Construction Law/Extra Work After TOC (FIDIC MDB June 2010)
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 and sorry for late reply
The Engineer has no authority to instruct any work after DLP. You have performed all your duties under the current contract. He need issue performance certificate immediately.
There is no binding on you to follow the Engineer's instruction.
The Engineer have no authority to extend your DLP, specially due to any event happened after you DLP, it may be in your contract boundary but you are not responsible for it.
You need to write to him, stating that you have no contractual obligation to do any work under the current contract as the current contract's scope of work has been completed after DLP.
If the Engineer want you to carry out any work, he need to form a separate contract with you with the new price for the work.
I hope this will clear your query.
If you satisfy with my answer please leave a positive feedback for me.