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Article 45 Completion

45.1 The Subcontractor shall give Notice to the Main Contractor when it considers that it has achieved Completion of the Subcontract Works. Where the Subcontract Works are to be completed by Sections, this Article 45 refers to Completion of each Section as appropriate.

45.2 The Main Contractor shall, as soon as practicable and in any event within 144 hours following receipt of the Notice referred to in Article 45.1, inspect (as and if necessary) all work, and either:

1. deliver to the Subcontractor a Certificate of Completion for the Subcontract Works or any Section of them; or
2. if reasonable cause exists for doing so, notify the Subcontractor that Completion of the Subcontract Works has not been achieved, stating in detail the reasons therefor and the additional work that it considers still to be done to achieve Completion of the Subcontract Works.

45.3 In the event that the Main Contractor determines that Completion of the Subcontract Works has not been achieved, the Subcontractor shall promptly take such action or perform such additional work as will achieve Completion of the Subcontract Works and shall issue to the Main Contractor another Notice pursuant to Article 45.1. To the extent that the action or additional work requires a Variation, it shall be valued under Article 35. The procedure described in this Article 45.3 shall be repeated as necessary until Completion of the Subcontract Works is achieved.

45.4 Subject to Article 45.3, the Main Contractor shall issue the Certificate of Completion for the Subcontract Works or the Notice under Article 45.2(b) no later than 10 Business Days following receipt of the Notice under Article 45.1.

45.5 If the Main Contractor fails to issue a Certificate of Completion for the Subcontract Works or a Notice under Article 45.2(b), then the Main Contractor shall be deemed to have, and be treated for all purposes as having, issued a Certificate of Completion for the Subcontract Works, whether it is actually issued or not, 10 Days after the receipt of the Notice under Article 45.1.

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Article 46 Commissioning and performance Tests

46.1 Where the Subcontract Works are to be taken over by Sections, these provisions will be read as applying to those Sections.

46.2 Any commissioning activities will be set out in an Appendix (if any) or otherwise agreed by the Parties.

Subcontract Performance Tests

46.3 Insofar as the Subcontract specifies Subcontract Performance Tests, Article 46 of the Main Contract shall apply as if fully written here.

Main Contract Performance Tests

46.4 Insofar as the Subcontract makes reference to Main Contract Performance Tests, the Subcontractor shall to the extent the Subcontract Works form part of the Works under the Main Contract comply with Article 46 of the Main Contract in the good time as is necessary for the Main Contractor to comply with his obligations in respect of Performance Tests under the Main Contract.

46.5 If the Main Contractor is entitled under the Main Contract to assert a claim against the Employer in respect of delay or Cost caused by the Employer’s material failure to comply with its obligation, if any, under Article 46.8 of the Main Contract to enable the Main Contractor to Perform a Performance Test, the Subcontractor shall be entitled to request the Main Contractor to lodge such claim against the Employer for the benefit of the Subcontractor, to the extent the Subcontract Works are affected.

46.6 If and to the extent attributable to the Subcontract Works the Works in one or more respects fail to achieve the Contractual Performance but exceed the Minimum Performance under the Main Contract and Performance-related liquidated damages (if any) as may be set out in the Main Contract are payable, the Subcontractor shall compensate the Main Contractor for the liquidated damages actually paid, or the respective share thereof, provided however, that the compensation shall be limited to an amount of 5% of the initial Subcontract Price. The payment of any such compensation shall not affect the Main Contractor’s rights to terminate this Subcontract pursuant to Article 57, should such right exist.

46.7 So long as the performance of the Works is equal to or better than the Minimum Performance under the Main Contract, the compensation shall in respect of the relevant performance parameters be the Main Contractor’s sole and exclusive remedy for the Subcontract Works being responsible for the Works’ failure to achieve the Contractual Performance under the Main Contract.

46.8 If and to the extent attributable to the Subcontract Works the performance of the Subcontract Works is better than Contractual Performance under the Main Contract and the Main Contractor is entitled to a bonus as may be set out in the Main Contract (if any), the Main Contractor shall forward the bonus[Page56:] actually received, or the respective share thereof, to the Subcontractor, provided however, that the Subcontractor’s entitlement hereunder shall be limited to an amount of 5% of the initial Subcontract Price.

46.9 However, if and to the extent Article 48 applies to such Main Contract Performance Tests, the stipulations set forth therein and the principles and provisions agreed between the Parties pursuant to Article 48 shall prevail

Article 47 Taking-over/provisional acceptance

47.1 The Taking-Over/Provisional Acceptance¹²Date shall be:

1. the Date on which the Taking-Over Conditions have been met; or
2. the Date on which the Main Contractor or the Employer, its agent or designee takes possession and control of the Subcontract Works or any Section of them; or
3. the Date on which the Works or a Section of the Works of which the Subcontract Works form part are, or are deemed to be, provisionally accepted by the Employer under the Main Contract.¹³

47.2 Taking-Over Conditions

Unless otherwise agreed, the following conditions shall be the Taking-Over Conditions:

1. the Subcontract Works have been completed in accordance with the Subcontract, except for minor work which does not affect the safety, operation and operability of the Subcontract Works and is set out in the Punch List;
2. the Subcontract Works are fit for the purpose specifically defined in the Subcontract and, if applicable, are capable of being put into operation;
3. the Performance Tests specified in the Subcontract (if any) have been performed and passed in accordance with Article 46.3 and testing Equipment has been removed; and
4. the consumables, spare parts and special tools required by the Subcontract (if any) are present at the Site and are stored in accordance with applicable laws and Good Industry Practice.

