We are currently working under NEC3 Opt B contact as primary contractor and have appointed a surfacing contractor on a short contract subcontract.
They have undertaken approximately 70% of the work but the surface layers have been found to be defective and will need remedial works. It is a fair chunk of money so the sub-contractor is quibbling specification details trying to wriggle out of it, however our client is adamant it needs to be repaired.
The surfacing contractor is taking so long to respond to our correspondence that there is a very real possibility that they will cause the contract to over-run both the road closure deadline and contract date by their inaction/unwillingness to rectify the work, causing us to start to incur LD’s.
Can LD’s be passed onto to sub-contactor if they are the reason they are incurred?
Is there a mechanism by which we can encourage them to come to the table in a timely manner and how long are we required to give them to rectify their defects before we have to go down the route of contract termination and so enforce the back-to-back clause to ensure the work is completed by someone else?
Thanks,
Welcome to the community.
I presume you have notified the Subcontract there is a Defect and that it is preventing you from doing your work. I also presume you have provided evidence/reasoning as to why it’s a Defect (why its not in accordance with the Works Information).
If the Subcontractor is denying there is a Defect then it would seem sensible for them to provide evidence/reasoning. If they are not prepared to engage then you should seriously consider notifying them that they are substantially failing to comply with the subcontract.
Regarding your specific questions:
If the Subcontractor does not achieve Completion by their Completion Date you will be able to charge them the delay damages stated in the Subcontract Data. You will not be entitled to pass down main contract LDs in addition.
If they are not prepared to engage then the most appropriate mechanism is to notify them of their substantial failure.
How long they have to rectify the Defect is not clear since the notification is prior to Completion. However the obligation is on them to correct it so as not to prevent you doing your work.