: The Employer allows access to and use of the Site to the Contractor which is necessary for the work included in this Contract. Li Li & Partners 59 59

60 d) Language problem - the use of present tense Statement not imposing legal obligation Clause 61.3: The Contractor notifies the Project Manager of an event which has happened or which he expects to happen as a compensation event if (a) the Contractor believes that the event is a compensation event and (b) the Project Manager has not notified the event to the Contractor. Li Li & Partners 60 60

61 VIII. Benefits NEC is a modern day family of contracts that facilitates the implementation of sound project management principles and practices as well as defining legal relationships. Key to the successful use of NEC is users adopting the desired cultural transition. The main aspect of this transition is moving away from a reactive and hindsight-based decision-making and management approach to one that is foresight based, encouraging a creative environment with pro-active and collaborative relationships. Flexibility Clarity and Simplicity Stimulus to Good Management Li Li & Partners 61 61

62 a) Flexibility An all purpose contract Non-technical language Choices of pricing mechanisms A range of secondary options Li Li & Partners 62 62

63 b) Clarity and Simplicity Different style and structure Simple and non-legalistic language Avoid specific terminology Li Li & Partners 63 63

64 c) Stimulus to Good Management Proactive Project Management Early Warning Risk Register Co-operation operation Clause Li Li & Partners 64 64

65 Proactive Project Management Partnering approach Communications and co-operation operation Up-to to-date agreed Programme Managed Project Environment Improvement and job satisfaction Li Li & Partners 65 65

66 Early Warning Clause 16.1 The mechanism Purpose Cooperate and Discuss Partnering-based approach Li Li & Partners 66 66

67 Risk Register The mechanism Risk reduction meeting Purpose Proactive risk management Express purpose Discuss Co-operate operate Encourage proactive risk management 3 main objectives Identify risks Manage risks Identify time and cost The overall effect Li Li & Partners 67 67

68 Co-operation operation Clause Clause 10.1: The Employer, the Contractor, the Project Manager and the Supervisor shall act as stated in this contract and in a spirit of mutual trust and co-operation. operation. Improved attitude Li Li & Partners 68 68

69 VI. Conclusion Drawbacks Onerous requirements Benefits A framework for forward planning Li Li & Partners 69 69

70 END of PART 2 Li & Partners 70

71 NEC Contract Gilbert Kwok LLB (English Law), LLB (PRC Law), FHKIS, FRICS Partner, Construction & Engineering Group, Li & Partners and Justin Yuen / Stephanie Lau / Christy Yiu / Edmund Chau Members of the Construction & Engineering Group of Li & Partners Li & Partners Li Li & Partners 71 71

72 Li & Partners 72 NEC 3 The perfect contract? Matthew Needham-Laing BA Hons, Dip Arch, MSc, LLB, ARB registered, R.I.B.A Stevens and Bolton LLP

73 Li & Partners 73 Introduction This presentation is intended to provide a brief summary of the theoretical concepts behind NEC 3, and identify some of the limitations of using this form of contract. The presentation has been prepared from the perspective of the law within the United Kingdom.

74 Li & Partners 74 Classical contract theory: Parties have freedom of contract; Parties negotiating to maximise self interest; Parties negotiations are influenced by competitive market; and Allocation of all risks between parties at the time of contracting.

75 Li & Partners 75 Relational contract theory Parties accept that economic benefit is a result of their interdependence; Parties obligations toward each other are determined more by their relationship rather then their respective contractual promises; Parties negotiate on how to handle events in the future rather than allocate risk at the time of contracting.

76 Li & Partners 76 Classical Contracts tend to arise where the contract is: Short in duration or single project; Limited interaction between parties; Measurable outcomes or performance; and Minimal future co-operation.

77 Li & Partners 77 Relational Contracts tend to arise where contract: Is of long duration or multiple projects Requires the preservation of the relationship between parties; Has unknown or immeasurable outcomes or performance; and Requires ongoing or future co-operation.

