ECC Option A - A Contractor has carried out some refurbishment work to a residential care home.
The Contractor has failed to complete all of the work outlined in the Works Information, but these omissions have not prevented the Employer from using the Works.
There is no specific wording in the Works Information to state what the Contractor has to do before Completion (11.2(2)).
Given the urgency to re-open the care home - the Project Manager has certified completion.
The Contractor has stated that the value of the unfinished work can be taken out of the retention money. The Project Manager is reluctant to use the retention money in this way, believing it to be for unforeseen defects which may emerge during the Defects Period - rather than uncompleted work.
As the uncompleted work is not strictly a Defect, (and has not been notified as one) the Project Manager is unsure how to proceed. The Employer (rightly) wants all of the works completed as soon as possible.
Although Completion has been certified, the Defects Date stated in the Contract Data is 52 weeks after completion of the “Whole of the Works”.
Does this mean that the Contractor’s liability for the works extends into the future until he completes all of the Works - and assumingly retention does not have to be released until this point (if indeed this point ever occurs)?
Clearly the Contractor has breached his obligation to provide the Works in accordance with the Works Information (20.1), however Termination of the Contract (90.1) seems impractical at this late stage.
Your thoughts on how to get uncompleted (non-Defective) work completed, (hopefully without jeopardising retention sums) would be very much appreciated.