New build project on a greenfield site over a 90 week contract period. Procured using a two stage open book approach and let under the NEC3 ECC Option A. C responsible for design and build of the development. Project now certified as complete but prior Completion a Defect was notified concerning quality of workmanship associated with asphalt surfacing, kerbs, level control, etc. On reflection we were not satisfied with the extent of open joints, fretting of material, open coarse surfacing, surface or regulations, ponding, finishing to ironworks, excessive joints, etc. Core samples undertaken showed air voids in excess of County design guides (not stated in the WI) and British Standards (only covers designed mixes).
Five months after notification, after much pursuit of a solution, the C decided he wished to contest the notifications concentrating his efforts on the air voids whilst dismissing the workmanship as a matter of opinion.
NB: The E's WI was generally void of specific requirements but the C's WI contained plans and sections detailing surface finishes and a note that "all works were to comply with the relevant British Standards" and it so happens there is a BS for the transporting, laying and testing of asphalt surfaces.
The C has argued that the BS is only relevant to designed mixes and because the mix specified is a recipe mix it is except from compliance with the air void levels contained within. Any thoughts on this?
An industry expert was commissioned to undertake a condition survey and has verified that the workmanship demonstrated does not fully comply with the BS due to the reasons stated above. Verifying our opinions.
Complicating matters, it is evident that the S/C we accepted under cl. 26 to do these works only laid the base courses. This S/C was Sector Scheme Approved and compliant with BS. Providing quality assurance documents including test certificates e.g. Nuclear density tests. The need to be Sector Scheme Approved was, we believe a requirement of the specification between the C and S/C. This is not a contract document between E and C. The binder and surfaces were subsequently let to another (presumably cheaper) S/C who don't have the same QMS procedures. Proposals for correction have been presented although they are no more than a patching plaster. Does the E have a right to insist that the surface course is removed and replaced? Can we insist that the previously approve S/C undertakes the corrections? The C is so embedded financially with the non approved S/C they are insistent they do any repairs but why should the workmanship be any better? Can we refuse? Should a Defect notice be issued for lack of compliance with cl. 26?
We have repeatedly requested S/C conditions of contract, dip sheets, sequencing plans, material certificates and all have been refused. What can the PM do in this instance?
A level survey also shows that the as-built differ to the levels in the WI. Again, this is being dismissed as design development.