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 The Engineer may exercise the authority attributable to the Engineer as specified in or necessarily to be implied from the Contract. If the Engi...

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. 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 meeting, and in the record, responsibilities for any actions to be taken shall be in accordance with the Contract. 4 The Contractor 4.1 Contractor’s General Obligations The Contractor shall execute the Works in accordance with the Contract. The Contractor undertakes that the execution of the Works and the completed Works will be in accordance with the documents forming the Contract, as altered or modified by Variations. The Contractor shall provide the Plant (and spare parts, if any) and Contractor’s Documents specified in the Contract, 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 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 Temporary Works. Except to the extent specified in the Contract, the Contractor: (i) (ii) shall be responsible for all Contractor’s Documents, Temporary Works, and such design of each item of Plant and Materials as is required for the item to be in accordance with the Contract; and shall not otherwise be responsible for the design or specification of the Permanent 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. If the Contract specifies that the Contractor shall design any part of the Permanent Works, then unless otherwise stated in the Particular Conditions: (a) (b) (c) (d) 22 © FIDIC 2017 the Contractor shall prepare, and submit to the Engineer for Review, the Contractor’s Documents for this part (and any other documents necessary to complete and implement the design during the execution of the Works and to instruct the Contractor’s Personnel); these Contractor’s Documents shall be in accordance with the Specification and Drawings and shall include additional information required by the Engineer to add to the Drawings for co-ordination of each Party’s designs. If the Engineer instructs that further Contractor’s Documents are reasonably required to demonstrate that the Contractor’s design complies with the Contract, the Contractor shall prepare and submit them promptly to the Engineer at the Contractor’s cost; construction of this part shall not commence until a Notice of No-objection is given (or is deemed to have been given) by the Engineer under sub-paragraph (i) of Sub-Clause 4.4.1 [Preparation and Review] for all the Contractor’s Documents which are relevant to its design, and construction of such part shall be in accordance with these Contractor’s Documents; the Contractor may modify any design or Contractor’s Documents which have previously been submitted for Review, by giving a Notice Conditions of Contract for Construction (f) 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 (g) (h) 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]. Whenever Variations and/or adjustments under Clause 13 [Variations and Adjustments] result in an accumulative increase or decrease of the Contract Price by more than twenty percent (20%) of the Accepted Contract Amount: General Conditions © FIDIC 2017 23 GENERAL CONDITIONS GUIDANCE FORMS (e) to the Engineer with reasons. If the Contractor has commenced construction of the part of the Works to which such design or Contractor’s Documents are relevant, work on this part shall be suspended, the provisions of Sub-Clause 4.4.1 [Preparation and Review] shall apply as if the Engineer had given a Notice in respect of the Contractor’s Documents under sub-paragraph (ii) of Sub-Clause 4.4.1, and work shall not resume until a Notice of No-objection is given (or is deemed to have been given) by the Engineer for the revised documents; the Contractor shall be responsible for this part and it shall, when the Works are completed, be fit for such purpose(s) for which the part is intended as are specified in the Contract (or, where no purpose(s) are so defined and described, fit for their ordinary purpose(s)); in addition to the Contractor’s undertaking above, the Contractor undertakes that the design and the Contractor’s Documents for this part will comply with the technical standards stated in the Specification and Laws (in force when the Works are taken over under Clause 10 [Employer’s Taking Over]) and in accordance with the documents forming the Contract, as altered or modified by Variations; if Sub-Clause 4.4.2 [As-built Records] and/or Sub-Clause 4.4.3 [Operation and Maintenance Manuals] apply, the Contractor shall submit to the Engineer the Contractor’s Documents for this part in accordance with such Sub-Clause(s) and in sufficient detail for the Employer to operate, maintain, dismantle, reassemble, adjust and repair this part; and if Sub-Clause 4.5 [Training] applies, the Contractor shall carry out training of the Employer’s Personnel in the operation and maintenance of this part. GENERAL CONDITIONS (a) GUIDANCE (b) 4.2.2 FORMS Claims under the Performance Security The Employer shall not make a claim under the Performance Security, except for amounts to which the Employer is entitled under the Contract in the event of: (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 in the case of such an increase, at the Employer’s request the Contractor shall promptly increase the amount of the Performance Security in that currency by a percentage equal to the accumulative increase. If the Contractor incurs Cost as a result of this Employer’s request, Sub-Clause 13.3.1 [Variation by Instruction] shall apply as if the increase had been instructed by the Engineer; or in the case of such a decrease, subject to the Employer’s prior consent the Contractor may decrease the amount of the Performance Security in that currency by a percentage equal to the accumulative decrease. (c) (d) (e) failure by the Contractor to extend the validity of the Performance Security, as described in this Sub-Clause, in which event the Employer may claim the full amount (or, in the case of previous reduction(s), the full remaining amount) of the Performance Security; failure by the Contractor to pay the Employer an amount due, as agreed or determined under Sub-Clause 3.7 [Agreement or Determination] or agreed or decided under Clause 21 [Disputes and Arbitration], within 42 days after the date of the agreement or determination or decision or arbitral award (as the case may be); failure by the Contractor to remedy a default stated in a Notice given under Sub-Clause 15.1 [Notice to Correct] within 42 days or other time (if any) stated in the Notice; circumstances which entitle the Employer to terminate the Contract under Sub-Clause 15.2 [Termination for Contractor’s Default], irrespective of whether a Notice of termination has been given; or if under Sub-Clause 11.5 [Remedying of Defective Work off Site] the Contractor removes any defective or damaged Plant from the Site, failure by the Contractor to repair such Plant, return it to the Site, reinstall it and retest it by the date of expiry of the relevant duration stated in the Contractor’s Notice (or other date agreed by the Employer). The Employer shall indemnify and hold the Contractor harmless against and from all damages, losses and expenses (including legal fees and expenses) resulting from a claim under the Performance Security to the extent that the Employer was not entitled to make the claim. Any amount which is received by the Employer under the Performance Security shall be taken into account: (i) (ii) 4.2.3 24 © FIDIC 2017 in the Final Payment Certificate under Sub-Clause 14.13 [Issue of FPC]; or if the Contract is terminated, in payment due to the Contractor under Sub-Clause 15.4 [Payment after Termination for Contractor’s Default], Sub-Clause 15.7 [Payment after Termination for Employer’s Convenience], Sub-Clause 16.4 [Payment after Termination by Contractor], Sub-Clause 18.5 [Optional Termination], or Sub-Clause 18.6 [Release from Performance under the Law] (as the case may be). Return of the Performance Security The Employer shall return the Performance Security to the Contractor: Conditions of Contract for Construction