Hopefully a straightforward question.
Due to Outage unavailability in the electricity network, we have had to postpone access for the Contractor to return to correct notified defects for approx. 1.5years. Is this delay in allowing access a CE to the Contractor or are any costs incurred purely Defined Cost/PAIN?
Assuming this is the NEC ECC form, all notified Defects are required to be corrected by the end of the ‘defect correction period’ (DCP), with the DCP commencing at either Completion, or when the Defect is notified, if after Completion.
You don’t say whether the correction of this Defect is delaying Completion, although assuming that it doesn’t and that the ‘1.5 years’ is after Completion, then the Defect would unlikely be corrected by the end of the DCP, unless your definition of this has been amended in your contract.
If the Employer / Client has not given access to allow the Defect to be corrected it would not be a CE as the procedure at clause 45.2 (NEC3) or 46.2 (NEC4) would apply. The ‘cost to the Contractor’ is often a difficult assessment as it should take account of the commercial relationship between the various parties, including Subcontractors and / or suppliers who may actually be ‘at fault’.
NEC3 Option C - This is before Completion but after Take-Over. The defect was notified whilst the contractor was still on site completing the scope of works. They wasted time arguing that it wasn’t a Defect & trying to convince the Employer to accept it. They have now demobilised from site & still not corrected the Defect, and are trying to claim a CE for the 1.5 years delay in the Employer providing access!