FIDIC CONDITIONS OF CONTRACT FOR DESIGN, BUILD AND TURNKEY（1995） PART I GENERAL CONDITIONS第一部分 通用條件 PART II GUIDANCE FOR THE PREPARATION OF CONDITIONS OF PARTICULAR APPLICATION WITH FORMS OF TENDER AND AGREEMENT AND FIDIC MODEL TEFIDIC CONDITIONS OF CONTRACT FOR DESIGN, BUILD AND TURNKEY（1995）
PART I GENERAL CONDITIONS第一部分 通用條件
PART II GUIDANCE FOR THE PREPARATION OF CONDITIONS OF PARTICULAR APPLICATION WITH FORMS OF TENDER AND AGREEMENT AND FIDIC MODEL TERMS FOR THE APPOINTMENT OF A DISPUTE ADJUDICATION BOARD
PART I GENERAL CONDITIONS
PART II GUIDANCE FOR THE PREPARATION OF CONDITIONS OF PARTICULAR APPLICATION WITH FORMS OF TENDER AND AGREEMENT AND FIDIC MODEL TERMS FOR THE APPOINTMENT OF A DISPUTE ADJUDICATION BOARD
ACKNOWLEDGEMENTS
F¨¦d¨¦ration Internationale des Ing¨¦nieurs-Conseils (FIDIC) extends special thanks to the following
members of itsOrange Book Task Group: Axel-Volkmar Jaeger (Task Group Leader), Schmidt Reuter Partner, Germany; Peter L Booen, Sir Alexander Gibb & Partners Ltd, UK; Philip Jenkinson, W S Atkins, UK; Bob Kavanagh, Stanley Industrial Consultants Ltd, Canada; and Charles B Molineaux, Wickwire Gavin PC, USA.
Various drafts were reviewed by the following persons or organisations: Peter Batty, TAMS Consultants Inc., USA; Geoffrey F Hawker, Consulting Engineer, UK; Joseph A Huse, Freshfields, France; Gordon L Jaynes, Whitman Breed Abbott & Morgan, UK; A E J (Tony) Sanders, Mouchel Management Ltd,UK; R J (Rob) Falconi, Delcan Corporation, Canada; Harold Fairfull, European Capital, UK; Martyn J Nixon, Willis Corroon, UK; Per Fagerholt, COWIConsult A/S, Denmark; Christopher Wade, VBB VIAK AB, Sweden; Dr Grossekatth.fer, Germany; David R Wightman and Andrew Inkester, Nabarro Nathanson, UK; Christopher R Seppala, White & Case, France; Mark Griffiths, Griffiths & Armour, UK; A J M (Tony) Blackler, Rowe & Maw, UK; the World Bank; and the International Bar Association.
The preparation was carried out under the general direction of the FIDIC Contracts Committee comprising K B (Tony) Norris, Consulting Engineer, UK (Chairman); Michael Mortimer-Hawkins, SwedPower AB, Sweden; and John B Bowcock, Sir Alexander Gibb & Partners Ltd, UK. FIDIC wishes to record its appreciation of the time and effort devoted by all the above. The ultimate decision on the form and content of the document rests with FIDIC.
FOREWORD
The terms of the Conditions of Contract for Design-Build and Turnkey have been prepared by the
F¨¦d¨¦ration Internationale des Ing¨¦nieurs-Conseils (FIDIC) and are recommended for general use for the purpose of the design and construction of works where tenders are invited on an international basis; with minor modifications, the Conditions are also suitable for use on domestic contracts. There are no universally-accepted definitions of the termsdesign-build andturnkey, except that both involve the Contractors total liability for design. For the Employer, such single-point responsibility may be advantageous, but the benefits may be offset by having less control over the design process and more difficulty in imposing varied requirements.
Under the usual arrangements for a design-build contract, the Contractor is responsible for the design and provision, in accordance with the Employers requirements, of works which may include any combination of engineering (including civil, mechanical, electrical, etc) and building works; and interim payments are made as construction proceeds. In Part I, Clause 13 sets out the payment arrangements.
The Conditions are also intended for use on turnkey contracts, under which the Employers requirements usually include provision of a fully-equipped facility, ready for operation (at the turn of thekey); such contracts are often contractor-financed. Turnkey contracts typically include design, construction, fixtures, fittings and equipment, the scope of which would be defined in other contract documents. In addition, the contract may impose a requirement for the Contractor to operate the Works, either for a few months' commissioning period, or for some years operation on a build-operate-transfer contract. Advice on turnkey arrangements is included in Part II, together with sample wording for contractor-finance.
The version in English of the Conditions is considered by FIDIC as the official and authentic text for the purposes of translation.
In the preparation of the Conditions it was recognised that, while there are many sub-clauses which will be generally applicable, there are some sub-clauses which must necessarily vary to take account of the circumstances relevant to the particular contract. The sub-clauses which were considered to be applicable to the majority of contracts have therefore been presented in Part I - General Conditions, which will facilitate their incorporation into the contract. Part I - General Conditions and Part II - Conditions of Particular Application will together comprise the Conditions governing the rights and obligations of the parties. It will be necessary to prepare the Part II for each individual contract, taking particular account of the references to Part II which are contained in some sub-clauses in Part I. In order to assist in the preparation of Part II and the other tender documents, explanatory material and example wording are published with these Conditions in the Guidance for the Preparation of Conditions of Particular Application. More detailed guidance will be included in a guide to the use of these conditions, to be published by early 1996.
CONTENTS
PART 1: GENERAL CONDITIONS
1 THE CONTRACT
1.1 Definitions
1.2 Headings and Marginal Notes
1.3 Interpretation
1.4 Law and Language
1.5 Contract Agreement
1.6 Priority of Documents
1.7 Documents on Site
1.8 Communications
1.9 Provision of Construction Documents
1.10 Employer’s Use of Contractor's Documents
1.11 Contractor’s Use of Employer's Documents
1.12 Confidential Details
1.13 Compliance with Statutes, Regulations and Laws
1.14 Joint and Several Liability
2 THE EMPLOYER
2.1 General Obligations
2.2 Access to and Possession of the Site
2.3 Permits, Licences or Approvals
2.4 Employer's Entitlement to Terminate
3 THE EMPLOYER’S REPRESENTATIVE
3.1 Employer’s Representative’s Duties and Authority
3.2 Requirements for Employer’s Representative
3.3 Employer’s Representative’s Authority to Delegate
3.4 Employer’s Representative’s Instructions
3.5 Employer's Representative to Attempt Agreement
4 THE CONTRACTOR
4.1 General Obligations
4.2 Performance Security
4.3 Contractor’s Representative
4.4 Co-ordination of the Works
4.5 Subcontractors
4.6 Assignment of Subcontractor’s Obligations
4.7 Setting Out
4.8 Quality Assurance
4.9 Site Data
4.10 Matters Affecting the Execution of the Works
4.11 Unforeseeable Sub-Surface Conditions
4.12 Access Route
4.13 Rights of Way and Facilities
4.14 Programme
4.15 Progress Reports
4.16 Contractor’s Equipment
4.17 Safety Precautions
4.18 Protection of the Environment
4.19 Electricity, Water and Gas
4.20 Employer Supplied Machinery and Materials
4.21 Clearance of Site
4.22 Security of the Site
4.23 Contractor’s Operations on Site
4.24 Fossils
5 DESIGN
5.1 General Obligations
5.2 Construction Documents
5.3 Contractor’s Undertaking
5.4 Technical Standards and Regulations
5.5 Samples
5.6 As-Built Drawings
5.7 Operation and Maintenance Manuals
5.8 Error by Contractor
5.9 Patent Rights
6 STAFF AND LABOUR
6.1 Engagement of Staff and Labour
6.2 Rates of Wages and Conditions of Labour
6.3 Persons in the Service of Others
6.4 Labour Laws
6.5 Working Hours
6.6 Facilities for Staff and Labour
6.7 Health and Safety
6.8 Contractor’s Superintendence
6.9 Contractor’s Personnel
6.10 Disorderly Conduct
7 PLANT, MATERIALS AND WORKMANSHIP
7.1 Manner of Execution
7.2 Delivery to Site
7.3 Inspection
7.4 Testing
7.5 Rejection
7.6 Ownership of Plant and Materials
8 COMMENCEMENT, DELAY AND SUSPENSION
8.1 Commencement of Works
8.2 Time for Completion
8.3 Extension of Time for Completion
8.4 Delays Caused by Authorities
8.5 Rate of Progress
8.6 Liquidated Damages for Delay
8.7 Suspension of Work
8.8 Consequences of Suspension
8.9 Payment for Plant and Materials in Event of Suspension
8.10 Prolonged Suspension
8.11 Resumption of Work
9 TEST ON COMPLETION
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
10.1 Taking-Over Certificate
10.2 Use by the Employer
10.3 Interference with Tests on Completion
11 TEST ON COMPLETION
11.1 Employer’s Obligations
11.2 Delayed Tests
11.3 Retesting
11.4 Failure to Pass Tests after Completion
12 DEFECTS LIABILITY
12.1 Completion of Outstanding Work and Remedying Defects
12.2 Cost of Remedying Defects
12.3 Extension of Contract Period
12.4 Failure to Remedy Defects
12.5 Removal of Defective Work
12.6 Further Tests
12.7 Right of Access
12.8 Contractor to Search
12.9 Performance Certificate
12.10 Unfulfilled Obligations
13 CONTRACT PRICE AND PAYMENT
13.1 The Contract Price
13.2 Advance Payments
13.3 Application for Interim Payment Certificates
13.4 Schedule of Payments
13.5 Plant and Materials for the Permanent Works
13.6 Issue of Interim Payment Certificates
13.7 Payment
13.8 Delayed Payment
13.9 Payment of Retention Money
13.10 Statement at Completion
13.11 Application for Final Payment Certificate
13.12 Discharge
13.13 Issue of Final Payment Certificate
13.14 Cessation of Employer's Liability
13.15 Calculation of Payments in Foreign Currency
13.16 Changes in Legislation
14 VARIATIONS
14.2 Value Engineering
14.3 Variation Procedure
14.4 Payment in Applicable Currencies
14.5 Provisional Sums
15 DEFAULT OF CONTRACTOR
15.1 Notice to Correct
15.2 Termination
15.3 Valuation at Date of Termination
15.4 Payment after Termination
15.5 Bribes
16 DEFAULT OF EMPLOYER
16.1 Contractor’s Entitlement to Suspend Work
16.2 Termination
16.3 Cessation of Work and Removal of Contractor's Equipment
16.4 Payment on Termination
17 RISK AND RESPONSIBILITY
17.1 Indemnity
17.2 Contractor’s Care of the Works
17.3 Employer’s Risks
17.4 Consequences of Employer’s Risks
17.5 Contractor’s Risks
17.6 Limitation of Liability
18 INSURANCE
18.1 Insurance for Design
18.2 Insurance for Works and Contractor’s Equipment
18.3 Insurance against Injury to Persons and Damage to Property
18.4 Insurance for Workers
18.5 General Requirements for Insurances
19 FORCE MAJEURE
19.1 Definition of Force Majeure
19.2 Effect of Force Majeure Event
19.3 Contractor's Responsibility
19.4 Employer's Responsibility
19.5 Payment to Contractor
19.6 Optional Termination, Payment and Release
19.7 Release from Performance under the Law
20 CLAIMS, DISPUTE AND ARBITRATION
20.1 Procedure for Claims
20.2 Payment of Claims
20.3 Dispute Adjudication Board
20.4 Procedure for Obtaining Dispute Adjudication Board's Decision
20.5 Amicable Settlement
20.6 Arbitration
20.7 Failure to Comply with Dispute Adjudication Board’s Decision
20.8 Expiry of Dispute Adjudication Board’s Appointment
INDEX
ADDENDUM
FIDIC Model Terms of Appointment for a Dispute Adjudication Board
TERMS OF APPOINTMENT FOR A BOARD OF THREE MEMBERS
Appendix A: PROCEDURAL RULES OF THE DISPUTE ADJUDICATION BOARD (OF THREE
MEMBERS)
TERMS OF APPOINTMENT FOR A BOARD OF ONE MEMBER
Appendix A: PROCEDURAL RULES OF THE DISPUTE ADJUDICATION BOARD (OF ONE MEMBER)
PART I - GENERAL CONDITIONS
THE CONTRACT
1 The Contract
Definitions
1.1 In the Contract (as defined below) the words and expressions defined below shall have the meanings assigned to them, except where the context requires otherwise:
1.1.1 Documents
1.1.1.1 Contract means these Conditions of Contract (Parts I and II), the Employer‘s Requirements, the Tender, the Contractor’s Proposal, the Schedules, the Letter of Acceptance, the Contract Agreement (if completed) and such further documents as may be expressly incorporated in the Letter of Acceptance or Contract Agreement (if completed).
1.1.1.2 Employer’s Requirements means the description of the scope, standard, design criteria (if any) and programme of work, as included in the Contract, and any alterations and modifications thereto in accordance with the Contract.
1.1.1.3 Tender means the Contractor’s priced offer to the Employer for the Works, as accepted by the Letter of Acceptance.
1.1.1.4 Appendix to Tender means the completed appendix comprised in
the Tender.
1.1.1.5 Contractor’s Proposal means the preliminary design submitted with
the Tender, as included in the Contract.
1.1.1.6 Schedules means the information and data submitted with the Tender, as included in the Contract.
1.1.1.7 Schedule of Payments means the Schedule designated as such (if any), referred to in Sub-Clause 13.4.
1.1.1.8 Letter of Acceptance means the formal acceptance by the Employer of the Tender.
1.1.1.9 Contract Agreement means the contract agreement (if any) referred to in Sub-Clause 1.5.
1.1.2 Persons
1.1.2.1 Employer means the person named as such in the Appendix to Tender and the legal successors in title to such person, but not (except with the consent of the Contractor) any assignee of such person.
1.1.2.2 Contractor means the person whose Tender has been accepted by he Employer and the legal successors in title to such person, but not (except with the consent of the Employer) any assignee of such person.
1.1.2.3 Employer’s Representative means the person appointed by the Employer to act as Employer's Representative for the purposes of the Contract and named as such in the Appendix to Tender, or other person appointed from time to time by the Employer and notified as such to the Contractor.
1.1.2.4 Contractor’s Representative means the person (if any) named as such in the Contract or other person appointed from time to time by the Contractor under Sub-Clause 4.3.
1.1.2.5 Subcontractor means any person named in the Contract as a subcontractor, manufacturer or supplier for a part of the Works or any person to whom a part of the Works has been subcontracted in
accordance with Sub-Clause 4.5, and the legal successors in title to such person, but not any assignee of such person.
1.1.2.6 Dispute Adjudication Board means the person or persons named as such in the Contract, or other person or persons appointed from time to time under Sub-Clause 20.3.
1.1.3 Dates, Times and Periods
1.1.3.1 Base Date means the date 28 days prior to the latest date for submission of the Tender for acceptance by the Employer.
1.1.3.2 Effective Date means the date on which the Contract entered into legal force and effect.
1. 1.3.3 Commencement Date means the date on which the Contractor receives the notice to commence issued by the Employer’s Representative under Sub-Clause 8.1.
1.1.3.4 Time for Completion means the time for completing the Works or a Section (as the case may be), and passing the Tests on Completion, as stated in the Appendix to Tender (or as extended under Sub- Clause 8.3), calculated from the Commencement Date.
1.1.3.5 Contract Period means the period from the Commencement Date to the date 365 days after the date on which the whole of the Works shall have been completed as certified by the Employer’s Representative under Clause 10 (or as extended under Sub-Clause 12.3).
1.1.3.6 day means a calendar day and year means 365 days.
1.1.4 Tests and Completion
1.1.4.1 Tests on Completion means the tests specified in the Contract and designated as such, and any other such tests as may be agreed by the Employer’s Representative and the Contractor or instructed as a Variation, which are to be carried out before the Works or any Section are taken over by the Employer.
1.1.4.2 Taking-Over Certificate means a certificate issued under Clause 10.
1.1.4.3 Tests after Completion means the tests specified in the Contract and designated as such, which are to be carried out after the Works or any Section are taken over by the Employer.
1.1.4.4 Performance Certificate means the certificate issued by the Employer’s Representative under Sub-Clause 12.9.
1.1.5 Money and Payments
1.1.5.1 Contract Price means the sum stated in the Letter of Acceptance as payable to the Contractor for the design, execution and completion of the Works and the remedying of any defects in accordance with the provisions of the Contract.
1.1.5.2 Local Currency means the currency of the Country.
1.1.5.3 Foreign Currency means a freely convertible currency, named in the Appendix to Tender as a currency in which part of the Contract Price is payable, but not the Local Currency.
1.1.5.4 Retention Money means the accumulated retention monies retained by the Employer under Sub-Clause 13.3.
1.1.5.5 Provisional Sum means a sum (if any) specified in the Contract and designated as such, for the execution of any part of the Works or for the supply of Plant, Materials or services.
1.1.5.6 Cost means all expenditure properly incurred (or to be incurred) by the Contractor, whether on or off the Site, including overhead and similar charges, but does not include profit.
1.1.5.7 Interim Payment Certificate means any payment certificate issued by the Employer’s Representative under Clause 13, other than the Final Payment Certificate.
1.1.5.8 Final Payment Certificate means the payment certificate issued by the Employer’s Representative under Sub-Clause 13.13.
1.1.5.9 Final Statement means the agreed statement defined in Sub- Clause 13.11.
1.1.6 Other Definitions
1.1.6.1 Construction Documents means all drawings, calculations, computer software (programs), samples, patterns, models, operation and maintenance manuals, and other manuals and information of a similar nature, to be submitted by the Contractor.
1.1.6.2 Variation means any alteration and/or modification to the Employer’s Requirements, which is instructed by the Employer’s Representative or approved as a variation by the Employer’s Representative, in accordance with Clause 14. 1.1.6.3 Works means the Permanent Works and the Temporary Works or either of them as appropriate.
1.1.6.4 Permanent Works means the permanent works to be designed and executed in accordance with the Contract.
1.1.6.5 Temporary Works means all temporary works of every kind (other than Contractor’s Equipment) required for the execution and completion of the Works and the remedying of any defects.
1.1.6.6 Plant means machinery and apparatus intended to form or forming part of the Permanent Works, including the supply-only items (if any) which are to be supplied by the Contractor as specified in the Contract.
1.1.6.7 Materials means things of all kinds (other than Plant) to be provided and incorporated in the Permanent Works by the Contractor, including the supply-only items (if any) which are to be supplied by the Contractor as specified in the Contract.
