Views in the last 30 days: 70
Estimated read time: 41 minute(s)
🔹 1️⃣ Purpose of the Contractor’s Care of the Works Clause
This clause—though often tucked away behind the more glamorous payment and variation clauses—is one of the most critical risk allocation tools in the FIDIC Yellow Book. At its heart, it answers a very big question:
❓ “Who is responsible if something goes wrong on site before the project is officially handed over?”
Let’s walk through it, edition by edition, to see how the purpose has evolved and matured over time.
📘 FIDIC 1999 – Clause 17.2 [Contractor’s Care of the Works]
In the 1999 edition, Clause 17.2 puts the Contractor in the driver’s seat when it comes to the care and custody of the Works, starting from the very beginning:
🧾 “The Contractor shall take full responsibility for the care of the Works and Goods from the Commencement Date until the Taking-Over Certificate is issued…”
So, from Day 1 on site (the Commencement Date) all the way until the Engineer issues the Taking-Over Certificate, the Contractor is accountable for protecting:
- The Works (i.e., everything built or being built),
- The Goods (supplied materials, components),
- And the Contractor’s Documents.
👉 The moment a Taking-Over Certificate is issued—whether for the full Works or just a Section or Part—the responsibility transfers to the Employer.
💡 Why is this important? Because if there’s an earthquake, fire, theft, flooding, or even sabotage—and the cause isn’t one of the Employer’s Risks (defined under Clause 17.3)—the Contractor is expected to rectify everything at their own cost.
But it doesn’t stop there! Even after Taking-Over, the Contractor is still liable for:
- Any damage caused by their own actions.
- Any issue that started before Taking-Over but materialized afterward.
📌 The essence?
“Until the Employer takes over, the Contractor is the legal guardian of the site. And even after Taking-Over, if it was your mess, you still own it.”
📙 FIDIC 2017 – Clauses 17.1 [Responsibility] & 17.2 [Liability for Care]
Now let’s fast-forward nearly two decades. The 2017 edition keeps the core intent but gives it more clarity, more structure, and more fairness.
In fact, what was one clause in 1999 is now split into two:
🧱 Clause 17.1 – Responsibility for Care
This clause defines the timing and scope of the Contractor’s care—mirroring the 1999 version in many ways:
🧾 “…from the Commencement Date until the issue (or deemed issue) of the Taking-Over Certificate… when responsibility… shall pass to the Employer.”
BUT here’s a key upgrade:
❗️It also adds a provision for termination. If the Contract is terminated—whether lawfully or unlawfully—the Contractor’s responsibility ends on the termination date. ✅
That’s a smart and much-needed addition because 1999 was silent on what happens if the contract gets terminated mid-project.
⚖️ Clause 17.2 – Liability for Care
This is where the magic happens. This clause answers: “What exactly is the Contractor liable for, and what are the exceptions?”
🧾 “The Contractor shall be liable for any loss or damage caused by the Contractor to the Works… even after the Taking-Over Certificate is issued.”
But unlike 1999, this clause doesn’t just stop at saying the Contractor is liable—it also says when the Contractor is NOT liable. 👇
It lists six detailed exceptions where the Contractor has no liability (unless the damage occurred to something already rejected by the Engineer):
- (a) Interference with easements (unless caused by Contractor’s method),
- (b) Employer’s use/occupation of Permanent Works,
- (c) Design errors in Employer’s Requirements (unless discoverable),
- (d) Unforeseeable natural forces (not in Contract Data),
- (e) Exceptional Events (Clause 18.1),
- (f) Acts/defaults of Employer or other contractors.
💡 The message here?
“Yes, you’re still responsible. But if it’s outside your control or not your fault, we’re not going to hang you for it.”
On top of that, it introduces a well-thought-out response system:
- Contractor must notify the Engineer when damage results from one of the above exceptions.
- Engineer may instruct rectification—but this is then treated as a Variation (Clause 13.3.1).
- If it qualifies under Clause 18.4 [Exceptional Events], the Contractor may also get EOT and/or Cost compensation.
🎯 So What’s the Real Purpose?
Across both editions, the primary goal is to draw a clear line of responsibility for the care of the project until it’s officially taken over by the Employer.
But here’s how it evolves:
| 1999 Edition | 2017 Edition |
|---|---|
| Focuses on broad risk transfer. | Focuses on clearer rules, defined exceptions, and fairer liability sharing. |
| Assumes the Contractor is liable unless it’s an Employer’s Risk (vaguely listed). | Clearly lays out specific exclusions where Contractor isn’t liable. |
| Doesn’t handle termination scenarios well. | ✅ Fixes that by releasing Contractor’s care responsibility upon termination. |
| Doesn’t define what happens in shared-fault cases. | ✅ Introduces proportional entitlement where both Contractor and Employer share liability. |
💬 Final Word on Purpose
This clause is really about risk stewardship. In 1999, it said: “You built it, you guard it.”
In 2017, it says: “You still guard it—but we understand life is messy, and here’s what happens when blame gets shared.”
🧠 It’s no longer just about care; it’s about smart and fair care.
📊 Contractor’s Care of the Works – Comparison Table
| Aspect | FIDIC 1999 (Clause 17.2) | FIDIC 2017 (Clauses 17.1 & 17.2) |
|---|---|---|
| Clause Number & Title | Clause 17.2 – Contractor’s Care of the Works | Clause 17.1 – Responsibility; 17.2 – Liability for Care |
| Period of Responsibility | Commencement Date to Taking-Over Certificate | Commencement Date to Taking-Over Certificate (or Termination) |
| Trigger for Transfer of Care | Taking-Over Certificate (actual or deemed) | Taking-Over Certificate (actual or deemed), or Termination |
| Responsibility for Outstanding Work | ✅ Yes – Contractor responsible for outstanding work post-Taking-Over | ✅ Yes – Until completion post Date of Completion |
| Post-Taking-Over Liability | ✅ Yes – For actions after Taking-Over or faults before it | ✅ Yes – If damage arises from Contractor or pre-Taking-Over fault |
| Exclusions to Contractor’s Liability | 🚫 Not detailed – relies on general Employer’s Risks (Clause 17.3) | ✅ Six explicit exclusions listed (a–f), including Exceptional Events and Employer faults |
| Reference to Employer’s Risks | Broadly listed in Clause 17.3 (not itemized) | Detailed and cross-referenced to Clause 18.1 (Exceptional Events) |
| Handling Shared Liability Events | ❌ Not addressed | ✅ Yes – Proportional EOT/Cost recovery where Contractor and Employer both contribute |
| Reference to Variations | ❌ Rectification not treated as Variation | ✅ Rectification instructed by Engineer becomes a Variation (Clause 13.3.1) |
| Exceptional Events Coverage | General reference under Employer’s Risks | ✅ Explicit link to Clause 18.4 for consequences (EOT/Cost) |
| Requirement for Notice | 🚫 Implied only | ✅ Required – Contractor must promptly notify Engineer if exclusions apply |
| Right to EOT/Cost Recovery | 🚫 Not structured | ✅ Via Sub-Clause 20.2 – entitlement to EOT and/or Cost plus Profit |
🔹 2️⃣ Breakdown of the Clause
🧱 FIDIC 1999 – Clause 17.2 [Contractor’s Care of the Works]
This clause has a simple structure—but there’s a lot going on beneath the surface. Let’s take it piece by piece, with each part explained like we’re on-site together. 👷♂️🔍
📌 Part 1: Timing of Responsibility
“The Contractor shall take full responsibility for the care of the Works and Goods from the Commencement Date until the Taking-Over Certificate is issued…”
👉 Translation: As soon as you start the job, the project is your baby. That includes the Works, the Goods, and everything that comes with it.
