FIDIC 2017 General Conditions PDF

Unless otherwise stated in the Employer’s Requirements, the Tests on Completion shall be carried out in stages in the following sequence: (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.o...

Unless otherwise stated in the Employer’s Requirements, the Tests on Completion shall be carried out in stages in the following sequence: (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) pre-commissioning tests (on or off the Site, as appropriate), which shall include the appropriate inspections and (“dry” or “cold”) functional tests to demonstrate that each item of the Works or Section can safely undertake the next stage under sub-paragraph (b) below; commissioning tests, which shall include the operational tests specified in the Employer’s Requirements to demonstrate that the Works or Section can be operated safely and as specified in the Employer’s Requirements, under all available operating conditions; and trial operation (to the extent possible under available operating conditions), which shall demonstrate that the Works or Section perform reliably and in accordance with the Contract. The tests of each stage described in sub-paragraphs (b) and (c) above shall not be commenced until the Works or Section have passed the previous stage. During trial operation, when the Works or Section (as the case may be) are operating under stable conditions, the Contractor shall give a Notice to the Engineer that they are ready for any other Tests on Completion, including performance tests. Performance tests shall be carried out to demonstrate whether the Works or Section comply with the performance criteria specified in the Employer’s Requirements and with the Schedule of Performance Guarantees. Trial operation, including performance testing, shall not constitute a taking over under Clause 10 [Employer’s Taking Over]. Any product produced by, and any revenue or other benefit resulting from, trial operation under this Sub-Clause shall be the property of the Employer. As soon as the Works or Section have, in the Contractor’s opinion, passed each stage of the Tests on Completion described in sub-paragraphs (a) to (c) above, the Contractor shall submit a certified report of the results of these tests to the Engineer. The Engineer shall Review each such report and may give a Notice to the Contractor stating the extent to which the results of the tests do not comply with the Contract. If the Engineer does not give such a Notice within 14 days after receiving the results of the tests, the Engineer shall be deemed to have given a Notice of No-objection. In considering the results of the Tests on Completion, the Engineer shall make allowances for the effect of any use of (any part of) the Works by the Employer on the performance or other characteristics of the Works. 9.2 Delayed Tests General Conditions © FIDIC 2017 If the Contractor has given a Notice under Sub-Clause 9.1 [Contractor’s Obligations] that the Works or Section (as the case may be) are ready for Tests on Completion, and these tests are unduly delayed by the Employer’s Personnel or by a cause for which the Employer is responsible, Sub-Clause 10.3 [Interference with Tests on Completion] shall apply. 55 GENERAL CONDITIONS GUIDANCE FORMS the Contractor will be ready to carry out each of the Tests on Completion. The Contractor shall commence the Tests on Completion within 14 days after this date, or on such day or days as the Engineer shall instruct, and shall proceed in accordance with the Contractor’s test programme to which the Engineer has given (or is deemed to have given) a Notice of No-objection. GENERAL CONDITIONS GUIDANCE If the Tests on Completion are unduly delayed by the Contractor, the Engineer may by giving a Notice to the Contractor require the Contractor to carry out the tests within 21 days after receiving the Notice. The Contractor shall carry out the tests on such day or days within this period of 21 days as the Contractor may fix, for which the Contractor shall give a prior Notice to the Engineer of not less than 7 days. If the Contractor fails to carry out the Tests on Completion within this period of 21 days: (a) FORMS (b) (c) (d) 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 9.3 Retesting 9.4 Failure to Pass Tests on Completion Whether or not the Contractor attends, these Tests on Completion shall be deemed to have been carried out in the presence of the Contractor and the results of these tests shall be accepted as accurate. If the Works, or a Section, fail to pass the Tests on Completion, Sub-Clause 7.5 [Defects and Rejection] shall apply. The Engineer or the Contractor may require these failed tests, and the Tests on Completion on any related work, to be repeated under the same terms and conditions. Such repeated tests shall be treated as Tests on Completion for the purposes of this Clause. If the Works, or a Section, fail to pass the Tests on Completion repeated under Sub-Clause 9.3 [Retesting], the