I worry about the amount of attention given to Contractors’ design liability in the ECSC…
Firstly, in the absence of any specific clause or option, is the obligation “fitness for purpose” or “reasonable skill and care”?
Secondly - design liability is not mentioned in Clause 81 Contractors Liabilities. Does this mean that Clause 82.1, regarding Client’s recovery of costs cannot be used for design defects?
Thirdly, the Insurance Table under Clause 83 does not include a requirement for insuring against design failures, nor does Client’s Contract Data allow for inserting minimum amounts of insurance cover.
Does anyone have any observations / advise on how best to deal with this lack of detail?
You are right to be concerned, whilst the ECSC can include design (see clause 20.2 - prohibits Contractor from starting work on Contractor’s designed elements without Client acceptance) it is not intended to be used where the Contractor is responsible for carrying out most of the design. The ECSC is intended to be used for simple, less complex, less risky projects, a full design and build contract would most likely fall outside it’s intended use without the inclusion of additional conditions. This said why would a Client choose to include additional conditions when they could use the ECC which already addresses the issues you’ve observed with the ECSC?
Thanks Neil,
So, if the Client remains determined to use ECSC, I will advise adding sub-clauses to 81 and 83 (by Z Clauses), along the lines of those in the equivalent PSC clauses? Plus clarity around fitness for purpose or skill and care.