NEC3 ECC: When does uncompleted work become a defect

Sorry to labour the point - but the contract appears to allow the Project Manager to Certify Completion BEFORE all of the Works are necessarily completed. Indeed, the Contractor is likely to request the certification of completion as soon as possible to limit his/her liability. It seems that only those items which will stop the Employer or Others using the work will give the PM grounds not to certify Completion.

Last Para 11.2
If the work which the Contractor is to do by the Completion Date is not stated in the Works Information, Completion is when the Contractor has done all of the work necessary for the Employer to use the works and for Others to do their work.

This suggests that there needs to be a statement in the Works Information which specifies which of the work (already specified in the Works Information) needs to be completed before Completion can be certified. Without such a statement, the contract appears to be flexible on when Completion can be certified - dependent on whether the Employer can use the work or Others can do their work.

The default does not appear to be that ALL of the works specified in the Works Information needs to be completed for Completion to be certified.

Otherwise paragraph 11.2 would read:
If the work which the Contractor is to do by the Completion Date is not stated in the Works Information, Completion is when the Contractor has done all of the work specified in the Works Information

Hence the question - Does any ‘incomplete’ work become a Defect at ‘the Date of Completion’;. i.e. Does the Supervisor notify all the ‘incomplete’ work as Defects at this point to start the Defect Correction Period (43.2).

Please excuse me if I’m missing something here.

Firstly let’s go back to basics, the ECC does not use the concept of substantial or practical completion as the meaning of these terms is subjective, instead it replaces them with the objective test at clause 11.2(2) which provides greater certainty for the PM to decide if Completion has been achieved or not. This should take emotion out of the equation.

For anything to become classed as a Defect (note defined term at clause 11.2(5)) it first needs to be notified as a Defect by the Supervisor (or Contractor), incomplete work does not automatically become a Defect at Completion. Also the contract at clause 42.2 requires “each Defect” to be notified separately, so no long lists please (more on this below).

There are separate obligations on the PM and Supervisor in respect of this, the PM being responsible for certifying Completion, the Supervisor for notifying Defects and issuing the Defect Certificate. It would therefore make sense for the PM and Supervisor to discuss if it would be in the Employer’s best interests to certify Completion before all works are complete. Certifying completion with incomplete works carries risk for the Employer and should only be done after due consideration of the advantages and disadvantages.

If the Employer is keen to start using the works, and can do so despite the fact that certain works are not completed then his actions may demonstrate that the test at clause 11.2(2) has been passed. If the Employer only needs to start using part of the works then it would be more appropriate for the PM to deal with this as take over under clause 35.

Finally, the defect date and defect correction period are different concepts in the ECC. The defect date is a period of time after Completion of the whole of the works, so the PM’s Completion certificate will trigger when this period starts and ends. The defect correction period is usually a much shorter period of time for the Contractor to correct each notified Defect and is independent of the defect date. If the Supervisor had notified the Contractor of multiple Defects at the same time using a list then it will no doubt be impossible for the Contractor to correct them all within the required time. By doing this the Supervisor would be putting the Contractor in breach of contract but would also be in breach of contract at clause 42.2 for not notifying of “each Defect” and not notifying “as soon as he finds it”. To avoid this happening all parties should sit down and discuss the best way to manage the project in order that it is completed in accordance with the contract.

Thank you kindly for taking the time to answer Neill.

SO… is uncompleted work ‘contractually’ regarded as a defect after completion has been certified?

The Supervisor wouldn’t recognise this work as a Defect before completion - it’s just uncompleted - and would have no reason to have notified a Defect at this stage. Hence - the Defect Correction Period will not have been triggered.

I’m starting to think there is no specific contractual solution. As a Supervisor, I’m tending towards notifying each item of uncompleted work as separate Defects as soon as the Completion Certificate has been awarded. Thereby safeguarding myself of being in breach under Clause 42.2 - and triggering each individual Defect Correction Period.

Thereafter, the PM can decide how flexible he/she wants to be with allowing time for the Contractor to correct these notified Defects.

If we assume there is no problem with the PM certifying Completion, then any remaining work required by the Works Information must be finished. Presumably this work hasn’t prevented the Employer from using the works or Others from doing their work, if it had then the PM should not have certified. If the Contractor shows no intention of completing incomplete work (refer to the Accepted Programme), then the Supervisor (who previously, based on the Contractor’s programme had given the Contractor the benefit of the doubt) should notify this as a Defect. Alternatively the Supervisor could ask the PM to give an early warning to the Contractor about this in order to understand when the incomplete works will be completed.

The intention is important for me here as there would be little point in the Supervisor notifying a Defect for incomplete if the Contractor is planning to complete the works.

As the contract proceeds towards the defect date the Supervisor should monitor incomplete works closely, triggering the Defect provisions when he is either concerned that the works aren’t going to be completed before the defect date, or when they start causing a problem for the Employer.

It’s important that the Supervisor works with both the Project Manager and Contractor to ensure that all parties work in the best interests of the Employer. If you notify incomplete works as Defects carte blanche you could unwittingly put others in breach of contract.