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Construction Law/Taking Over Certificate


Dear John

I have an issue … I am the consultant in road project following Fidic 1987 fourth edition reprinted 1992.

The contractor sent a notification asking for Completion Certificate

He completed the road (with minor snagging items) but the problem is for the street lights

He fixed the street lights completely but the power still not connected as we still waiting the local authority to nominate an approved subcontractor (enlisted in the authority) to do the power connection and apparently that will take time.

What kind of TOC we can issue according to sub clause 48.2
Shall we mentioned the street lights as snagging item (whilst the work is not 100% completed or tested and even still cost implication to be sorted out with the authority)
We shall issue TOC for the other parts of the projects with (attached snag list) and exclude the street lighting from the TOC by saying it explicitly '' The street Light is not included in this TOC''

Which choice of above is much legal and logic.

NOTE: The street light was not in the original scope of work and it was added later during the execution as a variation.does that affect the TOC issue?

Thank you for this question.

Sub-clause 48.1, presuming that it has not been amended, indicates that Taking-Over can be applied for by the contractor when the work is substantially complete and any Test on Completion have been passed. Sub-clause 48.2 makes similar provision, allowing for Taking-Over certificates to be issued in respect of any part or section of the Works or any substantial part of the Permanent Works that has been completed to the Engineer's satisfaction.

As I understand it in your case the Engineer accepts that the Contractor has reached substantial completion but is prevented from performing electrical tests on street lighting due to a lack of power.

In terms of Taking-Over, it does not matter that the street lighting was added as a variation during the course of the project.

If the responsibility to provide the power lay with the Employer, through the agency of the utility provider, it is the Employer that is preventing the contractor from completing. As such the Contractor potentially has a liability to the Contractor for extension of time and payment of costs. However, if it is the Contractor that is responsible for providing power, again through the utility provider's agency, the Contractor is delaying completion of the Works. In the first instance it is in the Employer's interest to grant Taking-Over; in the latter case it is in the Contractpr's interest. The relationship between the Parties may dictate how this aspect of the decision process is determined.

If the Employer desires to use the Works it is in the Employer's interest to grant Taking-Over.

Assuming that there are no other factors which dictate against the Employer wanting to use or occupy the Works and the Employer is otherwise happy to allow Taking-Over despite the non-performance of Test on Completion, my preference would be for the second of the options you have suggested; that is to grant completion of other parts. As Engineer you should take care as to how you describe this. Possibly the easiest way may be by stating expressly those areas not deemed as complete or taken-over. It is arguable that you should not adopt your first alternative path as the Whole of the Works and Tests are not complete. (As an aside, I suggest also that your first alternative approach would be under sub-clause 48.1 and not sub-clause 48.2.)

Your taking-over certificate might then be worded that the section of the Works other than those listed are taken over. You would then proceed to list the street lighting (and any other sections deemed not complete). Separately you would list the snagging on the sections of the Works that are deemed taken-over.

I hope that this assists you.

Kind regards,
John Dowse

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John Dowse


Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.


Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Various UK and International construction and legal publications.

LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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