DescriptionThis Second Edition of the Conditions of Contract for Plant and Design-Build has been published by the Fédération Internationale des. Plant Contract - Conditions of Contract for Plant and Design-Build ProjectsADDED APRIL FIDIC Guidance Memorandum to Users of the Conditions. FIDC Conditions of Contract: Plant and Design-Built (Yellow Book 1st. Edition, to focus on practical application of the FIDIC Plant and Design Build .
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FIDIC Conditions of Contract for. Plant And Design-Build Contract. First Edition, Page 3 of the Contractor submitted with the Letter of Tender. Fédération Internationale des Ingénieurs-Conseils (FIDIC) extends special . In the preparation of these Conditions of Contract for Plant and Design-Build. In the preparation of these Conditions of Contract for Plant and Design-Build, it was recognised that, while there are many sub-clauses which will be generally.
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. 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.
Clauses 1 to Index of Sub-Clauses Introductory Guidance Notes Notes on the Preparation of Tender Documents Notes on the Preparation of Special Provisions Forms of Securities Letter of Tender Letter of Acceptance Contract Agreement He is otherwise deemed to have obtained all necessary information about risks, contingencies and other circumstances which could influence or affect the works. By signing the contract, he accepts total responsibility for having foreseen all difficulties and costs of successfully completing the works.
By contrast, the Contractor under clause 4. The reports have to contain detailed information 6 about the state of the works up to the end of the preceding calendar month; they must continue to be made until the Contractor has completed all the work which is known to be outstanding at the completion date stated in the Taking Over Certificate see Section 4.
As we saw in connection with the Silver Book, by clause 5.
FIDIC Yellow Book Update - What’s New?
As to errors or incompleteness in those Requirements, the corresponding provisions of the Yellow Book clause 5. Clause 5. They are fairly straightforward, and cover such matters as compliance with labour laws, minimum wages, reasonable facilities, health and safety protection and proper superintendence of the works by the Contractor to ensure their safe and satisfactory execution. By clause 7. These requirements will have to be interpreted by the Engineer or Employer in relation to the actual goods that are supplied and work that is executed by the Contractor.
Under clause 7. Under the clause, the Contractor must give notice to the Engineer or Employer whenever any work is ready and before it is covered up. The Engineer or Employer is then either to carry out the examination or testing without unreasonable delay, or promptly to give notice to the Contractor that he does not require to do so. If the Contractor fails to give the notice, he must, if and when required by the Engineer or Employer, uncover the work and then reinstate at his own cost.
Clause 7. The Contractor is to provide everything necessary to carry out the tests specified, unless otherwise stated in the contract.
He is to agree with the Engineer or Employer the time and place for the specified testing. The Engineer or Employer may vary the location or details of specified tests, or instruct the Contractor to carry out additional tests.
If he does not attend at the time and place agreed, the Contractor may proceed with the tests unless otherwise instructed by the Engineer or Employer, and the tests shall be deemed to have been made in his presence and to be accurate. If the Engineer or Employer requires plant, materials or workmanship to be retested, the tests must be repeated under the same terms and conditions. If the Employer suffers additional costs due to the retesting, the Contractor shall pay these costs to the Employer.
Also under clause 7. The Contractor must submit to the Engineer or Employer his programme within 28 days after the commencement date if Silver Book or 28 days after notice of the commencement date if Yellow.
As we saw in Section 1.
The programme must show: the order of execution of the works, including the anticipated timing of each major stage of the works; in the Yellow Book more details of this are required clause 8. The programme should be accompanied by a supporting report or method statement setting out how the Contractor intends to execute the works and the resources he intends to use. If the Engineer or Employer thinks the programme does not comply with the contract then he must give notice to the Contractor within 21 days of receiving it stating how the programme does not comply; otherwise, the Contractor is to proceed in accordance with the programme.
As we mentioned in Section 1. There is no similar obligation on the Engineer or Employer. Linked to the requirement to maintain valid programmes and to advise the Engineer or Employer of potential delaying events is the requirement to submit monthly progress reports Section 4.
As we noted in Section 1.
If any of the circumstances listed under clause 8. In the Silver Book, as we saw, only the first, second and last of these grounds apply variations, express mention in another clause of the contract or delays attributable to the Employer.
4.1.3 The priority of documents: Clause 1.5
Moreover, in the Silver Book general conditions, no additional time is permitted for a unforeseeable physical conditions whereas it is under clause 4. During such suspension, the Contractor must protect the affected part or parts against any deterioration, loss or damage. The Engineer or Employer can notify the cause of the suspension but does not have to do so. If the cause is notified and is the responsibility of the Contractor, he will not be entitled to any extension of time or additional payment due to the suspension.