1.1.6.8 Contractor’s Equipment means all machinery, apparatus and other things (other than Temporary Works) required for the execution and completion of the Works and the remedying of any defects, but does not include Plant, Materials, or other things intended to form or forming part of the Permanent Works.
1.1.6.9 Section means a part of the Works specifically defined in the Appendix to
Tender as a Section (if any).
1.1.6.10 Site means the places provided by the Employer where the Works are to be executed and to which Plant and Materials are to be delivered, and any other places as may be specifically designated in the Contract as forming part of the Site.
1.1.6.11 Country means the country in which the Works are to be executed and to which Plant and Materials are to be delivered.
Headings and Marginal Notes
1.2 The headings and marginal notes are not part of these Conditions, and shall not be taken into consideration in their interpretation.
Interpretation
1.3 Words importing persons or parties shall include firms and corporations and any organization having legal capacity. Words importing the singular also include the plural and vice versa where the context requires. Words importing one gender also include other genders.
Law and Language
1.4 The law of the Contract is named in the Appendix to Tender. Where versions of the Contract are prepared in different languages, the version which is in the ruling language named in the Appendix to Tender shall prevail. The language for day to day communications shall be as stated in the Appendix to Tender.
Contract Agreement
1.5 Either party shall, if requested by the other party, execute a Contract
Agreement, in the form annexed with such modifications as may be necessary to record the Contract. The costs of stamp duties and similar charges imposed by law shall be borne by the Employer.
Priority of Documents
1.6 The documents forming the Contract are to be taken as mutually explanatory of one another. If there is an ambiguity or discrepancy in the documents, the Employer's Representative shall issue any necessary clarification or instruction to the Contractor, and the priority of the documents shall be as follows:
(a) The Contract Agreement;
(b) The Letter of Acceptance;
(c) The Employer’s Requirements;
(d) The Tender;
(e) The Conditions of Contract, Part II;
(f) The Conditions of Contract, Part I;
(g) The Schedules; and
(h) The Contractor’s Proposal.
Documents on Site
1.7 The Contractor shall keep on the Site one complete set of the documents forming the Contract, the Construction Documents, Variations, other communications given or issued under Sub-Clause 1.8 and the documents mentioned in Sub-Clause 5.4. The Employer, the Employer’s Representative and assistants (as referred to in Sub-Clause 3.3) shall have the right to use such documents at all reasonable times.
Communications
1.8 Wherever provision is made for the giving or issue of any notice, instruction, consent, approval, certificate or determination by any person, unless otherwise specified such communication shall be in writing and shall not be unreasonably withheld or delayed.
Wherever provision is made for a communication to be "written" or "in writing", this means any hand-written, type-written or printed communication, including the agreed systems of electronic transmission stated in the Appendix to Tender. All certificates, notices or written orders to be given to the Contractor by the Employer or the Employer's Representative, and all notices to be given to the Employer or to the Employer's Representative by the Contractor, shall either be delivered by hand against written acknowledgement of receipt, or be sent by airmail or one of the agreed systems of electronic transmission. The addresses for the receipt of such communications shall be as stated in the Appendix to Tender.
Provision of Construction Documents
1.9 The Construction Documents shall be in the custody and care of the Contractor. Unless otherwise stated in the Employer’s Requirements, the Contractor shall Documents provide six copies for the use of the Employer's Representative and assistants (as referred to in Sub-Clause 3.3).
Employer’s Use of Construction Documents
1.10 Copyright in the Construction Documents and other design documents made Contractor’s by or on behalf of the Contractor shall (as between the parties) remain the Documents property of the Contractor. The Employer may, at his cost, copy, use and communicate any such documents (including making and using modifications) for the purposes of completing, operating, maintaining, altering, adjusting and repairing the Works. They shall not, without the Contractor's consent, be used, copied or communicated to a third party by the Employer or the Employer’s
Representative for other purposes.
Contractor’s Use of Employer’s documents
1.11 Copyright in the Employer’s Requirements and other documents issued by the Employer or the Employer’s Representative to the Contractor shall (as between Documents the parties) remain the property of the Employer. The Contractor may, at his cost, copy, use and communicate any such documents for the purposes of the Contract. They shall not, without the Employer's consent, be used, copied or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract.
Confidential Details
1.12 The Contractor shall not be required to disclose, to the Employer or the Employer’s Representative, the confidential details listed in the Appendix to
Tender.
Compliance with Statutes, Regulations and Laws
1.13 The Contractor shall, in all matters arising in the performance of the Contract, Statutes, comply with, give all notices under, and pay all fees required by, the provisions Regulations and of any national or state statute, ordinance or other law, or any regulation of any Laws legally constituted public authority having jurisdiction over the Works. The Contractor shall obtain all permits, licences or approvals required for any part of the Works, in reasonable time taking account of the times for delivery of the Plant and Materials and for completion of the Works. The Employer and the Contractor shall comply with the laws of each country where activities are performed.
Joint and Several Liabilities
1.14 If the Contractor is a joint venture (or consortium) of two or more persons, all Liability such persons shall be jointly and severally liable to the Employer for the fulfillment of the terms of the Contract. Such persons shall designate one of them to act as leader with authority to bind the joint venture (or consortium) and each of its members. The composition or the constitution of the joint venture (or consortium) shall not be altered without the prior consent of the Employer.
THE EMPLOYER
2 The Employer
General Obligations
2.1 The Employer shall provide the Site and shall pay the Contractor in accordance with Clause 13.
Access to and Possession of the Site
2.2 The Employer shall grant the Contractor right of access to, and possession of, within the time stated in the Appendix to Tender. Such right and Site possession may not be exclusive to the Contractor.
If the Contractor suffers delay and/or incurs Cost from failure on the part of the
Employer to grant right of access to or possession of the Site, the Contractor shall
give notice to the Employer’s Representative. After receipt of such notice the
Employer’s Representative shall proceed in accordance with Sub-Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the amount of such Cost plus reasonable profit, which shall be added to the Contract Price, and shall notify the Contractor accordingly.
Permits, Licences or Approvals
2.3 The Employer shall, at the request and cost-of the Contractor, assist him in
applying for permits, licences or approvals, which are required for any part of the Works, for delivery (including clearance through customs) of Plant, Materials and Contractor’s Equipment, and for the completion of the Works. Such requests may also include requests for the Employer's assistance in applying for any necessary government consent to the export of Contractor's Equipment when it is removed from the Site.
Employer’s Entitlement to Terminate
2.4 The Employer shall be entitled to terminate the Contract, at the Employer’s Entitlement to convenience, at any time after giving 56 days’ prior notice to the Contractor, Terminate with a copy to the Employer’s Representative, and returning the performance security. In the event of such termination, the Contractor:
(a) shall proceed in accordance with Sub-Clause’16.3, and
(b) shall be paid by the Employer in accordance with Sub-Clause 19.6. After such termination, execution of the Works shall not be recommenced within a period of six years without the Contractor's consent.
3 THE EMPLOYER’S REPRESENTATIVE
The Employer’s Representative Duties and Authorities
3.1 The Employer’s Representative shall carry out the duties specified in the Representative’s Contract. The Employer’s Representative shall have no authority to amend the Duties and Contract.
The Employer’s Representative may exercise the authority specified in or necessarily to be implied from the Contract. If the Employer’s Representative is required, under the terms of his appointment by the Employer, to obtain the specific approval of the Employer before exercising such authority, such requirements shall be as stated in Part II. Any requisite approval shall be deemed to have been given by the Employer for any such authority exercised by the Employer’s Representative.
Except as expressly stated in the Conditions of Contract, the Employer’s Representative shall have no authority to relieve the Contractor of any of his
duties, obligations or responsibilities under the Contract. Any proposal, inspection, examination, testing, consent, approval or similar act by the Employer’s Representative (including absence of disapproval) shall not relieve
the Contractor from any responsibility, including responsibility for his errors,
omissions, discrepancies, and non-compliance with Sub-Clauses 5.3 and 5.4.
The Employer’s Representative shall copy to the Employer all communications given or received by him in accordance with the Contract.
Requirements for Representative
3.2 The Employer’s Representative shall be a suitably qualified engineer or other Employer’s appropriate professional, having the experience and capability necessary for Representative compliance with this Clause, or shall employ such suitably qualified engineers and other professionals and make them available for the Contract.
Employer’s Representative's Authority to delegation
3.3 The Employer’s Representative may from time to time delegate any of his Representative's duties to assistants, and may at any time revoke any such delegation. Any such Authority to delegation or revocation shall be in writing and shall not take effect until a copy Delegate has been delivered to the Employer and the Contractor. Any determination, instruction, inspection, examination, testing, consent, approval or similar act by any such assistant of the Employer's Representative, in accordance with the delegation, shall have the same effect as though it had been an act of the Employer’s Representative. However:
(a) any failure to disapprove any Plant, Materials, design or workmanship shall not prejudice the right of the Employer’s Representative to reject such Plant, Materials, design or workmanship;
(b) if the Contractor questions any determination or instruction of an assistant
of the Employer’s Representative, the Contractor may refer the matter to the Employer’s Representative, who shall confirm, reverse or vary such determination or instruction.
Employer’s Representative’s instructions
3.4 Unless it is legally or physically impossible, the Contractor shall comply with Representative’s instructions given by the Employer's Representative in accordance with the Instructions Contract.
Employer’s Representative’s Attempt Agreement
3.5 When the Employer’s Representative is required to determine value, Cost or Representative to extension of time, he shall consult with the Contractor in an endeavour to reach Attempt Agreement agreement. If agreement is not achieved, the Employer’s Representative shall determine the matter fairly, reasonably and in accordance with the Contract.
THE CONTRACTOR
4 The Contractor
General Obligations
4.1 The Works as completed by the Contractor shall be wholly in accordance with the Contract and fit for the purposes for which they are intended, as defined in 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, or arises from any obligation of the Contractor, and all works not mentioned in the Contract but which may be inferred to be necessary for stability or completion or the safe, reliable and efficient operation of the works.
The Contractor shall design, execute and complete the Works, including providing Construction Documents, within the Time for Completion, and shall remedy any defects within the Contract Period. The Contractor shall provide all superintendence, labour, Plant, Materials, Contractor’s Equipment, Temporary Works and all other things, whether of a temporary or permanent nature, required in and for such design, execution, completion and remedying of defects.
Before commencing design, the Contractor shall satisfy himself regarding the Employer’s Requirements (including design criteria and calculations, if any) and the items of reference mentioned in Sub-Clause 4.7. The Contractor shall give notice to the Employer’s Representative of any error, fault or other defect In the Employer’s Requirements or such items of reference. After receipt of such notice, the Employer’s Representative shall determine whether Clause 14 shall be applied, and shall notify the Contractor accordingly.
The Contractor shall take full responsibility for the adequacy, stability and
safety of all Site operations, of all methods of construction and of all the Works,
irrespective of any approval or consent by the Employer’s Representative.
Performance Security
4.2 The Contractor shall obtain, at his cost, a performance security from a third Security party, in the amount and currencies specified in the Appendix to Tender, and deliver it to the Employer by the date 28 days after the Effective Date. The performance security shall be provided by an entity approved by the Employer and shall be in the form annexed, or in another form approved by the Employer.
The performance security shall be valid until the Contractor has executed and
completed the Works and remedied any defects. It shall be returned to the Contractor within 14 days of the issue of the Performance Certificate. Prior to making a claim under the performance security, the Employer shall, in every case, notify the Contractor stating the nature of the default for which the claim is to be made.
Contractor’s Representative
4.3 Unless the Contractor’s Representative is named in the Contract, the Contractor Representative shall, within 14 days of the Effective Date, submit to the Employer’s Representative for consent the name and particulars of the person the Contractor proposes to appoint. The Contractor shall not revoke the appointment of the Contractor's Representative without the prior consent of the Employer’s Representative.
The Contractor’s Representative shall give his whole time to directing the preparation of the Construction Documents and the execution of the Works. Except as otherwise stated in the Contract, the Contractor’s Representative shall receive (on behalf of the Contractor) all notices, instructions, consents, approvals, certificates, determinations and other communications under the Contract. Whenever the Contractor’s Representative is to be absent from the Site, a suitable replacement person shall be appointed, and the Employer’s Representative shall be notified accordingly.
The Contractor’s Representative may delegate any of his powers, functions and
authorities to any competent person, and may at any time revoke any such delegation. Any such delegation or revocation shall be in writing and shall not take effect until the Employer’ Representative has received prior notice signed by the Contractor’s Representative, specifying the powers, functions and authorities being delegated or revoked. The Contractor’s Representative and such persons shall be fluent in the language for day to day communications defined in Sub-Clause 1.4.
Co-ordination of Works
4.4 The Contractor shall be responsible for the co-ordination and proper execution the Works of the 'Works, including co-ordination of other contractors to the extent specified in the Employer’s Requirements. The Contractor shall, as specified in the Employer’s Requirements, afford all reasonable opportunities for carrying out their work to:
(a) any other contractors employed by the Employer and their workmen,
(b) the workmen of the Employer, and
(c) the workmen of any legally constituted public authorities who may be employed in the execution on or near the Site of any work not included in the Contract, which the Employer may require. The Contractor shall obtain, co-ordinate and submit to the Employer’s Representative for his information all details (including details of work to be carried out off the Site) from Subcontractors. The Contractor shall be responsible for the locations of their work or materials, in order to ensure that
there is no conflict with the work of other Subcontractors, the Contractor or other contractors.
Subcontractors
4.5 The Contractor shall not subcontract the whole of the Works. Unless otherwise stated in Part II:
(a) the Contractor shall not be required to obtain consent for purchases of Materials or for subcontracts for which the Subcontractor is named in the Contract;
(b) the prior consent of the Employer’s Representative shall be obtained to other proposed Subcontractors;
(c) not less than 28 days before the intended date of each Subcontractor commencing work on the Site, the Contractor shall notify the Employer’s Representative of such intention; and
(d) where practicable, the Contractor shall give a fair and reasonable opportunity for contractors from the Country to be appointed as Subcontractors. The Contractor shall be responsible for observance by all Subcontractors of all the provisions of the Contract. The Contractor shall be responsible for the acts or defaults of any Subcontractor, his agents or employees, as fully as if they were the acts or defaults of the Contractor, his agents or employees.
Assignment of Subcontractor’s Obligation
4.6 If a Subcontractor has undertaken a continuing and assignable obligation to the Subcontractor’s Contractor for the work designed or executed, or Plant, Materials or services Obligations supplied, by such Subcontractor, and if such obligation extends beyond the expiry of the Contract Period, the Contractor shall, upon the expiry of the Contract Period, assign the benefit of such obligation to the Employer for its unexpired duration, at the request and cost of the Employer.
Setting Out
4.7 The Contractor shall set out the Works in relation to original points, lines and levels of reference specified in the Employer's Requirements or, if not specified, given by the Employer’s Representative in writing. The Contractor shall rectify, at his cost, any error in the positions, levels, dimensions or alignment of the Works.
Quality Assurance
4.8 Unless otherwise stated in Part II, the Contractor shall institute a quality assurance system to demonstrate compliance with the requirements of the Contract. Such system shall be in accordance with the details stated in the Contract. Compliance with the quality assurance system shall not relieve the Contractor of his duties, obligations or responsibilities.
Details of all procedures and compliance documents shall be submitted to the Employer’s Representative for his information before each design and execution stage is commenced. When any document is issued to the Employer’s Representative, it shall be accompanied by the signed quality statements for such document, in accordance with the details stated in the Contract. The Employer’s Representative shall be entitled to audit any aspect of the system and require corrective action to be taken.
Site Data
4.9 The Employer shall have made available to the Contractor, prior to the Base Date, all the data on hydrological and sub-surface conditions at the Site, and studies on environmental impact, which have been obtained by or on behalf of
the Employer from investigations for the Works. The Contractor shall be responsible for interpreting all data. The Contractor shall be deemed to have inspected and examined the Site, its surroundings, the above data and other available information, and to have satisfied himself (so far as is practicable, taking account of cost and time) before submitting the Tender, as to:
(a) the form and nature of the Site, including the sub-surface conditions,
(b) the hydrological and climatic conditions,
(c) the extent and nature of the work and Materials necessary for the execution
and completion of the Works, and the remedying of any defects, and
(d) the means of access to the Site and the accommodation he may require. The Contractor shall be deemed to have obtained all necessary information as to risks, contingencies and all other circumstances which may influence or affect the Tender.
Matters Affecting the Execution of the Works
4.10 The Contractor shall be deemed to have satisfied himself as to the correctness the Execution of the and sufficiency of the Contract Price. Unless otherwise stated in the Contract, Works the Contract Price shall cover all his obligations under the Contract (including those under Provisional Sums, if any) and all things necessary for the proper design, execution and completion of the Works and the remedying of any defects.
Unforeseeable Sub-Surface Conditions
4.11 If sub-surface conditions are encountered by the Contractor which in his Sub-Surface opinion were not foreseeable by an experienced contractor, the Contractor shall Conditions give notice to the Employer’s Representative so that the Employer's Representative can inspect such conditions. After receipt of such notice and after his inspection and investigation, the Employer’s Representative shall, if such conditions were not (by the Base Date) foreseeable by an experienced
contractor, proceed in accordance with Sub-Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the additional Cost due to such conditions, which shall be added to the Contract Price, and shall notify the Contractor accordingly.
Access Route
4.12 The Contractor shall be deemed to have satisfied himself as to the suitability and availability of the access routes he chooses to use. The Contractor shall (as between the parties) be responsible for the maintenance of access routes. The Contractor shall provide any signs or directions which he may consider necessary for the guidance of his staff, labour and others. The Contractor shall obtain any permission that may be required from the relevant authorities for the use of such routes, signs and directions.
The Employer will not be responsible for any claims which may arise from the use or otherwise of any access route. The Employer does not guarantee the suitability or availability of any particular access route, and will not entertain any claim for any non-suitability or non-availability for continuous use during construction of any such route.
Rights of Way and Facilities
4.13 The Contractor shall bear all costs and charges for special or temporary rights- Facilities of-way required by him for access to the Site. The Contractor shall also provide, at his own cost, any additional facilities outside the Site required by him for the purposes of the Works.
Programme
4.14 The Contractor shall submit a programme to the Employer’s Representative, for information, within the time stated in the Appendix to Tender. The programme shall include the following:
(a) the order in which the Contractor proposes to carry out the Works (including each stage of design, procurement, manufacture, delivery to Site, construction, erection, testing and commissioning), (b) all major events and activities in the production of Construction Documents,
(c) the periods for the pre-construction reviews under Sub-Clause 5.2 and for
any other submissions, approvals and consents specified in the Employer’s Requirements, and
(d) the sequence of all tests specified in the Contract. Unless otherwise stated in the Contract, the programme shall be developed using precedence networking techniques, showing early start, late start, early finish and late finish dates.