And when does this stop?
“…when responsibility for the care of the Works shall pass to the Employer.”
✅ So, once the Taking-Over Certificate is issued (or deemed issued) under Sub-Clause 10.1, the torch passes to the Employer. 🏁
“If a Taking-Over Certificate is issued… for any Section or part… responsibility shall then pass to the Employer.”
💡 This means even if the whole project isn’t done, and just one Section is taken over, the Employer assumes risk for that Section alone. Very important for phased handovers.
📌 Part 2: What About Outstanding Work?
“The Contractor shall take responsibility for the care of any work which is outstanding… until this outstanding work has been completed.”
This part answers the “What if the work isn’t 100% complete?” question.
Let’s say the Employer has taken over the Works, but you still have some minor finishes or defect correction left—you’re still liable for anything that happens to those unfinished parts.
🛠 It’s like handing over a car, but keeping the key to the glovebox—you’re still on the hook for what’s inside.
📌 Part 3: What if Something Goes Wrong?
“If any loss or damage happens… from any cause not listed in Sub-Clause 17.3 [Employer’s Risks], the Contractor shall rectify… at the Contractor’s risk and cost…”
This is the biggest clause trigger. Any damage that occurs while you’re responsible, and that is not an Employer’s Risk, is your burden to fix—and you pay for it. 💸
Examples:
- Theft from site? You pay.
- Collapse due to poor workmanship? You pay.
- Lightning strike? Depends—check Clause 17.3 to see if it’s an Employer’s Risk (e.g., war, riots, acts of God, etc.).
The goal is to ensure that the Works, Goods, and Documents still conform to the Contract, even after restoration.
📌 Part 4: After Taking-Over… Are You Still Liable?
“The Contractor shall be liable for any loss or damage caused by any actions performed by the Contractor after a Taking-Over Certificate has been issued.”
💥 That’s a critical one. If your team comes back to do finishing work or testing, and something gets damaged due to your actions, you own the consequences, even post-Taking-Over.
Also:
“…liable for any loss or damage which occurs after a Taking-Over Certificate… which arose from a previous event for which the Contractor was liable.”
This means:
- If a hidden problem (say, a faulty weld) causes damage after handover, but the issue existed before, the Employer can still hold you responsible. 🚨
🧱 FIDIC 2017 – Clause 17.1 [Responsibility for Care] & Clause 17.2 [Liability for Care]
Now, let’s look at the 2017 edition, where things get a lot more granular and refined.
📌 Clause 17.1 – Timing and Termination
“…the Contractor shall take full responsibility for the care of the Works, Goods and Contractor’s Documents from the Commencement Date until the issue (or deemed issue) of the Taking-Over Certificate…”
Sounds familiar? It should—this is almost verbatim from 1999, but with a powerful addition:
“If the Contract is terminated… the Contractor shall cease to be responsible for the care of the Works from the date of termination.”
✅ This is a smart update. The 1999 clause didn’t say what happens to risk responsibility if the Contract is terminated early. In 2017, they fix that—you stop being responsible from the date of termination.
📌 Clause 17.2 – Post-Taking-Over and Exclusions
Now we move into liability mode.
“The Contractor shall be liable for any loss or damage caused by the Contractor to the Works… after the issue of a Taking-Over Certificate.”
Again—your actions, your problem, no matter when they happen.
But here’s the twist: the 2017 edition introduces six clear-cut exclusions, where the Contractor is not liable:
🔹 (a) Interference with easements (unless caused by method of construction)
🔹 (b) Employer’s use or occupation of Permanent Works
🔹 (c) Fault in Employer’s design (unless it was discoverable)
🔹 (d) Unforeseeable natural forces (not assigned to Contractor in Contract Data)
🔹 (e) Exceptional Events (like war, civil unrest—see Clause 18.1)
🔹 (f) Acts or defaults of Employer or Employer’s personnel/contractors
🚨 Big improvement over 1999: These exclusions were vague or scattered in the older version. Here, they are structured, precise, and contractor-friendly.
But don’t celebrate just yet—there are still responsibilities.
“The Contractor shall promptly give a Notice to the Engineer…”
If an exclusion applies and damage occurs, you must notify the Engineer.
Then what?
“Thereafter, the Contractor shall rectify any such loss/damage… to the extent instructed by the Engineer.”
So even if it’s not your fault, you might still be asked to fix it. But:
🧾 That instruction is treated as a Variation (Clause 13.3.1)
💰 You may claim EOT and/or Cost Plus Profit if you’re entitled (under Clause 20.2)
💥 If it’s an Exceptional Event, you may trigger rights under Clause 18.4
🎁 Bonus Detail: Combination Clause
What if it’s a mix of both?
“If the loss results from both an excluded event (a–f) and a cause for which the Contractor is liable…”
✅ The 2017 edition smartly offers proportional entitlement. You may still get partial EOT and cost relief based on how much each factor contributed.
💬 In Summary
Here’s how both editions break it down:
| Theme | FIDIC 1999 | FIDIC 2017 |
|---|---|---|
| When risk starts and ends | Commencement → Taking-Over | Commencement → Taking-Over or Termination |
| Risk transfer by section? | ✅ Yes | ✅ Yes |
| Outstanding work post Taking-Over | ✅ Contractor responsible | ✅ Same |
| Liable for post-Taking-Over actions? | ✅ Yes | ✅ Yes |
| Clear liability exclusions? | ❌ General Employer Risks only | ✅ Six detailed exclusions |
| Requires notice for exclusions? | ❌ Not explicitly | ✅ Yes |
| Rectification of excluded-event damage | ✅ Contractor bears cost | ✅ Contractor may be instructed; variation + entitlement possible |
| Shared liability handling? | ❌ No provision | ✅ Proportional cost/EOT allowed |
🔹 3️⃣ Key Interpretations and Implications (in conversational tone)
This section tackles the real-world consequences of what the clause says. We’ll unpack the obligations, carve out the exclusions, and highlight risks that Contractors and Employers must never overlook.
🧠 Interpretation #1: “You break it, you fix it… unless it’s not your fault.”
Both editions clearly make the Contractor the custodian of the Works from the Commencement Date all the way to Taking-Over. But that doesn’t just mean you’re responsible for construction—it means you’re also liable for damage, theft, fire, accidental loss, or even sabotage… unless it’s caused by something the Employer is responsible for.
Let’s put this in simple terms:
🔧 You’re not just building the house—you’re also babysitting it until it’s officially handed over.
