FIDIC 2017 General Conditions of Contract for Construction 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 FORMS GUIDANCE GENERAL CONDITIONS meeting, and in the record, responsibilities for any actions to be taken shall be in accordance with the Co...

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 This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org The Contractor shall appoint the Contractor’s Representative and shall give him/her all authority necessary to act on the Contractor’s behalf under the Contract, except to replace the Contractor’s Representative. The Contractor’s Representative shall be qualified, experienced and competent in the main engineering discipline applicable to the Works and fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language]. Unless the Contractor’s Representative is named in the Contract, the Contractor shall, before the Commencement Date, submit to the Engineer for consent the name and particulars of the person the Contractor proposes to appoint as Contractor’s Representative. If consent is withheld or subsequently revoked, or if the appointed person fails to act as Contractor’s Representative, the Contractor shall similarly submit the name and particulars of another suitable replacement for such appointment. If the Engineer does not respond within 28 days after receiving this submission, by giving a Notice to the Contractor objecting to the proposed person or replacement, the Engineer shall be deemed to have given his/her consent. The Contractor shall not, without the Engineer’s prior consent, revoke the appointment of the Contractor’s Representative or appoint a replacement (unless the Contractor’s Representative is unable to act as a result of death, illness, disability or resignation, in which case his/her appointment shall be deemed to have been revoked with immediate effect and the appointment of a replacement shall be treated as a temporary appointment until the Engineer gives his/her consent to this replacement, or another replacement is appointed, under this Sub-Clause). The whole time of the Contractor’s Representative shall be given to directing the Contractor’s performance of the Contract. The Contractor’s Representative shall act for and on behalf of the Contractor at all times during the performance of the Contract, including issuing and receiving all Notices and other communications under Sub-Clause 1.3 [Notices and Other Communications] and for receiving instructions under Sub-Clause 3.5 [Engineer’s Instructions]. The Contractor’s Representative shall be based at the Site for the whole time that the Works are being executed at the Site. If the Contractor’s Representative is to be temporarily absent from the Site during the execution of the Works, a suitable replacement shall be temporarily appointed, subject to the Engineer’s prior consent. The Contractor’s Representative may delegate any powers, functions and authority except: General Conditions © FIDIC 2017 25 FORMS 4.3 Contractor’s Representative GENERAL CONDITIONS (b) within 21 days after the issue of the Performance Certificate and the Contractor has complied with Sub-Clause 11.11 [Clearance of Site]; or promptly after the date of termination if the Contract is terminated in accordance with Sub-Clause 15.5 [Termination for Employer’s Convenience], Sub-Clause 16.2 [Termination by Contractor], Sub-Clause 18.5 [Optional Termination] or Sub-Clause 18.6 [Release from Performance under the Law]. GUIDANCE (a) GENERAL CONDITIONS GUIDANCE FORMS (a) (b) to any suitably competent and experienced person and may at any time revoke the delegation. Any delegation or revocation shall not take effect until the Engineer has received a Notice from the Contractor’s Representative, naming the person, specifying the powers, functions and authority being delegated or revoked, and stating the timing of the delegation or revocation. All these persons shall be fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language]. 4.4 Contractor’s Documents 4.4.1 This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org the authority to issue and receive Notices and other communications under Sub-Clause 1.3 [Notices and Other Communications]; and the authority to receive instructions under Sub-Clause 3.5 [Engineer’s Instructions]), Preparation and Review The Contractor’s Documents shall comprise the documents: (a) (b) (c) (d) stated in the Specification; required to satisfy all permits, permissions, licences and other regulatory approvals which are the Contractor’s responsibility under Sub-Clause 1.13 [Compliance with Laws]; described in Sub-Clause 4.4.2 [As-Built Records] and Sub-Clause 4.4.3 [Operation and Maintenance Manuals], where applicable; and required under sub-paragraph (a) of Sub-Clause 4.1 [Contractor’s General Obligations], where applicable. Unless otherwise stated in the Specification, the Contractor’s Documents shall be written in the language for communications defined in Sub-Clause 1.4 [Law and Language]. The Contractor shall prepare all Contractor’s Documents and the Employer’s Personnel shall have the right to inspect the preparation of all these documents, wherever they are being prepared. If the Specification or these Conditions specify that a Contractor’s Document is to be submitted to the Engineer for Review, it shall be submitted accordingly, together with a Notice from the Contractor stating that the Contractor’s Document is ready for Review and that it complies with the Contract. The Engineer shall, within 21 days after receiving the Contractor’s Document and this Notice from the Contractor, give a Notice to the Contractor: (i) (ii) of No-objection (which may include comments concerning minor matters which will not substantially affect the Works); or that the Contractor’s Document fails (to the extent stated) to comply with the Contract, with reasons. If the Engineer gives no Notice within this period of 21 days, the Engineer shall be deemed to have given a Notice of No-objection to the Contractor’s Document. After receiving a Notice under sub-paragraph (ii), above, the Contractor shall revise the Contractor’s Document and resubmit it to the Engineer for Review in accordance with this Sub-Clause and the period of 21 days for Review shall be calculated from the date that the Engineer receives it. 26 © FIDIC 2017 Conditions of Contract for Construction