We are a subcontractor on an NEC3 Engineering and Construction Subcontract (ECS), using option B (priced contract with bill of quantities), option W2 and secondary option X16. The final project manager’s payment certificate was dated on 2 April, but we have yet to receive a defects certificate some time later, despite numerous requests. How quickly must the contractor issue us with a defects certificate? What remedies do we have to force release of the defects certificate after our polite requests have failed to elicit any action?
A defect can only be notified to you by the contractor up until the defects date, see clause 42.2. If, as it seems, the defects date has long since passed, the defects certificate should have been issue to you by the contractor at the defects date, see clause 42.2.
Your final remedy is to use the adjudication procedure in option W2 to require the defects certificate to be issued and any outstanding retention released, see the last part of clause X16.2.