NEC ECC: Disallowed Costs due to Temporary Works Error under option C

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?

This is a fitness for purpose -v- skill and care argument in disguise as an issue around temporary works.

Why do I say that? Basically this comes down to whether the design ( and then installation) of temporary works was in accordance with the contract. If it were under a skill and care type obligation then the works may in fact be in accordance with the contract, albeit defective, and therefore disallowance is not possible. Alternatively, if the test is a fitness for purpose one then the work clearly are not fit for purpose and therefore a disallowance is possible.

In order to answer this question you need to understand the nature of the problem (design or installation) and the nature of the obligation of the subcontractor. Unless you are clear on this points I would treat this as a defect, which is payable before completion unless there has been a process failure.

Of course under Option C any wasted cost should be dealt with by the incentive share at the end of the works.

Hello Rob, thanks for the response. The issues (confirmed by the Contractor) is as a result of a poor temporary works design (the installing sub-contractor called it a “dangerous design”). The contract doesnt stipulate in anyway what the temporary works need to be and this is completely left to the Contractor choice. It is for this reason I believe it a fit for purpose issue.

In this instance what would my argument be within the NEC clauses? Is it as I have surmised?