Red 2017-28-144-1-15.pdf

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 1.2 Interpretation General Conditions 1.1.80 “Temporary Works” means all temporary works of every kind (other than Contractor’s Equipment) re...

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 1.2 Interpretation General Conditions 1.1.80 “Temporary Works” means all temporary works of every kind (other than Contractor’s Equipment) required on Site for the execution of the Works. 1.1.81 “Tender” means the Letter of Tender, the Contractor’s Proposal, the JV 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 Specification and which are carried out in accordance with the Special Provisions after the Works or a Section (as the case may be) are taken over 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 the case may be) are taken over under Clause 10 [Employer’s Taking Over]. 1.1.84 “Time for Completion” means the time for completing the Works or a Section (as the case may be) under Sub-Clause 8.2 [Time for Completion], as stated in the Contract Data as may be extended under Sub-Clause 8.5 [Extension of Time for Completion], calculated from the Commencement Date. 1.1.85 “Unforeseeable” means not reasonably foreseeable by an experienced contractor by the Base Date. 1.1.86 “Variation” means any change to the Works, which is instructed as a variation under Clause 13 [Variations and Adjustments]. 1.1.87 “Works” mean the Permanent Works and the Temporary Works, or either of them as appropriate. 1.1.88 “year” means 365 days. In the Contract, except where the context requires otherwise: © FIDIC 2017 (a) words indicating one gender include all genders; and “he”, “his” and “himself” shall be read as “he/she”, “his/her” and “himself/herself” respectively; (b) words indicating the singular also include the plural and words indicating the plural also include the singular; (c) provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing; (d) “written” or “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record; (e) “may” means that the Party or person referred to has the choice of whether to act or not in the matter referred to; 7 GENERAL CONDITIONS “Taking-Over Certificate” means a certificate issued (or deemed to be issued) by the Engineer in accordance with Clause 10 [Employer’s Taking Over]. GUIDANCE 1.1.79 FORMS or designer, for a part of the Works; and the legal successors in title to each of these persons. “shall” means that the Party or person referred to has an obligation under the Contract to perform the duty referred to; (g) “consent” means that the Employer, the Contractor or the Engineer (as the case may be) agrees to or gives permission for, the requested matter; (h) “including”, “include” and “includes” shall be interpreted as not being limited to, or qualified by, the stated items that follow; (i) words indicating persons or parties shall be interpreted as referring to natural and legal persons (including corporations and other legal entities); and (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 deemed to include design to the extent, if any, specified in the Contract) In any list in these Conditions, where the second-last item of the list is 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 in the interpretation of these Conditions. 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 GUIDANCE GENERAL CONDITIONS (f) 1.3 Notices and Other Communications Wherever these Conditions provide for the giving of a Notice (including a Notice of Dissatisfaction) or the issuing, providing, sending, submitting or transmitting of another type of communication (including acceptance, acknowledgement, advising, agreement, approval, certificate, Claim, consent, decision, determination, discharge, instruction, No-objection, record(s) of meeting, permission, proposal, record, reply, report, request, Review, Statement, statement, submission or any other similar type of communication), the Notice or other communication shall be in writing and: (a) (b) (c) (d) 8 © FIDIC 2017 shall be: (i) a paper-original signed by the Contractor’s Representative, the Engineer, or the authorised representative of the Employer (as the case may be); or (ii) an electronic original generated from any of the systems of electronic transmission stated in the Contract Data (if not stated, system(s) acceptable to the Engineer), where the electronic original is transmitted by the electronic address uniquely assigned to each of such authorised representatives, or both, as stated in these Conditions; and if it is a Notice, it shall be identified as a Notice. If it is another form of communication, it shall be identified as such and include reference to the provision(s) of the Contract under which it is issued where appropriate; delivered by hand (against receipt), or sent by mail or courier (against receipt), or transmitted