The Employer has corrected an alleged Defect under an ECC contract on part of the works which has been taken over. The Employer has then notified the event to the Contractor. What actions can the Contractor take to mitigate damage to the works and also costs that may be levied against him by the PM?
Assuming an un amended NEC contract
The Employer via the Supervisor should have notified a Defect under clause 42.2. If they had done so the Contractor would have had the opportunity to correct the Defect at no cost to the Employer.
Having failed to notify the Defect or have given the Contractor an opportunity to remedy the Defect, the Employer will not be able to claim damages for remedying the Defect.
What should have happened is that the Supervisor notifies the Contractor of the Defect (42.2). If the Contractor is given access but fails to correct within the defect correction period the PM assess the cost to the Employer of having the Defect corrected. If the Contractor is not given access to correct a notified Defect then the PM assess the cost to the Contractor of correcting the Defect. Noting that the defect correction period runs form when access is given to the Contractor.
Alternatively the Contractor or PM may propose to the other that the WI is changed so that a Defect does not have to be corrected (44.1)