FIDIC® Conditions of Contract for PLANT and DESIGN-BUILD PDF

NOTES This Second Edition of the Conditions of Contract for Plant and Design-Build has been published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC) as an update of the FIDIC 1999 Conditions of Contract for Plant and Design-Build (Yellow Book), First Edition. This document is rest...

NOTES This Second Edition of the Conditions of Contract for Plant and Design-Build has been published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC) as an update of the FIDIC 1999 Conditions of Contract for Plant and Design-Build (Yellow Book), First Edition. 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 Along with the FIDIC 1999 Red Book (the Conditions of Contract for Construction) and the FIDIC 1999 Silver Book (the Conditions of Contract for EPC/Turnkey Projects), the FIDIC 1999 Yellow Book has been in widespread use for nearly two decades. In particular, it has been recognised for, among other things, its principles of balanced risk sharing between the Employer and the Contractor in projects where the Contractor designs and constructs the works, and may provide plant, in accordance with the Employer’s requirements, including any combination of civil, mechanical, electrical and/or construction works. This second edition of the FIDIC Yellow Book continues FIDIC’s fundamental principles of balanced risk sharing while seeking to build on the substantial experience gained from its use over the past 18 years. For example, this edition provides: 1) greater detail and clarity on the requirements for notices and other communications; 2) provisions to address Employers’ and Contractors’ claims treated equally and separated from disputes; 3) mechanisms for dispute avoidance and 4) detailed provisions for quality management, and verification of Contractor’s contractual compliance. These Conditions of Contract for Plant and Design-Build include conditions, which are likely to apply to the majority of such contracts. Essential items of information which are particular to each individual contract are to be included in the Particular Conditions Part A – Contract Data. In addition, it is recognised that many Employers, especially governmental agencies, may require special conditions of contract, or particular procedures, which differ from those included in the General Conditions. These should be included in Part B – Special Provisions. It should be noted, that the General Conditions and the Particular Conditions (Part A – Contract Data and Part B – Special Provisions) are all part of the Conditions of Contract. To assist Employers in preparing tender documents and in drafting Particular Conditions of Contract for specific contracts, this publication includes Notes on the Preparation of Tender Documents and Notes on the Preparation of Special Provisions, which provide important advice to drafters of contract documents, in particular the Employer’s Requirements and Special Provisions. In drafting Special Provisions, if clauses in the General Conditions are to be replaced or supplemented and before incorporating any example wording, Employers are urged to seek legal and engineering advice in an effort to avoid ambiguity and to ensure completeness and consistency with the other provisions of the contract. © FIDIC 2017 This publication begins with a series of comprehensive flow charts which typically show, in visual form, the sequences of activities which characterise the FIDIC Plant and Design-Build form of contract. The charts are illustrative, however, and must not be taken into consideration in the interpretation of the Conditions of Contract. This publication also includes a number of sample forms to help both Parties to develop a common understanding of what is required by third parties such as providers of securities and guarantees. Drafters of contract documents are reminded that the General Conditions of all FIDIC contracts are protected by copyright and trademark and may not be changed without specific written consent, usually in the form of a licence to amend, from FIDIC. If drafters wish to amend the provisions found in the General Conditions, the place for doing this is in the Particular Conditions Part B – Special Provisions, as mentioned above, and not by making changes in the General Conditions as published. 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 FIDIC considers the official and authentic texts to be the versions in the English language. © FIDIC 2017 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 Typical Sequence of Principal Events During Contracts for Plant and Design-Build 1. The Time for Completion is to be stated (in the Contract Data) as a number of days, to which is added any extensions of time under Sub-Clause 8.5. 2. In order to indicate the sequence of events, the above diagram is based upon the example of the Contractor failing to comply with Sub-Clause 8.2. 3. The Defects Notification Period is to be stated (in the Contract Data) as a number of days, to which is added any extensions under Sub-Clause 11.3. 4. Depending on the type of Works, Tests after Completion may also be required. Issue of the Tender Documents Submission Contractor’s 8.1 of the receipt of Commencement Tender the Letter of Date Acceptance Base Date 28d 1.1.24 Date of Completion Defects Notification Period3 8.2 Time for Completion1 ≤28d ≤21d Delay attributable to the Contractor2 Tender period 11.9 Issue of Performance Certificate 4.2.1 Delivery of the Performance Security 9. Tests on Completion4 11 Notifying of Defects Remedying of Defects 4.2.3 Return of the Performance Security (subject to Sub-Clause 11.11) © FIDIC 2017 Typical Sequence of Payment Events Envisaged in Clause 14 14.3, 14.6.1 Engineer receives Contractor’s Statement and Supporting documents 14.6 Engineer issues Interim Payment Certificate 14.7 Employer makes the payment to the Contractor ≤56d Each of the monthly (or otherwise) interim payments The final payment ≤28d Engineer verifies the statement, Contractor submits information ≤56d 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 ≤28d 14.11.1 Contractor 14.11.2 Contractor submits submits draft final Final Statement and the Statement to the Engineer 14.12 discharge 14.13 Engineer issues Final Payment Certificate 14.7 Employer makes payment Typical Sequence of Dispute Events Envisaged in Clause 21 Contractor receives the Letter of Acceptance 21.1 Parties appoint the DAAB 21.4.1 A Party refers the Dispute to the DAAB 21.4.4 A Party may issue a “Notice of Dissatisfaction” Parties present submissions to the DAAB ≤28d* ≤84d 21.5 Amicable settlement ≤28d DAAB gives its decision * If not stated otherwise in the Contract