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
Below is a close look at the content typically found in both versions. (Note that exact wording differs, but the summary here captures the main points.)
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.
5️⃣ What-If Scenarios?
- What if the Contractor has partially remedied defects but the DNP expires anyway?
- The Engineer can extend the DNP under Sub-Clause 11.3 (1999/2017) or require further remedial works. If the Contractor fails to complete them, the Performance Certificate can be withheld.
- What if the Engineer refuses to issue the Performance Certificate even though the Contractor believes all defects are remedied?
- The Contractor may pursue a dispute via Clause 20 (1999) or Clause 21 (2017) to challenge the Engineer’s refusal if it is unreasonable or in breach of the contractual obligations.
- Can the Employer claim additional defects after the Performance Certificate is issued?
- Generally no, unless they are latent defects discovered later or obligations explicitly stated to survive issuance. The Parties must check local laws or specific Particular Conditions for possible extended liabilities.
6️⃣ Suggestions for Clarity and Improvement
1. Define “Minor Outstanding Works” vs. “Major Defects”
Why?
In real-world projects, there’s almost always a “snag list” (or “punch list”) at the end. The big question is whether these items are critical enough to hold back the Performance Certificate. If the Clause text is fuzzy on what defects or issues are “minor,” the Employer or Engineer might withhold the certificate indefinitely. That spells trouble for the Contractor’s final payment and closure.
Suggested Improvement
- Add a clear definition in the Particular Conditions, for example:
“Minor Outstanding Works are those which do not affect the operational integrity, safety, or performance of the Works and do not prevent the Employer from using the Works for their intended purpose. Major defects or outstanding work, by contrast, pose a significant impact on functionality, safety, or compliance with the Employer’s Requirements or local regulations.”
Example in Practice
- If a building has 100 rooms but only 2 have minor cosmetic issues (like paint scratches), that might be “minor work” and shouldn’t stop the Performance Certificate.
- If 10 rooms have no operational ventilation system, that’s arguably a “major defect” since it impacts usability and occupant health.
2. Specify a Firm Timeline for the Engineer’s Decision
Why?
Sometimes, the Engineer may delay the issuance of the Performance Certificate because they want more time to check or re-check repairs, which can lead to open-ended closure. Contractors generally prefer a clear, short window.
Suggested Improvement
- Insert a time limit in the Particular Conditions, for instance:
“Within 14 days (or other agreed period) after the Contractor notifies the Engineer that all defects have been remedied, the Engineer shall confirm in writing whether the Performance Certificate will be issued or specify reasons for refusal, along with remedial steps required.”
Example in Practice
- If the Contractor finishes remedying all known defects on July 1 and promptly issues a notice, the Engineer must respond by July 15. If the Engineer doesn’t respond, one might introduce a further default mechanism—like “deemed issuance” if no response is received.
3. Incorporate Digital (or Structured) Handover Requirements
Why?
Many Owners and Contractors rely on digital documents and asset management systems. Requiring detailed as-built drawings or Building Information Modeling (BIM) data might be critical for modern infrastructure and ensures the Employer is not left guessing how to maintain or operate the Works.
Suggested Improvement
- Include a sub-clause in Particular Conditions requiring digital data:
“Prior to the issuance of the Performance Certificate, the Contractor shall submit all as-built drawings, models, and relevant BIM data in digital format conforming to [XYZ Standard]. The Engineer shall verify compliance within 7 days. Failure to submit these documents may justify withholding the Performance Certificate until such submission is completed.”
Example in Practice
- For a large highway project, the Employer might need final 3D design files and GIS-based data for long-term maintenance planning. Without them, the Employer lacks the full operational picture.
4. Clarify Liability for Latent Defects After the Performance Certificate
Why?
The performance certificate signifies the end of most obligations, but what if a hidden defect (latent defect) emerges 6 months later? Many legal systems (including Indian law) allow claims for latent defects even after the certificate is issued, but FIDIC typically defers to local law.
Suggested Improvement
- Insert language stating that latent defects are not automatically waived by the Performance Certificate:
“The Contractor’s liability for latent defects that could not reasonably have been identified prior to issuance of the Performance Certificate shall continue in accordance with the applicable Indian statute of limitations, or as stated in Sub-Clause [X] of the Particular Conditions. This Sub-Clause shall not limit any other contractual or statutory rights.”
