FORM OF CONTRACT AGREEMENT GENERAL CONDITIONS FIDIC — SHORT FORM OF CONTRACT = "UMAR oonprTioNS Seem enrenat GUIDANCE NOTES: General Conditions FEDERATION INTERNATONALE DES INGENIEURS-OONSELS FES INTERNATIONAL FEDERATION OF CONSULTING ENGNEERS = SETGenera Condens FONG 2021 CONTENTS General Conditions ....... GENERAL PROVISIONS . 1.1 Definitions 1.2 Interpretation 1.8 Communications 1.4 Governing Law 1.5 Priority of and Errors or Defects in Documents 1.8 Assignment 1.7 Compliance with Laws 1.8 Confidentiality 1.9 Intellectual Property 1.10 Limitation of Liabilty 1.11 Joint and Several Liabiity THE EMPLOYER...... 2.1 Access to and Possession of the Site 22 — Site Data 2.3 Employer's Financial Arrangements THE ENGINEER....... 3.1 Engineer, Engineer's Authorised Person and Assistants 3.2 Engineer's Duties and Authority 3.3 Engineer's Instructions 3.4 Effect of Engineers Acts 8.5 Agreement or Determination THE CONTRACTOR ...... 4.4 General Obigations 4.2 Contractor's Representative and Other Personnel 4.3 Contractor's Care of the Works 4.4 Subcontracting 4.5 Performance Security 46 Contractor's Documents 4.7 Contractor's Design QUALITY .. 5.1 Manner of Execution 5.2 Health, Safety and Environment 5.3 Quality Assurance 5.4 Inspection and Testing 5.5 Remedying Defects 5.6 Performance Certificate6 TIME. . 6.1 Execution of the Works 62 Programme 63 Advance Warning 6.4 Extension of Time for Completion 65 Delay Damages 6.6 Exceptional Events 7 VARIATIONS . +14 7.4, Right to Vary 7.2 Valuation of Variations 8 PAYMENT. . . 8.1 Valuation of the Works 8&2 Advance Payment 83 Statements 8.4 Interim Payments 8&5 Release of Retention Money 86 Final Payment 8.7 Delayed Payment 88 Changes in Cost 9 TAKING-OVER. . 9.1 Completion 9.2 Taking-Over Certificate 9.3. Taking-Over Parts of the Works 10 | SUSPENSION AND TERMINATION... 10.1 Suspension 10.2 Termination by Employer 10.3 Termination by Contractor 10.4 Payment after termination 11 RISK AND RESPONSIBILITY 11.1 Employer's Risks and Contractor's Entitlements 41.2 Contractor's Risks and Employer's Entitlements 11.3. Indemnities 12. INSURANCE ... 12.1. Extent of Cover 12.2 Failure to Insure eroce ‘Shox Form of Correct Second EatonCaner Constone © FID 2001 13 14 CLAIMS .. 18.1 Right to Claim 13.2 Claim Procedure 13.3 Duty to Mitigate DISPUTES ......... +225 14.1, Adjudication 14.2 Arbitration ules for Adjudication Form of Adjudicator’s Agreement Index of Sub-ClausesGeneral Conditions engl Provisions 14 Definitions Generel Conds © FIOICZ021 In the Contract as defined below, the words and expressions defined shall have the following meanings assigned to them, except where the context requires otherwise: 1a 142 4.4.10 att 14.42 1.1.18 “Adjudicator” means the person appointed under Sub-Clause 14.1 (Adjudication). “Adjudicator’s Agreement” means the agreement signed or deemed to have been signed by both Parties and the Adjudicator. “Base Date" means the date 28 days before the latest date for submission of the tender. “Commencement Date" means the date as stated in the Engineer's notice issued under Sub-Clause 6.1.1. “Conditions of Contract’ or “these Conditions" means these General Conditions and the Particular Conditions. “Contract” means the Contract Agreement and the other documents listed in the Contract Data. “Contract Agreement” means the agreement entered into by both Parties, and which includes the offer of the Contractor and the acceptance of the Employer. “Contract Data’ means the pages entitied contract data which constitute Part A of the Particular Conditions. “Contract Price” means the agreed amount stated in the Contract ‘Agreement for the execution of the Works, and includes adjustments (f any) in accordance with the Contract. “Contractor” means the person(s) named as contractor in the Contract Data and the legal successors in te of such person(s). "Contractor's Documents’ means the documents prepared by the Contractor under the Contract including calculations, computer programs and other software, design, digital fles, drawings, manuals, models, specifications and other documents of a technical nature, “Contractor's Equipment” means all apparatus, equipment, machinery, construction plant, vehicles, and other items required by the Contractor for the execution of the Works. Contractor's Equipment excludes Temporary Works, Plant, Materials and any other things intended to form or forming part of the Permanent Works. “Cost” means all expenditure reasonably incurred (or to be incurred) by the Contractor in performing the Contract, whether on or off the Site, Including 1erocze 44.14 4.4.46 4.4.16 14.47 14.18 14.19 14.21 1.1.22 1.4.23 1.4.24 1.4.25 taxes, overheads (Including, as the case may be, Prolongation Cost) and similar charges, but does