Data (Sub-Clause 21.1) © FIDIC 2017 21.6 A Party may initiate arbitration >28d Arbitrator/s appointed Typical Sequence of Events in Agreement or Determination under Sub-Clause 3.7 Scenario 11 Engineer starts performing duties Sub-Clause 3.7 Parties’ agreement Sub-Clause 3.7.1 Notice of error by a Party/Engineer Sub-Clause 3.7.4 Engineer’s Notice of agreement Sub-Clause 3.7.1 Engineer’s Notice of corrected agreement Sub-Clause 3.7.4 Consultations ≤42d ≤14d ≤7d Sub-Clause 3.7.3 (a), (b) or (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 Scenario 22 Engineer starts performing duties Sub-Clause 3.7 Parties advise the Engineer: no agreement Sub-Clause 3.7.1(b) Engineer’s Notice of determination Sub-Clause 3.7.2 Notice of Dissatisfaction Sub-Clause 3.7.5 No Notice of error Consultations Period for making Engineer’s determintaion ≤42d ≤42d ≤14d ≤28d Sub-Clause 3.7.3 (a), (b) or (c) Scenario 33 Engineer starts performing duties Sub-Clause 3.7 No agreement between the Parties Sub-Clause 3.7.1(a) Engineer’s Notice of determination Sub-Clause 3.7.2 Notice of error by a Party/Engineer Sub-Clause 3.7.4 Consultations Engineer’s Notice of corrected determination Sub-Clause 3.7.4 Notice of Dissatisfaction Sub-Clause 3.7.5 Period for making Engineer’s determintaion ≤42d ≤42d ≤14d ≤7d ≤28d Sub-Clause 3.7.3 (a), (b) or (c) 1. Agreement is reached within 42 days, error found in the Engineer’s Notice of agreement and corrected. 2. The Parties’ early advice that agreement cannot be reached and so Engineer’s determination is necessary, no error in Engineer’s determination. 3. No agreement within 42 days, Engineer determines within 42 days, error found in the Engineer’s determination and corrected. © FIDIC 2017 © FIDIC 2017 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 GENERAL CONDITIONS GUIDANCE FOR THE PREPARATION OF PARTICULAR CONDITIONS AND ANNEXES: FORMS OF SECURITIES FIDIC® 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 FOR ELECTRICAL & MECHANICAL PLANT, AND FOR BUILDING AND ENGINEERING WORKS, DESIGNED BY THE CONTRACTOR General Conditions FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES FORMS OF LETTER OF TENDER, LETTER OF ACCEPTANCE, CONTRACT AGREEMENT AND DISPUTE ADJUDICATION/ AVOIDANCE AGREEMENT 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 GENERAL CONDITIONS GUIDANCE General Conditions 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 General Conditions 1 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 Definitions Interpretation Notices and Other Communications Law and Language Priority of Documents Contract Agreement Assignment Care and Supply of Documents Errors in the Employer’s Requirements Employer’s Use of Contractor’s Documents Contractor’s Use of Employer’s Documents Confidentiality Compliance with Laws Joint and Several Liability Limitation of Liability Contract Termination 2 THE EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.1 2.2 2.3 2.4 2.5 2.6 Right of Access to the Site Assistance Employer’s Personnel and Other Contractors Employer’s Financial Arrangements Site Data and Items of Reference Employer-Supplied Materials and Employer’s Equipment 3 THE ENGINEER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.1 3.2 3.3 3.4 The Engineer Engineer’s Duties and Authority The Engineer’s Representative Delegation by the Engineer © FIDIC 2017 FORMS CONTENTS i GENERAL CONDITIONS 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 ii 3.5 3.6 3.7 3.8 Engineer’s Instructions Replacement of the Engineer Agreement or Determination Meetings 4 THE CONTRACTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19 4.20 4.21 4.22 4.23 Contractor’s General Obligations Performance Security Contractor’s Representative Subcontractors Nominated Subcontractors Co-operation Setting Out Health and Safety Obligations Quality.Management and Compliance Verification Systems Use of Site Data Sufficiency of the Accepted Contract Amount Unforeseeable Physical Conditions Rights of Way and Facilities Avoidance of Interference Access Route Transport of Goods Contractor’s Equipment Protection of the Environment Temporary Utilities Progress Reports Security of the Site Contractor’s Operations on Site Archaeological and Geological Findings 5 DESIGN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 General Design Obligations Contractor’s Documents Contractor’s Undertaking Technical Standards and Regulations Training As-Built Documents Operation and Maintenance Manuals Design Error 6 STAFF AND LABOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 6.1 6.2 6.3 6.4 6.5 Engagement of Staff and Labour Rates of Wages and Conditions of Labour Recruitment of Persons Labour Laws Working Hours © FIDIC 2017 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 General Conditions PLANT, MATERIALS AND WORKMANSHIP. . . . . . . . . . . . . . . . . . . . . . 45 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 Manner of Execution Samples Inspection Testing by the Contractor Defects and Rejection Remedial Work Ownership of Plant and Materials Royalties 8 COMMENCEMENT, DELAYS AND SUSPENSION . . . . . . . . . . . . . . . . . 49 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 Commencement of Works Time for Completion Programme Advance Warning Extension of Time for Completion Delays Caused by Authorities Rate of Progress Delay Damages Employer’s Suspension Consequences of Employer’s Suspension Payment for Plant and Materials after Employer’s Suspension Prolonged Suspension Resumption of Work 9 TESTS ON COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 9.1 9.2 9.3 9.4 Contractor’s Obligations Delayed Tests Retesting Failure to Pass Tests on Completion 10 EMPLOYER’S TAKING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 10.1 10.2 10.3 10.4 Taking Over the Works and Sections Taking Over Parts Interference with Tests on Completion Surfaces Requiring Reinstatement © FIDIC 2017 GENERAL CONDITIONS 7 GUIDANCE Facilities for Staff and Labour Health and Safety of Personnel Contractor’s Superintendence Contractor’s Personnel Contractor’s Records Disorderly Conduct Key Personnel FORMS 6.6 6.7 6.8 6.9 6.10 6.11 6.12 iii GENERAL CONDITIONS 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 iv 11 DEFECTS AFTER TAKING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 11.10 11.11 Completion of Outstanding Work and Remedying Defects Cost of Remedying Defects Extension of Defects Notification Period Failure to Remedy Defects Remedying of Defective Work off Site Further Tests after Remedying Defects Right of Access after Taking Over Contractor to Search Performance Certificate Unfulfilled Obligations Clearance of Site 12 TESTS AFTER COMPLETION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 