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Construction Law/Extension of Warranty

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QUESTION: We are using modified FIDIC Yellow Book 1999. The Article 11.1 has been modified and now read as
11.    Defects Liability
11.1   Completion of Outstanding Works and Remedying Defects
In order that the Works and Contractor's Documents shall be in the condition required by this Contract and the Implementation Agreement (fair wear and tear excepted) by the expiry date of the relevant Defects Notification Period or as soon as practicable thereafter, the Contractor shall:
(a)   complete any work which is outstanding on the date stated in the Taking-Over Certificate (in the form of the "snag list" referred to under Sub-Article 4.2 (e)), within such reasonable time and priority as is instructed by the Engineer; and
(b)   execute all works required to remedy defects (including but not limited to structural defect), non-conformity or damage, as may be notified by (or on behalf of) the Employer on or before the expiry date of the Defects Notification Period for the Works.
Any portion of the Works which are repaired or replaced during the Defects Notification Period as provided above shall be warranted by the Contractor until the expiration of the Defects Notification Period with respect thereto and the date that is two (2) years after the date on which such repair or replacement was completed.
If a defect appears or damage occurs, the Contractor shall be notified accordingly, by (or on behalf of) the Employer. The Contractor shall maintain qualified and adequate staff and take the adequate measures to ensure the prompt completion of the Outstanding Works and the remedy of any defects.
There is no change in Article 11.3
11.3   Extension of Defects Notification Period
The Employer shall be entitled subject to Sub-Article 2.5 [Employer's Claims] to an extension of the Defects Notification Period for the Works if and to the extent that the Works or a major item of the Terminal (as the case may be, and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage. However, a Defects Notification Period shall not be extended by more than two years.
The second last paragraphs of article 11.1 read
Any portion of the Works which are repaired or replaced during the Defects Notification Period as provided above shall be warranted by the Contractor until the expiration of the Defects Notification Period with respect thereto and the date that is two (2) years after the date on which such repair or replacement was completed.
and the last paragraph was added by the following sentence:

ANSWER: Gentleman,
What is the question?
apologies for responding late as I went out of station.
-- r sivaraman

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

QUESTION: The following was left out in the question:

The Contractor shall maintain qualified and adequate staff and take the adequate measures to ensure the prompt completion of the Outstanding Works and the remedy of any defects.

I find that the added wordings in Article 11.1 and Article 11.3 contradictory, please advise whether the added wordings in article 11.1 are valid or not.

If we are to warrant any portion of Works which are repaired or replaced during the Defects Notification Period for an additional 2 years, does it mean that even a screw that has been replaced need us to warrant 2 years from the date we replaced it. I cannot find any definition to the word "warrant" as well.

Article 11.3 is the Article dealing with Extension of Defects Notification Period, by adding the extra wordings to Article 11.1 to extend the Defects Notification Period is this right?

Article 11.3 refer only to major item that affect the Works need
Extension of Defects Notification Period and not any portion of the Works as stated in the additional wording of Article 11.1. I wish to challenge the validity of the additional wordings in Article 11.1, please advise.

Answer
Dear Mr Wong,
My apologies for responding too late as I was travelling where the connectivity was poor.
Now I got your full question.
If you had already agreed and signed the contract including the latest addition to clause 11.1, it becomes the governing document and it cannot be questioned now. It is valid as long as the contract is valid.
Clause 11.3 defines the conditions under which the defects liability period could be extended for a period of 2 years from the date of expiry of current DLP. (i.e. for defects in major works which prevents the user from using it). The second part of 11.1 is purposely added to cover up any defects in the repairs done during defect liability period. Your understanding is right.

If the defects liability period ends by date X and date of any repair works done is date y, the following is the case.
as per 11.1 For the repair works, the DLP is extended to y+2 years
as per 11.3 For any defects in major works, the DLP is extended to X+2 years.
As the date y falls within date X, under NO circumstances, the DLP could be extended beyond X+2 years.

There is nothing wrong in addicting second part of clause 11.1 as long as it is agreed and made part of signed contract. Someone has intelligently added the words in 11.1 to cover the defects in the repair works too. This includes even replacing the screw in the repair works as mentioned in your question.

I think i have answered your question though very late.
--r sivaraman

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