Early certification

Where the contract administrator holds an independent certifier role, they should be careful not to be influenced in their decision on completion by the commercial objectives of one or other of the parties. Pay careful attention to the agreement of the parties. That will be both as defined in the contract and in any subsequent agreement. However, as stated above, any subsequent agreement between the parties should be recorded in writing. Otherwise the contract administrator’s discretion is limited to certifying completion when there are minor (de minimis) works outstanding such as no reasonable person would think would stand in the way of completion, but not where there are patent defects.

If the contract administrator is requested by one or other of the parties to issue the certificate early, they should emphasise that this will only be possible on the express written request of both parties.

If the parties agree that the certificate of practical completion should be issued before the works are complete, the contract administrator should obtain a copy of this agreement in writing before complying with such a request.

However, the contract administrator also needs to consider his or her duty to third parties such as bondsmen, guarantors, funders, tenants etc. Whilst the contract administrator has some discretion as outlined above they should not certify completion if that would be contrary to the agreement between the parties. If there are significant areas of work incomplete or significant patent defects with the works, and the employer is keen to have the project complete as it is the employer could instruct the contract administrator to omit the outstanding items of work, thus clearing the way for the contract administrator to issue the certificate of completion. However, care should be taken to ensure that the employer is not prejudiced by the omission of such items.