The Contractor shall, whenever required by the Employer’s Representative,
provide in writing, for information, a general description of the arrangements
and methods which the Contractor proposes to adopt for the execution of the Works. No significant alteration to the programme, or to such arrangements and methods, shall be made without informing the Employer’s Representative. If the progress of the Works does not conform to the programme, the Employer’s Representative may instruct the Contractor to revise the programme, showing the modifications necessary to achieve completion within the Time for Completion.
Progress Reports
4.15 Monthly progress reports shall be prepared by the Contractor and submitted to the Employer’s Representative in six copies. The first report shall cover the period up to the end of the calendar month after that in which the Commencement Date occurred; reports shall be submitted monthly thereafter, each within 14 days of the last day of the period to which it relates. Reporting shall continue until the Contractor has completed all work which is known to be outstanding at the completion date stated in the Taking-Over Certificate for the Works. Each report shall include:
(a) photographs and detailed descriptions of progress, including each stage of design, procurement, manufacture, delivery to Site, construction, erection, testing and commissioning;
(b) charts showing the status of Construction Documents, purchase orders, manufacture and construction;
(c) for the manufacture of each main item of Plant and Materials, the name of manufacturer, manufacture location, percentage progress, and the actual or expected dates of commencement of manufacture, Contractor's inspections, tests and delivery;
(d) records of personnel and Contractor’s Equipment on Site;
(e) Copies of quality assurance documents, test results and certificates of Materials;
(f) safety statistics, including details of any hazardous incidents and activities
relating to environmental aspects and public relations; and
(g) comparisons of actual and planned progress, with details of any aspects which may jeopardize the completion in accordance with the Contract, and the measures being (or to be) adopted to overcome such aspects.
Contractor’s Equipment
4.16 Unless otherwise stated in Part II, the Contractor shall provide all Contractor’s Equipment Equipment necessary to complete the Works. All Contractor’s Equipment shall, when brought on to the Site, be deemed to be exclusively intended for the execution of the Works. The Contractor shall not remove from the Site any such Contractor's Equipment without the consent of the Employer’s Representative.
Safety Precautions
4.17 The Contractor shall comply with all applicable safety regulations in his design, access arrangements and operations on Site. Unless otherwise stated in Part II, the Contractor shall, from the commencement of work on Site until taking-over by the Employer, provide:
(a) fencing, lighting, guarding and watching of the Works, and
(b) temporary roadways, footways, guards and fences which may be necessary for the accommodation and protection of owners and occupiers of adjacent
land, the public and others.
Protection of the Environment
4.18 The Contractor shall take all reasonable steps to protect the environment (both Environment on and off the Site) and to limit damage and nuisance to people and property resulting from pollution, noise and other results of his operations. The Contractor shall ensure that air emissions, surface discharges and effluent from the Site during the Contract Period shall not exceed the values indicated in the Employer’s Requirements, and shall not exceed the values prescribed by law.
Electricity, Water and Gas
4.19 The Contractor shall be entitled to use for the purposes of the Works such and Gas supplies of electricity, water, gas and other services as may be available on the Site and of which details are given in the Employer’s Requirements. The Contractor shall pay the Employer at the prices stated in the Employer’s Requirements. The quantities consumed shall be determined by the Employer's Representative, who shall include the amounts due as deductions in Interim and Final Payment Certificates. The Contractor shall, at his risk and cost, provide any apparatus necessary for such determination and for his use of these services.
Employer Supplied Machinery and Materials
4.20 The Employer undertakes to provide the items of machinery and materials (if Machinery and any) in accordance with the details given in the Employer’s Requirements. The Materials Employer shall, at his risk and cost, transport such machinery and materials to the Contractor, at the time and place specified in the Contract.
The Contractor shall visually inspect the machinery and materials upon receipt at such place, and shall notify the Employer and the Employer’s Representative of any shortage, defect or default; then, either the Employer shall immediately rectify any shortage, defect or default, or the Contractor (if the Contractor and the Employer’s Representative so agree) shall carry out such rectification as a Variation. After visual inspection, this machinery and materials shall come under the care, custody and control of the Contractor. The Contractor’s obligations of inspection, care, custody and control shall not relieve the Employer of liability for any undetectable shortage, defect or default.
The Employer also undertakes to operate the items of machinery and equipment in accordance with the details, arrangements and charges given in the Employer's Requirements. The Contractor shall pay such charges to the Employer; the amounts due shall be determined by the Employer’s Representative and included as deductions in Interim and Final Payment Certificates.
Clearance of Site
4.21 During the execution of the Works, the Contractor shall keep the Site free from
all unnecessary obstruction, and shall store or dispose of any Contractor’s Equipment or surplus materials. The Contractor shall clear away and remove from the Site any wreckage, rubbish or Temporary Works no longer required. Upon the issue of any Taking-Over Certificate, the Contractor shall clear away and remove, from that part of the Site and Works to which such Taking-Over Certificate refers, all Contractor's Equipment, surplus material, wreckage, rubbish and Temporary Works. The Contractor shall leave such part of the Site and the Works in a clean and safe condition to the satisfaction of the Employer’s Representative. Except that, the Contractor shall be entitled to retain on Site, until the expiry of the Contract Period, such Contractor's Equipment, Materials and Temporary Works as required by him for the purpose of fulfilling his obligations under the Contract.
If the Contractor fails to remove, by 28 days after the issue of the Performance Certificate, any remaining Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works, the Employer may sell or otherwise dispose of such items. The Employer shall be entitled to retain, from the proceeds of such sale, a sum sufficient to meet the costs incurred in connection with the sale or disposal, and in restoring the Site. Any balance of the proceeds shall be paid to the Contractor. If the proceeds of the sale are insufficient to meet the Employer's costs, the outstanding balance shall be recoverable from the Contractor by the Employer.
Security of the Site
4.22 Unless otherwise stated in Part II:
(a) the Contractor shall be responsible for keeping unauthorised persons off the Site, and
(b) authorised persons shall be limited to the employees of the Contractor, employees of his Subcontractors and persons authorised by the Employer or the Employer’s Representative.
Contractor’s Operations on Site
4.23 The Contractor shall confine his operations to the Site, and to any additional areas which may be provided by the Contractor and agreed by the Employer’s Representative as working areas. The Contractor shall take all necessary precautions to keep his personnel and equipment within the Site and such additional areas, and to keep and prohibit them from encroaching on adjacent
land.
Fossils
4.24 All fossils, coins, articles of value or antiquity, and structures and other remains or things of geological or archaeological interest discovered on the Site shall (as between the parties) be the property of the Employer. The Contractor shall
take reasonable precautions to prevent his staff, labour or other persons from
removing or damaging any such article or thing. The Contractor shall, immediately upon discovery of such article or thing, advise the Employer’s Representative, who may issue instructions for dealing with it.
If the Contractor suffers delay and/or incurs Cost in following these instructions of the Employer’s Representative, and if such delay and/or Cost was not (by the Base Date) foreseeable by an experienced contractor, the Contractor shall give notice to the Employer’s Representative, with a copy to the Employer. After receipt of such notice, the Employer’s Representative shall proceed in accordance with Sub-Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the amount of such Cost, which shall be added to the Contract Price, and shall notify the Contractor accordingly.
5 Design
DESIGN
General Obligations
5.1 The Contractor shall carry out, and be responsible for, the design of the Works. Design shall be prepared by qualified designers who are engineers or other professionals who comply with the criteria (if any) stated in the Employer’s Requirements. For each part of the Works, the prior consent of the Employer’s Representative shall be obtained to the designer and design Subcontractor, if they are not named as such in the Contract. Nothing contained in the Contract shall create any contractual relationship or professional obligations between any designer, or a design Subcontractor, and the Employer.
The Contractor holds himself, his designers and design Subcontractors as having the experience and capability necessary for the design. The Contractor undertakes that the designers shall be, available to attend discussions with the Employer’s Representative at all reasonable times during the Contract Period.
Construction Documents施工文件
5.2 The Contractor shall prepare Construction Documents in sufficient detail to satisfy all regulatory approvals, to provide suppliers and construction personnel sufficient instruction to execute the Works, and to describe the operation of the completed Works. The Employer’s Representative shall have the right to review and inspect the preparation of Construction Documents, wherever they are being prepared. Each of the Construction Documents shall, when considered ready for use, be submitted to the Employer’s Representative for pre-construction review. In this Sub-Clause, review period means the period required by the Employer’s Representative, which (unless otherwise stated in the Employer’s Requirements) shall not exceed 21 days, calculated from the date on which the Employer’s Representative receives a Construction Document and the Contractor's notice that it is considered ready, both for a pre-construction review in accordance with this Sub-Clause, and for use. If the Employer’s Representative, within such review period, notifies the Contractor that such Construction Document fails (to the extent stated) to comply with the Employer’s Requirements, it shall be rectified, resubmitted and reviewed in accordance with this Sub-Clause, at the Contractor’s cost. For each part of the Works, and except to the extent that the prior consent of the Employer’s Representative shall have been obtained:
承包商應編制足夠詳細的施工文件，以滿足所有規(guī)章要求的批準，為供應商和施工人員實施工程提供足夠的指導，并對已竣工的工程的運行進行描述。無論在何處編制施工文件，雇主代表均應有權對施工文件的編制進行檢查與審閱。
當施工文件的每一部分編制完畢可供使用時，該部分應隨后提交雇主代表，供其進行施工前的審核。在本款中“審核期”系指雇主代表要求的期限，該期限（除非雇主的要求中另有規(guī)定）不應超過21天，開始日期自雇主代表收到一份施工文件并收到承包商認為該文件已編制完畢，可根據本款進行施工前的審核與使用的通知之日起計算。如果雇主代表在審核期限內通知承包商施工文件不符合雇主的要求中規(guī)定的標準，則該文件應根據本款由承包商自費修正、重新提交并審核。
除得到雇主代表事先同意的那部分以外，對工程的每一部分而言：
(a) construction shall not commence prior to the expiry of the review periods for the Construction Documents which are relevant to the design and construction of such part;
與該部分工程設計和施工相關的施工文件的審核期限期滿之前，施工不得開始；
(b) construction shall be in accordance with such Construction Documents; and
施工應按施工文件進行；
(c) if the Contractor wishes to modify any design or document which has previously been submitted for such pre-construction review, the Contractor shall immediately notify the Employer's Representative, and shall subsequently submit revised documents to the Employer's Representative for pre-construction review.
If the Employer’s Representative instructs that further Construction Documents are necessary for carrying out the Works, the Contractor shall upon receiving the Employer's Representative's instructions prepare such Construction Documents. Errors, omissions, ambiguities, inconsistencies, inadequacies and other defects
shall be rectified by the Contractor at his cost.
如果承包商希望對前已提交的供施工前審核的任何設計或文件進行修改，承包商應立即通知雇主代表，并隨后向雇主代表提交修改后的文件，供其進行施工前的審核。
如果雇主代表指示為實施工程需要進一步的施工文件，承包商在接到雇主代表指示后，應立即編制該施工文件。
承包商應自費修正所有的錯誤、遺漏、模糊、矛盾、欠缺及其他缺陷。
Contractor’s Undertaking承包商的保證
5.3 The Contractor undertakes that, if legally and physically possible, the design, the Construction Documents, the execution and the completed Works will be in accordance with the following, in order of priority:
(a) the law in the Country, and
(b) the documents forming the Contract, as altered or modified by Variations.
如果法律上與實踐上可行，承包商應保證其設計、施工文件、工程實施以及完成的工程符合下列文件，其優(yōu)先次序為：
（a）工程所在國的法律；
（b）經過變更予以修改或修正的組成合同的文件。
Technical Standards技術標準和規(guī)章
5.4 The design, the Construction Documents, the execution and the completed and Regulations Works shall comply with the Country’s national specifications, technical standards, building, construction and environmental regulations, regulations applicable to the product being produced from the Works, and the standards specified in the Employer’s Requirements, applicable to the Contractor's Proposal and Schedules, or defined by law. References in the Contract to such specifications and other matters shall be understood to be references to the edition applicable on the Base Date, unless stated otherwise. If substantially
changed or new applicable national specifications, technical standards or regulations come into force after the Base Date, the Contractor shall submit proposals for compliance to the Employer’s Representative. In the event that the Employer’s Representative determines that such proposals constitute a variation, he shall then initiate a Variation in accordance with Clause 14.
設計、施工文件、工程的實施與完成的工程均應遵照：工程所在國的國家規(guī)范；技術標準；建筑、施工和環(huán)境的規(guī)章；適用于工程正在生產的產品的管理辦法；適用于承包商的建議書和資料表的或法律規(guī)定的在雇主的要求中注明的標準。除非另有規(guī)定，合同中的此類規(guī)范及其他事項的參照性規(guī)章，應被理解為是在基準日期適用的版本中的參照性規(guī)章。如果含有實質性變動的或適用的最新國家規(guī)范、技術標準或規(guī)章在基準日期之后開始生效，則承包商應向雇主代表提交遵循上述規(guī)定的建議。如果雇主代表認定此類建議構成變更，則他應按照第14條著手變更。
Samples樣品
5.5 The Contractor shall submit the following samples and relevant information to the Employer’s Representative for pre-construction review in accordance with the procedure for Construction Documents described in Sub-Clause 5.2:
(a) manufacturer’s standard samples of Materials,
(b) samples (if any) specified in the Employer’s Requirements, and
(c) additional samples instructed by the Employer’s Representative under Clause 14.
Each sample shall be labelled as to origin and intended use in the Works.
承包商應根據第5.2款中提到的施工文件的程序向雇主代表提交下列樣品及有關資料，供其進行施工前審核：
（a）制造商的材料標準樣品；
（b）雇主的要求中規(guī)定的樣品（如有時）；
（c）根據第14條由雇主代表所指定的附加樣品。
每件樣品均應標明原產地及在工程中的預期使用部位。
As-Built Drawings竣工圖紙
5.6 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 locations, sizes and details of the work as executed, with cross references to relevant specifications and data sheets. These records shall be kept on the Site and shall be used exclusively for the purposes of this Sub-Clause. Two copies shall be submitted to the Employer's Representative prior to the commencement of the Tests on Completion.
In addition, the Contractor shall prepare and submit to the Employer’s Representative as-built drawings of the Works, showing all Works as executed. The drawings shall be prepared as the Works proceed, and shall be submitted to the Employer’s Representative for his inspection. The Contractor shall obtain the consent of the Employer's Representative as to their size, the referencing system, and other pertinent details.
Prior to the issue of any Taking-Over Certificate, the Contractor shall submit to the Employer’s Representative one microfiche copy, one full-size original copy and six printed copies of the relevant as-built drawings, and any further Construction Documents specified in the Employer’s Requirements. The Works shall not be considered to be completed for the purposes of taking-over under Sub-Clause 10. 1 until such documents have been submitted to the Employer’s Representative.
承包商應對照有關規(guī)范和數(shù)據表制定（并隨時更新）工程實施的一整套“竣工”記錄。該記錄應表明所實施工作的確切的“竣工”位置、尺寸和詳細說明。這些記錄應保存在現(xiàn)場并完全用于本款之目的，在竣工檢驗開始之前，應提交兩套副本給雇主代表。
此外，承包商應繪制該工程的“竣工圖紙”并提交給雇主代表，表明整個工程已實施完畢。在工程進行時，應繪制此類圖紙并提交雇主代表審查。承包商應取得雇主代表對尺寸、參照系統(tǒng)及其他有關細節(jié)的認可。
在頒發(fā)任何移交證書之前，承包商應向雇主代表提交一套有關“竣工圖紙”的縮微膠片拷貝、一份原尺寸大小的正本及六份復制件以及雇主的要求中規(guī)定的任何進一步的施工文件。在此類文件提交雇主代表之前，不得認為根據第10.1款規(guī)定的移交目的，工程業(yè)已完成。
Operation and maintenance manuals操作和維修手冊
5.7 Prior to commencement of the Tests on Completion, the Contractor shall Maintenance prepare, and submit to the Employer’s Representative, operation and Manuals in accordance with the Employer’s Requirements and in sufficient detail for the Employer to operate, maintain, dismantle, reassemble, adjust and repair the Works. The Works shall not be considered to be completed for the purposes of taking-over under Sub-Clause 10. 1 until such operation and maintenance manuals have been submitted to the Employer’s Representative.
竣工檢驗開始之前，承包商應按照雇主的要求編制操作和維修手冊并提交雇主代表，該手冊應足夠詳細地使雇主能對工程進行操作、維護、拆卸、重新安裝、調整及修理。在此類操作與維修手冊提交雇主代表之前，不得認為根據第10.1款規(guī)定的移交目的，工程業(yè)已完成。
Error by Contractor
5.8 If errors are found in the Construction Documents, they and the Works shall be corrected at the Contractor’s cost.
如果發(fā)現(xiàn)施工文件中存在錯誤，承包商應自費修正這些錯誤和工程。
Patent Rights專利權
5.9 The Contractor shall indemnify the Employer against all claims of infringement of any patent, registered design, copyright, trade mark or trade name, or other intellectual property right, if:
(a) the claim or proceedings arise out of the design, construction, manufacture
or use of the Works;
(b) the infringement (or allegation of infringement) was not the result of part
(or all) of the Works being used for a purpose other than that indicated by, or reasonably to be inferred from, the Contract;
(c) the infringement (or allegation of infringement) was not the result of part (or all) of the Works being used in association or combination with any thing not supplied by the Contractor, unless such association or combination was disclosed to the Contractor prior to the Base Date or is stated in the Contract; and
(d) infringement (or allegation of infringement) was not the unavoidable result of the Contractor’s compliance with the Employer’s Requirements. The Contractor shall be promptly notified of any claim under this Sub- Clause made against the Employer. The Contractor may, at his cost, conduct negotiations for the settlement of such claim, and any litigation or arbitration that may arise from it. The Employer or the Employer’s Representative shall not make any admission which might be prejudicial to the Contractor, unless the Contractor has failed to take over the conduct of the negotiations, litigation or arbitration within a reasonable time after having been so requested. Except to the extent that the Employer agrees otherwise, the Contractor shall not make any admission which might be prejudicial to the Employer, until the Contractor has given the Employer such reasonable security as the Employer may require. The security shall be for an amount which is an assessment of the compensation, damages, charges and costs for which the Employer may become liable, and to which the indemnity under this Sub-Clause applies.
The Employer shall, at the request and cost of the Contractor, assist him
in contesting any such claim or action, and shall be repaid all reasonable costs
incurred.
