78 Questions
What happens if the Contractor fails to comply with removing equipment, surplus material, and Temporary Works from the Site after the issue of the Performance Certificate?
The Employer may sell or dispose of remaining items, reinstate and clean the Site at the Contractor’s cost
Under what circumstances is the Contractor not liable for defects or damage occurring more than two years after the expiry of the Defects Notification Period for the Plant?
Cases of fraud, gross negligence, deliberate default, or reckless misconduct
When are Tests after Completion procedures applicable?
If specified in the Employer’s Requirements
What happens if the Contractor does not attend Tests after Completion?
The Employer may proceed, and the Contractor is deemed to have accepted the readings as accurate
Who is responsible for providing necessary resources for Tests after Completion?
The Employer
What happens if a Test after Completion cannot be completed due to reasons not attributable to the Contractor?
The Works or Section shall be deemed to have passed
Under what circumstances is the Contractor entitled to payment for unreasonable delay by the Employer resulting in incurring costs for Tests after Completion?
Unreasonable delay by the Employer
What happens if the Works or Section fail Tests after Completion?
Applicable clauses for completion of outstanding work, remedying defects, and further tests after remedying defects apply
Under what circumstances is the Employer entitled to payment of additional costs incurred due to failure and retesting?
Failure and retesting attributable to matters listed in the contract
If the Works or Section fail Tests after Completion and applicable Performance Damages are set out in the Schedule of Performance Guarantees, what is the Employer entitled to?
Payment of Performance Damages by the Contractor in full satisfaction of this failure
What is the sequence in which the Tests on Completion should be carried out?
Pre-commissioning tests, commissioning tests, trial operation
When can the tests of each stage described in sub-paragraphs (b) and (c) be commenced?
After the Works or Section have passed the previous stage
When should the Contractor give a Notice to the Engineer during trial operation?
When the Works or Section are operating under stable conditions
What should the commissioning tests include?
Operational tests specified in the Employer’s Requirements
Who owns the products, revenue, or benefits resulting from trial operation?
The Employer
What happens if the Engineer does not issue a Notice within 14 days after reviewing the test reports?
The Engineer is deemed to have given a Notice of No-objection
What happens if the tests are unduly delayed by the Employer?
Interference with Tests on Completion clause applies
When must the Contractor commence the Tests on Completion?
Within 14 days or as instructed by the Engineer
What may the Engineer require if the Contractor unduly delays the tests?
The tests to be carried out within 21 days
Under what circumstances may retesting be required?
If the Works fail the Tests on Completion
What are the Engineer's entitlements if the Works fail the Tests on Completion?
Ordering further repetition of tests or rejecting the Works
What constitutes a taking over under the Employer’s Taking Over clause?
Trial operation and performance testing do not constitute a taking over
Who must submit certified reports of the test results to the Engineer?
The Contractor
Who reviews the test reports and issues a Notice if the results do not comply with the Contract?
The Engineer
What happens if the Engineer considers the effect of the Employer's use of the Works on the test results?
The Engineer may order further repetition of tests
Under what circumstances does the Engineer issue a Notice of No-objection?
If no Notice is given within 14 days
What is the correct sequence for carrying out the Tests on Completion?
Pre-commissioning tests, commissioning tests, trial operation
When can the tests of each stage be commenced?
Before the Works or Section pass the previous stage
When should the Contractor give a Notice to the Engineer during trial operation?
When the Works or Section are ready for any other Tests on Completion
What type of functional tests are included in the pre-commissioning tests?
Dry or cold functional tests
Who is required to submit certified reports of the test results to the Engineer after each stage of the Tests on Completion?
The Contractor
What happens if the Engineer does not give a Notice within 14 days after reviewing the test reports?
The Engineer is deemed to have given a Notice of No-objection
Who owns the products, revenue, or benefits resulting from trial operation?
The Employer
Under what circumstances does the Interference with Tests on Completion clause apply?
If the tests are unduly delayed by the Employer
When must the Contractor commence the Tests on Completion?
