Construction Law/TOC


Dear Jonathan,

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.

Dear M.Dzaie,

Based on the information you provided, Street Light is a variation therefore the Contractor shall complete the work.

Assuming nothing is written under the Particular Conditions of Contract and the Contractor is responsible for testing the Street Lights.

If the whole of the Works, parts or section have been substantially completed and the Contractor passed any Test on Completion as prescribed in the Contract, then the Engineer may issue a Taking Over Certificate as stipulated under sub-clauses 48.2 and 48.3.

If any part of the works which have been substantially completed but not tested or passed any Tests on Completion as prescribed in the Contract, then such part shall not be included in the Taking Over Certificate.

While the Street Lights are already completed but not tested due to the fact that power connection is still pending, this part shall not be included in the Taking-Over Certificate , since it is clear under sub-clauses first mentioned above and as defined under sub-clause 1.1 item (d) (i) that tests specified in the Contract or tests agreed by the Engineer and the Contractor (“Test on Completion) shall be made first by the Contractor prior to issuance of Taking Over Certificate.

Therefore, it is fair and reasonable to issue a Taking-Over Certificate to the Contractor for the parts which are substantially completed and passed any test prescribed in the Contract, and this excludes the Street Lights . The Contractor should agree to complete any outstanding work.

The Engineer shall then proceed with sub-clause 60.3 regarding payment of retention money to the Contractor.

Lastly, the Contractor may be entitled to additional claim due to delay (if any) in awarding of subcontractor responsible for power connection.

Hope the above helps and you can rate me. Thanks and Good Luck!


Jonathan L. Peralta

Construction Law

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Jonathan L. Peralta


Questions relating to construction claims, Extension of Time, Variations, Interim Payment and delay analysis under FIDIC Form of Contracts.


Experience in the following sectors: buildings, residential, infrastructure, civil and marine works. Have worked for different international contractors in Myanmar, Vietnam and the Philippines.

AACEI, U.S.A., Dispute Resolution Board Foundation,U.S.A., ASCE, U.S.A., PICE,Philippines

Bachelor of Science in Civil Engineering, Registered Civil Engineer in the Philippines

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