So, if scaffolding collapses because of wind and the wind wasn’t categorized as an Employer’s Risk in 1999 (Clause 17.3) or wasn’t marked as “Unforeseeable” in 2017 (Clause 17.2(d)), the Contractor pays to replace it.
✅ Implication: It’s essential to review what’s listed as Employer’s Risks (1999) or what’s excluded under Sub-Clause 17.2(a)-(f) (2017). Otherwise, the Contractor might be stuck footing the bill for something they couldn’t have predicted or prevented.
🧠 Interpretation #2: Damage after Taking-Over? It depends on when and why it happened.
One subtle—but hugely important—feature in both editions is that responsibility doesn’t vanish at Taking-Over. Here’s what each edition says:
- 1999: You’re still liable if the damage is:
- Caused by your team after Taking-Over, or
- Caused by a problem that started before Taking-Over but wasn’t discovered yet.
- 2017: Same idea—but better worded. Clause 17.2 (2017) clarifies that if the Contractor causes post-Taking-Over damage OR if the cause originated during the Contractor’s liability period, they still have to fix it.
💬 Think of it like this: If a small crack in a retaining wall goes unnoticed, but turns into a collapse weeks after handover—you may still be liable if it can be traced back to something you did (or didn’t do).
✅ Implication: Contractors must document everything, especially site conditions and defect statuses before Taking-Over, to avoid being blamed for post-handover issues.
🧠 Interpretation #3: 2017 is more Contractor-friendly—but only if you follow the process.
This is where the 2017 edition shines. It gives Contractors explicit protection through six exclusions under Clause 17.2 (a–f). These carve-outs are gold, but there’s a catch:
🛎️ You only get protection if you give Notice to the Engineer promptly.
And what happens then?
- The Engineer may instruct you to fix the damage anyway.
- BUT—it will be treated as a Variation under Clause 13.3.1 ✅
- AND—you may be entitled to EOT and/or Cost Plus Profit, provided you use Clause 20.2 to file a proper claim. 💼💰
💬 So the rule is: “If it’s not your fault, raise your hand—fast. Then let the claim machinery do the rest.”
✅ Implication: The 2017 clause gives more rights—but you have to play by the rules (notice, engineer’s instruction, variation claim). No shortcuts.
🧠 Interpretation #4: Shared fault? FIDIC 2017 introduces proportional recovery. 🙌
Now here’s a gem from the 2017 version that doesn’t exist in 1999:
🧾 “If the loss/damage results from both an excluded event AND a cause for which the Contractor is liable…”
👉 Then the Contractor is entitled to partial EOT and/or Cost, to the extent the excluded event contributed.
💡 This is a huge step forward in fairness. Construction disasters are rarely 100% one party’s fault. If an Employer’s design was flawed AND the Contractor missed it—now there’s room for shared responsibility and proportional recovery.
✅ Implication: Contractors should always analyze all contributing factors to an incident—and push for proportionate recovery where justified.
🧠 Interpretation #5: Insurance vs. Clause 17.2 – Who pays first?
This is a question that causes a lot of confusion in practice. If something is lost or damaged, and you’re liable under Clause 17.2, can you claim under your project insurance?
Yes—but be careful.
- FIDIC contracts typically require the Contractor to insure the Works (Clause 18.2 in 1999 / Clause 19.2 in 2017).
- But insurance may exclude certain events, or only pay out after you prove it wasn’t your fault.
💬 So if you’re liable under Clause 17.2 and insurance won’t pay, you’re still on the hook—unless it’s one of the carved-out exclusions (2017) or an Employer’s Risk (1999).
✅ Implication: Always read your insurance policies alongside Clause 17.2. Ensure alignment between your risk exposure and your insurance coverage.
🧠 Interpretation #6: Termination and Risk Transfer – A 2017 innovation
The 1999 version forgot to say what happens if the Contract is terminated early. This created confusion: Is the Contractor still liable for the site? The materials? The damage?
The 2017 edition fixes this. It says clearly:
🧾 “The Contractor shall cease to be responsible for the care of the Works from the date of termination.”
✅ Implication: This gives Contractors a clean legal cut-off if the contract is terminated. But until that formal termination date, the risk remains theirs.
🚧 Summary of Key Obligations, Exclusions & Risks
| Topic | FIDIC 1999 | FIDIC 2017 |
|---|---|---|
| Core Responsibility | Contractor responsible until Taking-Over | Same, but stops at Termination if it occurs |
| Post-Taking-Over Liability | Still liable if caused by you or past events | Same, but better defined |
| Exclusions | General Employer’s Risks (Clause 17.3) | 6 detailed carve-outs (Clause 17.2 a–f) |
| Shared Risk Handling | ❌ Not addressed | ✅ Proportional remedy available |
| Notices | Not required | ✅ Mandatory to trigger relief |
| Variation for Fixing Damage | ❌ Not formalized | ✅ Clearly treated as a Variation (Clause 13.3.1) |
| Right to EOT/Cost | Ambiguous | ✅ Available via Clause 20.2 (if justified) |
| Insurance Interaction | Must be inferred | Cross-referenced more clearly in practice |
🔚 Final Word: It’s All About Managing Risk Before It Strikes
If you’re a Contractor, these clauses are about proactive risk ownership—but with the ability to shield yourself when events are truly outside your control.
If you’re an Employer, the clause gives you certainty: you know who’s responsible and when, and you have legal recourse if a Contractor causes damage—even after Taking-Over.
But here’s the trick: in 2017, FIDIC added a lot of fairness—but it also added process. So whether you’re fixing a damaged retaining wall or replacing stolen site equipment, you’ll need to act fast, notify smart, and document everything.
🔹 4️⃣ Cross-Referencing with Other Clauses
“Understanding one clause is good. But understanding how it connects to others? That’s how you become a contract ninja. 🥷📘”
🧩 Starting Point: Who holds the baton, and when?
One of the most critical connections to make is with Clause 10.1 [Taking Over of the Works and Sections].
🔁 Cross-reference #1: Clause 10.1 – Taking Over
✅ 1999 Edition:
“The Employer shall take over the Works when they have been completed in accordance with the Contract…”
Clause 17.2 (1999) says:
“…until the Taking-Over Certificate is issued (or deemed to be issued under Clause 10.1)… responsibility remains with the Contractor.”
That means:
- The exact moment of risk transfer hinges on the Engineer issuing a Taking-Over Certificate, or it’s deemed issued (say, if the Engineer fails to issue it within 28 days of the Contractor’s application).
- If that hasn’t happened, then guess what? The Contractor is still liable, even if the Works seem ready.
💡 Practical Implication: Contractors should be hyper-vigilant in triggering and following up on the Taking-Over process. Don’t delay your application—and don’t assume responsibility has shifted just because physical work is done.
✅ 2017 Edition:
Same concept, slightly more refined:
Clause 17.1 (2017) says:
“…until the issue (or deemed issue) of the Taking-Over Certificate…”
Again, this cross-refers to Clause 10.1, which in the 2017 version is more process-heavy and deadline-specific. If the Engineer drags their feet, and the conditions for taking-over are satisfied, the Certificate is deemed issued—and risk passes to the Employer.