not include profit. Where the Contractor is entitled under a Sub-Ciause of these Conditions to payment of Cost, it shall be ‘added to the Contract Price. “Cost Plus Profit’ means Cost plus the applicable percentage for profit stated in the Contract Data (f not stated, five percent (5%) of the Cost) “Country’ means the country in which the Site (or most of i) is located, where the Permanent Works are to be executed. “day" means a calendar day. “Date of Completion” means the date stated in the Taking-Over Certificate Issued by the Engineer under Sub-Ciause 9.2.1(a), or the date when the TTaking-Over Certificate is issued under Sub-Clause 9.3.1 or deemed to have been issued under Sub-Clause 9.3.2. “Defects Notification Period” or “DNP" means the period for notifying defects and/or damage in the Works or a Section or a part thereof (as the case may be) under Sub-Clause 5.5.1, as stated in the Contract Data (f not stated, 385 days), calculated from the Date of Completion of the Works or a Section or a part thereof, and as may be extended under Sub-Ciause 6.5.2. “Drawings” means the drawings prepared by (or on behatf of the Employer ‘or the Works inoluded in the Contract, and any additional and modified drawings issued by (or on behalf of) the Employer in accordance with the Contract. “Employer” means the person named as the employer in the Contract Data and the legal successors in tite to this person. “Employer's Risks” means the risks listed in Sub-Ciause 11.1 [Employer's Fisks and Contractor's Entitlements J. “Engineer” means the person named in the Contract Data appointed by the Employer to act as the Engineer for the purposes of the Contract, or any replacement appointed by the Employer and notified to the Contractor, and \who is deemed to be part of the Employer's personnel. “Exceptional Event” means an event or circumstance which: (0. Is beyond a Party's contro}; (such Party could not reasonably have provided against before entering into the Contract; (W)having arisen, such Party could not reasonably have avoided or ‘overcome; and (Wis not substantially attributable to the other Party. “Extension of Time” or “EOT” means an extension of the Time for ‘Completion under Sub-Clause 6.4 [Extension of Time for Completion). “General Conditions” means this document entitled “General Conditions", ‘as published by FIDIC. “Goods” means Contractor's Equipment, Materials, Piant and Temporary ‘Works, or any of them as appropriate. ‘Short Form of Cont Second EonGenera Consens © FNC 2001 14.27 1.1.28 4.4.31 1.1.35 1.1.86 1.4.87 1.1.89 1.1.40 1.4.41 “Laws” means all national (or state or provincia) legislation, statutes, acts, decrees, ruies, ordinances, orders, treaties, intemational law and other laws, ‘and regulations and by-laws of any legally constituted public authority, "Materials" means things of all kinds (other than Plant), whether on the Site or otherwise allocated to the Contract and intended to form or forming part of the Permanent Works. *No-objection” means that the Engineerhasno objection to the Contractor's Documents, including design (ff any}, which may then be used for the Works. “Particular Conditions” means the document entitled particular conditions ‘of contract included in the Contract, which consists of Part A - Contract Data and Part 8 (f any) - Special Provisions. “Party” means either the Employer or the Contractor, as the context requires. "Parties" means both the Employer and the Contractor. “Performance Certificate” means the certiicate issued by the Engineer under Sub-Ciause 6.6 [Performance Certificate!) “Permanent Works" means the works of a permanent nature which are to be executed by the Contractor under the Contract. “Plant” means the apparatus, equipment, machinery and vehicles (including ‘any components) whether on the Site or otherwise allocated to the Contract and intended to form or forming part of the Permanent Works. “Prolongation Cost’ or “PGC” means on-Site and off-Site overheads associated with a compensable EO, as stated in the Contract Data. “Schedules” means the document(s) entitied schedules prepared by the Employer and completed by the Contractor and included in the Contract. ‘Such document(s) may include data, lists, bill of quantities, schedules of payment and/or rates and prices, and guarantees. Section’ means a part of the Works specified in the Contract Data as a Section (any) "Site" means the places where the Permanent Works are to be executed ‘and to which Plant and Materials are to be delivered, and any other places specified in the Contract as forming part of the Site, “Special Provisions” means the document (if any) entitled special provisions. which constitutes Part B of the Particular Conaitions. “Specification” means the document