R 2017 - 11

Contractor's Rights of Access and Obligations after Taking Over

• The Contractor has the right of access to the Works until 28 days after the Performance Certificate is issued, subject to the Employer's security restrictions.
• The Contractor must request access to any part of the Works by giving a Notice to the Employer, describing the parts to be accessed, reasons for access, and preferred date.
• The Employer must respond within 7 days, either consenting to the request or proposing reasonable alternative dates with reasons.
• If the Employer fails to respond within 7 days, it is deemed to have given consent to the Contractor's access on the preferred date.
• If the Contractor incurs additional costs due to unreasonable delay by the Employer in permitting access, it is entitled to payment of such costs plus profit.
• The Contractor must search for the cause of any defect if instructed by the Engineer and carry out the search on specified dates.
• After remedying any defect or damage, the Contractor must inform the Engineer and propose repeated tests, to which the Engineer must respond within 7 days.
• If the defect is not to be remedied at the cost of the Contractor, the Contractor is entitled to payment of the cost of the search.
• The Performance Certificate, issued by the Engineer within 28 days after the latest of the Defects Notification Periods, signifies completion of the Contractor's obligations under the Contract.
• After the Performance Certificate is issued, both Parties remain liable for unperformed obligations; the Contractor is not liable for defects or damage to Plant occurring more than two years after the Plant's Defects Notification Period.
• The Contractor must remove equipment, surplus material, wreckage, rubbish, and Temporary Works from the Site after the Performance Certificate is issued.
• If the Contractor fails to comply with the Site clearance obligations, the Employer may sell or dispose of remaining items or reinstate and clean the Site at the Contractor's cost.

Contractor's Responsibilities for Remedying Defects in Construction Projects

• If the Contractor delays completion of outstanding works or remedying defects, the Employer can set a date for the remedy, providing the Contractor with a reasonable time to fix the issue.
• If the Contractor fails to remedy the defect by the stated date, the Employer can carry out the work at the Contractor's cost and is entitled to payment for the costs incurred in remedying the defect.
• If the Contractor believes the work is due to another cause, they must promptly notify the Engineer, who will determine the cause.
• The Employer has the right to accept the damaged work and receive a reduction in the contract price or treat unusable works as omissions.
• The Employer can also terminate the contract if the defect substantially deprives them of the benefit of the works.
• If the defective plant cannot be repaired expeditiously on-site, the Contractor can request consent to remove it for repair, providing specific details.
• The Contractor may remove the defective plant from the site upon receiving consent, but the Employer may require an increase in the Performance Security.
• The Contractor must give notice of the proposed testing of the remedied works, and if they fail to do so, the Engineer can instruct the repeated tests at the cost of the liable party.
• All repeated tests should be carried out at the risk and cost of the party responsible for the cost of the remedial work.
• The Employer has the right to recover all sums paid for the works, financing charges, and dismantling costs if the contract is terminated due to defects.
• The exercise of discretion by the Employer does not prejudice any other rights they may have under the Contract or otherwise.
• The document is restricted for distribution within the Lexis Nexis platform and not for contract use or printing, and the original is available for sale at www.fidic.org.

Test your knowledge of a Contractor's rights, obligations, and responsibilities after taking over a construction project, including access to works, remedying defects, and clearance of the site. This quiz covers key clauses related to Contractor's rights and obligations from the FIDIC contract.