This provision requires the Employer to (1) permit the Contractor a reasonable time period to rectify a defect, then, if the Contractor has not rectified the defect within that reasonable time period (2) the Employer must fix a date by which the defect is to be rectified and the Contractor must be provided with reasonable notice of that date. Effectively this means that only if the Contractor misses this notified date (or provides an unambiguous demonstration of his intention not to rectify the defects by this date) can the Employer exercise its "self help" remedy to rectify defects at the Contractor's cost.

 

Unfortunately, in many cases the rectification of defects does not work as neatly as anticipated by this clause. A common problem is the order of long lead items of equipment. Theoretically the Employer should wait for the notified date to pass before placing orders for long lead items of equipment in order to ensure proper compliance with Sub-Clause 11.4. This can prolong the process of defects rectification and needlessly increase losses/costs to the Employer. We have seen a useful approach in many large construction agreements is to have a "look ahead provision" that is, if the Contractor fails to rectify the defect by the notified date or it becomes clear that he will not be able to rectify them by that date the Employer can exercise its rights to rectify the defect.