Notices under FIDIC Silver Book 2017 Edition Part 6

This is the sixth in a multi-part series on notices under the 2017 Edition of FIDIC Silver Book. This post covers notices in Clauses 7 (Plant, Materials, and Workmanship) and 8 (Commencement, Delays, and Suspension).

Clause 7 (Plant, Materials, and Workmanship)

Sub-Clause 7.3 (Inspection). If the work that the Employer’s Personnel are entitled to examine, inspect, measure, and/or test, then the Contractor shall give a notice whenever any plant, materials, or work are ready for inspection. The Employer’s Personnel shall either inspect without unreasonable delay, or the Employer shall give a notice that the Employer’s Personnel do not require to do so.

If the Contractor fails to give a notice, then the Contractor, if and when required by the Employer, uncover the work and thereafter reinstate and make good, all at the Contractor’s risk and cost.

At the same time, if the Employer fails to give a notice, the Contractor may proceed with covering up, putting out of sight, or packaging for transport and storage supplies.

Sub-Clause 7.4 (Testing by the Contractor). For the specified testing of any plant, materials, and works, the Contractor shall give a notice to the Employer stating the time and place. In turn, the Employer shall give a notice of not less than 72 hours of the Employer’s intention to attend the test. If the Employer fails to give a notice, the Contractor may proceed with the test which is deemed to have been made in the Employer’s presence.

Sub-Clause 7.5 (Defects and Rejection). If, as a result of testing, any plant, materials, design, or workmanship is found to be defective or not in accordance with the contract, then the Employer shall give a notice to the Contractor describing the defect.

The Contractor shall then prepare and submit a proposal for any necessary remedial work. The Employer may review this proposal and give a notice stating the extent to which the proposed work is carried out would not result in complying with the contract.

After receiving such notice, the Contractor shall submit a revised proposal. If the Contractor fails to submit a proposal (revised proposal) or fails to carry out remedial work to which the Employer has given a notice of no objection, the Employer may
a) instruct the Contractor and Sub-Clause 7.6 (Remedial Work) or
b) reject the design, plant material, or workmanship by giving a notice with reasons, and Sub-Clause 11.4 (Failure to Remedy Defects) shall apply.

If the Employer fails to give a notice within 14 days after receiving the proposal, the Employer shall be deemed to have given a notice of no objection.

Clause 8 (Commencement, Delays, and Suspension)

Sub-Clause 8.1 (Commencement of Works). Unless the commencement date is stated in the contract agreement, the Employer shall give a notice to the Contractor stating the commencement date not less than 14 days before the commencement date. Within 28 days after receiving this notice, the Contractor shall submit an initial programme for the execution of the works in line with Sub-Clause 8.3 (Programme).

Sub-Clause 8.3 (Programme) After reviewing the programme, the Employer shall give notice stating his comments either

within 21 days after receiving the initial programme, or
within 14 days after receiving a revised programme.

If at any time, the Employer gives notice that the programme fails to comply with the contract or ceases to reflect actual progress, or is otherwise inconsistent with the Contractor’s obligation, then the Contractor shall, within 14 days after receiving this notice, submit a revised programme.

In case of failure to give such notices from the Employer to the Contractor, the Employer is deemed to have given a notice of no-objection and the initial or revised programme shall be the programme.

Sub-Clause 8.12 (Prolonged Suspension).

If a suspension under Sub-Clause 8.9 (Employer’s Suspension) has continued for more than 84 days, the Contractor may give a notice requesting permission to proceed. If the Employer does not give a notice within 28 days’ time under Sub-Clause 8.13 (Resumption of Work) after receiving the Contractor’s notice, the Contractor may either:

agree to a further suspension, in which case the parties may agree the extension of time and/or cost plus profit and/or payment for suspended plant and/or materials arising from the total period of suspension, or (and if this has not been agreed),
the Contractor may give a second notice to the Employer to treat the suspension as an omission of the affected part of the works, with immediate effect including release from any further obligation to protect, store, and secure under Sub-Clause 8.9. (Employer’s Suspension). If the suspension affects the whole of the works, the Contractor may give a notice of termination under Sub-Clause 16.2 (Termination by Contractor).

If notice is given in line with Sub-Clause 8.13 (Resumption of Works) the Contractor shall resume work as soon as practicable after receiving a notice from the Employer to proceed with the suspended work.

This guest post was written by Mansoor Ali, FICCP and Jishma Joy. It is the sixth post in a multi-part series and was originally published as two LinkedIn videos, viewable here and here.

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