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85427ae7853b5584ea55754e85b19cf0.pdf099713-0002-02253-NY01.2185056.1 07/25/18 7:29 下 午General ConditionsGuidance for thePreparation ofParticular ConditionsConditions of Contractfor EPC/Turnkey ProjectsForms of Letter of Tender, Contract Agreement and Dispute Adjudication AgreementFirst Edition 1999ISBN 2-88432-021-0Comment ST and in the sixth line, delete “Member” and substitute “member”.Page 59 In sub-paragraph (ii): delete “days” and substitute “days”; and in the third line, delete “an other” and substitute “another”.In the middle of the page, delete “Agreement until each member has been paid” and substitute “Agreement until each of the Members has been paid”.At the end of the next paragraph, after “a decision shall have”, insert “been”.In the last sentence of Clause 6, delete the comma after the phrase “Any such notice”.Page 68 In the third line of Clause 6, delete the first two words “notice to”.GUIDANCE FOR THE PREPARATION OF PARTICULAR CONDITIONSAnnexes Delete “ FIDIC”.ERRATA to the First Edition 1999inside back coverGeneral ConditionsCONTENTS1 General Provisions11.1 Definitions11.2 Interpretation.41.3 Communications.51.4 Law and Language51.5 Priority of Documents.51.6 Contract Agreement51.7 Assignment.51.8 Care and Supply of Documents61.9 Confidentiality61.10 Employers Use of Contractors Documents61.11 Contractors Use of Employers Documents61.12 Confidential Details7099713-0002-02253-NY01.2185056.1 ii 07/25/18 7:29 下 午1.13 Compliance with Laws .71.14 Joint and Several Liability 72 THE EMPLOYER72.1 Right of Access to the Site72.2 Permits, Licences or Approvals82.3 Employers Personnel.82.4 Employers Financial Arrangements 82.5 Employers Claims .83 THE EMPLOYERS ADMINISTRATION.93.1 The Employers Representative93.2 Other Employers Personnel.93.3 Delegated Persons.93.4 Instructions .103.5 Determinations104 THE CONTRACTOR 104.1 Contractors General Obligations .104.2 Performance Security114.3 Contractors Representative114.4 Subcontractors 124.5 Nominated Subcontractors124.6 Co-operation .124.7 Setting Out134.8 Safety Procedures .134.9 Quality Assurance.134.10 Site Data134.11 Sufficiency of the Contract Price144.12 Unforeseeable Difficulties 144.13 Rights of Way and Facilities.144.14 Avoidance of Interference 144.15 Access Route 144.16 Transport of Goods.154.17 Contractors Equipment154.18 Protection of the Environment154.19 Electricity, Water and Gas154.20 Employers Equipment and Free-Issue Material 154.21 Progress Reports .164.22 Security of the Site174.23 Contractors Operations on Site174.24 Fossils .175 DESIGN185.1 General Design Obligations185.2 Contractors Documents .185.3 Contractors Undertaking .195.4 Technical Standards and Regulations.195.5 Training.195.6 As-Built Documents .205.7 Operation and Maintenance Manuals .205.8 Design Error20099713-0002-02253-NY01.2185056.1 iii 07/25/18 7:29 下 午6 STAFF AND LABOUR .206.1 Engagement of Staff and Labour206.2 Rates of Wages and Conditions of Labour .206.3 Persons in the Service of Others.206.4 Labour Laws .216.5 Working Hours .216.6 Facilities for Staff and Labour216.7 Health and Safety216.8 Contractors Superintendence.216.9 Contractors Personnel226.10 Records of Contractors Personnel and Equipment226.11 Disorderly Conduct.227 PLANT, MATERIALS AND WORKMANSHIP227.1 Manner of Execution 227.2 Samples.227.3 Inspection227.4 Testing 237.5 Rejection.247.6 Remedial Work.247.7 Ownership of Plant and Materials 247.8 Royalties .248 COMMENCEMENT, DELAYS AND SUSPENSION .258.1 Commencement of Works 258.2 Time for Completion 258.3 Programme258.4 Extension of Time for Completion.268.5 Delays Caused by Authorities 268.6 Rate of Progress268.7 Delay Damages.278.8 Suspension of Work278.9 Consequences of Suspension278.10 Payment for Plant and Materials in Event of Suspension.278.11 Prolonged Suspension.288.12 Resumption of Work.289 TESTS ON COMPLETION.289.1 Contractors Obligations.289.2 Delayed