The Engineer or Employer then proceeds to make a determination under clause 3. By clause 8. If the suspension lasts for more than 84 days, the Contractor can request permission to recommence. If permission is not given within 28 days, the Contractor can treat the suspension as an omission of the suspended works or give notice to terminate the Contract if the whole of the works is affected by the suspension. When the works have reached a stage when they are substantially complete and the Contractor believes they are ready to be tested, he notifies the Employer or the Engineer.
The tests on completion should be carried out within 14 days after the above date, on the day or days chosen by the Engineer or Employer. In considering the results, account must be taken of any adverse effect if the Employer was using the works. If the delay continues for more than 14 days, the Employer will be deemed to have Taken Over the works see Section 4.
If the Contractor fails to do so, the Employer may proceed with the tests at the risk and cost of the Contractor. In such a case, the tests will be deemed to have been carried out in the presence of the Contractor and the results will be deemed to be accurate. By clause 9. In this latter case, the Employer can terminate the contract as a whole, or in respect of any major part which cannot be put to the intended use, and recover the amounts paid to the Contractor for the rejected part, together with financing costs and the cost of dismantling.
The issuing of the TOC is an important milestone in the project. It signifies the date at which the works are complete, subject to rectification of defects and completing outstanding items of work, and from which the Employer can go into commercial use and operation of the plant or facility.
Contractually, the date indicated in the TOC is of great importance as it is the date from which: the Employer takes responsibility for care and maintenance of the works; one half of the retention money see Section 4. If the works have been divided into sections, by appropriate drafting of the contract documents, this presents no difficulty so long as the part the Employer wishes to use falls within a section for which a TOC has been issued.
However, the two Books differ over whether an Employer who has not got the benefit of sectional completion but who wishes to use and operate part of the works before the TOC is issued may do so. In the Silver Book clause However, the Employer is not to use any part except as a temporary measure which is either agreed by the parties or specified in the contract unless the Engineer has issued a TOC for that part.
In the event that the Employer does nevertheless use any part of the works before a TOC has been issued for that part, then: the relevant part is deemed to have been taken over from the date on which it is used; the Employer takes over responsibility for the care of that part; and if requested by the Contractor, the Employer issues a TOC for that part.
Clause The notification period is 12 months, unless stated otherwise, from the date of completion stated in the TOC for the works or section. If the notified defect or incomplete work is attributable to any other cause then the Contractor is entitled to have the work involved in rectifying or completing the relevant item treated as a variation under clause 13 see section 4.
In this latter event, the Employer may recover without prejudice to any rights he might have all sums paid to the Contractor in respect of the works or the affected part plus financing cost and dismantling and related costs. However, unless this is varied by the Particular Conditions, the DNP cannot be extended by more than two years. The cost of performing repeated tests is to be borne by the party liable for the cost of rectifying the defects. In both Books the Performance Certificate alone signifies acceptance of the works.
The contracts encourage timely issue of the Certificate. If the certificate is not issued accordingly then it will be deemed to have been issued on the date 28 days after it should have been issued. They tend to be provided for in projects where the complexity of the plant or facilty or the technology used make it important to provide for further testing after Taking Over.
These tests often involve an extended trial operation. Thereafter, the Engineer shall give a Notice to the Contractor stating the amount paid directly to the nominated Subcontractor by the Employer and, in the next IPC after this Notice, shall include this amount as a deduction under sub-paragraph b of Sub-Clause The Contractor shall: If the Contractor finds an error in any items of reference, the Contractor shall give a Notice to the Engineer describing it:.
After receiving a Notice from the Contractor under Sub-Clause 4. If, under sub-paragraph b above, an experienced contractor would not have discovered the error: This manual shall be in addition to any other similar document required under applicable health and safety regulations and Laws.
Each revision of the manual shall be submitted promptly to the Engineer. In addition to the reporting requirement of sub-paragraph g of Sub-Clause 4.
The Contractor shall prepare and implement a QM System to demonstrate compliance with the requirements of the Contract. Thereafter, whenever the QM System is updated or revised, a copy shall promptly be submitted to the Engineer. If the Engineer does not give such a Notice within 21 days of the date of submission of the QM System, the Engineer shall be deemed to have given a Notice of No-objection.
The Engineer may, at any time, give a Notice to the Contractor stating the. After receiving this Notice, the Contractor shall immediately remedy such failure. The Contractor shall carry out internal audits of the QM System regularly, and at least once every 6 months.
