Construction Law/Engineer instructions after Practical completion
Under a FIDIC red book contract, After practical completion, would it be generally allowed for the Engineer to issue an instruction / variation to carry out extra work?
Thank you for this question.
With reference to the FIDIC red book form of contract (1999) the term "practical completion" is not used. For the present purposes I will assume that the status of the work has reached the point where a Taking Over certificate has been applied for and issued but that a Performance Certificate has not been issued.
An Engineer cannot issue an instruction after a Performance Certificate has been issued as that certificate is evidence of the contractor having completed all of its obligations under the contract. An Engineer can issue an instruction after a taking over certificate has been issued but this should be limited to prior work requiring remedial action. It should not be for additional work as the taking over certificate marks the occasion of the contractor having completed the Works in accordance with the Contract. Wit that certificate the contractor's obligations have changed: the time for completion has been closed and the Employer's rights to delay damages ended accordingly.
The Contractor and Employer can come to an arrangement whereby the Contractor performs additional work after the taking over certificate has been issued, but this is outside of the contract
I hope that this assists you.
Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to firstname.lastname@example.org, stating SUBSCRIBE in the subject line
Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to email@example.com (When e-mailing, please include “AllExperts” in the subject line.)