using any of the systems of electronic transmission under sub-paragraph (a)(ii) above; and delivered, sent or transmitted to the address for the recipient’s communications as stated in the Contract Data. However, if the recipient gives a Notice of another address, all Notices and other communications shall be delivered accordingly after the sender receives such Notice. Conditions of Contract for Construction All Notices, and all other types of communication as referred to above, shall not be unreasonably withheld or delayed. When a Notice or NOD or certificate is issued by a Party or the Engineer, the paper and/or electronic original shall be sent to the intended recipient and a copy shall be sent to the Engineer or the other Party, as the case may be. All other communications shall be copied to the Parties and/or the Engineer as stated under these Conditions or elsewhere in the Contract. 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 1.4 Law and Language The Contract shall be governed by the law of the country (or other jurisdiction) stated in the Contract Data (if not stated, the law of the Country), excluding any conflict of law rules. The ruling language of the Contract shall be that stated in the Contract Data (if not stated, the language of these Conditions). 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 shall prevail. The language for communications shall be that stated in the Contract Data. If no language is stated there, the language for communications shall be the ruling language of the Contract. 1.5 Priority of Documents The documents forming the Contract are to be taken as mutually explanatory of one another. If there is any conflict, ambiguity or discrepancy, the priority of the documents shall be in accordance with the following sequence: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) General Conditions © FIDIC 2017 the Contract Agreement; the Letter of Acceptance; the Letter of Tender; the Particular Conditions Part A – Contract Data; the Particular Conditions Part B – Special Provisions; these General Conditions; the Specification; the Drawings; the Schedules; the JV Undertaking (if the Contractor is a JV); and any other documents forming part of the Contract. If a Party finds an ambiguity or discrepancy in the documents, that Party shall promptly give a Notice to the Engineer, describing the ambiguity or discrepancy. After receiving such Notice, or if the Engineer finds an ambiguity or discrepancy in the documents, the Engineer shall issue the necessary clarification or instruction. 9 GENERAL CONDITIONS GUIDANCE Where these Conditions state that a Notice or NOD or other communication is to be delivered, given, issued, provided, sent, submitted or transmitted, it shall have effect when it is received (or deemed to have been received) at the recipient’s current address under sub-paragraph (d) above. An electronically transmitted Notice or other communication is deemed to have been received on the day after transmission, provided no non-delivery notification was received by the sender. FORMS GENERAL CONDITIONS GUIDANCE 1.6 Contract Agreement FORMS 1.7 Assignment The Parties shall sign a Contract Agreement within 35 days after the Contractor receives the Letter of Acceptance, unless they agree otherwise. The Contract Agreement shall be based on 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. If the Contractor comprises a JV, the authorised representative of each member of the JV shall sign the Contract Agreement. 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) 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) 1.8 Care and Supply of Documents may assign the whole or any part of the Contract 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 the Party’s right to any moneys due, or to become due, under the Contract without the prior agreement of the other Party. 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 submitted to the Engineer. The Contractor shall supply to the Engineer one paper-original, one electronic copy (in the form as stated in the Specification or, if not stated, a form acceptable to the Engineer) and additional paper copies (if any) as stated in the Contract Data of each of the Contractor’s Documents. The Contractor shall keep at all times, on the Site, a copy of: (a) (b) (c) (d) (e) (f) the Contract; the records under Sub-Clause 6.10 [Contractor’s Records] and Sub-Clause 20.2.3 [Contemporary records]; the publications (if any) named in the Specification; the Contractor’s Documents; the Drawings; and Variations, Notices and other communications given under the Contract. The Employer’s Personnel shall have right of access to all these documents during all normal working hours, or as otherwise agreed with the Contractor. 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 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). 