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© FIDIC 2017
CONTENTS
Acknowledgements
Notes
General Conditions
Content ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... i
Clauses 1 to 21 .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .1
Appendix: General Conditions of Dispute Avoidance/Adjudication
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. Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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A Index of Sub-Clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 24
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Introductory Guidance Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
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Particular Conditions Part A – Contract Data . . . . . . . . . . . . . . . . . . . . . . .3
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Particular Conditions Part B – Special Provisions . . . . . . . . . . . . . . . . . . . .8
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Building Information Modelling Systems . . . . . . . . . . . . . . . . . . . . . . . . . .5 3
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Letter of Tender .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. i
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© FIDIC 2017
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ACKNOWLEDGEMENTS
© FIDIC 2017
Special Advisers to the Contracts Committee provided invaluable and continued
support in the various drafting and revision stages:
Christopher Seppälä, White & Case LLP, France (legal adviser, assisted by Dimitar
Kondev, White & Case LLP, France); Nael G Bunni, Ireland (risk and insurance adviser);
Axel-V. Jaeger, Germany; Michael Mortimer Hawkins, UK/Sweden; and Christopher
Wade, UK.
Drafts were reviewed by many persons and organisations, including those listed below.
Their comments were duly studied by the FIDIC Contracts Committee’s Updates
Special Group and Update Task Groups and, where considered appropriate, have
influenced the wording of the clauses.
Mahmoud Abu Hussein, Dolphin Energy, United Arab Emirates; Ihab Abu-Zahra,
CRC Hassan Dorra, Egypt; Mushtaq Ahmad Smore, Engineer, Pakistan; Richard
Appuhn, Engineer, Italy; Ulrik Bang Olsen, Bang Olsen & Partners Law Firm P/S,
Denmark; Hartmut Bruehl, Engineer, Germany; Donald Charrett, MTECC, Australia;
Edward Corbett, Corbett & Co International Construction Lawyers Ltd, UK; Cremona
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Cotovelea, SCPA Tecuci-Paltineanu, Romania; Mark Etheridge, UWP Consulting
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Pty (Ltd), UK; European International Contractors, Berlin, Germany; Ciaran Fahy,
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Indonesia; Sebastian Hoek, Kanzlei Dr.Hök Stieglmeier & Kollegen Berlin, Germany;
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Iran; Levent Irmak, MC2 Modern, Turkey; Gordon Jaynes, Lawyer, UK; Nabeel
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A Khokhar, Driver Group, UK; Humphrey Lloyd, Queen Mary University London, UK;
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Liu Luobing, Shanghai SICC Planning & Architectural Design, Republic of China;
- Husni Madi, Shura Construction Management, Jordan; Malith Mendis, ACES, Sri
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B Lanka; Benjamin Mellors, Holman Fenwick Willan LLP, UK; Christopher Miers, Probyn
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Miers, UK; Henry Musonda, Kiran & Musonda Associates, Zambia; Kjeld B Nielsen,
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Ritchie, Consultant, Canada; Munther Sakhet, Allied Planning & Engineering Co,
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The ultimate decision on the form and content of the document rests with FIDIC.
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© FIDIC 2017
NOTES
This Second Edition of the Conditions of Contract for Construction has been published
by the Fédération Internationale des Ingénieurs-Conseils (FIDIC) as an update of the
FIDIC 1999 Conditions of Contract for Construction (Red Book), First Edition.
Along with the FIDIC 1999 Yellow Book (the Conditions of Contract for Plant and
Design-Build) and the FIDIC 1999 Silver Book (the Conditions of Contract for EPC/
Turnkey Projects), the FIDIC 1999 Red Book has been in widespread use for nea rly
two decades. In particular, it has been recognised for, among other things, its principles
of balanced risk sharing between the Employer and the Contractor in projects where
the Contractor constructs the works in accordance with a design provided by the
Employer. However, the works may include some elements of Contractor-designed
civil, mechanical, electrical and/or construction works.
This Second Edition of the FIDIC Red Book continues FIDIC’s fundamental principles
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of balanced risk sharing while seeking to build on the substantial experience gained
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from its use over the past 18 years. For example, this edition provides:
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3) mechanisms for dispute avoidance and
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4) detailed provisions for quality management, and verification of Contractor’s
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contractual compliance.
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These Conditions of Contract for Construction include conditions, which are likely
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particular to each individual contract are to be included in the Particular Conditions
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may require special conditions of contract, or particular procedures, which differ from
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© FIDIC 2017
This publication begins with a series of comprehensive flow charts which typically show,
in visual form, the sequences of activities which characterise the FIDIC Construction
form of contract. The charts are illustrative, however, and must not be taken into
consideration in the interpretation of the Conditions of Contract.
This publication also includes a number of sample forms to help both Parties to develop
a common understanding of what is required by third parties such as providers of
securities and guarantees.
Drafters of contract documents are reminded that the General Conditions of all FIDIC
contracts are protected by copyright and trademark and may not be changed without
specific written consent, usually in the form of a licence to amend, from FIDIC. If drafters
wish to amend the provisions found in the General Conditions, the place for doing this
is in the Particular Conditions Part B – Special Provisions, as mentioned above, and
not by making changes in the General Conditions as published.
FIDIC considers the official and authentic texts to be the versions in the English
language.
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© FIDIC 2017
Typical Sequence of Principal Events During Contracts for Construction
1. The Time for Completion is to be stated (in the Contract Data) as a number of days, to which is added any
extensions of time under Sub-Clause 8.5.
2. In order to indicate the sequence of events, the above diagram is based upon the example of the Contractor
failing to comply with Sub-Clause 8.2.
3. The Defects Notification Period is to be stated (in the Contract Data) as a number of days, to which is added
any extensions under Sub-Clause 11.3.
4. Depending on the type of Works, Tests after Completion may also be required.
© FIDIC 2017
Typical Sequence of Payment Events Envisaged in Clause 14
≤28d ≤56d
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submits draft final Final Statement and the Final Payment makes payment
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© FIDIC 2017
Typical Sequence of Events in Agreement or Determination under Sub-Clause 3.7
Scenario 11
Engineer starts Parties’ agreement Notice of error by
performing duties Sub-Clause 3.7.1 a Party/Engineer
Sub-Clause 3.7 Sub-Clause 3.7.4
Sub-Clause 3.7.3
(a), (b) or (c)
Scenario 22
Engineer starts Parties advise the Engineer’s Notice Notice of
performing duties Engineer: no agreement of determination Dissatisfaction
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2. The Parties’ early advice that agreement cannot be reached and so Engineer’s determination is necessary,
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3. No agreement within 42 days, Engineer determines within 42 days, error found in the Engineer’s determination
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© FIDIC 2017
GENERAL CONDITIONS
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1 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions
1.2 Interpretation
1.3 Notices and Other Communications
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1.7 Assignment
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1.8 Care and Supply of Documents
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1.10 Employer’s Use of Contractor’s Documents
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1.12 Confidentiality
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1.15 Limitation of Liability
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1.16 Contract Termination
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3.1 The Engineer
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4 THE CONTRACTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 2
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4.8 Health and Safety Obligations
4.9 Quality Management and Compliance Verification Systems
4.10 Use of Site Data
4.11 Sufficiency of the Accepted Contract Amount
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4.23 Archaeological and Geological Findings
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U 5 SUBCONTRACTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 7
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S APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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1.1
Denitions
1
General Provisions
In the Contract the following words and expressions shall have the meanings stated,
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except where the context requires otherwise
1.1.1 “Accepted Contract Amount” means the amount accepted in the Letter of
Acceptance for the execution of the Works in accordance with the Contract.
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1.1.2 “ Advance Payment Certicate” means a Payment Certificate issued O
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Payment Certificate].
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1.1.19 “Cost” means all expenditure reasonably incurred (or to be incurred) by the
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shall only be added to Cost, and Cost Plus Profit shall only be added to the
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Conditions to payment of Cost Plus Profit.
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s 1.1.24 “ Date of Completion” means the date stated in the Taking-Over Certificate
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1.1.26 “ Daywork Schedule” means the document entitled daywork schedule (if
any) included in the Contract, showing the amounts and manner of payments E
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1.1.27 “ Defects Notication Period” or “DNP” means the period for notifying
defects and/or damage in the Works or a Section or a Part (as the case
may be) under Sub-Clause 11.1 [Completion of Outstanding Work and
Remedying Defects], as stated in the Contract Data (if not stated, one year), S
and as may be extended under Sub-Clause 11.3 [Extension of Defects M
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Notification Period]. This period is calculated from the Date of Completion of O
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the Works or Section or Part.
1.1.28 “ Delay Damages” means the damages for which the Contractor shall be
liable under Sub-Clause 8.8 [Delay Damages] for failure to comply with
Sub-Clause 8.2 [Time for Completion].
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fi. 1.1.29 “ Dispute” means any situation where:
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(b) the other Party (or the Engineer under Sub-Clause 3.7.2 [Engineer’s
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3.7.5 [Dissatisfaction with Engineer’s determination] or otherwise),
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the circumstances, the DAAB or the arbitrator(s), as the case may be, deem
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and any additional and modified drawings issued by (or on behalf of) the
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1.1.31 “ Employer” means the person named as the employer in the Contract Data
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and the legal successors in title to this person.
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1.1.32 “ Employer’s Equipment” means the apparatus, equipment, machinery,
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1.1.33 “ Employer’s Personnel” means the Engineer, the Engineer’s Representative
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(if appointed), the assistants described in Sub-Clause 3.4 [Delegation by the
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the Contract Agreement and the date of issuing or receiving the Letter of
Acceptance means the date of signing the Contract Agreement.
1.1.51 “ Letter of Tender” means the letter of tender, signed by the Contractor, S
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stating the Contractor’s offer to the Employer for the execution of the Works. R
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1.1.52 “ Local Currency” means the currency of the Country.
1.1.53 “ Materials” means things of all kinds (other than Plant), whether on the Site
or otherwise allocated to the Contract and intended to form or forming part
of the Permanent Works, including the supply-only materials (if any) to be
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. supplied by the Contractor under the Contract.
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Documents, or other documents submitted by the Contractor under these
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used for the Works.
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in accordance with Sub-Clause 1.3 [Notices and Other Communications].
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to the other Party if it is dissatisfied, either with an Engineer’s determination
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1.1.58 “ Part” means a part of the Works or part of a Section (as the case may be)
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Sub-Clause 10.2 [Taking Over Parts].
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in “Parties” means both the Employer and the Contractor.
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under Clause 14 [Contract Price and Payment].
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1.1.63 “ Performance Security” means the security under Sub-Clause 4.2
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1.1.69 “ Retention Money” means the accumulated retention moneys which the
Employer retains under Sub-Clause 14.3 [Application for Interim Payment]
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A Contractor’s submission in order to assess whether (and to what extent) it
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complies with the Contract and/or with the Contractor’s obligations under or
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in connection with the Contract.
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Employer and completed by the Contractor, as attached to the Letter of
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Tender and included in the Contract. Such document(s) may include data,
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1.1.72 “ Schedule of Payments” means the document(s) entitled schedule of
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payments to be made to the Contractor.
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provisions which constitutes Part B of the Particular Conditions.
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1.1.76 “ Specication” means the document entitled specification included in
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application for a Payment Certificate under Sub-Clause 14.3 [Application
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for Interim Payment], Sub-Clause 14.10 [Statement at Completion] or
is Sub-Clause 14.11 [Final Statement].
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subcontractor, or any person appointed by the Contractor as a subcontractor
© FIDIC 2017 Conditions of Contract for Construction
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or designer, for a part of the Works; and the legal successors in title to each
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1.1.79 “ Taking-Over Certicate” means a certificate issued (or deemed to be N N
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issued) by the Engineer in accordance with Clause 10 [Employer’s Taking G C
Over].
1.1.80 “ Temporary Works” means all temporary works of every kind (other than E
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1.1.81 “ Tender” means the Letter of Tender, the Contractor’s Proposal, the JV G
Undertaking (if applicable), and all other documents which the Contractor
submitted with the Letter of Tender, as included in the Contract.
1.1.82 “ Tests after Completion” means the tests (if any) which are stated in the S
Specification and which are carried out in accordance with the Special M
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Provisions after the Works or a Section (as the case may be) are taken over O
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under Clause 10 [Employer’s Taking Over].
1.1.83 “ Tests on Completion” means the tests which are specified in the Contract
or agreed by both Parties or instructed as a Variation, and which are carried
out under Clause 9 [Tests on Completion] before the Works or a Section (as
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Section (as the case may be) under Sub-Clause 8.2 [Time for Completion],
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as stated in the Contract Data as may be extended under Sub-Clause 8.5
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[Extension of Time for Completion], calculated from the Commencement
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Date.
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1.1.85 “ Unforeseeable” means not reasonably foreseeable by an experienced
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contractor by the Base Date.
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1.1.87 “ Works” mean the Permanent Works and the Temporary Works, or either of
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- Interpretation In the Contract, except where the context requires otherwise:
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(a) words indicating one gender include all genders; and “he”, “his” and “himself”
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(h) “including”, “include” and “includes” shall be interpreted as not being limited
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(j) “execute the Works” or “execution of the Works” means the construction
and completion of the Works and the remedying of any defects (and shall be
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followed by “and” or “or” or “and/or” then all of the list items going before
this item shall also be read as if they are followed by “and” or “or” or “and/or”
(as the case may be).
The marginal words and other headings shall not be taken into consideration
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. in the interpretation of these Conditions.
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Notices and
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or transmitting of another type of communication (including acceptance,
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record(s) of meeting, permission, proposal, record, reply, report, request,
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(a) shall be:
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(i) a paper-srcinal signed by the Contractor’s Representative, the
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Engineer, or the authorised representative of the Employer (as
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system(s) acceptable to the Engineer), where the electronic
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srcinal is transmitted by the electronic address uniquely assigned
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(b) if it is a Notice, it shall be identified as a Notice. If it is another form
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in to the provision(s) of the Contract under which it is issued where
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The language for communications shall be that stated in the Contract Data.
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1.5
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IN Priority of Documents The documents forming the Contract are to be taken as mutually explanatory
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of one another. If there is any conflict, ambiguity or discrepancy, the priority
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in (k) any other documents forming part of the Contract.
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clarification or instruction.
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and of each subsequent Drawing shall be supplied to the Contractor, who
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Each of the Contractor’s Documents shall be in the custody and care of
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the Contractor, unless and until submitted to the Engineer. The Contractor
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shall supply to the Engineer one paper-srcinal, one electronic copy (in the
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form as stated in the Specification or, if not stated, a form acceptable to the
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The Contractor shall keep at all times, on the Site, a copy of:
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in the execution of the Works, the Party (or the Engineer) shall promptly give
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1.10
Employer’s Use of
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Contractor’s Documents As between the Parties, the Contractor shall retain the copyright and other
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The Contractor shall be deemed (by signing the Contract Agreement) to give
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licence to copy, use and communicate the Contractor’s Documents (and such
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other design documents, if any), including making and using modifications of
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(a) apply throughout the actual or intended operational life (whichever is
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(and such other design documents, if any) for the purposes of
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computer programs and other software, permit their use on any
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computer on the Site and/or at the locations of the Employer and the
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Sub-Clause 16.2 [Termination by Contractor] or Sub-Clause
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1.12
Condentiality The Contractor shall disclose all such confidential and other information
as the Engineer may reasonably require in order to verify the Contractor’s
compliance with the Contract.
rg
o
.
ic The Contractor shall treat all documents forming the Contract as confidential,
d
fi.
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w except to the extent necessary to carry out the Contractor’s obligations
w
T
A
under the Contract. The Contractor shall not publish, permit to be published,
E
L or disclose any particulars of the Contract in any trade or technical paper or
A
S
R
elsewhere without the Employer’s prior consent.
O
F
L
A
NI The Employer and the Engineer shall treat all information provided by the
G
IR
O
Contractor and marked “confidential”, as confidential. The Employer shall
-
E not disclose or permit to be disclosed any such information to third parties,
L
B except as may be necessary when exercising the Employer’s rights under
A
T
IN
R
Sub-Clause 15.2 [Termination for Contractor’s Default].
P
T
O
N
D
A Party’s obligation of confidentiality under this Sub-Clause shall not apply
N
A where the information:
E
S
U
T
C (a) was already in that Party’s possession without an obligation of
A
R confidentiality before receipt from the other Party;
T
N
O
C (b) becomes generally available to the public through no breach of these
R
F
O Conditions; or
T
O
N (c) is lawfully obtained by the Party from a third party which is not bound
-
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is 1.13
x
e
N
is
x
Compliance with Laws The Contractor and the Employer shall, in performing the Contract, comply
e
L
e
th with all applicable Laws. Unless otherwise stated in the Specification:
in
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it (a) the Employer shall have obtained (or shall obtain) the planning,
w
n
ti
o zoning or building permit or similar permits, permissions, licences
u
b
ir
t and/or approvals for the Permanent Works, and any other permits,
is
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r permissions, licenses and/or approvals described in the Specification
fo
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as having been (or being) obtained by the Employer. The Employer
irc
t
s
shall indemnify and hold the Contractor harmless against and from
re
is the consequences of any delay or failure to do so, unless the failure is
t
n
e caused by the Contractor’s failure to comply with sub-paragraph (c)
m
u
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o
below;
d
is
h
T
(d) the Contractor shall comply with all permits, permissions, licences
and/or approvals obtained by the Employer under sub-paragraph (a)
above.
S
If, having complied with sub-paragraph (c) above, the Contractor suffers M
R
delay and/or incurs Cost as a result of the Employer’s delay or failure to O
F
obtain any permit, permission, licence or approval under sub-paragraph (a)
above, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims
For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit.
1.16
Contract Termination Subject to any mandatory requirements under the governing law of the
Contract, termination of the Contract under any Sub-Clause of these
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. Conditions shall require no action of whatsoever kind by either Party other
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d than as stated in the Sub-Clause.
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2
A
E
L
A
S
R
O
F
The Employer
L
A
NI 2.1
G
IR
O Right of Access to the Site The Employer shall give the Contractor right of access to, and possession
-
E
L
of, all parts of the Site within the time (or times) stated in the Contract Data.
B
T
A The right and possession may not be exclusive to the Contractor. If, under
IN
R the Contract, the Employer is required to give (to the Contractor) possession
P
T
O
of any foundation, structure, plant or means of access, the Employer shall
N
D do so in the time and manner stated in the Specification. However, the
N
A
E
Employer may withhold any such right or possession until the Performance
S
U Security has been received.
T
C
A
R
T
N If no such time is stated in the Contract Data, the Employer shall give the
O
C
R
Contractor right of access to, and possession of, those parts of the Site
O
F within such times as may be required to enable the Contractor to proceed
T
O
N
in accordance with the Programme or, if there is no Programme at that time,
-
m
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the initial programme submitted under Sub-Clause 8.3 [Programme].
fto
la
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is
x If the Contractor suffers delay and/or incurs Cost as a result of a failure by
e
is
N the Employer to give any such right or possession within such time, the
x
L
e Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
e
th and/or EOT] to EOT and/or payment of such Cost Plus Profit.
in
h
it
w
n
ti
o However, if and to the extent that the Employer’s failure was caused by
u
b
ir
t
any error or delay by the Contractor, including an error in, or delay in the
is
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r submission of, any of the applicable Contractor’s Documents, the Contractor
fo
d shall not be entitled to such EOT and/or Cost Plus Profit.
te
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s
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2.2
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Assistance If requested by the Contractor, the Employer shall promptly provide
u
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d
o reasonable assistance to the Contractor so as to allow the Contractor to
is obtain:
h
T
approvals):
(i) which the Contractor is required to obtain under Sub-Clause
1.13 [Compliance with Laws]; E
C
N
(ii) for the delivery of Goods, including clearance through customs; A
D
I
and U
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(iii) for the export of Contractor’s Equipment when it is removed from
the Site.
2.3
S
Employer’s Personnel and M
R
O
Other Contractors The Employer shall be responsible for ensuring that the Employer’s Personnel F
and the Employer’s other contractors (if any) on or near the Site:
2.6
S Employer-Supplied Materials
M
R and Employer’s Equipment If Employer-Supplied Materials and/or Employer’s Equipment are listed in
O
F the Specification for the Contractor’s use in the execution of the Works,
the Employer shall make such materials and/or equipment available to the
Contractor in accordance with the details, times, arrangements, rates and
prices stated in the Specification.
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The Contractor shall be responsible for each item of Employer’s Equipment
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.
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whilst any of the Contractor’s Personnel is operating it, driving it, directing it,
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A
3
E
L
A
S
R
L
O
F The Engineer
A
NI
G 3.1
IR
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- The Engineer The Employer shall appoint the Engineer, who shall carry out the duties
E
L
B assigned to the Engineer in the Contract.
A
T
IN
R
P
T
The Engineer shall be vested with all the authority necessary to act as the
O
N Engineer under the Contract.
D
N
A
E
S If the Engineer is a legal entity, a natural person employed by the Engineer shall
U
C
T be appointed and authorised to act on behalf of the Engineer under the Contra
ct.
A
R
T
N
O
C
The Engineer (or, if a legal entity, the natural person appointed to act on its
R
O behalf) shall be:
F
T
O
N
- (a) a professional engineer having suitable qualifications, experience and
m
fto
r competence to act as the Engineer under the Contract; and
la
is
p (b) shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law
x
N
e and Language].
is
x
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L Where the Engineer is a legal entity, the Engineer shall give a Notice to the
e
th Parties of the natural person (or any replacement) appointed and authorised
in
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it
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to act on its behalf. The authority shall not take effect until this Notice has
n
ti
o been received by both Parties. The Engineer shall similarly give a Notice of
u
b
ir
t
any revocation of such authority.
is
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fo
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3.2
irc
t
s Engineer’s Duties
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and Authority Except as otherwise stated in these Conditions, whenever carrying out duties
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or exercising authority, specified in or implied by the Contract, the Engineer shall
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o act as a skilled professional and shall be deemed to act for the Employer.
is
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3.7 E
C
Agreement or Determination When carrying out his/her duties under this Sub-Clause, the Engineer shall act N
A
neutrally between the Parties and shall not be deemed to act for the Employer. D
I
U
G
Whenever these Conditions provide that the Engineer shall proceed under
this Sub-Clause to agree or determine any matter or Claim, the following
procedure shall apply:
S
M
3.7.1 Consultation to reach agreement R
O
F
The Engineer shall consult with both Parties jointly and/or separately, and
shall encourage discussion between the Parties in an endeavour to reach
agreement. The Engineer shall commence such consultation promptly
to allow adequate time to comply with the time limit for agreement under
Sub-Clause 3.7.3 [Time limits]. Unless otherwise proposed by the Engineer
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. and agreed by both Parties, the Engineer shall provide both Parties with a
d
fi. record of the consultation.
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A
E
If agreement is achieved, within the time limit for agreement under Sub-Clause
L
A
S 3.7.3 [Time limits], the Engineer shall give a Notice to both Parties of the
R
O
F
agreement, which agreement shall be signed by both Parties. This Notice
L
A shall state that it is a “Notice of the Parties’ Agreement” and shall include a
NI
G
IR
O
copy of the agreement.
-
E
L
B
If:
A
T
IN
P
R (a) no agreement is achieved within the time limit for agreement under
T
O Sub-Clause 3.7.3 [Time limits]; or
N
D
N
A
(b) both Parties advise the Engineer that no agreement can be achieved
E
S within this time limit
U
T
C
A whichever is the earlier, the Engineer shall give a Notice to the Parties
R
T
N
accordingly and shall immediately proceed as specified under Sub-Clause
O
C 3.7.2 [Engineer’s Determination].
R
O
F
T
O
N
3.7.2 Engineer’s Determination
-
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la
The Engineer shall make a fair determination of the matter or Claim, in
p
is
x
accordance with the Contract, taking due regard of all relevant circumstances.
e
N
is
x
L
e Within the time limit for determination under Sub-Clause 3.7.3 [ Time limits],
e
th the Engineer shall give a Notice to both Parties of his/her determination.
in
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it
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This Notice shall state that it is a “Notice of the Engineer’s Determination”,
n
ti
o and shall describe the determination in detail with reasons and detailed
u
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supporting particulars.
is
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r
fo
d 3.7.3 Time limits
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s
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The Engineer shall give the Notice of agreement, if agreement is achieved,
t
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e within 42 days or within such other time limit as may be proposed by the
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Engineer and agreed by both Parties (the “time limit for agreement” in these
d
is
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Conditions), after:
T
S
M The Engineer shall give the Notice of his/her determination within 42 days
R
O or within such other time limit as may be proposed by the Engineer and
F
agreed by both Parties (the “time limit for determination” in these Conditions),
after the date corresponding to his/her obligation to proceed under the last
paragraph of Sub-Clause 3.7.1 [Consultation to reach agreement].
If the Engineer does not give the Notice of agreement or determination within
rg the relevant time limit:
o
.
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(i) in the case of a Claim, the Engineer shall be deemed to have given a
w
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A
E
A
L (ii) in the case of a matter to be agreed or determined, the matter shall
S
R be deemed to be a Dispute which may be referred by either Party to the
O
L
F
DAAB for its decision under Sub-Clause 21 .4 O
[ btaining DAAB’s Decision
]
A
NI without the need for a NOD (and Sub-Clause 3.7.5Dissatisfaction
[ with
G
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Engineers determination] and sub-paragraph (a) of Sub-Clause 21.4.1
-
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[Reference of a Dispute to the DAAB] shall not apply).
B
A
T
IN
R 3.7.4 Effect of the agreement or determination
P
T
O
N
D Each agreement or determination shall be binding on both Parties (and shall
N
A
E
be complied with by the Engineer) unless and until corrected under this
S
U Sub-Clause or, in the case of a determination, it is revised under Clause 21
T
C
A [Disputes and Arbitration].
R
T
N
O
C
R
If an agreement or determination concerns the payment of an amount from
O
F one Party to the other Party, the Contractor shall include such an amount
T
O
N in the next Statement and the Engineer shall include such amount in the
-
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Payment Certificate that follows that Statement.
fto
la
p
is If, within 14 days after giving or receiving the Engineer’s Notice of agreement
x
e
N
is
or determination, any error of a typographical or clerical or arithmetical nature
x
L
e is found:
e
th
in
it
h (a) by the Engineer: then he/she shall immediately advise the Parties
w
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o
accordingly; or
ti
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b
ir
t (b) by a Party: then that Party shall give a Notice to the Engineer, stating
is
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r that it is given under this Sub-Clause 3.7.4 and clearly identifying the
fo
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error. If the Engineer does not agree there was an error, he/she shall
irc
t
s
immediately advise the Parties accordingly.
re
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e The Engineer shall within 7 days of finding the error, or receiving a Notice
m
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under sub-paragraph (b) above (as the case may be), give a Notice to
d
is
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both Parties of the corrected agreement or determination. Thereafter, the
T
(a) the dissatisfied Party may give a NOD to the other Party, with a copy E
to the Engineer; C
N
A
(b) this NOD shall state that it is a “Notice of Dissatisfaction with the D
I
U
Engineer’s Determination” and shall set out the reason(s) for G
dissatisfaction;
(c) this NOD shall be given within 28 days after receiving the Engineer’s
Notice of the determination under Sub-Clause 3.7.2 [Engineer’s
Determination] or, if applicable, his/her Notice of the corrected S
M
determination under Sub-Clause 3.7.4 [Effect of the agreement or R
O
determination] (or, in the case of a deemed determination rejecting F
the Claim, within 28 days after the time limit for determination under
Sub-Clause 3.7.3 [Time limits] has expired); and
(d) thereafter, either Party may proceed under Sub-Clause 21.4 [ Obtaining
DAAB’s Decision].
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.
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If no NOD is given by either Party within the period of 28 days stated in
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to have been accepted by both Parties and shall be final and binding on
A
E
L
them.
A
S
R
O
F If the dissatisfied Party is dissatisfied with only part(s) of the Engineer’s
L
N
A
I
determination:
G
IR
O
- (i) this part(s) shall be clearly identified in the NOD;
E
L
B
A
(ii) this part(s), and any other parts of the determination that are affected
T
IN by such part(s) or rely on such part(s) for completeness, shall be
R
P
T
deemed to be severable from the remainder of the determination; and
O
N
D
(iii) the remainder of the determination shall become final and binding on
N
A both Parties as if the NOD had not been given.
E
S
U
T
C
A In the event that a Party fails to comply with an agreement of the Parties under
R
T
N
this Sub-Clause 3.7 or a final and binding determination of the Engineer, the
O
C other Party may, without prejudice to any other rights it may have, refer the
R
F
O failure itself directly to arbitration under Sub-Clause 21.6 [Arbitration] in which
T
O
N
case the first and the third paragraphs of Sub-Clause 21.7 [Failure to Comply
-
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r
with DAAB’s Decision] shall apply to such reference in the same manner as
fto these paragraphs apply to a final and binding decision of the DAAB.
la
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is
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N 3.8
is
x
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L
e
th Meetings Theattend
Engineer or the Contractor’s
a management Representative
meeting to may require
discuss arrangements the other
for future work to
and/
in
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it or other matters in connection with execution of the Works.
w
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ti
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ir
t The Employer’s other contractors, the personnel of legally constituted public
is
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r authorities and/or private utility companies, and/or Subcontractors may
fo
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attend any such meeting, if requested by the Engineer or the Contractor’s
irc
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s
Representative.
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The Engineer shall keep a record of each management meeting and supply
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T
4
N
E O
G C
The Contractor
4.1
E
C Contractor’s
N
A
D
I General Obligations The Contractor shall execute the Works in accordance with the Contract. The
U
G Contractor undertakes that the execution of the Works and the completed
Works will be in accordance with the documents forming the Contract, as
altered or modified by Variations.
S
The Contractor shall provide the Plant (and spare parts, if any) and Contractor’s
M Documents specified in the Contract, and all Contractor’s Personnel, Goods,
R
O consumables and other things and services, whether oftemporary
a or permanent
F
nature, required to fulfil theContractor’s obligationsunder the Contract.
The Contractor shall be responsible for the adequacy, stability and safety of
all the Contractor’s operations and activities, of all methods of construction
and of all the Temporary Works. Except to the extent specified in the
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. Contract, the Contractor:
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fi.
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(i) shall be responsible for all Contractor’s Documents, Temporary
T
A Works, and such design of each item of Plant and Materials as is
E
A
L required for the item to be in accordance with the Contract; and
S
R
O
(ii) shall not otherwise be responsible for the design or specification of
F
L
A
the Permanent Works.
NI
G
IR
O
-
The Contractor shall, whenever required by the Engineer, submit details of
E
L the arrangements and methods which the Contractor proposes to adopt for
B
A
T the execution of the Works. No significant alteration to these arrangements
IN
P
R and methods shall be made without this alteration having been submitted to
T
O the Engineer.
N
D
N
A
E
S
If the Contract specifies that the Contractor shall design any part of the
U
T Permanent Works, then unless otherwise stated in the Particular Conditions:
C
A
R
T
N (a) the Contractor shall prepare, and submit to the Engineer for Review,
O
C
R
the Contractor’s Documents for this part (and any other documents
O
F necessary to complete and implement the design during the execution
T
O
N of the Works and to instruct the Contractor’s Personnel);
-
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r (b) these Contractor’s Documents shall be in accordance with the
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Specification and Drawings and shall include additional information
is
x
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required by the Engineer to add to the Drawings for co-ordination of
N
is
x
each Party’s designs. If the Engineer instructs that further Contractor’s
e
L
e
th Documents
design are reasonably
complies required tothe
with the Contract, demonstratethatshall
Contractor the Contractor’
s
prepare and
in
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it submit them promptly to the Engineer atthe Contractor’s cost;
w
n
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ti (c) construction of this part shall not commence until a Notice of
u
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is
t No-objection is given (or is deemed to have been given) by the
d
fo
r
Engineer under sub-paragraph (i) of Sub-Clause 4.4.1 [Preparation
d
te
irc
and Review] for all the Contractor’s Documents which are relevant to
t
s its design, and construction of such part shall be in accordance with
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is these Contractor’s Documents;
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m
u (d) the Contractor may modify any design or Contractor’s Documents
c
o
d which have previously been submitted for Review, by giving a Notice
is
h
T
th
e
has complied with Sub-Clause 11.11 [Clearance of Site]. If the terms of
in
h
the Performance Security specify an expiry date, and the Contractor has
it
n
w not become entitled to receive the Performance Certificate by the date 28
o
ti days before the expiry date, the Contractor shall extend the validity of the
u
b
ir
t Performance Security until the issue of the Performance Certificate and the
is
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fo Contractor has complied with Sub-Clause 11.11 [Clearance of Site].
d
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irc
t
s
re
Whenever Variations and/or adjustments under Clause 13 [Variations and
is
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Adjustments] result in an accumulative increase or decrease of the Contract
e
m
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Price by more than twenty percent (20%) of the Accepted Contract Amount:
c
o
d
is
h
T
The Employer shall not make a claim under the Performance Security, except
for amounts to which the Employer is entitled under the Contract in the event
S of:
M
R
O (a) failure by the Contractor to extend the validity of the Performance
F
Security, as described in this Sub-Clause, in which event the Employer
may claim the full amount (or, in the case of previous reduction(s), the
full remaining amount) of the Performance Security;
(b) failure by the Contractor to pay the Employer an amount due, as agreed
or determined under Sub-Clause 3.7 [ Agreement or Determination] or
rg
ic
o
. agreed or decided under Clause 21 [Disputes and Arbitration], within
d
fi. 42 days after the date of the agreement or determination or decision
w
w
w or arbitral award (as the case may be);
T
A
E
L
(c) failure by the Contractor to remedy a default stated in a Notice given
A
S under Sub-Clause 15.1 [ Notice to Correct] within 42 days or other
R
O
F
time (if any) stated in the Notice;
L
A
NI
(d) circumstances which entitle the Employer to terminate the Contract
G
IR
O
under Sub-Clause 15.2 [ Termination for Contractor’s Default],
E
- irrespective of whether a Notice of termination has been given; or
L
B
T
A (e) if under Sub-Clause 11.5 [ Remedying of Defective Work off Site] the
IN Contractor removes any defective or damaged Plant from the Site,
R
P
T
O
failure by the Contractor to repair such Plant, return it to the Site,
N
D
reinstall it and retest it by the date of expiry of the relevant duration
N
A stated in the Contractor’s Notice (or other date agreed by the
E
S
U Employer).
T
C
A
R The Employer shall indemnify and hold the Contractor harmless against and
T
N
O from all damages, losses and expenses (including legal fees and expenses)
C
R resulting from a claim under the Performance Security to the extent that the
O
F
T Employer was not entitled to make the claim.
O
N
-
m
fto
r Any amount which is received by the Employer under the Performance
la Security shall be taken into account:
p
is
x
e
N
is (i) in the Final Payment Certificate under Sub-Clause 14.13 [ Issue of
x
e
L
th
e
FPC]; or
in
h
(ii) if the Contract is terminated, in payment due to the Contractor
it
w under Sub-Clause 15.4 [Payment after Termination for Contractor’s
n
o
ti
u
Default], Sub-Clause 15.7 [Payment after Termination for Employer’s
b
ir
is
t Convenience], Sub-Clause 16.4 [Payment after Termination by
d
fo
r Contractor], Sub-Clause 18.5 [Optional Termination], or Sub-Clause
d
te 18.6 [Release from Performance under the Law] (as the case may be).
irc
t
s
re
is 4.2.3 Return of the Performance Security
t
n
e
m
u
c
d
o The Employer shall return the Performance Security to the Contractor:
is
h
T
Representative The Contractor shall appoint the Contractor’s Representative and shall give
him/her all authority necessary to act on the Contractor’s behalf under the
Contract, except to replace the Contractor’s Representative.
S
M
R
The Contractor’s Representative shall be qualified, experienced and O
F
competent in the main engineering discipline applicable to the Works and
fluent in the language for communications defined in Sub-Clause 1.4 [Law
and Language].
d
fo to the Engineer’s prior consent.
te
irc
t
s
re The Contractor’s Representative may delegate any powers, functions and
is
t
n authority except:
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m
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o
d
is
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T
4.4
S
M Contractor’s
R
O Documents 4.4.1 Preparation and Review
F
The as-built records shall be submitted to the Engineer for Review, and
the Works shall not be considered to be completed for the purposes of S
taking-over under Sub-Clause 10.1 [Taking Over the Works and Sections] M
R
until the Engineer has given (or is deemed to have given) a Notice of O
F
No-objection under sub-paragraph (i) of Sub-Clause 4.4.1 [ Preparation and
Review].
4.7.2; and
(c) what measures (if any) the Contractor is required to take to rectify the
error
S
(and, for the purpose of Sub-Clause 3.7.3 [ Time limits], the date the Engineer M
R
receives the Contractor’s Notice under Sub-Clause 4.7.2 [Errors] shall be the O
F
date of commencement of the time limit for agreement under Sub-Clause
3.7.3).
The health and safety manual shall set out all the health and safety
E requirements:
C
N
A (i) stated in the Specification;
D
I
U
G (ii) that comply with all the Contractor’s health and safety obligations
under the Contract; and
(iii) that are necessary to effect and maintain a healthy and safe working
environment for all persons entitled to be on the Site and other places
S (if any) where the Works are being executed.
M
R
O This manual shall be revised as necessary by the Contractor or the
F
Contractor’s health and safety officer, or at the reasonable request of the
Engineer. Each revision of the manual shall be submitted promptly to the
Engineer.
