When the contractor will not come back

The schedule of defects has been issued. The contractor has gone quiet, or disputes half of it, or attends once and does not return. The building still has the defects.

The right order

Under the JCT forms, the employer can engage others to make good and recover the cost, but the contractor must first have been given a proper opportunity to do it itself.

• Notify the defects properly, in the schedule, with enough detail to identify each one.
• Allow a reasonable time to make them good.
• Give notice that if it does not, others will be engaged and the cost recovered.
• Only then instruct others.

Why the difference is large

A contractor returning to its own job knows the building, has the details, may still hold matching materials and treats the work as a cost of doing business. A third party prices unfamiliar work, unknown substrates and no continuity, and includes a margin for all three.

On a set of defects the original contractor would have absorbed for eight thousand pounds, a replacement quoting nineteen is not being unreasonable. It is pricing what it has been asked to do.

Where the money comes from

Retention, if any remains. That is what the second moiety is security for, and it is the reason releasing it before the schedule is cleared is a mistake that cannot be undone.

If retention is insufficient, the balance is a claim against the contractor. Whether that is worth pursuing depends entirely on whether the contractor still exists and has assets, which is a question worth answering before the remedial works are instructed rather than after.

Where a bond helps, and where it does not

A retention bond, if one was given in place of cash, responds to failure to make good. A performance bond may respond depending on its wording. Both require establishing the default, and both have expiry dates that a job running late may already have passed.

Keeping the record

Everything above turns on being able to show, item by item, what was notified, when, what was allowed, and what happened. That record is built during the rectification period, not assembled after it.

A schedule with dates against every item is worth more at this point than any amount of correspondence, because it answers the only question that matters: was the contractor actually given the chance.