Damian is a Chartered Quantity Surveyor with over 30 year’s professional experience covering many areas of the construction industry. He has practical experience of most major forms of contract including JCT, ICE, NEC, MF/1, IChemE and FIDIC.
Damian has provided procurement, contract and claim management services to private companies (employers and contractors) and government agencies across the globe and is a testified quantum expert witness.
Hi Damian, thank you for taking this time to talk with us. Can we start by asking you to describe yourself in 10 words?
Hello, and thank you for listening. I must admit, I do not like these types of questions, but I will give it a go, but may not be able to think of 10 words, well not 10 that you can print! Motivated, enquiring, forensic, focused, practical, tenacious. Some people who have worked with me, may use other words to describe me, such as a pain in the arse, due to forensic nature of much of the work I do and my tenacity.
Expanding on this, can you tell us a little bit about yourself?
I am driven by my motivation to work on interesting projects, solving complex issues, and working with similarly motivated people with enquiring and changeling traits. This has lead me to work with some great teams across the world and on some of the world’s most iconic construction projects; from managing risk on T5, writing expert reports on cost control on a multi-billion-dollar oil and gas project in Kazakhstan, managing a team defending +£300m claim in Qatar, leading the procurement strategy on the 2022 FIFA World Cup QatarTM, testifying in Paris, and helping to resolve disputes in Yorkshire.
So that is you. Can you now tell us about your experience with NEC3?
This makes me feel old, my experience with NEC contracts started about twenty-years ago, back in 1997 when I was part of a small advisory team who were trying to implement more innovative approaches to construction procurement, encouraging partnering, incentivisation and risk management. The team was influential in the adoption of the NEC on a number of major petrochemical facilities and various infrastructure programmes. We were running workshops, developing client’s standard tender documentation and contract manuals and provided a phoneline services, a bit like ‘phone a friend’ where we would answer questions from client teams new to the NEC. After the NEC became more established, particularly on infrastructure projects, I advised various project teams and clients on the administration of the NEC, including managing risk on T5. I even tried to convert a client to the NEC in the Middle East. Increasing my experiences with NEC has been assisting parties resolve disputes throughout the north of England and Scotland.
What is the hardest thing that you've had to deal with on an NEC Project?
A reoccurring theme, which is probably due to the fact that I generally get appointed when problems occur, and relates to the status and the identification of the Accepted Programme. This is generally a combination of contractors not providing programmes in accordance with the contract, and clients not accepting programmes as required by the contract. Although the NEC has been in use for over twenty years there is still a lack of understanding of the contract from all sides of the industry; clients, contractors and consultants and programme management appears to be particularly problematic. Due to the importance of the Accepted Programme it can be difficult to assess and reach agreement on the impact of delay of events on the programme where the parties fail to adhere to the programme requirements. At times, it seems like there is a reluctance commit the construction programme to paper and a real failure to understand that robust up-to-date programme benefits both parties.
On the flip side, what is it that you really like about NEC3?
I am a keen advocate of effective risk management to provide clarity and certainty in project requirements, and the early warning provisions are a risk management mechanism with the aim of the early identification and management of risks before they become problems.
The contract is clear and simple; telling the parties what to do and when to do it, more of a project manual with explicit obligations. A bit like the adage “good fences makes good neighbours” this, in turn, should reduce differences and disputes.
And an unintended consequence of NEC?
The theme of foresight and prospective analysis of events works when the contract is administered correctly. However, when the parties fail to comply with the contract; particularly the notification of compensation events, the requests for, the submission and acceptance of quotations, and the risk has not been transferred, the use of a prospective analysis can result an incorrect demonstration of the extension of time. Anything retrospective should to be considered on the facts and not retrospectively in a prospective manner as provided by the contract.
If you could change one thing about NEC3, what would it be?
The inclusion of a clear methodology for the retrospective analysis of delay to the completion of the works in the event that the parties fail to comply with the contract.
Finally, how do you respond to criticism of NEC3?
Criticism usually comes from those who have had bad experiences with the NEC. However, in my experience, the bad experiences are usually due to the management of the contract, not the contract itself, the root cause being either lack of understanding or bad behaviour. This is not unique to the NEC contract; the bad user experience and problems of the construction industry are well known and well documented. These problems existed before the NEC and part of the catalyst that inspired the development of the NEC.
Many thanks for your time Damian, and for offering such great insights into your considerable experiences with NEC.
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