Example in Practice
- Suppose a manufacturing defect in a structural beam only becomes apparent two years later. If local regulations or contract language clarifies latent defect liability for up to 5 years, the Employer may still claim remedy from the Contractor even though a Performance Certificate was previously issued.
5. Introduce Guidance on Regulatory Sign-Off
Why?
In many projects, especially public infrastructure, certain regulatory agencies or third-party bodies must sign off before a project is fully “complete.” The contract can explicitly mention that if these sign-offs are delayed for reasons not attributable to the Contractor, the Performance Certificate shouldn’t be unfairly withheld.
Suggested Improvement
- Include a sub-clause linking regulatory approvals to contract milestones:
“Where completion requires approvals or occupancy permits by local authorities, the Contractor’s obligation is to provide necessary documents and cooperate in obtaining such approvals. Delay in issuing the Performance Certificate shall not occur if the Contractor has completed all required actions under its control but the external authority’s issuance is delayed.”
Example in Practice
- A building project in Mumbai might need a Municipal Corporation certificate. If the Contractor submits everything on time, but the municipal authority is backlogged for 3 months, the Employer/Engineer can still issue the Performance Certificate (or at least partially) so long as the Contractor isn’t at fault.
6. Propose Additional Language for Final Handover and Documentation
Why?
Sometimes the default clause language doesn’t specify exactly what format or detail level is needed for final O&M (Operation and Maintenance) manuals, training records, or other final handover documents.
Suggested Improvement
- Add a sub-clause in the Particular Conditions that says:
“Prior to issuance of the Performance Certificate, the Contractor shall supply, in both printed and digital forms, all operation and maintenance manuals, training certificates, spare parts lists, warranty documents, and any other deliverables specified in the Employer’s Requirements. These documents shall be reviewed by the Engineer within [X] days, and any non-compliance will be promptly notified to the Contractor.”
Example in Practice
- For a power plant project, the Employer needs thorough O&M manuals for turbines, generator sets, SCADA controls, etc. If manuals are missing, the Engineer might hold off on the Performance Certificate until the Contractor delivers the complete package.
7. Sample “Particular Conditions” Text Snippet
To see how these suggestions might look in a cohesive text, here is a sample consolidated wording (note that you would adapt the numbering to align with your particular conditions):
PC 11.9.1 Minor vs. Major Defects
For the purposes of Clause 11.9:
- “Minor Outstanding Works” means any remaining items of work that do not materially affect the safety, operational integrity, or normal use of the Works as intended under the Contract.
- “Major Defects” are issues that significantly impact structural integrity, operational viability, safety, or compliance with applicable laws.
The existence of Minor Outstanding Works shall not preclude the Engineer from issuing the Performance Certificate, provided the Contractor has committed to rectify such items within [X] days after the Certificate date.
PC 11.9.2 Engineer’s Response Time
Within [14 / 21] days from the Contractor’s written notice confirming that all known defects have been remedied (and providing necessary documentary evidence), the Engineer shall either issue the Performance Certificate or give a detailed written statement of reasons for refusal and a list of outstanding items. Failure by the Engineer to respond within the specified period shall result in a deemed issuance of the Performance Certificate.
PC 11.9.3 Digital Handover
As a condition for the Performance Certificate, the Contractor shall furnish digital as-built documents, BIM data (if required), operation and maintenance manuals, and any further deliverables specified in Annex [X], in a format agreed by the Engineer. The Engineer’s review shall occur within [X] days of receipt.
PC 11.9.4 Latent Defect Liability
Notwithstanding the issuance of the Performance Certificate, the Contractor remains liable for latent defects that could not have been identified through reasonable inspection prior to issuance. Such liability shall be determined in accordance with [applicable local laws / Sub-Clause X], and it shall not be deemed waived by the issuance of the Performance Certificate.
Putting It All Together
By blending these clarifications and more precise definitions into your Particular Conditions, you set clear ground rules for what needs to be done before Clause 11.9 can cross the finish line and how minor finishing touches, regulatory sign-offs, digital handover, and latent defects are handled. This ultimately saves time, disputes, and confusion for both Parties—and ensures everyone knows exactly what “final acceptance” entails.
