Graffiti damage to unfinished structure NEC3, ECC option A

NEC3 and NEC4 Contracts
1

Hi all after some advise ref some graffiti that has occurred on a structure that the Contractor is in the process of building on an NEC3 option A’.

The site has been accessed and the structure has had graffiti painted on it. Therefore the site was not secure for access to third party/members of public. The overseeing authority who are acting as the Works Examiner, has asked me to raise a defect based on it not achieving the F3 finish required in the works information. The Contractor has rejected the initial discussions on site noting this as not a defect, as there is nothing in the works information to install Anti-graffiti paint. The adopting authority has suggested that this should have some remediation under the grounds of the liability for site security, but when questioned has ignored my initial early warning emails noting a concern since June. Unfortunately the Project Manager has not responded to my requests for advise.

  1. Should this be a defect and if so, on what grounds?
  2. Is the Contractor liable for the damage, as its not been handed over to the client?
  3. Is this a Employer risk?
2

If the works have not been taken over then liability for loss of or damage to the works sits with the Contractor and is an insurable risk (see clause 84.1 and the Insurance Table). If the works have been taken over then this risk transfers to the Employer in accordance with clause 80.1 fourth main bullet point. The Contractor refusing to act and repair the works is a breach of clause 82.1 which requires them to repair damage promptly. Also if they are not going to recover the cost of repair from their insurer then clause 85.4 requires the Contractor to bear this cost as it is their risk.

There would only be a Defect if the Contractor did not effect a repair. Incomplete works aren’t necessarily defective. For example the Supervisor could issue a Defect notification for skirting boards only having undercoat applied, however it would be a fruitless exercise if the Contractor’s programme showed that they were going to apply gloss as well. At some point though this would become a Defect, particularly if the Contractor was showing no intention to apply gloss i.e. the decorator wasn’t programmed to return. :thought_balloon:

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