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Construction Law/Additional work instructed during DLP

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Question
Dear Florin NICULESCU
Regards
I have questions regarding the additional works were instructed during DNP Under the FIDIC IV (RED BOOK)contract.Please clarify followings;
1.Can additional works instructed during Defect Notification Period?
2.The additional works were instructed and same have been completed by the contractor under same contract with in Defect Notification Period. Now, Can contractor may ask for performance certificate after expiry of Defect Notification of whole completed work?
3. Is there any need to taking over certificate seperately for the additional work and contract agreement keep open up to expiry of DNP of additional works?
Thanks in advance.

SANJAY

Answer
Hello Sanjay,


Good to hear again from you, thank you for your question.

No, the FIDIC books do not provide for allowance of any variation of the Works.

That answers your first query, and indeed, takes you outside the Contract with the additional works, instructed during DNP.

As such, I can not answer queries 2 and 3, as the Contract in place does not cover them.

All I can do, is to think of some solutions, in the given situation:

2. As there is no specific provision for the additional works, I would say yes. Eventually. Employer may ask for a guarantee for the additional works, separately from the Works under the original Contract.

3. I would say yes, as a Takig Over Certificate has been probably issued for the under the original Contract.

As you are outside the Contract, I could not provide some fully fledged answers, but hope that my suggestions would help.

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Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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