NEC ECC: Option E Defects cost

I wonder if you can help. Under a NEC3 ECC contract structural works were undertaken where a Defect existed where a structural joint in a retaining wall was leaking. The contractor was not in a position to correct this therefore it was deemed to be a Uncorrected Defect. To the solve the problem another Contract covering the fit out works provided a solution internally to mitigate the issue.

My question is: Can the costs incurred by the the client in extra design and construction cost under the Fit Out contract be recoverable from the Structural Works Contractor under a different contract?

The Employer’s entitlement to recover costs in respect of Defects are stated at clause 45.1. The right to do so depends firstly on the Contractor having been given access to correct a notified Defect but not having done so within the defect correction period. In this case the PM has the right to assess the cost to the Employer of having it corrected by other people and the Contractor is obliged to pay this amount.

However it doesn’t sound like the Defect has been corrected by other people, the leaking wall is still leaking and is still defective. This said much will turn on the technical aspect of this and a detailed analysis of what the Contractor’s obligations were in the contract, and why the wall is leaking ( I speak from personal experience of seeing expert witnesses argue about this point).

You could use clause 44 and propose that the Defect isn’t corrected and get the Contractor to submit a quotation for this. Note here though the PM does not have the right to assess if the Employer isn’t happy with the quotation.