NEC ECC: Defects arising from poor workmanship

NEC3 and NEC4 Contracts Testing and Defects
1

New build project on a greenfield site over a 90 week contract period. Procured using a two stage open book approach and let under the NEC3 ECC Option A. C responsible for design and build of the development. Project now certified as complete but prior Completion a Defect was notified concerning quality of workmanship associated with asphalt surfacing, kerbs, level control, etc. On reflection we were not satisfied with the extent of open joints, fretting of material, open coarse surfacing, surface or regulations, ponding, finishing to ironworks, excessive joints, etc. Core samples undertaken showed air voids in excess of County design guides (not stated in the WI) and British Standards (only covers designed mixes).

Five months after notification, after much pursuit of a solution, the C decided he wished to contest the notifications concentrating his efforts on the air voids whilst dismissing the workmanship as a matter of opinion.

NB: The E’s WI was generally void of specific requirements but the C’s WI contained plans and sections detailing surface finishes and a note that “all works were to comply with the relevant British Standards” and it so happens there is a BS for the transporting, laying and testing of asphalt surfaces.

The C has argued that the BS is only relevant to designed mixes and because the mix specified is a recipe mix it is except from compliance with the air void levels contained within. Any thoughts on this?

An industry expert was commissioned to undertake a condition survey and has verified that the workmanship demonstrated does not fully comply with the BS due to the reasons stated above. Verifying our opinions.

Complicating matters, it is evident that the S/C we accepted under cl. 26 to do these works only laid the base courses. This S/C was Sector Scheme Approved and compliant with BS. Providing quality assurance documents including test certificates e.g. Nuclear density tests. The need to be Sector Scheme Approved was, we believe a requirement of the specification between the C and S/C. This is not a contract document between E and C. The binder and surfaces were subsequently let to another (presumably cheaper) S/C who don’t have the same QMS procedures. Proposals for correction have been presented although they are no more than a patching plaster. Does the E have a right to insist that the surface course is removed and replaced? Can we insist that the previously approve S/C undertakes the corrections? The C is so embedded financially with the non approved S/C they are insistent they do any repairs but why should the workmanship be any better? Can we refuse? Should a Defect notice be issued for lack of compliance with cl. 26?

We have repeatedly requested S/C conditions of contract, dip sheets, sequencing plans, material certificates and all have been refused. What can the PM do in this instance?

A level survey also shows that the as-built differ to the levels in the WI. Again, this is being dismissed as design development.

2

You seem to have a lot going on!

I suggest that you should revisit the Defect notification and check that it covers what you consider the issue(s) to be and is clear. If unclear then I would issue a new notification or series of notifications if there are different issues. From your comments there appears to be a variety of issues ranging from level control to material compliance each of which I would treat separately.

Regarding the as built levels, the Contractor cannot unilaterally carry out design development. If the levels, when allowing for tolerances, are not in accordance with the approved design then it is a Defect.

It appears that you have taken advice from a subject matter expert and they have confirmed your position in respect of compaction, which is good. Have you shared this with the Contractor.

I think the matter over the second subcontractor may be something of a red herring, the Contractor remains responsible for providing the works in accordance with the Works Information (Scope).

You can point out to the Contractor that he is required to obtain approval prior to subcontracting and that you have reservations that the proposed subcontractor will not be able to Provide the Works and it will potentially result in a further Defect. You could refuse, see cl 26.2.

In respect of the Defect correction measures being proposed by the Contractor (“patching plaster”) you will need to consider what is set out in the contract and on that basis what is acceptable.

Having checked the notifications given, I would suggest that you make a clear list of the issues and have a meeting with the Contractor to agree a solution or that you will have to engage others to correct the Defects.

3

Thanks Dave.

Agreed fully with the development of the levels. This should be formally requested as a change following thorough due diligence.

The notifications provided so far include a marked-up plan which showed the location and nature of each issue. The report prepared by the subject matter expert has been shared with the C to justify our belief that the works were not carried out in accordance with the British Standards. It may be that a further notification can be issued for both the independent survey and the level survey. Agreed?

Would you recommend that a Defect notification is issued for the appointment of a S/C that has not been accepted? I appreciate that I can not change something which has already happened. This would provide a mechanism for the E to be reimbursed as consideration for such breach and the additional fees he is incurring to remedy the issues. What would we be looking to achieve by pointing out to the C that he is required to obtain approval prior to subcontracting and that you have reservations that the proposed subcontractor will not be able to Provide the Works and it will potentially result in a further Defect? He is financially so deep in bed with the ‘wrong’ S/C that he is unlikely to take heed.

Communications have been continuous with the C but at present there is no meeting of minds as to what is an acceptable solution. They feel they can get away with a lighter touch repair than we consider acceptable.