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Construction Law/Addtional Work after Issuance of TOC

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Question
Dear Sir,
We have executed a highway project assisted with Asian Development Bank under FIDIC Multilateral Development Bank Harmonized Edition June 2010 in Pakistan.
Work was completed year ago and Engineer issued taking over certificate under clause 10.10 on 22 May 2013, with a defect liability period of one year i.e. 21 May 2014.
During defect liability period all the outstanding works mentioned TOC and defects arise after TOC was remedying at site. We have applied for issuance of performance certificate on under Clause 11.9 on 21st May 2014, but engineer couldn't issue performance certificate.
Meanwhile Deck Slab of an old bridge (on our reach) was partial collapse after ending of DLP. Now on 1st July 2014 (after 40 days of ending DLP) Engineer issued an instruction to do an additional works (Repair of old bridge) which was not in our original scope of work and also not mention in outstanding works of TOC.
The Engineer has said that we couldn't issue Performance Certificate until you executed this extra / additional work, because this bridge is located on your section & your DLP were extended upto when you complete the additional works.
My question is that is Engineer have any authority to instruct us to do the work which was not mention in TOC or Scope of Work.
Kindly advise us that now what can we do, either there is any binding on us to follow the Engineer instruction.

Thanks & Regards.

Hamid Naveed

Answer
Dear Hamid Naveed,

Issuance of Taking-Over Certificate marks that the Works has been completed in accordance with the Contract. If there are some defects or outstanding works, such defects and outstanding works should be minimal and should not affect the use of the Works. This is clear under Sub-clause 10.1.

If the Engineer issued the Taking-Over Certificate to the Contractor after the Contractor gave notice under Sub-clause 10.1, any defects or outstanding works (notified by the Engineer to the Contractor) shall be repaired and remedied by the Contractor after issuance of TOC.

After issuance of TOC, then Defects Notification Period shall start under Clause 11. Any defects which is not attributable to the Employer and/or the Engineer shall be rectified, remedied, executed and/or corrected by the Contractor at his own cost and risk as stipulated under Sub-clause 11.2.

If “the Deck Slab of an old bridge” is not part of your Original Contract and it was only instructed under a variation, the Contract can opt to decline to execute this variation under Sub-clause 13.1.

The Engineer has the authority to instruct the Contractor under Sub-clause 3.3 and may initiate a variation under Sub-clause 13.1 all under the Contract.

If deck of slab of an old bridge is not part of your Original Contract, then the Engineer should have not instructed you to proceed with the repair. In addition if all repairs and outstanding works have been executed, completed and remedied by the Contractor  including submission  of all Contractor’s Documents and completion and passing of all required testing under the Contract, then the Contractor is entitled to receive  the Performance Certificate under Sub-clause 11.9.

Hope the above helps.

Regards,

Jonathan L. Peralta

Construction Law

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Jonathan L. Peralta

Expertise

Questions relating to construction claims, Extension of Time, Variations, Interim Payment and delay analysis under FIDIC Form of Contracts.

Experience

Experience in the following sectors: buildings, residential, infrastructure, civil and marine works. Have worked for different international contractors in Myanmar, Vietnam and the Philippines.

Organizations
AACEI, U.S.A., Dispute Resolution Board Foundation,U.S.A., ASCE, U.S.A., PICE,Philippines

Education/Credentials
Bachelor of Science in Civil Engineering, Registered Civil Engineer in the Philippines

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