You are here:

Construction Law/Extended warranty and Defects Notification Period

Advertisement


Question
We are using modified FIDIC Yellow Book.

I append below the 2 sub-clauses for your information and advice.
The last paragraph of sub-clause 11.1 is added by the Client as particular requirement of the project(not in the actual Yellow Book).

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-conformities 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.


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.

My questions are:

1)The last paragraph of sub-clause 11.1 used the word “warrant” by the Contractor for two (2) years …….. The word warrant is not defined in the Contract. How would you interpret its meaning? As an example, if a part was replaced, what is our obligation, just send them the part or we have to provide labour to replace it as well?
2) What are the differences between the last paragraph of sub-clause 11.1 and sub-clause 11.3? What I understand is sub-clause 11.3 is to extend the Defects Notification Period of the equipment whereas the last paragraph of sub-clause 11.1 is to warrant against any Works, am I right?
3)In sub-clause 11.3, it mentioned 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. If the Generator provided by us was working but subsequently breakdown, we repaired it then which sub-clause will applies to the situation?
4) How is sub-clause applied, can you give me an example.

Thank you

Answer
Hello Wong,


Good to hear again from you, thank you for your question.

Sorry for answering later than usually, but I am currently travelling and have limited access to internet.

But are you sure you did not ask some time ago the same thing? I am positive I seen before the same modification and same questions ...

Anyway, to answer your queries:

1. "Warrant" means the Contractor has to ensure that Works (equipment and all components included) must perform as required during the whole defects Notification Period and indeed, as the case may be, during the prolongation of it.

Frankly, I do not see the reason of the changed Sub-Clause, original text does the same.

2. 11.3 says the Works are to be under "warranty" and 11.3 says that as a result of such warranty, if the Employer is deprived for a certain period by full usage of the Works, DNP is to be extended with such period.

So yes, you are right, you provided the answer yourself.

3. Under 11.3 you are to warrant all works, generator included. Then if as a result of a failure of that generator, the Employer was deprived from using Works, then the DNP is extended.

If by the contrary, you were on top of the problem and immediately repaired the generator, hence caused no problem to the Employer, there is no effect of that, i.e. no DNP extension.

4. Well, precisely as shown above: if for example repair of the generator takes a few months and Works can not be used by the Employer because of that, DNP has to be extended with the period in which the Employer was deprived from using the Works.

Trust that answer your queries.

Construction Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

©2016 About.com. All rights reserved.