Engineer shall be entitled to: (a) (b) (c) (d) 56 © FIDIC 2017 after a second Notice is given by the Engineer to the Contractor, the Employer’s Personnel may proceed with the tests; the Contractor may attend and witness these tests; within 28 days of these tests being completed, the Engineer shall send a copy of the test results to the Contractor; and if the Employer incurs additional costs as a result of such testing, the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the costs reasonably incurred. order further repetition of Tests on Completion under Sub-Clause 9.3 [Retesting]; reject the Works if the effect of the failure is to deprive the Employer of substantially the whole benefit of the Works, in which event the Employer shall have the same remedies as are provided in sub-paragraph (d) of Sub-Clause 11.4 [Failure to Remedy Defects]; reject the Section if the effect of the failure is that the Section cannot be used for its intended purpose(s) under the Contract, in which event the Employer shall have the same remedy as is provided in sub-paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects]; or issue a Taking-Over Certificate, if the Employer so requests. In the event of sub-paragraph (d) above, the Contractor shall then proceed in accordance with all other obligations under the Contract, and the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor or a reduction in the Contract Price as described under sub-paragraphs (b)(i) or (b)(ii) of Sub-Clause 11.4 [Failure to Remedy Defects], respectively. This entitlement shall be without prejudice to any other rights the Employer may have, under the Contract or otherwise. Conditions of Contract for Plant and Design-Build GENERAL CONDITIONS 11.10 Unfulfilled Obligations GUIDANCE 11.11 Clearance of Site After the issue of the Performance Certificate, each Party shall remain liable for the fulfilment of any obligation which remains unperformed at that time. For the purposes of determining the nature and extent of unperformed obligations, the Contract shall be deemed to remain in force. However in relation to Plant, the Contractor shall not be liable for any defects or damage occurring more than two years after expiry of the DNP for the Plant except if prohibited by law or in any case of fraud, gross negligence, deliberate default or reckless misconduct. Promptly after the issue of the Performance Certificate, the Contractor shall: FORMS (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) remove any remaining Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works from the Site; reinstate all parts of the Site which were affected by the Contractor’s activities during the execution of the Works and are not occupied by the Permanent Works; and leave the Site and the Works in the condition stated in the Employer’s Requirements (if not stated, in a clean and safe condition). If the Contractor fails to comply with sub-paragraphs (a), (b) and/or (c) above within 28 days after the issue of the Performance Certificate, the Employer may sell (to the extent permitted by applicable Laws) or otherwise dispose of any remaining items and/or may reinstate and clean the Site (as may be necessary) at the Contractor’s cost. The Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the costs reasonably incurred in connection with, or attributable to, such sale or disposal and reinstating and/or cleaning the Site, less an amount equal to the moneys from the sale (if any). 12 Tests after Completion 12.1 Procedure for Tests after Completion If Tests after Completion are specified in the Employer’s Requirements, this Clause shall apply. The Employer shall: (a) (b) 64 © FIDIC 2017 provide all electricity, water, sewage (if applicable), equipment, fuel, consumables, instruments, labour, materials, and suitably qualified, experienced and competent staff, as are necessary to carry out the Tests after Completion efficiently and properly; and carry out the Tests after Completion in accordance with: (i) the Employer’s Requirements, (ii) the O&M Manuals to which the Engineer has given (or is deemed to have been given) a Notice of No-objection, under Sub-Clause 5.7 [Operation and Maintenance Manuals], and (iii) such guidance as the Contractor may be required to give during the course of these tests; and in the presence of such Contractor’s Personnel as either Party may reasonably request. Conditions of Contract for Plant and Design-Build 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 If the Contractor does not attend at the time and place stated in the Engineer’s Notice (or otherwise agreed with the Contractor), the Employer may proceed with the Tests after Completion, which shall be deemed to have been made in the Contractor’s presence, and the Contractor shall be deemed to have accepted the readings as accurate. The results of the Tests after Completion shall be compiled and evaluated by both Parties. Appropriate account shall be taken of the effect of the Employer’s prior use of the Works. 