I have a project where a Defect has been notified for materials testing not undertaken. As this is not a Defect that can be corrected (testing cannot be undertaken retrospecitvely) the PM has proposed that the Defect does not have to be corrected and requested a quotation for reduced prices from the Contractor.
It is expected that the Contractor will not submit a quotation so is there any mechanism for the PM to make his own assessment?
There doesn’t appear to be any such option under Clause 44.2 and an instruction removing the testing requirement from the Works Information would presumably not give rise to a CE due to the first bullet point under Clause 60.1(1).
Great question Matthew - @Neil_Earnshaw @Barry_Trebes @stevencevans can you help?
You haven’t stated if its NEC3 or NEC4 so I’m going to assume NEC3 based on your reference to clause 44.2.
You’re dealing with an uncorrected Defect under clause 45 which gives the PM the right to assess the cost of the Defect. Whether the assessment is made under clause 45.1 or 45.2 will depend on whether the Contractor was given access to correct the notified Defect. For example if the materials in question are pipes that have been installed, commissioned and are operational but the Employer refuses to allow them to be taken out of operation for them to be tested I would class this as access not being given and the right to assess under clause 45.2 would apply. Clause 45.2 entitles the Employer to recover the cost to the Contractor which is narrower than clause 45.1 which entitles the Employer to recover the cost to them which is likely to be more widely interpreted.