Clause 35.2 says:
‘The Client may use any part of the works before Completion has been certified. The Client takes over the part of the works when it begins to use it except if the use is:
• for a reason stated in the Scope or
• to suit the Contractor’s method of working.’
Can you give an example of a client using part of the works for a reason not stated in the scope, and explain why the parties would want to regulate this?
The client has the right, under clause 35.2, to start to use any part of the works before completion has been certified. This will be considered as a takeover of that part of the works, subject to the exceptions in the bullet points in clause 35.2. When the client takes over a part of the works, they become responsible for it in accordance with clause 80.1 main bullet point six. An early takeover by the client will also be a compensation event under clause 60.1(15) unless the completion date has passed when the takeover occurs.
For example, it may be that a section of the new road is complete and could be opened to traffic. If the client decides to start to use this section of new road, that is allow traffic to use it, this would be considered as a takeover of that part of the works, and clauses 80.1 and 60.1(15) would apply.
However, it would not be considered as a takeover if one of the exceptions in clause 35.2 applied, for example if the scope stated that the client was going to put that section of the road into use before completion had been achieved. If the scope did not contain this statement, perhaps because the client did not expect that part of the road to be finished earlier than the rest of the road, or the client had not considered it beneficial to open this section of road earlier than completion of the works, then clauses 80.1 and 60.1(15) would apply.
If secondary option X5 sectional completion has been selected, then the approach described above would apply to each sectional completion as well as completion of the whole of the works.
The logic of clause 35.2 is to give the client the ability to start to use any part of the works at any time, even if that use was not stated in the scope. However, the client will become liable for that part of the works (clause 80.1) taken over and the takeover will be a compensation event (subject to the exceptions stated in clause 35.2 and 60.1(15)) as it may impact how the contractor provides the remainder of the works.