7️⃣ Final Takeaways
- Clause 11.9 is the formal “final acceptance” milestone:
- 1999: Titled “Performance Certificate” under “Defects Liability.”
- 2017: Same title, under “Defects after Taking Over.”
- It confirms the Contractor has concluded all responsibilities during the Defects Notification Period, including remedials.
- Its issuance (or deemed issuance) is often connected to the final payment steps and release of securities.
- Practical clarity is improved by:
- Well-defined timelines for issuance.
- Clear definitions of defects and final sign-off steps.
- Explicit mention of surviving obligations (such as latent defects or indemnities) post-certificate.
Interpretative Question:
“Can it be interpreted that the Engineer is obliged to issue the Performance Certificate even if a few cosmetic defects remain?”
- Likely yes, if those defects do not materially affect the Works’ functionality or the Contractor has provided adequate assurance they will be remedied very swiftly. Otherwise, the Engineer might issue the Certificate with appropriate notations, or extend the relevant parts of the DNP.
By focusing on clarity—especially about when the Engineer must issue the Performance Certificate and which obligations continue to survive—Parties can avoid confusion and disputes at the crucial final stage of the project.
Performance Certificate (Clause 11.9) Checklist
| No. | Checklist Item | Explanation / Details | Done (√) |
|---|---|---|---|
| 1 | Defects Rectification | Confirm that all notified defects (under Clause 11) have been identified, remedied, or are categorized as minor outstanding items that do not affect functionality. | [ ] |
| 2 | Engineer’s Inspection | Ensure the Engineer has inspected the remedial works (or has confirmed such works are acceptable based on documentation/photos/tests). | [ ] |
| 3 | Minor Outstanding Work vs. Major Defects | Verify that any remaining items are truly minor (cosmetic or non-critical) and not a “major defect” that prevents normal operation or compliance with the Employer’s Requirements. | [ ] |
| 4 | Extension of DNP (if any) | Check if the Defects Notification Period has been extended under Clause 11.3. If extended, confirm the new deadlines are satisfied or nearly concluded. | [ ] |
| 5 | As-Built Documentation | Confirm the Contractor has submitted complete as-built drawings, data, or BIM files, in the format specified (e.g., Clause 5.6 in 1999 or 5.6 in 2017). | [ ] |
| 6 | O&M Manuals and Training | Check if the Contractor has delivered (and the Engineer has reviewed) all Operation & Maintenance manuals, spare parts lists, warranties, and any specified staff training as required by Clause 5.7. | [ ] |
| 7 | Regulatory Approvals (if relevant) | Confirm that required permits, third-party certifications, or authority sign-offs have been obtained (or the Contractor has done everything required if the third-party is delayed). | [ ] |
| 8 | Site Clearance and Demobilization | Verify the Contractor has cleared the Site (unless portions remain for any extended defect testing) and removed all temporary facilities/equipment not required for final handover. | [ ] |
| 9 | No Outstanding Contractor Claims | Ensure that any Contractor’s claims have been resolved or are clearly documented (e.g., Variation claims, extension of time claims) and not blocking certificate issuance. | [ ] |
| 10 | No Employer Withholding Justifications | Check that the Employer has no pending justifications for withholding certification (e.g., outstanding works that are clearly in breach of contract or indefinite incomplete items). | [ ] |
| 11 | Engineer’s Decision to Issue Certificate | The Engineer confirms all conditions for the Performance Certificate are met (including any relevant time limits in the Particular Conditions). | [ ] |
| 12 | Latent Defects Note | Acknowledge that the issuance of the Performance Certificate does not waive liability for latent defects (if addressed in local law or Particular Conditions). | [ ] |
| 13 | Certificate Issued/Date | Record the date of issuance of the Performance Certificate (once all conditions above are met and the Engineer is satisfied). | [ ] |
How to Use This Checklist
- Adapt to Your Contract: Add, remove, or modify items according to the Particular Conditions, local regulations, or additional Employer’s Requirements that expand on Clause 11.9.
- Ongoing Tracking: You might fill this out progressively as the Contractor completes remedial work, final submissions, and obtains sign-offs.
- Engineer’s Approval: Typically, the Engineer (or Resident Engineer / delegated authority) will oversee checking these items. Once all are marked “Done”, the Engineer can proceed to issue (or recommend issuance of) the Performance Certificate.
