FIDIC Conditions of Contract for Construction PDF

Licensed copy: scottwilson, Scott Wilson Holdings, 20/01/2010, Uncontrolled Copy, ®FIDIC Mustafa USALAN 0 532 4712921 [email protected] 1.1.6.6 “Performance Security” means the security (or securities, if any) under Sub-Clause 4.2 [Performance Security]. 1.1.6.7 “Site” means the places where t...

Licensed copy: scottwilson, Scott Wilson Holdings, 20/01/2010, Uncontrolled Copy, ®FIDIC Mustafa USALAN 0 532 4712921 [email protected] 1.1.6.6 “Performance Security” means the security (or securities, if any) under Sub-Clause 4.2 [Performance Security]. 1.1.6.7 “Site” means the places where the Permanent Works are to be executed and to which Plant and Materials are to be delivered, and any other places as may be specified in the Contract as forming part of the Site. 1.1.6.8 “Unforeseeable” means not reasonably foreseeable by an experienced contractor by the date for submission of the Tender. 1.1.6.9 “Variation” means any change to the Works, which is instructed or approved as a variation under Clause 13 [Variations and Adjustments]. 1.2 Interpretation In the Contract, except where the context requires otherwise: (a) (b) (c) (d) words indicating one gender include all genders; words indicating the singular also include the plural and words indicating the plural also include the singular; provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing, and “written” or “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The marginal words and other headings shall not be taken into consideration in the interpretation of these Conditions. 1.3 Communications Wherever these Conditions provide for the giving or issuing of approvals, certificates, consents, determinations, notices and requests, these communications shall be: (a) (b) in writing and delivered by hand (against receipt), sent by mail or courier, or transmitted using any of the agreed systems of electronic transmission as stated in the Appendix to Tender; and delivered, sent or transmitted to the address for the recipient’s communications as stated in the Appendix to Tender. However: (i) (ii) if the recipient gives notice of another address, communications shall thereafter be delivered accordingly; and if the recipient has not stated otherwise when requesting an approval or consent, it may be sent to the address from which the request was issued. Approvals, certificates, consents and determinations shall not be unreasonably withheld or delayed. When a certificate is issued to a Party, the certifier shall send a copy to the other Party. When a notice is issued to a Party, by the other Party or the Engineer, a copy shall be sent to the Engineer or the other Party, as the case may be. 1.4 Law and Language The Contract shall be governed by the law of the country (or other jurisdiction) stated in the Appendix to Tender. If there are versions of any part of the Contract which are written in more than one language, the version which is in the ruling language stated in the Appendix to Tender shall prevail. General Conditions 5 Mustafa USALAN 0 532 4712921 [email protected] The language for communications shall be that stated in the Appendix to Tender. If no language is stated there, the language for communications shall be the language in which the Contract (or most of it) is written. 1.5 Licensed copy: scottwilson, Scott Wilson Holdings, 20/01/2010, Uncontrolled Copy, ®FIDIC Priority of Documents The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence: (a) (b) (c) (d) (e) (f) (g) (h) the Contract Agreement (if any), the Letter of Acceptance, the Letter of Tender, the Particular Conditions, these General Conditions, the Specification, the Drawings, and the Schedules and any other documents forming part of the Contract. If an ambiguity or discrepancy is found in the documents, the Engineer shall issue any necessary clarification or instruction. 1.6 Contract Agreement The Parties shall enter into a Contract Agreement within 28 days after the Contractor receives the Letter of Acceptance, unless they agree otherwise. The Contract Agreement shall be based upon the form annexed to the Particular Conditions. The costs of stamp duties and similar charges (if any) imposed by law in connection with entry into the Contract Agreement shall be borne by the Employer. 1.7 Assignment Neither Party shall assign the whole or any part of the Contract or any benefit or interest in or under the Contract. However, either Party: (a) (b) may assign the whole or any part with the prior agreement of the other Party, at the sole discretion of such other Party, and may, as security in favour of a bank or financial institution, assign its right to any moneys due, or to become due, under the Contract. 