Key takeaways (at a glance)
- What it is: The Performance Certificate confirms the Contractor has fulfilled obligations after the Defects phase.
- When: After DNP expiry and all notified defects/outstanding work are remedied (Engineer verifies).
- Effect: Final acceptance of the Works regarding defects obligations; some obligations may survive by contract or law (e.g., latent defects).
- Money: Often linked to final/retention release under the contract’s payment clause.
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Quick Q&A
1️⃣ Purpose of Clause 11.9
1999 Edition
Clause 11.9 (Performance Certificate) serves to confirm that the Contractor has fully complied with its obligations under the Contract once the Defects Notification Period (DNP) has expired and all defects notified under Clause 11 (Defects Liability) have been remedied.
The issuance of the Performance Certificate effectively signifies that the Works are complete in all respects, and the Contractor is released from further contractual liability regarding defects (except those obligations clearly stated as surviving beyond this point).
2017 Edition
Clause 11.9 (Performance Certificate) similarly confirms that the Contractor has discharged its obligations after Taking Over but before concluding the contract’s Defects phase (“Defects after Taking Over”).
Upon the Engineer issuing the Performance Certificate, the Contractor is formally acknowledged to have fulfilled the bulk of its obligations, barring any surviving obligations (e.g., indemnities, latent defect liabilities under local law, or other conditions that explicitly continue beyond issuance).
Historical Context
The 1999 Edition refers to “Defects Liability,” whereas the 2017 Edition uses the heading “Defects after Taking Over” but retains essentially the same concept for the final milestone in Clause 11.9.
In 2017, there is a more structured, step-by-step approach to meeting the Engineer’s verification requirements. The procedure is slightly more detailed, reflecting FIDIC’s effort to reduce ambiguities about final acceptance.
2️⃣ Breakdown of Clause 11.9
1999 Edition – Key Provisions
Timeframe for Issuance: Once the Defects Notification Period expires, and the Contractor has remedied all notified defects or completed outstanding work.
Engineer’s Role: The Engineer must verify that all defects have been rectified; if satisfied, the Engineer issues the Performance Certificate.
Effect of Issuance:
Marks the end of the Contractor’s primary obligations.
Triggers the release of retention (unless other sub-clauses hold some retention longer).
Confirms that no further defects liability claims, other than those expressly surviving the DNP, can be made against the Contractor.
2017 Edition – Key Provisions
Pre-Condition for Issuance: Similar approach—Engineer issues the certificate when:
The Contractor has completed the outstanding works under Clause 11 (Defects after Taking Over) and
The Contractor has discharged the responsibilities about remedying any defects or damage.
Engineer’s Verification: The Engineer may have an increased emphasis on verifying compliance with the required documents (e.g., as-built records, handover procedures, test certificates).
Effect of Issuance:
Essentially the same final milestone: the performance obligations relating to defects are deemed complete.
The Contractor still remains liable for latent defects (depending on local law) and any other continuing obligations explicitly stated.
3️⃣ Key Interpretations and Implications
✅ Contractor’s Liability Endgame
Under 1999: Once the Performance Certificate is issued, the Contractor’s liability for further defects is generally extinguished, except for unfulfilled obligations clearly identified under Clause 11.10 (Unfulfilled Obligations) or under law.
Under 2017: Similar concept; however, 2017’s layout clarifies that certain obligations (e.g., indemnities, IP rights, and possibly latent defects) may still survive.
📌 Timing and Procedure
The Engineer plays a crucial “gatekeeping” role. Delay in the Engineer’s issuance can delay the final payment milestones and release of retention money.
If there is an extended period of unresolved defects, the Performance Certificate might be delayed, which affects the Contractor’s cashflow and closure of the project.
🚨 Risk Allocation for Outstanding Snags
Practical concern: The Contractor may argue that minor snags not completed by the DNP expiration date shouldn’t delay the Performance Certificate issuance if they do not affect the Works’ fitness for purpose.
If the Engineer or Employer is overly cautious, the Contractor may remain on the hook indefinitely unless strict timelines to verify remedial works are adhered to.
🔍 Overlap with Taking Over
Clause 10 (Taking Over) deals with the Employer confirming that the Works or a Section are ready for use. Clause 11.9 is the final confirmation that even the remedying of defects is done. Therefore, Clause 11.9 is the ultimate sign-off.
4️⃣ Cross-Referencing Clause 11.9 with Other Clauses
Let’s talk about how Clause 11.9 (the finishing line for the Contractor’s responsibilities after taking over) ties in with other parts of the FIDIC Yellow Book. Think of Clause 11.9 as that final puzzle piece which, once in place, completes the bigger picture of the project lifecycle. But how exactly does it interact with these other crucial clauses?
1. Clause 10 (“Taking Over”)
What’s the gist? Clause 10 deals with the moment the Employer formally “takes over” the Works (either all at once or in sections/parts).