Tests299.3 Retesting .299.4 Failure to Pass Tests on Completion 2910 EMPLOYERS TAKING OVER.3010.1 Taking Over of the Works and Sections.3010.2 Taking Over of Parts of the Works.3010.3 Interference with Tests on Completion.3011 DEFECTS LIABILITY 31099713-0002-02253-NY01.2185056.1 iv 07/25/18 7:29 下 午11.1 Completion of Outstanding Work and Remedying Defects .3111.2 Cost of Remedying Defects 3111.3 Extension of Defects Notification Period .3111.4 Failure to Remedy Defects .3111.5 Removal of Defective Work.3211.6 Further Tests .3211.7 Right of Access.3211.8 Contractor to Search .3211.9 Performance Certificate 3211.10 Unfulfilled Obligations.3311.11 Clearance of Site.3312 TESTS AFTER COMPLETION 3312.1 Procedure for Tests after Completion.3312.2 Delayed Tests3412.3 Retesting .3412.4 Failure to Pass Tests after Completion .3413 VARIATIONS AND ADJUSTMENTS.3513.1 Right to Vary 3513.2 Value Engineering 3513.3 Variation Procedure 3513.4 Payment in Applicable Currencies .3613.5 Provisional Sums 3613.6 Daywork .3613.7 Adjustments for Changes in Legislation.3713.8 Adjustments for Changes in Costs3714 CONTRACT PRICE AND PAYMENT 3714.1 The Contract Price 3714.2 Advance Payment .3814.3 Application for Interim Payments 3814.4 Schedule of Payments.3914.5 Plant and Materials intended for the Works .3914.6 Interim Payments3914.7 Timing of Payments4014.8 Delayed Payment 4014.9 Payment of Retention Money .4014.10 Statement at Completion.4114.11 Application for Final Payment4114.12 Discharge 4114.13 Final Payment .4214.14 Cessation of Employers Liability4214.15 Currencies of Payment4215 TERMINATION BY EMPLOYER .4315.1 Notice to Correct.4315.2 Termination by Employer.4315.3 Valuation at Date of Termination .4415.4 Payment after Termination .4415.5 Employers Entitlement to Termination .44099713-0002-02253-NY01.2185056.1 v 07/25/18 7:29 下 午16 SUSPENSION AND TERMINATION BY CONTRACTOR .4416.1 Contractors Entitlement to Suspend Work4416.2 Termination by Contractor .4516.3 Cessation of Work and Removal of Contractors Equipment 4516.4 Payment on Termination.4617 RISK AND RESPONSIBILITY.4617.1 Indemnities .4617.2 Contractors Care of the Works4617.3 Employers Risks4717.4 Consequences of Employers Risks4717.5 Intellectual and Industrial Property Rights .4717.6 Limitation of Liability 4818 INSURANCE .4818.1 General Requirements for Insurance 4818.2 Insurance for Works and Contractors Equipment .4918.3 Insurance against Injury to Persons and Damage to Property 5118.4 Insurance for Contractors Personnel .5119 FORCE MAJEURE5119.1 Definition of Force Majeure .5119.2 Notice of Force Majeure.5219.3 Duty to Minimise Delay .5219.4 Consequences of Force Majeure.5219.5 Force Majeure Affecting Subcontractor .5319.6 Optional Termination, Payment and Release .5319.7 Release from Performance under the Law5320 CLAIMS, DISPUTES AND ARBITRATION.5420.1 Contractors Claims 5420.2 Appointment of the Dispute Adjudication Board.5520.3 Failure to Agree Dispute Adjudication Board 5620.4 Obtaining Dispute Adjudication Boards Decision 5620.5 Amicable Settlement.5720.6 Arbitration.5720.7 Failure to Comply with Dispute Adjudication Boards Decision.5720.8 Expiry of Dispute Adjudication Boards Appointment58APPENDIX 59GENERAL CONDITIONS OF DISPUTE ADJUDICATION AGREEMENT.59INDEX OF SUB-CLAUSES .i099713-0002-02253-NY01.2185056.1 vi 07/25/18 7:29 下 午Definitions listed alphabetically1.1.3.1 Base Date 1.1.6.5 Laws1.1.3.2 Commencement Date 1.1.4.5 Local Currency1.1.1.1 Contract 1.1.5.3 Materials1.1.1.2 Contract Agreement 1.1.2.1 Party1.1.4.1 Contract Price 1.1.3.8 Performance Certificate1.1.2.3 Contractor 1.1.1.5 Performance Guarantees1.1.6.1 Contractors Documents 1.1.6.6 Performance Security1.1.5.1 Contractors Equipment 1.1.5.4 Permanent Works1.1.2.7 Contractors Personnel 1.1.5.5 Plant1.1.2.5 Contractors Representative 1.1.4.6 Provisional Sum1.1.4.2 Cost 1.1.4.7 Retention Money1.1.6.2 Country 1.1.1.5 Schedule of Payments1.1.2.9 DAB 1.1.5.6 