Clause- by-clause| FIDIC| Red book |1999|Clause 11

Clause 11- Defects Liability

Sub clauses :-

• Completion of Outstanding Work and Remedying Defects
• Cost of Remedying Defects
• Extension of Defects Notification Period
• Failure to Remedy Defects
• Removal of Defective Work
• Further Tests
• Right of Access
• Contractor to Search
• Performance Certificate
• Unfulfilled Obligations
• Clearance of Site

Detailed Interpretation of sub clauses

• Completion of Outstanding Work and Remedying Defects

Outstanding Work: The Contractor must complete any work that is still pending as of the date specified in the Taking-Over Certificate. This must be done within a reasonable timeframe as instructed by the Engineer.

Remedying Defects: The Contractor is responsible for fixing any defects or damage that are notified by the Employer during the Defects Notification Period. The Employer must notify the Contractor if any defects appear or damage occurs within this period.

Defects Notification Period: This period is specified in the Contract, during which the Contractor must ensure the Works are in the required condition, excluding normal wear and tear.

• Cost of Remedying Defects

Contractor’s Responsibility: The Contractor must bear the cost and risk of remedial work if defects arise from:

• Their design responsibilities.
• Non-compliance of Plant, Materials, or workmanship with the Contract.
• Improper operation or maintenance due to the Contractor’s fault.
• Any failure to meet their obligations under the Contract.

• Extension of Defects Notification Period

Extension Right: The Employer can extend the Defects Notification Period if a defect or damage prevents the use of the Works, Section, or major Plant for its intended purpose.

Limitation: This extension cannot exceed two years beyond the original Defects Notification Period.

• Failure to Remedy Defects

Employer’s Remedies: If the Contractor does not fix a defect within a reasonable time, the Employer can:

• Undertake the work themselves or hire others, charging the Contractor for the costs, after giving notice.
• Recover the costs incurred in fixing the defect from the Contractor.
• Request a price reduction from the Contractor, as determined by the Engineer.

• Removal of Defective Work

Off-Site Repair: If a defect or damage cannot be quickly fixed on-site, the Contractor can, with the Engineer’s consent or instruction, remove the defective part from the site to repair it elsewhere.

• Further Tests

Retesting: If defect remediation might affect the Works’ performance, the Engineer can request a repeat of any Contract-specified tests, including Tests on Completion or Tests after Completion. This request must be made within 28 days of fixing the defect.

• Right of Access

Access Rights: The Contractor has the right to access all parts of the Works and related operation and maintenance records until the end of the Defects Notification Period, unless restricted by the Employer’s reasonable security measures.

• Contractor to Search

Cause Investigation: If the Engineer requires, the Contractor must search for the cause of any defect, as directed by the Engineer. If the defect is not the Contractor’s responsibility under Sub-Clause 11.2, the cost of this search plus reasonable profit will be added to the Contract Price as determined by the Engineer.

• Performance Certificate

Completion Confirmation: The Contractor’s obligations are not considered complete until the Engineer issues the Performance Certificate, indicating the completion date. This certificate must be issued within 28 days after the latest Defects Notification Period ends, or as soon as all required documents are submitted and tests and remedial work are completed. The Performance Certificate signifies the Employer’s acceptance of the Works.

• Unfulfilled Obligations

Ongoing Obligations: Even after the Performance Certificate is issued, both parties remain responsible for any unfulfilled obligations. The Contract is considered active for resolving these outstanding obligations

• Clearance of Site

Site Clearance: After receiving the Performance Certificate, the Contractor must clear the site of all equipment, materials, and temporary works within 28 days. If the Contractor fails to do this, the Employer may sell or dispose of these items and deduct any related costs from the sale proceeds before paying the balance to the Contractor.

In a nut shell

Clause 11 of the FIDIC Red Book 1999 sets out the responsibilities and processes for handling defects and outstanding work post-completion. It details the obligations of the Contractor to complete pending work, remedy defects, and the potential consequences of failing to do so. It also outlines the procedures for extending the Defects Notification Period.