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Construction Law/FIDIC FOURTH EDITION 1987 - Post Taking Over Cert Instructions

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Question
Hi Peter,

I am currently administering a FIDIC FOURTH EDITION 1987 FOR WORKS OF CIVIL ENGINEERING CONSTRUCTION as an MEP Subcontractor and have received a taking-over-certificate (TOC) from the Main Contractor for the Works.

I am continuing to receive instruction from the Contractor.

FIDIC FOURTH EDITION 1987 is silent on whether instruction can be given up to the TOC or up to the end of the Defect Liability Period.

I want to reject the instruction I am receiving.

Any advice?

Answer
Dear Sean,

My understanding of FIDIC 4 is that the Engineer can issue instruction during the defects notification period only for remedial works.  The same restriction would apply to a subcontract on similar principles.  If you are getting instructions for extra work, then you could treat them as a separate contract and renegotiate your rates.  However, in all cases tread gently to ensure that good relationships are maintained.  

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Peter M. Elliott

Expertise

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 www.eotprotocol.com before submitting a question.

Experience

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')

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

Education/Credentials
B Sc(Hons) in Civil Engineering

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