Taking-over and the defects period: Clauses 10–11

Completing a FIDIC project is not a single moment but a sequence of legally significant events. Each triggers its own deadlines, rights and obligations. Let’s go through the key ones: taking-over (Clause 10) and the defects period (Clause 11).

Tests on Completion (Clause 9)

Before taking-over, tests on completion are usually carried out — confirmation that the works meet the requirements. Failing the tests may delay taking-over or give the Employer certain rights.

Taking-Over Certificate (Clause 10)

When the works (or a part) are complete and have passed the necessary tests, the Employer issues a Taking-Over Certificate. This is a turning point:

• risk for the facility largely passes to the Employer;
• the Defects Notification Period (DNP) begins;
• part of the retention is often released;
• delay damages stop accruing for the part taken over.

The taking-over date is one of the most important dates in the contract. Time limits, guarantees and liability are counted from it.

Taking over in parts

The contract may provide for taking over separate sections or parts. This is especially relevant for extended assets (roads) and phased commissioning.

Defects Notification Period — DNP (Clause 11)

After taking-over comes the Defects Notification Period — a period (e.g. 365 days, set in the Particular Conditions) during which the Contractor must remedy notified defects. Key points:

• defects attributable to the Contractor are remedied at its expense;
• the DNP may be extended for parts that could not be used because of a defect;
• on completion of remediation and the end of the DNP, the Performance Certificate is issued.

Performance Certificate

The Performance Certificate means the Contractor has fulfilled its obligations (subject to residual obligations such as liability for latent defects under the governing law). It usually entails:

• release of the remaining retention;
• expiry of the Performance Security;
• the start of the final account procedure (Clause 14).

Common mistakes

• An unclear taking-over date — a dispute over time and delay damages.
• Taking over “by use” by the Employer without documentation (deemed taking-over) — a source of conflict.
• Missing the DNP extension for parts unavailable due to a defect.
• Late release of retention and guarantees.

Conclusion

Project close-out is a managed sequence of dates and documents. Clear documentation of taking-over and the DNP protects both parties and simplifies the final account. Related topics: securities and retention and payments under Clause 14. Need help with taking-over or a defects dispute? Contact us.