Red 2017-28-144-56-60.pdf

FORMS GUIDANCE GENERAL CONDITIONS within 14 days after attending the measurement on Site or examining the measurement records, the Contractor shall be deemed to have accepted the measurement as accurate. • • 12.2 Method of Measurement This document is restricted for distribution withi...

FORMS GUIDANCE GENERAL CONDITIONS within 14 days after attending the measurement on Site or examining the measurement records, the Contractor shall be deemed to have accepted the measurement as accurate. • • 12.2 Method of Measurement This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org After receiving a Contractor’s Notice under this Sub-Clause, unless at that time such measurement is already subject to the last paragraph of Sub-Clause 13.3.1 [Variation by Instruction], the Engineer shall: 12.3 Valuation of the Works proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the measurement; and for the purpose of Sub-Clause 3.7.3 [Time limits], the date on which the Engineer receives the Contractor’s Notice shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3. Until such time as the measurement is agreed or determined, the Engineer shall assess a provisional measurement for the purposes of Interim Payment Certificates. 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 other applicable Schedule(s). Except as otherwise stated in the Contract, measurement shall be made of the net actual quantity of each item of the Permanent Works and no allowance shall be made for bulking, shrinkage or waste. Except as otherwise stated in the Contract, the Engineer shall value each item of work by applying the measurement agreed or determined in accordance with Sub-Clauses 12.1 [Works to be Measured] and 12.2 [Method of Measurement], and the appropriate rate or price for the item. For each item of work, the appropriate rate or price for the item shall be the rate or price specified for such item in the Bill of Quantities or other Schedule or, if there is no such an item, specified for similar work. Any item of work which is identified in the Bill of Quantities or other Schedule, but for which no rate or price is specified, shall be deemed to be included in other rates and prices in the Bill of Quantities or other Schedule(s). A new rate or price shall be appropriate for an item of work if: (a) (b) 62 © FIDIC 2017 the item is not identified in, and no rate or price for this item is specified in, the Bill of Quantities or other Schedule and no specified rate or price is appropriate because the item of work is not of similar character, or is not executed under similar conditions, as any item in the Contract; (i) the measured quantity of the item is changed by more than 10% from the quantity of this item in the Bill of Quantities or other Schedule, (ii) this change in quantity multiplied by the rate or price specified in the Bill of Quantities or other Schedule for this item exceeds 0.01% of the Accepted Contract Amount, (iii) this change in quantity directly changes the Cost per unit quantity of this item by more than 1%, and Conditions of Contract for Construction This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org Each new rate or price shall be derived from any relevant rates or prices specified in the Bill of Quantities or other Schedule, with reasonable adjustments to take account of the matters described in sub-paragraph (a), (b) and/or (c), as applicable. If no specified rates or prices are relevant for the 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. If, for any item of work, the Engineer and the Contractor are unable to agree 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: • • 12.4 Omissions Until such time as an appropriate rate or price is agreed or determined, the Engineer shall assess a provisional rate or price for the purposes of Interim Payment Certificates. Whenever the omission of any work forms part (or all) of a Variation; (a) (b) (c) (d) proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the appropriate rate or price; and for the purpose of Sub-Clause 3.7.3 [Time limits], the date on which the Engineer receives the Contractor’s Notice shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3. the value of which has not otherwise been agreed; the Contractor will incur (or has incurred) cost which, if the work had not been omitted, would have been deemed to be covered by a sum forming part of the Accepted Contract Amount; the omission of the work will result (or has resulted) in this sum not forming part of the Contract Price; and this cost is not deemed to be included in the valuation of any substituted work; then the Contractor shall, in the Contractor’s proposal under sub-paragraph (c) of Sub-Clause 13.3.1 [Variation by Instruction], give details to the Engineer accordingly, with detailed supporting particulars. 