I am working on an NEC Short Form contract. The contractor has completed the Works within the works information but has not provided relevant building control documentation. Do i have to issue a certificate of non completion and are damages applied until all this information is provided?
If the Works Information/Scope requires the Contractor to provide information, I suggest you notify a Defect.
If the Works Information/Scope doesn’t require the Contractor to provide the information and you want it to do so, you need to issue an instruction changing the WI/Scope, which would be a Compensation Event.
Under NEC there is no certificate of ‘non completion’. Under the Short Contract there is no Project Manager, so the Employer/Client certifies Completion to the Contractor within 5 days of Completion (ie. completion of the works as stipulated in the WI/Scope).
Dave, if the Works Information says to provide the relevant building control sign off, and they have not. How is it possible to sign Completion. Are all the works not complete?
You need to notify that as a Defect, if you have not already done so.
Completion is defined in NEC4 ECSC Clause 11.2(1) as when the Contractor has completed the works in accordance with the Scope except for correcting notified Defects which do not prevent the Client from using the works or others from doing their work. I think that, except for terms such as Scope being Works Information and Client being Employer, the definition is the same in NEC3.
The remedy for the Contractor not correcting the Defect is not the deduction of delay damages, but Clause 44.1 which says that the Contractor pays the cost of having the Defect corrected by other people. You haven’t stated what information hasn’t been provided, but the cost of getting somebody else to provide that could be very considerable and would, I think, be sufficient incentive for the Contractor to provide the information.