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Construction Law/Taking Over Certificate

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Question
Dear Sir,

FIDIC MDB Harmonized Conditions are being implemented in our Contract. In accordance with the Sub-Clause 10.1 of GCC, the Engineer shall issue TOC for the Works when they are completed in accordance with the Contract, except for any minor outstanding work which will not substantially affect the use of the Works for their intended purpose.
Is the Intended Purpose has to be defined in the Contract or it has to be interpret from the Contract like design reports? Actually I am working on a Barrage Project which includes Rehabilitation and Upgradation of Barrage and Head Regulators. The Contractor has demanded TOC for some part of the Barrage which is substantially completed but nothing in Contract defined its intended purpose. In my point of view almost all parts are inter-related with each other in respect of design and discharge of the barrage and TOC for any part cannot be given until and unless all Works are completed.

In this regard your expert opinion is solicited.  

Regards,

UMER SHABBIR

Answer
Dear Umer,

The main advantage, of a partial ToC to the Contractor, is a reduction in the potential for delay damages and a reduction in the responsibility for insurance.  In the absence of any direction within the Contract, it is normal to take a relaxed view of partial ToC's.  A refusal to issue a partial ToC could be interpreted as vexatious if the case went to arbitration, which would expose the Employer to extra costs.  The barrage can probably fulfil it's intended purpose of storing water without the head regulators.  The head regulators are probably there to control the level of storage and regulate downstream flows.  

Take a building.  If five out of 13 floors were complete, then a partial taking over certificate could be issued.  If 13 floors were complete, but the main electrical fuse was missing then a ToC would not be issued.  

I suggest that you tread softly and minimise any conflict.

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Peter M. Elliott

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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.

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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)
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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
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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')

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

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B Sc(Hons) in Civil Engineering

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