📎 Key Insight: If the Taking-Over Certificate is delayed due to inaction by the Engineer or Employer, risk doesn’t stay with the Contractor forever—the contract gives you an escape hatch through deemed issuance.
🧩 Next Link: What if it’s not your fault?
Now we get to one of the most powerful friends (or enemies) of Clause 17.2…
🔁 Cross-reference #2: 1999 – Clause 17.3 [Employer’s Risks]
The entire loss and damage liability system in the 1999 version revolves around whether something is an “Employer’s Risk.”
Clause 17.2 (1999) says:
“…from any cause not listed in Clause 17.3, the Contractor shall rectify at his own cost.”
So what’s in Clause 17.3?
Here’s a quick taste:
- War, rebellion, riots
- Use or occupation by the Employer
- Design errors by the Employer
- Unforeseeable natural forces
These are basically the 1999 version’s escape routes—but they’re not tightly defined, and they lack a structured claims pathway.
✅ Cross-reference takeaway: To argue exemption in 1999, you must prove the loss was caused only by one of these Employer’s Risks. If there’s any gray area or dual cause, you’re probably still on the hook. No shared liability option here.
🔁 Cross-reference #3: 2017 – Clause 17.2(a) to (f) + Clause 18.1 / 18.4 (Exceptional Events)
Now in FIDIC 2017, this gets a major upgrade. Instead of only pointing to “Employer’s Risks,” we now get a modernized carve-out list in Clause 17.2 (a–f) AND a link to the Exceptional Events framework in Clause 18.
Let’s connect the dots:
- Clause 17.2 (e) mentions Exceptional Events ➡ which are defined in Clause 18.1
- Clause 18.4 explains what happens if an Exceptional Event causes delay or cost:
You may be entitled to EOT and/or Cost, subject to proper notice under Clause 18.2 and claim under Clause 20.2.
💬 In plain terms: “If something bad happens and it’s not your fault, don’t just fix it—claim your time and money too.”
🧩 What happens if you’re instructed to fix it anyway?
🔁 Cross-reference #4: Clause 13.3.1 [Variation by Instruction] (2017)
Clause 17.2 (2017) says:
“Such instruction [to rectify damage not caused by the Contractor] shall be deemed a Variation under Clause 13.3.1.”
This is a huge win for Contractors. In 1999, even if you were fixing damage from someone else’s fault, you had no clear right to payment—unless you negotiated it.
Now in 2017:
- The Engineer can instruct you to do the rectification,
- But that automatically counts as a Variation, with a right to claim Cost plus Profit via Clause 13.3.1.
📎 Cross-reference takeaway: It’s no longer a judgment call—it’s built-in protection for extra work.
🧩 Shared fault? Enter proportionality.
🔁 Cross-reference #5: Clause 20.2 [Claims for Payment and/or EOT] (2017)
Clause 17.2 (2017) allows for shared liability. If the damage is due to both:
- An excluded event (like war), AND
- Contractor’s own fault…
Then the Contractor is entitled to a proportion of EOT and/or Cost, and must claim it under Clause 20.2.
💬 “If blame is shared, recovery is shared. But only if you follow the claims process.”
So, Clause 20.2 is now the Contractor’s official route to recover partial time/money based on the Engineer’s assessment.
🧩 Termination scenarios?
🔁 Cross-reference #6: Clause 15.2 (Employer’s Termination) + 17.1 (2017 only)
One of the hidden flaws of 1999 Clause 17.2 is that it’s silent on what happens if the Contract gets terminated before Taking-Over.
That created headaches like:
- “Is the Contractor still responsible for site security?”
- “What if materials get stolen post-termination?”
2017 fixes this. Clause 17.1 says:
“The Contractor shall cease to be responsible for the care of the Works from the date of termination.”
📎 Cross-reference takeaway: In a termination scenario, clarity = sanity. The Contractor can walk away without surprise liability—but only under the structured framework of Clause 15.2 and its formal termination process.
🧩 Rejected work and exclusions?
🔁 Cross-reference #7: Clause 7.5 [Defects and Rejection] (2017)
One final twist: even if one of the six exclusions applies in 2017, the protection does not apply if the damaged item was previously rejected by the Engineer under Clause 7.5.
So if the Contractor was already told:
“This doesn’t comply—fix it,”
…and then that item is damaged due to an Exceptional Event or force of nature, the Contractor remains liable.
⚠️ You can’t hide behind an earthquake when the wall was already cracked.
✅ Summary Table: Key Cross-References
| Clause Being Cross-Referenced | Purpose/Impact | Applies To |
|---|---|---|
| Clause 10.1 – Taking-Over | Determines when risk transfers to Employer | Both editions |
| Clause 17.3 (1999) | Lists Employer’s Risks that exempt Contractor | 1999 |
| Clause 18.1 & 18.4 (2017) | Defines Exceptional Events + recovery rights | 2017 |
| Clause 13.3.1 (2017) | Treats rectification as a Variation | 2017 |
| Clause 20.2 (2017) | Enables Contractor to claim EOT/Cost | 2017 |
| Clause 15.2 / 17.1 (2017) | Defines risk cut-off upon termination | 2017 |
| Clause 7.5 (2017) | Nullifies exclusion if item was previously rejected | 2017 |
🔹 5️⃣ What-If Scenarios? (With FIDIC Clause Insights)
“Because contract clauses aren’t theory—they’re your legal GPS when things go sideways.” 🧭
🧨 Scenario 1: A major storm floods the site—who’s liable?
🎯 Setup:
Your excavation works are almost done. Then a freak storm hits—dumping water across the entire site and destroying temporary materials.
⚖️ Under FIDIC 1999 – Clause 17.2 + 17.3:
You’re liable unless this storm qualifies under Employer’s Risks (Clause 17.3). But here’s the problem: Clause 17.3 just says “natural catastrophes” like earthquakes, tsunami, etc. There’s no clear definition of “unforeseeable natural force”.
⚠️ So if it’s just heavy rain (even if unusual), and not specifically listed, you’re on the hook. You have to replace or repair the damage at your own cost.
⚖️ Under FIDIC 2017 – Clauses 17.1, 17.2(d) + 18.1:
You have a better shot at protection.
🧾 Clause 17.2(d) excludes “forces of nature (not allocated in Contract Data) which are Unforeseeable.”
✅ If you can prove this was an Unforeseeable force, you must:
- Promptly issue a Notice (Clause 17.2 final paragraph),
- Engineer may instruct rectification as a Variation (Clause 13.3.1),
- You can then claim EOT and/or Cost under Clause 20.2.
💡 Pro tip: Define your natural force risk allocation clearly in the Contract Data. Don’t assume weather events are automatically covered.
🔧 Scenario 2: After Taking-Over, a pipe bursts in the floor slab. Is the Contractor liable?
🎯 Setup:
The Employer took over the Works last week. But now, a hidden pipe bursts and ruins the flooring. Is the Contractor off the hook?
⚖️ FIDIC 1999 – Clause 17.2 (last para):
“…liable for any loss or damage which occurs after a Taking-Over Certificate has been issued and which arose from a previous event…”
So if the burst was caused by:
- Poor joint installation,
- Inferior pipe materials,
- Or any defect from your execution…
✅ Then yes, you’re still liable, even though Taking-Over already happened.
