NEC 3 Defect Notice... or Not?

NEC 3 ECS with a lot of amendments

We’re the subcon laying tarmac binder, we’ve carried out the usual dips and temperature tests throughout the project. Probably circa £400k of binder has been laid over the course of 10 months.

After the 10 months we’ve just been issued a defect notice on the basis a density test hasn’t been carried out. Not tested and failed, the test hasn’t been done. Condemning the binder that has been laid.

Our position is that the WI from the client in the main contract doesn’t require the specific test.
So to notify a defect on the back of a test, that isn’t required, not being done is rash.
And that if the test was required after such a long time this should have been notified much earlier, carrying out the test now would disrupt the works.

The PC is refusing to rescind the defect notice, stating that good industry practice requires the test.
And refusing to update the WI to include for this test.

So we’re at a bit of a standstill, we cant progress the works because surfacing ontop of defective binder would be counter productive.

Is there any way to alleviate this log jam ?

Oh dear its never good when someone mentions there are a lot of amendments as usually these will make the subcontract heavily biased in the Contractor’s favour.

You should notify this as an early warning and hold a risk reduction meeting with the Contractor to find a way forward.

It doesn’t sound like the Defect is valid, they can’t say the binder is defective without proof and they way they should prove it by carrying out a test. So why not agree in a risk reduction meeting for the test to be carried out, if the Contractor wants you to do it then ask for an instruction otherwise they should do it themselves. If the test finds a Defect then you will be liable for correcting it at your own cost and no CE if you did the test, if there is no Defect then you would be entitled to a CE.

As you rightly point out if the Subcontract Works Information doesn’t require the test then you don’t have to do it. This said, the term good industry practice has been used so check if this appears anywhere in the subcontract to give it more meaning to ensure this position is sound.

If the works can’t be progressed due to this issue then liability for any delay and associated costs in relation to the remaining works entirely hangs on establishing if there is a Defect or not. As you say it’s late in the day for the Contractor to bring this up.

From a commercial point of view you may want to weigh up the cost and hassle of just doing the test at your own cost versus the cost and hassle of disputing it with the Contractor. Whilst it may not be in accordance with the contract if it helps to break the impasse and it isn’t going to cost much in the greater scheme of things to just do it. If you do this make sure they know you’ve done this even though you weren’t contractually responsible for doing it i.e. take the moral high ground and hope that no Defect is found.