Completion, take-over and acceptance
(Правовое руководство по составлению строительных контрактов)
It is advisable that the contract clearly specify when completion, take-over and acceptance are to occur, and their legal consequences. Completion of construction will normally occur prior to take-over and acceptance (paragraphs 1 and 2). The contractor may be obligated to prove completion of construction through the conduct of successful completion tests. The contract may describe the tests that are required. The contract may require the conduct of the tests within a specified period after notification of completion to the purchaser. If the tests are unsuccessful, the contractor may be obligated to repeat them. The contract may require the tests to be conducted in the presence of both parties (paragraphs 4 to 8).
The contract may allocate the costs of tests between the parties. The contract may require the results of completion tests to be reflected in a report to be signed by both parties. The contract may determine the date when construction is considered to be complete if completion tests are successful (paragraphs 9 to 13).
The sequence in which take-over, performance tests and acceptance are to occur may depend on the contracting approach chosen by the parties, and on whether the parties have provided for a trial operation period. It is advisable for the contract to determine which party is to provide the items needed to operate the works during the trial operation period (paragraphs 14 to 20). The contract should specify when the purchaser is obligated to take over the works. The parties may be obligated to prepare a take-over statement which describes the construction of the works at the date of take-over. It is advisable for the contract to determine the legal consequences of take-over (paragraphs 21 to 23).
Performance tests serve to demonstrate that the works meets the technical characteristics specified in the contract. The contract may provide that acceptance can occur after performance tests have been conducted. The contract may obligate the contractor to conduct performance tests within a specified period of time after the expiry of the trial operation period, or, if the contract does not provide for a trial operation period, after completion of construction. It is desirable that the contract describe the tests to be conducted. The results of the tests may be reflected in a report to be signed by both parties (paragraphs 24 to 28). The contract may obligate the purchaser to accept the works within a specified period after the conduct of successful performance tests, and obligate the parties to prepare an acceptance statement, to be signed by both parties. The statement may list the defects in the works discovered during the performance tests, and set forth a time-schedule for their cure (paragraphs 29 and 30).
The contract may provide that, if the contractor is prevented from conducting performance tests due to a failure by the purchaser to perform an obligation, acceptance is deemed to occur. Where performance tests can be conducted independently in respect of portions of the works, those portions may be accepted separately (paragraphs 32 and 33).
It is advisable for the contract to determine the legal consequences of acceptance, in particular if the contract provides for provisional acceptance (paragraphs 34 to 36).