Red 2017-28-144-61-65.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 (ii) If the Engineer instructs the Contractor under sub-paragraph (a) and/or (b) above, this instruction may include a requirement for the...

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 (ii) If the Engineer instructs the Contractor under sub-paragraph (a) and/or (b) above, this instruction may include a requirement for the Contractor to submit quotations from the Contractor’s suppliers and/or subcontractors for all (or some) of the items of the work to be executed or Plant, Materials, works or services to be purchased. Thereafter, the Engineer may respond by giving a Notice either instructing the Contractor to accept one of these quotations (but such an instruction shall not be taken as an instruction under Sub-Clause 5.2 [Nominated Subcontractors]) or revoking the instruction. If the Engineer does not so respond within 7 days of receiving the quotations, the Contractor shall be entitled to accept any of these quotations at the Contractor’s discretion. Each Statement that includes a Provisional Sum shall also include all applicable invoices, vouchers and accounts or receipts in substantiation of the Provisional Sum. 13.5 Daywork If a Daywork Schedule is not included in the Contract, this Sub-Clause shall not apply. For work of a minor or incidental nature, the Engineer may instruct that a Variation shall be executed on a daywork basis. The work shall then be valued in accordance with the Daywork Schedule, and the following procedure shall apply. Before ordering Goods for such work (other than any Goods priced in the Daywork Schedule), the Contractor shall submit one or more quotations from the Contractor’s suppliers and/or subcontractors to the Engineer. Thereafter, the Engineer may instruct the Contractor to accept one of these quotations (but such an instruction shall not be taken as an instruction under Sub-Clause 5.2 [Nominated Subcontractors]). If the Engineer does not so instruct the Contractor within 7 days of receiving the quotations, the Contractor shall be entitled to accept any of these quotations at the Contractor’s discretion. Except for any items for which the Daywork Schedule specifies that payment is not due, the Contractor shall deliver each day to the Engineer accurate statements in duplicate (and one electronic copy), which shall include records (as described under Sub-Clause 6.10 [Contractor’s Records]) of the resources used in executing the previous day’s work. One copy of each statement shall, if correct and agreed, be signed by the Engineer and promptly returned to the Contractor. If not correct or agreed, the Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the resources (and for the purpose of Sub-Clause 3.7.3 [Time limits], the date the works which are the subject of the Variation under this Sub-Clause are completed by the Contractor shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). In the next Statement, the Contractor shall then submit priced statements of the agreed or determined resources to the Engineer, together with all applicable invoices, vouchers and accounts or receipts in substantiation of General Conditions © FIDIC 2017 67 GENERAL CONDITIONS the actual amounts paid (or due to be paid) by the Contractor; and a sum for overhead charges and profit, calculated as a percentage of these actual amounts by applying the relevant percentage rate (if any) stated in the applicable Schedule. If there is no such rate, the percentage rate stated in the Contract Data shall be applied. GUIDANCE (i) FORMS GENERAL CONDITIONS GUIDANCE any Goods used in the daywork (other than Goods priced in the Daywork Schedule). 13.6 Adjustments for Changes in Laws Unless otherwise stated in the Daywork Schedule, the rates and prices in the Daywork Schedule shall be deemed to include taxes, overheads and profit. Subject to the following provisions of this Sub-Clause, the Contract Price shall be adjusted to take account of any increase or decrease in Cost resulting from a change in: (a) FORMS (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 Laws of the Country (including the introduction of new Laws and the repeal or modification of existing Laws); the judicial or official governmental interpretation or implementation of the Laws referred to in sub-paragraph (a) above; any permit, permission, license or approval obtained by the Employer or the Contractor under sub-paragraph (a) or (b), respectively, of Sub-Clause 1.13 [Compliance with Laws]; or the requirements for any permit, permission, licence and/or approval to be obtained by the Contractor under sub-paragraph (b) of Sub-Clause 1.13 [Compliance with Laws], made and/or officially published after the Base Date, which affect the Contractor in the performance of obligations under the Contract. In this Sub-Clause “change in Laws” means any of the