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Construction Law/Conditional Taking-Over Certificate


Dear SIr,

I would like to ask you about TOC with condition (FIDIC Red book 4th Edtion 1987).

We receipt TOC for our work like below: "... we issue Taking-Over Certificate with the substantial completion date of [Date] subject to completion of all outstanding works by [Date]..." in accordance with Sub-clause 48.1 of the General Conditions.
My understanding is "subject to" is very strong word for conditioning, it means TOC is still invalid until we completion of outstanding works.
I also understand that the Engineer have right to request the Contractor to carry out any outstanding work before issuing such certificate. However, if the TOC  mention: "... we issue TOC with the substantial completion of [Date]. We request the Contractor to complete all outstanding works by [Date]..." it would be more appropriate.
Please give me your idea.

Thank you in advance.
Best regards,


Dear Nguyen,

You should have written a letter, stating that you will complete all outstanding works, with your request for the ToC.  You have an absolute obligation to complete all the Works in accordance with the Contract.  The Engineer does not have the right to change the Contract, so he cannot request you to complete the works, even if it would appear more polite so to do.  You have two contractual choices; either accept 'subject to' or wait until all the works have been done for your ToC.  If you wait, you may have to pay delay damages, so I suggest that you accept the wording, however harsh it appears, and finish off the outstanding works as quickly as possible.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


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Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

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