On a highways scheme with several different areas of site and CD part 1 is clear and states the ‘employer will not take over the works until the completion date’. (this is now 1 year later due to CE’s).
There is no sectional completion included within the contract so my understanding is that once all the WI(big or small) has been completed without defects I can then issue Completion Certificate - i.e this being the new Completion Date.
The contractor argues that the main road and footways are now open and in use whilst other areas are being finished. Because of this, they state that a take over certificate should be given for this area of works. But my argument is CD part 1 cannot be changed and ‘the employer will not take over the works until completion.’
Am I correct? if not what mechanism do have to change this clause in the signed contract? Or am I correct in saying the employer would have to
The statement in CD Part 1 ‘the Employer is not willing to take over the works before the Completion Date’ essentially relates to the Employer not willing to ‘take over’ where the whole of the works is completed EARLIER than the Completion Date.
This statement would particularly relate to the original intended programme of works and I see no reason why the Employer could not ‘change their mind’ on this matter, where circumstances have changed, as it has in your case. It is possible for the Employer to take over part of the works before Completion, as is their right under clause 35.
It sounds like certain parts of the works are being used before Completion. This may be stated in the Works Information, although if that is not the case then the Employer would be required to take over these parts, otherwise the Contractor has no obligation to allow such use before Completion.
Whether taken over or not, the Contractor remains responsible for ‘care of the works’ which may be an issue where the roads and footpaths are currently in use, which could be the reason behind the discussion.
If part of the works is taken over prior to completion, it is grounds for a CE and should be instructed/notified accordingly. CL35 sets this out if CDP1 states no intentions to take over. CL60.1(15) gives the grounds for a CE, but should be certified by the Employer. This assumes no amendments of course.