changes under sub-paragraphs (a), (b), (c) and/or (d) above. If the Contractor suffers delay and/or incurs an increase in Cost as a result of any change in Laws, 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. If there is a decrease in Cost as a result of any change in Laws, the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to a reduction in the Contract Price. If any adjustment to the execution of the Works becomes necessary as a result of any change in Laws: (i) (ii) the Contractor shall promptly give a Notice to the Engineer, or the Engineer shall promptly give a Notice to the Contractor (with detailed supporting particulars). Thereafter, the Engineer shall either instruct a Variation under Sub-Clause 13.3.1 [Variation by Instruction] or request a proposal under Sub-Clause 13.3.2 [Variation by Request for Proposal]. 13.7 Adjustments for Changes in Cost 68 © FIDIC 2017 If Schedule(s) of cost indexation are not included in the Contract, this Sub-Clause shall not apply. The amounts payable to the Contractor shall be adjusted for rises or falls in the cost of labour, Goods and other inputs to the Works, by the addition or deduction of the amounts calculated in accordance with the Schedule(s) of cost indexation. Conditions of Contract for Construction The adjustment to be applied to the amount otherwise payable to the Contractor, as certified in Payment Certificates, shall be calculated for each of the currencies in which the Contract Price is payable. No adjustment shall be applied to work valued on the basis of Cost or current prices. Until such time as each current cost index is available, the Engineer shall use a provisional index for the issue of Interim Payment Certificates. When a current cost index is available, the adjustment shall be recalculated accordingly. If the Contractor fails to complete the Works within the Time for Completion, adjustment of prices thereafter shall be made using either: (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) each index or price applicable on the date 49 days before the expiry of the Time for Completion of the Works; or the current index or price whichever is more favourable to the Employer. 14 Contract Price and Payment 14.1 The Contract Price Unless otherwise stated in the Particular Conditions: (a) (b) (c) (d) 14.2 Advance Payment General Conditions © FIDIC 2017 the Contract Price shall be the value of the Works in accordance with Sub-Clause 12.3 [Valuation of the Works] and be subject to adjustments, additions (including Cost or Cost Plus Profit to which the Contractor is entitled under these Conditions) and/or deductions in accordance with the Contract; the Contractor shall pay all taxes, duties and fees required to be paid by the Contractor under the Contract, and the Contract Price shall not be adjusted for any of these costs except as stated in Sub-Clause 13.6 [Adjustments for Changes in Laws]; any quantities which may be set out in the Bill of Quantities or other Schedule(s) are estimated quantities and are not to be taken as the actual and correct quantities: (i) of the Works which the Contractor is required to execute, or (ii) for the purposes of Clause 12 [Measurement and Valuation]; and the Contractor shall submit to the Engineer, within 28 days after the Commencement Date, a proposed breakdown of each lump sum price (if any) in the Schedules. The Engineer may take account of the breakdown when preparing Payment Certificates, but shall not be bound by it. If no amount of advance payment is stated in the Contract Data, this Sub-Clause shall not apply. After receiving the Advance Payment Certificate, the Employer shall make an advance payment, as an interest-free loan for mobilisation (and design, if 69 GENERAL CONDITIONS GUIDANCE To the extent that full compensation for any rise or fall in Costs is not covered by this Sub-Clause or other Clauses of these Conditions, the Accepted Contract Amount shall be deemed to have included amounts to cover the contingency of other rises and falls in costs. FORMS GENERAL CONDITIONS any). The amount of the advance payment and the currencies in which it is to be paid shall be as stated in the Contract Data. 14.2.1 The Contractor shall obtain (at the Contractor’s cost) an Advance Payment Guarantee in amounts and currencies equal to the advance payment, and shall submit it to the Employer with a copy to the Engineer. This guarantee shall be issued by an entity and from within a country (or other jurisdiction) to which the Employer gives consent, and shall be based on the sample form included in the tender documents or on 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 Advance Payment Guarantee is valid and enforceable until the advance payment has been repaid, but its amount may be progressively reduced by the amount repaid by the Contractor as stated in the Payment Certificates. If the terms