Construction Law/Need to Issue Delay Notices after Completion?
Dear John Dowse,
Subject: Need to Issue Delay Notices after Completion?
We are Main-con.
Completion achieved (96%) at 31 July 2016. Completion whole of Works Certificate dated 31 July 2016.
Certificate tables outstanding work that was/is in our scope.
We were unable to complete the work due to Employer postponing the work. Employer says work must be done during Sept 2016. Note work is relatively minor, perhaps some 2 weeks’ to complete.
1. We are providing a quotation since we assert new rates must apply. If quote not accepted we refuse the work. - Correct?
2. My management insist that an EoT Delay Notice must be issued citing the Relevant Event etc. I say not necessary since Completion Cert already issued and we are now in DLP. It is simply a “Claim”. - Who is correct?
Thank you for this question.
You have not identified the terms and conditions of contract, which will be important. From a generalised position, however, the terms and conditions of the contract will usually apply until the 'Performance Certificate' is issued. You have used the term Completion Certificate but noted also that the Defects Notification Period (Defects Liability Period) is running; I am assuming that you then mean a Taking-Over Certificate was issued.
A taking over certificate does not bring an end to the obligations of either Party under the construction contract; that occurs only after the final completion, marked by the issuing of a Performance Certificate.
In the circumstances you have outlined, if the Employer stated a date by which any work must be completed and the Contractor set up to complete in that time but was subsequently delayed by the Employer, there seems to be a strong argument that the Employer is liable to compensate the contractor for any abortive cost and expense.
If you are working under, say, the FIDIC 1999 contract the issue would then seem to be is there a need for the Contractor to issue a notice under sub-clause 20.1 claiming additional costs?
The issuing of a Taking-Over certificate will stop time running as far as the "contract period" is concerned. As such, the Contractor would not have to give a notice claiming time. This may have been varied by specific provisions with correspondence. The question is then limited to whether or not the contractor should have issued a notice claiming any financial losses. Arguably, yes he should have done so
I hope that this assists you.
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