FIDIC 2017 General Conditions PDF

GENERAL CONDITIONS GUIDANCE FORMS This fee shall be paid monthly with effect from the last day of the month in which the Effective Date occurs until the end of the month in which the Term of the DAAB expires, or the DAAB Member declines to act or is unable to act as a result of death, illnes...

GENERAL CONDITIONS GUIDANCE FORMS This fee shall be paid monthly with effect from the last day of the month in which the Effective Date occurs until the end of the month in which the Term of the DAAB expires, or the DAAB Member declines to act or is unable to act as a result of death, illness, disability, resignation or termination of his/her DAA Agreement. If no monthly fee is stated in the DAA Agreement, the matters described in sub-paragraphs (i) to (iv) above shall be deemed to be covered by the daily fee under sub-paragraph (b) below; (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 (iv) all services performed hereunder except those referred to in sub-paragraphs (b) and (c) of this Clause. (c) (d) 9.2 Subject to Sub-Clause 9.3 below, the amounts of the DAAB Member’s monthly fee and daily fee, under Sub-Clause 9.1 above, shall be as specified in the DAA Agreement signed (or, under the Contract, deemed to have been signed) by the Parties and the DAAB Member. 9.3 If the Parties and the DAAB Member have agreed all other terms of the DAA Agreement but fail to jointly agree the amount of the monthly fee or the daily fee in the DAA Agreement (the “non-agreed fee” in this Sub-Clause): (a) (b) 112 © FIDIC 2017 a daily fee, which shall be considered as payment in full for each day: (i) or part of a day, up to a maximum of two days’ travel time in each direction, for the journey between the DAAB Member’s home and the Site, or another location of a meeting with the Parties and/or the Other Members (if any); (ii) spent on attending meetings and making Site visits in accordance with Rule 3 of the DAAB Rules, and writing reports in accordance with Rule 3.10 of the DAAB Rules; (iii) spent on giving Informal Assistance; (iv) spent on attending hearings (and, in case of a three-member DAAB, attending meeting(s) between the DAAB Members in accordance with sub-paragraph (a) of Rule 8.2 of the DAAB Rules, and communicating with the Other Members), and preparing decisions; and (v) spent in preparation for a hearing, and studying written documentation and arguments from the Parties submitted in accordance with sub-paragraph (c) of Rule 7.1 of the DAAB Rules; all reasonable expenses, including necessary travel expenses (air fare in business class or equivalent, hotel and subsistence and other direct travel expenses, including visa charges) incurred in connection with the DAAB Member’s duties, as well as the cost of telephone calls (and video conference calls, if any, and internet access), courier charges and faxes. The DAAB Member shall provide the Parties with a receipt for each item of expenses; any taxes properly levied in the Country on payments made to the DAAB Member (unless a national or permanent resident of the Country) under this Sub-Clause 9.1. the DAA Agreement shall nevertheless be deemed to have been signed by the Parties and the DAAB Member, except that the fee proposed by the DAAB Member shall only temporarily apply; either Party or the DAAB Member may apply to the appointing entity or official named in the Contract Data to set the amount of the non-agreed fee; 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 (e) 9.4 The DAAB Member shall submit invoices for payment of the monthly fee and air fares quarterly in advance. Invoices for other expenses and for daily fees shall be submitted following the conclusion of a meeting, Site visit or hearing; and following the giving of a decision or an informal written note (under Rule 2.1 of the DAAB Rules). All invoices shall be accompanied by a brief description of the DAAB’s Activities performed during the relevant period and shall be addressed to the Contractor. 9.5 The Contractor shall pay each of the DAAB Member’s invoices in full within 28 days after receiving each invoice. Thereafter, the Contractor shall apply to the Employer (in the Statements under the Contract) for reimbursement of one-half of the amounts of these invoices. The Employer shall then pay the Contractor in accordance with the Contract. 9.6 If the Contractor fails to pay to the DAAB Member the amount to which he/ she is entitled under the DAA Agreement within the period of 28 days stated at Sub-Clause 9.5 above, the DAAB Member shall inform the Employer who shall promptly pay the amount due to the DAAB Member and any other amount which may be required to maintain the function of the DAAB. Thereafter the Employer shall, by written request, be entitled to payment from the Contractor of: (a) (b) (b) 9.7 The Employer shall be entitled to such payment from the Contractor without any requirement to comply with Sub-Clause 20.2 [Claims For Payment and/ or EOT] of the Conditions of Contract, and without prejudice to any other right or remedy. If the DAAB Member does not receive payment of the amount due within 56 days after submitting a valid invoice, the DAAB Member may: (a) (b) General Conditions © FIDIC 2017 all sums paid in excess of one-half of these amounts; the reasonable costs of recovering these amounts from the Contractor; and financing charges calculated at the rate specified in Sub-Clause 14.9 [Delayed Payment] of the Conditions of Contract. not less than 7 days after giving a Notification to the Parties and the Other Members (if any), suspend his/her services until the payment is received; and/or resign his/her appointment by giving a Notification under Sub-Clause 10.1 below. 113 GENERAL CONDITIONS GUIDANCE (d) the appointing entity or official shall, as soon as practicable and in any case within 28 days after receiving any such application, set the amount of the non-agreed fee, which amount shall be reasonable taking due regard of the complexity of the Works, the experience and qualifications of the DAAB Member, and all other relevant circumstances; once the appointing entity or official has set the amount of the non-agreed fee, this amount shall be final and conclusive, shall replace the fee under sub-paragraph (a) above, and shall be deemed to have applied from the Effective Date; and thereafter, after giving credit to the Parties for all amounts previously paid in respect of the non-agreed fee, the balance (if any) due from the DAAB Member to the Parties or from the Parties to the DAAB Member, as the case may be, shall be paid. FORMS (c) GENERAL CONDITIONS 10.1 The DAAB Member may resign at any time for any reason, by giving a Notification of not less than 28 days (or other period as may be agreed by the Parties) to the Parties and to the Other Members (if any). During this period the Parties shall take the necessary steps to appoint, without delay, a replacement DAAB Member in accordance with Sub-Clause 21.1 [Constitution of the DAAB] of the Conditions of Contract (and, if applicable, Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)] of the Conditions of Contract). 