Defect

The NEC Defect definition measures work against the contract, not against general ideas of quality. There are two routes: work that doesn't follow the Scope, and Contractor-designed work that doesn't follow the applicable law or the design the Project Manager accepted. Work can look poor and not be a Defect, and it can look excellent and be one.

The definition is in clause 11.2 (item 5 in NEC3 ECC, where the first route refers to Works Information). It drives the procedures in the quality and Defects section, and it's easy to misuse because the capital D is easy to miss. It's part of the NEC definitions glossary.

Test cases

Situation	A Defect?	Why
Concrete strength below the value the Scope specifies	Yes	Doesn't follow the Scope
Doors installed in a better grade than the Scope requires	Yes, technically	It still departs from the Scope, though nobody may want it changed
Client's own drainage design floods, but it was built exactly as drawn	No	The work follows the Scope. A fix would be a change to the Scope
Contractor-designed retaining wall breaches a building regulation	Yes	The second route: the Contractor's design and the applicable law
Contractor-designed beam built differently from its accepted design	Yes	The second route: not following accepted design
Finish looks untidy, but the Scope sets no standard	Unclear	You'd need to argue from what the Scope does say

Why it causes problems

The Scope usually can't say everything. Where it's silent on a matter of finish or tolerance, the argument moves to interpretation, implied standards and legal advice, and the contract gives no quick answer. The best protection is to state workmanship standards and tolerances in the Scope, or to name the published standards that apply.

A second problem is the Client-designed job. If the Client's design has an error and the Contractor built it as shown, the result may be useless and yet not a Defect. Correcting it means an instruction changing the Scope, which is normally a compensation event under 60.1(1). Calling it a Defect and refusing to pay won't work if the work follows the drawings.

A worked example

A fictional car park resurfacing on Option A. The Scope gives a surface course thickness of 40mm. Core samples show 34mm over one bay, though the surface looks and rides perfectly.

1. The Supervisor notifies a Defect. The test is the Scope, so appearance is no answer.
2. The Contractor corrects it within the defect correction period, at its own cost.
3. Or either side can propose leaving it under clause 45. The Contractor then quotes for reduced Prices, an earlier Completion Date or both, and the Scope changes if that's accepted.

If later cores in another bay showed 40mm, and the search had been instructed under 43.1, finding no Defect there would be a compensation event under 60.1(10). Suspicion has a price too.

What people get wrong

• Thinking acceptance removes a Defect. Under 14.1, the Project Manager's or Supervisor's acceptance doesn't change the Contractor's responsibility. An accepted method statement doesn't excuse work that departs from the Scope.
• Treating notification as what creates the Defect. The Defect exists whether or not anyone has notified it, and the Contractor has to correct it either way (44.1). Notification starts procedures and periods. It doesn't create the obligation.
• Using it for incomplete work. Unfinished work isn't necessarily a Defect, though it does affect Completion and payment.
• Confusing it with a snag. "Snag" isn't an NEC term. A snag list may contain Defects and unfinished work, plus items that are neither.
• Using it for damage. Damage from a cause the Client carries is dealt with under the liability clauses, not as a Defect.

Next steps

For the routes after someone finds one, see notifying Defects and the defect correction period. When you record a Defect, cite the requirement it departs from, for example the specification clause. If you can't name one, stop and ask whether it really meets the definition.

Related guides

• NEC Definitions: A Glossary of Key Terms
• Defect Correction Period
• Defects Certificate
• Defects Date
• Contract Data
• Contract Date

This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.