12.1 12.2 12.3 12.4 Procedure for Tests after Completion Delayed Tests Retesting Failure to Pass Tests after Completion 13 VARIATIONS AND ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 13.1 13.2 13.3 13.4 13.5 13.6 13.7 Right to Vary Value Engineering Variation Procedure Provisional Sums Daywork Adjustments for Changes in Laws Adjustments for Changes in Cost 14 CONTRACT PRICE AND PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11 14.12 14.13 14.14 14.15 The Contract Price Advance Payment Application for Interim Payment Schedule of Payments Plant and Materials intended for the Works Issue of IPC Payment Delayed Payment Release of Retention Money Statement at Completion Final Statement Discharge Issue of FPC Cessation of Employer’s Liability Currencies of Payment © FIDIC 2017 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 General Conditions Notice to Correct Termination for Contractor’s Default Valuation after Termination for Contractor’s Default Payment after Termination for Contractor’s Default Termination for Employer’s Convenience Valuation after Termination for Employer’s Convenience Payment after Termination for Employer’s Convenience 16 SUSPENSION AND TERMINATION BY CONTRACTOR. . . . . . . . . . . . . 87 16.1 16.2 16.3 16.4 Suspension by Contractor Termination by Contractor Contractor’s Obligations After Termination Payment after Termination by Contractor 17 CARE OF THE WORKS AND INDEMNITIES. . . . . . . . . . . . . . . . . . . . . . 90 17.1 17.2 17.3 17.4 17.5 17.6 Responsibility for Care of the Works Liability for Care of the Works Intellectual and Industrial Property Rights Indemnities by Contractor Indemnities by Employer Shared Indemnities 18 EXCEPTIONAL EVENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 18.1 18.2 18.3 18.4 18.5 18.6 Exceptional Events Notice of an Exceptional Event Duty to Minimise Delay Consequences of an Exceptional Event Optional Termination Release from Performance under the Law 19 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 19.1 19.2 General Requirements Insurance to be provided by the Contractor 20 EMPLOYER’S AND CONTRACTOR’S CLAIMS . . . . . . . . . . . . . . . . . . . 99 20.1 20.2 Claims Claims For Payment and/or EOT © FIDIC 2017 GENERAL CONDITIONS 15.1 15.2 15.3 15.4 15.5 15.6 15.7 GUIDANCE TERMINATION BY EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 FORMS 15 v GENERAL CONDITIONS 21. DISPUTES AND ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 GUIDANCE 21.1 21.2 21.3 21.4 21.5 21.6 21.7 21.8 Constitution of the DAAB Failure to Appoint DAAB Member(s) Avoidance of Disputes Obtaining DAAB’s Decision Amicable Settlement Arbitration Failure to Comply with DAAB’s Decision No DAAB In Place FORMS APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 GENERAL CONDITIONS OF DISPUTE AVOIDANCE/ADJUDICATION 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 AGREEMENT INDEX OF SUB-CLAUSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 vi © FIDIC 2017 Conditions of Contract for Plant and Design-Build GENERAL CONDITIONS In the Contract the following words and expressions shall have the meanings stated, except where the context requires otherwise 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 1.1 Definitions General Conditions © FIDIC 2017 1.1.1 “Accepted Contract Amount” means the amount accepted in the Letter of Acceptance for the execution of the Works in accordance with the Contract. 1.1.2 “Advance Payment Certificate” means a Payment Certificate issued by the Engineer for advance payment under Sub-Clause 14.2.2 [Advance Payment Certificate]. 1.1.3 “Advance Payment Guarantee” means the guarantee under Sub-Clause 14.2.1 [Advance Payment Guarantee]. 1.1.4 “Base Date” means the date 28 days before the latest date for submission of the Tender. 1.1.5 “Claim” means a request or assertion by one Party to the other Party for an entitlement or relief under any Clause of these Conditions or otherwise in connection with, or arising out of, the Contract or the execution of the Works. 1.1.6 “Commencement Date” means the date as stated in the Engineer’s Notice issued under Sub-Clause 8.1 [Commencement of Works]. 1.1.7 “Compliance Verification System” means the compliance verification system to be prepared and implemented by the Contractor for the Works in accordance with Sub-Clause 4.9.2 [Compliance Verification System]. 1.1.8 “Conditions of Contract” or “these Conditions” means these General Conditions as amended by the Particular Conditions. 1.1.9 “Contract” means the Contract Agreement, the Letter of Acceptance, the Letter of Tender, any addenda referred to in the Contract Agreement, these Conditions, the Employer’s Requirements, the Schedules, the Contractor’s Proposal, the JV Undertaking (if applicable) and the further documents (if any) which are listed in the Contract Agreement or in the Letter of Acceptance. 1.1.10 “Contract Agreement” means the agreement entered into by both Parties in accordance with Sub-Clause 1.6 [Contract Agreement]. 1.1.11 “Contract Data” means the pages, entitled contract data which constitute Part A of the Particular Conditions. 1.1.12 “Contract Price” means the price defined in Sub-Clause 14.1 [The Contract Price]. 1.1.13 “Contractor” means the person(s) named as contractor in the Letter of Tender accepted by the Employer and the legal successors in title of such person(s). 1 GUIDANCE 1 General Provisions FORMS General Conditions GENERAL CONDITIONS “Contractor’s Documents” means the documents prepared by the Contractor as described in Sub-Clause 5.2 [Contractor’s Documents], including calculations, digital files, computer programs and other software, drawings, manuals, models, specifications and other documents of a technical nature. 1.1.15 “Contractor’s Equipment” means all apparatus, equipment, machinery, construction plant, vehicles and other items required by the Contractor for the execution of the Works. Contractor’s Equipment excludes Temporary Works, Plant, Materials and any other things intended to form or forming part of the Permanent Works. 1.1.16 “Contractor’s Personnel” means the Contractor’s Representative and all personnel whom the Contractor utilises on Site or other places where the Works are being carried out, including the staff, labour and other employees of the Contractor and of each Subcontractor; and any other personnel assisting the Contractor in the execution of the Works. 1.1.17 “Contractor’s Proposal” means the part of the Tender stated or implied as being the Contractor’s proposal for execution of the Works, as included in the Contract. Such documents may include the Contractor’s preliminary design. 