prepared by (or on behaif off the Employer and entitled specification as listed in the Contract Data, which specifies the Works and includes the Employer's design and/or the Employer's requirements if any design is to be carried out by the Contractor, ‘and any additions and modifications to the specification in accordance with the Contract. “Taking-Over Certificate” means a certificate issued (or deemed to be Issued) by the Engineer in accordance with Clause 9 [ Taking-Over).13 — Communications 14 ——-— Governing Law 15° — 4 @RDIC 201 1.4.42 124 1.22 1.2.8 “Temporary Works" means all temporary works of every kind (other than Contractor's Equipment) required on Site for the execution of the Works. “Time for Completion” means the time for completing the Works or @ Section (as the case may be) as stated in the Contract Data and as may bbe extended under Sub-Ciause 6.4 [Extension of Time for Completion], calculated from the Commencement Date. “Unforeseeable” means not reasonably foreseeable by an experienced ‘contractor by the Base Date. “Variation” means any change to the Spesification and/or the Drawings or the Works, which is instructed as a variation under Ciause 7 [ Variations J. “Works” means the Permanent Works and the Temporary Works, or either of them as appropriate. Words indicating persons or parties shall be interpreted as referring to Natural and legal persons (including corporations and other legal entities). ‘Words indicating the singular or one gender shall include the plural or the ‘other gender, and vice versa, where the context requires. “may* means that the Party or person referred to has the choice of whether to act or notin the matter referred to; “shall” means that the Party or person referred to has an obligation under the Contract to perform the duty referred to. “The marginal words and other headings shall not be taken into consideration in the interpretation of these Conditions. Wherever provision is made for the giving or issue of any notice, instruction, determination, agreement, No-objection, consent, certificate, claim, ischarge, proposal, statement or any other similar type of communication by any person, such communication shall: (@) be in writing and in the language stated in the Contract Data (f not stated, the language of these Conditions); (b) be sent by one of the methods and to the addresses stated in the ‘Contract Data, or to any changed address subsequently notified by a Party, (€) not be unreasonably withheld or delayed; and (@) have effect when it is received at the recipient's address under sub-paragraph (b) above (or deemed to have been received). An electronically transmitted communication is deemed to have been received on the day of transmission, provided no non-delvery notification was received by the sender, When a notice or certificate is issued by @ Party or the Engineer, a copy shall be sent to the Engineer or the other Party, as the case may be. The Contract shall be governediby the law of the country (or other jurisciction) stated in the Contract Data (ff not stated, the law of the Country), excluding any conflict of law rules,Priority of and Errors or “The documents forming the Contract are to be taken as mutually explanatory ‘fone another. I there is any confict, ambiguity or discrepancy in or between the documents, (@ the document of higher priority shall prevail. The priorty of the documents shall be in accordance with the order as listed in the Contract Data; and (0) the Engineer shal issue the necessary clarification or instruction. ta Party (or the Engineer) becomes aware of an error or defect (whether of a technical neture or otherwise) in a document which was prepared for use in the execution of the Works, the Party (or the Engineer) shall promptty give annotice of such error or defect to the Engineer and the other Party (orto the Parties), The Party responsible for the error or defect shall then rectify the error oF defect in accordance with the Contract, without delay and at its risk and cost. Neither Party shall assign the whole or any part ofthe Contract or any benefit or interest in or under the Contract without the prior written agreement of the other Party, except for any assignment of any right to any moneys due or becoming due under the Contract as security in favour of a bank or financial institution. Defects in Documents 1.5.1 1.5.2 16 Assignment 17 Compliance with Laws 1.7.1 17.2 18 - Confidentiality 19 ——— Intellectual Property 1.94 1.9.2 (Gora Concions © FDIC 2021 ‘The Contractor and the Employer shall, in performing the Contract, comply with all applicable Laws. Each Party shall obtain permits and licences, and give notices, as required by the applicable Laws and as stated in the Contract Data and