The Engineer may, at any time, give a Notice to the Contractor stating the E
C
extent to which the Contractor is failing to correctly implement the QM N
A
System to the Contractor’s activities under the Contract. After receiving this D
I
U
Notice, the Contractor shall immediately remedy such failure. G
The Contractor shall carry out internal audits of the QM System regularly, and
at least once every 6 months. The Contractor shall submit to the Engineer
a report listing the results of each internal audit within 7 days of completion. S
Each report shall include, where appropriate, the proposed measures to M
R
improve and/or rectify the QM System and/or its implementation. O
F
E
(e) the Contractor’s requirements for access, accommodation, facilities,
C personnel, power, transport, water and any other utilities or services.
N
A
D
I
U
G 4.11
Sufciency of the
Accepted Contract Amount The Contractor shall be deemed to:
4.18
Protection of
the Environment The Contractor shall take all necessary measures to: S
M
R
O
(a) protect the environment (both on and off the Site); F
(b) comply with the environmental impact statement for the Works (if
any); and
(c) limit damage and nuisance to people and property resulting from
pollution, noise and other results of the Contractor’s operations and/
rg
o
or activities.
.
ic
d
fi.
w
w The Contractor shall ensure that emissions, surface discharges, effluent and
w
T
A
any other pollutants from the Contractor’s activities shall exceed neither the
E
L values indicated in the Specification, nor those prescribed by applicable
A
S
R
Laws.
O
F
L
A
NI 4.19
G
IR
O Temporary Utilities The Contractor shall, except as stated below, be responsible for the provision
-
E
L
of all temporary utilities, including electricity, gas, telecommunications, water
B
T
A and any other services the Contractor may require for the execution of the
IN
R Works.
P
T
O
N
N
D The following provisions of this Sub-Clause shall only apply if, as stated in
A
E the Specification, the Employer is to provide utilities for the Contractor’s use.
S
U
T
The Contractor shall be entitled to use, for the purposes of the Works, the
C
A utilities on the Site for which details and prices are given in t he Specification.
R
T
N The Contractor shall, at the Contractor’s risk and cost, provide any apparatus
O
C
R
necessary for the Contractor’s use of these services and for measuring the
O
F quantities consumed. The apparatus provided for measuring quantities
T
O
N consumed shall be subject to the Engineer’s consent. The quantities
-
m
r
consumed (if any) during each period of payment stated in the Contract
fto
la Data (if not stated, each month) shall be measured by the Contractor, and
p
is
x the amount to be paid by the Contractor for such quantities (at the prices
e
is
N stated in the Specification) shall be included in the relevant Statement.
x
e
L
e
th 4.20
in
h
it
w Progress Reports Monthly progress reports, in the format stated in the Specification (if not
n
o
ti
u
stated, in a format acceptable to the Engineer) shall be prepared by the
b
ir
is
t Contractor and submitted to the Engineer. Each progress report shall be
d
fo
r submitted in one paper-srcinal, one electronic copy and additional paper
d copies (if any) as stated in the Contract Data. The first report shall cover the
te
irc
t
s period up to the end of the first month following the Commencement Date.
re
is
t
Reports shall be submitted monthly thereafter, each within 7 days after the
n
e
m
last day of the month to which it relates.
u
c
o
d
is
h
T
N
D However, nothing stated in any progress report shall constitute a Notice
A
E
S
under a Sub-Clause of these Conditions.
U
T
C
A
R 4.21
T
N
O
C
Security of the Site The Contractor shall be responsible for the security of the Site, and:
R
O
F
T (a) for keeping unauthorised persons off the Site; and
O
N
- (b) authorised persons shall be limited to the Contractor’s Personnel,
m
r
fto the Employer’s Personnel, and to any other personnel identified as
la
p authorised personnel (including the Employer’s other contractors
is
x
N
e on the Site), by a Notice from the Employer or the Engineer to the
is Contractor.
x
e
L
e
th
in
h 4.22
it
w
n
o
Contractor’s Operations
ti
u
b
ir
t
on Site The Contractor shall confine the Contractor’s operations to the Site, and
is
d
r
to any additional areas which may be obtained by the Contractor and
fo
d acknowledged by the Engineer as working areas. The Contractor shall take
te
irc all necessary precautions to keep Contractor’s Equipment and Contractor’s
t
s
re Personnel within the Site and these additional areas, and to keep them off
is
t
n
e adjacent land.
m
u
c
o
d
is
h
T
5
A
E
S
U
C
A
T
Subcontracting
R
T
N
O
5.1
C
R
O
Subcontractors The Contractor shall not subcontract:
F
T
O
N
-
(a) works with a total accumulated value greater than the percentage
m
r of the Accepted Contract Amount stated in the Contract Data (if not
fto
la
p
stated, the whole of the Works); or
is
x
e (b) any part of the Works for which subcontracting is not permitted as
N
is
x stated in the Contract Data.
e
L
e
th The Contractor shall be responsible for the work of all Subcontractors, for
in
it
h managing and coordinating all the Subcontractors’ works, and for the acts
w
n
o
or defaults of any Subcontractor, any Subcontractor’s agents or employees,
ti
u
b
ir as if they were the acts or defaults of the Contractor.
t
is
d
r
fo
d The Contractor shall obtain the Engineer’s prior consent to all proposed
te
irc
t
Subcontractors, except:
s
re
is
t
n (i) suppliers of Materials; or
e
m
u
c (ii) a subcontract for which the Subcontractor is named in the
o
d
is Contract.
h
T
5.2
S Nominated
M
R Subcontractors 5.2.1 Definition of “nominated Subcontractor”
O
F
Thereafter, the Engineer shall give a Notice to the Contractor stating the
amount paid directly to the nominated Subcontractor by the Employer and,
rg
o
in the next IPC after this Notice, shall include this amount as a deduction
.
ic under sub-paragraph (b) of Sub-Clause 14.6.1 [ The IPC].
d
fi.
w
w
w
6
T
A
E
L
A
S
R
O
Staff and Labour
F
L
A 6.1
NI
G
IR
O Engagement of
-
E Staff and Labour Except as otherwise stated in the Specification, the Contractor shall make
L
B
A arrangements for the engagement of all Contractor’s Personnel, and for their
T
IN payment, accommodation, feeding, transport and welfare.
R
P
T
O
N
D
6.2
N
A
E Rates of Wages and
S
U
T Conditions of Labour The Contractor shall pay rates of wages, and observe conditions of labour,
C
A
R which comply with all applicable Laws and are not lower than those
T
N
O established for the trade or industry where the work is carried out.
C
R
O
F
T If no established rates or conditions are applicable, the Contractor shall pay
O
N
- rates of wages and observe conditions which are not lower than the general
m
fto
r level of wages and conditions observed locally by employers whose trade or
la industry is similar to that of the Contractor.
p
is
x
e
N
is
x
6.3
e
L
e
th Recruitment of Persons The Contractor shall not recruit, or attempt to recruit, staff and labour from
in amongst the Employer’s Personnel.
h
it
w
n
o
ti
b
ir
u Neither the Employer nor the Engineer shall recruit, or attempt to recruit, staff
t
is
d
and labour from amongst the Contractor’s Personnel.
r
fo
d
te
irc 6.4
t
s
re Labour Laws The Contractor shall comply with all the relevant labour Laws applicable
is
t
n
e
to the Contractor’s Personnel, including Laws relating to their employment
m
u
c (including wages and working hours), health, safety, welfare, immigration
o
d
is
and emigration, and shall allow them all their legal rights.
h
T
shall immediately
describing the workgive a Notice to the Engineer with reasons and
required.
S 6.6
M
R
O Facilities for
F
Staff and Labour Except as otherwise stated in the Specification, the Contractor shall provide
and maintain all necessary accommodation and welfare facilities for the
Contractor’s Personnel.
If such accommodation and facilities are to be located on the Site, except where
rg the Employer has given the Contractor prior permission, they shall be located
o
.
ic
d
fi. within the areas identified in the Contract. If any such accommodation or
w
w
w facilities are found elsewhere within the Site, the Contractor shall immediately
T
A remove them at the Contractor’s risk and cost. The Contractor shall also
E
A
L provide facilities for the Employer’s Personnel as stated in the Specification.
S
R
O
F
L 6.7
A
NI
G
IR
O Health and Safety
- of Personnel In addition to the requirements of Sub-Clause 4.8 [ Health and Safety
E
L
B Obligations], the Contractor shall at all times take all necessary precautions to
A
T
IN
maintain the health and safety of the Contractor’s Personnel. In collaboration
R
P
T
with local health authorities, the Contractor shall ensure that:
O
N
D (a) medical staff, first aid facilities, sick bay, ambulance services and any
N
A
E
S
other medical services stated in the Specification are available at all
U
T times at the Site and at any accommodation for Contractor’s and
C
A
R Employer’s Personnel; and
T
N
O
C
(b) suitable arrangements are made for all necessary welfare and hygiene
R
O
requirements and for the prevention of epidemics.
F
T
O
N
- The Contractor shall appoint a health and safety officer at the Site, responsible
m
r
fto for maintaining health, safety and protection against accidents. This officer shall:
la
p
is
x
e (i) be qualified, experienced and competent for this responsibility; and
N
is
x
e
(ii) have the authority to issue directives for the purpose of maintaining
L
e
th the health and safety of all personnel authorised to enter and/or work
in on the Site and to take protective measures to prevent accidents.
h
it
w
n
o
ti
b
ir
u Throughout the execution of the Works, the Contractor shall provide whatever
t
is
d
is required by this person to exercise this responsibility and authority.
r
fo
d
te
irc 6.8
t
s
re Contractor’s
is
t
n
e Superintendence From the Commencement Date until the issue of the Performance Certificate,
m
u
c
o
the Contractor shall provide all necessary superintendence to plan, arrange,
d
is
h
direct, manage, inspect, test and monitor the execution of the Works.
T
Contractor’s Personnel The Contractor’s Personnel (including Key Personnel, if any) shall be
appropriately qualified, skilled, experienced and competent in their respective
trades or occupations.
S
M
R
The Engineer may require the Contractor to remove (or cause to be removed) O
F
any person employed on the Site or Works, including the Contractor’s
Representative and Key Personnel (if any), who:
If the Engineer does not respond within 14 days after receiving any such
submission, by giving a Notice stating his/her objection to the appointment
of such person (or replacement) with reasons, the Engineer shall be deemed
S
M to have given his/her consent.
R
O
F
The Contractor shall not, without the Engineer’s prior consent, revoke the
appointment of any of the Key Personnel or appoint a replacement (unless
the person is unable to act as a result of death, illness, disability or resignation,
in which case the appointment shall be deemed to have been revoked with
immediate effect and the appointment of a replacement shall be treated as
rg a temporary appointment until the Engineer gives his/her consent to this
o
.
ic
d
fi. replacement, or another replacement is appointed, under this Sub-Clause).
w
w
w
T
A All Key Personnel shall be based at the Site (or, where Works are being
E
A
L executed off the Site, at the location of the Works) for the whole time that the
S
R Works are being executed. If any of the Key Personnel is to be temporarily
O
F
L absent during execution of the Works, a suitable replacement shall be
A
NI
G
temporarily appointed, subject to the Engineer’s prior consent.
IR
O
-
E
L
All Key Personnel shall be fluent in the language for communications defined
B
T
A in Sub-Clause 1.4 [Law and Language].
IN
R
P
T
7
O
N
D
N
A
E
S
Plant, Materials and Workmanship
U
T
C 7.1
A
R
T
N
Manner
O
C
R
of Execution The Contractor shall carry out the manufacture, supply, installation, testing
O
F and commissioning and/or repair of Plant, the production, manufacture,
T
O
N supply and testing of Materials, and all other operations and activities during
-
m
r the execution of the Works:
fto
la
p
is
x
(a) in the manner (if any) specified in the Contract;
e
N
is
(b) in a proper workmanlike and careful manner, in accordance with
x
e
L
e
th recognised good practice; and
in (c) with properly equipped facilities and non-hazardous Materials, except
h
it
w as otherwise specified in the Contract.
n
o
ti
u
b
ir
is
t 7.2
d
r
fo Samples The Contractor shall submit the following samples of Materials, and relevant
d
te information, to the Engineer for consent prior to using the Materials in or for
irc
t
s
re
the Works:
is
t
n
e
m (a) manufacturer’s standard samples of Materials and samples specified
u
c
d
o in the Contract, all at the Contractor’s cost, and
is
h
T
Inspection The Employer’s Personnel shall, during all the normal working hours stated
in the Contract Data and at all other reasonable times:
E
C
(a) have full access to all parts of the Site and to all places from which N
A
natural Materials are being obtained; D
I
U
(b) during production, manufacture and construction (at the Site and G
rg
ic
o
. The Contractor shall give the Employer’s Personnel full opportunity to carry
d
fi. out these activities, including providing safe access, facilities, permissions
w
w
w and safety equipment.
T
A
E
L
A
S
The Contractor shall give a Notice to the Engineer whenever any Materials,
R
O Plant or work is ready for inspection, and before it is to be covered up, put
F
L
A out of sight, or packaged for storage or transport. The Employer’s Personnel
NI
G
IR
O
shall
testingthen eitherunreasonable
without carry out the examination,
delay, inspection,
or the Engineer shall measurement
promptly give or
a
-
E
L
B
Notice to the Contractor that the Employer’s Personnel do not require to do
A
T so. If the Engineer gives no such Notice and/or the Employer’s Personnel do
IN
P
R not attend at the time stated in the Contractor’s Notice (or such time as may
T
O
N
be agreed with the Contractor), the Contractor may proceed with covering
N
D up, putting out of sight or packaging for storage or transport.
A
E
S
U
T If the Contractor fails to give a Notice in accordance with this Sub-Clause,
C
A
R the Contractor shall, if and when required by the Engineer, uncover the work
T
N
O
and thereafter reinstate and make good, all at the Contractor’s risk and cost.
C
R
O
F
T 7.4
O
N
- Testing by the Contractor This Sub-Clause shall apply to all tests specified in the Contract, other than
m
r
fto the Tests after Completion (if any).
la
p
is
x
N
e The Contractor shall provide all apparatus, assistance, documents and
is
x
e
other information, temporary supplies of electricity and water, equipment,
L
e
th fuel, consumables, instruments, labour, materials, and suitably qualified,
in experienced and competent staff, as are necessary to carry out the specified
h
it
w tests efficiently and properly. All apparatus, equipment and instruments shall
n
o
ti
b
u be calibrated in accordance with the standards stated in the Specification or
ir
t
is
d
defined by applicable Laws and, if requested by the Engineer, the Contractor
r
fo shall submit calibration certificates before carrying out testing.
d
te
irc
t
s
re
The Contractor shall give a Notice to the Engineer, stating the time and place
is
t
n
for the specified testing of any Plant, Materials and other parts of the Works.
e
m
u
This Notice shall be given in reasonable time, having regard to the location
c
o
d of the testing, for the Employer’s Personnel to attend.
is
h
T
E The Engineer shall give a Notice to the Contractor of not less than 72 hours
C
N of his/her intention to attend the tests. If the Engineer does not attend at
A
D
I the time and place stated in the Contractor’s Notice under this Sub-Clause,
U
G the Contractor may proceed with the tests, unless otherwise instructed
by the Engineer. These tests shall then be deemed to have been made in
the Engineer’s presence. If the Contractor suffers delay and/or incurs Cost
from complying with any such instruction or as a result of a delay for which
the Employer is responsible, the Contractor shall be entitled subject to
S
M Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment
R
O
F
of Cost Plus Profit.
7.6
Remedial Work In addition to any previous examination, inspection, measurement or testing,
or test certificate or Notice of No-objection by the Engineer, at any time S
M
before the issue of the Taking-Over Certificate for the Works the Engineer R
O
may instruct the Contractor to: F
(a) repair or remedy (if necessary, off the Site), or remove from the Site
and replace any Plant or Materials which are not in accordance with
the Contract;
(b) repair or remedy, or remove and re-execute, any other work which is
rg
ic
o
. not in accordance with the Contract; and
d
fi.
w (c) carry out any remedial work which is urgently required for the safety
w
T
w of the Works, whether because of an accident, unforeseeable event
A
E
L
or otherwise.
A
S
R
O
F The Contractor shall comply with the instruction as soon as practicable and
L
N
A not later than the time (if any) specified in the instruction, or immediately if
I
G
IR
O
urgency is specified under sub-paragraph (c) above.
-
E
L
B
A
The Contractor shall bear the cost of all remedial work required under this
T
IN Sub-Clause, except to the extent that any work under sub-paragraph (c)
R
P
T
above is attributable to:
O
N
D
N (i) any act by the Employer or the Employer’s Personnel. If the
A
E
S
Contractor suffers delay and/or incurs Cost in carrying out such work,
U
T the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims
C
A
T
R For Payment and/or EOT] to EOT and/or payment of such Cost Plus
N
O Profit; or
C
R
O (ii) an Exceptional Event, in which case Sub-Clause 18.4 [ Consequences
F
T
O
of an Exceptional Event] shall apply.
N
-
m
r
fto If the Contractor fails to comply with the Engineer’s instruction, the Employer
la
is
p may (at the Employer’s sole discretion) employ and pay other persons to
x
N
e carry out the work. Except to the extent that the Contractor would have
is
x
e
been entitled to payment for work under this Sub-Clause, the Employer
L
th
e
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
in
h EOT] to payment by the Contractor of all costs arising from this failure. This
it
n
w entitlement shall be without prejudice to any other rights the Employer may
o
ti
b
u have, under the Contract or otherwise.
ir
t
is
d
r
fo 7.7
d
te
irc
t
Ownership of Plant
s
re
is
and Materials Each item of Plant and Materials shall, to the extent consistent with the
t
n mandatory requirements of the Laws of the Country, become the property of
e
m
u
c
o
the Employer at whichever is the earlier of the following times, free from liens
d
is
h
and other encumbrances:
T
ic
rg
o
.
8.1
8
Commencement, Delays and Suspension
Commencement of Works The Engineer shall give a Notice to the Contractor stating the Commencement
d
fi.
w Date, not less than 14 days before the Commencement Date. Unless
w
w
T
otherwise stated in the Particular Conditions, the Commenceme nt Date shall
A
E
L
be within 42 days after the Contractor receives the Letter of Acceptance.
A
S
R
O
F The Contractor shall commence the execution of the Works on, or as soon
L
N
A
I
as is reasonably practicable after, the Commencement Date and shall then
G
IR
O
proceed with the Works with due expedition and without delay.
-
E
L
B
A
8.2
T
IN Time for Completion The Contractor shall complete the whole of the Works, and each Section (if any),
R
P
T within the Time for Completion for the Works or Section (as the case may be),
O
N
D
including completion of all work which is stated in the Contract as being required
N
A for the Works or Section to beconsidered to be completed for the purposes of
E
S
U taking over under Sub-Clause 10.1Taking
[ Over the Works and Sections ].
T
C
A
R
T
N
8.3
O
C
R
Programme The Contractor shall submit an initial programme for the execution of the
O
F
T
Works to the Engineer within 28 days after receiving the Notice under
O
N Sub-Clause 8.1 [Commencement of Works]. This programme shall be
-
m
r prepared using programming software stated in the Specification (if not
fto
la
p
stated, the programming software acceptable to the Engineer). The
is Contractor shall also submit a revised programme which accurately reflects
x
e
N
is
the actual progress of the Works, whenever any programme ceases to
x
e reflect actual progress or is otherwise inconsistent with the Contractor’s
L
e
th obligations.
in
h
it
w
n
ti
o The initial programme and each revised programme shall be submitted to
u
b
ir
t the Engineer in one paper copy, one electronic copy and additional paper
is
d
r copies (if any) as stated in the Contract Data, and shall include:
fo
d
te
irc (a) the Commencement Date and the Time for Completion, of the Works
t
s
re and of each Section (if any);
is
t
n
e (b) the date right of access to and possession of (each part of) the Site
m
u
c
o
is to be given to the Contractor in accordance with the time (or times)
d
is
h
T
(e) the sequence and timing of inspections and tests specified in, or
required by, the Contract;
(f) for a revised programme: the sequence and timing of the remedial
S
work (if any) to which the Engineer has given a Notice of No-objection M
R
under Sub-Clause 7.5 [Defects and Rejection] and/or the remedial O
F
work (if any) instructed under Sub-Clause 7.6 [Remedial Work];
(g) all activities (to the level of detail stated in the Specification), logically
linked and showing the earliest and latest start and finish dates for
each activity, the float (if any), and the critical path(s);
(h) the dates of all locally recognised days of rest and holiday periods (if
rg
ic
o
. any);
d
fi.
w (i) all key delivery dates of Plant and Materials;
w
w
T (j) for a revised programme and for each activity: the actual progress
A
E
L to date, any delay to such progress and the effects of such delay on
A
S
R
other activities (if any); and
O
F
L
(k) a supporting report which includes:
A
NI
G (i) a description of all the major stages of the execution of the
IR
O
-
Works;
E
L
B
(ii) a general description of the methods which the Contractor
A
T
IN
intends to adopt in the execution of the Works;
R
P
T
(iii) details showing the Contractor’s reasonable estimate of the
O
N number of each class of Contractor’s Personnel, and of each
D
N
A
type of Contractor’s Equipment, required on the Site, for each
E
S
U
major stage of the execution of the Works;
T
C
A
(iv) if a revised programme, identification of any significant change(s)
R
T
N
to the previous programme submitted by the Contractor; and
O
C
R
(v) the Contractor’s proposals to overcome the effects of any delay(s)
O
F on progress of the Works.
T
O
N
-
m
r The Engineer shall Review the initial programme and each revised programme
fto
la submitted by the Contractor and may give a Notice to the Contractor stating
p
is the extent to which it does not comply with the Contract or ceases to reflect
x
e
N
is
actual progress or is otherwise inconsistent with the Contractor’s obligations.
x
L
e If the Engineer gives no such Notice:
e
th
in
it
h - within 21 days after receiving the initial programme; or
w
n
ti
o - within 14 days after receiving a revised programme
u
b
ir
t
is
d
the Engineer shall be deemed to have given a Notice of No-objection and
r
fo the initial programme or revised programme (as the case may be) shall be
d
te the Programme.
irc
t
s
re
is
t
n
The Contractor shall proceed in accordance with the Programme,subject to the
e
m
u
Contractor’s other obligations under the Contract. The Employer’s Personnel
c
o
d shall be entitled to rely on the Programme when planning their activities.
is
h
T
ti
n
o The Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
u
b
ir
t
and/or EOT] to EOT if the measured quantity of any item ofwork in accordance
is
d
r
with Clause 12 [Measurement and Valuation] is greater than the estimated
fo
d quantity of this item in the Bill of Quantities orother Schedule by more than ten
te
irc per cent (10%) and such increase in quantities causes a delay to completion
t
s
re for the purposes of Sub-Clause 10.1 Taking [ Over the Works and Sections ].
is
t
n
e
The agreement or determination of any such Claim, under Sub-Clause 20.2.5
m
u
c [Agreement or determination of the Claim], may include a review by the Engineer
o
d
is of measured quantities of other items of work which are significantly less (by
h
T
When determining each EOT under Sub-Clause 20.2 [ Claims For Payment
and/or EOT], the Engineer shall review previous determinations under E
C
Sub-Clause 3.7 [Agreement or Determination] and may increase, but shall N
A
not decrease, the total EOT. D
I
U
G
If a delay caused by a matter which is the Employer’s responsibility
is concurrent with a delay caused by a matter which is the Contractor’s
responsibility, the Contractor’s entitlement to EOT shall be assessed in
accordance with the rules and procedures stated in the Special Provisions (if S
not stated, as appropriate taking due regard of all relevant circumstances). M
R
O
F
8.6
Delays Caused
by Authorities If:
(a) the Contractor has diligently followed the procedures laid down by the
rg
o
ic
. relevant legally constituted public authorities or private utility entities in
d
fi. the Country;
w
w
w
T
(b) these authorities or entities delay or disrupt the Contractor’s work;
A
E
L
and
A
S
R
(c) the delay or disruption was Unforeseeable,
O
F
L
A
then this delay or disruption will be considered as a cause of delay under
NI
G sub-paragraph (b) of Sub-Clause 8.5 [ Extension of Time for Completion].
IR
O
-
E
L
B
8.7
A
T
IN
Rate of Progress If, at any time:
R
P
T
O
N
(a) actual progress is too slow to complete the Works or a Section (if any)
D within the relevant Time for Completion; and/or
N
A
E
S (b) progress has fallen (or will fall) behind the Programme (or the initial
U
C
T programme if it has not yet become the Programme) under Sub-Clause
A
T
R 8.3 [Programme],
N
O
C
R
other than as a result of a cause listed in Sub-Clause 8.5 [ Extension of Time
O
F for Completion], then the Engineer may instruct the Contractor to submit,
T
O
N
under Sub-Clause 8.3 [Programme], a revised programme describing
-
m
r
the revised methods which the Contractor proposes to adopt in order to
fto
la
expedite progress and complete the Works or a Section (if any) within the
p
is
x
relevant Time for Completion.
e
N
is
x
L
e Unless the Engineer gives a Notice to the Contractor stating otherwise, the
e
th Contractor shall adopt these revised methods, which may require increases
in
h
it in the working hours and/or in the numbers of Contractor’s Personnel and/or
w
n the Goods, at the Contractor’s risk and cost. If these revised methods cause
o
ti
u
b
ir
t
the Employer to incur additional costs, the Employer shall be entitled subject
is
d
r
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these
fo
d costs by the Contractor, in addition to Delay Damages (if any).
te
irc
t
s
re Sub-Clause 13.3.1 [ Variation by Instruction] shall apply to revised methods,
is
t
n
e including acceleration measures, instructed by the Engineer to reduce
m
u
c
o
delays resulting from causes listed under Sub-Clause 8.5 [Extension of Time
d
is for Completion].
h
T
This Sub-Clause shall not limit the Contractor’s liability for Delay Damages
in any case of fraud, gross negligence, deliberate default or reckless
misconduct by the Contractor.
rg 8.9
o
.
ic
d
fi. Employer’s Suspension The Engineer may at any time instruct the Contractor to suspend progress
w
w
w of part or all of the Works, which instruction shall state the date and cause
T
A of the suspension.
E
L
A
S
R
O During such suspension, the Contractor shall protect, storeand secure such part
F
L
A
or all of the Works (as the casemay be) against any deterioration, loss or damage.
NI
G
IR
O
-
To the extent that the cause of such suspension is the responsibility of the
E
L
B
Contractor, Sub-Clauses 8.10 [Consequences of Employer’s Suspension],
A
T 8.11 [Payment for Plant and Materials after Employer’s Suspension] and
IN
P
R 8.12 [Prolonged Suspension] shall not apply.
T
O
N
N
D 8.10
A
E
S Consequences of
U
T
C
A
Employer’s Suspension If the Contractor suffers delay and/or incurs Cost from complying with an
R
T
N
Engineer’s instruction under Sub-Clause 8.9 [Employer’s Suspension] and/
O
C or from resuming the work under Sub-Clause 8.13 [Resumption of Work],
R
F
O the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For
T
O Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit.
N
-
m
r
fto The Contractor shall not be entitled to EOT, or to payment of the Cost
la
p
is incurred, in making good:
x
e
N
is
x
e
(a) the consequences of the Contractor’s faulty or defective (design, if
L
e
th any) workmanship, Plant or Materials; and/or
in
it
h (b) any deterioration, loss or damage caused by the Contractor’s failure
w
n
o
to protect, store or secure in accordance with Sub-Clause 8.9
ti
b
ir
u [Employer’s Suspension].
t
is
d
r
fo
d
8.11
te
irc
t
s
Payment for Plant and Materials
re
is
t
after Employer’s Suspension The Contractor shall be entitled to payment of the value (as at the date of
n
e
m
suspension instructed under Sub-Clause 8.9 [Employer’s Suspension]) of
u
c Plant and/or Materials which have not been delivered to Site, if:
o
d
is
h
T
(a) agree to a further suspension, in which case the Parties may agree
the EOT and/or Cost Plus Profit (if the Contractor incurs Cost), and/or
rg
o
payment for suspended Plant and/or Materials, arising from the total
.
ic period of suspension;
d
fi.
w
w
w or (and if the Parties fail to reach agreement under this sub-paragraph (a))
T
A
E
A
L (b) after giving a (second) Notice to the Engineer, treat the suspension
S
R as an omission of the affected part of the Works (as if it had been
O
F
L instructed under Sub-Clause 13.3.1 [Variation by Instruction])
A
NI
G
with immediate effect including release from any further obligation
IR
O
to protect, store and secure under Sub-Clause 8.9 [Employer’s
-
E
L
Suspension]. If the suspension affects the whole of the Works, the
B
T
A Contractor may give a Notice of termination under Sub-Clause 16.2
IN
R [Termination by Contractor].
P
T
O
N
D 8.13
N
A
E
S
Resumption of Work The Contractor shall resume work as soon as practicable after receiving a
U
T Notice from the Engineer to proceed with the suspended work.
C
A
R
T
N
O
At the time stated in this Notice (if not stated, immediately after the Contractor
C
R receives this Notice), the Contractor and the Engineer shall jointly examine
O
F
T
the Works and the Plant and Materials affected by the suspension. The
O
N
-
Engineer shall record any deterioration, loss, damage or defect in the Works
m
r or Plant or Materials which has occurred during the suspension and shall
fto
la
p
provide this record to the Contractor. The Contractor shall promptly make
is
x
e
good all such deterioration, loss, damage or defect so that the Works, when
N
is
x
completed, shall comply with the Contract.
e
L
e
th
9
in
h
it
w
n
ti
b
ir
o
u Tests on Completion
t
is
d
r
9.1
fo
d
te
Contractor’s Obligations The Contractor shall carry out the Tests on Completion in accordance with
irc
t
s
this Clause and Sub-Clause 7.4 [Testing by the Contractor], after submitting
re
is the documents under Sub-Clause 4.4.2 [As-Built Records] (if applicable)
t
n
e and Sub-Clause 4.4.3 [Operation and Maintenance Manuals] (if applicable).
m
u
c
o
d
is
h
T
N
D 9.2
A
E
S
Delayed Tests If the Contractor has given a Notice under Sub-Clause 9.1 [ Contractor’s
U
T Obligations] that the Works or Section (as the case may be) are ready for
C
A Tests on Completion, and these tests are unduly delayed by the Employer’s
R
T
N
O
Personnel or by a cause for which the Employer is responsible, Sub-Clause
C
R 10.3 [Interference with Tests on Completion] shall apply.
O
F
T
O
N
-
If the Tests on Completion are unduly delayed by the Contractor, the Engineer
m
fto
r may by giving a Notice to the Contractor require the Contractor to carry
la out the tests within 21 days after receiving the Notice. The Contractor shall
p
is
x
e carry out the tests on such day or days within this period of 21 days as the
N
is
x
Contractor may fix, for which the Contractor shall give a prior Notice to the
e
L
e
th Engineer of not less than 7 days.
in
h
it
w If the Contractor fails to carry out the Tests on Completion within this period
n
o
ti
u
of 21 days:
b
ir
t
is
d
r (a) after a second Notice is given by the Engineer to the Contractor, the
fo
d
te
Employer’s Personnel may proceed with the tests;
irc
t
s (b) the Contractor may attend and witness these tests;
re
is
t
n
(c) within 28 days of these tests being completed, the Engineer shall
e
m
u
send a copy of the test results to the Contractor; and
c
o
d
is
h
T
7.5 [Defects and Rejection] shall apply. The Engineer or the Contractor may
require these failed tests, and the Tests on Completion on any related work,
to be repeated under the same terms and conditions. Such repeated tests
shall be treated as Tests on Completion for the purposes of this Clause. S
M
R
O
9.4 F
rg
(a) order further repetition of Tests on Completion under Sub-Clause 9.3
o
.
ic
d
[Retesting];
fi.
w
w
(b) reject the Works if the effect of the failure is to deprive the Employer of
w
T
A
substantially the whole benefit of the Works in which event the Employer
E
L shall have the same remedies as are provided in sub-paragraph (d) of
A
S
R
Sub-Clause 11.4 [Failure to Remedy Defects];
O
F
L (c) reject the Section if the effect of the failure is that the Section cannot
A
NI be used for its intended purpose(s) under the Contract, in which
G
IR
O
event the Employer shall have the same remedy as is provided in
-
E
L
sub-paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects]; or
B
A
T (d) issue a Taking-Over Certificate, if the Employer so requests.
IN
R
P
T
O In the event of sub-paragraph (d) above, the Contractor shall then proceed in
N
N
D accordance with all other obligations under the Contract, and the Employer
A
E shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
S
U
T
EOT] to payment by the Contractor or a reduction in the Contract Price as
C
A
R
described under sub-paragraph (b) of Sub-Clause 11.4 [ Failure to Remedy
T
N
O
Defects], respectively. This entitlement shall be without prejudice to any
C
R other rights the Employer may have, under the Contract or otherwise.
O
F
T
O
10
N
-
m
r
fto
la
is
p Employer’s Taking Over
x
e
N 10.1
is
x
e
L Taking Over the
e
th
in Works and Sections Except as stated in Sub-Clause 9.4 [ Failure to Pass Tests on Completion],
h
it
w Sub-Clause 10.2 [Taking Over Parts] and Sub-Clause 10.3 [Interference with
n
ti
o
u
Tests on Completion], the Works shall be taken over by the Employer when:
b
ir
t
is
d
r (a) the Works have been completed in accordance with the Contract,
fo
d
te
including the passing of the Tests on Completion and except as
irc
t
s
allowed in sub-paragraph (i) below;
re
is
t
(b) if applicable, the Engineer has given (or is deemed to have given)
n
e
m
a Notice of No-objection to the as-built records submitted under
u
c
d
o Sub-Clause 4.4.2 [As-Built Records];
is
h
T
If any Part of the Works is taken over under Sub-Clause 10.2 [ Taking Over
S
M Parts], the remaining Works or Section shall not be taken over until the
R
O conditions described in sub-paragraphs (a) to (e) above (where applicable)
F
have been fulfilled.
The Engineer shall, within 28 days after receiving the Contractor’s Notice,
either:
rg
o
(i) issue the Taking-Over Certificate to the Contractor, stating the date
.
ic on which the Works or Section were completed in accordance with
d
fi.
w
w
the Contract, except for any minor outstanding work and defects (as
w
T listed in the Taking-Over Certificate) which will not substantially affect
A
E
L the safe use of the Works or Section for their intended purpose (either
A
S
R
until or whilst this work is completed and these defects are remedied);
O
F or
L
A
NI (ii) reject the application by giving a Notice to the Contractor, with
G
IR
O
reasons. This Notice shall specify the work required to be done, the
-
E
L
defects required to be remedied and/or the documents required to
B
T
A be submitted by the Contractor to enable the Taking-Over Certificate
IN to be issued. The Contractor shall then complete this work, remedy
R
P
T
O
such defects and/or submit such documents before giving a further
N
D
Notice under this Sub-Clause.
N
A
E
S
U If the Engineer does not issue the Taking-Over Certificate or reject the
T
C
A Contractor’s application within this period of 28 days, and if the conditions
R
T
N described in sub-paragraphs (a) to (d) above (where applicable) have been
O
C fulfilled, the Works or Section shall be deemed to have been completed
R
F
O in accordance with the Contract on the fourteenth day after the Engineer
T
O
N
receives the Contractor’s Notice of application and the Taking-Over
-
m
r
Certificate shall be deemed to have been issued.
fto
la
p
is
x
10.2
e
N
is Taking Over Parts The Engineer may, at the sole discretion of the Employer, issue a Taking-Over
x
e
L
e
th Certificate for any part of the Permanent Works.
in
h
it The Employer shall not use any part of the Works (other than as a temporary
w
n
ti
o
u
measure, which is either stated in the Specification or with the prior
b
ir
t agreement of the Contractor) unless and until the Engineer has issued a
is
d
r Taking-Over Certificate for this part. However, if the Employer does use any
fo
d
te
part of the Works before the Taking-Over Certificate is issued the Contractor
irc
t
s shall give a Notice to the Engineer identifying such part and describing such
re
is use, and:
t
n
e
m
u
c
o
(a) that Part shall be deemed to have been taken over by the Employer
d
is as from the date on which it is used;
h
T
certificate.
After the Engineer has issued a Taking-Over Certificate for a Part, the E
C
Contractor shall be given the earliest opportunity to take such steps as N
A
may be necessary to carry out the outstanding work (including Tests on D
I
U
Completion) and/or remedial work for any defects listed in the certificate. G
The Contractor shall carry out these works as soon as practicable and, in
any case, before the expiry date of the relevant DNP.
If the Contractor incurs Cost as a result of the Employer taking over and/ S
M
or using a Part, the Contractor shall be entitled subject to Sub-Clause 20.2 R
O
[Claims For Payment and/or EOT] to payment of such Cost Plus Profit. F
If the Engineer issues a Taking-Over Certificate for any part of the Works, or
if the Employer is deemed to have taken over a Part under sub-paragraph (a)
above, for any period of delay after the date under sub-paragraph (a) above,
the Delay Damages for completion of the remainder of the Works shall be
rg
ic
o
. reduced. Similarly, the Delay Damages for the remainder of the Section (if
d
fi. any) in which this Part is included shall also be reduced. This reduction
w
w
w shall be calculated as the proportion which the value of the Part (except
T
A
E
the value of any outstanding works and/or defects to be remedied) bears
L
A
S
to the value of the Works or Section (as the case may be) as a whole. The
R
O Engineer shall proceed under Sub-Clause 3.7 [ Agreement or Determination]
F
L
A
to agree or determine this reduction (and for the purpose of Sub-Clause
NI
G 3.7.3 [Time limits], the date the Engineer receives the Contractor’s Notice
IR
O
-
under this Sub-Clause shall be the date of commencement of the time limit
E
L for agreement under Sub-Clause 3.7.3). The provisions of this paragraph
B
A
T shall only apply to the daily rate of Delay Damages, and shall not affect the
IN
P
R maximum amount of these damages.
