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Conditions of Subcontract For Plant Design-Build 2019

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4K views136 pages

Conditions of Subcontract For Plant Design-Build 2019

Uploaded by

Toni Biljak
Copyright
© © All Rights Reserved
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FIDIc " Inte Conditions of Subcontract for Plant and Design-Build GENERAL CONDITIONS OF SUBCONTRACT GUIDANCE FOR THE PREPARATION OF PARTICULAR CONDITIONS OF SUBCONTRACT FORMS OF LETTER OF SUBCONTRACTOR'S OFFER, CONTRACTOR'S LETTER OF ACCEPTANCE AND SUBCONTRACT AGREEMENT 7 ISBN 978-2-88432-088-7 FIRST EDITION 2019 © Copyright FIDIC 2019 All rights reserved. No pat ofthis publication rmay be reproduced or transmitted in any form cor by any means without permission of the pubisher FIDIC tne ternational Federation of Consuting Engineers isthe global representative ‘body for national associations of consulting engineers and represents over one milion engheering professionals anc 40,000 fms in more than 100 countries worlwide. Founded in 1913, FIDIC is charged with promoting and implementing the consulting engineering industry's strategic goals on behalf ofits member associations and to disseminate information and resources of interest to its members. Today, FIDIC membership covers over 100 countries of the work, “To further ts goals, FIDIC publishes international standard forns of contracts for works ‘and for cients, consuitants, sub-consultants, joint ventures and representatives, together ‘with related materials such as standard pre-qualification forms FIDIC arranges seminars, cconferences and other events in the furtherance of its goals: maintenance of high ethical and professional standards; exchange of views and information; discussion of problems ‘of mutual concern among Member Associations and representatives of the international financial institutions; and development of the consuiting engineering industry in developing countries. FIDIC also publishes business practice documents such as policy statements, position papers, guidelines, training manuals and traning resource Kits in the areas of management systems (quality management, risk management, business integrity management, ‘eevironment management, sustainabilty) and business processes (consultant selection, ‘quality based selection, tendering, procurement, insurance, lability, technology transfer, ‘capacity building). “The key priotiies agreed by FIDIC are as follows: +. Leading the consultancy and engineering industry visibly and effectively. 2, Strengthen FIDIC's postion in the overall construction industry 3, Te connect and support members more effectivaly. 4, Adapt and improve the governance ofthe federation, 5, Innovate the way the FIDIC secretariat operates to be more effective and efficient. FIDIC also organises the annual FIDIC International Infrastructure Conference and an ‘extensive programme of seminars, capacity building workshops and training courses, Published by International Federation of Consulting Engineers (FIDIO) ‘World Trade Center I PO. Box 311 1216 Geneva 15 ‘Switzerland Phone +41 22 799 49.00 Fax +41 22 799 49 01 E-mail fidio@tidic.org WWW wwnfidic.org FIDIC® Conditions of Subcontract for Plant and Design Build First Edition 2019 ISBN 976-2-88432-088-7 FEDERATION INTERNATIONALE DES INGENIEURS-CONSELLS, INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS, INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE: FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES GENERAL CONDITIONS OF SUBCONTRACT GUIDANCE FOR THE PREPARATION OF PARTICULAR CONDITIONS OF SUBCONTRACT FORMS OF LETTER OF SUBCONTRACTOR'S OFFER, CONTRACTOR'S LETTER OF ACCEPTANCE AND SUBCONTRACT AGREEMENT Fipic COPYRIGHT “Copmight © 2019 FIDIG, World Trade Canter 2,28 route de Prés- Boi, Geneva Arport, CH-1215 Geneva, Switzerland. All rights reserved. FIDIC is the only Copyright owner of FIDIC publications, which are protected by the Bome Convention for the Protection of Literary and Artistic Works, international corwentions such && ‘TRIPS and the WIPO copyright treaty and national intelectual property laws. No part of a FIDIC publbation can be reproduced, rarstated, adapted, sloredin a retrieval system or communicated, ih any form o by any