Let’s go deep—friendly tone, lots of real-world context, and crystal-clear links to the rest of the Contract. I’ll quote or closely paraphrase key lines and show quick citations so you can verify. 📒
1️⃣ Purpose of Clause 1.1.3 — why these definitions matter 🧭
Think of Clause 1.1.3 as the project’s time-and-testing compass. It pins down:
- when the contract’s clock starts (Commencement Date),
- how long you have before delay risk kicks in (Time for Completion),
- which tests must be passed and when (pre-TOC vs post-TOC), and
- how long the Contractor stays on the hook for defects (DNP) before full close-out (Performance Certificate).
These definitions are not mere “glossary bits”—they drive decisions under Clauses 8 (time & programme), 9 (tests on completion), 10 (taking-over), 11 (defects), and 12 (tests after completion). If you ever debate LDs, EOT, partial taking-over, retesting, or extending the DNP, this clause is where you’ll keep returning.
2️⃣ Breakdown of Clause 1.1.3 — each definition, with context & pitfalls 🧩
1.1.3.1 Base Date
“Base Date” means the date 28 days prior to the latest date for submission of the Tender.
Why it matters (plain English): It “freezes” assumptions (laws, standards, site info) for risk comparison. Changes after the Base Date can justify adjustments depending on your conditions, but what existed before is typically baked into the Contractor’s price.
Practical tip: In Particular Conditions, it’s common to name the calendar date to avoid argument later.
Interpretative question: Can it be read that market price spikes post-Base Date are always reimbursable? Usually no (unless you’ve kept price adjustment clauses). Regulatory shifts are different—those may trigger adjustments depending on your change-in-law provisions.
1.1.3.2 Commencement Date
“Commencement Date” means the date notified under Sub-Clause 8.1 [Commencement of Works].
Under 8.1, the Engineer gives at least 7 days’ notice, and unless otherwise stated, the Commencement Date is within 42 days of LOA.
Why it matters: No commencement = the time for completion doesn’t run yet. Bonds/programme submissions often key off this date.
Watch-out: If the Employer/Engineer delays the notice, don’t let downstream dates (access to Site, payment milestones) remain misaligned.
1.1.3.3 Time for Completion
The time for completing the Works/Section under 8.2, as stated in the Appendix to Tender, with any extension under 8.4, calculated from the Commencement Date.
Quiet but crucial detail: Under 8.2, “complete” means (a) pass Tests on Completion and (b) finish anything else required for taking-over. In other words, construction alone isn’t enough.
Implication: If Clause 9 tests aren’t passed by the Time for Completion (and no EOT is due), delay damages risk is live.
1.1.3.4 Tests on Completion (ToC)
The tests specified/agreed/varied, carried out under Clause 9 before taking-over.
What they usually include: pre-commissioning → commissioning → trial operation, unless Particular Conditions change the sequence.
Admin mechanics: Notice periods, timing, and what happens if Employer or Contractor delays the tests (including the possibility for Employer’s Personnel to proceed at Contractor’s risk/cost if the Contractor drags).
If they fail: The Engineer can order retests, reject a Section (in extreme cases), or (if Employer requests) take over with a price reduction for reduced value.
Interpretative question: If the Employer uses the Works during trial operation, does that count as taking-over? No—trial operation does not constitute taking-over.
1.1.3.5 Taking-Over Certificate (TOC)
A certificate issued under Clause 10 [Employer’s Taking Over].
Process highlights: Contractor can apply not earlier than 14 days before, Engineer has 28 days to issue or reject (with reasons). Silence + substantial compliance = deemed TOC at day 28.
Partial taking-over: Employer may take over parts; that part is deemed taken over when used, responsibility shifts, and TOC may be requested for that part. Delay damages for the remainder are proportionally reduced.
1.1.3.6 Tests after Completion (TAC)
Tests (if any) under Clause 12 conducted after taking-over, to verify post-TOC performance.
Why they’re tricky: They prove in-service performance. Employer’s Requirements should define them carefully (inputs, criteria, instrumentation), and Contractor’s manuals/guidance often apply.
Remedies lane: Shortfalls here typically lead to performance remedies/LDs or rectification—not delay LDs (that’s a Clause 9/10 matter).
1.1.3.7 Defects Notification Period (DNP)
The period for notifying defects under 11.1, as stated in the Appendix to Tender, with any extension under 11.3, calculated from the date certified under 10.1.
What happens in DNP: Complete outstanding work listed on TOC and fix notified defects.
Extensions: DNP can be extended if the Works/Section (after taking-over) can’t be used for their intended purpose due to a defect/damage, but not by more than two years.
Cross-check in the Appendix to Tender: You’ll typically see entries like “Time for Completion: … days” and “Defects Notification Period: 365 days.”
1.1.3.8 Performance Certificate (PC)
The certificate under 11.9 that closes out defect-related obligations (subject to any surviving duties).
Money link: Retention releases track TOC, successful tests (including TAC if any), and DNP expiry—the last chunk of retention is released after the last DNP expires (or withheld for pending Clause 11/12 work).
