FC-OA-B-AA-10-12/17 - 500

Conditions of
Contract for Plant &
Design Build

GENERAL CONDITIONS
GUIDANCE FOR THE PREPARATION
OF PARTICULAR CONDITIONS AND ANNEXES:
FORMS OF SECURITIES
FORMS OF LETTER OF TENDER, LETTER OF
ACCEPTANCE, CONTRACT AGREEMENT AND DISPUTE
ADJUDICATION/AVOIDANCE AGREEMENT

International Federation of Consulting Engineers (FIDIC)

World Trade Center II
PO Box 311
1215 Geneva 15
Switzerland
Telephone: +41 22 799 49 00
Fax: +41 22 799 49 01
E-mail: fidic@fidic.org
WWW: http://www.fidic.org ISBN 978-2-88432-082-5 SECOND EDITION 2017
 GENERAL CONDITIONS

GUIDANCE FOR THE

PREPARATION OF
PARTICULAR CONDITIONS
AND ANNEXES: FORMS
OF SECURITIES

FIDIC® Conditions of Contract for

FORMS OF LETTER OF
PLANT and DESIGN-BUILD TENDER, LETTER OF
ACCEPTANCE, CONTRACT
AGREEMENT AND
FOR ELECTRICAL & MECHANICAL PLANT, DISPUTE ADJUDICATION/
AVOIDANCE AGREEMENT
AND FOR BUILDING AND ENGINEERING
WORKS, DESIGNED BY THE CONTRACTOR

Second Edition 2017

ISBN 978-2-88432-082-5

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES
 Conditions

CONTENTS

1 GENERAL PROVISIONS . . . . • . . . . • . . . . . • . • • . . . • • • . • • . • . . . • • . • i

1.1 Definitions
1.2 Interpretation
1.3 Notices and Other Communications
1.4 Law and Language
1.5 Priority of Documents
1.6 Contract Agreement
1.7 Assignment
1.8 Care and Supply of Documents
1.9 Errors in the Employer's Requirements
1.10 Employer's Use of Contractor's Documents
1.11 Contractor's Use of Employer's Documents
1.12 Confidentiality
1.13 Compliance with Laws
1.14 Joint and Several Liability
1.15 Limitation of Liability
1.16 Contract Termination

2 THE EMPLOYER •...........•...•.••..........•...•......•.. 15

2.1 Right of Access to the Site

2.2 Assistance
2.3 Employer's Personnel and Other Contractors
2.4 Employer's Financial Arrangements
2.5 Site Data and Items of Reference
2.6 Employer-Supplied Materials and Employer's Equipment

3 THE ENGINEER ..•...•.•...•...•.....•••..•••....•.••..••. 17

3.1 The Engineer

3.2 Engineer's Duties and Authority
3.3 The Engineer's Representative
3.4 Delegation by the Engineer

General Conditions © FIDIC 2017

 3.5 Engineer's Instructions
3.6 Replacement of the Engineer
3.7 Agreement or Determination
3.8 Meetings

4 THE CONTRACTOR ••• , . . . • • • . . • • • • • • . • . • . . • • • • • . . • . . • . • • • • 23

4.1 Contractor's General Obligations

4.2 Performance Security
4.3 Contractor's Representative
4.4 Subcontractors
4.5 Nominated Subcontractors
4.6 Co-operation
4.7 Setting Out
4.8 Health and Safety Obligations
4.9 Quality.Management and Compliance Verification Systems
4.10 Use of Site Data
4.11 Sufficiency of the Accepted Contract Amount
4.12 Unforeseeable Physical Conditions
4.13 Rights of Way and Facilities
4.14 Avoidance of Interference
4.15 Access Route
4.16 Transport of Goods
4.17 Contractor's Equipment
4.18 Protection of the Environment
4.19 Temporary Utilities
4.20 Progress Reports
4.21 Security of the Site
4.22 Contractor's Operations on Site
4.23 Archaeological and Geological Findings

5 DESIGN ••.•.••••.•.••...•.••.••.•••.••••.••..•..•..••••.• 37

5.1 General Design Obligations

5.2 Contractor's Documents
5.3 Contractor's Undertaking
5.4 Technical Standards and Regulations
5.5 Training
5.6 As-Built Documents
5. 7 Operation and Maintenance Manuals
5.8 Design Error

6 STAFF AND LABOUR . • • • . . • . • . . . • . • • • • • • . . . . . • . • . . • • • . . . • • • 42

6.1 Engagement of Staff and Labour

6.2 Rates of Wages and Conditions of Labour
6.3 Recruitment of Persons
6.4 Labour Laws
6.5 Working Hours

ii © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 6.6 Facilities for Staff and Labour
6.7 Health and Safety of Personnel
6.8 Contractor's Superintendence
6.9 Contractor's Personnel
6.10 Contractor's Records
6.11 Disorderly Conduct
6.12 Key Personnel L.U
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7 PLANT, MATERIALS AND WORKMANSHIP ..•..•..•••...•••..•. 45
8
7.1 Manner of Execution
7.2 Samples
7.3 Inspection ~
'Y"
7.4 Testing by the Contractor ~;r

7.5 Defects and Rejection

7.6 Remedial Work
7.7 Ownership of Plant and Materials
7.8 Royalties

8 COMMENCEMENT, DELAYS AND SUSPENSION ..•.......•...•. 49

8.1 Commencement of Works

8.2 Time for Completion
8.3 Programme
8.4 Advance Warning
8.5 Extension of Time for Completion
8.6 Delays Caused by Authorities
8.7 Rate of Progress
8.8 Delay Damages
8.9 Employer's Suspension
8.10 Consequences of Employer's Suspension
8.11 Payment for Plant and Materials after Employer's Suspension
8.12 Prolonged Suspension
8.13 Resumption of Work

9 TESTS ON COMPLETION ••••••••..•..•.•.•••.•••...•..•..•. 54

9.1 Contractor's Obligations

9.2 Delayed Tests
9.3 Retesting
9.4 Failure to Pass Tests on Completion

10 EMPLOYER'S TAKING OVER •.•••...••....••...••••..•••..... 57

10.1 Taking Over the Works and Sections

10.2 Taking Over Parts
10.3 Interference with Tests on Completion
10.4 Surfaces Requiring Reinstatement

General Conditions © FIDIC 2017

iii
 11 DEFECTSAFTERTAKING OVER ••••.••••..•.......•..•.•••... 59

11 .1 Completion of Outstanding Work and Remedying Defects

11 .2 Cost of Remedying Defects
11 .3 Extension of Defects Notification Period
11 .4 Failure to Remedy Defects
11 .5 Remedying of Defective Work off Site
11.6 Further Tests after Remedying Defects
11.7 Right of Access after Taking Over
11.8 Contractor to Search
11 .9 Performance Certificate
11 .1 o Unfulfilled Obligations
11 .11 Clearance of Site

12 TESTS AFTER COMPLETION • • • • . • • • • • • • • • • . . . . • • • • • • • • • • . . • 64

12.1 Procedure for Tests after Completion

12.2 Delayed Tests
12.3 Retesting
12.4 Failure to Pass Tests after Completion

13 VARIATIONS AND ADJUSTMENTS.. . • . • • . • • • • . . . • • • . . • . . • • • . • 66

13.1 Right to Vary

13.2 Value Engineering
13.3 Variation Procedure
13.4 Provisional Sums
13.5 Daywork
13.6 Adjustments for Changes in Laws
13. 7 Adjustments for Changes in Cost

14 CONTRACT PRICE AND PAYMENT • • • • • • . • • • • . • . • • • • . • • • . . • • • 72

14.1 The Contract Price

14.2 Advance Payment
14.3 Application for Interim Payment
14.4 Schedule of Payments
14.5 Plant and Materials intended for the Works
14.6 Issue of IPC
14.7 Payment
14.8 Delayed Payment
14.9 Release of Retention Money
14.10 Statement at Completion
14.11 Final Statement
14.12 Discharge
14.13 Issue of FPC
14.14 Cessation of Employer's Liability
14.15 Currencies of Payment

iv © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 15 TERMINATION BY EMPLOYER ••.•.•••..•.••.•.••••..•.•...•.• 83

15.1 Notice to Correct

15.2 Termination for Contractor's Default
15.3 Valuation after Termination tor Contractor's Default
15.4 Payment after Termination tor Contractor's Default
15.5 Termination tor Employer's Convenience
15.6 Valuation after Termination tor Employer's Convenience
15.7 Payment after Termination for Employer's Convenience

16 SUSPENSION AND TERMINATION BY CONTRACTOR.. • . • • • . . • • • 87

(!]

16.1 Suspension by Contractor ~

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16.2 Termination by Contractor Lt

16.3 Contractor's Obligations After Termination

16.4 Payment after Termination by Contractor

17 CARE OFTHE WORKS AND INDEMNITIES ••••....•....•••...•• 90

17.1 Responsibility tor Care of the Works

17.2 Liability tor Care of the Works
17.3 Intellectual and Industrial Property Rights
17.4 Indemnities by Contractor
17.5 Indemnities by Employer
17.6 Shared Indemnities

18 EXCEPTIONAL EVENTS •••.••••.••.•••..••.•..••••..•..•.••• 93

18.1 Exceptional Events

18.2 Notice of an Exceptional Event
18.3 Duty to Minimise Delay
18.4 Consequences of an Exceptional Event
18.5 Optional Termination
18.6 Release from Performance under the Law

19 INSURANCE •.••••••.••.••••••.•••••.•••••••••.•..••••..•• 95

19.1 General Requirements

19.2 Insurance to be provided by the Contractor

20 EMPLOYER'S AND CONTRACTOR'S CLAIMS •••••••.•.••....•• 99

20.1 Claims
20.2 Claims For Payment and/or EOT

General Conditions © FIDIC2017

v
 21. DISPUTES AND ARBITRATION •••.•••...••....•••••••••.••.••••• 103

21.1 Constitution of the DAAB

21.2 Failure to Appoint DAAB Member(s)
21.3 Avoidance of Disputes
21.4 Obtaining DAAB's Decision
I;
21.5 Amicable Settlement
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21.6 Arbitration
L..;
5 21.7 Failure to Comply with DAAB's Decision
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21.8 No DAAB In Place

APPENDIX •••..•••••.••••••.••.••••••.•.••.•.••••••••••..•.••••• 110

GENERAL CONDITIONS OF DISPUTE AVOIDANCE/ADJUDICATION

AGREEMENT

INDEX OF SUB-CLAUSES ••..........•.....•.....•...•.•......... 128

© FIDIC 2017
vi Conditions of Contract for Plant and Design-Build
 General Conditions

Gen~~al Provisions
Li
1.1
Definitions In the Contract the following words and expressions shall have the meanings stated,
except where the context requires otherwise

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).

General Conditions © FIDIC 2017

1
 1.1.14 "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 orthree members (as the case may be) so named in the Contract, or
appointed under Sub-Clause 21 .1 [Constitution of the DMB] or Sub-Clause
21.2 [Failure to Appoint DMB 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 DMB] or Sub-Clause 21.2 [Failure to Appoint DMB
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

©FIDIC 2017
2 Conditions of Contract for Plant and Design-Build
 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.

1.1.25 "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) one Party makes a claim against the other Party (which may be a
Claim, as defined in these Cbnditions, or a matter to be determined
by the Engineer under these Conditions, or otherwise);
(b) the other Party (or the Engineer under Sub-Clause 3.7.2 [Engineer's
Determination]) rejects the claim in whole or in part; and
(c) 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 [Employer-
Supplied 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

General Conditions © FIDIC 2017 3

 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-Sup-
plied 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

L .. 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 Federation lnternationale des lngenieurs-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 /PC].

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) 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;

© FIDIC 2017 Conditions of Contract for Plant and Design-Build

4
 (b) identification and authorisation of the leader of the JV; and
(c) identification of the separate scope or part of the Works (if any) to be
carried out by each member of the JV.
1 .1 .48 "Key Personnel" means the positions (if any) of the Contractor's Personnel,
other than the Contractor's Representative, thatare 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 5£2
Acceptance means the date of signing the Contract Agreement. ff
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LL

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 DMB'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].

General Conditions © FIDIC 2017 5

 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 .7 4 "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.

© FIDIC 2017
6 Conditions of Contract for Plant and Design-Build
 1.2
In the Contract, except where the context requires otherwise:

(a) words indicating one gender include all genders; and "he", "his" and
"himself" shall be read as "he/she", "his/her" and "himself/herself"
respectively;
(b) words indicating the singular also include the plural and words
indicating the plural also include the singular;
(c) provisions including the word "agree", "agreed" or "agreement"
require the agreement to be recorded in writing;
(d) "written" or "in writing" means hand-written, type-written, printed or
electronically made, and resulting in a permanent record;
(e) "may" means that the Party or person referred to has the choice of
whether to act or not in the matter referred to;
U)
(f) "shall" means that the Party or person referred to has an obligation
~
() under the Contract to perform the duty referred to;
L ..
(g) "consent" means that the Employer, the Contractor or the Engineer
(as the case may be) agrees to, or gives permission for, the requested
matter;
(h) "including", "include" and "includes" shall be interpreted as not being
limited to, or qualified by, the stated items that follow;
(i) words indicating persons or parties shall be interpreted as referring
to natural and legal persons (including corporations and other legal
entities); and
U) "execute the Works" or "execution of the Works" means the design,
construction and completion of the Works and the remedying of any
defects.

In an/ 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).
r

The marginal words and other headings shall not be taken into consideration
in the interpretation of these Conditions.

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) 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,

8 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 or both, as stated in these Conditions; and
(b) 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;
(c) 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
(d) 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.

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.

i.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 comrnunications 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) the Contract Agreement;

(b) the Letter of Acceptance;
(c) the Letter of Tender,
(d) the Particular Conditions Part A - Contract Data;
(e) the Particular Conditions Part B - Special Provisions;
(f) these General Conditions;

General Conditions © FIDIC 2017 g

 (g) the Employer's Requirements;
(h) the Schedules;
(i) the Contractor's Proposal;
G) the JV Undertaking (if the Contractor is a JV); and
(k) any other documents forming part of the Contract.

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.

1.6
::)) ' Contract Agreement The Parties shall sign a Contract Agreement within 35 days after the
;;; Contractor receives the Letter of Acceptance, unless they agree otherwise.
(5
L .. 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.

1.7
Assignment 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) 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
(b) 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.

1.8
Care and Supply
of Documents 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.

The Contractor shall keep at all times, on the Site, a copy of:

(a) the Contract;

(b) the records under Sub-Clause 6.10 [Contractor's Records] and
Sub-Clause 20.2.3 [Contemporary records];
(c) the publications (if any) named in the Employer's Requirements;
(d) the Contractor's Documents; and
(e) 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.

10 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 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 on 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.

1.9
Errors in the Employer's
Requirements 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) whether or not there is an error, fault or defect in the Employer's

Requirements;
(b) 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
(c) what measures (if any) the Cohtractor 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) Sub-Clause 13.3.1 [Variation by Instruction] shall apply to the

measures that the Contractor is required to take (if any); and
(ii) 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 EQT] to EOT and/or
payment of such Cost Plus Profit.
1.10
Employel''s Use of
Contractor's Documents 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 on 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

General Conditions © FIDIC 2017

11
 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) apply throughout the actual or intended operational life (whichever is

longer) of the relevant parts of the Works;
(b) entitle any person in proper possession of the relevant part of the
\,;!
Works to copy, use and communicate the Contractor's Documents
,_
2~ and such other design documents for the purposes of completing,
c~ operating, maintaining, altering, adjusting, repairing and demolishing
-'
('.) the Works;
(c) 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
{d) 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.

1.11
Contractor's Use err
Employer's Documents 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.

1.12
Confidentiality 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.

©FIDIC 2017 Conditions of Contract for Plant and Design-Build

12
 The Employer and the Engineer shall treat all information provided by the
Contractor and marked "confidential", as confidential. The Employer shall
not disclose or permit to be disclosed any such information to third parties,
except as may be necessary when exercising the Employer's rights under
Sub-Clause 15.2 [Termination tor Contractor's Default].

A Party's obligation of confidentiality under this Sub-Clause shall not apply

where the information:

(a) was already in that Party's possession without an obligation of CJ

confidentiality before receipt from the other Party; G
(b) becomes generally available to the public through no breach of these
Conditions; or
(c) is lawfully obtained by the Party from a third party which is not bound
by an obligation of confidentiality. (f)
2fY"
1.13 0l.L
Compliance with Laws The Contractor and the Employer shall, in performing the Contract,
comply with all applicable Laws. Unless otherwise stated in the Employer's
Requirements:

(a) 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;
(b) 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];
(c) 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
(d) 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 Employer incurs additional costs as a result of the Contractor's failure

to comply with:

(i) sub-paragraph (c) above; or

(ii) sub-paragraph (b) or (d) above, provided that the Employer shall have
complied with Sub-Clause 2.2 [Assistance],

General Conditions © FIDIC 2017

13
 the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or E01] to payment of these costs by the Contractor.

Joint and Several Liability If the Contractor is a Joint Venture:

(a) the members of the JV shall be jointly and severally liable to the
LJ Employer for the performance of the Contractor's obligations under
()
z the Contract;
<:
~~
_.;
(b) the JV leader shall have authority to bind the Contractor and each
('.}
member of the JV; and
(c) neither the members nor (if known) the scope and parts of the Works to
be carried out by each member nor the legal status of the JV shall be
altered without the prior consent of the Employer (but such consent shall
(/) not relieve the altered JV from any liability under sub-paragraph (a) above).
tfC!
!.. ...
1.15
Limitation of liability Neither Party shall be liable to the other Party for loss of use of any Works,
loss of profit, loss of any contract or for any indirect or consequential loss
or damage which may be suffered by the other Party in connection with the
Contract, other than under:

(a) Sub-Clause 8.8 [Delay Damages];

(b) sub-paragraph (c) of Sub-Clause 13.3.1 [Variation by Instruction];
(c) Sub-Clause 15. 7 [Payment after Termination for Employer's
Convenience];
(d) Sub-Clause 16.4 [Payment after Termination by Contractor];
(e) Sub-Clause 17 .3 [Intellectual and Industrial Property Rights];
(t) the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor];
and
(g) Sub-Clause 17 .5 [Indemnities by Employer].
The total liability of the Contractor to the Employer under or in connection
with the Contract, other than:

(i) under Sub-Clause 2.6 [Employer-Supplied Materials and Employer's

Equipment];
(ii) under Sub-Clause 4.19 [Temporary Utilities];
(iii) under Sub-Clause 17 .3 [Intellectual and Industrial Property Rights];
and
(iv) under the first paragraph of Sub-Clause 17.4 [Indemnities by
Contractor],
shall not exceed the sum stated in the Contract Data or (if a sum is not so
stated) the Accepted Contract Amount.

This Sub-Clause shall not limit liability in any case of fraud, gross negligence,
deliberate default or reckless misconduct by the defaulting Party.

1.Hl
Contract Termination Subject to any mandatory requirements under the governing law of the
Contract, termination of the Contract under any Sub-Clause of these
Conditions shall require no action of whatsoever kind by either Party other
than as stated in the Sub-Clause.

© FIDIC 2017
14 Conditions of Contract for Plant and Design-Build
 Th ployer
2.1
Right of Access to the Site The Employer shall give the Contractor right of access to, and possession
of, all parts of the Site within the time (or times) stated in the Contract Data.
The right and possession may not be exclusive to the Contractor. If, under
the Contract, the Employer is required to give (to the Contractor) possession
of any foundation, structure, plant or means of access, the Employer shall
do so in the time and manner stated in the Employer's Requirements.
However, the Employer may withhold any such right or possession until the
Performance Security has been received.

If no such time is stated in the Contract Data, the Employer shall give the
Contractor right of access to, and possession of, those parts of the Site
within such times as may be required to enable the Contractor to proceed
in accordance with the Programme or, if there is no Programme at that time,
the initial programme submitted under Sub-Clause 8.3 [Programme].

If the Contractor suffers delay and/or incurs Cost as a result of a failure by

the Employer to give any such right or possession within such time, the
Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or E071 to EOT and/or payment of such Cost Plus Profit.

However, if and to the extent that the Employer's failure was caused by
any error or delay by the Contractor, including an error in, or delay in the
submission of, any of the applicable Contractor's Documents, the Contractor
shall not be entitled to such EOT and/or Cost Plus Profit.

If, under the Contract, the Employer is required to give to the Contractor
possession of any foundation, structure, plant or means of access in
accordance with Contractor's Documents, the Contractor shall submit such
Contractor's Documents to the Engineer in the time and manner stated in
the Employer's Requirements.

2.2
Assistance If requested by the Contractor, the Employer shall promptly provide
reasonable assistance to the Contractor so as to allow the Contractor to
obtain:

(a) copies of the Laws of the Country which are relevant to the Contract
but are not readily available; and
(b) any permits, permissions, licences or approvals required by the Laws
of the Country (including information required to be submitted by the
Contractor in order to obtain such permits, permissions, licences or
approvals):
(i) which the Contractor is required to obtain under Sub-Clause
1 .13 [Compliance with Laws];
(ii) for the delivery of Goods, including clearance through customs;
and
(iii) for the export of Contractor's Equipment when it is removed from
the Site.

2.3
Employer's Personnel and
Other Contractors The Employer shall be responsible for ensuring that the Employer's Personnel
and the Employer's other contractors (if any) on or near the Site:

General Conditions © FIDIC 2017

15
 (a) co-operate with the Contractor's efforts under Sub-Clause 4.6
[Co-operation]; and
(b) comply with the same obligations which the Contractor is required to
comply with under sub-paragraphs (a) to (e) of Sub-Clause 4.8 [Health
and Safety Obligations] and under Sub-Clause 4.18 [Protection of the
Environment].

The Contractor may require the Employer to remove (or cause to be

removed) any person of the Employer's Personnel or of the Employer's other
contractors (if any) who is found, based on reasonable evidence, to have
engaged in corrupt, fraudulent, collusive or coercive practice.

2.4
Employer's Financial
Arrangements The Employer's arrangements for financing the Employer's obligations under
the Contract shall be detailed in the Contract Data.

If the Employer intends to make any material change (affecting the Employer's
ability to pay the part of the Contract Price remaining to be paid at that time
as estimated by the Engineer) to these financial arrangements, or has to do
so because of changes in the Employer's financial situation, the Employer
shall immediately give a Notice to the Contractor with detailed supporting
particulars.

If the Contractor:

(a) receives an instruction to execute a Variation with a price greater

than ten percent (10%) of the Accepted Contract Amount, or the
accumulated total of Variations exceeds thirty percent (30%) of the
Accepted Contract Amount;
(b) does not receive payment in accordance with Sub-Clause 14. 7
[Payment]; or
(c) becomes aware of a material change in the Employer's financial
arrangements of which the Contractor has not received a Notice
under this Sub-Clause,
the Contractor may request and the Employer shall, within 28 days
after receiving this request, provide reasonable evidence that financial
arrangements have been made and are being maintained which will enable
the Employer to pay the part of the Contract Price remaining to be paid at
that time (as estimated by the Engineer).

2.5 -----------------···-··-··--·-·---·-···-----·---·-·····-·--·-·······---·-········-·-·····-----···-··--------··---··-··--····---·--·-·----··----
Site Data and
Items of Reference The Employer shall have made available to the Contractor for information,
before the Base Date, all relevant data in the Employer's possession on
the topography of the Site and on sub-surface, hydrological, climatic and
environmental conditions at the Site. The Employer shall promptly make
available to the Contractor all such data which comes into the Employer's
possession after the Base Date.

The original survey control points, lines and levels of reference (the "items
of reference" in these Conditions) shall be specified in the Employer's
Requirements or issued to the Contractor by a Notice from the Engineer.

16 © FIDIC2017 Conditions of Contract for Plant and Design-Build

2.6
Employerr~Suppiied Materials
and Employer's If Employer-Supplied Materials and/or Employer's Equipment are listed in
the Employer's Requirements for the Contractor's use in the execution of the
Works, the Employer shall make such materials and/or equipment available
to the Contractor in accordance with the details, times, arrangements, rates
and prices stated in the Employer's Requirements.
'!.Li

The Contractor shall be responsible for each item of Employer's Equipment ~

whilst any of the Contractor's Personnel is operating it, driving it, directing it, , ('.§
using it, or in control of it.

Th gineer U'J

3.1 ·~ LL

The Engineer The Employer shall appoint the Engineer, who shall carry out the duties
assigned to the Engineer in the Contract.

The Engineer shall be vested with all the authority necessary to act as the
Engineer under the Contract.

If the Engineer is a legal entity, a natural person employed by the Engineer

shall be appointed and authorised to act on behalf of the Engineer under the
Contract.

The Engineer (or, if a legal entity, the natural person appointed to act on its
behal~ shall be:

(a) a professional engineer having suitable qualifications, experience and

competence to act as the Engineer under the Contract; and
{b) shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law
and Language].

Where the Engineer is a legal entity, the Engineer shall give a Notice to the
Parties of the natural person (or any replacement) appointed and authorised
to act on its behalf. The authority shall not take effect until this Notice has
been received by both Parties. The Engineer shall similarly give a Notice of
any revocation of such authority.

3.2
Engineer's Duties
and Authority Except as otherwise stated in these Conditions, whenever carrying out
duties or exercising authority, specified in or implied by the Contract, the
Engineer shall act as a skilled professional and shall be deemed to act for
the Employer.

The Engineer shall have no authority to amend the Contract or, except as
otherwise stated in these Conditions, to relieve either Party of any duty,
obligation or responsibility under or in connection with the Contract.

The Engineer may exercise the authority attributable to the Engineer as

specified in or necessarily to be implied from the Contract. If the Engineer is
required to obtain the consent of the Employer before exercising a specified
authority, the requirements shall be as stated in the Particular Conditions.
There shall be no requirement for the Engineer to obtain the Employer's
consent before the Engineer exercises his/her authority under Sub-Clause

General Conditions © FIDIC 2017

17
 3.7 [Agreement or Determination]. The Employer shall not impose further
constraints on the Engineer's authority.

However, whenever the Engineer exercises a specified authority for which

the Employer's consent is required, then (for the purposes of the Contract)
such consent shall be deemed to have been given.

Any acceptance, agreement, approval, check, certificate, comment, consent,

disapproval, examination, inspection, instruction, Notice, No-objection,
record(s) of meeting, permission, proposal, record, reply, report, request,
Review, test, valuation, or similar act (including the absence of any such
act) by the Engineer, the Engineer's Representative or any assistant shall
not relieve the Contractor from any duty, obligation or responsibility the
Contractor has under or in connection with the Contract.
(/) '
~
()
3.3
The Engineer's
Representative The Engineer may appoint an Engineer's Representative and delegate to
him/her in accordance with Sub-Clause 3.4 [Delegation by the Engineer]
the authority necessary to act on the Engineer's behalf at the Site, except to
replace the Engineer's Representative.

The Engineer's Representative (if appointed) shall comply with

sub-paragraphs (a) and (b) of Sub-Clause 3.1 [The Engineer] and shall be
based at the Site for the whole time that the Works are being executed at
the Site. If the Engineer's Representative is to be temporarily absent from the
Site during the execution of the Works, an equivalently qualified, experienced
and competent replacement shall be appointed by the Engineer, and the
Contractor shall be given a Notice of such replacement.

3.4
Delegation by
the Engineer The Engineer may from time to time assign duties and delegate authority to
assistants, and may also revoke such assignment or delegation, by giving
a Notice to the Parties, describing the assigned duties and the delegated
authority of each assistant. The assignment, delegation or revocation shall
not take effect until this Notice has been received by both Parties. However,
the Engineer shall not delegate the authority to:

(a) act under Sub-Clause 3.7 [Agreement or Determination]; and/or

(b) issue a Notice to Correct under Sub-Clause 15.1 [Notice to Correct].

Assistants shall be suitably qualified natural persons, who are experienced

and competent to carry out these duties and exercise this authority, and who
are fluent in the language for communications defined in Sub-Clause 1.4
[Law and Language].

Each assistant, to whom duties have been assigned or authority has been
delegated, shall only be authorised to issue instructions to the Contractor
to the extent defined by the Engineer's Notice of delegation under this
Sub-Clause. Any act by an assistant, in accordance with the Engineer's
Notice of delegation, shall have the same effect as though the act had been
an act of the Engineer. However, if the Contractor questions any instruction
or Notice given by an assistant, the Contractor may by giving a Notice refer
the matter to the Engineer. The Engineer shall be deemed to have confirmed
the assistant's instruction or Notice if the Engineer does not respond, within
7 days after receiving the Contractor's Notice, reversing or varying the
assistant's instruction or Notice (as the case may be).

18 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

3.5
Engineer's Instructions The Engineer may issue to the Contractor (at any time) instructions which
may be necessary for the execution of the Works, all in accordance with the
Contract. The Contractor shall only take instructions from the Engineer, or
from the Engineer's Representative (if appointed) or an assistant to whom
the appropriate authority to give instruction has been delegated under
Sub-Clause 3.4 [Delegation by the Engineer].

Subject to the following provisions of this Sub-Clause, the Contractor

shall comply with the instructions given by the Engineer or the Engineer's
Representative (if appointed) or delegated assistant, on any matter related to
the Contract.

If an instruction states that it constitutes a Variation, Sub-Clause 13.3.1

[Variation by Instruction] shall apply. (/j

if
0U ..
If not so stated, and the Contractor considers that the instruction:

(a) constitutes a Variation (or involves work that is already part of an

existing Variation); or
(b) does not comply with applicable Laws or will reduce the safety of the
Works or is technically impossible

the Contractor shall immediately, and before commencing any work related
to the instruction, give a Notice to the Engineer with reasons. If the Engineer
does not respond within 7 days after receiving this Notice, by giving a Notice
confirming, reversing or varying the instruction, the Engineer shall be deemed
to have revoked the instruction. Otherwise the Contractor shall comply with
and be bound by the terms of the Engineer's response.

3.6
Replacement of
the Engineer If the Employer intends to replace the Engineer, the Employer shall, not less
than 42 days before the intended date of replacement, give a Notice to the
Contractor of the name, address and relevant experience of the intended
replacement Engineer.

If the Contractor does not respond within 14 days after receiving this Notice,
by giving a Notice stating an objection to such replacement with reasons, the
Contractor shall be deemed to have accepted the replacement.

The Employer shall not replace the Engineer with a person (whether a
legal entity or a natural person) against whom the Contractor has raised
reasonable objection by a Notice under this Sub-Clause.

If the Engineer is unable to act as a result of death, illness, disability or

resignation (or, in the case of an entity, the Engineer becomes unable or
unwilling to carry out any of its duties, other than for a cause attributable
to the Employer) the Employer shall be entitled to immediately appoint a
replacement by giving a Notice to the Contractor with reasons and the name,
address and relevant experience of the replacement. This appointment shall
be treated as a temporary appointment until this replacement is accepted by
the Contractor, or another replacement is appointed, under this Sub-Clause.

3.7
Agreement or Determination When carrying out his/her duties under this Sub-Clause, the Engineer shall
act neutrally between the Parties and shall not be deemed to act for the
Employer.

General Conditions © FIDIC 2017

19
 Whenever these Conditions provide that the Engineer shall proceed under
this Sub-Clause to agree or determine any matter or Claim, the following
procedure shall apply:

3.7.1 Consultation to reach agreement

The Engineer shall consult with both Parties jointly and/or separately, and
shall encourage discussion between the Parties in an endeavour to reach
agreement. The Engineer shall commence such consultation promptly
to allow adequate time to comply with the time limit for agreement under
Sub-Clause 3.7 .3 [Time limits]. Unless otherwise proposed by the Engineer
and agreed by both Parties, the Engineer shall provide both Parties with a
record of the consultation.

({)
If agreement is achieved within the time limit for agreement under Sub-Clause
2 3.7.3 [Time limits] the Engineer shall give a Notice to both Parties of the
;;
\.,)
L~ ..
agreement, which agreement shall be signed by both Parties. This Notice
shall state that it is a "Notice of the Parties' Agreement" and shall include a
copy of the agreement.

If:

(a) no agreement is achieved within the time limit for agreement under
Sub-Clause 3. 7 .3 [Time limits]; or
(b) both Parties advise the Engineer that no agreement can be achieved
within this time limit
'
whichever is the earlier, the Engineer shall give a Notice to the Parties
_ accordingly and shall immediately proceed under Sub-Clause 3.7.2
[Engineer's Determination].

. 3.7.2 Engineer's Determination

The Engineer shall make a fair determination of the matter or Claim, in

accordance with the Contract, taking due regard of all relevant circumstances.

Within the time limit for determination under Sub-Clause 3.7.3 [Time limits],
the Engineer shall give a Notice to both Parties of his/her determination.
This Notice shall state that it is a "Notice of the Engineer's Determination",
and shall describe the determination in detail with reasons and detailed
supporting particulars.

3.7.3 Time limits

The Engineer shall give the Notice of agreement, if agreement is achieved,

within 42 days or within such other time limit as may be proposed by the
Engineer and agreed by both Parties (the "time limit for agreement" in these
Conditions), after:

(a) in the case of a matter to be agreed or determined (not a Claim), the

date of commencement of the time limit for agreement as stated in the
applicable Sub-Clause of these Conditions;
(b) in the case of a Claim under sub-paragraph (c) of Sub-Clause
20.1 [Claims], the date the Engineer receives a Notice under
Sub-Clause 20.1 from the claiming Party; or
(c) in the case of a Claim under sub-paragraph (a) or (b) of Sub-Clause
20.1 [Claims], the date the Engineer receives:
(i) a fully detailed Claim under Sub-Clause 20.2.4 [Fully Detailed
Claim]; or

20 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 (ii) in the case of a Claim under Sub-Clause 20.2.6 [Claims of
continuing effect], an interim or final fully detailed Claim (as the
case may be).

The Engineer shall give the Notice of his/her determination within 42 days or
within such other time limit as may be proposed by the Engineer and agreed
by both Parties (the "time limit for determination" in these Conditions), after
the date corresponding to his/her obligation to proceed under the last !.l.I
paragraph of Sub-Clause 3.7. 1 [Consultation to reach agreement]. "z
<'(
Cl

If the Engineer does not give the Notice of agreement or determination within
the relevant time limit:

(i) in the case of a Claim, the Engineer shall be deemed to have

given a determination rejecting the Claim; or
(ii) in the case of a matter to be agreed or determined, the matter
shall be deemed to be a Dispute which may be referred by
either Party to the DAAB for its decision under Sub-Clause 21.4
[Obtaining DMB's Decision] without the need for a NOD (and
Sub-Clause 3.7.5 [Dissatisfaction with Engineers determination]
and sub-paragraph (a) of Sub-Clause 21.4.1 [Reference of a
Dispute to the DMB] shall not apply).

3. 7 .4 Effect of the agreement or determination

Each agreement or determination shall be binding on both Parties (and shall

be complied with by the Engineer) unless and until corrected under this
Sub-Clause or, in the case of a determination, it is revised under Clause 21
[Disputes and Arbitration].

If an agreement or determination concerns the payment of an amount from

one Party to the other Party, the Contractor shall include such an amount
in the next Statement and the Engineer shall include such amount in the
Payment Certificate that follows that Statement.

If, within 14 days after giving or receiving the Engineer's Notice of agreement
or determination, any error of a typographical or clerical or arithmetical nature
is found:

(a) by the Engineer: then he/she shall immediately advise the Parties
accordingly; or
(b) by a Party: then that Party shall give a Notice to the Engineer, stating
that it is given under this Sub-Clause 3.7.4 and clearly identifying the
error. If the Engineer does not agree there was an error, he/she shall
immediately advise the Parties accordingly.
The Engineer shall within 7 days of finding the error, or receiving a Notice
under sub-paragraph (b) above (as the case may be), give a Notice to
both Parties of the corrected agreement or determination. Thereafter, the
corrected agreement or determination shall be treated as the agreement or
determination for the purpose of these Conditions.

