FIDIC reference
Sub-Clause 10.1 — Taking-Over Certificate
When the works are treated as complete and taken over, and what follows.
Applies in: Red BookYellow BookSilver Book
The works are taken over when they are complete in accordance with the contract (including passing the Tests on Completion) and the Engineer issues the Taking-Over Certificate. From that date: responsibility for care of the works passes, the Defects Notification Period (DNP) starts, delay damages stop accruing, and part of the retention is usually released. Taking over by Sections and “deemed” taking over (if the Employer uses the works) are possible.
Key points
- Issued after completion and the Tests on Completion.
- Starts the Defects Notification Period (Clause 11).
- Stops delay damages accruing.
- Taking over by Sections is possible.
How this works in practice
The Taking-Over Certificate flips several regimes at once: delay damages stop accruing, care of the works passes to the Employer, the Defects Notification Period starts and part of the retention falls due. That is why the date of taking over is where the fight is. The classic conflict is an Employer using the works in fact while withholding the certificate on the basis of open snags. Under FIDIC, use of the works by the Employer generally points to taking over, and it is an argument worth documenting at the moment occupation begins.
Common traps
- The Employer occupies the works without a certificate — record the fact of use with acts, photographs and dates.
- The snag list is not split into items that prevent taking over and items that do not; minor defects then block the certificate.
- FIDIC taking over is not reconciled with statutory acceptance — the certificate exists but the asset is not closed out under local rules.
Versions: 1999 → 2017 → 2022
- 1999
Clause 10 with a similar taking-over mechanism.
- 2017
Application/issue timing and “deemed” taking over were clarified.
- 2022
No substantive change in the 2022 reprint.
Clause FAQ
Which FIDIC books use Sub-Clause 10.1?
The clause applies in Red Book, Yellow Book, Silver Book. Particular Conditions may change the standard risk allocation, so always check the project contract.
Can the Employer refuse taking over because of minor defects?
Generally no. The FIDIC logic is that the works are taken over once substantially complete and fit for their intended use, with remaining minor work and defects cleared during the Defects Notification Period. For that argument to run, the snag list must be split in advance into items that genuinely prevent use and everything else.
What happens to risk once the certificate is issued?
Care of the works passes to the Employer, but that does not release the Contractor from rectifying defects during the DNP. The practical subtlety is insurance: policies tied to the construction period may expire at exactly this point, so check in advance what covers the window up to issue of the Performance Certificate.
Glossary terms
Related clauses
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Reference material, not legal advice. Always check your contract and the Particular Conditions.