The works information states the required thickness of a spray applied waterproof membrane to be achieved and that the contractor is required to provide, to the supervisor (daily), test results (wet film thickness) for the applied waterproofing membrane.
Unfortunately, test results (confirming the applied thickness of the membrane) have not been provided by the contractor, to the supervisor, and the works have now progress.
Under cl42.1, the supervisor can instruct a search. This would “normally” be a compensation event if a defect was not found. In this instance would it be a compensation event, even if the membrane was in accordance with the works information, since the contractor has not previously provided test results as required under the works information?
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With all due respect and practically speaking, for the works to have progressed in a way that the membrane installation is completed without any daily tests to take place or sought by the Supervisor, there must be a significant breakdown in communications.
Having said that, the Contractor’s non-compliance with the requirement is a Defect itself (see definition in 11.2 (5)) and, in my view, the most practical approach - if both Parties agree - would be to look at clause 44 (Accepting Defects) and adjust the WI accordingly (and potentially the Prices slightly downwards).
That would put the daily requirement issue to bed, but the instruction to search for a Defect etc. would still operate as stated in the Contract.
I hope the above helps your situation.
Thank you for your response. However, I have a follow up - query
It is my understanding that the contractor is required to provide the works in accordance with the works information (cl20.1). If, since daily test results have not been provided, the contractor has not undertaken the testing (of the membrane thickness) as required, how does the contractor know/ confirm that the membrane is in accordance the works information. Why should the supervisor issue an instruction to test in order to determine the thickness of the waterproof membrane, potential at the risk/ cost to the employer? Should the contractor not provide “retrospective” test result at his own cost regardless?
Thanks.
I inferred from the initial query that the works are covered and conducting tests is no longer a viable option due to opening-up required.
If undertaking those tests retrospectively is practical and acceptable by the Employer I don’t see any reason why this cannot be done at the Contractor’s cost.
You need to be careful of the provision under which you will proceed if you follow this route; you would not be looking at an instruction for “Searching for a Defect” but rather at a notification for “Correcting a Defect” (cl. 43.1) because the Defect is known and is the Contractor’s non-compliance with the WI.
However, if the cost of the retrospective tests is disproportionate or conducting them impracticable, you might be better off with just a couple of samples and/or the compromise suggested in my first reply (clause 44).
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