NEC ECC: Can Contractor claim cost if delayed in correcting a defect that they caused?

NEC3 and NEC4 Contracts Testing and Defects
1

As a Contractor, we have caused a defect and have planned the works to go in and correct that defect. It is option A and we understand that is our risk/cost to correct that defect.

However, we followed the access procedure the Client required us to follow, and the Client prevented us from gaining access on the night due to emergency works elsewhere on the network. The Contractors cost for that lost shift is £3k, and we need to arrange another night to correct it. Is this recoverable as a compensation event? I understand the defect correction itself is not a CE, but the fact we lost an additional shift in doing it was not our fault and the Client could have avoided?

2

If:

  • you had put this in your programme which had been accepted then it could potentially be a compensation event under 60.1 (2), (3) or (5) or
  • there are provisions in the Works Information / Scope regarding correcting Defects which you followed or give you certain rights which were broken, then it could be a compensation event under 60.1 (5) or
  • if it results from an instruction to stop or not start work 60.1(4) or
  • the Project Manager changes a decision previously communicated to you 60.1(8).

So ‘Yes’!

3

Thanks Jon - that sounds sensible, except could the Project Manager reject the principle it is a compensation event under 61.4 as it is an event that arises due to the fault of the Contractor? I get the lack of access was not Contractor fault, but the fact they are having to go back in in the first place IS their fault. Could they still use this clause?

4

No, because the ‘Defect’ is not the compensation event. It’s the fact, for example, that they gave you access , you tooled up, and then the PM changed a decision or instructed you to stop. The ‘changed access’ or whatever circumstance caused the cancellation does not arise from your fault.