FIDIC 2017 General Conditions of Contract for Construction PDF

GENERAL CONDITIONS 15.2.3 After termination After termination of the Contract under Sub-Clause 15.2.2 [Termination], the Contractor shall: (b) FORMS GUIDANCE (a) (c) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT...

GENERAL CONDITIONS 15.2.3 After termination After termination of the Contract under Sub-Clause 15.2.2 [Termination], the Contractor shall: (b) FORMS GUIDANCE (a) (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 15.2.4 comply immediately with any reasonable instructions included in a Notice given by the Employer under this Sub-Clause: (i) for the assignment of any subcontract; and (ii) for the protection of life or property or for the safety of the Works; deliver to the Engineer: (i) any Goods required by the Employer, (ii) all Contractor’s Documents, and (iii) all other design documents made by or for the Contractor to the extent, if any, that the Contractor is responsible for the design of part of the Permanent Works under Sub-Clause 4.1 [Contractor’s General Obligations]; and leave the Site and, if the Contractor does not do so, the Employer shall have the right to expel the Contractor from the Site. Completion of the Works After termination under this Sub-Clause, the Employer may complete the Works and/or arrange for any other entities to do so. The Employer and/or these entities may then use any Goods and Contractor’s Documents (and other design documents, if any) made by or on behalf of the Contractor to complete the Works. After such completion of the Works, the Employer shall give another Notice to the Contractor that the Contractor’s Equipment and Temporary Works will be released to the Contractor at or near the Site. The Contractor shall then promptly arrange their removal, at the risk and cost of the Contractor. However, if by this time the Contractor has failed to make a payment due to the Employer, these items may be sold (to the extent permitted by applicable Laws) by the Employer in order to recover this payment. Any balance of the proceeds shall then be paid to the Contractor. 15.3 Valuation after Termination for Contractor’s Default After termination of the Contract under Sub-Clause 15.2 [Termination for Contractor’s Default], the Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the value of the Permanent Works, Goods and Contractor’s Documents, and any other sums due to the Contractor for work executed in accordance with the Contract (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date of termination shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). This valuation shall include any additions and/or deductions, and the balance due (if any), by reference to the matters described in sub-paragraphs (a) and (b) of Sub-Clause 14.13 [Issue of FPC]. This valuation shall not include the value of any Contractor’s Documents, Materials, Plant and Permanent Works to the extent that they do not comply with the Contract. 82 © FIDIC 2017 Conditions of Contract for Construction After termination of the Contract under Sub-Clause 15.2 [Termination for Contractor’s Default], the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor 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 (c) 15.5 Termination for Employer’s Convenience the additional costs of execution of the Works, and all other costs reasonably incurred by the Employer (including costs incurred in clearing, cleaning and reinstating the Site as described under Sub-Clause 11.11 [Clearance of Site]), after allowing for any sum due to the Contractor under Sub-Clause 15.3 [Valuation after Termination for Contractor’s Default]; any losses and damages suffered by the Employer in completing the Works; and Delay Damages, if the Works or a Section have not been taken over under Sub-Clause 10.1 [Taking Over the Works and Sections] and if the date of termination under Sub-Clause 15.2 [Termination for Contractor’s Default] occurs after the date corresponding to the Time for Completion of the Works or Section (as the case may be). Such Delay Damages shall be paid for every day that has elapsed between these two dates. The Employer shall be entitled to terminate the Contract at any time for the Employer’s convenience, by giving a Notice of such termination to the Contractor (which Notice shall state that it is given under this Sub-Clause 15.5). After giving a Notice to terminate under this Sub-Clause, the Employer shall immediately: (a) (b) (c) have no right to further use any of the Contractor’s Documents, which shall be returned to the Contractor, except those for which the Contractor has received payment or for which