FIDIC 2017 Conditions of Contract for Construction PDF

GUIDANCE GENERAL CONDITIONS (viii) (ix) (x) 14.4 Schedule of Payments If the Contract includes a Schedule of Payments specifying the instalments in which the Contract Price will be paid then, unless otherwise stated in this Schedule: FORMS (a) (b) (c) This document is restricted for d...

GUIDANCE GENERAL CONDITIONS (viii) (ix) (x) 14.4 Schedule of Payments If the Contract includes a Schedule of Payments specifying the instalments in which the Contract Price will be paid then, unless otherwise stated in this Schedule: FORMS (a) (b) (c) 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 any amount to be added for release of Retention Money under Sub-Clause 14.9 [Release of Retention Money]; any amount to be deducted for the Contractor’s use of utilities provided by the Employer under Sub-Clause 4.19 [Temporary Utilities]; and the deduction of amounts certified in all previous Payment Certificates. the instalments quoted in the Schedule of Payments shall be treated as the estimated contract values for the purposes of sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim Payment]; Sub-Clause 14.5 [Plant and Materials intended for the Works] shall not apply; and 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, then the Engineer may proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine revised instalments (and for the purpose of Sub-Clause 3.7.3 [Time limits] the date when the difference under sub-paragraph (ii) above was found by the Engineer shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). Such revised instalments shall take account of the extent to which progress differs from that on which the Schedule of Payments was based. If the Contract does not include a Schedule of Payments, the Contractor shall submit non-binding estimates of the payments which the Contractor expects to become due during each period of 3 months. The first estimate shall be submitted within 42 days after the Commencement Date. Revised estimates shall be submitted at intervals of 3 months, until the issue of the Taking-Over Certificate for the Works. 14.5 Plant and Materials intended for the Works If no Plant and/or Materials are listed in the Contract Data for payment when shipped and/or payment when delivered, this Sub-Clause shall not apply. The Contractor shall include, under sub-paragraph (v) of Sub-Clause 14.3 [Application for Interim Payment]: - - 72 © FIDIC 2017 an amount to be added for Plant and Materials which have been shipped or delivered (as the case may be) to the Site for incorporation in the Permanent Works; and an amount to be deducted when the contract value of such Plant and Materials is included as part of the Permanent Works under sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim Payment]. The Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine each amount to be added for Plant and Materials if the following conditions are fulfilled (and for the purpose of Sub-Clause 3.7.3 [Time limits] the date these conditions are fulfilled shall be Conditions of Contract for Construction  and either: 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 (b) the relevant Plant and Materials: (i) are those listed in the Contract Data for payment when shipped; (ii) have been shipped to the Country, en route to the Site, in accordance with the Contract; and (iii) are described in a clean shipped bill of lading or other evidence of shipment, which has been submitted to the Engineer together with: • evidence of payment of freight and insurance; • any other documents reasonably required by the Engineer; and • a written undertaking by the Contractor that the Contractor will deliver to the Employer (prior to submitting the next Statement) a bank guarantee in a form and issued by an entity to which the Employer gives consent (but such consent shall not relieve the Contractor from any obligation in the following provisions of this sub-paragraph), in amounts and currencies equal to the amount due under this Sub-Clause. This guarantee shall be in a similar form to the form described in Sub-Clause 14.2.1 [Advance Payment Guarantee] and shall be valid until the Plant and Materials are properly stored on Site and protected against loss, damage or deterioration; or (c) General Conditions © FIDIC 2017 the relevant Plant and Materials: (i) are those listed in the Contract Data for payment when delivered to the Site, and (ii) have been delivered to and are properly stored on the Site, are protected against loss, damage or deterioration, and appear to be in accordance with the Contract. The amount so agreed or determined shall take account of the evidence and documents required under this Sub-Clause and of the contract value of the Plant and Materials. If sub-paragraph (b) above applies, the Engineer shall have no obligation to certify any payment under this Sub-Clause until the Employer has received the