Purpose
Clause 11.6 addresses the need for further tests when the work of remedying defects or damages might impact the performance of the Works. This ensures that the quality and functionality of the Works are maintained even after corrective actions have been taken.
Implications
Notification Period: The Engineer must issue a notice for the need for further tests within 28 days after the defect or damage is remedied.
Scope of Testing: The clause allows for the repetition of any tests described in the Contract, including Tests on Completion and/or Tests after Completion.
Cost Liability: The tests are carried out at the risk and cost of the Party liable under Sub-Clause 11.2 [Cost of Remedying Defects].
Technical Standards and Regulations
Building Codes: For instance, in a project in the North United States, the further tests would often need to comply with local or state building codes.
Environmental Regulations: If the Works involve environmental impact, further tests may need to comply with EPA standards.
Expert Opinion
Experts often recommend that Contractors be prepared for this possibility by setting aside resources (time, personnel, and budget) for potential further tests, especially if they are the party liable for the remedial work.
Relevant Illustrations
Suppose a North U.S. construction project involves the remediation of a structural defect in a commercial building. After the defect is fixed, the Engineer invokes Clause 11.6 within 28 days to carry out further tests to ensure the building’s structural integrity. These tests would likely involve stress tests that must comply with the American Concrete Institute (ACI) standards.
Interaction with Other Clauses
Interaction with Clause 11.2 (Cost of Remedying Defects)
Clause 11.6 specifically refers to Clause 11.2 for determining the Party liable for the cost and risk of further tests. This sets the financial responsibility for the remedial work.
Interaction with Clause 9 (Tests on Completion)
Clause 11.6 allows for the repetition of any tests described in the Contract, including Tests on Completion. It directly interacts with the series of sub-clauses under Clause 9, such as Clause 9.1 (Contractor’s Obligations) and Clause 9.4 (Failure to Pass Tests on Completion), to outline the scope and conditions for these tests.
Interaction with Clause 8 (Commencement, Delays, and Suspension)
The need for further tests might impact the project’s timeline. In this context, Clause 11.6 is closely related to Clause 8, particularly:
- Clause 8.2 (Time for Completion)
- Clause 8.7 (Delay Damages)
Varied Phrasings
“When further tests are required under Clause 11.6, financial obligations may revert to the stipulations in Clause 11.2.”
“Additional testing under Clause 11.6 could necessitate revisiting the terms under Clause 9, particularly regarding the Contractor’s obligations and scenarios involving test failures.”
“The timeline implications of invoking Clause 11.6 should be assessed in light of Clause 8, especially clauses related to time for completion and delay damages.”
Key Points to Remember for Clause 11.6: Further Tests
Timely Notification: The Engineer must issue a notice for the need for further tests within 28 days after the defect or damage is remedied. Failure to comply with this timeframe could nullify the need for further tests.
Scope of Tests: Be aware that Clause 11.6 allows for the repetition of any tests defined in the Contract, including Tests on Completion. This means you may need to revisit the terms outlined in Clause 9 for specifics on the scope and conditions of these tests.
Financial Responsibility: The costs for these further tests will be borne by the Party deemed liable under Clause 11.2. This could have financial implications, including potential adjustments to the contract price or other penalties.
Timeline Impact: Invoking Clause 11.6 could affect the project’s completion date. Be prepared to consult Clause 8, especially Clause 8.2 (Time for Completion) and Clause 8.7 (Delay Damages), for understanding how these additional tests might impact the project’s timeline.
Distinct Real-World Instances and Case Studies Concerning Clause 11.6: Further Tests
Case Study 1: Infrastructure Upgrade in Chicago
In a large infrastructure upgrade project in Chicago, Illinois, the Contractor had to replace outdated sewage pipes. After remedying some defects post-installation, the Engineer invoked Clause 11.6 and required further tests within the 28-day period. The tests were to ensure the pipes could withstand extreme weather conditions, as specified in the local building codes. Failure to pass these tests would have had severe environmental consequences.
Case Study 2: Airport Terminal Construction in Denver
During the construction of a new terminal at Denver International Airport, structural deficiencies were discovered in some of the load-bearing columns. After remedial work, the Engineer used Clause 11.6 to require additional stress tests that conformed to the ASTM standards. These tests were critical for ensuring passenger safety and were performed at the Contractor’s cost, as they were liable under Clause 11.2.
Case Study 3: Solar Power Plant in California
In a solar power plant project in California, defects were discovered in the solar panel installations. After the Contractor remedied the defects, the Engineer invoked Clause 11.6 to perform further tests on the solar panel’s efficiency and resilience. Given that the project was partly funded by a green energy grant, failure to meet the efficiency standards would have resulted in financial repercussions.
