NEC ECC: A small area of new pavement construction has settled and is beginning to crack

A small area of new pavement construction has settled and is beginning to crack. This occurs before Completion of the works in an ECC Option A Employer-designed contract.
a. What do the Supervisor and Contractor do next and what measures would follow to correct the Defect?
b. Would your answer be any different if this was Contractor-designed works?
The Contractor wishes to appoint XYZ Ltd as a Subcontractor. The Project Manager writes to the Contractor stating that he believes this would be an unwise choice as XYZ Ltd have performed badly on previous contracts with other Contractors.
c. What could the Project Manager do regarding XYZ Ltd?
d. The Contractor says that if the Project Manager objects to XYZ Ltd he would incur additional cost which he would seek to recover as a compensation event. How should the Project Manager respond?


a. The Supervisor, PM and Contractor should discuss the situation to see if they can agreed what the cause of the issue is. If it is unclear the Supervisor should instruct the Contractor to search for the Defect ie trial holes to ascertain what has caused the settlement. If it was a design related issue then it would not be a Defect.
b. Yes, if it was Contractor design then it would be a Defect.
c. Unless the PM can justify that the subcontractor would not let the Contractor Provide the Works (clause 26.2) then the PM should just record his concerns.
d. as c

Just a point to add to Dave’s response. The PM’s acceptance of a Subcontractor does not shift responsibility for the related management and performance onto the PM, as the Contractor remains responsible for Providing the Works. Clause 26.1 further reinforces this point to state that the contract applies as if a Subcontractor’s employees and equipment were the Contractor’s.


If the search reveals a Defect, and since this was due to the Client’s Design, will the Contractor be liable for correcting this Defect? Isn’t this the Client’s liability as per clause 80? Shall the PM change the Scope to accept the Defect?


If the search reveals a Defect, meaning the Contractor has not provided that element of the works in accordance with the Works Information, then it is the Contractor’s responsibility to correct the work (or the Contractor and Project Manager could consider the Defect being accepted).

If the search reveals that the Contractor has provided that element of the works in accordance with the Works Information then it is not a Defect. It could be a Client design issue but that would depend upon the actual circumstances.

Acceptance or not of the Defect (if it is one) is a matter for consideration between the Contractor and the Project Manager would who normally also involve the Client in any consideration.

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