We are a contractor currently working under an ECC Option A (priced contract with activity schedule). As far as we are concerned, we completed all the works information some months back. However, the employer is refusing to take possession of the building until different user groups sign the building off as meeting their standards, which is not covered in the works information. Building control is also now looking for additional works that did not form part of the works information. There is also the issue where we have had to supply during the course of the contract a temporary building for the employer which we are paying for on weekly hire. There are some minor decoration snags that do not stop anyone using the building, which we have advised we will pick up at the end of the defects period. Can you please advise what the contract states about employer taking possession once the works information has been completed?
The first thing to say is that there are two things you need to be aware of: completion and take over. Both need to certified by the project manager, not the employer – see clauses 30.2 and 35.3. Both are important.
Completion is about what state the works are in and is a defined term – see clause 11.2. As long as the state of the works meet that definition you have achieved completion and the employer and any end users have no say in this. Remember though that part of the definition requires that defects which prevent the employer using the works and others (that would include the end users) doing their work have to be corrected before completion. You will also need to check if the works information says anything about completion, and if so what, to be sure if you have achieved it or not.
Take over is about who is using the works – see clause 35. But, once completion is certified, the employer has to take them over within 2 weeks (unless the contract data says differently) whether they are actually using them or not – see clause 35.1. It is the project manager, not the employer, that has to certify that – see clause 35.3.
You are only required to carry out the works in accordance with the works information – see clause 20.1. If end users want things changed or added to, then the project manager will need to instruct a change to the works information. Assuming you are not responsible for any design, the same will apply to any changes required by building control.
You cannot pick up defects at the end of the defects period for three reasons. Firstly, that is not the term used in the contract – the term is the defects date. Secondly, the contract requires that you correct all such defects that exist at completion within the defect correction period (see clause 43.2). You will find this period set out in contract data part one. If you do not do it within that period, the project manager deducts the costs to the employer of correcting this themselves.
Thirdly, from a practical point of view, you are leaving yourself open to an argument that the defects are preventing the employer using the works or others carrying out their works such that completion has not been achieved. It is better to get them done now so that there is no argument.