We are a main contractor using the NEC3 Engineering and Construction Subcontract (ECS) option A (priced subcontract with activity schedule) for our subcontractors. The defective workmanship of one of our subcontractors has been revealed during commissioning of some pumps, which is likely to cause substantial delay under our main contract and result in damages. The nature of the defect meant it had to be corrected within 72 hours (as stated in the subcontract data) but this was not practical. The subcontractor was unable to provide temporary pumping arrangements while it took additional time to correct the defect, so we put these in place until the permanent pumps could be reinstalled. We did this on the basis that cost can be recovered under clause 25.
The employer has reduced the certified amount in the latest assessment period as the activities previously deemed complete are no longer complete, in accordance with the final paragraph of clause 11.2(27). This results in a negative payment certificate, which we would have to recover as a debt. Some of this amount would correct itself naturally as the defect is corrected and the work deemed complete once again. However, the cost we have incurred must still be recovered. As we were nearing completion, we have paid 90% of the subcontract value. The subcontractor is unwilling to credit the debt whereas we seek recourse under the subcontract in the first instance. What would you advise here?