T
O
N
N
D 10.3
A
E
S Interference with
U
T
C Tests on Completion If the Contractor is prevented, for more than 14 days (either a continuous
A
R
T period, or multiple periods which total more than 14 days), from carrying
N
O
C out the Tests on Completion by the Employer’s Personnel or by a cause for
R
F
O which the Employer is responsible:
T
O
N
- (a) the Contractor shall give a Notice to the Engineer describing such
m
r
fto prevention;
la
p
is
(b) the Employer shall be deemed to have taken over the Works or Section
x
e
N (as the case may be) on the date when the Tests on Completion would
is
x
e otherwise have been completed; and
L
e
th (c) the Engineer shall immediately issue a Taking-Over Certificate for the
in
it
h Works or Section (as the case may be).
w
n
o
ti
u
b
ir
t
After the Engineer has issued this Taking-Over Certificate, the Contractor
is
d
r
shall carry out the Tests on Completion as soon as practicable and, in any
fo
d case, before the expiry date of the DNP. The Engineer shall give a Notice to
te
irc the Contractor, of not less than 14 days, of the date after which the Contractor
t
s
re may carry out each of the Tests on Completion. Thereafter, Sub-Clause 9.1
is
t
n
e
[Contractor’s Obligations] shall apply.
m
u
c
o
d
is
h
T
S
M
R
O
F
11.1 11
Defects after Taking Over
11.3
Extension of Defects S
M
Notication Period The Employer shall be entitled to an extension of the DNP for the Works, or R
O
a Section or a Part: F
(a) if and to the extent that the Works, Section, Part or a major item of
Plant (as the case may be, and after taking over) cannot be used for
the intended purpose(s) by reason of a defect or damage which is
attributable to any of the matters under sub-paragraphs (a) to (d) of
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ic
o
. Sub-Clause 11.2 [Cost of Remedying Defects]; and
d
fi.
w (b) subject to Sub-Clause 20.2 [ Claims For Payment and/or EOT].
w
w
T
A
E
L
However, a DNP shall not be extended by more than a period of two years
A
S after the expiry of the DNP stated in the Contract Data.
R
O
F
L
N
A If delivery and/or erection of Plant and/or Materials was suspended under
I
G
IR
O
Sub-Clause 8.9 [Employer’s Suspension] (other than where the cause of
- such suspension is the responsibility of the Contractor) or Sub-Clause 16.1
E
L
B [Suspension by Contractor], the Contractor’s obligations under this Clause
A
T
IN
shall not apply to any defects or damage occurring more than two years
R
P
T
after the DNP for the Works, of which the Plant and/or Materials form part,
O
N would otherwise have expired.
D
N
A
E
S 11.4
U
T
C
A
Failure to Remedy Defects If the remedying of any defect or damage under Sub-Clause 11.1 [ Completion
R
T
N
of Outstanding Works and Remedying Defects] is unduly delayed by the
O
C Contractor, a date may be fixed by (or on behalf of) the Employer, on or by
R
F
O which the defect or damage is to be remedied. A Notice of this fixed date
T
O shall be given to the Contractor by (or on behalf of) the Employer, which
N
-
m
Notice shall allow the Contractor reasonable time (taking due regard of all
r
fto relevant circumstances) to remedy the defect or damage.
la
p
is
x
e
N If the Contractor fails to remedy the defect or damage by the date stated
is
x in this Notice and this remedial work was to be executed at the cost of
e
L
th
e
the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the
in
it
h Employer may (at the Employer’s sole discretion):
w
n
o
ti
b
u (a) carry out the work or have the work carried out by others (including
ir
t
is
d
any retesting), in the manner required under the Contract and at the
r
fo Contractor’s cost, but the Contractor shall have no responsibility for
d
te this work. The Employer shall be entitled subject to Sub-Clause 20.2
irc
t
s
re
[Claims For Payment and/or EOT] to payment by the Contractor of the
is
t
n
costs reasonably incurred by the Employer in remedying the defect or
e
m
u
damage;
c
o
d
is
h
T
If the Contractor fails to give such a Notice within the 7 days, the Engineer may
give a Notice to the Contractor, within 14 days after the defect or damage is S
remedied, instructing the repeated tests that are necessary to demonstrate M
R
O
that the remedied Works, Section, Part and/or Plant comply with the Contract. F
All repeated tests under this Sub-Clause shall be carried out in accordance
with the terms applicable to the previous tests, except that they shall be
carried out at the risk and cost of the Party liable, under Sub-Clause 11.2
[Cost of Remedying Defects], for the cost of the remedial work.
rg
o
.
ic
d
fi. 11.7
w
w
T
w Right of Access
A
E
L after Taking Over Until the date 28 days after issue of the Performance Certificate, the
A
S
R
Contractor shall have the right of access to the Works as is reasonably
O
F required in order to comply with this Clause, except as may be inconsistent
L
A
NI
with the Employer’s reasonable security restrictions.
G
IR
O
-
E
Whenever the Contractor intends to access any part of the Works during the
L
B
A
relevant DNP:
T
IN
R
P
T
(a) the Contractor shall request access by giving a Notice to the Employer,
O
N describing the parts of the Works to be acces sed, the reasons for such
D
N
A
access, and the Contractor’s preferred date for access. This Notice
E
S shall be given in reasonable time in advance of the preferred date for
U
C
T access, taking due regard of all relevant circumstances including the
A
T
R Employer’s security restrictions; and
N
O
C (b) within 7 days after receiving the Contractor’s Notice, the Employer
R
F
O shall give a Notice to the Contractor either:
T
O
N
(i) stating the Employer’s consent to the Contractor’s request; or
-
m
r (ii) proposing reasonable alternative date(s), with reasons. If the
fto
la
p
Employer fails to give this Notice within the 7 days, the Employer
is
x
e
shall be deemed to have given consent to the Contractor’s
N
is access on the preferred date stated in the Contractor’s Notice.
x
e
L
e
th
in
If the Contractor incurs additional Cost as a result of any unreasonable delay
h
it by the Employer in permitting access to the Works by the Contractor, the
w
n
ti
o Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
u
b
ir
t and/or EOT] to payment of any such Cost Plus Profit.
is
d
r
fo
d
te
11.8
irc
t
s
re
Contractor to Search The Contractor shall, if instructed by the Engineer, search for the cause of
is any defect, under the direction of the Engineer. The Contractor shall carry
t
n
e
m
u
out the search on the date(s) stated in the Engineer’s instruction or other
c
d
o date(s) agreed with the Engineer.
is
h
T
11.9
S
M Performance Certicate Performance of the Contractor’s obligations under the Contract shall not
R
O
F be considered to have been completed until the Engineer has issued the
Performance Certificate to the Contractor, stating the date on which the
Contractor fulfilled the Contractor’s obligations under the Contract.
The Engineer shall issue the Performance Certificate to the Contractor (with
a copy to the Employer and to the DAAB) within 28 days after the latest of
rg
ic
o
. the expiry dates of the Defects Notification Periods, or as soon thereafter as
d
fi. the Contractor has:
w
w
w
T
A (a) supplied all the Contractor’s Documents; and
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(b) completed and tested all the Works (including remedying any defects)
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If the
28Engineer
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Performance Performance
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on the date 28 days after the date on which it should have been issued, as
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Only the Performance Certificate shall be deemed to constitute acceptance
D
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A
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T 11.10
A
R After the issue of the Performance Certificate, each Party shall remain liable
T Unfullled Obligations
N
O
C
for the fulfilment of any obligation which remains unperformed at that time.
R
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F
T
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obligations, the Contract shall be deemed to remain in force.
N
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la
p or damage occurring more than two years after expiry of the DNP for the
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deliberate default or reckless misconduct.
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o Clearance of Site Promptly after the issue of the Performance Certificate, the Contractor shall:
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is (a) remove any remaining Contractor’s Equipment, surplus material,
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t
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re activities during the execution of the Works and are not occupied by
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e the Permanent Works; and
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12
R
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F
Measurement and Valuation
12.1
Works to be Measured The Works shall be measured, and valued for payment, in accordance with
this Clause.
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fi. Whenever the Engineer requires any part of the Works to be measured on
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Site, he/she shall give a Notice to the Contractor of not less than 7 days,
T
A of the part to be measured and the date on which and place on Site at
E
A
L which the measurement will be made. Unless otherwise agreed with the
S
R Contractor, the measurement on Site shall be made on this date and the
O
F
L Contractor’s Representative shall:
A
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(a) either attend or send another qualified representative to assist the
-
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Engineer and to endeavour to reach agreement of the measurement,
L
B
A and
T
IN
R (b) supply any particulars requested by the Engineer.
P
T
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N
D If the Contractor fails to attend or send a representative at the time and place
N
A stated in the Engineer’s Notice (or otherwise agreed with the Contractor),
E
S
U the measurement made by (or on behalf of) the Engineer shall be deemed to
T
C
A have been made in the Contractor’s presence and the Contractor shall be
R
T
N deemed to have accepted the measurement as accurate.
O
C
R
O
F Any part of the Permanent Works that is to be measured from records
T
O
N shall be identified in the Specification and, except as otherwise stated in
-
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the Contract, such records shall be prepared by the Engineer. Whenever
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la the Engineer has prepared the records for such a part, he/she shall give a
p
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x
Notice to the Contractor of not less than 7 days, stating the date on which
e
is
N and place at which the Contractor’s Representative shall attend to examine
x
L
e and agree the records with the Engineer. If the Contractor fails to attend or
e
th send a representative at the time and place stated in the Engineer’s Notice
in
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it (or otherwise agreed with the Contractor), the Contractor shall be deemed
w
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o to have accepted the records as accurate.
u
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r If, for any part of the Works, the Contractor attends the measurement on
fo
d Site or examines the measurement records (as the case may be) but the
te
irc Engineer and the Contractor are unable to agree the measurement, then
t
s
re the Contractor shall give a Notice to the Engineer setting out the reasons
is
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e why the Contractor considers the measurement on Site or records are
m
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inaccurate. If the Contractor does not give such a Notice to the Engineer
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12.2
Method of Measurement The method of measurement shall be as stated in the Contract Data or, if
not so stated, that which shall be in accordance with the Bill of Quantities or
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. other applicable Schedule(s).
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T
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of the net actual quantity of each item of the Permanent Works and no
L
A
S allowance shall be made for bulking, shrinkage or waste.
R
O
F
L
A 12.3
NI
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O Valuation of the Works Except as otherwise stated in the Contract, the Engineer shall value
E
- each item of work by applying the measurement agreed or determined
L
B
A
in accordance with Sub-Clauses 12.1 [Works to be Measured] and 12.2
T
IN [Method of Measurement], and the appropriate rate or price for the item.
R
P
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O
N For each item of work, the appropriate rate or price for the item shall be the
D
N rate or price specified for such item in the Bill of Quantities or other Schedule
A
E
S
U
or, if there is no such an item, specified for similar work.
T
C
A
R
T Any item of work which is identified in the Bill of Quantities or other Schedule,
N
O
C but for which no rate or price is specified, shall be deemed to be included in
R
F
O other rates and prices in the Bill of Quantities or other Schedule(s).
T
O
N
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A new rate or price shall be appropriate for an item of work if:
r
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p (a) the item is not identified in, and no rate or price for this item is
is
x
N
e specified in, the Bill of Quantities or other Schedule and no specified
is rate or price is appropriate because the item of work is not of similar
x
e
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e
th character, or is not executed under similar conditions, as any item in
in
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the Contract;
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(b) (i) the measured quantity of the item is changed by more than 10%
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d (ii) this change in quantity multiplied by the rate or price specified
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(iii) this change in quantity directly changes the Cost per unit quantity
u
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d
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T
Each new rate or price shall be derived from any relevant rates or prices E
C
specified in the Bill of Quantities or other Schedule, with reasonable N
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adjustments to take account of the matters described in sub-paragraph (a), D
I
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(b) and/or (c), as applicable. If no specified rates or prices are relevant for the G
derivation of a new rate or price, it shall be derived from the reasonable Cost
of executing the work, together with the applicable percentage for profit
stated in the Contract Data (if not stated, five percent (5%)), taking account
of any other relevant matters. S
M
R
O
If, for any item of work, the Engineer and the Contractor are unable to agree F
the appropriate rate or price, then the Contractor shall give a Notice to
the Engineer setting out the reasons why the Contractor disagrees. After
receiving a Contractor’s Notice under this Sub-Clause, unless at that time
such rate or price is already subject to the last paragraph of Sub-Clause
13.3.1 [Variation by Instruction], the Engineer shall:
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fi. • proceed under Sub-Clause 3.7 [ Agreement or Determination] to
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agree or determine the appropriate rate or price; and
T
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• for the purpose of Sub-Clause 3.7.3 [ Time limits], the date on which
L
A
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the Engineer receives the Contractor’s Notice shall be the date of
R
O commencement of the time limit for agreement under Sub-Clause
F
L
A
3.7.3.
NI
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Until such time as an appropriate rate or price is agreed or determined, the
E
L
B
Engineer shall assess a provisional rate or price for the purposes of Interim
A
T Payment Certificates.
IN
R
P
T
O
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12.4
D
N
A
Omissions Whenever the omission of any work forms part (or all) of a Variation;
E
S
U
T (a) the value of which has not otherwise been agreed;
C
A
T
R (b) the Contractor will incur (or has incurred) cost which, if the work had
N
O
C
not been omitted, would have been deemed to be covered by a sum
R
O forming part of the Accepted Contract Amount;
F
T
O (c) the omission of the work will result (or has resulted) in this sum not
N
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forming part of the Contract Price; and
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la (d) this cost is not deemed to be included in the valuation of any
p
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x substituted work;
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is then the Contractor shall, in the Contractor’s proposal under sub-paragraph
x
e
L
th
e
(c) of Sub-Clause 13.3.1 [Variation by Instruction], give details to the Engineer
in
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accordingly, with detailed supporting particulars.
it
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13
u
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Variations and Adjustments
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13.1
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Right to Vary Variations may be initiated by the Engineer under Sub-Clause 13.3 [ Variation
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Procedure] at any time before the issue of the Taking-Over Certificate for the
u
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o Works.
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. Each Variation may include:
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w (i) changes to the quantities of any item of work included in the Contract
T
A (however, such changes do not necessarily constitute a Variation);
E
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S (ii) changes to the quality and other characteristics of any item of work;
R
O
F (iii) changes to the levels, positions and/or dimensions of any part of the
L
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I
Works;
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IR
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(iv) the omission of any work, unless it is to be carried out by others
-
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L
B
T
A (v) any additional work, Plant, Materials or services necessary for the
IN
R Permanent Works, including any associated Tests on Completion,
P
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O
boreholes and other testing and exploratory work; or
N
N
D (vi) changes to the sequence or timing of the execution of the Works.
A
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T The Contractor shall not make any alteration to and/or modification of the
C
A
R Permanent Works, unless and until the Engineer instructs a Variation under
T
N
O
Sub-Clause 13.3.1 [Variation by Instruction].
C
R
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T 13.2
O
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- Value Engineering The Contractor may, at any time, submit to the Engineer a written proposal
m
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la
p
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x
e (a) accelerate completion;
N
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x
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(b) reduce the cost to the Employer of executing, maintaining or operating
L
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th the Works;
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Works; or
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(d) otherwise be of benefit to the Employer.
is
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The proposal shall be prepared at the cost of the Contractor and shall
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s
include the details as stated in sub-paragraphs (a) to (c) of Sub-Clause
re
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13.3.1 [Variation by Instruction].
t
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The Engineer shall, as soon as practicable after receiving such a proposal,
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respond by giving a Notice to the Contractor stating his/her consent or
T
13.3
Variation Procedure Subject to Sub-Clause 13.1 [ Right to Vary], Variations shall be initiated by the
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. Engineer in accordance with either of the following procedures:
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w 13.3.1 Variation by Instruction
T
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A
S The Engineer may instruct a Variation by giving a Notice (describing the
R
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required change and stating any requirements for the recording of Costs) to
L
A the Contractor in accordance with Sub-Clause 3.5 [Engineer’s Instructions].
NI
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IR
O
- The Contractor shall proceed with execution of the Variation and shall within
E
L
B 28 days (or other period proposed by the Contractor and agreed by the
A
T
IN
Engineer) of receiving the Engineer’s instruction, submit to the Engineer
R
P detailed particulars including:
T
O
N
N
D (a) a description of the varied work performed or to be performed,
A
E
S
including details of the resources and methods adopted or to be
U
T adopted by the Contractor;
C
A
T
R (b) a programme for its execution and the Contractor’s proposal for
N
O any necessary modifications (if any) to the Programme according to
C
R
O
Sub-Clause 8.3 [Programme] and to the Time for Completion; and
F
T
O (c) the Contractor’s proposal for adjustment to the Contract Price by
N
- valuing the Variation in accordance with Clause 12 [Measurement
m
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la
p identification of any estimated quantities and, if the Contractor incurs
is
x
N
e or will incur Cost as a result of any necessary modification to the Time
is
x
e
for Completion, shall show the additional payment (if any) to which
L
e
th the Contractor considers that the Contractor is entitled). If the Parties
in have agreed to the omission of any work which is to be carried out
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n by others, the Contractor’s proposal may also include the amount of
o
ti
b
ir
u any loss of profit and other losses and damages suffered (or to be
t
is
d
suffered) by the Contractor as a result of the omission.
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te Thereafter, the Contractor shall submit any further particulars that the
irc
t
s
re Engineer may reasonably require.
is
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e
m
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The Engineer shall then proceed under Sub-Clause 3.7 [ Agreement or
o
d Determination] to agree or determine:
is
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T
Each Statement that includes a Provisional Sum shall also include all
applicable invoices, vouchers and accounts or receipts in substantiation of
the Provisional Sum.
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fi. 13.5
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T
w Daywork If a Daywork Schedule is not included in the Contract, this Sub-Clause shall
A
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L
not apply.
A
S
R
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F For work of a minor or incidental nature, the Engineer may instruct that a
L
N
A Variation shall be executed on a daywork basis. The work shall then be valued
I
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O
in accordance with the Daywork Schedule, and the following procedure shall
- apply.
E
L
B
A
T
IN Before ordering Goods for such work (other than any Goods priced in the
R
P
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Daywork Schedule), the Contractor shall submit one or more quotations from
O
N the Contractor’s suppliers and/or subcontractors to the Engineer. Thereafter,
D
N
A
the Engineer may instruct the Contractor to accept one of these quotations
E
S (but such an instruction shall not be taken as an instruction under Sub-Clause
U
C
T 5.2 [Nominated Subcontractors]). If the Engineer does not so instruct the
A
T
R Contractor within 7 days of receiving the quotations, the Contractor shall be
N
O
C
entitled to accept any of these quotations at the Contractor’s discretion.
R
O
F
T
O
Except for any items for which the Daywork Schedule specifies that payment
N
- is not due, the Contractor shall deliver each day to the Engineer accurate
m
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fto statements in duplicate (and one electronic copy), which shall include
la
p records (as described under Sub-Clause 6.10 [Contractor’s Records]) of the
is
x
N
e resources used in executing the previous day’s work.
is
x
e
L
e
th One copy of each statement shall, if correct and agreed, be signed by the
in
h Engineer and promptly returned to the Contractor. If not correct or agreed, the
it
n
w Engineer shall proceed under Sub-Clause 3.7 [ Agreement or Determination]
o
ti
b
u to agree or determine the resources (and for the purpose of Sub-Clause
ir
t
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d
3.7.3 [Time limits], the date the works which are the subject of the Variation
r
fo under this Sub-Clause are completed by the Contractor shall be the date of
d
te commencement of the time limit for agreement under Sub-Clause 3.7.3).
irc
t
s
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is
t
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In the next Statement, the Contractor shall then submit priced statements
e
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of the agreed or determined resources to the Engineer, together with all
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d applicable invoices, vouchers and accounts or receipts in substantiation of
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13.6
E Adjustments for
C
N
A Changes in Laws Subject to the following provisions of this Sub-Clause, the Contract Price
D
I
U shall be adjusted to take account of any increase or decrease in Cost
G
resulting from a change in:
(a) the Laws of the Country (including the introduction of new Laws and
the repeal or modification of existing Laws);
S (b) the judicial or official governmental interpretation or implementation of
M
R the Laws referred to in sub-paragraph (a) above;
O
F
(c) any permit, permission, license or approval obtained by the Employer
or the Contractor under sub-paragraph (a) or (b), respectively, of
Sub-Clause 1.13 [Compliance with Laws]; or
(d) the requirements for any permit, permission, licence and/or approval
to be obtained by the Contractor under sub-paragraph (b) of
rg Sub-Clause 1.13 [Compliance with Laws],
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.
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fi.
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made and/or officially published after the Base Date, which affect the
w
w Contractor in the performance of obligations under the Contract. In
T
A
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this Sub-Clause “change in Laws” means any of the changes under
L
A
S sub-paragraphs (a), (b), (c) and/or (d) above.
R
O
F
L
A If the Contractor suffers delay and/or incurs an increase in Cost as a result of
NI
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any change in Laws, the Contractor shall be entitled subject to Sub-Clause
O
- 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such
E
L
B Cost.
A
T
IN
R
P If there is a decrease in Cost as a result of any change in Laws, the Employer
T
O
N shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
D
N
A
EOT] to a reduction in the Contract Price.
E
S
U
C
T If any adjustment to the execution of the Works becomes necessary as a
A
T
R result of any change in Laws:
N
O
C
R (i) the Contractor shall promptly give a Notice to the Engineer, or
O
F
T
O
(ii) the Engineer shall promptly give a Notice to the Contractor
N
-
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(with detailed supporting particulars).
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is
x Thereafter, the Engineer shall either instruct a Variation under Sub-Clause
e
is
N 13.3.1 [Variation by Instruction] or request a proposal under Sub-Clause
x
L
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in
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13.7
n
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Adjustments for
b
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is Changes in Cost If Schedule(s) of cost indexation are not included in the Contract, this
d
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d
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The amounts payable to the Contractor shall be adjusted for rises or falls in
is
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the cost of labour, Goods and other inputs to the Works, by the addition or
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deduction of the amounts calculated in accordance with the Schedule(s) of
c
d
o cost indexation.
is
h
T
(a) each index or price applicable on the date 49 days before the expiry
of the Time for Completion of the Works; or
(b) the current index or price
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whichever is more favourable to the Employer.
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14
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A
A
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L Contract Price and Payment
S
R
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F
L
N
A The Contract Price Unless otherwise stated in the Particular Conditions:
I
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(a) the Contract Price shall be the value of the Works in accordance
E
L
B
with Sub-Clause 12.3 [Valuation of the Works] and be subject to
A
T adjustments, additions (including Cost or Cost Plus Profit to which
IN
P
R the Contractor is entitled under these Conditions) and/or deductions
T
O
N
in accordance with the Contract;
D
N
A
(b) the Contractor shall pay all taxes, duties and fees required to be paid
E by the Contractor under the Contract, and the Contract Price shall
S
U
C
T not be adjusted for any of these costs except as stated in Sub-Clause
A
T
R 13.6 [Adjustments for Changes in Laws];
N
O (c) any quantities which may be set out in the Bill of Quantities or other
C
R
F
O Schedule(s) are estimated quantities and are not to be taken as the
T
O actual and correct quantities:
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(i) of the Works which the Contractor is required to execute, or
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(ii) for the purposes of Clause 12 [ Measurement and Valuation]; and
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x
e (d) the Contractor shall submit to the Engineer, within 28 days after the
N
is
x
Commencement Date, a proposed breakdown of each lump sum
e
L
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th price (if any) in the Schedules. The Engineer may take account of
in the breakdown when preparing Payment Certificates, but shall not be
h
it
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n
o
ti
u
b
ir
is
t 14.2
d
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fo Advance Payment If no amount of advance payment is stated in the Contract Data, this
d
te Sub-Clause shall not apply.
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After receiving the Advance Payment Certificate, the Employer shall make
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u an advance payment, as an interest-free loan for mobilisation (and design, if
c
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is
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T
S
The Contractor shall ensure that the Advance Payment Guarantee is valid
M and enforceable until the advance payment has been repaid, but its amount
R
O may be progressively reduced by the amount repaid by the Contractor as
F
stated in the Payment Certificates.
If the terms of the Advance Payment Guarantee specify its expiry date, and
the advance payment has not been repaid by the date 28 days before the
expiry date:
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o
.
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fi.
(a) the Contractor shall extend the validity of this guarantee until the
w
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T
A (b) the Contractor shall immediately submit evidence of this extension to
E
L
A the Employer, with a copy to the Engineer; and
S
R
O
F
(c) if the Employer does not receive this evidence 7 days before the
L
A expiry date of this guarantee, the Employer shall be entitled to claim
NI
G
IR
O
under the guarantee the amount of advance payment which has not
been repaid.
-
E
L
B
A
T
IN
When submitting the Advance Payment Guarantee, the Contractor shall
R
P include an application (in the form of a Statement) for the advance payment.
T
O
N
D
N
A
14.2.2 Advance Payment Certificate
E
S
U
C
T The Engineer shall issue an Advance Payment Certificate for the advance
A
T
R payment within 14 days after:
N
O
C
R (a) the Employer has received both the Performance Security and the
O
F
T
Advance Payment Guarantee, in the form and issued by an entity
O
N
-
in accordance with Sub-Clause 4.2.1 [Contractor’s Obligations] and
m
r Sub-Clause 14.2.1 [Advance Payment Guarantee] respectively; and
fto
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p (b) the Engineer has received a copy of the Contractor’s application for
is
x
N
e the advance payment under Sub-Clause 14.2.1 [Advance Payment
is Guarantee].
x
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th 14.2.3 Repayment of Advance Payment
in
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n
ti
o The advance payment shall be repaid through percentage deductions in
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b
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t
Payment Certificates. Unless other percentages are stated in the Contract
is
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Data:
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irc
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(a) deductions shall commence in the IPC in which the total of all certified
s
re interim payments in the same currency as the advance payment
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t (excluding the advance payment and deductions and release of
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m
u
c
retention moneys) exceeds ten percent (10%) of the portion of the
o
d
is
h
T
Contractor] or Clause 18 [Exceptional Events] (as the case may be), the
whole of the balance then outstanding shall immediately become due and
payable by the Contractor to the Employer.
S
M
14.3 R
O
Application for F
Interim Payment The Contractor shall submit a Statement to the Engineer after the end of the
period of payment stated in the Contract Data (if not stated, after the end of
each month). Each Statement shall:
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(a) be in a form acceptable to the Engineer;
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ic (b) be submitted in one paper-srcinal, one electronic copy and additional
d
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w
paper copies (if any) as stated in the Contract Data; and
w
T
A (c) show in detail the amounts to which the Contractor considers that the
E
A
L Contractor is entitled, with supporting documents which shall include
S
R sufficient detail for the Engineer to investigate these amounts together
O
F
L with the relevant report on progress in accordance with Sub-Clause
A
NI 4.20 [Progress Reports].
G
IR
O
-
E
L
The Statement shall include the following items, as applicable, which shall be
B
T
A expressed in the various currencies in which the Contract Price is payable, in
IN
R the sequence listed:
P
T
O
N
D
(i) the estimated contract value of the Works executed, and the
N
A Contractor’s Documents produced, up to the end of the period of
E
S
U payment (including Variations but excluding items described in
T
C
A
sub-paragraphs (ii) to (x) below);
R
T
N (ii) any amounts to be added and/or deducted for changes in Laws
O
C
R
under Sub-Clause 13.6 [Adjustments for Changes in Laws], and for
O
F changes in Cost under Sub-Clause 13.7 [Adjustments for Changes in
T
O
N
Cost];
-
m
r (iii) any amount to be deducted for retention, calculated by applying the
fto
la
p
percentage of retention stated in the Contract Data to the total of the
is
x
e
amounts under sub-paragraphs (i), (ii) and (vi) of this Sub-Clause, until
N
is the amount so retained by the Employer reaches the limit of Retention
x
e
L
e
th Money (if any) stated in the Contract Data;
in
h
(iv) any amounts to be added and/or deducted for the advance payment
it
w and repayments under Sub-Clause 14.2 [ Advance Payment];
n
o
ti
b
ir
u (v) any amounts to be added and/or deducted for Plant and Materials
t
is
d
under Sub-Clause 14.5 [Plant and Materials intended for the Works];
r
fo (vi) any other additions and/or deductions which have become due under
d
te
irc
t
the Contract or otherwise, including those under Sub-Clause 3.7
s
re [Agreement or Determination];
is
t
n
e (vii) any amounts to be added for Provisional Sums under Sub-Clause
m
u
c
o
13.4 [Provisional Sums];
d
is
h
T
14.4
E
C Schedule of Payments If the Contract includes a Schedule of Payments specifying the instalments
N
A in which the Contract Price will be paid then, unless otherwise stated in this
D
I
U Schedule:
G
(a) the as
instalments quoted
the estimated in the Schedule
contract values for of
thePayments
purposesshall be treated
of sub-paragraph
(i) of Sub-Clause 14.3 [Application for Interim Payment];
S
M
(b) Sub-Clause 14.5 [ Plant and Materials intended for the Works] shall
R
O not apply; and
F
(c) if:
(i) these instalments are not defined by reference to the actual
progress achieved in the execution of the Works; and
(ii) actual progress is found by the Engineer to differ from that on
which the Schedule of Payments was based,
rg
o
.
ic
d
fi.
then the Engineer may proceed under Sub-Clause 3.7 [Agreement or
w
w Determination] to agree or determine revised instalments (and for the
w
T
A
purpose of Sub-Clause 3.7.3 [Time limits] the date when the difference
E
A
L under sub-paragraph (ii) above was found by the Engineer shall be the date
S
R
of commencement of the time limit for agreement under Sub-Clause 3.7.3).
O
L
F Such revised instalments shall take account of the extent to which progress
A
NI differs from that on which the Schedule of Payments was based.
G
IR
O
-
E If the Contract does not include a Schedule of Payments, the Contractor
L
B
T
A shall submit non-binding estimates of the payments which the Contractor
IN expects to become due during each period of 3 months. The first estimate
R
P
T shall be submitted within 42 days after the Commencement Date. Revised
O
N
D
estimates shall be submitted at intervals of 3 months, until the issue of the
N
A Taking-Over Certificate for the Works.
E
S
U
T
C
A 14.5
R
T
N
O
Plant and Materials
C
R intended for the Works If no Plant and/or Materials are listed in the Contract Data for payment when
O
F
T shipped and/or payment when delivered, this Sub-Clause shall not apply.
O
N
-
m
fto
r The Contractor shall include, under sub-paragraph (v) of Sub-Clause 14.3
la [Application for Interim Payment]:
p
is
x
e
N
is - an amount to be added for Plant and Materials which have been
x
e
L
e
th shipped
in or delivered
the Permanent (as the
Works; case may be) to the Site for incorporation
and
in
h
it
w - an amount to be deducted when the contract value of such Plant
n
o
ti and Materials is included as part of the Permanent Works under
u
b
ir
is
t sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim
d
fo
r Payment].
d
te
irc
t
s
re
The Engineer shall proceed under Sub-Clause 3.7 [ Agreement or
is
t Determination] to agree or determine each amount to be added for Plant
n
e
m and Materials if the following conditions are fulfilled (and for the purpose of
u
c
d
o Sub-Clause 3.7.3 [Time limits] the date these conditions are fulfilled shall be
is
h
T
(a) stating the amount which the Engineer fairly considers to be due; and
(b) including any additions and/or deductions which have become due
under Sub-Clause 3.7 [ Agreement or Determination] or under the
rg
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. Contract or otherwise,
d
fi.
w
w with detailed supporting particulars (which shall identify any difference
w
T
A
between a certified amount and the corresponding amount in the Statement
E
A
L and give the reasons for such difference).
S
R
O
L
F 14.6.2 Withholding (amounts in) an IPC
A
NI
G
IR
O
Before the issue of the Taking-Over Certificate for the Works, the Engineer
-
E
L
may withhold an IPC in an amount which would (after retention and other
B
T
A deductions) be less than the minimum amount of the IPC (if any) stated in
IN the Contract Data. In this event, the Engineer shall promptly give a Notice to
R
P
T
O
the Contractor accordingly.
N
D
N
A
E
An IPC shall not be withheld for any other reason, although:
S
U
T
C
A
(a) if any thing supplied or work done by the Contractor is not in
R
T
N
accordance with the Contract, the estimated cost of rectification or
O
C replacement may be withheld until rectification or replacement has
R
F
O been completed;
T
O
N
(b) if the Contractor was or is failing to perform any work, service or
-
m
r
obligation in accordance with the Contract, the value of this work
fto
la
or obligation may be withheld until the work or obligation has been
p
is
x
performed. In this event, the Engineer shall promptly give a Notice
e
N to the Contractor describing the failure and with detailed supporting
is
x
L
e particulars of the value withheld; and/or
e
th
in
(c) if the Engineer finds any significant error or discrepancy in the
h
it Statement or supporting documents, the amount of the IPC may
w
n
ti
o take account of the extent to which this error or discrepancy has
u
b
ir
t prevented or prejudiced proper investigation of the amounts in the
is
d
r Statement until such error or discrepancy is corrected in a subsequent
fo
d
te
Statement.
irc
t
s
re
is For each amount so withheld, in the supporting particulars for the IPC the
t
n
e
m
Engineer shall detail his/her calculation of the amount and state the reasons
u
c
o for it being withheld.
d
is
h
T
(a) the Contractor is not satisfied that this next Payment Certificate
S
includes the identified amounts; and M
R
(b) the identified amounts do not concern a matter for which the O
F
Engineer is already carrying out his/her duties under Sub-Clause 3.7
[Agreement or Determination]
the Contractor may, by giving a Notice, refer this matter to the Engineer
and Sub-Clause 3.7 [Agreement or Determination ] shall apply (and, for the
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purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives this
o
.
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d
Notice shall be the date of commencement of the time limit for agreement
fi.
w under Sub-Clause 3.7.3).
w
w
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A
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14.7
A
S
R
Payment The Employer shall pay to the Contractor:
O
F
L
N
A
I
(a) the amount certified in each Advance Payment Certificate within the
G
IR
O
period stated in the Contract Data (if not stated, 21 days) after the
- Employer receives the Advance Payment Certificate;
E
L
B (b) the amount certified in each IPC issued under:
A
T
IN
P
R (i) Sub-Clause 14.6 [ Issue of IPC], within the period stated in the
T
O
Contract Data (if not stated, 56 days) after the Engineer receives
N
D the Statement and supporting documents; or
N
A
E
S
(ii) Sub-Clause 14.13 [ Issue of FPC], within the period stated in the
U
T Contract Data (if not stated, 28 days) after the Employer receives
C
A
R
the IPC; and
T
N
O (c) the amount certified in the FPC within the period stated in the Contract
C
R
O
Data (if not stated, 56 days) after the Employer receives the FPC.
F
T
O
N
- Payment of the amount due in each currency shall be made into the bank
m
r
fto account, nominated by the Contractor, in the payment country (for this
la
p currency) specified in the Contract.
is
x
e
N
is 14.8
x
e
L
e
th Delayed Payment If the Contractor does not receive payment in accordance with Sub-Clause
in
it
h 14.7 [Payment], the Contractor shall be entitled to receive financing charges
w
n
o
compounded monthly on the amount unpaid during the period of delay.
ti
b
ir
u This period shall be deemed to commence on the expiry of the time for
t
is
d payment specified in Sub-Clause 14.7 [Payment], irrespective (in the case
r
fo of sub-paragraph (b) of Sub-Clause 14.7) of the date on which any IPC is
d
te
irc issued.
t
s
re
is
t
n
e
Unless otherwise stated in the Contract Data, these financing charges shall
m
u
c
be calculated at the annual rate of three percent (3%) above:
o
d
is
h
T
(a) the Works, the Contractor shall include the first half of the Retention
Money in a Statement; or
rg (b) for a Section, the Contractor shall include the relevant percentage of
o
.
ic
d
fi. the first half of the Retention Money in a Statement.
w
w
w
T
A After the latest of the expiry dates of the Defects Notification Periods,
E
L
A the Contractor shall include the second half of the Retention Money in a
S
R
O
Statement promptly after such latest date. If a Taking-Over Certificate was
F
L (or was deemed to have been) issued for a Section, the Contractor shall
A
NI
G
include the relevant percentage of the second half of the Retention Money in
IR
O a Statement promptly after the expiry date of the DNP for the Section.
-
E
L
B
T
A In the next IPC after the Engineer receives any such Statement, the Engineer
IN
P
R shall certify the release of the corresponding amount of Retention Money.
T
O However, when certifying any release of Retention Money under Sub-Clause
N
N
D 14.6 [Issue of IPC], if any work remains to be executed under Clause
A
E
11 [Defects after Taking Over], the Engineer shall be entitled to withhold
S
U
T
certification of the estimated cost of this work until it has been executed.
