NEC3: Option B Correction of Notified Defects

NEC3 Option B: We have notified several Defects to a Subcontractor (Works not in accordance with the Works Information Cl.11.2.5). The Contractor is not addressing the Defects, I believe they are allowed to leave correcting them until “Completion” (cl.43.2). The defect correction period is 1 week, after which if the Defect is not corrected we will assess the cost to the Employer of another company correcting the Defect and deduct it from the Subcontractor (cl.45.1). It feels like the Subcontractor is making a big mistake here, we have pointed this out but they claim they do not have the resource to correct defects until Completion of the works. Is this the only course of action we can take (set out above) ? In theory they will have one week to correct all their Defects, before we deduct the cost for others to correct it.

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Any suggestion appreciated.

Anyone able to comment, much appreciated.

You could give an early warning and instruct attendance at a risk reduction meeting to discuss this matter, which at least formally records your concerns.

There are several potential issues to consider with this situation, including;

  • Do any of these Defects prevent Completion from occurring under the subcontract?
  • Will reasonable access be available after Completion to allow the Subcontractor to correct the Defects?
  • Have the Defects been notified under the main contract?
  • Will the Defects prevent Completion from being certified under the main contract?

Calculate an estimated cost of having the Defects corrected by Others and communicate this to the Subcontractor, possibly at the associated risk reduction meeting. That may well ‘provide focus’ in addressing this issue.

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Thank you, Andrew.

  • The Defects would not prevent Completion occurring, they are not critical Defects.

  • Access has been given throughout; our concern is they are simply pushing these out to suit them currently and not taking the remediation seriously as an issue. There have been Risk Reduction meetings regarding this, we have underlined the importance of addressing the corrections in a timely manner.

  • Yes, all Defects have been notified correctly to the Subcontractor, but not under the main contract to the client currently, we were hoping they would correct them in an efficient manner.

  • They will not prevent Completion under the main contract either, as they are not critical Defects.

Could they face the prospect of 1 week to repair, or face the cost of the correction by others, after the week is up?

Your last statement is essentially correct, although ensure you manage the situation as set out in the contract to ensure you retain your rights.