10 © FIDIC 2017 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 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 be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit. 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 EOT and/or Cost Plus 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, if any, 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 licence to copy, use and communicate the Contractor’s Documents (and such other design documents, if any), including making and using modifications of them. This licence shall: (a) (b) (c) (d) General Conditions © FIDIC 2017 apply throughout the actual or intended operational 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 (and such other design documents, if any) for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works; in the case of Contractor’s Documents (and such other design documents, if any) which are in the form of electronic or digital files, computer programs and other software, permit their use on any computer on the Site and/or at the locations of the Employer and the Engineer and/or at other places as envisaged by the Contract; and in the event of termination of the Contract: (i) under Sub-Clause 15.2 [Termination for Contractor’s Default], entitle the Employer to copy, use and communicate the Contractor’s Documents (and other design documents made by or for the Contractor, if any); or (ii) under Sub-Clause 15.5 [Termination for Employer’s Convenience], Sub-Clause 16.2 [Termination by Contractor] or Sub-Clause 18.5 [Optional Termination], entitle the Employer to copy, use and communicate the Contractor’s Documents for which the Contractor has received payment for the purpose of completing the Works and/or arranging for any other entities to do so. 11 GENERAL CONDITIONS GUIDANCE The Contractor shall give a 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. FORMS 1.9 Delayed Drawings or Instructions GENERAL CONDITIONS GUIDANCE 1.11 Contractor’s Use of Employer’s Documents FORMS 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 1.12 Confidentiality The Contractor’s Documents (and other design documents, if any, made by (or on behalf of) the Contractor) shall not, without the Contractor’s prior 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. As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Specification and Drawings and other documents made by (or on behalf of) the Employer. The Contractor may, at the Contractor’s cost, copy, use and communicate these documents for the purposes of the Contract. These documents (in whole or in part) shall not, without the Employer’s prior consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract. 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. The Contractor shall treat all documents forming the Contract as confidential, except to the extent necessary to carry out the Contractor’s obligations under the Contract. The Contractor shall not publish, permit to be published, or disclose any particulars of the Contract in any trade or technical paper or elsewhere without the Employer’s prior consent. The Employer and the Engineer shall treat all information provided by the Contractor and marked “confidential”, as confidential. The Employer shall not disclose or permit to be disclosed any such information to third parties, except as may be necessary when exercising the Employer’s rights under Sub-Clause 15.2 [Termination for Contractor’s Default]. A Party’s obligation of confidentiality under this Sub-Clause shall not apply where the information: (a) (b) (c) 1.13 Compliance with Laws The Contractor and the Employer shall, in performing the Contract, comply with all applicable Laws. Unless otherwise stated in the Specification: (a) 12 © FIDIC 2017 was already in that Party’s possession without an obligation of confidentiality before receipt from the other Party; becomes generally available to the public through no breach of these Conditions; or is lawfully obtained by the Party from a third party which is not bound by an obligation of confidentiality. the Employer shall have obtained (or shall obtain) the planning, zoning or building permit or similar permits, permissions, licences and/or approvals for the Permanent Works, and any other permits, permissions, licenses and/or approvals described in the Specification as having been (or being) obtained by the Employer. The Employer shall indemnify and hold the Contractor harmless against and from the consequences of any delay or failure to do so, unless the failure is caused by the Contractor’s failure to comply with sub-paragraph (c) below; 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 (d) If, having complied with sub-paragraph (c) above, the Contractor suffers delay and/or incurs Cost as a result of the Employer’s delay or failure to 