Section1.1.3.9 Day 1.1.6.7 Site1.1.3.7 Defects Notification Period 1.1.4.8 Statement1.1.2.2 Employer 1.1.2.8 Subcontractor1.1.6.3 Employers Equipment 1.1.3.5 Taking-Over Certificate1.1.2.6 Employers Personnel 1.1.5.7 Temporary Works1.1.2.4 Employers Representative 1.1.1.4 Tender1.1.1.3 Employers Requirements 1.1.3.6 Tests after Completion1.1.2.10 FIDIC 1.1.3.4 Tests on Completion1.1.4.3 Final Statement 1.1.3.3 Time for Completion1.1.6.4 Force Majeure 1.1.6.8 Variation1.1.1.4 Foreign Currency 1.1.5.8 Works1.1.5.2 Goods 1.1.3.9 year099713-0002-02253-NY01.2185056.1 07/25/18 7:29 下 午INTRODUCTORY NOTE TO FIRST EDITIONFIDICs Red and Yellow Books (i.e. standard forms of contract for works of civil engineering construction and for electrical and mechanical works) have been in widespread use for several decades, and have been recognised - among other things - for their principles of balanced risk sharing between the Employer and the Contractor. These risk sharing principles have been beneficial for both parties, the Employer signing a contract at a lower price and only having further costs when particular unusual risks actually eventuate, and the Contractor avoiding pricing such risks which are not easy to evaluate. The principles of balanced risk sharing are continued in the new “Construction” and “Plant and Design-Build” Books.During recent years it has been noticed that much of the construction market requires a form of contract where certainty of final price, and often of completion date, are of extreme importance. Employers on such turnkey projects are willing to pay more - sometimes considerably more - for their project if they can be more certain that the agreed final price will not be exceeded. Among such projects can be found many projects financed by private funds, where the lenders require greater certainty about a projects costs to the Employer than is allowed for under the allocation of risks provided for by FIDICs traditional forms of contracts. Often the construction project (the EPC - Engineer, Procure, Construct - Contract) is only one part of a complicated commercial venture, and financial or other failure of this construction project will jeopardize the whole venture.For such projects it is necessary for the Contractor to assume responsibility for a wider range of risks than under the traditional Red and Yellow Books. To obtain increased certainty of the final price, the Contractor is often asked to cover such risks as the occurrence of poor or unexpected ground conditions, and that what is set out in the requirements prepared by the Employer actually will result in the desired objective. If the Contractor is to carry such risks, the Employer obviously must give him the time and opportunity to obtain and consider all relevant information before the Contractor is asked to sign on a fixed contract price. The Employer must also realize that asking responsible contractors to price such risks will increase the construction cost and result in some projects not being commercially viable.Even under such contracts the Employer does carry certain risks such as the risks of war, terrorism and the like and the other risks of Force Majeure, and it is always possible, and sometimes advisable, for the Parties to discuss other risk sharing arrangements before entering into the Contract. In the case of BOT (Build-Operate-Transfer) type projects, which are normally negotiated as a package, the allocation of risk provided for in the turnkey construction Contract negotiated initially between the Sponsors and the EPC Contractor may need to be adjusted in order to take into account the final allocation of all risks between the various contracts forming the total package.Apart from the more recent and rapid development of privately financed projects demanding contract terms ensuring increased certainty of price, time and performance, it has long been apparent that many