1.1.18 “Contractor’s Representative” means the natural person named by the Contractor in the Contract or appointed by the Contractor under Sub-Clause 4.3 [Contractor’s Representative], who acts on behalf of the Contractor. 1.1.19 “Cost” means all expenditure reasonably incurred (or to be incurred) by the Contractor in performing the Contract, whether on or off the Site, including taxes, overheads and similar charges, but does not include profit. Where the Contractor is entitled under a Sub-Clause of these Conditions to payment of Cost, it shall be added to the Contract Price. 1.1.20 “Cost Plus Profit” means Cost plus the applicable percentage for profit stated in the Contract Data (if not stated, five percent (5%)). Such percentage shall only be added to Cost, and Cost Plus Profit shall only be added to the Contract Price, where the Contractor is entitled under a Sub-Clause of these Conditions to payment of Cost Plus Profit. 1.1.21 “Country” means the country in which the Site (or most of it) is located, where the Permanent Works are to be executed. 1.1.22 “DAAB” or “Dispute Avoidance/Adjudication Board” means the sole member or three members (as the case may be) so named in the Contract, or appointed under Sub-Clause 21.1 [Constitution of the DAAB] or Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)]. 1.1.23 “DAAB Agreement” means the agreement signed or deemed to have been signed by both Parties and the sole member or each of the three members (as the case may be) of the DAAB in accordance with Sub-Clause 21.1 [Constitution of the DAAB] or Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)], incorporating by reference the General Conditions of Dispute Avoidance/Adjudication Agreement contained in the Appendix to these General Conditions with such amendments as are agreed. 1.1.24 “Date of Completion” means the date stated in the Taking-Over Certificate issued by the Engineer; or, if the last paragraph of Sub-Clause 10.1 [Taking Over the Works and Sections] applies, the date on which the Works or Section 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 GUIDANCE 1.1.14 2 © FIDIC 2017 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 “day” means a calendar day. 1.1.26 “Daywork Schedule” means the document entitled daywork schedule (if any) included in the Contract, showing the amounts and manner of payments to be made to the Contractor for labour, materials and equipment used for daywork under Sub-Clause 13.5 [Daywork]. 1.1.27 “Defects Notification Period” or “DNP” means the period for notifying defects and/or damage in the Works or a Section or a Part (as the case may be) under Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects], as stated in the Contract Data (if not stated, one year), and as may be extended under Sub-Clause 11.3 [Extension of Defects Notification Period]. This period is calculated from the Date of Completion of the Works or Section or Part. 1.1.28 “Delay Damages” means the damages for which the Contractor shall be liable under Sub-Clause 8.8 [Delay Damages] for failure to comply with Sub-Clause 8.2 [Time for Completion]. 1.1.29 “Dispute” means any situation where: (a) (b) (c) General Conditions © FIDIC 2017 one Party makes a claim against the other Party (which may be a Claim, as defined in these Conditions, or a matter to be determined by the Engineer under these Conditions, or otherwise); the other Party (or the Engineer under Sub-Clause 3.7.2 [Engineer’s Determination]) rejects the claim in whole or in part; and the first Party does not acquiesce (by giving a NOD under Sub-Clause 3.7.5 [Dissatisfaction with Engineer’s determination] or otherwise), provided however that a failure by the other Party (or the Engineer) to oppose or respond to the claim, in whole or in part, may constitute a rejection if, in the circumstances, the DAAB or the arbitrator(s), as the case may be, deem it reasonable for it to do so. 1.1.30 “Employer” means the person named as the employer in the Contract Data and the legal successors in title to this person. 1.1.31 “Employer’s Equipment” means the apparatus, equipment, machinery, construction plant and/or vehicles (if any) to be made available by the Employer for the use of the Contractor under Sub-Clause 2.6 [EmployerSupplied Materials and Employer’s Equipment]; but does not include Plant which has not been taken over under Clause 10 [Employer’s Taking Over]. 1.1.32 “Employer’s Personnel” means the Engineer, the Engineer’s Representative (if appointed), the assistants described in Sub-Clause 3.4 [Delegation by the Engineer] and all other staff, labour and other employees of the Engineer and of the Employer engaged in fulfilling the Employer’s obligations under the Contract; and any other personnel identified as Employer’s Personnel, by a Notice from the Employer or the Engineer to the Contractor. 1.1.33 “Employer’s Requirements” means the document entitled employer’s requirements, as included in the Contract, and any additions and modifications to such document in accordance with the Contract. Such document describes the purpose(s) for which the Works are intended, and 3 GENERAL CONDITIONS GUIDANCE 1.1.25 FORMS are deemed to have been completed in accordance with the Contract; or, if Sub-Clause 10.2 [Taking Over Parts] or Sub-Clause 10.3. [Interference with Tests on Completion] applies, the date on which the Works or Section or Part are deemed to have been taken over by the Employer. 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 GUIDANCE GENERAL CONDITIONS specifies Key Personnel (if any), the scope, and/or design and/or other performance, technical and evaluation criteria, for the Works. 1.1.34 “Employer-Supplied Materials” means the materials (if any) to be supplied by the Employer to the Contractor under Sub-Clause 2.6 [Employer-Supplied Materials and Employer’s Equipment]. 1.1.35 “Engineer” means the person named in the Contract Data appointed by the Employer to act as the Engineer for the purposes of the Contract, or any replacement appointed under Sub-Clause 3.6 [Replacement of the Engineer]. 1.1.36 “Engineer’s Representative” means the natural person who may be appointed by the Engineer under Sub-Clause 3.3 [Engineer’s Representative]. 1.1.37 “Exceptional Event” means an event or circumstance as defined in Sub-Clause 18.1 [Exceptional Events]. 1.1.38 “Extension of Time” or “EOT” means an extension of the Time for Completion under Sub-Clause 8.5 [Extension of Time for Completion]. 1.1.39 “FIDIC” means the Fédération Internationale des Ingénieurs-Conseils, the International Federation of Consulting Engineers. 1.1.40 “Final Payment Certificate” or “FPC” means the payment certificate issued by the Engineer under Sub-Clause 14.13 [Issue of FPC]. 