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Construction Law/Clause 31.1 Red Book 87/92


The issue pertains to a building construction project under execution in the UAE in accordance with FIDIC Red Book 87/92, Clause 31.1.
The works in question have been executed by the Contractor and approved by the Engineer in accordance with the IFC drawings, but  not yet taken over by Engineer.
However, the Employer has in the meanwhile desired to carry out ‘certain additional works to enhance the aesthetics’ of certain elements of the completed works e.g. doors; elevation details; external elements etc., and has,through the Engineer, awarded such additional works to ‘other specialist subcontractors',rather than instructing the same as variation to the Contractor.
The Contractor has contended that since such additional works shall be carried out over his approved completed works, and the nature of the scope of specialist subcontractors’ work is such as shall significantly alter them, and has, therefore, requested the Engineer to issue a partial ‘Taking over’ certificate in respect of the  concerned  approved works prior to the specialist subcontractors’ commencing of the additional works.
The Engineer has, however, denied his request citing Clause 31.1 (a), and warned the Contractor of ‘contractual consequences’ should access be denied by him to the specialist subcontractor. The Contractor has contended in response that the provisions of the clause apply only if the additional works do not concern works performed under the Main  Contract.
Kindly advise the most appropriate contractual position to take in the matter from the Contractor’s perspective.

Dear sarvsri,

I think that clause 48.2 (b) & (c) are more relevant to your case than clause 31.1.  I suggest that you have a good case for sectional taking over due to the Employer's occupation or use of the relevant areas.  Once the Employer is the beneficial owner of those parts of the Works, then they are no longer covered by your Contractor's All Risks Policy.  You could check your insurance policies to see if any consequential damage to your work by employees or agents of the Employer is covered.  I would ask for an Engineer's Decision under clause 67.1, but be careful of the hole in this clause if you intend to take the matter further.  

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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.


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

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