pay all associated fees accordingly. Each Party shall provide reasonable assistance to the other Party in this respect. ‘Save to the extent necessary to cary out either Party's obligations under the Contract and/or applicable Laws, neither Party nor the Engineer shall disclose or cause or permit to disclose to third parties any confidential information, including all documents forming the Contract, or intellectual property of the other Party without the other Party's prior consent, except ‘where the information: (@ wes already in that Party's possession without an obligation of Confidentiality before receipt from the other Party; (0) becomes generally available to the public through no breach of these Conkitions; or (©) is lawfully obtained by the Party from a third party which is not bound, by an obligation of confidential. Any intellectual property owned by a Party prior to, or created by a Party after, the date when the Contract comes into eftect shall remain the property of that Party. ‘The Contractor shall be deemed (by signing the Contract Agreement) to give to the Employer a non-terminable, transferable, non-exclusive, royalty-free licence to copy, use and communicate the documents prepared by the ‘Contractor under the Contract, including making and using modifications of1.10 — them. This licence shall (@) apply throughout the actual or intended operational fe (whichever is longer ofthe relevant parts of the Works; and (6) entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the documents prepared by the ‘Contractor under the Contract for the sole purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works, Neither Party shall be lable to the other Party for loss of use of any Works, loss of proft, loss of any contract or for any indirect or consequential loss ‘or damage which may be suffered by the other Party in connection with the Contract, other than under Sub-Clause 6.5 [ Delay Damages |, sub-paragraph (@) of Sub-Clause 7.1.2, sub-paragraphs (b) and (c)i) of Sub-Clause 10.4.1, and Sub-Clause 11.3 [ndemnities). ‘The total liabilty of the Contractor to the Employer under or in connection with the Contract, other than under Sub-Clause 11.3 [Indemnities], shall not ‘exceed the sum stated in the Contract Data or (f a sum is not so stated) the Contract Price stated in the Contract Agreement, ‘This Sub-Ciause shall not limit liabiity in any case of fraud, gross negligence, liberate default or reckless misconduct by the defauiting Party. lf the Contractor constitutes a joint venture, consortium or other Unincorporated grouping of two or more persons, these persons shall be jointly and severally lable to the Employer for the performance of the Contractor's obligations under the Contract. The Employer shall give the Contractor right of access to, and possession of, all parts of the Site within the time (or times) stated in the Contract Data (f not stated, 14 days after the Commencement Date). The right and possession may not be exclusive to the Contractor. ‘The Contractor shall be responsible for any access to, and/or possession ‘and use of, any area (such as access routes) located outside the Site that it may require, ‘The Employer shall be responsible for ensuring that the Employer's personne! and the Employer's other contractors (f any) on or near the Site co-operate with the Contractor, Limitation of Liability 1.10.1 1.10.2 1.10.3, 114 Joint and ‘Several Liability ) The-Employer 24 Access to and Possession of the Site 244 24.2 21.3 22 ——— Site Data 2.21 6 ero 200 ‘The Employer shall have made available to the Contractor for information, bbefore the Base Date, all relevant data in the Employer's possession on. the topography of the Site and on sub-surface, hydrological, climatic and ‘environmental conditions at the Site. The Employer shall also promptly make Shor Form of Cnet Secon Eton23 — Employer's Financial Arrangements 2.22 available to the Contractor all such data which comes into the Empioyer's possession after the Base Date, The Contractor shall be responsible for interpreting all such data. To the extent which was practicable (taking account of cost and time), the Contractor shall be deemed to have obtained all necessary information as to risks, contingenoles and other citcumstanoes which may influence or affect the tender or Works, To the same extent, the Contractor shall be deemed to have inspected and examined the Site, access to the Site, its surroundings, the above data and other available information, and to have been satisfied before submitting the tender as to all matters relevant to the execution of the Works. ‘The Employer shall submit within 28 days after receiving a reasonable request from the Contractor, reasonable evicience that financial