FIDIC 2017 General Conditions PDF

14.11 Final Statement The Engineer shall then issue an IPC in accordance with Sub-Clause 14.6 [Issue of IPC]. Submission by the Contractor of any Statement under the following provisions of this Sub-Clause shall not be delayed by reason of any referral under Sub-Clause 21.4 [Obtaining DAAB...

14.11 Final Statement The Engineer shall then issue an IPC in accordance with Sub-Clause 14.6 [Issue of IPC]. Submission by the Contractor of any Statement under the following provisions of this Sub-Clause shall not be delayed by reason of any referral under Sub-Clause 21.4 [Obtaining DAAB’s Decision] or any arbitration under Sub-Clause 21.6 [Arbitration]. 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 14.11.1 Draft Final Statement Within 56 days after the issue of the Performance Certificate, the Contractor shall submit to the Engineer, a draft final Statement. This Statement shall: (a) (b) (c) be in the same form as Statements previously submitted under Sub-Clause 14.3 [Application for Interim Payment]; 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, with supporting documents: (i) the value of all work done in accordance with the Contract; (ii) any further sums which the Contractor considers to be due at the date of the issue of the Performance Certificate, under the Contract or otherwise; and (iii) an estimate of any other amounts which the Contractor considers have or will become due after the issue of the Performance Certificate, under the Contract or otherwise, including estimated amounts, by reference to the matters described in sub-paragraphs (c) (i) to (iii) of Sub-Clause 14.10 [Statement at Completion]. These estimated amounts shall be shown separately (to those of sub-paragraphs (i) and (ii) above). Except for any amount under sub-paragraph (iii) above, if the Engineer disagrees with or cannot verify any part of the draft final Statement, the Engineer shall promptly give a Notice to the Contractor. The Contractor shall then submit such further information as the Engineer may reasonably require within the time stated in this Notice, and shall make such changes in the draft as may be agreed between them. 14.11.2 Agreed Final Statement General Conditions © FIDIC 2017 If there are no amounts under sub-paragraph (iii) of Sub-Clause 14.11.1 [Draft Final Statement], the Contractor shall then prepare and submit to the Engineer the final Statement as agreed (the “Final Statement” in these Conditions). 77 GENERAL CONDITIONS GUIDANCE FORMS shown separately (to those of sub-paragraphs (a) and (b) above) and shall include estimated amounts for: (i) Claims for which the Contractor has submitted a Notice under Sub-Clause 20.2 [Claims For Payment and/or EOT]; (ii) any matter referred to the DAAB under Sub-Clause 21.4 [Obtaining DAAB’s Decision]; and (iii) any matter for which a NOD has been given under Sub-Clause 21.4 [Obtaining DAAB’s Decision]. GENERAL CONDITIONS GUIDANCE (a) (b) FORMS 14.12 Discharge 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 However if: there are amounts under sub-paragraph (iii) of Sub-Clause 14.11.1 [Draft Final Statement]; and/or following discussions between the Engineer and the Contractor, it becomes evident that they cannot agree any amount(s) in the draft final Statement, the Contractor shall then prepare and submit to the Engineer a Statement, identifying separately: the agreed amounts, the estimated amounts and the disagreed amount(s) (the “Partially Agreed Final Statement” in these Conditions). When submitting the Final Statement or the Partially Agreed Final Statement (as the case may be), the Contractor shall submit a discharge which confirms that the total of such Statement represents full and final settlement of all moneys due to the Contractor under or in connection with the Contract. This discharge may state that the total of the Statement is subject to any payment that may become due in respect of any Dispute for which a DAAB proceeding or arbitration is in progress under Sub-Clause 21.6 [Arbitration] and/or that it becomes effective after the Contractor has received: (a) (b) full payment of the amount certified in the FPC; and the Performance Security. If the Contractor fails to submit this discharge, the discharge shall be deemed to have been submitted and to have become effective when the conditions of sub-paragraphs (a) and (b) have been fulfilled. A discharge under this Sub-Clause shall not affect either Party’s liability or entitlement in respect of any Dispute for which a DAAB proceeding or arbitration is in progress under Clause 21 [Disputes and Arbitration]. 