Hi ALl,
We are approaching the the time to issue the Defects Certificate. We have 3 uncorrected items, which the Contractor has agreed will be done over the next 2/3 months.
I presume we still issue the Certificate (44.3), and highlight the uncorrected defects (46.1). I presume we release the retention (and hold back a small fee we feel is suitable; for the three items)?
Or can we wait 2/3 months until the defects are rectified, and then issue the Defects certificate. But it will be about 15 months after completion.
Thanks
You’ll need to work this out from clause 44.3 e.g. which is the earlier point in time (1) the end of the last defect correction period or (2) the date when all notified Defects have been corrected.
Assuming that the notified Defects were notified well before the defects date then the earlier point in time will be (1) and probably coincide with the defects date in which case the Defects Certificate is issued by the Supervisor at this point. As you say this triggers retention release however X16.2 states that “no amount is retained in assessments made after the Defects Certificate is due to be issued” so you don’t have the right to hold back from the retention.
It might be the case that you agree with the Contractor that an amount is retained until they have corrected the last 3 Defects however strictly speaking there is no contractual basis for this. As you say you could withhold the Defects Certificate however you’d be in breach of contract to do so but again this could be something that you agree with the Contractor. Not ideal but it might get them sorted sooner rather than later.
2 Likes