FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 1 of 103 CONDITIONS OF CONTRACT FOR PLANT AND DESIGN-BUILD FIRST EDITION 1999 FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 2 of 103 General Conditions 1 General Provisions 1.1 Definitions In the Conditions of Contract ("these Conditions"), which include Particular Conditions and these General Conditions, the following words and expressions shall have the meanings stated. Words indicating persons or parties include corporations and other legal entities, except where the context requires otherwise. 1.1.1 The Contract 1.1.1.1 "Contract" means the Contract Agreement, the Letter of Acceptance, the Letter of Tender, these Conditions, the Employer's Requirements, the Schedules, the Contractor's Proposal, and the further documents (if any) which are listed in the Contract Agreement or in the Letter of Acceptance. 1.1.1.2 "Contract Agreement" means the Contract Agreement (if any) referred to in Sub-Clause 1.6 [Contract Agreement]. 1.1.1.3 "Letter of Acceptance" means the letter of formal acceptance, signed by the Employer, of the Letter of Tender, including any annexed memoranda comprising agreements between and signed by both Parties. If there is no such Letter of Acceptance, the expression "Letter of Acceptance" means the Contract Agreement and the date of issuing or receiving the Letter of Acceptance means the date of signing the Contract Agreement. 1.1.1.4 "Letter of Tender" means the document entitled Letter of Tender, which was completed by the Contractor and includes the signed offer to the Employer for the Works. 1.1.1.5 "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 specifies the purpose, scope, and/or design and/or other technical criteria, for the Works. 1.1.1.6 "Schedules" means the document(s) entitled Schedules, completed by the Contractor and submitted with the Letter of Tender, as included in the Contract. Such document may include data, lists and Schedules of payments and/or prices. 1.1.1.7 "Contractor's Proposal" means the document entitled proposal, which FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 3 of 103 the Contractor submitted with the Letter of Tender, as included in the Contract. Such document may include the Contractor’s preliminary design. 1.1.1.8 "Tender" means the Letter of Tender and all other documents which the Contractor submitted with the Letter of Tender, as included in the Contract. 1.1.1.9 "Appendix to Tender" means the completed pages entitled Appendix to Tender which are appended to and form part of the Letter of Tender. 1.1.1.10 "Schedule of Guarantees" and "Schedule of Payments" mean the documents so named (if any) which are comprised in the Schedules. 1.1.2 Parties and Persons 1.1.2.1 "Party" means the Employer or the Contractor, as the context requires. 1.1.2.2 "Employer" means the person named as Employer in the Appendix to Tender and the legal successors in title to this person. 1.1.2.3 "Contractor" means the person(s) named as Contractor in the Letter of Tender accepted by the Employer and the legal successors in title to this person(s). 1.1.2.4 "Engineer" means the person appointed by the Employer to act as the Engineer for the purposes of the Contract and named in the Appendix to Tender, or other person appointed from time to time by the Employer and notified to the Contractor under Sub-Clause 3.4 [Replacement of the Engineer]. 1.1.2.5 "Contractor’s Representative" means the person named by the Contractor in the Contract or appointed from time to time by the Contractor under Sub-Clause 4.3 [Contractor's Representative], who acts on behalf of the Contractor. 1.1.2.6 "Employer’s Personnel" means the Engineer, the assistants referred to in Sub-Clause 3.2 [Delegation by the Engineer] and all other staff, labour and other employees of the Engineer and of the Employer; and any other personnel notified to the Contractor, by the Employer or the Engineer, as Employer's Personnel. 1.1.2.7 "Contractor’s Personnel" means the Contractor's Representative and all personnel whom the Contractor utilises on Site, who may include 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. 1.1.2.8 "Subcontractor" means any person named in the Contract as a Subcontractor, or any person appointed as a Subcontractor, for a part of FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 4 of 103 the Works; and the legal successors in title to each of these persons. 1.1.2.9 "DAB" means the person or three persons so named in the Contract, or other person(s) appointed under Sub-Clause 20.2 [Appointment of the Dispute Adjudication Board] or Sub-Clause 20.3 [Failure to Agree Dispute Adjudication Board]. 1.1.2.10 "FIDIC" means the Fédération Internationale des Ingénieurs-Conseils, the international federation of consulting engineers. 1.1.3 Dates, Tests, Periods and Completion 1.1.3.1 "Base Date" means the date 28 days prior to the latest date for submission of the Tender. 