C
A
R
T
N
O
The relevant percentage for each Section shall be the percentage value of
C
R
the Section as stated in the Contract Data. If the percentage value of a
O
F
T
Section is not stated in the Contract Data, no percentage of either half of the
O
N Retention Money shall be released under this Sub-Clause in respect of such
-
m
r Section.
fto
la
p
is 14.10
x
e
N
is
x
Statement at Completion Within 84 days after the Date of Completion of the Works, the Contractor
e
L
e
th shall submit to the Engineer a Statement at completion with supporting
in documents, in accordance with Sub-Clause 14.3 [Application for Interim
h
it
w Payment], showing:
n
o
ti
u
b
ir
t (a) the value of all work done in accordance with the Contract up to the
is
d
r Date of Completion of the Works
fo
d
te (b) any further sums which the Contractor considers to be due at the
irc
t
s Date of Completion of the Works; and
re
is
t
n
(c) an estimate of any other amounts which the Contractor considers
e
m
u
have or will become due after the Date of Completion of the Works
c
o
d under the Contract or otherwise. These estimated amounts shall be
is
h
T
14.11
Final Statement Submission by the Contractor of any Statement under the following
S
provisions of this Sub-Clause shall not be delayed by reason of any referral M
R
under Sub-Clause 21.4 [Obtaining DAAB’s Decision] or any arbitration under O
F
Sub-Clause 21.6 [Arbitration].
Within 56 days after the issue of the Performance Certificate, the Contractor
rg shall submit to the Engineer, a draft final Statement.
o
.
ic
d
fi.
w
w
w This Statement shall:
T
A
E
A
L (a) be in the same form as Statements previously submitted under
S
R Sub-Clause 14.3 [Application for Interim Payment];
O
F
L
A
(b) be submitted in one paper-srcinal, one electronic copy and additional
NI
G
paper copies (if any) as stated in the Contract Data; and
IR
O
- (c) show in detail, with supporting documents:
E
L
B
A
(i) the value of all work done in accordance with the Contract;
T
IN (ii) any further sums which the Contractor considers to be due at
R
P
T the date of the issue of the Performance Certificate, under the
O
N
D
Contract or otherwise; and
N
A
E
(iii) an estimate of any other amounts which the Contractor considers
S
U have or will become due after the issue of the Performance
T
C
A Certificate, under the Contract or otherwise, including estimated
R
T
N amounts, by reference to the matters described in sub-paragraphs
O
C
R
(c) (i) to (iii) of Sub-Clause 14.10 [Statement at Completion].
O
F These estimated amounts shall be shown separately (to those of
T
O
N
sub-paragraphs (i) and (ii) above).
-
m
r
fto
la Except for any amount under sub-paragraph (iii) above, if the Engineer
p
is
x disagrees with or cannot verify any part of the draft final Statement, the
e
is
N Engineer shall promptly give a Notice to the Contractor. The Contractor shall
x
L
e then submit such further information as the Engineer may reasonably require
e
th within the time stated in this Notice, and shall make such changes in the
in
h
it draft as may be agreed between them.
w
n
o
ti
u
b
ir
t
14.11.2 Agreed Final Statement
is
d
r
fo
d
te
If there are no amounts under sub-paragraph (iii) of Sub-Clause 14.11.1
irc
t
s
[Draft Final Statement], the Contractor shall then prepare and submit to
re
is
the Engineer the final Statement as agreed (the “Final Statement” in these
t
n
e Conditions).
m
u
c
o
d
is
h
T
14.12
Discharge When submitting the Final Statement or the Partially Agreed Final Statement
S
M
(as the case may be), the Contractor shall submit a discharge which confirms
R
O that the total of such Statement represents full and final settlement of all
F
moneys due to the Contractor under or in connection with the Contract.
This discharge may state that the total of the Statement is subject to any
payment that may become due in respect of any Dispute for which a DAAB
proceeding or arbitration is in progress under Sub-Clause 21.6 [Arbitration]
and/or that it becomes effective after the Contractor has received:
rg
o
.
ic (a) full payment of the amount certified in the FPC; and
d
fi.
w
w
(b) the Performance Security.
w
T
A
E
L If the Contractor fails to submit this discharge, the discharge shall be deemed
A
S
R
to have been submitted and to have become effective when the conditions
O
L
F of sub-paragraphs (a) and (b) have been fulfilled.
A
NI
G
IR
O
A discharge under this Sub-Clause shall not affect either Party’s liability
-
E or entitlement in respect of any Dispute for which a DAAB proceeding or
L
B
A arbitration is in progress under Clause 21 [Disputes and Arbitration].
T
IN
R
P
T 14.13
O
N
N
D Issue of FPC Within 28 days after receiving the Final Statement or the Partially Agreed
A
E Final Statement (as the case may be), and the discharge under Sub-Clause
S
U
T
14.12 [Discharge], the Engineer shall issue to the Employer (with a copy to
C
A the Contractor), the Final Payment Certificate which shall state:
R
T
N
O
C (a) the amount which the Engineer fairly considers is finally due, including
R
F
O any additions and/or deductions which have become due under
T
O
N
Sub-Clause 3.7 [Agreement or Determination] or under the Contract
-
m
or otherwise; and
r
fto
la
p
(b) after giving credit to the Employer for all amounts previously paid by
is the Employer and for all sums to which the Employer is entitled, and
x
e
N
is
after giving credit to the Contractor for all amounts (if any) previously
x
L
e paid by the Contractor and/or received by the Employer under the
e
th Performance Security, the balance (if any) due from the Employer to
in
h
it
w
the Contractor or from the Contractor to the Employer, as the case
n
ti
o may be.
u
b
ir
t
is
d
r If the Contractor has not submitted a draft final Statement within the time
fo
d
te
specified under Sub-Clause 14.11.1 [ Draft Final Statement], the Engineer
irc
t
s
shall request the Contractor to do so. Thereafter, if the Contractor fails to
re
is
submit a draft final Statement within a period of 28 days, the Engineer shall
t
n issue the FPC for such an amount as the Engineer fairly considers to be due.
e
m
u
c
o
d
is
h
T
14.14
Cessation of
Employer’s Liability The Employer shall not be liable to the Contractor for any matter or thing
S
under or in connection with the Contract or execution of the Works, except M
R
to the extent that the Contractor shall have included an amount expressly for O
F
it in:
th
e
(ii) payments and deductions under Sub-Clause 13.4 [ Provisional
in
h
Sums] and Sub-Clause 13.6 [ Adjustments for Changes in Laws]
it
n
w shall be made in the applicable currencies and proportions; and
o
ti
b
ir
u (iii) other payments and deductions under sub-paragraphs (i) to (iv) of
t
is
d Sub-Clause 14.3 [Application for Interim Payment] shall be made
r
fo in the currencies and proportions specified in sub-paragraph (a)
d
te
irc (i) above;
t
s
re (b) whenever an adjustment is agreed or determined under Sub-Clause
is
t
n
e
13.2 [Value Engineering] or Sub-Clause 13.3 [Variation Procedure],
m
u
c the amount payable in each of the applicable currencies shall be
o
d
is
h
T
ic
d
fi.
rg
w
o
.
15.1
15
Termination by Employer
Notice to Correct If the Contractor fails to carry out any obligation under the Contract the
w
w
T Engineer may, by giving a Notice to the Contractor, require the Contractor
A
E
L to make good the failure and to remedy it within a specified time (“Notice to
A
S
R
Correct” in these Conditions).
O
F
L
A
NI
The Notice to Correct shall:
G
IR
O
- (a) describe the Contractor’s failure;
E
L
B
A (b) state the Sub-Clause and/or provisions of the Contract under which
T
IN
R
the Contractor has the obligation; and
P
T
O
(c) specify the time within which the Contractor shall remedy the failure,
N
D which shall be reasonable, taking due regard of the nature of the
N
A failure and the work and/or other action required to remedy it.
E
S
U
T
C
A After receiving a Notice to Correct the Contractor shall immediately respond
R
T
N by giving a Notice to the Engineer describing the measures the Contractor
O
C
R
will take to remedy the failure, and stating the date on which such measures
O
F will be commenced in order to comply with the time specified in the Notice
T
O
N
to Correct.
-
m
r
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la The time specified in the Notice to Correct shall not imply any extension of
p
is the Time for Completion.
x
e
N
is
x
e
L
e
th 15.2
in Termination for
h
it
n
w Contractor’s Default Termination of the Contract under this Clause shall not prejudice any other
o
ti
b
u rights of the Employer under the Contract or otherwise.
ir
t
is
d
r
fo 15.2.1 Notice
d
te
irc
t
s
re The Employer shall be entitled to give a Notice (which shall state that it is
is
t
n
given under this Sub-Clause 15.2.1) to the Contractor of the Employer’s
e
m
u intention to terminate the Contract or, in the case of sub-paragraph (f), (g) or
c
o
d (h) below a Notice of termination, if the Contractor:
is
h
T
(c) leave the Site and, if the Contractor does not do so, the Employer
shall have the right to expel the Contractor from the Site.
rg The Engineer shall issue a Payment Certificate for the amount so agreed or
o
.
ic
d
determined, without the need for the Contractor to submit a Statement.
fi.
w
w
w
T 15.7
A
E
A
L Payment after Termination
S
R
O
for Employer’s Convenience The Employer shall pay the Contractor the amount certified in the Payment
F
L
A
Certificate under Sub-Clause 15.6 [Valuation after Termination for Employer’s
NI
G Convenience] within 112 days after the Engineer receives the Contractor’s
IR
O
-
submission under that Sub-Clause.
E
L
B
A
T
IN
R
16
P
T
O
N
N
A
D
Suspension and Termination by Contractor
E
S
U 16.1
T
C
A Suspension by Contractor If:
R
T
N
O
C (a) the Engineer fails to certify in accordance with Sub-Clause 14.6 [Issue
R
F
O of IPC];
T
O (b) the Employer fails to provide reasonable evidence in accordance with
N
-
m
r Sub-Clause 2.4 [Employer’s Financial Arrangements];
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la
p (c) the Employer fails to comply with Sub-Clause 14.7 [Payment]; or
is
x
N
e (d) the Employer fails to comply with:
is
x
e (i) a binding agreement, or final and binding determination under
L
th
e
Sub-Clause 3.7 [Agreement or Determination]; or
in
it
h (ii) a decision of the DAAB under 21.4 [ Obtaining DAAB’s Decision]
w
ti
n
o (whether binding or final and binding)
u
b
ir
is
t and such failure constitutes a material breach of the Employer’s obligations
d
fo
r under the Contract,
d
te
irc
t
s
re
the Contractor may, not less than 21 days after giving a Notice to the
is Employer (which Notice shall state that it is given under this Sub-Clause
t
n
e
m
u
16.1), suspend work (or reduce the rate of work) unless and until the
c
d
o Employer has remedied such a default.
is
h
T
16.2 S
M
Termination by Contractor Termination of the Contract under this Clause shall not prejudice any other R
O
rights of the Contractor, under the Contract or otherwise. F
16.2.1 Notice
The Contractor shall be entitled to give a Notice (which shall state that it is
given under this Sub-Clause 16.2.1) to the Employer of the Contractor’s
rg
o
ic
. intention to terminate the Contract or, in the case of sub-paragraph (g)(ii), (h),
d
fi.
w
(i) or (j) below a Notice of termination, if:
w
w
T
E
A (a) the Contractor does not receive the reasonable evidence within 42
L
A
S
days after giving a Notice under Sub-Clause 16.1 [Suspension by
R
O
Contractor] in respect of a failure to comply with Sub-Clause 2.4
F
L
A
[Employer’s Financial Arrangements];
NI
G
IR
O
(b) the supporting
Engineer fails, within 56
documents, to days
issue after receiving
the relevant a Statement
Payment and
Certificate;
-
E
L
B
A
(c) the Contractor does not receive the amount due under any Payment
T
IN Certificate within 42 days after the expiry of the time stated in
R
P
T
Sub-Clause 14.7 [Payment];
O
N
D
(d) the Employer fails to comply with:
N
A
E (i) a binding agreement, or final and binding determination under
S
U
T
Sub-Clause 3.7 [Agreement or Determination]; or
C
A
R (ii) a decision of the DAAB under 21.4 [ Obtaining DAAB’s Decision]
T
N
O
(whether binding or final and binding)
C
R
F
O and such failure constitutes a material breach of the Employer’s obligations
T
O under the Contract;
N
-
m
r
fto (e) the Employer substantially fails to perform, and such failure constitutes
la
p a material breach of, the Employer’s obligations under the Contract;
is
x
e
N (f)
the Contractor does not receive a Notice of the Commencement Date
is
L
x
e under Sub-Clause 8.1 [Commencement of Works] within 84 days
e
th after receiving the Letter of Acceptance;
in
h
it (g) the Employer:
w
n
ti
o
u
(i) fails to comply with Sub-Clause 1.6 [ Contract Agreement], or
b
ir
is
t (ii) assigns the Contract without the required agreement under
d
r
fo Sub-Clause 1.7 [Assignment];
d
te (h) a prolonged suspension affects the whole of the Works as described
irc
t
s
re in sub-paragraph (b) of Sub-Clause 8.12 [Prolonged Suspension];
is
t
n
e
(i) the Employer becomes bankrupt or insolvent; goes into liquidation,
m
u
c administration, reorganisation, winding-up or dissolution; becomes
o
d
is
h
T
rg
o
ic
. If the Contractor suffers delay and/or incurs Cost during the above period of
d
fi. 14 days, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims
w
w
w For Payment and/or EOT ] to EOT and/or payment of such Cost Plus Profit.
T
A
E
L
A
S 16.3
R
O
F Contractor’s Obligations
L
A
NI After Termination After termination of the Contract under Sub-Clause 15.5 [ Termination for
G
IR
O
Employer’s Convenience], Sub-Clause 16.2 [Termination by Contractor] or
-
E Sub-Clause 18.5 [Optional Termination], the Contractor shall promptly:
L
B
A
T
IN (a) cease all further work, except for such work as may have been
R
P
T
instructed by the Engineer for the protection of life or property or for
O
N the safety of the Works. If the Contractor incurs Cost as a result of
D
N
A carrying out such instructed work the Contractor shall be entitled
E
S
U
subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to be
C
T paid such Cost Plus Profit;
A
R
T
N
(b) deliver to the Engineer all Contractor’s Documents, Plant, Materials
O
C and other work for which the Contractor has received payment; and
R
O
F (c) remove all other Goods from the Site, except as necessary for safety,
T
O
N and leave the Site.
-
m
r
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la
p
16.4
is
x
e Payment after
N
is Termination by Contractor After termination under Sub-Clause 16.2 [ Termination by Contractor], the
x
e
L
e
th Employer shall promptly:
in
h
it
w (a) pay the Contractor in accordance with Sub-Clause 18.5 [ Optional
n
o
ti
u
Termination]; and
b
ir
t
is
d
(b) subject to the Contractor’s compliance with Sub-Clause 20.2 [ Claims
r
fo For Payment and/or EOT], pay the Contractor the amount of any loss
d
te of profit or other losses and damages suffered by the Contractor as a
irc
t
s
re
result of this termination.
is
t
n
e
m
u
c
o
d
is
h
T
C
I
N
O
Care of the Works Unless the Contract is terminated in accordance with these Conditions or
otherwise, subject to Sub-Clause 17.2 [Liability for Care of the Works ] the
Contractor shall take full responsibility for the care of the Works, Goods and E
C
Contractor’s Documents from the Commencement Date until the Date of N
A
Completion of the Works, when responsibility for the care of the Works shall D
I
U
pass to the Employer. If a Taking-Over Certificate is issued (or is deemed to G
be issued) for any Section or Part, responsibility for the care of the Section
or Part shall then pass to the Employer.
rg
o
. If any loss or damage occurs to the Works, Goods or Contractor’s Documents,
ic
d
fi. during the period when the Contractor is responsible for their care, from any
w
w
w cause whatsoever except as stated in Sub-Clause 17.2 [Liability for Care of
T
A
E
the Works], the Contractor shall rectify the loss or damage at the Contractor’s
L
A
S
risk and cost, so that the Works, Goods or Contractor’s Documents (as the
R
O case may be) comply with the Contract.
F
L
A
NI
G
IR
O 17.2
- Liability for
E
L
B
A Care of the Works The Contractor shall be liable for any loss or damage caused by the
T
IN
R
Contractor to the Works, Goods or Contractor’s Documents after the issue
P
T of a Taking-Over Certificate. The Contractor shall also be liable for any loss or
O
N damage, which occurs after the issue of a Taking-Over Certificate and which
D
N
A arose from an event which occurred before the issue of this Taking-Over
E
S
U
Certificate, for which the Contractor was liable.
T
C
A
R
T
N
The Contractor shall have no liability whatsoever, whether by way of indemnity
O
C or otherwise, for loss or damage to the Works, Goods or Contractor’s
R
F
O Documents caused by any of the following events (except to the extent
T
O that such Works, Goods or Contractor’s Documents have been rejected
N
-
m
by the Engineer under Sub-Clause 7.5 [ Defects and Rejection] before the
r
fto occurrence of any of the following events):
la
p
is
x
N
e (a) interference, whether temporary or permanent, with any right of way,
is light, air, water or other easement (other than that resulting from the
x
e
L
e
th Contractor’s method of construction) which is the unavoidable result
in
h
of the execution of the Works in accordance with the Contract;
it
w
n
o
(b) use or occupation by the Employer of any part of the Permanent
ti
b
ir
u Works, except as may be specified in the Contract;
t
is
d
r
(c) fault, error, defect or omission in any element of the design of the
fo
d Works by the Employer or which may be contained in the Specification
te
irc and Drawings (and which an experienced contractor exercising due
t
s
re care would not have discovered when examining the Site and the
is
t
n
e
Specification and Drawings before submitting the Tender), other
m
u
c than design carried out by the Contractor in accordance with the
o
d
is Contractor’s obligations under the Contract;
h
T
in damage
shall to the
promptly giveWorks, Goods
a Notice orEngineer.
to the Contractor’s Documents
Thereafter, the Contractor
the Contractor shall
rectify any such loss and/or damage that may arise to the extent instructed
S by the Engineer. Such instruction shall be deemed to have been given under
M
R Sub-Clause 13.3.1 [Variation by Instruction].
O
F
(i) any of the events described in sub-paragraphs (a) to (f) above, and
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(ii) a cause for which the Contractor is liable,
o
.
ic
d
fi. and the Contractor suffers a delay and/or incurs Cost from rectifying the loss
w
w
w and/or damage, the Contractor shall subject to Sub-Clause 20.2 [Claims for
T
A Payment and/or EOT] be entitled to a proportion of EOT and/or Cost Plus
E
A
L Profit to the extent that any of the above events have contributed to such
S
R delays and/or Cost.
O
F
L
A
NI
G
17.3
IR
O
-
Intellectual and Industrial
E
L
B Property Rights In this Sub-Clause, “infringement” means an infringement (or alleged
A
T infringement) of any patent, registered design, copyright, trademark, trade
IN
R
P name, trade secret or other intellectual or industrial property right relating to
T
O
N the Works; and “claim” means a third party claim (or proceedings pursuing a
D
N
A
third party claim) alleging an infringement.
E
S
U
C
T Whenever a Party receives a claim but fails to give notice to the other Party
A
T
R of the claim within 28 days of receiving it, the first Party shall be deemed to
N
O have waived any right to indemnity under this Sub-Clause.
C
R
O
F
T
O
The Employer shall indemnify and hold the Contractor harmless against and
N
- from any claim (including legal fees and expenses) alleging an infringement
m
r
fto which is or was:
la
p
is
x
e (a) an unavoidable result of the Contractor’s compliance with the
N
is
x
Specification and Drawings and/or any Variation; or
e
L
e
th (b) a result of any Works being used by the Employer:
in
it
h (i) for a purpose other than that indicated by, or reasonably to be
w
n
o
inferred from, the Contract, or
ti
u
b
ir
t
(ii) in conjunction with any thing not supplied by the Contractor,
is
d
r
unless such use was disclosed to the Contractor before the Base
fo
d Date or is stated in the Contract.
te
irc
t
s
re The Contractor shall indemnify and hold the Employer harmless against
is
t
n
e and from any other claim (including legal fees and expenses) alleging an
m
u
c
o
infringement which arises out of or in relation to:
d
is
h
T
17.4 S
M
Indemnities by Contractor The Contractor shall indemnify and hold harmless the Employer, the R
O
Employer’s Personnel, and their respective agents, against and from all F
third party claims, damages, losses and expenses (including legal fees and
expenses) in respect of:
ti
n
o (a) bodily injury, sickness, disease or death, or loss of or damage to any
u
b
ir
t
property other than the Works, which is attributable to any negligence,
is
d
r
wilful act or breach of the Contract by the Employer, the Employer’s
fo
d Personnel, or any of their respective agents; and
te
irc
t
s (b) damage to or loss of any property, real or personal (other than the
re
is Works), to the extent that such damage or loss arises out of any event
t
n
e
m
described under sub-paragraphs (a) to (f) of Sub-Clause 17.2 [Liability
u
c
o for Care of the Works].
d
is
h
T
S
M
18
R
O
F
Exceptional Events
18.1
Exceptional Events “Exceptional Event” means an event or circumstance which:
rg
(i) is beyond a Party’s control;
o
.
ic
d
fi.
(ii) the Party could not reasonably have provided against before entering
w
w into the Contract;
w
T
A (iii) having arisen, such Party could not reasonably have avoided or
E
A
L overcome; and
S
R
O (iv) is not substantially attributable to the other Party.
F
L
A
NI
G
IR
O
Anevents
Exceptional Event may comprise
or circumstances but is
provided that not limited
conditions (i) to anyabove
to (iv) of theare
following
satisfied:
-
E
L
B
T
A (a) war, hostilities (whether war be declared or not), invasion, act of
IN
P
R foreign enemies;
T
O
N
(b) rebellion, terrorism, revolution, insurrection, military or usurped power,
D
N or civil war;
A
E
S (c) riot, commotion or disorder by persons other than the Contractor’s
U
C
T Personnel and other employees of the Contractor and Subcontractors;
A
R
T
N
(d) strike or lockout not solely involving the Contractor’s Personnel and
O
C other employees of the Contractor and Subcontractors;
R
O
F (e) encountering munitions of war, explosive materials, ionising radiation
T
O
N
or contamination by radio-activity, except as may be attributable
-
m
r
to the Contractor’s use of such munitions, explosives, radiation or
fto
la
radio-activity; or
p
is
x
e
(f) natural catastrophes such as earthquake, tsunami, volcanic activity,
N
is
x
hurricane or typhoon.
e
L
e
th
in
18.2
h
it
n
w Notice of
o
ti
b
ir
u an Exceptional Event If a Party is or will be prevented from performing any obligations under the
t
is
d
Contract due to an Exceptional Event (the “affected Party” in this Clause),
r
fo then the affected Party shall give a Notice to the other Party of such an
d
te
irc Exceptional Event, and shall specify the obligations, the performance of
t
s
re which is or will be prevented (the “prevented obligations” in this Clause).
is
t
n
e
m
u
c
This Notice shall be given within 14 days after the affected Party became
o
d aware, or should have become aware, of the Exceptional Event, and
is
h
T
However, the obligations of either Party to make payments due to the other
Party under the Contract shall not be excused by an Exceptional Event. S
M
R
18.3 O
F
Duty to Minimise Delay Each Party shall at all times use all reasonable endeavours to minimise any
delay in the performance of the Contract as a result of an Exceptional Event.
If the Exceptional Event has a continuing effect, the affected Party shall give
further Notices describing the effect every 28 days after giving the first Notice
rg
ic
o
. under Sub-Clause 18.2 [ Notice of an Exceptional Event].
d
fi.
w
w
w The affected Party shall immediately give a Notice to the other Party when the
T
A
E
affected Party ceases to be affected by the Exceptional Event. If the affected
L
A
S Party fails to do so, the other Party may give a Notice to the affected Party
R
O
F
stating that the other Party considers that the affected Party’s performance
L
A is no longer prevented by the Exceptional Event, with reasons.
NI
G
IR
O
- 18.4
E
L
B
A
Consequences of
T
IN an Exceptional Event If the Contractor is the affected Party and suffers delay and/or incurs Cost
R
P
T by reason of the Exceptional Event of which he/she gave a Notice under
O
N
D
Sub-Clause 18.2 [Notice of an Exceptional Event], the Contractor shall be
N
A entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to:
E
S
U
T
C (a) EOT; and/or
A
R
T
N
(b) if the Exceptional Event is of the kind described in sub-paragraphs
O
C (a) to (e) of Sub-Clause 18.1 [Exceptional Events] and, in the case of
R
F
O sub-paragraphs (b) to (e) of that Sub-Clause, occurs in the Country,
T
O
N
payment of such Cost.
-
m
r
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la
18.5
p
is Optional Termination If the execution of substantially all the Works in progress is prevented for a
x
e
N
is
continuous period of 84 days by reason of an Exceptional Event of which
x
e
L
th
e
Notice], has
Event been
or for givenperiods
multiple under which
Sub-Clause [Notice
18.2 than
total more 140ofdays
an Exceptional
due to the
in
h
it same Exceptional Event, then either Party may give to the other Party a
w
n
ti
o Notice of termination of the Contract.
u
b
ir
t
is
d
r In this event, the date of termination shall be the date 7 days after the Not ice is
fo
d
te
received by the other Party, and the Contractor shall proceed in accordance
irc
t
s
with Sub-Clause 16.3 [Contractor’s Obligations After Termination].
re
is
t
n
e
m
After the date of termination the Contractor shall, as soon as practicable,
u
c
o submit detailed supporting particulars (as reasonably required by the
d
is
h
Engineer) of the value of the work done, which shall include:
T
N
D their contractual obligations; or
A
E
S (b) under the law governing the Contract, entitles the Parties to be
U
C
T released from further performance of the Contract,
A
R
T
N
and if the Parties are unable to agree on an amendment to the Contrac t that
O
C would permit the continued performance of the Contract, then after either
R
F
O Party gives a Notice to the other Party of such event:
T
O
N
- (i) the Parties shall be discharged from further performance, and without
m
r
fto prejudice to the rights of either Party in respect of any previous breach
la
is
p of the Contract; and
x
e
N (ii) the amount payable by the Employer to the Contractor shall be the
is
x
L
e same as would have been payable under Sub-Clause 18.5 [ Optional
th
e
Termination], and such amount shall be certified by the Engineer, as if
in
it
h the Contract had been terminated under that Sub-Clause.
w
n
o
ti
u
b
19
ir
t
is
d
r
fo
d
te
Insurance
irc
t
s
re
19.1
is
t
n General Requirements Without limiting either Party’s obligations or responsibilities under the
e
m
u
c
Contract, the Contractor shall effect and maintain all insurances for which
o
d the Contractor is responsible with insurers and in terms, both of which shall
is
h
T
If the Contractor fails to effect and keep in force any of the insurances required S
under Sub-Clause 19.2 [Insurances to be provided by the Contractor] then, M
R
and in any such case, the Employer may effect and keep in force such O
F
insurances and pay any premium as may be necessary and recover the
same from the Contractor from time to time by deducting the amount(s) so
paid from any moneys due to the Contractor or otherwise recover the same
as a debt from the Contractor. The provisions of Clause 20 [Employer’s and
Contractor’s Claims] shall not apply to this Sub-Clause.
rg
o
.
ic
d If either the Contractor or the Employer fails to comply with any condition of
fi.
w
w
w
the insurances effected under the Contract, the Party so failing to comply
T
A shall indemnify the other Party against all direct losses and claims (including
E
L
A legal fees and expenses) arising from such failure.
S
R
O
F
L
A
The Contractor shall also be responsible for the following:
NI
G
IR
O
(a) notifying the insurers of any changes in the nature, extent or
-
E
L
programme for the execution of the Works; and
B
A
T (b) the adequacy and validity of the insurances in accordance with the
IN
P
R Contract at all times during the performance of the Contract.
T
O
N
N
D The permitted deductible limits allowed in any policy shall not exceed the
A
E amounts stated in the Contract Data (if not stated, the amounts agreed with
S
U
T
the Employer).
C
A
R
T
N
O
Where there is a shared liability the loss shall be borne by each Party in
C
R proportion to each Party’s liability, provided the non-recovery from insurers
O
F
T
has not been caused by a breach of this Clause by the Contractor or the
O
N
-
Employer. In the event that non-recovery from insurers has been caused by
m
r such a breach, the defaulting Party shall bear the loss suffered.
fto
la
p
is
x
e
19.2
N
is Insurance to be provided
x
e
L
e
th by the Contractor The Contractor shall provide the following insurances:
in
h
it
w
n
o
19.2.1 The Works
ti
u
b
ir
t
is The Contractor shall insure and keep insured in the joint names of the
d
r
fo Contractor and the Employer from the Commencement Date until the date
d
te
irc
t
of the issue of the Taking-Over Certificate for the Works:
s
re
is
t
n
(a) the Works and Contractor’s Documents, together with Materials and
e
m
u
Plant for incorporation in the Works, for their full replacement value.
c
o
d
is
h
T
However, the insurance cover provided by the Contractor for the Works may
exclude any of the following:
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o
.
ic
d
fi. (i) the cost of making good any part of the Works which is defective
w
w
w (including defective material and workmanship) or otherwise does not
T
A comply with the Contract, provided that it does not exclude the cost
E
A
L of making good any loss or damage to any other part of the Works
S
R attributable to such defect or non-compliance;
O
F
L
A
(ii) indirect or consequential loss or damage including any reductions in
NI
G the Contract Price for delay;
IR
O
- (iii) wear and tear, shortages and pilferages; and
E
L
B
A
(iv) unless otherwise stated in the Contract Data, the risks arising from
T
IN Exceptional Events.
R
P
T
O
N 19.2.2 Goods
D
N
A
E
S
U The Contractor shall insure, in the joint names of the Contractor and the
T
C
A
Employer, the Goods and other things brought to Site by the Contractor
R
T
N
to the extent specified and/or amount stated in the Contract Data (if not
O
C specified or stated, for their full replacement value including delivery to Site).
R
O
F
T
O The Contractor shall maintain this insurance from the time the Goods are
N
-
m
delivered to the Site until they are no longer required for the Works.
r
fto
la
p
is
x
19.2.3 Liability for breach of professional duty
e
N
is
x
L
e To the extent, if any, that the Contractor is responsible for the design of
e
th part of the Permanent Works under Sub-Clause 4.1 [ Contractor’s General
in
it
h Obligations], and/or any other design under the Contract, and consistent with
w
n
o
the indemnities specified in Clause 17 [Care of the Works and Indemnities]:
ti
u
b
ir
t
is
d
(a) the Contractor shall effect and maintain professional indemnity
r
d
fo insurance against liability arising out of any act, error or omission by
te the Contractor in carrying out the Contractor’s design obligations in
irc
t
s
re an amount not less than that stated in the Contract Data (if not stated,
is
t
n
the amount agreed with the Employer); and
e
m
u
c (b) if stated in the Contract Data, such professional indemnity insurance
o
d
is
h
T
The Contractor shall maintain this insurance for the period specified in the E
C
Contract Data. N
A
D
I
U
19.2.4 Injury to persons and damage to property G
The Contractor shall insure, in the joint names of the Contractor and the
Employer, against liabilities for death or injury to any person, or loss of or
damage to any property (other than the Works) arising out of the performance S
of the Contract and occurring before the issue of the Performance Certificate, M
R
other than loss or damage caused by an Exceptional Event. O
F
The insurance policy shall include a cross liability clause such that the
insurance shall apply to the Contractor and the Employer as separate
insureds.
rg
o
. Such insurance shall be effected before the Contractor begins any work on
ic
d
fi. the Site and shall remain in force until the issue of the Performance Certificate
w
w
w and shall be for not less than the amount stated in the Contract Data (if not
T
A stated, the amount agreed with the Employer).
E
L
A
S
R
O
19.2.5 Injury to employees
F
L
A
NI
G The Contractor shall effect and maintain insurance against liability for claims,
IR
O
-
damages, losses and expenses (including legal fees and expenses) arising
E
L
B
out of the execution of the Works in respect of injury, sickness, disease or
A
T death of any person employed by the Contractor or any of the Contractor’s
IN
P
R other personnel.
T
O
N
N
D The Employer and the Engineer shall also be indemnified under the policy
A
E
S
of insurance, except that this insurance may exclude losses and claims to
U
T the extent that they arise from any act or neglect of the Employer or of the
C
A
R
Employer’s Personnel.
T
N
O
C
R The insurance shall be maintained in full force and effect during the whole
O
F
T time that the Contractor’s Personnel are assisting in the execution of the
O
N
-
Works. For any person employed by a Subcontractor, the insurance may be
m
r effected by the Subcontractor, but the Contractor shall be responsible for
fto
la
p
the Subcontractor’s compliance with this Sub-Clause.
is
x
e
N
is
x
19.2.6 Other insurances required by Laws and by local practice
e
L
e
th
in The Contractor shall provide all other insurances required by the Laws of
h
it
w the countries where (any part of) the Works are being carried out, at the
n
o
ti
u
Contractor’s own cost.
b
ir
t
is
d
fo
r Other insurances required by local practice (if any) shall be detailed in
d
te the Contract Data and the Contractor shall provide such insurances in
irc
t
s compliance with the details given, at the Contractor’s own cost.
re
is
t
n
e
m
u
c
o
d
is
h
T
(a) if the Employer considers that the Employer is entitled to any additional
payment from the Contractor (or reduction in the Contract Price) and/
E
C or to an extension of the DNP;
N
A
D
I (b) if the Contractor considers that the Contractor is entitled to any
U
G additional payment from the Employer and/or to EOT; or
(c) if either Party considers that he/she is entitled to another entitlement
or relief against the other Party. Such other entitlement or relief
may be of any kind whatsoever (including in connection with any
S certificate, determination, instruction, Notice, opinion or valuation
M
R of the Engineer) except to the extent that it involves any entitlement
O
F referred to in sub-paragraphs (a) and/or (b) above.
In the case of a Claim under sub-paragraph (c) above, where the other Party
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o
ic
. or the Engineer has disagreed with the requested entitlement or relief (or is
d
fi.
w
deemed to have disagreed if he/she does not respond within a reasonable
w
w time), a Dispute shall not be deemed to have arisen but the claiming Party
T
A
E
may, by giving a Notice refer the Claim to the Engineer and Sub-Clause 3.7
L
A
S [Agreement or Determination] shall apply. This Notice shall be given as soon
R
O as practicable after the claiming Party becomes aware of the disagreement
F
L
A (or deemed disagreement) and include details of the claiming Party’s case and
NI
G
IR
O
the other Party’s or the Engineer’s disagreement (or deemed disagreement).
-
E
L
B
20.2
A
T
IN Claims For Payment
R
P
T and/or EOT If either Party considers that he/she is entitled to any additional payment by
O
N the other Party (or, in the case of the Employer, a reduction in the Contract
D
N
A Price) and/or to EOT (in the case of the Contractor) or an extension of the
E
S
U DNP (in the case of the Employer) under any Clause of these Conditions or
T
C
A
otherwise in connection with the Contract, the following Claim procedure
R
T
N
shall apply:
O
C
R
F
O 20.2.1 Notice of Claim
T
O
N
-
m
r
The claiming Party shall give a Notice to the Engineer, describing the event
fto or circumstance giving rise to the cost, loss, delay or extension of DNP for
la
p
is
x
which the Claim is made as soon as practicable, and no later than 28 days
e
N after the claiming Party became aware, or should have become aware, of
is
x
L
e the event or circumstance (the “Notice of Claim” in these Conditions).
e
th
in
it
h If the claiming Party fails to give a Notice of Claim within this period of 28
w
n
o days, the claiming Party shall not be entitled to any additional payment,
ti
u
b
ir the Contract Price shall not be reduced (in the case of the Employer as the
t
is
d
r
claiming Party), the Time for Completion (in the case of the Contractor as
fo
d the claiming Party) or the DNP (in the case of the Employer as the claiming
te
irc
t
Party) shall not be extended, and the other Party shall be discharged from
s
re any liability in connection with the event or circumstance giving rise to the
is
t
n
e
Claim.
m
u
c
o
d
is
h
T
If the Engineer does not give such a Notice within this period of 14 days, E
C
the Notice of Claim shall be deemed to be a valid Notice. If the other Party N
A
disagrees with such deemed valid Notice of Claim the other Party shall give D
I
U
a Notice to the Engineer which shall include details of the disagreement. G
Thereafter, the agreement or determination of the Claim under Sub-Clause
20.2.5 [Agreement or determination of the Claim] shall include a review by
the Engineer of such disagreement.
S
If the claiming Party receives a Notice from the Engineer under this Sub-Clause M
R
and disagrees with the Engineer or considers there are circumstances which O
F
justify late submission of the Notice of Claim, the claiming Party shall include in
its fully detailed Claim under Sub-Clause 20.2.4 Fully
[ detailed claim] details of
such disagreement or why such late submission is justified (as the casemay be).
N
D to the Engineer. Such monitoring, inspection or instruction (if any) by the
A
E Engineer shall not imply acceptance of the accuracy or completeness of the
S
U
T
Contractor’s contemporary records.