employers, particularly in the public sector, in a wide range of countries have demanded similar contract terms, at least for turnkey contracts. They have often irreverently taken the FIDIC Red or Yellow Books and altered the terms so that risks placed on the Employer in the FIDIC Books have been transferred to the Contractor, thus effectively removing FIDICs traditional principles of balanced risk sharing. This need of many employers has not gone unnoticed, and FIDIC has considered it better for all parties for this need to be openly recognised and regularised. By providing a standard FIDIC form for use in such contracts, the Employer does not have to attempt to alter a standard form intended for another risk arrangement, and the Contractor is fully aware of the increased risks he must bear. Clearly the Contractor will rightly increase his tender price to account for such extra risks.This form for EPC/Turnkey Projects is thus intended to be suitable, not only for EPC Contracts within a BOT or similar type venture, but also for all the many projects, both large and smaller, particularly E Peter L Booen (Principal Drafter), GIBB Ltd, UK; Hermann Bayerlein, Fichtner, Germany; Christopher R Seppala (Legal Adviser), White and Jos F Speziale, IATASA, Argentina.The preparation was carried out under the general direction of the FIDIC Contracts Committee which comprised John B Bowcock, Consulting Engineer, UK (Chairman); Michael Mortimer-Hawkins, SwedPower, Sweden; and Axel-Volkmar Jaeger, Schmidt Reuter Partner, Germany; together with K B (Tony) Norris as Special Adviser.Drafts were reviewed by many persons and organisations, including those listed below. Their comments were duly studied by the Update Task Group and, where considered appropriate, have influenced the wording of the clauses. Mushtaq Ahmad, NESPAK, Pakistan; Peter Batty, Post Buckley International, USA; Roeland Bertrams, Clifford Chance, Netherlands; Charles G Borthwick, SwedPower, Sweden; Manfred Breege, Lahmeyer International, Germany; Pablo Bueno, TYPSA, Spain; Nael G Bunni, Consulting Engineer, Ireland; Ian Fraser, Beca Carter Hollings Roy Goode, Oxford University, UK; Dan W Graham, Bristows Cooke Mark Griffiths, Griffiths Geoffrey F Hawker, Consulting Engineer, UK; Hesse Poul E Hvilsted, Elsamprojekt, Denmark; Lennart Iwar, Lindahl, Sweden; Gordon L Jaynes, Whitman Breed Abbott Tonny Jensen (Chairman of FIDIC Quality Management Committee), COWI, Denmark; Martin Klapper, Hopgood and Ganim, Australia; Philip Loots Neil McCole, Merz and McLellan, UK; Matthew Needham-Laing, Victoria Russell J Gordon Rees, Binnie Black Tim Reynolds, Constant David R Wightman the Association of Japanese Consulting Engineers; the Construction Industry Authority of the Philippines; the Dutch Vereniging voor Bouwrecht; the European International Contractors (EIC); ORGAnisme de Liaison Industries Metalliques Europeennes (ORGALIME); the International Association of Dredging Contractors; the International Bar Association; the Asian Development Bank; and the World Bank. Acknowledgement of reviewers does not mean that such persons or organizations approve of the wording of all clauses. In particular, EIC and ORGALIME have expressed reservations about some clauses of this EPC Contract.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.099713-0002-02253-NY01.2185056.1 07/25/18 7:29 下 午FOREWORDThe Fdration Internationale des Ingnieurs-Conseils (FIDIC) published, in 1999, First Editions of four new standard forms of contract:Conditions of Contract for Construction,which are recommended for building or engineering works designed by the Employer or by his representative, the Engineer. Under the usual arrangements for this type of contract, the Contractor constructs the works in accordance with a design provided by the Employer. However, the works may include some elements of Contractor-designed civil, mechanical, electrical and/or construction