3. 7 .5 Dissatisfaction with Engineer's determination

If either Party is dissatisfied with a determination of the Engineer:

(a) the dissatisfied Party may give a NOD to the other Party, with a copy
to the Engineer;

General Conditions © FIDIC 2017

21
 (b) this NOD shall state that it is a "Notice of Dissatisfaction with the
Engineer's Determination" and shall set out the reason(s) for
dissatisfaction;
(c) this NOD shall be given within 28 days after receiving the Engineer's
Notice of the determination under Sub-Clause 3.7.2 [Engineer's
Determination] or, if applicable, his/her Notice of the corrected
determination under Sub-Clause 3.7.4 [Effect of the agreement or
determination] (or, in the case of a deemed determination rejecting
the Claim, within 28 days after the time limit for determination under
Sub-Clause 3.7.3 [Time limits] has expired); and
(d) thereafter, either Party may proceed under Sub-Clause 21 .4 [Obtaining
DAAB 's Decision].

If no NOD is given by either Party within the period of 28 days stated in

sub-paragraph (c) above, the determination of the Engineer shall be deemed
to have been accepted by both Parties and shall be final and binding on
()
' them.

If the dissatisfied Party is dissatisfied with only part(s) of the Engineer's

determination:

(i) this part(s) shall be clearly identified in the NOD;

(ii) this part(s), and any other parts of the determination that are affected
by such part(s) or rely on such part(s) for completeness, shall be
deemed to be severable from the remainder of the determination; and
(iii) the remainder of the determination shall become final and binding on
both Parties as if the NOD had not been given.

In the event that a Party fails to comply with an agreement of the Parties under
this Sub-Clause 3.7 or a final and binding determination of the Engineer, the
other Party may, without prejudice to any other rights it may have, refer
the failure itself directly to arbitration under Sub-Clause 21.6 [Arbitration] in
which case the first and the third paragraphs of Sub-Clause 21.7 [Failure
to Comply with DAAB's Decision] shall apply to such reference in the same
manner as these paragraphs apply to a final and binding decision of the
DAAB.

3.8
Meetings The Engineer or the Contractor's Representative may require the other to
attend a management meeting to discuss arrangements for future work and/
or other matters in connection with execution of the Works.

The Employer's other contractors, the personnel of legally constituted public

authorities and/or private utility companies, and/or Subcontractors may
attend any such meeting, if requested by the Engineer or the Contractor's
Representative.

The Engineer shall keep a record of each management meeting and supply
copies of the record to those attending and to the Employer. At any such
meeting, and in the record, responsibilities for any actions to be taken shall
be in accordance with the Contract.

© FIDIC 2017
22 Conditions of Contract for Plant and Design-Build
 T ntractor
4.i
Contractor's
General Obligations The Contractor shall execute the Works in accordance with the Contract.
When completed, the Works (or Section or Part or major item of Plant, if any)
shall be fit for the purpose(s) for which they are intended, as defined and
described in the Employer's Requirements (or, where no purpose(s) are so
defined and described, fit for their ordinary purpose(s)).

The Contractor shall provide the Plant (and spare parts, if any) and
Contractor's Documents specified in the Employer's Requirements, and
all Contractor's Personnel, Goods, consumables and other things and
services, whether of a temporary or permanent nature, required to fulfil the
Contractor's obligations under the Contract.

The Works shall include any work which is necessary to satisfy the Employer's
Requirements, Contractor's Proposal and Schedules, or is implied by the
Contract, and all works which (although not mentioned in the Contract) are
necessary for stability or for the completion, or safe and proper operation, of
the Works.

The Contractor shall be responsible for the adequacy, stability and safety of
all the Contractor's operations and activities, of all methods of construction
and of all the Works.

The Contractor shall, whenever required by the Engineer, submit details of

the arrangements and methods which the Contractor proposes to adopt for
the execution of the Works. No significant alteration to these arrangements
and methods shall be made without this alteration having been submitted to
the Engineer.

4.2
Performance Security The Contractor shall obtain (at the Contractor's cost) a Performance Security
to secure the Contractor's proper performance of the Contract, in the
amount and currencies stated in the Contract Data. If no amount is stated in
the Contract Data, this Sub-Clause shall not apply.

4.2.1 Contractor's obligations

The Contractor shall deliver the Performance Security to the Employer,

with a copy to the Engineer, within ·28 days after receiving the Letter of
Acceptance. The Performance Security shall be issued by an entity and from
within a country (or other jurisdiction) to which the Employer gives consent
and shall be in the form annexed to the Particular Conditions, or in another
form agreed by the Employer {but such consent and/or agreement shall not
relieve the Contractor from any obligation under this Sub-Clause).

The Contractor shall ensure that the Performance Security remains valid and
enforceable until the issue of the Performance Certificate and the Contractor
has complied with Sub-Clause 11.11 [Clearance of Site]. If the terms of
the Performance Security specify an expiry date, and the Contractor has
not become entitled to receive the Performance Certificate by the date 28
days before the expiry date, the Contractor shall extend the validity of the
Performance Security until the issue of the Performance Certificate and the
Contractor has complied with Sub-Clause 11.11 [Clearance of Site].

General Conditions © FIDIC 2017

23
 Whenever Variations and/or adjustments under Clause 13 [Variations and
Adjustments] result in an accumulative increase or decrease of the Contract
Price by more than twenty percent (20%) of the Accepted Contract Amount:

(a) in the case of such an increase, at the Employer's request the

Contractor shall promptly increase the amount of the Performance
Security in that currency by a percentage equal to the accumulative
increase. If the Contractor incurs Cost as a result of this Employer's
request, Sub-Clause 13.3.1 [Variation by Instruction] shall apply as if
the increase had been instructed by the Engineer; or
(b) in the case of such a decrease, subject to the Employer's prior consent
the Contractor may decrease the amount of the Performance Security
in that currency by a percentage equal to the accumulative decrease.

(J)
4.2.2 Claims under the Performance Security

~
\j
The Employer shall not make a claim under the Performance Security, except
'
for amounts to which the Employer is entitled under the Contract in the event
of:

(a) failure by the Contractor to extend the validity of the Performance

Security, as described in this Sub-Clause, in which event the
Employer may claim the full amount (or, in the case of previous
reduction(s), the full remaining amount) of the Performance
Security;
(b) failure by the Contractor to pay the Employer an amount due,
as agreed or determined under Sub-Clause 3. 7 [Agreement or
Determination] or agreed or decided under Clause 21 [Disputes
and Arbitration], within 42 days after the date of the agreement or
determination or decision or arbitral award (as the case may be);
(c) failure by the Contractor to remedy a default stated in a Notice
given under Sub-Clause 15.1 [Notice to Correct] within 42 days
or other time (if any) stated in the Notice;
(d) circumstances which entitle the Employer to terminate the
Contract under Sub-Clause 15.2 [Termination for Contractor's
Default], irrespective of whether a Notice of termination has been
given; or
(e) if under Sub-Clause 11 .5 [Remedying of Defective Work off Site]
the Contractor removes any defective or damaged Plant from the
Site, failure by the Contractor to repair such Plant, return it to the
Site, reinstall it and retest it by the date of expiry of the relevant
duration stated in the Contractor's Notice (or other date agreed
by the Employer).

The Employer shall indemnify and hold the Contractor harmless against and
from all damages, losses and expenses (including legal fees and expenses)
resulting from a claim under the Performance Security to the extent that the
Employer was not entitled to make the claim.

Any amount which is received by the Employer under the Performance

Security shall be taken into account:

(i) in the Final Payment Certificate under Sub-Clause 14.13 [Issue of

FPC]; or
(ii) if the Contract is terminated, in payment due to the Contractor
under Sub-Clause 15.4 [Payment after Termination for Contractor's
Default], Sub-Clause 15.7 [Payment after Termination for Employer's
Convenience], Sub-Clause 16.4 [Payment after Termination by

24 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 Contractor], Sub-Clause 18.5 [Optional Termination], or Sub-Clause
18.6 [Release from Performance under the Law] (as the case may be).

4 .2 .3 Return of the Performance Security

The Employer shall return the Performance Security to the Contractor:

(a) within 21 days after the issue of the Performance Certificate and the
Contractor has complied with Sub-Clause 11.11 [Clearance of Site];
or
(b) promptly after the date of termination if the Contract is terminated
in accordance with Sub-Clause 15.5 [Termination for Employer's
Convenience], Sub-Clause 16.2 [Termination by Contractor],
Sub-Clause 18.5 [Optional Termination] or Sub-Clause 18.6 [Release
from Performance under the Law]. U)

ff
0LL
4.3
Contractor's
Representative The Contractor shall appoint the Contractor's Representative and shall give
him/her all authority necessary to act on the Contractor's behalf under the
Contract, except to replace the Contractor's Representative.

The Contractor's Representative shall be qualified, experienced and

competent in the main engineering discipline applicable to the Works and
fluent in the language for communications defined in Sub-Clause 1.4 [Law
and Language].

Unless the Contractor's Representative is named in the Contract, the

Contractor shall, before the Commencement Date, submit to the Engineer
for consent the name and particulars of the person the Contractor proposes
to appoint as Contractor's Representative. If consent is withheld or
subsequently revoked, or if the appointed person fails to act as Contractor's
Representative; the Contractor shall similarly submit the name and particulars
of another suitable replacement for such appointment. If the Engineer does
not respond within 28 days after receiving this submission, by giving a
Notice to the Contractor objecting to the proposed person or replacement,
the Engineer shall be deemed to have given his/her consent.

The Contractor shall not, without the Engineer's prior consent, revoke the
appointment of the Contractor's Representative or appoint a replacement
(unless the Contractor's Representative is unable to act as a result of death,
illness, disability or resignation, in which case his/her appointment shall be
deemed to have been revoked with immediate effect and the appointment
of a replacement shall be treated as a temporary appointment until the
Engineer gives his/her consent to this replacement, or another replacement
is appointed, under this Sub-Clause).

The whole time of the Contractor's Representative shall be given to

directing the Contractor's performance of the Contract. The Contractor's
Representative shall act for and on behalf of the Contractor· at all times
during the performance of the Contract, including issuing and receiving all
Notices and other communications under Sub-Clause 1 .3 [Notices and
Other Communications] and for receiving instructions under Sub-Clause 3.5
[Engineer's Instructions].

The Contractor's Representative shall be based at the Site for the whole
time that the Works are being executed at the Site. If the Contractor's
Representative is to be temporarily absent from the Site during the execution

General Conditions © FIDIC 2017

25
 of the Works, a suitable replacement shall be temporarily appointed, subject
to the Engineer's prior consent.

The Contractor's Representative may delegate any powers, functions and

authority except:

(a) the authority to issue and receive Notices and other communications
under Sub-Clause 1.3 [Notices and Other Communications]; and
(b) the authority to receive instructions under Sub-Clause 3.5 [Engineer's
Instructions]),
to any suitably competent and experienced person and may at any time
revoke the delegation. Any delegation or revocation shall not take effect until
the Engineer has received a Notice from the Contractor's Representative,
naming the person, specifying the powers, functions and authority being
delegated or revoked, and stating the timing of the delegation or revocation.

All these persons shall be fluent in the language for communications defined
in Sub-Clause 1.4 [Law and Language].

4.4
Subcontractors The Contractor shall not subcontract:

(a) works with a total accumulated value greater than the percentage
of the Accepted Contract Amount stated in the Contract Data (if not
stated, the whole of the Works); or
(b) any part of the Works for which subcontracting is not permitted as
stated in the Contract Data.

The Contractor shall be responsible for the work of all Subcontractors, for
managing and coordinating all the Subcontractors' works, and for the acts
or defaults of any Subcontractor, any Subcontractor's agents or employees,
as if they were the acts or defaults of the Contractor.

The Contractor shall obtain the Engineer's prior consent to all proposed
Subcontractors, except:

(i) suppliers of Materials; or

(ii) a subcontract for which the Subcontractor is named in the Contract.

Where the Contractor is required to obtain the Engineer's consent to a

proposed Subcontractor, the Contractor shall submit the name, address,
detailed particulars and relevant experience of such Subcontractor and the
work intended to be subcontracted to the Engineer and further information
which the Engineer may reasonably require. If the Engineer does not
respond within 14 days after receiving this submission (or further information
if requested), by giving a Notice objecting to the proposed Subcontractor,
the Engineer shall be deemed to have given his/her consent.

The Contractor shall give a Notice to the Engineer riot less than 28 days
before the intended date of the commencement of each Subcontractor's
work, and of the commencement of such work on the Site.

4.5
Nominated
Subcontractors In this Sub-Clause, "nominated Subcontractor" means a Subcontractor
named as such in the Employer's Requirements or whom the Engineer, under
Sub-Clause 13.4 [Provisional Sums]. instructs the Contractor to employ as a
Subcontractor.

26 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

4.6
The Contractor shall, as specified in the Employer's Requirements or
as instructed by the Engineer, co-operate with and allow appropriate
opportunities for carrying out work by:

(a) the Employer's Personnel;

{b) any other contractors employed by the Employer; and
(c) the personnel of any legally constituted public authorities and private
utility companies,
who may be employed in the carrying out, on or near the Site, of any work
not included in the Contract. Such appropriate opportunities may include
the use of Contractor's Equipment, Temporary Works, access arrangements
which are the responsibility of the Contractor, and/or other Contractor's
facilities or services on the Site.

The Contractor shall be responsible for the Contractor's construction

activities on the Site, and shall use all reasonable endeavours to co-ordinate
these activities with those of other contractors to the extent (if any) specified
in the Employer's Requirements or as instructed by the Engineer.

If the Contractor suffers delay and/or incurs Cost as a result of an instruction

under this Sub-Clause, to the extent (if any) that co-operation, allowance
of opportunities and coordination was Unforeseeable having regard to that
specified in the Employer's Requirements, the Contractor shall be entitled
subject to Sub-Clause 20.2 [Claims For Payment and/or E01] to EOT and/
or payment of such Cost Plus Profit.

4.7
Setting Out The Contractor shall set out the Works in relation to the items of reference
under Sub-Clause 2.5 [Site Data and Items of Reference]. ~

4.7.1 Accuracy

The Contractor shall:

(a) verify the accuracy of all these items of reference before they are used
for the Works;
{b) promptly deliver the results of each verification to the Engineer;
(c) rectify any error in the positions, levels, dimensions or alignment of the
Works; and
(d) be responsible for the correct positioning of all parts of the Works.

4.7.2 Errors

If the Contractor finds an error in any items of reference, the Contractor shall
give a Notice to the Engineer describing it:

(a) within the period stated in the Contract Data (if not stated, 28 days)
calculated from the Commencement Date, if the items of reference
are specified in the Employer's Requirements; or
(b) as soon as practicable after receiving the items of reference, if they
are issued by the Engineer under Sub-Clause 2.5 [Site Data and Items
of Reference].

4.7.3 Agreement or Determination of rectification measures. delay and/or Cost

After receiving a Notice from the Contractor under Sub-Clause 4.7.2

28 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 [Errors], the Engineer shall proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determine:

(a) whether or not there is an error in the items of reference;

(b) whether or not (taking account of cost and time) an experienced
contractor exercising due care would have discovered such error
• when examining the Site and the Employer's Requirements
before submitting the Tender; or
• when scrutinising the Employer's Requirements under
Sub-Clause 5.1 [General Design Obligations], if the items of
reference are specified in the Employer's Requirements and the
Contractor's Notice is given after the expiry of the period stated
in sub-paragraph (a) of Sub-Clause 4.7.2; and
(c) what measures (if any) the Contractor is required to take to rectify the
{f)
error ~
cc
(and, for the purpose of Sub-Clause 3. 7 .3 [Time limits], the date the Engineer 0!.L
receives the Contractor's Notice under Sub-Clause 4. 7 .2 [Errors] 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:

(i) Sub-Clause 13.3.1 [Variation by Instruction] shall apply to the

measures that the Contractor is required to take (if any); and
(ii) if the Contractor suffers delay and/or incurs Cost as a result of the
error, 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.

4,8
Health and Safety
Obligations The Contractor shall:

(a) comply with all applicable health and safety regulations and Laws;
(b) comply with all applicable health and safety obligations specified in
the Contract;
(c) comply with all directives issued by the Contractor's health and
safety officer (appointed under Sub-Clause 6.7 [Health and Safety of
Personnen);
(d) take care of the health and safety of all persons entitled to be on the
Site and other places (if any) where the Works are being executed;
(e) keep the Site, Works (and the other places (if any) where the Works
are being executed) clear of unnecessary obstruction so as to avoid
danger to these persons;
(t) provide fencing, lighting, safe access, guarding and watching of:
(i) the Works, until the Works are taken over under Clause 10
[Employer's Taking Over]; and
(ii) any part of the Works where the Contractor is executing
outstanding works or remedying any defects during the DNP;
and
(g) provide any Temporary Works (including roadways, footways, guards
and fences) which may be necessary, because of the execution of the
Works, for the use and protection of the public and of owners and
occupiers of adjacent land and property.

General Conditions © FIDIC 2017

29
 Within 21 days of the Commencement Date and before commencing any
construction on the Site, the Contractor shall submit to the Engineer for
information a health and safety manual which has been specifically prepared
for the Works, the Site and other places (if any) where the Contractor intends
to execute the Works. This manual shall be in addition to any other similar
document required under applicable health and safety regulations and Laws.

The health and safety manual shall set out all the health and safety
requirements:

(i) specified in the Employer's Requirements;

(ii) that comply with all the Contractor's health and safety obligations
under the Contract; and
(iii) that are necessary to effect and maintain a healthy and safe working
environment for all persons entitled to be on the Site and other places
(if any) where the Works are being executed.

This manual shall be revised as necessary by the Contractor or the

Contractor's health and safety officer, or at the reasonable request of the
Engineer. 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

4.20 [Progress Reports], the Contractor shall submit to the Engineer details
of any accident as soon as practicable after its occurrence and, in the case
of an accident causing serious injury or death, shall inform the Engineer
immediately.

The Contractor shall, as specified in the Employer's Requirements and as

the Engineer may reasonably require, maintain records and make reports
(in compliance with the applicable health and safety regulations and Laws)
concerning the health and safety of persons and any damage to property.

4.9
Quality Management and
Compliance Verification
Systems 4.9.1 Quality Management System

The Contractor shall prepare and implement a QM System to demonstrate

compliance with the requirements of the Contract. The QM System shall be
specifically prepared for the Works and submitted to the Engineer within 28
days of the Commencement Date. Thereafter, whenever the QM System is
updated or revised, a copy shall promptly be submitted to the Engineer.

The QM System shall be in accordance with the details stated in the Employer's
Requirements (if any) and shall include the Contractor's procedures:

(a) to ensure that all Notices and other communications under Sub-Clause
1 .3 [Notices and Other Communications], Contractor's Documents,
as-built records, O&M Manuals, and contemporary records can be
traced, with full certainty, to the Works, Goods, work, workmanship
or test to which they relate;
(b) to ensure proper coordination and management of interfaces between
the stages of execution of the Works, and between Subcontractors;
and
(c) for the submission of Contractor's Documents to the Engineer for
Review.

©FIDIC2017
30 Conditions of Contract for Plant and Design-Build
 The Engineer may Review the OM System and may give a Notice to the
Contractor stating the extent to which it does not comply with the Contract.
Within 14 days after receiving this Notice, the Contractor shall revise the OM
System to rectify such non-compliance. If the Engineer does not give such
a Notice within 21 days of the date of submission of the OM 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
extent to which the Contractor is failing to correctly implement the OM
System to the Contractor's activities under the Contract. After receiving this
Notice, the Contractor shall immediately remedy such failure.

The Contractor shall carry out internal audits of the OM 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.
Each report shall include, where appropriate, the proposed measures to
improve and/or rectify the OM System and/or its implementation.

If the Contractor is required by the Contractor's quality assurance certification

to be subject to external audit, the Contractor shall immediately give a Notice
to the Engineer describing any failing(s) identified in any external audit. If the
Contractor is a JV, this obligation shall apply to each member of the JV.

4.9.2 Compliance Verification System

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.

The Compliance Verification System shall be in accordance with the details

stated in the Employer's Requirements (if any) and shall include a method for
reporting the results of all inspections and tests carried out by the Contractor.
In the event that any inspection or test identifies a non-compliance with the
Contract, Sub-Clause 7.5 [Defects and Rejection] shall apply.

The Contractor shall prepare and submit to the Engineer a complete set
of compliance verification documentation for the Works or Section (as the
case may be), fully compiled and collated in the manner described in the
Employer's Requirements or, if not so described, in a manner acceptable to
the Engineer.

4.9.3 General provision

Compliance with the OM System and/or Compliance Verification System

shall not relieve the Contractor from any duty, obligation or responsibility
under or in connection with the Contract.

4.10
Use of Site Data The Contractor shall be responsible for interpreting all data referred to under
Sub-Clause 2.5 [Site Data and Items of Reference].

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

General Conditions © FIDIC 2017

31
 before submitting the Tender as to all matters relevant to the execution of the
Works, including:

(a) the form and nature of the Site, including sub-surface conditions;
(b) the hydrological and climatic conditions, and the effects of climatic
conditions at the Site;
(c) the extent and nature of the work and Goods necessary for the
execution of the Works;
(d) the Laws, procedures and labour practices of the Country; and
(e) the Contractor's requirements for access, accommodation, facilities,
personnel, power, transport, water and any other utilities or services.

(/)
Sufficiency of the

~
L ..
Accepted Contract Amount The Contractor shall be deemed to:

(a) have satisfied himself/herself as to the correctness and sufficiency of

the Accepted Contract Amount; and
(b) have based the Accepted Contract Amount on the data, interpretations,
necessary information, inspections, examinations and satisfaction as
to all relevant matters described in Sub-Clause 4.10 [Use of Site Data]
and any further data relevant to the Contractor's design.

Unless otherwise stated in the Contract, the Accepted Contract Amount

shall be deemed to cover all the Contractor's obligations under the Contract
and all things necessary for the proper execution of the Works in accordance
with the Contract.

4.12
Unforeseeable
Conditions In this Sub-Clause, "physical conditions" means natural physical conditions
and physical obstructions (natural or man-made) and pollutants, which the
Contractor encounters at the Site during execution of the Works, including
sub-surface and hydrological conditions but excluding climatic conditions at
the Site and the effects of those climatic conditions.

If the Contractor encounters physical conditions which the Contractor

considers to have been Unforeseeable and that will have an adverse effect
on the progress and/or increase the Cost of the execution of the Works, the
following procedure shall apply:

4.12. 1 Contractor's Notice

After discovery of such physical conditions, the Contractor shall give a

Notice to the Engineer, which shall:

(a) be given as soon as practicable and in good time to give the Engineer
opportunity to inspect and investigate the physical conditions promptly
and before they are disturbed;
(b) describe the physical conditions, so that they can be inspected and/
or investigated promptly by the Engineer;
(c) set out the reasons why the Contractor considers the physical
conditions to be Unforeseeable; and
(d) describe the manner in which the physical conditions will have an
adverse effect on the progress and/or increase the Cost of the
execution of the Works.

32 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 4.12.2 Engineer's inspection and investigation

The Engineer shall inspect and investigate the physical conditions within 7 days, or
longer period agreed with the Contractor, after receiving the Contractor's Notice.

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.

4.12.3 Engineer's instructions

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 13.3.1 [Variation by Instruction] shall apply.
{f)

4.12.4 Delay and/or Cost ~

0LL

If and to the extent that the Contractor suffers delay and/or incurs Cost due
to these physical conditions, having complied with Sub-Clauses 4.12.1 to
4.12.3 above, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or Eon to EOT and/or payment of such Cost.

4.12.5 Agreement or Determination of Delay and/or Cost

The agreement or determination, under Sub-Clause 20.2.5 [Agreement or

determination of the Claim], of any Claim under Sub-Clause 4.12.4 [Delay
and/or Cost] shall include consideration of whether and (if so) to what extent
the physical conditions were Unforeseeable.

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 4.12.5.
However, the net effect of all additions and reductions under this Sub-Clause
4.12.5 shall not result in a net reduction in the Contract Price.

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 20.2.4
[Fully detailed Claim], but shall not be bound by any such evidence.

4.13
Rights of Way and Facilities The Contractor shall bear all costs and charges for special and/or temporary
rights-of-way which may be required for the purposes of the Works, including
those for access to the Site.

The Contractor shall also obtain, at the Contractor's risk and cost, any additional
facilities outside the Site which may be required for the purposes of the Works.

4.14
Avoidance of Interference The Contractor shall not interfere unnecessarily or improperly with:

(a) the convenience of the public; or

(b) the access to and use and occupation of all roads and footpaths,
irrespective of whether they are public or in the possession of the
Employer or of others.

General Conditions © FIDIC 2017 33

 The Contractor shall indemnify and hold the Employer harmless against and
from all damages, losses and expenses (including legal fees and expenses)
resulting from any such unnecessary or improper interference.

Access Route The Contractor shall be deemed to have been satisfied, at the Base Date,
as to the suitability and availability of the access routes to the Site. The
Contractor shall take all necessary measures to prevent any road or bridge
from being damaged by the Contractor's traffic or by the Contractor's
) .... )
Personnel. These measures shall include the proper use of appropriate
0 vehicles (conforming to legal load and width limits (if any) and any other
restrictions) and routes.

Except as otherwise stated in these Conditions:

(j)
2
et: (a) the Contractor shall (as between the Parties) be responsible for repair
()
of any damage caused to, and any maintenance which may be
required for the Contractor's use of, access routes;
(b) the Contractor shall provide all necessary signs or directions along
access routes, and shall obtain any permissions or permits which
may be required from the relevant authorities, for the Contractor's use
of routes, signs and directions;
(c) the Employer shall not be responsible for any third party claims which
may arise from the Contractor's use or otherwise of any access route;
(d) the Employer does not guarantee the suitability or availability of
particular access routes; and
(e) all Costs due to non-suitability or non-availability, for the use required
by the Contractor, of access routes shall be borne by the Contractor.

To the extent that non-suitability or non-availability of an access route arises

as a result of changes to that access route by the Employer or a third party
after the Base Date, and as a result the Contractor suffers delay and/or
incurs Cost, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or E01] to EOT and/or payment of such Cost.

4.16
Transport of Goods The Contractor shall:

(a) give a Notice to the Engineer not less than 21 days before the date on
which any Plant, or a major item of other Goods (as specified in the
Employer's Requirements), will be delivered to the Site;
(b) be responsible for packing, loading, transporting, receiving, unloading,
storing and protecting all Goods and other things required for the
Works;
(c) be responsible for customs clearance, permits, fees and charges
related to the import, transport and handling of all Goods, including
all obligations necessary for their delivery to the Site; and
(d) indemnify and hold the Employer harmless against and from all
damages, losses and expenses (including legal fees and expenses)
resulting from the import, transport and handling of all Goods, and
shall negotiate and pay all third party claims arising from their import,
transport and handling.

4.17
Contractor's Equipment The Contractor shall be responsible for all Contractor's Equipment. When
brought on to the Site, Contractor's Equipment shall be deemed to be
exclusively intended for the execution of the Works. The Contractor shall

34 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 not remove from the Site any major items of Contractor's Equipment without
the Engineer's consent. However, consent shall not be required for vehicles
transporting Goods or Contractor's Personnel off Site.

In addition to any Notice given under Sub-Clause 4.16 [Transport of Goods],

the Contractor shall give a Notice to the Engineer of the date on which
any major item of Contractor's Equipment has been delivered to the Site.
This Notice shall be given within 7 days of the delivery date, shall identify
whether the item of Contractor's Equipment is owned by the Contractor or
a Subcontractor or another person and, if rented or leased, shall identify the
rental or leasing entity.

4.18
Protection of
the Erwin:;nment The Contractor shall take all necessary measures to;

(a) protect the environment (both on and off the Site);

(b) comply with the environmental impact statement for the Works (if
any); and
(c) limit damage and nuisance to people and property resulting from
pollution, noise and other results of the Contractor's operations and/
or activities.

The Contractor shall ensure that emissions, surface discharges, effluent and
any other pollutants from the Contractor's activities shall exceed neither the
values indicated in the Employer's Requirements nor those prescribed by
applicable Laws.

4.19
Temporary Utilities The Contractor shall, except as stated below, be responsible for the provision
of all temporary utilities, including electricity, gas, telecommunications, water
and any other services the Contractor may require for the execution of the
Works.

The following provisions of this Sub-Clause shall only apply if, as stated
in the Employer's Requirements, the Employer is to provide utilities for the
Contractor's use. The Contractor shall be entitled to use, for the purposes
of the Works, the utilities on the Site for which details and prices are given
in the Employer's Requirements. The Contractor shall, at the Contractor's
risk and cost, provide any apparatus necessary for the Contractor's use of
these services and for measuring the quantities consumed. The apparatus
provided for measuring quantities consumed shall be subject to the
Engineer's consent. The quantities consumed (if any) during each period
of payment stated in the Contract Data (if not stated, each month) shall be
measured by the Contractor, and the amount to be paid by the Contractor
for such quantities (at the prices stated in the Employer's Requirements)
shall be included in the relevant Statement.

4.20
Progress Reports Monthly progress reports, in the format stated in the Employer's Requirements
(if not stated, in a format acceptable to the Engineer), shall be prepared by
the Contractor and submitted to the Engineer. 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.

General Condttions © FIDIC 2017

35
 Reporting shall continue until the Date of Completion of the Works or, if
outstanding work is listed in the Taking-Over Certificate, the date on which
such outstanding work is completed. Unless otherwise stated in the
Employer's Requirements, each progress report shall include:

(a) charts, diagrams and detailed descriptions of progress, including each

stage of design, Contractor's Documents, procurement, manufacture,
delivery to Site, construction, erection, testing, commissioning and
;,..J
CJ
7
trial operation;
C5 (b) photographs and/or video recordings showing the status of
_,!
:::1 manufacture and of progress on and off the Site;
(c) for the manufacture of each main item of Plant and Materials, the name
of the manufacturer, manufacture location, percentage progress, and
the actual or expected dates of:
~:; (i) commencement of manufacture,
.,;;:,.
~ (ii) Contractor's inspections,
(iii) tests, and
(iv) shipment and arrival at the Site;
(d) the details described in Sub-Clause 6.10 [Contractor's Records];
(e) copies of quality management documents, inspection reports,
test results, and compliance verification documentation (including
certificates of Materials);
m a list of Variations, and any Notices given (by either Party) under
Sub-Clause 20.2.1 [Notice of Claim];
(g) health and safety statistics, including details of any hazardous
incidents and activities relating to environmental aspects and public
relations; and
(h) comparisons of actual and planned progress, with details of any events
or circumstances which may adversely affect the completion of the
Works in accordance with the Programme and the Time for Completion,
and the measures being (or to be) adopted to overcome delays.
However, nothing stated in any progress report shall constitute a Notice
under a Sub-Clause of these Conditions.

4.21
Security of the Site The Contractor shall be responsible for the security of the Site, and:

(a) for keeping unauthorised persons off the Site; and

(b) authorised persons shall be limited to the Contractor's Personnel,
the Employer's Personnel, and to any other personnel identified as
authorised personnel (including the Employer's other contractors
on the Site), by a Notice from the Employer or the Engineer to the
Contractor.

4.22
Contractor's Operations
on Site The Contractor shall confine the Contractor's operations to the Site, and
to any additional areas which may be obtained by the Contractor and
acknowledged by the Engineer as working areas. The Contractor shall take
all necessary precautions to keep Contractor's Equipment and Contractor's
Personnel within the Site and these additional areas, and to keep them off
adjacent land.

At all times, the Contractor shall keep the Site free from all unnecessary
obstruction, and shall properly store or remove from the Site any Contractor's

36 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 Equipment (subject to 4.17 [Contractor's Equipment]) and/or surplus
materials. The Contractor shall promptly clear away and remove from the
Site any wreckage, rubbish, hazardous waste and Temporary Works which
are no longer required.

Promptly after the issue of a Taking-Over Certificate, the Contractor shall

clear away and remove, from that part of the Site and Works to which the
Taking-Over Certificate refers, all Contractor's Equipment, surplus material,
wreckage, rubbish, hazardous waste and Temporary Works. 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.

4.23 (/)
~
Archaeological and er::
0
Geological All fossils, coins, articles of value or antiquity, and structures and other !.J ..

remains or items of geological or archaeological interest found on the Site

shall be placed under the care and authority of the Employer. The Contractor
shall take all reasonable precautions to prevent Contractor's Personnel or
other persons from removing or damaging any of these findings.

The Contractor shall, as soon as practicable after discovery of any such

finding, give a Notice to the Engineer in good time to give the Engineer
opportunity to promptly inspect and/or investigate the finding before it is
disturbed. This Notice shall describe the finding and the Engineer shall issue
instructions for dealing with it.

If the Contractor suffers delay and/or incurs Cost from complying with the
Engineer's instructions, the Contractor shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or E01] to EOT and/or payment of such
Cost.

5.1
General Design Obligations The Contractor shall carry out, and be responsible for, the design of the
Works. Design shall be prepared by designers who:

(a) are engineers or other professionals, qualified, experienced and

competent in the disciplines of the design for which they are
responsible;
(b) comply with the criteria (if any) stated in the Employer's Requirements;
and
(c) are qualified and entitled under applicable Laws to design the Works.

Unless otherwise stated in the Employer's Requirements, the Contractor shall

submit to the Engineer for consent the name, address, detailed particulars
and relevant experience of each proposed designer/design Subcontractor.

The Contractor warrants that the Contractor, the Contractor's designers and
design Subcontractors have the experience, capability and competence
necessary for the design. The Contractor undertakes that the designers
and design Subcontractors shall be available to attend discussions with the
Engineer and/or the Employer at all reasonable times (on or off the Site), until
the issue of the Performance Certificate.

General Conditions © FIDIC 2017

37
 Promptly after receiving a Notice under Sub-Clause 8.1 [Commencement
of Works], the Contractor shall scrutinise the Employer's Requirements
(including design criteria and calculations, if any). If the Contractor discovers
any error, fault or other defect in the Employer's Requirements, Sub-Clause
1.9 [Errors in the Employer's Requirements] shall apply (unless it is an error
in the items of reference specified in the Employer's Requirements, in which
case Sub-Clause 4.7 [Setting Out] shall apply).

5.2
Contractor's
Documents The Contractor's Documents shall comprise the documents:

(a) specified in the Employer's Requirements;

(b) required to satisfy all permits, permissions, licences and other
(j) regulatory approvals which are the Contractor's responsibility under
:?
tr
(j Sub-Clause 1.13 [Compliance with Laws]; and
L.'. ..
(c) described in Sub-Clause 5.6 [As-Built Records] and Sub-Clause 5.7
[Operation and Maintenance Manuals].

5.2.1 Preparation by Contractor

Unless otherwise stated in the Employer's Requirements, the Contractor's

Documents shall be written in the language for communications defined in
Sub-Clause 1.4 [Law and Language].

The Contractor shall prepare all Contractor's Documents, and any other
documents necessary to complete and implement the design during
execution of the Works and to instruct the Contractor's Personnel. The
Employer's Personnel shall have the right to inspect the preparation of
all these documents (including any investigation, modelling and testing),
wherever they are being prepared.

5.2.2 Review by Engineer

In this Sub-Clause 5.2.2:

"Review Period" means the period not exceeding 21 days, or as

otherwise stated in the Employer's Requirements, calculated from the
date on which the Engineer receives a Contractor's Document and a
Contractor's Notice;
"Contractor's Document" excludes any of the Contractor's Documents
which are not specified in the Employer's Requirements or these
Conditions as being required to be submitted for Review, but includes
all documents on which a specified Contractor's Document relies for
completeness; and
"Contractor's Notice" means the Notice which shall state that the
relevant Contractor's Document is considered by the Contractor to
be ready for Review under this Sub-Clause 5.2.2 and for use, and that
it complies with the Employer's Requirements and these Conditions,
or the extent to which it does not do so.
If the Employer's Requirements or these Conditions specify that a
Contractor's Document is to be submitted to the Engineer for Review, it shall
be submitted accordingly, together with a Contractor's Notice.

© FIDIC2017
38 Conditions of Contract for Plant and Design-Build
 The Engineer shall, within the Review Period, give a Notice to the Contractor:

(a) of No-objection (which may include comments concerning minor

matters which will not substantially affect the Works); or
(b) that the Contractor's Document fails (to the extent stated) to comply
with the Employer's Requirements and/or the Contract, with reasons.