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. If the Employer incurs additional costs as a result of the Contractor’s failure to comply with: (i) (ii) 1.14 Joint and Several Liability the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these costs by the Contractor. If the Contractor is a Joint Venture: (a) (b) (c) 1.15 Limitation of Liability (d) (e) (f) © FIDIC 2017 the members of the JV shall be jointly and severally liable to the Employer for the performance of the Contractor’s obligations under the Contract; the JV leader shall have authority to bind the Contractor and each member of the JV; and neither the members nor (if known) the scope and parts of the Works to be carried out by each member nor the legal status of the JV shall be altered without the prior consent of the Employer (but such consent shall not relieve the altered JV from any liability under sub-paragraph (a) above). Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than under: (a) (b) (c) General Conditions sub-paragraph (c) above; or sub-paragraph (b) or (d) above, provided that the Employer shall have complied with Sub-Clause 2.2 [Assistance], Sub-Clause 8.8 [Delay Damages]; sub-paragraph (c) of Sub-Clause 13.3.1 [Variation by Instruction]; Sub-Clause 15.7 [Payment after Termination for Employer’s Convenience]; Sub-Clause 16.4 [Payment after Termination by Contractor]; Sub-Clause 17.3 [Intellectual and Industrial Property Rights]; the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor]; 13 GENERAL CONDITIONS GUIDANCE (c) the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all other permits, permissions, licences and/or approvals, as required by the Laws in relation to the execution of the Works. The Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so unless the failure is caused by the Employer’s failure to comply with Sub-Clause 2.2 [Assistance]; within the time(s) stated in the Specification the Contractor shall provide such assistance and all documentation, as described in the Specification or otherwise reasonably required by the Employer, so as to allow the Employer to obtain any permit, permission, licence or approval under sub-paragraph (a) above; and the Contractor shall comply with all permits, permissions, licences and/or approvals obtained by the Employer under sub-paragraph (a) above. FORMS (b) (i) (ii) (iii) FORMS GUIDANCE GENERAL CONDITIONS (g) (iv) shall not exceed the sum stated in the Contract Data or (if a sum is not so stated) the Accepted Contract Amount. This Sub-Clause shall not limit liability in any case of fraud, gross negligence, deliberate default or reckless misconduct by the defaulting Party. 1.16 Contract Termination 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 and Sub-Clause 17.5 [Indemnities by Employer]. The total liability of the Contractor to the Employer under or in connection with the Contract, other than: under Sub-Clause 2.6 [Employer-Supplied Materials and Employer’s Equipment]; under Sub-Clause 4.19 [Temporary Utilities]; under Sub-Clause 17.3 [Intellectual and Industrial Property Rights]; and under the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor], Subject to any mandatory requirements under the governing law of the Contract, termination of the Contract under any Sub-Clause of these Conditions shall require no action of whatsoever kind by either Party other than as stated in the Sub-Clause. 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 Contract Data. 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 Contract Data, the Employer shall give the Contractor right of access to, and possession of, those parts of the Site within such times as may be required to enable the Contractor to proceed in accordance with the Programme or, if there is no Programme at that time, the initial 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 be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit. 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 applicable Contractor’s Documents, the Contractor shall not be entitled to such EOT and/or Cost Plus Profit. 2.2 Assistance 14 © FIDIC 2017 If requested by the Contractor, the Employer shall promptly provide reasonable assistance to the Contractor so as to allow the Contractor to obtain: Conditions of Contract for Construction  2.3 Employer’s Personnel and Other Contractors The Employer shall be responsible for ensuring that the Employer’s Personnel and the Employer’s other contractors (if any) on or near the Site: 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) 2.4 Employer’s Financial Arrangements co-operate with the Contractor’s efforts under Sub-Clause 4.6 [Co-operation]; and comply with the same obligations which the Contractor is required to comply with under sub-paragraphs (a) to (e) of Sub-Clause 4.8 [Health and Safety Obligations] and under Sub-Clause 4.18 [Protection of the Environment]. The