Clause 11.5 “Removal of Defective Work” of FIDIC

1️⃣ Purpose of Clause 11.5

⚖️ Evolution in Contract Management:

• 📘 1999: Brief and open to interpretation, reliant on general trust and ad-hoc decisions.
• 📙 2017: More process-driven, emphasizing transparency and structured approvals.

2️⃣ Breakdown of Clause 11.5 – Let’s Dive Deep!

🔁 Key Comparisons

Element	1999 Edition	2017 Edition
Consent Required	✅ Yes	✅ Yes
Trigger Condition	Can’t remedy “expeditiously on Site”	Same
Notice Requirement	❌ Not mentioned	✅ Mandatory, with detailed checklist
Info in Consent Request	❌ Not specified	✅ Must include item ID, transport, insurance, etc.
Further Employer Input	❌ Minimal	✅ Employer can ask for more info
Performance Security Increase	✅ Optional	✅ Optional but explicitly stated
Contractor’s Responsibility	✅ Implied	✅ Explicit – consent doesn’t waive liability

3️⃣ Key Interpretations and Implications

4️⃣ Cross-Referencing with Other Clauses – How Clause 11.5 Fits into the Bigger Picture

When you look at Clause 11.5, it may seem like a standalone permission clause—“Hey, can I take this broken thing off-site to fix it?” But once you start peeling back the layers, you’ll see that a whole web of other clauses come into play.

Let’s take a walk through the contractual neighborhood:

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🔐 Clause 4.2 – Performance Security

Both 1999 and 2017 editions allow the Employer, as a condition of consent, to demand an increase in the Performance Security.

• Why does this matter? Because once that expensive piece of Plant is off-site, the Employer wants assurance it’ll come back—and in working order.

From 2017 Clause 11.5:
“The Employer may require the Contractor to increase the amount of the Performance Security by the full replacement cost…”

This connects directly with Sub-Clause 4.2, which defines the form, value, duration, and conditions for making claims under the security.

🔎 What to look out for:

• Is the Performance Security a demand guarantee or a bond?
• Does the wording of the bond allow increases?
• Will the issuing bank accept amendments mid-term?

👉 Contractors should ensure their security instruments are flexible enough to accommodate these scenarios—or they risk delays.

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🧪 Clause 7.4 (2017): Testing by the Contractor

🧱 The Text (Key Highlights from Clause 7.4)

“The Contractor shall carry out the tests required by the Contract on Plant and Materials before their incorporation into the Works and on the executed Works to verify compliance with the Contract. The Contractor shall give a Notice to the Engineer of not less than 14 days of the date, time and place for the specified testing.”

It continues:

“If the Contractor is required, under the Contract, to carry out testing off the Site, the Contractor shall give a Notice of not less than 14 days to the Engineer of the date, time and place of the test(s), and the Engineer or his representative shall be entitled to attend.”

And then:

“After each test, the Contractor shall promptly submit to the Engineer a certified report of the test results.”

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🔗 So how does this connect with Clause 11.5?

When defective Plant is removed off-site for repair under Clause 11.5, you don’t just fix it and bring it back. You have to prove it’s now compliant. That’s where Clause 7.4 steps in.

Under Clause 11.5, the Contractor must:

“…include in the Notice: the proposed inspections and testing off the Site… and the planned duration for reinstallation and retesting… under Sub-Clause 7.4 and/or Clause 9.”

Let’s break it down 👇

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📌 Key Intersections with Clause 11.5

1. Off-site Repair = Off-site Testing

If you’re repairing Plant in a different country or location, you must notify the Engineer at least 14 days in advance about the time, location, and nature of the test.

✅ That means aligning your logistics and test lab schedules with the Engineer’s availability.

2. Engineer’s Right to Witness Tests

Even though it’s happening off-site, the Engineer or their representative has the right to attend. If you skip this step or test without notice, your test results could be invalidated. That could lead to delays—or worse, a rejection upon return.

3. Certified Test Reports Are Mandatory

Clause 7.4 obliges you to submit certified test reports. This acts as the formal documentation trail that proves the Plant is fixed and fit for reinstallation.

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🧠 Why This Matters

Let’s say you’re the Contractor and you fix a high-voltage switchgear unit off-site. You complete the repairs and skip notifying the Engineer before testing. You bring it back, install it, and only then submit your results.

