We are a Main Contractor under an NEC4 ECC Option B. Client has certified take-over of part of the works under Cl35.2 & Cl35.3. We were unable to complete the works due to delays with Stats providers (Client risk). This was in December 2022. We have since been notified of a Defect on the carriageway.
My question is, as the defects date is decided from when we achieve Completion and we have not yet achieved Completion, does our defects date extend from the point when the Client took over the works in December 2022 to whenever the defects date will be? This may be 2 years rather than the 12 months stated in CD PT1. This does not seem fair. Although Cl80.1 states the Client is liable for damage/wear, the clause does not state Defects which I read different to damage/wear.
The Defect in question is failure of some surfacing on the carriageway. Are we liable even though over 12 months have passed since the Client certified take-over?
Cl.35.3 states the PM is required to certify the works for the area taken over by the Client. The “takeover” is a Compensation Event (Cl.60.1.(15). The PM should notify the Contractor of a CE when certifying takeover. The answer to this question is in Contract Date Part 1, this refers to the Defects Date being a set time after “Completion of the whole of the works”. If the Client takes over a section of the works this does not trigger the earlier start of the Defects Date. You are in essence liable for Defects for 2 years in the example above. You are correct that the Client is liable for any loss of or damage to the works, upon takeover (Cl.80.1).
So the real question here; “is the damage to the carriageway surface acceptable damage, or a Defect?”. If it occurred 12months after certification of takeover I would say this is clearly a Defect and the Contractor is to correct it at their own cost. The Defect Date does not come in to an earlier date by takeover. You can only have one Defect Date and it’s pegged to Completion of the whole of the works.
I am well aware the defects date is derived from Completion of the whole of the works. But you have answered my question that as unfair as it seems, the period we will be liable for defects will in fact be prolonged.