means, mecharical, electoni. magnetic, photocopying, recording or ‘cihernlse, without prior permission in writing from FIDIC, The version in English is considered by FIDIG as the official and authentic text forthe purposes of translation. For the drafting, production tr pubseetion ofa translation other than text for stietly personal and private use, a Heence must be obtained from FIDIC. ‘TERMS AND CONDITIONS “The widespread dsemination, acceptance and use of FIDIC pubicatons and tek translations are important means for accomplishing FIDIGs mission and re therefore acvely promoted by FIDL. ‘Tho sale of FIDIC publications and thei translations Is an important source of revenue for FIDIC and its Member Associations. It creates resources for providing a wide range of services meeting thebushess needs of member fms. Al steps, starting withthe ntl drafting of pusications, often require considerable effort and expense, FDIC regulary updates and reissues pubicaions 60 thal users can pro trom the state-of the-art 'y suppving publications, FIDIC does not grant any intelectual property rights. The purchase or ‘suppl of a FIDIC publication, including forms for complation by @ purchaser or authorised Use, does nat confer author’ rights uncer any okcumstances. Users rely on the contents of FIDIC pubicatons, especially FIDIC contracts and agreements, for important business transactions. The use of authentic publications is therefore essential for safeguarding thelr intorests. FIDIC discourages madication of its publications, and only in exceptional crcumstances wil It authorise modfication, reproduction or incorporation olsewher. Permission to quote from, incorporate, reproduce or copy all or part ofa FIDIC publication shoud be addressed to the FIDIC Secretariat, which wil decide upon appropriate terms, ‘A cence to prepare a modified or adapted publication will be agreed to under certain concitons. ‘Spociicaly the modified oF adapted pubfcation must be for internal purposes, and not be published or distributed commerctally. In the case of FIDIC contracts and agreements, FIDIC aims to provide balanced and equitable ‘coneitions of contract by ensuring the intagty of its pubkcations. A purchaser or authorised user (of aFIDIC contract or agreement is thus granted the right to: = make a single copy of the purchased document, for personal and orivate use; | incorporate in other documents (or electronic files) ether the original printed document (or lecttonic fi} or pages printed from an electronic fle supplied by FIDIC for this purpose: ‘draw up and distriouteinteraly andor among partners clearly identified Particular Conditions or their equivalent using text provided in the FIDAC publication specticaly for this purpose; — reproduce, complete and distrbute internally and/or among partners any forms in both printed ‘and electronic foemats, provided for completion by the purchaser or user DISCLAIMER, While FIDIC aims to ensure that its publications represent the best in business practice, the Federation accepts or assumes no labilty or responsibilty for any events or the consequences thereof that derive from the use of #8 publecations. FIDIC publicatons are provided “ee 1s", cnthout warrenty of any kind, ether express or implied, including, without imitation, waranties of ‘merchantabilty, fitness for & particular purpose and nonvinfingemert. FIDIC publications are not exhaustive and are ony intended to provide general guidance. They should not be relied upon in 3 epecfe suction or issue. Expert lage advice should be obtained whenever appropriate, and partcultly before entering into or terminating a contrac. CONTENTS ‘Acknowledgements Foreword Flow Charts General Conditions of Subcontract Contents Clauses 1 - 20 Index and Index of Sub-Clauses Guidance for the Preparation of Particular Conditions of Suscontract Contents Introduction Notes on the Preparation of Subcontract Tender Documents. . Causes 1-20... we er a Annexes Annex A: Particulars of the Main Contract. . Annex B: Scope of Subcontract Works and Schedule of ‘Subcontract Documents ‘Annex G: Incentives) for Early Completion, Taking-Over by the Contractor ‘Annex D: Equipment, Temporary Works, Facilties, and Free-Issue Materials to be provided byte the Contractor ‘Annex E: Insurances... soe ve ‘Annex F: Subcontract Programme . ‘Annex G: Other tems ‘ ‘Sample Forms Lotter of Subcontractor’s Offer... Appendix to the Subcontractor's Offer. Contractor's Letter of Acceptance Subcontract Agreement... wan 46 48 -.49 50 5 62 5A, RDC 2018 ACKNOWLEDGEMENTS In preparing the FIDIC Conaitions of Subcontract for Plant and Design Build, special thanks are extended to members of the Subcontract Task Group of the FIDIC Contracts Committee. The task group comprised Richard Appuhn, Civil Engineer, Italy; Siobhan Fahey, Consulting Engineer, Ireland (Task Group Leader); Sebastian HOk, Kanzlei Dr HOk Stiegimeier & Kollegen, Germany; Simon Worley, Consulting Engineer, UK; and Zoltan Zahonyi, Z&Partners Consulting Engineers, Hungary. ‘The following Special Advisers to the Contracts Committee provided invaluable and continued support in the preparation of this document: Nael G Bunni, Chartered Engineer Ireland; and Christopher Seppat, White & Case, France. The preparation was carried out under the general direction of the FIDIC Contracts Committ Zoltan Zahonyi, Z&Partners Consulting Engineers, Hungary (Charman); Philip Jenkinson, Atkins, UK (past Chairman}; Des Barry, Consulting Engineer, Ireland; Adam Bialachowski, Consulting Engineer, Poland; Dery! L. Earsom, Consulting Engineer, USA; Siobhan Fahey, Consulting Engineer, Ireland; Vincent Leloup, Exequatur, France; Kaj Moller, SWECO, Sweden; Matthias Neuenschwander, Consutting Engineer, Switzerland; Mike Roberts, Mott MacDonald, UK {past member); and Christoph Theune, GKW Consult GmbH, Germany (past member) together with liaisons to the FIDIC Contracts Committee from the FIDIC Executive Committee/Board: Kaj Moller, SWECO, Sweden (past EC liaison); William Howard, CDM Smith, USA (past Board primary liaison); Aishe Nadar, Runeland Law, Sweden (Board! primary liaison); Liu Luobing, Shanghai SICC Planning & Architectural Design, Peoples’ Republic of China (Board secondary liaison); José Amorim Faria, SOPSEC, Portugal (past EFCA liaison); and Pawel Zejer, AECOM, Poland (EFCA liaison), The FIDIC Gontracts Committee also wishes to thank Nelson Ogunshakin, FIDIC CEO; Enrico Vink, FIDIC past Managing Director; and Christophe Sisto, FIDIC Design & Publications Manager for their support in producing this document. - FDIC 2018 FOREWORD This document, entitled the FIDIC Conaltions of Subcontract for Plant and Design Build, has been prepared by the Fédération Internationale des Ingénieurs-Conseiis (FIDIC) for use in conjunction with the FIDIC Conditions of Contract for Plant and Design Build, First Ecition 1999. The clauses of general application contained in this FIDIC Conditions of Subcontract for Plant and Design Build (referred to as the General Conditions of Subcontract) are based on the FIDIC Conditions of Subcontract for Construction, First Edition 2011 — with changes where necessary to reflect the differences between the FIDIC Conditions of Contract for Plant and Design Build, First Edition 1999 and the FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, First Ecition 1999, This document begins with a series of flow charts which show, in visual form, the critical sequences of activities which are specific and unique to the subcontract form of contract. These have een included by the drafting task group to factitete an Understanding of the procedures and terminology found in these FIDIC Conditions of ‘Subcontract for Plant and Design Build. These flow charts cover: + Typical sequence of Principal Events during Subcontracts for Plant and Design Build ‘© Typical sequence of Subcontract Payment Events envisaged in Clause 14 Typical sequence of Subcontract Dispute Events envisaged in Clause 20, ‘These charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Subcontract. In the preparation of these FIDIC Conditions of Subcontract for Plant and Design Build it was recognised that while there are numerous clauses which wil be generally applicable there are some clauses which must necessarily be amended to take account of the circumstances and locaity of the Subcontract Works. ‘The clauses of general application have been grouped together in the first part of this document and are referred to as General Conditions of Subcontract. They have been published in a form which wil facilitate their inclusion as printed in the subcontract documents normally prepared, ‘The Particular Conditions