Can i issue a pay less notice which will hopefully incentivise a subcontractor to provide the Project Manager with a defects correction programme

Can i issue a pay less notice which will hopefully encourage a subcontractor to provide the Project Manager with a defects correction programme? We have asked for the programme but we are getting no response from the subcontractor.

The simple answer is ‘no’ as a notice to pay less than the notified sum (‘pay less notice’) is specific to the payment procedure and is applicable when the ‘payer’ (Contractor in your case) wishes to pay less than the amount stated in the relevant payment notice (usually a payment certificate).

The defects correction period begins at Completion for Defects notified before Completion, so any contractual actions, apart from notification, don’t commence until after then, although from a commercial perspective the Subcontractor would be well advised to correct Defects prior to Completion.

No programme exists in the standard ECS form specifically relating to the correction of Defects, as this should be included on the programme submitted under clause 32.