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Construction Law/Defects Notification Period in FIDIC 99 RB

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QUESTION: After the take-off client did not use the Works. So Did he loose his chances to claim for defects? (I read this in Brian W. Totterdill FIDIC guide book. but could not found any relevant FIDIC clause for this.)

Also, After taking off, client uses Works. then due to some problems he could not use the Works at all. Works must be closed down. So What is the entitlement of Client to recover remedies?
What can contractor do?

please advice.

Thanks

ANSWER: Clause 11.1 from the FIDIC 1999 Red Book says that the Contractor must remedy the defects that were notified by the Employer within the Defects Notification Period (DNP).
It results that in case of any defect notified after the DNP expired, the Contractor is not obliged to remedy it.
So, if the DNP passed, the Employer cannot notify defects anymore, irrespective if he used or not the Works, since the Contractor has no obligation to remedy them.
Though, the Applicable Law should be checked, too, to see if the Contractor's responsibility lasts longer under the Applicable Law.
Hope it helps.
Best regards,
Alina

---------- FOLLOW-UP ----------

QUESTION: I think you did not answer my question.!
DNP is not passed!
1) if employer does not use the Works after taking off, Then Does he entitled to Notify defects? What provision says that?
2) Can you tell some examples for the Applicable laws? in UK what is the particular applicable law?
Thanks

Answer
Dear Sir,
I did answer to your question. My answer explains the mechanism, irrespective where you are, in the DNP or after
I will recap my answer, in more words, using your questions:
"1) if employer does not use the Works after taking off, Then Does he entitled to Notify defects? What provision says that?"
Answer:(I presume that by "taking off" you refer to taking over the Works - if not, please clarify, since "taking off" does not appear in the FIDIC contract) Irrespective if the Employer used or not the Works (i.e. even if the Employer did not use the Works), during the DNP (which starts at the Taking Over of the Works) the Employer can notify defects and the Contractor must remedy them. The Sub-clause 11.1 refers to this. So, if the Employer does not use the Works and we are within the DNP, yes, the Employer is entitled to notify defects. After the DNP, the Employer cannot notify defects if he did not use the Works. After the DNP he cannot notify defects, either, if he did use the Works.
"2) Can you tell some examples for the Applicable laws? in UK what is the particular applicable law?"
The applicable law is the law mentioned in the Appendix to Tender, under the Sub-clause 1.4 [Law and Language] - please see the Appendix to Tender within your Contract to see which is the applicable law in your Contract.
In Romania (I am a Romanian, so I will refer to the Romanian law; for the UK law, you should ask a specialist in UK law), we are using the Romanian Law as the applicable law. Under the Romanian law, the Contractor is responsible of the quality of the Works 10 years after their completion, unless the Contract does not foresees otherwise.
Hope that my answer is clear now.
Best regards,
Alina

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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