of the Advance Payment Guarantee specify its expiry date, and the advance payment has not been repaid by the date 28 days before the expiry date: 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 Advance Payment Guarantee (a) (b) (c) 14.2.2 When submitting the Advance Payment Guarantee, the Contractor shall include an application (in the form of a Statement) for the advance payment. Advance Payment Certificate The Engineer shall issue an Advance Payment Certificate for the advance payment within 14 days after: (a) (b) 14.2.3 © FIDIC 2017 the Employer has received both the Performance Security and the Advance Payment Guarantee, in the form and issued by an entity in accordance with Sub-Clause 4.2.1 [Contractor’s Obligations] and Sub-Clause 14.2.1 [Advance Payment Guarantee] respectively; and the Engineer has received a copy of the Contractor’s application for the advance payment under Sub-Clause 14.2.1 [Advance Payment Guarantee]. Repayment of Advance Payment The advance payment shall be repaid through percentage deductions in Payment Certificates. Unless other percentages are stated in the Contract Data: (a) 70 the Contractor shall extend the validity of this guarantee until the advance payment has been repaid; the Contractor shall immediately submit evidence of this extension to the Employer, with a copy to the Engineer; and if the Employer does not receive this evidence 7 days before the expiry date of this guarantee, the Employer shall be entitled to claim under the guarantee the amount of advance payment which has not been repaid. deductions shall commence in the IPC in which the total of all certified interim payments in the same currency as the advance payment (excluding the advance payment and deductions and release of retention moneys) exceeds ten percent (10%) of the portion of the 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 14.3 Application for Interim Payment If the advance payment has not been repaid before the issue of the Taking-Over Certificate for the Works, or before termination under Clause 15 [Termination by Employer], Clause 16 [Suspension and Termination by Contractor] or Clause 18 [Exceptional Events] (as the case may be), the whole of the balance then outstanding shall immediately become due and payable by the Contractor to the Employer. The Contractor shall submit a Statement to the Engineer after the end of the period of payment stated in the Contract Data (if not stated, after the end of each month). Each Statement shall: (a) (b) (c) (ii) (iii) (iv) (v) (vi) (vii) © FIDIC 2017 be in a form acceptable to the Engineer; be submitted in one paper-original, one electronic copy and additional paper copies (if any) as stated in the Contract Data; and show in detail the amounts to which the Contractor considers that the Contractor is entitled, with supporting documents which shall include sufficient detail for the Engineer to investigate these amounts together with the relevant report on progress in accordance with Sub-Clause 4.20 [Progress Reports]. The Statement shall include the following items, as applicable, which shall be expressed in the various currencies in which the Contract Price is payable, in the sequence listed: (i) General Conditions GENERAL CONDITIONS FORMS GUIDANCE (b) Accepted Contract Amount payable in that currency less Provisional Sums; and deductions shall be made at the amortisation rate of one quarter (25%) of the amount of each IPC (excluding the advance payment and deductions and release of retention moneys) in the currencies and proportions of the advance payment, until such time as the advance payment has been repaid. the estimated contract value of the Works executed, and the Contractor’s Documents produced, up to the end of the period of payment (including Variations but excluding items described in sub-paragraphs (ii) to (x) below); any amounts to be added and/or deducted for changes in Laws under Sub-Clause 13.6 [Adjustments for Changes in Laws], and for changes in Cost under Sub-Clause 13.7 [Adjustments for Changes in Cost]; any amount to be deducted for retention, calculated by applying the percentage of retention stated in the Contract Data to the total of the amounts under sub-paragraphs (i), (ii) and (vi) of this Sub-Clause, until the amount so retained by the Employer reaches the limit of Retention Money (if any) stated in the Contract Data; any amounts to be added and/or deducted for the advance payment and repayments under Sub-Clause 14.2 [Advance Payment]; any amounts to be added and/or deducted for Plant and Materials under Sub-Clause 14.5 [Plant and Materials intended for the Works]; any other additions and/or deductions which have become due under the Contract or otherwise, including those under Sub-Clause 3.7 [Agreement or Determination]; any amounts to be added for Provisional Sums under Sub-Clause 13.4 [Provisional Sums]; 71