NEC ECC: The Project Manager is instructing the Supervisor to raise Defects

NEC3 and NEC4 Contracts Testing and Defects
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Background – We (the Contractor) have to handback land adjacent to our elevations to allow a separate main contractor (also working for the Employer but who are not stated in our contract) to complete their infrastructure works. We will not get access to our elevations until after our agreed completion date, however we have been through this scenario several times and historically we negotiate with the other main contractor to get access to complete our works. The incomplete works are on our programme (which is not accepted) and we are still a few months from completion.

In this instance I assume the NEC intended an EWN to be raised to resolve the issue of our access? However, each time access is lost the PM instructs the Supervisor to raise a Defect for each item which is incomplete, based on the assumption that we won’t have access until after completion. (The Supervisor has stated in writing they have been instructed to raise the incomplete works as a Defect). This raises three questions;

  1. Can the PM instruct the Supervisor to raise Defect notices? The term ‘instructed’ implies that the Supervisor is not impartial. Which raises a question mark over the validity of the Defect notices.
  2. Are these ‘Defects’ within the definition of the NEC? The PM has a tendency to instruct the Supervisor to raise Defects for process infringements rather than works which are actually Defective.
  3. How does the contract protect the Contractor from this? As you can imagine we are being criticised for having a large number of Defects and the administrative burden has increased tremendously. In effect we are running two processes side by side for the same outcome i.e. the process of showing the works to be completed on the programme, is now duplicated by the Defects process. Additionally because these are classified as Defects we are being asked to provide a proposal for their rectification (presumably under Cl 22.1). The application of the contract in this way appears to not be in accordance with clause 10.

The key issues here relate to the impartiality of the Supervisor and whether the PM is acting in a ‘spirit of mutual trust and co-operation’. How can we protect ourselves?

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In normal circumstances the Project Manager does not, and probably should not, formally instruct the Supervisor to notify defects. Although one entity (company or person) can take on both roles, if the contract has not been set up like that and there is no explicit ability to change to that format it may be prevented (see Scheldebouw -v- St James).

Any work that does not comply with the Works Information is a Defect. That would, in the broadest sense, include work not yet carried out. However, using the contract terminology in that way is wholly unhelpful and can often mask significant problems at the relationship level between the parties.

The contract doesn’t really give any direct protection for this. However, you obviously only want and need to run one process. Your choice is either to ignore the defect process being adopted, after explaining that is what you will be doing and why (possibly by way of an EWN and risk reduction meeting) or you simply align the two process into one single process.

Is there a breach of 10.1 is a difficult question to answer without more detail. The answer is probably not as the PM is acting as stated in the contract, which is the first part of 10.1 and should not to be forgotten. Even if that weren’t the case, I do not believe poor practice equates to a failure to act with mutual trust and cooperation.