(a) Depending on the project, either the Project Director will perform the function of completion certifier or an independent completion certifier will be engaged to certify Completion. Ultimately, the nature of the project will affect the costs and benefits of utilising an independent completion certifier rather than relying on design and construction monitoring and assessment by the Project Director. Factors to be considered include the following:
(i) whether engagement of an independent completion certifier could minimise the risk of a party disputing a decision, given the completion certifier's independence and technical expertise;
(ii) requirements of the private party's financiers (noting that government will not agree to financiers alone appointing the completion certifier);
(iii) the cost and time consequences of involving an additional party in the process;
(iv) from government's perspective, minimising the risk of take back of design and construction risk;
(v) the nature of the criteria against which Completion is to be certified (i.e. the extent to which they are technical or more government specific); and
(vi) government insistence on assessment by the Project Director where there would be significant residual risk to government if the private party fails to adequately design and construct the facility.
(b) Where there is a two-staged Completion process, Technical Completion may be certified by an independent completion certifier and Commercial Acceptance will be certified by the Project Director, given that the majority of criteria for the achievement of Commercial Acceptance is non-technical. In such circumstances, however, the project agreement may still require some input from the independent completion certifier in determining whether Commercial Acceptance has been achieved where any criteria are technical in nature.
(c) If an independent completion certifier is used, then he/she will be appointed jointly by government and the private party.
(d) Determinations and decisions by the completion certifier will generally be final and binding on both parties. However, on a project-specific basis, categories of decisions may be subject to appeal (e.g. questions of law or above a specified cap).