Sample Letters
Below are a few sample letters that might be used under or around Clause 11.9 (Performance Certificate) in the FIDIC Yellow Book context. Each letter addresses a different scenario or milestone in the lead-up to, or issuance of, the Performance Certificate.
Important Note: These are illustrative templates and should be adapted to suit your specific contract terms, local legal requirements, and any Particular Conditions.
1. Letter from Contractor to Engineer Requesting Performance Certificate
Scenario: The Contractor believes all defects have been remedied and all obligations are fulfilled. They are formally requesting the Engineer to issue the Performance Certificate.
Subject: Request for Issuance of Performance Certificate (Clause 11.9)
[On Contractor’s Letterhead]
Date: [DD/MM/YYYY]To: [Name of the Engineer]
Address: [Engineer’s office address]Dear [Mr./Ms./Dr./Eng. ___],
We refer to our obligations under the Contract for [Project Name], specifically Clauses 11.1 through 11.9 regarding Defects and the issuance of the Performance Certificate.
We wish to confirm that all defects notified to us during the Defects Notification Period have been remedied to the satisfaction of the Contract requirements. Below is a summary of the actions taken:
- Defect List Reference: [e.g., “DNP Defect List #1, #2, #3”]
- Date Completed: [List completion dates for each defect item]
- Supporting Documents: [Attach relevant test certificates, photos, or sign-off sheets]
We therefore kindly request that you conduct or finalize any necessary inspections and proceed to issue the Performance Certificate pursuant to Clause 11.9.
Please advise if there are any outstanding requirements or further clarifications needed to facilitate this issuance. We look forward to your acknowledgment and a timely conclusion of this stage of the Contract.
Thank you for your cooperation.
Yours sincerely,
For and on behalf of [Contractor’s Name],
[Signature]
[Name & Title of Contractor’s Representative]
2. Letter from Engineer to Contractor Acknowledging Request for Performance Certificate
Scenario: The Engineer responds promptly to confirm receipt of the Contractor’s request and outlines next steps.
Subject: Acknowledgment of Request for Performance Certificate
[On Engineer’s Letterhead]
Date: [DD/MM/YYYY]To: [Name of Contractor’s Representative]
Address: [Contractor’s office address]Dear [Mr./Ms./Dr. ___],
We acknowledge receipt of your letter dated [DD/MM/YYYY] regarding your request for issuance of the Performance Certificate under Clause 11.9 for [Project Name].
We are currently reviewing the defect-remedy documentation you have submitted. In order to finalize our assessment, the following steps will be taken:
- Site Inspection: Our team will conduct a site visit on [proposed date or range] to verify the completion of all remedial works.
- Review of Supporting Documents: We will cross-check the attached certificates, test results, and any as-built records you provided.
- Confirmation: Once satisfied that the remedial works and all final obligations are complete, we will proceed to issue the Performance Certificate.
Should we find any items outstanding or insufficiently addressed, we will provide you with a detailed list for immediate resolution. Otherwise, we anticipate providing a formal response or certificate within [X] days from the date of this letter (or as outlined in the Particular Conditions).
We appreciate your cooperation and look forward to closing out this project stage successfully.
Sincerely,
[Signature]
[Name & Title of Engineer]
[Engineer’s Firm/Organization Name]
3. Letter from Engineer to Contractor Listing Outstanding Items (Refusal to Issue Performance Certificate)
Scenario: The Engineer has found defects or deliverables not yet fully addressed. The Engineer notifies the Contractor of reasons why the Performance Certificate cannot yet be issued.
Subject: Outstanding Issues Preventing Issuance of Performance Certificate
[On Engineer’s Letterhead]
Date: [DD/MM/YYYY]To: [Name of Contractor’s Representative]
Address: [Contractor’s office address]Dear [Mr./Ms./Dr. ___],
We refer to your request dated [DD/MM/YYYY] for issuance of the Performance Certificate under Clause 11.9 of the Contract for [Project Name]. Following our recent site inspection and document review, we have identified certain outstanding matters which must be addressed prior to the issuance of the Performance Certificate:
- Defect #1: [Describe the remaining defect, e.g., “Cracks on the east wall of Section B remain unsealed.”]
