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NEC ECC: Option A- Accepting subcontractors

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ECC NEC3 Option A contract. Completion and take over has occurred and we are one month from Defects Date. Currently in dispute with C over some surfacing works. WI fairly vague and aside from some plans requires the C to comply with British Standards.  

During the dispute it’s come to light that the accepted S/C (who is sector scheme approved and lays in accordance with BS) was not awarded the binder and surface courses but the ground worker was. This S/C was never formally accepted. Would you recommend that a Defect notification is issued for the appointment of a S/C that has not been accepted?  I appreciate that I can not change something which has already happened.  This would provide a mechanism for the E to be reimbursed as consideration for such breach and the additional fees he is incurring to remedy the issues.  

The unaccepted S/C has since confirmed on email that that are not working to BS. This has led me to investigate and it seems that we were never provided with a copy of their conditions of contract to cover the extended scope i.e. surfacing, only the groundworks. I have since requested their conditions a part of a post mortem but the C is refusing despite me reminding him that is a breach of contract. What powers does the E have to address such breaches? Defect notification?

In the event that base courses are 100 thick as opposed to 125 thick, but should still work, should the C be reverse engineering with his consultants and proposing a change to the WI with some financial benefit?

We are now apprehensive given he wishes to use the unaccepted S/C to correct the Defects. This could potentially result in a further Defects.  He is financially so deep in bed with the 'wrong' S/C that he is unlikely to take heed.
asked Jul 8 in Main options by cnigh1sc (360 points)  

1 Answer

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Appointing a Subcontractor without prior acceptance is not a Defect as it's not "a part of the works not in accordance with the Works Information" as required by clause 11.2(5).

If the base course is not the required thickness then it is a Defect and should be notified as such by the PM under clause 42.2, even though you are close to the defects date, and it should be corrected by the C under clause 43.2 within the defect correction period.

There is a procedure for accepting the Defect at clause 44 which could give the Employer some compensation for the Defect in terms of reduced Prices and / or an earlier Completion Date. Either the PM or the C can propose a change to the Works Information to accept the Defect so if the C hasn't proposed it and the Employer is happy to consider it then the P should do it.

One thing I'm not clear about is your use of the term "sector scheme approved" which I don't understand, however I don't think it has much bearing on the issue. Focus on either correcting the Defect or accepting it, if you have concerns about the Subcontractor being proposed for correcting it then by all means discuss this via an early warning and risk reduction meeting and if necessary increase the level of supervision to ensure their remedial works aren't defective. If you refuse to allow the original Subcontractor to return to correct their Defect you may be conceding a compensation event for the additional cost to the C of having it corrected by others.
answered Jul 12 by Neil Earnshaw (21,130 points)