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Construction Law/Substantial completion


Dear Femi,

Our contract(re-measured) is an Arabic contract based on FIDIC.

The project is asphalt maintenance of a major Ring Road in Kuwait. Our work take place at night on a daily basis. Each section that is executed and finished at night is open to traffic next morning and stays under use.

The client does not issue substantial completion certificates on a daily basis (practically impossible)but each section finished is practically turn over to the client for use on daily basis.

The client issues one substantial completion certificate at the end of the project (contract period 3 yrs) and the maintenance period is 5 yrs.

Is the client allowed to consider that all the road sections are under warranty for 5yrs from when he issues the certificate although most of the sections have been under use from the beginning of the contract period as they are delivered one after the other.

Thank you.

Dear Salah,

Thank you for your question.

As far as FIDIC conditions are concern regarding completion and issue of taking over, if the employer elect to occupy and use any part of the works, then, it is deemed to have been understood that, the employer has taken over the such parts of the works on such date he elected to occupy and use them by himself. This means, maintenance period of such parts starts from such taken over dates. If this is what has happened in your case, it means, it would be contractually wrong for the issue one certificate of completion and with one period of maintenance for all (i.e.5years).

The right thing would have been that, the contractor should have communicated with the Client / Engineer when each of the sections were being taken over to establish that, such date of taken over is expected to be the date of commencement of the maintenance period for such sections and it means you will have various taking-over dates for various sections and then also various start and end date of maintenance period for each sections of the whole works.

If we are to apply this to you case (except there are clauses that say otherwise), it therefore means, the taking over dates for each sections of the works would be such date that the employer elected to occupy and use them. Mark my words here - "the employer elected to occupy and use them" - it means you would need (as a contractor) justify that, yes, it was true that, the employer "elected" or "requested" to occupy and use the road sections as such time. Else, if the contractor cannot justify, it would be assumed that, the Contractor, was negligent in his duty to protect the completed works and that was why the third parties (road users) took advantage of using the road. - in such circumstance, the employer may say, - i did not take over anything and i never requested you to allow anyone to take over on my behalf"

I hope am clear enough?


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Femi Alofe


I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts


Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

1. AACEI RP on Estimating, 2010

1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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