1. PRINCIPLE

The Performance Test or Tests are intended to provide the Parties with an opportunity to review the condition and performance of the Works prior to Taking-Over and allow the Employer to satisfy itself that the Works have been executed in accordance with the Contract. Note that there may be situations in which the Performance Test or Tests are undertaken after Taking-Over, or in which there are no Performance Tests at all.

2. METHODOLOGY FOR PERFORMANCE TESTS

If not otherwise specified by the Parties, the Contractor shall provide the Employer with the methodology for conducting the Performance Test no later than 90 Days before the first stage of the Performance Tests is scheduled to commence. Unless otherwise agreed by the Parties, the methodology shall describe:

(a) the procedures to be performed;

(b) the purpose of each procedure to be performed;

(c) the Date and time that each procedure is anticipated to be performed and the sequencing of all procedures;

(d) if results are to be measured:

  1. the Contractor’s Equipment to be used for measuring;
  2. the industry standard or protocol in accordance with which the results are established; and
  3. any tolerances, corrections or adjustments (e.g. for ambient conditions, season, etc.) to be applied;

(e) if the Employer is obliged to fulfil any obligation in order to enable the Contractor to perform the procedure, the Contractor shall specify the actual timing, extent and nature of the Employer’s obligation to the extent that it is not otherwise set out in the Contract; and

(f) the reports and protocols to be established with respect to each procedure. [Page105:]

3. AGREEMENT AS TO METHODOLOGY

If no methodology is otherwise agreed between the Parties, then the methodology proposed by the Contractor shall apply. In such cases the Employer shall be entitled to object to the methodology proposed by the Contractor only on the basis that the Contractor’s proposed methodology:

  1. does not conform to standards for the methodology set out in the Contract (if any); or
  2. does not provide a methodology for assessing the properties of the Works that the Contract requires to be assessed (if any); or
  3. are otherwise not in conformity with the Contract; or
  4. are not in conformity with Good Industry Practice.

The Employer shall raise its objections within 30 Days of its receipt of the Contractor’s proposed methodology, proposing a reasonable alternative methodology or amendments to the Contractor’s proposed methodology.

If the Contractor and the Employer cannot agree on a methodology within a further 30 Days, the Parties shall refer the dispute to the CDB.

4. TIME FOR DELIVERY OF PERFORMANCE TEST REPORT(S)

Unless otherwise specified or agreed between the Parties, the Contractor shall provide the Employer with the report of each completed Performance Test forthwith upon the Contractor’s completion or receipt of such report. If the nature of the procedure was to assess whether the Works or a part thereof attained a certain level of performance, the report shall clearly state the level of performance attained as well as whether or not the required level of performance was attained.

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