🚨 Problem: The Employer may refuse to accept it until testing is repeated in the presence of the Engineer—costing you time and money. Possibly even triggering delay damages under Clause 8.8.

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🧰 Practical Tip:

Integrate Clause 7.4 planning into your Clause 11.5 Notice. You’re not just asking for permission to take the item off-site—you’re also laying out your testing and validation roadmap.

Include in your Notice:

• Specific lab/test facility info
• Certification standards (e.g., ISO/IEC)
• Whether a third-party witness is present
• Transport and environmental simulation tests if relevant

This gives the Employer confidence, reduces objections, and keeps your timeline tight.

🧪 Clause 9 (Both Editions): Tests on Completion

Once the defective Plant is fixed off-site, it doesn’t magically qualify for reinstallation. It must be retested.

From 2017 Clause 11.5:
“…and retesting of the repaired Plant (under Sub-Clause 7.4 and/or Clause 9, if applicable).”

This means the full testing regime may kick back in. The repaired item may have to:

• Be tested off-site (possibly witnessed).
• Be retested on-site as part of recommissioning.
• Pass Tests on Completion, depending on where it fits in the Works.

📌 This cross-link enforces quality assurance and functional validation before the item is accepted back into the Project.

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📆 Clause 11.1 – Completion of Outstanding Work and Remedying Defects

Clause 11.5 is essentially an extension of 11.1, which sets the core responsibility for the Contractor to remedy defects during the Defects Notification Period (DNP).

“During the DNP, the Contractor shall remedy any defects…” – Clause 11.1 (both editions)

So if a defect arises, 11.1 says, “Fix it.”
Clause 11.5 then adds, “Here’s how you can fix it if it requires off-site removal.”

🧩 These two are a package deal—Clause 11.5 should always be read as a method of compliance with Clause 11.1.

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🚧 Clause 10 – Taking Over by Employer

In both editions, Taking Over Certificates (TOCs) mark the official handover of the Works or a Section. But Clause 11.5 plays into this timeline too.

• Why? Because the Defects Notification Period begins at the TOC.
• Clause 11.5 only applies during the DNP—so its application is time-bound.

🔁 If defective Plant is removed off-site during this period, delays in reinstallation may affect:

• The issuance of the Performance Certificate (Clause 11.9)
• Final payment (Clause 14.13)
• Employer’s use of the Works (Clause 10.3 may trigger implications)

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🧾 Clause 20.1 (1999) / Clause 20.2 (2017) – Claims

Here’s where it gets spicy 🌶️.

If the Employer unreasonably withholds consent to remove defective Plant—or if the Contractor suffers delay or cost due to procedural hurdles—this opens the door to claims.

• Under the 1999 edition: Clause 20.1 allows claims for time or money with notice.
• Under the 2017 edition: Clause 20.2 introduces even tighter timelines for Notices of Claim.

So, if the Contractor:

• Incurs costs transporting the Plant to a certified facility;
• Experiences delays waiting for consent;
• Or has to redo works because of ambiguous instructions…

👉 They may be able to trigger a contractual claim process for extension of time (EOT) or additional payment.

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🔁 Cross-links in Action: A Realistic Chain of Events

1. A turbine’s blade fractures—Contractor says it must be fixed in Germany.
2. Submits Notice under 11.5 with detailed plan (as per 2017).
3. Employer demands Performance Security update (Clause 4.2).
4. Contractor sends turbine off-site.
5. Repair complete—Contractor arranges retesting (Clause 7.4/9).
6. Employer inspects and approves.
7. Contractor seeks time extension for downtime (Clause 20.2).
8. All of this happens during DNP (Clause 11.1) and ties into the timeline for the Performance Certificate (Clause 11.9).

You see? Clause 11.5 is just the tip of the procedural iceberg.

5️⃣ What If Scenarios?

🤔 What if the Contractor removes Plant without consent?

• Breach of Contract. The Employer could claim under Clause 4.2 and possibly withhold certification or initiate termination procedures under Clause 15.2.

🤔 What if the Employer unreasonably delays consent?

• In 2017, such delays may constitute grounds for Cost and/or extension of time claims under Sub-Clause 20.1.

🤔 What if the repaired Plant fails retesting?

• Contractor must repeat repairs and tests at no cost, and potential delay damages under Clause 8.8 may apply.

6️⃣ Suggestions for Clarity and Improvement – Making Clause 11.5 Even Better

Even though Clause 11.5 works reasonably well in both editions, there are opportunities to refine the language and streamline the process to help both Employers and Contractors avoid misunderstandings, unnecessary delays, or disputes.

