I have an issue with a Contractors temporary works not being fit for purpose. They are proposing dismantling what they have constructed for an alternative solution (i.e. acknowledges that it doesn’t work). I feel the costs of the first temporary works system (which could amount to 15% of the whole scheme costs) should be disallowed.
My argument would be that the definition of C11.2(25) states “Disallowed Cost is cost which the Project Manager decides should not have been paid to a Subcontractor or supplier in accordance with his contract”. The temporary works was designed by a sub-contractor and supplied by another sub-contractor. I feel the Contractor should be able to pursue damages themselves with the designers.
The point about “in accordance with his contract” I am relying on the c11.2(13) which states “To provide the Works means to do the work necessary to complete the works in accordance with this contract and all incidental works, services and actions which this contract requires”.
Am I correct that this clause will allow me to disallow costs associated with the abortive temporary works design build or am I missing something?