NEC ECC: Defect notification and administration

I would be grateful for some advice.

We work for a main Contractor.

For 2 years Defect Notices have been raised by the Supervisor to us via a template on an EDMS in accordance with the Contract/WI (the requirement to use the EDMS has been rigorously applied by the PM…).

Following Takeover of a Block of apartments, the Supervisor has changed the process for administering Defects and we have not been instructed the change by the PM. (The Defects Date is 12 months from Completion).

The Supervisor is now passing a spreadsheet of Defects from the Employers FM team to us by email.

In summary;

  1. The Defects raised to us by the Supervisor are not being checked by the Supervisor, which means the majority are not Defects as defined by the Contract.

  2. The timescale to correct a Defect has been reduced from 4 weeks to 5 days.

  3. The communication of the Defect Notices has changed from individual notices to multiple defects listed on a spreadsheet. (This make administration to our sub contractors more onerous).

  4. The communications from the Supervisor are now by email, but previously we received a PMI which instructs us to only use the NEC templates on the EDMS.

  5. The PM has provided a single blanket communication stating that the Employer provides access to correct the Defects and considers he has discharged cl 43.4. Since there are tenants in the apartments and access is not guaranteed we are unsure how this affects cl 45.

The PM is now sitting on cl 43.1 and requesting we correct the Defects regardless of the changes.

(It is probably worth noting that the employer is withholding a %age of our payment each month for incomplete works based on the total value of the Defect Notices).

Views?

I’m sure you will get multiple answers for this one as there are quite a few issues to consider, but here goes.

Firstly the EDMS system, assuming this is an electronic document management system used to upload contract communications, which you say was instructed by a PMI. I am not sure what your contract says but this may be a change to the conditions, unless the Works Information / Scope deals with the detail. If communications are now being submitted in a different format (email) then it may still be valid, as it is in a form that can be ‘read, copied and recorded’ although there may be an issue with the ‘place of notification’ under clause 13.2.

Although Defects are notified, which also means to be communicated separately, as Glenn has recently commented, this does not mean that notification of multiple issues cannot be included on a single communication, especially where they cover the same subject, that is Defects. You may wish, however, to confirm with the Supervisor the nature and content of received emails, which may make the Supervisor take a little more responsibility for their actions.

The access issue is not whether a communication states this is or isn’t the case but whether a sensible opportunity to obtain reasonable access has been provided by the Employer. This can be a disputed area, particularly where a building is occupied and you are required to liaise with the occupier to obtain the necessary access, often with ‘frustrated attempts’ to gain access. Perhaps document this as a contemporaneous record for future reference, as the provision, or not, of access by the Employer determines the assessment of cost.

The defects correction period is stated in the Contract Data and can only be amended by a supplemental agreement.

Lastly, the withholding of money by the Employer must be associated with a valid Payless Notice by the ‘prescribed period’ or you should be paid the certified amount. The Employer may not be within their rights to actually do this anyway, especially as correction of Defects after Completion is a disallowed cost under certain Main Options.