This is the eighth in a multi-part series on notices under the 2017 Edition of FIDIC Silver Book. This post covers the provision for notices in Clause 11 (Defects after Taking Over).

Clause 11 (Defects after Taking Over)

Sub-Clause 11.1 (Completion of Outstanding Work and Remedying Defects). If a defect appears or damage occurs during the Defects Notification Period (DNP) of which a notice is given to the Contractor by the Employer on/before the expiry date of the DNP, then the Contractor will execute all works required to remedy defects or damage.

Subsequently,

  1. the Contractor and the Employer’s Personnel shall jointly inspect the defects or damage,
  2. the Contractor shall then prepare and submit a proposal for necessary remedial work and
  3. Sub-Clause 7.5 (Defects and Rejection) shall apply.

Sub-Clause 11.2 (Cost of Remedying Defects). If the Contractor considers that the work is attributable to a reason beyond his obligation, he shall give a notice to the Employer; the Employer’s Representative shall proceed under Sub-Clause 3.5 (Agreement or Determination). If it is agreed or determined that the work is attributable to a cause other than his obligations, Sub-Clause 13.3.1 (Variation by Instruction) shall apply as if such work had been instructed by the Employer.

Sub-Clause 11.4 (Failure to Remedy Defects). If the remedying of any defect or damage is unduly delayed by a Contractor, a date may be fixed by the Employer as a notice to the Contractor, allowing reasonable time by when the defects or damage is to be remedied.

If the Contractor fails to remedy the defects by the date stated and it was to be executed at the Contractor’s cost, then the Employer may:

  1. carry out the work by own or by others and is entitled to Sub-Clause 20.2 (Claims for Payment and/or Extension of Time), or
  2. accept the damaged or defective work and is entitled under Sub-Clause 20.2 to payments of performance damages or a reduction in the contract price, or
  3. treat any part of the work as an omission or
  4. terminate the contract as a whole with immediate effect and is entitled to Sub-Clause 20.2 (Claims for Payment and/or Extension of Time).

Sub-Clause 11.5 (Remedying of Defective Work Off-site). If, during the Defects Notification Period (DNP), the Contractor considers that any defect or damage in any plant cannot be remedied on the site, he shall give a notice with reasons requesting consent to remove the items for repair. Once the Employer gives consent, the Contractor may remove such item of plant.

As a condition of this consent, the Employer may require the Contractor to increase the amount of the Performance Security by the full replacement cost of the defective or damaged plant.

Sub-Clause 11.6 (Further Tests after Remedying Defects). 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 remedies work and the proposed repeated test. If the Contractor fails to give notice within seven days, the Employer may give a notice to the Contractor within 14 days after the defect or damage is remedied, instructing the repeated tests that are necessary to comply with the contract. If the Employer fails to give notice within 14 days, then the Employer shall be deemed to have agreed with the Contractor’s proposal.

Sub-Clause 11.7 (Right of Access After Taking Over). Whenever the Contractor intends to access any part of the Works during the DNP, the Contractor shall request access by giving a notice to the Employer describing the parts of the Works to be accessed, the reasons, and the preferred date for access.

Within seven days after receiving this notice, the Employer shall give a notice, either

  1. giving consent or
  2. proposing alternative dates with reasons.

If the Employer fails to give notice within seven days, the Employer shall be deemed to have given consent for the Contractor’s access on the preferred date stated in this notice.

Sub-Clause 11.8 (Contractor to Search). The Contractor shall, if instructed by the Employer, search for the cause of any defect on the date stated in the Employer’s instruction or as agreed. If the Contractor fails to carry out the search, it may be carried out by the Employer’s personnel, for which the Contractor shall be given a notice of the date when such a search will be carried out. The Contractor may attend at his own cost.

This is the eighth 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, part six on Clauses 7 and 8 can be read here, and part seven on Clauses 9 and 10 can be read here. The next installment will cover Clause 12.

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