The old ICE Conditions were rebranded and republished in 2011 as the ICC Conditions, with very few amendments – until now.
A consultative version of a fully revised version of the ICC Conditions has recently been published. The publisher’s intent is to streamline, rationalise and reorder the conditions while keeping a similar risk balance.
The main changes
A number of important changes have been made:
- The contract is no longer fully remeasurable. The quantities are now stated to be fixed, thereby converting the contract into a lump-sum contract. However, the employer does retain the option to specify that all or parts of the bills are remeasurable.
- The final account procedure has been revised so that the engineer is to submit the account within six months of the certificate of substantial completion. Previously, the contractor was to submit the account within three months of the defects correction certificate. This change is intended to impose on the engineer a requirement to proactively keep matters of valuation up to date. The drafting committee has suggested that this will benefit both the contractor, in receiving payment earlier, and the employer, by having more up-to-date information on costs.
- The nominated subcontractor provisions have been considerably simplified. The contractor is now obliged to take full responsibility for any nominated subcontractor, subject to a right of reasonable objection. There are no longer any provisions excusing the contractor from the nominated subcontractor’s default in certain circumstances.
- New provisions have been included to allow the employer to engage third-party contractors directly to carry out works not forming part of the main contract works and to supply goods or materials for incorporation into the works.
- New provisions dealing with building information modelling have been introduced. These are relatively simple provisions obliging the parties to comply with any agreed BIM Protocol.
- There is a new obligation for both parties to “collaborate in a spirit of trust and mutual support in the interests of the timely, economic and successful completion of the works”. This is similar to the obligation on the parties in the NEC3 to act “in a spirit of mutual trust and co-operation”.
- Early warning provisions have been inserted. This is a concept that also appears to have been borrowed from the NEC.
The new ICC Conditions’ main competitor for civil engineering projects is likely to be the NEC3. The NEC3 is popular for its focus on project management issues and a collaborative approach.
However, it does have its critics over the difficulties that can be encountered in administering the contract when the works are subject to a large number of compensation events.
The revised ICC Conditions are clearly written and logically set out. The risk balance between employer and contractor has generally been regarded as fair. The ICC Conditions should therefore be a viable alternative to the NEC3.
Steven Carey is head of construction and engineering and James Worthington is a senior associate in the construction and engineering team at Speechly Bircham