Case Study 4: School Renovation in Boston
A school renovation project in Boston encountered issues with the newly installed HVAC system. Once the defects were corrected, Clause 11.6 was triggered for further tests to ensure the system met the Indoor Air Quality (IAQ) standards set by the EPA. The tests were carried out within 28 days after the defect was remedied, and the costs were borne by the Contractor.
Flowchart
Start: Need for Further Tests: The process begins when there is a need for further tests, either identified by the contractor or as stipulated in the contract.
Consult Engineer: The contractor consults the Engineer to discuss the necessity and scope of the further tests.
Engineer’s Approval: The Engineer evaluates the need and either approves or disapproves the further tests.
- Yes: If approved, the process moves to preparing a test plan.
- No: If not approved, the contractor reviews the requirements and consults the Engineer again.
Prepare Test Plan: Upon approval, the contractor prepares a detailed test plan outlining the methodology, equipment, and personnel required.
Conduct Tests: The tests are conducted as per the approved test plan.
Record Results: All test results are meticulously recorded for evaluation.
Submit to Engineer: The recorded results are submitted to the Engineer for evaluation.
Engineer’s Evaluation: The Engineer evaluates the test results.
- Satisfactory: If the results are satisfactory, the contractor can proceed with the work.
- Unsatisfactory: If the results are not satisfactory, retests are conducted.
Conduct Retests: In case of unsatisfactory results, the contractor conducts retests as per the Engineer’s recommendations.
Proceed with Work: If the Engineer finds the test or retest results satisfactory, the contractor proceeds with the work.
End: Further Tests Completed: The process ends once the further tests are completed and approved by the Engineer
Nodes and Paths:
Start: Invoke Clause 11.6: The starting point, indicating that Clause 11.6 for Further Tests has been invoked.
Consult Clause 11.2: The next step is to consult Clause 11.2 to determine who is financially responsible for the further tests.
- Financial Responsibility: This node elaborates on the financial obligations as per Clause 11.2.
Consult Clause 9: Simultaneously, Clause 9 is consulted to understand the scope and conditions for the tests.
- 9.1 Contractor’s Obligations: This node elaborates on the contractor’s obligations for the tests.
- 9.2 Delayed Tests: This node discusses the implications of delayed tests.
- 9.3 Retesting: This node talks about the conditions under which retesting may occur.
Consult Clause 8: Another parallel path involves consulting Clause 8 to assess the impact on the project’s timeline.
- 8.2 Time for Completion: This node discusses the timeline for the completion of the tests.
- 8.7 Delay Damages: This node talks about potential delay damages.
- 8.8 Suspension of Work: This node discusses the conditions under which work may be suspended.
Proceed with Tests: After consulting all the relevant clauses and understanding the implications, the tests can proceed.
End: Further Tests Conducted: This is the end point, indicating that the further tests as per Clause 11.6 have been conducted.
Sample Letters
Scenario 1: Engineer Issuing Notice for Further Tests
In this situation, the Engineer needs to issue a formal notice for the requirement of further tests under Clause 11.6.
[Engineer’s Letterhead]
[Date]
[Contractor’s Address]
Subject: Requirement for Further Tests under Clause 11.6
Dear [Contractor’s Name],
Pursuant to Clause 11.6 of our contract, we hereby issue formal notice requiring further tests on the [specific project component]. This notice is being sent within the stipulated 28-day period after the defect or damage was remedied.
The tests should be carried out in accordance with the terms applicable to the previous tests and at the risk and cost of the Party liable under Clause 11.2.
Please confirm your understanding and acceptance of this requirement within [timeframe].
Sincerely,
[Engineer’s Name]
[Engineer’s Position]
Scenario 2: Contractor Acknowledging the Requirement for Further Tests
In this case, the Contractor acknowledges the Engineer’s notice and agrees to conduct the further tests.
[Contractor’s Letterhead]
[Date]
[Engineer’s Address]
Subject: Acknowledgment of Further Tests Requirement under Clause 11.6
Dear [Engineer’s Name],
We hereby acknowledge receipt of your notice dated [Date of Engineer’s Letter] requiring further tests under Clause 11.6. We understand the necessity for these tests and confirm that we will carry them out within the stipulated timeframe and in accordance with the contract terms.
We will keep you updated on the progress and outcomes of these tests.
Best regards,
[Contractor’s Name]
[Contractor’s Position]
Sample Letter for Clause 11.6 Further Tests
[Your Company]
[Address]
[Date]
[Engineer’s Company]
[Address]
Subject: Request for Further Tests Under Clause 11.6
Dear [Engineer’s Name],
As per Clause 11.6 of the FIDIC Yellow Book 1999, we are writing to inform you about the need for further tests on [describe the aspect requiring testing].