arrangements have been made and are being maintained which will enable the Employer to futfi its payment obligations under the Contract. a The Bra ineer 34 Engineer, Engineer's Authorised Person and Assistants 32 Engineer's Duties and Authority Gener Cocitons © OIC 2021 B14 B42 3.24 3.22 The Employer shall appoint the Engineer, who shall carry out the duties assigned to, and shall be vested with all the authority necessary to act as, the Engineer in the Contract. If the Engineer is a legal entity, the Engineer shall notify the Contractor of the name and particulars of the Engineer's ‘authorised person (unless already named in the Contract Data), who is a natural person authorised to act on the Engineer's behalf under the Contract. The Engineer, or the Engineer's authorised person (as the case may be), shall have suitable qualifications, experience and competence to act as the Engineer under the Contract and shall be fluent in the language referred to in Sub-Ciause 1.3 [Communications ‘The Engineer may assign specific duties and authorty to assistants, who shall be suitably qualified, experienced and competent natural persons, ‘and who shall be fluent in the language referred to in Sub-Clause 1.3 [Communications]. The Engineer may also revoke such assignment. The assignment or revocation shell take effect when notified to the Parties. ‘The Engineer shall not assign its authority to act under Sub-Clause 3.5, [Agreement or Determination}. Except as otherwise stated in these Conditions, the Engineer shall act as @ skied professional and shall be deemed to act for the Employer. If the Engineer is required to obtain any consent from the Employer before ‘exercising a specified authority, those requirements shall be as stated in ‘the Contract Data, However, whenever the Engineer exercises any such ‘specified authority, then (for the purposes of the Contract) such consent ‘shall be deemed to have been given. The Employer shall not impose further Constraints on the Engineer's authority. 73.2.3 The Engineer has no authority to amend the Contract or, except as otherwise stated in these Conditions, to relieve either Party of any duty, obligation or responsibilty under or in connection with the Contract. 33° ——— Engineer's Instructions 3.3.1 The Contractor shall comply with the instructions given by the Engineer (or by the Engineer's authorised person or assistants to whom appropriate authority has been delegated), on any matter related to the Contract. 3.3.2 Ian instruction constitutes a Variation, Clause 7 [ Variations] shall apply. 34 ~ _ Effect of Engineer's Acts ‘Any acceptance, agreement, approval, check, certificate, comment, consent, disapproval, examination, inspection, instruction, notice, No-objection, record{s) of meeting, permission, proposal, record, reply, report, request, review, test, valuation, or simiar act (including the absence of any such act) é bby the Engineer, the Engineer's authorised person or any assistant shall : not relieve the Contractor from any duty, obligation or responsiblity the Contractor has under or in connection with the Contract. 3s — - Agreement or Determination 3.5.1. Whenever these Conditions provide that the Engineer shall proceed in ‘accordance with this Sub-Clause to agree or determine any matter, the Engineer shall act neutrally between the Parties and shall not be deemed to act for the Employer. The Engineer shall consult with both Parties in an endeavour to reach agreement. If agreement is not achieved, the Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances. 3.5.2 Except as otherwise stated in these Conditions, the Engineer shall give notice to both Parties of each agreement or determination, with supporting partiouars, within 42 days from the receipt of the comesponding fuly detailed claim, or \Variation proposal under Sub-Ciaus 7.1.1(@). Each Party shall ve effect to each ‘agreement or determination unless and until revised under Clause 14 [Disputes]. Thé.Gontractor 44 General Obligations 4.1.1. Except as otherwise stated in these Conditions, the Contractor shall execute the Works in accordance with the Contract. The Contractor shall provide all supervision, labour, and Goods required to full its obligations under the Contract. To the extent consistent with the Laws of the Country, all Plant and Materials on Site shall be deemed to be the property of the Employer. 4.1.2 The Contractor shall be responsible for the adequacy, stability and safety of all Site operations and of all methods of construction. The Contractor shall 'be responsible for the correct positioning of all parts of the Works, and shall verify any original setting-out points, lines and levels of reference, specified in the Contract or notified by the Engineer (f any), and shall rectify any error therein. Except to the extent specified in the Contract, the Contractor shall be responsible for all Contractor's Documents and all Temporary Works, but shall not be responsible for the design or specification of the Permanent Works. 