Скачать или смотреть FIDIC 2017 Yellow Book | Clause 9 Tests on Completion explained

In this video Clause 9 Tests on Completion of the FIDIC Yellow Book Design and Plant Build Contract is explained.

Under the FIDIC Yellow Book 2017, Clause 9 establishes a rigorous framework for Tests on Completion, ensuring that the Works or a specific Section meet the contractual requirements before they are taken over by the Employer. This process is divided into specific obligations, sequences, and procedures for handling delays or failures.

1. Contractor’s Preliminary Obligations
Before the Tests on Completion can even begin, the Contractor must satisfy several prerequisites:
• Documentation: The Contractor must submit As-Built Records (Sub-Clause 5.6) and Operation and Maintenance Manuals (Sub-Clause 5.7).
• The Test Programme: At least 42 days before the intended start date, the Contractor must submit a detailed test programme. The Engineer has 14 days to review this; if no notice of non-compliance is given, a "Notice of No-objection" is deemed to have been issued. The Contractor cannot start tests until this notice is received or deemed.
• Notice of Readiness: In addition to the programme, the Contractor must provide a specific Notice of at least 21 days before the date they will be ready to carry out each test.
2. The Sequential Stages of Testing
Unless the Employer’s Requirements state otherwise, tests must follow a strict three-stage sequence, where each stage must be passed before the next begins:
• Pre-commissioning Tests: These include "dry" or "cold" functional tests and inspections to ensure the Works can safely proceed to commissioning.
• Commissioning Tests: These are operational tests intended to show the Works can operate safely under all conditions specified in the Employer’s Requirements.
• Trial Operation: This stage demonstrates that the Works perform reliably. During trial operation, the Contractor also carries out performance tests to verify compliance with performance criteria and guarantees.
It is important to note that trial operation does not constitute "taking over" the Works. Any products, revenue, or benefits generated during this period belong to the Employer.
3. Reporting and Results
Once a stage is completed, the Contractor submits a certified report. The Engineer has 14 days to review the results; failure to issue a notice of non-compliance within this window results in a deemed Notice of No-objection. When evaluating these results, the Engineer must account for the impact of any use of the Works by the Employer on the performance data.
4. Handling Delays
The consequences of delays depend on which party is responsible:
• Employer-Caused Delay: If the tests are delayed by the Employer’s Personnel or other causes for which the Employer is responsible, Sub-Clause 10.3 regarding interference applies.
• Contractor-Caused Delay: If the Contractor delays the tests, the Engineer may issue a notice requiring them to be carried out within 21 days. If the Contractor still fails to perform, the Employer’s Personnel may proceed with the tests themselves (after a second notice), and the results will be deemed accurate even if the Contractor does not attend. Any additional costs incurred by the Employer in this scenario are recoverable from the Contractor.
5. Failure and Retesting
If the Works fail to pass, the Contractor or Engineer may require the tests to be repeated under the same terms. If the Works fail these repeated tests, the Engineer has several options:
• Order further repetitions of the tests.
• Reject the Works or Section if the failure deprives the Employer of substantially the whole benefit (or intended purpose) of the Works.
• Issue a Taking-Over Certificate anyway, if the Employer requests it. In this case, the Contract Price is reduced to account for the diminished value caused by the failure

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