We’ll break this down by edition and focus on:

• Ambiguities
• Gaps in procedure
• Opportunities to enhance clarity
• Practical examples

📘 FIDIC 1999 – Suggestions for Improvement

Let’s be honest—the 1999 version of Clause 11.5 is a bit bare bones. While its simplicity is attractive, it also leaves a lot unsaid.

📙 FIDIC 2017 – Suggestions for Improvement

The 2017 edition of Clause 11.5 is much more comprehensive—but that also makes it ripe for procedural fine-tuning.

🧰 Final Enhancement Tip: Link Clause 11.5 to Schedule Risk Register

Many projects today use a live Risk Register. It might be helpful to require potential off-site removals to be logged proactively, especially if high-value Plant is involved.

“Any anticipated off-site repair scenarios shall be identified during the design stage and included in the Project Risk Register.”

This gets everyone thinking ahead, not reacting later.

7️⃣ Final Takeaways

Aspect	FIDIC 1999	FIDIC 2017
🔄 Consent Process	Brief, open-ended	Detailed with mandatory Notice and checklist
🛡️ Security Provisions	Optional, at Employer’s discretion	Explicit, can require full replacement value
🧾 Documentation Requirement	None	Extensive pre-approval information
🧠 Practical Implication	Simpler but riskier	Safer and more transparent, but more paperwork

✅ The 2017 version of Clause 11.5 reflects a modern approach to contract administration—emphasizing clarity, accountability, and risk control.

✅ Checklist for the Contractor – Requesting Off-Site Removal (FIDIC 2017 – Clause 11.5)

Step	Description	Completed ✅
1	Identify item of defective or damaged Plant needing off-site repair	☐
2	Determine that the defect cannot be remedied expeditiously on Site	☐
3	Prepare written Notice to Employer, requesting consent for removal	☐
4	Include clear identification of each defective/damaged item	☐
5	Describe the nature of the defect or damage	☐
6	Provide the repair location/address	☐
7	Specify transport method and insurance arrangements	☐
8	Detail proposed inspections/testing to be carried out off-site	☐
9	State expected duration off-site (repair + return)	☐
10	State timeline for reinstallation and retesting on Site	☐
11	Submit any additional info requested by the Employer	☐
12	Obtain written consent from Employer before removal	☐
13	Joint inspection and documentation of condition before dispatch	☐
14	Update or provide Performance Security if required	☐
15	Ensure tracking and control of item while off-site	☐
16	Reinstall, retest and notify Employer upon return	☐

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✅ Checklist for Employer/Engineer – Reviewing Contractor’s Clause 11.5 Notice

Step	Description	Completed ✅
1	Confirm receipt of formal written Notice under Clause 11.5	☐
2	Review justification for off-site removal (expediency criteria)	☐
3	Check item identification and verify it’s part of the Works	☐
4	Validate defect description and need for external repair	☐
5	Assess adequacy of repair location and method	☐
6	Review transportation and insurance provisions	☐
7	Confirm plan for off-site inspections and testing	☐
8	Review proposed reinstallation and retesting schedule	☐
9	Request and review additional info, if necessary	☐
10	Evaluate risk exposure—consider Performance Security adjustment	☐
11	Conduct joint inspection and record condition prior to removal	☐
12	Provide written consent or justified refusal within time frame	☐
13	Ensure monitoring system for tracking item status and return	☐
14	Supervise retesting upon return to Site (Clause 7.4 / Clause 9)	☐
15	Confirm compliance and close out defect item upon success	☐

✉️ Sample Letter 1 – Contractor’s Request for Off-Site Removal of Defective Plant

Subject: Request for Consent to Remove Defective Plant for Off-Site Repair under Clause 11.5

[Contractor’s Letterhead]

[Date]

To: [The Engineer/Employer’s Representative]  
[Employer’s Name]  
[Project Name and Contract Number]  

Dear [Engineer’s Name],

**RE: Request for Consent to Remove Defective Plant Item for Off-Site Repair – Clause 11.5**

We hereby submit a formal request for consent under **Clause 11.5 [Remedying of Defective Work off Site]** of the Contract to remove the following defective item of Plant for off-site repair:

