Client obligation to Contractor following a third party brought in to correct his uncorrected defect

On a NEC3 ECC Option A contract our contractor failed to correct a notified defect and ultimately we were forced to get the rectification done by a third party and hold the contractor’s retention monies to cover the cost. We wrote on numerous occasions informing the contractor of our intention to proceed in this manner were he not to correct the defect himself within the defect correction period (he didn’t). We also notified him in writing after the works had been undertaken and confirmed that we would withhold his full retention to cover the cost of the works (his retention was actually lower than the third party costs).

Approx. 3.5 years on and we are still receiving letters disputing the issue and now stating “we have had no certificate of contra charge or defects of our work”.

I can confirm that we did in fact issue a Defects Certificate.

Can you please clarify if we are obligated to issue anything like a “certificate of contra charge” under the contract?


Clause 45.1 states that if the Contractor is given access (presumably he could have had access) to correct a notified Defect but does not correct within the defect correction period (which commences at Completion) the Project Manager assesses the cost to the Employer of having the Defect corrected by other people and the Contractor pays this amount. Clause 50.2 the amount due is the Price for Work Done to Date plus other amounts to be paid or retained - uncorrected defects 45.1 is an other amount to be retained.

The contract is quite clear. The Defects Certrificate 11.2(6) is either a list of Defects that the Supervisor has notified before the defects date which the Contractor has not corrected… The Defect Certificate is the notification of any uncorrected Defects.