If the Engineer gives no Notice within the Review Period, the Engineer shall
be deemed to have given a Notice of No-objection to the Contractor's
Document (provided that all other Contractor's Documents on which that
Contractor's Document relies (if any) have been given, or are deemed to
have been given, a Notice of No-objection).

If the Engineer instructs that further Contractor's Documents are reasonably

required to demonstrate that the Contractor's design complies with the
Contract, the Contractor shall prepare and submit them promptly to the
Engineer at the Contractor's cost.

If the Engineer gives a Notice under sub-paragraph (b) above, the Contractor
shall:

(i) revise the Contractor's Document;

(ii) resubmit it to the Engineer for Review in accordance with this
Sub-Clause 5.2.2, and the Review Period shall be calculated from the
date that the Engineer receives it; and
(iii) not be entitled to EOT for any delay caused by any such revision and
resubmission and/or by subsequent Review by the Engineer.

If the Employer incurs additional costs as a result of such resubmission and

subsequent Review, the Employer shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or E07] to payment by the Contractor of the
costs reasonably incurred.

5.2.3 Construction

Except for Contractor's Documents under Sub-Clause 5.6 [As-Built Records]

and Sub-Clause 5.7 [Operation and Maintenance Manuals], for each part of
the Works requiring Contractor's Documents to be submitted for Review:

(a) construction of such a part shall not commence until a Notice

of No-objection is given (or is deemed to have been given) by the
Engineer for all the Contractor's Documents which are relevant to its
design and execution;
(b) construction of such a part shall be in accordance with these
Contractor's Documents; and
(c) the Contractor may modify any design or Contractor's Documents
which have previously been submitted for Review, by giving a Notice
to the Engineer with reasons. If the Contractor has commenced
construction of the part of the Works to which such design or
Contractor's Documents are relevant:
(i) work on this part shall be suspended;
(ii) the provisions of Sub-Clause 5.2.2 [Review by Engineer] shall apply
as if the Engineer had given a Notice in respect of the Contractor's
Documents under sub-paragraph (b) of Sub-Clause 5.2.2; and
(iii) work on this part shall not resume until a Notice of No-objection
is given (or is deemed to have been given) by the Engineer for the
revised documents.

General Conditions © FIDIC 2017

39
5.3
Contractor's
Undertaking The Contractor undertakes that the design, the Contractor's Documents,
the execution of the Works and the completed Works will be in accordance
with:

(a) the Laws of the Country; and

(b) the documents forming the Contract, as altered or modified by
Variations.

5.4
Technical Standards
and Regulations The Contractor's Documents, the execution of the Works and the completed
Works (including defects remedied by the Contractor) shall comply with the
Country's technical standards, building, construction and environmental
Laws, Laws applicable to the product being produced from the Works, and
other standards specified in the Employer's Requirements, applicable to the
Works, or defined by applicable Laws.

All these technical or other standards and Laws shall, in respect of the
Works, and each Section and Part, be those in force when the Works or
Section or Part are taken over under Clause 10 [Employer's Taking Over].

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:

(a) the Engineer considers that compliance is required and such

compliance requires change(s) to the execution of the Works; and
(b) the Contractor's proposals for compliance constitute a Variation;

then the Engineer shall initiate a Variation in accordance with Clause 13

[Variations and Adjustments].

5.5
Training The Contractor shall carry out training of employees of the Employer (and/or
other personnel identified in the Employer's Requirements) in the operation
and maintenance of the Works, and any other aspect of the Works, to the
extent specified in the Employer's Requirements.

If the Employer's Requirements specify training which is to be carried out

before taking over, the Works shall not be considered to be completed for
the purposes of taking over under Sub-Clause 10.1 [Taking Over the Works
and Sections] until this training has been completed in accordance with the
Employer's Requirements.

The timing of the training shall be as stated in the Employer's Requirements

(if not stated, as acceptable to the Employer). The Contractor shall provide
qualified and experienced training staff, training facilities and all training
materials as necessary and/or as stated in the Employer's Requirements.

5.6
As-Built Records The Contractor shall prepare, and keep up-to-date, a complete set of
"as-built" records of the execution of the Works, showing the exact as-built

40 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 locations, sizes and details of the work as executed by the Contractor.
The format, referencing system, system of electronic storage and other
relevant details of the as-built records shall be as stated in the Employer's
Requirements (if not stated, as acceptable to the Engineer). 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 5.2.2 [Review
by Engineer]:

(a) the as-built records for the Works or Section (as the case may be)
before the commencement of the Tests on Completion; and
(b) updated as-built records to the extent that any work is executed by
the Contractor:
(i) during and/or after the Tests on Completion, before the issue of
any Taking-Over Certificate under Sub-Clause 10.1 [Taking Over
the Works and Sections]; and
(ii) after taking over under Sub-Clause 10.1 [Taking Over the Works
and Sections], before the issue of the Performance Certificate.

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 1.8 [Care and
Supply of Documents].

5.7
Operation and
Maintenance Manuals The Contractor shall prepare, and keep up-to-date, a complete set of
operation and maintenance manuals for the Works (the "O&M Manuals" in
these Conditions).

The format and other relevant details of the O&M Manuals shall be as stated
in the Employer's Requirements and, in any case, these manuals shall:

(a) be in sufficient detail for the Employer to:

(i) operate, maintain and adjust the Works to ensure that the
performance of the Works, Section and/or Plant (as the case may
be) continues to comply with the performance criteria specified in
the Employer's Requirements and the Schedule of Performance
Guarantees; and
(ii) operate, maintain, dismantle, reassemble, adjust and repair the
Plant; and
(b) include an inventory of spare parts required for the Employer's future
operation and maintenance of the Plant.

Before commencement of the Tests on Completion, the Contractor shall

submit provisional O&M Manuals for the Works or Section (as the case may
be) to the Engineer under Sub-Clause 5.2.2 [Review by Engineer].

If during the Tests on Completion any error or defect is found in the provisional
O&M Manuals, the Contractor shall promptly rectify the error or defect at the
Contractor's risk and cost.

Before the issue of any Taking-Over Certificate under Sub-Clause 10.1

[Taking Over the Works and Sections], the final O&M Manuals shall be
submitted to the Engineer under Sub-Clause 5.2.2 [Review by Engineer].

General Conditions © FIDIC 2017

41
5.8
Errnr If errors, omissions, ambiguities, inconsistencies, inadequacies or other defects
are found in the Contractor's design and/or the Contractor's Documents, they
and the Works shall be corrected in accordance with Sub-Clause 7 .5 [Defects
and Rejection]. If such Contractor's Documents were previously the subject of
a Notice of No-objection given (or deemed to be given) by the Engineer under
Sub-Clause 5.2.2 [Review by Engineer], the provisions of Sub-Clause 5.2.2
shall apply as if the Engineer had given a Notice in respect of the Contractor's
Documents under sub-paragraph (b) of Sub-Clause 5.2.2.

All corrections and resubmissions under this Sub-Clause shall be at the

Contractor's risk and cost.

nd Labour
6.i
Engagement of
Staff and Labour Except as otherwise stated in the Specification, the Contractor shall make
arrangements for the engagement of all Contractor's Personnel, and for their
payment, accommodation, feeding, transport and welfare.

6.2

Conditions of Labour The Contractor shall pay rates of wages, and observe conditions of labour,
which comply with all applicable Laws and are not lower than those
established for the trade or industry where the work is carried out.

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.

6.3
Recruitment of Persons The Contractor shall not recruit, or attempt to recruit, staff and labour from
amongst the Employer's Personnel.

Neither the Employer nor the Engineer shall recruit, or attempt to recruit, staff
and labour from amongst the Contractor's Personnel.

6.4
Labour Laws The Contractor shall comply with all the relevant labour Laws applicable
to the Contractor's Personnel, including Laws relating to their employment
(including wages and working hours), health, safety, welfare, immigration
and emigration, and shall allow them all their legal rights.

The Contractor shall require the Contractor's Personnel to obey all applicable
Laws, including those concerning health and safety at work.

6.5
Working Hours No work shall be carried out on the Site on locally recognised days of rest,
or outside the normal working hours stated in the Contract Data, unless:

(a) otherwise stated in the Contract;

(b) the Engineer gives consent; or
(c) the work is unavoidable or necessary for the protection of life or

©FIDIC 2017
42 Conditions of Contract for Plant and Design-Build
 property or for the safety of the Works, in which case the Contractor
shall immediately give a Notice to the Engineer with reasons and
describing the work required.

Facilities for
Staff and labour Except as otherwise stated in the Employer's Requirements, the Contractor
shall provide and maintain all necessary accommodation and welfare facilities
for the Contractor's Personnel.
sCJ
If such accommodation and facilities are to be located on the Site, except
where the Employer has given the Contractor prior permission, they shall
be located within the areas identified in the Employer's Requirements. If any
such accommodation or facilities are found elsewhere within the Site, the
Contractor shall immediately remove them at the Contractor's risk and cost.
The Contractor shall also provide facilities for the Employer's Personnel as
stated in the Employer's Requirements.

6.7
Health and Safety
of Personnel In addition to the requirements of Sub-Clause 4.8 [Health and Safety
Obligations], the Contractor shall at all times take all necessary precautions to
maintain the health and safety of the Contractor's Personnel. In collaboration
with local health authorities, the Contractor shall ensure that:

(a) medical staff, first aid facilities, sick bay, ambulance services and
any other medical services stated in the Employer's Requirements
are available at all times at the Site and at any accommodation for
Contractor's and Employer's Personnel; and
(b) suitable arrangements are made for all necessary welfare and hygiene
requirements and for the prevention of epidemics.

The Contractor shall appoint a health and safety officer at the Site, responsible
for maintaining health, safety and protection against accidents. This officer shall:

(i) be qualified, experienced and competent for this responsibility; and

(ii) have the authority to issue directives for the purpose of maintaining
the health and safety of all personnel authorised to enter and/or work
on the Site and to take protective measures to prevent accidents.

Throughout the execution of the Works, the Contractor shall provide whatever
is required by this person to exercise this responsibility and authority.

6.8
Ccmtractor's
Superintendence From the Commencement Date until the issue of the Performance Certificate,
the Contractor shall provide all necessary superintendence to plan, arrange,
direct, manage, inspect, test and monitor the execution of the Works.

Superintendence shall be given by a sufficient number of persons:

(a) who are fluent in or have adequate knowledge of the language for
communications (defined in Sub-Clause 1 .4 [Law and Language]); and
(b) who have adequate knowledge of the operations to be carried out
(including the methods and techniques required, the hazards likely to
be encountered and methods of preventing accidents),

for the satisfactory and safe execution of the Works.

General Conditions © FIDIC 2017
43
 5.9
Coni:rnctor's Personnel The Contractor's Personnel (including Key Personnel, if any) shall be
appropriately qualified, skilled, experienced and competent in their respective
trades or occupations.

The Engineer may require the Contractor to remove (or cause to be removed)
any person employed on the Site or Works, including the Contractor's
Representative and Key Personnel (if any), who:

(a) persists in any misconduct or lack of care;

(b) carries out duties incompetently or negligently;
(c) fails to comply with any provision of the Contract;
(d) persists in any conduct which is prejudicial to safety, health, or the
protection of the environment;
~
a::
(e) is found, based on reasonable evidence, to have engaged in corrupt,
(.) fraudulent, collusive or coercive practice; or
I..•..
(t) has been recruited from the Employer's Personnel in breach of
Sub-Clause 6.3 [Recruitment ofPersons].

If appropriate, the Contractor shall then promptly appoint (or cause to be

appointed) a suitable replacement. In the case of the replacement of the
Contractor's Representative, Sub-Clause 4.3 [Contractor's Representative]
shall apply. In the case of the replacement of Key Personnel (if any),
Sub-Clause 6.12 [Key Personne~ shall apply.

6.10
Unless otherwise proposed by the Contractor and agreed by the Engineer,
in each progress report under Sub-Clause 4.20 [Progress Reports], the
Contractor shall include records of:

(a) occupations and actual working hours of each class of Contractor's

Personnel;
(b) the type and actual working hours of each of the Contractor's
Equipment;
(c) the types of Temporary Works used;
(d) the types of Plant installed in the Permanent Works; and
(e) the quantities and types of Materials used
for each work activity shown in the Programme, at each work location and
for each day of work.

6.11
Disorderly Conduct The Contractor shall at all times take all necessary precautions to prevent
any unlawful, riotous or disorderly conduct by or amongst the Contractor's
Personnel, and to preserve peace and protection of persons and property
on and near the Site.

6.12
Key Personnel If no Key Personnel are specified in the Employer's Requirements this
Sub-Clause shall not apply.

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

44 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 subsequently revoked, the Contractor shall similarly submit the name and
particulars of a suitable replacement for such position.

If the Engineer does not respond within 14 days after receiving any such
submission, by giving a Notice stating his/her objection to the appointment
of such person (or replacement) with reasons, the Engineer shall be deemed
to have given his/her consent.

The Contractor shall not, without the Engineer's prior consent, revoke the
appointment of any of the Key Personnel or appoint a replacement (unless
the person is unable to act as a result of death, illness, disability or resignation,
in which case the appointment shall be deemed to have been revoked with
immediate effect and the appointment of a replacement shall be treated as
a temporary appointment until the Engineer gives his/her consent to this
replacement, or another replacement is appointed, under this Sub-Clause).

All Key Personnel shall be based at the Site (or, where Works are being
~
1...,,/
l.L

executed off the Site, at the location of the Works) for the whole time that the
Works are being executed. If any of the Key Personnel is to be temporarily
absent during execution of the Works, a suitable replacement shall be
temporarily appointed, subject to the Engineer's prior consent.

All Key Personnel shall be fluent in the language for communications defined
in Sub-Clause 1.4 [Law and Language].

, Materials and Workmanship

7.1
Manner
of Execution The Contractor shall carry out the manufacture, supply, installation, testing
and commissioning and/or repair of Plant, the production, manufacture,
supply and testing of Materials, and all other operations and activities during
the execution of the Works:

(a) in the manner (if any) specified in the Contract;

(b) in a proper workmanlike and careful manner, in accordance with
recognised good practice; and
(c) with properly equipped facilities and non-hazardous Materials, except
as otherwise specified in the Contract.

7.2
Samples The Contractor shall submit the following samples of Materials, and relevant
information, to the Engineer for consent prior to using the Materials in or for
the Works:

(a) manufacturer's standard samples of Materials and samples specified

in the Contract, all at the Contractor's cost; and
(b) additional samples instructed by the Engineer as a Variation.

Each sample shall be labelled as to origin and intended use in the Works.

7.3
Inspection The Employer's Personnel shall, during all the normal working hours stated
in the Contract Data and at all other reasonable times:

General Conditions © FIDIC 2017

45
 (a) have full access to all parts of the Site and to all places from which
natural Materials are being obtained;
(b) during production, manufacture and construction (at the Site and
elsewhere), be entitled to:
(i) examine, inspect, measure and test (to the extent stated in the
Employer's Requirements) the Materials, Plant and workmanship,
(ii) check the progress of manufacture of Plant and production and
manufacture of Materials, and
(iii) make records (including photographs and/or video recordings);
and
(c) carry out other duties and inspections, as specified in these Conditions
and the Employer's Requirements.

The Contractor shall give the Employer's Personnel full opportunity to carry
out these activities, including providing safe access, facilities, permissions
and safety equipment.

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 Employer's Personnel
shall then either carry out the examination, inspection, measurement or
testing without unreasonable delay, or the Engineer shall promptly give a
Notice to the Contractor that the Employer's Personnel do not require to do
so. If the Engineer gives no such Notice and/or the Employer's Personnel do
not attend at the time stated in the Contractor's Notice (or such time as may
be agreed with the Contractor), the Contractor may proceed with covering
up, putting out of sight or packaging for storage or transport.

If the Contractor fails to give a Notice in accordance with this Sub-Clause,

the Contractor shall, if and when required by the Engineer, uncover the work
and thereafter reinstate and make good, all at the Contractor's risk and cost.

Testing by the Contractor This Sub-Clause shall apply to all tests specified in the Contract, other than
the Tests after Completion (if any).

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. All apparatus, equipment and instruments shall
be calibrated in accordance with the standards specified in the Employer's
Requirements or defined by applicable Laws and, if requested by the
Engineer, the Contractor shall submit calibration certificates before carrying
out testing.

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.
This Notice shall be given in reasonable time, having regard to the location
of the testing, for the Employer's Personnel to attend.

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.

46 ©FIDIC 2017 Conditions of Contract for Plant and Design-Build

 The Engineer shall give a Notice to the Contractor of not less than 72 hours
of his/her intention to attend the tests. If the Engineer does not attend at
the time and place stated in the Contractor's Notice under this Sub-Clause,
the Contractor may proceed with the tests, unless otherwise instructed
by the Engineer, which tests shall then be deemed to have been made in
the Engineer's presence. If the Contractor suffers delay and/or incurs Cost
from complying with any such instruction or as a result of a delay for which
the Employer is responsible, the Contractor shall be entitled subject to Ii.I
n
Sub-Clause 20.2 [Claims For Payment and/or E01] to EOT and/or payment :Z:
~'..\
of Cost Plus Profit. !.... I

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 20.2 [Claims For Payment
and/or E01] to payment of these costs by the Contractor.

The Contractor shall promptly forward to the Engineer duly certified reports
of the tests. When the specified tests have been passed, the Engineer shall
endorse the Contractor's test certificate, or issue a test certificate to the
Contractor, to that effect. If the Engineer has not attended the tests, he/she
shall be deemed to have accepted the readings as accurate.

Sub-Clause 7.5 [Defects and Rejection] shall apply in the event that any
Plant, Materials and other parts of the Works fails to pass a specified test.

"l.5
Defects and Rejection If, as a result of an examination, inspection, measurement or testing, any
Plant, Materials, design or workmanship is found to be defective or otherwise
not in accordance with the Contract, the Engineer shall give a Notice to the
Contractor describing the item of Plant, Materials, design or workmanship
that has been found to be defective. The Contractor shall then promptly
prepare and submit a proposal for necessary remedial work.

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 Engineer gives
no such Notice within 14 days after receiving the Contractor's proposal (or
revised proposal), the Engineer shall be deemed to have given a Notice of
No-objection.

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:

(a) instruct the Contractor under sub-paragraph (a) and/or (b) of

Sub-Clause 7.6 [Remedial Work]; or
(b) reject the design, Plant, Materials or workmanship by giving a Notice
to the Contractor, with reasons, in which case sub-paragraph (a) of
Sub-Clause 11 .4 [Failure to Remedy Defects] shall apply.

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 7.4 [Testing by the Contractor]
at the Contractor's risk and cost. If the rejection and retesting cause the
Employer to incur additional costs, the Employer shall be entitled subject

General Conditions © FIDIC 2017

47
 to Sub-Clause 20.2 [Claims For Payment and/or E01] to payment of these
costs by the Contractor.

Remedial Work In addition to any previous examination, inspection, measurement or testing,

or test certificate or Notice of No-objection by the Engineer, at any time
before the issue of the Taking-Over Certificate for the Works the Engineer
may instruct the Contractor to:

(a) repair or remedy (if necessary, off the Site), or remove from the Site
and replace any Plant or Materials which are not in accordance with
the Contract;
(b) repair or remedy, or remove and re-execute, any other work which is
not in accordance with the Contract; and
(c) carry out any remedial work which is urgently required for the safety
~
er:
(),
of the Works, whether because of an accident, unforeseeable event
or otherwise.

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:

(i) any act by the Employer or the Employer's Personnel. If the Contractor
suffers delay and/or incurs Cost in carrying out such work, the Contractor
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
E01] to EOT and/or payment of such Cost Plus Profit; or
(ii) an Exceptional Event, in which case Sub-Clause 18.4 [Consequences
of an Exceptional Event] shall apply.

If the Contractor fails to comply with the Engineer's instruction, the Employer
may (at the Employer's sole discretion) employ and pay other persons to
carry out the work. 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 20.2 [Claims For Payment and/or
E01] to payment by the Contractor of all costs arising from this failure. This
entitlement shall be without prejudice to any other rights the Employer may
have, under the Contract or otherwise.

7.7
Ownership of Plant
and Materials Each item of Plant and Materials shall, to the extent consistent with the
mandatory requirements of the Laws of the Country, become the property of
the Employer at whichever is the earlier of the following times, free from liens
and other encumbrances:

(a) when it is delivered to the Site;

(b) when the Contractor is paid the value of the Plant and Materials under
Sub-Clause 8.11 [Payment for Plant and Materials after Employer's
Suspension]; or
(c) when the Contractor is paid the amount determined for the Plant and
Materials under Sub-Clause 14.5 [Plant and Materials intended for the
Works].

48 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

7.B
Royalties Unless otherwise stated in the Employer's Requirements, the Contractor
shall pay all royalties, rents and other payments for:

(a) natural Materials obtained from outside the Site; and

(b) the disposal of material from demolitions and excavations and of other
surplus material (whether natural or man-made), except to the extent
that disposal areas within the Site are specified in the Employer's
Requirements.

encement, Delays and Suspension

8.1
Commencement of Works The Engineer shall give a Notice to the Contractor stating the Commencement
Date, not less than 14 days before the Commencement Date. 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.

8.2
Time for coml'.J•letmn The Contractor shall complete the whole of the Works, and each Section (if any),
within the Time for Completion for the Works or Section (as the case may be),
including completion of all work which is stated in the Contract as being required
for the Works or Section to be considered to be completed for the purposes of
taking over under Sub-Clause 10.1 [Taking Over the Works and Sections].

8.3
Programme The Contractor shall submit an initial programme for the execution of the Works
to the Engineer within 28 days after receiving the Notice under Sub-Clause
8.1 [Commencement of Works]. This programme shall be prepared using
programming software stated in the Employer's Requirements (if not stated,
the programming software acceptable to the Engineer). The Contractor
shall also submit a revised programme which accurately reflects the actual
progress of the Works, whenever any programme ceases to reflect actual
progress or is otherwise inconsistent with the Contractor's obligations.

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:

(a) the Commencement Date and the Time for Completion, of the Works
and of each Section (if any);
(b) the date right of access to and possession of (each part o~ the Site
is to be given to the Contractor in accordance with the time (or times)
stated in the Contract Data. If not so stated, the dates the Contractor
requires the Employer to give right of access to and possession of
(each part o~ the Site;
(c) the order in which the Contractor intends to carry out the Works,
including the anticipated timing of each stage of design, preparation
and submission of Contractor's Documents, procurement, manufacture,
inspection, delivery to Site, construction, erection, installation, work to be
undertaken by any nominated Subcontractor (as defined in Clause 4.5
[Nominated Subcontractors]), testing, commissioning and trial operation;

General Conditions © FIDIC 2017

49
 (d) the Review periods under Sub-Clause 5.2.2 [Review by Engineer],
and periods for Review for any other submissions specified in the
Employer's Requirements or required under these Conditions;
(e) the sequence and timing of inspections and tests specified in, or
required by, the Contract;
(f) for a revised programme: the sequence and timing of the remedial
work (if any) to which the Engineer has given a Notice of No-objection
w
()
under Sub-Clause 7.5 [Defects and Rejection] and/or the remedial
~-
/.... work (if any) instructed under Sub-Clause 7 .6 [Remedial Work];
(§
:::::; (g) all activities (to the level of detail specified in the Employer's
G Requirements), logically linked and showing the earliest and latest
start and finish dates for each activity, the float (if any), and the critical
path(s);
(h) the dates of all locally recognised days of rest and holiday periods (if
(J)
:? any);
cc
'~.)
!..\ ..
(i) all key delivery dates of Plant and Materials;
G) for a revised programme and for each activity: the actual progress
to date, any delay to such progress and the effects of such delay on
other activities (if any); and
(k) a supporting report which includes:
(i) a description of all the major stages of the execution of the
Works;
(ii) a general description of the methods which the Contractor
intends to adopt in the execution of the Works;
(iii) details showing the Contractor's reasonable estimate of the
number of each class of Contractor's Personnel, and of each
type of Contractor's Equipment, required on the Site, for each
major stage of the execution of the Works;
(iv) if a revised programme, identification of any significant change(s)
to the previous programme submitted by the Contractor; and
(v) the Contractor's proposals to overcome the effects of any delay(s)
on progress of the Works.

The Engineer shall Review the initial programme and each revised programme
submitted by the Contractor and may give a Notice to the Contractor stating
the extent to which it does not comply with the Contract or ceases to reflect
actual progress or is otherwise inconsistent with the Contractor's obligations.
If the Engineer gives no such Notice:

within 21 days after receiving the initial programme; or

within 14 days after receiving a revised programme,
the Engineer shall be deemed to have given a Notice of No-objection and
the initial programme or revised programme (as the case may be) shall be
the Programme.

The Contractor shall proceed in accordance with the Programme, subject to the
Contractor's other obligations under the Contract. The Employer's Personnel
shall be entitled to rely on the Programme when planning their activities.

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

©FIDIC 2017
50 Conditions of Contract for Plant and Design-Build
 to reflect actual progress or is otherwise inconsistent with the Contractor's
obligations, the Contractor shall within 14 days after receiving this Notice
submit a revised programme to the Engineer in accordance with this
Sub-Clause.

Advance Warning Each Party shall advise the other and the Engineer, and the Engineer shall
advise the Parties, in advance of any known or probable future events or
circumstances which may:
5
(a) adversely affect the work of the Contractor's Personnel; CJ

(b) adversely affect the performance of the Works when completed;

(c) increase the Contract Price; and/or
(d) delay the execution of the Works or a Section (if any).

The Engineer may request the Contractor to submit a proposal under

Sub-Clause 13.3.2 [Variation by Request for Proposa~ to avoid or minimise
the effects of such event(s) or circumstance(s).

8.5
Extension of Time
for Completion The Contractor shall be entitled subject to Sub-Clause 20.2 [Claims
For Payment and/or E01] to Extension of Time if and to the extent that
completion for the purposes of Sub-Clause 10.1 [Taking Over the Works and
Sections] is or will be delayed by any of the following causes:

(a) a Variation (except that there shall be no requirement to comply with

Sub-Clause 20.2 [Claims For Payment and/or E01]);
(b) a cause of delay giving an entitlement to EOT under a Sub-Clause of
these Conditions;
(c) exceptionally adverse climatic conditions, which for the purpose
of these Conditions shall mean adverse climatic conditions at the
Site which are Unforeseeable having regard to climatic data made
available by the Employer under Sub-Clause 2.5 [Site Data and Items
of Reference] and/or climatic data published in the Country for the
geographical location of the Site;
(d) Unforeseeable shortages in the availability of personnel or Goods
(or Employer-Supplied Materials, if any) caused by epidemic or
governmental actions; or
(e) any delay, impediment or prevention caused by or attributable to
the Employer, the Employer's Personnel, or the Employer's other
contractors on the Site.

When determining each EOT under Sub-Clause 20.2 [Claims For Payment
and/or E01], the Engineer shall review previous determinations under
Sub-Clause 3.7 [Agreement or Determination] and may increase, but shall
not decrease, the total EOT.

If a delay caused by a matter which is the Employer's responsibility

is concurrent with a delay caused by a matter which is the Contractor's
responsibility, the Contractor's entitlement to EOT shall be assessed in
accordance with the rules and procedures stated in the Special Provisions (if
not stated, as appropriate taking due regard of all relevant circumstances).

General Conditions © FIDIC 2017

51
 8.6
Caused
If:

(a) the Contractor has diligently followed the procedures laid down by the
relevant legally constituted public authorities or private utility entities in
the Country;
~-.i
(b} these authorities or entities delay or disrupt the Contractor's work;
z
<:
and
C:~ (c) the delay or disruption was Unforeseeable,
=
('.)
then this delay or disruption will be considered as a cause of delay under
sub-paragraph (b) of Sub-Clause 8.5 [Extension of Time for Completion].

8.7
Rate of Progress If, at any time:

(a) actual progress is too slow to complete the Works or a Section (if any)
within the relevant Time for Completion; and/or
(b} progress has fallen (or will fall) behind the Programme (or the initial
programme if it has not yet become the Programme) under Sub-Clause
8.3 [Programme],
other than as a result of a cause listed in Sub-Clause 8.5 [Extension of Time
for Completion], then the Engineer may instruct the Contractor to submit,
under Sub-Clause 8.3 [Programme], a revised programme describing
the revised methods which the Contractor proposes to adopt in order to
expedite progress and complete the Works or a Section (if any) within the
relevant Time for Completion.

Unless the Engineer gives a Notice to the Contractor stating otherwise, the
Contractor shall adopt these revised methods, which may require increases
in the working hours and/or in the numbers of Contractor's Personnel and/or
the Goods, at the Contractor's risk and cost. If these revised methods cause
the Employer to incur additional costs, the Employer shall be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these
costs by the Contractor, in addition to Delay Damages (if any).

Sub-Clause 13.3.1 [Variation by Instruction] shall apply to revised methods,

including acceleration measures, instructed by the Engineer to reduce
delays resulting from causes listed under Sub-Clause 8.5 [Extension of Time
for Completion].

8.8
Delay Damages If the Contractor fails to comply with Sub-Clause 8.2 [Time for Completion],
the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or EOT] to payment of Delay Damages by the Contractor for
this default. 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 Delay Damages shall be the only damages due from the Contractor for
the Contractor's failure to comply with Sub-Clause 8.2 [Time for Completion],
other than in the event of termination under Sub-Clause 15.2 [Termination for
Contractor's Default] before completion of the Works. These Delay Damages
shall not relieve the Contractor from the obligation to complete the Works,

52 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 or from any other duties, obligations or responsibilities which the Contractor
may have under or in connection with the Contract.

This Sub-Clause shall not limit the Contractor's liability for Delay Damages
in any case of fraud, gross negligence, deliberate default or reckless
misconduct by the Contractor.

8.9 I.'..'

Employer's Suspension The Engineer may at any time instruct the Contractor to suspend progress ~
'.::3
of part or all of the Works, which instruction shall state the date and cause
of the suspension.

During such suspension, the Contractor shall protect, store and secure such part
or all of the Works (as the case may be) against any deterioration, loss or damage.
i.JJ

To the extent that the cause of such suspension is the responsibility of the 1¥
Contractor, Sub-Clauses 8. 10 [Consequences of Employer's Suspension], 9
8.11 [Payment for Plant and Materials after Employer's Suspension] and
8. 12 [Prolonged Suspension] shall not apply.

8.10
Consequences of
Employer's Suspension If the Contractor suffers delay and/or incurs Cost from complying with an
Engineer's instruction under Sub-Clause 8.9 [Employer's Suspension] and/
or from resuming the work under Sub-Clause 8. 13 [Resumption of Work],
the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or E07] to EQT and/or payment of such Cost Plus Profit.

The Contractor shall not be entitled to EQT, or to payment of the Cost

incurred, in making good:

(a) the consequences of the Contractor's faulty or defective design,

workmanship, Plant or Materials; and/or
(b) any deterioration, loss or damage caused by the Contractor's failure
to protect, store or secure in accordance with Sub-Clause 8.9
[Employer's Suspension].

8.11
Payment for Plant and Materials
after Employer's Suspension The Contractor shall be entitled to payment of the value (as at the date of
suspension instructed under Sub-Clause 8.9 [Employer's Suspension]) of
Plant and/or Materials which have not been delivered to Site, if:

(a) the work on Plant, or delivery of Plant and/or Materials, has been
suspended for more than 28 days and
(i) the Plant and/or Materials were scheduled, in accordance with
the Programme, to have been completed and ready for delivery
to the Site during the suspension period; and
(ii) the Contractor provides the Engineer with reasonable evidence
that the Plant and/or Materials comply with the Contract; and
(b) the Contractor has marked the Plant and/or Materials as the
Employer's property in accordance with the Engineer's instructions.

8.12
Prolonged Suspension If the suspension under Sub-Clause 8.9 [Employer's Suspension] has
continued for more than 84 days, the Contractor may give a Notice to the
Engineer requesting permission to proceed.

General Conditions © FIDIC 2017

53
 If the Engineer does not give a Notice under Sub-Clause 8.13 [Resumption
of Work] within 28 days after receiving the Contractor's Notice under this
Sub-Clause, the Contractor may either:

(a) agree to a further suspension, in which case the Parties may agree
the EOT and/or Cost Plus Profit (if the Contractor incurs Cost), and/or
payment for suspended Plant and/or Materials, arising from the total
period of suspension;
or (and if the Parties fail to reach agreement under this sub-paragraph (a))

(b) after giving a (second) Notice to the Engineer, treat the suspension
as an omission of the affected part of the Works (as if it had been
instructed under Sub-Clause 13.3.1 [Variation by Instruction])
with immediate effect including release from any further obligation
to protect, store and secure under Sub-Clause 8.9 [Employer's
Suspension]. If the suspension affects the whole of the Works, the
Contractor may give a Notice of termination under Sub-Clause 16.2
[Termination by Contractor].

8.13
Resumption of Worrk The Contractor shall resume work as soon as practicable after receiving a
Notice from the Engineer to proceed with the suspended work.

At the time stated in this Notice (if not stated, immediately after the Contractor
receives this Notice), the Contractor and the Engineer shall jointly examine
the Works and the Plant and Materials affected by the suspension. The
Engineer shall record any deterioration, loss, damage or defect in the Works
or Plant or Materials which has occurred during the suspension and shall
provide this record to the Contractor. The Contractor shall promptly make
good all such deterioration, loss, damage or defect so that the Works, when
completed, shall comply with the Contract.

n Completion
9.1
Contractor's Obligations The Contractor shall carry out the Tests on Completion in accordance with
this Clause and Sub-Clause 7 .4 [Testing by the Contractor], after submitting
the documents under Sub-Clause 5.6 [As-Built Records] and Sub-Clause
5.7 [Operation and Maintenance Manuals].

The Contractor shall submit to the Engineer, not less than 42 days before
the date the Contractor intends to commence the Tests on Completion,
a detailed test programme showing the intended timing and resources
required for these tests.

The Engineer may Review the proposed test programme and may give a Notice
to the Contractor stating the extent to which it does not comply with the Contract.
Within 14 days after receiving this Notice, the Contractor shall revise the test
programme to rectify such non-compliance. If the Engineer gives no such Notice
within 14 days after receiving the test programme (or revised test programme), the
Engineer shall be deemed to have given a Notice of No-objection. The Contractor
shall not commence the Tests on Completion until a Notice of No-objection is
given (or is deemed to have been given) by the Engineer.

In addition to any date(s) shown in the test programme, the Contractor shall
give a Notice to the Engineer, of not less than 21 days, of the date after which

© FIDIC 2017 Conditions of Contract for Plant and Design-Build

54
 the Contractor will be ready to carry out each of the Tests on Completion.
The Contractor shall commence the Tests on Completion within 14 days
after this date, or on such day or days as the Engineer shall instruct, and
shall proceed in accordance with the Contractor's test programme to which
the Engineer has given (or is deemed to have given) a Notice of No-objection.

Unless otherwise stated in the Employer's Requirements, the Tests on

Completion shall be carried out in stages in the following sequence:

(a) pre-commissioning tests (on or off the Site, as appropriate), which shall
include the appropriate inspections and {"dry" or "cold") functional
tests to demonstrate that each item of the Works or Section can
safely undertake the next stage under sub-paragraph {b) below;
(b) commissioning tests, which shall include the operational tests
specified in the Employer's Requirements to demonstrate that the
Works or Section can be operated safely and as specified in the
Employer's Requirements, under all available operating conditions;
and
(c) trial operation (to the extent possible under available operating
conditions), which shall demonstrate that the Works or Section
perform reliably and in accordance with the Contract.

The tests of each stage described in sub-paragraphs {b) and (c) above shall not
be commenced until the Works or Section have passed the previous stage.

During trial operation, when the Works or Section (as the case may be) are
operating under stable conditions, the Contractor shall give a Notice to the
Engineer that they are ready for any other Tests on Completion, including
performance tests. Performance tests shall be carried out to demonstrate
whether the Works or Section comply with the performance criteria specified in
the Employer's Requirements and with the Schedule of Performance Guarantees.

Trial operation, including performance testing, shall not constitute a taking

over under Clause 10 [Employer's Taking Over].

Any product produced by, and any revenue or other benefit resulting from,
trial operation under this Sub-Clause shall be the property of the Employer.