payment is due under a Payment Certificate; if Sub-Clause 4.6 [Co-operation] applies, have no right to allow the continued use (if any) of any Contractor’s Equipment, Temporary Works, access arrangements and/or other of the Contractor’s facilities or services; and make arrangements to return the Performance Security to the Contractor. Termination under this Sub-Clause shall take effect 28 days after the later of the dates on which the Contractor receives this Notice or the Employer returns the Performance Security. Unless and until the Contractor has received payment of the amount due under Sub-Clause 15.6 [Valuation after Termination for Employer’s Convenience], the Employer shall not execute (any part of) the Works or arrange for (any part of) the Works to be executed by any other entities. After this termination, the Contractor shall proceed in accordance with Sub-Clause 16.3 [Contractor’s Obligations After Termination]. General Conditions © FIDIC 2017 83 GENERAL CONDITIONS GUIDANCE The Employer may withhold payment to the Contractor of the amounts agreed or determined under Sub-Clause 15.3 [Valuation after Termination for Contractor’s Default] until all the costs, losses and damages (if any) described in the following provisions of this Sub-Clause have been established. FORMS 15.4 Payment after Termination for Contractor’s Default GENERAL CONDITIONS GUIDANCE 15.6 Valuation after Termination for Employer’s Convenience After termination under Sub-Clause 15.5 [Termination for Employer’s Convenience] the Contractor shall, as soon as practicable, submit detailed supporting particulars (as reasonably required by the Engineer) of: (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 FORMS (b) the value of work done, which shall include: (i) the matters described in sub-paragraphs (a) to (e) of Sub-Clause 18.5 [Optional Termination], and (ii) any additions and/or deductions, and the balance due (if any), by reference to the matters described in sub-paragraphs (a) and (b) of Sub-Clause 14.13 [Issue of FPC]; and the amount of any loss of profit or other losses and damages suffered by the Contractor as a result of this termination. The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the matters described in sub-paragraphs (a) and (b) above (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the Contractor’s particulars under this Sub-Clause shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). The Engineer shall issue a Payment Certificate for the amount so agreed or determined, without the need for the Contractor to submit a Statement. 15.7 Payment after Termination for Employer’s Convenience The Employer shall pay the Contractor the amount certified in the Payment Certificate under Sub-Clause 15.6 [Valuation after Termination for Employer’s Convenience] within 112 days after the Engineer receives the Contractor’s submission under that Sub-Clause. 16 Suspension and Termination by Contractor 16.1 Suspension by Contractor If: (a) (b) (c) (d) the Engineer fails to certify in accordance with Sub-Clause 14.6 [Issue of IPC]; the Employer fails to provide reasonable evidence in accordance with Sub-Clause 2.4 [Employer’s Financial Arrangements]; the Employer fails to comply with Sub-Clause 14.7 [Payment]; or the Employer fails to comply with: (i) a binding agreement, or final and binding determination under Sub-Clause 3.7 [Agreement or Determination]; or (ii) a decision of the DAAB under 21.4 [Obtaining DAAB’s Decision] (whether binding or final and binding) and such failure constitutes a material breach of the Employer’s obligations under the Contract, the Contractor may, not less than 21 days after giving a Notice to the Employer (which Notice shall state that it is given under this Sub-Clause 16.1), suspend work (or reduce the rate of work) unless and until the Employer has remedied such a default. 84 © FIDIC 2017 Conditions of Contract for Construction If the Employer subsequently remedies the default as described in the above Notice before the Contractor gives a Notice of termination under Sub-Clause 16.2 [Termination by Contractor], the Contractor shall resume normal working as soon as is reasonably practicable. If the Contractor suffers delay and/or incurs Cost as a result of suspending work (or reducing the rate of work) in accordance with this Sub-Clause, 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 Plus Profit. 