Methodology:
[Describe the testing methodology]
Timeline:
[Propose a timeline for the tests]
We kindly request your approval to proceed with these tests. Failure to conduct these tests may lead to [describe potential implications].
Please respond by [Date].
Yours faithfully,
[Your Name]
[Your Position]
Structured Checklists
Checklist 1: Proficient Execution and Deployment of Clause 11.6
| Task Description | Responsible Party | Due Date | Status | Notes |
|---|---|---|---|---|
| Review the scope of initial tests performed | Engineer | |||
| Identify need for further tests | Engineer | Within 28 days of remedying defects | ||
| Issue formal notice for further tests | Engineer | Refer to Clause 11.6 | ||
| Acknowledge notice and prepare for tests | Contractor | |||
| Conduct the further tests | Contractor | At the risk and cost of liable party | ||
| Evaluate test results | Engineer | |||
| Communicate results and next steps | Engineer |
Checklist 2: Applying and Overseeing Clause 11.6
| Step | Responsible Party | Check if Done | Comments |
|---|---|---|---|
| Confirm the completion of initial tests | Engineer | ||
| Determine the need for further tests | Engineer | Within 28-day period | |
| Issue and receive acknowledgment of formal notice | Engineer/Contractor | ||
| Perform the further tests as specified | Contractor | ||
| Review and approve test results | Engineer | ||
| Issue any necessary follow-up actions | Engineer |
Checklist 3: Guiding and Monitoring the Execution of Clause 11.6
| Activity | Checkpoint | Date Completed | Supervisor’s Approval |
|---|---|---|---|
| Initial tests completed | |||
| Decision for further tests made | Within 28 days | ||
| Formal notice for further tests sent and acknowledged | |||
| Further tests conducted | |||
| Test results reviewed | |||
| Next steps (if any) communicated |
Frequently Asked Questions (FAQs) about Clause 11.6: Further Tests
1. What is the main purpose of Clause 11.6?
Answer: The main purpose is to outline the procedure for conducting further tests on a project component after initial tests have been completed and defects have been remedied.
2. Who is responsible for conducting the further tests?
Answer: The Contractor is typically responsible for conducting the further tests, unless otherwise stated in the contract.
3. When should the Engineer issue a notice for further tests?
Answer: The Engineer should issue a formal notice for further tests within 28 days after the defect or damage has been remedied.
4. Who bears the cost of these further tests?
Answer: The cost is generally borne by the Party found to be liable under Clause 11.2: Cost of Remedying Defects.
5. What happens if the further tests are not conducted within the stipulated time?
Answer: Failure to conduct the tests within the stipulated time could lead to various contractual repercussions, including possible penalties.
6. Can the Engineer require tests other than those originally described in the Contract?
Answer: No, Clause 11.6 specifically allows for the repetition of tests that are already described in the Contract.
7. How does Clause 11.6 interact with other clauses?
Answer: It often interacts with Clause 11.2: Cost of Remedying Defects for financial responsibility and with clauses under Clause 9: Tests on Completion and Clause 8: Commencement, Delays, and Suspension for scope and timelines.
8. What should be the next steps after the further tests are completed?
Answer: Once the further tests are completed, the Engineer should review the results and communicate any further actions or approvals needed.
Common Misunderstandings about Clause 11.6: Further Tests
1. Timing of the Engineer’s Notice
Misunderstanding: Some parties believe that the Engineer can issue a notice for further tests at any time after the defects are remedied. Reality: The Engineer must issue the notice within 28 days after the defect or damage has been remedied.
2. Scope of Further Tests
Misunderstanding: The belief that the Engineer can require any new tests that were not originally part of the contract. Reality: Clause 11.6 allows for the repetition of tests already described in the Contract, not for introducing new types of tests.
3. Financial Responsibility
Misunderstanding: The assumption that the cost for further tests will automatically be covered by the Contractor. Reality: The cost is borne by the Party found to be liable under Clause 11.2: Cost of Remedying Defects.
4. Impact on Project Timelines
Misunderstanding: The misconception that further tests won’t affect the project timelines. Reality: Invoking Clause 11.6 may indeed affect the project’s schedule, which might necessitate referring to Clause 8: Commencement, Delays, and Suspension for possible extensions or penalties.
5. Unilateral Decisions by the Engineer
Misunderstanding: Some parties think that the Engineer has sole discretion in determining the need for further tests. Reality: While the Engineer does make the initial decision, it must be in line with the Contract terms and within the 28-day period. The Contractor also has the right to acknowledge and prepare for these tests.