C
A
R
T
N
O
20.2.4 Fully detailed Claim
C
R
O
F
T In this Sub-Clause 20.2, “fully detailed Claim” means a submission which
O
N
-
includes:
m
r
fto
la
p
(a) a detailed description of the event or circumstance giving rise to the
is Claim;
x
e
N
is
x
(b) a statement of the contractual and/or other legal basis of the Claim;
e
L
e
th (c) all contemporary records on which the claiming Party relies; and
in
it
h (d) detailed supporting particulars of the amount of additional payment
w
n
o
claimed (or amount of reduction of the Contract Price in the case of
ti
b
ir
u the Employer as the claiming Party), and/or EOT claimed (in the case
t
is of the Contractor) or extension of the DNP claimed (in the case of the
d
r
fo Employer).
d
te
irc
t
s
re Within either:
is
t
n
e
m
u
(i) 84 days after the claiming Party became aware, or should have
c
o
d become aware, of the event or circumstance giving rise to the Claim,
is
h
T
If within this time limit the claiming Party fails to submit the statement under
sub-paragraph (b) above, the Notice of Claim shall be deemed to have
E
C lapsed, it shall no longer be considered as a valid Notice, and the Engineer
N
A shall, within 14 days after this time limit has expired, give a Notice to the
D
I
U claiming Party accordingly.
G
If the Engineer does not give such a Notice within this period of 14 days,
the Notice of Claim shall be deemed to be a valid Notice. If the other Party
disagrees with such deemed valid Notice of Claim the other Party shall give
S
M
a Notice to the Engineer which shall include details of the disagreement.
R
O Thereafter, the agreement or determination of the Claim under Sub-Clause
F
20.2.5 [Agreement or determination of the Claim] shall include a review by
the Engineer of such disagreement.
If the claiming Party receives a Notice from the Engineer under this Sub-Clause
20.2.4 and if the claiming Party disagrees with such Notice or considers
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there are circumstances which justify late submission of the statement under
.
ic sub-paragraph (b) above, the fully detailed claim shall include details of the
d
fi.
w
w
claiming Party’s disagreement or why such late submission is justified (as the
w
T case may be).
A
E
L
A
S
R
If the event or circumstance giving rise to the Claim has a continuing effect,
O
L
F Sub-Clause 20.2.6 [Claims of continuing effect] shall apply.
A
NI
G
IR
O
20.2.5 Agreement or determination of the Claim
-
E
L
B
T
A After receiving a fully detailed Claim either under Sub-Clause 20.2.4 [ Fully
IN detailed Claim], or an interim or final fully detailed Claim (as the case may
R
P
T be) under Sub-Clause 20.2.6 [Claims of continuing effect], the Engineer shall
O
N
D
proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or
N
A determine:
E
S
U
T
C (a) the additional payment (if any) to which the claiming Party is entitled
A
R or the reduction of the Contract Price (in the case of the Employer as
T
N
O
C
the claiming Party); and/or
R
F
O (b) the extension (if any) of the Time for Completion (before or after its
T
O
N
expiry) under Sub-Clause 8.5 [Extension of Time for Completion] (in
-
m
the case of the Contractor as the claiming Party), or the extension (if
r
fto any) of the DNP (before its expiry) under Sub-Clause 11.3 [Extension
la
p
is
x
of Defects Notification Period] (in the case of the Employer as the
e
N claiming Party),
is
x
e
L
e
th to which the claiming Party is entitled under the Contract.
in
h
it
w If the Engineer has given a Notice under Sub-Clause 20.2.2 [Engineer’s
n
o
ti
u
initial response] and/or under Sub-Clause 20.2.4 [Fully detailed Claim],
b
ir
is
t the Claim shall nevertheless be agreed or determined in accordance with
d
fo
r this Sub-Clause 20.2.5. The agreement or determination of the Claim shall
d
te include whether or not the Notice of Claim shall be treated as a valid Notice
irc
t
s taking account of the details (if any) included in the fully detailed claim of the
re
is
t
claiming Party’s disagreement with such Notice(s) or why late submission is
n
e
m
justified (as the case may be). The circumstances which may be taken into
u
c
d
o account (but shall not be binding) may include:
is
h
T
The requirements of this Sub-Clause 20.2 are in addition to those of any other
Sub-Clause which may apply to the Claim. If the claiming Party fails to comply
S
with this or any other Sub-Clause in relation to the Claim, any additional
M payment and/or any EOT (in the case of the Contractor as the claiming Party)
R
O or extension of the DNP (in the case of the Employer as the claiming Party),
F
shall take account of the extent (if any) to which the failure has prevented or
prejudiced proper investigation of the Claim by the Engineer.
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.
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21.1
21
Disputes and Arbitration
Constitution of the DAAB Disputes shall be decided by a DAAB in accordance with Sub-Clause 21.4
A
E
A
L [Obtaining DAAB’s Decision]. The Parties shall jointly appoint the member(s)
S
R of the DAAB within the time stated in the Contract Data (if not stated, 28
O
F
L days) after the date the Contractor receives the Letter of Acceptance.
A
NI
G
IR
O
The DAAB shall comprise, as stated in the Contract Data, either one suitably
-
E
L
qualified member (the “sole member”) or three suitably qualified members
B
T
A (the “members”). If the number is not so stated, and the Parties do not agree
IN
R otherwise, the DAAB shall comprise three members.
P
T
O
N
D The sole member or three members (as the case may be) shall be selected
N
A
E
from those named in the list in the Contract Data, other than anyone who is
S
U unable or unwilling to accept appointment to the DAAB.
T
C
A
R
T
N If the DAAB is to comprise three members, each Party shall select one
O
C
R
member for the agreement of the other Party. The Parties shall consult both
O
F these members and shall agree the third member, who shall be appointed to
T
O
N act as chairperson.
-
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la The DAAB shall be deemed to be constituted on the date that the Parties
p
is and the sole member or the three members (as the case may be) of the
x
e
N
is
DAAB have all signed a DAAB Agreement.
x
e
L
e
th The terms of the remuneration of either the sole member or each of the
in
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it three members, including the remuneration of any expert whom the DAAB
w
n
ti
o consults, shall be mutually agreed by the Parties when agreeing the terms of
u
b
ir
t the DAAB Agreement. Each Party shall be responsible for paying one-half of
is
d
r this remuneration.
fo
d
te
irc
t
s
If at any time the Parties so agree, they may appoint a suitably qualified
re
is person or persons to replace any one or more members of the DAAB.
t
n
e Unless the Parties agree otherwise, a replacement DAAB member shall be
m
u
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o
appointed if a member declines to act or is unable to act as a result of death,
d
is
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T
Unless otherwise agreed by both Parties, the term of the DAAB (including E
C
the appointment of each member) shall expire either: N
A
D
I
(a) on the date the discharge shall have become, or deemed to have U
G
become, effective under Sub-Clause 14.12 [Discharge]; or
(b) 28 days after the DAAB has given its decision on all Disputes, referred
to it under Sub-Clause 21.4 [Obtaining DAAB’s Decision] before such
discharge has become effective, S
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whichever is later. R
O
F
(i) the DAAB has given its decision on all Disputes, which were referred
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. to it (under Sub-Clause 21.4 [Obtaining DAAB’s Decision]) within 224
d
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days after the date of termination; or
w
w
T (ii) the date that the Parties reach a final agreement on all matters
A
E
L
(including payment) in connection with the termination
A
S
R
O
whichever is earlier.
F
L
A
NI
G
21.2
IR
O
-
Failure to Appoint
E
L
B DAAB Member(s) If any of the following conditions apply, namely:
A
T
IN
R
P (a) if the DAAB is to comprise a sole member, the Parties fail to agree the
T
O
N
appointment of this member by the date stated in the first paragraph
N
D
of Sub-Clause 21.1 [Constitution of the DAAB]; or
A
E
S (b) if the DAAB is to comprise three persons, and if by the date stated in
U
C
T the first paragraph of Sub-Clause 21.1 [Constitution of the DAAB]:
A
R
T
N
(i) either Party fails to select a member (for agreement by the other
O
C Party);
R
O
F (ii) either Party fails to agree a member selected by the other Party;
T
O
N
and/or
-
m
r (iii) the Parties fail to agree the appointment of the third member (to
fto
la
p
act as chairperson) of the DAAB;
is
x
e (c) the Parties fail to agree the appointment of a replacement within 42
N
is days after the date on which the sole member or one of the three
x
e
L
e
th members declines to act or is unable to act as a result of death,
in
h
illness, disability, resignation, or termination of appointment; or
it
w
n (d) if, after the Parties have agreed the appointment of the member(s)
o
ti
b
ir
u or replacement, such appointment cannot be effected because
t
is
d
one Party refuses or fails to sign a DAAB Agreement with any such
r
fo member or replacement (as the case may be) within 14 days of the
d
te other Party’s request to do so,
irc
t
s
re
is
then the appointing entity or official named in the Contract Data shall, at the
t
n
e request of either or both Parties and after due consultation with both Parties,
m
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o
appoint the member(s) of the DAAB (who, in the case of sub-paragraph (d)
d
is
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T
(i) the monthly services fee and daily fee shall be as stated in the terms
of the appointment; and
E
C
N (ii) the law governing the DAAB Agreement shall be the governing law of
A
D
I the Contract defined in Sub-Clause 1.4 [Law and Language].
U
G
Each Party shall be responsible for paying one-half of the remuneration of
the appointing entity or official. If the Contractor pays the remuneration in full,
the Contractor shall include one-half of the amount of such remuneration in
S
a Statement and the Employer shall then pay the Contractor in accordance
M with the Contract. If the Employer pays the remuneration in full, the Engineer
R
O shall include one-half of the amount of such remuneration as a deduction
F
under sub-paragraph (b) of Sub-Clause 14.6.1 [ The IPC].
21.3
Avoidance of Disputes If the Parties so agree, they may jointly request (in writing, with a copy to
the Engineer) the DAAB to provide assistance and/or informally discuss and
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. attempt to resolve any issue or disagreement that may have arisen between
d
fi. them during the performance of the Contract. If the DAAB becomes aware of
w
w
w an issue or disagreement, it may invite the Parties to make such a joint request.
T
A
E
L
A
S Such joint request may be made at any time, except during the period that
R
O
F
the Engineer is carrying out his/her duties under Sub-Clause 3.7 [Agreement
L
A or Determination] on the matter at issue or in disagreement unless the Parties
NI
G
IR
O
agree otherwise.
-
E
L
B
Such informal assistance may take place during any meeting, Site visit or
A
T
IN
otherwise. However, unless the Parties agree otherwise, both Parties shall be
R
P present at such discussions. The Parties are not bound to act on any advice
T
O
N
given during such informal meetings, and the DAAB shall not be bound in any
D
N future Dispute resolution process or decision by any views or advice given
A
E
S
during the informal assistance process, whether provided orally or in writing.
U
T
C
A
T
R 21.4
N
O
C
Obtaining DAAB’s Decision If a Dispute arises between the Parties then either Party may refer the Dispute
R
O to the DAAB for its decision (whether or not any informal discussions have
F
T
O
been held under Sub-Clause 21.3 [ Avoidance of Disputes]) and the following
N
- provisions shall apply.
m
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la
p 21.4.1 Reference of a Dispute to the DAAB
is
x
e
N
is
x
e The reference of a Dispute to the DAAB (the “reference” in this Sub-Clause
L
e
th 21.4) shall:
in
h
it
n
w (a) if Sub-Clause 3.7 [ Agreement or Determination] applied to the subject
o
ti
b
u matter of the Dispute, be made within 42 days of giving or receiving
ir
t
is (as the case may be) a NOD under Sub-Clause 3.7.5 [Dissatisfaction
d
r
fo with Engineer’s determination]. If the Dispute is not referred to the
d
te
irc
DAAB within this period of 42 days, such NOD shall be deemed to
t
s
re
have lapsed and no longer be valid;
is
t
n (b) state that it is given under this Sub-Clause;
e
m
u
c (c) set out the referring Party’s case relating to the Dispute;
o
d
is
h
T
access to the Site, and appropriate facilities, as the DAAB may require for
the purposes of making a decision on the Dispute.
Unless the Contract has already been abandoned or terminated, the Parties S
M
shall continue to perform their obligations in accordance with the Contract. R
O
F
If the DAAB fails to give its decision within the period stated in Sub-Clause
21.4.3 [The DAAB’s decision], then either Party may, within 28 days after
S this period has expired, give a NOD to the other Party in accordance with
M
R sub-paragraphs (a) and (b) above.
O
F
Except as stated in the last paragraph of Sub-Clause 3.7.5Dissatisfaction
[
with Engineer’s determination], in Sub-Clause 21.7 F[ ailure to Comply with
DAAB’s Decision] and in Sub-Clause 21.8 N [ o DAAB In Place], neither Party
shall be entitled to commence arbitration of a Dispute unless a NOD in respect
of that Dispute has been given in accordance with this Sub-Clause 21.4.4.
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If the DAAB has given its decision as to a matter in Dispute to both Parties,
w
w and no NOD under this Sub-Clause 21.4.4 has been given by either Party
T
A
E
within 28 days after receiving the DAAB’s decision, then the decision shall
L
A
S become final and binding on both Parties.
R
O
F
L
A If the dissatisfied Party is dissatisfied with only part(s) of the DAAB’s decision:
NI
G
IR
O
-
(i) this part(s) shall be clearly identified in the NOD;
E
L
B (ii) this part(s), and any other parts of the decision that are affected by
A
T
IN
such part(s) or rely on such part(s) for completeness, shall be deemed
R
P to be severable from the remainder of the decision; and
T
O
N (iii) the remainder of the decision shall become final and binding on both
D
N Parties as if the NOD had not been given.
A
E
S
U
T
C
A
21.5
R
T
N Amicable Settlement Where a NOD has been given under Sub-Clause 21.4 [ Obtaining DAAB’s
O
C Decision], both Parties shall attempt to settle the Dispute amicably before
R
F
O the commencement of arbitration. However, unless both Parties agree
T
O
N
otherwise, arbitration may be commenced on or after the twenty-eighth
-
m
r
(28th) day after the day on which this NOD was given, even if no attempt at
fto
la
amicable settlement has been made.
p
is
x
e
is
N 21.6
x
e
L
th
e
Arbitration Unless
with settled amicably,
Engineer’s and subject
determination to Sub-Clause
], Sub-Clause 3.7.5
21.4.4 [ Dissatisfaction
[Dissatisfaction with
in
h
it DAAB’s decision], Sub-Clause 21.7 [Failure to Comply with DAAB’s Decision]
w
n
ti
o and Sub-Clause 21.8 [No DAAB In Place], any Dispute in respect of which
u
b
ir
t the DAAB’s decision (if any) has not become final and binding shall be finally
is
d
r settled by international arbitration. Unless otherwise agreed by both Parties:
fo
d
te
irc (a) the Dispute shall be finally settled under the Rules of Arbitration of the
t
s
re International Chamber of Commerce;
is
t
n
e
m
(b) the Dispute shall be settled by one or three arbitrators appointed in
u
c
o accordance with these Rules; and
d
is
h
T
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. Arbitration may be commenced before or after completion of the Works. The
ic
d obligations of the Parties, the Engineer and the DAAB shall not be altered by
fi.
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w
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reason of any arbitration being conducted during the progress of the Works.
T
A
E
L
A If an award requires a payment of an amount by one Party to the other
S
R
O
Party, this amount shall be immediately due and payable without any further
F
L
A
certification or Notice.
NI
G
IR
O
-
21.7
E
L
B
Failure to Comply
A
T
IN with DAAB’s Decision In the event that a Party fails to comply with any decision of the DAAB, whether
R
P
T
binding or final and binding, then the other Party may, without prejudice to
O
N any other rights it may have, refer the failure itself directly to arbitratio n under
D
N
A
Sub-Clause 21.6 [Arbitration] in which case Sub-Clause 21.4 [Obtaining
E
S
U
DAAB’s Decision] and Sub-Clause 21.5 [Amicable Settlement] shall not
C
T apply to this reference. The arbitral tribunal (constituted under Sub-Clause
A
T
R 21.6 [Arbitration]) shall have the power, by way of summary or other
N
O
C
expedited procedure, to order, whether by an interim or provisional measure
R
O
or an award (as may be appropriate under applicable law or otherwise), the
F
T
O
enforcement of that decision.
N
-
m
r
fto In the case of a binding but not final decision of the DAAB, such interim or
la
p provisional measure or award shall be subject to the express reservation that
is
x
N
e the rights of the Parties as to the merits of the Dispute are reserved until they
is
x
e
are resolved by an award.
L
e
th
in Any interim or provisional measure or award enforcing a decision of the
h
it
w
n DAAB which has not been complied with, whether such decision is binding
o
ti
b
u or final and binding, may also include an order or award of damages or other
ir
t
is
d
relief.
r
fo
d
te 21.8
irc
t
s
re No DAAB In Place If a Dispute arises between the Parties in connection with, or arising out of,
is
t
n
e
the Contract or the execution of the Works and there is no DAAB in place
m
u
c
(or no DAAB is being constituted), whether by reason of the expiry of the
o
d
is
DAAB’s appointment or otherwise:
h
T
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A
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A
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A
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is
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is
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it
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Agreement
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1 N
A
D
I
Denitions 1.1 “ General Conditions of Dispute Avoidance/Adjudication Agreement” U
or “GCs” means this document entitled “General Conditions of Dispute G
1.2 In the DAA Agreement (as defined below) and in the GCs, words and
expressions which are not otherwise defined shall have the meanings S
M
assigned to them in the Contract (as defined in the DAA Agreement). R
O
F
N
D published by FIDIC which are annexed to, and form part of, the GCs.
A
E
S
U
T 1.5 “ Informal Assistance” means the informal assistance given by the DAAB
C
A
R
to the Parties when requested jointly by the Parties under Sub-Clause 21.3
T
N
O
[Avoidance of Disputes] of the Conditions of Contract.
C
R
O
F
T
1.6 “ Term of the DAAB” means the period starting on the Effective Date (as
O
N
-
defined in Sub-Clause 2.1 below) and finishing on the date that the term of
m
r the DAAB expires in accordance with Sub-Clause 21.1 [Constitution of the
fto
la
p
DAAB] of the Conditions of Contract.
is
x
e
N
is
x
1.7 “ Notication” means a notice in writing given under the GCs, which shall
e
L
e
th be:
in
h
it
w
(a) (i) a paper-srcinal signed by the DAAB Member or the authorised
n
ti
o representative of the Contractor or of the Employer (as the case
u
b
ir
t
may be); or
is
d
fo
r (ii) an electronic srcinal generated from the system of electronic
d
te transmission agreed between the Parties and the DAAB, which
irc
t
s electronic srcinal is transmitted by the electronic address
re
is
t
uniquely assigned to the DAAB Member or each such authorised
n
e
m
representative (as the case may be);
u
c
o
d
is
h
T
(a) in the case of a sole-member DAAB, on the date when the Employer,
the Contractor and the DAAB Member have each signed (or, under
the Contract, are deemed to have signed) the DAA Agreement; or
S (b) in the case of a three-member DAAB, on the date when the Employer,
M
R the Contractor, the DAAB Member and the Other Members have
O
F each signed (or under the Contract are deemed to have signed) a
DAA Agreement.
2.2 Immediately after the Effective Date, either or both Parties shall give a
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. Notification to the DAAB Member that the DAA Agreement has come into
d
fi. effect. If the DAAB Member does not receive such a notice within 182 days
w
w
w after entering into the DAA Agreement, it shall be void and ineffective.
T
A
E
L
A
S 2.3 The employment of the DAAB Member is a personal appointment. No
R
O
F
assignment of, or subcontracting or delegation of the DAAB Member’s rights
L
A and/or obligations under the DAA Agreement is permitted.
NI
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- 3
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A
Warranties 3.1 The DAAB Member warrants and agrees that he/she is, and will remain at
T
IN all times during the Term of the DAAB, impartial and independent of the
R
P
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Employer, the Contractor, the Employer’s Personnel and the Contractor’s
O
N Personnel (including in accordance with Sub-Clause 4.1 below).
D
N
A
E
S
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3.2 If, after signing the DAA Agreement (or after he/she is deemed to have signed
T
C the DAA Agreement under the Contract), the DAAB Member becomes aware
A
R of any fact or circumstance which might:
T
N
O
C
R
O
(a) call into question his/her independence or impartiality; and/or
F
T
O (b) be, or appear to be, inconsistent with his/her warranty and agreement
N
- under Sub-Clause 3.1 above
m
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la
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the DAAB Member warrants and agrees that he/she shall immediately
is disclose this in writing to the Parties and the Other Members (if any).
x
e
N
is
x
e
L
e
th 3.3 When appointing
Member’s the DAAB
representations that Member,
he/she is: each Party relies on the DAAB
in
h
it
w
n
ti
o (a) experienced and/or knowledgeable in the type of work which the
u
b
ir
t
Contractor is to carry out under the Contract;
is
d
r (b) experienced in the interpretation of construction and/or engineering
fo
d
te
contract documentation; and
irc
t
s
re
(c) fluent in the language for communications stated in the Contract Data
is (or the language as agreed between the Parties and the DAAB).
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m
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d
is
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T
(d) not previously have acted, and shall not act, in any judicial or arbitral
capacity in relation to the Contract;
(e) have disclosed in writing to the Employer, the Contractor and the
S
Other Members (if any), before signing the DAA Agreement (or before M
R
he/she is deemed to have signed the DAA Agreement under the O
F
Contract) and to his/her best knowledge and recollection, any:
(i) existing and/or past professional or personal relationships with
any director, officer or employee of the Employer, the Contractor,
the Employer’s Personnel or the Contractor’s Personnel (including
as a dispute resolution practitioner on another project),
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. (ii) facts or circumstances which might call into question his/her
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w (iii) previous involvement in the project of which the Contract forms
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A
S
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(f) not, while a DAAB Member and for the Term of the DAAB:
O
F (i) be employed as a consultant or otherwise by, and/or
L
A
NI
G
(ii) enter into discussions or make any agreement regarding future
IR
O employment with
-
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A
the Employer, the Contractor, the Employer’s Personnel or the Contractor’s
T
IN Personnel, except as may be agreed by the Employer, the Contractor and
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P
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the Other Members (if any); and/or
O
N
D
N (g) not solicit, accept or receive (directly or indirectly) any gift, gratuity,
A
E
S
commission or other thing of value from the Employer, the Contractor,
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C
T the Employer’s Personnel or the Contractor’s Personnel, except for
A
T
R payment under the DAA Agreement.
N
O
C
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5
F
T
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General Obligations
N
-
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r
of the DAAB Member 5.1 The DAAB Member shall:
fto
la
p
is
(a) comply with the GCs, the DAAB Rules and the Conditions of Contract
x
e
N that are relevant to the DAAB’s Activities;
is
x
L
e (b) not give advice to the Employer, the Contractor, the Employer’s
e
th Personnel or the Contractor’s Personnel concerning the conduct of
in
it
h the Contract, except as required to carry out the DAAB’s Activities;
w
n
ti
o (c) ensure his/her availability during the Term of the DAAB (except in
u
b
ir
t exceptional circumstances, in which case the DAAB Member shall
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d give a Notification without delay to the Parties and the Other Members
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fo
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(if any) detailing the exceptional circumstances) for all meetings, Site
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visits, hearings and as is necessary to comply with sub-paragraph (a)
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above;
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(d) become, and shall remain for the duration of the Term of the DAAB,
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o knowledgeable about the Contract and informed about:
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6
General Obligations
S
M of the Parties 6.1 Each Party shall comply with the GCs, the DAAB Rules and the Conditions
R
O of Contract that are relevant to the DAAB’s Activities. The Employer and the
F
Contractor shall be responsible for compliance with this provision by the
Employer’s Personnel and the Contractor’s Personnel, respectively.
6.2 Each Party shall cooperate with the other Party in constituting the DAAB,
under Sub-Clause 21.1 [Constitution of the DAAB] and/or Sub-Clause 21.2
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. [Failure to Appoint DAAB Member(s)] of the Conditions of Contract, without
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A 6.3 In connection with the DAAB’s Activities, each Party shall:
L
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(a) cooperate in good faith with the DAAB; and
F
L
A (b) fulfil its duties, and exercise any right or entitlement, under the
NI
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IR
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Contract, the GCs and the DAAB Rules and/or otherwise
-
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in the manner necessary to achieve the objectives under Rule 1 of the DAAB
L
B
A Rules.
T
IN
R
P
T 6.4 The Parties, the Employer’s Personnel and the Contractor’s Personnel shall
O
N
D
not request advice from or consultation with the DAAB Member regarding
N
A the Contract, except as required for the DAAB Member to carry out the
E
S
U DAAB’s Activities.
T
C
A
R
T
N
6.5 At all times when interacting with the DAAB, each Party shall not compromise
O
C the DAAB’s warranty of independence and impartiality under Sub-Clause
R
F
O 3.1 above.
T
O
N
-
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6.6 In addition to providing documents under Rule 4.3 of the DAAB Rules, each
r
fto Party shall ensure that the DAAB Member remains informed as is necessary
la
p
is
x
to enable him/her to comply with sub-paragraph (d) of Sub-Clause 5.1
e
N above.
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th 7
in
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it Condentiality 7.1 Subject to Sub-Clause 7.4 below, the DAAB Member shall treat the details
w
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o of the Contract, all the DAAB’s Activities and the documents provided under
u
b
ir
t Rule 4.3 of the DAAB Rules as private and confidential, and shall not publish
is
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r or disclose them without the prior written consent of the Parties and the
fo
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Other Members (if any).
irc
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is 7.2 Subject to Sub-Clause 7.4 below, the Employer, the Contractor, the
t
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e Employer’s Personnel and the Contractor’s Personnel shall treat the details
m
u
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of all the DAAB’s Activities as private and confidential.
d
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7.4 If a DAAB Member is replaced under the Contract, the Parties and/or the
Other Members (if any) shall disclose details of the Contract, the documents
provided under Rule 4.3 of the DAAB Rules and previous DAAB’s Activities
(including decisions, if any) to the replacement DAAB Member as is necessary S
M
in order to: R
O
F
(a) enable the replacement DAAB Member to comply with sub-paragraph
(d) of Sub-Clause 5.1 above; and
(b) ensure consistency in the manner in which the DAAB’s Activities are
conducted following such replacement.
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. 8
d
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w The Parties’ undertaking
w
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T
A
and indemnity 8.1 The Employer and the Contractor undertake to each other and to the DAAB
E
L Member that the DAAB Member shall not:
A
S
R
O
F (a) be appointed as an arbitrator in any arbitration under the Contract;
L
A
NI (b) be called as a witness to give evidence concerning any Dispute in any
G
IR
O
arbitration under the Contract; or
-
E
L
(c) be liable for any claims for anything done or omitted in the discharge
B
T
A or purported discharge of the DAAB Member’s functions, except in
IN
R any case of fraud, gross negligence, deliberate default or reckless
P
T
O
misconduct by him/her.
N
D
N
A
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8.2 The Employer and the Contractor hereby jointly and severally indemnify and
S
U
T
hold the DAAB Member harmless against and from all damages, losses and
C
A expenses (including legal fees and expenses) resulting from any claim from
R
T
N which he/she is relieved from liability under Sub-Clause 8.1 above.
O
C
R
O
F
T
9
O
N
- Fees and Expenses 9.1 The DAAB Member shall be paid as follows, in the currency named in the
m
fto
r DAA Agreement:
la
p
is (a) a monthly fee, which shall be a fixed fee as payment in full for:
x
e
N
is
x
(i) being available on 28-days’ notice for all meetings, Site visits and
e
L
e
th hearings under the DAAB Rules (and, in the event of a request
in under Rule 3.6 of the DAAB Rules, being available for an urgent
h
it
w meeting or Site visit);
n
o
ti
b
u (ii) becoming and remaining knowledgeable about the Contract,
ir
t
is
d
informed about the progress of the Works and maintaining
r
fo a current working file of documents, in accordance with
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te sub-paragraph (d) of Clause 5.1 above;
irc
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s
re (iii) all office and overhead expenses including secretarial services,
is
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photocopying and office supplies incurred in connection with his/
m
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her duties; and
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(b) a daily fee, which shall be considered as payment in full for each day:
S
(i) or part of a day, up to a maximum of two days’ travel time in each
M direction, for the journey between the DAAB Member’s home
R
O and the Site, or another location of a meeting with the Parties
F
and/or the Other Members (if any);
(ii) spent on attending meetings and making Site visits in accordance
with Rule 3 of the DAAB Rules, and writing reports in accordance
with Rule 3.10 of the DAAB Rules;
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(iii) spent on giving Informal Assistance;
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.
ic (iv) spent on attending hearings (and, in case of a three-member
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DAAB, attending meeting(s) between the DAAB Members in
w
T accordance with sub-paragraph (a) of Rule 8.2 of the DAAB
A
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L Rules, and communicating with the Other Members), and
A
S
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preparing decisions; and
O
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L (v) spent in preparation for a hearing, and studying written
A
NI documentation and arguments from the Parties submitted in
G
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accordance with sub-paragraph (c) of Rule 7.1 of the DAAB
-
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Rules;
B
A
T (c) all reasonable expenses, including necessary travel expenses (air
IN
P
R fare in business class or equivalent, hotel and subsistence and other
T
O direct travel expenses, including visa charges) incurred in connection
N
N
D with the DAAB Member’s duties, as well as the cost of telephone
A
E calls (and video conference calls, if any, and internet access), courier
S
U
T
charges and faxes. The DAAB Member shall provide the Parties with
C
A
R
a receipt for each item of expenses;
T
N
O (d) any taxes properly levied in the Country on payments made to the
C
R DAAB Member (unless a national or permanent resident of the
O
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T Country) under this Sub-Clause 9.1.
O
N
-
m
fto
r 9.2 Subject to Sub-Clause 9.3 below, the amounts of the DAAB Member’s
la monthly fee and daily fee, under Sub-Clause 9.1 above, shall be as specified
p
is
x
e in the DAA Agreement signed (or, under the Contract, deemed to have been
N
is
x
signed) by the Parties and the DAAB Member.
e
L
e
th
in
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9.3 If the Parties and the DAAB Member have agreed all other terms of the DAA
it
w Agreement but fail to jointly agree the amount of the monthly fee or the daily
n
o
ti fee in the DAA Agreement (the “non-agreed fee” in this Sub-Clause):
u
b
ir
t
is
d
r (a) the DAA Agreement shall nevertheless be deemed to have been
fo
d
te
signed by the Parties and the DAAB Member, except that the fee
irc
t
s proposed by the DAAB Member shall only temporarily apply;
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is (b) either Party or the DAAB Member may apply to the appointing
t
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m entity or official named in the Contract Data to set the amount of the
u
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o non-agreed fee;
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10.3 At any time the Parties may jointly terminate the DAA Agreement by giving a
Notification of not less than 42 days to the DAAB Member.
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fi. 10.4 If the DAAB Member fails, without justifiable excuse, to comply with
w
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T
A or remedies, jointly terminate his/her DAA Agreement by giving a Notification
E
L
A
S
(by recorded delivery) to the DAAB Member. This notice shall take effect
R
O
when it is received by the DAAB Member.
F
L
A
NI
G 10.5 If either Party fails, without justifiable excuse, to comply with Clause 6 above,
IR
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-
the DAAB Member may, without prejudice to his/her other rights or remedies,
E terminate the DAA Agreement by giving a Notification to the Parties. This
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B
A
T notice shall take effect when received by both Parties.
IN
R
P
T
O
N
10.6 Any resignation or termination under this Clause shall be final and binding
N
D on the Parties and the DAAB Member. However, a notice given under
A
E
S
Sub-Clause 10.3 or 10.4 above by either the Employer or the Contractor,
U
T but not by both, shall be of no effect.
C
A
R
T
N
O
10.7 Subject to sub-paragraph (b) of Sub-Clause 11.5 below, in the event
C
R of resignation or termination under this Clause the DAAB Member shall
O
F
T
nevertheless be entitled to payment of any fees and/or expenses under his/
O
N
-
her DAA Agreement that remain outstanding as of the date of termination of
m
r his/her DAA Agreement.
fto
la
p
is
x
e 10.8 After resignation by the DAAB Member or termination of his/her DAA
N
is
x
Agreement under this Clause, the DAAB Member shall:
e
L
e
th (a) remain bound by his/her obligation of confidentiality under Sub-Clause
in
h
it
w
7.1 above; and
n
o
ti
u
(b) return the srcinal of any document in his/her possession to the
b
ir
is
t Party who submitted such document in connection with the DAAB’s
d
fo
r Activities, at that Party’s written request and cost.
d
te
irc
t
s 10.9 Subject to any mandatory requirements under the governing law of the
re
is
t
DAA Agreement, termination of the DAA Agreement under this Clause shall
n
e require no action of whatsoever kind by the Parties or the DAAB Member (as
m
u
c
d
o the case may be) other than as stated in this Clause.
is
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11.2 The decision issued under Rule 11 of the DAAB Rules (the “Decision on the E
C
Challenge” in the GCs) shall be final and conclusive. N
A
D
I
U
G
11.3 At any time before the Decision on the Challenge is issued, the challenged
11.4 Unless the challenged DAAB Member has resigned, or his/her DAA
Agreement has been terminated under Sub-Clause 10.3 above, the DAAB
Member and the Other Members (if any) shall continue with the DAAB’s
Activities until the Decision on the Challenge is issued.
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ic 11.5. If the Decision on the Challenge is that the challenge is successful:
d
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w
w
w (a) the challenged DAAB Member’s appointment, and his/her DAA
T
A
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Agreement, shall be deemed to have been terminated with immediate
L
A
S
effect on the date of the notification of the Decision on the Challenge by
R
O ICC;
F
L
N
A (b) the challenged DAAB Member shall not be entitled to any fees or
I
G
IR
O
expenses under his/her DAA Agreement from the date of the
- notification of the Decision on the Challenge by ICC;
E
L
B
A
(c) any decision under Sub-Clause 21.4.3 [ The DAAB’s decision] of the
T
IN
R
Conditions of Contract, given by the DAAB:
P
T
O
(i) after the challenge was referred under Rule 11 of the DAAB
N
D Rules; and
N
A
E (ii) before the resignation (if any) of the challenged DAAB Member
S
U under Sub-Clause 11.3 above, or his/her DAAB Agreement is
T
C
A
R
terminated under sub-paragraph (a) above or under Sub-Clause
T
N
O
10.3 above
C
R
O
shall become void and ineffective. In the case of a sole-member
F
T DAAB, all other DAAB’s Activities during this period shall also become
O
N
- void and ineffective. In the case of a three-member DAAB, all other
m
fto
r DAAB’s Activities during this period shall remain unaffected by the
la Decision on the Challenge except if there has been a challenge to all
p
is
x
e three members of the DAAB and such challenge is successful;
N
is
x
e
(d) the successfully challenged DAAB Member shall be removed from the
L
e
th DAAB; and
in
it
h (e) the Parties shall, without delay, appoint a replacement DAAB Member
w
n
o
in accordance with Sub-Clause 21.1 [Constitution of the DAAB] of the
ti
b
ir
u Conditions of Contract.
t
is
d
r
fo 12
d
te
irc
t
s
Disputes under
re
is
t
the DAA Agreement Any dispute arising out of or in connection with the DAA Agreement, or the
n
e
m
breach, termination or invalidity thereof, shall be finally settled by arbitration
u
d
c
o under the Rules of Arbitration of the International Chamber of Commerce
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T
E
C
N
A
D
I
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G
S
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F
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IN
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A
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A
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it
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Rule 2 M
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Avoidance of Disputes 2.1 Where Sub-Clause 21.3 [ Avoidance of Disputes] of the Conditions of Contract O
F
applies, the DAAB (in the case of a three-member DAAB, all three DAAB
Members acting together) may give Informal Assistance during discussions
at any meeting with the Parties (whether face-to-face or by telephone or by
video conference) or at any Site visit or by an informal written note to the
Parties.
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w Meetings and Site Visits 3.1 The purpose of meetings with the Parties and Site visits by the DAAB is to
T
A
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enable the DAAB to:
L
A
S
R
O
(a) become and remain informed about the matters described in
F
L
A
sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs;
NI
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IR
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(b) become
issue aware of, and remain
or disagreement informed
between about, any
the Parties; andactual or potential
-
E
L
B (c) give Informal Assistance if and when jointly requested by the Parties.
A
T
IN
R
P
T
3.2 As soon as practicable after the DAAB is appointed, the DAAB shall convene
O
N a face-to-face meeting with the Parties. At this meeting, the DAAB shall
D
N
A
establish a schedule of planned meetings and Site visits in consultation with
E
S the Parties, which schedule shall reflect the requirements of Rule 3.3 below
U
C
T and shall be subject to adjustment by the DAAB in consultation with the
A
T
R Parties.
N
O
C
R
O 3.3 The DAAB shall hold face-to-face meetings with the Parties, and/or visit the
F
T
O
Site, at regular intervals and/or at the written request of either Party. The
N
- frequency of such meetings and/or Site visits shall be:
m
r
fto
la
p (a) sufficient to achieve the purpose under Rule 3.1 above;
is
x
N
e (b) at intervals of not more than 140 days unless otherwise agreed jointly
is
x
e
by the Parties and the DAAB; and
L
e
th (c) at intervals of not less than 70 days, subject to Rules 3.5 and 3.6
in
it
h below and except as required to conduct a hearing as described
w
n
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under Rule 7 below, unless otherwise agreed jointly by the Parties
ti
u
b
ir and the DAAB.
t
is
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fo
d 3.4 In addition to the face-to-face meetings referred to in Rules 3.2 and 3.3
te
irc
t
above, the DAAB may also hold meetings with the Parties by telephone or
s
re video conference as agreed with the Parties (in which case each Party bears
is
t
n
e
the risk of interrupted or faulty telephone or video conference transmission
m
u
c
and reception).
