We are working as Supervisor with a lot of delegated PM duties on an NEC3 ECC Option C Contract. The Contractor has installed the gullies that do not comply with Specification or relevant British Standards and therefore are a Defect. The Sub-contractor who carried out the work is also on an Option C sub-contact.
We are advising the Employer that the Defined cost of the work and the work to rectify the Defect is not disallowed cost provided that it is undertaken before Completion. We also advised that had the gullies not been installed the cost of materials could have been disallowed as they would fall under Clause 11.2(25) bullet point six of “Plant and Materials not used to provide the works”, however once they have been incorporated into the road they have been used to provide the works.
The Employer believes that the cost should be disallowed under Clause 11.2(25) bullet point five “Correcting defects caused by the Contractor not complying with a constraint on how he is to Provide the Works stated in the Works Information”.
We contend that this is incorrect as Clause 11.2(19) and associated guidance notes clearly distinguishes the difference between Works Information is information which specifies and describes the works and that which states any constraints on how the Contractor Provides the Works. The additional Defined cost with simply affect the Contractor’s gain share.
Are we correct in stating that a Specification in the Works Information detailing standards to be compiled with is not a constraint on how the Contractor provides the works? Key word being how they provide the works rather than what they actually provide. i.e constraints are physical constraints, things such as minimum air temperatures when works can be carried out?