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Construction Law/FIDIC 1999 Sub Clause 11.3

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Question
Dear Sir,

Please clarify the meaning of this statement in Sub Clause 11.3 in FIDIC 1999..
"If delivery and/or erection of Plant and/or Materials was suspended under Sub-Clause 8.8 [ Suspension of Work ] or Sub-Clause 16.1 [ Contractor’s Entitlement to Suspend Work ], the Contractor’s obligations under this Clause shall not apply to any defects or damage occurring more than two years after the Defects Notification Period for the Plant and/or Materials would otherwise have expired."

Thank You!

Answer
Dear Fernendo

I found this question in the pool and just would like to answer. Please accept the answer although it is late. To understand the meaning of the clause I will explain it with the following example:

Suppose the Completion Period of a Contract is 36 months and the Defect Notification period (DNP) is 24 months (Total 60 months).The Employer is entitled to extend the DNP by a maximum of 24 months, thereby the total period including the extended DNP comes out to be 84 months.

Suppose the contract has been delayed by 4 months due to some reason, therefore the extended completion Period now expires after 40 months and the period including DNP comes to 64 months. AS the Employer is entitled to extend the DNP by a maximum of another 24 months period thereby the total period, including extended DNP, ending after 88 months.

Now suppose that the delay of 4 months as mentioned above, is because of reasons mentioned in the second para of the clause 11.3 and which are mentioned in your question also (Clause 8.8 and 16.1) then the Contractor's obligations under this Clause shall not apply to any defects or damage occurring more than two years after the Defects Notification Period for the Plant and/or Materials would otherwise have expired i.e a total period 84 months (including extended DNP)will be considered and not 88 months.

I hope the issue is now clear. Once again sorry for the delayed response. If any clarification is needed please convey it to me.

Abdul Majid Khan  

Construction Law

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Abdul Majid Khan

Expertise

I am interested in questions related to time Extension, Liquidated Damages,variations, price adjustments,payments, disputes and Dispute Board under FIDIC IV, FIDIC 1999 and FIDIC 2006 Harmonized Documents.

Experience

I have been heading the Construction Management Division and Contract Divisions of National Engineering Services Pakistan (PVT) Limited, NESPAK, the largest Consulting Engineering Firm in Pakistan, for more than seven years and two years respectively. I have also worked as "The Engineer" on a number of projects. I have been working in Saudi Arabia for about seven years on a road projects. Additionally I worked as Arbitrator and am member of few Dispute Boards in individual capacity on Asian Development Bank funded projects.

Organizations
Inland and in Middle East. I have worked with National Engineering Services Pakistan (Pvt) Limited (NESPAK)as my Employer for more than 27 years in Pakistan. In Saudi Arabia I worked for Rashid Engineering, Consulting Engineers during 80s. After retirement I provided advisory services to NESPAK on technical and contractual matters to its various divisions and lately I was appointed as Advisor to Managing Director NESPAK on Technical and Contractual matters. Currently I work as Free Lance Contract Specialist on Fidic Form of Contracts.

Education/Credentials
I am a graduate with a B.E (Civil Engineering) degree. My year of graduation is 1970.

Awards and Honors
A few appreciation Letters and Honorariums during my service in NESPAK. I remained member of Administrative Committee and Board of Management of NESPAK. I had been part of the Management Committee in the absence of Managing Director.

Past/Present Clients
Most of the Clients used to be Government Departments, Corporations and Authorities. In Saudi Arabia the Client was Ministry of Communications. As Arbitrator and Dispute Board (DB) member, I provide services to various Government Departments and Contractors.

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