1.8 Care and Supply of Documents The Specification and Drawings shall be in the custody and care of the Employer. Unless otherwise stated in the Contract, two copies of the Contract and of each subsequent Drawing shall be supplied to the Contractor, who may make or request further copies at the cost of the Contractor. Each of the Contractor’s Documents shall be in the custody and care of the Contractor, unless and until taken over by the Employer. Unless otherwise stated in the Contract, the Contractor shall supply to the Engineer six copies of each of the Contractor’s Documents. The Contractor shall keep, on the Site, a copy of the Contract, publications named in the Specification, the Contractor’s Documents (if any), the Drawings and Variations and other communications given under the Contract. The Employer’s Personnel shall have the right of access to all these documents at all reasonable times. If a Party becomes aware of an error or defect of a technical nature in a document which was prepared for use in executing the Works, the Party shall promptly give notice to the other Party of such error or defect. 6 Conditions of Contract for Construction Mustafa USALAN 0 532 4712921 [email protected] Licensed copy: scottwilson, Scott Wilson Holdings, 20/01/2010, Uncontrolled Copy, ®FIDIC 1.9 Delayed Drawings or Instructions The Contractor shall give notice to the Engineer whenever the Works are likely to be delayed or disrupted if any necessary drawing or instruction is not issued to the Contractor within a particular time, which shall be reasonable. The notice shall include details of the necessary drawing or instruction, details of why and by when it should be issued, and details of the nature and amount of the delay or disruption likely to be suffered if it is late. If the Contractor suffers delay and/or incurs Cost as a result of a failure of the Engineer to issue the notified drawing or instruction within a time which is reasonable and is specified in the notice with supporting details, the Contractor shall give a further notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to: (a) (b) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and payment of any such Cost plus reasonable profit, which shall be included in the Contract Price. After receiving this further notice, the Engineer shall proceed in accordance with SubClause 3.5 [Determinations] to agree or determine these matters. However, if and to the extent that the Engineer’s failure was caused by any error or delay by the Contractor, including an error in, or delay in the submission of, any of the Contractor’s Documents, the Contractor shall not be entitled to such extension of time, Cost or profit. 1.10 Employer’s Use of Contractor’s Documents As between the Parties, the Contractor shall retain the copyright and other intellectual property rights in the Contractor’s Documents and other design documents made by (or on behalf of) the Contractor. The Contractor shall be deemed (by signing the Contract) to give to the Employer a non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the Contractor’s Documents, including making and using modifications of them. This licence shall: (a) (b) (c) apply throughout the actual or intended working life (whichever is longer) of the relevant parts of the Works, entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the Contractor’s Documents for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works, and in the case of Contractor’s Documents which are in the form of computer programs and other software, permit their use on any computer on the Site and other places as envisaged by the Contract, including replacements of any computers supplied by the Contractor. The Contractor’s Documents and other design documents made by (or on behalf of) the Contractor shall not, without the Contractor’s consent, be used, copied or communicated to a third party by (or on behalf of) the Employer for purposes other than those permitted under this Sub-Clause. 1.11 Contractor’s Use of Employer’s Documents General Conditions As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Specification, the Drawings and other documents made by (or on behalf of) the Employer. The Contractor may, at his cost, copy, use, and obtain communication of these documents for the purposes of the Contract. They shall not, 7 Mustafa USALAN 0 532 4712921 [email protected] without the Employer’s consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract. 1.12 Confidential Details 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. Licensed copy: scottwilson, Scott Wilson Holdings, 20/01/2010, Uncontrolled Copy, ®FIDIC 1.13 Compliance with Laws The Contractor shall, in performing the Contract, comply with applicable Laws. Unless otherwise stated in the Particular Conditions: (a) (b) the Employer shall have obtained (or shall obtain) the planning, zoning or similar permission for the Permanent Works, and any other permissions described in the Specification as having been (or being) obtained by the Employer; and the Employer shall indemnify and hold the Contractor harmless against and from the consequences of any failure to do so; and the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all permits, licences and approvals, as required by the Laws in relation to the execution and completion of the Works and the remedying of any defects; and the Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so. 1.14 Joint and Several Liability If the Contractor constitutes (under applicable Laws) a joint venture, consortium or other unincorporated grouping of two or more persons: (a) (b) (c) these persons shall be deemed to be jointly and severally liable to the Employer for the performance of the Contract; these persons shall notify the Employer of their leader who shall have authority to bind the Contractor and each of these persons; and the Contractor shall not alter its composition or legal status without the prior consent of the Employer. 