1.1.3.2 "Commencement Date" means the date notified under Sub-Clause 8.1 [Commencement of Works]. 1.1.3.3 "Time for Completion" means the time for completing the Works or a Section (as the case may be) under Sub-Clause 8.2 [Time for Completion], as stated in the Appendix to Tender (with any extension under Sub-Clause 8.4 [Extension of Time for Completion]), calculated from the Commencement Date. 1.1.3.4 "Tests on Completion" means the tests which are specified in the Contract or agreed by both Parties or instructed as a Variation, and which are carried out under Clause 9 [Tests on Completion] before the Works or a Section (as the case may be) are taken over by the Employer. 1.1.3.5 "Taking-Over Certificate" means a certificate issued under Clause 10 [Employer’s Taking Over]. 1.1.3.6 "Tests after Completion" means the tests (if any) which are specified in the Contract and which are carried out under Clause 12 [Tests after Completion] after the Works or a Section (as the case may be) are taken over by the Employer. 1.1.3.7 "Defects Notification Period" means the period for notifying defects in the Works or a Section (as the case may be) under Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects], as stated in the Appendix to Tender (with any extension under Sub-Clause 11.3 [Extension of Defects Notification Period]), calculated from the date on which the Works or Section is completed as certified under Sub-Clause 10.1 [Taking Over of the Works and Sections]. 1.1.3.8 "Performance Certificate" means the certificate issued under Sub-Clause 11.9 [Performance Certificate]. 1.1.3.9 "day" means a calendar day and "year" means 365 days. 1.1.4 Money and Payments FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 5 of 103 1.1.4.1 "Accepted Contract Amount" means the amount accepted in the Letter of Acceptance for the design, execution and completion of the Works and the remedying of any defects. 1.1.4.2 "Contract Price" means the price defined in Sub-Clause 14.1 [The Contract Price], and includes adjustments in accordance with the Contract. 1.1.4.3 "Cost" means all expenditure reasonably incurred (or to be incurred) by the Contractor, whether on or off the Site, including overhead and similar charges, but does not include profit. 1.1.4.4 "Final Payment Certificate" means the payment certificate issued under Sub-Clause 14.13 [Issue of Final Payment Certificate]. 1.1.4.5 "Final Statement" means the Statement defined in Sub-Clause 14.11 [Application for Final Payment Certificate]. 1.1.4.6 "Foreign Currency" means a currency in which part (or all) of the Contract Price is payable, but not the Local Currency. 1.1.4.7 "Interim Payment Certificate" means a payment certificate issued under Clause 14 [Contract Price and Payment], other than the Final Payment Certificate. 1.1.4.8 "Local Currency" means the currency of the Country. 1.1.4.9 "Payment Certificate" means a payment certificate issued under Clause 14 [Contract Price and Payment]. 1.1.4.10 "Provisional Sum" means a sum (if any) which is specified in the Contract 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 13.5 [Provisional Sums]. 1.1.4.11 "Retention Money" means the accumulated Retention Moneys which the Employer retains under Sub-Clause 14.3 [Application for Interim Payment Certificates] and pays under Sub-Clause 14.9 [Payment of Retention Money]. 1.1.4.12 "Statement" means a Statement submitted by the Contractor as part of an application, under Clause 14 [Contract Price and Payment], for a payment certificate. 1.1.5 Works and Goods 1.1.5.1 "Contractor’s Equipment" means all apparatus, machinery, vehicles and other things required for the execution and completion of the Works and the remedying of any defects. However, Contractor's Equipment excludes Temporary Works, Employers Equipment (if any), Plant, Materials and any FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 6 of 103 other things intended to form or forming part of the Permanent Works. 1.1.5.2 "Goods" means Contractor's Equipment, Materials, Plant and Temporary Works, or any of them as appropriate. 1.1.5.3 "Materials" means things of all kinds (other than Plant) 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. 1.1.5.4 "Permanent Works" means the Permanent Works to be designed and executed by the Contractor under the Contract. 1.1.5.5 "Plant" means the apparatus, machinery and vehicles intended to form or forming part of the Permanent Works. 1.1.5.6 "Section" means a part of the Works specified in the Appendix to Tender as a Section (if any). 1.1.5.7 "Temporary Works" means all Temporary Works of every kind (other than Contractor’s Equipment) required on Site for the execution and completion of the Permanent Works and the remedying of any defects. 1.1.5.8 "Works" mean the Permanent Works and the Temporary Works, or either of them as appropriate. 