Contractor may require the Employer to remove (or cause to be removed) any person of the Employer’s Personnel or of the Employer’s other contractors (if any) who is found, based on reasonable evidence, to have engaged in corrupt, fraudulent, collusive or coercive practice. The Employer’s arrangements for financing the Employer’s obligations under the Contract shall be detailed in the Contract Data. If the Employer intends to make any material change (affecting the Employer’s ability to pay the part of the Contract Price remaining to be paid at that time as estimated by the Engineer) to these financial arrangements, or has to do so because of changes in the Employer’s financial situation, the Employer shall immediately give a Notice to the Contractor with detailed supporting particulars. If the Contractor: (a) (b) (c) General Conditions © FIDIC 2017 receives an instruction to execute a Variation with a price greater than ten percent (10%) of the Accepted Contract Amount, or the accumulated total of Variations exceeds thirty percent (30%) of the Accepted Contract Amount; does not receive payment in accordance with Sub-Clause 14.7 [Payment]; or becomes aware of a material change in the Employer’s financial arrangements of which the Contractor has not received a Notice under this Sub-Clause, the Contractor may request and the Employer shall, within 28 days after receiving this request, provide reasonable evidence that financial arrangements have been made and are being maintained which will enable the Employer to pay the part of the Contract Price remaining to be paid at that time (as estimated by the Engineer). 15 GENERAL CONDITIONS GUIDANCE (b) copies of the Laws of the Country which are relevant to the Contract but are not readily available; and any permits, permissions, licences or approvals required by the Laws of the Country (including information required to be submitted by the Contractor in order to obtain such permits, permissions, licences or approvals): (i) which the Contractor is required to obtain under Sub-Clause 1.13 [Compliance with Laws]; (ii) for the delivery of Goods, including clearance through customs; and (iii) for the export of Contractor’s Equipment when it is removed from the Site. FORMS (a) GENERAL CONDITIONS GUIDANCE FORMS 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 2.5 Site Data and Items of Reference 2.6 Employer-Supplied Materials and Employer’s Equipment The Employer shall have made available to the Contractor for information, before the Base Date, all relevant data in the Employer’s possession on the topography of the Site and on sub-surface, hydrological, climatic and environmental conditions at the Site. The Employer shall promptly make available to the Contractor all such data which comes into the Employer’s possession after the Base Date. The original survey control points, lines and levels of reference (the “items of reference” in these Conditions) shall be specified on the Drawings and/or in the Specification or issued to the Contractor by a Notice from the Engineer. If Employer-Supplied Materials and/or Employer’s Equipment are listed in 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. The Contractor shall be responsible for each item of Employer’s Equipment whilst any of the Contractor’s Personnel is operating it, driving it, directing it, using it, or in control of it. 3 The Engineer 3.1 The Engineer The Employer shall appoint the Engineer, who shall carry out the duties assigned to the Engineer in the Contract. The Engineer shall be vested with all the authority necessary to act as the Engineer under the Contract. If the Engineer is a legal entity, a natural person employed by the Engineer shall be appointed and authorised to act on behalf of the Engineer under the Contract. The Engineer (or, if a legal entity, the natural person appointed to act on its behalf) shall be: (a) (b) 3.2 Engineer’s Duties and Authority 16 © FIDIC 2017 a professional engineer having suitable qualifications, experience and competence to act as the Engineer under the Contract; and shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law and Language]. Where the Engineer is a legal entity, the Engineer shall give a Notice to the Parties of the natural person (or any replacement) appointed and authorised to act on its behalf. The authority shall not take effect until this Notice has been received by both Parties. The Engineer shall similarly give a Notice of any revocation of such authority. Except as otherwise stated in these Conditions, whenever carrying out duties or exercising authority, specified in or implied by the Contract, the Engineer shall act as a skilled professional and shall be deemed to act for the Employer. 