As soon as the Works or Section have, in the Contractor's opinion, passed

each stage of the Tests on Completion described in sub-paragraphs (a) to
(c) above, the Contractor shall submit a certified report of the results of these
tests to the Engineer. The Engineer shall Review each such report and may
give a Notice to the Contractor stating the extent to which the results of the
tests do not comply with the Contract. If the Engineer does not give such
a Notice within 14 days after receiving the results of the tests, the Engineer
shall be deemed to have given a Notice of No-objection.

In considering the results of the Tests on Completion, the Engineer shall

make allowances for the effect of any use of (any part of) the Works by the
Employer on the performance or other characteristics of the Works.

9.2
Delayed Tests If the Contractor has given a Notice under Sub-Clause 9.1 [Contractor's
Obligations] that the Works or Section (as the case may be) are ready for
Tests on Completion, and these tests are unduly delayed by the Employer's
Personnel or by a cause for which the Employer is responsible, Sub-Clause
10.3 [Interference with Tests on Completion] shall apply.

General Conditions © FIDIC 2017

55
 If the Tests on Completion are unduly delayed by the Contractor, the Engineer
may by giving a Notice to the Contractor require the Contractor to carry
out the tests within 21 days after receiving the Notice. The Contractor shall
carry out the tests on such day or days within this period of 21 days as the
Contractor may fix, for which the Contractor shall give a prior Notice to the
Engineer of not less than 7 days.

If the Contractor fails to carry out the Tests on Completion within this period
of 21 days:

(a) after a second Notice is given by the Engineer to the Contractor, the
Employer's Personnel may proceed with the tests;
(b) the Contractor may attend and witness these tests;
(c) within 28 days of these tests being completed, the Engineer shall
send a copy of the test results to the Contractor; and
(d) if the Employer incurs additional costs as a result of such testing,
the Employer shall be entitled subject to Sub-Clause 20.2 [Claims
For Payment and/or EOT] to payment by the Contractor of the costs
reasonably incurred.

Whether or not the Contractor attends, these Tests on Completion shall be

deemed to have been carried out in the presence of the Contractor and the
results of these tests shall be accepted as accurate.

9.3
Retesting If the Works, or a Section, fail to pass the Tests on Completion, Sub-Clause
7 .5 [Defects and Rejection] shall apply. The Engineer or the Contractor may
require these failed tests, and the Tests on Completion on any related work,
to be repeated under the same terms and conditions. Such repeated tests
shall be treated as Tests on Completion for the purposes of this Clause.

9.4
Failure to Pass Tests
on Completion If the Works, or a Section, fail to pass the Tests on Completion repeated
under Sub-Clause 9.3 [Retesting], the Engineer shall be entitled to:

(a) order further repetition of Tests on Completion under Sub-Clause 9.3

[Retesting];
(b) reject the Works if the effect of the failure is to deprive the Employer
of substantially the whole benefit of the Works, in which event
the Employer shall have the same remedies as are provided in
sub-paragraph (d) of Sub-Clause 11 .4 [Failure to Remedy Defects];
(c) reject the Section if the effect of the failure is that the Section cannot
be used for its intended purpose(s) under the Contract, in which
event the Employer shall have the same remedy as is provided in
sub-paragraph (c) of Sub-Clause 11 .4 [Failure to Remedy Defects]; or
(d) issue a Taking-Over Certificate, if the Employer so requests.

In the event of sub-paragraph (d) above, the Contractor shall then proceed in
accordance with all other obligations under the Contract, and the Employer
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EOT] to payment by the Contractor or a reduction in the Contract Price as
described under sub-paragraphs (b)(i) or (b)(ii) of Sub-Clause 11 .4 [Failure to
Remedy Defects], respectively. This entitlement shall be without prejudice to
any other rights the Employer may have, under the Contract or otherwise.

56 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 Taking Over
10.1
Taking Over the
Works and Sections Except as stated in Sub-Clause 9.4 [Failure to Pass Tests on Completion],
Sub-Clause 10.2 [Taking Over Parts] and Sub-Clause 10.3 [Interference with
Tests on Completion], the Works shall be taken over by the Employer when:

(a) the Works have been completed in accordance with the Contract,
including the passing of the Tests on Completion and except as
allowed in sub-paragraph (i) below;
(b) the Engineer has given (or is deemed to have given) a Notice of
No-objection to the as-built records submitted under sub-paragraph
(a) of Sub-Clause 5.6 [As-Built Records];
(c) the Engineer has given (or is deemed to have given) a Notice of
No-objection to the provisional O&M Manuals for the Works submitted
under Sub-Clause 5.7 [Operation and Maintenance Manuals];
(d) the Contractor has carried out the training (if any) as described under
Sub-Clause 5.5 [Training]; and
(e) a Taking-Over Certificate for the Works has been issued, or is deemed
to have been issued in accordance with this Sub-Clause.

The Contractor may apply for a Taking-Over Certificate by giving a Notice to

the Engineer not more than 14 days before the Works will, in the Contractor's
opinion, be complete and ready for taking over. If the Works are divided into
Sections, the Contractor may similarly apply for a Taking-Over Certificate for
each Section.

If any Part of the Works is taken over under Sub-Clause 10.2 [Taking Over
Parts], the remaining Works or Section shall not be taken over until the
conditions described in sub-paragraphs (a) to (e) above have been fulfilled.

The Engineer shall, within 28 days after receiving the Contractor's Notice, either:

(i) issue the Taking-Over Certificate to the Contractor, stating the date
on which the Works or Section were completed in accordance with
the Contract, except for any minor outstanding work and defects (as
listed in the Taking-Over Certificate) which will not substantially affect
the safe use of the Works or Section for their intended purpose (either
until or whilst this work is completed and these defects are remedied);
or
(ii) reject the application by giving a Notice to the Contractor, with
reasons. This Notice shall specify the work required to be done, the
defects required to be remedied and/or the documents required to
be submitted by the Contractor to enable the Taking-Over Certificate
to be issued. The Contractor shall then complete this work, remedy
such defects and/or submit such documents before giving a further
Notice under this Sub-Clause.

If the Engineer does not issue the Taking-Over Certificate or reject the
Contractor's application within this period of 28 days, and if the conditions
described in sub-paragraphs (a) to (d) above have been fulfilled, the Works
or Section shall be deemed to have been completed in accordance with the
Contract on the fourteenth day after the Engineer receives the Contractor's
Notice of application and the Taking-Over Certificate shall be deemed to
have been issued.

General Conditions © FIDIC 2017

57
10.2 .. ··········-····-···· -· ·························································-···············

Over Parts The Engineer may, at the sole discretion of the Employer, issue a Taking-Over
Certificate for any part of the Permanent Works.

The Employer shall not use any part of the Works (other than as a temporary
measure, which is either specified in the Employer's Requirements or with the
prior agreement of the Contractor) unless and until the Engineer has issued a
Taking-Over Certificate for this part. However, if the Employer does use any
part of the Works before the Taking-Over Certificate is issued the Contractor
shall give a Notice to the Engineer identifying such part and describing such
use, and:

(a) that Part shall be deemed to have been taken over by the Employer
as from the date on which it is used;
(b) the Contractor shall cease to be liable for the care of such Part as
from this date, when responsibility shall pass to the Employer; and
(c) the Engineer shall immediately issue a Taking-Over Certificate for this
Part, and any outstanding work to be completed (including Tests
on Completion) and/or defects to be remedied shall be listed in this
certificate.

After the Engineer has issued a Taking-Over Certificate for a Part, the
Contractor shall be given the earliest opportunity to take such steps as
may be necessary to carry out the outstanding work (including Tests on
Completion) and/or remedial work for any defects listed in the certificate.
The Contractor shall carry out these works as soon as practicable and, in
any case, before the expiry date of the relevant DNP.

If the Contractor incurs Cost as a result of the Employer taking over and/
or using a Part, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to payment of such Cost Plus Profit.

If the Engineer issues a Taking-Over Certificate for any part of the Works, or
if the Employer is deemed to have taken over a Part under sub-paragraph (a)
above, for any period of delay after the date under sub-paragraph (a) above,
the Delay Damages for completion of the remainder of the Works shall be
reduced. Similarly, the Delay Damages for the remainder of the Section (if
any) in which this Part is included shall also be reduced. This reduction
shall be calculated as the proportion which the value of the Part (except
the value of any outstanding works and/or defects to be remedied) bears
to the value of the Works or Section (as the case may be) as a whole. The
Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination]
to agree or determine this reduction (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). The provisions of this paragraph
shall only apply to the daily rate of Delay Damages, and shall not affect the
maximum amount of these damages.

10.3
Interference with
Tests on Completion If the Contractor is prevented, for more than 14 days (either a continuous
period, or multiple periods which total more than 14 days), from carrying
out the Tests on Completion by the Employer's Personnel or by a cause for
which the Employer is responsible (including any performance test that is not
possible due to available operating conditions during trial operation):

58 ©FIDIC 2017 Conditions of Contract for Plant and Design-Build

 (a) the Contractor shall give a Notice to the Engineer describing such
prevention;
(b} the Employer shall be deemed to have taken over the Works or Section
(as the case may be) on the date when the Tests on Completion would
otherwise have been completed; and
(c) the Engineer shall immediately issue a Taking-Over Certificate for the
Works or Section (as the case may be).

After the Engineer has issued this Taking-Over Certificate, the Contractor
shall carry out the Tests on Completion as soon as practicable and, in any
case, before the expiry date of the DNP. The Engineer shall give a Notice to
the Contractor, of not less than 14 days, of the date after which the Contractor
may carry out each of the Tests on Completion. Thereafter, Sub-Clause 9.1
[Contractor's Obligations] shall apply.

If the Contractor suffers delay and/or incurs Cost as a result of being

prevented from carrying out the Tests on Completion, the Contractor shall
be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or Eon to
EQT and/or payment of such Cost Plus Profit.

10.4
Surtaces Requiring
Reinstatement Except as otherwise stated in the Taking-Over Certificate, a certificate for a
Section or Part of the Works shall not be deemed to certify completion of
any ground or other surfaces requiring reinstatement.

fter Taking Over

11.i
Completion of Outstanding Work
and Remedying Defects In order that the Works and Contractor's Documents, and each Section and/
or Part, shall be in the condition required by the Contract (fair wear and tear
excepted) by the expiry date of the relevant Defects Notification Period or as
soon as practicable thereafter, the Contractor shall:

(a) complete any work which is outstanding on the relevant Date of

Completion, within the time(s) stated in the Taking-Over Certificate or
such other reasonable time as is instructed by the Engineer; and
(b) execute all work required to remedy defects or damage, of which a
Notice is given to the Contractor by (or on behalf ot) the Employer on
or before the expiry date of the DNP for the Works or Section or Part
(as the case may be}.

If a defect appears or damage occurs during the relevant DNP, a Notice shall
be given to the Contractor accordingly, by (or on behalf ot) the Employer.
Promptly thereafter:

(i) the Contractor and the Employer's Personnel shall jointly inspect the
defect or damage;
(ii) the Contractor shall then prepare and submit a proposal for necessary
remedial work; and
(iii) the second, third and fourth paragraphs of Sub-Clause 7 .5 [Defects
and Rejection] shall apply.

General Conditions © FID\C 2017

59
 11.2
Cost of ...... lm<>.rlU!nN
Defects All work under sub-paragraph (b) of Sub-Clause 11.1 [Completion of
Outstanding Work and Remedying Defects] shall be executed at the risk and
cost of the Contractor, if and to the extent that the work is attributable to:

(a) the design of the Works, other than a part of the design for which the
Employer is responsible (if any);
(_)
z
<f
(b) Plant, Materials or workmanship not being in accordance with the
C.J Contract;
s\:J
(c) improper operation or maintenance which was attributable to matters
for which the Contractor is responsible (under Sub-Clause 5.5
[Training], Sub-Clause 5.6 [As-Built Records] and/or Sub-Clause 5.7
[Operation and Maintenance Manuals] or otherwise); or
(d) failure by the Contractor to comply with any other obligation under the
Contract.

If the Contractor considers that the work is attributable to any other cause,
the Contractor shall promptly give a Notice to the Engineer and the Engineer
shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree
or determine the cause (and, for the purpose of Sub-Clause 3.7.3 [77me
limits], the date of this Notice shall be the date of commencement of the time
limit for agreement under Sub-Clause 3. 7 .3). If it is agreed or determined
that the work is attributable to a cause other than those listed above,
Sub-Clause 13.3.1 [Variation by Instruction] shall apply as if such work had
been instructed by the Engineer.

11.3
Extension of Defects
Notification Period The Employer shall be entitled to an extension of the DNP for the Works, or
a Section or a Part:

(a) if and to the extent that the Works, Section, Part or a major item of
Plant (as the case may be, and after taking over) cannot be used for
the intended purpose(s) by reason of a defect or damage which is
attributable to any of the matters under sub-paragraphs (a) to (d) of
Sub-Clause 11.2 [Cost of Remedying Defects]; and
(b) subject to Sub-Clause 20.2 [Claims For Payment and/or EOT].

However, a DNP shall not be extended by more than a period of two years
after the expiry of the DNP stated in the Contract Data.

If delivery and/or erection of Plant and/or Materials was suspended under

Sub-Clause 8.9 [Employer's Suspension] (other than where the cause of such
suspension is the responsibility of the Contractor) or Sub-Clause 16.1 [Suspension
by Contractor], the Contractor's obligations under this Clause shall not apply to any
defects or damage occurring more than two years after the DNP for the Works, of
which the Plant and/or Materials form part, would otherwise have expired.

11.4
Failure to Remedy Defects If the remedying of any defect or damage under Sub-Clause 11 .1 [Completion
of Outstanding Works and Remedying Defects] is unduly delayed by the
Contractor, a date may be fixed by (or on behalf o~ the Employer, on or by
which the defect or damage is to be remedied. A Notice of this fixed date
shall be given to the Contractor by (or on behalf o~ the Employer, which
Notice shall allow the Contractor reasonable time (taking due regard of all
relevant circumstances) to remedy the defect or damage.

© FIDIC 2017
60 Conditions of Contract for Plant and Design-Build
 If the Contractor fails to remedy the defect or damage by the date stated
in this Notice and this remedial work was to be executed at the cost of
the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the
Employer may (at the Employer's sole discretion):

(a) carry out the work or have the work carried out by others (including
any retesting), in the manner required under the Contract and at the
Contractor's cost, but the Contractor shall have no responsibility for
this work. The Employer shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to payment by the Contractor of the
costs reasonably incurred by the Employer in remedying the defect or
damage;
(b) accept the damaged or defective work, in which case the Employer
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or EOT] to: (f)

(i) payment of Performance Damages by the Contractor in full rr

0
satisfaction of this failure; or l.L

(ii) if there is no Schedule of Performance Guarantees under the

Contract, or no applicable Performance Damages, a reduction
in the Contract Price. The reduction shall be in full satisfaction of
this failure only and shall be in the amount as shall be appropriate
to cover the reduced value to the Employer as a result of this
failure;
(c) require the Engineer to treat any part of the Works which cannot be
used for its intended purpose(s) under the Contract by reason of this
failure as an omission, as if such omission had been instructed under
Sub-Clause 13.3.1 [Variation by Instruction]; or
(d) terminate the Contract as a whole with immediate effect (and
Sub-Clause 15.2 [Termination for Contractor's Default] shall not apply)
if the defect or damage deprives the Employer of substantially the
whole benefit of the Works. The Employer shall then be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to recover from
the Contractor all sums paid for the Works, plus financing charges
and any costs incurred in dismantling the same, clearing the Site and
returning Plant and Materials to the Contractor.

The exercise of discretion by the Employer under sub-paragraph (c) or (d)

above shall be without prejudice to any other rights the Employer may have,
under the Contract or otherwise.

11.5
Remedying of Defective
Work off Site If, during the DNP, the Contractor considers that any defect or damage in
any Plant cannot be remedied expeditiously on the Site the Contractor shall
give a Notice, with reasons, to the Employer requesting consent to remove
the defective or damaged Plant off the Site for the purposes of repair. This
Notice shall clearly identify each item of defective or damaged Plant, and
shall give details of:

(a) the defect or damage to be repaired;

(b) the place to which defective or damaged Plant is to be taken for
repair;
(c) the transportation to be used (and insurance cover for such
transportation);
(d) the proposed inspections and testing off the Site;
(e) the planned duration required before the repaired Plant shall be
returned to the Site; and

General Conditions © FID\C 2017

61
 (f) the planned duration for reinstallation and retesting of the repaired
Plant (under Sub-Clause 7.4 [Testing by the Contractor] and/or
Clause 9 [Tests on Completion] if applicable).

The Contractor shall also provide any further details that the Employer may
reasonably require.

When the Employer gives consent (which consent shall not relieve the
Contractor from any obligation or responsibility under this Clause), the
Contractor may remove from the Site such items of Plant as are defective
or damaged. As a condition of this consent, the Employer may require the
Contractor to increase the amount of the Performance Security by the full
replacement cost of the defective or damaged Plant.

1 i.6
Further Tests after
Remedying Defects Within 7 days of completion of the work of remedying of any defect or
damage, the Contractor shall give a Notice to the Engineer describing the
remedied Works, Section, Part and/or Plant and the proposed repeated tests
(under Clause 9 [Tests on Completion] or Clause 12 [Tests after Completion],
as applicable).

Within 7 days after receiving this Contractor's Notice, the Engineer shall give
a Notice to the Contractor either:

(a) agreeing with such proposed testing; or

(b) instructing the repeated tests that are necessary to demonstrate
that the remedied Works, Section, Part and/or Plant comply with the
Contract.

If the Contractor fails to give such a Notice within the 7 days, the Engineer
may give a Notice to the Contractor, within 14 days after the defect or
damage is remedied, instructing the repeated tests that are necessary to
demonstrate that the remedied Works, Section, Part and/or Plant comply
with the Contract.

All repeated tests under this Sub-Clause shall be carried out in accordance
with the terms applicable to the previous tests, except that they shall be
carried out at the risk and cost of the Party liable, under Sub-Clause 11.2
[Cost of Remedying Defects], for the cost of the remedial work.

11.7
Right of Access
after Taking Over Until the date 28 days after issue of the Performance Certificate, the
Contractor shall have the right of access to all parts of the Works and to
records of the operation, maintenance and performance of the Works,
except as may be inconsistent with the Employer's reasonable security
restrictions.

Whenever the Contractor intends to access any part of the Works or such
records during the relevant DNP:

(a) the Contractor shall request access by giving a Notice to the Employer,
describing the parts of the Works and/or records to be accessed,
the reasons for such access, and the Contractor's preferred date
for access. This Notice shall be given in reasonable time in advance
of the preferred date for access, taking due regard of all relevant
circumstances including the Employer's security restrictions: and

62 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 (b) within 7 days after receiving the Contractor's Notice, the Employer
shall give a Notice to the Contractor either:
(i) stating the Employer's consent to the Contractor's request; or
(ii) proposing reasonable alternative date(s), with reasons. If the
Employer fails to give this Notice within the 7 days, the Employer
shall be deemed to have given consent to the Contractor's
access on the preferred date stated in the Contractor's Notice.

If the Contractor incurs additional Cost as a result of any unreasonable delay

by the Employer in permitting access to the Works or such records by the
Contractor, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to payment of any such Cost Plus Profit.

11.8
Contractor to Search The Contractor shall, if instructed by the Engineer, search for the cause of
any defect, under the direction of the Engineer. The Contractor shall carry
out the search on the date(s) stated in the Engineer's instruction or other
date(s) agreed with the Engineer.

Unless the defect is to be remedied at the cost of the Contractor under

Sub-Clause 11 .2 [Cost of Remedying Defects], the Contractor shall be
entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to
payment of the Cost Plus Profit of the search.

If the Contractor fails to carry out the search in accordance with this
Sub-Clause, the search may be carried out by the Employer's Personnel.
The Contractor shall be given a Notice of the date when such a search will
be carried out and the Contractor may attend at the Contractor's own cost. If
the defect is to be remedied at the cost of the Contractor under Sub-Clause
11.2 [Cost of Remedying Defects], the Employer shall be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the
Contractor of the costs of the search reasonably incurred by the Employer.

11.9
Performance Certificate Performance of the Contractor's obligations under the Contract shall not
be considered to have been completed until the Engineer has issued the
Performance Certificate to the Contractor, stating the date on which the
Contractor fulfilled the Contractor's obligations under the Contract.

The Engineer shall issue the Performance Certificate to the Contractor (with
a copy to the Employer and to the DAAB) within 28 days after the latest of
the expiry dates of the Defects Notification Periods, or as soon thereafter as
the Contractor has:

(a) supplied all the Contractor's Documents, and the Engineer has
given (or is deemed to have given) a Notice of No-objection to the
as-built records under sub-paragraph (b) of Sub-Clause 5.6 [As-Built
Records]; and
(b) completed and tested all the Works (including remedying any defects)
in accordance with the Contract.

If the Engineer fails to issue the Performance Certificate within this period of
28 days, the Performance Certificate shall be deemed to have been issued
on the date 28 days after the date on which it should have been issued, as
required by this Sub-Clause.

Only the Performance Certificate shall be deemed to constitute acceptance

of the Works.

General Conditions © FIDIC 2017

63
11.10
Unfulfilled After the issue of the Performance Certificate, each Party shall remain liable
for the fulfilment of any obligation which remains unperformed at that time.
For the purposes of determining the nature and extent of unperformed
obligations, the Contract shall be deemed to remain in force.

However in relation to Plant, the Contractor shall not be liable for any defects
or damage occurring more than two years after expiry of the DNP for the
Plant except if prohibited by law or in any case of fraud, gross negligence,
deliberate default or reckless misconduct.

'11.11
Clearance o'f Site Promptly after the issue of the Performance Certificate, the Contractor shall:

(a) remove any remaining Contractor's Equipment, surplus material,

wreckage, rubbish and Temporary Works from the Site;
(b) reinstate all parts of the Site which were affected by the Contractor's
activities during the execution of the Works and are not occupied by
the Permanent Works; and
(c) leave the Site and the Works in the condition stated in the Employer's
Requirements (if not stated, in a clean and safe condition).

If the Contractor fails to comply with sub-paragraphs (a), (b) and/or (c) above
within 28 days after the issue of the Performance Certificate, the Employer
may sell (to the extent permitted by applicable Laws) or otherwise dispose
of any remaining items and/or may reinstate and clean the Site (as may be
necessary) at the Contractor's cost.

The Employer shall be entitled subject to Sub-Clause 20.2 [Claims For

Payment and/or E01] to payment by the Contractor of the costs reasonably
incurred in connection with, or attributable to, such sale or disposal and
reinstating and/or cleaning the Site, less an amount equal to the moneys
from the sale (if any).

Completion
12.1
Procedure for Tests
a'fter Completion If Tests after Completion are specified in the Employer's Requirements, this
Clause shall apply.

The Employer shall:

(a) provide all electricity, water, sewage (if applicable), equipment, fuel,
consumables, instruments, labour, materials, and suitably qualified,
experienced and competent staff, as are necessary to carry out the
Tests after Completion efficiently and properly; and
(b) carry out the Tests after Completion in accordance with:
(i) the Employer's Requirements,
(ii) the O&M Manuals to which the Engineer has given (or is deemed
to have been given) a Notice of No-objection, under Sub-Clause
5.7 [Operation and Maintenance Manuals], and
(iii) such guidance as the Contractor may be required to give during
the course of these tests; and
in the presence of such Contractor's Personnel as either Party may
reasonably request.
64 © FIDIC2017 Conditions of Contract for Plant and Design-Build
 The timing of the Tests after Completion shall be as stated in the Employer's
Requirements (if not stated, as soon as is reasonably practicable) after
the Works or Section (as the case may be) have been taken over under
Clause 10 [Employer's Taking Over]. The Engineer shall give a Notice to the
Contractor, of not less than 21 days, of the date on which and place at which
the Tests after Completion will be carried out. This Notice shall also include a
test programme showing the estimated timing for each of such tests. Unless
otherwise agreed with the Contractor, these tests shall be carried out on this
date.

If the Contractor does not attend at the time and place stated in the Engineer's
s
(J
Notice (or otherwise agreed with the Contractor), the Employer may proceed
with the Tests after Completion, which shall be deemed to have been made
in the Contractor's presence, and the Contractor shall be deemed to have
accepted the readings as accurate.

()
The results of the Tests after Completion shall be compiled and evaluated LL

by both Parties. Appropriate account shall be taken of the effect of the

Employer's prior use of the Works.

12.2
Delayed Tests If the Contractor incurs Cost as a result of any unreasonable delay by the
Employer in carrying out the Tests after Completion, the Contractor shall be
entitled subject to Sub-Clause 20.2 [Claims For Payment and/or E01] to
payment of such Cost Plus Profit.

If, for reasons not attributable to the Contractor, a Test after Completion on
the Works or any Section cannot be completed during the DNP (or any other
period agreed by both Parties), then the Works or Section shall be deemed
to have passed this Test after Completion.

12.3
Retesting Subject to Sub-Clause 12.4 [Failure to Pass Tests after Completion], if the
Works, or a Section, fail to pass the Tests after Completion:

(a) sub-paragraph (b) of Sub-Clause 11 .1 [Completion of Outstanding

Work and Remedying Defects] shall apply; and
(b) after remedying any defect or damage, Sub-Clause 11.6 [Further
Tests after Remedying Defects] shall apply.

If and to the extent that this failure and retesting are attributable to any of
the matters listed in sub-paragraphs (a) to (d) of Sub-Clause 11.2 [Cost of
Remedying Defects] and cause the Employer to incur additional costs, the
Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or E01] to payment of these costs by the Contractor.

"12.4
Failure to Pass Tests
after Completion If:

(a) the Works, or a Section, fail to pass any or all of the Tests after
Completion; and
(b) applicable Performance Damages are set out in the Schedule of
Performance Guarantees
the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or E01] to payment of these Performance Damages by the
Contractor in full satisfaction of this failure. If the Contractor pays these

General Conditions © FIDIC 2017

65
 Performance Damages to the Employer during the DNP, then the Works or
Section shall be deemed to have passed these Tests after Completion.

If the Works, or a Section, fail to pass a Test after Completion and, by giving
a Notice to the Employer, the Contractor proposes to make adjustments or
modifications to the Works or such Section (including an item of Plant):

(i) the Contractor may be instructed by a Notice given by the Employer

L.J
.' that right of access to the Works or Section cannot be given until a time
z:E that is convenient to the Employer, which time shall be reasonable;
5
(.) (ii) the Contractor shall remain liable to carry out the adjustments or
modifications and to satisfy this Test, within a reasonable period of
receiving the Notice under sub-paragraph (i) above; and
(iii) if the Contractor does not receive a Notice under sub-paragraph (i)
(j) above during the relevant DNP, the Contractor shall be relieved of the
::? obligation to make such adjustments or modifications and the Works
0 or Section (as the case may be) shall be deemed to have passed this
Test after Completion.

If the Contractor incurs additional Cost as a result of any unreasonable

delay by the Employer in permitting access to the Works or Section by the
Contractor, either to investigate the causes of a failure to pass a Test after
Completion or to carry out any adjustments or modifications, the Contractor
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EQT] to payment of any such Cost Plus Profit.

and Adjustments
13.1
Right to Variations may be initiated by the Engineer under Sub-Clause 13.3 [Variation
Procedure] at any time before the issue of the Taking-Over Certificate for the
Works.

Other than as stated under Sub-Clause 11.4 [Failure to Remedy Defects], a

Variation shall not comprise the omission of any work which is to be carried
out by the Employer or by others unless otherwise agreed by the Parties.

The Contractor shall be bound by each Variation instructed under Sub-Clause

13.3.1 [Variation by Instruction], and shall execute the Variation with due
expedition and without delay, unless the Contractor promptly gives a Notice
to the Engineer stating (with detailed supporting particulars) that:

(a) the varied work was Unforeseeable having regard to the scope and
nature of the Works described in the Employer's Requirements;
(b) the Contractor cannot readily obtain the Goods required for the
Variation;
(c) it will adversely affect the Contractor's ability to comply with
Sub-Clause 4.8 [Health and Safety Obligations] and/or Sub-Clause
4.18 [Protection of the Environment];
(d) it will have an adverse impact on the achievement of the Schedule of
Performance Guarantees; or
(e) it may adversely affect the Contractor's obligation to complete the
Works so that they shall be fit for the purpose(s) for which they are
intended under Sub-Clause 4.1 [Contractor's General Obligations].

© FIDIC 2017
66 Conditions of Contract for Plant and Design-Build
 Promptly after receiving this Notice, the Engineer shall respond by giving a
Notice to the Contractor cancelling, confirming or varying the instruction.
Any instruction so confirmed or varied shall be taken as an instruction under
Sub-Clause 13 .3 .1 [Variation by instruction].

Value Engineering The Contractor may, at any time, submit to the Engineer a written proposal
which (in the Contractor's opinion) will, if adopted:

(a) accelerate completion;

(b) reduce the cost to the Employer of executing, maintaining or operating
the Works;
(c) improve the efficiency or value to the Employer of the completed
Works; or
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(d) otherwise be of benefit to the Employer.
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The proposal shall be prepared at the cost of the Contractor and shall
include the details as stated in sub-paragraphs (a) to (c) of Sub-Clause
13.3.1 [Variation by Instruction].

The Engineer shall, as soon as practicable after receiving such a proposal,

respond by giving a Notice to the Contractor stating his/her consent or
otherwise. The Engineer's consent or otherwise shall be at the sole discretion
of the Employer. The Contractor shall not delay any work while awaiting a
response.

If the Engineer gives his/her consent to the proposal, with or without

comments, the Engineer shall then instruct a Variation. Thereafter:

(i) the Contractor shall submit any further particulars that the Engineer
may reasonably require; and
(ii) then the third paragraph of Sub-Clause 13.3.1 [Variation by Instruction]
shall apply, which shall include consideration by the Engineer of the
sharing (if any) of the benefit, costs and/or delay between the Parties
stated in the Particular Conditions.

13.3
Variation Procedure Subject to Sub-Clause 13.1 [Right to Vary], Variations shall be initiated by the
Engineer in accordance with either of the following procedures:

13.3.1 Variation by Instruction

The Engineer may instruct a Variation by giving a Notice (describing the

required change and stating any requirements for the recording of Costs) to
the Contractor in accordance with Sub-Clause 3.5 [Engineer's Instructions].

The Contractor shall proceed with execution of the Variation and shall, within
28 days (or other period proposed by the Contractor and agreed by the
Engineer) of receiving the Engineer's instruction, submit to the Engineer
detailed particulars including:

(a) a description of the varied work performed or to be performed,

including details of the resources and methods adopted or to be
adopted by the Contractor;
(b) a programme for its execution and the Contractor's proposal for
any necessary modifications (if any) to the Programme according to
Sub-Clause 8.3 [Programme] and to the Time for Completion; and

General Conditions © FIDIC 2017

67
 (c) the Contractor's proposal for adjustment to the Contract Price, with
supporting particulars. Whenever the omission of any work forms part
(or all) of a Variation, and if:
• the Contractor has incurred or will incur cost which, if the work
had not been omitted, would have been deemed to be covered
by a sum forming part of the Accepted Contract Amount; and
• the omission of the work has resulted or will result in this sum not
forming part of the Contract Price
this cost may be included in the Contractor's proposal (and, if so, shall
be clearly identified). If the Parties have agreed to the omission of any
work which is to be carried out by others, the Contractor's proposal
may also include the amount of any loss of profit and other losses and
damages suffered (or to be suffered) by the Contractor as a result of
the omission.
Thereafter, the Contractor shall submit any further particulars that the
Engineer may reasonably require.

The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or

Determination] to agree or determine:

(i) EOT, if any; and/or

(ii) the adjustments to the Contract Price and the Schedule of Payments,
if any
(and, for the purpose of Sub-Clause 3. 7 .3 [77me limits], the date the Engineer
receives the Contractor's submission under this Sub-Clause (including any
requested further particulars) shall be the date of commencement of the
time limit for agreement under Sub-Clause 3.7.3). The Contractor shall be
entitled to such EOT and/or adjustments to the Contract Price, without any
requirement to comply with Sub-Clause 20.2 [Claims For Payment and/or
EOT].

If no Schedule of Rates and Prices is included in the Contract, the adjustments

under sub-paragraph (ii) above shall be derived from the Cost Plus Profit of
executing the work.

If a Schedule of Rates and Prices is included in the Contract, the following

provisions of this Sub-Clause 13.3.1 shall apply to the adjustments under
sub-paragraph (ii) above.

For each item of work forming part (or all) of a Variation, the appropriate rate
or price for the item shall be the rate or price specified tor such item in the
Schedule of Rates and Prices or, if there is no such item, the rate or price
specified for similar work. However, a new rate or price shall be appropriate
for an item of work if no rate or price for this item is specified in the Schedule
of Rates and Prices and no specified rate or price is appropriate because
the item of work is not of similar character, or is not executed under similar
conditions, as any item in the Contract.

Each new rate or price shall be derived from any relevant rates or prices
in the Schedule of Rates and Prices, with reasonable adjustments taking
account of all relevant circumstances. If no rates or prices are relevant for the
derivation of a new rate or price, it shall be derived from the Cost Plus Profit
of executing the work.

Until such time as the adjustments under sub-paragraph (ii) above are
agreed or determined, the Engineer shall assess a provisional rate or price
for the purposes of Interim Payment Certificates.

© FIDIC 2017 Conditions of Contract for Plant and Design-Build

68
 13.3.2 Variation by Reauest for Proposal

The Engineer may request a proposal, before instructing a Variation, by

giving a Notice (describing the proposed change) to the Contractor.

The Contractor shall respond to this Notice as soon as practicable, by either:

(a) submitting a proposal, which shall include the matters as described

in sub-paragraphs (a) to (c) of Sub-Clause 13.3.1 [Variation by
Instruction]; or
(b) giving reasons why the Contractor cannot comply (if this is the case),
by reference to the matters described in sub-paragraphs (a) to (e) of
Sub-Clause 13.1 [Right to Vary].

If the Contractor submits a proposal, the Engineer shall, as soon as (/)

practicable after receiving it, respond by giving a Notice to the Contractor ~

u ..
stating his/her consent or otherwise. The Contractor shall not delay any 0
l.l..

work whilst awaiting a response.

If the Engineer gives consent to the proposal, with or without comments,

the Engineer shall then instruct the Variation. Thereafter, the Contractor shall
submit any further particulars that the Engineer may reasonably require and
the third paragraph of Sub-Clause 13.3.1 [Variation by Instruction] shall
apply.

If the Engineer does not give consent to the proposal, with or without
comments, and if the Contractor has incurred Cost as a result of submitting
it, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or E071 to payment of such Cost.

13.4
Provisional Sums Each Provisional Sum shall only be used, in whole or in part, in accordance
with the Engineer's instructions, and the Contract Price shall be adjusted
accordingly. The total sum paid to the Contractor shall include only such
amounts for the work, supplies or services to which the Provisional Sum
relates, as the Engineer shall have instructed.

For each Provisional Sum, the Engineer may instruct:

(a) work to be executed (including Plant, Materials or services to be

supplied) by the Contractor, and for which adjustments to the
Contract Price and the Schedule of Payments (if any) shall be agreed
or determined under Sub-Clause 13.3.1 [Variation by Instruction];
and/or
(b) Plant, Materials, works or services to be purchased by the Contractor,
from a nominated Subcontractor (as defined in Sub-Clause 4.5
[Nominated Subcontractors]) or otherwise, and for which there shall
be included in the Contract Price:
(i) the actual amounts paid (or due to be paid) by the Contractor;
and
(ii) a sum for overhead charges and profit, calculated as a percentage
of these actual amounts by applying the relevant percentage rate
(if any) stated in the applicable Schedule. If there is no such rate,
the percentage rate stated in the Contract Data shall be applied.

