Red 2017-28-144-46-50.pdf

GENERAL CONDITIONS The Contractor shall submit to the Engineer, not less than 42 days before the date the Contractor intends to commence the Tests on Completion, a detailed test programme showing the intended timing and resources required for these tests. The Engineer may Review the proposed t...

GENERAL CONDITIONS The Contractor shall submit to the Engineer, not less than 42 days before the date the Contractor intends to commence the Tests on Completion, a detailed test programme showing the intended timing and resources required for these tests. The Engineer may Review the proposed test programme and may give a Notice to the Contractor stating the extent to which it does not comply with the Contract. Within 14 days after receiving this Notice, the Contractor shall revise the test programme to rectify such non-compliance. If the Engineer gives no such Notice within 14 days after receiving the test programme (or revised test programme), the Engineer shall be deemed to have given a Notice of No-objection. The Contractor shall not commence the Tests on Completion until a Notice of No-objection is given (or is deemed to have been given) by the Engineer. In addition to any date(s) shown in the test programme, the Contractor shall give a Notice to the Engineer, of not less than 21 days, of the date after which the Contractor will be ready to carry out each of the Tests on Completion. The Contractor shall commence the Tests on Completion within 14 days after this date, or on such day or days as the Engineer shall instruct, and shall proceed in accordance with the Contractor’s test programme to which the Engineer has given (or is deemed to have given) a Notice of No-objection. As soon as the Works or Section have, in the Contractor’s opinion, passed the Tests on Completion, the Contractor shall submit a certified report of the results of these tests to the Engineer. The Engineer shall Review such a report and may give a Notice to the Contractor stating the extent to which the results of the tests do not comply with the Contract. If the Engineer does not give such a Notice within 14 days after receiving the results of the tests, the Engineer shall be deemed to have given a Notice of No-objection. In considering the results of the Tests on Completion, the Engineer shall make allowances for the effect of any use of (any part of) the Works by the Employer on the performance or other characteristics of the Works. 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 FORMS GUIDANCE 9.2 Delayed Tests If the Contractor has given a Notice under Sub-Clause 9.1 [Contractor’s Obligations] that the Works or Section (as the case may be) are ready for Tests on Completion, and these tests are unduly delayed by the Employer’s Personnel or by a cause for which the Employer is responsible, Sub-Clause 10.3 [Interference with Tests on Completion] shall apply. If the Tests on Completion are unduly delayed by the Contractor, the Engineer may by giving a Notice to the Contractor require the Contractor to carry out the tests within 21 days after receiving the Notice. The Contractor shall carry out the tests on such day or days within this period of 21 days as the Contractor may fix, for which the Contractor shall give a prior Notice to the Engineer of not less than 7 days. If the Contractor fails to carry out the Tests on Completion within this period of 21 days: (a) (b) (c) 52 © FIDIC 2017 after a second Notice is given by the Engineer to the Contractor, the Employer’s Personnel may proceed with the tests; the Contractor may attend and witness these tests; within 28 days of these tests being completed, the Engineer shall send a copy of the test results to the Contractor; and Conditions of Contract for Construction 9.3 Retesting 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 9.4 Failure to Pass Tests on Completion Whether or not the Contractor attends, these Tests on Completion shall be deemed to have been carried out in the presence of the Contractor and the results of these tests shall be accepted as accurate. If the Works, or a Section, fail to pass the Tests on Completion, Sub-Clause 7.5 [Defects and Rejection] shall apply. The Engineer or the Contractor may require these failed tests, and the Tests on Completion on any related work, to be repeated under the same terms and conditions. Such repeated tests shall be treated as Tests on Completion for the purposes of this Clause. If the Works, or a Section, fail to pass the Tests on Completion repeated under Sub-Clause 9.3 [Retesting], the Engineer shall be entitled to: (a) (b) (c) (d) order further repetition of Tests on Completion under Sub-Clause 9.3 [Retesting]; reject the Works if the effect of the failure is to deprive the Employer of substantially the whole benefit of the Works in which event the Employer shall have the same remedies as are provided in sub-paragraph (d) of Sub-Clause 11.4 [Failure to Remedy Defects]; reject the Section if the effect of the failure is that the Section cannot be used for its intended purpose(s) under the Contract, in which event the Employer shall have the same remedy as is provided in sub-paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects]; or issue a Taking-Over Certificate, if the Employer so requests. In the event of sub-paragraph (d) above, the Contractor shall then proceed in accordance with all other obligations under the Contract, and the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor or a reduction in the Contract Price as described under sub-paragraph (b) of Sub-Clause 11.4 [Failure to Remedy Defects], respectively. This entitlement shall be without prejudice to any other rights the Employer may have, under the Contract or otherwise. 