NEC ECC: Notifying Defects against an accepted Contract's Design

The Works Information required the Contractor to complete a concept design provided by the Employer which included the condition that ‘the completed design must be able to achieve handover’ upon completion. The Contractor submitted his completed design to the Project Manager and the design was accepted.

At handover, it was discovered that the accepted Contractor’s design did not provide for several aspects that the Contractor should have considered within his design.

Can the Supervisor now notify the Contractor of a defect against the Contractor’s design as a part of the works which is not in accordance with the Works Information?

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Using Sub-Clause 11.2(5) main bullet 1, if such aspects which the Contractor did not consider in his design were specifically mentioned in the Works Information then the answer is yes.

If not and the Contractor provides the works in accordance with his accepted design, which technically became part of the Works Information, then the Contractor complied with the Works Information.

Roger, I agree with your answer particularly para 1, but disagree that the Contractor’s design, developed after the contract is signed “technically became part of the Works Information”.

The Contract specifies the design which the Contractor shall provide and are listed in the Works Information.

Accordingly, all designs provided by the Contractor, which the Contract requires, which subsequently accepted by the Project Manager is part of the Works Information.

Some comments on whether an accepted Contractor design becomes part of the Works Information (WI).

The Contractor is obliged to Provide the Works in accordance with the WI, which is prepared by the Employer and may also be prepared by the Contractor.

The Employer’s WI essentially describes the Employer’s requirements and any constraints on how the Contractor is to Provide the Works. The Employer’s WI is identified in Contract Data Part 1.

The Contractor may propose his own WI in Contract Data Part 2. The Contractor’s WI sets out their proposals for works which they are required to design.

Where there is a conflict or inconsistency between the Employer’s and Contractor’s WI, the Employer’s WI takes priority, although the PM may instruct a change which would then become a compensation event.

A Defect occurs where the works are not in accordance with the WI or the works are not in accordance with the Contractor’s design accepted by the PM. However, where the works are in accordance with the Contractor’s design accepted by the PM, the works can still be a Defect under the first part of the definition, that is not in accordance with the WI.

If an accepted Contractor’s design automatically becomes part of the WI then if the works are constructed in accordance with this, it would not constitute a Defect and the Employer would have to accept the works as constructed, even though it was not what the Employer originally specified in his WI.

You could argue that the PM has accepted the Contractor’s proposed design, although the PM’s acceptance of any design does not relieve the Contractor of his obligations and responsibilities under the contract. This leads us back to the Contractor being obliged to Provide the Works in accordance with the WI.