If you have ever used any of the NEC management systems on the market, you will have likely come across a ‘General Communication’. Whilst systems such as these are excellent tools to ensure the administration of your contracts runs smoothly, notices and communications are safely recorded and sent in a timely manner, as with any system, they can only be as good as the information they are fed by users who understand their contract.
Clause 13.1 requires “each communication which the contract requires is communicated in a form which can be read, copied and recorded”. Clause 13.2 states that if the Scope specifies a communication system, a communication has effect when it is communicated through the communication system specified in the Scope”. But is a ‘General Communication’ a communication required by the contract?. Linking this to clause 13.3 which states, “If the contract requires the Project Manager, the Supervisor or the Contractor to reply to a communication, unless otherwise stated in these conditions of contract, they reply within the period for reply”. The issue here is that the conditions of contract themselves do not require a reply to a ‘General Communication’.
The other major problem experienced is the intended use of a ‘General Communication’ and how they are used in practice often varies. ‘General Communications’ are used as a catch-all and should be used for recording any communications that are not notices and should be treated like an email system that is recorded. However I, as with many of my colleagues, have experienced notices or events which should have been notifications, including but not limited to early warnings, compensation events and defects notifications, be communicated via a ‘General Communication’.
One of the functions of a ‘General Communication’ that lures people to use them is the option to request a reply by a date that can be chosen at free will. However, when we look at the content of your typical NEC contract there is no mention of a ‘General Communication’ and there certainly isn’t a contractual requirement to respond by the date given. Therefore if you, or others, are using ‘General Communications’ to communicate matters that should be notified, they are therefore not being notified correctly.
Tim Trebes gives an excellent outline of how to ensure notices are correctly drafted in his article ‘The importance of correctly drafted contract notices’ (find here). Do bear in mind the need for notifications communicated separately (c.13.1) and ensure the correct notices are used.