Construction Law/Instructiion of Additional Work After TOC (Not included in Outstanding Work)
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.
I assume the following while answering this question:
there is a record as to when the DLP is commencing
The bridge (that collapsed) was not part of your original scope and was not built by you
The bridge collapse happened after your DLP
You promptly applied for performance certificate at the end of DLP
Now the answer to your question:
After expiry of DLP, the Engineer does not have authority to instruct for additional works.
if the work was NOT done by you originally, the Engineer could not insist for rectifying the defect on it.
Even though he can extend the scope of works, he can't extend on all cases except - there was huge number of defects on the works done by you OR when you have not attended the defects within the reasonable time frame.
keep the documents in tact and you are not bound to follow the Engineer's instruction