of Subcontract are linked with the General Conditions of Subcontract by the coresponding numbering of the ciauses, so thal the General Conditions and the Particular Conditions together comprise the Conditions of ‘Subcontract governing the rights and obligations of the parties. The Particular Conditions of Subcontract must be specially drafted to suit each individual subcontract. The guidance in the second part of this document — Guidance © FOC 2018 {for tne Preparation of Perticular Conditions of Subcontract is intended to aid in this task by giving options for various clauses, where appropriate. Particular Conditions of Subcontract may be necessary or appropriate for one oF more reasons, of which the follawing are examples: fe) Where the wording in General Conditions specifically requires that further information is to be included in (annexes to be attached to} the Particular Conditions of Subcontract, and the Conditions of Subcontract would not be complete without that information - namely in Sub-Causes 1.1.8, 1.1.9, 1.1.11, 4.4.27, 18, 2.4,8.3, 18.1, and 18.2; {b) Where the wording in the General Conditions indicates that supplementary information may be included in (annexes to be attached to) the Particular Conditions of Subcontract, but the Conditions of Subcontract would stil be complete without any such information, namely in Sub-Clauses 1.11, 2.1, 2.2, 4.4, 74, 7.2, 94, 10.2, 10.3, 14,7, and 18.2; {e)_ Where the type, cicumstances or locality of the Subcontract Works necessitate ‘additional clauses or sub-clauses {for example, when the Subcontractor has ‘been nominated by the Employer) (0) Where the governing law or exceptional rcumstances necossitate an alteration in the General Conditions. Such alterations should be effected by stating in the Particular Conditions that a particular clause, or part of a clause, in the General Conditions is deleted and giving the substitute clause, or part, as applicable. In other cases, however, only guidance for dating purposes is given. Before incorporating any example wording It must be checked to ensure that itis wholy suitable for the particular circumstances and, ifnot, it must be varied. Where exemple ‘wording is varied and in all cases where additional materials included in the Particular Conditions of Subcontract, care must be taken to ensure that no ambiguity is created syith the General Conditions of Subcontract or between the clauses in the Particular Conditions of Subcontract. “The Guidance for the Preparation of Particular Conditions of Subcontract include sample forms, with some guidance, of annexes that are to be attached to the Particular Conditions of Subcontract: - Annex A: Particulars of the Main Contract «Annex B: Scope of Subcontract Works and Schedule of Subcontract Documents Annex C: Incentive(s) for Early Completion and Taking-Over by the Contractor «Annex 0: Equipment, Temporary Works, Faciities, and Free-Issue Materials to be provided by the Contractor = Annex E: Insurances = Annex F: Subcontract Programme = Annex Gi Other items ‘Sample forms of offer, aoceptance and agreement at the end of the document are: = Lotter of Subcontractor’s Offer = Appendix to the Suocontractor’s Offer = Contractor's Letter of Acceptance = Subcontract Agreernent eFOIC2019 FLOW CHARTS * Typical sequence of Principal Events during Subcontracts for Piant and Design Build ‘+ Typical sequence of Subcontract Payment Events envisaged in Clause 14 ‘+ Sequence of Subcontractors Claims and Disputes envisaged in Clause 20 ‘© Sequence of Subcontractor Claims and Disputes envisaged in First Alternative Clause 20 given in the Guidance for the Preparation of Particular Conditions of ‘Subcontract ‘= Sequence of Subcontractor Claims envisaged in Second Alternative Clause 20 given in the Guidance for the Preparation of Particular Conditions of Subcontract = Sequence of Subcontractor Disputes envisaged in Second Alternative Clause 20 ven in the Guidance for the Preparation of Particular Conditions of Subcontract, Legend: The abbreviation SC is a reference to the Subcontract and MC is a reference to the Main Contract. © RDC 2018 Jeoue ofthe Submission of Issue of the $0.8.t Subcontract 80102 80113 Subcontract the Subcon- Contractor's Commenoernent Iesue of the Issue of the Tender tractors Offer_Letter of Date ‘Taking-Over