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Construction Law/Additional work after issuance of TOC

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QUESTION: 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

ANSWER: Dear Hamid Naveed Sahib,
Thank you for your question and like to respond in general as follows
The contractual obligations are interpreted by referring to the contract as whole and not clause wise provisions alone.Normally the contractor remains responsible for the unfulfilled obligation as long as his final accounts are not finalized or discharge certificate issued(refer clause 11.10 and 14.12 of Fidic 1999).In some jurisdictions,the contractor remains responsible for even 10 years after project completion and he has to provide a decennial insurance policy to cover all latent and patent defects that may appear in this ten year .I therefore feel you are not in very happy situation and have to carefully review your contract terms from this angle .In case you still need some assistance please come back with a supplementry question.
With best of luck
regards-liaqat hayat

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

QUESTION: First of all thank you very much for early responce.
please give your presious comment that we have laid Adphalt Wearing Course on an existing old bridge. Repair of bridge was not on our work and during execution, Engineer haven't issue any instruction regarding repair of this bridge. And we demobilized from site a year ago i.e. After issuance of TOC, and now partial deck slab was collapsed. So now how can Engineer force us to do the repair work. As i understand in defect liability period we are responsible to rectify the defects of work which was executed by us.

Answer
Thank you for coming back.My earlier comments relate to and meant for  already executed work by you or those which were in your scope of work in the contract.The work done by others or executed prior to your mobilization at site has to be dealt with differently.
You have to refer to clause 13.1 as the repair of bridge constitute a variation in your case .Also it had to be initiated by the Engineer prior to issuing the TOC.With this picture in view and if correct,You can take up this matter with Engineer again and say that you have to re-mobilize at site which not only result in incurring heavy costs but also triggers a substantial change in the sequence of the work.You should then notify the Engineer accordingly that you cannot take up this work as per provision of this clause i.e.cl.13.1
Regards-liaqat hayat

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Liaqat Hayat

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I can answer questions based on FIDIC 4 and FIDIC 1999 [design-build] with particular reference to time extension , price adjustment and disputes. I am in particular more inclined for response to points pertaining to how claims should be framed and put up in case of technical or other contractual shortcomings. Regarding procurement matters I have spent over 5 years as procurement specialist for highway authority and dealt with numerous claims and disputes in the capacity of "The Engineer" .

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