The Contractor shall submit to the Engineer a report listing the results of each internal audit within 7 days of completion. The Contractor shall prepare and implement a Compliance Verification System to demonstrate that the design, Materials, Employer-Supplied Materials if any , Plant, work and workmanship comply in all respects with the Contract. In the event that any inspection or test identifies a non-compliance with the Contract, Sub-Clause 7. To the extent which was practicable taking account of cost and time , the Contractor shall be deemed to have obtained all necessary information as to risks, contingencies and other circumstances which may influence or affect the Tender or Works.
To the same extent, the Contractor shall be deemed to have inspected and examined the Site, access to the Site, its surroundings, the above data and other available information, and to have been satisfied. Works, including: Accepted Contract Amount The Contractor shall be deemed to: After discovery of such physical conditions, the Contractor shall give a Notice to the Engineer, which shall:. The Contractor shall continue execution of the Works, using such proper and reasonable measures as are appropriate for the physical conditions and to enable the Engineer to inspect and investigate them.
The Contractor shall comply with any instructions which the Engineer may give for dealing with the physical conditions and, if such an instruction constitutes a Variation, Sub-Clause The agreement or determination, under Sub-Clause The Engineer may also review whether other physical conditions in similar parts of the Works if any were more favourable than could reasonably have been foreseen by the Base Date.
If and to the extent that these more favourable conditions were encountered, the Engineer may take account of the reductions in Cost which were due to these conditions in calculating the additional Cost to be agreed or determined under this Sub-Clause 4. However, the net effect of all additions and reductions under this Sub-Clause 4. The Engineer may take account of any evidence of the physical conditions foreseen by the Contractor by the Base Date, which the Contractor may include in the supporting particulars for the Claim under Sub-Clause These measures shall include the proper use of appropriate vehicles conforming to legal load and width limits if any and any other restrictions and routes.
Except as otherwise stated in these Conditions: The Contractor shall. However, consent shall not be required for vehicles. In addition to any Notice given under Sub-Clause 4.
This Notice shall be given within 7 days of the delivery date, shall identify. Each progress report shall be submitted in one paper-original, one electronic copy and additional paper copies if any as stated in the Contract Data. The first report shall cover the period up to the end of the first month following the Commencement Date.
Reports shall be submitted monthly thereafter, each within 7 days after the last day of the month to which it relates. However, nothing stated in any progress report shall constitute a Notice under a Sub-Clause of these Conditions.
The Contractor shall promptly clear away and remove from the. The Contractor shall leave that part of the Site and the Works in a clean and safe condition. However, the Contractor may retain at locations on the Site agreed with the Engineer, during the DNP, such Goods as are required for the Contractor to fulfil obligations under the Contract. FORMS Archaeological and Geological Findings All fossils, coins, articles of value or antiquity, and structures and other remains or items of geological or archaeological interest found on the Site shall be placed under the care and authority of the Employer.
This Notice shall describe the finding and the Engineer shall issue instructions for dealing with it. Design shall be prepared by designers who:. Sub-Clause 1. Documents shall be written in the language for communications defined in Sub-Clause 1.
In this Sub-Clause 5. If the Engineer gives a Notice under sub-paragraph b above, the Contractor shall:. Sub-Clause 5. If the Employer incurs additional costs as a result of such resubmission and subsequent Review, the Employer shall be entitled subject to Sub-Clause References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date, unless stated otherwise.
If changed or new applicable standards come into force in the Country after the Base Date, the Contractor shall promptly give a Notice to the Engineer and if appropriate or requested by the Engineer submit proposals for compliance.
To the extent that:. These records shall be kept on the Site and shall be used exclusively for the purposes of this Sub-Clause. The Contractor shall submit to the Engineer under Sub-Clause 5.
The number of copies of as-built records to be submitted by the Contractor under this Sub-Clause shall be as required under Sub-Clause 1.
Supply of Documents]. Documents under sub-paragraph b of Sub-Clause 5. Staff and Labour 6. If no established rates or conditions are applicable, the Contractor shall pay rates of wages and observe conditions which are not lower than the general level of wages and conditions observed locally by employers whose trade or industry is similar to that of the Contractor.
In collaboration with local health authorities, the Contractor shall ensure that:. The Contractor shall appoint a health and safety officer at the Site, responsible for maintaining health, safety and protection against accidents. This officer shall:. Throughout the execution of the Works, the Contractor shall provide whatever is required by this person to exercise this responsibility and authority.
Superintendence shall be given by a sufficient number of persons: If appropriate, the Contractor shall then promptly appoint or cause to be appointed a suitable replacement. In the case of the replacement of Key Personnel if any , Sub-Clause 6.