16.2 Termination by Contractor 16.2.1 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 Termination of the Contract under this Clause shall not prejudice any other rights of the Contractor, under the Contract or otherwise. Notice The Contractor shall be entitled to give a Notice (which shall state that it is given under this Sub-Clause 16.2.1) to the Employer of the Contractor’s intention to terminate the Contract or, in the case of sub-paragraph (g)(ii), (h), (i) or (j) below a Notice of termination, if: (a) (b) (c) (d) and such failure constitutes a material breach of the Employer’s obligations under the Contract; (e) (f) (g) (h) (i) General Conditions © FIDIC 2017 the Contractor does not receive the reasonable evidence within 42 days after giving a Notice under Sub-Clause 16.1 [Suspension by Contractor] in respect of a failure to comply with Sub-Clause 2.4 [Employer’s Financial Arrangements]; the Engineer fails, within 56 days after receiving a Statement and supporting documents, to issue the relevant Payment Certificate; the Contractor does not receive the amount due under any Payment Certificate within 42 days after the expiry of the time stated in Sub-Clause 14.7 [Payment]; the Employer fails to comply with: (i) a binding agreement, or final and binding determination under Sub-Clause 3.7 [Agreement or Determination]; or (ii) a decision of the DAAB under 21.4 [Obtaining DAAB’s Decision] (whether binding or final and binding) the Employer substantially fails to perform, and such failure constitutes a material breach of, the Employer’s obligations under the Contract; the Contractor does not receive a Notice of the Commencement Date under Sub-Clause 8.1 [Commencement of Works] within 84 days after receiving the Letter of Acceptance; the Employer: (i) fails to comply with Sub-Clause 1.6 [Contract Agreement], or (ii) assigns the Contract without the required agreement under Sub-Clause 1.7 [Assignment]; a prolonged suspension affects the whole of the Works as described in sub-paragraph (b) of Sub-Clause 8.12 [Prolonged Suspension]; the Employer becomes bankrupt or insolvent; goes into liquidation, administration, reorganisation, winding-up or dissolution; becomes 85 GENERAL CONDITIONS GUIDANCE This action shall not prejudice the Contractor’s entitlements to financing charges under Sub-Clause 14.8 [Delayed Payment] and to termination under Sub-Clause 16.2 [Termination by Contractor]. FORMS GENERAL CONDITIONS GUIDANCE (j) 16.2.2 Termination Unless the Employer remedies the matter described in a Notice given under Sub-Clause 16.2.1 [Notice] within 14 days of receiving the Notice, the Contractor may by giving a second Notice to the Employer immediately terminate the Contract. The date of termination shall then be the date the Employer receives this second Notice. However, in the case of sub-paragraph (g)(ii), (h), (i) or (j) of Sub-Clause 16.2.1 [Notice], by giving a Notice under Sub-Clause 16.2.1 the Contractor may terminate the Contract immediately and the date of termination shall be the date the Employer receives this Notice. If the Contractor suffers delay and/or incurs Cost during the above period of 14 days, 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 Plus Profit. 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 subject to the appointment of a liquidator, receiver, administrator, manager or trustee; enters into a composition or arrangement with the Employer’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; or the Employer 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. 16.3 Contractor’s Obligations After Termination After termination of the Contract under Sub-Clause 15.5 [Termination for Employer’s Convenience], Sub-Clause 16.2 [Termination by Contractor] or Sub-Clause 18.5 [Optional Termination], the Contractor shall promptly: (a) (b) (c) 16.4 Payment after Termination by Contractor After termination under Sub-Clause 16.2 [Termination by Contractor], the Employer shall promptly: (a) (b) 86 © FIDIC 2017 cease all further work, except for such work as may have been instructed by the Engineer for the protection of life or property or for the safety of the Works. If the Contractor incurs Cost as a result of carrying out such instructed work the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to be paid such Cost Plus Profit; deliver to the Engineer all Contractor’s Documents, Plant, Materials and other work for which the Contractor has received payment; and remove all other Goods from the Site, except as necessary for safety, and leave the Site. pay the Contractor in accordance with Sub-Clause 18.5 [Optional Termination]; and subject to the Contractor’s compliance with Sub-Clause 20.2 [Claims For Payment and/or EOT], pay the Contractor the amount of any loss of profit or other losses and damages suffered by the Contractor as a result of this termination. Conditions of Contract for Construction