Guidelines for compiling an Appendix on Contractor’s Access after Taking-Over

PURPOSE OF THIS APPENDIX

Taking-Over marks the point in time where control over the Site and the Works, and the risk of loss and damage to the Works, pass to the Employer. While prior to Taking- Over the Contractor may have had full control of the Site, after Taking-Over control and responsibility pass to the Employer. Consequently, the Contractor must now look to the Employer to coordinate the Contractor’s access to the Site.

The Contractor may, amongst other things, require access in order to:

  1. Complete Punch List items;
  2. Remedy warranty Defects;
  3. Re-perform tests and measurements not passed prior to Taking-Over or in order to obtain a better result and so reclaim performance liquidated damages; or
  4. Perform tests that are specified to be performed after Taking-Over.

The complexity of the issues should not be underestimated. At this point in time, the Works may be in operation, yet the Contractor may reasonably require that the Works (or a part of them) be shut down for potentially prolonged and uncertain periods in order to enable it to execute the remedial works. Therefore, unless otherwise agreed the following provisions shall apply:

1. CONTRACTOR’S RIGHT OF ACCESS AFTER TAKING-OVER

Notwithstanding that Taking-Over shall have occurred and the care of the Site passed to the Employer, the Contractor shall be entitled to be granted such access to the Site and to the Works as the Contractor may reasonably require in order to fulfil its obligations, or to exercise its rights, under this Contract, all in accordance with the procedures set out in this Appendix 4 and notwithstanding that the Parties may be in dispute.

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2. MUTUAL ACKNOWLEDGEMENTS

The Contractor appreciates and acknowledges that the Works are in operation and that any access by the Contractor that prevents or delays operation of the Works is onerous to the Employer. The Employer appreciates and acknowledges that the Contractor requires access to the Works in order to perform its obligations or exercise its rights under this Contract and that to prevent the Contractor from doing so is onerous to the Contractor.

3. CONTRACTOR’S OBLIGATION TO NOTIFY

At any time that the Contractor determines that it requires access to the Works, it shall notify the Employer, stating:

  1. The purpose for which access is required;
  2. The work to be performed;
  3. The number of personnel for whom access is sought and the machinery, tools and Contractor’s Equipment to be brought on Site;
  4. Whether or not the shut-down of the Project or Works or any part of them will be required and, if a shut-down is required, then a detailed description of the nature and duration of the shut-down; and
  5. The Date or Dates for which such access is sought, which shall other than in emergencies be no earlier than 15 Days after the Date of the Contractor’s request.

4. ACCESS REQUIRING SHUT-DOWN OF THE PROJECT ORWORKS OR ANY PART OF THEM

The Contractor’s right of access shall include the right to require a shut-down or reduction in the operation of the Works. Any modifications or repairs the Contractor is required to perform will be accomplished by the Contractor with minimal interference with operation of the Works, and reductions in and shut-downs of the Works will be required only when necessary. The Employer will give access within 30 Days of any such request.

5. ACCESS REQUIRED FOR DEFECTS CORRECTION

If the Contractor is required to perform correction of Defects pursuant to Article 49, the Employer shall, unless otherwise agreed, grant such access within 15 Days.