NEC ECC: Defects, Burden of Proof

NEC3 ECC Option A Contract.

Issue is with notifying defects.

We’ve had an issue a couple of times that stems from a notified defect that doesn’t have a corresponding back up information showing where and how it inst compliant with the WI. The PM view is generally that if a defect is notified, it is a defect, until we the contractor can prove it isn’t.

Generally this leaves us in the position of trying to prove a negative, which is difficult.

For example; Supervisor inspected and notified that service run has become corroded due to the build not being watertight, and requires replacement. On closer inspection by the M&E contractor the service is just dusty, with not unexpected verdigris, and will be wiped down before insulated. Supervisor is however sticking to his guns that the service requires replacement. The WI makes no reference to this situation. Would it be unreasonable to ask the supervisor to perform a more robust test to evidence a defect than a visual inspection from 3m away ?

Is there a mechanism in the contract to deal with costs / disruption incurred dealing with a defect that isn’t a defect. Or could potentially we have to deal with multiple such situations that generally result from difference of opinion?

As this is a civil contract, you do not have to ‘prove’. It is on ‘the balance of probability’.

So the Supervisor asserts from a broad brush inspection that the service run has become corroded due to the build not being watertight and notifies a Defect. In the absence of any counter-evidence, there is a Defect.

Your M&E specialist does a more detailed inspection and concludes otherwise. I.e. there is stronger counter-evidence, so the balance of probability swings in your favour.

The Supervisor needs to do a similarly more detailed inspection and hopefully come to a similar conclusion as your specialist. If this is not the case, then I suggest a more specialist M&E inspector is called in to look at a range of a matters. Note that if they find in the Supervisor’s favour, then you will have to pay under clause 40.6 (NEC3) or 41.6 (NEC4).