1.1.6 Other Definitions 1.1.6.1 "Contractor’s Documents" means the calculations, computer programs and other software, drawings, manuals, models and other documents of a technical nature supplied by the Contractor under the Contract; as described in Sub-Clause 5.2 [Contractor's Documents]. 1.1.6.2 "Country" means the Country in which the Site (or most of it) is located, where the Permanent Works are to be executed. 1.1.6.3 "Employer’s Equipment" means the apparatus, machinery and vehicles (if any) made available by the Employer for the use of the Contractor in the execution of the Works, as stated in the Employer's Requirements; but does not include Plant which has not been taken over by the Employer. 1.1.6.4 "Force Majeure" is defined in Clause 19 [Force Majeure]. 1.1.6.5 "Laws" means all national (or state) legislation, statutes, ordinances and other Laws, and regulations and by-Laws of any legally constituted public authority. 1.1.6.6 "Performance Security" means the security (or securities, if any) under Sub-Clause 4.2 [Performance Security]. 1.1.6.7 "Site" means the places where the Permanent Works are to be executed and to which Plant and Materials are to be delivered, and any other places FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 7 of 103 as may be specified in the Contract as forming part of the Site. 1.1.6.8 "Unforeseeable" means not reasonably foreseeable by an experienced Contractor by the date for submission of the Tender. 1.1.6.9 "Variation" means any change to the Employer's Requirements or the Works, which is instructed or approved as a Variation under Clause 13 [Variations and Adjustments]. 1.2 Interpretation In the Contract, except where the context requires otherwise: (a) words indicating one gender include all genders; (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, and (d) "written" or "in writing" means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The marginal words and other headings shall not be taken into consideration in the interpretation of these Conditions. 1.3 Communications Wherever these Conditions provide for the giving or issuing of approvals, certificates, consents, determinations, notices and requests, these communications shall be: (a) in writing and delivered by hand (against receipt), sent by mail or courier, or transmitted using any of the agreed systems of electronic transmission as stated in the Appendix to Tender; and (b) delivered, sent or transmitted to the address for the recipient’s communications as stated in the Appendix to Tender. However: FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 8 of 103 Approvals, certificates, consents and determinations shall not be unreasonably withheld or delayed. When a certificate is issued to a Party, the certifier shall send a copy to the other Party. When a notice is issued to a Party, by the other Party or the Engineer, a copy shall be sent to the Engineer or the other Party, as the case may be. 1.4 Law and Language The Contract shall be governed by the law of the Country (or other jurisdiction) stated in the Appendix to Tender. 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 stated in the Appendix to Tender shall prevail. The language for communications shall be that stated in the Appendix to Tender. If no language is stated there, the language for communications shall be the language in which the Contract (or most of it) is written. 1.5 Priority of Documents The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence: (a) the Contract Agreement (if any), (b) the Letter of Acceptance, (c) the Letter of Tender, (d) the Particular Conditions, (e) these General Conditions, (f) the Employer's Requirements, (g) the Schedules, and (h) the Contractor's Proposal and any other documents forming part of the Contract. (i) if the recipient gives notice of another address, communications shall thereafter be delivered accordingly; and (ii) if the recipient has not stated otherwise when requesting an approval or consent, it may be sent to the address from which the request was issued. FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 9 of 103 If an ambiguity or discrepancy is found in the documents, the Engineer shall issue any necessary clarification or instruction. 1.6 Contract Agreement The Parties shall enter into a Contract Agreement within 28 days after the Contractor receives the Letter of Acceptance, unless they agree otherwise. The Contract Agreement shall be based upon 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. 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 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 its right to any moneys due, or to become due, under the Contract. 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 taken over by the Employer. Unless otherwise stated in the Contract, the Contractor shall supply to the Engineer six copies of each of the Contractor's Documents. The Contractor shall keep, on the Site, a copy of the Contract, publications named in the Employer's Requirements, the Contractor's Documents, and Variations and other communications given under the Contract. The Employer's Personnel shall have the right of access to all these documents at all reasonable times. If a Party becomes aware of an error or defect of a technical nature in a document which was prepared for use in executing the Works, the Party shall promptly give notice to the other Party of such error or defect. 