⚖️ FIDIC 2017 – Clause 17.2 (para 1):
Same principle, more structured:
“…liable for any loss or damage… after the issue of a Taking-Over Certificate… arising from an event which occurred before the issue…”
So you still carry liability for latent defects or design/construction flaws.
🎯 This is closely related to Clause 11.4 [Failure to Remedy Defects], especially if the issue wasn’t flagged during the Defects Notification Period.
🏗️ Scenario 3: A tower crane collapses due to poor soil compaction. Who pays?
🎯 Setup:
A mobile crane tips over while erecting steel, and it turns out the compaction wasn’t done properly. The Employer wants the Contractor to pay.
⚖️ FIDIC 1999:
Since the Contractor had care until Taking-Over and the collapse was due to poor site prep, it’s clearly the Contractor’s risk under Clause 17.2. No carve-out available.
⚖️ FIDIC 2017:
Same result—this falls under Contractor’s own error, and not one of the exclusions in 17.2 (a)-(f).
📌 In both editions, if the root cause is negligence, poor construction method, or failure to follow Specs, the Contractor is fully liable—even if an external event triggered the damage.
🔒 Scenario 4: Theft of site materials over the weekend—who takes the hit?
🎯 Setup:
You stored materials on-site under lock and key. Over the weekend, someone cuts the fence and steals electrical cabling.
⚖️ FIDIC 1999:
Clause 17.2 makes this your problem, unless you can claim it under an Employer’s Risk (unlikely). Theft isn’t listed in Clause 17.3, so you must replace at your own cost.
🔐 This reinforces why Contractors must maintain insurance for off-hours site security losses.
⚖️ FIDIC 2017:
Still your problem—unless you can show:
- It was part of an Exceptional Event (e.g., organized riot),
- Or caused by Employer’s act (e.g., disabling CCTV).
Even then, you’ll need to give prompt notice, and may only get partial relief if the Employer contributed (Clause 17.2 final para).
💡 If materials were rejected by the Engineer before theft (Clause 7.5), then even the exclusions don’t protect you.
👷♂️ Scenario 5: The Employer occupies part of the Works before Taking-Over. Who’s responsible?
🎯 Setup:
The Employer asks to use the control room early—even though Taking-Over hasn’t been certified yet. While they’re using it, a fire breaks out.
⚖️ FIDIC 1999:
This is fuzzy. Clause 17.2 says you are responsible until Taking-Over—even if the Employer uses the Works.
Unless you argue Employer’s Risk (Clause 17.3) for “use or occupation,” it’s risky.
⚖️ FIDIC 2017:
Much clearer:
Clause 17.2(b) excludes Contractor’s liability for “Use or occupation by the Employer…”
✅ So in this case, if the fire was caused during the Employer’s occupation, the Contractor is protected—as long as the item wasn’t previously rejected.
✅ This is a good example of the 2017 edition giving Contractors relief in real-world grey zones.
🧰 Scenario 6: There’s a delay in issuing the Taking-Over Certificate. Is the Contractor still responsible?
🎯 Setup:
You finish the Works, and apply for Taking-Over. The Engineer doesn’t respond for 35 days. Then a major defect occurs.
⚖️ FIDIC 1999:
Clause 10.1 says the Engineer must issue the TOC within 28 days of application. If not, the TOC is deemed issued.
✅ That means after Day 28, care responsibility shifts to the Employer—so the Contractor is no longer liable.
Same goes for FIDIC 2017—Clause 10.1 works the same way.
💡 Practical tip: Always track your Taking-Over application dates. That deemed issuance clock is your best defense.
🚨 Scenario 7: Explosion due to sabotage—Contractor’s liability?
🎯 Setup:
An unknown third party detonates explosives near the site, damaging key structures.
⚖️ FIDIC 1999:
If this is considered “terrorism, riot, war,” it may fall under Employer’s Risk (Clause 17.3). You’re likely not liable.
⚖️ FIDIC 2017:
Clause 17.2(e) covers Exceptional Events, and Clause 18.1 defines “terrorism” as one of them.
So:
- You’re protected from liability, and
- You may be entitled to EOT and Cost, provided you:
- Issue Notice under Clause 18.2, and
- Claim under Clause 20.2.
✅ The 2017 edition gives much cleaner, more claimable protection for such external crises.
🧠 Summary Table: Who’s on the Hook?
| Scenario | 1999 Outcome | 2017 Outcome |
|---|---|---|
| Flood damages Works | Contractor liable unless 17.3 applies | May be excluded if Unforeseeable (17.2d) |
| Post-Taking-Over defect appears | Contractor liable if cause predated TOC | Same, clearly stated |
| Crane collapses from bad compaction | Contractor liable | Contractor liable |
| Site theft | Contractor liable | Same, unless Employer act involved |
| Employer uses part before TOC | Risky—Contractor may still be liable | Excluded if Employer occupied (17.2b) |
| Engineer delays TOC | Deemed issued after 28 days | Same—TOC deemed issued |
| Explosion by sabotage | Possibly an Employer’s Risk | Clearly an Exceptional Event |
🗝️ Final Takeaway:
“These scenarios show just how high-stakes ‘care of the Works’ can be. FIDIC 2017 gives you better tools, but only if you use them—Notice, Engineer Instructions, and Clause 20.2 Claims are your best allies.” 🛡️
🔹 6️⃣ Suggestions for Clarity and Improvement (with Examples + GP-Compliant Drafting)
🔸 1. Ambiguity: “Outstanding Work” — How much and for how long?
🚨 The Problem:
In both Clause 17.2 (1999) and Clause 17.1 (2017), the Contractor remains responsible for “outstanding work” after the Taking-Over Certificate. But what qualifies as “outstanding”? Snagging? Deferred scope? Ongoing punch-list items?
📌 Why It Matters:
Without a firm definition, disputes arise. The Employer might demand the Contractor maintain full liability for the entire Works just because one light fitting was pending. That’s not balanced.
✅ Suggested GP2-Compliant Replacement for 2017 (Clause 17.1 – Para 3):
“Replace paragraph 3 of Sub-Clause 17.1 with the following:
‘After responsibility for the care of the Works has passed to the Employer, the Contractor shall remain responsible only for those specific items of the Works identified in the Taking-Over Certificate or in a jointly signed Snagging List as incomplete (“Outstanding Work”), and only until such time that the Engineer confirms their completion in writing.’”
🧠 Why This Works:
- Makes “Outstanding Work” a defined subset, not an open-ended liability.
- Aligns with Clause 11.1 (2017) which governs post-handover defect rectification timelines.
- Respects GP3 by balancing accountability.
🔸 2. Blurred Line Between Liability and Insurance Recovery
🚨 The Problem:
FIDIC doesn’t clearly state how liability under Clause 17.2 interacts with insurance recoverability under Clause 18.2 (1999) and Clause 19.2 (2017). Can a Contractor delay rectification while awaiting insurance settlement?
