Contractor completed an NEC3 ECC Option A (no design responsibility) scheme a number of years ago (completion 2020, defects certificate received 2021). The Employer has recently contacted the Contractor and stated that guardrail to the top of a retaining structure has failed and the Contractor needs to return and address the defect.
The Contractor and (Employers) designer have both reviewed the issue and concluded that the failing guardrail is due to the Employers end users subjecting the guardrail to significant wind loading that the guardrail was not designed for, by placing advertisements and the like across the rails (creating a sail effect). It is therefore not beleived to a defect under the construction contract.
The Contractor has stated that searching for the defect would involve significant investigation work to the retaining structure itself. Therefore, as they don’t believe the issue is their liability, would only serach for the defect if the Supervisor instructed them to do so, subsequently being compensated for this via a 60.1 (10) compensation event if no defect was found.
As the defects certificate was issued 4 years ago, the instruction and subsequent compensation event mechanisms can no longer apply (?). Therefore, what is the most practical way forward to establish defects, remedials and liability?
The contract was by way of deed, so it is acknowledged there is a 12 year period in which the Contractor remains liable for defects.