Construction Law/Are we allowed to defer DNP
Further to my previous question addressed to you pertinent to the Defect Notification Period (DNP), I would like to ask you again on the issue of the possibility to Defer Contractor's DNP, basing our argument on specific FIDIC 99 Clauses?
Moreover concerning the Claim to be issued by the Owner/Client, shall it be preceeded by an Engineer notification to the Owner of such issue, i.e shall it be suggested by te Engineer? or the Engineer (us) prepare it for him and provided it to him along with our notification to the Owner?
Thx in advance
Thank you for this question.
I do not have a record of your earlier question; however I will answer based on the information in this question.
The DNP only commences when a taking-over certificate is issued; hence the decision on the commencement period is an objective one based upon the contractor's application for taking-over and the Engineer's decision on the state of completion.
The end of the DNP can be postponed by extension of the period pursuant to sub-clause 11.3. The Employer has to make a claim for extension (under sub-clause 2.5) which is reviewed and judged the Engineer. The claim must be founded on lack of availability for use for the purpose intended, or defect or damage.
From your question I suggest that the Engineer has a duty to inform of the actual position and for the Employer to make the decision on whether to claim for an extension of the DNP, or not.
I hope that this assists you.
Follow me on Twitter: @CernoOrg
For my weekly industry newsletter e-mail to firstname.lastname@example.org, stating SUBSCRIBE in the subject line
Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to email@example.com (When e-mailing, please include “AllExperts” in the subject line.)