Would anyone in here recommend drafting up a subcontractor definition of practical completion to get an early release of retention? i.e a negotiated clause? the courts have differed in their definition of practical completion and NEC doesn’t define it fully. Has anyone gone down this route before?
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Leroy. Good question and the answer that it is a good idea to define it. Usually the definition is tested as to whether or not the Client can occupy the building save for minor defects that can be easily remedied without undue interference to the Client. Another thing to consider from a sub-contractors viewpoint is should practical completion under the Sub-Contract be linked to practical completion on the Main Contract. That would of course be unfair on the piling contractor but fair for the painting and decorating contractor. The piling would be completed much earlier than the whole of the structure and you would have to wait much longer for your retention. Hope this helps. Mike
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The NEC doesn’t define practical completion because it has Completion as a defined term which equates to practical completion as defined in the courts for old contract. Further, the definition invites the drafter of the contract documents to define what is meant by this more precisely in the Works Information (NEC3) or Scope (NEC4).
So that is the place to define it precisely, NOT write a new clause.
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