Within 14 days or as instructed by the Engineer
What action may the Engineer take if the Contractor unduly delays the tests?
Require the tests to be carried out within 21 days
Under what circumstances may retesting be required?
If the Works fail the Tests on Completion
What entitlements does the Engineer have if the Works fail the Tests on Completion?
Order further repetition of tests or reject the Works
What do trial operation and performance testing not constitute under the Employer’s Taking Over clause?
A taking over
Who reviews the test reports and issues a Notice if the results do not comply with the Contract?
The Engineer
Who considers the effect of the Employer's use of the Works on the test results?
The Engineer
Who must demonstrate compliance with specified criteria and guarantees in the Employer’s Requirements and Schedule of Performance Guarantees?
The Contractor
Who is responsible for paying all taxes, duties, and fees required under the Contract?
The Contractor
When is the Contractor entitled to payment for unreasonable delay by the Employer resulting in incurring costs for Tests after Completion?
When the delay exceeds 14 days
When is the Contractor relieved of the obligation to propose adjustments or modifications to the Works if they fail a test after completion?
If not notified by the Employer during the Defects Notification Period
Under what circumstances may retesting be required?
If the test results do not comply with the Contract
Who initiates Variations before the issue of the Taking-Over Certificate for the Works?
The Engineer
When should the Contractor give a Notice to the Engineer during trial operation?
Within 14 days of the trial operation
What constitutes a taking over under the Employer’s Taking Over clause?
The issue of the Taking-Over Certificate
Who is entitled to make an interest-free advance payment for mobilization and design?
The Employer
Under what circumstances does the Interference with Tests on Completion clause apply?
If the tests are unduly delayed by the Employer
When can the tests of each stage described in sub-paragraphs (b) and (c) be commenced?
Before the issue of the Taking-Over Certificate
Who must submit certified reports of the test results to the Engineer after each stage of the Tests on Completion?
The Contractor
What happens if the Engineer does not give a Notice within 14 days after reviewing the test reports?
The Contractor is entitled to additional payment
If the Contractor fails to propose adjustments or modifications to the Works after completion and is not notified by the Employer during the Defects Notification Period (DNP), what happens?
The Contractor is relieved of the obligation
Under what circumstances is the Contractor entitled to payment for unreasonable delay by the Employer resulting in incurring costs for Tests after Completion?
When the delay is unreasonable
What may the Engineer require if the Contractor unduly delays the tests?
Performance security from the Contractor
When is the Contractor relieved of the obligation to propose adjustments or modifications to the Works if they fail a test after completion?
If not notified by the Employer during the Defects Notification Period (DNP)
Who is responsible for providing necessary resources for Tests after Completion?
The Contractor
Under what circumstances does the Interference with Tests on Completion clause apply?
When the Employer causes interference with the tests
What happens if a Test after Completion cannot be completed due to reasons not attributable to the Contractor?
The Contractor is not held responsible
When can the tests of each stage described in sub-paragraphs (b) and (c) be commenced?
After the Contractor receives a Notice from the Engineer
Who reviews the test reports and issues a Notice if the results do not comply with the Contract?
The Engineer
What is the sequence in which the Tests on Completion should be carried out?
As instructed by the Engineer
Under what circumstances is the Contract Price subject to adjustments, additions, and deductions?
In accordance with the Contract
Who is responsible for paying all taxes, duties, and fees required under the Contract?
The Contractor
If the Contractor fails a test after completion and no notice is received during the Defects Notification Period (DNP), what may they be relieved of?
The obligation to rectify the Works
Under what circumstances is the Contractor entitled to payment for unreasonable delay by the Employer resulting in incurring costs for Tests after Completion?
If the delay impacts completion of the Works
When are variations allowed to be initiated by the Engineer?
Before the issue of the Taking-Over Certificate for the Works
Under what circumstances is the Contractor not obligated to execute variations promptly?
If goods are not readily obtainable
How are adjustments of prices for incomplete Works made?
Using the more favorable index or price 49 days before the expiry of the Time for Completion
What is the Contract Price based on?
