NEC ECC: Cracks in paving construction ECC Option A Client Design - is this a defect?

We’ve got an area of paving construction which has settled and is beginning to crack now. We are under NEC4 ECC Option A Client-designed contract. This is happening now which means is before Completion of the whole of the works. What should I do as a Supervisor and what does the Contractor have to do according to the contract? Is there any clauses that we should adhered to? if it were a defect, what clauses in the contract should I (Supervisor) and the Contractor be adhered to?

The second question … I was wondering if it would be the same if it was the Contractor who designed the works?

It appears that the cause of the cracks has not yet been established i.e. design or workmanship / materials. You should therefore use your powers to instruct the Contractor to search for a Defect under clause 43.1 explaining your reasons.

If a Defect is found then as Supervisor you notify this to the Contractor under clause 43.2 and the Contractor is liable for correcting it under clause 44.1. Failure to do so may lead to the PM not being able to issue the Completion certificate if the Defect prevents the Employer from using the works and Others from doing their work.

If no Defect is found then the Contractor is compensated cost and time under clause 60.1(10).

If it was the Contractor’s design then there would be no need to establish liability first, you would just notify notify under clause 43.2.

Just to add to/clarify Neil’s comment, it the Contractor has built it in accordance with the Works Information (which will probably include method related standards), then it MIGHT not be a Defect (with a capital ‘D’) as defined in the contract if the case of cracking is inherent in the design. Consequently, to correct it, the Scope (as you say it is NEC4) would need changing.


If the search reveals a Defect, and this was due to the Client’s Design, will the Contractor be liable for correcting this Defect? and is this issue can be originally considered as a Defect? knowing that the 3 bullets under the Defect clause 11.2(6) do not apply here.
Isn’t this the Client’s liability as per clause 80?


No, the Contractor would not be liable in this instance the Client would be. In order to get it rectified the PM would have to instruct the Contractor to correct it which would entitle them to a compensation event for cost and time. Whilst it is a defect in the general sense of the word it is not a Defect under the contract. Yes, Client is liable in accordance with clause 80.1.

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