If the Employer will incur cost in order to provide access to a Contractor after Completion in order to correct a defect under option C, is this cost recoverable from the Contractor? If so, under which clause can the Employer recover this cost??
The defect correction period is stated as commencing at Completion (for Defects notified before Completion), so in this instance the Contractor is under no particular obligation to correct a notified Defect prior to Completion.
This is an area of Employer risk which is often not considered at the beginning of a project, although could easily cost money for access, for instance where a building is occupied or access is required to an asset in service, such as a railway or road.
If the Employer is able to accept the Defect, a commercial consideration could be not providing access for the Contractor to correct the Defect and deal with the matter under clause 45.2 instead.
The only rights the Employer has in respect of the cost of correcting a Defect is that in the event that the Contractor fails to correct it within the defect correction period, any costs incurred in having other people correct the Defect are assessed by the Project Manager and paid by the Contractor (clause 45.1).
The Employer therefore cannot recover the cost of providing access if the Contractor has or is intending to correct the Defect within the required timescale.