Early contractor involvement (ECI) is a procurement and delivery approach under which a contractor is engaged before the main construction works are commenced. In an ECI approach, the contractor will provide pre‑construction services such as:
- advising on the development and buildability of the proposed design
- the tendering of the key sub-contract packages
- construction methodology
- programme sequencing
- safety
- cost planning
Under an ECI approach, a Contractor might also carry out other non-advisory services such as procuring materials with long lead times or carrying out preliminary on-site enabling works.
What is the rationale for using ECI?
The rationale for using ECI on a project is generally some combination of the following:
- it leverages the contractor’s expertise early in the project and should result in a more buildable design in addition to programme and cost savings in the long term
- it allows the employer to offer incentives to the contractor in return for obtaining certainty in respect of certain aspects of the project (be that certainty in respect of cost, design, programme etc)
- it can assist with the use of modern methods of constructions by getting the contractor on the pitch early to tender off-site construction solutions
- it allows the parties to obtain early visibility on the risks associated with the project (e.g. design that does not work or that might require changes to the programme sequencing) and to address those risks before they arise, which in turn should reduce the occurrence of disputes on the project
- it can assist the employer in dealing with the complexities around satisfying BCAR certification requirements and ESG requirements
How is it documented?
There are at least two alternative approaches:
- The one contract approach: the parties enter a building contract that has two separate stages: stage one being the preconstruction services and stage two being the physical construction works. The contract will contain specific provisions that allow the employer to control whether or not the stage two works are commenced and when they are commenced.
- The two contract approach: The parties enter into two separate contracts: a pre‑construction services agreement (PCSA) and then subsequently a separate building contract if both parties are happy to proceed. A near‑final form of the building contract will be appended to the PCSA, with certain commercial terms (particularly around design and pricing) left open for negotiation pending the outcome of the services to be performed under the PCSA.
At present, neither the PWC nor the RIAI forms (including the recently published RIAI forms) contain an ECI mechanic. ECI mechanics have been built into some PWC contracts in the past, but this can only be done on projects over a certain value and with the express permission of the Government Contracts Committee for Construction (GCCC). The GCCC is currently reviewing the issue of ECI and we await to see if the outcome of that review will be the publication of a revised form of PWC contract that includes an ECI mechanic. It is perhaps surprising that the RIAI form has not allowed ECI as an option at least.
In the UK, the NEC form of contract provides for a one contract approach to ECI while the JCT form of contract provides for a two-contract approach.
Points to consider before engaging in ECI
- Clarity of purpose. Employers should define what they are trying to achieve during the preconstruction period. That may be cost certainty, programme certainty, design optimisation, supply chain engagement (or a combination of these factors). Employers then align the contractual mechanics and incentives to those objectives. Absent clear deliverables and incentives for the contractor to help the employer achieve the employer’s aims, ECI risks becoming an unfocused and costly prelude to a conventional tender, rather than a value‑adding stage.
- A realistic budget for the preconstruction services. The budget can be an overall budget for the preconstruction services or a budget for key packages. The contractor should be given enough information to know how the budget has been put together, to determine if that budget is reasonable. Once the budget is set and agreed, any incentive mechanics will typically be assessed against the contractor’s ability to bring the project in below that budget. If incentives are not included (or if they are to be assessed against a budget that the contractor does not consider reasonable) then the employer is less likely to obtain the full benefit of the contractor’s expertise.
- Approval procedure. The contract should include approval procedures for submissions (in relation to design, programmes or budgets) from the contractor. The procedure should set out the criteria against which submissions will be assessed, as well as the time periods within which submissions and responses will be provided.
- Timelines and resourcing. The employer needs to ensure it has sufficient resources to manage the approval procedure and to assess and respond to submissions made. Insufficient resourcing can slow down decision making, make collaboration between the parties more difficult and ultimately undermine the overall objectives of ECI. The timeframe for completing the preconstruction services should be sufficient having regard to both: (a) what is expected from the contractor; and (b) the employer’s resources.
- Pricing. The contractor will typically be required to tender rates based upon a notional bill. The ECI process might then be used to finalise the design, confirm the quantities required and to then use the tendered rates, together with the confirmed quantities, to finalise the cost of the construction works. Subcontract packages might be procured on an actual cost, open book basis, or on the basis of provisional sums or lump sums. The employer should think about the approach to different packages at the outset so that the contractor can consider how best it can add value.
- Collaboration. An ECI process is unlikely to work if the parties do not engage in a collaborative manner. In practice, this means sharing information openly with one another and including contractual mechanics and incentives that do not disincentivise information sharing. For example, if the contract operates in a way that once a contractor identifies a risk, it becomes liable for that risk (without any payment for that liability) then the Contractor is unlikely to identify the risk during the preconstruction period.
- Criteria for transitioning from preconstruction services to construction works. The contract should clearly identify the criteria the contractor will need to meet before it can proceed to carry out the construction works. The criteria that will be included will depend on what the employer is attempting to achieve by engaging in ECI (e.g. is it cost certainty, design optimisation, programme efficiencies or some combination of the above?).
The transition from ECI to construction works
If the contractor is awarded the construction works
If the contractor is awarded the construction works, then issues regarding the contractor’s liability for its preconstruction services and its intellectual property rights over its design will typically be determined by the terms of the building contract entered into. This is regardless of the terms of any contract that has previously been entered into by the parties. The transition between the preconstruction services and the construction works should be clear cut, with the parties clear as to the design, the programme and the budget that is being worked to under the building contract. A failure to ensure this clarity before commencing the construction works can result in disputed variations during the construction phase.
If the contractor is not awarded the construction works
If the contractor is not awarded the construction works, then the liability between the parties will typically be dictated by the terms of the ECI contract (be that a PCSA or a two-stage building contract). It’s therefore important to consider when negotiating these contracts how the relationship will be governed if the contractor is not awarded the construction works.
Issues to consider when the contractor is not awarded the construction works include:
- can the employer use any design information provided by the contractor if the project is to proceed without the original contractor
- has the contractor a design liability if issues subsequently arise with the design
For further information in relation to this topic or any related matter, please contact Conor Owens, Partner, Michael Kennedy, Senior Associate, Paul McNamee, Associate or your usual contact on the Construction & Engineering team.
Date published: 11 November 2025
