NEC Frequently Asked Questions on NEC Testing and Defects

FAQ: NEC Testing and Defects

Frequently asked questions on testing and defects.

If the Project Manager has to go back a factory for a repeat of an off-site test after the first one failed, does the Client get any compensation for this?

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Yes, if the test failure is notified by the Supervisor as a Defect. The Project Manager then assesses the cost incurred by the Client in repeating a test or inspection after a Defect is found. The Contractor pays the amount assessed (clause 41.6)

Does the Supervisor need to see Contractor’s designs as accepted by the Project

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11.2(6): ‘A Defect is part of the works which is not in accordance with the Scope, or a part of the works designed by the Contractor which is not in accordance with the applicable law or the Contractor’s design which the Project Manager has accepted (clause 11.2(26)). The Supervisor therefore must be aware of those designs that have been accepted by the Project Manager. There is nowhere in the contract stating that the Project Manager should share those designs with the Supervisor, but practically speaking this will clearly need to happen to allow the Supervisor to fulfil their role.

Does the ECC require a list of Defects during the life of the project prior to

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No, the only mention of a ‘list of Defects’ in the ECC is in the definition of the Defects Certificate which comes right at the end of the job. However, any sensible Supervisor and Contractor will surely maintain a list of all Defects notified by either Supervisor or Contractor from the start.

Should the Contractor and the Supervisor keep separate lists of Defects?

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No. Surely it makes sense for the Supervisor and Contractor to maintain a shared list of Defects – but it does not say this in the contract.

Does the ECC have a schedule of tests?

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No, but such a document may be written into the Scope or indicated in the Scope to be generated post award and maintained by the Contractor.

Can the Supervisor stop the works?

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No, this action is for the Project Manager. However, it may be appropriate for the Project Manager to delegate this action to the Supervisor (clause 34.1).

Is there a clause under which the Supervisor confirms that a Defect has been properly

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No (oddly), but it is clear that the Contractor and Supervisor will have to develop a process for this so that corrected Defects can be logged on a “list of Defects”.

Does the Supervisor decide whether a Defect will delay Completion?

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No, it is the Project Manager that certifies Completion (clause 30.2), So, based on the definition of Completion (11.2(2)), the Project Manager will decide if the Contractor has “corrected notified Defects which would have prevented the Client from using the works or Others from doing their work”. Note that it makes sense for the Contractor to know if a Defect may be considered as such when it is notified. Logically that would be included on the list of Defects but will need discussion between Supervisor and Project Manager. And the ultimate decision is with the Project Manager at Completion.

Does the Contractor have to correct all Defects before Completion?

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No, the definition of Completion clearly allow completion with Defects that do not prevent “the Client from using the works or Others from doing their work”.

If the Supervisor signs off the Defects Certificate, does the Contractor still have to
correct other Defects that had not previously been notified?

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No, the Defects Certificate will be issued on or after the defects date.  Clause 43.2 makes clear that the Supervisor can only notify Defects up to the defects date. If the Client finds problems after the defects date and the Contractor is still liable (in the UK that’s for 12 years after Completion for contract under seal or 6 years for a contract not under seal (under hand)) it may still require the Contractor to correct the Defect – but it is no longer an issue for the Supervisor.

Can the Supervisor agree to allow Defects to be accepted?

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Clause 45 allows the Contractor to propose a deal for a reduction in the Prices and/or an earlier Completion Date in exchange for not having to correct a Defect. This is however accepted by the Project Manager rather than the Supervisor.