Under an NEC3 Contract, the Contractor has an obligation to design, install and remove temporary accesses to facilitate the installation of permanent works. The temporary accesses shall be used by both the Contractor and Others throughout the course of the project, and their requirements for the accesses have been provided within the Works Information.
The Contractor has provided a typical design detail to the Project Manager. However, there are areas where the accesses have not been installed exactly as per the Temporary Works Design, albeit not in a way which will affect their performance.
The Project Manager has notified a Defect for the ‘missing’ elements from the TWD. However, the Contractor believes that the Temporary Works are not part of the works, as they are not part of the permanent installation, even though they are detailed in the Works Information. Further, the Contractor believes that they have the right to alter or vary their Temporary Works, so long as they still fulfil the requirements of the Contract, and therefore, the Defect is not valid.
Is this a valid Defect notification?
Yes - The Contractor is required to do the work necessary to complete the works in accordance with the contract and all incidental work the contract requires. If the temporary works are specified in the Works Information then the Contractor is required to provide them in accordance with the Works Information and if the Contractor has not then they are a Defect.
Hi Dave,
Thanks for the response. I perhaps could have been clearer - the Temporary Works fulfil the requirements stated in the Works Information. The Project Manager is of the opinion (with which we disagree) that they do not match the Temporary Works Design, and has raised a defect on this basis. We argue that the Temporary Works Designs, although required by virtue of Temporary Works being our responsibility, are not part of the Works Information.
Hi. I don’t believe it is a Defect but if you asked the Project Manager to accept the Defect with no change to the Prices would he/she.
Did you submit the designs for approval.
TW Designs were submitted for information only.
Cost of rectifying the defect isn’t an issue in this instance, although there are other cost considerations (on our part).
Are you sorted now with the way forward
Yes, but the underlying principle still needs to be agreed.
the underlying principle will depend upon what is prescribed by the Works Information. If it is explicit in terms of what is required eg access specified as 40m x 20m capable of taking X loading then that is what is required. If the Works Information is based on an output eg access capable for x vehicle movements/day and that is what you have provided then its not a Defect.