We’re working under NEC4 ECS form of contract with option A main clauses.
There are ongoing discussions over a defect. The client hasn’t followed any due process to notifying defect and carried out part of the works themselves without giving us opportunity but trying to pass cost on to ourselves
CL46 is unamended in the contract
We have no design liability on the contract
The client is trying to pass all cost on to ourselves - Traffic management, design time for defect query and resolution and all their subcontract costs with associated fees.
Clause 46.1 was not enacted by the client as part of the works was carried by the both parties and in line with the defects correction period.
The client is now trying to utilise clause 46.2 to re-coup cost:
46.2 If the Contractor is not given access in order to correct a notified Defect before the defects
date, the Project Manager assesses the cost to the Contractor of correcting the Defect and
the Contractor pays this amount. The Scope is treated as having been changed to accept the
Is the client able to recover costs through this clause and if so are they able to apply all the applicable fees percentages associated with their subcontractors carrying out works (tarmac, waterproofing, kerbing…). Can they claim for design costs and traffic management when client is responsible for the design and providing access to correct the defect.