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Construction Law/Project Closing- out stage FIDIC 1999


Dear MR. Elliot,
Good day.
Working on FIDIC 1999, please clarify the following:
- who is responsible for issuing the snag list whilst nearing the completion of the project? Contractor or consultant.
- define Defect. can't find it in FIDIC to be able to categorize NCRs.
- How do i go about clarifying that some NCRs issued to us can be addressed during the Defect Liability Period instead of linking it to the Taking- Over Certificate application. Any clause applicable?
- our consultant is pushing that all NCR issued should be closed prior commencement of snagging. I do not agree with them. Any clause that states otherwise?
- is it allowed to offer a cost saving for NCR or snags we cant close?
- what are the possible repercussions of stating that some NCRs will only be as-builts since there is no way that it can be rectified. These NCRs does not affect the intended design but aesthetic aspect only.

Thank you in advance for your time.

Dear Mac,

1. Clause 10 is relevant here.  The consultant is responsible for the snagging list, but it helps if the Contractor has done one and cleared as many snags as possible.  The snagging list should not be too long.

2. Dictionary definition of a defect - a shortcoming, imperfection, or lack.  I would suggest that a defect is something which is non-compliant with the Contract.  'Good' or 'Bad' are null terms for construction.  Only compliant or non-compliant is relevant.  

3. You have to agree with the Engineer on which NCR's can be done during the Defects Notification Period.  In the absence of anything in the Contract, I suggest that it will depend on the relative value and the importance of the NCR.  If the main fuse for a building is missing, then the value is low, but the importance is high, as no electricity can be supplied to the building.

4. You have to come to an agreement with the Engineer, based on the above.  Currently, he has some power, delaying the taking over certificate, to encourage you to complete the work.  Once the TOC has been issued, his power is reduced.  

5. Anything is possible with agreement between the parties, but some government bodies are restricted in their ability to accept NCR's.  In Estonia, they have a formula, which is  included in road contracts, to value any non-compliant work.  It is based on the reduction in the expected working life, rather than pro-rata to the material used.  

6 Once you get into the realm of aesthetics, all bets are off.  It depends entirely on the Employer and his advisers.  If a column is out of plumb or a window out of square, the odds on acceptance are very low.  It is possible that you can hide the blemish, but it is very difficult to correct unsightly concrete.  I had to replace a column which was 90 cm square and 2 cm out of position.  The Employer calculated the loss of rent over the life of the building.  He decided that it was cheaper to replace the column, even if it was not required structurally.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

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