NEC PSC: Recovery of Costs from Design Issues

NEC3 and NEC4 Contracts General
1

I have an NEC3 PSC Option C contract for detailed design of some flooding remedial works that isn’t yet fully completed, which is concurrently being fed into a separate NEC3 Option C ECC contract for build only works that has just started.

The Contractor in the ECC contract has just issued a number compensation event notifications (that the client agrees with) relating to issues of the Consultants design from the PSC not being suitable for the works. One simple example is the construction design drawing for the coping stones is not suitable for the works. The drawing detail did not allow for any discrepancy in the brickwork alignment, nor a drip. The ECC Contractor therefore has issued a CE to propose the widening of the copings by 100mm and form a drip 20mm from the edge of the coping.

The client is now querying as to how they may recoup the costs of the ECC compensation events caused by the design issues of the Consultant in the PSC? As the PSC has yet to be completed, is there a way that such compensation event costs arising from the ECC contract can be recovered under the Consultant’s PSC unsuitable design? Many thanks.

2

This would be a matter for the designer’s professional indemnity insurance, your Client would have to prove that the Consultant had not used the skill and care normally used by professionals providing similar services.

Also the Client’s Scope will be relevant in terms of what standards / specifications should the Consultant design in accordance with? This said, the Client’s only remedy for defective service is for the Consultant to correct it, i.e. if they hadn’t designed in accordance with a specification that required a drip then the design should be re-issued however the cost of doing so would still most likely be part of Time Charge. Remember Option C involves the Client sharing some risk with the Consultant.

Just an observation but surely discrepancy in brickwork alignment is the Contractor’s Defect under the ECC and not a Consultant one under the PSC?