13 Variations and Adjustments 13.1 Right to Vary General Conditions © FIDIC 2017 Variations may be initiated by the Engineer under Sub-Clause 13.3 [Variation Procedure] at any time before the issue of the Taking-Over Certificate for the Works. 63 GENERAL CONDITIONS GUIDANCE (c) (iv) this item is not specified in the Bill of Quantities or other Schedule as a “fixed rate item”, “fixed charge” or similar term referring to a rate or price which is not subject to adjustment for any change in quantity; and/or the work is instructed under Clause 13 [Variations and Adjustments] and sub-paragraph (a) or (b) above applies. FORMS GENERAL CONDITIONS Other than as stated under Sub-Clause 11.4 [Failure to Remedy Defects], a Variation shall not comprise the omission of any work which is to be carried out by the Employer or by others unless otherwise agreed by the Parties. The Contractor shall be bound by each Variation instructed under Sub-Clause 13.3.1 [Variation by Instruction], and shall execute the Variation with due expedition and without delay, unless the Contractor promptly gives a Notice to the Engineer stating (with detailed supporting particulars) that: GUIDANCE (a) (b) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org FORMS (c) the varied work was Unforeseeable having regard to the scope and nature of the Works described in the Specification; the Contractor cannot readily obtain the Goods required for the Variation; or it will adversely affect the Contractor’s ability to comply with Sub-Clause 4.8 [Health and Safety Obligations] and/or Sub-Clause 4.18 [Protection of the Environment]. Promptly after receiving this Notice, the Engineer shall respond by giving a Notice to the Contractor cancelling, confirming or varying the instruction. Any instruction so confirmed or varied shall be taken as an instruction under Sub-Clause 13.3.1 [Variation by instruction]. Each Variation may include: (i) (ii) (iii) (iv) (v) (vi) 13.2 Value Engineering changes to the quantities of any item of work included in the Contract (however, such changes do not necessarily constitute a Variation); changes to the quality and other characteristics of any item of work; changes to the levels, positions and/or dimensions of any part of the Works; the omission of any work, unless it is to be carried out by others without the agreement of the Parties; any additional work, Plant, Materials or services necessary for the Permanent Works, including any associated Tests on Completion, boreholes and other testing and exploratory work; or changes to the sequence or timing of the execution of the Works. The Contractor shall not make any alteration to and/or modification of the Permanent Works, unless and until the Engineer instructs a Variation under Sub-Clause 13.3.1 [Variation by Instruction]. The Contractor may, at any time, submit to the Engineer a written proposal which (in the Contractor’s opinion) will, if adopted: (a) (b) (c) (d) accelerate completion; reduce the cost to the Employer of executing, maintaining or operating the Works; improve the efficiency or value to the Employer of the completed Works; or otherwise be of benefit to the Employer. The proposal shall be prepared at the cost of the Contractor and shall include the details as stated in sub-paragraphs (a) to (c) of Sub-Clause 13.3.1 [Variation by Instruction]. The Engineer shall, as soon as practicable after receiving such a proposal, respond by giving a Notice to the Contractor stating his/her consent or 64 © FIDIC 2017 Conditions of Contract for Construction  If a proposal under this Sub-Clause, to which the Engineer gives his/her consent, includes a change in the design of part of the Permanent Works, then unless otherwise agreed by both Parties: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (i) (ii) 13.3 Variation Procedure 13.3.1 the Contractor shall design this part at his/her cost; and sub-paragraphs (a) to (h) of Sub-Clause 4.1 [Contractor’s General Obligations] shall apply. Subject to Sub-Clause 13.1 [Right to Vary], Variations shall be initiated by the Engineer in accordance with either of the following procedures: Variation by Instruction The Engineer may instruct a Variation by giving a Notice (describing the required change and stating any requirements for the recording of Costs) to the Contractor in accordance with Sub-Clause 3.5 [Engineer’s Instructions]. The Contractor shall proceed with execution of the Variation and shall within 28 days (or other period proposed by the Contractor and agreed by the Engineer) of receiving the Engineer’s instruction, submit to the Engineer detailed particulars including: (a) (b) (c) a description of the varied work performed or to be performed, including details of the resources and methods adopted or to be