NEC 4, Option C - Our Contract has a definition of Completion that explains that 2 items of Scope (18 month reporting after the road is in use and 5 year aftercare Landscaping) are to be done after the Completion Date.
The NEC PM has now issued a Completion Certificate stating that completion has been achieved but that we must do the 2 items of scope after this date (to make it worst they won’t be done by the defect date - defect period is 52 weeks).
I don’t think I can accept that Completion has been achieved, should I?
David, welcome to the community.
I can only infer that you’re speaking for the Client. Your concern is legitimate but don’t you think that it is a bit late for such a query? What do your contract advisors say (I assume you had those when you tendered the job)?
With all due respect and it probably sounds harsh, but unless there is missing context you probably need to seek new ones.
Thank you for the warm welcome.
I’d like to respond to you and the community to add context as I’m still unclear.
I am the Main Contractor, yes, we signed the contract with a Scope that defined Completion as ‘All the works excluding 18 month reporting after the road/junction is in use and 5 year aftercare Landscaping’. We are looking to possibly have those items Omitted from the Works-they Client does not agree?
Both of the excluded from definition of Completion items require resources, admin, payments to supply chain (Defined cost continues, risk, Insurance cover-(maybe an accident when the grass is being cut), possibility of a defect occurring).
If the Completion certificate is accepted by me the defects date will be before the excluded from Completion works will be finished.
As I’m aware Completion is one of the most important points in a project, and when reading guidance, it suggest only resolving defects should continue beyond the Completion certificate, NOT the Works.
That said issuing of Defects Certificate must also be an important point in the project, as it indicates no more defects are left to close out (assuming the works activities stopped at Completion certificate, in last para.), subject to the acceptance of defects if access was not given etc.
So my questions are:
Can you say Scope will be completed during the defects period when it is not a defect?
Was the test for Completion (state not date) achieved?
Should the NEC PM have issued the Completion Certificate?
From the outside looking in, does the end of this project look confusing and should I ask the NEC PM for clarity on how all of the normal close out events at Completion and Defect will be administered (for example- calculations, final payment, when does defined cost reporting end etc)?
Do you think I will get defined cost paid for doing the works (beyond Completion and Defects certificate, am I at risk of not getting paid?
When will I get my shares of pain/gain in my interim or final payment?
Many questions I feel have opened up for me due to how the NEC PM has administered this very important point/ decision for the project.
Many thanks again all.
David, thanks for sharing; obviously the contract you have entered is heavily amended, probably through z-clauses.
In order to get reliable answers to your concerns, I would suggest that you engage a professional - you might get views and opinions from this community, but without someone reviewing your contract as a whole - especially the definitions and other amendments - I believe that you are at risk of drawing wrong inferences, which might compromise your contractual performance.
Unfortunately, I cannot offer further assistance through this platform - any one else of course, is more than welcome to jump in.
I wanted to give an update on my initial question.
When reviewing the NEC guide to writing scope, specifically Completion definition, you can identify Scope that continues after Completion.
Therefore I have accepted the NEC PM’s Completion certificate reluctantly.
Reluctantly because we have Completed in line with the Contract, however the guidance does advise that item listed to be completed after Completion as such as: a cube test that has not run for the allocated curing time; and O&M information such as As-built information that needs to run its course to closure.
Both of these example are items of work that would take a matter of weeks to close and therefore would be inside of the 52 weeks defect period, NOT, in our case the works that either run for years beyond the defects date or even start after the defects date.
So there lies my next issue. Do we do the works listed to do after Defects date or hand the works back as an unrectified defect? Kind of difficult when raised and get a defect (considering the definition of a defect) for an item of work you have not even had the chance to finish or even start before the end or the defects period.
Road projects often have a landscaping element tied in for the 5 years after completion
Main contractors often secure a specialist landscaping subcontractor to take over this scope.
The alternative is to try to sell that obligation back to the employer, who have their own landscaping contractors anyway.
I doubt you’ll find an attached easy way out of the obligation to do it, as the first few ears of planting and weed killing on a road project are something nobody wants to do