This is the seventh in a multi-part series on notices under the 2017 Edition of FIDIC Silver Book. This post covers the provision for notices in Clauses 9 (Tests on Completion) and 10 (Employer’s Taking Over).

Clause 9 (Tests on Completion)

Sub-Clause 9.1 (Contractor’s Obligation). The Contractor shall submit within 42 days before the date the Contractor intends to commence the Tests on Completion, a detailed test programme showing the particulars. In addition to any dates shown in the test programme, the Contractor shall give a notice of not less than 21 days of the date after which the Contractor will be ready to carry out each of the Tests on Completion.

The Employer may review and then give a notice to the Contractor stating the extent to which it does not comply with the contract. If he gives a notice within 14 days’ time, the Contractor shall revise the test program to rectify such non-compliance. If there is no notice given within 14 days’ time, the Employer shall be deemed to have given a notice of no-objection.

During the trial operation, the Contractor shall give a notice to the Employer that they are ready for any other Tests on Completion, including performance tests. As soon as the works have passed each stage of the Tests on Completion, the Contractor shall submit a certified report of the results to the Employer.

The Employer shall review each report and may give a notice to the Contractor stating the extent to which the results of the test does not comply with the contract. If no notice is given, the Employer shall be deemed to have given a notice of no-objection.

Sub-Clause 9.2 (Delayed Test). If the Tests on Completion are unduly delayed by the Contractor, the Employer may give a notice to the Contractor requiring the Contractor to carry out the test within 21 days after receiving the notice.

If the Contractor is ready to carry out the test within 21 days’ time, he shall give a prior notice to the Employer of not less than seven days. If the Contractor fails to carry out the test within 21 days, then

  1. the Employer, after giving a second notice to the Contractor, shall proceed with the test, and
  2. the Contractor may attend and witness these tests.
  3. Within 28 days of these tests being completed, the Employer shall send a copy of the test results to the Contractor, and
  4. if the Employer incurs additional cost as a result of such testing, the Employer shall be entitled subject to Sub-Clause 20.2 (Claims for Payment and/or Extension of Time).

Clause 10 (Employer’s Taking Over)

Sub-Clause 10.1 (Taking over the Works and Sections). The Contractor may apply for a Taking Over Certificate by giving a notice to the Employer not more than 14 days before the works will, in the Contractor’s opinion, be complete and ready for taking over.
Within 28 days’ time, the Employer shall, after receiving the Contractor’s notice, either:

  • issue the Taking Over Certificate to the Contractor stating the date on which the works were completed in accordance with the contract, except for any minor outstanding works and any defects, or
  • reject the application by giving a notice to the Contractor with reasons. This notice shall specify the work to be done, that defects to be remedied, and the document to be submitted to enable the Taking Over Certificate to be issued. The Contractor shall then complete all the above duties before giving a further notice under the same Sub-Clause.

If the Employer does not issue a Taking Over Certificate or rejects the application within this period of 28 days, and if the conditions for the Taking Over Certificate have been fulfilled as stated in this clause, the Works shall be deemed to have been completed in accordance with the contract on the 14th day after the Employer receives the Contractor’s notice of application and the Taking Over Certificate shall be deemed to have been issued.

This is the seventh in a multi-part series. Part one, a brief introduction to Notices under the FIDIC Silver Book can be read here, part two, covering objectives and errors can be read here, part three on Clauses 1-3 can be read here, part four on Clause 4 can be read here, and part five on Clauses 5 and 6 can be read here, and part six on Clauses 7 and 8 can be read here. The next installment will cover Clause 11.

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