Why does it matter? Even if the Works are taken over, that doesn’t necessarily mean the Contractor is home free. Clause 10 is more like the “Yes, you can start using the building/plant” milestone, whereas Clause 11.9 is the “You’re officially done fixing all defects, you can go celebrate!” milestone.
Key Link: If you read Clause 10 closely, you’ll see how it’s mostly about the Works being “substantially” ready. Clause 11.9 is about them being not just ready, but also having all post-handover defects remedied. It’s the difference between “handing the car keys over” vs. “and the repairs after the test drive are all done too.”
2. Clause 11 (“Defects Liability” in 1999 / “Defects after Taking Over” in 2017)
Why it’s central: Clause 11 sets out the responsibilities and procedures for dealing with any defects. The final reward for completing these obligations is the Performance Certificate in Clause 11.9.
Extensions? You’ll often find references to Sub-Clause 11.3 about extending the Defects Notification Period (DNP). If the Contractor needs more time or if certain defects pop up near the end, that time might get extended. This extension directly impacts when the Performance Certificate is issued.
Cross-check: In 1999, you might see references to remedying defects under Sub-Clauses 11.2 (Cost of remedying defects) and 11.4 (Failure to remedy defects). In 2017, it’s 11.2 and 11.4 with slightly rearranged headings but the same big-picture idea. All roads lead to Clause 11.9 once the dust has settled on remedial works.
3. Clause 14 (“Contract Price and Payment”)
Think money matters. Naturally, the issuance of the Performance Certificate can affect final payments and the release of retention.
1999: Under Sub-Clause 14.9 (Payment of Retention Money), typically a good chunk of retention might get released when the Performance Certificate is handed out.
2017: Look to Sub-Clause 14.9 (Release of Retention Money). Same idea but with a bit more structure about how you release retention in multiple steps. Either way, the Performance Certificate is a big green light that says, “Contractor has done their job. Let’s settle up.”
Practical tip: If the Engineer delays that certificate, the Contractor might be left hanging for the final payment or final retention release. That’s why from the Contractor’s angle, pushing for the Performance Certificate is super important for their cashflow.
4. Clause 1 (“General Provisions”)
Definition of “Performance Certificate”:
In 1999, it’s introduced in Sub-Clause 1.1.3.8.
In 2017, it sits around Sub-Clause 1.1.62.
The key point is that Clause 1 lumps the Performance Certificate into the official dictionary of contract terms. These definitions help everyone speak the same language.
5. Clause 20 (1999) or Clause 21 (2017) (“Claims, Disputes and Arbitration”)
What if something goes awry? Suppose the Contractor believes they’ve remedied all defects, but the Engineer isn’t issuing the Performance Certificate. In that case, they might need to escalate under the claims or dispute resolution procedures.
Why is it relevant? Because the formal sign-off under Clause 11.9 can have a huge financial and legal impact (for instance, final payment, release of retention, or the end of liability for further defects). If there’s a stalemate, the dispute resolution clauses outline how to break it.
6. Clause 12 (“Tests after Completion”) – relevant mostly in 2017 or if included in 1999
Deeper testing: Some projects need extra tests even after the Works have been taken over. If these “Tests after Completion” are spelled out, they also must be ticked off before Clause 11.9 is fully satisfied.
Why mention it here? Because if your project has these extra tests, the Performance Certificate in Clause 11.9 might hinge on their successful completion.
7. Clause 11.7 (1999) or 11.7 (2017) “Right of Access after Taking Over”
Picture this scenario: The Employer has taken over the site, maybe they’ve started using the facility, but the Contractor still needs to come back for certain defect fixes. Clause 11.7 typically says the Contractor must be given access for that. This is crucial for the Contractor to be able to do those last bits of fixes so they can eventually get that Performance Certificate.
The Bottom Line
Imagine Clause 11.9 as the final milestone on a marathon route with various checkpoints (like Clause 10 for partial Taking Over, Clause 14 for payments, and Clause 11’s overall defect-remedying). Once you’ve hit the last checkpoint—remedying all defects, passing all tests, ensuring you didn’t skip any official sign-off—Clause 11.9 says, “Congratulations, you’ve crossed the finish line!” But keep in mind, if issues arise—like outstanding defects, disputes on whether the defects have really been remedied, or if the Engineer won’t issue the certificate—then Clause 20 (1999) or Clause 21 (2017) might come into play to resolve it.
Overall, the synergy among these clauses ensures that:
- The Employer can safely use the Works once Clause 10 taking over happens,
- The Contractor fixes anything that still needs fixing,
- Everyone acknowledges completion via Clause 11.9, and
- Contract closure flows smoothly with the final payment steps in Clause 14 and possible last-minute disputes resolved under Clause 20/21.
Hence, reading Clause 11.9 in isolation won’t give you the full story. You need the entire ecosystem of Clauses 1, 10, 11, 12, 14, and the dispute resolution clauses to understand how that final acceptance moment truly unfolds.
Related guides & tools
These link to other pages on your site to deepen engagement and signal topical authority.
5️⃣ What-If Scenarios?