If the Engineer instructs the Contractor under sub-paragraph (a) and/or

(b) above, this instruction may include a requirement for the Contractor to

General Condttions © FIDIC 2017

69
 submit quotations from the Contractor's suppliers and/or subcontractors for
all (or some) of the items of the work to be executed or Plant, Materials,
works or services to be purchased. Thereafter, the Engineer may respond
by giving a Notice either instructing the Contractor to accept one of these
quotations (but such an instruction shall not be taken as an instruction under
Sub-Clause 4.5 [Nominated Subcontractors]) or revoking the instruction. If
the Engineer does not so respond within 7 days of receiving the quotations,
the Contractor shall be entitled to accept any of these quotations at the
Contractor's discretion.

Each Statement that includes a Provisional Sum shall also include all
applicable invoices, vouchers and accounts or receipts in substantiation of
the Provisional Sum.

13.5
Daywork If a Daywork Schedule is not included in the Contract, this Sub-Clause shall
not apply.

For work of a minor or incidental nature, the Engineer may instruct that a
Variation shall be executed on a daywork basis. The work shall then be valued
in accordance with the Daywork Schedule, and the following procedure shall
apply.

Before ordering Goods for such work (other than any Goods priced in the
Daywork Schedule), the Contractor shall submit one or more quotations from
the Contractor's suppliers and/or subcontractors to the Engineer. Thereafter,
the Engineer may instruct the Contractor to accept one of these quotations
(but such an instruction shall not be taken as an instruction under Sub-Clause
4.5 [Nominated Subcontractors]). If the Engineer does not so instruct the
Contractor within 7 days of receiving the quotations, the Contractor shall be
entitled to accept any of these quotations at the Contractor's discretion.

Except for any items for which the Daywork Schedule specifies that payment
is not due, the Contractor shall deliver each day to the Engineer accurate
statements in duplicate (and one electronic copy), which shall include
records (as described under Sub-Clause 6.10 [Contractor's Records]) of the
resources used in executing the previous day's work.

One copy of each statement shall, if correct and agreed, be signed by the
Engineer and promptly returned to the Contractor. If not correct or agreed, the
Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination]
to agree or determine the resources (and, for the purpose of Sub-Clause
3.7.3 [Time limits], the date the works which are the subject of the Variation
under this Sub-Clause are completed by the Contractor shall be the date of
commencement of the time limit for agreement under Sub-Clause 3.7.3).

In the next Statement, the Contractor shall then submit priced statements
of the agreed or determined resources to the Engineer, together with all
applicable invoices, vouchers and accounts or receipts in substantiation of
any Goods used in the daywork (other than Goods priced in the Daywork
Schedule).

Unless otherwise stated in the Daywork Schedule, the rates and prices in
the Daywork Schedule shall be deemed to include taxes, overheads and
profit.

70 © FIDIC2017 Conditions of Contract for Plant and Design-Build

13.6
Adjustments for
Changes in Laws Subject to the following provisions of this Sub-Clause, the Contract Price
shall be adjusted to take account of any increase or decrease in Cost
resulting from a change in:

(a) the Laws of the Country (including the introduction of new Laws and
the repeal or modification of existing Laws);
(b) the judicial or official governmental interpretation or implementation of
the Laws referred to in sub-paragraph (a) above;
(c) any permit, permission, license or approval obtained by the Employer
or the Contractor under sub-paragraph (a) or (b), respectively, of
Sub-Clause 1.13 [Compliance with Laws]; or
(d) the requirements for any permit, permission, licence and/or approval
to be obtained by the Contractor under sub-paragraph (b) of (/)
2
Sub-Clause U 3 [Compliance with Laws], er
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made and/or officially published after the Base Date, which affect the
Contractor in the performance of obligations under the Contract. In
this Sub-Clause "change in Laws" means any of the changes under
sub-paragraphs (a), (b), (c) and/or (d) above.

If the Contractor suffers delay and/or incurs an increase in Cost as a result of

any change in Laws, the Contractor shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or EQT] to EOT and/or payment of such Cost.

If there is a decrease in Cost as a result of any change in Laws, the Employer

shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EOT] to a reduction in the Contract Price.

If any adjustment to the execution of the Works becomes necessary as a

result of any change in Laws:

(i) the Contractor shall promptly give a Notice to the Engineer, or

(ii) the Engineer shall promptly give a Notice to the Contractor (with
detailed supporting particulars).

Thereafter, the Engineer shall either instruct a Variation under Sub-Clause

13.3.1 [Variation by Instruction] or request a proposal under Sub-Clause
13.3.2 [Variation by Request for Proposa~.

13.7
Adjustments for
Changes in Cost If Schedule(s) of cost indexation are not included in the Contract, this
Sub-Clause shall not apply.

The amounts payable to the Contractor shall be adjusted for rises or falls in
the cost of labour, Goods and other inputs to the Works, by the addition or
deduction of the amounts calculated in accordance with the Schedule(s) of
cost indexation.

To the extent that full compensation for any rise or fall in Costs is not covered
by this Sub-Clause or other Clauses of these Conditions, the Accepted
Contract Amount shall be deemed to have included amounts to cover the
contingency of other rises and falls in costs.

The adjustment to be applied to the amount otherwise payable to the

Contractor, as certified in Payment Certificates, shall be calculated for each

General Conditions © FIDIC 2017

71
 of the currencies in which the Contract Price is payable. No adjustment shall
be applied to work valued on the basis of Cost or current prices.

Until such time as each current cost index is available, the Engineer shall use a
provisional index for the issue of Interim Payment Certificates. When a current
cost index is available, the adjustment shall be recalculated accordingly.

If the Contractor fails to complete the Works within the Time for Completion,
adjustment of prices thereafter shall be made using either:

(a) each index or price applicable on the date 49 days before the expiry
of the Time for Completion of the Works; or
(b) the current index or price
whichever is more favourable to the Employer.

Co rice and Payment

14.1
The Contract Price Unless otherwise stated in the Particular Conditions:

(a) the Contract Price shall be the lump sum Accepted Contract Amount
and be subject to adjustments, additions (including Cost or Cost Plus
Profit to which the Contractor is entitled under these Conditions) and/
or deductions in accordance with the Contract;
(b) the Contractor shall pay all taxes, duties and fees required to be paid
by the Contractor under the Contract, and the Contract Price shall not
be adjusted for any of these costs, except as stated in Sub-Clause
13.6 [Adjustments for Changes in Laws];
(c) any quantities which may be set out in a Schedule are estimated
quantities and are not to be taken as the actual and correct quantities
of the Works which the Contractor is required to execute; and
(d) any quantities or price data which may be set out in a Schedule
shall be used for the purposes stated in the Schedule and may be
inapplicable for other purposes.

However, if any part of the Works is to be paid according to quantity

supplied or work done, the provisions for measurement and valuation shall
be as stated in the Particular Conditions. The Contract Price shall be valued
accordingly, subject to adjustments in accordance with the Contract.

14.2
Advance Payment If no amount of advance payment is stated in the Contract Data, this
Sub-Clause shall not apply.

After receiving the Advance Payment Certificate, the Employer shall make an
advance payment, as an interest-free loan for mobilisation and design. The
amount of the advance payment and the currencies in which it is to be paid
shall be as stated in the Contract Data.

14.2.1 Advance Payment Guarantee

The Contractor shall obtain (at the Contractor's cost) an Advance Payment
Guarantee in amounts and currencies equal to the advance payment, and
shall submit it to the Employer with a copy to the Engineer. This guarantee
shall be issued by an entity and from within a country (or other jurisdiction) to

© FIDIC 2017
72 Conditions of Contract for Plant and Design-Build
 which the Employer gives consent, and shall be based on the sample form
included in the tender documents or on another form agreed by the Employer
(but such consent and/or agreement shall not relieve the Contractor from
any obligation under this Sub-Clause).

The Contractor shall ensure that the Advance Payment Guarantee is valid
and enforceable until the advance payment has been repaid, but its amount
may be progressively reduced by the amount repaid by the Contractor as
stated in the Payment Certificates.

If the terms of the Advance Payment Guarantee specify its expiry date, and
the advance payment has not been repaid by the date 28 days before the
expiry date:

(a) the Contractor shall extend the validity of this guarantee until the
(!)
advance payment has been repaid; ~
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(b) the Contractor shall immediately submit evidence of this extension to U ..

the Employer, with a copy to the Engineer; and

(c) if the Employer does not receive this evidence 7 days before the
expiry date of this guarantee, the Employer shall be entitled to claim
under the guarantee the amount of advance payment which has not
been repaid.

When submitting the Advance Payment Guarantee, the Contractor shall

include an application (in the form of a Statement) for the advance payment.

14.2.2 Advance Payment Certificate

The Engineer shall issue an Advance Payment Certificate for the advance
payment within 14 days after:

(a) the Employer has received both the Performance Security and the
Advance Payment Guarantee, in the form and issued by an entity
in accordance with Sub-Clause 4.2. 1 [Contractor's Obligations] and
Sub-Clause 14.2. 1 [Advance Payment Guarantee] respectively; and
(b) the Engineer has received a copy of the Contractor's application for
the advance payment under Sub-Clause 14.2. 1 [Advance Payment
Guarantee].

14.2.3 Repayment of Advance Payment

The advance payment shall be repaid through percentage deductions in

Payment Certificates. Unless other percentages are stated in the Contract
Data:

(a) deductions shall commence in the IPC in which the total of all certified
interim payments in the same currency as the advance payment
(excluding the advance payment and deductions and release of
retention moneys) exceeds ten percent (10%) of the portion of the
Accepted Contract Amount payable in that currency less Provisional
Sums; and
(b) deductions shall be made at the amortisation rate of one quarter
(25%) of the amount of each IPC (excluding the advance payment
and deductions and release of retention moneys) in the currencies
and proportions of the advance payment, until such time as the
advance payment has been repaid.

General Conditions © FIDIC 2017

73
 If the advance payment has not been repaid before the issue of the
Taking-Over Certificate for the Works, or before termination under Clause
15 [Termination by Employer], Clause 16 [Suspension and Termination by
Contractor] or Clause 18 [Exceptional Events] (as the case may be), the
whole of the balance then outstanding shall immediately become due and
payable by the Contractor to the Employer.

14.3
Application for
interim Payment The Contractor shall submit a Statement to the Engineer after the end of the
period of payment stated in the Contract Data (if not stated, after the end of
each month). Each Statement shall:

(a) be in a form acceptable to the Engineer;

0) (b) be submitted in one paper-original, one electronic copy and additional
::'.?
:;!; paper copies (if any) as stated in the Contract Data; and
j~/
(c) show in detail the amounts to which the Contractor considers that the
Contractor is entitled, with supporting documents which shall include
sufficient detail for the Engineer to investigate these amounts together
with the relevant report on progress in accordance with Sub-Clause
4.20 [Progress Reports].

The Statement shall include the following items, as applicable, which shall be
expressed in the various currencies in which the Contract Price is payable, in
the sequence listed:

(i) the estimated contract value of the Works executed, and the
Contractor's Documents produced, up to the end of the period of
payment (including Variations but excluding items described in
sub-paragraphs (ii) to (x) below);
(ii) any amounts to be added and/or deducted for changes in Laws
under Sub-Clause 13.6 [Adjustments for Changes in Laws], and for
changes in Cost under Sub-Clause 13. 7 [Adjustments for Changes in
Cost];
(iii) any amount to be deducted for retention, calculated by applying the
percentage of retention stated in the Contract Data to the total of the
amounts under sub-paragraphs (i), (ii) and (vi) of this Sub-Clause, until
the amount so retained by the Employer reaches the limit of Retention
Money (if any) stated in the Contract Data;
(iv) any amounts to be added and/or deducted for the advance payment
and repayments under Sub-Clause 14.2 [Advance Payment];
(v) any amounts to be added and/or deducted for Plant and Materials
under Sub-Clause 14.5 [Plant and Materials intended for the Works];
(vi) any other additions and/or deductions which have become due under
the Contract or otherwise, including those under Sub-Clause 3.7
[Agreement or Determination];
(vii) any amounts to be added for Provisional Sums under Sub-Clause
13.4 [Provisional Sums];
(viii) any amount to be added for release of Retention Money under
Sub-Clause 14.9 [Re/ease of Retention Money];
(ix) any amount to be deducted for the Contractor's use of utilities provided
by the Employer under Sub-Clause 4.19 [Temporary Utilities]; and
(x) the deduction of amounts certified in all previous Payment Certificates.

74 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

14.4
Schedule of P:<1•w:n,,,nir'i:: If the Contract includes a Schedule of Payments specifying the instalments
in which the Contract Price will be paid then, unless otherwise stated in this
Schedule:

(a) the instalments quoted in the Schedule of Payments shall be treated

as the estimated contract values for the purposes of sub-paragraph
(i) of Sub-Clause 14.3 [Application for Interim Payment];
(b) Sub-Clause 14.5 [Plant and Materials intended for the Works] shall
not apply; and
(c) if:
(i) these instalments are not defined by reference to the actual
progress achieved in the execution of the Works; and
(ii) actual progress is found by the Engineer to differ from that on
i (/)
which the Schedule of Payments was based,
: if
then the Engineer may proceed under Sub-Clause 3. 7 [Agreement or 0U ..
Determination] to agree or determine revised instalments (and, for the
purpose of Sub-Clause 3.7.3 [77me limits], the date when the difference
under sub-paragraph (ii) above was found by the Engineer shall be the date
of commencement of the time limit for agreement under Sub-Clause 3.7.3).
Such revised instalments shall take account of the extent to which progress
differs from that on which the Schedule of Payments was based.

If the Contract does not include a Schedule of Payments, the Contractor

shall submit non-binding estimates of the payments which the Contractor
expects to become due during each period of 3 months. The first estimate
shall be submitted within 42 days after the Commencement Date. Revised
estimates shall be submitted at intervals of 3 months, until the issue of the
Taking-Over Certificate for the Works.

14.5
Plant and Materials
intended for the Works If no Plant and/or Materials are listed in the Contract Data for payment when
shipped and/or payment when delivered, this Sub-Clause shall not apply.

The Contractor shall include, under sub-paragraph (v) of Sub-Clause 14.3

[Application for Interim Payment]:

an amount to be added for Plant and Materials which have been

shipped or delivered (as the case may be) to the Site for incorporation
in the Permanent Works; and
an amount to be deducted when the contract value of such Plant
and Materials is included as part of the Permanent Works under
sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim
Payment].
The Engineer shall proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determine each amount to be added for Plant
and Materials if the following conditions are fulfilled (and, for the purpose of
Sub-Clause 3.7.3 [Time limits], the date these conditions are fulfilled shall be
the date of commencement of the time limit for agreement under Sub-Clause
3.7.3):

(a) the Contractor has:

(i) kept satisfactory records (including the orders, receipts, Costs
and use of Plant and Materials) which are available for inspection
by the Engineer;

General Conditions © FIDIC 2017

75
 (ii) submitted evidence demonstrating that the Plant and Materials
comply with the Contract (which may include test certificates
under Sub-Clause 7.4 [Testing by the Contractor] and/or
compliance verification documentation under Sub-Clause 4.9.2
[Compliance Verification System]) to the Engineer; and
(iii) submitted a statement of the Cost of acquiring and shipping or
delivering (as the case may be) the Plant and Materials to the
Site, supported by satisfactory evidence;
and either:

(b) the relevant Plant and Materials:

(i) are those listed in the Contract Data for payment when shipped;
(ii) have been shipped to the Country, en route to the Site, in
accordance with the Contract; and
(iii) are described in a clean shipped bill of lading or other evidence
of shipment, which has been submitted to the Engineer together
with:
• evidence of payment of freight and insurance;
• any other documents reasonably required by the Engineer;
and
• a written undertaking by the Contractor that the Contractor
will deliver to the Employer (prior to submitting the next
Statement) a bank guarantee in a form and issued by an
entity to which the Employer gives consent (but such consent
shall not relieve the Contractor from any obligation in the
following provisions of this sub-paragraph), in amounts and
currencies equal to the amount due under this Sub-Clause.
This guarantee shall be in a similar form to the form described
in Sub-Clause 14.2.1 [Advance Payment Guarantee] and
shall be valid until the Plant and Materials are properly stored
on Site and protected against loss, damage or deterioration;
or

(c) the relevant Plant and Materials:

(i) are those listed in the Contract Data for payment when delivered
to the Site, and
(ii) have been delivered to and are properly stored on the Site, are
protected against loss, damage or deterioration, and appear to
be in accordance with the Contract.

The amount so agreed or determined shall take account of the evidence

and documents required under this Sub-Clause and of the contract value
of the Plant and Materials. If sub-paragraph (b) above applies, the Engineer
shall have no obligation to certify any payment under this Sub-Clause
until the Employer has received the bank guarantee in accordance with
sub-paragraph (b)(iii) above. The sum to be certified by the Engineer in an IPC
shall be the equivalent of eighty percent (80%) of this agreed or determined
amount. The currencies for this certified sum shall be the same as those in
which payment will become due when the contract value is included under
sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim Payment]. At
that time, the Payment Certificate shall include the applicable amount to
be deducted which shall be equivalent to, and in the same currencies and
proportions as, this additional amount for the relevant Plant and Materials.

76 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

"l4.6
Issue of lPC No amount will be certified or paid to the Contractor until:

(a) the Employer has received the Performance Security in the form, and
issued by an entity, in accordance with Sub-Clause 4.2.1 [Contractor's
obligations]; and
(b) the Contractor has appointed the Contractor's Representative in
accordance with Sub-Clause 4.3 [Contractor's Representative].

14.6.1 The IPC

The Engineer shall, within 28 days after receiving a Statement and supporting
documents, issue an IPC to the Employer, with a copy to the Contractor:

(a) stating the amount which the Engineer fairly considers to be due; and
(fj
(b) including any additions and/or deductions which have become due . it
under Sub-Clause 3.7 [Agreement or Determination] or under the 0LL
Contract or otherwise,
with detailed supporting particulars (which shall identify any difference
between a certified amount and the corresponding amount in the Statement
and give the reasons for such difference).

14.6.2 Withholding (amounts in) an IPC

Before the issue of the Taking-Over Certificate for the Works, the Engineer
may withhold an IPC in an amount which would (after retention and other
deductions) be less than the minimum amount of IPC (if any) stated in the
Contract Data. In this event, the Engineer shall promptly give a Notice to the
Contractor accordingly.

An IPC shall not be withheld for any other reason, although:

(a) if any thing supplied or work done by the Contractor is not in

accordance with the Contract, the estimated cost of rectification or
replacement may be withheld until rectification or replacement has
been completed;
(b) if the Contractor was or is failing to perform any work, service or
obligation in accordance with the Contract, the value of this work
or obligation may be withheld until the work or obligation has been
performed. In this event, the Engineer shall promptly give a Notice
to the Contractor describing the failure and with detailed supporting
particulars of the value withheld; and/or
(c) if the Engineer finds any significant error or discrepancy in the
Statement or supporting documents, the amount of the IPC may take
account of the extent to which this error or discrepancy has prevented
or prejudiced proper investigation of the amounts in the Statement until
such error or discrepancy is corrected in a subsequent Statement.

For each amount so withheld, in the supporting particulars for the IPC the
Engineer shall detail his/her calculation of the amount and state the reasons
for it being withheld.

14.6.3 Correction or modification

The Engineer may in any Payment Certificate make any correction or

modification that should properly be made to any previous Payment
Certificate. A Payment Certificate shall not be deemed to indicate the

General Conditions © FIDIC 2017

77
 Engineer's acceptance, approval, consent or Notice of No-objection to any
Contractor's Document or to (any part on the Works.

If the Contractor considers that an IPC does not include any amounts to
which the Contractor is entitled, these amounts shall be identified in the next
Statement (the "identified amounts" in this paragraph). The Engineer shall
then make any correction or modification that should properly be made in
the next Payment Certificate. Thereafter, to the extent that:

(a) the Contractor is not satisfied that this next Payment Certificate
includes the identified amounts; and
(b) the identified amounts do not concern a matter for which the
Engineer is already carrying out his/her duties under Sub-Clause 3.7
[Agreement or Determination]
the Contractor may, by giving a Notice, refer this matter to the Engineer
and Sub-Clause 3.7 [Agreement or Determination] shall apply (and, for the
purpose of Sub-Clause 3. 7 .3 [Time limits], the date the Engineer receives this
Notice shall be the date of commencement of the time limit for agreement
under Sub-Clause 3.7.3).

14.7
Payme111t The Employer shall pay to the Contractor:

(a) the amount certified in each Advance Payment Certificate within the
period stated in the Contract Data (if not stated, 21 days) after the
Employer receives the Advance Payment Certificate;
(b) the amount certified in each IPC issued under:
(i) Sub-Clause 14.6 [Issue of /PC], within the period stated in the
Contract Data (if not stated, 56 days) after the Engineer receives
the Statement and supporting documents; or
(ii) Sub-Clause 14.13 [Issue of FPC], within the period stated in the
Contract Data (if not stated, 28 days) after the Employer receives
the IPC; and
(c) the amount certified in the FPC within the period stated in the Contract
Data (if not stated, 56 days) after the Employer receives the FPC.

Payment of the amount due in each currency shall be made into the bank
account, nominated by the Contractor, in the payment country (for this
currency) specified in the Contract.

i4.8 ----------"----~-----

Delayed Payme111t If the Contractor does not receive payment in accordance with Sub-Clause
14. 7 [Payment], the Contractor shall be entitled to receive financing charges
compounded monthly on the amount unpaid during the period of delay.
This period shall be deemed to commence on the expiry of the time for
payment specified in Sub-Clause 14.7 [Payment], irrespective (in the case
of sub-paragraph (b) of Sub-Clause 14.7) of the date on which any IPC is
issued.

Unless otherwise stated in the Contract Data, these financing charges shall
be calculated at the annual rate of three percent (3%) above:

(a) the average bank short-term lending rate to prime borrowers prevailing
for the currency of payment at the place for payment, or
(b) where no such rate exists at that place, the same rate in the country
of the currency of payment, or

78 © FJDJC 2017 Conditions of Contract for Plant and Design-Build

 (c) in the absence of such a rate at either place, the appropriate rate fixed
by the law of the country of the currency of payment.

The Contractor shall by request be entitled to payment of these financing

charges by the Employer without:

(i) the need for the Contractor to submit a Statement or any formal
Notice (including any requirement to comply with Sub-Clause 20.2
[Claims For Payment and/or E071) or certification; and
(ii) prejudice to any other right or remedy.

14.9
Release of
Retention Money After the issue of the Taking-Over Certificate for:

(a) the Works, the Contractor shall include the first half of the Retention
Money in a Statement; or
{b) for a Section, the Contractor shall include the relevant percentage of
the first half of the Retention Money in a Statement.

After the latest of the expiry dates of the Defects Notification Periods,
the Contractor shall include the second half of the Retention Money in a
Statement promptly after such latest date. If a Taking-Over Certificate was
(or was deemed to have been) issued for a Section, the Contractor shall
include the relevant percentage of the second half of the Retention Money in
a Statement promptly after the expiry date of the DNP for the Section.

In the next IPC after the Engineer receives any such Statement, the Engineer
shall certify the release of the corresponding amount of Retention Money.
However, when certifying any release of Retention Money under Sub-Clause
14.6 [Issue of /PC], if any work remains to be executed under Clause
11 [Defects after Taking Over] or Clause 12 [Tests after Completion], the
Engineer shall be entitled to withhold certification of the estimated cost of
this work until it has been executed.

The relevant percentage for each Section shall be the percentage value of
the Section as stated in the Contract Data. If the percentage value of a
Section is not stated in the Contract Data, no percentage of either half of the
Retention Money shall be released under this Sub-Clause in respect of such
Section.

14.10
Stateme11t at Completion Within 84 days after the Date of Completion of the Works, the Contractor
shall submit to the Engineer a Statement at completion with supporting
documents, in accordance with Sub-Clause 14.3 [Application for Interim
Payment], showing:

(a) the value of all work done in accordance with the Contract up to the
Date of Completion of the Works;
b) any further sums which the Contractor considers to be due at the
Date of Completion of the Works; and
(c) an estimate of any other amounts which the Contractor considers
have or will become due after the Date of Completion of the Works,
under the Contract or otherwise. These estimated amounts shall be
shown separately (to those of sub-paragraphs (a) and (b) above) and
shall include estimated amounts for:

General Conditions © FIDIC 2017

79
 (i) Claims for which the Contractor has submitted a Notice under
Sub-Clause 20.2 [Claims For Payment and/or EOT];
(ii) any matter referred to the DAAB under Sub-Clause 21.4
[Obtaining DMB's Decision]; and
(iii) any matter for which a NOD has been given under Sub-Clause
21.4 [Obtaining DMB's Decision].

The Engineer shall then issue an IPC in accordance with Sub-Clause 14.6
[Issue of !PC].

14.11 -------········-···---···----····-·-······-·-·--····----··--·-·--·- ···--·--·····----······-----····-·······-------·--·----------····---------

Final Statement Submission by the Contractor of any Statement under the following
provisions of this Sub-Clause shall not be delayed by reason of any referral
under Sub-Clause 21 .4 [Obtaining DMB's Decision] or any arbitration under
Sub-Clause 21.6 [Arbitration].

14.11 .1 Draft Final Statement

Within 56 days after the issue of the Performance Certificate the Contractor
shall submit to the Engineer a draft final Statement.

This Statement shall:

(a) be in the same form as Statements previously submitted under

Sub-Clause 14.3 [Application for Interim Payment];
(b) be submitted in one paper-original, one electronic copy and additional
paper copies (if any) as stated in the Contract Data; and
(c) show in detail, with supporting documents:
(i) the value of all work done in accordance with the Contract;
(ii) any further sums which the Contractor considers to be due at
the date of the issue of the Performance Certificate, under the
Contract or otherwise; and
(iii) an estimate of any other amounts which the Contractor considers
have or will become due after the issue of the Performance
Certificate, under the Contract or otherwise, including estimated
amounts by reference to the matters described in sub-paragraphs
(c) (i) to (iii) of Sub-Clause 14.10 [Statement at Completion].
These estimated amounts shall be shown separately (to those of
sub-paragraphs (i) and (ii) above).

Except for any amount under sub-paragraph (iii) above, if the Engineer
disagrees with or cannot verify any part of the draft final Statement, the
Engineer shall promptly give a Notice to the Contractor. The Contractor shall
then submit such further information as the Engineer may reasonably require
within the time stated in this Notice, and shall make such changes in the
draft as may be agreed between them.

14.11 .2 Agreed Final Statement

If there are no amounts under sub-paragraph (iii) of Sub-Clause 14.11.1

[Draft Final Statement], the Contractor shall then prepare and submit to
the Engineer the final Statement as agreed (the "Final Statement" in these
Conditions).

80 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 However, if:

(a) there are amounts under sub-paragraph (iii) of Sub-Clause 14.11 .1

[Draft Final Statement]; and/or
(b) following discussions between the Engineer and the Contractor, it
becomes evident that they cannot agree any amount(s) in the draft
final Statement,
the Contractor shall then prepare and submit to the Engineer a Statement
identifying separately: the agreed amounts, the estimated amounts and
the disagreed amount(s) (the "Partially Agreed Final Statement" in these
Conditions).

14.12
Discharge When submitting the Final Statement or the Partially Agreed Final Statement
(as the case may be), the Contractor shall submit a discharge which confirms
that the total of such Statement represents full and final settlement of all
moneys due to the Contractor under or in connection with the Contract.
This discharge may state that the total of the Statement is subject to any
payment that may become due in respect of any Dispute for which a DAAB
proceeding or arbitration is in progress under Sub-Clause 21.6 [Arbitration]
and/or that it becomes effective after the Contractor has received:

(a) full payment of the amount certified in the FPC; and

(b} the Performance Security.

If the Contractor fails to submit this discharge, the discharge shall be deemed
to have been submitted and to have become effective when the conditions
of sub-paragraphs (a) and (b} have been fulfilled.

A discharge under this Sub-Clause shall not affect either Party's liability
or entitlement in respect of any Dispute for which a DAAB proceeding or
arbitration is in progress under Clause 21 [Disputes and Arbitration].

Issue of FPC Within 28 days after receiving the Final Statement or the Partially Agreed
Final Statement (as the case may be), and the discharge under Sub-Clause
14.12 [Discharge], the Engineer shall issue to the Employer (with a copy to
the Contractor}, the Final Payment Certificate which shall state:

(a) the amount which the Engineer fairly considers is finally due, including
any additions and/or deductions which have become due under
Sub-Clause 3. 7 [Agreement or Determination] or under the Contract
or otherwise; and
(b} after giving credit to the Employer for all amounts previously paid by
the Employer and for all sums to which the Employer is entitled, and
after giving credit to the Contractor for all amounts (if any) previously
paid by the Contractor and/or received by the Employer under the
Performance Security, the balance (if any) due from the Employer to
the Contractor or from the Contractor to the Employer, as the case
may be.

If the Contractor has not submitted a draft final Statement within the time
specified under Sub-Clause 14.11 .1 [Draft Final Statement], the Engineer
shall request the Contractor to do so. Thereafter, if the Contractor fails to
submit a draft final Statement within a period of 28 days, the Engineer shall
issue the FPC tor such an amount as the Engineer fairly considers to be due.

General Conditions © FIDIC 2017

81
 If:

(i) the Contractor has submitted a Partially Agreed Final Statement

under Sub-Clause 14.11 .2 [Agreed Final Statement]; or
(ii) no Partially Agreed Final Statement has been submitted by
the Contractor but, to the extent that a draft final Statement
submitted by the Contractor is deemed by the Engineer to be a
Partially Agreed Final Statement
the Engineer shall proceed in accordance with Sub-Clause 14.6 [Issue of
/PC] to issue an IPC.

i4.14
Cessation of
Employer's Liability The Employer shall not be liable to the Contractor for any matter or thing
under or in connection with the Contract or execution of the Works, except
to the extent that the Contractor shall have included an amount expressly for
it in:

(a) the Final Statement or Partially Agreed Final Statement; and

(b) (except for matters or things arising after the issue of the Taking-Over
Certificate for the Works) the Statement under Sub-Clause 14.10
[Statement at Completion].

Unless the Contractor makes or has made a Claim under Sub-Clause 20.2
[Claims For Payment and/or EQT] in respect of an amount or amounts under
the FPC within 56 days of receiving a copy of the FPC, the Contractor shall
be deemed to have accepted the amounts so certified. The Employer shall
then have no further liability to the Contractor, other than to pay the amount
due under the FPC and return the Performance Security to the Contractor.

However, this Sub-Clause shall not limit the Employer's liability under the
Employer's indemnification obligations, or the Employer's liability in any case
of fraud, gross negligence, deliberate default or reckless misconduct by the
Employer.

"14.15
Currencies of Payment The Contract Price shall be paid in the currency or currencies named in the
Contract Data. If more than one currency is so named, payments shall be
made as follows:

(a) if the Accepted Contract Amount was expressed in Local Currency

only or in Foreign Currency only:
(i) the proportions or amounts of the Local and Foreign Currencies,
and the fixed rates of exchange to be used for calculating the
payments, shall 'be as stated in the Contract Data, except as
otherwise agreed by both Parties;
(ii) payments and deductions under Sub-Clause 13.4 [Provisional
Sums] and Sub-Clause 13.6 [Adjustments for Changes in Laws]
shall be made in the applicable currencies and proportions; and
(ii~ other payments and deductions under sub-paragraphs (i) to (iv) of
Sub-Clause 14.3 [Application for Interim Payment] shall be made
in the currencies and proportions specified in sub-paragraph (a)
(i) above;
(b) whenever an adjustment is agreed or determined under Sub-Clause
13.2 [Value Engineering] or Sub-Clause 13.3 [Variation Procedure],
the amount payable in each of the applicable currencies shall be
specified. For this purpose, reference shall be made to the actual or

82 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 expected currency proportions of the Cost of the varied work, and to
the proportions of various currencies specified in sub-paragraph (a)(i)
above;
(c) payment of Delay Damages shall be made in the currencies and
proportions specified in the Contract Data;
(d) payment of Performance Damages shall be made in the currencies
and proportions specified in the Schedule of Performance Guarantees;
LU
(e) other payments to the Employer by the Contractor shall be made in ()
7
the currency in which the sum was expended by the Employer, or in <t
!.J
such currency as may be agreed by both Parties;
(n if any amount payable by the Contractor to the Employer in a
particular currency exceeds the sum payable by the Employer to the
Contractor in that currency, the Employer may recover the balance
of this amount from the sums otherwise payable to the Contractor in
other currencies; and
(g) if no rates of exchange are stated in the Contract Data, they shall be
those prevailing on the Base Date and published by the central bank
of the Country.

n by Employer
15.i
Notice to Correct If the Contractor fails to carry out any obligation under the Contract the
Engineer may, by giving a Notice to the Contractor, require the Contractor
to make good the failure and to remedy it within a specified time ("Notice to
Correct" in these Conditions).

The Notice to Correct shall:

(a) describe the Contractor's failure;

(b) state the Sub-Clause and/or provisions of the Contract under which
the Contractor has the obligation; and
(c) specify the time within which the Contractor shall remedy the failure,
which shall be reasonable, taking due regard of the nature of the
failure and the work and/or other action required to remedy it.

After receiving a Notice to Correct the Contractor shall immediately respond

by giving a Notice to the Engineer describing the measures the Contractor
will take to remedy the failure, and stating the date on which such measures
will be commenced in order to comply with the time specified in the Notice
to Correct.

The time specified in the Notice to Correct shall not imply any extension of
the Time for Completion.

15.2
Termination for
Contractor's Default Termination of the Contract under this Clause shall not prejudice any other
rights of the Employer under the Contract or otherwise.

15.2.1

The Employer shall be entitled to give a Notice (which shall state that it is
given under this Sub-Clause 15.2.1) to the Contractor of the Employer's

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83
 intention to terminate the Contract or, in the case of sub-paragraph (f), (g) or
(h) below a Notice of termination, if the Contractor:

(a) fails to comply with:

(i) a Notice to Correct;
(ii) a binding agreement, or final and binding determination, under
Sub-Clause 3.7 [Agreement or Determination]; or
(iii) a decision of the DAAB under 21.4 [Obtaining DAAB's Decision]
(whether binding or final and binding)
and such failure constitutes a material breach of the Contractor's
obligations under the Contract;
(b) abandons the Works or otherwise plainly demonstrates an intention
not to continue performance of the Contractor's obligations under the
Contract;
(c) without reasonable excuse fails to proceed with the Works in
accordance with Clause 8 [Commencement, Delays and Suspension]
or, if there is a maximum amount of Delay Damages stated in the
Contract Data, the Contractor's failure to comply with Sub-Clause 8.2
[Time for Completion] is such that the Employer would be entitled to
Delay Damages that exceed this maximum amount;
(d) without reasonable excuse fails to comply with a Notice of rejection
given by the Engineer under Sub-Clause 7.5 [Defects and Rejection]
or an Engineer's instruction under Sub-Clause 7.6 [Remedial Work],
within 28 days after receiving it;
(e) fails to comply with Sub-Clause 4.2 [Performance Security];
(f) subcontracts the whole, or any part of, the Works in breach of
Sub-Clause 4.4 [Subcontractors], or assigns the Contract without the
required agreement under Sub-Clause 1.7 [Assignment];
(g) becomes bankrupt or insolvent; goes into liquidation, administration,
reorganisation, winding-up or dissolution; becomes subject to
the appointment of a liquidator, receiver, administrator, manager
or trustee; enters into a composition or arrangement with the
Contractor's creditors; or any act is done or any event occurs which
is analogous to or has a similar effect to any of these acts or events
under applicable Laws;

or if the Contractor is a JV:

(i) any of these matters apply to a member of the JV, and
(ii) the other member(s) do not promptly confirm to the Employer
that, in accordance with Sub-Clause 1.14(a) [Joint and Several
Liability], such member's obligations under the Contract shall be
fulfilled in accordance with the Contract; or
(h) is found, based on reasonable evidence, to have engaged in corrupt,
fraudulent, collusive or coercive practice at any time in relation to the
Works or to the Contract.

15.2.2 Termination

Unless the Contractor remedies the matter described in a Notice given

under Sub-Clause 15.2.1 [Notice] within 14 days of receiving the Notice,
the Employer may by giving a second Notice to the Contractor immediately
terminate the Contract. The date of termination shall be the date the
Contractor receives this second Notice.