The lump sum Accepted Contract Amount, subject to adjustments, additions, and deductions
What should be considered about quantities or price data in a Schedule?
They are estimated and not actual quantities of the Works
When are Tests after Completion procedures applicable?
After the issue of the Taking-Over Certificate for the Works
Under what circumstances does the advance payment Sub-Clause not apply?
If no advance payment is stated in the Contract Data
Who is responsible for providing necessary resources for Tests after Completion?
The Employer
Under what circumstances is the Contract Price valued accordingly?
Subject to adjustments and as per the Contract
What is the Contractor obligated to pay in addition to the Contract Price?
Taxes, duties, and fees required
Study Notes
Conditions of Contract for Plant and Design-Build
- Contractor is not liable for defects or damage occurring more than two years after expiry of the Defects Notification Period for the Plant, except in cases of fraud, gross negligence, deliberate default, or reckless misconduct.
- After the issue of the Performance Certificate, the Contractor must remove equipment, surplus material, wreckage, rubbish, and Temporary Works from the Site, reinstate affected parts of the Site, and leave the Site and Works in the condition stated in the Employer’s Requirements.
- If the Contractor fails to comply, the Employer may sell or dispose of remaining items, reinstate and clean the Site at the Contractor’s cost, and claim costs reasonably incurred in connection with such actions.
- Tests after Completion procedure applies if specified in the Employer’s Requirements.
- The Employer must provide necessary resources for Tests after Completion and carry them out according to specified requirements, O&M Manuals, and Contractor’s guidance.
- If the Contractor does not attend Tests after Completion, the Employer may proceed, and the Contractor is deemed to have accepted the readings as accurate.
- Results of Tests after Completion are compiled and evaluated by both Parties, considering the effect of the Employer’s prior use of the Works.
- Contractor is entitled to payment if unreasonable delay by the Employer results in incurring costs for Tests after Completion.
- If a Test after Completion cannot be completed due to reasons not attributable to the Contractor, the Works or Section shall be deemed to have passed.
- If the Works or Section fail Tests after Completion, applicable clauses for completion of outstanding work, remedying defects, and further tests after remedying defects apply.
- Employer is entitled to payment of additional costs incurred due to failure and retesting, attributable to matters listed in the contract.
- If the Works or Section fail Tests after Completion and applicable Performance Damages are set out in the Schedule of Performance Guarantees, the Employer is entitled to payment of these Performance Damages by the Contractor in full satisfaction of this failure.
FIDIC Contract Conditions Summary
- Contractor can propose adjustments or modifications to the Works if they fail a test after completion and may be relieved of the obligation if no notice is received during the Defects Notification Period (DNP).
- If the Contractor incurs additional cost due to unreasonable delay by the Employer in permitting access to the Works, they are entitled to payment of such costs plus profit.
- Variations may be initiated by the Engineer before the issue of the Taking-Over Certificate for the Works and shall not comprise the omission of any work unless agreed by the Parties.
- The Contractor shall execute variations promptly unless it is unforeseeable, goods are not readily obtainable, affects health and safety or environment, impacts performance guarantees, or affects completion of the Works.
- Adjustment of prices for incomplete Works shall be made using either each index or price applicable 49 days before the expiry of the Time for Completion, or the current index or price, whichever is more favorable to the Employer.
- The Contract Price is the lump sum Accepted Contract Amount, subject to adjustments, additions, and deductions as per the Contract, and the Contractor shall pay taxes, duties, and fees required.
- Any quantities or price data in a Schedule are estimated and not to be taken as the actual and correct quantities of the Works, unless the Particular Conditions state otherwise.
- The Contract Price shall be valued accordingly, subject to adjustments, and if any part of the Works is to be paid according to quantity supplied or work done, the provisions for measurement and valuation shall be as stated in the Particular Conditions.
- If no amount of advance payment is stated in the Contract Data, the advance payment Sub-Clause shall not apply, and after receiving the Advance Payment Certificate, the Employer shall make an interest-free loan for mobilization and design.
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