Tip: If refusal seems unreasonable, keep records of notices, remedial proofs, and the date you requested the certificate—these matter for any Clause 20/21 pathway.
Expanded guidance (practical and PC-ready)
1) Define “Minor Outstanding Works” vs “Major Defects” (with examples)
| Category | Typical Characteristics | Examples |
|---|---|---|
| Minor Outstanding Works | Do not affect safety, operational integrity, or intended use; easily rectifiable without shutting down the Works. | Paint scuffs, missing labels, single light fitting replacement, door closer adjustment, minor landscaping touch-ups. |
| Major Defects | Impact functionality, safety, compliance, or the Employer’s Requirements; prevent normal use until resolved. | Ventilation not operational in multiple rooms, failed waterproofing, structural distress, non-compliant fire doors. |
Practical rule-of-thumb: Minor items shouldn’t block the Performance Certificate if a short post-PC rectification plan is agreed.
2) Engineer’s response time (SLA) and “deemed issuance” fallback
- Notice: Contractor notifies completion of remedials + evidence (photos, test results, sign-offs).
- SLA: Engineer to issue PC or list reasons for refusal within 14–21 days.
- Deemed PC: If no response within the SLA, a “deemed issuance” mechanism can apply (if set in Particular Conditions).
3) Digital/structured handover (what “complete” looks like)
- As-builts: PDF/A + native CAD (DWG) with revision logs; deviations register.
- BIM/CDE: IFC 4.x model + COBie sheets (assets, spaces, systems), data dictionary, QR/asset tags.
- Testing & commissioning: Performance test packs, calibration certificates, “Tests after Completion” results (if applicable).
- O&M set: Equipment manuals, maintenance schedules, spares & consumables lists, warranty matrix and contacts.
- Training: Curriculum, attendance logs, competency sign-offs, video links if available.
- H&S file: As required by law; residual risks, method statements, permits, emergency procedures.
- Registers: Asset register, defects/snags close-out with dates and evidence.
4) Latent defects clarity
Make it explicit that latent defects are not waived by the PC and will follow the applicable law/contract period (e.g., limitation acts). This avoids arguments that the PC closed everything forever.
5) Regulatory sign-offs and fairness
If statutory approvals (e.g., occupancy certificate, fire NOC, electrical inspectorate) are delayed for reasons beyond the Contractor’s control after the Contractor has delivered all inputs, the PC shouldn’t be unfairly withheld.
6) “PC Request Pack” — everything to attach with the notice
- Cover letter citing Clause 11.9 and date of Taking-Over; DNP end date calculation.
- Defects register (before/after), photos, test reports, commissioning certificates.
- As-built drawings + BIM deliverables + COBie; data drop summary.
- O&M manuals, spares lists, warranty contacts and durations.
- Training records and attendance sheets.
- Regulatory submissions/receipts, authority correspondence.
- Any remaining minor items with dates/plan to complete (X days post-PC).
7) Sample Particular Conditions text (ready to paste)
PC 11.9.1 Minor vs. Major Defects “Minor Outstanding Works” means remaining items that do not materially affect the safety, operational integrity, or intended use of the Works. “Major Defects” significantly impact structural integrity, operational viability, safety, or legal compliance. The existence of Minor Outstanding Works shall not preclude the Engineer from issuing the Performance Certificate, provided the Contractor rectifies such items within [X] days after the Certificate date. PC 11.9.2 Engineer’s Response Time (SLA) Within [14/21] days from the Contractor’s written notice confirming completion of remedial works (with evidence), the Engineer shall either issue the Performance Certificate or provide a written statement of reasons for refusal with a list of outstanding items. Failure to respond within the stated period shall result in a deemed issuance. PC 11.9.3 Digital Handover As a condition for the Performance Certificate, the Contractor shall submit as-built drawings (PDF/A + native files), BIM data (IFC, COBie where applicable), O&M manuals, testing & commissioning results, and other deliverables listed in Annex [X]. The Engineer shall review within [X] days. PC 11.9.4 Latent Defects Notwithstanding issuance of the Performance Certificate, the Contractor remains liable for latent defects that could not reasonably have been identified prior to issuance, in accordance with applicable law or Sub-Clause [X]. PC 11.9.5 Regulatory Approvals Where completion requires approvals or permits from authorities, and the Contractor has provided all required inputs and cooperation, delay by such authorities shall not, in itself, delay issuance of the Performance Certificate.
Fill once → apply everywhere
Important: Templates are illustrative. Adapt to your specific Contract, Particular Conditions, and local legal requirements.
Letter 1 Request for Issuance of Performance Certificate (Clause 11.9)
Letter 2 Engineer Acknowledgment of Request for Performance Certificate
Letter 3 Engineer Lists Outstanding Items (Refusal to Issue PC)
Letter 4 Contractor Confirms Completion of Outstanding Items
Letter 5 Engineer Issues Performance Certificate
Pro tip: keep a “Communications Register” log (sent/received dates, method, attachments) to support any Clause 20/21 escalation.