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Understanding Clause 11.7 Right of Access in FIDIC Contracts

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Right of Access

1️⃣ Purpose of Clause 11.7

This Clause thereby balances two primary aims: ensuring the Contractor is able to discharge its defect-remedy obligations without undue hindrance, while protecting the Employer’s right to operate or use the Works after Taking Over.

2️⃣ Breakdown of Clause 11.7

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3️⃣ Key Interpretations and Implications

Here are some important points to consider:

4️⃣ Cross-Referencing with Other Clauses

When reading Clause 11.7 in either the 1999 or 2017 editions, it’s helpful to see how it fits into the bigger FIDIC picture. After all, the right of access doesn’t exist in a vacuum—it “interacts” with various other provisions that define when the Contractor can enter the Site, what obligations the Contractor must fulfill, and how disputes are handled. Let’s explore these connections in a friendly, more detailed way:

Clause 10 (both editions) – Employer’s Taking Over

Essentially, Clause 10 triggers the “We’re done, or nearly done” milestone, but Clause 11.7 keeps the door open—quite literally—for finishing up.

Clause 11.1 (both editions) – Completion of Outstanding Work and Remedying Defects

So Clause 11.1 is the “what needs to be done,” and Clause 11.7 is the “you have the right to go do it.”

Clause 11.9 (1999) / Clause 11.9 (2017) – Performance Certificate

Clause 20 (1999) / Clause 20 & 21 (2017) – Claims and Disputes

Hence, Clause 20 or 20/21 is the safety net if Clause 11.7’s promise of access is not honored or becomes contentious.

Potential Extras: Clause 8 (Time for Completion) and Clause 8.4/8.5 (Extension of Time)

In short, Clause 11.7 in both versions of the FIDIC Yellow Book is closely interconnected with Clauses on Taking Over (Clause 10), obligations to complete or fix issues (Clause 11.1), the final sign-off process (Clause 11.9), and the resolution of disagreements (Clause 20 in 1999, Clauses 20 & 21 in 2017). By understanding those references, you see how the Contractor is protected in their right to finish up the Works properly, while the Employer has recourse if things go awry.

So whenever you think of Clause 11.7, also keep these other clauses in mind. They form a support network that keeps the project healthy and fair for both Parties until every last item is done and dusted!

5️⃣ What If Scenarios?

  1. What if the Employer denies access for security reasons?
    • 🚨 The Contractor can notify the Engineer or Employer in writing, citing Clause 11.7. If the Employer continues to deny access unreasonably, the Contractor may be entitled to an extension of time and/or additional costs.
  2. What if defects only appear near the end of the Defects Notification Period?
    • 📌 Clause 11.7 typically remains valid until the Performance Certificate is issued. The Contractor can still access the Site to remedy new or newly discovered defects, as long as they fall within the Defects Notification Period or any extension thereof (e.g., Clause 11.3).
  3. What if the Employer wants to operate the Works at full capacity?
    • ✅ The Employer can indeed use the Works. However, it must still accommodate the Contractor if remedial work is needed (though the Employer can impose reasonable conditions to avoid disruption to operations).
  4. What if the remedial work requires additional specialized equipment not on the Site?
    • 📌 The Contractor would typically coordinate equipment transport with the Employer, referencing Clause 4.16 (Transport), but Clause 11.7 still ensures the fundamental right to be on the Site.

6️⃣ Suggestions for Clarity and Improvement

While Clause 11.7 is generally clear in both the 1999 and 2017 editions, there’s always room to reduce ambiguity, especially when it comes to how and when the Contractor regains access to the Site. Below are some extended suggestions, complete with practical examples and potential revised wording:

1. Define “Reasonable Access” More Explicitly

This new language clarifies that if there are operational restrictions, both Parties should talk first and then find a workable schedule.

2. Specify Responsibilities for Permits and Approvals

This ensures both sides share the burden: the Employer usually handles local authority dealings while the Contractor hands over the required technical data.

