Red 2017-28-144-51-55.pdf

11.3 Extension of Defects Notification Period The Employer shall be entitled to an extension of the DNP for the Works, or a Section or a Part: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.or...

11.3 Extension of Defects Notification Period The Employer shall be entitled to an extension of the DNP for the Works, or a Section or a Part: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (a) (b) if and to the extent that the Works, Section, Part or a major item of Plant (as the case may be, and after taking over) cannot be used for the intended purpose(s) by reason of a defect or damage which is attributable to any of the matters under sub-paragraphs (a) to (d) of Sub-Clause 11.2 [Cost of Remedying Defects]; and subject to Sub-Clause 20.2 [Claims For Payment and/or EOT]. However, a DNP shall not be extended by more than a period of two years after the expiry of the DNP stated in the Contract Data. If delivery and/or erection of Plant and/or Materials was suspended under Sub-Clause 8.9 [Employer’s Suspension] (other than where the cause of such suspension is the responsibility of the Contractor) or Sub-Clause 16.1 [Suspension by Contractor], the Contractor’s obligations under this Clause shall not apply to any defects or damage occurring more than two years after the DNP for the Works, of which the Plant and/or Materials form part, would otherwise have expired. 11.4 Failure to Remedy Defects If the remedying of any defect or damage under Sub-Clause 11.1 [Completion of Outstanding Works and Remedying Defects] is unduly delayed by the Contractor, a date may be fixed by (or on behalf of) the Employer, on or by which the defect or damage is to be remedied. A Notice of this fixed date shall be given to the Contractor by (or on behalf of) the Employer, which Notice shall allow the Contractor reasonable time (taking due regard of all relevant circumstances) to remedy the defect or damage. If the Contractor fails to remedy the defect or damage by the date stated in this Notice and this remedial work was to be executed at the cost of the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the Employer may (at the Employer’s sole discretion): (a) General Conditions © FIDIC 2017 carry out the work or have the work carried out by others (including any retesting), in the manner required under the Contract and at the Contractor’s cost, but the Contractor shall have no responsibility for this work. The Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the costs reasonably incurred by the Employer in remedying the defect or damage; 57 GENERAL CONDITIONS If the Contractor considers that the work is attributable to any other cause, the Contractor shall promptly give a Notice to the Engineer and the Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the cause (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date of this Notice shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). If it is agreed or determined that the work is attributable to a cause other than those listed above, Sub-Clause 13.3.1 [Variation by Instruction] shall apply as if such work had been instructed by the Engineer. GUIDANCE failure by the Contractor to comply with any other obligation under the Contract. FORMS (d) GENERAL CONDITIONS (b) GUIDANCE (c) FORMS (d) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 11.5 Remedying of Defective Work off Site accept the damaged or defective work, in which case the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to a reduction in the Contract Price. The reduction shall be in full satisfaction of this failure only and shall be in the amount as shall be appropriate to cover the reduced value to the Employer as a result of this failure; require the Engineer to treat any part of the Works which cannot be used for its intended purpose(s) under the Contract by reason of this failure as an omission, as if such omission had been instructed under Sub-Clause 13.3.1 [Variation by Instruction]; or terminate the Contract as a whole with immediate effect (and Sub-Clause 15.2 [Termination for Contractor’s Default] shall not apply) if the defect or damage deprives the Employer of substantially the whole benefit of the Works. The Employer shall then be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to recover from the Contractor all sums paid for the Works, plus financing charges and any costs incurred in dismantling the same, clearing the Site and returning Plant and Materials to the Contractor. The exercise of discretion by the Employer under sub-paragraph (c) or (d) above shall be without prejudice to any other rights the Employer may have, under the Contract or otherwise. If, during the DNP, the Contractor considers that any defect or damage in any Plant cannot be remedied expeditiously on the Site the Contractor shall give a Notice, with reasons, to the Employer requesting consent to remove the defective or damaged Plant off the Site for