84 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 However, in the case of sub-paragraph (f), (g) or (h) of Sub-Clause 15.2.1
[Notice], the Employer may by giving a Notice under Sub-Clause 15.2.1
immediately terminate the Contract and the date of termination shall be the
date the Contractor receives this Notice.

15.2.3 After termination

After termination of the Contract under Sub-Clause 15.2.2 [Termination], the

Contractor shall:

(a) comply immediately with any reasonable instructions included in a

Notice given by the Employer under this Sub-Clause:
(i) for the assignment of any subcontract; and
(ii) for the protection of life or property or for the safety of the Works;
(b) deliver to the Engineer:
(i) any Goods required by the Employer,
(ii) all Contractor's Documents, and
(iii) all other design documents made by or for the Contractor; and
(c) leave the Site and, if the Contractor does not do so, the Employer
shall have the right to expel the Contractor from the Site.

15.2.4 Completion of the Works

After termination under this Sub-Clause, the Employer may complete the
Works and/or arrange for any other entities to do so. The Employer and/or
these entities may then use any Goods, Contractor's Documents and other
design documents made by or on behalf of the Contractor to complete the
Works.

After such completion of the Works, the Employer shall give another Notice
to the Contractor that the Contractor's Equipment and Temporary Works
will be released to the Contractor at or near the Site. The Contractor shall
then promptly arrange their removal, at the risk and cost of the Contractor.
However, if by this time the Contractor has failed to make a payment due to
the Employer, these items may be sold (to the extent permitted by applicable
Laws) by the Employer in order to recover this payment. Any balance of the
proceeds shall then be paid to the Contractor.

15.3
Valuation after Termination
for Contractor's Default After termination of the Contract under Sub-Clause 15.2 [Termination
for Contractor's Default], the Engineer shall proceed under Sub-Clause
3.7 [Agreement or Determination] to agree or determine the value of the
Permanent Works, Goods and Contractor's Documents, and any other
sums due to the Contractor for work executed in accordance with the
Contract (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date
of termination shall be the date of commencement of the time limit for
agreement under Sub-Clause 3.7.3).

This valuation shall include any additions and/or deductions, and the balance
due (if any), by reference to the matters described in sub-paragraphs (a) and
(b) of Sub-Clause 14.13 [Issue of FPC].

This valuation shall not include the value of any Contractor's Documents,
Materials, Plant and Permanent Works to the extent that they do not comply
with the Contract.

General Conditions © FIDIC 2017

85
15.4
after Termination
for Contractor's Default The Employer may withhold payment to the Contractor of the amounts
agreed or determined under Sub-Clause 15.3 [Valuation after Termination for
Contractor's Default] until all the costs, losses and damages (if any) described
in the following provisions of this Sub-Clause have been established.

After termination of the Contract under Sub-Clause 15.2 [Termination for

Contractor's Default], the Employer shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or EOT] to payment by the Contractor of:

(a) the additional costs of execution of the Works, and all other costs
reasonably incurred by the Employer (including costs incurred
in clearing, cleaning and reinstating the Site as described under
Sub-Clause 11.11 [Clearance of Site]), after allowing for any sum due
to the Contractor under Sub-Clause 15.3 [Valuation after Termination
for Contractor's Default];
(b) any losses and damages suffered by the Employer in completing the
Works; and
(c) Delay Damages, if the Works or a Section have not been taken over
under Sub-Clause 10.1 [Taking Over the Works and Sections] and
if the date of termination under Sub-Clause 15.2 [Termination for
Contractor's Default] occurs after the date corresponding to the Time
for Completion of the Works or Section (as the case may be). Such
Delay Damages shall be paid for every day that has elapsed between
these two dates.

15.5
Termination ·for
,.,...r""'"'""."' Convenience The Employer shall be entitled to terminate the Contract at any time for the
Employer's convenience, by giving a Notice of such termination to the Contractor
(which Notice shall state that it is given under this Sub-Clause 15.5).

After giving a Notice to terminate under this Sub-Clause, the Employer shall
immediately:

(a) have no right to further use any of the Contractor's Documents,

which shall be returned to the Contractor, except those for which the
Contractor has received payment or for which payment is due under
a Payment Certificate;
(b) if Sub-Clause 4.6 [Co-operation] applies, have no right to allow the
continued use (if any) of any Contractor's Equipment, Temporary
Works, access arrangements and/or other of the Contractor's facilities
or services; and
(c) make arrangements to return the Performance Security to the
Contractor.

Termination under this Sub-Clause shall take effect 28 days after the later
of the dates on which the Contractor receives this Notice or the Employer
returns the Performance Security. Unless and until the Contractor has
received payment of the amount due under Sub-Clause 15.6 [Valuation after
Termination for Employer's Convenience], the Employer shall not execute
(any part of) the Works or arrange for (any part of) the Works to be executed
by any other entities.

After this termination, the Contractor shall proceed in accordance with

Sub-Clause 16.3 [Contractor's Obligations After Termination].

86 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 This action shall not prejudice the Contractor's entitlements to financing
charges under Sub-Clause 14.8 [Delayed Payment] and to termination
under Sub-Clause 16.2 [Termination by Contractor].

If the Employer subsequently remedies the default as described in the

above Notice before the Contractor gives a Notice of termination under
Sub-Clause 16.2 [Termination by Contractor], the Contractor shall resume
normal working as soon as is reasonably practicable.

If the Contractor suffers delay and/or incurs Cost as a result of suspending

work (or reducing the rate of work) in accordance with this Sub-Clause, the
Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or E01] to EOT and/or payment of such Cost Plus Profit.

16.2
Termination by Contractor Termination of the Contract under this Clause shall not prejudice any other
rights of the Contractor, under the Contract or otherwise.

16.2.1 Notice

The Contractor shall be entitled to give a Notice (which shall state that it is
given under this Sub-Clause 16.2.1) to the Employer of the Contractor's
intention to terminate the Contract or, in the case of sub-paragraph (g)(ii), (h),
(i) or G) below, a Notice of termination, if:

(a) the Contractor does not receive the reasonable evidence within 42
days after giving a Notice under Sub-Clause 16.1 [Suspension by
Contractor] in respect of a failure to comply with Sub-Clause 2.4
[Employer's Financial Arrangements];
(b) the Engineer fails, within 56 days after receiving a Statement and
supporting documents, to issue the relevant Payment Certificate;
\ (c) the Contractordoes not receive the amount due under any Payment
Certificate within 42 days after the expiry of the time stated in
Sub-Clause 14.7 [PaymentJ1--." --
(d) the Employer fails to comply with:
(i) a binding agreement, or final and binding determination under
Sub-Clause 3.7 [Agreement or Determination]; or
(ii) a decision of the DAAB under 21.4 [Obtaining DMB's Decision]
(whether binding or final and binding)
and such failure constitutes a material breach of the Employer's
obligations under the Contract;
(e) the Employer substantially fails to perform, and such failure constitutes
a material breach of, the Employer's obligations under the Contract;
(f) the Contractor does not receive a Notice of the Commencement Date
under Sub-Clause 8.1 [Commencement of Works] within 84 days
after receiving the Letter of Acceptance;
(g) the Employer:
(i) fails to comply with Sub-Clause 1.6 [Contract Agreement], or
(ii) assigns the Contract without the required agreement under
Sub-Clause 1.7 [Assignment];
(h) a prolonged suspension affects the whole of the Works as described
in sub-paragraph (b) of Sub-Clause 8.12 [Prolonged Suspension];
(i) the Employer becomes bankrupt or insolvent; goes into liquidation,
administration, reorganisation, winding-up or dissolution;
becomes subject to the appointment of a liquidator, receiver,

88 ©FIDIC 2017 Conditions of Contract for Plant and Design-Build

 administrator, manager or trustee; enters into a composition or
arrangement with the Employer's creditors; or any act is done or
any event occurs which is analogous to or has a similar effect to
any of these acts or events under applicable Laws; or
U) the Employer is found, based on reasonable evidence, to have
engaged in corrupt, fraudulent, collusive or coercive practice at
any time in relation to the Works or to the Contract.

16.2.2 Termination

Unless the Employer remedies the matter described in a Notice given

under Sub-Clause 16.2.1 [Notice] within 14 days of receiving the Notice,
the Contractor may by giving a second Notice to the Employer immediately
terminate the Contract. The date of termination shall then be the date the
Employer receives this second Notice.

However, in the case of sub-paragraph (g)(ii), (h), (i) or G) of Sub-Clause

16.2.1 [Notice], by giving a Notice under Sub-Clause 16.2.1 the Contractor
may terminate the Contract immediately and the date of termination shall be
the date the Employer receives this Notice.

If the Contractor suffers delay and/or incurs Cost during the above period of
14 days, 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.

16.3
Contractor's Obligations
After Termination After termination of the Contract under Sub-Clause 15.5 [Termination for
Employer's Convenience], Sub-Clause 16.2 [Termination by Contractor] or
Sub-Clause 18.5 [Optional Termination], the Contractor shall promptly:

(a) cease all further work, except for such work as may have been
instructed by the Engineer for the protection of life or property or for
the safety of the Works. If the Contractor incurs Cost as a result of
carrying out such instructed work the Contractor shall be entitled
subject to Sub-Clause 20.2 [Claims Far Payment and/or EOT] to be
paid such Cost Plus Profit;
(b) deliver to the Engineer all Contractor's Documents, Plant, Materials
and other work for which the Contractor has received payment; and
(c) remove all other Goods from the Site, except as necessary for safety,
and leave the Site.

16.4
Payment after
Termination by Contractor After termination under Sub-Clause 16.2 [Termination by Contractor], the
Employer shall promptly:

(a) pay the Contractor in accordance with Sub-Clause 18.5 [Optional

Termination]; and
(b) subject to the Contractor's compliance with Sub-Clause 20.2 [Claims
For Payment and/or EOT], pay the Contractor the amount of any loss
of profit or other losses and damages suffered by the Contractor as a
result of this termination.

General Conditions © FIDIC 2017

89
 Works and Indemnities

for
Care of the Works Unless the Contract is terminated in accordance with these Conditions or
otherwise, subject to Sub-Clause 17 .2 [Liability for Care of the Works] the
Contractor shall take full responsibility for the care of the Works, Goods and
Contractor's Documents from the Commencement Date until the Date of
Completion of the Works, when responsibility for the care of the Works shall
pass to the Employer. If a Taking-Over Certificate is issued (or is deemed to
be issued) for any Section or Part, responsibility for the care of the Section
or Part shall then pass to the Employer.

If the Contract is terminated in accordance with these Conditions or

otherwise, the Contractor shall cease to be responsible for the care of the
Works from the date of termination.

After responsibility has accordingly passed to the Employer, the Contractor

shall take responsibility for the care of any work which is outstanding on the
Date of Completion, until this outstanding work has been completed.

If any loss or damage occurs to the Works, Goods or Contractor's Documents,

during the period when the Contractor is responsible for their care, from any
cause whatsoever except as stated in Sub-Clause 17 .2 [Liability for Care of
the Works], the Contractor shall rectify the loss or damage at the Contractor's
risk and cost, so that the Works, Goods, or Contractor's Documents (as the
1, case may be) comply with the Contract.
'
11,2
Liability for
Care of the Works The Contractor shall be liable for any loss or damage caused by the
Contractor to the Works, Goods or Contractor's Documents after the issue
of a Taking-Over Certificate. The Contractor shall also be liable for any loss or
damage, which occurs after the issue of a Taking-Over Certificate and which
arose from an event which occurred before the issue of this Taking-Over
Certificate, for which the Contractor was liable.

The Contractor shall have no liability whatsoever, whether by way of indemnity

or otherwise, for loss or damage to the Works, Goods or Contractor's
Documents caused by any of the following events (except to the extent
that such Works, Goods or Contractor's Documents have been rejected
by the Engineer under Sub-Clause 7 .5 [Defects and Rejection] before the
occurrence of any of the following events):

(a) interference, whether temporary or permanent, with any right of way,

light, air, water or other easement (other than that resulting from the
Contractor's method of construction) which is the unavoidable result
of the execution of the Works in accordance with the Contract;
(b) use or occupation by the Employer of any part of the Permanent
Works, except as may be specified in the Contract;
(c) fault, error, defect or omission in any element of the design of the
Works by the Employer or which may be contained in the Employer's
Requirements (and which an experienced contractor exercising
due care would not have discovered when examining the Site and
the Employer's Requirements before submitting the Tender), other
than design carried out by the Contractor in accordance with the
Contractor's obligations under the Contract;

90 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 (d) any operation of the forces of nature (other than those allocated to the
Contractor in the Contract Data) which is Unforeseeable or against
which an experienced contractor could not reasonably have been
expected to have taken adequate preventative precautions;
(e) any of the events or circumstances listed under sub-paragraphs (a) to
(t) of Sub-Clause 18.1 [Exceptional Events]; and/or
(t) any act or default of the Employer's Personnel or the Employer's other
contractors.

Subject to Sub-Clause 18.4 [Consequences of an Exceptional Event], if any

of the events described in sub-paragraphs (a) to (t) above occurs and results
in damage to the Works, Goods or Contractor's Documents the Contractor
shall promptly give a Notice to the Engineer. Thereafter, the Contractor shall
rectify any such loss and/or damage that may arise to the extent instructed
by the Engineer. Such instruction shall be deemed to have been given under (/)
?
Sub-Clause 13.3.1 [Variation by Instruction]. cc
:0
!.J.,.

If the loss or damage to the Works or Goods or Contractor's Documents

results from a combination of:

(i) any of the events described in sub-paragraphs (a) to (t) above, and
(ii) a cause for which the Contractor is liable,

and the Contractor suffers a delay and/or incurs Cost from rectifying the loss
and/or damage, the Contractor shall subject to Sub-Clause 20.2 [Claims for
Payment and/or E01] be entitled to a proportion of EOT and/or Cost Plus
Profit to the extent Jhat any of the above events have contributed to such
delays and/or Cost.

17.3
Intellectual and Industrial
Property Rights In this Sub-Clause, "infringement" means an infringement (or alleged
infricngement) of any patent, registered design, copyright, trademark, trade
name, trade secret or other intellectual or industrial property right relating to
the Works; and "claim" means a third party claim (or proceedings pursuing a
third party claim) alleging an infringement.

Whenever a Party receives a claim but fails to give notice to the other Party
of the claim within 28 days of receiving it, the first Party shall be deemed to
have waived any right to indemnity under this Sub-Clause.

The Employer shall indemnify and hold the Contractor harmless against and
from any claim (including legal fees and expenses) alleging an infringement
which is or was:

(a) an unavoidable result of the Contractor's compliance with the

Employer's Requirements and/or any Variation; or
(b) a result of any Works being used by the Employer:
(i) for a purpose other than that indicated by, or reasonably to be
inferred from, the Contract, or
(ii) in conjunction with any thing not supplied by the Contractor,
unless such use was disclosed to the Contractor before the Base
Date or is stated in the Contract.

General Conditions © FIDIC 2017

91
 The Contractor shall indemnify and hold the Employer harmless against
and from any other claim (including legal fees and expenses) alleging an
infringement which arises out of or in relation to:

(i) the Contractor's execution of the Works; or

(ii) the use of Contractor's Equipment.

If a Party is entitled to be indemnified under this Sub-Clause, the indemnifying

Party may (at the indemnifying Party's cost) assume overall responsibility for
negotiating the settlement of the claim, and/or any litigation or arbitration
which may arise from it. The other Party shall, at the request and cost of the
indemnifying Party, assist in contesting the claim. This other Party (and the
Contractor's Personnel or the Employer's Personnel, as the case may be)
shall not make any admission which might be prejudicial to the indemnifying
Party, unless the indemnifying Party failed to promptly assume overall
responsibility for the conduct of any negotiations, litigation or arbitration after
being requested to do so by the other Party.

17.4
indemnities by Contractor The Contractor shall indemnify and hold harmless the Employer, the
Employer's Personnel, and their respective agents, against and from all
third party claims, damages, losses and expenses (including legal fees and
expenses) in respect of:

(a) bodily injury, sickness, disease or death of any person whatsoever

arising out of or in the course of or by reason of the Contractor's
execution of the Works, unless attributable to any negligence, wilful
act or breach of the Contract by the Employer, the Employer's
Personnel, or any of their respective agents; and
(b) damage to or loss of any property, real or personal (other than the
Works), to the extent that such damage or loss:
(i) arises out of or in the course of or by reason of the Contractor's
execution of the Works, and
(ii) is attributable to any negligence, wilful act or breach of the
Contract by· the Contractor, the Contractor's Personnel, their
respective agents, or anyone directly or indirectly employed by
any of them.

The Contractor shall also indemnify and hold harmless the Employer against
all acts, errors or omissions by the Contractor in carrying out the Contractor's
design obligations that result in the Works (or Section or Part or major item of
Plant, if any), when completed, not being fit for the purpose(s) for which they
are intended under Sub-Clause 4.1 [Contractor's General Obligations].

17.5
Indemnities by Employer The Employer shall indemnify and hold harmless the Contractor, the
Contractor's Personnel, and their respective agents, against and from all
third party claims, damages, losses and expenses (including legal fees and
expenses) in respect of:

(a) bodily injury, sickness, disease or death, or loss of or damage to any

property other than the Works, which is attributable to any negligence,
wilful act or breach of the Contract by the Employer, the Employer's
Personnel, or any of their respective agents; and
(b) damage to or loss of any property, real or personal (other than the
Works), to the extent that such damage or loss arises out of any event
described under sub-paragraphs (a) to (~ of Sub-Clause 17 .2 [Liability
for Care of the Works].

© FIDIC 2017
92 Conditions of Contract for Plant and Design-Build
17.6
Shared Indemnities The Contractor's liability to indemnify the Employer, under Sub-Clause 17.4
[Indemnities by Contractor] and/or under Sub-Clause 17 .3 [Intellectual and
Industrial Property Rights], shall be reduced proportionately to the extent
that any event described under sub-paragraphs (a) to (t) of Sub-Clause 17 .2
[Liability for Care of the Works] may have contributed to the said damage,
loss or injury.
, U.i
()
Similarly, the Employer's liability to indemnify the Contractor, under '
z
<'[
Sub-Clause 17 .5 [Indemnities by Employer] and/or under Sub-Clause 17.3 CJ
[Intellectual and Industrial Property Rights], shall be reduced proportionately 5
CJ
to the extent that any event for which the Contractor is responsible under
Sub-Clause 17 .1 [Responsibility for Care of the Works] may have contributed
to the said damage, loss or injury.

Exe p I Events
18.1
Exceptional Events "Exceptional Event" means an event or circumstance which:

(i) is beyond a Party's control;

(ii) the Party could not reasonably have provided against before entering
into the Contract;
(iii) having arisen, such Party could not reasonably have avoided or
overcome; and
· (iv) is not substantially attributable to the other Party.

An Exceptional Event may 9omprise but is not limited to any of the following
events or circumstances provided that conditions (i) to (iv) above are satisfied:

(a) war, hostilities (whether war be declared or not), invasion, act of

foreign enemies;
(b) rebellion, terrorism, revolution, insurrection, military or usurped power,
or civil war;
(c) riot, commotion or disorder by persons other than the Contractor's
Personnel and other employees of the Contractor and Subcontractors;
(d) strike or lockout not solely involving the Contractor's Personnel and
other employees of the Contractor and Subcontractors;
(e) encountering munitions of war, explosive materials, ionising radiation
or contamination by radio-activity, except as may be attributable
to the Contractor's use of such munitions, explosives, radiation or
radio-activity; or
(t) natural catastrophes such as earthquake, tsunami, volcanic activity,
hurricane or typhoon.

18.2
Notice of
an Exceptional Event If a Party is or will be prevented from performing any obligations under the
Contract due to an Exceptional Event (the "affected Party" in this Clause),
then the affected Party shall give a Notice to the other Party of such an
Exceptional Event, and shall specify the obligations, the performance of
which is or will be prevented (the "prevented obligations" in this Clause).

This Notice shall be given within 14 days after the affected Party became
aware, or should have become aware, of the Exceptional Event, and

General Conditions © FIDIC 2017

93
 the affected Party shall then be excused performance of the prevented
obligations from the date such performance is prevented by the Exceptional
Event. If this Notice is received by the other Party after this period of 14
days, the affected Party shall be excused performance of the prevented
obligations only from the date on which this Notice is received by the other
Party.

Thereafter, the affected Party shall be excused performance of the prevented

obligations for so long as such Exceptional Event prevents the affected Party
from performing them. Other than performance of the prevented obligations,
the affected Party shall not be excused performance of all other obligations
under the Contract.

However, the obligations of either Party to make payments due to the other
(j)
Party under the Contract shall not be excused by an Exceptional Event.

~
\.j
18.3
L.

Duty to Minimise Each Party shall at all times use all reasonable endeavours to minimise any
delay in the performance of the Contract as a result of an Exceptional Event.

If the Exceptional Event has a continuing effect, the affected Party shall give
further Notices describing the effect every 28 days after giving the first Notice
under Sub-Clause 18.2 [Notice of an Exceptional Event].

The affected Party shall immediately give a Notice to the other Party when the
affected Party ceases to be affected by the Exceptional Event. If the affected
Party fails to do so, the other Party may give a Notice to the affected Party
stating that the other Party considers that the affected Party's performance
is no longer prevented by the Exceptional Event, with reasons.

18.4
Consequences of
an Exceptional Event If the Contractor is the affected Party and suffers delay and/or incurs Cost
by reason of the Exceptional Event of which he/she gave a Notice under
Sub-Clause 18.2 [Notice of an Exceptional Event], the Contractor shall be
entitled subject to Sub-Clause 20.2 [Claims For Payment and/or Eon to:

(a) EOT; and/or

(b) if the Exceptional Event is of the kind described in sub-paragraphs
(a) to (e) of Sub-Clause 18.1 [Exceptional Events] and, in the case of
sub-paragraphs (b) to (e) of that Sub-Clause, occurs in the Country,
payment of such Cost.

18.5
Optional Termination If the execution of substantially all the Works in progress is prevented for a
continuous period of 84 days by reason of an Exceptional Event of which
Notice has been given under Sub-Clause 18.2 [Notice of an Exceptional
Event], or for multiple periods which total more than 140 days due to the
same Exceptional Event, then either Party may give to the other Party a
Notice of termination of the Contract.

In this event, the date of termination shall be the date 7 days after the Notice is
received by the other Party, and the Contractor shall proceed in accordance
with Sub-Clause 16.3 [Contractor's Obligations After Termination].

After the date of termination the Contractor shall, as soon as practicable,

submit detailed supporting particulars (as reasonably required by the
Engineer) of the value of the work done, which shall include:

94 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 (a) the amounts payable for any work carried out for which a price is
stated in the Contract;
(b) the Cost of Plant and Materials ordered for the Works which have
been delivered to the Contractor, or of which the Contractor is liable
to accept delivery. This Plant and Materials shall become the property
of (and be at the risk of) the Employer when paid for by the Employer,
and the Contractor shall place the same at the Employer's disposal;
(c) any other Cost or liability which in the circumstances was reasonably
incurred by the Contractor in the expectation of completing the
Works;
(d) the Cost of removal of Temporary Works and Contractor's Equipment
from the Site and the return of these items to the Contractor's place
of business in the Contractor's country (or to any other destination(s)
at no greater cost); and
i.!)
(e) the Cost of repatriation of the Contractor's staff and labour employed 2
er.:
wholly in connection with the Works at the date of termination. 0iL

The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or

Determination] to agree or determine the value of work done (and, for the
purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives
the particulars under this Sub-Clause shall be the date of commencement
of the time limit for agreement under Sub-Clause 3.7.3).

The Engineer shall issue a Payment Certificate, under Sub-Clause 14.6

[Issue of /PC], for the amount so agreed or determined, without the need for
the Contractor to submit a Statement.

i8.6
Release from Performance
under the Law In addition to any other provision of this Clause, if any event arises outside the
control of the Parties (including, but not limited to, an Exceptional Event) which:

(a) makes it impossible or unlawful for either Party or both Parties to fulfil
their contractual obligations; or
(b) under the law governing the Contract, entitles the Parties to be
released from further performance of the Contract,

and if the Parties are unable to agree on an amendment to the Contract that
would permit the continued performance of the Contract, then after either
Party gives a Notice to the other Party of such event:

(i) the Parties shall be discharged from further performance, and without
prejudice to the rights of either Party in respect of any previous breach
of the Contract; and
(ii) the amount payable by the Employer to the Contractor shall be the
same as would have been payable under Sub-Clause 18.5 [Optional
Termination], and such amount shall be certified by the Engineer, as if
the Contract had been terminated under that Sub-Clause.

19.1
General Requirements Without limiting either Party's obligations or responsibilities under the
Contract, the Contractor shall effect and maintain all insurances for which
the Contractor is responsible with insurers and in terms, both of which shall

General Conditions © FIDIC 2017

95
 be subject to consent by the Employer. These terms shall be consistent
with terms (if any) agreed by both Parties before the date of the Letter of
Acceptance.

The insurances required to be provided under this Clause are the minimum
required by the Employer, and the Contractor may, at the Contractor's own
cost, add such other insurances that the Contractor may deem prudent.

Whenever required by the Employer, the Contractor shall produce the

insurance policies which the Contractor is required to effect under the
Contract. As each premium is paid, the Contractor shall promptly submit
either a copy of each receipt of payment to the Employer (with a copy to the
Engineer), or confirmation from the insurers that the premium has been paid.

If the Contractor fails to effect and keep in force any of the insurances
required under Sub-Clause 19.2 [Insurances to be provided by Contractor]
then, and in any such case, the Employer may effect and keep in force such
insurances and pay any premium as may be necessary and recover the
same from the Contractor from time to time by deducting the amount(s) so
paid from any moneys due to the Contractor or otherwise recover the same
as a debt from the Contractor. The provisions of Clause 20 [Employer's and
Contractor's Claims] shall not apply to this Sub-Clause.

If either the Contractor or the Employer fails to comply with any condition of
the insurances effected under the Contract, the Party so failing to comply
shall indemnify the other Party against all direct losses and claims (including
legal fees and expenses) arising from such failure.

The Contractor shall also be responsible for the following:

(a) notifying the insurers of any changes in the nature, extent or

programme for the execution of the Works; and
(b) the adequacy and validity of the insurances in accordance with the
Contract at all times during the performance of the Contract.

The permitted deductible limits allowed in any policy shall not exceed the
amounts stated in the Contract Data (if not stated, the amounts agreed with
the Employer).

Where there is a shared liability the loss shall be borne by each Party in
proportion to each Party's liability, provided the non-recovery from insurers
has not been caused by a breach of this Clause by the Contractor or the
Employer. In the event that non-recovery from insurers has been caused by
such a breach, the defaulting Party shall bear the loss suffered.

19.2
Insurance to be provided
by the Contractor The Contractor shall provide the following insurances:

19.2.1 The Works

The Contractor shall insure and keep insured in the joint names of the
Contractor and the Employer from the Commencement Date until the date
of the issue of the Taking-Over Certificate for the Works:

(a) the Works and Contractor's Documents, together with Materials and
Plant for incorporation in the Works, for their full replacement value.
The insurance cover shall extend to include loss and damage of any

©FIDIC 2017 Conditions of Contract for Plant and Design-Build

96
 part of the Works as a consequence of failure of elements defectively
designed or constructed with defective material or workmanship; and
(b) an additional amount of fifteen percent (15%) of such replacement
value (or such other amount as may be specified in the Contract Data)
to cover any additional costs incidental to the rectification of loss or
damage, including professional fees and the cost of demolition and
removal of debris.

The insurance cover shall cover the Employer and the Contractor against all
loss or damage from whatever cause arising until the issue of the Taking-Over
Certificate for the Works. Thereafter, the insurance shall continue until the
date of the issue of the Performance Certificate in respect of any incomplete
work for loss or damage arising from any cause occurring before the date
of the issue of the Taking-Over Certificate for the Works, and for any loss or
damage occasioned by the Contractor in the course of any operation carried (!)

out by the Contractor for the purpose of complying with the Contractor's if
()
obligations under Clause 11 [Defects after Taking Over] and Clause 12 [Tests U.,.

after Completion].

However, the insurance cover provided by the Contractor for the Works may
exclude any of the following:

(i) the cost of making good any part of the Works which is defective
(including defective material and workmanship) or otherwise does not
comply with the Contract, provided that it does not exclude the cost
of making good any loss or damage to any other part of the Works
attributable to such defect or non-compliance;
(ii) indirect or consequential loss or damage including any reductions in
the Contract Price for delay;
(iii) wear and tear, shortages and pilferages; and
(iv) unless otherwise stated in the Contract Data, the risks arising from
Exceptional Events.

19.2.2 Goods

The Contractor shall insure, in the joint names of the Contractor and the
Employer, the Goods and other things brought to Site by the Contractor
to the extent specified and/or amount stated in the Contract Data (if not
specified or stated, for their full replacement value including delivery to Site).

The Contractor shall maintain this insurance from the time the Goods are
delivered to the Site until they are no longer required for the Works.

19.2.3 Liability for breach of professional duty

To the extent that the Contractor is responsible for the design of part of the
Permanent Works under Sub-Clause 4.1 [Contractor's General Obligations],
and/or any other design under the Contract, and consistent with the
indemnities specified in Clause 17 [Care of the Works and Indemnities]:

(a) the Contractor shall effect and maintain professional indemnity

insurance against liability arising out of any act, error or omission by
the Contractor in carrying out the Contractor's design obligations in
an amount not less than that stated in the Contract Data (if not stated,
the amount agreed with the Employer); and
{b) if stated in the Contract Data, such professional indemnity insurance
shall also indemnify the Contractor against liability arising out of
any act, error or omission by the Contractor in carrying out the

General Conditions © FIDIC 2017 97

 Contractor's design obligations under the Contract that results in
the Works (or Section or Part or major item of Plant, if any), when
completed, not being fit for the purpose(s) for which they are intended
under Sub-Clause 4.1 [Contractor's General Obligations].

The Contractor shall maintain this insurance for the period specified in the
Contract Data.

19.2.4 Injury to persons and damage to property

The Contractor shall insure, in the joint names of the Contractor and the
Employer, against liabilities for death or injury to any person, or loss of or
damage to any property (other than the Works) arising out of the performance
of the Contract and occurring before the issue of the Performance Certificate,
other than loss or damage caused by an Exceptional Event.

The insurance policy shall include a cross liability clause such that the
insurance shall apply to the Contractor and the Employer as separate
insureds.

Such insurance shall be effected before the Contractor begins any work on
the Site and shall remain in force until the issue of the Performance Certificate
and shall be for not less than the amount stated in the Contract Data (if not
stated, the amount agreed with the Employer).

19.2.? Injury to employees

The Contractor shall effect and maintain insurance against liability for claims,
damages, losses and expenses (including legal fees and expenses) arising
out of the execution of the Works in respect of injury, sickness, disease or
death of any person employed by the Contractor or any of the Contractor's
other personnel.

The Employer and the Engineer shall also be indemnified under the policy
of insurance, except that this insurance may exclude losses and claims to
the extent that they arise from any act or neglect of the Employer or of the
Employer's Personnel.

The insurance shall be maintained in full force and effect during the whole
time that the Contractor's Personnel are assisting in the execution of the
Works. For any person employed by a Subcontractor, the insurance may be
effected by the Subcontractor, but the Contractor shall be responsible for
the Subcontractor's compliance with this Sub-Clause.

19.2.6 Other insurances required by Laws and by local practice

The Contractor shall provide all other insurances required by the Laws of
the countries where (any part ot) the Works are being carried out, at the
Contractor's own cost.

Other insurances required by local practice (if any) shall be detailed in

the Contract Data and the Contractor shall provide such insurances in
compliance with the details given, at the Contractor's own cost.

98 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 and Contractor's Claims
20.1
Claims A Claim may arise:

(a) if the Employer considers that the Employer is entitled to any additional
payment from the Contractor (or reduction in the Contract Price) and/
or to an extension of the DNP;
(b) if the Contractor considers that the Contractor is entitled to any
additional payment from the Employer and/or to EOT; or
(c) if either Party considers that he/she is entitled to another entitlement
or relief against the other Party. Such other entitlement or relief
may be of any kind whatsoever (including in connection with any
certificate, determination, instruction, Notice, opinion or valuation (fj

of the Engineer) except to the extent that it involves any entitlement 2

c::
referred to in sub-paragraphs (a) and/or (b) above. p

In the case of a Claim under sub-paragraph (a) or (b) above, Sub-Clause

20.2 [Claims For Payment and/or EOT] shall apply.

In the case of a Claim under sub-paragraph (c) above, where the other Party
or the Engineer has disagreed with the requested entitlement or relief (or is
deemed to have disagreed if he/she does not respond within a reasonable
time), a Dispute shall not be deemed to have arisen but the claiming Party
may by giving a Notice refer the Claim to the Engineer and Sub-Clause 3.7
[Agreement or Determination] shall apply. This Notice shall be given as soon
as practicable after the claiming Party becomes aware of the disagreement
(or deemed disagreement) and shall include details of the claiming Party's
case and the other Party's or the Engineer's disagreement (or deemed
disagreement).

20,2
Claims for
and/or EOT If either Party considers that he/she is entitled to any additional payment by
the other Party (or, in the case of the Employer, a reduction in the Contract
Price) and/or to EOT (in the case of the Contractor) or an extension of the
DNP (in the case of the Employer) under any Clause of these Conditions or
otherwise in connection with the Contract, the following Claim procedure
shall apply:

20.2.1 Notice of Claim

The claiming Party shall give a Notice to the Engineer, describing the event
or circumstance giving rise to the cost, loss, delay or extension of DNP for
which the Claim is made as soon as practicable, and no later than 28 days
after the claiming Party became aware, or should have become aware, of
the event or circumstance (the "Notice of Claim" in these Conditions).

If the claiming Party fails to give a Notice of Claim within this period of 28
days, the claiming Party shall not be entitled to any additional payment,
the Contract Price shall not be reduced (in the case of the Employer as the
claiming Party), the Time for Completion (in the case of the Contractor as
the claiming Party) or the DNP (in the case of the Employer as the claiming
Party) shall not be extended, and the other Party shall be discharged from
any liability in connection with the event or circumstance giving rise to the
Claim.

General Conditions © FIDIC 2017

99
 20.2.2 Engineer's initial response

If the Engineer considers that the claiming Party has failed to give the Notice
of Claim within the period of 28 days under Sub-Clause 20.2.1 [Notice of
Claim] the Engineer shall, within 14 days after receiving the Notice of Claim,
give a Notice to the claiming Party accordingly (with reasons).

If the Engineer does not give such a Notice within this period of 14 days,
the Notice of Claim shall be deemed to be a valid Notice. If the other Party
disagrees with such deemed valid Notice of Claim the other Party shall give
a Notice to the Engineer which shall include details of the disagreement.
Thereafter, the agreement or determination of the Claim under Sub-Clause
20.2.5 [Agreement or determination of the Claim] shall include a review by
the Engineer of such disagreement.
0)
r~ If the claiming Party receives a Notice from the Engineer under this Sub-Clause
C and disagrees with the Engineer or considers there are circumstances which
justify late submission of the Notice of Claim, the claiming Party shall include
in its fully detailed Claim under Sub-Clause 20.2.4 [Fully detailed claim]
details of such disagreement or why such late submission is justified (as the
case may be).

20.2.3 Contemporary records

In this Sub-Clause 20.2, "contemporary records" means records that are

prepared or generated at the same time, or immediately after, the event or
circumstance giving rise to the Claim.

The claiming Party shall keep such contemporary records as may be

necessary to substantiate the Claim.

Without admitting the Employer's liability, the Engineer may monitor the
Contractor's contemporary records and/or instruct the Contractor to
keep additional contemporary records. The Contractor shall permit the
Engineer to inspect all these records during normal working hours (or at
other times agreed by the Contractor), and shall if instructed submit copies
to the Engineer. Such monitoring, inspection or instruction (if any) by the
Engineer shall not imply acceptance of the accuracy or completeness of the
Contractor's contemporary records.

