Construction Law/Extra Work After Issuance of TOC
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.
Dear Hamid Naveed
I am extremely sorry for delaying in answer to your question. Now I am trying to answer your question as per FIDIC MDB 2010. After Issuing TOC with mentioning outstanding works under clause 10.1 for a defect liability period of one year. During defect liability period all the outstanding works mentioned with TOC and defects arise after TOC was remedying at site.
Before issuing performance certificate from the Engineer, meanwhile Deck Slab of an old bridge was partial collapse after ending of DLP.
Now Engineer issued the instructions to do an additional works of repairing. Engineers instructions are not as per contract and Engineer has no right to instruct to do so. Engineer can instruct to do so under the contract under contractor's obligation sub clause 4.1 (c).
Sub clause 10.4 "Except as otherwise stated in a Taking-Over Certificate, a certificate for a Section or part of the Works shall not be deemed to certify completion of any ground or other
surfaces requiring reinstatement."
means performance certificate can be issued by the Engineer after the date of expiry of DLP.
As per sub clause 2.5 (Employer's Claim)"The notice shall be given as soon as practicable and no longer than 28 days after the Employer became aware, or should have become aware, of the event or circumstances giving rise to the claim. A notice related to any extension of the Defects Notification Period shall be given before the expiry of such period." to the contractor but discharge shall be consider after completion of additional works/surfaces requiring reinstatement. After this and submission of final settlement by the contractor with discharge certificate, contractor shall request to return performance security to close the agreement.
I hope this will help to you.
with due regards