1.1.3.9 day / year
“day” means a calendar day and “year” means 365 days.
Why this tiny line saves big arguments: Notice periods, LD counts, and certification windows use calendar days unless you explicitly switch to “working days” somewhere else. No weekend discounts unless you write them in.
3️⃣ Key interpretations & implications (what the definitions do in practice) 🔍
- Completion ≠ construction only. Because 8.2 requires passing Tests on Completion to “complete,” missing Clause 9 tests inside the Time for Completion window can trigger delay LDs unless EOT applies.
- TOC vs TAC = different risk lanes. Pre-TOC failures are a time problem; post-TOC performance is a performance problem. Under 9.4, you may even accept with a price reduction if the Employer chooses to take over despite shortfalls.
- DNP extension is capped. You can extend under 11.3 when the Works can’t be used for their intended purpose because of a defect, but the added time cannot exceed two years.
- “Calendar day” counting is default. If your notice says “within 28 days”, weekends/holidays still count. If you need “business days,” spell it out (PCs often do).
4️⃣ Cross-referencing — how 1.1.3 plugs into the rest 🗺️
- 8.1 Commencement → provides the notice mechanics (≥ 7 days) and the 42-day window from LOA—this is what populates 1.1.3.2 Commencement Date.
- 8.2 Time for Completion → says completion includes passing ToC tests and listed works needed for taking-over—tight link to 1.1.3.3.
- 9 Tests on Completion → sequences and consequences (delays, retesting, failure options) are the operational engine behind 1.1.3.4.
- 10 Taking-Over → issuance windows, deemed TOC, partial TOC, and proportional LD reductions map to 1.1.3.5.
- 11 Defects → what DNP covers, how it can be extended (cap two years), and how PC ends the journey—these flesh out 1.1.3.7 and 1.1.3.8.
5️⃣ What-if scenarios (with reasoned outcomes) 🧠
- Engineer delays the 8.1 notice.
No notice → no Commencement Date → Time for Completion doesn’t start. Programme and time-linked securities may need aligning. - Physically finished, but ToC tests not passed by the deadline.
You’re not complete under 8.2; exposure to delay LDs unless there’s an EOT entitlement. - Employer uses part of the Works early.
That part is deemed taken over from the date of use; care/risk shifts; LDs for the remainder reduce proportionally thereafter. - Contractor delays the ToC tests.
Engineer may order tests within 21 days; failure → Employer’s Personnel can test at Contractor’s risk/cost, and results stand. - Employer prevents ToC tests for > 14 days.
Employer is deemed to have taken over on the date the tests would have completed; Contractor gets EOT and Cost + reasonable profit. Engineer must later require the tests with 14 days’ notice. - ToC tests fail repeatedly.
Engineer can order more retests, reject a Section if failure is fundamental, or (at Employer’s request) issue TOC with a reduction reflecting lost value. - DNP about to expire but defects keep recurring.
If the Works/Section can’t be used for intended purpose due to defects, extend DNP (but remember the two-year cap on extension). - Retention release & PC timing.
Half the retention flows after TOC and completion of specified tests (including TAC if any); the balance follows after DNP—unless work under 11/12 remains, in which case certification can be withheld for that estimated cost.
6️⃣ Suggestions for clarity & improvement (Particular Conditions drafting) ✍️
- Pin Base Date as a calendar date. Replace the relative wording with an actual date in the Contract Data to avoid disputes.
- Spell out notice counting rules. If you want “business days,” say so—1.1.3.9 defaults to calendar days and “year = 365 days.”
- Map tests to remedies (one-page matrix):
- Clause 9 (pre-TOC): Failure = time risk (possible delay LDs).
- Clause 12 (post-TOC): Shortfall = performance risk (rectification/performance LDs).
- Sectional/partial TOC specifics: Define Sections precisely (geography, values for proportional LD reductions, retention splits).
- DNP extension triggers: List examples (major replacement, repeated failures) and flag the two-year cap to set expectations.
- Admin discipline for tests: Lock in notice windows, required manuals/instrumentation, and data capture/reporting formats.
7️⃣ Final takeaways ✅
- Clause 1.1.3 is the dictionary of time & testing. Nail these definitions and the rest—EOTs, LDs, TOC/TAC, DNP, and PC—runs smoother.
- Completion means tests passed. Under 8.2, if ToC tests aren’t passed in time (and no EOT), delay LDs loom.
- Separate the lanes: Clause 9 = time risk; Clause 12 = performance risk. Treat remedies accordingly.
- Use calendar days unless you change it. That tiny line in 1.1.3.9 prevents big counting fights.
Quick reflection prompts 💬
- Can it be interpreted that “substantial completion” (physically) is enough for TOC? Not under 8.2—you also need to pass Tests on Completion.
- If performance is slightly under spec after TOC, must we re-do all works? Not necessarily; 9.4 allows TOC with a price reduction for diminished value, if the Employer requests.