NEC ECC: Accepting Defects - Clause 44.2

NEC3 and NEC4 Contracts Testing and Defects
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I have the following questions in relation to Clause 44.2:

  1. If the Contractor and the PM are prepared to consider the change, in what format should the Contractor’s quotation for reduced prices be?

  2. What considerations should the PM take into account when assessing the quotation for acceptance?

  3. Guidance Notes state: “If the quotation is not acceptable, no further action is necessary”. What exactly does this mean?

  4. Can the process be iterative?

  5. If the PM accepts the quotation he gives an instruction to change the Works Information etc accordingly. Under Clause 60.1(1) such an instruction is expressly excluded and is therefore not a compensation event. What is the reasoning behind this?

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  1. Quotation for proposal not to rectify a defect should be in writing (13.1) and separate from any other communication (13.7)
  2. PM should decide if the quotation is enough of a saving and worthwhile not to get the defect corrected. If something has been installed too small, does it limit future capacity that might be needed and if the cost saving is negligible they might prefer the defect to be corrected.
  3. I think the guidance notes are just getting across the fact they don’t have to accept the defect. Without the accepted quotation and an instruction to change the Works Information to match what has been installed, there remains a defect that they are obliged to correct.
  4. if by iterative you mean can there be more than one quote submitted if they do not agree with the first one then yes. At the end of the day the Contractor has to come up with a saving that encourages the PM to accept the defect, otherwise why would they.
  5. So the Contractor can not claim this change as a compensation event and claim additional cost. The Works Information has been changed to be aligned with what they have installed and nothing else.