承包商應保障雇主免于承擔因侵犯任何專利權、已注冊的設計、版權、商標或商品名稱，其他知識產權而導致的一切索賠。但以下列全部條件為前提：
（a）該索賠或訴訟是由工程的設計、施工、制造或使用而產生的；
（b）該侵權（或聲稱的侵權）是由于為合同中指明或可合理推論出來的目的使用部分工程或全部工程而引起的；
（c）該侵權（或聲稱的侵權）不是由于部分或全部工程與其他承包商提供的任何設備的聯(lián)合或配套使用而引起的，除非此類聯(lián)合或配套使用在合同規(guī)定的基準日期之前已向承包商公開說明或在合同中指出；
（d）該侵權（或聲稱的侵權）不是由于承包商遵循雇主的要求而必然引起的結果。
當雇主遭受到本款中的索賠時，應立即通知承包商。，承包商應自費為解決該索賠去進行談判，并接受由此索賠而引起的任何訴訟或仲裁。雇主或雇主代表對可能有損于承包商的談判、，訴訟或仲裁應不予承認，除非在被要求之后的一合理時間內，承包商仍未去進行談判、應訴或參加仲裁。
除雇主同意之外，承包商不應做出任何有損雇主利益的認可，直至承包商按雇主的要求提交雇主此類合適的擔保。該擔保的數(shù)額應為雇主可能負責的且本款中的保障所適用的補償費、損害賠償費、手續(xù)費及訴訟費的估算額。
應承包商的要求并在由其負擔費用的情況下，雇主應協(xié)助承包商對任何此類索賠或訴訟進行爭辯，承包商應償付雇主由此而導致的全部合理開支。
6 Staff and Labour職員與勞工
STAFF AND LABOUR
Engagement of Staff and labour職員與勞工的雇用
6.1 The Contractor shall make his own arrangements for the engagement of all staff
and Labour, local or otherwise, and for their payment, housing, feeding and transport.
承包商應自行安排從當?shù)鼗蚱渌胤焦陀盟械穆殕T和勞工，并負責他們的報酬、住房、膳食和交通。
Rates of Wages and conditions of Labour工資標準及勞動條件
6.2 The Contractor shall pay rates of wages, and observe conditions of labour, not Conditions of less favourable than those established for the trade or industry where the work is carried out. If no such established rates or conditions are applicable, the Contractor shall pay rates of wages and observe conditions not less favourable than the general level of wages and conditions observed by employers whose trade or industry is similar to that of the Contractor.
承包商所付的工資標準及遵守的勞動條件應不低于其從事工作的地區(qū)同類工商業(yè)現(xiàn)行的標準和條件。如果沒有現(xiàn)成的標準或條件可適用，承包商所付的工資標準及遵守的勞動條件應不低于從事類似于承包商工作的工商業(yè)雇主所付的一般工資標準及遵守的勞動條件。
Persons in the Others為其他人服務的人員
6.3 The Contractor shall not recruit, or attempt to recruit, his staff and labour from Service of amongst persons in the service of the Employer or the Employer’s Representative.
承包商不應從為雇主或雇主代表服務的人員中為自己招收或試圖招收職員和勞工。
Labour Laws勞動法
6.4 The Contractor shall comply with all the relevant labour laws applying to his
employees, and shall duly pay and afford to them all their legal rights. The Contractor shall require all such employees to obey all applicable laws and regulations concerning safety at work.
承包商應遵守所有適用于其雇員的相關的勞動法，向他們合理支付以及保障他們享有法律規(guī)定的所有權利。承包商應要求其全體雇員遵守與安全工作有關的所有適用的法律和規(guī)章。
Working Hours工作時間
6.5 No work shall be carried out on the Site outside the normal working hours stated in the Appendix to Tender, or on the locally recognised days of rest, unless:
在投標書附錄中規(guī)定的正常工作時間以外，或在當?shù)毓J的休息日：不得在現(xiàn)場進行任何工作。除
(a) the Contract so provides, 合同另有規(guī)定；
(b) the work is unavoidable, or necessary for the saving of life or property or
for the safety of the Works, in which case the Contractor shall immediately advise the Employer’s Representative, or
為了搶救生命或財產，或為了工程的安全，該工作是無法避免的或必須進行的，在此情況下，承包商應立即通知雇主代表；
(c) the Employer’s Representative gives his consent.
雇主代表同意。
Facilities for Staff and Labour為職員和勞工提供設施
6.6 Unless otherwise stated in Part II, the Contractor shall provide and maintain all necessary accommodation and welfare facilities for his (and his Subcontractor’s) staff and labour. The Contractor shall also provide the facilities specified in the Employer’s Requirements, for the Employer’s and Employer’s Representative’s personnel. The Contractor shall not permit any of his employees to maintain any temporary or permanent living quarters within the structures forming part of the Works.
除非在第二部分中另有規(guī)定，承包商應為其（及其分包商的）職員和勞工提供并維護所有必須的膳宿及福利設施。承包商還應為雇主的和雇主代表的人員提供雇主的要求中規(guī)定的設施。承包商不得允許其任何雇員在構成工程部分的構筑物內保留任何臨時或永久的居住場所。
Health and Safety健康與安全
6.7 Precautions shall be taken by the Contractor to ensure the health and safety of his staff and labour. The Contractor shall, in collaboration with and to the requirements of the local health authorities, ensure that medical staff, first aid facilities, sick bay and ambulance service are available at the accommodation and on the Site at all times, and that suitable arrangements are made for all necessary welfare and hygiene requirements and for the prevention of epidemics. The Contractor shall maintain records and make reports concerning health, safety and welfare of persons, and damage to property, as the Employer’s Representative may reasonably require.
The Contractor shall appoint a member of his staff at the Site to be responsible for maintaining the safety, and protection against accidents, of personnel on the Site. This person shall be qualified for his work and shall have the authority to issue instructions and take protective measures to prevent accidents. The Contractor shall send, to the Employer’s Representative, details of any accident as soon as possible after its occurrence.
承包商應采取預防措施以保證其職員和勞工的健康與安全。承包商應與當?shù)匦l(wèi)生部門合作并按其要求，自始至終在住地和現(xiàn)場確保配備醫(yī)務人員、急救設施、病房以及救護服務。還應作出適當安排，提供所有必要的福利及衛(wèi)生條件，并防止傳染病的發(fā)生。承包商應按雇主代表的合理要求，保證有關人員的健康、安全與福利，作好財產損壞的記錄并寫出報告。
承包商應指派在現(xiàn)場的一名職員負責現(xiàn)場上所有人員的安全并防止事故的發(fā)生。該人員應能勝任此項工作并有權發(fā)布指示及采取預防事故發(fā)生的保護措施。一旦發(fā)生事故，承包商應及時向雇主代表通報任何事故詳情。
Contractor’s Superintendence承包商的監(jiān)督
6.8 The Contractor shall provide all necessary superintendence during the design and execution of the Works, and as long thereafter as the Employer’s Representative may consider necessary for the proper fulfilling of the Contractor’s obligations under the Contract. Such superintendence shall be given by sufficient persons having adequate knowledge of the operations to be carried out (including the methods and techniques required, the azards likely to be encountered and methods of preventing accidents) for the satisfactory and safe execution of the Works.
只要雇主代表認為為了正確履行合同規(guī)定的承包商的義務所必需時，承包商應在設計和施工期間及期后，提供一切必要的監(jiān)督。此類監(jiān)督應由足夠的人員執(zhí)行，他們應具有為圓滿、安全地實施工程的作業(yè)所需的足夠的知識（包括所需的方法和技術，可能會遇到的危險，以及預防事故發(fā)生的方法）。
Contractor’s Personnel承包商的人員
6.9 The Contractor shall employ (or cause to be employed) only persons who are careful and appropriately qualified, skilled and experienced in their respective trades or occupations. The Employer’s Representative may require the Contractor to remove (or cause to be removed) any person employed on the Site or Works, including the Contractor's Representative, who in the opinion of the Employer’s Representative:
(a) persists in any misconduct,
(b) is incompetent or negligent in the performance of his duties,
(c) fails to conform with any provisions of the Contract, or
(d) persists in any conduct which is prejudicial to safety, health, or the protection of the environment.
If appropriate, the Contractor shall then appoint (or cause to be appointed) a suitable replacement person.
承包商應僅雇用（或使他人雇用）那些在他們各自行業(yè)或職業(yè)內具有技術和經驗的、認真負責的合格人員。雇主代表可要求承包商撤換（或使他人撤換）雇用于現(xiàn)場或工程中他認為有下列行為的任何人民包括承包商的代表；
（a）經常行為不軌；
（b）在履行其職責時不能勝任或玩忽職守；
（c）不遵守合同的規(guī)定；
（d）經常出現(xiàn)有損健康與安全，或有損環(huán)境保護的行為。
如果適當?shù)脑?，承包商應隨后指定（或使他人指定）合適的替代人員。
Disorderly Conduct妨礙治安的行為
6.10 The Contractor shall at all times take all reasonable precautions to prevent any unlawful, riotous or disorderly conduct by or amongst his staff and labour, and to preserve peace and protection of persons and property in the neighbourhood of the Works against such conduct.
承包商應始終采取各種合理的預防措施，以防止其職員或勞工發(fā)生任何非法的、制造事端的以及妨礙治安的行為，并保持安定以防止此類行為殃及鄰近工程的人員和財產。
7 Plant, Materials and Workmanship工程設備、材料和工藝
PLANT, MATERIALS AND WORKMANSHIP
Manner of Execution實施方式
7.1 All Plant and Materials to be supplied shall be manufactured, and all work to be done shall be executed, in the manner set out in the Contract. Where the manner of manufacture and execution is not set out in the Contract, the work shall be executed in a proper, workmanlike and careful manner, with properly equipped facilities and non-hazardous Materials, and in accordance with recognized good practice.
擬提供的全部工程設備和材料，以及準備進行的所有工作，均應按照合同規(guī)定的方法制造、加工與實施。如果合同中未規(guī)定制造與實施的方法，則該項工作應按照公認的良好慣例，使用適當裝備的設施以及安全的材料，以恰當、熟練和謹慎的方式實施。
Delivery to Site運至現(xiàn)場
7.2 The Contractor shall be responsible for procurement, transport, receiving,
unloading and safe keeping of all Plant, Materials, Contractor's Equipment and
other things required for the completion of the Works.
承包商應負責采購、運輸、接收、卸下以及安全儲存為完成工程所需的全部工程設備、材料、承包商的設備以及其他物品。
Inspection檢查
7.3 The Employer and the Employer’s Representative shall be entitled, during manufacture, fabrication and preparation at any places where work is being carried out, to inspect, examine and test the materials and workmanship, and to check the progress of manufacture, of all Plant and Materials to be supplied under the Contract. The Contractor shall give them full opportunity to inspect, examine, measure and test any work on Site or wherever carried out.
The Contractor shall give due notice to the Employer’s Representative whenever such work is ready, before packaging, covering up or putting out of view. The Employer’s Representative shall then either carry out the inspection, examination, measurement or testing without unreasonable delay, or notify the Contractor that it is considered unnecessary. If the Contractor fails to give such notice, he shall, when required by the Employer’s Representative, uncover such work and thereafter reinstate and make good at his own cost.
在工程進行的任何地點，雇主及雇主代表應有權在制造、加工和準備期間，對接合同規(guī)定所提供的全部工程設備和材料的原料與工藝，進行檢查、審核與檢驗，并對制造進度進行審查。承包商應向他們提供一切機會，以便在現(xiàn)場或任何實施地點檢查、審核、測量及檢驗任何工作。
在包裝、覆蓋或掩蔽之前，無論何時，當此類工作已準備就緒，承包商應及時通知雇主代表。雇主代表應隨即進行檢查、審核、測量或檢驗，而不得無故拖延，或通知承包商不需要進行上述工作。若承包商未發(fā)出此類通知而雇主代表要求時，他應打開這部分工程并隨后自費恢復原狀，使之完好。
Testing檢驗
7.4 If the Contract provides for tests, other than the Tests after Completion, the
Contractor shall provide all documents and other information necessary for testing and such assistance, labour, materials, electricity, fuel, stores, apparatus and instruments as are necessary to carry out such tests efficiently. The Contractor shall agree, with the Employer’s Representative, the time and place for the testing of any Plant and other parts of the Works as specified in the Contract. The Employer’s Representative shall give the Contractor not less than 24 hours’ notice of his intention to attend the tests. The Contractor shall provide sufficient suitably qualified and experienced staff to carry out the tests specified in the Contract.
If the Employer’s Representative does not attend at the time and place agreed, or if the Contractor and the Employer’s Representative agree that the Employer’s Representative shall not attend, the Contractor may proceed with the tests, unless the Employer's Representative instructs the Contractor otherwise. Such tests shall be deemed to have been made in the Employer’s Representative’s presence.
The Contractor shall promptly forward to the Employer’s Representative duly certified reports of the tests. If the Employer’s Representative has not attended the tests, he shall accept the readings as accurate. When the specified tests have been passed, the Employer’s Representative shall endorse the Contractor's test certificate, or issue a certificate to him, to that effect.
如果合同規(guī)定了竣工后的檢驗以外的其他檢驗，承包商應為此類檢驗提供所需的全部文件和其他資料，以及為有效進行檢驗所需的協(xié)助、勞工、材料、電、燃料、備用品、裝置和儀器。
承包商應與雇主代表商定對合同規(guī)定的任何工程設備以及工程其他部分進行檢驗的時間與地點。雇主代表應于24小時前將其參加檢驗的意圖通知承包商。承包商應提供足夠的有經驗的合格職員進行合同規(guī)定的檢驗。
若雇主代表未在商定的時間和地點參加檢驗，或如果承包商與雇主代表商定雇主代表將不參加檢驗，除非雇主代表對承包商另有指示，否則，承包商可著手進行檢驗。此類檢驗應被視為是雇主代表在場的情況下進行的。
承包商應立即向雇主代表提交具有有效證明的檢驗報告。若雇主代表未參加檢驗，他應對檢驗數(shù)據的準確性予以認可。當規(guī)定的檢驗通過后，雇主代表應對承包商的檢驗證書批注認可或就此向承包商頒發(fā)證書。
Rejection拒收
7.5 If, as a result of inspection, examination or testing, the Employer’s Representative decides that any Plant, Materials, design or workmanship is defective or otherwise not in accordance with the Contract, the Employer’s Representative may reject such Plant, Materials, design or workmanship and shall notify the Contractor promptly, stating his reasons. The Contractor shall then promptly make good the defect and ensure that the rejected item complies with the Contract.
If the Employer’s Representative requires such Plant, Materials, design or workmanship to be retested, the tests shall be repeated under the same terms and conditions. If such rejection and retesting cause the Employer to incur additional costs, such costs shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due, or to become due, to the Contractor.
如果從檢查、審核或檢驗的結果看，雇主代表確認任何工程設備、材料、設計或工藝為有缺陷或不符合合同的其他規(guī)定，雇主代表可拒收此類工程設備、材料、設計或工藝，并應立即通知承包商，同時說明理由。承包商亦應立即修復上述缺陷并保證使被拒收的項目符合合同規(guī)定。
若雇主代表要求對此類工程設備、材料、設計或工藝再度進行檢驗，則此類檢驗應按相同條款和條件重新進行。如果此類拒收和再度檢驗致使雇主產生了附加費用，則此類費用應由雇主從承包商處收回，并可從任何應支付或將支付給承包商的款項中扣除。
Ownership of Plant and Materials對工程設備和材料的擁有權
7.6 Each item of Plant and Materials shall become the property of the Employer at whichever is the earlier of the following times:
(a) when it is delivered to Site;
(b) when by virtue of Sub-Clause 8.9, the Contractor becomes entitled to payment of the value of the Plant and Materials.
在下述時間的較早者，每項工程設備和材料均應成為雇主的財產：
（a）當運至現(xiàn)場時；
（b）當根據第8.9款承包商有權獲得相當于工程設備和材料的價值的付款時。
8 COMMENCEMENT, DELAY AND SUSPENSION開工、延誤和暫停
8.1 Commencement of Works工程的開工
The Contractor shall commence the design and execution of the Works as soon as is reasonably possible after the receipt of a notice to this effect from the Employer’s Representative. Such notice shall be issued within the time stated in the Appendix to Tender after the Effective Date. The Contractor shall then proceed with the Works with due expedition and without delay, until completion.
承包商在收到雇主代表有關開工的通知后，應在可能合理的情況下盡快開始設計和實施工程。此類通知應在“生效日期”后于投標書附錄中規(guī)定的期限內發(fā)出。此后，承包商應迅速而不拖延地開始實施工程直至完工。
Time for Completion竣工時間
8.2 The whole of the Works, and each Section (if any), shall be completed and shall have passed the Tests on Completion within the Time for Completion for the Works or such Section (as the case may be).
在工程或每一區(qū)段（如有時）的竣工時間內，整個工程以及每一區(qū)段（視情況而定）應完工并通過竣工檢驗。
Extension of Time for Completion竣工時間的延長
8.3 The Contractor may apply for an extension of the Time for Completion if he is or will be delayed either before or after the Time for Completion by any of the following causes:
(a) a Variation (unless an adjustment to the Time for Completion is agreed under Sub-Clause 14.3),
(b) a force majeure event (as defined in Sub-Clause 19.1),
(c) a cause of delay giving an entitlement to extension of time under a Sub- Clause of these Conditions, unless the Contractor has not complied with such Sub-Clause, (d) physical conditions or circumstances on the Site, which are exceptionally adverse and were not (by the Base Date) foreseeable by an experienced contractor, or
(e) any delay, impediment or prevention by the Employer.
If the Contractor intends to apply for an extension of the Time for Completion, the Contractor shall give notice to the Employer’s Representative of such intention as soon as possible and in any event within 28 days of the start of the event giving rise to the delay, together with any other notice required by the Contract and relevant to such cause. The Contractor shall keep such contemporary records as may be necessary to substantiate any application, either on the Site or at another location acceptable to the Employer’s Representative, and such other records as may reasonably be requested by the Employer’s Representative. The Contractor shall permit the Employer’s Representative to inspect all such records, and shall provide the Employer’s Representative with copies as required. Within 28 days of the first day of such delay (or such other period as may be agreed by the Employer’s Representative), the Contractor shall submit full supporting details of his application. Except that, if the Contractor cannot submit all relevant details within such period because the cause of delay continued for a period exceeding 7 days, the Contractor shall submit interim details at intervals of not more than 28 days (from the first day of such delay) and full and final supporting details of his application within 21 days of the last day of delay.
The Employer’s Representative shall proceed in accordance with Sub- Clause 3.5 to agree or determine either prospectively or retrospectively such extension of the Time for Completion as may be due. The Employer’s Representative shall notify the Contractor accordingly. When determining each extension of time, the Employer’s Representative shall review his previous determinations and may revise, but shall not decrease, the total extension of time.