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d
is
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T
3.6 Either Party may request an urgent meeting or Site visit by the DAAB. This
E shall be a written request and shall give reasons for the urgency of the
C
N meeting or Site visit. If the DAAB agrees that such a meeting or Site visit is
A
D
I urgent, the DAAB Members shall use all reasonable endeavours to:
U
G
(a) hold a meeting with the Parties by telephone or video conference
(as agreed with the Parties under Rule 3.4 above) within 3 days after
receiving the request; and
(b) if requested and (having given the other Party opportunity at this meeting
S
M to respond to or oppose this request) the DAAB agrees that a Site visit is
R
O
F
necessary, visit the Site within 14 days after the date of this meeting.
3.7 The time of, and agenda for, each meeting and Site visit shall be set by the
DAAB in consultation with the Parties.
3.8 Each meeting and Site visit shall be attended by the Employer, the Contractor
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. and the Engineer.
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fi.
w
w
w 3.9 Each meeting and Site visit shall be co-ordinated by the Contractor in
T
A co-operation with the Employer and the Engineer. The Contractor shall
E
L
A ensure the provision of appropriate:
S
R
O
F
L (a) personal safety equipment, security controls (if necessary) and site
A
NI transport for each Site visit;
G
IR
O
-
(b) meeting room/conference facilities and secretarial and copying
E
L services for each face-to-face meeting; and
B
A
T
IN
(c) telephone conference or video conference facilities for each meeting
R
P by telephone or video conference.
T
O
N
D
N
A
3.10 At the conclusion of each meeting and Site visit and, if possible before
E
S leaving the venue of the face-to-face meeting or the Site (as the case may
U
C
T be) but in any event within 7 days, the DAAB shall prepare a report on its
A
T
R activities during the meeting or Site visit and shall send copies of this report
N
O to the Parties and the Engineer.
C
R
O
F
T Rule 4
O
N
- Communications
m
r
fto 4.1 The language to be used:
la
and Documentation
p
is
x
e (a) in all communications to and from the DAAB and the Parties (and, in
N
is
x
e the case of a three-member DAAB, between the DAAB Members);
L
e
th (b) in all reports and decisions issued by the DAAB; and
in
h
it (c) during all Site visits, meetings and hearings relating to the DAAB’s
w
n
ti
o Activities
u
b
ir
t
is
d
r shall be the language for communications defined in Sub-Clause 1.4 [Law
fo
d
te
and Language] of the Conditions of Contract, unless otherwise a greed jointly
irc
t
s
by the Parties and the DAAB.
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is
t
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4.2 All communications and/or documents sent between the DAAB and a
u
c
o Party shall simultaneously be copied to the other Party. In the case of a
d
is
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T
and any other document relevant to the performance of the Contract and/
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. or necessary to enable the DAAB to become and remain informed about the
ic
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fi. matters described in sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the
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Rule 5
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Powers of the DAAB 5.1 In addition to the powers granted to the DAAB under the Conditions of
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A Contract, the General Conditions of the DAA Agreement and elsewhere in
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these Rules, the Parties empower the DAAB to:
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(a) establish the procedure to be applied in making Site visits and/or
A
T giving Informal Assistance;
IN
R
P
T
(b) establish the procedure to be applied in giving decisions under the
O
N Conditions of Contract;
D
N
A (c) decide on the DAAB’s own jurisdiction, and the scope of any Dispute
E
S
U
referred to the DAAB;
T
C
A (d) appoint one or more experts (including legal and technical expert(s)),
R
T
N with the agreement of the Parties;
O
C
R (e) decide whether or not there shall be a hearing (or more than one
O
F
T
hearing, if necessary) in respect of any Dispute referred to the DAAB;
O
N
- (f) conduct any meeting with the Parties and/or any hearing as the DAAB
m
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r thinks fit, not being bound by any rules or procedures for the hearing
la other than those contained in the Contract and in these Rules;
p
is
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N
e (g) take the initiative in ascertaining the facts and matters required for a
is
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DAAB decision;
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th (h) make use of a DAAB Member’s own specialist knowledge, if any;
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(i) decide on the payment of financing charges in accordance with
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t (j) decide on any provisional relief such as interim or conservatory
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d
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(k) open up, review and revise any certificate, decision, determination,
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instruction, opinion or valuation of (or acceptance, agreement,
is approval, consent, disapproval, No-objection, permission, or similar
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act by) the Engineer that is relevant to the Dispute; and
c
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d (l) proceed with the DAAB’s Activities in the absence of a Party who,
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E Rule 6
C
N Disputes 6.1 If any Dispute is referred to the DAAB in accordance with Sub-Clause
A
D
I 21.4.1 [Reference of a Dispute to the DAAB] of the Conditions of Contract,
U
G the DAAB shall proceed in accordance with Sub-Clause 21.4 [Obtaining
DAAB’s Decision] of the Conditions of Contract and these DAAB Rules, or
as otherwise agreed by the Parties in writing.
S 6.2 The DAAB shall act fairly and impartially between the Parties and, taking due
M
R regard of the period under Sub-Clause 21.4.3 [ The DAAB’s decision] of the
O
F Conditions of Contract and other relevant circumstances, the DAAB shall:
(a) it shall meet in private (after the hearing, if any) in order to have
discussions and to start preparation of its decision;
(b) the DAAB Members shall use all reasonable endeavours to reach a
unanimous decision;
rg (c) if it is not possible for the DAAB Members to reach a unanimous
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the DAAB Members, who may require the minority DAAB Member
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A to prepare a separate written report (with reasons and supporting
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L particulars) which shall be issued to the Parties; and
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(d) if a DAAB Member fails to:
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A (i) attend a hearing (if any) or a DAAB Members’ meeting; or
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(ii) fulfil any required function (other than agreeing to a unanimous
E
- decision)
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A the Other Members shall nevertheless proceed to make a decision, unless:
IN
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• such failure has been caused by exceptional circumstances,
N
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of which the Other Members and the Parties have received a
N
A
E
Notification from the DAAB Member;
S
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• the DAAB Member has suspended his services under
C
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R
sub-paragraph (a) of Sub-Clause 9.7 of the GCs; or
T
N
O • otherwise agreed by the Parties in writing.
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O 8.3 If, after giving a decision, the DAAB finds (and, in the case of a three-member
T
O DAAB, they agree unanimously or by majority) that the decision contained
N
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any error:
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la
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p (a) of a typographical or clerical nature; or
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N (b) of an arithmetical nature
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e
th the chairman of the DAAB or the sole DAAB Member (as the case may be)
in
shall, within 14 days after giving this decision, advise the Parties of the error
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w and issue an addendum to its srcinal decision in writing to the Parties.
n
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t 8.4 If, within 14 days of receiving a decision from the DAAB, either Party finds
d
fo
r a typographical, clerical or arithmetical error in the decision, that Party may
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te request the DAAB to correct such error. This shall be a written request and
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s shall clearly identify the error.
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m 8.5 If, within 14 days of receiving a decision from the DAAB, either Party believes
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o that such decision contains an ambiguity, that Party may request clarification
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8.7 If the DAAB issues an addendum to its srcinal decision under Rule 8.3
or 8.6 above, such an addendum shall form part of the decision and the
period stated in sub-paragraph (c) of Sub-Clause 21.4.4 [Dissatisfaction
S
M with DAAB’s decision] of the Conditions of Contract shall be calculat ed from
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the date the Parties receive this addendum.
Rule 9
In the event of
Termination of
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DAA Agreement 9.1 If, on the date of termination of a DAAB Member’s DAA Agreement arising
.
ic from resignation or termination under Clause 10 of the GCs, the DAAB
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is dealing with any Dispute under Sub-Clause 21.4 [ Obtaining DAAB’s
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A
Decision] of the Conditions of Contract:
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S (a) the period under Sub-Clause 21.4.3 [The DAAB’s decision] of the
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F Conditions of Contract shall be temporarily suspended; and
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NI (b) when a replacement DAAB Member is appointed in accordance
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with Sub-Clause 21.1 [Constitution of the DAAB] of the Conditions
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of Contract, the full period under Sub-Clause 21.4.3 [The DAAB’s
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A decision] of the Conditions of Contract shall apply from the date of
T
IN
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this replacement DAAB Member’s appointment.
P
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O 9.2 In the case of a three-member DAAB and if one DAAB Member’s DAA
N
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D Agreement is terminated as a result of resignation or termination under
A
E Clause 10 of the GCs, the Other Members shall continue as members of the
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DAAB except that they shall not conduct any hearing or make any decision
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prior to the replacement of the DAAB Member unless otherwise agreed
T
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jointly by the Parties and the Other Members.
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Rule 10
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- Objection Procedure 10.1 The following procedure shall apply to any objection against a DAAB
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r Member:
la
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(a) the objecting Party shall, within 7 days of becoming aware of the facts
N
is
x
and/or events giving rise to the objection, give a Notification to the
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th DAAB Member of its objection. This Notification shall:
in
h
(i) state that it is given under this Rule;
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(ii) state the reason(s) for the objection;
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(iii) substantiate the objection by setting out the facts, and describing
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the events, on which the objection is based, with supporting
fo
d particulars; and
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(iv) be simultaneously copied to the other Party and the Other
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is Members;
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m (b) within 7 days after receiving a notice under sub-paragraph (a) above,
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c
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o the objected DAAB Member shall respond to the objecting Party.
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(c) within 7 days after receiving the objected DAAB Member’s response
under sub-paragraph (b) above (or, if there is no such response, after
expiry of the period of 7 days stated in sub-paragraph (b) above) E
C
the objecting Party may formally challenge a DAAB member in N
A
accordance with Rule 11 below; D
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(d) if the challenge is not referred within the period of 7 days stated in
sub-paragraph (c) above, the objecting Party shall be deemed to have
agreed to the DAAB Member remaining on the DAAB and shall not
be entitled to object and/or challenge him/her thereafter on the basis
of any of the facts and/or evidence stated in the notice given under S
M
sub-paragraph (a) above; R
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Rule 11
Challenge Procedure 11.1 If and when the objecting Party challenges a DAAB Member, within 21 days
of learning of the facts upon which the challenge is based, the provisions
of this Rule shall apply. Any challenge is to be decided by the International
Chamber of Commerce (ICC) and administered by the ICC International
rg Centre for ADR.
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11.2 The procedure for such challenge and information on associated charges to
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A be paid are set out at http://fidic.org and http://iccwbo.org.
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CONTENTS
INTRODUCTORY GUIDANCE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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CONTRACT DATA .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 3 A
D
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INTRODUCTION .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 8 G
2 The Employer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3 The Engineer .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 20
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6 Staff and Labour . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 29
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O 7 Plant, Materials and Workmanship. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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NI 8 Commencement, Delays and Suspension . . . . . . . . . . . . . . . . . . . . . . 33
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- 9 Tests on Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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T 10 Employer’s Taking Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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11 Defects after Taking Over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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A 12 Measurement and Valuation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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T 13 Variations and Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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N 14 Contract Price and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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O 15 Termination by Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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17 Care of the Works and Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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th 19 Insurance.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 46
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it 20 Employer’s and Contractor’s Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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te ADVISORY NOTES TO USERS OF FIDIC CONTRACTS WHERE THE PROJECT IS TO
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s INCLUDE BUILDING INFORMATION MODELLING SYSTEMS. . . . . . . . . . . . . . . . . . . . . . . .53
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ANNEXES FORMS OF SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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© FIDIC 2017
1
S
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Particular Conditions Part A – Contract Data
L O
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A T
R I
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N N
E O
G C
INTRODUCTORY GUIDANCE NOTES
These Introductory Guidance Notes are for use in completing the Contract Data and shall not form
E
C part of the Contract Data.
N
A
D
I
U Certain Sub-Clauses in the General Conditions require that specific information is provided in the
G
Contract Data.
The Employer should amend as appropriate and complete all data and should insert “Not Applicable”
in the space next to any Sub-Clause which the Employer does not wish to use.
S
M
R The Employer should insert “Tenderer to Complete” in the space next to any Sub-Clause which
O
F
the Employer wishes Contract Data to be completed by the tenderers. Except where indicated
“Tenderer to Complete” tenderers shall not amend the Contract Data as provided by the Employer.
All italicised text and any enclosing square brackets are for use in preparing the Contract Data and
should be deleted from the final version of the Contract Data.
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Failure by the Employer to provide the information and details required in the Contract Data could
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mean either that the documents forming the Contract are incomplete with vital information missing,
w
T or that the fall-back provisions to be found in some of the Sub-Clauses in the General Conditions
A
E
L
will automatically take effect.
A
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1.1.27.......... Defects Notification Period (DNP): ................................. ________ days N
A
D
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1.1.31.......... Employer’s name and address: ...................................... ___________________
___________________
___________________
S
M
1.1.35.......... Engineer’s name and address: ....................................... ___________________ R
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___________________ F
___________________
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ic 1.3 (a)(ii) ....... agreed methods of electronic transmission: .................. ___________________
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___________________
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___________________
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O 1.3(d) ........... address of Employer for communications: .................... ___________________
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A ___________________
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___________________
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A 1.3(d) ........... address of Engineer for communications: ...................... ___________________
IN
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R ___________________
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N ___________________
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U 1.3(d) ........... address of Contractor for communications: ................... ___________________
T
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A ___________________
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___________________
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1.4............... Contract shall be governed by the law of: ___________________
N
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la 1.4............... ruling language: ............................................................. ___________________
p
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is 1.4............... language for communications: ....................................... ___________________
x
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th
in
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h 1.8............... number of additional paper copies of Contractor’s
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o Documents .................................................................... ________
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fo 1.15............. total liability of the Contractor to the Employer under or in
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te connection with the Contract: ........................................ ________ (sum)
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n 2.1............... after receiving the Letter of Acceptance, the Contractor
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o shall be given right of access to all or part of the Site
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within: ........................................................................... ________ days
© FIDIC 2017
3
Sub-Clause Data
to
begiven Data
S
N
L O
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A T 2.4............... Employer’s financial arrangements: ................................ ___________________
R I
E D
N N ___________________
E O
G C
___________________
percent:............................................................... ________ %
currency: ............................................................. ___________________
S
M 4.7.2............ period for notification of errors in the items of reference . ________ days
R
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. 5.1(a) ........... maximum allowable accumulated value of work
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Contract Amount) .......................................................... ________ %
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5.1(b) ........... parts of the Works for which subcontracting is not
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A permitted: ...................................................................... ___________________
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___________________
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R 6.5............... normal working hours on the Site .................................. ___________________
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8.3............... number of additional paper copies of programmes ........ ________
E
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A 8.8............... Delay Damages payable for each day of delay ............... ________
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8.8............... maximum amount of Delay Damages ............................ ________
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12.2 method of measurement: .............................................. ___________________
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x 12.3 percentage profit: .......................................................... as stated under 1.1.19
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th above
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t overhead charges and profit .......................................... ________ %
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te 14.2............. total amount of Advance Payment (as a percentage of
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re Accepted Contract Amount) .......................................... ________ %
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© FIDIC 2017 Conditions of Contract for Construction
4
Sub-Clause Data
to
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14.2.3.......... percentage deductions for the repayment of the Advance A T
R I
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Payment ........................................................................ ________ % N N
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14.3(b) ......... number of additional paper copies of Statements .......... ________ N
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14.3(iii) ......... percentage of retention .................................................. ________ %
___________________
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C 14.15(f) ........ rates of exchange .......................................................... ___________________
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G 17.2(d) ......... forces of nature, the risks of which are allocated to the
S
21.1............. list of proposed members of DAAB M
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- proposed by Employer ................................................ 1. _________________ F
2. _________________
3. _________________
© FIDIC 2017
7
S
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Particular Conditions Part B – Special Provisions
L O
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A T
R I
E D
N N
E O
G C INTRODUCTION
The terms of the Conditions of Contract for Construction have been prepared by the Fédération
E Internationale des Ingénieurs-Conseils (FIDIC) and are recommended for general use for the
C
N construction of building or engineering works, where tenders are invited on an international basis.
A
D
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G Modifications to the General Conditions may well be required to account for local legal requirements,
particularly if they are to be used on domestic contracts.
Under the usual arrangements for this type of contract, the Contractor is responsible for the
S
construction, in accordance with the design of the Employer, of building and/or engineering works.
M These Conditions allow for the possibility that the Contractor may be required to design a small
R
O proportion or a minor element of the Permanent Works, but they are not intended for use where
F
significant design input by the Contractor is required or the Contractor is required to design a large
proportion or any major elements of the Permanent Works. In this latter case, it is recommended
that the Employer consider using FIDIC’s Conditions of Contract for Plant and Design-Build, Second
Edition 2017 (or, alternatively and if suitable for the circumstances of the project, FIDIC’s Conditions
of Contract for EPC/Turnkey Projects, Second Edition 2017).
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fi. The guidance hereafter is intended to assist drafters of the Special Provisions (Particular Conditions
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– Part B) by giving options for various sub-clauses where appropriate. In some cases example
T
A wording is included between lines, while in other instances only an aide-memoire is given.
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FIDIC strongly recommends that the Employer, the Contractor and all drafters of the
F
L Special Provisions take all due regard of the five FIDIC Golden Principles:
A
NI
G
IR
O GP1: The duties, rights, obligations, roles and responsibilities of all the Contract
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Participants must be generally as implied in the General Conditions, and
B
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A appropriate to the requirements of the project.
IN
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T GP2: The Particular Conditions must be drafted clearly and unambiguously.
O
N
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N
A
GP3: The Particular Conditions must not change the balance of risk/reward allocation
E
S provided for in the General Conditions.
U
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GP4: All time periods specified in the Contract for Contract Participants to perform
T
N
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their obligations must be of reasonable duration.
C
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F
O GP5: All formal disputes must be referred to a Dispute Avoidance/Adjudication Board
T
O (or a Dispute Adjudication Board, if applicable) for a provisionally binding decision
N
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as a condition precedent to arbitration.
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p These FIDIC golden principles are described and explained in the publication FIDIC’s
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e Golden Principles (http://http://fidic.org/bookshop †), and are necessary to ensure that
is modifications to the General Conditions:
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th - are limited to those necessary for the particular features of the Site and the
in
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h project, and necessary to comply with the applicable law;
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n
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ti
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u - do not change the essential fair and balanced character of a FIDIC contract; and
t
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r - the Contract remains recognisable as a FIDIC contract.
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Before incorporating any new or changed sub-clauses, the wording must be carefully checked to
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ensure that it is wholly suitable for the particular circumstances. Unless it is considered suitable,
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example wording should be amended before use.
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Each time period stated in the General Conditions is what FIDIC believes is reasonable, realistic and
achievable in the context of the obligation to which it refers, and reflects the appropriate balance E
between the interests of the Party required to perform the obligation, and the interests of the other C
N
A
Party whose rights are dependent on the performance of that obligation. If consideration is given D
I
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to changing any such stated time period in the Special Provisions (Particular Conditions – Part B), G
care should be taken to ensure that the amended time period remains reasonable, realistic and
achievable in the particular circumstances.
There are a number of Sub-Clauses in the General Conditions which require data to be provided by
S
the Employer and/or the Contractor and inserted into the Contract Data (Particular Conditions – Part M
R
A). However, there are no Sub-Clauses in the General Conditions which require data or information O
F
to be included in the Special Provisions (Particular Conditions – Part B).
Provisions found in the Contract documents under Special Provisions (Particular Conditions – Part B)
indicate that the General Conditions have been amended or supplemented.
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In describing the Conditions of Contract in the tender documents, the following text can be used:
.
ic
d
fi.
w “The Conditions of Contract comprise the “General Conditions”, which form part of
w
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A
the “Conditions of Contract for Construction” Second Edition 2017 published by the
E
A
L Fédération Internationale des Ingénieurs-Conseils (FIDIC), the Contract Data (Particular
S
R
Conditions – Part A) and the following “Special Provisions” (Particular Conditions – Part
O
L
F B), which include amendments and additions to such General Conditions.”
A
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G
IR
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The provisions of the Special Provisions (Particular Conditions – Part B) will always over-rule and
-
E
supersede the equivalent provisions in the General Conditions, and it is important that the changes are
L
B
A easily identifiable by using the same clause numbers and titles as appear in the General Conditions.
T
IN
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Furthermore, it is necessary to add a statement in the tender documents for a contract that:
P
T
O
N
D
“The provisions to be found in the Special Provisions (Particular Conditions – Part B) take
N
A precedence over the equivalent provisions found under the same Sub-Clause number(s)
E
S
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in the General Conditions, and the provisions of the Contract Data (Particular Conditions
T
C
A
– Part A) take precedence over the Special Provisions (Particular Conditions – Part B).”
R
T
N
O †
C Please Note: all web links referred to in these guidance notes are up-to-date as of the date of this
R
F
O publication but it is recommended that users of these guidance notes check online, at the time that
T
O they wish to reference the relevant document, for the most up-to-date version of the document.
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© FIDIC 2017
9
S
NOTES ON THE PREPARATION OF TENDER DOCUMENTS
N
L O
I
A T
R I
E D When preparing the tender documents and planning the tender process, Employers should read
N N
E O the publication FIDIC Procurement Procedures Guide 1st edition 2011 (http://fidic.org/books/
G C
fidic-procurement-procedures-guide-1st-ed-2011) which presents a systematic approach to the
procurement of engineering and building works for projects of all sizes and complexity, and gives
invaluable help and advice on the contents of the tender documents, and the procedures for receiving
E
C and evaluating tenders. This publication provides internationally acceptable, comprehensive,
N
A best practice procedures designed to increase the probability of receiving responsive, clear and
D
I
U competitive tenders using FIDIC forms of contract. FIDIC intends to update the FIDIC Procurement
G
Procedures Guide (planned for publication at a later date) to make specific reference to these
Conditions of Contract for Construction, Second Edition 2017.
The tender documents should be prepared by suitably qualified engineers who are familiar with the
S technical aspects of the required works and the particular requirements and contractual provisions
M
R of a construction project. Furthermore, a review by suitably-qualified lawyers is advisable.
O
F
The tender documents issued to tenderers should normally include the following:
- Letter of invitation to tender
- Instructions to Tenderers (including advice on any matters which the Employer wishes
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tenderers to include in their Tenders but which do not form part of the Specification and/
.
ic or Drawings)
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w - Form of Letter of Tender and required appendices (if any)
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A - Conditions of Contract: General and Particular
S
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F - General information and data
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- Technical information and data (including the data referred to in Sub-Clause 2.5 [Site Data
- and Items of Reference] of the General Conditions)
E
L
B
A
T - the Specification
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P
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O
- the Drawings
N
D
N
A - Schedules from the Employer
E
S
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T - details of schedules and other information required from tenderers
C
A
R
T
N - required forms of agreement, securities and guarantees.
O
C
R
O
F
T
The publication FIDIC Procurement Procedures Guide referred to above provides useful guidance
O
N
-
as to the content and format of each of the above.
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For this type of contract where the Works are normally valued by measurement, the Bill of Quantities
is
x
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will usually be the most important Schedule. A Daywork Schedule may also be necessary to cover
N
is minor works to be executed at cost. In addition, each of the tenderers should receive the data
x
e
L
e
th referredadvise
should to in Sub-Clause
them of any2.5 [Site Data
special andwhich
matters Items the
of Reference], and thethem
Employer wishes lnstructions
to take to Tenderers
into account
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it when pricing the Works but which are not to form part of the Contract.
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t When the Employer accepts the Letter of Tender, the Contract (which then comes into full force and
is
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r effect) includes these completed Schedules.
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The following Sub-Clauses make express reference to matters to be stated in the Specification and/
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is or Drawings. However, it may also be necessary under other Sub-Clauses for the Employer to give
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e specific information in the Specification (for example, under Sub-Clause 7.2 [Samples]).
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4.5 Training
4.6 Co-operation
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4.8 Health and Safety Obligations R
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4.9 Quality Management and Compliance Verification Systems
© FIDIC 2017
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include with his/her Tender. If each tenderer is to produce a tender security and/or a parent company
S
N guarantee, these requirements should be included in the Instructions to Tenderers: example forms
L O
I
A T are included at the end of this publication.
R I
E D
N N
E O
G C The Instructions to Tenderers may require the tenderer to provide information on the matters referred
to in some or all of the following Sub-Clauses:
4.3 Contractor’s Representative
E
C 6.12 Key Personnel
N
A
D
I
U 19 Insurance
G
It is important for the Parties to understand which of the documents included in the tender dossier,
and which of the documents submitted by tenderers, will form part of the Contract and therefore
have continuing effect. For example, the Instructions to Tenderers are not, by definition, a part of
S
M the Contract. They are simply instructions and information on the preparation and submission of the
R
O
F
tender, and they should not contain anything of a binding or contractual nature.
Finally, when planning the overall programme for the project, Employers must remember to allow a
realistic time for:
- tenderers to prepare and submit a responsive Tender (avoiding time that is either too short
which can reduce competition and result in inadequate submittals, or too long which can
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ic
. be wasteful to all parties involved); and
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w - the review and evaluation of tenders and the award of the Contract to the successful
T
A tenderer. This will be the minimum time which tenderers should be asked to hold their
E
L
A tenders valid and open to acceptance.
S
R
O
F
L
A
NI
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IR
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B
A
T
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P
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O
N
D
N
A
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S
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A
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T
N
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C
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T
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For example:
E
• under a number of legal systems (notably in some common law jurisdictions) the term “gross C
N
A
negligence” has no clear definition and, as such, is often avoided in legal documents; and D
I
U
G
• under English law, the term “indemnity” or “indemnify” has a specific meaning, entitling
the indemnified party to recover certain losses that may not otherwise be recoverable at
law. For example, a Contractor’s indemnity may be construed to permit the Employer to
recover losses or damages that might otherwise be considered indirect or consequential,
whereas for some events which may arise both Parties’ losses or damages are intended S
M
to be limited by Sub-Clause 1.15 [Limitation of Liability] to direct damages only. R
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F
The following references and examples show some of the Sub-Clauses in the General Conditions
which may need amending to suit the needs of the project or the requirements of the Employer. The
selected Sub-Clauses and the example wording are included as examples only. They also include,
as an aide-memoire, references to other documents such as the Specification and/or Drawings and
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the Contract Data, where particular issues may need to be addressed.
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The selected Sub-Clauses do not necessarily require changing and the example wording may not
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suit the needs of a particular project or Employer. It is the responsibility of the drafter of the Special
E
L Provisions to ensure that the selection of the Sub-Clauses and the choice of wording is appropriate
A
S
R
to the project concerned.
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A
NI
Furthermore, there may be other Sub-Clauses, not mentioned below, which need to be amended.
G
IR
O
Great care must be taken when amending the wording of Sub-Clauses from the General Conditions,
E
- or adding new provisions, to ensure that the balance of obligations and rights of the Parties are not
L
B
A
unintentionally compromised.
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© FIDIC 2017
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S
Clause 1 General Provisions
N
L O
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A T
R I Sub-Clause 1.1 Definitions
E D
N N
E O
G C The opening words of Sub-Clause 1.1 mean that the definitions apply, not only to the Conditions
of Contract, but to all the documents of the Contract. Therefore, the Employer should take care
(particularly when drafting the Specification) and the Contractor should take care (particularly when
drafting the documents of the Tender) to use terms in accordance with those as defined in the
E
C definitions.
N
A
D
I
U Regarding the definition of “Base Date” under Sub-Clause 1.1.4, if the Employer makes significant
G
data/information available to tenderers 28 days or less before the due date for submission of tenders,
then it is recommended that the Employer consider extending that date so that such information is
provided before the Base Date for the purposes of the Contract conditions (including Sub-Clause
2.5 [Site Data and Items of Reference] and Sub-Clause 4.12 [Unforeseeable Physical Conditions]).
S
M
R
O The defined term “Site”, under Sub-Clause 1.1.74, is used for a number of different purposes in
F
the General Conditions (for example: insurances and security) and so, if it is anticipated that any
item(s) of equipment, Plant, Materials and Temporary Works are to be located or stored in places
other than where the Permanent Works are to be executed, it is recommended that consideration
be given to specifying such places in the Contract (by the Employer in the Specification and/or by
the Contractor in the Tender).
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ic In general, changes should not be made to the definitions as this could have serious consequences
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on the interpretation of the documents of the Contract, particularly the Conditions of Contract.
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L However, there are limited circumstances where it may be desirable t o amend some of the definitions.
A
S For example:
R
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F
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A
NI
1.1.4 the Base Date could be defined as a particular calendar date
G
IR
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1.1.42 one particular Foreign Currency may be required
E
- 1.1.52 a different currency may be required to be the contract Local Currency
L
B
A
T
IN Also, some of the defined terms in the General Conditions may not be appropriate and may need
R
P
T changing or developing.
O
N
D
N For example, if the extent of the Site crosses the border between two countries, it is recommended
A
E
S
U
that consideration be given to the following changes:
T
C
A
R EXAMPLE 1.1.20
T
N
O
C
R “ “Country” means either xxxxx or yyyyy depending on the location to
O
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T which the reference will apply.”
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x “ “Local Currency” means the currency of ( insert name of Country) or
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N (insert name of Country).”
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Sub-Clause 1.1.82 “Tests after Completion”
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o If the Contract specifies that the Contractor shall design any part of the Permanent Works and if,
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t after such part has been taken over, the Employer wishes to carry out Tests after Completion on that
is
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r part, detailed requirements regarding these tests should be stated in the Specification.
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The Specification should describe the tests the Employer will carry out to verify that the part designed
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by the Contractor fulfils the Employer’s performance requirements, which requirements should also
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n be stated in the Specification.
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In some jurisdictions, it may be advisable to add additional definitions to clarify certain terms/ S
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expressions which appear in the General Conditions but are not defined. A typical example R
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might be: F
© FIDIC 2017
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Sub-Clause 1.6 Contract Agreement
S
N
L O
I The form of the Contract Agreement should be included in the tender documents as an
A T
R I
E D annex to the Special Provisions: an example form is included at the end of this publication (in
N N
E O the section “Sample Forms”).
G C
Additional provisions may be required if all rights to particular items of computer software (for
S
M example) are to be assigned to the Employer. These provisions should take account of the
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applicable law.
In respect of sub-paragraphs (b) and (c) of this Sub-Clause, if (in addition to the provisions of
Sub-Clause 4.18 [Protection of the Environment]) the applicable law requires the Contractor
to apply for and/or comply with particular environmental permits, these permits should be
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. stated in the Specification together with the Contractor’s obligations associated with each
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permit.
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A Sub-Clause 1.14 Joint and Several Liability
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A
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If it is likely that one or more of the tenderers will be a Joint Venture, detailed requirements for
O
L
F the JV may need to be specified in addition to those listed in the definition of “JV Undertaking”
A
NI
under Sub-Clause 1.1.47. For example, it may be desirable for each member of the JV
G
IR
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to produce a parent company guarantee: an example form is included at the end of this
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publication (in the section “Sample Forms”).
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B
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These requirements should be included in the Instructions to Tenderers. Normally the
T
IN
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Employer will wish the leader of the JV to be appointed at an early stage, providing a single
P
T point of contact thereafter, and will not wish to be involved in a dispute between the members
O
N of a JV.
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N
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The Employer should scrutinise the JV Undertaking carefully and, where relevant, check if the
T
C project’s financing institution(s) has/have to give consent.
A
R
T
N
O Sub-Clause 1.15 Limitation of Liability
C
R
O
F If it is required that the limitation of each Party’s liability to the other Party is to include certain
T
O
N “indirect or consequential loss or damage” and is also to take into account liabilities which
-
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r are to be insured under Clause 19 [Insurance], the Contract Data and this Sub-Clause may
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p
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N
is
x
EXAMPLE In the Contract Data, add the following:
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th “ 1.15 Amount of Sum A: _____
in
h Amount of Sum B: _____
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o Amount of Sum C: _____ “
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Delete Sub-Clause 1.15 and substitute:
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d “Except as stated in this Sub-Clause, neither Party shall be liable
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irc to the other Party for loss of use of any Works, loss of profit, loss
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re of any contract or for any indirect or consequential loss or damage
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which may be suffered by the other Party in connection with the
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(b) for loss of profit, loss of any contract or loss of use of any
part of the Permanent Works (after taking over under the
Contract), caused by: E
C
(i) defects attributable to the Contractor, the limit shall N
A
D
I
be the sum A stated in the Contract Data; U
G
(ii) damage to the Works caused by the Contractor, the
limit shall be the sum B stated in the Contract Data;
(iii) damage caused by the Contractor to the Employer’s
property other than the Works, the limit shall be fifty
S
percent (50%) of the sum B stated in the Contract M
R
Data; and O
F
(iv) any other matter attributable to the Contractor, the
limit shall be fifty percent (50%) of the sum A stated in
the Contract Data;
(c) for damage caused by the Contractor to the Works, the limit
shall be the required value of cover of the insurance under
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. Sub-Clause 19.2.1 [The Works];
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w property other than the Works, the limit shall be the required
A
E value of cover of the insurance under Sub-Clause 19.2.4
L
A
S [Injury to persons and damage to property];
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O
F (e) for death or injury to the Employer’s personnel or the
L
A
NI
Engineer’s personnel by a cause attributable to the
G
IR
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Contractor, the limit shall be the required value of cover of the
E
- insurance under Sub-Clause 19.2.5 [Injury to employees];
L
B
T
A (f) for the Contractor’s indemnity to the Employer for third
IN party claims under the first paragraph of Sub-Clause 17.4
R
P
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O
[Indemnities by Contractor], there shall be no limit; and
N
N
D (g) for the Contractor’s indemnity to the Employer under the
A
E second paragraph of Sub-Clause 17.4 [Indemnities by
S
U
T
Contractor], the limit shall be the required value of cover of
C
A
R
the insurance under Sub-Clause 19.2.3 [Liability for breach
T
N
O
of professional duty];
C
R (h) for all matters other than those described in sub-paragraphs
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F
T (b) to (g) above and other t han those under Sub-Clause 17.3
O
N
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[Intellectual and Industrial Property Rights], the limit shall be
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x
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N The Employer’s liability to the Contractor under or in connection
is
x
e with the Contract shall be limited as follows:
L
e
th (i) for loss of profit, loss of any contract or any other
in
it
h direct loss caused by termination of the contract
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under Sub-Clause 15.5 [Termination for Employer’s
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u Convenience] and Sub-Clause 16.2 [Termination by
t
is
d
Contractor], the limit shall be twenty percent (20%) of
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fo the Accepted Contract Amount;
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irc (ii) for damage caused by the Employer or Employer’s
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s
re Personnel to the Temporary Works or Plant and
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Materials not included in the Permanent Works, the
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© FIDIC 2017
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of cover of the insurance under Sub-Clause 19.2.1
S
N [The Works];
L O
I
A T
R I (iii) for damage caused by the Employer or Employer’s
E D
N N Personnel to the Contractor’s Equipment, Materials,
E O
G C Plant and/or Temporary Works, the limit shall be
the required value of cover of the insurance under
Sub-Clause 19.2.2 [Goods];
E (iv) for death or injury to the Contractor’s Personnel by a
C
N cause attributable to the Employer the limit shall be
A
D
I
U
the required value of cover of the insurance under
G Sub-Clause 19.2.5 [Injury to employees];
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o execution of the Works, the following provisions may be added:
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is
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EXAMPLE After the last paragraph of Sub-Clause 2.6, add:
fo
d
te “The Employer shall supply to the Contractor the Employer-Sup-
irc
t
s
re plied Materials listed in the Specification, at the time(s) stated in the
is
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Specification (if not stated, within the times that shall be required
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to enable the Contractor to proceed with execution of the Works
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d in accordance with the Programme).
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If Employer’s Equipment is listed in the Specification for the Contractor’s use in the execution
of the Works, the following provisions may be added:
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.
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EXAMPLE After the last paragraph of Sub-Clause 2.6, add:
fi.
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w
w “The Employer shall make the Employer’s Equipment listed in the
T
A
E
Specification available to the Contractor at the time(s) stated in the
L
A
S
Specification (if not stated, within the times that shall be required
R to enable the Contractor to proceed with execution of the Works in
O
F
L
A
accordance with the Programme).
NI
G
IR
O
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Unless expressly stated otherwise in the Specification, the
E
L Employer’s Equipment shall be provided for the exclusive use of
B
A
T the Contractor.
IN
R
P
T
O When made available by the Employer, the Contractor shall visually
N
N
D inspect the Employer’s Equipment and shall promptly give a
A
E Notice to the Engineer of any shortage, defect or default in them.
S
U Thereafter, the Contractor shall rectify such shortage, defect or
T
C
A
R
default to the extent instructed by the Engineer. Such instruction
T
N
O
shall be deemed to have been given under Sub-Clause 13.3.1
C
R
[Variation by Instruction].
O
F
T
O
N The Contractor shall be responsible for the Employer’s Equipment
-
m
r while it is under the Contractor’s control and/or any of the
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la
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Contractor’s Personnel is operating it, driving it, directing it, using
is it, or in control of it.
x
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N
is
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L The Contractor shall not remove from the Site any items of the
e
th Employer’s Equipment without the consent of the Employer.
in
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However, consent shall not be required for vehicles transporting
n
ti
o Goods or Contractor’s Personnel to or from the Site.”
u
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In the last paragraph of Sub-Clause 17.1 [ Responsibility for Care of
is
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r the Works] after the two instances of “Goods” add:
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“, Employer’s Equipment”,
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© FIDIC 2017
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S
Clause 3 The Engineer
N
L O
I
A T
R I Sub-Clause 3.1 The Engineer
E D
N N
E O
G C It is recommended that the engineer who was appointed by the Employer to carry out the
Employer’s design of the Works is retained by the Employer to act as the Engineer under the
Contract for services during construction of the Works.
