Liability periods

Minor outstanding works

Even where there are minor outstanding works, the certificate of practical completion can be issued (albeit with some risk). Such outstanding works do not easily fall within the definition of a 'defect' (i.e. they are not a fault due to the contractor's failure to comply with contractual obligations).

It might have been anticipated that there would be an express provision requiring the contractor to finish off such outstanding work during the rectification period. Even in the absence of such express provisions, it must remain the contractor's obligation to complete the works in accordance with their obligations so that the outstanding work is carried out within a reasonable time (and at a convenient time for the employer or building occupant) following practical completion of the project.

Final completion

Within 14 days of the expiration of the rectification period, the architect/contract administrator is required to provide the contractor with a schedule of defects that the contractor must rectify at their own cost.

A timescale/programme for the remedial works must also be agreed. If the contractor fails to carry out the works as required, they should be given an ultimatum by the architect/contract administrator that the works are to be carried out by a set date and if that requirement is not met, then others will be employed to carry out the works with all incurred costs deducted from monies due to them. This timescale may need to be varied in some circumstances due to the nature of the works. For example, works on a school project will ideally be carried out during school holidays, or planting/landscaping takes place with due consideration of seasonal variances.

When all defects subject to a schedule of defects have been remedied, the architect/contract administrator issues a statement to that effect, a certificate of making good defects or similar.

Non-completion of defects

When the defects have not been remedied within a reasonable time of the expiry of the rectification period, the architect/contract administrator must issue a statement identifying those defects that:

• the employer intends to engage others to rectify, with a proper estimate of the cost; and
• the employer does not intend to rectify with particulars of an appropriate deduction in the calculation of the final payment.

What amounts to a reasonable time within which a defect is to be rectified will depend upon several factors including:

• its importance to the normal operation of the building;
• time required to mobilise;
• consequences of any delay, e.g. further deterioration; and
• convenience of the employer or other occupiers of the building.