3. Define Clear Coordination Procedures

Spelling out the “who, when, and how” of re-entry avoids a lot of on-the-spot arguments.

4. Incorporate Local Indian Standards or Other Regional Requirements

By referencing the specific codes, you minimize confusion about whose rules apply.

5. Clarify Consequences of Withheld Access

This ensures no disputes about whether the Contractor is at fault if they simply can’t get in.

6. Provide a Deadline for the Contractor to Complete Remedial Work

So the Employer knows exactly when to expect the job to be done.

Putting It All Together

In summary, even though Clause 11.7’s existing text is concise, it can benefit from more specifics:

By incorporating these suggestions into the Particular Conditions or an additional Access Protocol annex, you ensure that any last-minute finishing work is handled quickly, safely, and predictably—making Clause 11.7 more of a help than a headache.

Ultimately, these improvements revolve around being crystal-clear about what “access” looks like, who is responsible for enabling it, and what happens if it’s withheld or delayed. That way, the Contractor’s crucial job of remedying defects is done in a fair and efficient manner for everyone involved.

7️⃣ Final Takeaways

In essence, Clause 11.7 underlines that, even though the Works may have been taken over, the Contractor still has a legitimate and contractually protected right (and duty) to correct issues. Both the 1999 and 2017 editions preserve this right, but the 2017 edition expands clarity by stating more explicitly that the Employer must not unreasonably withhold or delay permission for accessing the Site.

Checklist

Below is an example checklist in a tabular format to help track compliance with Clause 11.7 (Right of Access) and related requirements. The last column contains a checkbox for easy use.

No.Checklist ItemExplanation / NotesCheck
1Identify Applicable Site AreasConfirm which parts of the Site or Sections are subject to access for remedial work (post-Taking Over).[ ]
2Confirm Defects Notification Period (DNP)Check the start and end dates of the DNP, ensuring the access right is valid during this timeframe.[ ]
3Review Any Restrictions on Hours / OperationsDetermine if there are operational constraints (e.g., only nighttime access, security clearance) that could limit the Contractor’s entry.[ ]
4Establish Coordination ProtocolAgree on communication channels, contact persons, and scheduling procedures between Contractor, Employer, and Engineer to facilitate access.[ ]
5Check Permit / Approval RequirementsAscertain if any local authority permits or additional employer-issued permissions are needed, especially for sensitive or partially occupied sites (hospitals, airports, etc.).[ ]
6Assess Safety, Health & Environment (SHE) RulesMake sure the Contractor complies with site-specific safety plans, PPE rules, and environment-related obligations, especially if the facility is in operation.[ ]
7Document Potential Delays or ObstructionsIf the Employer restricts or delays access, note the specifics (date, nature of denial, impact on schedule) for potential Extension of Time (EOT) or Cost claims.[ ]
8Record All Remedial Works PerformedKeep track of what defects or outstanding works were remedied, when access was granted, and how the tasks were completed.[ ]
9Cross-Check with Other Clauses (e.g., Clause 10)Ensure coordination with Clause 10 (Taking Over), Clause 11.1 (Remedying Defects), and relevant claims/dispute clauses (Clause 20/21) if there’s a conflict with access arrangements.[ ]
10Obtain/Confirm Final Acceptance or Performance CertUpon completion of remedial works, confirm that the Employer/Engineer acknowledges compliance and that the Performance Certificate is issued if all obligations are fulfilled.[ ]

How to Use This Table

  1. Print or save a copy for regular project meetings or site inspections.
  2. Tick the checkbox once each step is verified or completed.
  3. Keep this checklist in your project records to demonstrate compliance with Clause 11.7 and related FIDIC obligations.

Sample Letters

1. Contractor’s Letter to the Employer Requesting Access

Purpose: The Contractor needs formal access to the Site (or a part of it) during the Defects Notification Period to carry out remedial works.