the purposes of repair. This Notice shall clearly identify each item of defective or damaged Plant, and shall give details of: (a) (b) (c) (d) (e) (f) the defect or damage to be repaired; the place to which defective or damaged Plant is to be taken for repair; the transportation to be used (and insurance cover for such transportation); the proposed inspections and testing off the Site; the planned duration required before the repaired Plant shall be returned to the Site; and the planned duration for reinstallation and retesting of the repaired Plant (under Sub-Clause 7.4 [Testing by the Contractor] and/or Clause 9 [Tests on Completion] if applicable). The Contractor shall also provide any further details that the Employer may reasonably require. When the Employer gives consent (which consent shall not relieve the Contractor from any obligation or responsibility under this Clause), the Contractor may remove from the Site such items of Plant as are defective or damaged. 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. 58 © FIDIC 2017 Conditions of Contract for Construction This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (a) (b) agreeing with such proposed testing; or instructing the repeated tests that are necessary to demonstrate that the remedied Works, Section, Part and/or Plant comply with the Contract. If the Contractor fails to give such a Notice within the 7 days, the Engineer 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 demonstrate that the remedied Works, Section, Part and/or Plant comply with the Contract. All repeated tests under this Sub-Clause shall be carried out in accordance with the terms applicable to the previous tests, except that they shall be carried out at the risk and cost of the Party liable, under Sub-Clause 11.2 [Cost of Remedying Defects], for the cost of the remedial work. 11.7 Right of Access after Taking Over Until the date 28 days after issue of the Performance Certificate, the Contractor shall have the right of access to the Works as is reasonably required in order to comply with this Clause, except as may be inconsistent with the Employer’s reasonable security restrictions. Whenever the Contractor intends to access any part of the Works during the relevant DNP: (a) (b) 11.8 Contractor to Search General Conditions © FIDIC 2017 the Contractor shall request access by giving a Notice to the Employer, describing the parts of the Works to be accessed, the reasons for such access, and the Contractor’s preferred date for access. This Notice shall be given in reasonable time in advance of the preferred date for access, taking due regard of all relevant circumstances including the Employer’s security restrictions; and within 7 days after receiving the Contractor’s Notice, the Employer shall give a Notice to the Contractor either: (i) stating the Employer’s consent to the Contractor’s request; or (ii) proposing reasonable alternative date(s), with reasons. If the Employer fails to give this Notice within the 7 days, the Employer shall be deemed to have given consent to the Contractor’s access on the preferred date stated in the Contractor’s Notice. If the Contractor incurs additional Cost as a result of any unreasonable delay by the Employer in permitting access to the Works by the Contractor, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of any such Cost Plus Profit. The Contractor shall, if instructed by the Engineer, search for the cause of any defect, under the direction of the Engineer. The Contractor shall carry out the search on the date(s) stated in the Engineer’s instruction or other date(s) agreed with the Engineer. 59 GENERAL CONDITIONS GUIDANCE Within 7 days of completion of the work of remedying of any defect or damage, the Contractor shall give a Notice to the Engineer describing the remedied Works, Section, Part and/or Plant and the proposed repeated tests (under Clause 9 [Tests on Completion]). Within 7 days after receiving this Notice, the Engineer shall give a Notice to the Contractor either: FORMS 11.6 Further Tests after Remedying Defects GENERAL CONDITIONS Unless the defect is to be remedied at the cost of the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of the Cost Plus Profit of the search. If the Contractor fails to carry out the search in accordance with this Sub-Clause, the search may be carried out by the Employer’s Personnel. The Contractor shall be given a Notice of the date when such a search will be carried out and the Contractor may attend at the Contractor’s own cost. If the defect is to be remedied at the cost of the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the costs of the search reasonably incurred by the Employer. FORMS GUIDANCE 11.9 Performance Certificate This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org Performance of the Contractor’s obligations under the Contract shall not be considered to have been completed until the Engineer has issued the Performance