78 Li & Partners 78 NEC 3 has been developed out of and with the intention of addressing the circumstances identified in the relational contract theory. The relational contract theory relies on the parties cooperating as it is in their commercial interest to do so and the NEC expressly requires both the parties to the contract and the parties administering the NEC contract to deal with each other in a spirit of mutual trust and co-operation [Clause 10.1].

79 Li & Partners 79 The duty to co-operate. In English law the duty to co-operate is regarded as both a positive and a negative obligation. The NEC is an international contract and therefore the duty to co-operate will be influenced by the law of the contract chosen by the parties.

80 Li & Partners 80 The positive obligation has been defined by Lord Blackburn in Mackay v Dick (1881) as: where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing

81 The negative obligation is that party should not interfere with the performance of contract or prevent a person performing his/her duties under the contract. It has most frequently manifested itself in case law in relation the duties of certifiers under contracts, for example it is a breach of contract if the employer interferes with the architect/engineer in the performance of those functions where the architect/engineer is required to act fairly between the employer and the contractor. Sutcliffe v Thackrah Li & Partners 81

82 Li & Partners 82 His Honour Humphrey Lloyd Q.C. has suggested that: The phrase mutual trust and co-operation imports not only honesty and reasonableness but may also oblige someone to do more than the contract calls for if the contract is truly to be performed co-operatively.

83 The guidance notes to the NEC state: the two principles on which the [NEC] is based and which impact upon the objective of stimulating good management are: Foresight applied collaboratively mitigates problems and shrinks risk, and Clear division of function and responsibility helps accountability and motivates people to play their part. A secondary but important theme is that people will be motivated to play their part in collaborative management if it is in their commercial and professional interest to do so. [emphasis added] Li & Partners 83

84 The NEC has, until recently enjoyed a benign economic climate and has been used satisfactorily: By employers either under framework agreements which last 3-4 years e.g.:- British Airports Authority BAA who have until recently used the NEC on all their projects with values ranging from 60,000 to 50 million; or Anglia Water on projects with values ranging from 500,000 to 2 million On large projects where a series of contracts are to be let, e.g.:- Heathrow Express Tunnel project value 60 million Channel Tunnel Rail Link, project value 30 billion The 2012 Olympics. Li & Partners 84

85 Li & Partners 85 Economic circumstances have changed dramatically in the last 18 months: The downturn in the construction industry has resulted in a more aggressive and competitive market which has engendered a belief that the best deals are derived from competitive tendering. This has resulted in an increase in open market competition and major construction clients renegotiating or retendering their established frameworks.» UK Market Intelligence Autumn 2009 The current economic climate means that the NEC is more likely to be used on short duration or single projects where there is limited interaction between the parties and little or no prospect of future collaboration.

86 Options available to the Employer when it is no longer in its interest to collaborate: Renegotiate framework agreements to reflect the current economic climate. The contractors have little choice but to agree. Apply the contract terms strictly and disallow costs where contractually entitled to do so. The Employer however has the problem of Costain Ltd v Bechtel Ltd and Mr. Fady Bassily. How does applying the contract terms strictly comply with HHJ Humphrey Lloyd s view of clause 10.1? Li & Partners 86

87 Options available to the Contractor when it is no longer in its interest to collaborate: Renegotiate if it can rely upon the obligations in clause 10.1 Apply the terms of the contract strictly, in particular : operate the early warning procedure in clause 16.1 to the fullest extent; operate the notification of compensation events procedure in clause 61.3 to the fullest extent; and assume that all decisions of the Project Manager will be the subject of an adjudication. Li & Partners 87

88 Is the NEC robust enough to control the parties relationship when it is not in their commercial interests to collaborate? Li & Partners 88

89 The Accepted Programme Invariably the programme is prepared for tender purposes and becomes the accepted programme, consequently the contents of the programme are inadequate due to lack of information at tender stage; contractor has not dedicated sufficient programme resources at tender stage; the programme has been prepared to win the tender rather than build the project; and further information and detail are identified as being required from the Employer. Result: Project is difficult to manage without an adequate programme; The Employer fails to provide information in accordance with the programme and these are compensation events. Li & Partners 89