[Contractor’s Letterhead]
Date: [dd/mm/yyyy]
To: [Employer’s Name / Representative]
Project Title: [Insert Project Name and Contract Reference]

Subject: Request for Site Access During Defects Notification Period (Clause 11.7)

Dear [Mr./Ms. Employer’s Representative],

  1. We refer to the above Contract dated [insert date] and, in particular, Clause 11.7 concerning our right of access to the Site during the Defects Notification Period.
  2. On [date], we identified [describe defect(s) or outstanding work], which requires our attendance on Site for proper remedy. According to Clause 11.7, we respectfully request that you grant us uninterrupted access to [specific area(s)] on [proposed date(s)] between [proposed time(s)].
  3. We kindly request any guidance you may have regarding safety protocols, limited working hours, and any other specific requirements. In line with Clause 11.7, we trust that access will not be unreasonably withheld or delayed, ensuring timely resolution of these defects and minimal disruption to your operations.
  4. We appreciate your prompt confirmation of this request and look forward to maintaining the high standard of the Works. If you have any questions or need further details, please feel free to contact me at [phone/email].

Thank you for your cooperation.

Yours sincerely,
[Name and Position of Contractor’s Representative]
For and on behalf of [Contractor Name]

2. Employer’s Letter to the Contractor Granting Access

Purpose: The Employer formally confirms the Contractor’s right to access portions of the Site for remedial work.

[Employer’s Letterhead]
Date: [dd/mm/yyyy]
To: [Contractor’s Representative Name / Contractor Company Name]
Project Title: [Insert Project Name and Contract Reference]

Subject: Grant of Access to Site (Clause 11.7)

Dear [Mr./Ms. Contractor’s Representative],

  1. We acknowledge receipt of your letter dated [dd/mm/yyyy] requesting access to [specific areas] of the Site under Clause 11.7 of the Contract.
  2. In line with the Contract, we hereby confirm that access will be granted for your remedial works on:
    • Date(s): [insert date range]
    • Time(s): [insert hours / any restrictions]
    • Location(s): [specific building/section/area]
  3. Please ensure that all your personnel adhere to the Site regulations, safety protocols, and security procedures currently in place. Kindly coordinate with our Site representative, [Name], at [contact info], at least 48 hours before arriving on Site.
  4. If any amendments to the schedule or additional clearances are required, we will notify you promptly. We anticipate that the remedial work will be completed smoothly within the agreed timeframe.

Thank you for your cooperation, and please keep us informed of your progress.

Yours sincerely,
[Name and Position of Employer’s Representative]
For and on behalf of [Employer Name]

3. Contractor’s Letter to the Engineer Reporting Denial or Delay of Access

Purpose: The Contractor notifies the Engineer that, despite the provisions of Clause 11.7, access has been denied or delayed, possibly impacting schedule or costs.

[Contractor’s Letterhead]
Date: [dd/mm/yyyy]
To: [Engineer’s Name / Engineer’s Company]
Project Title: [Insert Project Name and Contract Reference]

Subject: Notice of Delay in Access to Site (Clause 11.7)

Dear [Mr./Ms. Engineer],

  1. We write to inform you that, on [dd/mm/yyyy], our team attempted to access the Site for defect remediation works as outlined in Clause 11.7 of the Contract. However, we encountered [describe issue: e.g., “security refusal,” “locked gates,” “Employer’s unavailability”].
  2. This denial or delay of access prevented us from carrying out the necessary remedial works in accordance with the agreed schedule. We note that this situation may result in:
    • Extension of Time requirements (reference: Clause 8.4 / 8.5 or appropriate claims clause).
    • Possible Cost implications (reference: Clause 20/21 for claims).
  3. We respectfully request the Engineer’s immediate assistance in facilitating access, as continued denial could jeopardize our ability to complete outstanding obligations within the Defects Notification Period.
  4. We shall provide a formal notice of any claim for time and/or cost in compliance with the Contract, should this obstruction remain unresolved.

We appreciate your prompt attention to this matter.