10 Employer’s Taking Over 10.1 Taking Over the Works and Sections Except as stated in Sub-Clause 9.4 [Failure to Pass Tests on Completion], Sub-Clause 10.2 [Taking Over Parts] and Sub-Clause 10.3 [Interference with Tests on Completion], the Works shall be taken over by the Employer when: (a) (b) General Conditions © FIDIC 2017 the Works have been completed in accordance with the Contract, including the passing of the Tests on Completion and except as allowed in sub-paragraph (i) below; if applicable, the Engineer has given (or is deemed to have given) a Notice of No-objection to the as-built records submitted under Sub-Clause 4.4.2 [As-Built Records]; 53 GENERAL CONDITIONS GUIDANCE if the Employer incurs additional costs as a result of such testing, 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. FORMS (d) GENERAL CONDITIONS (c) (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 FORMS GUIDANCE (e) if applicable, the Engineer has given (or is deemed to have given) a Notice of No-objection to the operation and maintenance manuals under Sub-Clause 4.4.3 [Operation and Maintenance Manuals]; if applicable, the Contractor has carried out the training as described under Sub-Clause 4.5 [Training]; and a Taking-Over Certificate for the Works has been issued, or is deemed to have been issued in accordance with this Sub-Clause. The Contractor may apply for a Taking-Over Certificate by giving a Notice to the Engineer not more than 14 days before the Works will, in the Contractor’s opinion, be complete and ready for taking over. If the Works are divided into Sections, the Contractor may similarly apply for a Taking-Over Certificate for each Section. If any Part of the Works is taken over under Sub-Clause 10.2 [Taking Over Parts], the remaining Works or Section shall not be taken over until the conditions described in sub-paragraphs (a) to (e) above (where applicable) have been fulfilled. The Engineer shall, within 28 days after receiving the Contractor’s Notice, either: (i) (ii) 10.2 Taking Over Parts If the Engineer does not issue the Taking-Over Certificate or reject the Contractor’s application within this period of 28 days, and if the conditions described in sub-paragraphs (a) to (d) above (where applicable) have been fulfilled, the Works or Section shall be deemed to have been completed in accordance with the Contract on the fourteenth day after the Engineer receives the Contractor’s Notice of application and the Taking-Over Certificate shall be deemed to have been issued. The Engineer may, at the sole discretion of the Employer, issue a Taking-Over Certificate for any part of the Permanent Works. The Employer shall not use any part of the Works (other than as a temporary measure, which is either stated in the Specification or with the prior agreement of the Contractor) unless and until the Engineer has issued a Taking-Over Certificate for this part. However, if the Employer does use any part of the Works before the Taking-Over Certificate is issued the Contractor shall give a Notice to the Engineer identifying such part and describing such use, and: (a) 54 © FIDIC 2017 issue the Taking-Over Certificate to the Contractor, stating the date on which the Works or Section were completed in accordance with the Contract, except for any minor outstanding work and defects (as listed in the Taking-Over Certificate) which will not substantially affect the safe use of the Works or Section for their intended purpose (either until or whilst this work is completed and these defects are remedied); or reject the application by giving a Notice to the Contractor, with reasons. This Notice shall specify the work required to be done, the defects required to be remedied and/or the documents required to be submitted by the Contractor to enable the Taking-Over Certificate to be issued. The Contractor shall then complete this work, remedy such defects and/or submit such documents before giving a further Notice under this Sub-Clause. that Part shall be deemed to have been taken over by the Employer as from the date on which it is used; 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 After the Engineer has issued a Taking-Over Certificate for a Part, the Contractor shall be given the earliest opportunity to take such steps as may be necessary to carry out the outstanding work (including Tests on Completion) and/or remedial work for any defects listed in the certificate. The Contractor shall carry out these works as soon as practicable and, in any case, before the expiry date of the relevant DNP. If the Contractor incurs Cost as a result of the Employer taking over and/ or using a