What is the contractual remedy if the Supervisor fails to issue, or is late in issuing the Defects Certificate?
If issued late should this be back dated to the Defects Date (if no defects have been notified) therefore triggering the assessment date, as stated in cl 50.1, from the Defects Date rather than the date when the Defects Certificate was actually issued?
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The only remedy would be to adjudicate on this matter if you believe the Supervisor is in breach. When the Supervisor eventually does issue the certificate it should make clear the date on which it should have been issued.
Clause 50.1 deals with the PM’s responsibilities under the ECC in relation to assessing amounts due, the first bullet point means that assessments should continue (usually each month) until 4 weeks after the Supervisor issues the Defects Certificate. So if the Supervisor hasn’t issued the certificate it merely extends the PM’s obligation to assess amounts due so you should continue to submit applications for payment.
From the Contractor’s point of view, you need to secure the certificate partly so you can obtain final amounts due e.g. retention, gain share etc, but also so that you are no longer obliged to replace loss of and repair damage to the works, and so that the risk of loss of or damage to the works transfers back to the Employer.
Try resolving this with the PM under the early warning / risk reduction process, if that fails, try resolving directly with the Employer, if this fails you have no option but to adjudicate.