4.1.3 The Contractor shall confine the Contractor's operations to the Site, and to any additional areas which may be obtained by the Contractor and 8 onc 2001 ‘Sher Form of Conret Second Etonacknowledged by the Engineer as working areas. The Contractor shall not interfere unnecessarily or improperly with the convenience of the public. ‘The Contractor shal, 28 specified in the Contract or as instructed by the Engineer, co-operate with the Employer's personnel and with any other contractors employed by the Employer and with any authorty or any utility ampany who may be emeyed inthe carving Out of any work on or naar the Ste. Unless already named in the Contract Data, the Contractor shall, before the ‘Commencement Date, submit to the Engineer for consent the name and particulars of the natural person authorised to act on the Contractor's behalf Under the Contract. ‘The Contractor's personnel shall be appropriately qualified, skiled, ‘experienced and competent in their respective trades or occupations. The Contractor's representative and other key personnel shall be fluent in the language referred to in Sub-Clause 1.3 [Communications }. ‘The Contractor shall be responsible for the security of the Site. The Contractor shall take full responsibilty for the care of the: (@ Works, including any Section (f any) and other part thereof; and, (©) Goods and Contractor's Docurents from the Commencement Date until the date of issue (or deemed issuance, ln accordance with Sub-Ciause 9.3 [ Taking-Over Parts of the Works]) of the relevant Taking-Over Certificate, when responsibilty for the care of the Works, any Section (ff any) or other part thereof shall pass to the Employer. If any loss or damage occurs to the Works, Goods or Contractor's Documents during the period when the Contractor is responsible for their care, from any cause whatsoever except as stated in Sub-Clause 11.1.3(@), the Contractor shall rectify the loss or damage at the Contractor's own risk and cost, s0 that the Works, Goods or Contractor's Documents (as the case may be) comply with the Contract. The Contractor shall also be liable for such loss or damage caused by the Contractor after the date of issue (or deemed issuance, in accordance with Sub-Ciause 9.3 [Taking-Over Parts of the Works }) of the relevant Taking-Over Certificate. It the loss or damage occurs as a result of any cause stated in Sub-Ciause 11.1.9(@), the Contractor shall rectify any such loss or damage that may arise to the extent instructed by the Engineer under Clause 7 | Variations. 41a 42 —— Contractor's Representative and Other Personnel 4.2.1 422 43 Contractor's Care of the Works 434 432 433 aaa 442 Gener Condions © FDIC 2021 ‘The Contractor shall not subcontract the whole of the Works. The Contractor shall not subcontract any part of the Works without the prior consent of the Engineer, except for subcontractors named in the Contract Data or for suppliers of Materials. ‘The Contractor shall be responsible for the work of all subcontractors, for managing and co-ordinating all the subcontractors’ works, and for the acts ‘or defaults of any subcontractor, any subcontractor’s agents or employees, 2 if they were the acts or defaults of the Contractor.f Security 46 Contractor's Documents 10 © FDIC 2001 443 454 452 453 454 464 462 | any subcontractor’s obligation to the Contractor extends beyond the ‘expiry date of the relevant DNP, the Contractor shall assign the benefit of ‘such obligation to the Employer. Each subcontract shall include provisions permitting such assignment, as well as the assignment set out under ‘Sub-Clause 10.2.5 in the event of termination, Within 28 days after the date the Contract comes into effect, the Contractor shall deliver to the Employer a performance security in the amount (f any) stated in the Contract Data from a third party to which the Employer gives ‘consent, and in the form annexed to the Particular Conditions (or in another form agreed by the Employer) ‘The Employer shall not make a claim under the performance security, except: (@ for amounts dus to the Employer under the Contract which the Contractor fails to pay; (©) _incircumstances which entitle the Employer to terminate the Contract, under Sub-Ciause 10.2.2 or Sub-Clause 10.2.3, imespective of ‘whether a notice of termination has been given; or (© _ incase of faiure by the Contractor to extend the validity (f any) of the Performance security if the Contractor has not become entitled to receive the Performance