Yellow 2017-1-5 PDF General Conditions FIDIC

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 If the Contractor finds an error, fault or defect in the Employer’s Requirements as a result of scrutinising them under Sub-Clause 5.1 [General...

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 If the Contractor finds an error, fault or defect in the Employer’s Requirements as a result of scrutinising them under Sub-Clause 5.1 [General Design Obligations], the Contractor shall give a Notice to the Engineer within the period stated in the Contract Data (if not stated, 42 days) calculated from the Commencement Date. If, after expiry of this period, the Contractor finds an error, fault or defect in the Employer’s Requirements, the Contractor shall also give a Notice to the Engineer describing the error, fault or defect. The Engineer shall then proceed as specified under Sub-Clause 3.7 [Agreement or Determination] to agree or determine: (a) (b) (c) whether or not there is an error, fault or defect in the Employer’s Requirements; whether or not (taking account of cost and time) an experienced contractor exercising due care would have discovered the error, fault or other defect: • when examining the Site and the Employer’s Requirements before submitting the Tender; or • if the Contractor’s Notice is given after the expiry of the period stated in the first paragraph of this Sub-Clause, when scrutinising the Employer’s Requirements under Sub-Clause 5.1 [General Design Obligations]; and what measures (if any) the Contractor is required to take to rectify the error, fault or defect (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the Contractor’s Notice under this Sub-Clause shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). If, under sub-paragraph (b) above, an experienced contractor would not have discovered the error, fault or other defect: (i) (ii) 1.10 Employer’s Use of Contractor’s Documents General Conditions © FIDIC 2017 Sub-Clause 13.3.1 [Variation by Instruction] shall apply to the measures that the Contractor is required to take (if any); and if the Contractor suffers delay and/or incurs Cost as a result of the error, fault or defect, 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. 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 Agreement) to give to the Employer a non-terminable transferable non-exclusive royalty-free 11 GENERAL CONDITIONS GUIDANCE 1.9 Errors in the Employer’s Requirements If a Party (or the Engineer) becomes aware of an error or defect (whether of a technical nature or otherwise) in a document which was prepared by (or on behalf of) the Contractor for use in the execution of the Works, the Party (or the Engineer) shall promptly give a Notice of such error or defect to the other Party (or to the Parties). The Contractor shall then promptly rectify the error or defect at the Contractor’s risk and cost. FORMS 4 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 Contractor shall provide the Plant (and spare parts, if any) and Contractor’s Documents specified in the Employer’s Requirements, and all Contractor’s Personnel, Goods, consumables and other things and services, whether of a temporary or permanent nature, required to fulfil the Contractor’s obligations under the Contract. The Works shall include any work which is necessary to satisfy the Employer’s Requirements, Contractor’s Proposal and Schedules, or is implied by the Contract, and all works which (although not mentioned in the Contract) are necessary for stability or for the completion, or safe and proper operation, of the Works. 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 Works. The Contractor shall, whenever required by the Engineer, submit details of the arrangements and methods which the Contractor proposes to adopt for the execution of the Works. No significant alteration to these arrangements and methods shall be made without this alteration having been submitted to the Engineer. 4.2 Performance Security 4.2.1 The Contractor shall obtain (at the Contractor’s cost) a Performance Security to secure the Contractor’s proper performance of the Contract, in the amount and currencies stated in the Contract Data. If no amount is stated in the Contract Data, this Sub-Clause shall not apply. Contractor’s obligations The Contractor shall deliver the Performance Security to the Employer, with a copy to the Engineer, within 28 days after receiving the Letter of Acceptance. The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) to which the Employer gives consent and shall be in the form annexed to the Particular Conditions, or in another form agreed by the Employer (but such consent and/or agreement shall not relieve the Contractor from any obligation under this Sub-Clause). The Contractor shall ensure