Early Contractor Involvement (ECI): updated Dutch ECI model contract launched by B&B, PRO6 Managers, Witteveen + Bos and Tauw

On 15 May 2025 we launch the updated Dutch ECI model contract DG2025 at the premises of the Dutch Ministry of Real Estate. Together with PRO6 Managers, Witteveen + Bos and Tauw, Bird & Bird worked to prepare this model on a pro bono basis to further advance the construction market. 

This model is the evolution of the successful DG2020 ECI model, which was launched five years ago. A model used to procure hundreds of construction projects, worth billions of Euros throughout Europe, and which is adopted as standard model by several major contracting authorities. 

In this article we briefly repeat some of the advantages of using ECI for complex projects, followed by an overview of the most important changes between the 2020 and 2025 models. An English translation of DG2025 is now being prepared; the translation of the DG2020 can be found here. 

On Early Contractor Involvement (ECI)

 Generally, when considering what the definition of a successful construction project is, it is a project that is completed:

• On time
• Within budget
• In line with the specifications
• Without disputes

Traditionally the focus with the contractual set up of contracts dealing with a construction project is to have three types of parties involved: the employer, the designer/engineer and the contractor. Each party has its own role during a construction project, and does not venture into the scope of the other two parties. In respect of construction contracts, these tend to be focused on dividing and allocating tasks and risks. Whilst they work together on a project, each party stands on their own if there is an issue. This has been a very successful model, especially for projects with a relatively low risk profile and/or sufficient time and resources to identify and manage risks during the preparation phase.

However, projects are increasingly turning complex and when, these involve the complex interrelationships between different components, it is easy to see that this method might create problems. A large number of projects are still one-off projects, with project specific challenges related to for instance soil conditions, use of technological components, permitting, and ever-changing requirements from stakeholders (such as end-users, local authorities and local interests groups). Other sources of challenges may be from increasingly complex circumstances set by for instance the supply chain, local utility providers/grid connectors and investors/financiers.

One way to decrease the risk profile, or in any case a contractor’s assessment thereof, is to be involved early on and have sufficient opportunity to assess, mitigate and price risks. Such early involvement is also referred to as early contractor involvement (ECI). ECI is an approach we have been adopting in a range of projects, through ECI contracts which are sometimes also referred to as preliminary or pre- construction services agreements (PCSA).

Applying ECI during the preparation stage amongst others:

• Improves the knowledge of contractors & suppliers and allows them to do research before starting construction, therefore improving the chance of success.
• Can allow for further optimizations (i.e. from price, safety, sustainability, planning or technical perspectives).
• Can ensure that the price finally agreed upon with the contractors & suppliers is a good reflection of the actual costs, rather than a ‘guesstimate’.
• Can allow the employer to weed out any contractors & suppliers who are not up for the job before having them starting the works (should they be uncooperative, not-proactive, unknowledgeable etc.).

 Updated new ECI DG2025 model

 The DG2020 model was prepared by PRO6 Managers (Joost Merema), Witteveen + Bos (Jaap de Koning), Tauw (Henberto Remmerts, Arno Hoevink) and our own Andrea Chao. At the launch of that model, it was already anticipated to launch an updated version, combining the experiences gained. Exactly five years after the launch of the first model, the updated version has now been launched. 

The model DG2025 agreement has been amended on several aspects. In general, the aim has been to clarify the text, make it more concise, ensure legal clarity, bring it more in line with commonly used terms and use gender-neutral terminology. Furthermore, we have included more elaboration and background for users. 

More specifically, parts have been amended with a view to improve cooperation the involved parties and enabling them to tailor the model better to the requirements arising from their respective obligations. Another major topic of consideration is increasing both flexibility regarding and grip on pricing.

Phasing introduced

 Regular checks need to be carried out to ensure that the parties are acting in accordance with the (financial) arrangements. To increase control, the collaboration within the team is now divided into explicit phases, which must be completed in sequence:

 a) Phase 1

During this phase, the ECI collaboration starts, the involved parties get to know each other and agree on further arrangements reworking method and cooperation. Depending on the nature and scope of the project, this phase can be very short (in the form of a so-called ‘PSU’ or project start-up) or last several months. At the end of this phase, verification of the feasibility of the budget takes place.

b) Phase 2

During this phase, the ECI team will work on the basic design, discussing the known parameters of the assignment. Involved parties are required to assess the information sent to them (including design documentation) to the best of their ability on accuracy and completeness, among other things, and to comment on such documents if necessary. In this phase, certain studies may also be carried out, and involved parties may collect certain additional information to further develop the design documentation. Involved parties will record the progress of the process in this phase through reports. At the end of this phase, verification of the feasibility of the budget takes place.

c) Phase 3

During this phase, the ECI team will work on a more detailed design, further developing the basic design to a level that allows the implementation period to start. This will be recorded in reports. At the end of this phase, verification of the feasibility of the budget takes place.

d) Phase 4

During this phase, the documents required for the start of construction will be drawn up. In addition to previous reports, an overview of the most important decisions, considerations and relevant project-specific circumstances will be drawn up, making this information available for more effective implementation. At the end of this phase, verification of the feasibility of the budget takes place. Furthermore, an advanced draft contract for the construction of the works (including appendices) is drawn up so that the parties can start the contract formation procedure. 

More grip on pricing

On the topic of control of pricing, we have implemented several amendments, including:

1.  Regarding the target budget, a statement on its feasibility at the time of entering into the Agreement is still desirable. Such a statement requires the contractor to provide the client with sufficient substantive information (including a detailed breakdown on how the target budget is set up, and the expected scope of the work) to enable the contractor to make a useful assessment of the target budget’s feasibility.
2. A similar statement shall be repeated at the end of phases two, three and four mentioned above. The purpose thereof is to prevent any delay on reaching agreement for the price of the construction of the project.
3. The ongoing obligation of the parties involved, to warn against any (negative) consequences for the costs of construction, has been further elaborated. As a result, the ECI agreement emphasizes that reaching an agreement on construction costs for the project acceptable to the involved parties is an ongoing process.
4. The method of pricing during the negotiations to come to a construction agreement has been simplified. The possible escalation to an expert opinion has been removed, given that considerable attention has already been paid to the aspects of costs. Parties must reach agreement within a set period of time. If that turns out not to be possible, the client may decide to select another contractor.

In addition, we have provided more guidance on when the aforementioned target budget can be amended. This can for instance be done:

1. If information provided during procurement proves to be outdated
2. If the budget estimate proves to be too ambitious
3. If additional work is required for proper fulfilment of the contract
4. If additional risk management measures are needed
5. In case this is required considering unforeseen circumstances, or arrangements in the anticipated construction contract that would result in changes to pricing

If an ECI contract is procured through public procurement, it is still required that a procurement authority scrutinizes whether the tender documentation provides for sufficient flexibility within the given framework.

Bird & Bird have extensive experience with such contracts for the purpose of development of complex projects, ranging from procurement and drafting up to contract management. Please do reach out to us if you want to explore how this approach could support the delivery of your project.

For more information, please contact Andrea Chao.