Damage to Plant and Materials by subcontractor - a CE?

NEC3 and NEC4 Contracts Compensation Events
1

A subcontractor is being employed on an M&E contract under Option A of the NEC3 to install Plant. A situation has arisen which perhaps was not for-seen as follows.

Some Plant has been installed - in this case some electrical cabinets - and consequently the subcontractor in erecting scaffolding near by , has inadvertently damaged these cabinets. The Contractor considers that the subcontractor should have protected these cabinets from damage; the subcontractor argues that once the cabinets have been installed by him, he is no longer responsible and it is up to the Contractor to provide reasonable protection. The Works Information makes no particular reference on the subject but the Contractor has issued a CE where the costs for the repair will be charged to the Subcontractor.

Is it correct to do this per 63.10 ? Are there any core or main option clauses which have a bearing on this situation as to the responsible party? The bullet points contained within clause 80.1 seem to me to be too vague.

1 Like
2

Antonia : Can you confirm that it is the NEC3 Engineering & Construction SUBcontract that is being used ?

3

Yes, the NEC subcontract is being used.

4

Clause 80.1 lists out the Employer and Contractor risks. Focussing on the 4th main bullet point, from what you have said, as a Contractor I would argue that either :
I have not taken over the subcontract works and therefore it is still a Subcontractor risk; or

  • if I have taken it over, then it results from the activities of the Subcontractor after take over (3rd sub-bullet).
    Consequently, it is a subcontractor risk. This is reinforced by what the insurances the Subcontractor has to take out under the insurance table.
5

Given that the works will not be taken over until completion of the whole, the “non take over” option you mention seems to be a resonable stance. Thankyou.