Is it possible to instruct others to undertake defect correction works on behalf of the Subcontractor if said Subcontractors performance is unsatisfactory ?
I am involved with a project which is currently in the defects liability/maintenance period (not technically NEC terms granted) whereby we are fast approaching the defects date. We have a particular subcontractor who’s performance throughout the project has been poor and subsequently we now have outstanding defects to correct. The subcontractor has already undertaken some remedial works on site, however some of the works have either been unsatisfactory or somehow they have managed to create more defects in the process through damage.
As previously stated we are fast approaching the defects date and given the subcontractors previous performances I would like to instruct others to undertake any/all defects notified to the subcontractor in order to establish confidence that we can achieve a defect free site prior to the defect date.
Arranging access for the site is not straight forward therefore we may well only get one more shot at remedial works before the defects date which again is why we need to be confident that the defects will be satisfactorily corrected.
I’m aware the NEC contract does not stipulate a number of times that a contractor/subcontractor can fail to correct a defect - but given the performance to date and the aforementioned info above is there any mechanism whereby we can notify the subcontractor that we propose to instruct others to undertake the defect works and will offset the cost against their account/retention ?
Your thoughts would be very much appreciated particularly from a legal standpoint.