They've charged me for defects I was never asked to fix
Another contractor has put right work it says was defective, and the bill has come off our account without anyone telling us first.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
What's happening?
The first you hear of the defect is the deduction. Your main contractor has brought in another contractor, the work is done, and its invoice has come off your payment. Most subcontracts allow that only after you have been told about the defect. You must also have had a reasonable chance to put it right yourself, at your own cost, which is usually much lower.
Left unchallenged, you pay whatever the other contractor charged, sometimes for work that was never yours. The questions that decide it are simple. Was a notice to remedy given, and when, and to whom? Was the work defective, and was it yours at all? And what should the repair have cost? Even a defect that was yours should be charged at the reasonable cost of putting it right, not at a replacement contractor's short-notice price.
The solution
Ask in writing for the notice to remedy, the evidence of the defect, and the other contractor's invoice and day sheets. Set them beside your handover records, and price what the repair would have cost your own team. Dispute any charge with no proper notice behind it, and put your own price forward as the most the repair could have cost.
Contra-Charge Claim disputes the charges with no notice behind them, values those that stand at what the repair should have cost, and pursues the difference. Contra-Charge Prevention then sets up a written reply to every notice to remedy, so you keep the next repair in your own hands.
Example
Illustrative example. The scenario and figures are invented.
The facts
A glazing subcontractor's payment is cut by £14,600 for resealing curtain wall joints on two elevations. Another glazing contractor did the work over 3 weeks. The subcontract requires written notice of defects and 7 days to attend.
What happens
- The subcontractor asks for the notices, the evidence of the defects and the other contractor's invoice and day sheets.
- The east elevation work, £8,400, has no notice of any kind. The subcontractor's handover photographs show those joints sealed and intact.
- For the north elevation, £6,200, a snag list reached the site foreman 2 days before the other contractor started. The subcontract allows 7 days.
- Without giving up the notice point, the subcontractor's foreman prices the north elevation repair at £2,300. The subcontractor puts that forward as the most it could have cost.
The deduction by elevation
| Elevation | Deducted | Position |
|---|---|---|
| North | £6,200 | £2,300 put forward |
| East | £8,400 | Disputed in full |
| Total | £14,600 | £2,300 |
The outcome
The main contractor accepts £2,300 for the north elevation and withdraws the east. It returns £12,300 in the next valuation.