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Construction Law/Instructiion of Additional Work After TOC


Dear Sir,
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

Dear Hamid,

Thank you for your email and i really apologise for the lateness in reply.

I will just simply answer your question directly by referring to the provisions of clause 13.1 that states that "Variations may be initiated by the Engineer at any time prior to issuing the Taking-Over Certificate for the Works, either by an instruction or by a request for the Contractor to submit a proposal".

Now, if the Engineer wants the Contractor to do any work after the issuance of TOC, except the contract clause 13.1 is amended by a "supplementary agreement" or by "annexure to the contract", he would be unable to do so, rather, it would be on a separate understanding and shall be treated to be so.

For your information, nothing binds the Contractor to comply with such instruction for variation after issuance of TOC and if a Contractor receives such instruction and is not interested to comply, he can just write to the Engineer relying on clause 13.3 explaining the reason why he (the Contractor) would not be able to comply. But if the Contractor wishes to comply (may be for good gesture and good client's care and relationship), i will advise that the Contractor should state it to be so and clearly specifying that, he would want it to be evaluated and administered on a separate terms and conditions not mingled (but different) from the existing contract.

Hope this clears your doubt.



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Femi Alofe


I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts


Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

1. AACEI RP on Estimating, 2010

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