Civil Engineering Reference
In-Depth Information
period for which the employer is entitled to deduct liquidated damages. Clause 2.30
of the SBC expressly provides for the issue by the Architect of a Practical Completion
Certificate which should specify the day on which practical completion of the Works
has taken place. In terms of the Contract Particulars, the date specified in the Practical
Completion Certificate signals the beginning of the Rectification Period referred to
in clause 2.38, which runs for a period of six months unless the parties have agreed
otherwise. It also triggers the release of one half of the Retention in terms of clause
4.20. It is, however, specifically provided in clause 3.6 of the SBC that the Contractor
remains wholly responsible for carrying out the Works in accordance with the con-
tract whether or not a Practical Completion Certificate has been issued. The NEC3
also contains similar provisions requiring the Project Manager to certify Completion
in clause 30.2, which again can trigger the release of half of the retention in terms of
Secondary Option clause X16. Under the SBC/DB the position is slightly different as
there is no independent architect or project manager. Accordingly in terms of clause
2.27 it is the Employer who issues a Practical Completion Statement once the works
have reached practical completion.
7.5.2 Non-completion certificates
In some standard forms of building contract, as a prerequisite to the deduction
of liquidated damages by the employer, the certifier needs to issue a certificate
of non-completion indicating that the works are not substantially or practically
complete by the date for completion agreed between the parties or any extended
date thereof. The SBC provides for the issue of such a Non-Completion Certificate in
clause 2.31. Such a certificate is a precondition to the deduction of liquidated damages
using the mechanism set out in clause 2.32, see, for example,
Halliday Construction
Ltd and Others
v.
Gowrie Housing Association Ltd
(1995). Under the SBC/DB a
similar certificate is required although this is called a Non-Completion Notice and is
issued by the Employer under clause 2.28 in the absence of an independent architect
or project manager. In contrast there are no provisions in relation to non-completion
certificates in the NEC3.
7.5.3 Partial possession certificates
Often building contracts contain provisions whereby the employer can take pos-
sessionofpartoftheworksdespitethefactthatthewholeoftheworksisnotyet
substantially or practically complete. This often requires the issue by the certifier
of a certificate or statement identifying what part or parts of the works is/are being
taken into possession by the employer. This can have important consequences for
liquidated damages and protection of the works, including the question of which
party is responsible for insuring the works. See, for example, clause 2.33 of the SBC
which provides for the issue by the Architect of a written statement identifying the
part or parts taken into possession and the date when the Employer took possession.
The effect of partial possession being taken upon practical completion, defects,
