FIDIC 2017 Conditions of Contract for EPC/Turnkey Projects (PDF)

L A R E N E G If, for reasons not attributable to the Contractor, a Test after Completion on the Works or any Section cannot be completed during the DNP (or any other period agreed by both Parties), then the Works or Section shall be deemed to have passed this Test after Completion. S N O I T I D...

L A R E N E G If, for reasons not attributable to the Contractor, a Test after Completion on the Works or any Section cannot be completed during the DNP (or any other period agreed by both Parties), then the Works or Section shall be deemed to have passed this Test after Completion. S N O I T I D N O C 12.3 Subject to Sub-Clause 12.4 [ Failure to Pass Tests after Completion ], if the Works, or a Section, fail to pass the Tests after Completion: Retesting E C N A D I U G sub-paragraph (b) of Sub-Clause 11.1 [ Completion of Outstanding Work and Remedying Defects] shall apply; and (a) (b) after remedying any defect or damage, Sub-Clause 11.6 [ Tests after Remedying Defects] shall apply. Further If and to the extent that this failure and retesting are attributable to any of the matters listed in sub-paragraphs (a) to (d) of Sub-Clause 11.2 [ Cost of Remedying Defects] and cause the Employer to incur additional costs, the Employer shall be entitled subject to Sub-Clause 20.2 [ Claims For Payment and/or EOT] to payment of these costs by the Contractor. S M R O F 12.4 rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d Failure to Pass If: Tests after Completion (a) (b) the Works, or a Section, fail to pass any or all of the Tests after Completion; and applicable Performance Damages are set out in the Schedule of Performance Guarantees the Employer shall be entitled subjectoftothese Sub-Clause 20.2 Damages [ Claims Payment and/or EOT ] to payment Performance by For the Contractor in full satisfaction of this failure. If the Contractor pays these Performance Damages to the Employer during the DNP, then the Works or Section shall be deemed to have passed these Tests after Completion. If the Works, or a Section, fail to pass a Test after Completion and, by giving a Notice to the Employer, the Contractor proposes to make adjustments or modifications to the Works or such Section (including an item of Plant): (i) the Contractor may be instructed by a Notice given by the Employer that right of access to the Works or Section cannot be given until a time that is convenient to the Employer, which time shall be reasonable; (ii) the Contractor shall remain liable to carry out the adjustments or modifications and to satisfy this Test, within a reasonable period of receiving the Notice under sub-paragraph (i) above; and (iii) if the Contractor does not receive a Notice under sub-paragraph (i) above during the relevant DNP, the Contractor shall be relieved of the obligation to make such adjustments or modifications and the Works or Section (as the case may be) shall be deemed to have passed this Test after Completion. If the Contractor incurs additional Cost as a result of any unreasonable delay by the Employer in permitting access to the Works or Section by the Contractor, either to investigate the causes of a failure to pass a Test after Completion or to carry out any adjustments or modifications, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of any such Cost Plus Profit. is h T 60 © FIDIC 2017 Conditions of Contract for EPC/Turnkey Projects L A R E N E G S N O I T I D N O C Thereafter, the Employer 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 E C N A D I U G If there are no schedule(s) of cost indexation in the Particular Conditions, 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 theinamounts calculated in accordance with the schedule(s) of cost indexation the Particular Conditions. 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 Contract Price stated in the Contract Agreement shall be deemed to have included amounts to cover the contingency of other rises and falls in costs. S M R O F rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d The adjustment to be applied to the amount otherwise payable to the Contractor under Clause 14 [Contract Price and Payment] 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 Employer shall use a provisional index for the purpose of interim payments under Sub-Clause 14.6 [Interim Payment]. 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) each index or price applicable on the date 49 days before the expiry of the Time for Completion of the Works; or (b) the current index or price whichever is more favourable to the Employer. 14 Contract Price and Payment 14.1 The Contract Price is h T 66 © FIDIC 2017 Unless otherwise stated in the Particular Conditions: (a) payment for the Works shall be made on the basis of the lump sum Contract Price stated in the Contract Agreement, 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; (b) 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]; and (c) if any quantities are set out in a Schedule, they shall not be taken as the actual and correct quantities of the Works which the Contractor is required to execute, and they shall be used only for the purpose(s) stated in the Schedule and for no other purpose(s). Conditions of Contract for EPC/Turnkey Projects 14.2 If no amount of advance payment is stated in the Contract Data, this Sub-Clause shall not apply. Advance Payment Subject to the following provisions of this Sub-Clause, the Employer shall make an advance payment, as an interest-free loan for mobilisation and design. 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 Advance Payment Guarantee 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. 