20.2.4 Fully detailed Claim

In this Sub-Clause 20.2, "fully detailed Claim" means a submission which

includes:

(a) a detailed description of the event or circumstance giving rise to the

Claim;
(b) a statement of the contractual and/or other legal basis of the Claim;
(c) all contemporary records on which the claiming Party relies; and
(d) detailed supporting particulars of the amount of additional payment
claimed (or amount of reduction of the Contract Price in the case of
the Employer as the claiming Party), and/or EOT claimed (in the case
of the Contractor) or extension of the DNP claimed (in the case of the
Employer).

100 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 Within either:

(i) 84 days after the claiming Party became aware, or should have
become aware, of the event or circumstance giving rise to the Claim,
or
(ii) such other period (if any) as may be proposed by the claiming Party
and agreed by the Engineer
the claiming Party shall submit to the Engineer a fully detailed Claim.

If within this time limit the claiming Party fails to submit the statement under
sub-paragraph (b) above, the Notice of Claim shall be deemed to have
lapsed, it shall no longer be considered as a valid Notice, and the Engineer
shall, within 14 days after this time limit has expired, give a Notice to the
claiming Party accordingly.
(jj
2
If the Engineer does not give such a Notice within this period of 14 days, 25
, U ..
the Notice of Claim shall be deemed to be a valid Notice. If the other Party
disagrees with such deemed valid Notice of Claim the other Party shall give
a Notice to the Engineer which shall include details of the disagreement.
Thereafter, the agreement or determination of the Claim under Sub-Clause
20.2.5 [Agreement or determination of the Claim] shall include a review by
the Engineer of such disagreement.

If the claiming Party receives a Notice from the Engineer under this Sub-Clause
20.2.4 and if the claiming Party disagrees with such Notice or considers
there are circumstances which justify late submission of the statement under
sub-paragraph (b) above, the fully detailed claim shall include details of the
claiming Party's disagreement or why such late submission is justified (as the
case may be).

If the event or circumstance giving rise to the Claim has a continuing effect,
Sub-Clause 20.2.6 [Claims of continuing effect] shall apply.

20.2.5 Agreement or determination of the Claim

After receiving a fully detailed Claim under Sub-Clause 20.2.4 [Fully detailed
Claim], or an interim or final fully detailed Claim (as the case may be) under
Sub-Clause 20.2.6 [Claims of continuing effect], the Engineer shall proceed
under Sub-Clause 3.7 [Agreement or Determination] to agree or determine:

(a) the additional payment (if any) to which the claiming Party is entitled
or the reduction of the Contract Price (in the case of the Employer as
the claiming Party); and/or
(b) the extension (if any) of the Time for Completion (before or after its
expiry) under Sub-Clause 8.5 [Extension of Time for Completion] (in
the case of the Contractor as the claiming Party), or the extension (if
any) of the DNP (before its expiry) under Sub-Clause 11.3 [Extension
of Defects Notification Period] (in the case of the Employer as the
claiming Party),

to which the claiming Party is entitled under the Contract.

If the Engineer has given a Notice under Sub-Clause 20.2.2 [Engineer's

initial response] and/or under Sub-Clause 20.2.4 [Fully detailed Claim],
the Claim shall nevertheless be agreed or determined in accordance with
this Sub-Clause 20.2.5. The agreement or determination of the Claim shall
include whether or not the Notice of Claim shall be treated as a valid Notice
taking account of the details (if any) included in the fully detailed claim of the

General Conditions © FIDIC 2017

101
 claiming Party's disagreement with such Notice(s) or why late submission is
justified (as the case may be). The circumstances which may be taken into
account (but shall not be binding) may include:

• whether or to what extent the other Party would be prejudiced by

acceptance of the late submission;
• in the case of the time limit under Sub-Clause 20.2.1 [Notice of
Claim], any evidence of the other Party's prior knowledge of the
event or circumstance giving rise to the Claim, which the claiming
Party may include in its supporting particulars; and/or
• in the case of the time limit under Sub-Clause 20.2.4 [Fully
detailed Claim], any evidence of the other Party's prior knowledge
of the contractual and/or other legal basis of the Claim, which the
claiming Party may include in its supporting particulars.

If, having received the fully detailed Claim under Sub-Clause 20.2.4 [Fully
detailed Claim], or in the case of a Claim under Sub-Clause 20.2.6 [Claims
of continuing effect] an interim or final fully detailed Claim (as the case may
be), the Engineer requires necessary additional particulars:

(i) he/she shall promptly give a Notice to the claiming Party, describing
the additional particulars and the reasons for requiring them;
(ii) he/she shall nevertheless give his/her response on the contractual or
other legal basis of the Claim, by giving a Notice to the claiming Party,
within the time limit for agreement under Sub-Clause 3.7.3 [Time
limits];
(iii) as soon as practicable after receiving the Notice under sub-paragraph
(i) above, the claiming Party shall submit the additional particulars;
and
(iv) the Engineer shall then proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determinethe matters under sub-paragraphs
(a) and/or (b) above (and, for the purpose of Sub-Clause 3.7.3 [Time
limits], the date the Engineer receives the additional particulars from
the claiming Party shall be the date of commencement of the time
limit for agreement under Sub-Clause 3.7.3).

20.2.6 Claims of continuing effect

If the event or circumstance giving rise to a Claim under this Sub-Clause

20.2 has a continuing effect:

(a) the fully detailed Claim submitted under Sub-Clause 20.2.4 [Fully
detailed Claim] shall be considered as interim;
(b) in respect of this first interim fully detailed Claim, the Engineer shall
give his/her response on the contractual or other legal basis of the
Claim, by giving a Notice to the claiming Party, within the time limit for
agreement under Sub-Clause 3.7.3 [Time limits];
(c) after submitting the first interim fully detailed Claim the claiming Party
shall submit further interim fully detailed Claims at monthly intervals,
giving the accumulated amount of additional payment claimed (or the
reduction of the Contract Price, in the case of the Employer as the
claiming Party), and/or extension of time claimed (in the case of the
Contractor as the claiming Party) or extension of the DNP (in the case
of the Employer as the claiming Party); and
(d) the claiming Party shall submit a final fully detailed Claim within 28 days
after the end of the effects resulting from the event or circumstance,
or within such other period as may be proposed by the claiming Party

102 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 and agreed by the Engineer. This final fully detailed claim shall give
the total amount of additional payment claimed (or the reduction of
the Contract Price, in the case of the Employer as the claiming Party)
and/or extension of time claimed (in the case of the Contractor as the
claiming Party) or extension of the DNP (in the case of the Employer
as the claiming Party).

20.2. 7 General requirements

After receiving the Notice of Claim, and until the Claim is agreed or determined
under Sub-Clause 20.2 .5 [Agreement or determination of the Claim], in each
Payment Certificate the Engineer shall include such amounts for any Claim
as have been reasonably substantiated as due to the claiming Party under
the relevant provision of the Contract.
(/)
The Employer shall only be entitled to claim any payment from the Contractor if
and/or to extend the DNP, or set off against or make any deduction from any 2
amount due to the Contractor, by complying with this Sub-Clause 20.2.

The requirements of this Sub-Clause 20.2 are in addition to those of any

other Sub-Clause which may apply to the Claim. If the claiming Party fails
to comply with this or any other Sub-Clause in relation to the Claim, any
additional payment and/or any EOT (in the case of the Contractor as the
claiming Party) or extension of the DNP (in the case of the Employer as
the claiming Party), shall take account of the extent (if any) to which the
failure has prevented or prejudiced proper investigation of the Claim by the
Engineer.

Di and Arbitration
21.1
Constitution of the DJ.\AB Disputes shall be decided by a DAAB in accordance with Sub-Clause 21.4
[Obtaining OMB's Decision]. The Parties shall jointly appoint the member(s)
of the DAAB within the time stated in the Contract Data (if not stated, 28
days) after the date the Contractor receives the Letter of Acceptance.

The DAAB shall comprise, as stated in the Contract Data, either one suitably
qualified member (the "sole member") or three suitably qualified members
(the "members"). If the number is not so stated, and the Parties do not agree
otherwise, the DAAB shall comprise three members.

The sole member or three members (as the case may be) shall be selected
from those named in the list in the Contract Data, other than anyone who is
unable or unwilling to accept appointment to the DAAB.

If the DAAB is to comprise three members, each Party shall select one
member for the agreement of the other Party. The Parties shall consult both
these members and shall agree the third member, who shall be appointed to
act as chairperson.

The DAAB shall be deemed to be constituted on the date that the Parties
and the sole member or the three members (as the case may be) of the
DAAB have all signed a DAAB Agreement.

The terms of the remuneration of either the sole member or each of the
three members, including the remuneration of any expert whom the DAAB

General Conditions © FIDIC 2017

103
 consults, shall be mutually agreed by the Parties when agreeing the terms of
the DAAB Agreement. Each Party shall be responsible for paying one-half of
this remuneration.

If at any time the Parties so agree, they may appoint a suitably qualified
person or persons to replace any one or more members of the DAAB.
Unless the Parties agree otherwise, a replacement DAAB member shall be
appointed if a member declines to act or is unable to act as a result of death,
illness, disability, resignation or termination of appointment. The replacement
member shall be appointed in the same manner as the replaced member was
required to have been selected or agreed, as described in this Sub-Clause.

The appointment of any member may be terminated by mutual agreement

of both Parties, but not by the Employer or the Contractor acting alone.

Unless otherwise agreed by both Parties, the term of the DAAB (including
the appointment of each member) shall expire either:

(a) on the date the discharge shall have become, or deemed to have
become, effective under Sub-Clause 14.12 [Discharge]; or
(b) 28 days after the DAAB has given its decision on all Disputes, referred
to it under Sub-Clause 21.4 [Obtaining DMB's Decision] before such
discharge has become effective,

whichever is later.

However, if the Contract is terminated under any Sub-Clause of these

Conditions or otherwise, the term of the DAAB (including the appointment of
each member) shall expire 28 days after:

(i) the DAAB has given its decision on all Disputes, which were referred
to it (under Sub-Clause 21.4 [Obtaining DMB's Decision]) within 224
days after the date of termination; or
(ii) the date that the Parties reach a final agreement on all matters
(including payment) in connection with the termination

whichever is earlier.

21.2
Failure to Appoint
DAAB Member(s) If any of the following conditions apply, namely:

(a) if the DAAB is to comprise a sole member, the Parties fail to agree the
appointment of this member by the date stated in the first paragraph
of Sub-Clause 21.1 [Constitution of the DMB]; or
(b) if the DAAB is to comprise three persons, and if by the date stated in
the first paragraph of Sub-Clause 21.1 [Constitution of the DMB]:
(i) either Party fails to select a member (for agreement by the other
Party);
(ii) either Party fails to agree a member selected by the other Party;
and/or
(iii) the Parties fail to agree the appointment of the third member (to
act as chairperson) of the DAAB;

(c) the Parties fail to agree the appointment of a replacement within 42

days after the date on which the sole member or one of the three
members declines to act or is unable to act as a result of death,
illness, disability, resignation, or termination of appointment; or

104 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 (d) if, after the Parties have agreed the appointment of the member(s)
or replacement, such appointment cannot be effected because
one Party refuses or fails to sign a DAAB Agreement with any such
member or replacement (as the case may be) within 14 days of the
other Party's request to do so,
then the appointing entity or official named in the Contract Data shall, at the
request of either or both Parties and after due consultation with both Parties,
appoint the member(s) of the DAAB (who, in the case of sub-paragraph (d)
above, shall be the agreed member(s) or replacement). This appointment
shall be final and conclusive.

Thereafter, the Parties and the member(s) so appointed shall be deemed to

have signed and be bound by a DAAB Agreement under which:

(i) the monthly services fee and daily fee shall be as stated in the terms
of the appointment; and
(ii) the law governing the DAAB Agreement shall be the governing law of
the Contract defined in Sub-Clause 1.4 [Law and Language].

Each Party shall be responsible for paying one-half of the remuneration of

the appointing entity or official. If the Contractor pays the remuneration in full,
the Contractor shall include one-half of the amount of such remuneration in
a Statement and the Employer shall then pay the Contractor in accordance
with the Contract. If the Employer pays the remuneration in full, the Engineer
shall include one-half of the amount of such remuneration as a deduction
under sub-paragraph (b) of Sub-Clause 14.6.1 [The /PC]

21.3
Avoidance of Disputes If the Parties so agree, they may jointly request (in writing, with a copy to
the Engineer) the DAAB to provide assistance and/or informally discuss and
attempt to resolve any issue or disagreement that may have arisen between
them during the performance of the Contract. If the DAAB becomes aware
of an issue or disagreement, it may invite the Parties to make such a joint
request.

Such joint request may be made at any time, except during the period that
the Engineer is carrying out his/her duties under Sub-Clause 3. 7 [Agreement
or Determination] on the matter at issue or in disagreement unless the Parties
agree otherwise.

Such informal assistance may take place during any meeting, Site visit or
otherwise. However, unless the Parties agree otherwise, both Parties shall
be present at such discussions. The Parties are not bound to act on any
advice given during such informal meetings, and the DAAB shall not be
bound in any future Dispute resolution process or decision by any views or
advice given during the informal assistance process, whether provided orally
or in writing.

21.4
Obtaining DAAB's Decision If a Dispute arises between the Parties then either Party may refer the Dispute
to the DAAB for its decision (whether or not any informal discussions have
been held under Sub-Clause 21.3 [Avoidance of Disputes]) and the following
provisions shall apply.

General Conditions © FIDIC 2017

105
 21.4.1 Reference of a Dispute to the DAAB

The reference of a Dispute to the DAAB (the "reference" in this Sub-Clause

21.4) shall:

(a) if Sub-Clause 3.7 [Agreement or Determination] applied to the subject

matter of the Dispute, be made within 42 days of giving or receiving
u
(as the case may be) a NOD under Sub-Clause 3.7.5 [Dissatisfaction
~ with Engineer's determination]. If the Dispute is not referred to the
~i-

Ci DAAB within this period of 42 days, such NOD shall be deemed to

5('.) have lapsed and no longer be valid;
(b) state that it is given under this Sub-Clause;
(c) set out the referring Party's case relating to the Dispute;
(d) be in writing, with copies to the other Party and the Engineer; and
(/)
2 (e) for a DAAB of three persons, be deemed to have been received by
,~r

ft. the DAAB on the date it is received by the chairperson of the DAAB.
!~"::

The reference of a Dispute to the DAAB under this Sub-Clause shall, unless
prohibited by law, be deemed to interrupt the running of any applicable
statute of limitation or prescription period.

21.4.2 The Parties' obligations after the reference

Both Parties shall promptly make available to the DAAB all information,
access to the Site, and appropriate facilities, as the DAAB may require for
the purposes of making a decision on the Dispute.

Unless the Contract has already been abandoned or terminated, the Parties
shall continue to perform their obligations in accordance with the Contract.

21.4.3 The DAAB's decision

The DAAB shall complete and give its decision within:

(a) 84 days after receiving the reference; or

(b) such period as may be proposed by the DAAB and agreed by both
Parties.

However, if at the end of this period, the due date(s) for payment of any
DAAB member's invoice(s) has passed but such invoice(s) remains unpaid,
the DAAB shall not be obliged to give its decision until such outstanding
invoice(s) have been paid in full, in which case the DAAB shall give its
decision as soon as practicable after payment has been received.

The decision shall be given in writing to both Parties with a copy to the
Engineer, shall be reasoned, and shall state that it is given under this
Sub-Clause.

The decision shall be binding on both Parties, who shall promptly comply
with it whether or not a Party gives a NOD with respect to such decision
under this Sub-Clause. The Employer shall be responsible for the Engineer's
compliance with the DAAB decision.

If the decision of the DAAB requires a payment of an amount by one Party to

the other Party

106 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 (i) subject to sub-paragraph (ii) below, this amount shall be immediately
due and payable without any certification or Notice; and
(ii) the DAAB may (as part of the decision), at the request of a Party
but only if there are reasonable grounds for the DAAB to believe that
the payee will be unable to repay such amount in the event that the
decision is reversed under Sub-Clause 21.6 [Arbitration], require
the payee to provide an appropriate security (at the DAAB 's sole
discretion) in respect of such amount.

The DAAB proceeding shall not be deemed to be an arbitration and the

DAAB shall not act as arbitrator(s).

21.4.4 Dissatisfaction with DAAB's decision

If either Party is dissatisfied with the DAAB's decision:

(a) such Party may give a NOD to the other Party, with a copy to the
DAAB and to the Engineer;
(b} this NOD shall state that it is a "Notice of Dissatisfaction with the
DAAB's Decision" and shall set out the matter in Dispute and the
reason(s) for dissatisfaction; and
(c) this NOD shall be given within 28 days after receiving the DAAB's
decision.

If the DAAB fails to give its decision within the period stated in Sub-Clause
21.4.3 [The DMB's decision], then either Party may, within 28 days after
this period has expired, give a NOD to the other Party in accordance with
sub-paragraphs (a) and (b) above.

Except as stated in the last paragraph of Sub-Clause 3.7.5 [Dissatisfaction

with Engineer's determination], in Sub-Clause 21.7 [Failure to Comply with
DMB's Decision] and in Sub-Clause 21.8 [No DMB In Place], neither Party
shall be entitled to commence arbitration of a Dispute unless a NOD in
respect of that Dispute has been given in accordance with this Sub-Clause
21.4.4.

If the DAAB has given its decision as to a matter in Dispute to both Parties,
and no NOD under this Sub-Clause 21.4.4 has been given by either Party
within 28 days after receiving the DAAB's decision, then the decision shall
become final and binding on both Parties.

If the dissatisfied Party is dissatisfied with only part(s) of the DAAB's decision:

(i) this part(s) shall be clearly identified in the NOD;

(ii) this part(s), and any other parts of the decision that are affected by
such part(s) or rely on such part(s) for completeness, shall be deemed
to be severable from the remainder of the decision; and
(iii) the remainder of the decision shall become final and binding on both
Parties as if the NOD had not been given.

21.5
Amicable Settlement Where a NOD has been given under Sub-Clause 21.4 [Obtaining DMB's
Decision], both Parties shall attempt to settle the Dispute amicably before
the commencement of arbitration. However, unless both Parties agree
otherwise, arbitration may be commenced on or after the twenty-eighth
(28th) day after the day on which this NOD was given, even if no attempt at
amicable settlement has been made.

General Conditions © FIDIC 2017

107
 21.6
Arbitration Unless settled amicably, and subject to Sub-Clause 3.7.5 [Dissatisfaction
with Engineer's determination], Sub-Clause 21.4.4 [Dissatisfaction with
DMB 's decision], Sub-Clause 21 .7 [Failure to Comply with DMB 's Decision]
and Sub-Clause 21.8 [No DMB In Place], any Dispute in respect of which
the DAAB's decision (if any) has not become final and binding shall be finally
settled by international arbitration. Unless otherwise agreed by both Parties:
L..J
() (a) the Dispute shall be finally settled under the Rules of Arbitration of the
7
<(
,.~,

i .... J
International Chamber of Commerce;
s
(J (b) the Dispute shall be settled by one or three arbitrators appointed in
accordance with these Rules; and
(c) the arbitration shall be conducted in the ruling language defined in
Sub-Clause 1.4 [Law and Language] .
•v;
·r~

2 The arbitrator(s) shall have full power to open up, review and revise any
6
L .. certificate, determination (other than a final and binding determination),
instruction, opinion or valuation of the Engineer, and any decision of the DAAB
(other than a final and binding decision) relevant to the Dispute. Nothing shall
disqualify the Engineer from being called as a witness and giving evidence
before the arbitrator(s) on any matter whatsoever relevant to the Dispute.

In any award dealing with costs of the arbitration, the arbitrator(s) may take
account of the extent (if any) to which a Party failed to cooperate with the
other Party in constituting a DAAB under Sub-Clause 21.1 [Constitution of
the DMB] and/or Sub-Clause 21.2 [Failure to Appoint DMB Member(s)].

Neither Party shall be limited in the proceedings before the arbitrator(s) to

the evidence or arguments previously put before the DAAB to obtain its
decision, or to the reasons for dissatisfaction given in the Party's NOD under
Sub-Clause 21.4 [Obtaining DMB's Decision]. Any decision of the DAAB
shall be admissible in evidence in the arbitration.

Arbitration may be commenced before or after completion of the Works. The

obligations of the Parties, the Engineer and the DAAB shall not be altered by
reason of any arbitration being conducted during the progress of the Works.

If an award requires a payment of an amount by one Party to the other

Party, this amount shall be immediately due and payable without any further
certification or Notice.

21.7
Failure to Comply
with DAAB's Decision In the event that a Party fails to comply with any decision of the DAAB, whether
binding or final and binding, then the other Party may, without prejudice to
any other rights it may have, refer the failure itself directly to arbitration under
Sub-Clause 21.6 [Arbitration] in which case Sub-Clause 21.4 [Obtaining
DMB's Decision] and Sub-Clause 21.5 [Amicable Settlement] shall not
apply to this reference. The arbitral tribunal (constituted under Sub-Clause
21.6 [Arbitration]) shall have the power, by way of summary or other
expedited procedure, to order, whether by an interim or provisional measure
or an award (as may be appropriate under applicable law or otherwise), the
enforcement of that decision.

In the case of a binding but not final decision of the DAAB, such interim or
provisional measure or award shall be subject to the express reservation that
the rights of the Parties as to the merits of the Dispute are reserved until they
are resolved by an award.

108 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 Any interim or provisional measure or award enforcing a decision of the
DAAB which has not been complied with, whether such decision is binding
or final and binding, may also include an order or award of damages or other
relief.

21.B
No DAAB In Place If a Dispute arises between the Parties in connection with, or arising out of,
the Contract or the execution of the Works and there is no DAAB in place LU
(,':
(or no DAAB is being constituted), whether by reason of the expiry of the 7
<l
DAAB's appointment or otherwise: CJ
5
()

(a) Sub-Clause 21.4 [Obtaining OMB's Decision] and Sub-Clause 21.5

[Amicable Settlement] shall not apply; and
(b) the Dispute may be referred by either Party directly to arbitration under
Sub-Clause 21.6 [Arbitration] without prejudice to any other rights the (f)

Party may have.

~
l.L

General Conditions © FIDIC 2017

109
 APPENDIX

General Conditions of Dispute Avoidance/Adjudication

Agreement

1
Definitions 1.1 "General Conditions of Dispute Avoidance/Adjudication Agreement"
or "GCs" means this document entitled "General Conditions of Dispute
Avoidance/Adjudication Agreement", as published by FIDIC.

1.2 In the DAA Agreement (as defined below) and in the GCs, words and
expressions which are not otherwise defined shall have the meanings
assigned to them in the Contract (as defined in the DAA Agreement).

1.3 "Dispute Avoidance/Adjudication Agreement" or "DAA Agreement"

means a tripartite agreement by and between:

(a) the Employer;

(b) the Contractor; and
(c) the DAAB Member who is defined in the DAA Agreement as being
either:
(i) the sole member of the DAAB, or
(ii) one of the three members (or the chairman) of the DAAB.

1.3 "DAAB's Activities" means the activities carried out by the DAAB in
accordance with the Contract and the GCs, including all Informal Assistance,
meetings (including meetings and/or discussions between the DAAB
members in the case of a three-member DAAB), Site visits, hearings and
decisions.

1 .4 "DAAB Rules" means the document entitled "DAAB Procedural Rules"

published by FIDIC which are annexed to, and form part of, the GCs.

1.5 "Informal Assistance" means the informal assistance given by the DAAB
to the Parties when requested jointly by the Parties under Sub-Clause 21.3
[Avoidance of Disputes] of the Conditions of Contract.

1 .6 "Term of the DAAB" means the period starting on the Effective Date (as
defined in Sub-Clause 2.1 below) and finishing on the date that the term of
the DAAB expires in accordance with Sub-Clause 21 .1 [Constitution of the
DAAB] of the Conditions of Contract.

1. 7 "Notification" means a notice in writing given under the GCs, which shall
be:

(a) (i) a paper-original signed by the DAAB Member or the authorised

representative of the Contractor or of the Employer (as the case
may be); or
(ii) an electronic original generated from the system of electronic
transmission agreed between the Parties and the DAAB, which
electronic original is transmitted by the electronic address
uniquely assigned to the DAAB Member or each such authorised
representative (as the case may be);

110 © FIDIC 20i7 Conditions of Contract for Plant and Design-Build

 (b) delivered by hand (against receipt), or sent by mail or courier (against
receipt), or transmitted using the system of electronic transmission
under sub-paragraph (a)(ii) above; and
(c) delivered, sent or transmitted to the address for the recipient's
communications as stated in the DAA Agreement. However, if the
recipient gives a Notification of another address, all Notifications shall
be delivered accordingly after the sender receives such Notification.
i.LI

2 ~
General Provisions 2.1 The DAA Agreement shall take effect: 8
G
(a) in the case of a sole-member DAAB, on the date when the Employer,
the Contractor and the DAAB Member have each signed (or, under
the Contract, are deemed to have signed) the DAA Agreement; or
(b) in the case of a three-member DAAB, on the date when the Employer, (/J
2
the Contractor, the DAAB Member and the Other Members have er::
0
u ..
each signed (or under the Contract are deemed to have signed) a
DAA Agreement.

(the "Effective Date" in the GCs).

2.2 Immediately after the Effective Date, either or both Parties shall give a
Notification to the DAAB Member that the DAA Agreement has come into
effect. If the DAAB Member does not receive such a notice within 182 days
after entering into the DAA Agreement, it shall be void and ineffective.

2.3 The employment of the DAAB Member is a personal appointment. No

assignment of, or subcontracting or delegation of the DAAB Member's rights
and/or obligations under the DAA Agreement is permitted.

3
Warranties 3.1 The DAAB Member warrants and agrees that he/she is, and will remain at
all times during the Term of the DAAB, impartial and independent of the
Employer, the Contractor, the Employer's Personnel and the Contractor's
Personnel (including in accordance with Sub-Clause 4.1 below).

3.2 If, after signing the DAA Agreement (or after he/she is deemed to have signed
the DAA Agreement under the Contract), the DAAB Member becomes aware
of any fact or circumstance which might:

(a) call into question his/her independence or impartiality; and/or

(b) be, or appear to be, inconsistent with his/her warranty and agreement
under Sub-Clause 3.1 above
the DAAB Member warrants and agrees that he/she shall immediately
disclose this in writing to the Parties and the Other Members (if any).

3.3 When appointing the DAAB Member, each Party relies on the DAAB
Member's representations that he/she is:

(a) experienced and/or knowledgeable in the type of work which the

Contractor is to carry out under the Contract;
(b) experienced in the interpretation of construction and/or engineering
contract documentation; and
(c) fluent in the language for communications stated in the Contract Data
(or the language as agreed between the Parties and the DAAB).

General Conditions © FIDIC 2017

111
 4
Independence and
Impartiality 4.1 Further to Sub-Clauses 3.1 and 3.2 above, the DAAB Member shall:

(a) have no financial interest in the Contract, or in the project of which the
Works are part, except for payment under the DAA Agreement;
(b) have no interest whatsoever (financial or otherwise) in the Employer, the
LiJ Contractor, the Employer's Personnel or the Contractor's Personnel;
C'
7 (c) in the ten years before signing the DAA Agreement, not have
r.3 been employed as a consultant or otherwise by the Employer, the
:.:.:J
(_'.)
Contractor, the Employer's Personnel or the Contractor's Personnel;
(d) not previously have acted, and shall not act, in any judicial or arbitral
capacity in relation to the Contract;
(e) have disclosed in writing to the Employer, the Contractor and the
(;)
::?:: Other Members (if any), before signing the DAA Agreement (or before
B
L ..
he/she is deemed to have signed the DAA Agreement under the
Contract) and to his/her best knowledge and recollection, any:
(i) existing and/or past professional or personal relationships with
any director, officer or employee of the Employer, the Contractor,
the Employer's Personnel or the Contractor's Personnel (including
as a dispute resolution practitioner on another project),
(ii) facts or circumstances which might call into question his/her
independence or impartiality, and
(iii) previous involvement in the project of which the Contract forms
part;
m not, while a DAAB Member and for the Term of the DAAB:
(i) be employed as a consultant or otherwise by, and/or
(ii) enter into discussions or make any agreement regarding future
employment with
the Employer, the Contractor, the Employer's Personnel or the
Contractor's Personnel, except as may be agreed by the Employer,
the Contractor and the Other Members (if any); and/or
(g) not solicit, accept or receive (directly or indirectly) any gift, gratuity,
commission or other thing of value from the Employer, the Contractor,
the Employer's Personnel or the Contractor's Personnel, except for
payment under the DAA Agreement.

5
General Obligations
of the DAAB Member 5.1 The DAAB Member shall:

(a) comply with the GCs, the DAAB Rules and the Conditions of Contract
that are relevant to the DAAB's Activities;
{b) not give advice to the Employer, the Contractor, the Employer's
Personnel or the Contractor's Personnel concerning the conduct of
the Contract, except as required to carry out the DAAB's Activities;
(c) ensure his/her availability during the Term of the DAAB (except in
exceptional circumstances, in which case the DAAB Member shall
give a Notification without delay to the Parties and the Other Members
(if any) detailing the exceptional circumstances) for all meetings, Site
visits, hearings and as is necessary to comply with sub-paragraph (a)
above;
(d) become, and shall remain for the duration of the Term of the DAAB,
knowledgeable about the Contract and informed about:

112 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 (i) the Parties' performance of the Contract;
(ii) the Site and its surroundings; and
(iii) the progress of the Works (and of any other parts of the project
of which the Contract forms part)
including by visiting the Site, meeting with the Parties and by studying
all documents received from either Party under Rule 4.3 of the DAAB
Rules (which shall be maintained in a current working file, in hard-copy
or electronic format at the DAAB Member's discretion); and
(e) be available to give Informal Assistance when requested jointly by the
Parties.

6
General Obligations
of the Parties 6.1 Each Party shall comply with the GCs, the DAAB Rules and the Conditions
of Contract that are relevant to the DAAB's Activities. The Employer and the
Contractor shall be responsible for compliance with this provision by the
Employer's Personnel and the Contractor's Personnel, respectively.

6.2 Each Party shall cooperate with the other Party in constituting the DAAB,
under Sub-Clause 21.1 [Constitution of the DMB] and/or Sub-Clause 21.2
[Failure to Appoint OMB Member(s)] of the Conditions of Contract, without
delay.

6.3 In connection with the DAAB's Activities, each Party shall:

(a) cooperate in good faith with the DAAB; and

(b) fulfil its duties, and exercise any right or entitlement, under the
Contract, the GCs and the DAAB Rules and/or otherwise
in the manner necessary to achieve the objectives under Rule 1 of the DAAB
Rules.

6.4 The Parties, the Employer's Personnel and the Contractor's Personnel shall
not request advice from or consultation with the DAAB Member regarding
the Contract, except as required for the DAAB Member to carry out the
DAAB 's Activities.

6.5 At all times when interacting with the DAAB, each Party shall not compromise
the DAAB's warranty of independence and impartiality under Sub-Clause
3.1 above.

6.6 In addition to providing documents under Rule 4.3 of the DAAB Rules, each
Party shall ensure that the DAAB Member remains informed as is necessary
to enable him/her to comply with sub-paragraph (d) of Sub-Clause 5.1
above.

7
Confidentiality 7 .1 Subject to Sub-Clause 7.4 below, the DAAB Member shall treat the details
of the Contract, all the DAAB 's Activities and the documents provided under
Rule 4.3 of the DAAB Rules as private and confidential, and shall not publish
or disclose them without the prior written consent of the Parties and the
Other Members (if any).

7.2 Subject to Sub-Clause 7.4 below, the Employer, the Contractor, the
Employer's Personnel and the Contractor's Personnel shall treat the details
of all the DAAB's Activities as private and confidential.

General Conditions © FIDIC 2017

113
 7.3 Each person's obligation of confidentiality under Sub-Clause 7.1 or
Sub-Clause 7.2 above (as the case may be) shall not apply where the
information:

(a) was already in that person's possession without an obligation of

confidentiality before receipt under the DAA Agreement;
(b) becomes generally available to the public through no breach of the
GCs; or
(c) is lawfully obtained by the person from a third party which is not
bound by an obligation of confidentiality.

7.4 If a DAAB Member is replaced under the Contract, the Parties and/or the
Other Members (if any) shall disclose details of the Contract, the documents
provided under Rule 4.3 of the DAAB Rules and previous DAAB's Activities
(including decisions, if any) to the replacement DAAB Member as is necessary
in order to:

(a) enable the replacement DAAB Member to comply with sub-paragraph

(d) of Sub-Clause 5.1 above; and
(b) ensure consistency in the manner in which the DAAB's Activities are
conducted following such replacement.

8
The Parties' undertaking
and indemnity 8.1 The Employer and the Contractor undertake to each other and to the DAAB
Member that the DAAB Member shall not:

(a) be appointed as an arbitrator in any arbitration under the Contract;

(b) be called as a witness to give evidence concerning any Dispute in any
arbitration under the Contract; or
(c) be liable for any claims for anything done or omitted in the discharge
or purported discharge of the DAAB Member's functions, except in
any case of fraud, gross negligence, deliberate default or reckless
misconduct by him/her.

8.2 The Employer and the Contractor hereby jointly and severally indemnify and
hold the DAAB Member harmless against and from all damages, losses and
expenses (including legal fees and expenses) resulting from any claim from
which he/she is relieved from liability under Sub-Clause 8.1 above.

9
Fees and Expenses 9.1 The DAAB Member shall be paid as follows, in the currency named in the
DAA Agreement:

(a) a monthly fee, which shall be a fixed fee as payment in full for:
(i) being available on 28-days' notice for all meetings, Site visits and
hearings under the DAAB Rules (and, in the event of a request
under Rule 3.6 of the DAAB Rules, being available for an urgent
meeting or Site visit);
(ii) becoming and remaining knowledgeable about the Contract,
informed about the progress of the Works and maintaining
a current working file of documents, in accordance with
sub-paragraph (d) of Clause 5.1 above;
(iii) all office and overhead expenses including secretarial seNices,
photocopying and office supplies incurred in connection with his/
her duties; and

114 © FIDJC 2017 Conditions of Contract for Plant and Design-Build

 (iv) all services performed hereunder except those referred to in
sub-paragraphs (b) and (c) of this Clause.

This fee shall be paid monthly with effect from the last day of the month
in which the Effective Date occurs until the end of the month in which
the Term of the DAAB expires, or the DAAB Member declines to act
or is unable to act as a result of death, illness, disability, resignation or
termination of his/her DAA Agreement.
If no monthly fee is stated in the DAA Agreement, the matters
described in sub-paragraphs (i) to (iv) above shall be deemed to be
covered by the daily fee under sub-paragraph (b) below;
(b) a daily fee, which shall be considered as payment in full for each day:
(i) or part of a day, up to a maximum of two days' travel time in each
direction, for the journey between the DAAB Member's home
and the Site, or another location of a meeting with the Parties
and/or the Other Members (if any);
(ii) spent on attending meetings and making Site visits in accordance
with Rule 3 of the DAAB Rules, and writing reports in accordance
with Rule 3.10 of the DAAB Rules;
(iii) spent on giving Informal Assistance;
(iv) spent on attending hearings (and, in case of a three-member
DAAB, attending meeting(s) between the DAAB Members in
accordance with sub-paragraph (a) of Rule 8.2 of the DAAB
Rules, and communicating with the Other Members), and
preparing decisions; and
(v) spent in preparation for a hearing, and studying written
documentation and arguments from the Parties submitted in
accordance with sub-paragraph (c) of Rule 7.1 of the DAAB
Rules;
(c) all reasonable expenses, including necessary travel expenses (air
fare in business class or equivalent, hotel and subsistence and other
direct travel expenses, including visa charges) incurred in connection
with the DAAB Member's duties, as well as the cost of telephone
calls (and video conference calls, if any, and internet access), courier
charges and faxes. The DAAB Member shall provide the Parties with
a receipt for each item of expenses;
(d) any taxes properly levied in the Country on payments made to the
DAAB Member (unless a national or permanent resident of the
Country) under this Sub-Clause 9.1.

9.2 Subject to Sub-Clause 9.3 below, the amounts of the DAAB Member's
monthly fee and daily fee, under Sub-Clause 9.1 above, shall be as specified
in the DAA Agreement signed (or, under the Contract, deemed to have been
signed) by the Parties and the DAAB Member.

