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Construction Law/Taking Over certificate



We are supervising consultants for the road project, using FIDIC 2005 MDB.
After the Contractor applied to the Engineer in accordance with sub-clause 10.2 Taking over of parts of the works the Engineer issued the Contractor a TOC on a conditional basis for the sections of the road opened to traffic because of cracks and other defects encountered on the PCCP and in TOC the date was fixed until which the cracks and other defects should be remedied otherwise the TOC would be void. The sections of the road, section 1 was opened in december 2012 and the last section was opened in June 2012, but minor rectification works are ongoing. In October 1st the TOC became void becasue rectification works were ongoing. The contractor is claiming that the TOC issued conditionally contravenes the provisions of FIDIC Red Book. Also, the Contractor is claiming that the sections of the road opened without the Employer's or Engineer's formal instruction to open issued shall be deemed taken over by the Employer, however, not tests at completion is done yet, as-built drawings issued to the Engineer, smoothness and evennes checked and so on. My question is the Engineer right to issue a conditional TOC and state the deadline for rectification, is opening the road deems taken over despite absence of as-built drawings, tests at completion, operation manuals and etc, is the Engineer in breach of FIDIC rules by issuing the conditional TOC, what should we require before we can issue a real TOC, is issuing a TOC menas final TOC, can we later reverse it if any problem associated with the PCCP arises.
Thank you very much.

ANSWER: Dear Mansur,

If sectional completion is allowed in your contract, stage wise TOCs can be issued. If such sectional completion is not allowed you have to reach an agreement with the Contractor.

After submission of the application for TOC, the Engineer has to issue the same within time bar mentioned in your contract, otherwise the TOC shall be deemed to be issued after lapse of certain period (28 days or so..Please check your contract).

I could not understand your references to "real TOC"...could you please elaborate in a follow-up question so that I can advise in a better way.


---------- FOLLOW-UP ----------

thank you for your quick answer. Well actually I am new in this business, and don't really quite understand the conditions. What I meant by "real TOC" is that ordinary one as per FIDIC conditions. We issued the TOC initially on a conditional basis, but this conditional thing did not satisfy the Contractor, they are requesting just a TOC without any conditions or whatever. So my question was what documents the contractor should submit before we can issue TOC as per contract.
thank you, I hope i could describe the situation clearly.

Dear Mansur,

The TOC application can be either rejected or accepted by the Engineer. With TOC, the contractor needs to submit all the documents deemed necessary to make it evident that the completion has been achieved and the project is available for occupancy by the client. All the life safety equipments etc must be in place.
However few snags may be left out to be carried out within an agreed period or DLP.


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Manish Gupta


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Calgary Project Consultants, Jacobs International, Turner International, J Ray McDermott Inc. Hindustan Construction Company

MRICS, MCIArb, BE (Civil), PGDCM LLM-Constuction Law in Arbitration and Adjudication

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