Construction Law/Addtional Work after Taking Over Certificate
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.
Thanks for your question.
Contractually after TOC only defective works are required to be make good.
The Engineer is not entitled to issue any instructions after DLP; but in your case since Perf. Certificate was not issued; it may benefit the Engineer and oblige you to construct these additional works unless you have very solid ground to prove that DLP was over before said partial collapse.
If this can be proven Engineer do not have any authority to instruct you and you are not bound to follow such instruction as well.
Hope this helps.