NEC3 ECC: Does the notification of a defect automatically require a response without specifically asking for one?

I have raised a number of defects on a contract and on some I have not used the words - ‘‘I require a reply’’ or specifically asked for a reply. Does this mean I am still entitled to one and after 7 days (the stated period of reply for this contract) the Contractor defaults? The Contractor in question has brought in an arbitration expert early on WITH this project, despite repeated professional requests for their simple resolution proposals. This arbitrator insists some of the defects do not warrant an answer as I have not specifically asked for one?

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Clause 42.2 identifies that the Supervisor and Contractor have a duty to notify of any defects they discover. The action, under 43.2, is then on the Contractor to correct the defect or potentially under 44.1 propose that is accepted. These clauses don’t talk about replying to the notification at all. Therefore 13.3 which gives the period for reply is not engaged.

However, a notified defect is likely (almost inevitably I would say) to tick one or more of the requirements for an early warning notice under 16.1. Therefore, while there may technically be ground to say a reply is not required to a notification of defect an early warning should follow.

It does sound however, like you need to try and change some behaviours so getting into a risk reduction meeting as soon as possible to talk about getting back to a more team based approach seems appropriate.

In answering this question, I am assuming you are the Supervisor or have been delegated his / her powers under the contract.

Under clause 42.2, "the Supervisor notifies the Contractor of each Defect as soon as he finds it and … ". I am assuming you are notifying the Defects under this clause as opposed to clause 40.3 where you do a test or inspection and then notify the other of the results.

Under the contract as written, the Contractor has no obligation to correct a Defect until the end of the ‘defects correction period’ (in italics) which would start at Completion. That is unless the Defects were so major that they prevented the Employer from using the works or Others from doing their work - see clause 11.2 (2).

There is no specific requirement under the contract for the Contractor to respond to your notification of a Defect even if you say “I want a response” so strictly speaking, by the contract wording, the Contractor is right.

If you believe that it is a major Defect which if lefty unaddressed might delay Completion or impair the performance of the works in use, then the Project Manager - not you as a Supervisor (which seems a bit of an oversight) - can notify and early warning from which actions etc can flow.