Practical Completion - defects period

abnormalnorman

Hi,

I have a case where we received Practical Completion cert on a building, but after this encountered a major problem which lead to the building not being occupied for a further 6 months.

Where does this leave the defects liability period?

DOCARCH

Interesting one!

What was the nature of the defect? Was PC cert issued too early?

dusteeroads

If contract works appear to be completed ( even with snags ) and defect free and basically usable for the client than the CA cannot hold back on PC cert.

Defects liability period then runs from date of PC cert issue - irrespective of subsequent defects becoming apparent

See item 31

https://arrow.dit.ie/cgi/viewcontent.cgi?article=1005&context=beschreoth

The subsequent appearance of a latent defect could affect final cert / payment - see Item 35.

Depending on the nature of the defect further compensation could be pursued by legal action ( or negotiation )

abnormalnorman

DOCARCH wrote: »

Interesting one!

What was the nature of the defect? Was PC cert issued too early?

after PC, it was discovered that the ventilation was not as per spec.

DOCARCH

abnormalnorman wrote: »

after PC, it was discovered that the ventilation was not as per spec.

And that took 6 months to rectify?

Who was doing inspections during construction/who issued PC cert?

If ventilation was not to spec...and/or not 'fit for purpose', the PC cert probably should not have been issued(?).

dusteeroads

abnormalnorman wrote: »

after PC, it was discovered that the ventilation was not as per spec.

think I smell BS

Metric Tensor

Very tricky one with PC Cert already issued. I suspect but am not sure that once PC is issued that the defects liability will run from that point and the ventilation issue would be seen as a "defect" that emerged during the liability period.

If PC was issued then you must have moved in? Subsequently discovered the ventilation issue and then had to decamp from the building again?

I'm not sure to what extent liquidated damages apply AFTER PC. Would be worth investigating.

What form of contract was used?

abnormalnorman

dusteeroads wrote: »

think I smell BS

what do you mean by that??

abnormalnorman

Metric Tensor wrote: »

Very tricky one with PC Cert already issued. I suspect but am not sure that once PC is issued that the defects liability will run from that point and the ventilation issue would be seen as a "defect" that emerged during the liability period.

If PC was issued then you must have moved in? Subsequently discovered the ventilation issue and then had to decamp from the building again?

I'm not sure to what extent liquidated damages apply AFTER PC. Would be worth investigating.

What form of contract was used?

were just about to move in before the problem identified. PC cert had just been issued by contractor

abnormalnorman

DOCARCH wrote: »

And that took 6 months to rectify?

Who was doing inspections during construction/who issued PC cert?

If ventilation was not to spec...and/or not 'fit for purpose', the PC cert probably should not have been issued(?).

yap.. . 6 months. contractor issued PC. problem not identified until just after PC issued

DOCARCH

abnormalnorman wrote: »

yap.. . 6 months. contractor issued PC. problem not identified until just after PC issued

A contractor does not issue a PC cert?

Metric Tensor

As per above. The Client's Representative issues the PC Cert when he/she is satisfied that the contractor has "practically completed" the contract.

DOCARCH

Metric Tensor wrote: »

As per above. The Client's Representative issues the PC Cert when he/she is satisfied that the contractor has "practically completed" the contract.

....and is satisfied that the structure is 'fit for purpose'/'habitable'.

Victor

DOCARCH wrote: »

....and is satisfied that the structure is 'fit for purpose'/'habitable'.

Not necessarily.

A contact might be to build a building to 'shell and core standard'. Contract is complete, building is marginally fit for purpose (but only for a fit out contract), but is is hardly habitable.

Metric Tensor

In a more general sense as an Engineer I would sometimes have to issue Practical Completion certs for items other than buildings, where habitable would not be used as a definition. "Fit for purpose" would be a often be a good description although even that falls down in the case of some more unusual contracts.

However, in this case, as described by the OP both "fit for purpose" and "habitable" appear to apply.

But the issuing of a "PC Cert" by the contractor would tend to point towards much bigger concerns than our nice little chat about various contract types!

abnormalnorman

DOCARCH wrote: »

A contractor does not issue a PC cert?

correction - PC Cert was issued by the QS, on behalf of the contractor

dusteeroads

Victor wrote: »

Not necessarily.

A contact might be to build a building to 'shell and core standard'. Contract is complete, building is marginally fit for purpose (but only for a fit out contract), but is is hardly habitable.

Depends on what the contract works are eg.

enabling works
demoltions
shell and core only
fir out including CSA item only - M+E by others



The question is - are the works completed to contract so that the employer can use them now. In this context habitation or occupation may not be applicable at all.

Sounds like the OP did not have a CA and is suffering an own goal now because of that.

Metric Tensor

abnormalnorman wrote: »

correction - PC Cert was issued by the QS, on behalf of the contractor

Still not correct. The PC Cert should be issued by you and/or your representative TO the contractor.

Not the other way around.

