Construction Law/Instruction of Extra Work After Issuance of TOC
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.
Dear Hamid Naveed,
Thank you for your question,
Sorry! For the delay, it is because I, was out my office.
Under a FIDIC MDB,2010 contract, the date on which the Employer issues the Taking-Over Certificate is taken to be Completion. This will have several significant effects:
The Employer's Representative receive a complete set of "as-built" records of the execution of the Works before issuing the Taking-Over Certificate for the Works
The defects notification period starts ,
half the retention fund becomes payable ,
the liability to pay liquidated damages ceases,
the Contractor’s obligation to reinstate the works if these are damaged by any but the excepted risks ceases and
the period within which the Statement at Completion must be submitted by the Contractor starts to run.
Besides all works for the "Completion of Outstanding Work and Remedying Defects" shall be executed at the risk and cost of the Contractor. However, If and to the extent that such works are attributable to any other cause, the Contractor shall be notified promptly by (or on behalf of) the Employer, and Variation Procedure shall apply.
If the contractor considers that he is entitled to an adjustment, he should notify the Engineer accordingly, but continue to execute the work in accordance with his obligations.
I hope that the above is useful and you can mark me 10. If not, please submit a follow up question with more details.