14.13 Issue of FPC Within 28 days after receiving the Final Statement or the Partially Agreed Final Statement (as the case may be), and the discharge under Sub-Clause 14.12 [Discharge], the Engineer shall issue to the Employer (with a copy to the Contractor), the Final Payment Certificate which shall state: (a) (b) 78 © FIDIC 2017 the amount which the Engineer fairly considers is finally due, including any additions and/or deductions which have become due under Sub-Clause 3.7 [Agreement or Determination] or under the Contract or otherwise; and after giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled, and after giving credit to the Contractor for all amounts (if any) previously paid by the Contractor and/or received by the Employer under the Performance Security, the balance (if any) due from the Employer to the Contractor or from the Contractor to the Employer, as the case may be. If the Contractor has not submitted a draft final Statement within the time specified under Sub-Clause 14.11.1 [Draft Final Statement], the Engineer shall request the Contractor to do so. Thereafter, if the Contractor fails to submit a draft final Statement within a period of 28 days, the Engineer shall issue the FPC for such an amount as the Engineer fairly considers to be due. Conditions of Contract for Construction (i) 14.14 Cessation of Employer’s Liability the Engineer shall proceed in accordance with Sub-Clause 14.6 [Issue of IPC] to issue an IPC. GUIDANCE The Employer shall not be liable to the Contractor for any matter or thing under or in connection with the Contract or execution of the Works, except to the extent that the Contractor shall have included an amount expressly for it in: FORMS (ii) (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 the Contractor has submitted a Partially Agreed Final Statement under Sub-Clause 14.11.2 [Agreed Final Statement]; or no Partially Agreed Final Statement has been submitted by the Contractor but, to the extent that a draft final Statement submitted by the Contractor is deemed by the Engineer to be a Partially Agreed Final Statement the Final Statement or Partially Agreed Final Statement; and (except for matters or things arising after the issue of the Taking-Over Certificate for the Works) the Statement under Sub-Clause 14.10 [Statement at Completion]. Unless the Contractor makes or has made a Claim under Sub-Clause 20.2 [Claims For Payment and/or EOT] in respect of an amount or amounts under the FPC within 56 days of receiving a copy of the FPC the Contractor shall be deemed to have accepted the amounts so certified. The Employer shall then have no further liability to the Contractor, other than to pay the amount due under the FPC and return the Performance Security to the Contractor. However, this Sub-Clause shall not limit the Employer’s liability under the Employer’s indemnification obligations, or the Employer’s liability in any case of fraud, gross negligence, deliberate default or reckless misconduct by the Employer. 14.15 Currencies of Payment The Contract Price shall be paid in the currency or currencies named in the Contract Data. If more than one currency is so named, payments shall be made as follows: (a) (b) General Conditions © FIDIC 2017 GENERAL CONDITIONS If: if the Accepted Contract Amount was expressed in Local Currency only or in Foreign Currency only: (i) the proportions or amounts of the Local and Foreign Currencies, and the fixed rates of exchange to be used for calculating the payments, shall be as stated in the Contract Data, except as otherwise agreed by both Parties; (ii) payments and deductions under Sub-Clause 13.4 [Provisional Sums] and Sub-Clause 13.6 [Adjustments for Changes in Laws] shall be made in the applicable currencies and proportions; and (iii) other payments and deductions under sub-paragraphs (i) to (iv) of Sub-Clause 14.3 [Application for Interim Payment] shall be made in the currencies and proportions specified in sub-paragraph (a) (i) above; whenever an adjustment is agreed or determined under Sub-Clause 13.2 [Value Engineering] or Sub-Clause 13.3 [Variation Procedure], the amount payable in each of the applicable currencies shall be 79 GENERAL CONDITIONS (c) GUIDANCE (d) (e) FORMS (f) specified. For this purpose, reference shall be made to the actual or expected currency proportions of the Cost of the varied work, and to the proportions of various currencies specified in sub-paragraph (a)(i) above; payment of Delay Damages shall be made in the currencies and proportions specified in the Contract Data; other payments to the Employer by the Contractor shall be made in the currency in which the sum was expended by the Employer, or in such currency as may be agreed by both Parties; if any amount payable by the Contractor to the Employer in a particular currency exceeds the sum payable by the Employer to the Contractor in that currency, the Employer may recover the balance of this amount from the sums otherwise payable to the Contractor in other currencies; and if no rates of exchange are stated in the Contract Data, they shall be those prevailing on the Base Date and published by the central bank of the Country. 