2 The Employer 2.1 Right of Access to the Site The Employer shall give the Contractor right of access to, and possession of, all parts of the Site within the time (or times) stated in the Appendix to Tender. The right and possession may not be exclusive to the Contractor. If, under the Contract, the Employer is required to give (to the Contractor) possession of any foundation, structure, plant or means of access, the Employer shall do so in the time and manner stated in the Specification. However, the Employer may withhold any such right or possession until the Performance Security has been received. If no such time is stated in the Appendix to Tender, the Employer shall give the Contractor right of access to, and possession of, the Site within such times as may be required to enable the Contractor to proceed in accordance with the programme submitted under Sub-Clause 8.3 [Programme]. If the Contractor suffers delay and/or incurs Cost as a result of a failure by the Employer to give any such right or possession within such time, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to: 8 Conditions of Contract for Construction Mustafa USALAN 0 532 4712921 [email protected] (a) (b) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and payment of any such Cost plus reasonable profit, which shall be included in the Contract Price. Licensed copy: scottwilson, Scott Wilson Holdings, 20/01/2010, Uncontrolled Copy, ®FIDIC After receiving this notice, the Engineer shall proceed in accordance with SubClause 3.5 [Determinations] to agree or determine these matters. However, if and to the extent that the Employer’s failure was caused by any error or delay by the Contractor, including an error in, or delay in the submission of, any of the Contractor’s Documents, the Contractor shall not be entitled to such extension of time, Cost or profit. 2.2 Permits, Licences or Approvals The Employer shall (where he is in a position to do so) provide reasonable assistance to the Contractor at the request of the Contractor: (a) (b) by obtaining copies of the Laws of the Country which are relevant to the Contract but are not readily available, and for the Contractor’s applications for any permits, licences or approvals required by the Laws of the Country: (i) (ii) (iii) which the Contractor is required to obtain under Sub-Clause 1.13 [Compliance with Laws], for the delivery of Goods, including clearance through customs, and for the export of Contractor’s Equipment when it is removed from the Site. 2.3 Employer’s Personnel The Employer shall be responsible for ensuring that the Employer’s Personnel and the Employer’s other contractors on the Site: (a) (b) co-operate with the Contractor’s efforts under Sub-Clause 4.6 [Co-operation], and take actions similar to those which the Contractor is required to take under subparagraphs (a), (b) and (c) of Sub-Clause 4.8 [Safety Procedures] and under Sub-Clause 4.18 [Protection of the Environment]. 2.4 Employer’s Financial Arrangements The Employer shall submit, within 28 days after receiving any request from the Contractor, reasonable evidence that financial arrangements have been made and are being maintained which will enable the Employer to pay the Contract Price (as estimated at that time) in accordance with Clause 14 [Contract Price and Payment]. If the Employer intends to make any material change to his financial arrangements, the Employer shall give notice to the Contractor with detailed particulars. 2.5 Employer’s Claims If the Employer considers himself to be entitled to any payment under any Clause of these Conditions or otherwise in connection with the Contract, and/or to any extension of the Defects Notification Period, the Employer or the Engineer shall give notice and particulars to the Contractor. However, notice is not required for payments due under Sub-Clause 4.19 [Electricity, Water and Gas], under Sub-Clause 4.20 [Employer’s Equipment and Free-Issue Material], or for other services requested by the Contractor. The notice shall be given as soon as practicable after the Employer became aware of the event or circumstances giving rise to the claim. A notice relating to any extension of the Defects Notification Period shall be given before the expiry of such period. General Conditions 9