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The new ICC conditions: what has changed?

28 March 2014

The old ICE conditions was one of the most popular standard forms of contract for civil engineering projects.  However, in recent years they were usurped by the NEC.  So much so that the ICE withdrew their sponsorship of the form to back the NEC only.

The old ICE conditions were then 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 whilst keeping a similar risk balance.

However, a number of key 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 6 months of the certificate of substantial completion. Previously, the Contractor was to submit the account within 3 months of the defects correction certificate. This change is intended to impose on the Engineer a requirement to pro-actively keep matters of valuation up to date. The drafting committee has suggested that this will benefit both the Contractor, by receiving payment earlier, and the Employer, by having more up to date information as to costs.
  • A considerable simplifying of the nominated sub-contractor provisions. The Contractor is now obliged to take full responsibility for any nominated sub-contractor, subject to a right of reasonable objection. There are no provisions excusing the Contractor from the nominated sub-contractor's default in certain circumstances.
  • New provisions have been included allowing the Employer to engage third party contractors direct to carry out works not forming part of the main contract works and to supply goods or materials for incorporation in the works.
  • New provisions dealing with BIM.  These are relatively simple provisions obliging the parties to comply with any agreed BIM Protocol.
  • The inclusion of an 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".
  • The inclusion of early warning provisions. A concept that also appears to have been borrowed from the NEC.

Steven Carey, Partner in our Construction, Engineering & Projects team, commented:

"As a long lost civil engineer, I will be interested to see the take up of the new ICC conditions once they are published in final form. The NEC3 has its critics for being unclear in places and verging on administratively unworkable when the works are subject to a number of different compensation events.

These revised ICC conditions should be a viable alternative to the NEC3 for civil engineering projects. However, there are certain areas of the new conditions that could be improved.  For example, it does not appear that the new conditions are fully compliant with the revised Construction Act. It is to be hoped that these issues are resolved before the final version is published."

This article was written by James Worthington.

For more information please contact James on +44 (0)20 7427 1070 or james.worthington@crsblaw.com.