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NEC3 ECC: If the Employer takes over the Works, is it (subject to a defects list) then certifiable as complete?

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We have an upcoming scenario in which the Works are going to be taken over by the Employer but there are outstanding works still to be performed. Under clause 35.3, the Project Manager is obliged to certify this Take over within one week but he is not obliged to certify Completion. That can be a separate Operation according to clause 30.2.

It may well be that one of the defects (albeit not preventing the usage of the Works)  will not be able to be rectified for several weeks/months due to the lead time on component delivery. If this is sufficient reason for the Project Manager to delay his decision on the date for Completion?

Certainly due to the Take over, no LDs are due but equally without having the works certified as complete, the Defects Date is being postponed, In old speak this "warranty period" is thus being Extended for what could be a long time.

Can the Project Manager justifiably delay deciding the date for completion on this Basis? This is an NEC Option A contract.
asked Oct 3, 2016 in Testing and Defects by AntoniaN (800 points)  
edited Oct 4, 2016 by AntoniaN

1 Answer

+1 vote
Best answer
Completion is defined in Clause 11.2(2) as being when the Contractor has done all the work which the Works Information states he is to do by the Completion Date, and corrected notified Defects which would have prevented the Employer from using the works and Others from doing their work.

You say that the defects do not prevent usage of the works, so it would seem to me that the Project Manager should be certifying Completion.
answered Oct 9, 2016 by dave meller (2,270 points)  
11.2(2) states "Completion is when the Contractor has
*done all the work which the Works Information states he is to do by the Completion Date and
* corrected notified......their work.
the use of and means each individual condition must be met; if all the work is not done, Completion has not been achieved.