Part, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of such Cost Plus Profit. If the Engineer issues a Taking-Over Certificate for any part of the Works, or if the Employer is deemed to have taken over a Part under sub-paragraph (a) above, for any period of delay after the date under sub-paragraph (a) above, the Delay Damages for completion of the remainder of the Works shall be reduced. Similarly, the Delay Damages for the remainder of the Section (if any) in which this Part is included shall also be reduced. This reduction shall be calculated as the proportion which the value of the Part (except the value of any outstanding works and/or defects to be remedied) bears to the value of the Works or Section (as the case may be) as a whole. The Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine this reduction (and for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the Contractor’s Notice under this Sub-Clause shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). The provisions of this paragraph shall only apply to the daily rate of Delay Damages, and shall not affect the maximum amount of these damages. 10.3 Interference with Tests on Completion If the Contractor is prevented, for more than 14 days (either a continuous period, or multiple periods which total more than 14 days), from carrying out the Tests on Completion by the Employer’s Personnel or by a cause for which the Employer is responsible: (a) (b) (c) General Conditions © FIDIC 2017 the Contractor shall give a Notice to the Engineer describing such prevention; the Employer shall be deemed to have taken over the Works or Section (as the case may be) on the date when the Tests on Completion would otherwise have been completed; and the Engineer shall immediately issue a Taking-Over Certificate for the Works or Section (as the case may be). After the Engineer has issued this Taking-Over Certificate, the Contractor shall carry out the Tests on Completion as soon as practicable and, in any case, before the expiry date of the DNP. The Engineer shall give a Notice to the Contractor, of not less than 14 days, of the date after which the Contractor may carry out each of the Tests on Completion. Thereafter, Sub-Clause 9.1 [Contractor’s Obligations] shall apply. 55 GENERAL CONDITIONS GUIDANCE (c) the Contractor shall cease to be liable for the care of such Part as from this date, when responsibility shall pass to the Employer; and the Engineer shall immediately issue a Taking-Over Certificate for this Part, and any outstanding work to be completed (including Tests on Completion) and/or defects to be remedied shall be listed in this certificate. FORMS (b) GENERAL CONDITIONS GUIDANCE 10.4 Surfaces Requiring Reinstatement If the Contractor suffers delay and/or incurs Cost as a result of being prevented from carrying out the Tests on Completion, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit. Except as otherwise stated in the Taking-Over Certificate, a certificate for a Section or Part of the Works shall not be deemed to certify completion of any ground or other surfaces requiring reinstatement. 11 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 FORMS Defects after Taking Over 11.1 Completion of Outstanding Work and Remedying Defects In order that the Works and Contractor’s Documents, and each Section and/ or Part, shall be in the condition required by the Contract (fair wear and tear excepted) by the expiry date of the relevant Defects Notification Period or as soon as practicable thereafter, the Contractor shall: (a) (b) If a defect appears (including if the Works fail to pass the Tests after Completion, if any) or damage occurs during the relevant DNP, a Notice shall be given to the Contractor accordingly, by (or on behalf of) the Employer. Promptly thereafter: (i) (ii) (iii) 11.2 Cost of Remedying Defects (c) © FIDIC 2017 the Contractor and the Employer’s Personnel shall jointly inspect the defect or damage; the Contractor shall then prepare and submit a proposal for necessary remedial work; and the second, third and fourth paragraphs of Sub-Clause 7.5 [Defects and Rejection] shall apply. All work under sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects] shall be executed at the risk and cost of the Contractor, if and to the extent that the work is attributable to: (a) (b) 56 complete any work which is outstanding on the relevant Date of Completion, within the time(s) stated in the Taking-Over Certificate or such other reasonable time as is instructed by the Engineer; and execute all work required to remedy defects or damage, of which a Notice is given to the Contractor by (or on behalf of) the Employer on or before the expiry date of the DNP for the Works or Section or Part (as the case may be). design (if any) of the Works for which the Contractor is responsible; Plant, Materials or workmanship not being in accordance with the Contract; improper operation or maintenance which was attributable to matters for which the Contractor is responsible (under Sub-Clauses 4.4.2 [As-Built Records], Sub-Clause 4.4.3 [Operation and Maintenance Manuals] and/or Sub-Clause 4.5 [Training] (where applicable) or otherwise); or Conditions of Contract for Construction