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Construction Law/Engineer instructions after Practical completion

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Question
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?

Answer
Dear Paul,

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.

Kind regards,
John Dowse

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John Dowse

Expertise

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

Experience

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.

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

Publications
Various UK and International construction and legal publications.

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

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