Performance Documents Acceptance Gertfcate ——_Certiate song ‘Subcontract Detects Commencement] SC 8.2 Subcontract Tene for Delay attributable to } Notification Notice >14¢ the Subcontract’? | Period ‘SC 4.2 delivering of Subcontract ‘SC 9.4 Tests on —» | Remedying —> Perforriance Security (f any) Completion? (of Defects SC 4.2 Retum of the Performance Security if any) Typical sequence of Principal Events during Subcontracts for Plant and Design-Build 4. ‘The Subcontract Time for Completion is to be stated {in the Appendix to the Subcontractors Offer) as @ number of days, to which is added any extensions of time under Sub-Clause 8.4 2. nvorder to Indicate the sequence of events, the above diagram is based upon the example of the Subcontractor failing to comply with Sub-Clause 8.2. 2, Subcontract Tests after Completion ff any), and/or Tests after Completion under the Main Contract which involve or affect the Subcontract Works (if any}, to be carried out. sca MOMS Mc 146 Mo 147 Suboontractor Contractor Engineer iesuas Employer makes payment to the Contractor submits interim submits Interim Payment statement tothe -Staternent tothe Certificate to the sc147 Contractor Engineer Contractor Contractor makes payment to the Subcontractor Fina [* <280 | Payment — a. — 80 1.2 Expy of Subcontract $0 149 Subcontractor subrits SO 14.9 Contractor makes Defect Notiicaton Period ‘dat fnal statment tothe payment fo the Subcantactor Contractor ‘Typical sequence of Payment Events envisaged in Clause 14 © FDIC 2019 The Suboontractor bacare aware $C 20.26), 8020.4 ‘or should have become aware ofthe Subcontractor submits A Party gives Notice ‘event or crcumstance ging ise to the fully detaied clam (of Dispute ‘Suboontrector’s cairn <85¢0 oF petiod 80. 20.2(4) proposed by Contractor consults ‘Subcontractor and with the Subcontractor ‘approved by Contractor in an endeavour to reach an agreement <49¢ (F period agreed by the Parts ‘SC 20.2{a) Suboontractor gives SC 20.2(d} Contractor makes SC 20.4 Contractor may Notice of claim ithe considers afar decision. Notes notify thatthe Subcontract himeal to be entitled to any ‘Subcontractor with reasons. dispute Contractor notifies lextonsion of te or to any Makes additional payment that the Subcontract dispute addtional payment under the (any) and/or grants an involves issue(s) also involved Subcontract extension of ie (amy) ina Main Contract oispute sc 204 JA Party gles Notice ofa Dispute jsc 206 sc .206 ‘Subcontract 80 206) ‘The dispute A Party may| The dispute |< settlement 280 isc. 206 80.206 A Party reters ‘Subcontract lispute to DAB gives its [Subcontract DAB decision ISC 20.4 A Party gives Notice of a Dispute |S0 20.4 Contractor may refer dispute to $020.7 A Party may Subcontract DAB, Subcontractor may refer dspute inate arbitration to Subcontract OAB or may iat ebitration Sequence of Subcontractor's Claims and Disputes envisaged in Clause 20 1 {f the Contractor does not so notify the Subcontractor with reasons within 14 days, either Party shall be entitled to refer the Subcontract dispute to the Subcontract DAB. 2. Pursuant to the provisions of Main Contract Clause 20.4, referred to in Subcontract Sub-Ciause 20.6. er 2019 “The Subcontractor is sc. 20.2(0) sc 204 so. 207 aware ofthe event or ‘Contractor coneuits with the APanty may APary {Subcontractor in an endeavour ive Notice of may inate | to reach an agreement Dispute «86d Parties attemot amicable sattement [so 20.4 Subcontractor ives notice of [so 20.210) Contractor makes far decision. Notes Subcontractor wit reasons. Makes additional payment and/or payment f any) andlor grants extension oftime ‘an extension of time ff any). lcubmistuly detalod ‘Sequence of Subcontractor Claims and Disputes envisaged in First Altemati the Guidance for the Preparation of Particular Conditions of Subcontract Clause 20 given in Suboontractor —- $C-20.29) $C. 20.2 sc202 SC. 20.3(1)8(2) $0208) sc 20.3(0186) aware ofthe event Contactor Contractor Pre-eritral Subcontractor Contractor Contractor forcircumstance notifies responds to referee submits detalled approves or makes giving ise to the cm is Subcontractor’s appointed Unrelated Giaim disapproves, decision cae Related’ objection Unrelated sc .20.3(4) Claim Contractor consults with the ‘Subcontractor

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