Practical completion, backdating and an inducement
You are the architect administering a JBC building contract for a three-storey shopping centre in Nakuru. The contractual completion date passed six weeks ago; liquidated damages are KES 150,000 per week. At the practical completion inspection, the fire alarm has no commissioning certificate, the generator-room fire separation is incomplete, eight shop units are unfinished, and the county occupation certificate has not been issued. The contractor has submitted a list of 'minor defects' and applies for practical completion. The employer wants you to backdate the certificate by six weeks to avoid deducting damages and to release retention; the contractor says any delay was caused by the employer's late supply of the electrical transformer and threatens a claim. You have not received as-built drawings or the electrical test certificates. The employer offers to pay your outstanding fees immediately if you issue the certificate today.
1. Decide whether practical completion can be certified, and justify your decision against the contract tests.
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Practical completion is not a favour to either party; it is a certification that the works are complete except for minor defects and that the employer can take beneficial occupation without prejudice to safety or function. On these facts, the works do not meet that test.
The missing fire-alarm commissioning certificate and the incomplete generator-room fire separation are life-safety items, not minor defects. Eight unfinished shop units may be minor if they are separable and do not affect access, servicing or the rest of the centre, but they must be scheduled and their completion secured. The absence of as-built drawings and electrical test certificates means the record of what has been built is incomplete, and the occupation certificate cannot be issued on an unverified building.
I would not certify practical completion today. I would issue a detailed inspection report listing the incomplete and non-compliant items, state which are preconditions to certification, and require the contractor to submit commissioning certificates, test results and as-built drawings. If the employer wants early occupation of part of the centre, the contract may allow partial possession, but that is a separate documented decision with insurance and defect-liability consequences. It is not a reason to backdate full practical completion.
2. How should the completion date, liquidated damages and the contractor's delay claim be handled? What records and notices are needed?
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The completion date should be determined from the contract and any valid extension of time, not from the date the employer finds convenient. I would review the contractor's delay claim for the late transformer and decide whether it is an employer risk event, whether it actually delayed the critical path, and whether notice was given as the contract requires. If the claim is valid, an extension of time should be granted prospectively or retrospectively in accordance with the contract; if it is not, the original completion date stands.
Liquidated damages are a contractual consequence of late completion. The architect certifies completion and administers the contract, but should not waive or deduct damages unilaterally; the employer's right to deduct should be exercised strictly under the contract, with the certificate and the delay analysis as the record. Backdating the certificate to avoid damages would misstate the facts and could invalidate the employer's position.
Records needed include the inspection report, dated photographs, the contractor's notices, the employer's instructions, the transformer delivery records, the programme and critical-path analysis, all correspondence about the delay, and the commissioning and test certificates. I would also issue a written notice requiring the contractor to complete the outstanding life-safety works by a stated date.
3. Respond to the employer's request to backdate the certificate and the offer to pay outstanding fees.
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I would decline both the backdating and the fee inducement, and confirm my position in writing. Backdating a practical completion certificate is a false record. It affects liquidated damages, retention, insurance, defects liability and the occupation certificate, and it could expose the employer, the contractor and me to disputes and regulatory consequences. The fact that the employer wants to avoid damages is understandable, but it is not a proper basis for certification.
The offer to pay outstanding fees in exchange for issuing the certificate creates a conflict of interest. Fees are due for services properly performed, not as consideration for a favourable certificate. I would separate the fee discussion from the certification decision: acknowledge the outstanding fees, ask for payment against the correct invoice, and state that the certification will be decided solely on the condition of the works.
I would also advise the employer that early occupation without the fire commissioning and occupation certificate may invalidate insurance and breach public-health or county requirements. If the employer persists, I would record the instruction and consider whether I can continue to act. The professional duty is to certify what exists, not what the client wishes existed.