How to Issue Taking-Over Certificates in 2017 FIDIC Red and Yellow Books

“Taking-Over is one of the most critical parts of a Construction Project. Well managed Taking-Over process will minimise the potential for disputes.”

Mainly, the Taking-Over process means transferring the risks of the project from the Contractor to the Employer.

Clause 10 in the 2017 Editions of the Red and Yellow Books states the procedure for issuing “Taking-Over Certificate”.

1   BEFORE 
“The Issuance of Taking-Over Certificate”

1.1 Preconditions for Taking-Over

The Works and Tests on Completion are to be completed in accordance with the Contract.

A Notice of No-Objection for the as-built records.

A Notice of No-Objection for the Operation and Maintenance Manuals.

Training by the Contractor (if applicable)

1.2   Inability to Perform “Tests on Completion”

If the Contractor is prevented from carrying out the “Test on Completion” for more than 14 days due to Engineer’s actions;

The Contractor is to give a Notice to the Engineer which describes the details of the prevention.

In this case, the Engineer is to be deemed to have taken the Works on the planned date.

Then, the Engineer is to issue a Taking-Over Certificate.

The Contractor is to realize “Tests on Completion” before the expiry date of the Defects Notification Period (DNP).

1.3 Contractor gives a Notice to the Engineer

The Contractor is to apply for a Taking-Over Certificate not more than 14 days before the Works are completed by giving a Notice to the Engineer.

2   “The Issuance of Taking-Over Certification”

2.1 The Engineer Responses to the Contractor’s Notice

Within 28 days after receiving the Notice of the Contractor, the Engineer responds to the Notice in two ways;

Issues the Taking-Over Certificate

States the completion date of the works except minor outstanding works and defects.

Rejects the Application for the Taking-Over Certificate

The Engineer gives a Notice to the Contractor including information about the rejection, the works to be done, the defects required to be remedied and the documents to be submitted.

2.2 The Usage of the Work before the Issuance of the Taking-Over Certificate

The Contractor is to give a Notice to the Engineer if the Employer uses any part of the work before the issuance of the Taking-Over Certificate.

“The Used Part” is to be deemed to have been taken over by the Employer.

The responsibility regarding “the used part” passes to the Employer from the Contractor.

The Engineer is to promptly issue a Taking-Over Certificate.

3   AFTER 

“The Issuance of Taking-Over Certificate”

3.1 The Contractor is to Carry Out the Outstanding Work

The Contractor is to carry out the minor outstanding works and defects which are listed in the Taking-Over Certificate before the expiry date of the DNP.

3.2 The Cost Incurred by the Contractor

If the Contractor incurs any cost due to the Employer’s taking over process or using any part of the Work, the Contractor is to be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of such Cost Plus Profit.

3.3 Reduction and Calculation of the Delay Damages

The Delay Damages for the completion of the remainder of the Works shall be reduced. This reduction is to 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 whole¹.

3.4   Agreement or Determination

The Engineer is to act under Sub-Clause 3.7 [Agreement or Determination] to agree or determine this reduction.

FOOTNOTES

1. The same Sub-Paragraph letters are used as in Sub-Clause 10.2 [Taking Over Parts] of the 207 FIDIC Red and Yellow Books.

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