We have notified our tarmac surfacing sub-contractor, who were employed under an NEC3 ECSS 2005 with 2013 Amendments incorporated, of a defect in their works that needs to be rectified. Multiple discussions later and they still don’t accept full responsibility for the defect and thus are requesting a 50/50 split of “costs” (yet to be assessed). They are well past the defect correction period of 2 weeks from notification so I could employ another sub-contractor to carry out the works, however, I would expect costs to far exceed their remaining retention monies and trying to claim any cost back from them after the fact would likely be exceedingly difficult. Do I have any other options other than negotiation and, failing that, more formal proceedings?
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The relevant clause is 42.1 and it says “If the Subcontractor has not corrected a notified Defect within its defect correction period, the Contractor assesses the cost of having the Defect corrected by other people and the Subcontractor pays this amount.”
I.e. it comes off the retention in your case. So if the retention does not cover it, and they refuse to pay any more, the short answer is ‘No’.