Detailed Explanation with Color Emphasis
Start: Delay in Tests on Completion (Pink)
The process starts when there is an undue delay in the Tests on Completion. The delay could be attributed to either the Employer or the Contractor.
Delay by Employer (Peach)
If the delay is caused by the Employer, then Sub-Clause 7.4 [Testing] and Sub-Clause 10.3 [Interference with Tests on Completion] become applicable. These sub-clauses could involve penalties or other remedies under U.S. contract law.
Delay by Contractor & Engineer’s 21-Day Notice (Red)
If the Contractor is responsible for the delay, the Engineer may issue a 21-day notice requiring the Contractor to conduct the Tests. This aligns with standard notice periods in U.S. construction contracts.
Contractor Conducts Tests (Dark Red)
Upon receiving the notice, the Contractor is obligated to carry out the Tests within the 21-day period. The Contractor must also notify the Engineer of the chosen day(s) for testing.
Failure to Conduct Tests & Employer’s Personnel Proceed (Teal)
If the Contractor fails to conduct the Tests within the 21-day period, the Employer’s Personnel may proceed with the Tests at the Contractor’s risk and cost. This is a significant point, as it could involve legal ramifications under U.S. law.
End: Results Deemed Accurate (Light Purple)
If the Employer’s Personnel proceed with the Tests, the results are deemed accurate and are considered to have been carried out in the presence of the Contractor.
Detailed Explanation with Color Emphasis
- Start: Delay in Tests on Completion (Pink): The flowchart begins with a delay in Tests on Completion, which triggers the need for action.
- Delay by Employer or Contractor (Peach and Red): The delay can be caused either by the Employer or the Contractor. Each path leads to different clauses being invoked.
- Invoke Clause 7.4 & 10.3 (Peach): If the Employer is responsible for the delay, Clause 7.4 [Testing] and Clause 10.3 [Interference with Tests on Completion] are invoked. This may lead to an extension of time under Clause 8.4 [Extension of Time for Completion] and a determination by the Engineer under Clause 3.5 [Determinations].
- Engineer’s 21-Day Notice: Clause 9.2 (Red): If the Contractor is responsible for the delay, the Engineer may issue a 21-day notice requiring the Contractor to carry out the Tests.
- Contractor Conducts Tests (Dark Red): Ideally, the Contractor will conduct the Tests within this period, leading to the end of the process with the results deemed accurate.
- Failure to Conduct (Teal): If the Contractor fails to conduct the Tests, the Employer’s Personnel may proceed with the Tests at the Contractor’s risk and cost.
- End: Results Deemed Accurate (Purple): Regardless of who conducts the Tests, the process ends when the Tests are deemed accurate.
Introduction to Clause 9.2 Delayed Tests
Clause 9.2 Delayed Tests addresses the scenarios where the Tests on Completion are unduly delayed either by the Employer or the Contractor. It outlines the actions to be taken and the consequences thereof. This clause is closely related to several other clauses, such as Clause 7.4 [Testing], Clause 8.4 [Extension of Time for Completion], Clause 10.3 [Interference with Tests on Completion], and Clause 3.5 [Determinations].
Interplay with Clause 7.4 Testing
Clause 7.4 [Testing] sets the groundwork for all tests specified in the Contract, except for Tests after Completion. It mandates the Contractor to provide all necessary resources for testing and to agree with the Engineer on the time and place for testing1. In the context of Clause 9.2, if the Employer is responsible for the delay, the Contractor may invoke Sub-Clause 7.4 to claim costs and an extension of time.
Connection with Clause 8.4 Extension of Time for Completion
Clause 8.4 [Extension of Time for Completion] provides the Contractor with the right to an extension of time for various reasons, including delays caused by the Employer2. In the case of Clause 9.2, if the Contractor suffers a delay due to the Employer’s actions, an extension of time can be claimed under Sub-Clause 8.4.
Linkage to Clause 10.3 Interference with Tests on Completion
Clause 10.3 [Interference with Tests on Completion] deals with scenarios where the Contractor is prevented from carrying out the Tests on Completion due to the Employer’s actions3. In such cases, the Employer is deemed to have taken over the Works, and a Taking-Over Certificate is issued. This clause is directly invoked in Clause 9.2 if the Employer is the cause of the delay.
Relation to Clause 3.5 Determinations
Clause 3.5 [Determinations] outlines the Engineer’s role in making fair determinations in case of disagreements[^4^]. In Clause 9.2, if there are disputes over delays or costs, the Engineer will proceed according to Sub-Clause 3.5 to make a determination.
U.S. Specific Regulations and Standards
In the United States, the American Society of Civil Engineers (ASCE) provides guidelines that could be referenced for testing procedures. Additionally, the Occupational Safety and Health Administration (OSHA) regulations may apply to ensure the safety of testing operations. Environmental laws such as the National Environmental Policy Act (NEPA) could also be relevant when conducting tests that may have environmental impacts.
Conclusion
Clause 9.2 Delayed Tests serves as a critical component in managing delays in Tests on Completion. It not only outlines the procedures to be followed but also ties in with other essential clauses to provide a comprehensive framework for handling delays. Understanding the interplay between these clauses can provide valuable insights into effective contract management.
