A new build school with the contract let under NEC3 ECC Option A, with the C responsible for the whole of the design and developing it in accordance with the E’s WI provided. Worth mentioning that the C’s liability for design is limited to reasonable skill and care.
The project has been certified as complete and taken over by the E and is now being occupied by the Trust. A potential Defect is being debated concerning the absence of cable management to the fitted furniture e.g. workstations, which the C is responsible for designing and building. The Trust have raised concerns with the lack of cable management to the workstations, with children’s feet becoming tangled in trailing cables.
Given the D&B arrangement, the E’s WI is limited to a strategic project brief, floor plans, performance specifications, etc. The C’s WI is also somewhat limited but embellishes the E’s WI with initial loaded floor plans, isometrics, prescriptive specifications, etc. but naturally there was design development expected and an allowance made in the Total of the Prices.
The C is refuting any potential Defect, arguing that they have provided the works in accordance with the WI. Upon inspection of the WI (E’s + C’s) there is no explicit reference to cable management (which is not to say they are not essential), although it is evident that the small power and data runs beneath the workstations with cable ports provided to direct cables beneath, so potentially a hazard has been designed in. So, in part, they are correct but there could be a suggesting that the omission does not automatically mean the management system is not required. As a competent designer, they ought to have considered what the rooms were used for and developed the design to suit these requirements. These requirements have never altered. To seek clarity, we have requested their designer’s risk assessment to demonstrate that they considered whether cable management was needed, and any hazards presented during the development of the design. At present they are not able and are seemly unable to provide this risk assessment.
Firstly, if the C does not provide the substantiating risk assessment, if it reasonable for the S to conclude that there is a Defect within the design and that despite an explicit reference to cable management in the WI, it would be reasonable to expect it to have been introduced with ‘through’ design development?
Secondly, if the risk assessment is provided and substantiates its exclusion, that’s dispute ended.
Thirdly, if the risk assessment is provided and cable management is required, who pays for this? My understanding of the contract that this would be C’s risk under cl. 60.1(1), although he suggests that its not development its enhancement and is therefore a CE. If it were a Option C contract, I would agree as the direct cost to correct a Defect may be recoverable, but we are operating Option A.
Thanks in advance.
P.S. The S is of the opinion that cable management is requires, has notified a Defect which has not been corrected in the correction period and is about to engage Others to complete.