1.9 Errors in the Employer's Requirements If the Contractor suffers delay and/or incurs Cost as a result of an error in the Employer's Requirements, and an experienced Contractor exercising due care would not have discovered the error when scrutinising the Employer's Requirements under Sub-Clause 5.1 [General Design Obligations], the Contractor shall give notice FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 10 of 103 to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to: (a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and (b) payment of any such Cost plus reasonable profit, which shall be included in the Contract Price. After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) whether and (if so) to what extent the error could not reasonably have been so discovered, and (ii) the matters described in sub-paragraphs (a) and (b) above related to this extent. 1.10 Employer’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 of) the Contractor. The Contractor shall be deemed (by signing the Contract) to give to the Employer a non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the Contractor's Documents, including making and using modifications of them. This licence shall: (a) apply throughout the actual or intended working 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 for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works, and (c) in the case of Contractor's Documents which are in the form of computer programs and other software, permit their use on any computer on the Site and other places as envisaged by the Contract, including replacements of any computers supplied by the Contractor. The Contractor's Documents and other design documents made by (or on behalf of) the Contractor shall not, without the Contractor’s 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 of Employer’s Documents FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 11 of 103 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 his Cost, copy, use, and obtain communication of these documents for the purposes of the Contract. They shall not, without the Employer’s consent, be copied, used or communicated to a third Party by the Contractor, except as necessary for the purposes of the Contract. 1.12 Confidential Details 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. 1.13 Compliance with Laws The Contractor shall, in performing the Contract, comply with applicable Laws. Unless otherwise stated in the Particular Conditions: (a) the Employer shall have obtained (or shall obtain) the planning, zoning or similar permission for the Permanent Works, and any other permissions described in the Employer's Requirements as having been (or being) obtained by the Employer; and the Employer shall indemnify and hold the Contractor harmless against and from the consequences of any failure to do so; and (b) the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all permits, licences and approvals, as required by the Laws in relation to the design, execution and completion of the Works and the remedying of any defects; and the Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so. 1.14 Joint and Several Liability If the Contractor constitutes (under applicable Laws) a joint venture, consortium or other unincorporated grouping of two or more persons: (a) these persons shall be deemed to be jointly and severally liable to the Employer for the performance of the Contract; (b) these persons shall notify the Employer of their leader who shall have authority to bind the Contractor and each of these persons; and (c) the Contractor shall not alter its composition or legal status without the prior consent of the Employer. FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 12 of 103 2 The Employer 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 Appendix to Tender. 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 Appendix to Tender, the Employer shall give the Contractor right of access to, and possession of, the Site within such times as may be required to enable the Contractor to proceed in accordance with the 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 give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to: (a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and (b) payment of any such Cost plus reasonable profit, which shall be included in the Contract Price. After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters. 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 Contractor's Documents, the Contractor shall not be entitled to such extension of time, Cost or profit. 