Under a NEC3 Option C contract the Contractor has not installed the works as per the Accepted Design therefore it is a defect.
The defect correction process under section 4 states that there is the possibility of correcting, accepting or it may be left uncorrected by situation.
Is it possible to re-submit a new design for acceptance to the Project Manager that would not essentially “correct” the defect to as per the previously Accepted Design but would still meet the requirements of the works information.
Example a cable cut too long now does not sit in the previously accepted route path however it is terminated at both ends now. The cable could be moved 5m to the right of previously agreed route and re-verified through design to show compliant with WI constraints. WI does not constraint route path/direction.
I just want to seek a bit more clarification - I think what you’re saying is that the works, as installed, comply with the WI, but do not comply with the accepted design and therefore under the second bullet point of 11.2(5), it is a Defect?
If that is the case, my initial thought was to just accept the Defect under clause 44 with a zero quotation, but of course that only relates to a failure to comply with the WI (as the remedy requires a change to the WI).
On that basis, your suggestion for the Contractor to submit a revised design, the same as that installed, is probably the most sensible.
The cable was not yet fully installed but once moved into its final (re-design verified) position with the additional 5m would be compliant with WI just not with the Accepted design.
This would not be acceptance of a defect as we do not need to change the works information as you state.
If a PM was to request the cable be re-terminated to make the route as per the Accepted design - could this be deemed as constraining the Works Information and an entitlement to a CE? Even though it would be technically making the Contractor correct the defect to the Accepted Design rather than an alternative design compliant with the Works Information.