NEC ECC: Defective works

I am currently administering an NEC ECC Op. A contract procured via a traditional route with contractor design elements. I am in disagreement with the contractor over the status of a defect / claimed compensation event in relation to an element of contractor design.

The Works Information states the Contractor is responsible for finalising the design of the:

• Structural frame;
• Structural connections;
• CLT timber structure;
• Windows;
• Roof and;
• Curtain walling.

With the Works Information stating clearly that the Contractor is responsible for the completion and coordination of these elements with the design team responsible for completing the design on the other elements.

An issue has arisen where the contractors design (the CLT structure) has not been coordinated with the other elements. Resulting in a clash.

The matter is further complicated by the Contractor’s design being accepted by the client’s design team (via delegated authority from the PM for acceptance of design), although this acceptance was late.

The timeline for the disagreement is as follows:

  1. Architect issues his Works Information – it clearly states the founding level of the CLT structure is FFL;
  2. Contractor submits his design for acceptance – it details the founding level of the CLT structure as SSL;
  3. Architect does not respond to the design submittal within the contract period of reply;
  4. Contractor proceeds and erects the structure;
  5. Architect accepts the contractors design after the structure has been complete, caveating it with a comment “appearance only”;
  6. Clash with adjacent structure noticed;
  7. Defect notification raised by the architect.

Fortunately work around’s / changes have been possible on both the contractors design and the client’s design team’s design to prevent major rework, however the changes have had a cost impact.

The Contractor has refuted the defect notification on the grounds of:

  1. The foundation design only allowed install of the baseplate at SSL;
  2. The baseplate design was submitted and accepted;
  3. The contract states that if the contractors design is accepted then the Works Information will be amended to incorporate this change, preventing a defect.

They are requesting the Works Information is changed to suit their design and claim CEs on all the changes to the Works Information.

My understanding of the contract is that these reasons are not valid due to the:

• Condition precedent of the design acceptance procedure – the contractor should not have proceeded and did so at risk, and;
• Clause 14.1, which states that acceptance of the contractors works does not change the contractors responsibility or liability.

This would mean that it is a defect and solely the responsibility of the Contractor to rectify?

What would be the status of the non-contractor designed elements that have had to change to enable the work around?

At a ‘headline’ level your reasoning seems correct for the two reasons you identified AND that any design developed by the Contractor has to comply with Works Information under clause 21.2, regardless of whether the PM accepts it or not.

I say ‘headline’ level though as my experience of these things is that they are far more messy than they first appear !