Certiicate by the date 28 days prior to the expiry date (ff any) of the performance security. In the event of sub-paragraphs (b) and (c), the Employer may claim the {full amount of the performance security. Once the amounts for which the Employer is entitled under the Contract have been established, the Employer shall return to the Contractor any exosss amount left over from. the performance security. ‘The Employer shall indemnify and hold the Contractor harmiess against and from all damages, losses and expenses (inoluding legal fees and expenses) resutting from a claim under the performance security to the extent that the Employer was not entitled to make the claim. ‘The Employer shall return the performance security to the Contractor within 21 days after recelving a copy of the Performance Certificate. Contractor's Documents shall be submitted to the Engineer for review in ‘accordance with the Contract. Within the relevant review period stated in the ‘Specification if not stated, 14 days), the Engineer shall give a notice to the Contractor: (@ of No-objection, with or without comments. The Contractor shall resubmit all commented Contractor's Documents, taking these comments into account; or (&) that the Contractor's Documents fai (to the extent stated) to comply with the Contract. with reasons. The Contractor shall thereafter ppromatiy rectify and resubmit the relevant Contractor's Documents to the Engineer for review in accordance with this Sub-Clause, tf the Engineer gives no notice within the review period, the Engineer shall be deemed to have given a notice of No-objection. ‘The Contractor shall not commence execution of the Works corresponding to the submitted Contractor's Document until a notice of No-objection is ‘Shor Form of Cont Sacond Eaton 13.4 Right to Claim 24 ern 201 12.4.2 122.4 If @ Party falls to effect or maintain any of the insurances required under 12.22 (0) the Employer: (the terms and conditions of the insurance cover shall have been provided to tenderers prior to the Base Date; and (the Contractor shall, at its own cost, effect and maintain any other insurances that the Contractor deems to be required to provide appropriate cover for the Contractor's obligations under ‘the Contract. ‘The insuring Party shall provide the other Party with insurance certfcate(s), in the form annexed to the Particular Conditions or in another form agreed by the Parties. The insurance certfcate(s) shall be endorsed by the relevant insurers), evidencing that any required insurances stated in the Contract Data have been effected, are maintained and that the premiums have been paid. Whenever required by the Employer, the Contractor shall produce the policies, ‘of the insurances which the Contractor is required to effect under the Contract. ‘Sub-Clause 12.1 [Extent of Cover], or fails to provide satisfactory insurance certificate(s) or policies evidencing that it has done so, the other Party ‘may, on 14 days’ notice to the defaulting Party and without prejudice to any other right or remedy, arrange the missing insurance cover and pay the premiums due and recover the same from the defautting Party as an addltion ‘or deduction in the amount certified for payment under Sub-Clauses 8.4 {interim Payments] anc/or 8.6 [Final Payment], without any requirement to proceed under Ciause 13 [Claims]. If either Party falls to comply with any condition of the insurances effected under the Contract, the Party so faling to comply shall indemnify the other Party against al direct losses and claims (including legal fees and expenses) arising from such failure. (@) the Contractor considers tse ented to any ackitlonal payment and/or to an EOT and/or to another entttement or relief against the Empioyer a8 a result of any of the Employer's Risks, or under any Clause of these Conditions or otherwise in connection with the Contract; or (0) the Employer considers itstf entitled to any additional payment from the Contractor (or reduction in the Contract Price), and/or to an extension of the DNP and/or to another entitlement or relief against the Contractor, under any Clause of these Conditions or otherwise in ‘connection with the Contract, then the Contractor or the Employer (as the case may be) shall give to the Engineer: @ — @ notice describing the event or circumstance giving rise to the entitlement contemplated under this Sub-Ciause within 28 days; and @ — @ fully detailed claim with supporting particulars, including contemporary records, of the entitlement contemplated under this Sub-Ciause within 56 days, after the claiming Party became aware, or should have become aware, of the said event or circumstance. ‘Shor Form of Contract Sacer Eston13.2 Claim Procedure 13.2.1 13.2.2 faq Duty to Mitigate Disptée. 