Sequence Diagrams explaining CLAUSE 11 DEFECTS LIABILITY

Participants

1. Contractor: The entity responsible for completing the work and remedying defects.
2. Employer: The entity that notifies the Contractor of defects and may take various actions based on the Contractor’s performance.
3. Engineer: The entity that instructs the Contractor on various matters, including the completion of outstanding work and the issuance of Performance Certificates.

Clause 11.1: Completion of Outstanding Work and Remedying Defects

• The Contractor is instructed by the Engineer to complete any outstanding work.
• The Contractor is also responsible for executing all work required to remedy defects or damage as notified by the Employer.
• A “Defects Notification Period” is noted, during which the Employer can notify the Contractor of any defects or damage.

Clause 11.2: Cost of Remedying Defects

• The Contractor must execute the work at their own risk and cost if the work is attributable to them.
• If the work is attributable to any other cause, the Employer will notify the Contractor.

Clause 11.3: Extension of Defects Notification Period

• The Employer has the right to extend the Defects Notification Period subject to Sub-Clause 2.5.

Clause 11.4: Failure to Remedy Defects

• The Employer can fix a date by which the Contractor must remedy the defect or damage.
• If the Contractor fails to remedy by this date, the Employer has various options for remedial action.

Clause 11.5: Removal of Defective Work

• If a defect can’t be remedied on the Site, the Contractor may remove items for repair with the Employer’s consent.

Clause 11.6: Further Tests

• The Engineer may require repetition of tests if the remedial work affects the performance of the Works.

Clause 11.7: Right of Access

• The Contractor has the right of access to all parts of the Works and records until the Performance Certificate is issued.

Clause 11.8: Contractor to Search

• The Engineer may require the Contractor to search for the cause of any defect.

Clause 11.9: Performance Certificate

• The Engineer issues the Performance Certificate, marking the completion of the Contractor’s obligations.

Clause 11.10: Unfulfilled Obligations

• Both parties remain liable for any unperformed obligations even after the Performance Certificate is issued.

Clause 11.11: Clearance of Site

• The Contractor must remove any remaining items from the Site upon receiving the Performance Certificate.
• The Employer may sell or dispose of any remaining items if the Contractor fails to remove them.

Clause 11.1 Completion of Outstanding Work and Remedying Defects

Participants

1. Contractor: The entity responsible for completing the construction work and remedying any defects.
2. Engineer: The entity that instructs the Contractor on completing outstanding work.
3. Employer: The entity that notifies the Contractor of any defects or damages.

Sequence of Activities

1. Taking-Over Certificate Issued:
   • The process starts when the Engineer issues a Taking-Over Certificate to the Contractor.
2. Instruct to Complete Outstanding Work:
   • The Engineer instructs the Contractor to complete any work that is outstanding as of the date stated in the Taking-Over Certificate.
3. Complete Outstanding Work:
   • The Contractor completes the outstanding work within a reasonable time as instructed by the Engineer.
4. Notify of Defects or Damage:
   • The Employer notifies the Contractor of any defects or damages that need to be remedied.
5. Remedy Defects or Damage:
   • The Contractor executes all work required to remedy the notified defects or damages.

Optional Path

• Defect Appears or Damage Occurs:
  • This is an optional path in the diagram. If a defect appears or damage occurs after the initial notification, the Employer notifies the Contractor accordingly.

Notes

• Defects Notification Period:
  • A note is placed over the Contractor and Employer to indicate that all these activities should be completed by the expiry date of the relevant Defects Notification Period or as soon as practicable thereafter.

Clause 11.2 Cost of Remedying Defects

Participants

1. Contractor: The entity responsible for completing the work as per Clause 11.1 and may bear the risk and cost if the work is attributable to them.
2. Employer: The entity that assesses if the work is attributable to the Contractor and notifies them accordingly.

Sequence of Activities

1. Work Completed as per Clause 11.1:
   • The process starts when the Contractor completes the work as required by Clause 11.1.
2. Assess if Work is Attributable to Contractor:
   • The Employer assesses whether the work is attributable to the Contractor based on various conditions like design, materials, workmanship, etc.

Optional Paths

1. Work Attributable to Contractor:
   • If the work is attributable to the Contractor, they must execute it at their own risk and cost. This could be due to issues with design, materials, workmanship, operation, maintenance, or other obligations. A note is placed over this path to indicate the conditions under which the Contractor bears the cost.
2. Work Not Attributable to Contractor:
   • If the work is not attributable to the Contractor, the Employer notifies them promptly. In this case, Sub-Clause 13.3 (Variation Procedure) applies. A note is placed over this path to indicate that Sub-Clause 13.3 applies.