that the Performance Security remains valid and enforceable until the issue of the Performance Certificate and the Contractor has complied with Sub-Clause 11.11 [Clearance of Site]. If the terms of the Performance Security specify an expiry date, and the Contractor has not become entitled to receive the Performance Certificate by the date 28 days before the expiry date, the Contractor shall extend the validity of the Performance Security until the issue of the Performance Certificate and the Contractor has complied with Sub-Clause 11.11 [Clearance of Site]. General Conditions © FIDIC 2017 23 GUIDANCE The Contractor shall execute the Works in accordance with the Contract. When completed, the Works (or Section or Part or major item of Plant, if any) shall be fit for the purpose(s) for which they are intended, as defined and described in the Employer’s Requirements (or, where no purpose(s) are so defined and described, fit for their ordinary purpose(s)). FORMS 4.1 Contractor’s General Obligations GENERAL CONDITIONS The Contractor GENERAL CONDITIONS of the Works, a suitable replacement shall be temporarily appointed, subject to the Engineer’s prior consent. The Contractor’s Representative may delegate any powers, functions and authority except: FORMS GUIDANCE (a) (b) to any suitably competent and experienced person and may at any time revoke the delegation. Any delegation or revocation shall not take effect until the Engineer has received a Notice from the Contractor’s Representative, naming the person, specifying the powers, functions and authority being delegated or revoked, and stating the timing of the delegation or revocation. All these persons shall be fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language]. 4.4 Subcontractors 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 authority to issue and receive Notices and other communications under Sub-Clause 1.3 [Notices and Other Communications]; and the authority to receive instructions under Sub-Clause 3.5 [Engineer’s Instructions]), The Contractor shall not subcontract: (a) (b) works with a total accumulated value greater than the percentage of the Accepted Contract Amount stated in the Contract Data (if not stated, the whole of the Works); or any part of the Works for which subcontracting is not permitted as stated in the Contract Data. The Contractor shall be responsible for the work of all Subcontractors, for managing and coordinating all the Subcontractors’ works, and for the acts or defaults of any Subcontractor, any Subcontractor’s agents or employees, as if they were the acts or defaults of the Contractor. The Contractor shall obtain the Engineer’s prior consent to all proposed Subcontractors, except: (i) (ii) suppliers of Materials; or a subcontract for which the Subcontractor is named in the Contract. Where the Contractor is required to obtain the Engineer’s consent to a proposed Subcontractor, the Contractor shall submit the name, address, detailed particulars and relevant experience of such Subcontractor and the work intended to be subcontracted to the Engineer and further information which the Engineer may reasonably require. If the Engineer does not respond within 14 days after receiving this submission (or further information if requested), by giving a Notice objecting to the proposed Subcontractor, the Engineer shall be deemed to have given his/her consent. The Contractor shall give a Notice to the Engineer not less than 28 days before the intended date of the commencement of each Subcontractor’s work, and of the commencement of such work on the Site. 4.5 Nominated Subcontractors 26 © FIDIC 2017 In this Sub-Clause, “nominated Subcontractor” means a Subcontractor named as such in the Employer’s Requirements or whom the Engineer, under Sub-Clause 13.4 [Provisional Sums], instructs the Contractor to employ as a Subcontractor. Conditions of Contract for Plant and Design-Build GENERAL CONDITIONS before submitting the Tender as to all matters relevant to the execution of the Works, including: (a) (b) FORMS GUIDANCE (c) (d) (e) 4.11 Sufficiency of the Accepted Contract Amount The Contractor shall be deemed to: (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 (b) 4.12 Unforeseeable Physical Conditions 4.12.1 In this Sub-Clause, “physical conditions” means natural physical conditions and physical obstructions (natural or man-made) and pollutants, which the Contractor encounters at the Site during execution of the Works, including sub-surface and hydrological conditions but excluding climatic conditions at the Site and the effects of those climatic conditions. If the Contractor encounters physical conditions which the Contractor considers to have been Unforeseeable and that will have an adverse effect on the progress and/or increase the Cost of