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 The Engineer may exercise the authority attributable to the Engineer as specified in or necessarily to be implied from the Contract. If the Engineer is required to obtain the consent of the Employer before exercising a specified authority, the requirements shall be as stated in the Particular Conditions. There shall be no requirement for the Engineer to obtain the Employer’s consent before the Engineer exercises his/her authority under Sub-Clause 3.7 [Agreement or Determination]. The Employer shall not impose further constraints on the Engineer’s authority. However, whenever the Engineer exercises a specified authority for which the Employer’s consent is required, then (for the purposes of the Contract) such consent shall be deemed to have been given. Any acceptance, agreement, approval, check, certificate, comment, consent, disapproval, examination, inspection, instruction, Notice, No-objection, record(s) of meeting, permission, proposal, record, reply, report, request, Review, test, valuation, or similar act (including the absence of any such act) by the Engineer, the Engineer’s Representative or any assistant shall not relieve the Contractor from any duty, obligation or responsibility the Contractor has under or in connection with the Contract. 3.3 The Engineer’s Representative 3.4 Delegation by the Engineer The Engineer may appoint an Engineer’s Representative and delegate to him/her in accordance with Sub-Clause 3.4 [Delegation by the Engineer] the authority necessary to act on the Engineer’s behalf at the Site, except to replace the Engineer’s Representative. The Engineer’s Representative (if appointed) shall comply with sub-paragraphs (a) and (b) of Sub-Clause 3.1 [The Engineer] and shall be based at the Site for the whole time that the Works are being executed at the Site. If the Engineer’s Representative is to be temporarily absent from the Site during the execution of the Works, an equivalently qualified, experienced and competent replacement shall be appointed by the Engineer, and the Contractor shall be given a Notice of such replacement. The Engineer may from time to time assign duties and delegate authority to assistants, and may also revoke such assignment or delegation, by giving a Notice to the Parties, describing the assigned duties and the delegated authority of each assistant. The assignment, delegation or revocation shall not take effect until this Notice has been received by both Parties. However, the Engineer shall not delegate the authority to: (a) (b) act under Sub-Clause 3.7 [Agreement or Determination]; and/or issue a Notice to Correct under Sub-Clause 15.1 [Notice to Correct]. Assistants shall be suitably qualified natural persons, who are experienced and competent to carry out these duties and exercise this authority, and who are fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language]. Each assistant, to whom duties have been assigned or authority has been General Conditions © FIDIC 2017 17 GENERAL CONDITIONS GUIDANCE The Engineer shall have no authority to amend the Contract or, except as otherwise stated in these Conditions, to relieve either Party of any duty, obligation or responsibility under or in connection with the Contract. FORMS GUIDANCE GENERAL CONDITIONS delegated, shall only be authorised to issue instructions to the Contractor to the extent defined by the Engineer’s Notice of delegation under this Sub-Clause. Any act by an assistant, in accordance with the Engineer’s Notice of delegation, shall have the same effect as though the act had been an act of the Engineer. However, if the Contractor questions any instruction or Notice given by an assistant, the Contractor may by giving a Notice refer the matter to the Engineer. The Engineer shall be deemed to have confirmed the assistant’s instruction or Notice if the Engineer does not respond, within 7 days after receiving the Contractor’s Notice, reversing or varying the assistant’s instruction or Notice (as the case may be). 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 3.5 Engineer’s Instructions The Engineer may issue to the Contractor (at any time) instructions which may be necessary for the execution of the Works, all in accordance with the Contract. The Contractor shall only take instructions from the Engineer, or from the Engineer’s Representative (if appointed) or an assistant to whom the appropriate authority to give instruction has been delegated under Sub-Clause 3.4 [Delegation by the Engineer]. Subject to the following provisions of this Sub-Clause, the Contractor shall comply with the instructions given by the Engineer or the Engineer’s Representative (if appointed) or delegated assistant, on any matter related to the Contract. If an instruction states that it constitutes a Variation, Sub-Clause 13.3.1 [Variation by Instruction] shall apply. If not so stated, and the Contractor considers that the instruction: (a) (b) 3.6 Replacement