The Employer is in contract with a consultant (designer) under a PSC Option E contract. Mistakes within the consultants drawings have resulted in numerous CE’s within the construction NEC Option A contract. What action (if any) can the employer/PM take in reclaiming these costs from the consultant?
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Assuming it is an un-amended contract, you would have to be able to demonstrate that the consultant did not, to quote clause 21.2 “use the skill and care normally used by professionals providing similar services to the services”.
While it is on the balance of probability, note that you are the one who has to demonstrate this by producing evidence sufficient to sway the argument against any counter-evidence they produce.
Just to add to Jon’s point which is probably obvious but none the less worth saying. Any such recovery would have to be via the contract that you have with your consultant under PSC option E. There is no simple mechanism to “contra charge” anything that has happened with your Contractor on your ECC contract.
Many thanks Glenn - the recovery via the contract is carried out how? By CE?
Unlikely to be a CE no. Plus you may or may not have had Completion with your consultant at that point. If there is nothing specific in your contract that says you can, you may be looking at their PI, but that is where you need to seek more specific legal advise I suggest.