bank guarantee in accordance with sub-paragraph (b)(iii) above. The sum to be certified by the Engineer in an IPC shall be the equivalent of eighty percent (80%) of this agreed or determined amount. The currencies for this certified sum shall be the same as those in which payment will become due when the contract value is included under 73 GENERAL CONDITIONS the Contractor has: (i) kept satisfactory records (including the orders, receipts, Costs and use of Plant and Materials) which are available for inspection by the Engineer; (ii) submitted evidence demonstrating that the Plant and Materials comply with the Contract (which may include test certificates under Sub-Clause 7.4 [Testing by the Contractor] and/or compliance verification documentation under Sub-Clause 4.9.2 [Compliance Verification System]) to the Engineer; and (iii) submitted a statement of the Cost of acquiring and shipping or delivering (as the case may be) the Plant and Materials to the Site, supported by satisfactory evidence; GUIDANCE (a) FORMS the date of commencement of the time limit for agreement under Sub-Clause 3.7.3): GENERAL CONDITIONS sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim Payment]. At that time, the Payment Certificate shall include the applicable amount to be deducted which shall be equivalent to, and in the same currencies and proportions as, this additional amount for the relevant Plant and Materials. GUIDANCE 14.6 Issue of IPC No amount will be certified or paid to the Contractor until: (a) FORMS (b) 14.6.1 The IPC The Engineer shall, within 28 days after receiving a Statement and supporting documents, issue an IPC to the Employer, with a copy to the Contractor: 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 (a) (b) 14.6.2 the Employer has received the Performance Security in the form, and issued by an entity, in accordance with Sub-Clause 4.2.1 [Contractor’s obligations]; and the Contractor has appointed the Contractor’s Representative in accordance with Sub-Clause 4.3 [Contractor’s Representative]. stating the amount which the Engineer fairly considers to be due; and including any additions and/or deductions which have become due under Sub-Clause 3.7 [Agreement or Determination] or under the Contract or otherwise, with detailed supporting particulars (which shall identify any difference between a certified amount and the corresponding amount in the Statement and give the reasons for such difference). Withholding (amounts in) an IPC Before the issue of the Taking-Over Certificate for the Works, the Engineer may withhold an IPC in an amount which would (after retention and other deductions) be less than the minimum amount of the IPC (if any) stated in the Contract Data. In this event, the Engineer shall promptly give a Notice to the Contractor accordingly. An IPC shall not be withheld for any other reason, although: (a) (b) (c) 74 © FIDIC 2017 if any thing supplied or work done by the Contractor is not in accordance with the Contract, the estimated cost of rectification or replacement may be withheld until rectification or replacement has been completed; if the Contractor was or is failing to perform any work, service or obligation in accordance with the Contract, the value of this work or obligation may be withheld until the work or obligation has been performed. In this event, the Engineer shall promptly give a Notice to the Contractor describing the failure and with detailed supporting particulars of the value withheld; and/or if the Engineer finds any significant error or discrepancy in the Statement or supporting documents, the amount of the IPC may take account of the extent to which this error or discrepancy has prevented or prejudiced proper investigation of the amounts in the Statement until such error or discrepancy is corrected in a subsequent Statement. For each amount so withheld, in the supporting particulars for the IPC the Engineer shall detail his/her calculation of the amount and state the reasons for it being withheld. Conditions of Contract for Construction The Engineer may in any Payment Certificate make any correction or modification that should properly be made to any previous Payment Certificate. A Payment Certificate shall not be deemed to indicate the Engineer’s acceptance, approval, consent or Notice of No-objection to any Contractor’s Document or to (any part of) the Works. If the Contractor considers that an IPC does not include any amounts to which the Contractor is entitled, these amounts shall be identified in the next Statement (the “identified amounts” in this paragraph). The Engineer shall then make any correction or modification that should properly be made in the next Payment Certificate. Thereafter, to the extent that: (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 14.7 Payment 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 purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives this Notice shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). The Employer shall pay to the Contractor: (a) (b) (c) 14.8 Delayed Payment General Conditions © FIDIC 2017 the Contractor is not satisfied that this next Payment Certificate includes the identified amounts; and the identified amounts do not concern a matter for which the Engineer is already carrying out his/her duties under Sub-Clause 3.7 [Agreement or Determination] the amount certified in each Advance Payment Certificate within the period stated in the Contract Data (if not stated, 21 days) after the Employer receives the Advance Payment Certificate; the amount certified in each IPC issued under: (i) Sub-Clause 14.6 [Issue of IPC], within the period stated in the Contract Data (if not stated, 56 days) after the Engineer receives the Statement and supporting documents; or (ii) Sub-Clause 14.13 [Issue of FPC], within the period stated in the Contract Data (if not stated, 28 days) after the Employer receives the IPC; and the amount certified in the FPC within the period stated in the Contract Data (if not stated, 56 days) after the Employer receives the FPC. Payment of the amount due in each currency shall be made into the bank account, nominated by the Contractor, in the payment country (for this currency) specified in the Contract. If the Contractor does not receive payment in accordance with Sub-Clause 14.7 [Payment], the Contractor shall be entitled to receive financing charges compounded monthly on the amount unpaid during the period of delay. This period shall be deemed to commence on the expiry of the time for payment specified in Sub-Clause 14.7 [Payment], irrespective (in the case of sub-paragraph (b) of Sub-Clause 14.7) of the date on which any IPC is issued. Unless otherwise stated in the Contract Data, these financing charges shall be calculated at the annual rate of three percent (3%) above: 75 GENERAL CONDITIONS GUIDANCE Correction or modification FORMS 14.6.3 FORMS GUIDANCE GENERAL CONDITIONS (a) (b) (c) The Contractor shall by request be entitled to payment of these financing charges by the Employer, without: (i) (ii) 14.9 Release of Retention Money the need for the Contractor to submit a Statement or any formal Notice (including any requirement to comply with Sub-Clause 20.2 [Claims For Payment and/or EOT]) or certification; and prejudice to any other right or remedy. After the issue of the Taking-Over Certificate for: (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 the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place of payment, or where no such rate exists at that place, the same rate in the country of the currency of payment, or in the absence of such a rate at either place, the appropriate rate fixed by the law of the country of the currency of payment. (b) the Works, the Contractor shall include the first half of the Retention Money in a Statement; or for a Section, the Contractor shall include the relevant percentage of the first half of the Retention Money in a Statement. After the latest of the expiry dates of the Defects Notification Periods, the Contractor shall include the second half of the Retention Money in a Statement promptly after such latest date. If a Taking-Over Certificate was (or was deemed to have been) issued for a Section, the Contractor shall include the relevant percentage of the second half of the Retention Money in a Statement promptly after the expiry date of the DNP for the Section. In the next IPC after the Engineer receives any such Statement, the Engineer shall certify the release of the corresponding amount of Retention Money. However, when certifying any release of Retention Money under Sub-Clause 14.6 [Issue of IPC], if any work remains to be executed under Clause 11 [Defects after Taking Over], the Engineer shall be entitled to withhold certification of the estimated cost of this work until it has been executed. The relevant percentage for each Section shall be the percentage value of the Section as stated in the Contract Data. If the percentage value of a Section is not stated in the Contract Data, no percentage of either half of the Retention Money shall be released under this Sub-Clause in respect of such Section. 14.10 Statement at Completion Within 84 days after the Date of Completion of the Works, the Contractor shall submit to the Engineer a Statement at completion with supporting documents, in accordance with Sub-Clause 14.3 [Application for Interim Payment], showing: (a) (b) (c) 76 © FIDIC 2017 the value of all work done in accordance with the Contract up to the Date of Completion of the Works any further sums which the Contractor considers to be due at the Date of Completion of the Works; and an estimate of any other amounts which the Contractor considers have or will become due after the Date of Completion of the Works under the Contract or otherwise. These estimated amounts shall be Conditions of Contract for Construction