works.Conditions of Contract for Plant and Design-Build,which are recommended for the provision of electrical and/or mechanical plant, and for the design and execution of building or engineering works. Under the usual arrangements for this type of contract, the Contractor designs and provides, in accordance with the Employers requirements, plant and/or other works; which may include any combination of civil, mechanical, electrical and/or construction works.Conditions of Contract for EPC/Turnkey Projects,which may be suitable for the provision on a turnkey basis of a process or power plant, of a factory or similar facility, or of an infrastructure project or other type of development, where (i) a higher degree of certainty of final price and time is required, and (ii) the Contractor takes total responsibility for the design and execution of the project, with little involvement of the Employer. Under the usual arrangements for turnkey projects, the Contractor carries out all the Engineering, Procurement and Construction (EPC): providing a fully-equipped facility, ready for operation (at the “turn of the key”).Short Form of Contract,which is recommended for building or engineering works of relatively small capital value. Depending on the type of work and the circumstances, this form may also be suitable for contracts of greater value, particularly for relatively simple or repetitive work or work of short duration. Under the usual arrangements for this type of contract, the Contractor constructs the works in accordance with a design provided by the Employer or by his representative (if any), but this form may also be suitable for a contract which includes, or wholly comprises, Contractor-designed civil, mechanical, electrical and/or construction works.The forms are recommended for general use where tenders are invited on an international basis. Modifications may be required in some jurisdictions, particularly if the Conditions are to be used on domestic contracts. FIDIC considers the official and authentic texts to be the versions in the English language.In the preparation of these Conditions of Contract for EPC/Turnkey Projects, 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 many (but not all) contracts have been included in the General Conditions, in order to facilitate their incorporation into each contract.The General Conditions and the Particular Conditions will together comprise the Conditions of Contract governing the rights and obligations of the parties. It will be necessary to prepare the Particular Conditions for each individual contract, and to take account of those sub-clauses in the General Conditions which mention the Particular Conditions.For this publication, the General Conditions were prepared on the following basis:099713-0002-02253-NY01.2185056.1 07/25/18 7:29 下 午(i) interim payments, in respect of the lump sum Contract Price, will be made as work proceeds, and will typically be based on instalments specified in a schedule;(ii) if the wording in the General Conditions necessitates further data which would typically be prescribed by the Employer, then the sub-clause makes reference to this data being contained in the Particular Conditions or in the Employers Requirements;(iii) where a sub-clause in the General Conditions deals with a matter on which different contract terms are likely to be applicable for different contracts, the principles applied in writing the sub-clause were:(a) users would find it more convenient if any provisions which they did not wish to apply could simply be deleted or not invoked, than if additional text had to be written (in the Particular Conditions) because the General Conditions did not cover their requirements; or(b) in other cases, where the application of (a) was thought to be inappropriate, the sub-clause contains the provisions which were considered applicable to mos
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