On the PC Cert, you or your representatives are confirming to the contractor than you consider his/her work to be practically complete.

abnormalnorman

dusteeroads wrote: »

Depends on what the contract works are eg.

enabling works
demoltions
shell and core only
fir out including CSA item only - M+E by others



The question is - are the works completed to contract so that the employer can use them now. In this context habitation or occupation may not be applicable at all.

Sounds like the OP did not have a CA and is suffering an own goal now because of that.

Works now completed to standard, and building occupied with the past 6 months, but QS claiming the 1 year defects liability period is now up.

sorry, dont get your "own goal" reference, but thanks anyway.

DOCARCH

abnormalnorman wrote: »

sorry, dont get your "own goal" reference, but thanks anyway.

What I and MT have been getting at is it's not the job of the builder (or his QS or any other person on behalf of the builder) to issue PC cert.

I think the 'own goal' point was in relation to query if you had architect or engineer or QS acting on your behalf? It would be up to them to issue PC cert.

Any builder deciding when PC has been reached is going to be (possibly/probably) biased!

Did you have a contract, and if so, what type/form of contract?

abnormalnorman

DOCARCH wrote: »

Did you have a contract, and if so, what type/form of contract?

PW-CF5

DOCARCH

abnormalnorman wrote: »

PW-CF5

From PW-CF5...

9.6.2 Within 20 working days after receiving the Contractor’s request to certify Substantial Completion of the Works or a Section, the Employer’s Representative shall give to the Contractor and the Employer

(1) a certificate stating the date that Substantial Completion occurred or
(2) the reasons for not issuing the certificate.

But if the Schedule, part 1H, so states, the Employer’s Representative shall not be required to certify Substantial Completion of the Works or a Section before its Date for Substantial Completion. The certificate may include a list of Defects and any outstanding work [but nothing in the certificate, including the failure to list any Defect, relieves the Contractor of any obligations].

Why is the contractors representative issuing a PC cert?

DOCARCH

From PW-CF5...

Substantial Completion of the Works or a Section all of the following have happened:
(1) the Works or Section are complete so that they can be taken over and
used by the Employer for their intended purpose and there are no
Defects other than
(a) Defects accepted by the Employer under sub-clause 8.5.4 or
(b) minor Defects to which all of the following apply:
(i) they do not prevent the Works or the part from being used for
their intended purpose
(ii) the Employer’s Representative considers the Contractor has
reasonable grounds for not promptly rectifying them
(iii) rectification will not prejudice the safe and convenient use of
the Works or the part
(2) all tests that are required by the Contract to be passed before
Substantial Completion have been passed
(3) the Contractor has given the Employer’s Representative the
Contractor’s Documents that the Contract requires be provided before
Substantial Completion
(4) the Contractor has given the Employer’s Representative the collateral
warranties that the Contract requires for the Works or part.
(5) the details in the Certificate of Compliance on Completion of the Works
or a part thereof have been included on the Register maintained under
Part IV of the Building Control Regulations.

Metric Tensor

I have never yet encountered a PWCF-5 contract where there wasn't a substantial design team of professionals with a lead member acting as Employer's Representative.

Can you tell us who was acting as Employer's Representative as per the contract OP?

Also - was this a public works contract?

And finally as contracts go the Defects Period in PWCF-5 is predominantly in your favour as you describe your problem but only if your Employer's Rep has done the appropriate things.

BryanF

Is this a domestic house? Why would a builder sign up to a public works contract? And why would a QS (assuming they are acting on behalf of the OP) allow this route?

Metric Tensor

I think the QS in this case is working for the contractor Bryan. The OP has yet to mention any member of his/her own design team / representatives.

Metric Tensor

Also to add that even in the case of public works PWCF-6 is "generally" used for contracts below 500,000 with PWCF-5, discussed here, used for sums over that and less than some number in the low millions that escapes my brain right now.

abnormalnorman

if you havent guessed by now, this is actually for a project im doing for college! construction studies module

so, from the response im getting, i take it this scenario would never happen!!

looks like i need to re-think my topic so.

thanks all for the info anyway.

DOCARCH

Mod Note: @abnormalnorman Before considering throwing your next topic out there, please read the forum charter.

Most of (if not all) the people who have posted in this thread are busy professionals, who take time out of their day to try and assist people with genuine problems. Starting threads, with hypothetical/phantom issues (...and not disclosing this at the outset...) is a complete waste of people's time!!!

abnormalnorman

DOCARCH wrote: »

Mod Note: @abnormalnorman Before considering throwing your next topic out there, please read the forum charter.

Most of (if not all) the people who have posted in this thread are busy professionals, who take time out of their day to try and assist people with genuine problems. Starting threads, with hypothetical/phantom issues (...and not disclosing this at the outset...) is a complete waste of people's time!!!

ok. . thanks to all who replied. it was very helpful for me anyway.

Metric Tensor

Just to point out that dusteeroads called it in the fifth response. Fair play!