10.2 TAKING OVER OF PART OF THE WORKS
It is sometimes desirable for employers, particularly in highly complex types
of construction with multiple uses or free-standing elements, to use and oper-
ate parts of the works before they have been completed as a whole.
If the works have been divided into sections, by appropriate drafting of
the contract documents, this presents no difficulty so long as the part the
Employer wishes to use falls within a section for which a TOC has been issued.
However, the two Books differ over whether an Employer who has not got
the benefit of sectional completion but who wishes to use and operate part of
the works before the TOC is issued may do so.
In the Silver Book (clause 10.2), unless the parties agree the Employer may
not use or take over any parts of the works other than sections.
In the Yellow Book (and the Red) the Engineer can at the sole discretion of
the Employer issue a TOC for any part of the works. However, the Employer
is not to use any part (except as a temporary measure which is either agreed
by the parties or specified in the contract) unless the Engineer has issued a
TOC for that part.
In the event that the Employer does nevertheless use any part of the works
before a TOC has been issued for that part, then:
●
the relevant part is deemed to have been taken over from the date on which
it is used;
●
the Employer takes over responsibility for the care of that part; and
●
if requested by the Contractor, the Employer issues a TOC for that part.
Clause 10.2 then provides for the Contractor to be given the opportunity to
carry out outstanding tests on completion, and to be compensated for any
costs plus reasonable profit he incurs as a result of the unauthorised taking
over and for a proportionate reduction in delay damages.