Construction Law/TOC sub-Clause 10.2

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Question
Dear Madam,

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 Sir,
The partial Taking Over can be made, according to 10.2, at the sole discretion of the Employer.
According to 10.1, the Taking Over can be done if the works done allow their use as per the purpose of the Contract, i.e. if it is a green field road from A to B, without the ditches completely finalized, the road can be, still, use to drive from A to B (this is its purpose), therefore, it could be taken over according to 10.1.
A Contract which foresees a dam and plants to generate electricity cannot be used as per the purpose of the Contract having only the dam ready, since its purpose is to generate electricity.
In a Contract for building an airport the Taking Over cannot be made after the finalizing of the building of the airport, without the runways for the airplanes, since the airport cannot be used to have airplanes landed and taken off without the runways.
The purpose of the Contract may not be specifically mentioned in a Contract, but its purpose can be obvious, though.
Hope it helps.
Best 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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