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47.3 On the Date of Taking-Over, the Main Contractor shall take and shall be deemed to have taken possession and control of the entire Subcontract Works or Section of them and shall thereafter be solely responsible for the operation and maintenance thereof and shall have the complete risk of loss or damage thereto, regardless of cause, provided, however, that this shall not relieve the Subcontractor of its obligations under Chapter 8, or from its obligation to perform such other work as remains to be performed after Taking-Over pursuant to this Subcontract.

47.4 The Subcontractor’s access to the Site and the Subcontract Works after Taking-Over shall be governed by an Appendix (if any) and otherwise shall be permitted as needed to fulfil its remaining obligations (if any).

47.5 If the Subcontract Works or any Section are to be completed in more than one step or phase, then an Appendix (if any), or such other reasonable stepped or phased schedules as established by agreement, shall apply.

47.6 When the Subcontractor believes that it has met the Taking-Over Conditions of the Subcontract Works or any Section in accordance with Articles 47.1 and

47.2, it shall deliver to the Main Contractor a Notice thereof in the form set out in an Appendix (if any), and otherwise any other reasonable form if none is set out.

47.7 The Main Contractor shall, as soon as practicable and in any event within 144 hours following receipt of the Notice under Article 47.6, inspect (as and if necessary) all Subcontract Works and the results of the Performance Tests (if specified in the Subcontract) and, within the time period stipulated in Article 47.9, either:

1. deliver to the Subcontractor a Taking-Over Certificate for the Subcontract Works; or
2. deliver to the Subcontractor a Taking-Over Certificate for a Section or Sections of the Subcontract Works; or
3. if reasonable cause exists for doing so, notify the Subcontractor that the Taking-Over Conditions of a Section or Sections have not been achieved, stating in detail the reasons therefor and the additional work that it considers still to be done to achieve Taking-Over.

47.8 In the event that the Main Contractor determines that the Taking-Over Conditions have not been achieved, the Subcontractor shall promptly take such action or perform such additional work as will achieve Taking-Over and shall issue to the Main Contractor another Notice pursuant to Article 47.6. To the extent that the action or additional work requires a Variation, it shall be valued under Article 35. The procedure described in this Article 47 shall be repeated as necessary until Taking-Over is achieved.

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47.9 The Main Contractor shall issue the Taking-Over Certificate or the Notice under Article 47.7 no later than 15 Business Days following receipt of the Notice under Article 47.6. The Taking-Over Certificate will be retroactive to the Date of Taking-Over under Article 47.1. If the Main Contractor fails to issue a Taking-Over Certificate or a Notice under Article 47.7, then the Main Contractor shall be deemed to have, and be treated for all purposes as having, issued a Taking-Over Certificate, whether it is actually issued or not. The Taking-Over Certificate shall or shall be deemed to set out the Date of Taking- Over, which shall be the Date or Dates of fulfilment of the conditions set out in Article 47.1. The Main Contractor shall not be entitled to withhold payments claimed by the Subcontractor on the basis that the Taking-Over Certificate was not issued or properly issued.

47.10 The Taking-Over Certificate, whether deemed to be issued or actually issued, shall operate as an acknowledgement by the Main Contractor that the Subcontractor has fulfilled its obligations under this Subcontract to the extent that this Subcontract called for such obligations to be performed prior to Taking-Over, except for such work (whether minor or not) as is mutually acknowledged to remain outstanding, whether under a punch list, snag list or other check list of outstanding work to correct Defects (the “Punch List”).

47.11 If the Taking-Over Certificate was deemed to have been issued by the Main Contractor, then the Main Contractor shall be entitled to require the Subcontractor to fulfil any Subcontractor obligations left unfulfilled at Taking- Over. Such work and the work required under Article 47.10 shall be performed at the Subcontractor’s expense.

47.12 The Main Contractor in its sole discretion may at any time, by giving Notice to the Subcontractor, elect to waive any of the Taking-Over Conditions, provided that the Subcontractor expressly acknowledges that the Main Contractor shall, without prejudice to the Main Contractor’s other remedies under this Subcontract, be entitled, but not obligated, to make that election in accordance with this Article 47 on such terms, including a rebate on the Subcontract Contract Price, as the Parties may agree.

Article 48 assessment procedures after Taking-over

48.1 To the extent the Parties have agreed that certain assessment procedures are to be or permitted to be conducted after Taking-Over, the provisions agreed between the Parties with respect to such procedures shall apply.

48.2 For all procedures, the principles set out in an Appendix (if any) shall apply. If there are no such procedures set out in an Appendix, then Article 47.4 shall apply.

48.3 If for reasons not attributable to the Subcontractor, any tests after Taking-Over cannot be completed during the Defect Correction Period (or any other period agreed upon by both Parties) then the Subcontract Works shall be deemed to have passed the tests after Taking-Over.

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