1.1.41 “Final Statement” means the Statement defined in Sub-Clause 14.11.2 [Agreed Final Statement]. 1.1.42 “Foreign Currency” means a currency in which part (or all) of the Contract Price is payable, but not the Local Currency. 1.1.43 “General Conditions” means this document entitled “Conditions of Contract for Plant and Design-Build for Electrical & Mechanical Plant, and for Building and Engineering Works, designed by the Contractor”, as published by FIDIC. 1.1.44 “Goods” means Contractor’s Equipment, Materials, Plant and Temporary Works, or any of them as appropriate. 1.1.45 “Interim Payment Certificate” or “IPC” means a Payment Certificate issued by the Engineer for an interim payment under Sub-Clause 14.6 [Issue of IPC]. 1.1.46 “Joint Venture” or “JV” means a joint venture, association, consortium or other unincorporated grouping of two or more persons, whether in the form of a partnership or otherwise. 1.1.47 “JV Undertaking” means the letter provided to the Employer as part of the Tender setting out the legal undertaking between the two or more persons constituting the Contractor as a JV. This letter shall be signed by all the persons who are members of the JV, shall be addressed to the Employer and shall include: (a) 4 © FIDIC 2017 each such member’s undertaking to be jointly and severally liable to the Employer for the performance of the Contractor’s obligations under the Contract; 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 General Conditions © FIDIC 2017 “Key Personnel” means the positions (if any) of the Contractor’s Personnel, other than the Contractor’s Representative, that are stated in the Specification. 1.1.49 “Laws” means all national (or state or provincial) legislation, statutes, acts, decrees, rules, ordinances, orders, treaties, international law and other laws, and regulations and by-laws of any legally constituted public authority. 1.1.50 “Letter of Acceptance” means the letter of formal acceptance, signed by the Employer, of the Letter of Tender, including any annexed memoranda comprising agreements between and signed by both Parties. If there is no such letter of acceptance, the expression “Letter of Acceptance” means the Contract Agreement and the date of issuing or receiving the Letter of Acceptance means the date of signing the Contract Agreement. 1.1.51 “Letter of Tender” means the letter of tender, signed by the Contractor, stating the Contractor’s offer to the Employer for the execution of the Works. 1.1.52 “Local Currency” means the currency of the Country. 1.1.53 “Materials” means things of all kinds (other than Plant), whether on the Site or otherwise allocated to the Contract and intended to form or forming part of the Permanent Works, including the supply-only materials (if any) to be supplied by the Contractor under the Contract. 1.1.54 “month” is a calendar month (according to the Gregorian calendar). 1.1.55 “No-objection” means that the Engineer has no objection to the Contractor’s Documents, or other documents submitted by the Contractor under these Conditions, and such Contractor’s Documents or other documents may be used for the Works. 1.1.56 “Notice” means a written communication identified as a Notice and issued in accordance with Sub-Clause 1.3 [Notices and Other Communications]. 1.1.57 “Notice of Dissatisfaction” or “NOD” means the Notice one Party may give to the other Party if it is dissatisfied, either with an Engineer’s determination under Sub-Clause 3.7 [Agreement or Determination] or with a DAAB’s decision under Sub-Clause 21.4 [Obtaining DAAB’s Decision]. 1.1.58 “Part” means a part of the Works or part of a Section (as the case may be) which is used by the Employer and deemed to have been taken over under Sub-Clause 10.2 [Taking Over Parts]. 1.1.59 “Particular Conditions” means the document entitled particular conditions of contract included in the Contract, which consists of Part A - Contract Data and Part B – Special Provisions. 1.1.60 “Party” means the Employer or the Contractor, as the context requires. “Parties” means both the Employer and the Contractor. 1.1.61 “Payment Certificate” means a payment certificate issued by the Engineer under Clause 14 [Contract Price and Payment]. 5 GENERAL CONDITIONS 1.1.48 GUIDANCE identification and authorisation of the leader of the JV; and identification of the separate scope or part of the Works (if any) to be carried out by each member of the JV. FORMS (b) (c) GENERAL CONDITIONS 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 6 © FIDIC 2017 1.1.62 “Performance Certificate” means the certificate issued by the Engineer (or deemed to be issued) under Sub-Clause 11.9 [Performance Certificate]. 1.1.63 “Performance Damages” means the damages to be paid by the Contractor to the Employer, for the failure to achieve the guaranteed performance of the Plant and/or the Works or any part of the Works (as the case may be), as set out in the Schedule of Performance Guarantees. 1.1.64 “Performance Security” means the security under Sub-Clause 4.2 [Performance Security]. 1.1.65 “Permanent Works” means the works of a permanent nature which are to be executed by the Contractor under the Contract. 1.1.66 “Plant” means the apparatus, equipment, machinery and vehicles (including any components) whether on the Site or otherwise allocated to the Contract and intended to form or forming part of the Permanent Works. 1.1.67 “Programme” means a detailed time programme prepared and submitted by the Contractor to which the Engineer has given (or is deemed to have given) a Notice of No-objection under Sub-Clause 8.3 [Programme]. 1.1.68 “Provisional Sum” means a sum (if any) which is specified in the Contract by the Employer as a provisional sum, for the execution of any part of the Works or for the supply of Plant, Materials or services under Sub-Clause 13.4 [Provisional Sums]. 1.1.69 “QM System” means the Contractor’s quality management system (as may be updated and/or revised from time to time) in accordance with Sub-Clause 4.9.1 [Quality Management System]. 1.1.70 “Retention Money” means the accumulated retention moneys which the Employer retains under Sub-Clause 14.3 [Application for Interim Payment] and pays under Sub-Clause 14.9 [Release of Retention Money]. 1.1.71 “Review” means examination and consideration by the Engineer of a Contractor’s submission in order to assess whether (and to what extent) it complies with the Contract and/or with the Contractor’s obligations under or in connection with the Contract. 1.1.72 “Schedules” means the document(s) entitled schedules prepared by the Employer and completed by the Contractor, as attached to the Letter of Tender and included in the Contract. Such document(s) may include data, lists and schedules of payments and/or rates and prices, and guarantees. 