12.2 Delayed Tests 12.3 Retesting If the Contractor incurs Cost as a result of any unreasonable delay by the Employer in carrying out the Tests after Completion, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of such Cost Plus Profit. 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. 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: (a) (b) sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects] shall apply; and after remedying any defect or damage, Sub-Clause 11.6 [Further Tests after Remedying Defects] shall apply. 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. 12.4 Failure to Pass Tests after Completion If: (a) (b) General Conditions © FIDIC 2017 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 subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these Performance Damages by the Contractor in full satisfaction of this failure. If the Contractor pays these 65 GENERAL CONDITIONS GUIDANCE The timing of the Tests after Completion shall be as stated in the Employer’s Requirements (if not stated, as soon as is reasonably practicable) after the Works or Section (as the case may be) have been taken over under Clause 10 [Employer’s Taking Over]. The Engineer shall give a Notice to the Contractor, of not less than 21 days, of the date on which and place at which the Tests after Completion will be carried out. This Notice shall also include a test programme showing the estimated timing for each of such tests. Unless otherwise agreed with the Contractor, these tests shall be carried out on this date. FORMS  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) GUIDANCE GENERAL CONDITIONS Performance Damages to the Employer during the DNP, then the Works or Section shall be deemed to have passed these Tests after Completion. (ii) FORMS (iii) 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 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; 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 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. 13 Variations and Adjustments 13.1 Right to Vary Variations may be initiated by the Engineer under Sub-Clause 13.3 [Variation Procedure] at any time before the issue of the Taking-Over Certificate for the Works. Other than as stated under Sub-Clause 11.4 [Failure to Remedy Defects], a Variation shall not comprise the omission of any work which is to be carried out by the Employer or by others unless otherwise agreed by the Parties. The Contractor shall be bound by each Variation instructed under Sub-Clause 13.3.1 [Variation by Instruction], and shall execute the Variation with due expedition and without delay, unless the Contractor promptly gives a Notice to the Engineer stating (with detailed supporting particulars) that: (a) (b) (c) (d) (e) 66 © FIDIC 2017 the varied work was Unforeseeable having regard to the scope and nature of the Works described in the Employer’s Requirements; the Contractor cannot readily obtain the Goods required for the Variation; it will adversely affect the Contractor’s ability to comply with Sub-Clause 4.8 [Health and Safety Obligations] and/or Sub-Clause 4.18 [Protection of the Environment]; it will have an adverse impact on the achievement of the Schedule of Performance Guarantees; or it may adversely affect the Contractor’s obligation to complete the Works so that they shall be fit for the purpose(s) for which they are intended under Sub-Clause 4.1 [Contractor’s General Obligations]. Conditions of Contract for Plant and Design-Build GENERAL CONDITIONS GUIDANCE 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) (b) FORMS 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 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 14.1 The Contract Price Unless otherwise stated in the Particular Conditions: (a) (b) (c) (d) 14.2 Advance Payment 14.2.1 72 © FIDIC 2017 the Contract Price shall be the lump sum Accepted Contract Amount 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 a Schedule are estimated quantities and are not to be taken as the actual and correct quantities of the Works which the Contractor is required to execute; and any quantities or price data which may be set out in a Schedule shall be used for the purposes stated in the Schedule and may be inapplicable for other purposes. However, if any part of the Works is to be paid according to quantity supplied or work done, the provisions for measurement and valuation shall be as stated in the Particular Conditions. The Contract Price shall be valued accordingly, subject to adjustments in accordance with the Contract. 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. The amount of the advance payment and the currencies in which it is to be paid shall be as stated in the Contract Data. 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 with a copy to the Engineer. This guarantee shall be issued by an entity and from within a country (or other jurisdiction) to Conditions of Contract for Plant and Design-Build