(If a Section or Part has been taken-over but the Taking-Over Certificate has not been issued for the Works, the Engineer has the right to instruct a Variation to that Section/Part. Is this statement true or false?)
Under FIDIC Red and Yellow Books (both 1999 and 2017), once a Section or Part of the Works has been taken over by the Employer, even if a formal Taking-Over Certificate has not yet been issued, the practical effect is that the Works (or relevant Section) are considered completed and under the Employer’s control.
Clause 13 [Variations and Adjustments] allows the Engineer to instruct Variations only before the Works or a Section are taken over. After taking-over, the Contractor’s obligations shift from execution to remedying defects under Clause 11 [Defects Notification Period] . At this stage, the Contractor is no longer required to carry out new work beyond rectification unless separately agreed.
Therefore, once a Section/Part is taken over, the Engineer cannot instruct a Variation to that part of the Works. Any further work would require a separate agreement or contract, not a Variation under Clause 13.
This reflects a key FIDIC principle: Variations relate to the execution phase, not the post-completion (defects liability) phase. Thus, the statement is false.
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