📌 Why It Matters:
This leads to site delays and payment disputes. The Employer says: “Fix it now.” The Contractor says: “Wait for the insurer.” Who’s right?
✅ Suggested Add-On for 2017:
“Insert the following at the end of Sub-Clause 17.2:
‘If the loss or damage is covered by insurance under Sub-Clause 19.2.1, the Contractor shall proceed to rectify the Works without waiting for insurance settlement, provided that the Employer issues a written undertaking to reimburse any unrecovered costs if the Contractor complies with the policy and claim procedure in good faith.’”
🧠 Why This Works:
- Keeps work moving forward.
- Protects the Contractor from funding delays out of pocket.
- Aligns with GP3 (clear, balanced risk sharing).
🔸 3. No Structured Notice Mechanism in 1999 (Fixed in 2017)
🚨 The Problem:
Clause 17.2 (1999) has no mechanism for the Contractor to notify the Engineer when damage arises from an Employer’s Risk or third-party cause. This makes it harder to defend against unfair liability.
✅ Suggested GP2-Compliant Add-On to 1999:
“Insert the following final paragraph to Sub-Clause 17.2:
‘If the Contractor considers that such loss or damage arises from an Employer’s Risk listed in Sub-Clause 17.3, the Contractor shall give Notice to the Engineer within 14 days. The Engineer shall review and determine the cause and Contractor’s liability under Sub-Clause 3.5.’”
🧠 Why This Works:
- Establishes a formal timeline.
- Gives the Engineer a role in causation review, not just supervision.
- Matches 2017 structure while respecting 1999 flow.
🔸 4. Exclusion Clauses in Insurance vs. Contractor’s Risk Exposure
🚨 The Problem:
The insurance clauses (18.2 / 19.2) exclude certain things—like defects, wear and tear, indirect damage, etc. But Clause 17.2 doesn’t always align. Can the Employer force the Contractor to rectify damage that’s uninsured and not Contractor’s fault?
✅ Suggested PC Clarification (applies to both editions):
“Insert the following paragraph at the end of Clause 17.2:
‘Notwithstanding any other provision, the Contractor shall not be required to rectify loss or damage that (i) was not caused by the Contractor’s act or omission, and (ii) is excluded under the insurances required by Clause 18.2 [1999] or 19.2 [2017], unless such exclusions are a result of the Contractor’s failure to maintain the insurances in accordance with the Contract.’”
🧠 Why This Works:
- Protects against double exposure.
- Encourages Contractors to maintain valid insurance.
- Keeps risk aligned with coverage—fully GP3 compliant.
🔸 5. 1999 Edition Missing Shared Risk Clause (Only in 2017)
🚨 The Problem:
1999 has no guidance when a loss is caused partly by the Contractor and partly by an Employer’s Risk. That’s a recipe for legal grey zones and finger-pointing.
✅ Suggested New Sub-Clause 17.2A for 1999:
“Insert the following new Sub-Clause 17.2A:
‘If any loss or damage to the Works arises from a combination of an Employer’s Risk under Sub-Clause 17.3 and an act or omission of the Contractor, the Contractor shall be liable only to the extent that the Contractor’s actions contributed to the loss. The Contractor may claim an appropriate proportion of the extension of time and/or Cost under Clause 20.’”
🧠 Why This Works:
- Mirrors the Clause 17.2 final para in 2017.
- Provides structured, fair liability sharing.
- GP3 Gold Star 🏅: Balanced and clearly stated risk.
🔸 6. Lack of Flow Between Clause 17 and Clause 11 (Defects)
🚨 The Problem:
After Taking-Over, Clause 17.2 and Clause 11.1 (2017) both apply. But there’s no explicit link telling users how “outstanding works” under 17 relate to “defects” under 11.
✅ Suggested Linking Note in Clause 17.2 (2017):
“Insert the following sentence before the final paragraph:
‘Obligations under this Sub-Clause shall be read in conjunction with Sub-Clause 11.1 regarding Outstanding Work and defect rectification during the Defects Notification Period.’”
🧠 Why This Works:
- Improves internal clause harmony.
- Makes it easier to interpret risk and rectification timelines in tandem.
- Respects FIDIC’s intention without adding complexity.
🗂️ Summary Table: Proposed Improvements & GP Alignment
| Issue | Clause(s) | Fix Type | Golden Principle |
|---|---|---|---|
| “Outstanding Work” undefined | 17.1 / 17.2 | Replace/Define | GP2 |
| Insurance vs. liability unclear | 17.2 + 18.2/19.2 | Add condition | GP3 |
| No Notice in 1999 | 17.2 (1999) | Add final para | GP2 |
| Insurance exclusions vs. repair duty | 17.2 | Add exception clause | GP3 |
| Shared liability not addressed | 17.2 (1999) | New Sub-Clause | GP3 |
| Disconnect with Clause 11 | 17.2 → 11.1 | Cross-reference note | GP2 |
🏁 7️⃣ Final Takeaways: Contractor’s Care of the Works (FIDIC 1999 vs 2017)
🧩 1. Same Foundation, Sharper Tools in 2017
At their core, both editions place the responsibility for the care of the Works squarely on the Contractor—from the Commencement Date until Taking-Over.
🔄 1999 said:
“It’s your job to protect the Works. If something breaks—fix it, unless it’s clearly our fault.”
🔧 2017 upgraded the message:
“It’s still your job—but here’s a list of fair exclusions, a structured process, and claim rights if it’s not your fault.”
✅ Key takeaway: FIDIC 2017 didn’t change the principle—it just made it fairer, more transparent, and more usable in real-life scenarios.
🔦 2. The Devil is in the Definitions
Terms like:
- “Outstanding Work”
- “prior event”
- “Employer’s Risks”
- “unforeseeable natural forces”
…can make or break a claim.
📌 1999 often left these concepts open to interpretation. 📌 2017 tried to define them better—but there’s still room for improvement in Particular Conditions.
✅ Pro Tip: Always define these phrases clearly in your Contract Data or PCs. Don’t assume both parties interpret “Outstanding Work” the same way.
🧷 3. Clause 17 is Glued to Many Others
Clause 17 doesn’t live in isolation. It interacts closely with:
- 🔁 Clause 10.1 – Taking-Over and Deemed TOC
- 🔁 Clause 11.1 – Remedying Defects after TOC
- 🔁 Clause 13.3.1 – Variations for repair works
- 🔁 Clause 18.1 / 18.4 – Exceptional Events
- 🔁 Clause 20.2 – Claiming EOT and/or Cost
- 🔁 Clause 19.2 (2017) / 18.2 (1999) – Insurance coverage triggers
✅ Key takeaway: If you’re interpreting Clause 17, you’re also touching half the contract. Don’t analyze it in a vacuum.
🛡️ 4. Insurance Isn’t Optional—It’s Your Safety Net
In both editions:
- The Contractor must insure the Works.
- Insurance must remain active until the Performance Certificate, not just Taking-Over.
- Insurable loss ≠ automatic coverage. The wording of your policy must align with clause language.
📌 In 1999: coverage was broader but loosely worded.
📌 In 2017: exclusions and coverage periods are more precisely defined.