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. rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d 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: (a) the Contractor shall extend the validity of this guarantee until the advance payment has been repaid; (b) the Contractor shall immediately submit evidence of this extension to the Employer; and (c) 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. When submitting the Advance Payment Guarantee, the Contractor shall include an application (in the form of a Statement) for the advance payment. 14.2.2 Advance Payment The Employer shall make the advance payment within 14 days after: (a) (b) 14.2.3 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 Employer has received 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 interim payments under Sub-Clause 14.6 [Interim Payment]. Unless other percentages are stated in the Contract Data: (a) is h T General Conditions © FIDIC 2017 deductions shall commence with the interim payment in which the total of all interim payments in the same currency as the advance 67 L A R E N E G E C N A D I U G S M R O F S N IO T I D N O C L A R E N E G payment (excluding the advance payment and deductions and release of retention moneys) exceeds ten percent (10%) of the portion of the Contract Price stated in the Contract Agreement payable in that currency less Provisional Sums; and S N O I T I D N O C (b) E C N A D I U G deductions shall be made at the amortisation rate of one quarter (25%) of the amount of each interim payment (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. 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. S M R O F 14.3 Application for The Contractor shall submit a Statement to the Employer 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: Interim Payment rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d (a) be in a form acceptable to the Employer; (b) be submitted in one paper-srcinal, one electronic copy and additional paper copies (if any) as stated in the Contract Data; and (c) 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 Employer 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) 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); (ii) 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]; (iii) 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 (iv) any amounts to be added and/or deducted for the advance payment and repayments under Sub-Clause 14.2 [ Advance Payment]; (v) any amounts to be added and/or deducted for Plant and Materials under Sub-Clause 14.5 [Plant and Materials intended for the Works]; (vi) any other additions and/or deductions which have become due under the Contract or otherwise, including those under Sub-Clause 3.5 [Agreement or Determination ]; the amount so stated retained Employer reaches the limit of Retention Money (if any) in by thethe Contract Data; (vii) is h T 68 © FIDIC 2017 any amounts to be added for Provisional Sums under Sub-Clause 13.4 [Provisional Sums]; Conditions of Contract for EPC/Turnkey Projects L A R E N E G acceptance, approval, consent or Notice of No-objection to any Contractor’s Document or to (any part of) the Works. S N O I T I D N O C If the Contractor considers that an interim payment does not include any amounts to which the Contractor is entitled, these amounts shall be identified in the next Statement (the “identified amounts” in this paragraph). The Employer shall then make any correction or modification that should properly be made in the next interim payment. Thereafter, to the extent that: E C N A D I U G (a) the Contractor is not satisfied that this next interim payment includes the identified amounts; and (b) the identified amounts do not concern a matter for which the Employer’s Representative is already carrying out his/her duties under Sub-Clause 3.5 [Agreement or Determination ] the Contractor may, by giving a Notice, refer this matter to the Employer’s Representative and Sub-Clause 3.5 [Agreement or Determination] shall apply (and, for the purpose of Sub-Clause 3.5.3 [ Time limits], the date the Employer’s Representative receives this Notice shall be the date of commencement of the time limit for agreement under Sub-Clause 3.5.3). S M R O F 14.7 rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d The Employer shall pay to the Contractor: Payment (a) (b) the advance payment within the period stated in Sub-Clause 14.2.2 [Advance Payment]; the interim payment due under: (i) Sub-Clause 14.6 [ Interim Payment], within the period stated in the Contract Data (if not stated, 56 days) after the Employer receives the Statement and supporting documents; or (ii) Sub-Clause 14.13 [ Final Payment], within the period stated in the Contract Data (if not stated, 42 days) after the Employer receives the Partially Agreed Final Statement (or, if sub-paragraph (ii) of Sub-Clause 14.13 applies, within 84 days after the Employer receives the draft final Statement that is deemed to be a Partially Agreed Final Statement); and (c) the Final Payment under Sub-Clause 14.13 [ Final Payment] within the period stated in the Contract Data (if not stated, 56 days) after the Employer: (i) receives the Final Statement (or if the second paragraph of Sub-Clause 14.13 applies, after the expiry of 14 days after the Employer issues the Notice stating the Final Payment); and (ii) receives (or the Contractor is deemed to have issued) the discharge under Sub-Clause 14.12 [Discharge]. Payment of the amount due in each currency shall be made into the bank account, nominated by the Contractor, in the payment country (for this currency) specified in the Contract. 14.8 Delayed Payment If the Contractor does not receive payment in accordance with Sub-Clause 14.7 [Payment], the Contractor shall be entitled to receive financing charges compounded monthly on the amount unpaid during the period of delay. Unless otherwise stated in the Contract Data, these financing charges shall be calculated at the annual rate of three percent (3%) above: is h T 72 © FIDIC 2017 Conditions of Contract for EPC/Turnkey Projects