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Construction Law/Extra Work after issuing of Taking Over Certificate Clause 10.10


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: Hi Hameed
It seems from your description that the Engineer is stretching his authority to the limits.
The bridge repair should be another contract.
It is easier - quicker and cheaper for him to twist your arm to get you to repair the bridge than to get another contractor in place.
I suggest you submit a big price to do the repair work and only start when he issues the performance certificate.

Did the collapse damage your completed work? In which case check your insurances.

Best regards
Mike Testro

---------- FOLLOW-UP ----------

QUESTION: Thank you very much for quick responce and giving your presious time.
Actualy this is Flood Emergency Reconstruction Project, consist of Rehabilitaion of Road and Repair of Bridge Structures damaged by Flood.
During execution we have repaired some bridge structures and some culverts was recontructed by us. All the structure work was got approved by Engineer with approval of Construction Drawings, and the items quantified and got approved by employer in shape of V.O #1 & V.O #2. But from before this Engineer havnt instructed us to repair this bridge. Bacause at that time its condition was qhite satisfactory. After TOC we have submitted statement at completion and now waiting for performance cerfificate to submit Final Statement. STATEMENT AT COMPLETION was based on works executed upto TOC. And AS BUILD DRAWINGS was also got approved.
In that bridge we have laid only Asphalt Wearing Course. Repair of this bridge was not mention in Consttuction Drawings and As Build Drawing and not quantified at the time of Variotion Order or Taking Over Certificate.
Collapse of Deck Slab only demaged Asphalt Wearing Course ofbthat portion.

Now describe your opinion that what can we do.

Thanks again

Hi Hameed
That makes things clearer.
It seems that this bridge was part of the original scope but only for re-topping.
Now that it has collapsed before the SOC you may be obliged to carry out the repairs.
Ensure that you get paid properly and the EoT is in place.
Best regards
Mike Testro

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Mike Testro


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45 years in the Construction Industry 15 Years as a consultant delay analyst - I now hold myself to be expert in this field.

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