of the Engineer constitutes a Variation (or involves work that is already part of an existing Variation); or does not comply with applicable Laws or will reduce the safety of the Works or is technically impossible the Contractor shall immediately, and before commencing any work related to the instruction, give a Notice to the Engineer with reasons. If the Engineer does not respond within 7 days after receiving this Notice, by giving a Notice confirming, reversing or varying the instruction, the Engineer shall be deemed to have revoked the instruction. Otherwise the Contractor shall comply with and be bound by the terms of the Engineer’s response. If the Employer intends to replace the Engineer, the Employer shall, not less than 42 days before the intended date of replacement, give a Notice to the Contractor of the name, address and relevant experience of the intended replacement Engineer. If the Contractor does not respond within 14 days after receiving this Notice, by giving a Notice stating an objection to such replacement with reasons, the Contractor shall be deemed to have accepted the replacement. The Employer shall not replace the Engineer with a person (whether a legal entity or a natural person) against whom the Contractor has raised reasonable objection by a Notice under this Sub-Clause. If the Engineer is unable to act as a result of death, illness, disability or resignation (or, in the case of an entity, the Engineer becomes unable or 18 © FIDIC 2017 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 3.7.1 When carrying out his/her duties under this Sub-Clause, the Engineer shall act neutrally between the Parties and shall not be deemed to act for the Employer. Consultation to reach agreement 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 and agreed by both Parties, the Engineer shall provide both Parties with a record of the consultation. If agreement is achieved, within the time limit for agreement under Sub-Clause 3.7.3 [Time limits], the Engineer shall give a Notice to both Parties of the agreement, which agreement shall be signed by both Parties. This Notice shall state that it is a “Notice of the Parties’ Agreement” and shall include a copy of the agreement. If: (a) (b) 3.7.2 no agreement is achieved within the time limit for agreement under Sub-Clause 3.7.3 [Time limits]; or both Parties advise the Engineer that no agreement can be achieved within this time limit whichever is the earlier, the Engineer shall give a Notice to the Parties accordingly and shall immediately proceed as specified under Sub-Clause 3.7.2 [Engineer’s Determination]. Engineer’s Determination The Engineer shall make a fair determination of the matter or Claim, in accordance with the Contract, taking due regard of all relevant circumstances. Within the time limit for determination under Sub-Clause 3.7.3 [Time limits], the Engineer shall give a Notice to both Parties of his/her determination. This Notice shall state that it is a “Notice of the Engineer’s Determination”, and shall describe the determination in detail with reasons and detailed supporting particulars. 3.7.3 General Conditions © FIDIC 2017 GENERAL CONDITIONS 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: FORMS 3.7 Agreement or Determination GUIDANCE unwilling to carry out any of its duties, other than for a cause attributable to the Employer) the Employer shall be entitled to immediately appoint a replacement by giving a Notice to the Contractor with reasons and the name, address and relevant experience of the replacement. This appointment shall be treated as a temporary appointment until this replacement is accepted by the Contractor, or another replacement is appointed, under this Sub-Clause. Time limits The Engineer shall give the Notice of agreement, if agreement is achieved, within 42 days or within such other time limit as may be proposed by the Engineer and agreed by both Parties (the “time limit for agreement” in these Conditions), after: 19 GENERAL CONDITIONS (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 GUIDANCE (c) in the case of a matter to be agreed or determined (not a Claim), the date of commencement of the time limit for agreement as stated in the applicable Sub-Clause of these Conditions; in the case of a Claim under sub-paragraph (c) of Sub-Clause 20.1 [Claims], the date the Engineer receives a Notice under Sub-Clause 20.1 from the claiming Party; or in the case of a Claim under sub-paragraph (a) or (b) of Sub-Clause 20.1 [Claims], the date the Engineer receives: (i) a fully detailed Claim under Sub-Clause 20.2.4 [Fully Detailed Claim]; or (ii) in the case of a Claim under Sub-Clause 20.2.6 [Claims of continuing effect], an interim or final fully detailed Claim (as the case may be). The Engineer shall give the Notice of his/her determination within 42 days or within such other time