adopted by the Contractor; a programme for its execution and the Contractor’s proposal for any necessary modifications (if any) to the Programme according to Sub-Clause 8.3 [Programme] and to the Time for Completion; and the Contractor’s proposal for adjustment to the Contract Price by valuing the Variation in accordance with Clause 12 [Measurement and Valuation], with supporting particulars (which shall include identification of any estimated quantities and, if the Contractor incurs or will incur Cost as a result of any necessary modification to the Time for Completion, shall show the additional payment (if any) to which the Contractor considers that the Contractor is entitled). If the Parties have agreed to the omission of any work which is to be carried out by others, the Contractor’s proposal may also include the amount of any loss of profit and other losses and damages suffered (or to be suffered) by the Contractor as a result of the omission. Thereafter, the Contractor shall submit any further particulars that the Engineer may reasonably require. The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine: General Conditions © FIDIC 2017 65 GENERAL CONDITIONS If the Engineer gives his/her consent to the proposal, with or without comments, the Engineer shall then instruct a Variation. Thereafter, the Contractor shall submit any further particulars that the Engineer may reasonably require, and the last paragraph of Sub-Clause 13.3.1 [Variation by Instruction] shall apply which shall include consideration by the Engineer of the sharing (if any) of the benefit, costs and/or delay between the Parties stated in the Particular Conditions. GUIDANCE FORMS otherwise. The Engineer’s consent or otherwise shall be at the sole discretion of the Employer. The Contractor shall not delay any work while awaiting a response.  GUIDANCE GENERAL CONDITIONS (i) (ii) FORMS 13.3.2 (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the Contractor’s submission (including any requested further particulars) shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). The Contractor shall be entitled to such EOT and/or adjustment to the Contract Price, without any requirement to comply with Sub-Clause 20.2 [Claims For Payment and/or EOT]. Variation by Request for Proposal The Engineer may request a proposal, before instructing a Variation, by giving a Notice (describing the proposed change) to the Contractor. The Contractor shall respond to this Notice as soon as practicable, by either: (a) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org EOT, if any; and/or the adjustment to the Contract Price (including valuation of the Variation in accordance with Clause 12 [Measurement and Valuation] using measured quantities of the varied work) (b) submitting a proposal, which shall include the matters as described in sub-paragraphs (a) to (c) of Sub-Clause 13.3.1 [Variation by Instruction]; or giving reasons why the Contractor cannot comply (if this is the case), by reference to the matters described in sub-paragraphs (a) to (c) of Sub-Clause 13.1 [Right to Vary]. If the Contractor submits a proposal, the Engineer shall, as soon as practicable after receiving it, respond by giving a Notice to the Contractor stating his/her consent or otherwise. The Contractor shall not delay any work whilst awaiting a response. If the Engineer gives consent to the proposal, with or without comments, the Engineer shall then instruct the Variation. Thereafter, the Contractor shall submit any further particulars that the Engineer may reasonably require and the last paragraph of Sub-Clause 13.3.1 [Variation by Instruction] shall apply. If the Engineer does not give consent to the proposal, with or without comments, and if the Contractor has incurred Cost as a result of submitting it, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of such Cost. 13.4 Provisional Sums Each Provisional Sum shall only be used, in whole or in part, in accordance with the Engineer’s instructions, and the Contract Price shall be adjusted accordingly. The total sum paid to the Contractor shall include only such amounts for the work, supplies or services to which the Provisional Sum relates, as the Engineer shall have instructed. For each Provisional Sum, the Engineer may instruct: (a) (b) 66 © FIDIC 2017 work to be executed (including Plant, Materials or services to be supplied) by the Contractor, and for which adjustments to the Contract Price shall be agreed or determined under Sub-Clause 13.3.1 [Variation by Instruction]; and/or Plant, Materials, works or services to be purchased by the Contractor from a nominated Subcontractor (as defined in Sub-Clause 5.2 [Nominated Subcontractors]) or otherwise; and for which there shall be included in the Contract Price: Conditions of Contract for Construction