如果由于下述任何原因致使承包商在竣工時間之前或之后延誤工程，承包商可申請延長竣工時間：
（a）一項變更（如果未根據第14.3款商定對竣工時間加以調整）；
（b）不可抗力事件（如第19.1款所定義）；
（c）導致承包商根據本合同條件的某條款有權獲得延期的延誤原因；除非承包商未能遵守該條款；
（d）現(xiàn)場的自然條件或環(huán)境異常惡劣，并且一個有經驗的承包商在基準日期前對此無法預見；
（e）由雇主造成的任何延誤、干擾或阻礙。
如果承包商準備申請延長竣工時間，他應盡快將該意圖通知雇主代表，并在任何情況下應于引起延誤事件開始之后的28天以內發(fā)出通知，同時附上合同要求的以及與此類原因相關的任何其他通知。承包商應在現(xiàn)場或雇主代表接受的其他地點，保持證明其延期申請所需的同期記錄，以及雇主代表可能合理要求的其他記錄。承包商應允許雇主代表檢查所有此類記錄，并應提供雇主代表要求的各類副本。
從此類延誤的第一天起的28天內（或雇主代表可能同意的其他期限內），承包商應提交其延期申請的全部詳細證明材料。此外，如果由于引起延誤的原因持續(xù)超過7天致使承包商未能在上述時間內提交所有相關細節(jié)，他應在不超過28天（從此類延誤的第一天算起）的期間內提交其中詳情，并在引起延誤的最后一天之后的21天內提交延期申請的全部和最終的證明材料。
雇主代表應根據第3.5款去商定或確定應給予的預期的或追補的竣工時間的延長。雇主代表應相應地通知承包商。當確定每一延期時間時，雇主代表應復查以前的決定并可修改（但不應減少）整個延期時間。
Delays Caused by Authorities由公共當局引起的延誤
8.4 If the following conditions apply, namely: 如果下列條件成立：
(a) the Contractor has diligently followed the procedures laid down by the
relevant legally constituted public authorities in the Country,
(b) such authorities delay, impede or prevent the Contractor, and
(c) the resulting delay to the Works was not (by the Base Date) foreseeable by
an experienced contractor,
then such delay will be considered as a cause of delay giving an entitlement to
extension of time under Sub-Clause 8.3.
（a）承包商已努力遵守了工程所在國有關合法公共當局制定的程序；
（b）公共當局延誤、干擾或阻礙承包商；
（c）對工程造成的延誤是一個有經驗的承包商在基準日期前無法預見的；
則此類延誤應被視為是根據第8.3款有權獲準延期的延誤原因引起的。
Rate of Progress進展速度
8.5 If, at any time, the Contractor’s actual progress falls behind the programme referred to in Sub-Clause 4.14, or it becomes apparent that it will so fall behind, the Contractor shall submit to the Employer’s Representative a revised programme taking into account the prevailing circumstances. The Contractor shall, at the same time, notify the Employer’s Representative of the steps being taken to expedite progress, so as to achieve completion within the Time for Completion.
If any steps taken by the Contractor in meeting his obligations under this Sub- Clause cause the Employer to incur additional costs, such costs shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due, or to become due, to the Contractor.
若在任何時候承包商的實際進度落后于第4.14款所指明的進度計劃，或很明顯將落后于該進度計劃，則承包商應向雇主代表提交一份考慮到當前情況的修訂的進度計劃。承包商應同時將正在采取的為加快施工進度，以便在竣工時間內完工的步驟通知雇主代表。
如果承包商為履行本款規(guī)定的承包商的義務所采取的任何步驟導致雇主產生附加費用，則此類費用應由雇主從承包商處收回，并可由雇主從任何應支付或將支付給承包商的款項中扣除。
Liquidated Damages for Delay誤期損害賠償費
8.6 If the Contractor fails to comply with Sub-Clause 8.2, the Contractor shall pay
to the Employer the relevant sum stated in the Appendix to Tender as liquidated damages for such default (which sum shall be the only monies due from the Contractor for such default) for every day or pun of a day which shall elapse between the relevant Time for Completion and the date stated in the Taking- Over Certificate; except that the total payment shall not exceed the limit of liquidated damages (if any) stated in the Appendix to Tender.
The Employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any monies due, or to become due, to the Contractor. In the event of an extension of time being granted under Sub- Clause 8.3, the amount due under this Sub-Clause shall be recalculated accordingly, and any over-payment refunded. The payment or deduction of such damages shall not relieve the Contractor from his obligation to complete the Works, or from any other of his duties, obligations or responsibilities under the Contract.
At any time after the Employer has become entitled to liquidated damages, the Employer’s Representative may give notice to the Contractor under Sub- Clause 15.1, requiring the Contractor to complete within a specified reasonable time for completion. Such action shall not prejudice the Employer’s entitlements to payment under this Sub-Clause and to terminate under Sub- Clause 15.2.
如果承包商未能遵守第8.2款，承包商應向雇主支付投標書附錄中注明的相應金額，作為自相應的竣工時間起至移交證書注明的日期止之間每日或不足二日的違約的損害賠償費（該筆金額是承包商為此類違約所應支付的唯一款項）；但全部支付款不得超過投標書附錄中注明的損害賠償費（如有時）的限額。
在不排斥采用其他方法收回該款項的前提下，雇主可以應支付或將支付給承包商的款項中扣除該損害賠償費的總額。當根據第8.3款予以延期時，根據本款應付的款項須相應地重新計算且任何多扣部分應予返還。此類損害賠償費的支付或扣除均不得解除承包商完成工程的義務或合同規(guī)定其任何其他職責、義務或責任。
在雇主有權得到誤期損害賠償費之后的任何時間，雇主代表可按第15.1款通知承包商，要求承包商在一規(guī)定的合理完工時間內完工。該行動不應影響雇主按本款得到付款的權利以及按第15.2款終止合同的權利。
Suspension of Work暫時停工
8.7 The Employer’s Representative may at any time instruct the Contractor to suspend progress of part or all of the Works. During suspension, the Contractor shall protect, store and secure such part or the Works against any deterioration, loss or damage.
雇主代表可隨時指示承包商暫停進行部分或全部工程。在暫停期間，承包商應保護、保管以及保障該部分或全部工程免遭任何損蝕、損失或損害。
Consequences of Suspension暫停引起的后果
8.8 If the Contractor suffers delay and/or incurs Cost in following the Employer’s Representative's instructions under Sub-Clause 8.7, and in resumption of the work, and if such delay and/or Cost was not (by the Base Date) foreseeable by an experienced contractor, the Contractor shall give notice to the Employer’s Representative, with a copy to the Employer. After receipt of such notice the Employer’s Representative shall proceed in accordance with Sub-Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the amount of such Cost, which shall be added to the Contract Price, and shall notify the Contractor accordingly. Except that the Contractor shall not be entitled to such extension and payment of Cost if the suspension is due to a cause attributable to the Contractor, or is necessitated by a Contractor's risk as defined in Sub-Clause 17.5.
The Contractor shall not be entitled to extension of time for, or payment of the costs incurred in, making good any deterioration, defect or loss caused by faulty design, workmanship or materials, or by the Contractor’s failure to take the measures specified in Sub-Clause 8.7.
如果承包商在遵守雇主代表根據第8.7款所發(fā)出的指示以及在復工時，遭受延誤以及（或）招致費用并且若此類延誤以及（或）費用（在基準日期之前）是一個有經驗的承包商所無法預見的，承包商應通知雇主代表，同時將一份副本提交雇主。在收到此通知后，雇主代表應根據第3.5款商定或決定：
（a）承包商有權根據第8.3款規(guī)定，獲得任何延長的工期；
（b）將有關費用的總額加入合同價格中。
同時將上述決定相應地通知承包商。但是，如果暫停是由于承包商的原因或由第17.5款所定義的承包商的風險造成的，則承包商將無權得到此類延期和支付的費用。
如果任何損蝕、缺陷或損失是由于錯誤的設計、工藝或材料引起的；或由于承包商未能采取第8.7款規(guī)定的措施引起的，則承包商無權獲得為修復此類損蝕、缺陷或損失所需的延期和招致的費用。
Payment for Plant and Materials in Event of Suspension
暫停時工程設備和材料的支付
8.9 The Contractor shall be entitled to payment for Plant and/or Materials which have not been delivered to Site, if the work on Plant or delivery of Plant and/or Materials has been suspended for more than 28 days. This entitlement shall be to payment of the value of such Plant and/or Materials as at the date of suspension, if:
(a) the Contractor has marked the Plant and/or Materials as the Employer’s property in accordance with the Employer's Representative’s instructions, and
(b) the suspension is not due to a cause attributable to the Contractor. The Employer shall then, if requested by the Contractor, take over the responsibility for protection, storage, security and insurance of such suspended Plant and/or Materials; the risk of loss or damage to the suspended works shall then pass to the Employer.
如果有關工程設備的制造或工程設備以及（或）材料的運送被暫停超過28天，則承包商有權獲得該未被運至現(xiàn)場的工程設備以及（或）材料的支付。承包商有權獲得的付款應為該工程設備以及（或）材料在停工日期時的價值。但以下列條件為前提：
（a）承包商根據雇主代表的指示已將這些工程設備和（或）材料標記為雇主的財產；
（b）暫時停工不是由于承包商的原因引起的。
如果承包商要求的話，雇主應隨后接管對此類暫停的工程設備以及（或）材料的保護、保管、保障以及保險的責任。暫停的工程損失或損害的風險從此轉移給雇主。
Prolonged Suspension持續(xù)的暫停
8.10 If suspension under Sub-Clause 8.7 has continued for more than 84 days, and
the suspension is not due to a cause attributable to the Contractor, the Contractor may by notice to the Employer’s Representative require permission to proceed within 28 days. If permission is not granted within that time, the Contractor may treat the suspension as an omission under Clause 14 of the affected part of the Works. If such suspension affects the whole of the Works, the Contractor may terminate his employment, under Sub-Clause 16.2.
如果第8.7款所述的暫停已持續(xù)84天以上，且此暫停不是由于承包商的原因引起，則承包商可通知雇主代表，要求在28天內同意繼續(xù)施工。若在上述時間未得到許可，承包商可將此暫停影響到的工程部分視為第14條所述的刪減。若此類暫停影響到整個工程，承包商可根據第16.2款終止其受雇。
Resumption of Work復工
8.11 After receipt of permission or of an instruction to proceed, the Contractor shall, after notice to the Employer’s Representative, and together with the Employer’s Representative, examine the Works and the Plant and Materials affected by the suspension. The Contractor shall make good any deterioration or defect in or loss of the Works or Plant or Materials, which has occurred during the
suspension. If the Employer has taken over risk and responsibility for the suspended Works under Sub-Clause 8.9, risk and responsibility shall revert to the Contractor 14 days after receipt of the permission or instruction to proceed.
在收到繼續(xù)工作的許可或指示后，承包商應在通知雇主代表后與雇主代表一起檢驗受到暫停影響的工程以及工程設備和材料。承包商應修復在暫停期間發(fā)生在工程或工程設備或材料中的任何損蝕或缺陷或損失。
如果雇主根據第8.9款承擔了暫停的工程的風險和責任，承包商在收到繼續(xù)工作的許可或指示后14天，該風險和責任應重新歸屬承包商。
9 Tests on Completion .竣工檢驗
Contractor’s Obligations承包商的義務
9.1 The Contractor shall carry out the Tests on Completion in accordance with this Clause and Sub-Clause 7.4, after providing the documents in accordance with Sub-Clauses 5.6 and 5.7. The Contractor shall give, to the Employer’s Representative, 21 days' notice of the date after which the Contractor will be ready to carry out the Tests on Completion. Unless otherwise agreed, such Tests shall be carried out within 14 days after this date, on such day or days as the Employer’s Representative shall instruct.
In considering the results of the Tests on Completion, the Employer’s Representative shall make allowances for the effect of any use of the Works by the Employer on the performance or other characteristics of the Works. As soon as the Works, or a Section, have passed the Tests on Completion, the Contractor shall provide the Employer’s Representative and the Employer with a certified report of the results of all such Tests.
承包商在根據第5.6款及第5.7款提交文件后，應根據本條和第7.4款進行竣工檢驗。承包商應提前21天將某一確定日期通知雇主代表，說明在該日期后他將準備好進行竣工檢驗。除非另有商定，此類檢驗應在該日期后14天內于雇主代表指示的某日或數(shù)日內進行。
在考慮竣工檢驗結果時，雇主代表應考慮到因雇主對工程的任何使用而對工程的性能或其他特性所產生的影響。一旦工程或某一區(qū)段通過了竣工檢驗，承包商應向雇主代表以及雇主提交一份有關所有此類檢驗結果的證明報告。
Delayed Tests延誤的檢驗
9.2 If the Tests on Completion are being unduly delayed by the Contractor, the Employer’s Representative may by notice require the Contractor to carry out such Tests within 21 days after the receipt of such notice. The Contractor shall carry out such Tests on such day or days within that period as the Contractor may fix and of which he shall give notice to the Employer’s Representative.
If the Contractor fails to carry out the Tests on Completion within 21 days, the Employer’s Representative may himself proceed with such Tests. All such Tests so carried out by the Employer’s Representative shall be at the risk and cost of the Contractor. These Tests on Completion shall then be deemed to have been carried out in the presence of the Contractor and the results of such Tests shall be accepted as accurate.
如果承包商無故延誤竣工檢驗時，雇主代表可通知承包商要求他在收到該通知后21天內進行此類檢驗。承包商應在此期限內他可能確定的某日或數(shù)日內進行檢驗，并將此日期通知雇主代表。
若承包商未能在21天內進行竣工檢驗，雇主代表可自己著手進行此類檢驗。雇主代表如此進行的所有檢驗的風險和費用應由承包商承擔。此類竣工檢驗應被視為是承包商在場之情況下進行的且檢驗結果應被認為是準確的。
Retesting重新檢驗
9.3 If the Works, or a Section, fail to pass the Tests on Completion, Sub-Clause 7.5 shall apply, and the Employer’s Representative or the Contractor may require
such failed Tests, and the Tests on Completion on any related work, to be repeated under the same terms and conditions.
如果工程或某區(qū)段未能通過竣工檢驗，則第7.5款適用，且雇主代表或承包商可要求按相同條款或條件重復進行此類未通過的檢驗以及對任何相關工作的竣工檢驗。
Failure to Pass Tests on Completion未能通過竣工檢驗
9.4 If the Works, or a Section, fail to pass the Tests on Completion repeated under Sub-Clause 9.3, the Employer’s Representative shall be entitled to:
(a) order further repetition of Tests on Completion under Sub-Clause 9.3;
(b) reject the Works or Section (as the case may be), in which event the Employer shall have the same remedies against the Contractor as are provided under Clause 15; or
(d) issue a Taking-Over Certificate, if the Employer so requires: the Contract Price shall then be reduced by such amount as may be agreed by the Employer and the Contractor (in full satisfaction of such failure only), and the Contractor shall then proceed in accordance with his other obligations under the Contract.
當整個工程或某區(qū)段未能通過根據第9.3款所進行的重復竣工檢驗時，雇主代表應有權：
（a）指示按照第9.3款再進行一次重復的竣工檢驗；
（b）拒收整個工程或區(qū)段（視情況而定），在此情況下，雇主應從承包商處獲得與第15條規(guī)定相同的補償。
（c）頒發(fā)一份移交證書（如果雇主如此要求的話）：合同價格應按雇主與承包商可能商定的數(shù)額予以減少（僅限于用來彌補此類失誤），隨后，承包商應根據合同中規(guī)定他的其他義務繼續(xù)工作。
10 Employer’s Taking Over雇主的接收
EMPLOYER’S TAKING OVER
Taking-Over Certificate移交證書
10.1 Except as stated in Sub-Clause 9.4, the Works shall be taken over by the Employer when they have been completed in accordance with the Contract (except as described in sub-paragraph (a) below), have passed the Tests on Completion and a Taking-Over Certificate for the Works has been issued, or has deemed to have been issued in accordance with this Sub-Clause. If the Works are divided into Sections, the Contractor shall be entitled to apply for a Taking-Over Certificate for each Section.
The Contractor may apply by notice to the Employer’s Representative for a Taking-Over Certificate not earlier than 14 days before the Works or Section (as the case may be) will, in the Contractor's opinion, be complete and ready for taking over. The Employer’s Representative shall, within 28 days after the receipt of the Contractor’s application:
(a) 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 minor outstanding work that does not affect the use of the Works or Section for their intended purpose) including passing the Tests on Completion; or
(b) reject the application, giving his reasons and specifying the work required
to be done by the Contractor to enable the Taking-Over Certificate to be issued: the Contractor shall then complete such work before issuing a further notice under this Sub-Clause.
If the Employer’s Representative fails either to issue the Taking-Over Certificate or to reject the Contractor’s application within the period of 28 days, and if the Works or Section (as the case may be) are substantially in accordance with the Contract, the Taking-Over Certificate shall be deemed to have been issued on the last day of that period.
除第9.4款所述情況外，當工程根據合同已竣工（下面（a）段所述情況除外）并已通過了竣工檢驗，且根據本款已頒發(fā)或認為已頒發(fā)工程移交證書時，雇主應接收工程。如果工程分為區(qū)段時，承包商應有權為每一區(qū)段申請移交證書。
承包商可在他認為工程地區(qū)段（視情況而定）將完工并準備移交前14天內，向雇主代表發(fā)出申請移交證書的通知。雇主代表在收到承包商的申請后28天內，應：
（a）向承包商頒發(fā)移交證書，說明根據合同工程或區(qū)段完工（某些不影響工程或區(qū)段按其預定目的使用的掃尾工作除外）的日期及通過竣工檢驗的日期；
（b）駁回申請，提出他的理由并說明為使移交證書得以頒發(fā)承包商尚需完成的工作。隨后承包商應在根據本款再一次發(fā)出申請通知前，完成此類工作。
若在28天期限內雇主代表既未頒發(fā)移交證書也未駁回承包商的申請，而當工程或區(qū)段（視情況而動基本符合合同要求時，應視為在上述期限內的最后一天已經頒發(fā)了移交證書。
Use by The Employer雇主的使用
10.2 The Employer shall not use any part of the Works unless the Employer’s Representative has issued a Taking-Over Certificate for such part. If a Taking- Over Certificate has been issued for any part of the Works (other than a Section), the liquidated damages for delay in completion of the remainder of the Works (and of the Section of which it forms part) shall, for any period of delay after the date stated in such Taking-Over Certificate, be reduced in the proportion which the value of the part so certified bears to the value of the Works or Section (as the case may be); such values shall be determined by the Employer’s Representative in accordance with the provisions of Sub- Clause 3.5. The provisions of this paragraph shall only apply to the rate of liquidated damages under Sub-Clause 8.6, and shall not affect the limit of such damages.
