Notes · Testing
Testing: who pays when it passes
Under Sub-Clause 7.4 the Engineer can order extra tests — and who pays turns on one thing: the result. If the extra test shows the work was good, it's a Variation the Employer wears, with time, cost and profit; if it shows a defect, the Contractor bears it. Shown through a railway rail-weld example.
Testing — Sub-Clause 7.4
Who pays when the test passes — FIDIC Yellow Book
The contract specifies the test — here, ultrasonic testing of a rail weld.
What Sub-Clause 7.4 actually covers
7.4 governs testing during the Works — of Materials, Plant and workmanship, as the job is built. It is deliberately distinct from the two later test gates in the Yellow Book: Tests on Completion under Clause 9 (before the Employer takes over) and Tests after Completion under Clause 12 (the performance tests once it is in use). Mixing them up is the classic error: 7.4 is the day-to-day testing that runs alongside construction — the concrete cubes, the rebar, the welds, the factory acceptance tests on the signalling.
The rule that catches people
The Engineer may, under Clause 13, vary a test or order additional tests. Who pays for that extra testing turns on a single fact — the result:
| Extra test shows… | Who pays | Basis |
|---|---|---|
| Compliant (passes) | The Employer | A Variation under Cl. 13 — plus 7.4 gives time, Cost and reasonable profit. |
| Defective (fails) | The Contractor | 7.4 makes the Contractor bear the cost, notwithstanding any other provision. |
Two mechanics sharpen it. The Engineer must be given not less than 72 hours’ notice to attend a test; if he does not, the Contractor may proceed and the test is deemed made in his presence, with his acceptance of the readings deemed. And the same profit-bearing entitlement in 7.4 catches an Employer-caused delay to testing — late free-issue, late attendance, late power for a dynamic test.
On a railway
Take the rail welds. The contract specifies ultrasonic testing of each aluminothermic weld — a 7.4 test. The welds pass. The Engineer, still uneasy, instructs the Contractor to cut out a sample of completed welds and send them for destructive laboratory break-testing — an additional test under Clause 13. The lab confirms every weld sound. Because the extra test proved the work compliant, the Employer wears the whole cost of that detour — cutting out and re-welding, the lab fees, the welding gang and plant standing idle, and the track possession lost — and, because it flows through 7.4, the Contractor recovers time, Cost and reasonable profit. Had a weld failed, the result flips entirely: the Contractor bears it, and the failed weld becomes a rejection and remedial-work question under 7.5 and 7.6.
A second common one: dynamic testing of the signalling and train detection needs the traction power energised. If the Employer is late energising the overhead line, the specified test cannot run — the test teams and possession stand idle. That is an Employer-caused delay to testing, and 7.4 carries it: extension of time, Cost, and reasonable profit.