1.1.73 “Schedule of Payments” means the document(s) entitled schedule of payments (if any) in the Schedules showing the amounts and manner of payments to be made to the Contractor. 1.1.74 “Schedule of Performance Guarantees” means the document(s) entitled schedule of performance guarantees (if any) in the Schedules showing the guarantees required by the Employer for performance of the Works and/ or the Plant or any part of the Works (as the case may be), and stating the applicable Performance Damages payable in the event of failure to attain any of the guaranteed performance(s). 1.1.75 “Schedule of Rates and Prices” means the document(s) entitled schedule of rates and prices (if any) in the Schedules. 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 General Conditions © FIDIC 2017 “Site” means the places where the Permanent Works are to be executed and to which Plant and Materials are to be delivered, and any other places specified in the Contract as forming part of the Site. 1.1.78 “Special Provisions” means the document (if any), entitled special provisions which constitutes Part B of the Particular Conditions. 1.1.79 “Statement” means a statement submitted by the Contractor as part of an application for a Payment Certificate under Sub-Clause 14.3 [Application for Interim Payment], Sub-Clause 14.10 [Statement at Completion] or Sub-Clause 14.11 [Final Statement]. 1.1.80 “Subcontractor” means any person named in the Contract as a subcontractor, or any person appointed by the Contractor as a subcontractor or designer, for a part of the Works; and the legal successors in title to each of these persons. 1.1.81 “Taking-Over Certificate” means a certificate issued (or deemed to be issued) by the Engineer in accordance with Clause 10 [Employer’s Taking Over]. 1.1.82 “Temporary Works” means all temporary works of every kind (other than Contractor’s Equipment) required on Site for the execution of the Works. 1.1.83 “Tender” means the Letter of Tender, the Contractor’s Proposal, the JV Undertaking (if applicable), and all other documents which the Contractor submitted with the Letter of Tender, as included in the Contract. 1.1.84 “Tests after Completion” means the tests (if any) which are stated in the Specification and which are carried out in accordance with the Special Provisions after the Works or a Section (as the case may be) are taken over under Clause 10 [Employer’s Taking Over]. 1.1.85 “Tests on Completion” means the tests which are specified in the Contract or agreed by both Parties or instructed as a Variation, and which are carried out under Clause 9 [Tests on Completion] before the Works or a Section (as the case may be) are taken over under Clause 10 [Employer’s Taking Over]. 1.1.86 “Time for Completion” means the time for completing the Works or a Section (as the case may be) under Sub-Clause 8.2 [Time for Completion], as stated in the Contract Data as may be extended under Sub-Clause 8.5 [Extension of Time for Completion], calculated from the Commencement Date. 1.1.87 “Unforeseeable” means not reasonably foreseeable by an experienced contractor by the Base Date. 1.1.88 “Variation” means any change to the Works, which is instructed as a variation under Clause 13 [Variations and Adjustments]. 1.1.89 “Works” mean the Permanent Works and the Temporary Works, or either of them as appropriate. 1.1.90 “year” means 365 days. 7 GENERAL CONDITIONS 1.1.77 GUIDANCE “Section” means a part of the Works specified in the Contract Data as a Section (if any). FORMS 1.1.76 GENERAL CONDITIONS 1.2 Interpretation In the Contract, except where the context requires otherwise: (a) GUIDANCE (b) (c) (d) (e) FORMS (f) (g) 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 (h) (i) (j) words indicating one gender include all genders; and “he”, “his” and “himself” shall be read as “he/she”, “his/her” and “himself/herself” respectively; words indicating the singular also include the plural and words indicating the plural also include the singular; provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing; “written” or “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record; “may” means that the Party or person referred to has the choice of whether to act or not in the matter referred to; “shall” means that the Party or person referred to has an obligation under the Contract to perform the duty referred to; “consent” means that the Employer, the Contractor or the Engineer (as the case may be) agrees to, or gives permission for, the requested matter; “including”, “include” and “includes” shall be interpreted as not being limited to, or qualified by, the stated items that follow; words indicating persons or parties shall be interpreted as referring to natural and legal persons (including corporations and other legal entities); and “execute the Works” or “execution of the Works” means the design, construction and completion of the Works and the remedying of any defects. In any list in these Conditions, where the second-last item of the list is followed by “and” or “or” or “and/or” then all of the list items going before this item shall also be read as if they are followed by “and” or “or” or “and/or” (as the case may be). The marginal words and other headings shall not be taken into consideration in the interpretation of these Conditions. 1.3 Notices and Other Communications Wherever these Conditions provide for the giving of a Notice (including a Notice of Dissatisfaction) or the issuing, providing, sending, submitting or transmitting of another type of communication (including acceptance, acknowledgement, advising, agreement, approval, certificate, Claim, consent, decision, determination, discharge, instruction, No-objection, record(s) of meeting, permission, proposal, record, reply, report, request, Review, Statement, statement, submission or any other similar type of communication), the Notice or other communication shall be in writing and: (a) 8 © FIDIC 2017 shall be: (i) a paper-original signed by the Contractor’s Representative, the Engineer, or the authorised representative of the Employer (as the case may be); or (ii) an electronic original generated from any of the systems of electronic transmission stated in the Contract Data (if not stated, system(s) acceptable to the Engineer), where the electronic original is transmitted by the electronic address uniquely assigned to each of such authorised representatives, 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 (d) Where these Conditions state that a Notice or NOD or other communication is to be delivered, given, issued, provided, sent, submitted or transmitted, it shall have effect when it is received (or deemed to have been received) at the recipient’s current address under sub-paragraph (d) above. An electronically transmitted Notice or other communication is deemed to have been received on the day after transmission, provided no non-delivery notification was received by the sender. All Notices, and all other types of communication as referred to above, shall not be unreasonably withheld or delayed. When a Notice or NOD or certificate is issued by a Party or the Engineer, the paper and/or electronic original shall be sent to the intended recipient and a copy shall be sent to the Engineer or the other Party, as the case may be. All other communications shall be copied to the Parties and/or the Engineer as stated under these Conditions or elsewhere in the Contract. 