the execution of the Works, the following procedure shall apply: Contractor’s Notice After discovery of such physical conditions, the Contractor shall give a Notice to the Engineer, which shall: (b) (c) (d) © FIDIC 2017 have satisfied himself/herself as to the correctness and sufficiency of the Accepted Contract Amount; and have based the Accepted Contract Amount on the data, interpretations, necessary information, inspections, examinations and satisfaction as to all relevant matters described in Sub-Clause 4.10 [Use of Site Data] and any further data relevant to the Contractor’s design. Unless otherwise stated in the Contract, the Accepted Contract Amount shall be deemed to cover all the Contractor’s obligations under the Contract and all things necessary for the proper execution of the Works in accordance with the Contract. (a) 32 the form and nature of the Site, including sub-surface conditions; the hydrological and climatic conditions, and the effects of climatic conditions at the Site; the extent and nature of the work and Goods necessary for the execution of the Works; the Laws, procedures and labour practices of the Country; and the Contractor’s requirements for access, accommodation, facilities, personnel, power, transport, water and any other utilities or services. be given as soon as practicable and in good time to give the Engineer opportunity to inspect and investigate the physical conditions promptly and before they are disturbed; describe the physical conditions, so that they can be inspected and/ or investigated promptly by the Engineer; set out the reasons why the Contractor considers the physical conditions to be Unforeseeable; and describe the manner in which the physical conditions will have an adverse effect on the progress and/or increase the Cost of the execution of the Works. Conditions of Contract for Plant and Design-Build 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 4.23 Archaeological and Geological Findings Promptly after the issue of a Taking-Over Certificate, the Contractor shall clear away and remove, from that part of the Site and Works to which the Taking-Over Certificate refers, all Contractor’s Equipment, surplus material, wreckage, rubbish, hazardous waste and Temporary Works. The Contractor shall leave that part of the Site and the Works in a clean and safe condition. However, the Contractor may retain at locations on the Site agreed with the Engineer, during the DNP, such Goods as are required for the Contractor to fulfil obligations under the Contract. All fossils, coins, articles of value or antiquity, and structures and other remains or items of geological or archaeological interest found on the Site shall be placed under the care and authority of the Employer. The Contractor shall take all reasonable precautions to prevent Contractor’s Personnel or other persons from removing or damaging any of these findings. The Contractor shall, as soon as practicable after discovery of any such finding, give a Notice to the Engineer in good time to give the Engineer opportunity to promptly inspect and/or investigate the finding before it is disturbed. This Notice shall describe the finding and the Engineer shall issue instructions for dealing with it. If the Contractor suffers delay and/or incurs Cost from complying with the Engineer’s instructions, 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. 5 Design 5.1 General Design Obligations The Contractor shall carry out, and be responsible for, the design of the Works. Design shall be prepared by designers who: (a) (b) (c) are engineers or other professionals, qualified, experienced and competent in the disciplines of the design for which they are responsible; comply with the criteria (if any) stated in the Employer’s Requirements; and are qualified and entitled under applicable Laws to design the Works. Unless otherwise stated in the Employer’s Requirements, the Contractor shall submit to the Engineer for consent the name, address, detailed particulars and relevant experience of each proposed designer/design Subcontractor. The Contractor warrants that the Contractor, the Contractor’s designers and design Subcontractors have the experience, capability and competence necessary for the design. The Contractor undertakes that the designers and design Subcontractors shall be available to attend discussions with the Engineer and/or the Employer at all reasonable times (on or off the Site), until the issue of the Performance Certificate. General Conditions © FIDIC 2017 37 GENERAL CONDITIONS GUIDANCE FORMS Equipment (subject to 4.17 [Contractor’s Equipment]) and/or surplus materials. The Contractor shall promptly clear away and remove from the Site any wreckage, rubbish, hazardous waste and Temporary Works which are no longer required.