NEC3 ECC: Does use define acceptance by the Client

We are working in a Depot. Part of the works is a new access road into the Depot. This element of the works has been completed, but handover has yet to be formalised. The Client (his agents, as third party supply wagons) is running heavy vehicular traffic along the road and in a few places the new kerbs have been hit. Does the Contractor remain liable until handover is complete or is he absolved of any damage by virtue of the fact that the Client and his agents are using said road?

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Clause 35.2 makes it clear that the Employer may use any part of the works before Completion has been certified. If he does so, he takes over the parts of the works when he begins to use it except if the use is for a reason stated in the WI or to suit the Contractors method of working.

If no reason is stated in the WI then it is 60.1(15) compensation event as long as this is before both Completion and the Completion Date. if the Employer uses a part of the works when the Contractor is in delay e.g. planned Completion is later than the Completion Date then this is not a compensation event.

Take over signifies the transfer of responsibility to insure the works. On a practical point it is worth ensuring that records of the condition and state of the road are made when the use starts and on a regular basis to try and mitigate arguments about damage to the works and who caused it.


Thanks for this. I tried not to make it Contract Specific and rather as a general question, as I wondered if under law there may have been a consensus of opinion between varying forms. This is a CECA form of Sub-Contract… However, as I flit across a number of forms, I shall log this for future reference.