9.3 If the Parties and the DAAB Member have agreed all other terms of the DAA
Agreement but fail to jointly agree the amount of the monthly fee or the daily
fee in the DAA Agreement (the "non-agreed fee" in this Sub-Clause):

(a) the DAA Agreement shall nevertheless be deemed to have been

signed by the Parties and the DAAB Member, except that the fee
proposed by the DAAB Member shall only temporarily apply;
(b) either Party or the DAAB Member may apply to the appointing
entity or official named in the Contract Data to set the amount of the
non-agreed fee;

General Conditions © FIDIC 2017

115
 (c) the appointing entity or official shall, as soon as practicable and in
any case within 28 days after receiving any such application, set the
amount of the non-agreed fee, which amount shall be reasonable
taking due regard of the complexity of the Works, the experience
and qualifications of the DAAB Member, and all other relevant
circumstances;
(d) once the appointing entity or official has set the amount of the
non-agreed fee, this amount shall be final and conclusive, shall
replace the fee under sub-paragraph (a) above, and shall be deemed
to have applied from the Effective Date; and
(e) thereafter, after giving credit to the Parties for all amounts previously
paid in respect of the non-agreed fee, the balance (if any) due from
the DAAB Member to the Parties or from the Parties to the DAAB
Member, as the case may be, shall be paid.

9.4 The DAAB Member shall submit invoices for payment of the monthly fee
and air fares quarterly in advance. Invoices for other expenses and for daily
fees shall be submitted following the conclusion of a meeting, Site visit or
hearing; and following the giving of a decision or an informal written note
(under Rule 2.1 of the DAAB Rules). All invoices shall be accompanied by
a brief description of the DAAB's Activities performed during the relevant
period and shall be addressed to the Contractor.

9.5 The Contractor shall pay each of the DAAB Member's invoices in full within
28 days after receiving each invoice. Thereafter, the Contractor shall apply
to the Employer (in the Statements under the Contract) for reimbursement of
one-half of the amounts of these invoices. The Employer shall then pay the
Contractor in accordance with the Contract.

9.6 If the Contractor fails to pay to the DAAB Member the amount to which he/
she is entitled under the DAA Agreement within the period of 28 days stated
at Sub-Clause 9.5 above, the DAAB Member shall inform the Employer
who shall promptly pay the amount due to the DAAB Member and any
other amount which may be required to maintain the function of the DAAB.
Thereafter the Employer shall, by written request, be entitled to payment
from the Contractor of:

(a) all sums paid in excess of one-half of these amounts;

(b) the reasonable costs of recovering these amounts from the Contractor;
and
(b) financing charges calculated at the rate specified in Sub-Clause 14.9
[Delayed Payment] of the Conditions of Contract.

The Employer shall be entitled to such payment from the Contractor without
any requirement to comply with Sub-Clause 20.2 [Claims For Payment and/
or EOT] of the Conditions of Contract, and without prejudice to any other
right or remedy.

9. 7 If the DAAB Member does not receive payment of the amount due within 56
days after submitting a valid invoice, the DAAB Member may:

(a) not less than 7 days after giving a Notification to the Parties and the
Other Members (if any), suspend his/her services until the payment is
received; and/or
(b) resign his/her appointment by giving a Notification under Sub-Clause
10.1 below.

©FIDIC2017
116 Conditions of Contract for Plant and Design-Build
10

and Termination 10.1 The DAAB Member may resign at any time for any reason, by giving a
Notification of not less than 28 days (or other period as may be agreed by the
Parties) to the Parties and to the Other Members (if any). During this period the
Parties shall take the necessary steps to appoint, without delay, a replacement
DAAB Member in accordance with Sub-Clause 21.1 [Constitution of the
OAAB] of the Conditions of Contract (and, if applicable, Sub-Clause 21.2
[Failure to Appoint DAAB Member(s)] of the Conditions of Contract).
5
10.2 On expiry of the period stated in Sub-Clause 10.1 above, the resigning ()

DAAB Member's DAA Agreement shall terminate with immediate effect.

However (except if the DAAB Member is unable to act as a result of illness
or disability) if, on the date of the DAAB Member's notice under Sub-Clause
10.1 above, the DAAB is dealing with any Dispute under Sub-Clause 21.4
[Obtaining DAAB's Decision] of the Conditions of Contract, the DAAB
Member's resignation shall not take effect and his/her DAA Agreement shall 0',L
not terminate until after the DAAB has given all the corresponding decisions
in accordance with the Contract.

10.3 At any time the Parties may jointly terminate the DAA Agreement by giving a
Notification of not less than 42 days to the DAAB Member.

10.4 If the DAAB Member fails, without justifiable excuse, to comply with
Sub-Clause 5.1 above, the Parties may, without prejudice to their other rights
or remedies, jointly terminate his/her DAA Agreement by giving a Notification
(by recorded delivery) to the DAAB Member. This notice shall take effect
when it is received by the DAAB Member.

10.5 If either Party fails, without justifiable excuse, to comply with Clause 6 above,
the DAAB Member may, without prejudice to his/her other rights or remedies,
terminate the DAA Agreement by giving a Notification to the Parties. This
notice shall take effect when received by both Parties.

10.6 Any resignation or termination under this Clause shall be final and binding
on the Parties and the DAAB Member. However, a notice given under
Sub-Clause 10.3 or 10.4 above by either the Employer or the Contractor,
but not by both, shall be of no effect.

10.7 Subject to sub-paragraph (b) of Sub-Clause 11.5 below, in the event

of resignation or termination under this Clause the DAAB Member shall
nevertheless be entitled to payment of any fees and/or expenses under his/
her DAA Agreement that remain outstanding as of the date of termination of
his/her DAA Agreement.

10.8 After resignation by the DAAB Member or termination of his/her DAA

Agreement under this Clause, the DAAB Member shall:

(a) remain bound by his/her obligation of confidentiality under Sub-Clause

7 .1 above; and
(b) return the original of any document in his/her possession to the
Party who submitted such document in connection with the DAAB's
Activities, at that Party's written request and cost.

10.9 Subject to any mandatory requirements under the governing law of the
DAA Agreement, termination of the DAA Agreement under this Clause shall
require no action of whatsoever kind by the Parties or the DAAB Member (as
the case may be) other than as stated in this Clause.

General Conditions © FIDIC 2017

117
11
Challenge 11.1 The Parties shall not object against the DAAB Member, except that either
Party, or in the case of a three-member DAAB the Other Members jointly,
shall be entitled to do so for an alleged lack of independence or impartiality or
otherwise in which case Rule 10 Objection Procedure and Rule 11 Challenge
Procedure of the DAAB Rules shall apply.

11.2 The decision issued under Rule 11 of the DAAB Rules (the "Decision on the
Challenge" in the GCs) shall be final and conclusive.

11.3 At any time before the Decision on the Challenge is issued, the challenged
DAAB Member may resign under Sub-Clause 10.1 above and, in such case,
the challenging Party shall inform the International Chamber of Commerce
(ICC). However, Sub-Clause 10.2 shall not apply to such resignation and the
resigning DAAB Member's DAA Agreement shall terminate with immediate
effect.

11.4 Unless the challenged DAAB Member has resigned, or his/her DAA
Agreement has been terminated under Sub-Clause 10.3 above, the DAAB
Member and the Other Members (if any) shall continue with the DAAB's
Activities until the Decision on the Challenge is issued.

11.5. If the Decision on the Challenge is that the challenge is successful:

(a) the challenged DAAB Member's appointment, and his/her DAA

Agreement, shall be deemed to have been terminated with immediate
effect on the date of the notification of the Decision on the Challenge by
ICC;
(b) the challenged DAAB Member shall not be entitled to any fees or
expenses under his/her DAA Agreement from the date of the
notification of the Decision on the Challenge by ICC;
(c) any decision under Sub-Clause 21.4.3 [The DMB's decision] of the
Conditions of Contract, given by the DAAB:
(i) after the challenge was referred under Rule 11 of the DAAB
Rules; and
(ii) before the resignation (if any) of the challenged DAAB Member
under Sub-Clause 11.3 above, or his/her DAAB Agreement is
terminated under sub-paragraph (a) above or under Sub-Clause
10.3 above
shall become void and ineffective. In the case of a sole-member
DAAB, all other DAAB's Activities during this period shall also become
void and ineffective. In the case of a three-member DAAB, all other
DAAB's Activities during this period shall remain unaffected by the
Decision on the Challenge except if there has been a challenge to all
three members of the DAAB and such challenge is successful;
(d) the successfully challenged DAAB Member shall be removed from the
DAAB; and
(e) the Parties shall, without delay, appoint a replacement DAAB Member
in accordance with Sub-Clause 21 .1 [Constitution of the DMB] of the
Conditions of Contract.

118 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

12
Disputes under
the DAA "'"'"~"",,.,, Any dispute arising out of or in connection with the OM Agreement, or the
breach, termination or invalidity thereof, shall be finally settled by arbitration
under the Rules of Arbitration of the International Chamber of Commerce
2017 by one arbitrator appointed in accordance with these Rules of
Arbitration, and Article 30 and the Expedited Procedure Rules at Appendix
VI of these Rules of Arbitration shall apply.

5
CJ

General Conditions © FIDIC 2017

119
 Rule 1
Objectives 1.1 The objectives of these Rules are:

(a) to facilitate the avoidance of Disputes that might otherwise arise

between the Parties; and
(b) to achieve the expeditious, efficient and cost effective resolution of
any Dispute that arises between the Parties.
1.2 These Rules shall be interpreted, the DAAB's Activities shall be conducted
and the DAAB shall use its powers under the Contract and these Rules, in
the manner necessary to achieve the above objectives.

(),·
Rule2
~
()
I ... Avoidance of Disputes 2.1 Where Sub-Clause 21 .3 [Avoidance of Disputes] of the Conditions of Contract
applies, the DAAB (in the case of a three-member DAAB, all three DAAB
Members acting together) may give Informal Assistance during discussions
at any meeting with the Parties (whether face-to-face or by telephone or by
video conference) or at any Site visit or by an informal written note to the
Parties.

Rule 3 ----··--·--·---------·----·--········----·----------------·-·--------------·-----·------··
Meetings and Site Visits 3.1 The purpose of meetings with the Parties and Site visits by the DAAB is to
enable the DAAB to:

(a) become and remain informed about the matters described in

sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs;
(b) become aware of, and remain informed about, any actual or potential
issue or disagreement between the Parties; and
(c) give Informal Assistance if and when jointly requested by the Parties.

3.2 As soon as practicable after the DAAB is appointed, the DAAB shall convene
a face-to-face meeting with the Parties. At this meeting, the DAAB shall
establish a schedule of planned meetings and Site visits in consultation with
the Parties, which schedule shall reflect the requirements of Rule 3.3 below
and shall be subject to adjustment by the DAAB in consultation with the
Parties.

3.3 The DAAB shall hold face-to-face meetings with the Parties, and/or visit the
Site, at regular intervals and/or at the written request of either Party. The
frequency of such meetings and/or Site visits shall be:

(a) sufficient to achieve the purpose under Rule 3.1 above;

(b) at intervals of not more than 140 days unless otherwise agreed jointly
by the Parties and the DAAB; and
(c) at intervals of not less than 70 days, subject to Rules 3.5 and 3.6
below and except as required to conduct a hearing as described
under Rule 7 below, unless otherwise agreed jointly by the Parties
and the DAAB.

3.4 In addition to the face-to-face meetings referred to in Rules 3.2 and 3.3
above, the DAAB may also hold meetings with the Parties by telephone or
video conference as agreed with the Parties (in which case each Party bears
the risk of interrupted or faulty telephone or video conference transmission
and reception).

© FIDIC2017 Conditions of Contract for Plant and Design-Build

120
 3.5 At times of critical construction events (which may include suspension of
the Works or termination of the Contract), the DMB shall visit the Site at
the written request of either Party. This request shall describe the critical
construction event. If the DMB becomes aware of an upcoming critical
construction event, it may invite the Parties to make such a request.

3.6 Either Party may request an urgent meeting or Site visit by the DMB. This
shall be a written request and shall give reasons for the urgency of the
meeting or Site visit. If the DMB agrees that such a meeting or Site visit is
urgent, the DMB Members shall use all reasonable endeavours to:

(a) hold a meeting with the Parties by telephone or video conference

(as agreed with the Parties under Rule 3.4 above) within 3 days after
receiving the request; and
(b) if requested and (having given the other Party opportunity at this meeting
to respond to or oppose this request) the DMB agrees that a Site visit is
necessary, visit the Site within 14 days after the date of this meeting.

3.7 The time of, and agenda for, each meeting and Site visit shall be set by the
DMB in consultation with the Parties.

3.8 Each meeting and Site visit shall be attended by the Employer, the Contractor
and the Engineer.

3.9 Each meeting and Site visit shall be co-ordinated by the Contractor in
co-operation with the Employer and the Engineer. The Contractor shall
ensure the provision of appropriate:

(a) personal safety equipment, security controls (if necessary) and site
transport for each Site visit;
(b) meeting room/conference facilities and secretarial and copying
services for each face-to-face meeting; and
(c) telephone conference or video conference facilities for each meeting
by telephone or video conference.

3.10 At the conclusion of each meeting and Site visit and, if possible before
leaving the venue of the face-to-face meeting or the Site (as the case may
be) but in any event within 7 days, the DMB shall prepare a report on its
activities during the meeting or Site visit and shall send copies of this report
to the Parties and the Engineer.

Rule4
Communications
and Documentation 4.1 The language to be used:

(a) in all communications to and from the DMB and the Parties (and, in
the case of a three-member DMB, between the DMB Members);
(b) in all reports and decisions issued by the DMB; and
(c) during all Site visits, meetings and hearings relating to the DMB's
Activities

shall be the language for communications defined in Sub-Clause 1.4 [Law

and Language] of the Conditions of Contract, unless otherwise agreed jointly
by the Parties and the DMB.

4.2 All communications and/or documents sent between the DMB and a
Party shall simultaneously be copied to the other Party. In the case of a
three-member DMB, the sending Party shall send all communications and/

General Conditions © FIDIC 2017 121

 or documents to the chairman of the DAAB and simultaneously send copies
of these communications and/or documents to the Other Members.

4.3 The Parties shall provide the DAAB with a copy of all documents which the
DAAB may request, including:

(a) the documents forming the Contract;

(b) progress reports under Sub-Clause 4.20 [Progress Reports] of the
Conditions of Contract;
(c) the initial programme and each revised programme under Sub-Clause
8.3 [Programme] of the Conditions of Contract;
(d) relevant instructions given by the Engineer, and Variations under
Clause 13.3 [Variation Procedure] of the Conditions of Contract;
(e) Statements submitted by the Contractor, and all certificates issued by
(f) :
2 the Engineer under the Contract;
cc
(.)
L ..
(f) relevant Notices;
(g) relevant communications between the Parties and between either
Party and the Engineer

and any other document relevant to the performance of the Contract and/
or necessary to enable the DAAB to become and remain informed about the
matters described in sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs.

Rule5
Powers of the DAAB 5.1 In addition to the powers granted to the DAAB under the Conditions of
Contract, the General Conditions of the DAA Agreement and elsewhere in
these Rules, the Parties empower the DAAB to:

(a) establish the procedure to be applied in making Site visits and/or

giving Informal Assistance;
(b) establish the procedure to be applied in giving decisions under the
Conditions of Contract;
(c) decide on the DAAB's own jurisdiction, and the scope of any Dispute
referred to the DAAB;
(d) appoint one or more experts (including legal and technical expert(s)),
with the agreement of the Parties;
(e) decide whether or not there shall be a hearing (or more than one
hearing, if necessary) in respect of any Dispute referred to the DAAB;
(f) conduct any meeting with the Parties and/or any hearing as the DAAB
thinks fit, not being bound by any rules or procedures for the hearing
other than those contained in the Contract and in these Rules;
(g) take the initiative in ascertaining the facts and matters required for a
DAAB decision;
(h) make use of a DAAB Member's own specialist knowledge, if any;
(i) decide on the payment of financing charges in accordance with
the Contract;
U) decide on any provisional relief such as interim or conservatory
measures;
(k) open up, review and revise any certificate, decision, determination,
instruction, opinion or valuation of (or acceptance, agreement,
approval, consent, disapproval, No-objection, permission, or similar
act by) the Engineer that is relevant to the Dispute; and
(I) proceed with the DAAB's Activities in the absence of a Party who,
after receiving a Notification from the DAAB, fails to comply with
Sub-Clause 6.3 of the GCs.

122 ©FIDIC 2017 Conditions of Contract for Plant and Design-Build

 5.2 The DAAB shall have discretion to decide whether and to what extent any
powers granted to the DAAB, under the Conditions of Contract, the GCs
and these Rules, may be exercised.

Rule 6 ------- ---·--··-·-·------·--·---·-·--·------------------------------·-·-·-·--..- - - - - · - - - - - - -

Disputes 6.1 If any Dispute is referred to the DAAB in accordance with Sub-Clause
21.4.1 [Reference of a Dispute to the DMB] of the Conditions of Contract,
the DAAB shall proceed in accordance with Sub-Clause 21.4 [Obtaining
DMB's Decision] of the Conditions of Contract and these DAAB Rules, or
as otherwise agreed by the Parties in writing.

6.2 The DAAB shall act fairly and impartially between the Parties and, taking due
regard of the period under Sub-Clause 21.4.3 [The DMB's decision] of the
Conditions of Contract and other relevant circumstances, the DAAB shall:
(f)

(a) give each Party a reasonable opportunity (consistent with the ~

er::
expedited nature of the DAAB proceeding) of putting forward its case 0i.L
and responding to the other Party's case; and
(b) adopt a procedure in coming to its decision that is suitable to the
Dispute, avoiding unnecessary delay and/or expense.

Rule 7 _________. _____ ....... _. . _._____________...................-.. .·------..·-·------------·----..--..-----·-·--·-·--------·-·---·--·---·-·-·-·-·. ------------.. .______. ___. __________ _
Hearings 7.1 In addition to the powers under Rule 5.1 above, and except as otherwise
agreed in writing by the Parties, the DAAB shall have power to:

(a) decide on the date and place for any hearing, in consultation with the
Parties;
(b) decide on the duration of any hearing;
(c) request that written documentation and arguments from the Parties
be submitted to it prior to the hearing;
(d) adopt an inquisitorial procedure during any hearing:
(e) request the production of documents, and/or oral submissions by
the Parties, at any hearing that the DAAB considers may assist in
exercising the DAAB's power under sub-paragraph (g) of Rule 5.1
above;
(f) request the attendance of persons at any hearing that the DAAB
considers may assist in exercising the DAAB's power under
sub-paragraph (g) of Rule 5.1 above;
(g) refuse admission to any hearing, or audience at any hearing, to any
persons other than representatives of the Employer, the Contractor
and the Engineer;
(h) proceed in the absence of any party who the DAAB is satisfied
received timely notice of the hearing;
(i) adjourn any hearing as and when the DAAB considers further
investigation by one Party or both Parties would benefit resolution
of the Dispute, for such time as the investigation is carried out, and
resume the hearing promptly thereafter.

7 .2 The DAAB shall not express any opinions during any hearing concerning the
merits of any arguments advanced by either Party in respect of the Dispute.

7.3 The DAAB shall not give any Informal Assistance during a hearing, but if the
Parties request Informal Assistance during any hearing:

(a) the hearing shall be adjourned for such time as the DAAB is giving
Informal Assistance;

General Conditions © FIDIC 2017

123
 (b) if the hearing is so adjourned for longer than 2 days, the period
under Sub-Clause 21.4.3 [The DAAB's decision] of the Conditions
of Contract shall be temporarily suspended until the date that the
hearing is resumed; and
(c) the hearing shall be resumed promptly after the DAAB has given such
Informal Assistance.

Rule 8 -------------------·-------·-·----------------··-···--·--·-··-----
The DAAB's Decision 8.1 The DAAB shall make and give its decision within the time allowed under
Sub-Clause 21.4 [Obtaining DAAB's Decision] of the Conditions of Contract,
or other time as may be proposed by the DAAB and agreed by the Parties in
writing.

8.2 In the case of a three-member DAAB:

(/)
:~~
a.: (a) it shall meet in private (after the hearing, if any) in order to have
~C'. discussions and to start preparation of its decision;
(b) the DAAB Members shall use all reasonable endeavours to reach a
unanimous decision;
(c) if it is not possible for the DAAB Members to reach a unanimous
decision, the applicable decision shall be made by a majority of
the DAAB Members, who may require the minority DAAB Member
to prepare a separate written report (with reasons and supporting
particulars) which shall be issued to the Parties; and
(d) if a DAAB Member fails to:
(i) attend a hearing (if any) or a DAAB Members' meeting; or
(ii) fulfil any required function (other than agreeing to a unanimous
decision)
the Other Members shall nevertheless proceed to make a decision, unless:

• such failure has been caused by exceptional circumstances,

of which the Other Members and the Parties have received a
Notification from the DAAB Member;
• the DAAB Member has suspended his services under
sub-paragraph (a) of Sub-Clause 9.7 of the GCs; or
• otherwise agreed by the Parties in writing.
8.3 If, after giving a decision, the DAAB finds (and, in the case of a three-member
DAAB, they agree unanimously or by majority) that the decision contained
any error:

(a) of a typographical or clerical nature; or

(b) of an arithmetical nature
the chairman of the DAAB or the sole DAAB Member (as the case may be)
shall, within 14 days after giving this decision, advise the Parties of the error
and issue an addendum to its original decision in writing to the Parties.

8.4 If, within 14 days of receiving a decision from the DAAB, either Party finds
a typographical, clerical or arithmetical error in the decision, that Party may
request the DAAB to correct such error. This shall be a written request and
shall clearly identify the error.

8.5 If, within 14 days of receiving a decision from the DAAB, either Party believes
that such decision contains an ambiguity, that Party may request clarification
from the DAAB. This shall be a written request and shall clearly identify the
ambiguity.

124 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 8.6 The DAAB shall respond to a request under Rule 8.4 or Rule 8.5 above within
14 days of receiving the request. The DAAB may decline (at its sole discretion
and with no requirement to give reasons) any request for clarification under
Rule 8.5. If the DAAB agrees (in the case of a three-member DAAB they
agree unanimously or by majority) that the decision did contain the error or
ambiguity as described in the request, it may correct its decision by issuing
an addendum to its original decision in writing to the Parties, in which case
this addendum shall be issued together with the DAAB's response under this
Rule.

8.7 If the DAAB issues an addendum to its original decision under Rule 8.3
or 8.6 above, such an addendum shall form part of the decision and the
period stated in sub-paragraph (c) of Sub-Clause 21.4.4 [Dissatisfaction
with DMB's decision] of the Conditions of Contract shall be calculated from
the date the Parties receive this addendum. (f)
~?
er::
Rule9 p
In the event of
Terrnination of
DAA Agreement 9.1 If, on the date of termination of a DAAB Member's DAA Agreement arising
from resignation or termination under Clause 10 of the GCs, the DAAB
is dealing with any Dispute under Sub-Clause 21.4 [Obtaining DMB's
Decision] of the Conditions of Contract:

(a) the period under Sub-Clause 21.4.3 [The DAAB's decision] of the
Conditions of Contract shall be temporarily suspended; and
(b) when a replacement DAAB Member is appointed in accordance
with Sub-Clause 21 .1 [Constitution of the DMB] of the Conditions
of Contract, the full period under Sub-Clause 21.4.3 [The DMB's
decision] of the Conditions of Contract shall apply from the date of
this replacement DAAB Member's appointment.
9.2 In the case of a three-member DAAB and if one DAAB Member's DAA
Agreement is terminated as a result of resignation or termination under
Clause 10 of the GCs, the Other Members shall continue as members of the
DAAB except that they shall not conduct any hearing or make any decision
prior to the replacement of the DAAB Member unless otherwise agreed
jointly by the Parties and the Other Members.

Objection Procedure 10.1 The following procedure shall apply to any objection against a DAAB
Member:

(a) the objecting Party shall, within 7 days of becoming aware of the facts
and/or events giving rise to the objection, give a Notification to the
DAAB Member of its objection. This Notification shall:
(i) state that it is given under this Rule;
(ii) state the reason(s) for the objection;
(iii) substantiate the objection by setting out the facts, and describing
the events, on which the objection is based, with supporting
particulars; and
(iv) be simultaneously copied to the other Party and the Other
Members;
(b) within 7 days after receiving a notice under sub-paragraph (a) above,
the objected DAAB Member shall respond to the objecting Party.
This response shall be simultaneously copied to the other Party and
the Other Members. If no response is given by the DAAB Member

General Conditions © FIDIC 2017

125
 within this period of 7 days, the DAAB Member shall be deemed to
have given a response denying the matters on which the objection is
based;
(c) within 7 days after receiving the objected DAAB Member's response
under sub-paragraph (b) above (or, if there is no such response, after
expiry of the period of 7 days stated in sub-paragraph (b) above)
the objecting Party may formally challenge a DAAB member in
accordance with Rule 11 below;
(d) if the challenge is not referred within the period of 7 days stated in
sub-paragraph (c) above, the objecting Party shall be deemed to have
agreed to the DAAB Member remaining on the DAAB and shall not
be entitled to object and/or challenge him/her thereafter on the basis
of any of the facts and/or evidence stated in the notice given under
sub-paragraph (a) above;
Rule 11
Challenge Procedure 11.1 If and when the objecting Party challenges a DAAB Member, within 21 days
of learning of the facts upon which the challenge is based, the provisions
of this Rule shall apply. Any challenge is to be decided by the International
Chamber of Commerce (ICC) and administered by the ICC International
Centre for ADR.

11.2 The procedure for such challenge and information on associated charges to
be paid are set out at http://fidic.org and http://iccwbo.org.

126 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 INDEX OF SUB-CLAUSES
Sub-Clause Page

Accepted Contract Amount, Sufficiency of the 4.11 32

Access after Taking Over, Right of 11.7 62
Access Route 4.15 34
Access to the Site, Right of 2.1 15
Adjustments for Changes in Cost 13.7 72
Adjustments for Changes in Laws 13.6 71
Advance Payment 14.2 72
Advance Warning 8.4 51
Agreement, Contract 1.6 10
Agreement or Determination 3.7 19 (/]
2
tY"

Amicable Settlement 21.5 107 ()

!.;, ..
Arbitration 21.6 108
Archaeological and Geological Findings 4.23 37
As-Built Records 5.6 41
Assignment 1.7 10
Assistance 2.2 15
Authorities, Delays Caused by 8.6 52
Avoidance of Interference 4.14 33

Care of the Works, Responsibility for 17.1 90

Care of the Works, Liability for 17.2 90
Certificate, Performance 11.9 63
Claims 20.1 99
Claims For Payment and/or EOT 20.2 99
Clearance of Site 11.11 64
Commencement of Works 8.1 49
Completion of Outstanding Work and Remedying Defects 11.1 59
Completion, Statement at 14.10 80
Completion, Time for 8.2 49
Conditions, Unforeseeable Physical 4.12 32
Confidentiality 1.12 12
Contract Termination 1.16 14
Contract Price, The 14.1 72
Contractor to Search 11.8 63
Contractor's Claims 20.1 100
Contractor's Documents 5.2 38
Contractor's Documents, Employer's Use of 1.10 11
Contractor's Equipment 4.17 35
Contractor's General Obligations 4.1 23
Contractor's Obligations After Termination 16.3 89
Contractor's Obligations: Tests on Completion 9.1 54
Contractor's Operations on Site 4.22 36
Contractor's Personnel 6.9 44
Contractor's Records 6.10 44
Contractor's Representative 4.3 25
Contractor's Superintendence 6.8 43
Contractor's Undertaking 5.3 40

General Conditions © FIDIC2017 127

 Co-operation 4.6 28
Cost, Adjustments for Changes in 13.7 71
Currencies of Payment 14.15 82

DAAB - see Dispute Avoidance I Adjudication Board

Daywork 13.5 70
Defective Work off Site, Remedying of 11.5 61
Defects, Failure to Remedy 11.4 61
Defects and Rejection 7.5 47
Defects Notification Period, Extension of 11.3 60
Defects, Remedying of 11.1 59
Definitions 1.1
Delay Damages 8.8 52
~· Delays Caused by Authorities 8.6 52
()
L .. Design Error 5.8 42
Design Obligations, General 5.1 37
Discharge 14.12 81
Disorderly Conduct 6.11 44
Dispute Avoidance/Adjudication Board, Constitution of the 21.1 103
Dispute Avoidance/Adjudication Board's Decision,
Failure to Comply with 21.7 108
Dispute Avoidance/Adjudication Board's Decision, Obtaining 21.4 105
Dispute Avoidance/Adjudication Board, No DAAB In Place 21.8 109
Dispute Avoidance/Adjudication Board Member(s),
Failure to Appoint 21.2 104
Disputes, Avoidance of 21.3 105
Documents, Care and Supply of 1.8 10
Documents, Contractor's 5.2 38
Documents, Contractor's Use of Employer's 1.11 12
Documents, Employer's Use of Contractor's 1.10 11
Documents, Priority of 1.5 9
Duty to Minimise Delay 18.3 94

Employer-Supplied Materials and Employer's Equipment 2.6 17

Employer's Claims: Currencies of Payment 14.15 83
Employer's Documents, Contractor's Use of 1.11 12
Employer's Financial Arrangements 2.4 16
Employer's Liability, Cessation of 14.14 82
Employer's Personnel and Other Contractors 2.3 15
Employer's Requirements, Errors in 1.9 11
Engineer, The 3.1 17
Engineer, Delegation by the 3.4 18
Engineer, Replacement of 3.6 19
Engineer's Duties and Authority 3.2 17
Engineer's Instructions 3.5 19
Engineer's Representative, The 3.3 18
Environment, Protection of the 4.18 35
Exceptional Event 18.1 93
Exceptional Event, Notice of an 18.2 93
Exceptional Event, Consequences of an 18.4 94

128 © FIDIC2017 Conditions of Contract for Plant and Design-Build

 Extension of Defects Notification Period 11.3 60
Extension of Time of Completion 8.5 51

Failure to Pass Tests after Completion 12.4 66

Failure to Pass Tests on Completion 9.4 56
FPC, Issue of 14.13 82
1.U
c~
Goods, Transport of 4.16 34 z<(
CJ

Health and Safety Obligations 4.8 29

Health and Safety of Personnel 6.7 43

Indemnities by Contractor 17.4 92 (/j

Indemnities by Employer 17.5 92 dl
it:
Indemnities, Shared 17.6 93 ?
Inspection 7.3 46
Instructions, Engineer's 3.5 19
Insurance to be provided by the Contractor 19.2 96
Insurance: General Requirements 19.1 95
Intellectual and Industrial Property Rights 17.3 91
Interference, Avoidance of 4.14 34
Interference with Tests on Completion 10.3 59
Interim Payment, Application for 14.3 74
Interpretation 1.2 8
Issue of FPC 14.13 81
Issue of IPC 14.6 77

Joint and Several Liability 1.14 14

Labour, Engagement of Staff and 6.1 42

Labour, Facilities for Staff and 6.6 43
Law and Language 1.4 9
Laws, Adjustments for Changes in 13.6 71
Laws, Compliance with 1.13 13
Laws, Labour 6.4 42
Liability, Cessation of Employer's 14.14 82
Liability, Joint and Several 1.14 14
Liability, Limitation of 1.15 14

Manner of Execution 7.1 45

Manuals, Operation and Maintenance 5.7 41
Meetings 3.8 22

Nominated Subcontractors 4.5 26

Notice to Correct 15.1 83
Notices and Other Communications 1.3 8

Obligations, Unfulfilled 11.10 64

Obligations, Contractor's General 4.1 23
Operation and Maintenance Manuals 5.7 41

General Conditions © FIDIC 2017

129
 Payment 14.7 78
Payment after Termination by the Contractor 16.4 89
Payment, Currencies of 14.15 82
Payment, Delayed 14.8 78
Payments, Schedule of 14.4 75
Performance Certificate 11.9 64
u Performance Security 4.2 23
()
7
<(
Personnel, Key 6.12 44
q Personnel, Contractor's 6.9 44
(J
Personnel and other Contractors, Employer's 2.3 15
Persons, Recruitment of 6.3 42
Plant and Materials intended for the Works 14.5 75
Plant and Materials, Ownership of 7.7 48
O)
~
C[
Priority of Documents 1.5 9
(.)
1..:... Programme 8.3 49
Progress, Rate of 8.7 52
Progress Reports 4.20 35
Provisional Sums 13.4 69

Quality Management and Compliance Verification Systems 4.9 30

Records, Contractor's 6.10 44

Regulations, Technical Standards and 5.4 40
Release from Performance under the Law 18.6 95
Remedial Work 7.6 48
Remedy Defects, Failure to 11.4 60
Remedying Defects 11.1 59
Remedying Defects, Cost of 11.2 60
Replacement of the Engineer 3.6 19
Representative, Contractor's 4.3 25
Representative, The Engineer's 3.3 18
Responsibility for Care of the Works 17.1 90
Resumption of Work 8.13 54
Retention Money, Release of 14.9 79
Retesting after Failure of Tests after Completion 12.3 65
Retesting after Failure of Tests on Completion 9.3 56
Right to Vary 13.1 66
Rights of Way and Facilities 4.13 33
Royalties 7.8 49

Samples 7.2 45
Schedule of Payments 14.4 75
Search, Contractor to 11.8 63
Security of the Site 4.21 36
Security, Performance 4.2 23
Setting Out 4.7 28
Site, Clearance of 11.11 64
Site, Contractor's Operations on 4.22 36
Site Data, Use of 4.10 31
Site Data and Items of Reference 2.5 16
Site, Right of Access to the 2.1 15

130 © FIDIC 2017 Conditions of Contract for Plant and Design-Build

 Site, Security of the 4.21 36
Staff and Labour, Engagement of 6.1 42
Staff and Labour, Facilities for 6.6 43
Standards and Regulations, Technical 5.4 40
Statement at Completion 14.10 79
Statement, Final 14.11 80
Subcontractors 4.4 26 U.i
C'-
Subcontractors, nominated 4.5 26 z<C
LJ
Superintendence, Contractor's 6.8 44
Surfaces Requiring Reinstatement 10.4 59 G
Suspension, Consequences of Employer's 8.10 53
Suspension by Contractor 16.1 87
Suspension, Employer's 8.9 53
{/)
Suspension, Payment for Plant and Materials after Employer's 8.11 53 2
::r.:
Suspension, Prolonged 8.12 54 0LL

Taking Over Parts 10.2 58

Taking Over the Works and Sections 10.1 57
Taking Over: Surfaces Requiring Reinstatement 10.4 59
Technical Standards and Regulations 5.4 40
Temporary Utilities 4.19 35
Termination, Optional 18.5 94
Termination by Contractor 16.2 88
Termination by Contractor, Payment after 16.4 89
Termination for Contractor's Default 15.2 83
Termination for Contractor's Default, Valuation after 15.3 85
Termination for Contractor's Default, Payment after 15.4 86
Termination for Employer's Convenience 15.5 86
Termination for Employer's Convenience, Valuation after 15.6 87
Termination for Employer's Convenience, Payment after 15.7 87
Termination, Contractor's Obligations After 16.3 89
Testing by the Contractor 7.4 46
Tests after Completion, Procedure for 12.1 64
Tests after Completion, Delayed 12.2 65
Tests after Completion, Failure to Pass 12.4 65
Tests after Completion, Retesting 12.3 65
Tests after Remedying Defects, Further 11.6 62
Tests on Completion, Contractor's Obligations 9.1 54
Tests on Completion, Delayed 9.2 55
Tests on Completion, Failure to Pass 9.4 56
Tests on Completion, Interference with 10.3 58
Time for Completion 8.2 49
Time for Completion, Extension of 8.5 51
Training 5.5 40
Transport of Goods 4.16 34

Unforeseeable Physical Conditions 4.12 32

Unfulfilled Obligations 11.10 64

Value Engineering 13.2 67

Variation Procedure 13.3 67

General Conditions © FIDIC 2017

131
 Wages and Conditions of Labour, Rates of 6.2 42
Working Hours 6.5 42

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132 © FIDIC 2017 Conditions of Contract for Plant and Design-Build