If the Employer does use any part of the Works before the Taking-Over
Certificate is issued:
(a) the part which is used shall be deemed to have been taken over at the date
on which it is used,
(b) the Employer’s Representative shall, when requested by the Contractor,
issue a Taking-Over Certificate accordingly, and
(c) the Contractor shall cease to be liable for the care of such part from such
date, when responsibility shall pass to the Employer.
After the Employer’s Representative has issued a Taking-Over Certificate for a part of the Works, the Contractor shall be given the earliest opportunity to take such steps as may be necessary to carry out any outstanding Tests on Completion, and the Contractor shall carry out such Tests on Completion as soon as practicable, before the expiry of the Contract Period.
雇主不得使用工程的任何部分，除非雇主代表已頒發(fā)了該部分的移交證書。若對工程的任何部分（而不是區(qū)段）已頒發(fā)了移交證書，對于在移交證書注明的日期之后的任何拖延期間，延誤完成該工程以及組成區(qū)段的一部分）的剩余部分的損害賠償費應按已簽發(fā)部分的價值相對工程或區(qū)段（視情況而定）的價值比例相應減少，此類價值應由雇主代表根據第3.5款的規(guī)定決定。本款規(guī)定僅適用于第8.6款規(guī)定的損害賠償費的比率，而不對上述限額構成影響。
如果在移交證書頒發(fā)前雇主確實使用了工程的任何部分：
（a）該被使用的部分自其被使用之日，應視為已被雇主接收；
（b）當承包商要求時，雇主代表應相應地頒發(fā)一份移交證書；
（c）承包商應從使用之日起停止對該部分的照管責任，此時，責任應轉給雇主。
雇主代表在為工程的一部分頒發(fā)移交證書后，應盡早給予承包商機會以使其采取可能必要的步驟去完成任何尚未完成的竣工檢驗。承包商應在合同期滿前盡快進行此類竣工檢驗。
Interference with Tests on Completion對竣工檢驗的干擾
10.3 If the Contractor is prevented from carrying out the Tests on Completion by a cause for which the Employer (or another contractor employed by the Employer) is responsible, 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. The Employer’s Representative shall then issue a Taking-Over Certificate accordingly, and the Contractor shall carry out the Tests on Completion as soon as practicable, before the expiry of the Contract Period. The Employer's Representative shall require the Tests on Completion to be carried out by 14 days’ notice and in accordance with the relevant provisions of the Contract. If the Contractor incurs additional Cost as a result of this delay in carrying out the Tests on Completion, such Cost plus reasonable profit shall be determined by the Employer’s Representative in accordance with the provisions of Sub-Clause 3.5 and shall be added to the Contract Price.
如果由于雇主（或其雇用的其他承包商）負責的原因妨礙承包商進行竣工檢驗，則應認為雇主已在本應完成竣工檢驗之日接收了工程或區(qū)段（視情況而定）。雇主代表隨后應相應地頒發(fā)一份移交證書，并且，承包商應在合同期限期滿前盡快進行竣工檢驗。雇主代表應提前14天發(fā)出通知，要求根據合同的有關規(guī)定進行竣工檢驗。若延誤進行竣工檢驗致使承包商產生附加費用，則此類費用連同合理的利潤應由雇主代表根據第3.5款的規(guī)定予以確定并應加入合同價格。
11 Tests after Completion竣工后的檢驗
TEST AFTER COMPLETION
Employer’s Obligations雇主的義務
11.1 If Tests after Completion are specified in the Contract, this Clause shall apply. Unless otherwise stated in Part II, the Employer shall provide the necessary labour, materials, electricity, fuel and water, and shall carry out the Tests after Completion in accordance with the manuals provided by the Contractor under Sub-Clause 5.7 and such guidance as the Contractor may be required to give during the course of such Tests.
The Tests after Completion shall be carried out as soon as is reasonably practicable after the Works, or Section, have been taken over by the Employer. The Employer shall give to the Contractor 21 days’ notice of the date after which the Tests after Completion will be carried out. Unless otherwise agreed, such Tests shall be carried out within 14 days after this date, on the day or days determined by the Employer. If the Contractor does not attend at the time and place agreed, 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 accept the readings as accurate.
The results of the Tests after Completion shall be compiled and evaluated by the Employer and the Contractor. Any effect on the results of the Tests after Completion which can reasonably be shown to be due to the prior use of the Works by the Employer shall be taken into account in assessing such results.
如果合同規(guī)定有竣工后的檢驗，本款將適用。除非第二部分中另有規(guī)定，雇主應提供必要的勞工、材料、電、燃料和水，并應根據由承包商按照第5.7款提供的手冊以及在此類檢驗過程中同能要求承包商提供的指導進行竣工后的檢驗。
竣工后的檢驗應于工程或區(qū)段移交給雇主后，在合理可行時盡快進行。雇主應提前21天將一個日期通知承包商，說明在該日期后將進行竣工后的檢驗。除非另有商定，此類檢驗應在該日期后14天內于雇主確定的某日或數(shù)日內進行。若承包商未在商定的時間、地點參加檢驗，雇主可進行竣工后的檢驗并應被視為是承包商在場的情況下進行的。承包商應認可檢驗數(shù)據的準確性。
竣工后的檢驗的結果應由雇主與承包商整理和鑒定。在評價此類結果時，應將因雇主提前使用工程而對竣工后的檢驗的結果造成的影響（此類影響是可合理看出的）考慮在內。
Delayed Tests延誤的檢驗
11.2 If the Contractor incurs additional Cost as a result of any unreasonable delay by the Employer in carrying out the Tests after Completion, such Cost plus reasonable profit shall be determined by the Employer’s Representative in accordance with the provisions of Sub-Clause 3.5 and shall be added to the Contract Price.
If, for reasons not attributable to the Contractor, a Test after Completion on the
Works or any Section cannot be completed during the Contract Period (or any other period agreed upon by the Employer and the Contractor), then the Works or such Section shall be deemed to have passed such Test after Completion.
若因雇主無故拖延竣工后的檢驗致使承包商產生附加費用，則此類費用連同合理的利潤應由雇主代表根據第3.5款的規(guī)定加以確定，并應加入合同價格中，如果未能在合同期（或由雇主與承包商商定的任何其他期限）內完成對工程或任何區(qū)段的竣工后的檢驗，不是由于承包商的原因造成的，則工程或此類區(qū)段應被視為已通過了竣工后的檢驗。
Retesting重新檢驗
11.3 If the Works, or a Section, fail to pass the Tests after Completion, the Employer or the Contractor may require such failed Tests, and the Tests after Completion on any related work, to be repeated under the same terms and conditions. If such failure and retesting result from a default of the Contractor and cause the Employer to incur additional costs, such costs shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due, or to become due, to the Contractor.
如果工程或一區(qū)段未能通過竣工后的檢驗，雇主或承包商可要求按照相同的條款和條件，重新進行此類未通過的檢驗以及對相關工作的竣工后的檢驗。若此類未通過的檢驗和重新檢驗是由于承包商的違約造成并使雇主產生了附加費用，則此類費用應由雇主從承包商處收回，亦可由雇主從任何應支付或將支付給承包商的款項中扣除。
Failure to Pass Tests after Completion.
11.4 If the following conditions apply, namely:
(a) the Works, or a Section, fail to pass any or all of the Tests after Completion, (b) the relevant sum payable as liquidated damages for such failure is stated (or its method of calculation is defined) in the Appendix to Tender, and (c) the Contractor pays such relevant sum to the Employer during the Contract Period,
then the Works or such Section shall be deemed to have passed such If the Works, or a Section, fail to pass a Test after Completion and the Contractor in consequence proposes to make any adjustment or modification thereto, the Employer's Representative may instruct the Contractor that the Employer does not wish such adjustment or modification to be made until a time that is convenient to the Employer. In such event, the Contractor shall remain liable to carry out the adjustment or modification, and to satisfy such Test within a reasonable time of being notified to do so by the Employer's Representative. If, however, the Employer's Representative fails to give any such notice during the Contract Period, the Contractor shall be relieved of any such obligation and the Works or Section (as the case may be) shall be deemed to have passed such 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 Plant by the Contractor, either to investigate the causes of failure to pass a Test after Completion, or to carry out any adjustments or modifications, then the Contractor shall be paid the additional Cost, plus reasonable profit, caused by such delay.
12 Defects Liability
DEFECTS LIABILITY
Completion of Outstanding Work and Remedying
12.1 In order that the Construction Documents and the Works shall be in the condition required by the Contract (fair wear and tear excepted) at, or as soon as practicable after, the expiry of the Contract Period, the Contractor shall:
Defects (a) complete any work which is outstanding on the date stated in a Taking- Over Certificate, as soon as practicable after such date, and (b) execute all work of amendment, reconstruction, and remedying defects or damage, as may be instructed by the Employer or the Employer’s Representative during the Contract Period. If any such defect appears or damage occurs, the Employer or the Employer’s Representative shall promptly notify the Contractor in writing.
Cost of Remedying Defects
12.2 All work referred to in Sub-Clause 12. 1 (b) shall be executed by the Contractor
at his own cost, if the necessity for such work is due to:
(a) the design of the Works,
(b) Plant, Materials or workmanship not being in accordance with the Contract, or
(c) failure by the Contractor to comply with any of his other obligations.
If such necessity is due to any other cause, the Employer’s Representative shall
notify the Contractor accordingly and seek agreement to an adjustment to the
Contract Price. In this event, Sub-Clause 14.3 shall apply to such work.
Extension of Contract Period
12.3 The Contract Period shall be extended by a period equal to the sum of any periods, after the Works are taken-over, during which the Works or any Section or item of Plant cannot be used, for the purposes for which they are intended, by reason of a defect or damage; except that the Contract Period shall not be extended by more than two years.
When delivery of Plant and/or Materials, or erection of Plant, or installation of
Materials, has been suspended under Sub-Clause 8.7, the Contractor’s obligations under this Sub-Clause shall not apply to any defects or damage occurring more than three years after the Plant and/or Materials would otherwise have been delivered, erected and taken-over.
Failure to Remedy Defects
12.4 If the Contractor fails to remedy any defect or damage within a reasonable time,
the Employer or the Employer’s Representative may fix a date on or by which to remedy the defect or damage, and give the Contractor reasonable notice of such date. If the Contractor fails to remedy the defect or damage by such date and the necessity for such work is due to a cause stated in Sub-Clause 12.2(a), (b) or (c), the Employer may (at his sole discretion):
(a) carry out the work himself or by others, in a reasonable manner and at the Contractor's risk and cost, but the Contractor shall have no responsibility for such work: the costs properly incurred by the Employer in remedying the defect or damage shall be recoverable from the Contractor by the Employer;
(b) require the Employer’s Representative to determine and certify a reasonable reduction in the Contract Price; or
(c) if the defect or damage is such that the Employer has been deprived of substantially the whole of the benefit of the Works or parts of the Works, terminate the Contract in respect of such parts of the Works as cannot be put to the intended use: the Employer shall then be entitled to recover all sums paid for such parts of the Works together with the cost of dismantling the same, clearing the Site and returning Plant and Materials to the Contractor, and Sub-Clause 15.1 shall not apply.
Removal of Defective Work
12.5 If the defect or damage is such that it cannot be remedied expeditiously on the Site, the Contractor may, with the consent of the Employer’s Representative or the Employer, remove from the Site for the purposes of repair any part of the
Works which is defective or damaged.
Further Tests
12.6 If the remedying of any defect or damage is such that it may affect the performance of the Works, the Employer may require that Tests on Completion or Tests after Completion, or both, be repeated to the extent necessary. The requirement shall be made by notice within 28 days after the defect or damage is remedied. Such Tests shall be carried out in accordance with Clause 9 or Clause 11 (as the case may be).
Right of Access
12.7 Until the Performance Certificate has been issued, the Contractor shall have the right of access to all parts of the Works and to records of the working and
performance of the Works, except as may be inconsistent with any reasonable security restrictions by the organisation responsible for operating the Works.
Contractor to Search
12.8 The Contractor shall, if required by the Employer’s Representative, search for Search the cause of any defect, under the direction of the Employer’s Representative. Unless the defect is one for which the Contractor is liable, the Cost of such search, plus reasonable profit, shall be added to the Contract Price.
Performance Certificate
12.9 The Contract shall not be considered to be completed until the Performance
Certificate has been signed by the Employer’s Representative and delivered to the Contractor, stating the date on which the Contractor completed his obligations to the Employer’s Representative’s satisfaction.
The Performance Certificate shall be given by the Employer’s Representative by the date 28 days after the expiry of the Contract Period, or as soon after such date as the Contractor has provided all the Construction Documents and completed and tested all the Works, including remedying any defects.
Only the Performance Certificate shall be deemed to constitute approval of the Works.
Unfulfilled Obligations
12.10 After the Performance Certificate has been issued, the Contractor and the Employer 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 any such obligation, the Contract shall be deemed to remain in force.
13 Contract Price and Payment
CONTRACT PRICE AND PAYMENT
The Contract Price
13.1 Unless otherwise stated in Part II:
(a) payment for the Works shall be made on a fixed lump sum basis;
(b) the Contract Price shall not be adjusted for changes in the cost of labour,
materials or other matters;
(c) the Contractor shall pay all duties and taxes in consequence of his obligations
under the Contract, and the Contract Price shall not be adjusted
for such costs, except as stated in Sub-Clause 13.16;
(d) any quantities which may be set out in a Schedule are only estimated
quantities and are not to be taken as the actual and correct quantities of the Works to be executed by the Contractor in fulfilment of his obligations under the Contract; and
(e) any quantities, prices or rates of payment per unit quantity which may be set out in a Schedule are only to be used for the purposes stated in such
Schedule.
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 Part II.
Advance Payments
13.2 The Employer will make interest-free advance payments to the Contractor for his mobilization and design. The total of such advance payments, and the number and timing of instalments (if more than one), shall be as stated in. the Appendix to Tender, payable in the proportions of currencies in which the Contract Price is payable. The Employer’s Representative shall issue an Interim Payment Certificate for the first instalment after the Contractor has delivered, to the Employer, the performance security in accordance with Sub-Clause 4.2 and a bank guarantee in a form and by a bank acceptable to the Employer in amounts and currencies equal to the advance payments. Such bank guarantee shall remain effective until the advance payments have been repaid, but its amount shall be progressively reduced by the amount repaid by the Contractor as indicated in Interim Payment Certificates.
The advance payments shall be repaid through percentage deductions in Interim Payment Certificates certified by the Employer’s Representative in accordance with this Clause. Unless other percentages are stated in the Appendix to Tender:
(a) deductions shall commence in the Interim Payment Certificate in which the total of all certified interim payments (excluding the advance payments and deductions and repayments of retention) exceeds ten per cent (10%) of the Contract Price less Provisional Sums; and
(b) deductions shall be made at the amortization rate of one quarter (25%) of the amount of all Interim Payment Certificates (excluding the advance payments and deductions and repayments of retention) in the types and proportionate amounts of currencies of the advance payments, until such time as the advance payments have been repaid.
If the advance payments have not been repaid prior to the issue of the Taking- Over Certificate for the Works or prior to termination under Clauses 15, 16 or 19 (as the case may be), the whole of the balance then outstanding shall immediately become due and payable by the Contractor to the Employer.
Application for Interim Payment Representative
13.3 The Contractor shall submit a statement in six copies to the Employer’s after the end of each month, in a form approved by the Certificates Employer’s Representative, showing the amounts to which the Contractor considers himself to be entitled, together with supporting documents which shall include the detailed report on the progress during the month in accordance with Sub-Clause 4.15. 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:
(a) the estimated contract value of the Construction Documents produced and the Works executed up to the end of the month (including Variations but excluding items described in sub-paragraphs (b) to (g) below);
(b) any amounts to be added and deducted for changes in legislation in accordance with Sub-Clause 13.16;
(c) any amount to be deducted for retention, calculated by applying the percentage of retention stated in the Appendix to Tender to the total of the above amounts, until the amount so retained by the Employer reaches the limit of Retention Money (if any) stated in the Appendix to Tender;
(d) any amounts to be added and deducted for the advance payments and repayments in accordance with Sub-Clause 13.2;
(e) any amounts to be added and deducted for Plant and Materials in accordance with Sub-Clause 13.5;
(f) any other additions or deductions which may have become due in accordance with the Contract (including those under Clause 20), other than under Sub-Clause 8.6; and
(g) the deduction of the amounts certified in all previous Interim Payment Certificates.
Schedule of Payments
13.4 If the Contract includes a Schedule of Payments specifying the instalments in
which the Contract Price will be paid, then, unless otherwise stated in such
Schedule:
(a) the instalments quoted in such Schedule shall be used to determine the contract value for the purposes of sub-paragraph (a) of Sub-Clause 133;
(b) Sub-Clause 13.5 shall not apply; and
(c) if the payment instalments are not defined by reference to the actual progress achieved in executing the Works, the Employer’s Representative shall be entitled to amend such Schedule: such amendment shall be made in accordance with the provisions of Sub-Clause 3.5 and shall only take account of the extent to which the actual progress achieved is less than that on which the instalments in the Schedule were based.
Plant and Materials for the Permanent Works
13.5 If this Sub-Clause applies, Interim Payment Certificates shall include (i) an
additional amount for Plant and Materials which have been brought to the Site for incorporation in the Permanent Works, and (ii) a deduction when they have been incorporated in the Permanent Works. The Employer’s Representative shall determine each addition and deduction in accordance with the following provisions:
(a) no addition shall be included in the Interim Payment Certificate unless, in
the opinion of the Employer’s Representative:
(i) the Plant and Materials are considered to be in accordance with the Contract;
(ii) the Plant and Materials have been delivered to the Site and are properly stored on Site and protected against loss, damage or deterioration;
(iii) the Contractor’s records of the requirements, orders, receipts and use of Plant and Materials are kept in a form approved by the Employer’s Representative, and such records are available for inspection by the Employer’s Representative;
(iv) the Contractor has submitted a statement of the Cost of acquiring and delivering the Plant and Materials to the Site, together with such documents as may be required for the purpose of evidencing such Cost; and
(v) the Plant and Materials are those listed in the Appendix to Tender;
(b) the additional amount to be certified shall be the equivalent of eighty percent of the cost of the Plant and Materials delivered to the Site, as determined by the Employer’s Representative after review of the documents mentioned in sub-paragraph (a) above, taking account of the contract value of such Plant and Materials as determined and considered appropriate by the Employer’s Representative;
(c) the amount of the deduction for any Plant and Materials incorporated in the Permanent Works shall be equivalent to the addition previously certified by the Employer’s Representative for such Plant and Materials under sub-paragraph (b) above; and
(d) the currencies for such additions and deductions shall be determined by the
Employer’s Representative as follows:
(i) in the case of each addition, the currencies shall be those in which the payment will eventually become due for the relevant item of Plant or Materials, upon their incorporation in the Permanent Works; and
(ii) in the case of a deduction, the currencies shall be those in which the addition for the respective item of Plant or Materials had been certified.
