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Construction Law/Taking Over Certificate



The scenario is that in the Letter of Intent there are 4 Sections defined for the works. The works were executed by the Contractor on the basis of the LoI - no LOA was issued. The Contractor did not ask for TOC for individual Section but at the completion of the Works he asked for TOC for Whole of the Works. Under which Clause the Engineer could issue the TOC for Whole of the Works - Note that no individual TOC was issued for any Section - rather the Contractor now want TOC for Whole.

ANSWER: Dear Jawwad Waheed,

You do not state the form of contract, nor the applicable law, although I doubt that there are conditions of contract since the works were performed under a LoI, so the following comments will be generic.  LoI are notorious for causing heartache for all parties.

I see no difficulty in issuing a ToC for the whole of the Works, rather than in sections if the Contractor has complied with the LoI.  You could use the standard clause in FIDIC 99 Red Book as a template.  

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

QUESTION: Thanks for prompt reply.

The difficulty is that:

The Contractor did not follow the times for completion for any of the Sections mentioned in the LoI.

The Contractor did not notify and request for issuance of any Section TOC at any stage.

The Engineer did not recommend any individual TOC.

No Sectional TOC was ever issued and now the Contractor has requested and the Employer has recommended to issue TOC for Whole.

Now how to deal with the individual TOCs of the Sections mentioned in the LoI. Shoudl the Engineer first establish completion dates for each of the Sections and issue their TOC first and then proceed with the TOC for whole of the Works. What might be the implications if the Engineer issue TOC for whole of the Works and not for the Sections mentioned in the LoI.

Dear Jawwad Waheed,

The Employer and Contractor both are happy.  Why rock the boat?  What are you trying to prove?  You are liable to push the Employer into an expensive legal battle, for which he will not thank you.  So no sectional ToC's were issued; do you want to impose delay damages?  Do you want to raise the spectre of negligence by the Engineer?  Unless you have a strong contractual or moral objection to the issuing of the ToC, I suggest that you issue it.  I would issue a ToC for the whole of the Works without mentioning the sections and be done with it.  I am sure that you can write a side letter stating your opinion about the sections and their completion dates relative to the LoI to avoid future blame.  

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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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