NEC ECC: Clause 45.2 - non access to correct defect

NEC3 and NEC4 Contracts Testing and Defects
1

"If the Contractor is not given access in order to correct a notified Defect before the defect date the Project Manager assess the cost to the Contractor of correcting the Defect and the Contractor pays this amount.”

With regards to the above clause (45.2 – Uncorrected Defect) – Option C contract, we (The Contractor) under option C have some defective works to correct however the PM will not allow us access to correct. Instead the PM is assessing the cost to correct. However we believe this figure is inflated and could correct for half the cost. As per the above clause we are not being given access prior the defect date and the PM is assessing the cost (much larger than we anticipated) We find this unfair as for ourselves to correct the defect would be much cheaper. Believe the PM in using this clause to punish us. How is this clause supposed to be used? Surely not as being done so?

2

The clue is in the words in this clause 45.2 as opposed to 45.1 I.e. “the cost to the CONTRACTOR of correcting the Defect” where as in 45.1, it is the cost to the Employer.

So you should demonstrate to the PM why it would cost you this amount and point out the difference between 45.1 and 45.2.