- **Item Description**: [e.g., Main Control Panel, Serial No. X123]
- **Nature of Defect**: [e.g., Intermittent power failures traced to internal wiring faults]
- **Repair Location**: [e.g., Manufacturer's Service Center, Munich, Germany]
- **Transportation Method**: [e.g., Sealed container via DHL Air Freight]
- **Insurance**: [e.g., Insured with AXA under Policy No. 56789XYZ]
- **Off-Site Inspections/Testing**: [e.g., Factory Acceptance Test (FAT) per IEC 60204]
- **Estimated Time Off-Site**: [e.g., 3 weeks]
- **Return/Reinstallation Plan**: [e.g., Delivery by 10 April, retesting by 14 April under Clause 7.4]

Please find attached technical documentation, photos, insurance certificate, and the proposed testing protocol for your review.

We remain fully responsible for the item and are ready to provide any additional security the Employer may reasonably require, including adjustment of the Performance Security.

Your written consent is kindly requested by **[insert date]** to avoid delays in remedying the defect.

Yours sincerely,  
[Name]  
[Title]  
[Contractor’s Company Name]  

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✉️ Sample Letter 2 – Employer’s Conditional Consent for Removal

Subject: Conditional Consent for Off-Site Repair of Defective Plant – Clause 11.5

[Employer’s Letterhead or Engineer’s Letterhead]

[Date]

To: [Contractor’s Name]  
[Contractor’s Company Name]  
[Project Name and Contract Number]

Dear [Contractor’s Representative],

**RE: Consent for Removal of Defective Plant Off-Site – Clause 11.5**

We refer to your letter dated [insert date], requesting to remove [Plant item] for repair off-site in accordance with **Clause 11.5** of the Contract.

The Employer hereby provides **conditional consent** to proceed with the removal, subject to the following:

1. **Increase of Performance Security**: Please provide a revised Performance Security covering the full replacement cost of the item, valued at [amount].
2. **Notification of Shipping and Receipt Dates**: Provide evidence of dispatch and receipt at the repair facility.
3. **Return and Testing Schedule**: Strict adherence to the reinstallation and testing plan as proposed. Any changes must be notified in advance.

This consent does **not relieve** the Contractor of its obligations under the Contract. The Employer reserves the right to verify repair progress and participate in off-site inspections.

Please acknowledge your agreement to the above conditions in writing before removal.

Yours faithfully,  
[Name]  
[Title – Engineer or Employer’s Representative]  
[Employer’s Name]  

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✉️ Sample Letter 3 – Engineer’s Rejection of Off-Site Removal Request

Subject: Rejection of Request for Off-Site Repair – Clause 11.5

[Engineer’s Letterhead]

[Date]

To: [Contractor’s Name]  
[Contractor’s Company Name]  
[Project Name and Contract Number]

Dear [Contractor’s Representative],

**RE: Rejection of Request for Off-Site Repair of Plant – Clause 11.5**

We acknowledge receipt of your Notice dated [insert date] requesting consent to remove the [item description] from Site for off-site repair under **Clause 11.5**.

After due consideration, the Employer has decided **not to grant consent** for the following reasons:

- Adequate repair resources are available on Site or locally.
- The proposed repair timeline is incompatible with the Project schedule.
- Inadequate details were provided regarding transport security and insurance.

You are therefore instructed to proceed with an **on-site remedy** of the defect, or submit a revised request with sufficient justification and detail.

Yours sincerely,  
[Name]  
[Title – Engineer]  
[Employer’s Name]  

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✉️ Sample Letter 4 – Contractor’s Confirmation of Return and Reinstallation

Subject: Notification of Return, Reinstallation, and Retesting – Clause 11.5

[Contractor’s Letterhead]

[Date]

To: [The Engineer/Employer’s Representative]  
[Employer’s Name]  
[Project Name and Contract Number]

Dear [Engineer’s Name],

**RE: Return and Reinstallation of Plant Item Repaired Off-Site – Clause 11.5**

We write to inform you that the [Plant item] previously removed for repair under **Clause 11.5** has been returned to Site on [date].

Reinstallation will commence on [date] and retesting will be conducted on [date] in accordance with:
- Sub-Clause **7.4 [Testing by Contractor]**
- Clause **9 [Tests on Completion]**, where applicable

Please confirm the Engineer’s availability to witness the test, or nominate a representative.

Attached are:
- Delivery receipt
- Repair certificate
- Test reports from the off-site facility

Yours faithfully,  
[Name]  
[Contractor’s Representative]  
[Company Name]