Construction Law/Complex Situation
Assalam o Alaikum
I pray for your good health Sir
Hope you are fine.
I am Working on a Project which is part of a Umbrella Development Program being financed through Foreign Loan Agreement. The Umbrella Loan Agreement nominates a foreign Construction Company as Contractor for execution of all works. Several Individual Contracts have been made as per FIDIC Plant and Design Build 1999.
Water Supply Scheme is one the works being executed under the aforesaid Program after signing of following separate individual Contract Agreements with the foreign Contractor.
1.laying of Main Water Line
2.Laying of Distribution Network
3.Construction of Storage Tanks
4.Development of Water Source
First 3 Works mentioned above have been completed and are in process of taking over as per separate individual Contract Agreements. However the the Contract Agreement of No.4 i.e Development of Water Source which was relatively complex job has been recently signed and it will take 24 calender months for completion.
Our problem is that it is not possible to commission and test the completed works until and unless the development of water source is completed and commissioned. Consequently we are confused on issuance of Taking Over Certificate (TOC) of 3 completed contracts without Commissioning.
Is there any possibility as per FIDIC Design and Built 1999 that we increase the Defect Notification Period of 3 Individual Projects ready for Taking Over from 365 days to an appropriate time such as 2 years that we complete the Development of Water Source and Comission the taken over works.
Or is there any other solution to safeguard the interest of the Employer (i.e the Government)
Dear Waheed Sb,
First of all, thanks you very much for having good wishes.
Your question is of course complex one and ewe may say it is a good example of mismanagement on the part of the Client but it will definitely be due to certain reasons.Anyhow, please apprise me whether the Contractor has submitted the final As-Built drawings and the operation & Maintenance Manuals which are the basic requirements before TOC. If he has not yet submitted ,you may advise him to submit the same to gain time. If he has completed all his obligations,TOC cannot be unduly prolonged.
The solution may be :
1) to make pre-commissioning tests (detailed joint inspection and give them a list of defects/ minor works and try to linger on the DLP which may be upto 2 year.But ,if the Contractor really incur additional cot on the completed Works,he may raise claims which the engineer will have to determine under 3.5 provided the Contractor gives its notice under 20.1.
Alternatively an amendment to the Contracts/Package may be made with the consent of both the Parties that due to incomplete package of development of Water source, Tests are not possible now and will be made after completion of the this package. In the meanwhile ,the Contractor will prepare the requisite as -built drawings and the operation manuals besides rectifying the minor defects /repair works ,if existed.
For any further query,please feel free to contact me
Engr Arshad mahmood