Frequently Asked Questions

We are the project manager on an NEC3 Engineering and Construction Contract (ECC) Option C (target contact with activity schedule). The works are complete but there is a dispute about the performance of the works and whether it complies with the works information. The supervisor has notified a defect regarding this matter and the contractor is tabling proposals to correct the defect. The issue is complex and will require further investigation by both sides. The defects date is only a matter of weeks away and there is no possibility of agreement being made by then. We see the options as follows.
  • Issue the defects certificate with outstanding actions, but is this even possible?
  • Continue without issuing the defects certificate on the defects date to extend the period – again, is this possible and what are the implications?
  • Use clause 45.1, although assessing the amount due is virtually impossible as any solution is as yet unknown.
We are really looking to just extend the defects date, can we do this?
If the parties are sensibly trying to get this sorted out, the simplest way is for the parties to enter into an agreement to extend the defects date. After all, as with any contract, the parties can agree any changes they want to their contract. The only provisos we would add is that, firstly, the agreed change must comply with clause 12.3 of the contract. Secondly, the terms of agreement should be clear and objective, with the period for the extension expressly stated rather than using subjective terms such as a ‘reasonable period’. The parties can, in the future, agree to extend this period further if they think they have a good chance of sorting it out without having a dispute.

Any other available options will almost certainly lead to the parties becoming embroiled in a dispute.

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