E
C In the appointment of the Engineer, it is recommended that the Employer and the Engineer
N
A use the form of agreement FIDIC Clients/Consultants Model Services Agreement fifth Edition,
D
I
U 2017 (http://dic.org/books/clientconsultant-model-services-agreement-5th-ed-
G
2017-white-book).
S In performing the Engineer’s duties and in exercising his/her authority under the Contract, the
M Engineer should take due regard of:
R
O a) FIDIC’s Code of Ethics for consulting engineers: http://fidic.org/about-fidic/fidic-policies/
F
fidic-code-ethics†;
and
b) the duty to prevent corruption and bribery as described in the publications:
- FIDIC Guidelines for Integrity Management (FIM) in the consulting
industry, Part 1- Policies and principles first edition, 2011 (http://fidic.
rg
o
. org/books/i ntegrity-man agement-system-f ims-guidel ines-1st-ed-
ic
d
fi. 2011-part1†) and
w
w
w - FIDIC Guidelines for Integrity Management System in the Consulting
T
A Industry 1st Ed (2015) Part 2, FIMS Procedures (http://fidic.org/books/
E
L
A
S
guidelines-integrity-management-system-consulting-industry-1st-ed-
R
O
2015-part-2† ).
F
L
A
If there are any requirements for Employer’s consent, this Sub-Clause requires that these
NI
G
should be set out in the Special Provisions and so the following provisions should be added
IR
O to this Sub-Clause:
-
E
L
B
T
A EXAMPLE “The Engineer shall obtain the consent of the Employer before
IN
P
R taking action under the following Sub-Clauses of these Conditions:
T
O
N
D
(a) Sub-Clause _____________ *
N
A (b) Sub-Clause ____________ * “
E
S
U
T
C
A
* [Insert Sub-Clause number (not Sub-Clause 3.7 [Agreement
R
T
N
or Determination] – please see below) and describe the specific
O
C procedure to be followed by the Engineer, where appropriate].
R
O
F
T
O
N
- This list should be extended or reduced as necessary. If the obligation to obtain the Employer’s
m
fto
r consent only applies beyond certain limits, financial or otherwise, the example wording should
la
p be varied accordingly.
is
x
e It should be noted that any such requirement shall not be applied to any action by the Engineer
N
is
x under Sub-Clause 3.7 [ Agreement or Determination], as stated in Sub-Clause 3.2 [Engineer’s
e
L
th
e
Duties and Authority] of the General Conditions.
in
h
it
w
Sub-Clause 3.4 Delegation by the Engineer
n
o
ti
u
b
ir The Engineer’s assistants may include: design engineers, other construction professionals,
t
is technicians, inspectors and/or specialist independent engineers and/or inspectors appointed
d
r
fo to monitor and review the execution of the Works (including inspecting and/or testing items
d
te
irc
t
of Plant and/or Materials).
s
re If it is anticipated that the Engineer’s assistants may not all be fluent in the language for
is
t
n
e
communications defined in Sub-Clause 1.4 [ Law and Language], consideration should be
m
u
c
given to amending this Sub-Clause:
o
d
is
h
T
E
C
Sub-Clause 3.5 Engineer’s Instructions N
A
D
I
If the applicable law prevents the Contractor from complying with any Engineer’s instruction U
G
that may have an adverse effect on the health and safety of the Contractor’s Personnel,
sub-paragraph (b) of this Sub-Clause may be amended:
Personnel”.
If the Conditions of Contract are to allow for the giving of oral instructions by the Engineer, this
Sub-Clause may be amended:
rg
o
.
ic
d EXAMPLE At the end of Sub-Clause 3.5, add the following:
fi.
w
w
w
T
A
“If the Engineer or a delegated assistant:
E
L (a) gives an oral instruction;
A
S
R (b) receives a written confirmation of the instruction, from the
O
F
L Contractor, within two working days after giving the oral
A
NI
G
instruction; and
IR
O
-
(c) does not reply by issuing a written rejection and/or instruction
E
L within two working days after receiving the confirmation
B
A
T then the Contractor’
s confirmation shall constitute the
written instruction
IN
R
P of the Engineer or delegated assistant (as the case may be).”
T
O
N
D
N
A Sub-Clause 3.7 Agreement or Determination
E
S
U
C
T The Engineer shall not delegate any of his/her duties under this Sub-Clause to the Engineer’s
A
T
R Representative (if appointed) or to any assistant, as stated under Sub-Clause 3.4 [Delegation
N
O
C
by the Engineer].
R
O
F
T
O
The opening words of this Sub-Clause state that the Engineer “shall act neutrally between the
N
- Parties” when carrying out his/her duties under this Sub-Clause and “shall not be deemed
m
r
fto to act for the Employer”. By these statements it is intended that, although the Engineer is
la
p appointed by the Employer and acts for the Employer in most other respects under the
is
x
N
e Contract, when acting under this Sub-Clause the Engineer treats both Parties even-handedly,
is in a fair-minded and unbiased manner.
x
e
L
e
th Sub-Clause 3.8 Meetings
in
h
it
w
n
o
It may be useful to give information in the Specification of a planned timetable of meetings
ti
u
b
ir such as management meetings, site meetings, technical meetings, and progress meetings.
t
is
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r
fo
d
te
irc
t
s
re
is
t
n
e
m
u
c
o
d
is
h
T
© FIDIC 2017
21
S
Clause 4 The Contractor
N
L O
I
A T
R I Sub-Clause 4.1 Contractor’s General Obligations
E D
N N
E O
G C In some projects there may be an item or items of Temporary Works for which the Contractor will
not be fully responsible. For example, an Employer-designed temporary diversion of an existing
road or waterway may benecessary to facilitate the Works. In this case,and in order for the second
sentence of the third paragraph to apply (“Except to the extentspecified in the Contract …”), the
E
C item(s) of Temporary Works and the extent of the Employer’s responsibility should be clearly stated
N
A in the Contract (by the Employer in the Specification, or by the Contractor in the Tender).
D
I
U
G
Sub-Clause 4.2 Performance Security
The acceptable form(s) of Performance Security should be included in the tender documents.
Example forms are included at the end of this publication (in the section “Sample Forms”). They
S incorporate two sets of Uniform Rules published by the International Chamber of Commerce
M (the “ICC”, which is based at 33-43 Avenue du Président Wilson, 75116 Paris, France), which
R
O also publishes guides to these Uniform Rules.
F
These example forms and the wording of the Sub-Clause may have to be amended to comply
with applicable law.
If it is permissible that the Contractor’s Representative is not fluent in the language for
communications defined in Sub-Clause 1.4 [Law and Language], consideration should be
given to amending this Sub-Clause: E
C
N
A
D
I
EXAMPLE Insert at the end of the second paragraph of Sub-Clause 4.3: U
G
“If the Contractor’s Representative is not fluent in this language the
Contractor shall make competent interpreter(s) available during
all working hours, sufficient for the Contractor’s Representative
to properly perform his/her duties and exercise his/her authority
S
under the Contract.” M
R
O
F
If it is permissible that the Contractor’s Representative’s delegates are not all fluent in the
language for communications defined in Sub-Clause 1.4 [Law and Language], consideration
should be given to amending this Sub-Clause:
© FIDIC 2017
23
Sub-Clause 4.8 Health and Safety Obligations
S
N
L O
I If the Contractor is sharing occupation of the Site with others, it may not be appropriate for
A T
R I
E D him/her to provide some of the listed items. In these circumstances:
N N
E O
G C - this Sub-Clause should be amended to specify exactly what health and safety
obligations are the Contractor’s under the Contract, and
- the health and safety obligations which are to be fulfilled by the Employer and/or
E
C others should be stated in the Specification
N
A
D
I so that it is clear which Party is responsible for what in respect of the health and safety
U
G obligations for the Site and for the Works.
If the Employer requires the Contractor to have a Quality Manager employed on the Site, such
position should be stated in the Specification as one of the positions of Key Personnel.
If the Employer requires the Contractor to interface with others and/or with the Employer, the
rg
o
ic
. Specification should clearly describe all such interfaces and should specify the extent in which
d
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w
the Contractor shall allow for such interfaces in the QM System.
w
w
T
A Sub-Clause 4.12 Unforeseeable Physical Conditions
E
L
A
S
R
In the case of a construction project which involves significant sub-surface works, it is
O
L
F recommended that the Employer consider the allocation of the risk of encountering adverse
A
NI
sub-surface conditions when the tender documents are being prepared.
G
IR
O
-
E
If this risk is to be shared between the Parties, this Sub-Clause will need to be amended:
L
B
A
T
IN
R
EXAMPLE In Sub-Clause 4.12.4 [Delay and/or Cost], delete the words
P
T “payment of such cost” and substitute with
O
N
D
N “payment of ___ percent (___%) of such Cost (the balance of ___
A
E
S percent (___%) shall be borne by the Contractor).”
U
T
C
A
R
T
N In order to assist the Engineer in performing his duties under Sub-Clause 14.12.5 [Agreement
O
C
R
or Determination of Delay and/or Cost] in the event that Unforeseeable physical conditions are
O
F encountered by the Contractor, the Employer may consider including the physical/geological/
T
O
N sub-surface conditions that are known at the Base Date in the Contract - in the form of a
-
m
r ‘”Baseline Report”.
fto
la
p
is Sub-Clause 4.16 Transport of Goods
x
e
N
is In some cases, the Contractor may be required to get permission prior to delivery of Goods to
x
e
L
e
th the Site. In such cases those Goods for which permission is required should be stated in the
in
h
Specification, and the following wording may be added to this Sub-Clause:
it
w
n
o
ti EXAMPLE Insert at the end of Sub-Clause 4.16:
u
b
ir
t
is
d
r “The Contractor shall obtain the Engineer’s permission prior to
fo
d
te
delivering to the Site any item of Goods which is identified in the
irc
t
s
Specification as requiring such permission. No such Goods shall
re
is
be delivered without this permission, which shall not relieve the
t
n
e Contractor from any duty, obligation or responsibility under or in
m
u
c
o
connection with the Contract.”
d
is
h
T
If vesting of Contractor’s Equipment to the Employer is required, and such vesting is consistent
E
with the Laws of the Country, further paragraphs may be added to this Sub-Clause: C
N
A
D
I
EXAMPLE At the end of Sub-Clause 4.17, add the following paragraphs: U
G
is
N Sub-Clause 4.21 Security of the Site
x
e
L
e
th If the Contractor is sharing occupation of the Site with others, it may not be appropriate for the
in
it
h Contractor to be responsible for its security. In these circumstances, it is recommended that:
w
ti
n
o a) this Sub-Clause should be amended to specify exactly what security obligations are
u
b
ir
t
the Contractor’s under the Contract,
is
d
r
fo and
d
te
irc
t
s b) the security obligations which are to be fulfilled by the Employer and/or others should
re
is
t
be stated in the Specification
n
e
m
u
c
so that it is clear which Party is responsible for what in respect of the security of the Site.
o
d
is
h
T
© FIDIC 2017
25
Sub-Clause 4.22 Contractor’s Operations on Site
S
N
L O
I If the Contractor is sharing occupation of the Site with others, it is recommended that this
A T
R I
E D Sub-Clause is amended by identifying and allocating responsibility for clearance and removal
N N
E O from the Site of any wreckage, rubbish, hazardous waste, temporary works and surplus material.
G C
E If the Employer wishes to have certain parts of the Works completed within certain times
C
N but does not wish to take over such parts when completed (as distinct from the parts of the
A
D
I Works which the Employer wishes to take over after completion, which should be defined as
U
G Sections in the Contract Data), such parts of the Works should be clearly described in the
Specification as ‘Milestones’ and it is recommended that the following provisions are added
to the Contract Data and to the Conditions of Contract:
© FIDIC 2017
27
S
Clause 5 Subcontracting
N
L O
I
A T
R I Sub-Clause 5.1 Subcontractors
E D
N N
E O
G C It may be appropriate and/or desirable, taking account of the circumstances and locality of the
project, to encourage the Contractor to employ local contractors in the execution of the Work:
Subcontractors.”
S If no consent by the Engineer to Subcontractors is required, the last three paragraphs of this
M Sub-Clause may be deleted. If less consent by the Engineer to Subcontractors is preferable,
R
O this Sub-Clause may be amended:
F
“or
(iii) a Subcontractor where the value of his/her subcontract is less
rg than one percent (1%) of the Accepted Contract Amount.”
o
.
ic
d
fi.
w
w
w
T
If the Engineer’s consent is required to the suppliers of certain Materials, this Sub-Clause may
A
E
L
be amended:
A
S
R
O
F EXAMPLE At the end of the third paragraph of Sub-Clause 5.1, add:
L
A
NI
G
IR
O
“However,
suppliersthe Engineer’s
of the followingprior consent shall be required for the
Materials:
-
E
L
B
____________________________
A
T ____________________________”
IN
R
P
T
O (insert details: for example, specific manufactured or prefabricated
N
N
D items of Materials)
A
E
S
U
T
C
A If the Employer requires that all the Contractor’s subcontracts should provide for assignment of
R
T
N
the subcontract to the Employer in the event that Sub-Clause 15.2 [Termination for Contractor’s
O
C Default] applies, the following amendment will need to be made to this Sub-Clause:
R
O
F
T
O
N
EXAMPLE Insert at the end of the last paragraph of Sub-Clause 5.1:
-
m
r
fto “All subcontracts relating to the Works shall include provisions which
la
p entitle the Employer to require the subcontract to be assigned to
is
x
N
e the Employer under sub-paragraph (a) of Sub-Clause 15.2.3 [After
is Termination].”
x
e
L
e
th
in
h
it
w If the Employer requires that the Contractor assigns the benefit of the relevant subcontract in
n
ti
o
u
the event that a Subcontractor’s obligations continue after expiry of the DNP relating to that
b
ir
t Subcontractor’s work, the following amendment will need to be made to this Sub-Clause:
is
d
r
fo
d
te
EXAMPLE Insert at the end of the last paragraph of Sub-Clause 5.1:
irc
t
s
re “If a Subcontractor’s obligations to the Contractor extend
is
t
n
e
beyond the expiry date of the DNP which is applicable to the
m
u
c Subcontractor’s work and if the Contractor receives an instruction
o
d
is
h
T
If this is the case, it is recommended that the Employer names the particular subcontractor(s) in
the Specification so that tenderers are aware of this requirement before submitting their tenders S
- although this Sub-Clause also makes provision for the Engineer to instruct the Contractor to M
R
employ a subcontractor or subcontractors selected by the Employer after contract award. O
F
It should be noted that:
a) once the Contractor has employed a subcontractor who has been nominated by the
Employer, the second paragraph of Sub-Clause 5.1 [Subcontractors] applies; and
b) sub-paragraph (b) of Sub-Clause 13.4 [Provisional Sums] should provide for payment
rg to the Contractor for works or services to be purchased by the Contractor from a
o
.
ic
d
fi.
nominated Subcontractor.
w
w
w If the Employer anticipates that a Subcontractor is to be instructed under Sub-Clause 13.3
T
A
E
[Variation Procedure] but is not to be a nominated Subcontractor, this Sub-Clause should be
L
A
S amended describing the particular circumstances.
R
O
F
L
N
A
I
Clause 6 Staff and Labour
G
IR
O
E
- Sub-Clause 6.3 Recruitment of Persons
L
B
A
T
IN
It may be necessary to review and revise this Sub-Clause (or delete it in its entirety) if
R
P the relevant labour Laws applicable to the Contractor’s Personnel and/or the Employer’s
T
O
N
Personnel do not permit any restriction on the right of any worker to seek other positions.
D
N
A
E
S
U
T
Sub-Clause 6.6 Facilities for Staff and Labour
C
A
R
T
N
If the Employer plans to make any facilities and/or accommodation (for example, office
O
C accommodation) available for the Contractor’s occupation and/or use, the Employer’s
R
F
O obligations to do so and details of such facilities and/or accommodation should be stated in
T
O the Specification. See also the guidance under Clause 17 [Care of the Works and Indemnities]
N
-
m
below for the suggested additional sub-clause in respect of responsibility for care of such
r
fto facilities and/or accommodation.
la
p
is
x
e
N
is
x Sub-Clause 6.8 Contractor’s Superintendence
e
L
e
th If it is permissible that the Contractor’s superintending staff are not all fluent in the language
in
h
it
w
for communications defined in Sub-Clause 1.4 [Law and Language], then consideration
n
ti
o should be given to amending this Sub-Clause:
u
b
ir
t
is
d
r EXAMPLE Insert at the end of sub-paragraph (a) of Sub-Clause 6.8:
fo
d
te
irc
t
“or, if not, the Contractor shall make competent interpreters
s
re available during all working hours, in a number sufficient for those
is
t
n persons to properly perform their superintendence duties.”
e
m
u
c
o
d
is
h
T
© FIDIC 2017
29
If it is necessary to stipulate that the Contractor’s superintending staff shall be fluent in a
S
N particular language, the following sentence should be added.
L O
I
A T
R I
E D
N N EXAMPLE Insert at the end of Sub-Clause 6.8:
E O
G C
“A reasonable proportion of the Contractor’s superintending staff
shall have a working knowledge of
E
C [Insert name of language],
N
A
D
I
U or the Contractor shall make interpreters available on Site during all
G
working hours in a number deemed sufficient by the Engineer.”
“If any of the Key Personnel are not fluent in this language the
Contractor shall make competent interpreter(s) available during all
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o
ic
. working hours, sufficient for that person to properly perform his/her
d
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w
duties under the Contract.”
w
w
T
A
E
L Additional Sub-Clauses
A
S
R
O
F
It may be necessary, appropriate and/or desirable to include additional sub-clauses to take
L
N
A account of the circumstances and locality of the Site:
I
G
IR
O
- EXAMPLE SUB-CLAUSE FOR FOREIGN PERSONNEL
E
L
B
A
T “The Contractor may bring into the Country any foreign personnel who
IN
P
R are necessary for the execution of the Works to the extent allowed
T
O by the applicable Laws. The Contractor shall ensure that these
N
N
D personnel are provided with the required residence visas and work
A
E permits. The Employer shall, if requested by the Contractor, use all
S
U
T
reasonable endeavours in a timely and expeditious manner to assist
C
A
R
the Contractor in obtaining any local, state, national, or government
T
N permission required for bringing in the Contractor’s personnel.
O
C
R
O
F The Contractor shall be responsible for the return of these personnel
T
O
N to the place where they were recruited or to their domicile. In the event
-
m
r of the death in the Country of any of these personnel or members of
fto
la their families, the Contractor shall similarly be responsible for making
p
is the appropriate arrangements for their return or burial.”
x
e
N
is
x
L
e EXAMPLE SUB-CLAUSE FOR SUPPLY OF FOODSTUFFS
e
th
in
it
h “The Contractor shall arrange for the provision of a sufficient supply
w
n
o
of suitable food as may be stated in the Specification at reasonable
ti
b
ir
u prices for the Contractor’s Personnel for the purposes of or in
t
is connection with the Contract.”
d
r
fo
d
te
irc EXAMPLE SUB-CLAUSE FOR SUPPLY OF WATER
t
s
re
is “The Contractor shall, having regard to local conditions, provide on
t
n
e
m the Site an adequate supply of drinking and other water for the use
u
c
d
o of the Contractor’s Personnel.”
is
h
T
E
EXAMPLE SUB-CLAUSE FOR ALCOHOLIC LIQUOR OR DRUGS C
N
A
D
I
“The Contractor shall not, other than in accordance with the Laws U
of the Country, import, sell, give, barter or otherwise dispose of G
© FIDIC 2017
31
EXAMPLE SUB-CLAUSE FOR WORKERS’ ORGANISATIONS
S
N
L O
A I
T
“In countries where the relevant labour Laws recognise workers’
R I
E D rights to form and to join workers’ organisations of their choosing
N N
E O without interference and to bargain collectively, the Contractor
G C
shall comply with such Laws. Where the relevant labour Laws
substantially restrict workers’ organisations, the Contractor
shall enable alternative means for the Contractor’s Personnel to
E
C express their grievances and protect their rights regarding working
N
A conditions and terms of employment. In either case described
D
I
U above, and where the relevant labour Laws are silent, the
G
Contractor shall not discourage the Contractor’s Personnel from
forming or joining workers’ organisations of their choosing or from
bargaining collectively, and shall not discriminate or retaliate against
the Contractor’s Personnel who participate, or seek to participate,
S in such organisations and bargain collectively. The Contractor shall
M
R engage with such workers’ representatives. Workers’ organisations
O
F
are expected to fairly represent the workers in the workforce.”
N
D shall not be deemed discrimination.”
A
E
S
U
T
C
A
T
R Clause 7 Plant, Materials and Workmanship
N
O
C
R Sub-Clause 7.7 Ownership of Plant and Materials
O
F
T
O
N
If the Contractor is to provide high-value items of Plant and/or Materials under the Contract,
-
m
r
consideration may be given to amending this Sub-Clause:
fto
la
p
is
x
EXAMPLE Insert at the end of Sub-Clause 7.7:
e
N
is
x
e
“No Plant and/or Materials that is the property of the Employer shall
L
e
th be removed from the Site. If it becomes necessary to:
in
h
it
n
w (i) remove any item of such Plant from the Site for the purposes
o
ti
b
u of repair, the Contractor shall give a Notice, with reasons, to
ir
t
is
d
the Engineer requesting consent to remove the defective or
r
fo damaged item off the Site. This Notice shall clearly identify
d
te
irc
the item of defective or damaged Plant, and shall give details
t
s
re
of: the defect or damage to be repaired; the place to which
is defective or damaged item of Plant is to be taken for repair;
t
n
e
m
u
the transportation to be used (and insurance cover for such
c
d
o transportation); the proposed inspections and testing off the
is
h
T
© FIDIC 2017
33
(d) as they appear under Sub-Clause 8.3 [Programme] of FIDIC’s Conditions of Contract for
S
N Construction, First Edition 1999).
L O
I
A T
R I
E D Sub-Clause 8.5 Extension of Time for Completion
N N
E O
G C
Sub-paragraph (c) of this Sub-Clause entitles the Contractor to an extension of the Time for
Completion for “exceptionally adverse climatic conditions”. It may be preferable to set out in
the Specification what constitutes an “exceptionally adverse” event - for example, by reference
E to available weather statistics and return periods. It may also be appropriate to compare the
C
N adverse climatic conditions that have been encountered with the frequency with which events
A
D
I
U
of similar adversity have previously occurred at or near the Site. For example, an exceptional
G degree of adversity might be regarded as one which has a probability of occurrence of once
every four or five times the Time for Completion of the Works (for example, once every eight
to ten years for a two-year contract).
S The final paragraph of this Sub-Clause provides that the rules and procedures for assessing the
M
R Contractor’s entitlement to an EOT where there is concurrency between delays attributable to
O
F both Parties shall be stated in the Special Provisions. This provision has been drafted by FIDIC
in this manner because there is no one standard set of rules/procedures in use internationally
(though, for example the approach given in the Delay and Disruption Protocol published by
the Society of Construction Law (UK):
https://www.scl.org.uk/sites/default/files/SCL_Delay_Protocol_2nd_Edition_Final.pdf† is
increasingly being adopted internationally) and different rules/procedures may apply in different
rg
ic
o
. legal jurisdictions.)
d
fi.
w
w
w In preparing the Special Provisions, therefore, it is strongly recommended that the Employer
T
A
E
be advised by a professional with extensive experience in construction programming, analysis
L
A
S
of delays and assessment of extension of time in the context of the governing law of the
R Contract.
O
F
L
A
NI Sub-Clause 8.8 Delay Damages
G
IR
O
E
- Under the laws of many countries or other jurisdictions, the amount of these pre-defined
L
B
A
damages must be a reasonable estimate of the anticipated or actual loss caused to the
T
IN Employer by the delay. Therefore if the Delay Damages are fixed at an unreasonably large
R
P
T
amount, they may be unenforceable in common law jurisdictions or subject to downward
O
N adjustment in civil law jurisdictions.
D
N
A
E
S
U
If the Accepted Contract Amount is to be quoted as the sum of figures in more than one
C
T currency, it may be preferable to define these damages (per day) as a percentage to be
A
T
R applied to each of these figures. If the Accepted Contract Amount is expressed in the Local
N
O
C
Currency, the damages per day may either be defined as a percentage or be defined as a
R figure in Local Currency: see Sub-Clause 14.15(c).
O
F
T
O
N
-
Additional Sub-Clause
m
r
fto
la
Incentives for early completion may be included (in addition to sub-paragraph (a) of Sub-Clause
p
is
x
13.2 [Value Engineering] which refers to accelerated completion):
e
N
is
x
L
e EXAMPLE SUB-CLAUSE FOR INCENTIVES FOR EARLY COMPLETION
e
th
in “The Contractor shall be entitled to a bonus payment if the
h
it
w
n Works and/or each Section is completed earlier than the Time for
o
ti
b
ir
u Completion for the Works or Section (as the case may be). The
t
is
d
amount of bonus for early completion of the Works and/or each
r
fo Section is stated in the Specification.
d
te
irc
t
s
re
For the purposes of calculating any bonus payment, the applicable
is
t
n
Time for Completion stated in the Contract Data is fixed and no
e
m
u
adjustments of this time by reason of granting an EOT will be
c
o
d allowed.”
is
h
T
For less complex projects, the Employer may consider simplifying the testing requirements under
this Sub-Clause.
S
Clause 10 Employer’s Taking Over M
R
O
F
Sub-Clause 10.1 Taking Over the Works and Sections
If the Works are to be completed and taken over in stages it is important that each stage is
defined as a Section in the Contract Data. Precise geographical definitions are advisable, and
the Contract Data should include a table to also define for each Section:
rg • the relevant percentage for release of Retention Money,
o
.
ic
d
fi.
w
w
• the Time for Completion, and
w
T
A
E • the applicable Delay Damages.
L
A
S
R An example form of such table is shown in the example form of Contract Data included in this
O
L
F publication.
A
NI
G
IR
O
-
Clause 11 Defects after Taking Over
E
L
B
A
T Sub-Clause 11.3 Extension of Defects Notification Period
IN
R
P
T
O
Depending on the complexity of the project and the nature of the Works, the Employer may
N
D
consider amending the period of “two years” stated at the end of the first paragraph of this
N
A
E
Sub-Clause to be a longer or a shorter period.
S
U
C
T Sub-Clause 11.10 Unfulfilled Obligations
A
R
T
N
O
It may be necessary to review the effect of this Sub-Clause in relation to the period of liability
C
R imposed by the applicable law.
O
F
T
In particular, the second paragraph of this Sub-Clause may require amending to take account
O
N
-
of the applicable law.
m
r
fto
la
Additional Sub-Clause
p
is
x
N
e If the Works include the Plant that comprises (in whole or in part) new or innovative technology
is
x
e
in the Country or at the Employer’s location, consideration may be given to including in the
L
e
th Specification a requirement for the Contractor to provide supervisory assistance to the
in Employer’s permanent operating personnel in the operation and maintenance of the Plant
h
it
w
n during the DNP of the Works.
o
ti
u
b
ir
t
is
d
EXAMPLE SUB-CLAUSE FOR SUPERVISORY ASSISTANCE DURING DNP
r
fo
d
te “The Contractor shall provide supervisory assistance to the Employer
irc
t
s during the DNP for the Works. Such supervisory assistance shall
re
is
t
be as described in the Specification for the purpose of supporting
n
e
m
the Employer’s operation and maintenance of the Plant for the
u
d
c
o period of [insert number of months] after the Date of Completion.”
is
h
T
© FIDIC 2017
35
S
Clause 12 Measurement and Valuation
N
L O
I
A T
R I Sub-Clause 12.1 Works to be Measured
E D
N N
E O
G C If any part of the Permanent Works is to be measured according to records of its construction,
this part should be identified, and the records to be made should be stated in the Specification.
If the Contractor is to be responsible for any such records, this should be specified in the
Contract (by the Employer in the Specification or by the Contractor in the Tender).
E
C
N
A
D
I
U
Clause 13 Variations and Adjustments
G
c) the Engineer may request a proposal from the Contractor under Sub-Clause 13.3.2
[Variation by Request for Proposal].
N
D If the amounts payable to the Contractor are to be adjusted for rises or falls in the cost of labour,
A
E
S
Goods and other inputs to the Works, for this Sub-Clause to apply it is important that a Schedule
U
T (or Schedules) of cost indexation is (are) included in the Contract and that such Schedule(s)
C
A
R
include a formula or formulae forcalculation of the applicable adjustment under this Sub-Clause.
T
N
O
C
R It is recommended that the Employer be advised by a professional with experience in
O
F
T
construction costs and the inflationary effect on construction costs when preparing the
O
N
-
contents of the Schedule(s) of cost indexation.
m
r
fto
la
p
SCHEDULE OF COST INDEXATION: EXAMPLE FORMULA FOR ADJUSTMENT FOR
is
x
e
CHANGE IN COST
N
is
x
e
L
e
th Pn= a+b Ln +c En +d Mn +......
in
h
it Lo Eo Mo
w
n
o
ti
u
b
ir
t
where:
is
d
r
“Pn” is the adjustment multiplier to be applied to the estimated
fo
d contract value in the relevant currency of the work carried out in
te
irc period “n”, this period being a month;
t
s
re
is
t
n
e “a” is a fixed coefficient, representing the non-adjustable portion in
m
u
c contractual payments;
o
d
is
h
T
© FIDIC 2017
37
Employer is willing to accept the risks involved. If the Contractor is to be paid Cost Plus Profit,
S
N Clause 12 should be replaced by provisions describing the method of determining the Cost
L O
I
A T and the Contract Price. As a result, the provisions in the General Conditions which entitle the
R I
E D
N N Contractor to payment of additional Cost will generally be of no effect.
E O
G C
Additional Sub-Clauses may be required to cover any exceptions to the provisions set out in
Sub-Clause 14.1, and any other matters relating to payment.
E
C Lump sum contracts may be suitable if the tender documents include details which are
N
A
D
I
sufficiently complete for construction and for significant Variations to be unlikely. From the
U information supplied in the tender documents, the Contractor can prepare any other details
G
necessary, and construct the Works, without having to refer back to the Engineer for clarification
or further information. However, as noted in the Introduction above, if significant design input
by the Contractor is required, it is recommended that the Employer consider using FIDIC’s
Conditions of Contract for Plant and Design-Build, Second Edition 2017 (or, alternatively and
S
M if suitable for the circumstances of the project, FIDIC’s Conditions of Contract for EPC/Turnkey
R
O Projects, Second Edition 2017).
F
For a lump sum contract, the tender documents should include a schedule of payments
(see Sub-Clause 14.4 [Schedule of Payments]).
rg
o
EXAMPLE PROVISIONS FOR A LUMP SUM CONTRACT
.
ic
d
fi.
w Delete the second paragraph of Sub-Clause 8.5 [ Extension of Time
w
T
w for Completion].
A
E
L
A
S Delete Clause 12 [ Measurement and Valuation].
R
O
F
L
N
A Under Sub-Clause 13.3.1 [ Variation by Instruction]:
I
G
IR
O
- in sub-paragraph (c) delete the words “by valuing the Variation
- in accordance with Clause 12 [Measurement and Valuation], with
E
L
B supporting particulars (which shall include identification of any
A
T
IN
estimated quantities and, if the Contractor incurs or will incur
R
P Cost as a result of any necessary modification to the Time for
T
O
N Completion, shall show the additional payment (if any) to which the
D
N
A
Contractor considers that the Contractor is entitled)” and replace
E
S with:
U
C
T “with supporting particulars. Whenever the omission of any work
A
T
R forms part (or all) of a Variation, and if:
N
O • the Contractor has incurred or will incur cost which, if the
C
R
O
work had not been omitted, would have been deemed to
F
T be covered by a sum forming part of the Accepted Contract
O
N
- Amount; and
m
r
fto • the omission of the work has resulted or will result in this
la
is
p sum not forming part of the Contract Price
x
e
N this cost may be included in the Contractor’s proposal (and, if so,
is
x
L
e shall be clearly identified). If the Parties have agreed to the omission
e
th of any work which is to be carried out by others, the Contractor’s
in
it
h proposal may also include the amount of any loss of profit and other
w
n
o
losses and damages suffered (or to be suffered) by the Contractor
ti
u
b
ir as a result of the omission”; and
t
is - in sub-paragraph (ii): delete the words “(including valuation of
d
r
fo the Variation in accordance with Clause 12 [Measurement and
d
te
irc
t
Valuation] using measured quantities of the varied work)” and
s
re replace with:
is
t
n
e
“and the Schedule of Payments (if any)”.
m
u
c
o
d
is
h
T
If the Contractor is not required to pay import duties on Goods imported by the Contractor into
the Country, an additional Sub-Clause should be added and sub-paragraph (b) of Sub-Clause
14.1 [The Contract Price] of the General Conditions should be amended accordingly:
S
M
EXAMPLE SUB-CLAUSE FOR EXEMPTION FROM DUTIES R
O
F
“All Goods imported by the Contractor into the Country shall be
exempt from customs and other import duties, if the Employer’s
prior written approval is obtained for import. The Employer
shall endorse the necessary exemption documents prepared
by the Contractor for presentation in order to clear the Goods
rg
ic
o
. through Customs, and shall also provide the following exemption
d
fi. documents:
w
w
w
T
A
E
(describe the necessary documents, which the Contractor will be
L
A
S
unable to prepare)
R
O
F
L
A
If exemption is not then granted, the customs duties payable and
NI
G paid shall be reimbursed by the Employer.
IR
O
-
E
L All imported Goods, which are not incorporated in or expended in
B
A
T connection with the Works, shall be exported on completion of the
IN
P
R Contract.
T
O
N
N
D If not exported, the Goods will be assessed for duties as applicable
A
E to the Goods involved in accordance with the Laws of the Country.
S
U
T
C
A
R
However, exemption may not be available for:
T
N
O
C
R
(a) Goods which are similar to those locally produced, unless
O
F
T
they are not available in sufficient quantities or are of a
O
N different standard to that which is necessary for the Works;
-
m
r and
fto
la (b) any element of duty or tax inherent in the price of goods or
p
is
x
e services procured in the Country, which shall be deemed to
N
is
x
be included in the Accepted Contract Amount.
e
L
e
th Port dues, quay dues and, except as set out above, any element
in
h
of tax or duty inherent in the price of goods or services shall be
it
n
w deemed to be included in the Accepted Contract Amount.”
o
ti
u
b
ir
t
is
d
r If expatriate staff are exempted from paying local income tax, a suitable Sub-Clause should
fo
d
te
be added and sub-paragraph (b) of Sub-Clause 14.1 [ The Contract Price] of the General
irc
t
s Conditions should be amended accordingly. However, advice should be sought from a
re
is
t
qualified tax expert before drafting any such additional Sub-Clause.
n
e
m
u
c
o
d
is
h
T
© FIDIC 2017
39
EXAMPLE SUB-CLAUSE FOR EXEMPTION FROM TAXES
S
N
L O
A I
T
“Expatriate (foreign) personnel shall not be liable for income tax
R I
E D levied in the Country on earnings paid in any foreign currency, or
N N
E O for income tax levied on subsistence, rentals and similar services
G C
directly furnished by the Contractor to Contractor’s Personnel, or
for allowances in lieu. If any Contractor’s Personnel have part of
their earnings paid in the Country in a foreign currency, they may
E
C export (after the conclusion of their term of service on the Works)
N
A any balance remaining of their earnings paid in foreign currencies.
D
I
U
G
The Employer shall seek exemption for the purposes of this
Sub-Clause. If it is not granted, the relevant taxes paid shall be
reimbursed by the Employer.”
S
M Sub-Clause 14.2 Advance Payment
R
O
F
When writing the Particular Conditions, consideration should be given to the benefits of the
Employer making an advance payment to the Contractor. Unless this Sub-Clause is not to
apply, the advance payment and the currencies in which it is to be paid must be specified in
the Contract Data. The rate of deduction for the repayments should be checked to ensure that
repayment is achieved before the Contractor’s completion of the Works. The typical figures
rg in sub-paragraphs (a) and (b) of Sub-Clause 14.2.3 [Repayment of Advance Payment] of the
o
.
ic
d
General Conditions are based on the assumption that the advance payment is less than 22%
fi.
w
w
of the Accepted Contract Amount.
w
T
A
E
L
The acceptable form of Advance Payment Guarantee should be included in the tender
A
S
R
documents, annexed to the Particular Conditions: an example form is included at the end of
O
F this publication (in the section “Sample Forms”).
L
A
NI
G
IR
O
If the Employer wishes to provide the advance payment in instalments, the Contract Data and
E
- this Sub-Clause will need to be amended.
L
B
A
T
IN EXAMPLE The Contract Data:
R
P
T
O
N
- delete the words “14.2 ………. Amount of Advance Payment (percent
N
D of Accepted Contract Amount): ……….” and replace with:
A
E
S
“14.2 ………….Total Advance Payment ___% of the Accepted
U
T Contract Amount
C
A
R 14.2 ………….Number and timing of instalments: ________________”.
T
N
O
C
R - delete the words “14.2 ………. Currencies of payment if different to
O
F
T
the currencies quoted in the Contract ………” and replace with:
O
N
-
m
r “14.2 ………Currencies and proportions ….. ___% in ____________
fto
la
p
___% in _________”.
is
x
e
N
is
x
Delete the second sentence of the second paragraph of Sub-Clause 14.2
e
L
e
th and replace with:
in
h
it “The total amount of the advance payment, the number and timing
w
n
ti
o of instalments, and the applicable currencies and proportions shall
u
b
ir
t be as stated in the Contract Data.”.
is
d
r
fo
d
te
Sub-Clause 14.2.1 [Advance Payment Guarantee]:
irc
t
s
re
is - delete the words “equal to the advance payment” from the first
t
n
e sentence and replace with: “equal to the total amount of the advance
m
u
c
o
payment”.
d
is
h
T
© FIDIC 2017
41
If the country or countries of payment need to be specified, details may be included in a
S
N Schedule.