1.4 Law and Language The Contract shall be governed by the law of the country (or other jurisdiction) stated in the Contract Data (if not stated, the law of the Country), excluding any conflict of law rules. The ruling language of the Contract shall be that stated in the Contract Data (if not stated, the language of these Conditions). If there are versions of any part of the Contract which are written in more than one language, the version which is in the ruling language shall prevail. The language for communications shall be that stated in the Contract Data. If no language is stated there, the language for communications shall be the ruling language of the Contract. 1.5 Priority of Documents The documents forming the Contract are to be taken as mutually explanatory of one another. If there is any conflict, ambiguity or discrepancy, the priority of the documents shall be in accordance with the following sequence: (a) (b) (c) (d) (e) (f) General Conditions © FIDIC 2017 the Contract Agreement; the Letter of Acceptance; the Letter of Tender, the Particular Conditions Part A – Contract Data; the Particular Conditions Part B – Special Provisions; these General Conditions; 9 GENERAL CONDITIONS GUIDANCE (c) or both, as stated in these Conditions; and if it is a Notice, it shall be identified as a Notice. If it is another form of communication, it shall be identified as such and include reference to the provision(s) of the Contract under which it is issued where appropriate; delivered by hand (against receipt), or sent by mail or courier (against receipt), or transmitted using any of the systems of electronic transmission under sub-paragraph (a)(ii) above; and delivered, sent or transmitted to the address for the recipient’s communications as stated in the Contract Data. However, if the recipient gives a Notice of another address, all Notices and other communications shall be delivered accordingly after the sender receives such Notice. FORMS (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 FORMS GUIDANCE GENERAL CONDITIONS (g) (h) (i) (j) (k) 1.6 Contract Agreement 1.7 Assignment If a Party finds an ambiguity or discrepancy in the documents, that Party shall promptly give a Notice to the Engineer, describing the ambiguity or discrepancy. After receiving such Notice, or if the Engineer finds an ambiguity or discrepancy in the documents, the Engineer shall issue the necessary clarification or instruction. The Parties shall sign a Contract Agreement within 35 days after the Contractor receives the Letter of Acceptance, unless they agree otherwise. The Contract Agreement shall be based on the form annexed to the Particular Conditions. The costs of stamp duties and similar charges (if any) imposed by law in connection with entry into the Contract Agreement shall be borne by the Employer. If the Contractor comprises a JV, the authorised representative of each member of the JV shall sign the Contract Agreement. Neither Party shall assign the whole or any part of the Contract or any benefit or interest in or under the Contract. However, either Party: (a) (b) 1.8 Care and Supply of Documents The Contractor shall keep at all times, on the Site, a copy of: (c) (d) (e) 10 © FIDIC 2017 may assign the whole or any part of the Contract with the prior agreement of the other Party, at the sole discretion of such other Party; and may, as security in favour of a bank or financial institution, assign the Party’s right to any moneys due, or to become due, under the Contract without the prior agreement of the other Party. Each of the Contractor’s Documents shall be in the custody and care of the Contractor, unless and until submitted to the Engineer. The Contractor shall supply to the Engineer one paper-original, one electronic copy (in the form as specified in the Employer’s Requirements or, if not stated, a form acceptable to the Engineer) and additional paper copies (if any) as stated in the Contract Data of each of the Contractor’s Documents. (a) (b) the Employer’s Requirements; the Schedules; the Contractor’s Proposal; the JV Undertaking (if the Contractor is a JV); and any other documents forming part of the Contract. the Contract; the records under Sub-Clause 6.10 [Contractor’s Records] and Sub-Clause 20.2.3 [Contemporary records]; the publications (if any) named in the Employer’s Requirements; the Contractor’s Documents; and Variations, Notices and other communications given under the Contract. The Employer’s Personnel shall have right of access to all these documents during all normal working hours, or as otherwise agreed with the Contractor. 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 finds an error, fault or defect in the Employer’s Requirements as a result of scrutinising them under Sub-Clause 5.1 [General Design Obligations], the Contractor shall give a Notice to the Engineer within the period stated in the Contract Data (if not stated, 42 days) calculated from the Commencement Date. If, after expiry of this period, the Contractor finds an error, fault or defect in the Employer’s Requirements, the Contractor shall also give a Notice to the Engineer describing the error, fault or defect. The Engineer shall then proceed as specified under Sub-Clause 3.7 [Agreement or Determination] to agree or determine: (a) (b) (c) whether or not there is an error, fault or defect in the Employer’s Requirements; whether or not (taking account of cost and time) an experienced contractor exercising due care would have discovered the error, fault or other defect: • when examining the Site and the Employer’s Requirements before submitting the Tender; or • if the Contractor’s Notice is given after the expiry of the period stated in the first paragraph of this Sub-Clause, when scrutinising the Employer’s Requirements under Sub-Clause 5.1 [General Design Obligations]; and what measures (if any) the Contractor is required to take to rectify the error, fault or