The function and purpose of the “Works Information”
All NEC Engineering and Construction Contracts consist of various documents, each fulfilling a specific and distinct function and purpose. None are more important and integral to the proper functioning of a NEC contract than the Works Information.
The Works Information is generally seen and treated as the mere equivalent of the “Employer’s Specifications” as such information is generally known or referred to in other construction contracts. As will be shown below, nothing could be further from the truth.
The importance of the Works Information is demonstrated clearly by the provisions of clause 20.1 which provides that the Contractor is required “to Provide the Works in accordance with the Works Information”. Contractors are therefore only obliged to do things which the Works Information states they must do. If something or a task is not specified within the Works information, Contractors have no obligation to carry it out. The Works Information must therefore specify what is required from the Contractor in order for him “to complete the works” and the Works information should also specify what, if any, incidental work, services or actions would be required in order to ensure compliance, by the Contractor, with the provisions of the contract.
The Works Information will also, in cases where the parties concluded a design-and-built contract, contain information that has been provided and prepared by the Contractor. Note that Works Information provided by the Employer must be kept completely separate from the Works Information that has been provided by the Contractor since changes to the latter are not regarded, unlike changes to the Works Information provided by the Employer, as Compensation Events.
The Works information must, furthermore, specify and describe any constraints on how the Contractor is to go about with its task whilst executing the works.
In addition, note should be taken of the fact that Defects are defined as something that “is not in accordance with the Works Information”, the applicable law or the Contractor’s design that has been accepted by the project manager. Defects thus have a specific and a more narrow or restricted meaning under NEC contracts. Whether or not the Works Information mentions certain information thus has a direct bearing on whether or not the works carried out by the Contractor could be regarded as being defective.
The Employer’s Specifications, required by other construction contracts, consist typically and mainly of information of a technical nature and of drawings. As such, the Employer’s Specifications are more often than not prepared by engineers and technical experts with little or no input from the owner’s legal team or advisors.
Many follow the same approach and thus assign the task of compiling and preparing the NEC’s Work Information to those with the relevant technical know-how. The risk with this approach lies in the fact that many NEC clauses contain cross-references to certain information (which is often of a non-technical nature) that is required to be included in the Works Information. This information is required to be stated in the Works information in addition to that already referred to above.
What invariably happens, when the compilation of the Works Information is left in the hand of technical experts who are (no disrespect is intended) often not well versed in the finer detail, provisions and workings of the NEC, is that no mention is made by them to the “other” information that the NEC requires to be included in the Works Information. This not only renders certain clauses and provisions inoperative but also has the potential to give rise to disputes.
It is recommended, therefore, that the advice of an NEC expert is sought whenever the need arises to prepare the Works Information and that is should not be left only in the hands of Engineers or other technical experts unless (as no doubt some are) they are also very familiar with the requirements and workings of the NEC.