Article 49 THE CONTRACTOR’SOBLIGATION TO FINISH THEWORKS AND CORRECT DEFECTS

DEFECT CORRECTION PERIOD

49.1 The Defect Correction Period is the period after Taking-Over in which the Contractor is obliged to correct Defects in Design, materials or workmanship of the Works attributable to the Contractor. In the absence of an agreement to the contrary, this period is one year in length. If there is sectional Taking-Over, the Defect Correction Period of one year starts with the Date of each Taking- Over. If individual items of the Plant are repaired or completed during the Defect Correction Period, a new one-year Defect Correction Period for those items shall start on the Date of repair or completion of the Plant in question. In no event, unless otherwise agreed, will the Defect Correction Period continue for more than two years after the Date of the last Taking-Over. Unless otherwise agreed, all individual Defect Correction Periods will stop at that Date.

49.2 The Employer shall notify the Contractor of any Defects during the Defect Correction Period as soon as reasonably possible upon such Defects becoming apparent. Similarly, the Contractor shall, as soon as reasonably possible, notify the Employer upon becoming aware of Defects. During the Defect Correction Period the Contractor is obliged to maintain such goods, materials, Equipment and manpower on the Site only as is necessary to correct known Defects. The Contractor is not obliged to correct Design errors, material choices or workmanship Defects attributable to third parties (other than its Subcontractors or suppliers) or the Employer, nor is the Contractor obliged, without a Variation, to vary or improve Works that comply with the Contract.

49.3 The Employer shall provide the Contractor every opportunity and access to complete any outstanding work and correct any Defects specified in the Punch List or any Defects in the Works not so specified but which have been notified by the Employer to the Contractor or its Representative during the Defect Correction Period.

NORMAL WEAR AND TEAR NOT INCLUDED

49.4 Normal wear or tear or damage to the Works caused by the Employer’s occupation and/or use of the Works or any part thereof and/or noncompliance by the Employer or third parties with the operation or maintenance manuals supplied (if any) shall not be the responsibility of the Contractor, nor shall the Contractor be obliged to repair such wear, tear or damage.

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CONSULTATION

49.5 The Parties shall consult with each other and shall agree the time or times when the Punch List items and/or Defects are to be completed and/or remedied, and, subject to the provisions of Article 49.1, the Defect Correction Period to apply to corrected work. The Parties shall consult on the best method for remedying any Defect, which can include, at the Contractor’s option, repairing the Defect, replacing defective items, or reperforming defective work.

SOFTWARE ISSUES

49.6 In the case of a software Defect, the remedy may consist of a software patch, update, upgrade or new software version. If the Cost of remedying the Defect is disproportionate to the nature of the Defect or its magnitude, the Contractor shall have the option of offering an abatement of the Contract Price.

49.7 The Contractor shall not be liable for Defects in software (i) in case of insignificant deviation of the software from the agreed characteristics; (ii) if the Defect cannot be reproduced by the Employer in the presence of the Contractor; or (iii) if the Defect is in freeware, shareware or open-source software.

JOINT INSPECTION

49.8 The Employer and the Contractor shall carry out a joint inspection of the Works at least 14 Days prior to the expiry of the relevant Defect Correction Period to confirm the condition of the Works, and the Employer shall immediately notify the Contractor of any outstanding Defects required to be made good, or work required to be executed by the Contractor in accordance with the Contract. If there is no such notification, the Works shall be considered to be in accordance with the Contract.

SEARCHES FOR DEFECTS

49.9 If instructed to do so by the Employer before or during the Defect Correction Period for the Section of the Works being considered, the Contractor shall search for Defects as instructed by the Employer. If a Defect is found as a result of the search and the Defect is the liability of the Contractor under the Contract, the Cost of the work to remedy such Defect shall be borne by the Contractor, including the Cost of any searches, tests or trials necessary to determine the existence or extent of the Defect. In all other cases, the Cost plus profit of such work, including any searches, tests or trials, shall be ascertained and paid to the Contractor as if it were additional work and instructed as a Variation.

ABATEMENT OF THE CONTRACT PRICE

49.10 In lieu of remedial work, the Contractor may in all cases offer an abatement of the Contract Price.

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FAILURE TO REMEDY DEFECTS

49.11 If the Contractor unreasonably neglects or refuses to remedy Defects for which it is responsible, the Employer may, after agreement from the Contractor or a decision to this effect from the CDB and upon giving the Contractor 14 Days’ notice, engage another contractor to remedy such Defects. Subject to the limitations and exclusions of liability in this Contract, the Contractor is responsible for the reasonable Cost of such remedial work.

SOLE REMEDIES

49.12 Without prejudice to Article 57 or Chapter 13, and unless otherwise agreed, the contractual remedies set out in this Chapter are the sole and exclusive remedies of the Employer in respect of Defects.

FINAL ACCEPTANCE

49.13 Final Acceptance shall occur when:

  1. the Works and Punch List items, (if any) have been completed in accordance with the Contract;
  2. the Defect Correction Period has expired and the Contractor’s obligation under Article 49 has been carried out;
  3. the final as-built drawings and manuals (if any) have been delivered; and
  4. the conditions for Final Acceptance, as set out in an Appendix (if any) are met.

49.14 The Contractor shall be entitled to a Certificate of Final Acceptance when the conditions under Article 49.13 are met.

49.15 In the event that the Employer determines that the conditions for Final Acceptance have not been achieved, it will notify the Contractor giving the detailed reason(s) why the Employer believes the conditions for Final Acceptance have not been met.

49.16 Any remaining performance or warranty bonds in favour of the Employer are void after Final Acceptance and are to be returned.