FAQ.13

Question:

Is it acceptable practice to backdate the Certificate of Substantial Performance (CLA Form 6, CA Form 9) to the date of the applicable Certificate for Payment? The Construction Lien Act and Construction Act use the term value of work and not work certified as completed? Is it acceptable to use the value of work as a bench mark when a Certificate for Payment is not issued at the exact date of Substantial Performance? (e.g. contractor did not submit an invoice, with the request for Substantial Performance).

Short Answer:

The short answer is: certificates should be dated to the date of the review by which the value of work completed was determined.

Expanded Answer:

In order to issue a certificate for payment or to sign Form 6 or Form 9, the payment certifier must determine the value of work complete. A Certificate for Payment is based on a ‘value of work’ the same as the CLA and CA.

It is most convenient if the Contractor’s request for a determination of Substantial Performance coincides with an application for payment, then the payment certifier can evaluate the value of work completed to date at the site once, and apply it to both requests. Unless prohibited by the terms and conditions of the contract, the Contractor may request a determination of Substantial Performance at any time, not just at the same time as an application for payment.

There are several dates associated with substantial performance: the date the Contractor claims it occurred, the date it actually occurred; the date it was certified; and the date of publication of the certificate. Using the correct date or specifying which date is being referred to is important.

Unless the Work has stopped or progress reaches substantial performance on the date of the payment certifier’s review, there is no way for the payment certifier to know when substantial performance was achieved. All a payment certifier usually knows is that substantial performance was or was not achieved on the date of the review. It is the date determined by the payment certifier that should appear on Form 6 or Form 9.

The CLA and CA give the payment certifier 7 days after determining the date of substantial performance in which to issue the Certificate of Substantial Performance, and gives the contractor a further 7 days to publish the certificate. The lien period runs from the date of publication of the certificate.

As argued above, a payment certifier usually can’t legitimately determine that substantial performance has occurred earlier than the date of review. There is a danger in back-dating a certificate, that the payment certifier may technically put themselves in violation of the 7 day limit.

The critical date with respect to the CLA and CA is the date of publication as that is the date from which the lien expiration date is calculated.

Traditionally, the critical date with respect to the construction contract has been the date substantial performance was determined by the payment certifier to have been achieved as that was the date the warranty periods normally started. Under CCDC‑2-2020, the warranty periods are uncoupled from substantial performance and linked instead to Ready-for-Takeover. Back-dating the certificate deprives the Owner of a portion of the warranty coverage.