The Consultant Under the PSC

The NEC consultant is the party providing the service under the Professional Service Contract (PSC). It takes the place of the Contractor in a works contract, but its main obligation is different: it must reach the level of skill and care that professionals in its field normally apply, rather than simply producing a result.

Designers, engineers, cost consultants and others are often appointed this way. This page covers NEC4 PSC where we can, with NEC3 noted. Clause numbers differ between editions, so check yours. The NEC roles guide puts this in context.

The standard of care

This is the main thing to understand. In the NEC3 PSC the duty appears at 21.2. In the NEC4 PSC, the matching rule is at 20.2, and 20.3 adds that the Consultant is liable for a Defect only if it failed to reach this standard. The Professional Service Subcontract uses the same numbers.

Why this matters: a design that later proves wrong isn't automatically a breach. The question is what a competent professional in the same position would have done. Any higher standard, such as fitness for purpose, would need to come from elsewhere in the contract, such as a Z clause or Option. That is a question to raise with your insurer before you sign, and limiting liability under Option X18 is related.

Who the Consultant deals with

Edition	Paying Party	Who manages the contract	Service described in
NEC4 PSC	Client	Service Manager	Scope
NEC3 PSC	Employer	The Employer directly	Scope

NEC4 has no Supervisor on a PSC. See the Service Manager guide for that role.

Main duties under NEC4 PSC

Duty	Clause
Give early warnings as soon as aware	15.1
Provide each key person named in the Contract Data, or propose a replacement for acceptance	21.1
Remove a person when instructed, with reasons	21.2
Meet the Condition of each Key Date. If missed and the Client pays more, the Consultant pays what is assessed	22.3
Submit the name of each proposed subcontractor before appointment	23.2
Submit the proposed subcontract documents unless an exception applies	23.3
Submit the first programme for acceptance if the Contract Data doesn't name one	31.1
Submit a revised programme when instructed and at the stated intervals	32.2
Quote to accept a Defect, where proposed	42.2
Notify compensation events the Service Manager hasn't	61.3

The instruction to correct information from the Client that has been found to be wrong is one point new to NEC4 PSC (14.3). That instruction is a compensation event under 60.1(14).

A worked example

A fictional engineering consultancy has a Client's PSC to design a footbridge. The ground investigation report comes from the Client. Its borehole levels turn out to be wrong, and the design is on the wrong basis.

1. The Consultant gives an early warning as soon as it spots the mismatch.
2. The Service Manager instructs a correction to the information (14.3). This is a compensation event, and the Consultant quotes for the redesign.
3. The time and cost are assessed. Under a cost-based Option (C or E), the Consultant's Defined Cost for the redesign, plus the Fee, drives the price.

Compare this with the case where the report was right but the Consultant misread it. There is then no compensation event, and the correction becomes a Defect question at the Consultant's own cost, if it fell below the standard. Records of what it was given, and when, tell the two cases apart.

Where it gets confused

• A Consultant can also be the Project Manager. A firm may be appointed under a PSC to act as the Project Manager on a separate works contract. Those are two contracts. In one it's the Consultant under a Service Manager, and in the other it holds a named role towards a Contractor. Don't mix the duties or the notices.
• Design under ECC vs PSC. A Contractor designing under ECC has a different responsibility from a Consultant designing under a PSC. The Contractor's design guide sets this out. On a two-stage appointment with design passing over, read each contract's wording.
• Time-based fees. A consultant on a time basis still needs change control. Out-of-scope advice given informally is hard to recover later if no one instructed it.

Practical steps

1. Compare the Scope with your fee proposal, line by line.
2. Check the insurance and liability wording against your own cover.
3. Tell the Service Manager at once if any named key person will change.
4. Log the information you receive from the Client, with dates.
5. Keep the programme current, as with any NEC contract.

For more detail, read the Professional Service Contract guide, PSC main Options and NEC for consultants.

Related guides

• NEC Roles: Who Does What on an NEC Contract
• The Adjudicator
• Senior Representatives
• An NEC Guide for Quantity Surveyors
• The Client's Role Under NEC
• The Service Manager

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.