By Walter Ononuju Nnadi
In Construction Projects;
A Response to Imo state social media Engineers.
Recently, The social media was filled with pictures of bad/failed spots in some on going road construction projects in the state, Ordinarily one would’ve have ignored their Rants but on a second thought, it is very important to set the records straight for posterity sake.
Fetch your pen and grab a jotter for its going to be engaging.
What is Defects Liability Period in Construction projects?
Defects liability period is a set period of time after a construction project has been completed during which a contractor has the right to return to the site to remedy defects.
An Ideal defects liability period lasts for 12 months.
What is the purpose of a defects liability period?
Defects liability periods – also known as rectification provisions period – can be of benefit to both parties as I will explain below:-
On the side of the contractor,
it is likely to be more economical and efficient for Him (Contractor) to carry out remedial works himself (Contractor) than to pay the costs of another contractor hired by the employer.
From the employer’s perspective, There will be no need to hire an alternative contractor to carry out the work, or to carry out the work Himself and reclaim the cost. The employer will also not run the risk that any warranties provided by the original contractor may be affected by a third party carrying out works on the site.
If there is a contractual right for the contractor to rectify defects, and the employer either does not notify the contractor that rectification is needed or refuses access to the site, then the employer may be in breach of contract.
The law illustrates, however, that the contractor will not normally be ‘let off the hook’ if this happens.
The employer will still have a claim for the cost of rectifying the defects, but the claim is likely to be limited to the amount it would have cost the original contractor to carry out the works. It will not be able to claim for remedial works or working methods found not to be strictly necessary.
Are defects liability provisions exclusive?
Defects liability provisions are not an exclusive remedy, unless the contract clearly states that there are no other remedies available under the contract. The contractor will remain liable for breach of contract.
Conclusion
Defects liability periods will only arise if they are included in the contract as can be seen in Imo state. Contractors therefore need to be aware that they do not have the automatic right to return to the site to fix any defects.
Employers should give careful consideration to the wording and requirements of defects rectification provisions where they are considering hiring another contractor to fix the original contractor’s mistakes.
I hope that all those social media Engineers will now understand what it means to include a clause like DEFECTS LIABILITY PERIODS in all the state (Imo) projects and why there are remedial works almost immediately a defect is spotted or identified on any of the ongoing road projects. From the analysis above, even after commissioning of the said project, the contractor is still liable and will be called back to site to maintain a failed or faulty spots or areas at his own expense.
©Walter Ononuju Nnadi