Working under an NEC4 Option A Contract.
The Contractor is consistently failing to comply with the Scope in respect of providing information (including a programme) at intervals required by the contract and we are looking for ways of trying to resolve this.
We can raise a defect, but obviously the Correction Period does not start until completion at which stage these interim submissions would be irrelevant and effectively the defect cannot be rectified. However in order to accept the defect and adjust the payment it requires the Contractors agreement, which would presumably not be forthcoming.
Is there anyway that an adjustment can be made to Payment Applications when revised (not the initial) interim submissions are either not provided or are not accepted.
I assume you are the Project Manager?
Submission of programme revisions is a contract requirement under Clause 32 (and note that the PM can instruct the Contractor to submit a programme at any time - Clause 32.2 first bullet), so failure to submit a programme is not a Defect (part of the works which is not in accordance with the Scope) but is non-compliance with the contract. The immediate remedy for such non-compliance is in Clause 64.1 third bullet which requires (not discretionary) the PM to make its own assessment of a CE, including the programme implications.
There may be other remedies open to you but, as ever, there are many further questions that would need to be asked - the main point is that Defects (Clause 4) is not the avenue you should be going down.
Dave,
Yes, acting as PM. 64.1 deals with assessments of compensation events, how does not providing information under the contract become a CE?
Could it not be argued that the Programme requirements (contents, etc.) are detailed in the Scope and failure to provide one, or an adequate one therefore does not comply with the Scope?
Not providing information isn’t a CE, but if a programme has not been submitted, ANY compensation event for which a quotation is submitted must be assessed by the PM and, as I say, that includes the time implications of that CE.
Your situation is quite complex, it’s not clear what information isn’t being submitted, and what the consequences are of the Contractor’s failure. Obviously the first stage is to attempt to discuss the failings with the Contractor, but I can’t see that you are going to get any joy out of pursuing a Defect - to go back to your original post, I can’t see that you can deduct anything from the amount certified because there is a Defect, nor can you do so if the Contractor doesn’t provide a programme. Discuss with Contractor and with the Client.