FIDIC 2017 General Conditions 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