Diverse Interpretations
Purpose
The Purpose of Clause 11.8 Contractor to Search is to delineate the procedure for identifying the cause of any defects in the project. This clause serves as a structured mechanism for both the Contractor and the Engineer to investigate and resolve issues.
Implications
The Implications of this clause are significant. For the Contractor, it means an additional layer of responsibility but also ensures that they are compensated for their efforts unless the defect was their fault. For the Engineer, this clause gives them the directive power to guide the investigation.
Primary Aspects
The Primary Aspects to consider are the discretionary power of the Engineer to initiate the search and the financial aspects related to it. The Duration is open-ended, allowing the Engineer to request a search at any time during the project or the Defects Notification Period.
Expert Opinion
From an Expert Opinion, this clause should be read in conjunction with other related clauses, especially those involving defects and financial compensation. Parties should consult legal and technical experts to understand the nuances of invoking this clause.
Main Points to Keep in Mind
- Duration: Understand that the Engineer can request a defect search at any time.
- Financial Aspects: Unless the defect is the Contractor’s fault, they are entitled to compensation for the search.
- Legal Consultation: Always consult legal experts to understand the implications of this clause.
- Local Laws and Regulations: Be aware of specific local laws, technical standards, and building codes that may affect the defect search.
Interaction with Other Clauses
- Clause 11.2 Cost of Remedying Defects:
Specifies who bears the cost of remedying defects, directly related to the cost of the search under Clause 11.8. - Clause 3.5 Determinations:
Provides a framework for determining the cost of the search, plus a reasonable profit, especially when the search leads to additional work or delays. - Clause 9 Tests on Completion:
The search could be a result of failed tests on completion, making it relevant to Clause 9. This clause outlines the Contractor’s obligations to complete tests to verify that the Works meet the Contract’s requirements. - Clause 12.0 Tests After Completion:
If defects or issues are discovered after the project’s completion, Clause 12.0 outlines the procedures for tests after completion. This clause may interact with Clause 11.8, particularly if the search for defects extends beyond the project’s completion date.
Understanding FIDIC’s Clause 11.8 Through Real-World Case Studies
Case Study 1: The Skyscraper Saga in New York City
The Issue: Imagine you’re walking in the bustling streets of Manhattan, and you hear news about a newly-built skyscraper having structural problems. Scary, right? Well, that’s exactly what happened!
What Went Down: The Engineer said, “We need to figure this out,” and turned to the Contractor to investigate the issue, as outlined in Clause 11.8 Contractor to Search.
The Twist: The Contractor had warned the Employer earlier about the poor-quality material specified for the project. Despite the warning, the Employer went ahead with it.
The Outcome: Since the Contractor had done their part in giving a heads-up, they were compensated for the time and effort spent investigating the problem, just like Clause 11.8 says they should be.
Case Study 2: The Wind Energy Whirl in Sunny California
The Issue: Picture a wind energy farm in California with turbines standing tall and proud. Except, one day, they started malfunctioning!
What Went Down: The Engineer said, “This needs fixing,” and so the Contractor had to dig deep to find out why, all under Clause 11.8 Contractor to Search.
The Twist: The Contractor found that the design flaw wasn’t their fault. They had followed the Employer’s guidelines, which unfortunately had some hidden constraints that weren’t initially disclosed.
The Outcome: The Contractor got paid for the investigative work and even a bit extra for their troubles, thanks to the provisions of Clause 11.8.
Case Study 3: The Road That Wore Down in Michigan
The Issue: Imagine driving on a brand new road in Michigan and suddenly noticing that it’s deteriorating faster than your favorite pair of jeans. Bumpy ride, anyone?
What Went Down: The Engineer wasn’t pleased and said, “We need to sort this out ASAP!” The Contractor was called to put on their detective hat and find out the cause, according to Clause 11.8 Contractor to Search.
The Twist: After some digging, literally and figuratively, the Contractor discovered that an error in the construction process was to blame. Oops!
The Outcome: Since the mistake was on their end, the Contractor had to bear the costs of both fixing the problem and the investigation, as per other related clauses in the FIDIC Yellow Book.
Sample Letters
Sample Letter 1: From Engineer to Contractor
[Date]
[Contractor’s Address]
Dear [Contractor’s Name],
Subject: Request to Initiate Search for Defect Under Clause 11.8 Contractor to Search
We have identified a defect in [describe the part of the Works]. As per **Clause 11.8 Contractor to Search**, we request that you promptly initiate an investigation to determine the cause of this defect.
Please proceed under our direction and in compliance with all relevant codes and regulations.
