Is there a ‘right to reject’ defective work?

Does the NEC3 ECC automatically or otherwise give the employer a ‘right to reject’ the work done by the contractor if it does not meet agreed requirements?

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There are a number of different ways of approaching this question but it is perhaps best to start with identifying that there is no direct “right to rejection” but very much the equivalent does exist through the operation of other clauses depending on the circumstances.

A good starting point is to look at the definition of Completion (11.2(2) ) which identifies that the works cannot reach completion until notified defects which prevent use of the works have been completed.

Next you can turn to clause 91.2 which gives right to the Employer to terminate the contract if the Contractor substantially fails to comply with his obligations. The obligations relevant here is at 43(1) where the Contractor is required to correct defects whether or not notified to him.

In the alternative to termination, if the defect is more minor or termination is otherwise not the desired outcome, the Project Manager can assess and then deduct from the Contractor the amount it would to have others correct the defect under clause 45.1

If you are under Option A or B you can also look at the interim payment provisions and particularly the definition of Price of Work Done to Date which requires works to be free from Defects before a payment liability arises.

So, there may not be a “right to reject” but there is no obligation to accept, the Contractor is obliged to complete the works and he cannot do so until defects preventing use are corrected. If the contractor refuses to correct then, if a minor defects the Project Manager can price for and deduct the cost of other correcting the defect or, if major and going to a substantial failure to comply with obligations, the Employer could terminate and the Contractor will be liable for any additional costs to complete.