10.2 On expiry of the period stated in Sub-Clause 10.1 above, the resigning DAAB Member’s DAA Agreement shall terminate with immediate effect. However (except if the DAAB Member is unable to act as a result of illness or disability) if, on the date of the DAAB Member’s notice under Sub-Clause 10.1 above, the DAAB is dealing with any Dispute under Sub-Clause 21.4 [Obtaining DAAB’s Decision] of the Conditions of Contract, the DAAB Member’s resignation shall not take effect and his/her DAA Agreement shall not terminate until after the DAAB has given all the corresponding decisions in accordance with the Contract. 10.3 At any time the Parties may jointly terminate the DAA Agreement by giving a Notification of not less than 42 days to the DAAB Member. 10.4 If the DAAB Member fails, without justifiable excuse, to comply with Sub-Clause 5.1 above, the Parties may, without prejudice to their other rights or remedies, jointly terminate his/her DAA Agreement by giving a Notification (by recorded delivery) to the DAAB Member. This notice shall take effect when it is received by the DAAB Member. 10.5 If either Party fails, without justifiable excuse, to comply with Clause 6 above, the DAAB Member may, without prejudice to his/her other rights or remedies, terminate the DAA Agreement by giving a Notification to the Parties. This notice shall take effect when received by both Parties. 10.6 Any resignation or termination under this Clause shall be final and binding on the Parties and the DAAB Member. However, a notice given under Sub-Clause 10.3 or 10.4 above by either the Employer or the Contractor, but not by both, shall be of no effect. 10.7 Subject to sub-paragraph (b) of Sub-Clause 11.5 below, in the event of resignation or termination under this Clause the DAAB Member shall nevertheless be entitled to payment of any fees and/or expenses under his/ her DAA Agreement that remain outstanding as of the date of termination of his/her DAA Agreement. 10.8 After resignation by the DAAB Member or termination of his/her DAA Agreement under this Clause, the DAAB Member shall: 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 10 Resignation and Termination (a) (b) 10.9 114 © FIDIC 2017 remain bound by his/her obligation of confidentiality under Sub-Clause 7.1 above; and return the original of any document in his/her possession to the Party who submitted such document in connection with the DAAB’s Activities, at that Party’s written request and cost. Subject to any mandatory requirements under the governing law of the DAA Agreement, termination of the DAA Agreement under this Clause shall require no action of whatsoever kind by the Parties or the DAAB Member (as the case may be) other than as stated in this Clause. 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 11.2 The decision issued under Rule 11 of the DAAB Rules (the “Decision on the Challenge” in the GCs) shall be final and conclusive. 11.3 At any time before the Decision on the Challenge is issued, the challenged DAAB Member may resign under Sub-Clause 10.1 above and, in such case, the challenging Party shall inform the International Chamber of Commerce (ICC). However, Sub-Clause 10.2 shall not apply to such resignation and the resigning DAAB Member’s DAA Agreement shall terminate with immediate effect. 11.4 Unless the challenged DAAB Member has resigned, or his/her DAA Agreement has been terminated under Sub-Clause 10.3 above, the DAAB Member and the Other Members (if any) shall continue with the DAAB’s Activities until the Decision on the Challenge is issued. 11.5. If the Decision on the Challenge is that the challenge is successful: (a) (b) (c) (d) (e) 12 Disputes under the DAA Agreement General Conditions © FIDIC 2017 the challenged DAAB Member’s appointment, and his/her DAA Agreement, shall be deemed to have been terminated with immediate effect on the date of the notification of the Decision on the Challenge by ICC; the challenged DAAB Member shall not be entitled to any fees or expenses under his/her DAA Agreement from the date of the notification of the Decision on the Challenge by ICC; any decision under Sub-Clause 21.4.3 [The DAAB’s decision] of the Conditions of Contract, given by the DAAB: (i) after the challenge was referred under Rule 11 of the DAAB Rules; and (ii) before the resignation (if any) of the challenged DAAB Member under Sub-Clause 11.3 above, or his/her DAAB Agreement is terminated under sub-paragraph (a) above or under Sub-Clause 10.3 above shall become void and ineffective. In the case of a sole-member DAAB, all other DAAB’s Activities during this period shall also become void and ineffective. In the case of a three-member DAAB, all other DAAB’s Activities during this period shall remain unaffected by the Decision on the Challenge except if there has been a challenge to all three members of the DAAB and such challenge is successful; the successfully challenged DAAB Member shall be removed from the DAAB; and the Parties shall, without delay, appoint a replacement DAAB Member in accordance with Sub-Clause 21.1 [Constitution of the DAAB] of the Conditions of Contract. Any dispute arising out of or in connection with the DAA Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce 115 GENERAL CONDITIONS The Parties shall not object against the DAAB Member, except that either Party, or in the case of a three-member DAAB the Other Members jointly, shall be entitled to do so for an alleged lack of independence or impartiality or otherwise in which case Rule 10 Objection Procedure and Rule 11 Challenge Procedure of the DAAB Rules shall apply. GUIDANCE 11.1 FORMS 11 Challenge 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 2017 by one arbitrator appointed in accordance with these Rules of Arbitration, and Article 30 and the Expedited Procedure Rules at Appendix VI of these Rules of Arbitration shall apply. 116 © FIDIC 2017 Conditions of Contract for Construction