Kind regards,
[Engineer’s Name]
[Engineer’s Position]
Sample Letter 2: From Contractor to Engineer
[Date]
[Engineer’s Address]
Dear [Engineer’s Name],
Subject: Acknowledgment of Request Under Clause 11.8 Contractor to Search
We acknowledge your request to investigate the identified defect in [describe the part of the Works]. As directed, we will initiate the search and keep you updated on the findings.
We will comply with all relevant technical standards and regulations during this process.
Sincerely,
[Contractor’s Name]
[Contractor’s Position]
Sample Letter 3: From Contractor to Employer
[Date]
[Employer’s Address]
Dear [Employer’s Name],
Subject: Findings from Search Conducted Under Clause 11.8 Contractor to Search
We have completed the investigation for the identified defect in [describe the part of the Works]. Our findings indicate [describe the cause].
As per **Clause 11.8 Contractor to Search**, we request that the cost of this search, along with a reasonable profit, be added to the Contract Price since the defect was not due to our actions.
Thank you for your attention to this matter.
Best regards,
[Contractor’s Name]
[Contractor’s Position]
Checklists
1. Checklist for Proficient Execution and Deployment of Clause 11.8
| Task | Responsible Party | Criteria | Status |
|---|---|---|---|
| Identify potential defect | Engineer | Is it affecting project integrity or safety? | ❌ |
| Notify Contractor to initiate search | Engineer | Send formal communication as per Clause 11.8 | ❌ |
| Acknowledge Engineer’s request | Contractor | Confirm receipt and understanding of request | ❌ |
| Plan the investigation | Contractor | Outline steps, timeline, and required resources | ❌ |
| Execute the investigation | Contractor | Conduct search in compliance with regulations | ❌ |
| Document findings | Contractor | Create a detailed report | ❌ |
| Review findings | Engineer | Verify accuracy and completeness | ❌ |
| Decide on cost implications | Engineer/Contractor | Based on findings and Clause 11.8 | ❌ |
2. Checklist for Applying and Overseeing Clause 11.8
| Task | Checklist Item | Notes |
|---|---|---|
| Before Invoking Clause 11.8 | Verify if Clause 11.8 is applicable | Check contract conditions |
| Prepare necessary documentation | Include previous communications, reports | |
| During the Search | Monitor Contractor’s compliance | Ensure all relevant codes and standards are followed |
| Update stakeholders | Keep the Employer and other parties informed | |
| After the Search | Review Contractor’s report | Confirm the findings are comprehensive |
| Decide on financial adjustments | As per Clause 11.8 and other related clauses |
3. Checklist to Guide and Monitor the Execution of Clause 11.8
| Phase | Action Item | Done (✅/❌) |
|---|---|---|
| Pre-Search | Confirm the need for invoking Clause 11.8 | ❌ |
| Notify all relevant parties | ❌ | |
| Search Execution | Follow the investigation plan | ❌ |
| Document all activities | ❌ | |
| Post-Search | Submit the investigation report | ❌ |
| Discuss and finalize cost implications | ❌ | |
| Update the Contract Price, if applicable | ❌ |
Frequently Asked Questions (FAQs) about Clause 11.8 Contractor to Search
1. What is Clause 11.8 Contractor to Search?
This clause allows the Engineer to direct the Contractor to investigate the cause of any defect in the project.
2. Who bears the cost of the search?
If the defect is not the Contractor’s fault, the cost of the search plus a reasonable profit shall be added to the Contract Price.
3. Can the Engineer invoke Clause 11.8 at any time?
Yes, the Engineer can invoke this clause at any time until the Defects Notification Period ends.
4. What happens if the Contractor is at fault?
If the Contractor is at fault for the defect, they must bear the cost of the search in addition to remedying the defect.
5. Are there any specific regulations the Contractor must follow during the search?
Yes, the Contractor must adhere to all relevant technical standards, building codes, and environmental laws during the search.
6. What happens after the search is completed?
The Contractor must submit a detailed report to the Engineer for review. Financial adjustments are then made according to the findings and the Contract.
Common Misunderstandings about Clause 11.8 Contractor to Search
- It’s only about finding defects: While the primary focus is on identifying defects, the clause also covers the financial and legal aspects related to the search.
- The Contractor always pays for the search: This is incorrect. If the Contractor is not at fault for the defect, they should be compensated for the search.
- The Engineer has unlimited power: The Engineer can direct the search, but their decisions must be reasonable and in accordance with other clauses.
- The clause is invoked only in extreme cases: Clause 11.8 can be invoked whenever a defect is observed, not just in extreme or emergency situations.
- Local laws and regulations are irrelevant: Contrary to this belief, local laws and technical standards can greatly influence how the clause is executed.