✅ Golden Tip: Always cross-check insurance policy language with Clause 17.2 AND 19.2. And if there’s a mismatch? Fix it in the Particular Conditions.
⚖️ 5. Shared Risk Is Real—and FIDIC 2017 Finally Acknowledges It
In complex construction, damages often have more than one cause:
- Faulty Contractor work + unanticipated site condition,
- Substandard Employer design + poor execution,
- Or even sabotage + improper storage.
📌 1999: Either you were liable or not. No middle ground.
📌 2017: You can recover partial EOT and/or Cost in shared-fault cases.
✅ Key takeaway: The 2017 edition supports modern project realities. It gives Contractors the tools to claim what’s fair—not just what’s absolute.
📝 6. Best Practices for Contract Drafters and Site Teams
📌 Define “Outstanding Work” explicitly in the TOC or Snagging List.
📌 Align Clause 17.2 with your insurance terms. No surprises later.
📌 Use GP2 language in Particular Conditions:
“Insert the following…” / “Replace paragraph 2…” / “Add Sub-Clause 17.2A…”
📌 Track Taking-Over application deadlines to avoid post-completion liability.
📌 Train site teams to issue Notices the moment loss or damage occurs (especially under 2017 Clause 17.2 last paragraph).
🧠 Final Word of Wisdom
“FIDIC Clause 17.2 isn’t just about risk—it’s about responsibility.
The 1999 edition gave you the rules. The 2017 edition gave you the referee. But it’s how you play the game—especially with Notices, Variations, and Insurance—that determines who wins the claims.”
📋 Checklist 1: General Contract Administration (Both Editions)
| Checklist Item | Why This Matters | ✅ |
|---|---|---|
| Has the Contractor taken full care of the Works from Commencement Date as per Clause 17.2/17.1? | Establishes the Contractor’s default liability window. | ⬜ |
| Have all Taking-Over Certificates been formally issued or deemed issued? | Risk only shifts at TOC issuance. | ⬜ |
| Has any “Outstanding Work” been clearly listed in the TOC or Engineer’s Notice? | Defines post-TOC care obligations. | ⬜ |
| Is the Contractor aware of continued liability for previous faults even after TOC? | Prevents post-handover surprise claims. | ⬜ |
| Has a Taking-Over Application been submitted on time to trigger deemed TOC protection? | Protects against unjustified extension of liability. | ⬜ |
📋 Checklist 2: Exclusions & Notification (FIDIC 2017 Focus)
| Checklist Item | Why This Matters | ✅ |
|---|---|---|
| Has the Contractor promptly issued Notice for any loss or damage arising from causes listed in Clause 17.2(a)-(f)? | Required to trigger exclusion rights. | ⬜ |
| Was the damage due to an Exceptional Event as per Clause 18.1? | May entitle Contractor to EOT/Cost. | ⬜ |
| If Employer’s occupation/use caused the loss, has the Contractor notified under 17.2(b)? | Avoids unfair blame for Employer-caused damage. | ⬜ |
| Was the damaged part of the Works previously rejected under Clause 7.5? | Affects exclusion applicability. | ⬜ |
| Has the Contractor filed a Variation claim for Engineer-instructed rectification? | Needed to recover time/money. | ⬜ |
📋 Checklist 3: Insurance & Risk Transfer Alignment
| Checklist Item | Why This Matters | ✅ |
|---|---|---|
| Does the Contractor’s insurance (18.2 / 19.2) cover risks not excluded in Clause 17.2? | Avoids uninsured exposure. | ⬜ |
| Are the Parties clear on whether the Contractor must rectify damage before insurance payout? | Prevents work stoppages due to payment timing. | ⬜ |
| Has the Contractor submitted required proof of insurance under Clause 18.1 (1999) or 19.2 (2017)? | Required for compliance and TOC process. | ⬜ |
| Do insurance policies align with the risks allocated under Employer’s Risks / Exceptional Events? | Ensures coverage is in sync with contract liability. | ⬜ |
| Has the Engineer confirmed if damage during post-TOC defect works is insurable? | Helps with claim entitlement clarity. | ⬜ |
📋 Checklist 4: Particular Conditions & Drafting Review
| Checklist Item | Why This Matters | ✅ |
|---|---|---|
| Has “Outstanding Work” been defined in the Particular Conditions or TOC format? | Avoids ongoing liability ambiguity. | ⬜ |
| Are exclusions under Clause 17.2 explicitly listed in the PCs for emphasis (esp. in 1999)? | Ensures alignment with project-specific risk appetite. | ⬜ |
| Does Clause 17.2 link to Clause 11.1 for post-TOC rectification responsibilities? | Creates clarity for DNP liability. | ⬜ |
| Is there a PC defining how Clause 17.2 interacts with insurance payment timing? | Addresses cash flow during restoration. | ⬜ |
| For 1999: Has a new Sub-Clause 17.2A been added to allow partial entitlement for shared events? | Brings 1999 edition up to modern practice. | ⬜ |
📩 Sample Letter 1: Notice of Damage Caused by Exceptional Event (FIDIC 2017 – Clause 17.2(e) & 18.1)
Subject: Notification of Loss Due to Exceptional Event under Sub-Clause 17.2(e) and 18.1
[Contractor’s Letterhead]
[Date]
To: The Engineer
Project: [Project Name]
Contract: [Contract Title / Number]
Dear [Engineer’s Name],
**Subject**: Notice of Loss or Damage Arising from Exceptional Event – Sub-Clauses 17.2(e), 18.1, and 20.2
Pursuant to Sub-Clause 17.2(e) and Clause 18.1 of the Contract, we hereby notify you that on [date], a significant [nature of event, e.g., flash flood] occurred at the Site, causing loss and damage to the following elements of the Works:
- [List damaged Works or Plant]
We consider this event to fall under the definition of an “Exceptional Event” as outlined in Sub-Clause 18.1, being [cite specific clause, e.g., natural catastrophe].
We have taken all reasonable steps to protect the Works and minimize loss. However, the damage could not have been prevented by precautions reasonably expected of an experienced contractor.
Please consider this letter as our formal **Notice under Sub-Clauses 17.2, 18.2, and 20.2**. We reserve the right to submit a detailed claim for Extension of Time and/or Cost in due course.
We request the Engineer’s attendance at a joint inspection of the damage at the earliest convenience.
Yours faithfully,
[Name]
[Title]
[Contractor’s Company Name]
✅ Tip: Always follow this letter with a properly structured Clause 20.2 claim submission within the specified timeline.
📩 Sample Letter 2: Notice of Damage Not Attributable to Contractor (FIDIC 1999 – Clause 17.2 + 17.3)
Subject: Notification of Loss and Reliance on Employer’s Risk – Clause 17.3
[Contractor’s Letterhead]
[Date]
To: The Engineer
Project: [Project Name]
Contract: [Contract Title / Number]
Dear [Engineer’s Name],
**Subject**: Notice of Damage to the Works – Employer’s Risk per Sub-Clause 17.3
We write to notify you that on [date], damage occurred to the [describe affected area of the Works], due to [event – e.g., civil unrest, war activity, or occupation by the Employer].