Issue of Interim Payment Certificates
3.6 No amount will be certified or paid until the Employer has received, and approved, the performance security in accordance with Sub-Clause 4.2. Thereafter, the Employer’s Representative shall, within 28 days of receiving a statement and supporting documents, deliver to the Employer with a copy to the Contractor an Interim Payment Certificate showing the amount which the Employer’s Representative considers to be due; if no payment is considered to be due, the Employer’s Representative shall promptly notify the Contractor accordingly. Except that the Employer’s Representative shall not be bound to certify any payment under this Sub-Clause, if the net amount to be certified (after retention and other deductions) would be less than the minimum amount of Interim Payment Certificates (if any) stated in the Appendix to Tender. An Interim Payment Certificate shall not be withheld on account of:
(a) defects: if any thing supplied or work done by the Contractor is not in accordance with the Contract, the cost of rectification or replacement shall be deducted by the Employer's Representative from any amount otherwise due;
(b) part (only) of the payment applied for being disputed: in such case, a payment certificate shall be issued for the undisputed amount. The Employer’s Representative may in any payment certificate make any correction or modification that should properly be made to any previous certificate.
Payment
13.7 Unless otherwise stated in Part II,
(a) the Employer shall pay the amount certified in each Interim Payment Certificate within 56 days from the date on which the Employer’s Representative received the Contractor's statement and supporting documents; and
(b) the Employer shall pay the amount certified in the Final Payment Certificate
within 56 days from the date of issue of the Certificate.
Payments shall be made into a bank account, nominated by the Contractor, in the payment country named as such in the Contract. If payments are to be made in more than one currency, separate bank accounts may be nominated by the Contractor for each currency, and payments shall be made by the Employer accordingly.
Delayed Payment
13.8 If payment of any sum payable under Sub-Clause 13.7 is delayed, the Contractor shall be entitled to receive financing charges compounded monthly on the amount unpaid during the period of delay. Unless otherwise stated in Part II, these financing charges shall be calculated at the annual rate three percentage points above the discount rate of the central bank in the country of the currency of payment. The Contractor shall be entitled to such payment without formal notice and without prejudice to any other right or remedy.
Payment of Retention Money
13.9 When the Employer’s Representative has issued the Taking-Over Certificate for the Works, and the Works have passed all specified tests (including the Tests after Completion, if any), the first half of the Retention Money shall be certified by the Employer’s Representative for payment to the Contractor. If the Works are taken over in Sections, the percentage of the first half of the Retention Money released following the issue of a Taking-Over Certificate for a Section, and it passing all tests, shall be the percentage value of the Section as stated in the Appendix to Tender.
Upon the expiry of the Contract Period, the second half of the Retention Money shall be certified by the Employer’s Representative for payment to the Contractor. Except that, if at such time any work shall remain to be executed under Clause 11 or Clause 12, the Employer’s Representative shall be entitled to withhold certification, until completion of such work, of so much of the balance of the Retention Money as shall represent the cost of the work remaining to be executed.
Statement at Completion
13.10 Not later than 84 days after the issue of the Taking-Over Certificate for the Works, the Contractor shall submit, to the Employer’s Representative, six copies of a statement at completion with supporting documents showing in detail, in the form approved by the Employer’s Representative under Sub- Clause 13.3
(a) the final value of all work done in accordance with the Contract up to the date stated in such Taking-Over Certificate,
(b) any further sums which the Contractor considers to be due, and
(c) an estimate of amounts which the Contractor considers will become due to him under the Contract.
The estimated amounts shall be shown separately in such statement at completion. The Employer’s Representative shall certify payment under Sub- Clause 13.6.
Application for Final Payment Certificate
13.11 Not later than 56 days after the issue of the Performance, the Contractor shall submit to the Employer's Representative six copies of a draft Certificate final statement with supporting documents showing in detail, in a form approved by the Employer's Representative:
(a) the value of all work done in accordance with the Contract, and
(b) any further sums which the Contractor considers to be due to him under the Contract or otherwise.
If the Employer’s Representative disagrees with or cannot verify any part of the draft final statement, the Contractor shall submit such further information as the Employer’s Representative may reasonably require and shall make such changes in the draft as may be agreed between them. The Contractor shall then prepare and submit to the Employer’s Representative the final statement as agreed (for the purposes of these Conditions referred to as the Final Statement).
If, following discussions between the Employer’s Representative and the Contractor and any changes to the draft final statement which may be agreed between them, it becomes evident that a dispute exists, the Employer’s Representative shall deliver to the Employer (with a copy to the Contractor) an Interim Payment Certificate for those parts of the draft final statement which are not in dispute. The dispute may then be resolved under Clause 20, in which case the Contractor shall then prepare and submit to the Employer (with a copy to the Employer’s Representative) a Final Statement in accordance with the outcome of the dispute.
Discharge
13.12 When submitting the Final Statement, the Contractor shall submit a written discharge which confirms that the total of the Final Statement represents full and final settlement of all monies due to the Contractor under the Contract. Such discharge may state that it shall become effective only after payment due under the Final Payment Certificate has been made and the performance security referred to in Sub-Clause 4.2 has been returned to the Contractor.
Issue of Final Payment Certificate
13.13 The Employer’s Representative shall issue to the Employer, with a copy to the Contractor, the Final Payment Certificate within 28 days after receiving the
Final Statement and written discharge in accordance with Sub-Clauses 13.11 and 13.12, stating:
(a) the amount which is finally due, 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, other than under Sub-Clause 8.6, 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 applied for a Final Payment Certificate in accordance with Sub-Clauses 13. 11 and 13.12, the Employer’s Representative shall request the Contractor to do so. If the Contractor fails to make such an application within a period of 28 days, the Employer’s Representative shall issue the Final Payment Certificate for such amount as he considers to be due.
Cessation of Employer’s Liability
13.14 The Employer shall not be liable to the Contractor for any matter or thing arising out of (or in connection with) the Contract or execution of the Works, unless the Contractor shall have included a claim for it in his Final Statement and (except for matters or things arising after the issue of the Taking-Over Certificate for the Works) in the statement at completion described in Sub- Clause 13.10.
Calculation of Payments in Foreign Currency
13.15 If the Contract Price is expressed in Local Currency only, but some payments
are to be made in another currency, 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 Appendix to Tender. If no rates of exchange are stated therein, they shall, unless otherwise stated in Part II, be those prevailing for the Base Date, as determined by the central bank of the Country.
Changes in Legislation
13.16 The Contract Price shall be adjusted to take account of any increase or decrease
in Cost resulting from changes in legislation of the Country, made after the Base
Date. Such legislation means any law, order, regulation or by-law having the force of law, including currency restrictions, which affects the Contractor in the performance of his obligations.
If the Contractor suffers (or will suffer) delay and/or incurs (or will incur) additional Cost resulting from such changes in legislation, made after the Base Date, the Contractor shall give notice to the Employer’s Representative. After receipt of such notice the Employer’s Representative shall proceed in accordance with Sub-Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the amount of such Cost, which shall be added to the Contract Price, and shall notify the Contractor accordingly.
14 Variations
VARIATIONS
Right to Vary
14.1 Variations may be initiated by the Employer’s Representative at any time during the Contract Period, either by instruction or by a request for the Contractor to submit a proposal. If the Employer’s Representative requests the Contractor to submit a proposal and subsequently elects not to proceed with the change, the Contractor shall be reimbursed for the Cost incurred, including design services.
The Contractor shall not make any alteration and/or modification of the Works, unless and until the Employer’s Representative instructs or approves a Variation. If the Construction Documents or Works are not in accordance with the Contract, the rectification shall not constitute a Variation.
Value Engineering
14.2 The Contractor may, at any time, submit to the Employer’s Representative a written proposal which in the Contractor's opinion will reduce the cost of constructing, maintaining or operating the Works, or improve the efficiency or value to the Employer of the completed Works, or otherwise be of benefit to the Employer. Any such proposal shall be prepared at the cost of the Contractor and shall include the items listed in Sub-Clause 14.3.
Variation Procedure
14.3 If the Employer’s Representative requests a proposal, prior to instructing a Variation, the Contractor shall submit as soon as practicable:
(a) a description of the proposed design and/or work to be performed and a programme for its execution,
(b) the Contractor’s proposal for any necessary modifications to the programme according to Sub-Clause 4.14, and
(c) the Contractor’s proposal for adjustment to the Contract Price, Time for Completion and/or modifications to the Contract.
The Employer’s Representative shall, as soon as practicable after receipt of such proposals, respond with approval, rejection or comments.
If the Employer’s Representative instructs or approves a Variation, he shall proceed in accordance with Sub-Clause 3.5 to agree or determine adjustments to the Contract Price, Time for Completion and Schedule of Payments. Adjustment of the Contract Price shall include reasonable profit, and shall take account of the Contractor's submissions under Sub-Clause 14.2 if applicable.
Payment in Applicable currency
14.4 If the Contract provides for payment of the Contract Price in more than one , and an adjustment is agreed or fixed as stated above, the amount Currencies payable in each of the applicable currencies shall be specified when the adjustment is agreed or fixed. In specifying the amount in each currency, the Contractor and the Employer’s Representative (or, failing agreement, the Employer’s Representative) shall take account of the actual or expected currency proportions of the Cost of the varied work, without being bound by the proportions of various currencies specified for payment of the Contract Price.
Provisional Sums
14.5 Each Provisional Sum shall only be used, in whole or in part, in accordance with the Employer’s Representative’s instructions. The total sum paid to the Contractor shall include only such amounts for the work, supplies or services to which such Provisional Sums relate as the Employer’s Representative shall have instructed. For each Provisional Sum, the Employer’s Representative may order:
(a) work to be executed (including Plant, Materials or services to be supplied)
by the Contractor and valued under Sub-Clause 14.3;
(b) Plant, Materials or services to be purchased by the Contractor, for which payment will be made as follows:
(i) the actual price paid (or due to be paid) by the Contractor, and
(ii) a percentage of the actual price paid (or due to be paid), as stated in the Appendix to Tender, to cover all other Costs, charges and profit.
The Contractor shall, when required by the Employer’s Representative, produce quotations, invoices, vouchers and accounts or receipts in substantiation.
15 Default of Contractor
DEFAULT OF CONTRACTOR
Notice to Correct
15.1 If the Contractor fails to carry out any of his obligations, or if the Contractor is not executing the Works in accordance with the Contract, the Employer’s Representative may give notice to the Contractor requiring him to make good such failure and remedy the same within a specified reasonable time.
Termination 15.2 If the Contractor:
(a) fails to comply with a notice under Sub-Clause 15.1,
(b) abandons or repudiates the Contract,
(c) without reasonable excuse fails:
(i) to commence the Works in accordance with Sub-Clause 8. 1,
(ii) to proceed with the Works in accordance with Clause 8, or
(iii) to demonstrate that sufficient design capability is employed in the design of the Works to achieve completion within the Time for Completion,
(d) becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under any applicable law) has a similar effect to any of these acts or events,
(e) fails to comply with a notice issued under Sub-Clause 7.5 within 28 days after having received it, or
(f) assigns the Contract or subcontracts the Works without the required consent,
then the Employer may, after having given 14 days’ notice to the Contractor, terminate the Contractor’s employment under the Contract and expel him from the Site. The Contractor shall then deliver all Construction Documents, and other design documents made by or for him, to the Employer’s Representative. The Contractor shall not be released from any of his obligations or liabilities under the Contract. The rights and authorities conferred on the Employer and the Employer’s Representative by the Contract shall not be affected.
The Employer may upon such termination complete the Works himself and/or by any other contractor. The Employer or such other contractor may use for such completion so much of the Construction Documents, other design documents made by or on behalf of the Contractor, Contractor’s Equipment, Temporary Works, Plant and Materials as he or they may think proper. Upon completion of the Works, or at such earlier date as the Employer’s Representative thinks appropriate, the Employer’s Representative shall give notice that the Contractor's Equipment and Temporary Works will be released to the Contractor at or near the Site. The Contractor shall remove or arrange removal of the same from such place without delay and at his cost.
Valuation at Date of Termination
15.3 The Employer’s Representative shall, as soon as possible after termination
under Sub-Clause 15.2, determine and advise the Contractor of the value of the Construction Documents, Plant, Materials, Contractor's Equipment and Works and all sums then due to the Contractor as at the date of termination.
Payment after Termination
15.4 After termination under Sub-Clause 15.2, the Employer shall not be liable to make any further payments to the Contractor until the costs of design, execution, completion and remedying of any defects, damages for delay in completion (if any), and all other costs incurred by the Employer, have been established. The Employer shall be entitled to recover from the Contractor the extra costs, if any, of completing the Works after allowing for any sum due to the Contractor under Sub-Clause 15.3. If there are no such extra costs, the Employer shall pay any balance to the Contractor.
Bribes 15.5 If the Contractor, or any of his Subcontractors, agents or servants gives or offers to give to any person any bribe, gift, gratuity or commission as an inducement or reward:
(a) for doing or forbearing to do any action in relation to the Contract or any
other contract with the Employer, or
(b) for showing or forbearing to show favour or disfavour to any person in relation to the Contract or to any other contract with the Employer, then the Employer may, after having given 14 days' notice to the Contractor, terminate the Contractor's employment under the Contract and expel him from the Site, and the provisions of this Clause shall apply as if such termination and expulsion had been made under Sub-Clause 15.2.
16 Default of Employer
DEFAULT OF EMPLOYER
Contractor’s Entitlement to of Suspend Work
16.1 If the Employer fails to pay the Contractor the amount due under any certificate the Employer’s Representative, and fails to explain why the Contractor is not entitled to such amount, within 21 days after the expiry of the time stated in Sub-Clause 13.7 within which payment is to be made, except for any deduction that the Employer is entitled to make under the Contract, the Contractor may suspend work or reduce the rate of work after giving not less than 7 days’ prior notice to the Employer (with a copy to the Employer’s Representative). Such action shall not prejudice the Contractor's entitlements to payment under Sub-Clause 13.8 and to terminate under Sub-Clause 16.2.
If the Contractor suspends work or reduces the rate of work, and the Employer subsequently pays the amount due (including payment in accordance with Sub- Clause 13.8), the Contractor's entitlement under Sub-Clause 16.2 shall lapse in respect of such delayed payment, unless notice of termination has already been given, and the Contractor shall resume normal working as soon as is reasonably possible.
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 give notice to the Employer’s Representative. After receipt of such notice, the Employer’s Representative shall proceed in accordance with Sub- Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the amount of such Cost plus reasonable profit, which shall be added to the Contract Price, and shall notify the Contractor accordingly.
Termination
16.2 If the Employer:
(a) fails to pay the Contractor the amount due under any certificate of the Employer’s Representative within 42 days after the expiry of the time stated in Sub-Clause 13.7 within which payment is to be made (except for any deduction that the Employer is entitled to make under the Contract),
(b) becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under any applicable law) has a similar effect to any of these acts or events,
(c) consistently fails to meet the Employer’s obligations under the Contract, or
(d) assigns the Contract without the Contractor’s consent, or, if a prolonged suspension affects the whole of the Works as described in Sub-Clause 8. 10, then the Contractor may terminate his employment under the Contract by giving notice to the Employer, with a copy to the Employer’s Representative.
Such notice shall take effect 14 days after the giving of the notice.
Cessation of Work and Removal of Contractor’s Equipment
16.3 After termination under Sub-Clause 2.4 or Sub-Clause 16.2, the Contractor
shall:
(a) cease all further work, except for such work as may be necessary and instructed by the Employer’s Representative for the purpose of making safe or protecting those parts of the Works already executed, and any work required to leave the Site in a clean and safe condition,
(b) hand over all Construction Documents, Plant and Materials for which the Contractor has received payment,
(c) hand over those other parts of the Works executed by the Contractor up to the date of termination, and
(d) remove all Contractor’s Equipment which is on the Site and repatriate all his staff and labour from the Site. Any such termination shall be without prejudice to any other right of the Contractor under the Contract.
Payment on Termination
16.4 After termination under Sub-Clause 16.2, the Employer shall return the performance security, and shall pay the Contractor an amount calculated and certified in accordance with Sub-Clause 19.6 plus the amount of any loss or damage, including loss of profit, which the Contractor may have suffered in consequence of termination.
17 Risk and Responsibility
RISK AND RESPONSABILITY
Indemnity
17.1 The Contractor shall indemnify and hold harmless the Employer, the Employer’s Representative, their contractors, agents and employees from and against all claims, damages, losses and expenses arising out of or resulting from the Works, including professional services provided by the Contractor. These indemnification obligations shall be limited to claims, damages, losses and expenses which are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of physical property (other than the Works), including consequential loss of use. Such obligations shall also be limited to the extent that such claims, damages, losses or expenses are caused in whole or in part by a breach of a duty of care, imposed by law on the Contractor or anyone directly or indirectly employed by the Contractor.
Contractor’s Care of the Works
17.2 The Contractor shall take full responsibility for the care of the Works from the Commencement Date until the date of issue of the Taking-Over Certificate, when responsibility shall pass to the Employer. If the Employer’s Representative issues a Taking-Over Certificate for any Section or part of the Works, the Contractor shall cease to be responsible for the care of that Section or part from the date of issue of such Taking-Over Certificate, when responsibility shall pass to the Employer. The Contractor shall take responsibility for the care of any outstanding work which is required to be completed prior to the expiry of the Contract Period, until the Employer’s Representative confirms in writing that such outstanding work has been completed.
If any loss or damage happens to the Works, arising from any cause other than the Employer’s risks listed in Sub-Clause 17.3, during the period for which the Contractor is responsible, the Contractor shall rectify such loss or damage, at his cost, so that the Works conform with the Contract. The Contractor shall also be liable for any loss or damage to the Works caused by any operations carried out by the Contractor after the date of issue of the Taking-Over Certificate.
