This is the ninth in a multi-part series on notices under the 2017 Edition of FIDIC Silver Book. This post covers the provision for notices in Clause12 (Tests after Completion).

Clause 12 (Tests after Completion)

Sub-Clause 12.1 (Procedure for Tests after Completion). Not later than 42 days before the date the Contractor intends to commence the Tests after Completion, the Contractor shall submit a detailed test programme showing the intended timing and resources required. The Employer may review and give a notice to the Contractor within 14 days, stating the extent to which it does not comply with the contract.

The Contractor shall then revise the test programme to rectify such non-compliance. If no notice is issued from the Employer within 14 days, the Employer shall be deemed to have given a notice of no-objection.

In addition to any dates shown in the test programme, the Contractor should give a notice to the Employer of not less than 21 days of the date after which the Contractor will be ready to carry out each of the Tests after Completion.

The Contractor shall commence the Tests after Completion within 14 days after the date stated in the notice or on such date as the Employer shall instruct. The Contractor shall not commence the Tests after Completion until a notice of no-objection is given or is deemed to have been given to the Contractor’s test programme.

Sub-Clause 12.2 (Delayed Tests). If the Contractor has given a notice under Sub-Clause 12.1 (Procedure for Tests after Completion) that the Works or a Section is ready for Tests after Completion and these tests are unduly delayed due to the Employer, then the Contractor shall carry out the test as soon as practicable.

In any case, the tests should be carried out before the expiry date of the Defects Notification Period (DNP). If the Contractor incurs cost as a result, he shall be entitled subject to Sub-Clause 20.2 (Claims for Payments and/or Extension of Time).

Note: If, for a reason not attributable to the Contractor, a Test after Completion on the Works cannot be completed during the DNP, then the Works or Section shall be deemed to have passed this Test after Completion.

Sub-Clause 12.4 (Failure to Pass Tests after Completion). If the Works fail to pass a Test after Completion, the Contractor shall propose to make adjustments or modifications to the works by giving a notice to the Employer. The Contractor may be instructed by the Employer with a notice that right of access to the works cannot be given until a reasonable time that is convenient to the Employer.

The Contractor shall remain liable to carry out the adjustments or modifications and to satisfy this Test within a reasonable period of receiving the above notice. If there is no notice from Employer, the Contractor shall be relieved of the obligation to make such adjustments or modifications, and the Works shall be deemed to have passed this Test after Completion.

This is the ninth 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, part seven on Clauses 9 and 10 can be read here, and part eight on Clause 11 can be read here. The next installment will cover Clauses 13 and 14.

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