Civil Engineering Reference
In-Depth Information
insurance and liquidated damages in respect of the Relevant Part are set out in
clauses 2.34-2.37. Almost identical provisions are to be found in the SBC/DB at
clauses 2.30-2.34, though in the absence of an architect or project manager it is the
Contractor who issues a notice identifying what part or parts of the Works have been
takenintopossessionbytheEmployer.heNEC3hassimilarprovisionsinclause35
in terms of which the Employer can take over part of the works before Completion
andthisrequirestobecertiiedbytheProjectManager.
7.5.4 Certificates of making good defects
Such certificates are regularly found in the standard forms of building contract. They
are normally issued at the end of the rectification, defects liability or maintenance
period when all the defects have been rectified to the satisfaction of the certifier. The
issue of such a certificate often triggers the release of any remaining retention and is
usually a precondition to the issue of a final certificate, see, for example, clause 4.20.3
of the SBC which provides that the Employer need release only half the Retention
Percentage where work has reached practical completion but where no Certificate of
Making Good has been issued. Similarly, under clause 4.15.1, the issue of the Cer-
tificate of Making Good is a precondition to the issue of the Final Certificate. The
provision permitting the Certificate of Making Good to be issued is found in clause
2.39. Clause 3.6 nevertheless provides that the issue of a Certificate of Making Good
does not relieve the Contractor of his responsibility for carrying out the Works in
accordance with the contract. Similarly under the SBC/DB there is provision for the
Employer to issue a Notice of Completion of Making Good under clause 2.36 when
all defects appearing during the Rectification Period have been made good. his again
triggers release of any remaining Retention in terms of clause 4.18.
he NEC3 has slightly different provisions regarding the certification of the correc-
tion of defects. Under clause 43.3 the Supervisor issues a Defects Certificate once the
contractual period for correcting Defects has ended. That Defects Certificate either
confirms that there are no Defects or provides a list of any uncorrected Defects. In
the latter case this triggers the Employer's remedies in terms of clause 45.1 and could
resultinlowperformancedamagesifOptionX17hasbeenselected.Intermsofclause
43.3 the issue of the Defects Certificate does not affect the Employer's rights in rela-
tion to Defects that have not been found or notified. It does, however, appear to bring
to an end the Contractor's risks in terms of clause 81 and removes the Contractor's
obligation to repair loss or damage to the works in terms of clause 82.
7.5.5 Challenging such certificates
The effect of the foregoing types of certificates and any other certificates which may be
provided for in a building contract depends on the express terms of the building con-
tract in question. Such certificates may or may not have conclusive effect, though the
position under most standard forms of building contract is that they do not normally