Employer’s Risks
17.3 The Employer’s risks are:
(a) war, hostilities (whether war be declared or not), invasion, act of foreign
enemies,
(b) rebellion, revolution, insurrection, or military or usurped power, or civil war,
(c) ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly,
(d) pressure waves caused by aircraft or other aerial devices travelling at sonic
or supersonic speeds,
(e) riot, commotion or disorder, unless solely restricted to employees of the Contractor or of his Subcontractors and arising from the conduct of the Works,
(f) loss or damage due to the use or occupation by the Employer of any Section or part of the Works, except as may be provided for in the Contract, and
(g) any operation of the forces of nature against which an experienced contractor could not reasonably have been expected to take precautions.
Consequences of Employer’s Risks
17.4 The Contractor shall give notice, to the Employer’s Representative, of an Employer’s risk upon it being foreseen by, or becoming known to, the Contractor. If an Employer’s risk results in loss or damage, the Contractor shall rectify such loss or damage to the extent required by the Employer’s Representative. If the Contractor suffers delay and/or incurs Cost as a result of an Employer’s risk, the Contractor shall give further notice to the Employer’s Representative. After receipt of such further notice the Employer’s Representative shall proceed in accordance with Sub-Clause 3.5 to agree or determine:
(a) any extension of time to which the Contractor is entitled under Sub- Clause 8.3, and
(b) the amount of such Cost, which shall be added to the Contract Price, and shall notify the Contractor accordingly.
Contractor’s Risks
17.5 The Contractor’s risks are all risks other than the Employer’s risks listed in Sub- Clause 17.3.
Limitation of Liability
17.6 The Contractor shall in no event be liable to the Employer, by way of indemnity or by reason of any breach of the Contract or in tort or otherwise, for loss of use of any part (or all) of the Works or for loss of production, loss of profit or loss of any contract or for any indirect special or consequential loss or damage which may be suffered by the Employer in connection with the Contract. The total liability of the Contractor to the Employer under the Contract shall not exceed the Contract Price. Except that this Sub-Clause shall not limit the liability of the Contractor:
(a) under Sub-Clauses 4.19, 4.20, 5.9, 8.6 and 11.4,
(b) under any other provisions of the Contract which expressly impose a greater liability,
(c) in cases of fraud, wilful misconduct or illegal or unlawful acts, or
(d) in cases of acts or omissions of the Contractor which are contrary to the most elementary rules of diligence which a conscientious contractor would have followed in similar circumstances.
18 Insurance
INSURANCE
Insurance for Design
18.1 The Contractor shall effect professional indemnity insurance, which shall insure the Contractor's liability by reason of professional negligence in the design of the Works. Such insurance shall be for a limit of not less than the amount specified in the Appendix to Tender.
The Contractor shall use his best endeavours to maintain such professional indemnity insurance in full force and effect throughout the periods of his liability, under the Contract and under the law of the Country. The Contractor undertakes to give the Employer reasonable notice in the event of difficulty (if any) in extending, renewing or reinstating such insurance.
Insurance for Works and Contractor’s Equipment
18.2 The Contractor shall insure the Construction Documents, Plant, Materials and Works in the joint names of the Employer, the Contractor and Subcontractors, against all loss or damage. This insurance shall cover loss or damage from any cause other than the Employer's risks listed in Sub-Clause 17.3 sub-paragraphs (a), (b), (c) and (d) in so far as such insurance is readily obtainable. Such insurance shall be for a limit of not less than the full replacement cost (including profit) and shall also cover the costs of demolition and removal of debris. Such insurance shall be in such a manner that the Employer and the Contractor are covered from the date by which the evidence is to be submitted under Sub- Clause 18.5(a), until the date of issue of the Taking-Over Certificate for the Works. The Contractor shall extend such insurance to provide cover until the date of issue of the Performance Certificate, for loss or damage for which the Contractor is liable arising from a cause occurring prior to the issue of the Taking-Over Certificate, and for loss or damage occasioned by the Contractor or Subcontractors in the course of any other operations (including those under Clauses 11 and 12).
The Contractor shall insure the Contractor’s Equipment in the joint names of the Employer, the Contractor and Subcontractors, against all loss or damage. This insurance shall cover loss or damage from any cause other than the Employer’s risks listed in Sub-Clause 17.3 sub-paragraphs (a), (b), (c) and (d) in so far as such insurance is readily obtainable. Such insurance shall be for a limit of not less than the full replacement value (including delivery to Site). Such insurance shall be in such a manner that each item of equipment is insured while it is being transported to the Site and throughout the period it is on or near the Site.
Insurance against Injury to Persons and Damage to Property
18.3 The Contractor shall insure against liability to third parties, in the joint names of the Employer, the Contractor and Subcontractors, for any loss, damage, death or bodily injury which may occur to any physical property (except things insured under Sub-Clause 18.2) or to any person (except persons insured under Sub-Clause 18.4), which may arise out of the performance of the Contract and occurring before the issue of the Performance Certificate. Such insurance shall be for a limit of not less than the amount specified in the Appendix to Tender.
Insurance for Workers
18.4 The Contractor shall effect and maintain insurance against losses and claims arising from the death or injury to any person employed by the Contractor or any Subcontractor, in such a manner that the Employer and the Employer’s Representative are indemnified under the policy of insurance. For a Subcontractor's employees, such insurance may be effected by the Subcontractor, but the Contractor shall be responsible for compliance with this Clause.
General Requirements for Insurances
18.5 Each insurance policy shall be consistent with the general terms agreed in writing prior to the Effective Date, and such agreement shall take precedence over the provisions of this Clause. The Contractor shall, within the respective periods stated in the Appendix to Tender (calculated from the Commencement Date), submit to the Employer:
(a) evidence that the insurances described in this Clause have been effected, and
(d) copies of the policies for the insurances described in Sub-Clauses 18.2 and
18.3.
When each premium has been paid, the Contractor shall submit copy receipts to the Employer. The Contractor shall also, when providing such evidence, policies and receipts to the Employer, notify the Employer’s Representative of so doing.
The Contractor shall effect all insurances for which he is responsible with insurers
and in terms approved by the Employer. Each policy insuring against loss or damage shall provide for payments to be made in the currencies required to rectify such loss or damage. Payments received from insurers shall be used for the rectification of such loss or damage.
The Contractor (and, if appropriate, the Employer) shall comply with the conditions stipulated in each of the insurance policies. The Contractor shall make no material alteration to the terms of any insurance without the prior approval of the Employer. If an insurer makes (or purports to make) any such alteration, the Contractor shall notify the Employer immediately.
If the Contractor fails to effect and keep in force any of the insurances required
under the Contract, or fails to provide satisfactory evidence, policies and receipts in accordance with this Sub-Clause, the Employer may, without prejudice to any other right or remedy, effect insurance for the coverage relevant to such default, and pay the premiums due. Such payments shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due, or to become due, to the Contractor. Nothing in this Clause limits the obligations, liabilities or responsibilities of the Contractor or the Employer, under the other terms of the Contract or otherwise. Any amounts not insured or not recovered from the insurers shall be borne by the Contractor and/or the Employer accordingly.
19 Force Majeure
FORCE MAJEURE
Definition of Force Majeure
19.1 In this Clause, force majeure means an event beyond the control of the Employer and the Contractor, which makes it impossible or illegal for a party to perform, including but not limited to:
(a) act of God;
(b) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo;
(c) rebellion, revolution, insurrection, or military or usurped power, or civil war;
(d) contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly;
(e) riot, commotion or disorder, unless solely restricted to employees of the
Contractor or of his Subcontractors.
Effect of Force Majeure Event
19.2 Neither the Employer nor the Contractor shall be considered in default or in contractual breach to the extent that performance of obligations is prevented by a force majeure event which arises after the Effective Date.
Contractor’s Responsibility
19.3 Upon occurrence of an event considered by the Contractor to constitute force
majeure and which may affect performance of his obligations, he shall promptly notify the Employer’s Representative, and shall endeavour to continue to perform his obligations as far as reasonably practicable. The Contractor shall also notify the Employer’s Representative of any proposals, including any reasonable alternative means for performance, but shall not effect such proposals without the consent of the Employer’s Representative.
Employer’s Responsibility
19.4 Upon occurrence of an event considered by the Employer to constitute force majeure and which may affect performance of his obligations, he shall promptly notify the Contractor and the Employer’s Representative, and shall endeavour to continue to perform his obligations as far as reasonably practicable. The Employer shall also notify the Employer’s Representative and the Contractor of any proposals, with the objectives of completing the Works and mitigating any increased costs to the Employer and the Contractor.
Payment to Contractor
19.5 If, in consequence of force majeure, the Works shall suffer loss or damage, the Contractor shall be entitled to have included, in an Interim Payment Certificate,
the Cost of work executed in accordance with the Contract, prior to the event of force majeure. If the Contractor incurs additional Cost in complying with Sub-Clause 19.3, such Cost shall be determined by the Employer’s Representative in accordance with the provisions of Sub-Clause 3.5 and shall be added to the Contract Price.
Optional Termination, Payment and Release
19.6 Irrespective of any extension of time, if a force majeure event occurs and its effect continues for a period of 182 days, either the Employer or the Contractor may give to the other a notice of termination, which shall take effect 28 days after the giving of the notice. If, at the end of the 28-day period, the effect of the force majeure continues, the Contract shall terminate. If the Contract is terminated under this Sub-Clause, Sub-Clause 2.4 or Sub-Clause 16.2, the Employer’s Representative shall determine the value of the work done and:
(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: such 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 reasonable Cost of removal of Temporary Works and Contractor’s Equipment from the Site and the return of such items to the Contractor's works in his country (or to any other destination at no greater cost); and
(e) the reasonable Cost of repatriation of the Contractor’s staff and labour
employed wholly in connection with the Works at the date of such termination;
and issue an Interim Payment Certificate in accordance with Clause 13.
Release from Performance under the Law
19.7 If under the law of the Contract the Employer and the Contractor are released
from further performance, the sum payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 19.6 if the Contract had been terminated under that Sub-Clause.
20 Claims, Disputes and Arbitration
CLAIMS, DISPUTE AND ARBITRATION
Procedure for Claims
20.1 If the Contractor intends to claim any additional payment under any Clause of these Conditions or otherwise, the Contractor shall give notice to the Employer’s Representative as soon as possible and in any event within 28 days of the start of the event giving rise to the claim.
The Contractor shall keep such contemporary records as may be necessary to substantiate any claim, either on the Site or at another location acceptable to the Employer’s Representative. Without admitting the Employer’s liability, the Employer’s Representative shall, on receipt of such notice, inspect such records and may instruct the Contractor to keep further contemporary records. The Contractor shall permit the Employer’s Representative to inspect all such records, and shall (if instructed) submit copies to the Employer’s Representative.
Within 28 days of such notice, or such other time as may be agreed by the Employer’s Representative, the Contractor shall send to the Employer’s Representative an account, giving detailed particulars of the amount and basis of the claim. Where the event giving rise to the claim has a continuing effect, such account shall be considered as interim. The Contractor shall then, at such intervals as the Employer’s Representative may reasonably require, send further interim accounts giving the accumulated amount of the claim and any further particulars. Where interim accounts are sent to the Employer’s Representative, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event.
If the Contractor fails to comply with this Sub-Clause, he shall not be entitled
to additional payment.
Payment of Claims
20.2 The Contractor shall be entitled to have included in any Interim Payment
Certificate such amount for any claim as the Employer’s Representative considers due. If the particulars supplied are insufficient to substantiate the whole of the claim, the Contractor shall be entitled to payment for such part of the claim as has been substantiated.
Dispute Adjudication Board
20.3 Unless the member or members of the Dispute Adjudication Board have been previously mutually agreed upon by the parties and named in the Contract, the parties shall, within 28 days of the Effective Date, jointly ensure the appointment of a Dispute Adjudication Board. Such Dispute Adjudication Board shall comprise suitably qualified persons as members, the number of members being either one or three, as stated in the Appendix to Tender. If the Dispute Adjudication Board is to comprise three members, each party shall nominate one member for the approval of the other party, and the parties shall mutually agree upon and appoint the third member (who shall act as chairman). The terms of appointment of the Dispute Adjudication Board shall:
(a) incorporate the model terms published by the federation Intetnational des Ing¨nieurs-Conseils (FIDIC),
(b) require each member of the Dispute Adjudication Board to be, and to remain throughout the appointment, independent of the parties,
(c) require the Dispute Adjudication Board to act impartially and in accordance with the Contract, and
(d) include undertakings by the parties (to each other and to the Dispute Adjudication Board) that the members of the Dispute Adjudication Board shall in no circumstances be liable for breach of duty or of contract arising out of their appointment; the parties shall indemnify the members against such claims.
The terms of the remuneration of the Dispute Adjudication Board, including the remuneration of each member and of any specialist from whom the Dispute Adjudication Board may require to seek advice, shall be mutually agreed upon by the Employer, the Contractor and each member of the Dispute Adjudication Board when agreeing such terms of appointment. In the event of disagreement, the remuneration of each member shall include reimbursement for reasonable expenses, a daily fee in accordance with the daily fee established from time to time for arbitrators under the administrative and financial regulations of the International Centre for Settlement of Investment Disputes, and a retainer fee per calendar month equivalent to three times such daily fee. The Employer and the Contractor shall each pay one-half of the Dispute Adjudication Board's remuneration in accordance with its terms of remuneration. If, at any time, either party shall fail to pay its due proportion of such remuneration, the other party shall be entitled to make payment on his behalf and recover it from the party in default. The Dispute Adjudication Board’s appointment may be terminated only by mutual agreement of the Employer and the Contractor. The Dispute
Adjudication Board’s appointment shall expire when the discharge referred to in Sub-Clause 13.12 shall have become effective, or at such other time as the parties may mutually agree.
If, at any time, the parties so agree, they may appoint a suitably qualified person to replace (or to be available to replace) any or all members of the Dispute Adjudication Board. The appointment will come into effect if a member of the Dispute Adjudication Board declines to act or is, unable to act as a result of death, disability, resignation or termination of appointment. If a member so declines or is unable to act, and no such replacement is available to act, the member shall be replaced in the same manner as such member was to have been nominated.
If any of the following conditions apply, namely:
(a) the parties fail to agree upon the appointment of the sole member of a one person
Dispute Adjudication Board within 28 days of the Effective Date,
(b) either party fails to nominate an acceptable member, for the Dispute Adjudication Board of three members, within 28 days of the Effective Date,
(c) the parties fail to agree upon the appointment of the third member (to act as chairman) within 28 days of the Effective Date, or
(d) the parties fail to agree upon the appointment of a replacement member of the Dispute Adjudication Board within 28 days of the date on which a member of the Dispute Adjudication Board declines to act or is unable to act as a result of death, disability, resignation or termination of appointment,
then the person or administration named in the Appendix to the Tender shall, after due consultation with the parties, nominate such member of the Dispute Adjudication Board, and such nomination shall be final and conclusive.
Procedure for Obtaining Dispute Adjudication Board’s Decision
20.4 If a dispute arises between the Employer and the Contractor in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any opinion, instruction, determination, certification or valuation of the Employer’s Representative, the dispute shall initially be referred in writing to the Dispute Adjudication Board for its decision, with a copy to the other party. Such reference shall state that it is made under this Sub-Clause. The parties shall promptly make available to the Dispute Adjudication Board all such information, access to the Site, and appropriate facilities, as the Dispute Adjudication Board may require for the purposes of rendering its decision. No later than the fifty-sixth day after the day on which it received such reference, the Dispute Adjudication Board, acting as a panel of expert(s) and not as arbitrator(s), shall give notice of its decision to the parties. Such notice shall include reasons and shall state that it is given under this Sub-Clause.
Unless the Contract has already been repudiated or terminated, the Contractor shall, in every case, continue to proceed with the Works with all due diligence, and the Contractor and the Employer shall give effect forthwith to every decision of the Dispute Adjudication Board, unless and until the same shall be revised, as hereinafter provided, in an amicable settlement or an arbitral award.
If either party is dissatisfied with the Dispute Adjudication Board’s decision,
then either party, on or before the twenty-eighth day after the day on which it
received notice of such decision, may notify the other party of its dissatisfaction.
If the Dispute Adjudication Board fails to give notice of its decision on or before the fifty-sixth day after the day on which it received the reference, then either party, on or before the twenty-eighth day after the day on which the said period of fifty-six days has expired, may notify the other party of its dissatisfaction. In either event, such notice of dissatisfaction shall state that it is given under this Sub-Clause, such notice shall set out the matters in dispute and the reason(s) for dissatisfaction and, subject to Sub-Clauses 20.7 and 20.8, no arbitration in respect of such dispute may be commenced unless such notice is given.
If the Dispute Adjudication Board has given notice of its decision as to a matter
in dispute to the Employer and the Contractor and no notice of dissatisfaction
has been given by either party on or before the twenty-eighth day after the day
on which the parties received the Dispute Adjudication Board's decision, then
the Dispute Adjudication Board's decision shall become final and binding upon
the Employer and the Contractor.
Amicable Settlement
20.5 Where notice of dissatisfaction has been given under Sub-Clause 20.4, the parties shall attempt to settle such dispute amicably before the commencement of arbitration. Provided that unless the parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made.
Arbitration 20.6 Any dispute in respect of which:
(a) the decision, if any, of the Dispute Adjudication Board has not become final and binding pursuant to Sub-Clause 20.4, and
(b) amicable settlement has not been reached,
shall be finally decided by international arbitration. The arbitration rules under which the arbitration is conducted, the institution to nominate the arbitrator(s) or to administer the arbitration rules (unless named therein), the number of arbitrators, and the language and place of such arbitration shall be as set out
in the Appendix to Tender. The arbitrator(s) shall have full power to open up, review and revise any decision of the Dispute Adjudication Board.
Neither party shall be limited, in the proceedings before such arbitrator(s),
to the evidence or arguments previously put before the Dispute Adjudication
Board to obtain its decision.
Arbitration may be commenced prior to or after completion of the Works. The obligations of the parties and the Dispute Adjudication Board shall not be altered by reason of the arbitration being conducted during the progress of the Works.
Failure to Comply with Dispute Adjudication Board's Decision
20.7 Where neither party has given notice of dissatisfaction within the period stated
in Sub-Clause 20.4 and the Dispute Adjudication Board's related decision, if any, has become final and binding, either party may, if the other party fails to comply with such decision, and without prejudice to any other rights it may have, refer the failure itself to arbitration under Sub-Clause 20.6. The provisions of Sub-Clauses 20.4 and 20.5 shall not apply to any such reference.
Expiry of Dispute Adjudication Board’s Appointment
20.8 When the appointment of the Dispute Adjudication Board and of any replacement has expired, any such dispute referred to in Sub-Clause 20.4 shall be finally settled by arbitration pursuant to Sub-Clause 20.6. The provisions of Sub-Clauses 20.4 and 20.5 shall not apply to any such reference.
