NEC ECSC: Defects/repairs and costs

NEC3 and NEC4 Contracts Testing and Defects
1

If the Contractor is appointed under the ECSC and is notified of damage he is causing to the works before Completion, but is refusing to repair this promptly (Cl 43.1), is there any mechanism for the Employer to have someone else carry out the repairs and then counter charge the Contractor for the associated costs?

How does this fit if the site has not been handed over and is still under the control of the Contractor, but is open to the public?

The works are within a bus station concourse, which must remain open to pedestrians, but where the Contractor is polluting the seating/handrails with cementitious materials.

2

Under clause 43.1 of the Engineering & Construction Short Contract (ECSC), the Contractor has an obligation to “promptly” do repairs until the Defects Certificate is issued.

While there is no express provision in the ECSC to say that you charge the Contractor for getting others to do repairs if they refuse, it is fairly clear (from what you say) that they are in breach of contract.

Consequently, it seems both reasonable and in accordance with the contract to deduct from the amount due the cost of getting someone else to do the repairs as per clause 50.3 in terms of amount due.