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Construction Law/Performance Certificate

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Question
Dear Madam,

Out Contract based on FIDIC 2010 MDB harmonized Conditions of Contract. The Consultant has issued TOC for parts of the Work under Sub-Clause 10.2 GCC. Sub-Clause 11.9 states that “The Engineer shall issue the Performance Certificate within 28 days after the latest of the expiry dates of the Defects Notification Periods”. Furthermore, Sub-Clause 4.2 GCC states, “The Employer shall return the Performance Security to the Contractor within 21 days after receiving a copy of the Performance Certificate”
The Contractor has requested the Engineer to issue Performance Certificate of each Part of the Work as the relevant Defect Notification Period of Part expires and subsequently release Performance Security against each Part of the Work.

Is it possible under the Contract to issue Performance Certificate for each part of the Work and then release Performance Security for each part?
Regards,

UMER SHABBIR

Answer
Dear Sir,
The Contract is clear - also in what you quoted form it - that there is a single Performance Certificate, that certifies how the Contractor performed under the Contract and it is the only certificate that says that the Works are accepted (11.9 says: "Only the Performance Certificate shall be deemed to constitute acceptance of the Works").
The distinction is clear in the Contract: there can be separate taking over for parts of the Works, but at the end of the last Defect Notification Period the Performance Certificate is to be issued.  
Therefore, the Contract foresees only one Performance Certificate.
Though, if the Parties so want, they can change the Contract by agreement. Usually, this agreement should be in writing - this is the principle stated in the Sub-clause 1.3, too.
Regards,
Alina

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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