The Contractor shall appoint the natural persons named in the Tender to the positions of Key Personnel. If not so named, or if an appointed person fails to act in the relevant position of Key Personnel, the Contractor shall submit to the Engineer for consent the name and particulars of another person the Contractor proposes to appoint to such position. If consent is withheld or. Each sample shall be labelled as to origin and intended use in the Works.
The Contractor shall give a Notice to the Engineer whenever any Materials, Plant or work is ready for inspection, and before it is to be covered up, put out of sight, or packaged for storage or transport.
The Contractor shall provide all apparatus, assistance, documents and other information, temporary supplies of electricity and water, equipment, fuel, consumables, instruments, labour, materials, and suitably qualified, experienced and competent staff, as are necessary to carry out the specified tests efficiently and properly. The Contractor shall give a Notice to the Engineer, stating the time and place for the specified testing of any Plant, Materials and other parts of the Works.
The Engineer may, under Clause 13 [Variations and Adjustments], vary the location or timing or details of specified tests, or instruct the Contractor to carry out additional tests. If these varied or additional tests show that the tested Plant, Materials or workmanship is not in accordance with the Contract, the Cost and any delay incurred in carrying out this Variation shall be borne by the Contractor.
If the Engineer does not attend at. If the Contractor causes any delay to specified tests including varied or additional tests and such delay causes the Employer to incur costs, the Employer shall be entitled subject to Sub-Clause Sub-Clause 7.
Plant, Materials and other parts of the Works fails to pass a specified test. The Contractor shall then promptly prepare and submit a proposal for necessary remedial work.
Plant and Design-Build Contract 2nd Ed (2017 Yellow Book)
The Engineer may Review this proposal, and may give a Notice to the Contractor stating the extent to which the proposed work, if carried out, would not result in the Plant, Materials, design or workmanship complying with the Contract. After receiving such a Notice the Contractor shall promptly submit a revised proposal to the Engineer.
If the Contractor fails to promptly submit a proposal or revised proposal for remedial work, or fails to carry out the proposed remedial work to which the Engineer has given or is deemed to have given a Notice of No-objection, the Engineer may:. After remedying defects in any Plant, Materials, design or workmanship, if the Engineer requires any such items to be retested, the tests shall be repeated in accordance with Sub-Clause 7.
If the rejection and retesting cause the Employer to incur additional costs, the Employer shall be entitled subject. The Contractor shall comply with the instruction as soon as practicable and not later than the time if any specified in the instruction, or immediately if urgency is specified under sub-paragraph c above.
The Contractor shall bear the cost of all remedial work required under this Sub-Clause, except to the extent that any work under sub-paragraph c above is attributable to:. Except to the extent that the Contractor would have been entitled to payment for work under this Sub-Clause, the Employer shall be entitled subject to Sub-Clause This entitlement shall be without prejudice to any other rights the Employer may have, under the Contract or otherwise.
Unless otherwise stated in the Particular Conditions, the Commencement Date shall be within 42 days after the Contractor receives the Letter of Acceptance.
The Contractor shall commence the execution of the Works on, or as soon as is reasonably practicable after, the Commencement Date and shall then proceed with the Works with due expedition and without delay. The initial programme and each revised programme shall be submitted to the Engineer in one paper copy, one electronic copy and additional paper copies if any as stated in the Contract Data, and shall include:.
If the Engineer gives no such Notice:. Nothing in any programme, the Programme or any supporting report shall be taken as, or relieve the Contractor from any obligation to give, a Notice under the Contract.
If, at any time, the Engineer gives a Notice to the Contractor that the Programme fails to the extent stated to comply with the Contract or ceases. Rate of Progress If, at any time: If these revised methods cause the Employer to incur additional costs, the Employer shall be entitled subject to Sub-Clause Delay Damages shall be the amount stated in the Contract Data, which shall be paid for every day which shall elapse between the relevant Time for Completion and the relevant Date of Completion of the Works or Section.
The total amount due under this Sub-Clause shall not exceed the maximum amount of Delay Damages if any stated in the Contract Data.These records shall be kept on the Site and shall be used exclusively for the purposes of this Sub-Clause. The Conditions of Contract comprise th e " Gen eral Conditions " , which form par t of the. If the Contractor fails to comply with this or a n other Sub. Contractor's Equ i p ment requ ired on Site for the execu t ion and completion of the Per ma n ent Works an d the remedying of any defects.
FIDIC very much appreciates the time and effort devoted by all the above persons.
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