Certificate to the Contractor, stating the date on which the Contractor fulfilled the Contractor’s obligations under the Contract. The Engineer shall issue the Performance Certificate to the Contractor (with a copy to the Employer and to the DAAB) within 28 days after the latest of the expiry dates of the Defects Notification Periods, or as soon thereafter as the Contractor has: (a) (b) supplied all the Contractor’s Documents; and completed and tested all the Works (including remedying any defects) in accordance with the Contract. If the Engineer fails to issue the Performance Certificate within this period of 28 days, the Performance Certificate shall be deemed to have been issued on the date 28 days after the date on which it should have been issued, as required by this Sub-Clause. Only the Performance Certificate shall be deemed to constitute acceptance of the Works. 11.10 Unfulfilled Obligations 11.11 Clearance of Site After the issue of the Performance Certificate, each Party shall remain liable for the fulfilment of any obligation which remains unperformed at that time. For the purposes of determining the nature and extent of unperformed obligations, the Contract shall be deemed to remain in force. However in relation to Plant, the Contractor shall not be liable for any defects or damage occurring more than two years after expiry of the DNP for the Plant except if prohibited by law or in any case of fraud, gross negligence, deliberate default or reckless misconduct. Promptly after the issue of the Performance Certificate, the Contractor shall: (a) (b) 60 © FIDIC 2017 remove any remaining Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works from the Site; reinstate all parts of the Site which were affected by the Contractor’s activities during the execution of the Works and are not occupied by the Permanent Works; and Conditions of Contract for Construction  If the Contractor fails to comply with sub-paragraphs (a), (b) and/or (c) above within 28 days after the issue of the Performance Certificate, the Employer may sell (to the extent permitted by applicable Laws) or otherwise dispose of any remaining items and/or may reinstate and clean the Site (as may be necessary) at the Contractor’s cost. The Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the costs reasonably incurred in connection with, or attributable to, such sale or disposal and reinstating and/or cleaning the Site, less an amount equal to the moneys from the sale (if any). FORMS 12 Measurement and Valuation This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 12.1 Works to be Measured The Works shall be measured, and valued for payment, in accordance with this Clause. Whenever the Engineer requires any part of the Works to be measured on Site, he/she shall give a Notice to the Contractor of not less than 7 days, of the part to be measured and the date on which and place on Site at which the measurement will be made. Unless otherwise agreed with the Contractor, the measurement on Site shall be made on this date and the Contractor’s Representative shall: (a) (b) either attend or send another qualified representative to assist the Engineer and to endeavour to reach agreement of the measurement, and supply any particulars requested by the Engineer. If the Contractor fails to attend or send a representative at the time and place stated in the Engineer’s Notice (or otherwise agreed with the Contractor), the measurement made by (or on behalf of) the Engineer shall be deemed to have been made in the Contractor’s presence and the Contractor shall be deemed to have accepted the measurement as accurate. Any part of the Permanent Works that is to be measured from records shall be identified in the Specification and, except as otherwise stated in the Contract, such records shall be prepared by the Engineer. Whenever the Engineer has prepared the records for such a part, he/she shall give a Notice to the Contractor of not less than 7 days, stating the date on which and place at which the Contractor’s Representative shall attend to examine and agree the records with the Engineer. If the Contractor fails to attend or send a representative at the time and place stated in the Engineer’s Notice (or otherwise agreed with the Contractor), the Contractor shall be deemed to have accepted the records as accurate. If, for any part of the Works, the Contractor attends the measurement on Site or examines the measurement records (as the case may be) but the Engineer and the Contractor are unable to agree the measurement, then the Contractor shall give a Notice to the Engineer setting out the reasons why the Contractor considers the measurement on Site or records are inaccurate. If the Contractor does not give such a Notice to the Engineer General Conditions © FIDIC 2017 GENERAL CONDITIONS leave the Site and the Works in the condition stated in the Specification (if not stated, in a clean and safe condition). GUIDANCE (c) 61