2.2 Permits, Licences or Approvals The Employer shall (where he is in a position to do so) provide reasonable assistance to the Contractor at the request of the Contractor: FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 13 of 103 (a) by obtaining copies of the Laws of the Country which are relevant to the Contract but are not readily available, and (b) for the Contractor’s applications for any permits, licences or approvals required by the Laws of the Country: 2.3 Employer's Personnel The Employer shall be responsible for ensuring that the Employer's Personnel and the Employer’s other contractors on the Site: (a) co-operate with the Contractor’s efforts under Sub-Clause 4.6 [Co-operation], and (b) take actions similar to those which the Contractor is required to take under sub-paragraphs (a), (b) and (c) of Sub-Clause 4.8 [Safety Procedures] and under Sub-Clause 4.18 [Protection of the Environment]. 2.4 Employer’s Financial Arrangements The Employer shall submit, within 28 days after receiving any request from the Contractor, reasonable evidence that financial arrangements have been made and are being maintained which will enable the Employer to pay the Contract Price (as estimated at that time) in accordance with Clause 14 [Contract Price and Payment]. If the Employer intends to make any material change to his financial arrangements, the Employer shall give notice to the Contractor with detailed particulars. 2.5 Employer’s Claims If the Employer considers himself to be entitled to any payment under any Clause of these Conditions or otherwise in connection with the Contract, and/or to any extension of the Defects Notification Period, the Employer or the Engineer shall give notice and particulars to the Contractor. However, notice is not required for payments due under Sub-Clause 4.19 [Electricity, Water and Gas], under Sub-Clause 4.20 [Employers Equipment and Free-Issue Material], or for other services requested by the Contractor. The notice shall be given as soon as practicable after the Employer became aware of the event or circumstances giving rise to the claim. A notice relating to any (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. FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 14 of 103 extension of the Defects Notification Period shall be given before the expiry of such period. The particulars shall specify the Clause or other basis of the claim, and shall include substantiation of the amount and/or extension to which the Employer considers himself to be entitled in connection with the Contract. The Engineer shall then proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) the amount (if any) which the Employer is entitled to be paid by the Contractor, and/or (ii) the extension (if any) of the Defects Notification Period in accordance with Sub-Clause 11.3 [Extension of Defects Notification Period]. This amount may be included as a deduction in the Contract Price and Payment Certificates. The Employer shall only be entitled to set off against or make any deduction from an amount certified in a Payment Certificate, or to otherwise claim against the Contractor, in accordance with this Sub-Clause. FIDIC Conditions of Contract for Plant And Design-Build Contract First Edition, 1999 Page 15 of 103 3 The Engineer 3.1 Engineer’s Duties and Authority The Employer shall appoint the Engineer who shall carry out the duties assigned to him in the Contract. The Engineer’s staff shall include suitably qualified engineers and other professionals who are competent to carry out these duties. The Engineer shall have no authority to amend 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 approval of the Employer before exercising a specified authority, the requirements shall be as stated in the Particular Conditions. The Employer undertakes not to impose further constraints on the Engineer’s authority, except as agreed with the Contractor. However, whenever the Engineer exercises a specified authority for which the Employer’s approval is required, then (for the purposes of the Contract) the Employer shall be deemed to have given approval. Except as otherwise stated in these Conditions: (a) whenever carrying out duties or exercising authority, specified in or implied by the Contract, the Engineer shall be deemed to act for the Employer; (b) the Engineer has no authority to relieve either Party of any duties, obligations or responsibilities under the Contract; and (c) any approval, check, certificate, consent, examination, inspection, instruction, notice, proposal, request, test, or similar act by the Engineer (including absence of disapproval) shall not relieve the Contractor from any responsibility he has under the Contract, including responsibility for errors, omissions, discrepancies and non-compliances. 3.2 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. These assistants may include a resident engineer, and/or independent inspectors appointed to