We are operating under NEC 3 Option D Contract.
The Contractor’s subcontractor will be terminated to due to substantial defects in the subcontract works. Under the subcontract agreement, the contractor should have issued a notice to repair the defective works within 60 days upon receipt of the notice. However, no such notice was issued by the contractor to its subcontractor but instead repair the defective works itself with little assistance from the subcontractor but only for a short period of time. The subcontractor’s team was instructed by the contractor to demobilized due non-availability of work areas. Meantime, the liability for the repair and consequential loss is now the subject of a dispute between the Contractor and its subcontractor.
The Contractor intends to hire a replacement subcontractor to complete the remaining works. However, the increase in the subcontract price from former subcontractor’s price to the prospective subcontractor is substantial.
Inasmuch as the subcontractor is treated as the contractor for the works under NEC, the default of its original subcontractor is considered by the Project Manager the default of the Contractor.
Can the Project Manager, disallow the increase in costs of the subcontract works and the cost of repairs of the defective works?