Construction Law/defects on project

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Question
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?

Answer
Dear masood,

NET ETIQUETTE SAYS THAT WRITING IN CAPITALS IS CONSIDERED TO BE SHOUTING AND NO ONE LIKES BEING SHOUTED AT.

It all depends on the cause of the defect.  If they are due to non-compliant workmanship or materials, then the Contractor must repair those defects at his own cost.  If they are due to poor design or specification, then the Employer must pay for the defects to be repaired.

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Peter M. Elliott

Expertise

First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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