W2: Dispute Resolution Under the Construction Act

NEC W2 is the dispute procedure for contracts covered by the UK Construction Act. Either Party can start adjudication whenever it chooses, which reflects the statutory right, and the Adjudicator normally decides within 28 days of the referral.

NEC4 adds a voluntary step before that: if the Parties agree, Senior Representatives can try to settle the dispute first. Under W2 that step can't be forced on a Party. W2 is the usual choice for UK construction work, and it sits with Option Y(UK)2 among the NEC secondary Options. If the Act doesn't apply, see Option W1.

The timetable

The periods below are from the NEC4 subcontract text. NEC3's structure is similar. Periods in days leave out bank holidays, Good Friday and Christmas Day, and your own contract may differ.

Stage	Who acts	When	Clause in subcontract text
Notice of adjudication	The referring Party	Any time; include a brief description and the decision wanted	W2.3
Adjudicator confirms able to act	The Adjudicator	Within 3 days of the notice	W2.3
Nomination, if none named or able	The nominating body	Within 4 days of the request	W2.2
Referral with supporting documents	The referring Party	Within 7 days of the notice	W2.3
Further information	Other Party	Within 14 days of the referral, unless extended	W2.3
Decision	The Adjudicator	Within 28 days of the referral, plus 14 days with the referring Party's consent, or longer if both agree	W2.3
Correcting a clerical slip	The Adjudicator	Within 5 days of the decision	W2.3
Notify intention to go to the tribunal	A dissatisfied Party	Within 4 weeks of notification of the decision	W2.4

Senior Representatives under NEC4

The step is optional, and agreement is what makes it happen. Once used, it follows the same outline as W1: statements of case within a week, up to three weeks of talks, and a list of issues. Agreed issues are put into effect. A Party can still go to the Adjudicator whenever it wants, whether or not this step has happened. It's often worthwhile on a commercial dispute because it costs little. More in the Senior Representatives guide.

A dated example

A fictional dispute under NEC4 with no public holidays in the period. The Project Manager and the Contractor disagree over a £180,000 assessment.

1. On 2 October, the Contractor gives notice of adjudication, sending a copy to the named Adjudicator.
2. On 3 October, the Adjudicator confirms it's able to act.
3. On 9 October, the Contractor refers the dispute, with its documents, and copies the Client.
4. On 23 October, the Client's response is due, 14 days after referral.
5. On 6 November, 28 days after the referral, the decision is due.
6. The Adjudicator decides that £120,000 is due. Because this changes an amount notified as due, it becomes payable seven days after the decision.
7. The Client has four weeks to notify its intention to take the matter to the tribunal, or the decision becomes final and binding.

Effect of the decision

• Binding for now. The Parties follow the decision until a tribunal revises it. It's enforceable as a contractual obligation, not as an arbitral award.
• Costs. The Adjudicator can decide how its own fees and expenses are shared.
• Same dispute. A dispute that has already been decided can't be sent to adjudication again, even if it's dressed up slightly differently.
• Linked disputes. A main contract dispute can sometimes be heard with a related subcontract dispute, with consent. See back-to-back subcontracts.

Common mistakes

• Thinking W2 has no time limits at all. There's no limit on starting an adjudication, but the tribunal notice has a strict four-week period. Miss it and the decision stands. See the tribunal.
• Sending a referral late. It's seven days from the notice, and that's easy to miss if the documents aren't ready. Prepare the referral before giving notice.
• Ignoring what the Adjudicator asks for. If a Party doesn't comply, the Adjudicator can continue and decide on what's been received.
• Leaving the Adjudicator blank without a nominating body. That creates delay at the worst moment. Complete the Contract Data at the start.
• Using W1 by mistake. A time bar written for a non-Act contract doesn't sit well with a statutory right. Check the selection in Contract Data part one.

Related guides

• NEC Secondary Options: X, Y, W and Z Clauses Explained
• W3: Dispute Avoidance Board
• Z Clauses: Writing Additional Conditions
• Common Z Clause Mistakes
• Y(UK)3: Third Party Rights
• W1: Dispute Resolution Where the Act Does Not Apply

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.