Construction Law/defects on project
WE HAVE RECENTLY COMPLETED A ROAD PROJECT UNDER FIDIC 1987, WE HAVE APPLIED FOR THE TOC AT THE TIME OF THE SUBSTANTIAL COMPLETION ON 30TH APRIL 2011 BUT THE ENGINEER DID NOT ISSUE THE TOC WITHING 21 DAYS. HE ISSUED THE TOC IN FEB 2013 WRITING THAT IAM GOING TO ISSUE THE TOC AS THE WORK WAS SUSTANTIAALY COMPLETED ON 30TH APRIL 2011. IN APRIL 2011 HE HANDED OVER TO US A LIST OF THE DEFECTS. HE GIVEN TO US A LONG LIST ON LATER STAGE SAYING THAT CONTRACTER IS BOUND TO RECTIFY THE DEFECTS IN DL PERIOD, EITHER TEY ARE INCREASED. WE ARE AT THE OPENION THAT AS PER CLAUSE 49.2 (a)Complete the work, if any, outstanding on the date stated in the Taking – over Certificate as soon as practicable after such date . ARE WE BOUND TO REMOVE ALL THE DEFECTS OR ONLY THOSE DEFECTS WHICH EXISTS AT THE TIME OF TOC?
Issuance of such certificates always causes minor or major disputes between contractor and engineer. In your case, you are bound to complete defects as provided with the TOC, and in accordance with the Sub-Clause 49.2(b)which stipulates that; " execute all such work of amendment, reconstruction, and remedying defects,shrinkages or other faults as the Engineer may, during the Defects Liability Period or within 14 days after its expiration, as a result of an inspection made by or on behalf of the Engineer prior to its expiration, instruct the Contractor to execute." you have to rectify all damages as pointed out by the engineer, till end of Defects Liability Period.
I hope it is clear,