15 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 Termination by Employer 15.1 Notice to Correct If the Contractor fails to carry out any obligation under the Contract the Engineer may, by giving a Notice to the Contractor, require the Contractor to make good the failure and to remedy it within a specified time (“Notice to Correct” in these Conditions). The Notice to Correct shall: (a) (b) (c) describe the Contractor’s failure; state the Sub-Clause and/or provisions of the Contract under which the Contractor has the obligation; and specify the time within which the Contractor shall remedy the failure, which shall be reasonable, taking due regard of the nature of the failure and the work and/or other action required to remedy it. After receiving a Notice to Correct the Contractor shall immediately respond by giving a Notice to the Engineer describing the measures the Contractor will take to remedy the failure, and stating the date on which such measures will be commenced in order to comply with the time specified in the Notice to Correct. The time specified in the Notice to Correct shall not imply any extension of the Time for Completion. 15.2 Termination for Contractor’s Default 15.2.1 80 © FIDIC 2017 Termination of the Contract under this Clause shall not prejudice any other rights of the Employer under the Contract or otherwise. Notice The Employer shall be entitled to give a Notice (which shall state that it is given under this Sub-Clause 15.2.1) to the Contractor of the Employer’s intention to terminate the Contract or, in the case of sub-paragraph (f), (g) or (h) below a Notice of termination, if the Contractor: Conditions of Contract for Construction  and such failure constitutes a material breach of the Contractor’s obligations under the Contract; (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) (e) (f) (g) or if the Contractor is a JV: (h) 15.2.2 abandons the Works or otherwise plainly demonstrates an intention not to continue performance of the Contractor’s obligations under the Contract; without reasonable excuse fails to proceed with the Works in accordance with Clause 8 [Commencement, Delays and Suspension] or, if there is a maximum amount of Delay Damages stated in the Contract Data, his failure to comply with Sub-Clause 8.2 [Time for Completion] is such that the Employer would be entitled to Delay Damages that exceed this maximum amount; without reasonable excuse fails to comply with a Notice of rejection given by the Engineer under Sub-Clause 7.5 [Defects and Rejection] or an Engineer’s instruction under Sub-Clause 7.6 [Remedial Work], within 28 days after receiving it; fails to comply with Sub-Clause 4.2 [Performance Security]; subcontracts the whole, or any part of, the Works in breach of Sub-Clause 5.1 [Subcontractors], or assigns the Contract without the required agreement under Sub-Clause 1.7 [Assignment]; becomes bankrupt or insolvent; goes into liquidation, administration, reorganisation, winding-up or dissolution; becomes subject to the appointment of a liquidator, receiver, administrator, manager or trustee; enters into a composition or arrangement with the Contractor’s creditors; or any act is done or any event occurs which is analogous to or has a similar effect to any of these acts or events under applicable Laws; (i) (ii) any of these matters apply to a member of the JV, and the other member(s) do not promptly confirm to the Employer that, in accordance with Sub-Clause 1.14(a) [Joint and Several Liability], such member’s obligations under the Contract shall be fulfilled in accordance with the Contract; or is found, based on reasonable evidence, to have engaged in corrupt, fraudulent, collusive or coercive practice at any time in relation to the Works or to the Contract. Termination Unless the Contractor remedies the matter described in a Notice given under Sub-Clause 15.2.1 [Notice] within 14 days of receiving the Notice, the Employer may by giving a second Notice to the Contractor immediately terminate the Contract. The date of termination shall be the date the Contractor receives this second Notice. However, in the case of sub-paragraph (f), (g) or (h) of Sub-Clause 15.2.1 [Notice], the Employer may by giving a Notice under Sub-Clause 15.2.1 immediately terminate the Contract and the date of termination shall be the date the Contractor receives this Notice. General Conditions © FIDIC 2017 81 GENERAL CONDITIONS GUIDANCE fails to comply with: (i) a Notice to Correct; (ii) a binding agreement, or final and binding determination, under Sub-Clause 3.7 [Agreement or Determination]; or (iii) a decision of the DAAB under 21.4 [Obtaining DAAB’s Decision] (whether binding or final and binding) FORMS (a)