L O
I
A T
R I
E D Sub-Clause 14.8 Delayed Payment
N N
E O
G C
As an alternative to the second paragraph of this Sub-Clause, consideration may be given
to the payment of the Contractor’s actual financing Costs, taking account of local financing
arrangements.
E
C
N Sub-Clause 14.9 Release of Retention Money
A
D
I
U If part of the Retention Money is to be released and substituted by an appropriate guarantee,
G
an additional Sub-Clause may be added. The acceptable form(s) of guarantee should be
included in the tender documents, annexed to the Particular Conditions: an example form
is included at the end of this publication (in the section “Sample Forms”). Also, a limit of
Retention Money should be stated in the Contract Data.
S
M
R
O EXAMPLE SUB-CLAUSE FOR RELEASE OF RETENTION
F
• prohibition from discrimination against the shipping companies of any one country;
S
M
• ensuring that the Contract is subject to a widely-accepted neutral law; R
O
F
• provision for arbitration under recognised international rules and at a neutral location;
• giving the Contractor the right to suspend/terminate in the event of default under the
financing arrangements;
rg
• restricting the right to reject Plant;
o
.
ic
d
fi. • specifying the payments due in the event of termination;
w
w
w
T
A • specifying that the Contract does not become effective until certain conditions
E
A
L precedent have been satisfied, including pre-disbursement conditions for the
S
R financing arrangements; and
O
F
L
A
NI
• obliging the Employer to make payments from his own resources if, for any reason,
G
IR
O
the funds under the financing arrangements are insufficient to meet the payments
E
- due to the Contractor, whether due to a default under the financing arrangements or
L
B
A
otherwise.
T
IN
P
R The financing institution may wish the Contract to include references to the financing
T
O arrangements, especially if funding from more than one source is to be arranged to finance
N
N
D different elements of supply. It is not unusual for the Special Provisions to include particular
A
E provisions identifying different categories of Works and specifying the documents to be
S
U
T
presented to the relevant financing institution to obtain payment. If the financing institution’s
C
A
R
requirements are not met, it may be difficult (or even impossible) to secure suitable financing
T
N for the project, and/or the institution may decline to provide finance for part or all of the
O
C
R
Contract.
O
F
T
O
N Where the financing is not tied to the export of goods and services from any particular country
-
m
r but is simply provided by commercial banks lending to the Employer, those banks may wish
fto
la to satisfy themselves regarding the extent of the Contractor’s rights under the Contract.
p
is
x
e
N Alternatively, the Contractor may be prepared to initiate financing arrangements for the
is
x
L
e Contract and retain responsibility for them, although the Contractor would probably be unable
e
th or unwilling to provide finance from the Contractor’s own resources. The Contractor’s financing
in
h
it
w
bank’s requirements are then likely to affect the Contractor during contract negotiations. For
n
ti
o example, the financing bank may require the Employer to make interim payments, although
u
b
ir
t
a large proportion of the Contract Price might be withheld until the Works are complete.
is
d
r
Since the Contractor would then have to arrange financing to cover the shortfall between
fo
d the payments and the Contractor’s outgoings, the Contractor (and the financing bank) would
te
irc probably require some form of security from the Employer, guaranteeing payment when due.
t
s
re
is
t
n
e It may be appropriate for the Employer, when preparing the tender documents, to anticipate
m
u
c the latter requirement by undertaking to provide a guarantee for the element of payment
o
d
is which the Contractor is to receive when the Works are complete. The acceptable form(s) of
h
T
© FIDIC 2017
43
guarantee should be included in the tender documents, annexed to the Particular Conditions:
S
N an example form is included at the end of this publication (in the section “Sample Forms”). The
L O
I
A T following Sub-Clause may be added.
R I
E D
N N
E O
G C EXAMPLE SUB-CLAUSE FOR CONTRACTOR FINANCE
(a) when the Contractor has been paid the Accepted Contract
Amount;
(b) when obligations under the guarantee expire or have been
rg
o
discharged; or
.
ic
d
fi. (c) when the Employer has performed all obligations under the
w
w
w Contract.”
T
A
E
L
A
S
R
Clause 15 Termination by Employer
O
F
L
N
A Sub-Clause 15.2 Termination for Contractor’s Default
I
G
IR
O
-
Before inviting tenders, the Employer should verify that the wording of this Sub-Clause, and
E
L
B
each anticipated ground for termination, is consistent with the law governing the Contract.
A
T
IN
R Sub-Clause 15.2.1 Notice
P
T
O
N Sub-paragraph (h) in this Sub-Clause is intended to include situations, where the Contractor
D
N
A or any of the Contractor’s employees, agents, Subcontractors or Contractor’s Personnel gives
E
S
U
or offers to give (directly or indirectly) to any person any bribe, gift, gratuity, commission or
T
C other thing of value, as an inducement or reward for showing or forbearing to show favour or
A
T
R disfavour to any person in relation to the Contract. However, this is not intended to include
N
O
C
lawful inducements and rewards by the Contractor to the Contractor’s Personnel.
R
O
F
T Sub-Clause 15.2.3 After termination
O
N
-
m
r
If the Employer has made available any Employer-Supplied Materials and/or Employer’s
fto
la Equipment in accordance with Sub-Clause 2.6, consideration should be given to an additional
p
is
x
sub-paragraph under this Sub-Clause:
e
N
is
x
L
e EXAMPLE Insert the following new sub-paragraph at the end of sub-paragraph (b) of
e
th Sub-Clause 15.2.3:
in
h
it
w
n “(iv) all Employer-Supplied Materials and/or Employer’s Equipment made
o
ti
b
ir
u available to the Contractor in accordance with Sub-Clause 2.6 [Em-
t
is
d
ployer-Supplied Materials and Employer’s Equipment], and”.
r
fo
d
te
irc
t
s
re
Sub-Clause 15.5 Termination for Employer’s Convenience
is
t
n
e
m
In many jurisdictions under the applicable law it may not be permissible for the Employer to
u
c terminate the Contract for convenience (termination of the Contract only being permitted
o
d
is in the event of default on the part of the Contractor and, thereafter, arranging an equitable,
h
T
Sub-paragraph (j) in this Sub-Clause is intended to include situations, where the Employer
or any of the Employer’s employees, agents or Employer’s Personnel gives or offers to give
(directly or indirectly) to any person any bribe, gift, gratuity, commission or other thing of S
M
value, as an inducement or reward for showing or forbearing to show favour or disfavour R
O
to any person in relation to the Contract. However, this is not intended to include lawful F
If the Employer has made available any Employer-Supplied Materials and/or Employer’s
rg
o
Equipment in accordance with Sub-Clause 2.6, consideration should be given to amending
.
ic this Sub-Clause:
d
fi.
w
w
w
T EXAMPLE Delete sub-paragraph (c) in Sub-Clause 16.3 and replace with:
A
E
L
A
S “(c) deliver to the Engineer all Employer-Supplied Materials and/or
R
O
F
Employer’s Equipment made available to the Contractor in accordance
L
A with Sub-Clause 2.6 [Employer-Supplied Materials and Employer’s
NI
G
(d) Equipment
IR
O
- remove all ]; and Goods from the Site, except as necessary for safety,
other
E
L
B
and leave the Site.”
A
T
IN
R
P
T
O
Clause 17 Care of the Works and Indemnities
N
D
N
A
E
Sub-Clause 17.4 Indemnities by Contractor
S
U
T
C In respect of the Contractor’s obligation to indemnify under the second paragraph of this
A
T
R Sub-Clause, it should be noted that this applies only to the extent, if any, that the Contractor is
N
O
C
required to carry out any design of the Permanent Works under the Contract. If this is the case:
R
F
O a) as this liability is not excluded under the first paragraph of Sub-Clause 1.15 [Limitation
T
O
N
of Liability], the Contractor has no liability for any indirect or consequential loss or
-
m
damage suffered by the Employer as a result of any negligence by the Contractor in
r
fto designing the Works to be fit for purpose;
la
p
is
x
N
e b) as this liability is not excluded under the second paragraph of Sub-Clause 1.15
is [Limitation of Liability], it falls within the Contractor’s limitation of liability under
x
e
L
e
th Sub-Clause 1.15; and
in
h
it c) this liability may be covered by the insurance to be taken out by the Contractor
w
n
ti
o under Sub-Clause 19.2.3 [Liability for breach of professional duty ], in which case a
u
b
ir
t statement to this effect should be included in the Contract Data.
is
d
r
fo
d
te Additional Sub-Clause
irc
t
s
re
is
If the Contractor is to be allowed to use and/or occupy any of the Employer’s facilities and/
t
n
e or accommodation temporarily during the Contract, it is recommended that an additional
m
u sub-clause be added to Clause 17 to cover the responsibility for care of such facilities and/
c
o
d
is
h
or accommodation:
T
© FIDIC 2017
45
EXAMPLE SUB-CLAUSE FOR CONTRACTOR’S USE OF EMPLOYER’S FACILITIES/
S
N ACCOMMODATION
L O
I
A T
R I
E D “The Contractor shall take full responsibility for the care of the items
N N
E O of the Employer’s facilities and/or accommodation listed below, from
G C
the date of use and/or occupation by the Contractor until the date
on which such use and/or occupation is re-vested in the Employer.
E
C [List of items and details]
N
A
D
I
U If any loss or damage happens to any of the above items during a
G
time when the Contractor is responsible for its care, arising from
any cause other than a cause for which the Employer is responsible
or liable, the Contractor shall promptly rectify the loss or damage at
the Contractor’s risk and cost.”
S
M
R
O
F
Clause 18 Exceptional Events
Sub-Clause 18.1 Exceptional Events
In respect of sub-paragraph (f) of this Sub-Clause, it should be noted that any event of
“exceptionally adverse climatic conditions” is excluded from the definition of what constitutes an
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. Exceptional Event. While this means that there is no right for either Party to suspend the Works
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fi. in the case of an event of “exceptionally adverse climatic conditions”, if this type of event has the
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w effect of delaying completion and taking-over of the Works or Section the Contractor shall be
T
E
A entitled to EOT under sub-paragraph (c) of Sub-Clause 8.5Extension
[ of Time].
L
A
S
R
L
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F Clause 19 Insurance
A
NI If the Employer wishes to change the insurance provisions of this Clause – for example
G
IR
O
by providing some of the insurance cover under the Employer’s own policy(ies) – it will be
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E necessary to review and revise the relevant Sub-Clause(s) under this Clause 19.
L
B
A
T
IN If this is the case, it is strongly recommended that:
R
P
T
O
N
N
D a) the tender documents include details of such insurances as an annex to the Special
A
E Provisions so that tenderers can estimate what other insurances they may wish to
S
U
T
have for their own protection. The details should include the conditions of insurance,
C
A
R
limits, exceptions and deductibles; preferably in the form of a copy of each insurance
T
N policy; and
O
C
R
F
O b) the Employer is advised by a professional with extensive experience in construction
T
O insurance and liability in the preparation of the wording of the revised sub-clauses. If
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the insurance provisions are changed without due care and attention, there is a risk
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fto that the Employer will inadvertently carry liabilities for which the Employer is neither
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prepared nor covered by insurance.
x
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N
is
x
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L
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Clause 20 Employer’s and Contractor’s Claims
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w Sub-Clause 20.1 Claims
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t In respect of any Claim under sub-paragraph (c) of this Sub-Clause, it should be noted that
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r “another entitlement or relief …or the execution of the Works” may include such matters as:
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re
- interpretation of a provision of the Contract,
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e - rectification of an ambiguity or discrepancy found in the Contract documents,
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o
d - a declaration in favour of the claiming Party,
is
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T
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. The provisions of this Sub-Clause are intended to provide for the appointment of the DAAB,
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fi. and FIDIC strongly recommends that the DAAB be appointed, as a ‘standing DAAB’
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w
– that is, a DAAB that is appointed at the start of the Contract who visits the Site on a regular
T
A basis and remains in place for the duration of the Contract to assist the Parties:
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L
A
S
a) in the avoidance of Disputes,
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O
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L and
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b) in the ‘real-time’ resolution of Disputes if and when they arise
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E
L to achieve a successful project.
B
A
T
IN
P
R It is for this reason that, under the first paragraph of this Sub-Clause, the Parties are under a joint
T
O obligation to appoint the member(s) of the DAAB within 28 days afterthe Contractor receives the
N
N
D Letter of Acceptance if no other time is stated in the Contract Data. That said, isit preferable that
A
E the member(s) of the DAAB are appointed before the Letter of Acceptance isissued.
S
U
T
At an early stage in the Employer’s planning of the project, consideration should be given
C
A
R
as to whether a sole-member DAAB or a three-member DAAB is preferable for a particular
T
N project, taking account of its size, duration and the fields of expertise which will be involved.
O
C
R
O
F This Sub-Clause provides for two alternative arrangements for the DAAB:
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O
N
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r - a sole-member DAAB of one natural person, who has entered into a tripartite
la agreement with both Parties;
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N or
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L
e
th - a three-member DAAB of three natural persons, each of whom has entered into a
in tripartite agreement with both Parties.
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o The tripartite agreement above is referred to as the DAAB Agreement under the Conditions
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t of Contract. It is recommended that the form of this agreement be one of the two alternative
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r example forms included at the end of this publication (in the section “Sample Forms”), as
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appropriate to the arrangement adopted.
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General
It should be noted that both forms of the DAAB Agreement incorporate (by reference) the
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e Conditions of Dispute Avoidance/Adjudication Agreementwith its Annex DAAB Procedural
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Rules, which are included as the Appendix to the General Conditions in this publication.
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© FIDIC 2017
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Under either of these alternative forms of DAAB Agreement, each natural person of the DAAB
S
N is referred to as a DAAB Member.
L O
I
A T
R I
E D
N N A very important factor in the success of the dispute avoidance/adjudication procedure is
E O
G C the Parties’ confidence in the agreed individual(s) who will serve on the DAAB. Therefore, it is
essential that candidates for this position are not imposed by either Party on the other Party.
The appointment of the DAAB is facilitated by the provision in the Contract Data for each Party
E
to name potential DAAB Members. It is important that the Employer and the Contractor each
C avail himself/herself, of the opportunity at the tender stage of the Contract to name potential
N
A
D
I
DAAB members in the Contract Data.
U
G
The Contract Data includes two lists for potential DAAB Members to be named: one for the
Employer to list three names, the other for the Contractor to list three names. This ensures
that both Parties have equal opportunity to put forward (the same number of) names for
potential DAAB Members, and so avoid any question that DAAB Member(s) may be imposed
S
M on one Party by the other Party.
R
O
F
This provides a total of six potential DAAB Members from which the sole member or three
members (as the case may be) can be selected by the Parties. If it is considered necessary to
have a wider selection of DAAB Member(s) to choose from, then provision may be made for
longer lists in the Contract Data for both the Contractor and the Employer to name (the same
number of) additional DAAB Members.
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If the Parties cannot agree on any DAAB member, Sub-Clause 21.2 [Failure to Appoint DAAB
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w Member(s)] applies and the selection and appointment of the DAAB member(s) should be
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A
made by a wholly impartial entity with an understanding of the nature and purpose of a DAAB.
E
A
L The President of FIDIC is prepared to perform this role if this authority has been delegate d in
S
R
accordance with the example wording in the Contract Data. FIDIC maintains a list of approved
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L
F and experienced adjudicators for this specific purpose: The FIDIC President’s List of Approved
A
NI Dispute Adjudicators (http://fidic.org/president-list†).
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If no potential DAAB members’ names are given in the Contract Data, consideration should
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B
A be given to stating a time period in the Contract Data that is greater than the default period of
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IN
R
28 days stated in the first paragraph of this Sub-Clause.
P
T
O
N
D
The period of 224 days stated in sub-paragraph (i) of this Sub-Clause has been arrived at by
N
A taking account of certain time allowances, as follows:
E
S
U
T
C
A
date of termination + 28 days to give a Notice of Claim under Sub-Clause 20.2.1 [Notice
R
T
N
of Claim]
O
C
R
F
O + 84 days to submit detailed particulars for the Claim under Sub-Clause 20.2.4 [Fully
T
O detailed Claim]
N
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fto + 84 days for the Engineer’s agreement/determination of the Claim under Sub-Clause 3.7
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[Agreement or Determination]
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N
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x
e + 28 days for a NOD under Sub-Clause 3.7 [Agreement or Determination]
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e
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in = 224 days after the date of termination.
h
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n
o
ti
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u As noted above, FIDIC strongly recommends that the DAAB be appointed at the start of the
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Contract and remain in place for the duration of the Contract. However, as an alternative to the
r
fo ‘standing DAAB’ envisaged under this Sub-Clause, the Parties may prefer the dispute board
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te to be appointed on an ‘ad-hoc’ basis. In such case, the dispute board would be appointed
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re when a Dispute arises, its appointment would be limited to resolution of the Dispute, it would
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have no role to play in the avoidance of Disputes between the Parties, and its appointment
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u
would cease when it had given its decision on that Dispute. Should a new Dispute arise, a
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d new ad-hoc DAAB would be appointed. Given that such a dispute board would have no
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T
N
D the Contract to name three potential members in the Contract Data.
A
E
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U Sub-Clause 21.5 Amicable Settlement
T
C
A
T
R In circumstances where the DAAB has given its decision but one or both Parties is/are
N
O
C
dissatisfied with the decision, the provisions of this Sub-Clause are intended to encourage
R the Parties to settle a Dispute amicably, without the need for arbitration.
O
F
T
O
N
- Rather than considering the 28 day period stated in this Sub-Clause as a ‘cooling-off period’,
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fto FIDIC recommends that the Parties avail themselves of this opportunity to actively engage
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p with each other with a view to settling their Dispute.
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is Such active engagement may be by, for example:
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L
e
th • direct negotiation by senior executives from each of the Parties;
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w • mediation (please see below);
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u
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t • expert determination (using, for example, the Expert Rules published by the
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r International Chamber of Commerce (the “ICC”, which is based at 33-43 Avenue du
fo
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te
Président Wilson, 75116 Paris, France) https://iccwbo.org/publication/icc-expert-
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s
rules-english-version/ †);
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• or other form of alternative dispute resolution that is not as formal, time-consuming
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and costly as arbitration.
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© FIDIC 2017
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In this regard, it is recommended that consideration be given by the Parties to agree to a
S
N longer time period than the period of 28 days stated in this Sub-Clause in an effort to arrive at
L O
I
A T an amicable settlement procedure chosen by the Parties.
R I
E D
N N
E O
G C Amicable settlement procedures typically depend for their success on the consensual
involvement of both Parties, on confidentiality and on both Parties’ acceptance of the particular
procedure. Therefore, while it is recommended that both Parties engage actively to settle the
E
Dispute amicably, neither Party should seek to impose the procedure on the other Party.
C
N
A
D
I
If the Parties wish to adopt a mediation procedure in their attemptot settle the Dispute amicably,
U then consideration may be given to the Mediation Rules, 2017 published by the International
G
Chamber of Commerce (the “ICC”, which is based at 33-43 Avenue du Président Wilson, 75116
†
Paris, France) https://iccwbo.org/dispute-resolution-services/mediation/mediation-rules/
Appointment of Mediator
Mediator’s Opinion E
C
N
A
If no agreement is reached by the Parties after negotiations D
I
U
have been facilitated by the mediator, either Party may invite the G
mediator to provide to both Parties a non-binding opinion in writing.
Such opinion shall not be used in evidence in any concurrent or
subsequent proceedings.
S
Costs of Mediation M
R
O
The Parties will bear their own costs of participating in the F
© FIDIC 2017
51
For major projects tendered internationally, it is desirable that the place of arbitration be
S
N situated in a country other than that of the Employer or Contractor. This country should have a
L O
I
A T modern and liberal arbitration law and should have ratified a bilateral or multilateral convention
R I
E D
N N (such as the 1958 New York Convention on the Recognition and Enforcement of Foreign
E O
G C Arbitral Awards), or both, that would facilitate the enforcement of an arbitral award in the
states of the Parties.
E
It may be considered desirable in some cases for other Parties to be joined into any
C arbitration between the Parties or for two or more pending arbitrations to be consolidated,
N
A
D
I
thereby creating a multi-party arbitration. While the ICC Arbitration Rules address multi-party
U arbitration, such arbitration may in some cases be feasible only if the parties have included
G
multi-party arbitration clauses in their contracts. Such clauses require skilful drafting, and
usually need to be prepared on a case-by-case basis
It is not unusual that the arbitration of a complex dispute is concluded sometime after
S
M performance of the Contractor’s obligations under the Contract has been completed, in which
R
O case it may not be fair and reasonable in the circumstances for any arbitral award which
F
requires the payment of an amount by one Party to the other Party to be in the currencies of
payment and in the proportions provided for under Sub-Clause 14.15 [Currencies of Payment].
For example, the Contractor may no longer have any need for local currency after completion
of the Works; or the local currency may have declined in value in the interim or be a ‘blocked
currency’ that, consequently, cannot be removed from the country concerned.
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A
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A
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N
O
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F
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m
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d
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T
BIM has varying degrees of complexity ranging from rather isolated use of computer aided
S
design tools to full sharing of models and information by the entire project team. Currently, M
R
BIM is more often used and better understood in developed countries, many of which are O
F
encouraging or even mandating its use to improve quality, accuracy and delivery times for
projects as well as to provide cost savings. BIM has the potential to dramatically improve
productivity in the construction industry and reduce operational costs of facilities as well.
© FIDIC 2017
53
For advanced levels of BIM where fully open sharing of information is required, a qualified
S
N individual needs to be assigned the duty of managing the combined model. This should be
L O
I
A T separate from the project manager’s role to ensure clear delineation of project responsibilities.
R I
E D
N N This may require special outsourcing, if such skills are not available from the employer or
E O
G C engineer. Managing the BIM elements of a project may also involve risks that are beyond the
normal coverage of professional indemnity (PI) insurance policies. Specialist advice should be
sought from PI insurers if there is any doubt on coverage for this role. The competence and
E
responsibilities of this position need to be understood and should include experience in data
C back-up and integrity, continuity planning and cyber security.
N
A
D
I
U All parties involved in a project utilising BIM should take special care in checking their assigned
G
scope and contract to ensure that they are aware of their BIM related responsibilities. The
risks that FIDIC has identified in working in a BIM environment arise from these key features:
S
• misunderstanding of scope of services
M
R
O • use of data for an inappropriate purpose and reliance on inappropriate data
F
N
D 17.3 Intellectual and Industrial Property Rights
A
E 17.4 Indemnities by Contractor
S
U 17.5 Indemnities by Employer
T
C
A
R
17.6 Shared Indemnities
T
N
O
19.2.6 Other insurances required by Laws and by local practice
C
R
O
F
T
FIDIC intends to publish a “Technology Guideline” and a “Definition of Scope Guideline
O
N Specific to BIM” with the aim of providing further detailed support. These documents are
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m
r under preparation and expected to be released shortly after the publication of the updates of
fto
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the 1999 suite of FIDIC contract forms.
is
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© FIDIC 2017
55
S
Annexes FORMS OF SECURITIES
N
L O
I
A T
R I
E D
N N
E O
G C
Acceptable form(s) of security should be included in the tender documents: for Annex A and/or
B, in the Instructions to Tenderers; and for Annexes C to G, annexed to the Particular Conditions.
The following example forms, which (except for Annex A) incorporate Uniform Rules published by
E the International Chamber of Commerce (the “ICC”, which is based at 33-43 Avenue du Président
C
N Wilson, 75116 Paris, France, www.iccwbo.org), need to be carefully reviewed against, and may have
A
D
I
U to be amended to comply with, applicable law. Although the ICC publishes guides to these Uniform
G Rules, legal advice should be taken before the securities are written. Note that the guaranteed
amounts should be quoted in all the currencies, as specified in the Contract, in which the guarantor
pays the beneficiary.
S
M
R
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F
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A
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A
E
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U
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A
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N
O
C
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O
F
T
O
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is
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T
In consideration of you, the Employer, awarding the Contract to the Contractor, we (name of
parent company) irrevocably and unconditionally guarantee to you, as a primary obligation, the
due performance of all the Contractor’s obligations and liabilities under the Contract, including the S
Contractor’s compliance with all its terms and conditions according to their true intent and meaning. M
R
O
F
If the Contractor fails to so perform his/her obligations and liabilities and comply with the Contract,
we will indemnify the Employer against and from all damages, losses and expenses (including
legal fees and expenses) which arise from any such failure for which the Contractor is liable to the
Employer under the Contract.
This guarantee shall come into full force and effect when the Contract comes into full force and effect.
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. If the Contract does not come into full force and effect within a year of the date of this guarantee,
d
fi. or if you demonstrate that you do not intend to enter into the Contract with the Contractor, this
w
w
w guarantee shall be void and ineffective. This guarantee shall continue in full force and effect until
T
E
A all the Contractor’s obligations and liabilities under the Contract have been discharged, when this
L
A
S
guarantee shall expire and shall be returned to us, and our liability hereunder shall be discharged
R
O absolutely.
F
L
A
NI This guarantee shall apply and be supplemental to the Contract as amended or varied by the Employer
G
IR
O
and the Contractor from time to time. We hereby authorise them to agree any such amendment or
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E variation, the due performance of which and compliance with which by the Contractor are likewise
L
B
A guaranteed hereunder. Our obligations and liabilities under this guarantee shall not be discharged
T
IN by any allowance of time or other indulgence whatsoever by the Employer to the Contractor, or by
R
P
T any variation or suspension of the works to be executed under the Contract, or by any amendments
O
N
D
to the Contract or to the constitution of the Contractor or the Employer, or by any other matters,
N
A whether with or without our knowledge or consent.
E
S
U
C
T This guarantee shall be governed by the law of the same country (or other jurisdiction) as that which
A
T
R governs the Contract and any dispute under this guarantee shall be finally settled under the Rules
N
O of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in
C
R
O
accordance with such Rules. We confirm that the benefit of this guarantee may be assigned subject
F
T only to the provisions for assignment of the Contract.
O
N
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fto
r SIGNED by: _____________________________ SIGNED by (1): ____________________________
la (signature) (signature)
p
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N ________________________________________ ________________________________________
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x
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e (name) (name)
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________________________________________ ________________________________________
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e Whether one or more signatories for the parent company are required will depend on the parent
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c company and/or applicable law.
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© FIDIC 2017
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S
Annex B EXAMPLE FORM OF TENDER SECURITY
N
L O
I
A T
R I
E D Guarantee No.: __________ _______________ [insert guarantee reference number]
N N
E O
G C The Guarantor:_______________________________________________________________________
[insert name and address of place of issue, unless indicated in the letterhead]
N
D at the following office [insert address of office] on or before ________________________ [ insert the
A
E date 35 days after the expiry of the validity of the Letter of Tender], when this guarantee shall expire.
S
U
T
C
A
R
The party liable for the payment of any charges: __________________________________________
T
N
O
_______________________________________ [insert the name of the party].
C
R
F
O This guarantee shall be governed by the laws of _________________________ [insert the law
T
O governing the guarantee], and shall be subject to the Uniform Rules for Demand Guarantees (URDG)
N
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2010 Revision, ICC Publication No. 758.
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SIGNED by: _____________________________ SIGNED by (1): ____________________________
x
N
e (signature) (signature)
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th ________________________________________ ________________________________________
in (name) (name)
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ti Date: __________________________________
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Whether one or more signatories for the bank are required will depend on the bank and/or
c
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o applicable law.
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T
The Guarantor:_______________________________________________________________________
[insert name and address of place of issue, unless indicated in the letterhead]
E
Name of Contract/Contract No.: __________________________________________________[insert C
N
A
reference number or other information identifying the contract between the Applicant and the D
I
Beneficiary on which the guarantee is based] U
G
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The party liable for the payment of any charges: [insert the name of the party].
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This guarantee shall be governed by the laws of _________________________ [insert the law
ti
n
o governing the guarantee], and shall be subject to the Uniform Rules for Demand Guarantees,
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(URDG) 2010 Revision, ICC Publication No. 758.
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© FIDIC 2017
59
S SIGNED by: _____________________________ SIGNED by (2): ____________________________
N
L O
I
(signature) (signature)
A T
R I
E D
N N ________________________________________ ________________________________________
E O
G C (name) (name)
Date: __________________________________
E
C
N
A
D
I
U
G
(1)
When drafting the tender documents, the writer should ascertain whether to include the optional
text, shown in parentheses [ ].
(2)
Whether one or more signatories for the bank are required will depend on the bank and/or
applicable law.
S
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the total amount of _______________________ [insert in figures and words the maximum amount
payable and the currency in which it is payable] (the “Bond Amount”) for the due performance of all
such Principal’s obligations and liabilities under the above named Contract.
[Such Bond Amount shall be reduced by ________________ % upon the issue of the Taking-Over
rg Certificate for the whole of the Works under Clause 10 of the Conditions of Contract.](1)
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.
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w This Bond shall become effective on the Commencement Date defined in the Contract.
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A Upon Default by the Principal to perform any contractual obligation, or upon the occurrence of
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any of the events and circumstances listed in Sub-Clause 15.2.1 of the Conditions of Contract,
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the Guarantor shall satisfy and discharge the damages sustained by the Beneficiary due to such
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Default, event or circumstances.(2) However, the total liability of the Guarantor shall not exceed the
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The obligations and liabilities of the Guarantor shall not be discharged by any allowance of time or
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A other indulgence whatsoever by the Beneficiary to the Principal, or by any variation or suspension
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of the Works to be executed under the Contract, or by any amendments to the Contract or to the
P
T constitution of the Principal or the Beneficiary, or by any other matters, whether with or without the
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knowledge or consent of the Guarantor.
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Any claim under this Bond must be received by the Guarantor on or before ____________________
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T [insert the date six months after the expected expiry of the Defects Notification Period for the Works]
C
A
R (the “Expiry Date”), when this Bond shall expire and shall be returned to the Guarantor.
T
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The benefit of this Bond may be assigned subject to the provisions for assignment of the Contract,
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- This Bond shall be governed by the law of _________________________________ [ insert the law
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e published as number 524 by the International Chamber of Commerce, and words used in this Bond
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shall bear the meanings set out in such Rules.
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th Whereas this Bond has been issued by the Principal and the Guarantor on ________________ [date]
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© FIDIC 2017
61
Signatures for and on behalf of the Guarantor (4):
S
N
L O
I
________________________________________ ________________________________________
A T
R I (signature) (signature)
E D
N N
E O
G C ________________________________________ ________________________________________
(name) (name)
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A
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(1)
When writing the tender documents, the writer should ascertain whether to include the optional
text, shown in parentheses [ ].
(2)
Insert: [and shall not be entitled to perform the Principal’s obligations under the Contract.]
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R
O specifying such Default) perform the Principal’s obligations under the Contract.]
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(3)
Whether one or more signatories for the Principal are required will depend on the Principal and/or
applicable law.
(4)
Whether one or more signatories for the Guarantor are required will depend on the Guarantor and/
or applicable law.
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At the request of the Applicant, we _____________________ [insert name of Guarantor] hereby
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irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums not exceeding in total
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currency in which it is payable] (the “Guaranteed Amount”) upon receipt by us of your demand in
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(a) the Applicant has failed to repay the advance payment in accordance with the
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(b) the amount of the advance payment which the Applicant has failed to repay.
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T by the Applicant. The Guaranteed Amount shall be reduced by the amounts of the advance payment
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U Any demand for payment must contain your signature(s) which must be authenticated by your
T
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bankers or by a notary public. The authenticated demand and statement must be received by us
R
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at the following office [insert address of office] on or before ________________________ [insert the
O
C date 70 days after the expected expiry of the Time for Completion] (the “Expiry Date”), when this
R
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The party liable for the payment of any charges: _________________ [insert the name of the party].
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e governing the guarantee], and shall be subject to the Uniform Rules for Demand Guarantees (URDG)
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Date: __________________________________
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Whether one or more signatories for the bank are required will depend on the bank and/or
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© FIDIC 2017
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S
Annex F EXAMPLE FORM OF RETENTION MONEY
N
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A
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I
GUARANTEE
R
E D
N N
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G C Guarantee No.: _______________________________________ [ insert guarantee reference number]
The Guarantor: ______________________________________________________________________
________________________________________ [insert name and address of place of issue, unless
E indicated in the letterhead]
C
N
A Name of Contract/Contract No.: _______________________________________________________
D
I
U ______________________________________________________________ [ insert reference number
G
or other information identifying the contract between the Applicant and the Beneficiary on which the
guarantee is based]
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N This guarantee shall be governed by the laws of _________________________ [insert the law
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e governing the guarantee] and shall be subject to the Uniform Rules for Demand Guarantees (URDG)
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th 2010 Revision, ICC Publication No. 758.
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Date: __________________________________
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applicable law.
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© FIDIC 2017
65
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GENERAL CONDITIONS
We have examined the Conditions of Contract, Specification, Drawings, Schedules including the Bill
of Quantities, the Contract Data and Addenda Nos ________________________ for the above-named E
C
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Contract and the words and expressions used herein shall have the meanings assigned to them in A
D
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the Conditions of Contract. We offer to execute and complete the Works and remedy any defects U
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therein, in conformity with this Tender which includes all these documents, for the sum of
___________________________________________________________________________
[currency and amount in figures ]
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___________________________________________________________________________ R
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[currency and amount in words ] F
We agree to abide by this Tender until ___________________ [date] and it shall remain binding upon
us and may be accepted at any time before that date.
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A accordance with the above-named documents within the Time for Completion.
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F
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A your written acceptance thereof, shall constitute a binding contract between us.
NI
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We understand that you are not bound to accept the lowest or any tender you may receive.
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A
T Signature ____________________________________________________________ in the capacity of
IN
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D duly authorised to sign tenders for and on behalf of ________________________________ _______
A
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Date: ________________________________
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LETTER OF ACCEPTANCE •
N
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A T
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E D NAME OF CONTRACT: _____________________
N N
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CONTRACT NUMBER: ______________________
TO: ______________________________________
E
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N Date: _____________________________________
A
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G Your Reference: ____________________________
Our Reference:_____________________________
S
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R We thank you for your Tender dated _____________________________________ for the execution
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F and completion of the Works comprising the above-named Contract and remedying of defects
therein, all in conformity with the terms and conditions contained in the Contract.
We have pleasure in accepting your Tender for the Accepted Contract Amount of:
__________________________________________
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. [currency and amount in figures]
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A Contract Amount or such other sums to which you may become entitled under the terms of the
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Contract, at such times and as prescribed by the Contract.
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We acknowledge that this Letter of Acceptance creates a binding Contract between us, and
A
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IN
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D Signed by: ________________________________ (signature)
A
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C
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O
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R Date: _____________________________________
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Memoranda (if any) to be annexed [see Sub-Clause 1.1.51]
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Whereas the Employer desires that the Works known as _______________________________ [name
E
and number of the Contract] should be executed by the Contractor, and has accepted a Tender by C
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the Contractor for the execution and completion of these Works and the remedying of any defects A
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therein. U
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(c) The Addenda Nos_______
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(f) The Drawings
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(h) The JV Undertaking.*
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- * [if the Contractor constitutes an unincorporated JV, otherwise delete]
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3. In consideration of the payments to be made by the Employer to the Contractor as hereinafter
P
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O
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Works and remedy any defects therein, in conformity with the provisions of the Contract.
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4. The Employer hereby covenants to pay the Contractor, in consideration of the execution and
T
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completion of the Works and the remedying of defects therein, the Contract Price at the times
R
T and in the manner prescribed by the Contract.
N
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O In Witness whereof the parties hereto have caused this Agreement to be executed the day and year
T
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SIGNED by: _____________________________ SIGNED by: _____________________________
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for and on behalf of the Employer in the for and on behalf of the Contractor in the
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iii
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DISPUTE AVOIDANCE/ADJUDICATION AGREEMENT
N
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N N
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and
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( telephone)
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_______________________(email/other contact details);
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Whereas:
A. the Employer and the Contractor have entered (or intend to enter) into the Contract ;
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B
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T B. under the Contract, the “DAAB” or “Dispute Avoidance/Adjudication Board ” means the
IN
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T
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the Contract, or appointed under Sub-Clause 21.1 [Constitution of the DAAB] or Sub-Clause
N
D 21.2 [Failure to Appoint DAAB Members] of the Conditions of Contract;
A
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T C. the Employer and the Contractor desire jointly to appoint the above-named DAAB Member to
C
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act on the DAAB as:
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Members” do not apply; or
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(b) one of three members/chairman [delete the one which is not applicable] of the DAAB
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3. The DAAB Member shall be paid in accordance with Clause 9 of the GCs. The currency of
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In respect of Sub-Clauses 9.1 and 9.2 of the GCs, the amounts of the DAAB Member’s
monthly fee and daily fee shall be:
monthly fee __________________ per month, and
daily fee of ___________________ per day
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in accordance with the GCs, the DAAB Member undertakes to act as DAAB Member in
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fees and other payments to be made to the DAAB Member in accordance with the GCs.
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6. This DAA Agreement shall be governed by the law of _____________ (if not stated, the law
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SIGNED by: _______________ SIGNED by: _______________ SIGNED by: _______________
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Title: _____________________ Title: _____________________ Title: _____________________
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for and on behalf of the for and on behalf of the
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