The Process to Carry out when the Employer uses any Part of the Works before the Issuance of the Taking-Over Certificate in accordance with the 2017 FIDIC Red Book

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

The Employer can use any part of the Works, after the Taking-Over Certificate is issued for this part.

There are only two exceptions for this.

A temporary measure or an existence of an agreement.

But in some cases, the Employer uses a part of the Work before the Taking-Over Certificate is issued.

What will be the roles and responsibilities of the Contractor and the Engineer at that point?

In this document, you will find the key issues to successfully manage the process in accordance with the 2017 FIDIC Red Book. 

1   Notice to the Engineer 

1.  The Contractor should apply for a Taking-Over Certificate by giving a Notice to the Engineer.

2.  In this Notice, the Engineer should define the relevant part and the details regarding usage of that part.

2   End of the Contractor’s Liability

When any part of the Works is used or occupied by the Employer the Contractor will have no liability for loss or damage in accordance with Sub-Clause 17.2 [Liability for Care of the Works].

3   Issuance of the Taking-Over Certificate

The Engineer issues a Taking-Over Certificate.

Taking-Over Certificate should include any outstanding work to be completed and/or defects to be remedied.

4   Completing the Outstanding Work and Remedying the Defects

Any part of the Work is to be in the condition required by the Contract by the expiry date of the relevant Defects Notification Period or as soon as practicable. To provide that, the Contractor is to;

Complete any work which is outstanding,

Execute all work to remedy defects,

that are listed in the certificate.

5   Carrying out “Tests on Completion”

The Engineer is to proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the Additional Payment and Extension of Time.

Tests on Completion are specified in detail within the Contract or agreed by both Parties.

Any type of tests that the Contractor is required to carry out should be conducted by the Contractor.

The Engineer must consider whether the Employer’s use of the Works has changed the performance of the works under test.

6   Claiming Costs

The Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of cost plus profit, when the Contractor suffers cost as a result of the Employer’s Taking-Over and/or using a Part of the Work.

7  Reduction of Delay Damages

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, for any period of delay after the date under sub-paragraph (a) of Sub-Clause 10.2 [Taking Over Parts], the Delay Damages for completion of the remainder of the Works shall be reduced [1].

FOOTNOTES

1. The same Sub-Paragraph letters are used as in Sub-Clause 10.2 [Taking Over Parts] of the 2017 FIDIC Red Book.

This information is provided for your convenience and does not constitute any “Legal Advice”. This document is prepared for the general information of the interested persons. This should not be acted upon in any specific situation without appropriate legal advice.

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