Looking for some guidance on the accepted design and defect clauses of the ECC, I’m administering the contract under a design and build on an Option A. The PM has accepted the Contractors design and the Supervisor is currently using the drawings and specifications provided by the Contractor in support of his design to review the construction phases and implement the defects clauses of the contract as required.
This is where we have come to a bit of a discussion with the Contractor; the Supervisor upon finding a piece of work that does not reflect the drawings, has identified it as a defect, the design as a whole still reflects the requirements in the Works Information, however it is the fixing details that have changed and the drawing is a revision of a previously accepted drawing that may have potential cost implications and performance issues, the Contractor believes that the drawings that the Supervisor are using do not reflect the construction of the works as they are not detailed construction drawings and therefore within his gift to amend as long as the design still reflects the Works Information. The PM considers this as a change and should follow the Defects procedure. Any guidance would be appreciated.
The first thing you must do is establish what the Works Information actually is. A defect is, in general, any part of the works which does not comply with the Works Information.
As a simple example, the Original Employer WI says use an adequate fixing mechanism, the detail submitted and accepted shows 4 screws used in the fixing, on site they install 2 because they consider that is adequate albeit less than the detailed accepted design shows. Here we will then be looking at clause 11.2(5) second bullet as the definition of a defect. This is a piece of work designed by the contractor which is not in accordance with the design which the PM accepted. Therefore the work is defective.
Taking this example a step further (i.e. a scenario where the Contractor has deviated from the design which the PM has accepted but not necessarily from the Works Information), if the PM wishes to accept such a Defect how do the Parties fulfil the requirements of clause 44?
Under 44.1, a proposal may be made by either the Contractor or the PM to the other for the Works Information to be changed so that a Defect does not have to be corrected.
Under 44.2, if the PM is willing to accept a quotation submitted by the Contractor in relation to this proposal then he is required to “give an instruction to change the Works Information”.
Clause 44 therefore implies the only way to accept a Defect is through a proposal to change the Works Information and an acceptance of the associated quotation by the PM. This only considers the first bullet point of 11.2(5).
In the situation where a Defect has arisen only through the second bullet point of 11.2(5) due to works not being in accordance with the Contractor’s design which the PM has accepted, the works may still be in accordance with the Works Information; therefore instructing a change to the Works Information is illogical yet the PM still wishes for the Defect to be accepted.
Does the Contractor still provide a quotation for reduced prices or an earlier completion date or both for deviating from the design which the PM has accepted but not from the Works Information?
Would appreciate feedback on how this should be administered in practice.
This is a really interesting point which I had not come across before in that 44.1 only seems to allow for acceptance of works falling outside the WI whereas works can be defective also if they do not comply with a contractors design which has been accepted…
The most simple answer is that you start at 21.2 and acceptance of the design, or more importantly reasons why it is not accepted. There are only two stated, first that the design does not meet the WI and second it does not meet the applicable law. Assuming the works actually carried out don’t fall within either reason for rejection the design should be updated, resubmitted and then accepted. In other words a there is a technical rather than a real defect.
You could change the WI I suppose but that leads to all sorts of difficulties because you will in fact be adding a constraint (by narrowing what is allowed in the WI) and therefore a contractor could argue for a positive CE.
My view is that this needs a little practicality and pragmatism. The works as constructed meet the requirements of the WI. Therefore the design needs to be re-submitted and accepted. The problem then goes away and there is no need for reducing or increasing the Prices.
All, I have a slight variance on a similar matter. Under an Option A contract where the C is responsible for the whole of the Works, the C submitted with his CD2 a proposed external works plan which has finished levels (therefore C’s WI). These were accepted and form the original contract documents. Fast forward 24 months and it seems the C has deviated, significantly in some areas, from these accepted levels. These have notified as a Defect by the S along with a multitude of other tar paving issue. The c seems to believe that it is his gift, as design development, to vary the finished levels. We disagree as it is not his gift to vary what is ‘the’ WI. Welcome wider thoughts.