- Defect #2: [e.g., “Lighting controls in Pump House #3 are not fully operational.”]
- Documentation: [e.g., “As-built drawings for the mechanical system require clarification on newly installed valves.”]
These issues, in our professional opinion, significantly impact either the functionality, completeness, or documentation standards required under the Contract. Consequently, we are unable to issue the Performance Certificate until these matters are rectified.
Action Items:
- Please address the above defects and provide a confirmation of completion or rectification schedule.
- Submit revised documentation within [X] days.
Upon receiving satisfactory evidence of completion or upon re-inspection, we will promptly re-evaluate the issuance of the Performance Certificate. If you require further clarification or an on-site meeting, please contact us.
We appreciate your cooperation and trust this clarifies the steps necessary to finalize the project close-out.
Yours sincerely,
[Signature]
[Name & Title of Engineer]
[Engineer’s Firm/Organization Name]
4. Letter from Contractor to Engineer Confirming Completion of Outstanding Items
Scenario: The Contractor addresses the Engineer’s concerns from the refusal letter and notifies that the items have been remedied.
Subject: Completion of Outstanding Items for Performance Certificate
[On Contractor’s Letterhead]
Date: [DD/MM/YYYY]To: [Name of Engineer]
Address: [Engineer’s office address]Dear [Mr./Ms./Dr. ___],
Thank you for your letter dated [DD/MM/YYYY], which highlighted the remaining issues preventing issuance of the Performance Certificate for [Project Name]. We are pleased to confirm the following actions:
- Defect #1 – East Wall Cracks: Repaired and tested. We enclose photographs and a site supervisor’s report confirming the sealing process and final inspection.
- Defect #2 – Lighting Controls: A new control panel was installed on [date], and the system was successfully tested on [date]. Please see enclosed test record forms.
- Documentation: Updated as-built drawings (Revision X) are attached with clarifications on all valve placements.
We respectfully request your re-inspection of these items or acceptance of the attached evidence so that the Performance Certificate can be issued at your earliest convenience.
If any further information or a joint site visit is necessary, please inform us. We appreciate your prompt response and look forward to completing the final milestone.
Yours faithfully,
[Signature]
[Name & Title of Contractor’s Representative]
5. Letter from Engineer to Contractor Issuing Performance Certificate
Scenario: Having confirmed defect remedy, the Engineer finally issues the Performance Certificate.
Subject: Issuance of Performance Certificate (Clause 11.9)
[On Engineer’s Letterhead]
Date: [DD/MM/YYYY]To: [Name of Contractor’s Representative]
Address: [Contractor’s office address]Dear [Mr./Ms./Dr. ___],
We are pleased to advise that, following our recent inspection and review of remedial works documentation, we have found all defects and outstanding items addressed in accordance with the Contract for [Project Name].
Accordingly, in line with Clause 11.9 (Performance Certificate), we hereby issue the attached Performance Certificate confirming that you have substantially fulfilled your obligations under the Contract for the Works. The date of issuance of this Performance Certificate is [DD/MM/YYYY].
With the issuance of this certificate, the Defects Notification Period is deemed to have concluded, and you are released from further liability for defects, except for any continuing obligations explicitly stated in the Contract (e.g., latent defects, indemnities, or obligations surviving under local law).
Thank you for your cooperation and collaboration throughout this project. We trust this concludes the final stage of works under your scope.
Yours sincerely,
[Signature]
[Name & Title of Engineer]
[Engineer’s Firm/Organization Name]Encl. Performance Certificate (Dated [DD/MM/YYYY])
Tips on Using These Letters
- Adapt the Language: Always match your contract’s defined terms (e.g., “Works,” “Engineer,” “Employer,” “DNP”).
- Reference Correct Clauses: If you’re using the FIDIC Yellow Book 2017, you might cross-reference Clause numbers slightly differently, but the essence is the same.
- Maintain Consistent Formatting: Keep a record or logbook (like a “Communications Register”) to ensure all parties know the timeline of letters sent/received.
- Attachments: Each letter referencing photos, test results, or other documentation should include them as enclosures (or attach them via email in practice).
By using such letters, both the Contractor and the Engineer ensure clear communication, proper documentation, and compliance with the formal requirements of Clause 11.9—leading to a smoother, more transparent close-out process.