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NEC ECSC: Change of WI after identifying a defect

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We are a Subcontractor and have a project under NEC3 ECSC option A which has not been administered very well by the Contractor. Some time ago, a defect was found on the fan impellers which we proposed to rectify in compliance with the Works Information. However, the Contractor will not accept the design unless the new impellers go through FEA analysis which was not a testing compliance under the original WI. Our design has been rejected several times on this basis and with no guidance on there requirements. This has been ongoing for 12 months and as such delayed Completion.
Can the Contractor do this under the contract as this is technically acceptance of a design (21.2)? In addition, if the requirement for FEA analyse is required, should this not have been a CE change to WI?

To make things more complicated, to resolve the ongoing issues with other CE's, we, as a company, agreed to settle the account outside the NEC framework. As such, we are now working outside of any contractual dates. in which case can they still choose to administration under the NEC guidlines?
asked Aug 29, 2018 in Compensation Events by Jon1273 (220 points)  

1 Answer

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I assume that you are responsible for the design of the fan impellers and that by defect you mean a Defect as defined by the subcontract.

It is not clear from your question if the proposed correction is a “like for like” replacement or if you have proposed a different impeller.

If a “like for like” then the testing requirements should be as the original WI. If the Contractor is requiring additional testing then that is a change to the WI and a CE under clause 60.1(1).

If it is a different impeller then the Contractor can stipulate the additional testing to satisfy himself that the proposed impeller is acceptable.

In respect of the agreement reached to settle the account, the implications will depend upon the wording of the agreement and what was agreed presumably under clause 12.3.
answered Sep 1, 2018 by dave bates Panel Member (14,550 points)  
thanks Dave, appreciate the advise. after our investigations, it was found that our supplier had not manufactured the impellers to the required design, thus making them not fit for purpose. we proposed to replace the defective impellers with new, and which were manufactured to the correct deign. the client on the other hand, has requested that the replacement impellers under go FEA analysis which is not a requirement under the original WI, however, under clause 42.1, it does state 'doing tests and inspections which the sub contract works information does not require' under this clause, could the client not request the FEA? in addition, this has been ongoing for over 12 months and obviously at expense, is there anything in the contract to cover contractors delay?
many thanks
Jon, based on your comments it appears that the Client/PM is introducing a change to the Works Information which is not due to accepting a Defect (since the replacement impellers comply with the original WI) and is therefore a CE. Have you followed the contract in terms of notifying a Defect and stating the corrective measure was to replace. I suspect the Client/PM will argue that you should have carried out the work as soon as possible and that you have delayed yourself.
hi Dave, the defect was found by mutual investigation between ourselves and the client, while inspecting another element. the defect was notified by the client and we did propose the corrective action which was to replace the existing impellers with ones which were manufactured and installed as per the design. this would mean that the impeller design was needed to be changed to the of the existing ones as these were not in compliance with the requirements of the system. the client, from our proposal, has pushed for the FEA and has used this to delay the approval of our proposal. we as the sub contractor have been pushing for sensible resolutions, however, in this instance, it is somewhat difficult. from that point, the delay in approval of our proposal in direct relation to additions required which are not in the original WI have been driven by the client. However, not sure how, at this late stage, we could apply or advise of our options for delay to the client under the contract
thanks