defect (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the Contractor’s Notice under this Sub-Clause shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). If, under sub-paragraph (b) above, an experienced contractor would not have discovered the error, fault or other defect: (i) (ii) 1.10 Employer’s Use of Contractor’s Documents General Conditions © FIDIC 2017 Sub-Clause 13.3.1 [Variation by Instruction] shall apply to the measures that the Contractor is required to take (if any); and if the Contractor suffers delay and/or incurs Cost as a result of the error, fault or defect, 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. As between the Parties, the Contractor shall retain the copyright and other intellectual property rights in the Contractor’s Documents and other design documents made by (or on behalf of) the Contractor. The Contractor shall be deemed (by signing the Contract Agreement) to give to the Employer a non-terminable transferable non-exclusive royalty-free 11 GENERAL CONDITIONS GUIDANCE 1.9 Errors in the Employer’s Requirements If a Party (or the Engineer) becomes aware of an error or defect (whether of a technical nature or otherwise) in a document which was prepared by (or on behalf of) the Contractor for use in the execution of the Works, the Party (or the Engineer) shall promptly give a Notice of such error or defect to the other Party (or to the Parties). The Contractor shall then promptly rectify the error or defect at the Contractor’s risk and cost. FORMS GENERAL CONDITIONS licence to copy, use and communicate the Contractor’s Documents and such other design documents, including making and using modifications of them. This licence shall: (a) GUIDANCE (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 FORMS (c) (d) 1.11 Contractor’s Use of Employer’s Documents 1.12 Confidentiality 12 © FIDIC 2017 apply throughout the actual or intended operational life (whichever is longer) of the relevant parts of the Works; entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the Contractor’s Documents and such other design documents for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works; in the case of Contractor’s Documents and such other design documents which are in the form of electronic or digital files, computer programs and other software, permit their use on any computer on the Site and/or at the locations of the Employer and the Engineer and/ or at other places as envisaged by the Contract; and in the event of termination of the Contract: (i) under Sub-Clause 15.2 [Termination for Contractor’s Default], entitle the Employer to copy, use and communicate the Contractor’s Documents and the other design documents made by or for the Contractor; or (ii) under Sub-Clause 15.5 [Termination for Employer’s Convenience], Sub-Clause 16.2 [Termination by Contractor] or Sub-Clause 18.5 [Optional Termination], entitle the Employer to copy, use and communicate the Contractor’s Documents for which the Contractor has received payment for the purpose of completing the Works and/or arranging for any other entities to do so. The Contractor’s Documents and other design documents made by (or on behalf of) the Contractor shall not, without the Contractor’s prior consent, be used, copied or communicated to a third party by (or on behalf of) the Employer for purposes other than those permitted under this Sub-Clause. As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Employer’s Requirements and other documents made by (or on behalf of) the Employer. The Contractor may, at the Contractor’s cost, copy, use and communicate these documents for the purposes of the Contract. These documents (in whole or in part) shall not, without the Employer’s prior consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract. The Contractor shall disclose all such confidential and other information as the Engineer may reasonably require in order to verify the Contractor’s compliance with the Contract. The Contractor shall treat all documents forming the Contract as confidential, except to the extent necessary to carry out the Contractor’s obligations under the Contract. The Contractor shall not publish, permit to be published, or disclose any particulars of the Contract in any trade or technical paper or elsewhere without the Employer’s prior consent. Conditions of Contract for Plant and Design-Build A Party’s obligation of confidentiality under this Sub-Clause shall not apply where the information: (a) (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 1.13 Compliance with Laws was already in that Party’s possession without an obligation of confidentiality before receipt from the other Party; becomes generally available to the public through no breach of these Conditions; or is lawfully obtained by the Party from a third party which is not bound by an obligation of confidentiality. The Contractor and the Employer shall, in performing the Contract, comply with all applicable Laws. Unless otherwise stated in the Employer’s Requirements: (a) (b) (c) (d) the Employer shall have obtained (or shall obtain) the planning, zoning or building permit or similar permits, permissions, licences and/or approvals for the Permanent Works, and any other permits, permissions, licenses and/or approvals described in the Employer’s Requirements as having been (or being) obtained by the Employer. The Employer shall indemnify and hold the Contractor harmless against and from the consequences of any delay or failure to do so, unless the failure is caused by the Contractor’s failure to comply with sub-paragraph (c) below; the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all other permits, permissions, licences and/or approvals, as required by the Laws in relation to the execution of the Works. The Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so unless the failure is caused by the Employer’s failure to comply with Sub-Clause 2.2 [Assistance]; within the time(s) stated in the Employer’s Requirement’s the Contractor shall provide such assistance and all documentation, as described in the Employer’s Requirements or otherwise reasonably required by the Employer, so as to allow the Employer to obtain any permit, permission, licence or approval under sub-paragraph (a) above; and the Contractor shall comply with all permits, permissions, licences and/ or approvals obtained by the Employer under sub-paragraph (a) above. If, having complied with sub-paragraph (c) above, the Contractor suffers delay and/or incurs Cost as a result of the Employer’s delay or failure to obtain any permit, permission, licence or approval under sub-paragraph (a) above, 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. If the Emplo