I am after some advice please, we have been engaged in an NEC contract as a sub contractor where we designed a building to the clients works information. The design GA and elevations were agreed and accepted by the client. Now the client and us have noticed that an element of the building i.e window is not ideal as such and needs alterations made to it. where does the liability lay, with us as we designed it or with the client as they accepted our design as it was? We believe the building is fit for purpose and albeit we need to make a slight amendment to a high level window.
Any advise would be great.
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Can you confirm whether you are using the PSC or ECC and also whether Completion has been achieved?
Broadly speaking it really depends on why the window needs to be changed or is not suitable. If the window met the Employers requirements in the Works Information then it is not a defect and it would be the Employers issue. If however it did not meet (with hindsight) the Employers Works Information requirements then whether or not they accepted your design it WOULD be a defect. This would then be something that you would have to correct at your cost (depending partly which option you are working under and whether Completion has been certified yet or not).
Argument may or may not change depending on whether or not you had X15 included as a secondary option. With X15 your design is limited to “reasonable skill and care” whereas without it, design liability reverts to “fit for purpose”. The latter is a lot more subjective and more games can be had in court.
The works information originally given to use from the client was too high a spec, so we were asked to value engineer scheme to meet the clients budget. we did this in line with what the client was trying to achieve and then issues GA and elevation arrangements of which were approved. Only now have we highlighted that a window either requires window obscure film or needs replacing to a high level window. In relation to secondary option X15 this was not included.
Difficult to answer without seeing the definitive detail but again a Defect is something not in accordance with the Works Information. It therefore depends on who’s liability the revised design was. If you were suggesting something for the Employer to review and accept and they were still retaining design liability then it sounds like their issue. If your proposed design was in some way for your benefit and it was intended that you were taking on the liability then potentially it would be a defect for you to correct.
Sounds like this one is likely to fall into the “grey/subjective” category.