In our view, this event qualifies as an Employer’s Risk under Sub-Clause 17.3 of the Contract. Accordingly, we believe that the resulting loss or damage is **not attributable to any act or omission** on our part, and we request that the matter be determined under Sub-Clause 3.5.
We are currently securing the area and conducting an internal assessment. Should rectification be instructed, we will proceed upon receipt of further directions, subject to agreement on entitlements under Clause 13 or otherwise.
Yours sincerely,
[Name]
[Title]
[Contractor’s Company Name]
✅ Tip: 1999 doesn’t formally require notice—but sending this letter protects you and can trigger cost/time recovery via Clause 20.
📩 Sample Letter 3: Engineer Instruction to Rectify Post-Taking-Over Damage (FIDIC 2017 – Clause 17.2 + 13.3.1)
Subject: Instruction to Rectify Loss – Variation under Clause 13.3.1
[Engineer’s Letterhead]
[Date]
To: [Contractor’s Name]
Contractor
Project: [Project Name]
Dear [Contractor’s Representative],
**Subject**: Instruction to Rectify Damage under Sub-Clause 17.2 – Deemed Variation
Following your Notice dated [Contractor’s Notice date] regarding damage to [describe affected part], and in accordance with Sub-Clause 17.2 of the Contract, you are hereby instructed to proceed with necessary remedial works as proposed in your submission dated [date].
This instruction shall be deemed to constitute a Variation under Sub-Clause 13.3.1. You may submit your associated proposal for cost and/or time adjustment in accordance with Sub-Clause 20.2.
Yours faithfully,
[Engineer’s Name]
[Title]
✅ Tip: This letter also forms part of the Variation instruction chain and can be attached to Payment Certificates.
📩 Sample Letter 4: Notification of Shared Risk and Partial Claim (FIDIC 2017 – Clause 17.2, para 6)
Subject: Notice of Combined Liability and Intention to Claim Partial Relief
[Contractor’s Letterhead]
[Date]
To: The Engineer
Project: [Project Name]
Contract No.: [XXXX]
Dear [Engineer’s Name],
**Subject**: Notice of Loss Caused by Combined Factors – Sub-Clause 17.2 and 20.2
We hereby notify that the recent damage to [describe Works/Section] on [date] was caused by a combination of:
- An Exceptional Event per Sub-Clause 18.1 (i.e., [describe]), and
- A Contractor-related event (i.e., [describe, if applicable]).
Accordingly, in line with the final paragraph of Sub-Clause 17.2, we intend to claim **partial entitlement** to Extension of Time and/or Cost Plus Profit to the extent that the Exceptional Event contributed to the loss.
Please expect our claim submission under Sub-Clause 20.2 within [number] days.
Yours faithfully,
[Name]
[Title]
[Contractor’s Company Name]
✅ Tip: If you’re unsure of how much is claimable yet, flag intent first—submit substantiation later.
📩 Sample Letter 5: Request for Engineer’s Determination (Damage Dispute)
Subject: Request for Determination of Cause and Liability – Clause 3.5
[Contractor’s Letterhead]
[Date]
To: The Engineer
Project: [Project Name]
Contract: [Contract Title / Number]
Dear [Engineer’s Name],
**Subject**: Request for Determination – Cause of Damage under Sub-Clause 3.5
We refer to the damage which occurred on [date] to [describe Works], and to our prior Notice dated [Notice date].
As there remains disagreement on whether this loss is attributable to the Contractor or falls under an Employer’s Risk (Clause 17.3 / Clause 17.2 exclusions), we request the Engineer to issue a determination under Sub-Clause 3.5.
Please advise if further supporting documentation is required.
Yours sincerely,
[Name]
[Title]
[Contractor’s Company Name]
✅ Tip: You can send this even if the Engineer has stayed silent after a Notice—it keeps the process moving.
📩 Sample Letter 6: Notice of Termination by Contractor (and cessation of care obligations)
Applicable to Clause 16.2 (Contractor’s Right to Suspend or Terminate) and Clause 17.1 (2017) for cessation of responsibility
[Contractor’s Letterhead]
[Date]
To: The Employer
Cc: The Engineer
Project: [Project Name]
Contract No.: [XXXX]
Dear [Employer’s Representative],
**Subject**: Notice of Termination under Sub-Clause 16.2 and Cessation of Care Obligations under Sub-Clause 17.1
We refer to the Contract dated [insert date] between [Contractor] and [Employer] for the execution of the [Project Name]. Despite our prior Notices under Sub-Clause 16.1 regarding [non-payment / prolonged suspension / Employer breach], we regret to inform you that the default remains uncured.
Accordingly, we hereby give you **[insert notice period] days’ Notice of termination** of the Contract under Sub-Clause 16.2.
Furthermore, we notify that **our responsibility for the care of the Works, as outlined under Sub-Clause 17.1**, shall cease on the effective termination date of [insert date], in line with the provisions of Clause 17.1 of the Conditions of Contract.
We request a joint inspection of the Works and site inventory handover on or before the termination date to formalize the status of the Works at the time of risk transfer.
Yours faithfully,
[Contractor’s Name]
[Position]
[Contractor’s Company Name]
✅ Tip: Ensure any termination letter clearly states the cessation of risk under Clause 17.1 (2017) or flags the ambiguity if you’re operating under 1999.
📩 Sample Letter 7: Contractor’s Insurance Notification (Change in Terms or Triggered Event)
Applicable to Clause 18.2 (1999) / Clause 19.2 (2017) – Change of insurance availability or claim notice
[Contractor’s Letterhead]
[Date]
To: The Engineer
Cc: The Employer
Project: [Project Name]
Contract No.: [XXXX]
Dear [Engineer’s Name],
**Subject**: Notification under Sub-Clause [18.2 / 19.2] – Insurance Update and/or Triggered Event
In accordance with Sub-Clause [18.2 (1999) / 19.2 (2017)] of the Conditions of Contract, we hereby notify you that:
1. A significant event occurred on [insert date] causing potential damage to the Works (detailed below); and/or
2. The availability of insurance coverage for the required scope of protection has changed significantly due to [reason – e.g., market withdrawal, pricing beyond commercially reasonable terms].
### 📌 Event Details (if applicable):
- Date & Time:
- Affected Works:
- Nature of Damage:
- Preliminary Estimated Cost:
We have informed our insurer and are in the process of submitting a formal claim. A copy of our notification and insurer's acknowledgment is enclosed for your reference.
If applicable, and as provided under Sub-Clause 18.2 (final para), we also notify that [specific insurance coverage] is no longer available at commercially reasonable terms. Please confirm if the Employer wishes to pursue alternative arrangements, or otherwise acknowledges the omission of such coverage.
We remain committed to cooperating fully in investigating the event and will keep you informed of all further developments.
Yours sincerely,
[Name]
[Title]
[Contractor’s Company Name]
**Attachments**:
- Copy of Policy / Endorsement
- Loss/Damage Report
- Correspondence with Insurer ✅ Tip: This letter serves both as a contractual notification AND as evidence in a future claim, so attach photos, reports, and timestamps.