We have a defect to correct. It’s within a secure facility and our lifting Contractor is not allowed access to remove the part in question. The Employer is removing the part and delivering it back to us to correct. We know our lifting company are a lot cheaper than theirs. Are we not being allowed access? The employer is proposing to charge us for their lifting company. We have been given part access but not full access. I am proposing we should be paying what it would cost us to correct but they have rejected that saying they have granted us access.
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Surely access is access, it’s either been given or not. Clause 43.4 requires the Employer to give “access to and use of a part of the works” and it doesn’t sound like they have, they have removed Plant and Materials from the works. Regardless as to the fact that it’s a secure facility they still need to comply with the contract. Presumably there is a contractor with responsibility for maintaining the lifts at regular frequencies who is given access so there’s no difference in principle from this.
Unfortunately, this all said and done, if this is the course of action they have chosen, despite the fact they are in breach of contract for preventing access, if they assess an amount and you disagree, the parties only recourse to resolve this is through adjudication. Inevitably neither party will want this so a commercial settlement would be more preferable for both.
I agree it should be simple but they have given access to the part but not the process of removing the part which is where the money is expended
Would the cost of correcting f the Defect not have to be valued in accordance with clause 45.2 so that the cost would be assessed based on what it would have cost the Contractor to correct it, not what it actually cost the Employer because they didn’t grant access.