Notices under FIDIC Red, Yellow, and Silver 2017 Editions Part 3

This is part 3 in a multi-part addendum to our previous series on notices under FIDIC Silver Book 2017. This post will focus on some major changes to Clauses 10 and 11 in the Red and Yellow Books.

New Notice in the Red & Yellow Books

In the Red and Yellow Books, under Sub-Clause 10.2 (Taking Over Parts), the Employer shall not use any part of the Works unless and until the Engineer has issued a Taking-Over Certificate for this part. However, if the Employer does use any part of the works before the Taking-Over Certificate is issued, the Contractor shall give a notice to the Engineer identifying such part and describing such use.

And the Contractor shall cease to be liable for the care of such parts and the Engineers should immediately issue a Taking-Over Certificate for this part. Any outstanding work to be completed and/or defects to be remedied shall be listed in the certificate.

Under Sub-Clause 10.3 (Interference with Tests on Completion) in the Red and Yellow Books, if the Contractor is prevented, for more than 14 days from carrying out the Tests on Completion by the Employer’s personnel, or a cause for which the Employer is responsible then:

the Contractor shall give notice to the Engineer describing such prevention,
the Employer shall be deemed to have taken over the Works or Section on the date when the tests on completion would otherwise have been completed, and
the Engineer should immediately issue a Taking-Over Certificate for the works or section.

Subsequently, the Contractor shall carry out the Tests on Completion as soon as practicable and, in any case, before the expiry date of the Defects Notice Period (DNP).

The Engineer shall give a notice to the Contractor of not less than 14 days of the date after which the Contractor may carry out each of the Tests on Completion. If the Contractor suffers delay and/or incurs costs as a result of being prevented from carrying out the Tests on Completion, the Contractor shall be entitled, subject to Sub-Clause 20.2 (Claims for Payment and/or Extension of Time).

Differences in Notices

In the Silver and Yellow Books, Sub-Clause 11.1 (Completion of Outstanding Work and Remedying Defects), if a defect appears, or damage occurs during the relevant DNP, a notice shall be given to the Contractor accordingly by the Employer. However, in the Red Book, if a defect appears, including if the work failed to pass the Tests on Completion, or any damage occurs during the relevant DNP, a notice shall be given to the Contractor by the Employer.

In the Red Book Sub-Clause 11.9 (Performance Certificate), the Engineer issues the Performance Certificate to the Contractor within 28 days after the latest of the expiry dates of the DNP or as soon thereafter as the Contractor has supplied all of the Contractor’s documents. However, in the Silver and Yellow Books, Sub-Clause 11.9 further states ‘. . .and the Employer or Engineer has given or is deemed to have given a notice of No Objection to the As-Built Records under Sub-Clause 5.6 (As-Built Records)’.

According to Sub-Clause 11.6 (Further Tests after Remedying Defects) of all the three books, within seven days of completion of the work of remedying of any defect or damage, the Contractor shall give a notice to the Employer describing the remedied Works and the proposed repeat tests.

Further in the Silver Book, the Employer shall make any objection within 14 days by giving a notice. Otherwise, they will be deemed to have agreed with the Contractor’s proposed repeated testing. However, in the Red and Yellow Books, within seven days, the Engineer shall give a notice to the Contractor either agreeing to the proposed testing or instructing to repeat the tests.

This guest post was written by Mansoor Ali, FICCP and Jishma Joy. This post was originally published as a LinkedIn video, viewable here. The next post will focus on Clause 12. The previous posts can be read at these links:

Clauses 1-3
Clause 4-5

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