This is part 4 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 Clause 12 in the Red and Yellow Books.

Sub-Clause 12.1 (Works to be Measured) is a new notice in the Red Book. Whenever the Engineer requires the Works to be measured on Site or Records identified in specifications, he or she shall give a notice to the Contractor of not less than seven days with details.

The Contractor’s representative (or a qualified representative) shall then attend at the time and place stated at the Engineer’s notice. Failure by the Contractor on the Engineer’s notice will result in the Contractor being deemed to have accepted the measurement or records as accurate.

However, if there is a disagreement after the Contractor’s timely attendance, the Contractor shall give a notice to the Engineers stating the reasons. If no such notice is given within 14 days, the Contractor shall be deemed to have accepted the measurement as accurate.

Another new notice in the Red Book is Sub-Clause 12.3 (Valuation of the Works). During the process of valuation of the Works, if the Engineer and the Contractor are unable to agree the appropriate rate or price for any item of work, then the Contractor shall give a notice to the Engineer setting out the reasons why the Contractor disagrees. Subsequently,

  • the Engineer shall proceed under Sub-Clause 3.7 (Agreement or Determination)
  • for the purpose of Sub-Clause 3.7.3 (Time limits), the date on which the Engineer receives the Contractor’s Notice shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3.

Starting from the Engineer receiving such notices and until such time an appropriate rate or price is agreed or determined, the Engineer shall assess a provisional rate or price for the purpose of Interim Payment Certificates.

All the notices which were explained in the earlier parts under Sub-Clause 12.1 (Procedure for Tests After Completion) and Sub-Clause 12.2 (Delayed Tests) are newly added notices in the Silver Book 2017 Edition, but are not available in the Red and Yellow Books. The notices which were explained earlier under Sub-Clause 12.4 (Delayed Tests) are newly added notices in the Silver and Yellow Books 2017 Edition, which are not available in the Red Book.

A new notice in the Yellow Book, Sub-Clause 12.1 (Procedure for Tests after Completion) requires the timing of the Tests after Completion shall be as stated in the Employer’s requirements. After the Works have been taken over under Clause 10 (Employer’s Taking Over), the Engineer shall give a notice of not less than 21 days to the Contractor with the date, place, and other details at which the Tests after Completion will be carried out.

If the Contractor does not attend at the time and place stated in the Engineer’s Notice, the Employer may proceed with the Tests after Completion and the Contractor shall be deemed to have accepted the readings as accurate.

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 Clauses 14-20. The previous posts can be read at these links:

Clauses 1-3
Clause 4-5
Clauses 10-11

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The preceding series on Notices under the FIDIC Silver Book 2017 Editions is now complete and is available as a PDF by emailing the subject line Silver Book Notices to hello@instituteccp.com. Each post can be read on the blog at these links:
Part 1: An Introduction to Notices under FIDIC Silver Book 2017 Edition
Part 2: The Objective of Notices and What to Avoid
Part 3: Notices under Clauses 1-3
Part 4: Notices under Clause 4
Part 5: Notices under Clauses 5-6
Part 6: Notices under Clauses 7-8
Part 7: Notices under Clauses 9-10
Part 8: Notices under Clause 11
Part 9: Notices under Clause 12
Part 10: Notices under Clauses 13-14
Part 11: Notices under Clause 15
Part 12: Notices under Clause 16
Part 13: Notices under Clauses 17-18
Part 14: Notices under Clause 20
Part 15: Notices under Clause 21