limit as may be proposed by the Engineer and 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 the relevant time limit: (i) (ii) 3.7.4 in the case of a Claim, the Engineer shall be deemed to have given a determination rejecting the Claim; or in the case of a matter to be agreed or determined, the matter shall be deemed to be a Dispute which may be referred by either Party to the DAAB for its decision under Sub-Clause 21.4 [Obtaining DAAB’s Decision] without the need for a NOD (and Sub-Clause 3.7.5 [Dissatisfaction with Engineers determination] and sub-paragraph (a) of Sub-Clause 21.4.1 [Reference of a Dispute to the DAAB] shall not apply). Effect of the agreement or determination Each agreement or determination shall be binding on both Parties (and shall be complied with by the Engineer) unless and until corrected under this Sub-Clause or, in the case of a determination, it is revised under Clause 21 [Disputes and Arbitration]. If an agreement or determination concerns the payment of an amount from one Party to the other Party, the Contractor shall include such an amount in the next Statement and the Engineer shall include such amount in the Payment Certificate that follows that Statement. If, within 14 days after giving or receiving the Engineer’s Notice of agreement or determination, any error of a typographical or clerical or arithmetical nature is found: (a) (b) 20 © FIDIC 2017 by the Engineer: then he/she shall immediately advise the Parties accordingly; or by a Party: then that Party shall give a Notice to the Engineer, stating that it is given under this Sub-Clause 3.7.4 and clearly identifying the error. If the Engineer does not agree there was an error, he/she shall immediately advise the Parties accordingly. The Engineer shall within 7 days of finding the error, or receiving a Notice under sub-paragraph (b) above (as the case may be), give a Notice to both Parties of the corrected agreement or determination. Thereafter, the Conditions of Contract for Construction If either Party is dissatisfied with a determination of the Engineer: (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 (d) the dissatisfied Party may give a NOD to the other Party, with a copy to the Engineer; this NOD shall state that it is a “Notice of Dissatisfaction with the Engineer’s Determination” and shall set out the reason(s) for dissatisfaction; 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 determination under Sub-Clause 3.7.4 [Effect of the agreement or determination] (or, in the case of a deemed determination rejecting the Claim, within 28 days after the time limit for determination under Sub-Clause 3.7.3 [Time limits] has expired); and thereafter, either Party may proceed under Sub-Clause 21.4 [Obtaining DAAB’s Decision]. If no NOD is given by either Party within the period of 28 days stated in sub-paragraph (c) above, the determination of the Engineer shall be deemed to have been accepted by both Parties and shall be final and binding on them. If the dissatisfied Party is dissatisfied with only part(s) of the Engineer’s determination: (i) (ii) (iii) 3.8 Meetings this part(s) shall be clearly identified in the NOD; this part(s), and any other parts of the determination that are affected by such part(s) or rely on such part(s) for completeness, shall be deemed to be severable from the remainder of the determination; and the remainder of the determination shall become final and binding on both Parties as if the NOD had not been given. In the event that a Party fails to comply with an agreement of the Parties under this Sub-Clause 3.7 or a final and binding determination of the Engineer, the other Party may, without prejudice to any other rights it may have, refer the failure itself directly to arbitration under Sub-Clause 21.6 [Arbitration] in which case the first and the third paragraphs of Sub-Clause 21.7 [Failure to Comply with DAAB’s Decision] shall apply to such reference in the same manner as these paragraphs apply to a final and binding decision of the DAAB. The Engineer or the Contractor’s Representative may require the other to attend a management meeting to discuss arrangements for future work and/ or other matters in connection with execution of the Works. The Employer’s other contractors, the personnel of legally constituted public authorities and/or private utility companies, and/or Subcontractors may attend any such meeting, if requested by the Engineer or the Contractor’s Representative. The Engineer shall keep a record of each management meeting and supply copies of the record to those attending and to the Employer. At any such General Conditions © FIDIC 2017 21 GUIDANCE Dissatisfaction with Engineer’s determination FORMS 3.7.5 GENERAL CONDITIONS corrected agreement or determination shall be treated as the agreement or determination for the purpose of these Conditions.