Equipment, Plant and Materials

NEC Plant and Materials outside the Site or the Working Areas pass to the Client only as far as the Contractor has title, and only once the Supervisor has marked them as for the contract. Marking happens where the contract lists the items for payment and the Contractor has got them ready in the way the Scope asks.

Section 7 of the contract deals with title and has the same core numbers (70 to 73) in the NEC4 ECC and NEC3. It links closely to the rules for testing before delivery in quality and Defects under NEC.

Two different things

Term	Meaning, in plain terms	Example
Plant and Materials	Items intended to end up in the works	Pumps, cable, precast units, reinforcement
Equipment	Items used to Provide the Works but not to be included in them	Cranes, scaffolding, temporary pumps

A pump can be either. A temporary one used for dewatering is Equipment, while the one bolted into the pumping station is Plant.

The rules

Clause	The rule
70.1	Whatever title the Contractor has in items outside the Working Areas passes to the Client once they're marked
70.2	Title passes to the Client when items come within the Working Areas, and passes back if they leave with permission
71.1	The Supervisor marks items outside the Working Areas once they're listed for payment and have been prepared as the Scope says
72.1	Equipment comes off the Site when it's no longer needed, unless the Contractor is allowed to leave it in the works
73.1	Objects of value or historic interest found within the Site don't belong to the Contractor
73.2	The Contractor has title to excavated and demolition materials unless the Scope says otherwise

The words "whatever title"

This is the risk that people miss. The clause only passes the title the Contractor actually has. If a supplier delivers on terms that keep ownership until it's paid, and the Contractor hasn't paid, marking doesn't necessarily give the Client ownership. If that Contractor then fails, the supplier may be able to claim the goods back. The Supervisor marking the items doesn't by itself solve that.

So a Client paying for high-value items off site should ask for evidence of title, and may want further protection, such as a vesting certificate, a bond, or a separate agreement. The arrangement should be stated in the Scope or the additional conditions. Our guide to insolvency and NEC contracts explains why that matters.

A worked example

A fictional tunnelling contract. The Contract Data identifies precast segments held at the manufacturer's yard for payment, with the Scope requiring that they be stacked separately, labelled by ring number, and insured. Illustrative figures: £600,000 of segments are ready at an assessment date.

1. The Contractor prepares the stack, labels it and tells the Supervisor it's ready.
2. The Supervisor visits and marks the items, and records the ring numbers and the date.
3. Title, as far as the Contractor holds it, passes to the Client (70.1).
4. The item can then be reflected as the contract provides for payment.
5. When the segments arrive in the Working Areas, they fall under 70.2.

A checklist before marking

• Does the contract actually identify these items for payment?
• Has the Scope's preparation requirement been met: separate storage, labelling, a location?
• Have any required tests before delivery been passed?
• Who holds title now? Are there supplier terms or a retention of title clause?
• Is the loss or damage risk covered? The Insurance Table covers loss of Plant and Materials, and the Contractor carries that liability unless it's stated as the Client's.
• Can the Supervisor physically reach them? Consider visits abroad.

Other points that catch people out

• Materials from demolition. Unless the Scope says otherwise, these belong to the Contractor. If a Client wants to keep the stone or reclaimed items, it needs to write that into the Scope, and tenderers need to price accordingly.
• Finds on site. The Contractor tells the Project Manager about an object of interest, doesn't move it without instructions, and the instruction is a compensation event at 60.1(7).
• Termination. Plant and Materials to which the Client holds title can be used to complete the works, so a record of marking may become very valuable at short notice.

Related guides

• Quality and Defects Under NEC
• Quality Management Under NEC4
• Contractor's Design

This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.