Yours sincerely,
[Name and Position of Contractor’s Representative]
For and on behalf of [Contractor Name]

4. Contractor’s Letter to the Engineer and Employer Claiming Extension of Time

Purpose: If the denial or delay in access persists, and the Contractor’s remedial tasks are affected, the Contractor may seek an Extension of Time (EOT) and possibly additional Cost.

[Contractor’s Letterhead]
Date: [dd/mm/yyyy]
To:

  • [Engineer’s Name / Engineer’s Company]
  • [Employer’s Representative / Employer’s Company]
    Project Title: [Insert Project Name and Contract Reference]

Subject: Notice of Claim for Extension of Time and/or Cost (Clause 11.7 & Clause [relevant claim clause])

Dear [Mr./Ms. Engineer / Mr./Ms. Employer’s Representative],

  1. We refer to our correspondence dated [dd/mm/yyyy], wherein we highlighted our inability to access the Site to perform remedial works under Clause 11.7.
  2. Despite [previous attempts / communications], we have not been able to proceed with the defect rectification activities due to [specific reason for denied access], which remains unresolved.
  3. This situation constitutes a delay that is not attributable to the Contractor. In accordance with the Contract (in particular, [reference the extension of time clause]), we hereby submit this formal notice of claim for:
    • An Extension of Time for any delay arising from this obstruction.
    • Additional Costs incurred (plus reasonable profit, if applicable), subject to supporting evidence, for idle resources, workforce standby, or other direct impacts linked to the delayed access.
  4. We will provide a detailed statement, including time-impact analysis and Cost breakdown, within [X] days in compliance with [Contract reference: e.g., Sub-Clause 20.1 (1999) or 20.2 (2017)].

We trust that the above is clear and look forward to your prompt assistance in resolving the access issue to mitigate further delays.

Yours sincerely,
[Name and Position of Contractor’s Representative]
For and on behalf of [Contractor Name]

5. Employer’s Letter to Contractor Providing Conditional Access

Purpose: The Employer grants access but with specific conditions—common in sensitive or high-security environments.

[Employer’s Letterhead]
Date: [dd/mm/yyyy]
To: [Contractor’s Representative / Contractor Company Name]
Project Title: [Insert Project Name and Contract Reference]

Subject: Conditional Access Arrangements Under Clause 11.7

Dear [Mr./Ms. Contractor’s Representative],

  1. With reference to your request for Site access dated [dd/mm/yyyy], we are pleased to confirm that access to [location] will be granted under the following conditions:
    • Access Dates and Times: [insert timeframe]
    • Site Restrictions: [specify e.g., “No loud work after 10:00 p.m.” / “Area X remains off-limits” / “All personnel must sign in daily”]
    • Security/Permit Requirements: [detail if special badges, passes, or local authority approvals are required]
    • Employer’s Representative on Site: [name, phone, email]
  2. We consider these measures necessary to maintain ongoing operations and ensure safety. Please confirm in writing your acceptance of these conditions within [X] days.
  3. Should you have any concerns or require additional arrangements, feel free to coordinate directly with [Engineer or Employer’s site manager].

Yours sincerely,
[Name and Position of Employer’s Representative]
For and on behalf of [Employer Name]

Practical Tips for Using These Letters

  1. Reference Your Contract: Always cite the Contract number, relevant sub-clauses (e.g., 11.7, 20.1, 20.2, etc.), and the date it was signed.
  2. Keep It Formal Yet Clear: Use concise language with bullet points or numbered paragraphs to present facts clearly.
  3. Attach Evidence Where Relevant: For claims, attach any logs, site diaries, or correspondence that supports your position.
  4. Follow the Notice Periods: If your Contract states a specific timeline (e.g., 28 days) for notices or claims, ensure you send the letter well before that deadline.
  5. Keep a Written Record: Store a copy of each letter and any responses for future reference (especially for potential disputes or claim assessments).

By using these sample letters (with suitable modifications for your project), both Contractor and Employer can communicate clearly, protect their contractual rights, and hopefully maintain a positive working relationship, even when last-minute remedial work is needed.

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