90 Early Warning Notices The Contract obliges the contractor to give early warning notices and penalises the contractor if it fails to do so, consequently the: Contractor issues an early warning notice in relation to any matter which potentially affects the project; and Early warning notices become treated as a notice of claim. Result: Too many early warning notices for risk reduction meetings to be held or be effective; If risk reduction meetings are held then there is insufficient time/information to manage the risk effectively; The Risk Register ceases to be a management tool. Li & Partners 90

91 Compensation Events The Contractor is required to notify the project manager of an event which has happened or is expected to happen within 8 weeks of becoming aware of the event, consequently: The contractor treats all early warnings as notification of a compensation event. Result: Risk reduction meetings cease to be collaborative; The Project Manager is unable or has insufficient time/resource to identify true compensation events; The Project Manager fails to request quotations; The Contractor fails to submit quotations in time or at all; The Project Manager does not assess, or fails to assess the compensation events correctly. Li & Partners 91

92 The Project Manager has no power to review any of his/her decisions, with the benefit of hindsight, at the conclusion of the contract, consequently: The parties must go to adjudication in relation to any disagreement with the Project Manager s decision. The result if Option W1 is used: The time periods for referring disputes to adjudication mean that resources require to manage the project are diverted to deal with disputes, or more resources are required. The result if Option W2 is used: The disputes are referred to adjudication at the end. Problems of interpreting the contract terms. Li & Partners 92

93 Summary The NEC relies upon: the parties co-operating because it is in both their economic interests to do so; and sufficient project management resources being provided by both the Employer and Contractor to operate the contract procedures and manage risk. If the parties fail to co-operate or insufficient project management resources are allocated to the project then: the Project Manager is unable to manage the contract effectively outturn cost and completion date cease to be predictable; disputes arise which must be referred to adjudication. Li & Partners 93

94 Li & Partners 94 Is the NEC the perfect contract? The NEC has been used predominantly by Employers with considerable influence on the procurement of construction projects at a time of economic prosperity. At the same time it has benefited from a general willingness within the construction industry to embrace more collaborative methods of working.

95 Is the NEC the perfect contract? Changed economic circumstances and the promotion of the NEC form of contract as suitable for a wide variety of contracts has led to its use on projects where it is not necessarily in the interests of one or both parties to co-operate. Where parties fail to co-operate, indications are that the contract may be no better at preventing disputes than other established forms of contract and may, by virtue of the detailed management procedures, encourage the use of formal dispute resolution procedures. Li & Partners 95

96 Bibliography C.J Goetz & R.E. Scott, The Mitigation Principle: Toward a General Theory of Contractual Obligation (1983) 69 Virginia Law Review I.R Mac Neil the New Social Contract (New Haven : Yale University Press 1980) G. Barrie Private firms embrace NEC for construction Building, December 1995 D.M. Giles The New Engineering Contract, a new Family of Contracts for the new millennium National Contracts Management Association Newsletter, June 1996 S. Furst & V. Ramsey Keating on Construction Contracts Eighth Edition (Thomson Sweet & Maxwell 2006) A. McInnis The New Engineering Contract: Relational Contracting, Good Faith and Cooperation Part 1 & Part 2 ( The International Construction Law Review 2003) HHJ Lloyd Some thoughts on NEC 3 (NEC Users Group 2009) NEC 3 Engineering and Construction Contract Guidance Notes (Thomas Telford Ltd) Turner & Townsend UK Market Intelligence Autumn 2009 Cases: Mackay V Dick (1881) 6 App Cas 251 Sutcliffe v Thackrah [1974] A.C (1) Costain Limited (2) O Rouke Civil Engineering Limited (3) Bachy Soletanche Limited (4) Emcor Drake & Scull Group Plc V (1) Bechtel Limited (2) Mr Fady Bassily [2005] EWHC Li & Partners 96