Clause 11.3 Extension of Defects Notification Period

Participants

1. Employer: The entity responsible for assessing whether the Works or Section can be used for the intended purposes.
2. Contractor: The entity that acknowledges the extension of the Defects Notification Period or specifies that certain obligations do not apply under specific conditions.

Sequence of Activities

1. Assess if Works/Section Can be Used as Intended:
   • The process starts when the Employer assesses if the Works or Section can be used for the intended purposes.

Optional Paths

1. Works/Section Cannot be Used:
   • If the Works or Section cannot be used for the intended purposes, the Employer is entitled to an extension of the Defects Notification Period. However, this extension cannot exceed two years. A note is placed over this path to indicate the maximum extension period.
2. Suspension under 8.8 or 16.1:
   • If the delivery and/or erection of Plant and/or Materials was suspended under Sub-Clause 8.8 or 16.1, the Contractor’s obligations do not apply to any defects or damage occurring more than two years after the Defects Notification Period would otherwise have expired. A note is placed over this path to indicate the relevant sub-clauses.

Clause 11.4 Failure to Remedy Defects

Participants

1. Contractor: The entity that may fail to remedy a defect or damage within a reasonable time.
2. Employer: The entity that fixes a date for remedying the defect or damage and chooses a remedial action if the Contractor fails to comply.

Sequence of Activities

1. Fails to Remedy Defect/Damage Within Reasonable Time:
   • The process starts when the Contractor fails to remedy a defect or damage within a reasonable time. A note is added to indicate that this is the “Reasonable Time” for action.
2. Fix Date for Remedying Defect/Damage:
   • The Employer then fixes a date by which the Contractor should remedy the defect or damage. A note is added to indicate that this is the “Notified Date.”

Optional Paths

1. Failure to Remedy by Notified Date:
   • If the Contractor fails to remedy the defect or damage by the notified date, the Employer has three options:
     • a) Carry out the work themselves
     • b) Reduce the Contract Price
     • c) Terminate the Contract
   • A note is added to indicate that Sub-Clause 2.5 applies for costs.
2. Employer Carries Out Work:
   • The Employer may choose to execute the work at the Contractor’s cost.
3. Reduce Contract Price:
   • The Employer may require the Engineer to determine a reasonable reduction in the Contract Price. A note is added to indicate that Sub-Clause 3.5 applies.
4. Terminate Contract:
   • The Employer may terminate the Contract and recover all sums paid, financing costs, and dismantling costs.

Clauses 11.5 to 11.11

Participants

1. Contractor: The entity responsible for executing the work.
2. Employer: The entity for whom the work is being done.
3. Engineer: The entity that may require tests and issue certificates.

Sequence of Activities

Removal of Defective Work (Clause 11.5)

1. Defect or Damage Can’t Be Remedied on Site:
   • The Contractor informs the Employer that a defect or damage cannot be fixed on-site.
2. Employer’s Consent for Removal:
   • The Employer may give consent to the Contractor to remove defective items from the site.
   • Note: The Employer may require the Contractor to increase the Performance Security.

Further Tests (Clause 11.6)

3. Further Tests Required:
   • If the Engineer believes that remedying a defect may affect the performance of the work, they may require additional tests.
   • Note: The Engineer must give notice within 28 days after the defect has been fixed.

Right of Access (Clause 11.7)

4. Right of Access:
   • The Contractor has the right to access all parts of the work and related records, except where the Employer has security restrictions.

Contractor to Search (Clause 11.8)

5. Contractor to Search:
   • The Engineer may require the Contractor to search for the cause of a defect.
   • Note: The cost of the search is determined by the Engineer.

Performance Certificate (Clause 11.9)

6. Performance Certificate:
   • The Engineer issues a Performance Certificate, indicating that the Contractor has fulfilled their obligations.
   • Note: This is issued within 28 days after the Defects Notification Periods have expired.

Unfulfilled Obligations (Clause 11.10)

7. Unfulfilled Obligations:
   • Both the Contractor and the Employer remain liable for any obligations that are unfulfilled after the Performance Certificate is issued.

Clearance of Site (Clause 11.11)

8. Clearance of Site:
   • The Contractor is required to remove any remaining items from the site within 28 days after receiving the Performance Certificate.
   • Note: The Employer may sell or dispose of any remaining items if the Contractor fails to remove them.