143 Adjudication 1444 waa uss 414 ass was8 cereal Contions © FIOIC 2021 Upon receipt of a fully detailed claim, the Engineer shall proceed ‘accordance with Sub-Clause 3.5 [Agreement or Determination | to agree or determine the entitlement or rei (f any) ofthe claiming Party Ita Party fils to comply with any Sub-Clause of these Conditions in relation toa claim, any entitement or relief shall take account of the extent (f any) ‘to which the fallure has prevented or prejudiced proper investigation of the ‘claim, and/or mitigation of the effects of the claim event or circumstance, ‘The Parties shall use their reasonable endeavours to avoid or minimise the effects of all claim events or circumstances. Unless otherwise agreed, the Parties shall jointly appoint, and enter into ‘an agreement with, the Adjudicator from those listed in the Contract Data within 28 days after the date when the Contract comes into effect. If they fall to do so, the Adjudicator shall be appointed in accordance with the ‘appended Rules for Adjudication (‘the Rules”). The Adjudicator shall be a ‘suitably qualified person, fluent in the language referred to in Sub-Clause 1.3, [Communications If the Parties so agree, they may jointly request the Adjudicator to provide assistance and/or informally discuss and attempt to resolve any issue or ‘disagreement that may have arisen between them during the performance of the Contract. Ifthe Adjudicator becomes aware of any issue or disagreement between the Parties, he/she may also invite the Parties to make such a joint request. Neither the Parties nor the Adjudicator shall be bound, in any future dispute resolution process, by any opinion given by the Adjudicator in the informal assistance process. Unless settled amicably, any dispute between the Parties, which arises out of or in connection with the Contract, including any opinion, instruction, certificate, valuation or determination of the Engineer, shall be referred by either Party to adjudication and shall be decided by the Adjudicator in accordance with the Fules. If either Party is dissatisfied with the decision of the Adjudicator, or if no decision is given within the time set out in the Rules, such Party may give @ notice of dissatisfaction to the other Party, with a copy to the Adjudicator, referring to this Sub-Cleuse within 28 days after receipt of the decision, or after the expiry of the time for the decision (as the case may be). if the ‘Adjudicator has given a decision, and no notice of dissatisfaction is glven’ by either Party within the specified time, then the decision shall be final and binding on the Parties, Whether or not @ notice of dissatisfaction has been given within the specified time, the decision shall be binding on the Parties who shall promptly give ‘effect to it unless and until the decision of the Adjudicator is revised by arbitration. In the event that a Party falls to comply with any decision of the Adjudicator, whether binding or final and binding, then the other Party may, without prejudice to any other rights it may have, refer the fallure itself directly to 25eroc2 1447 14.24 1422 1423 14.2.4 arbitration under Sub-Clause 14.2 [Arbitration] without any requirement to [Proceed through adjudication again under this Sub-Clause. In such event, the arbitrator shall have the power, by way of summary or other expedited procedure, to order, whether by an interim or provisional measure or an award (as may be eppropriate under applicable law or otherwise), the enforcement of that decision. In the case of a binding but not final decision of the Adjudicator, such interim or provisional measure or award shall be subject to the express reservation that the rights of the Parties as to the merits of the dispute are reserved until they are resolved by an award. Any interim or provisional measure or award enforcing a decision of the Adudicator which has not been complied with, whether such decision is binding or final and binding, may also include an order or award of damages or other rei. Except as stated in Sub-Clause 14.1.6, neither Party shall be entitled to commence arbitration of a dispute under this Clause unless a notice of cissatistaction has been given in accordance with Sub-Clause 14.1.4. Uniess settled amicably, any dispute in respect of which the Adjudicator's decision if any) has not become final and binding shall be finally settled by arbitration. Unless otherwise agreed by the Parties: (@) the dispute shall be finaly settled by international arbitration under the Ruies of Arbitration of the International Chamber of Commerce (‘the Rules of Arbitration’), and the expedited procedure provisions of the Ruies of Arbitration shall apply irespective of the amount in dispute; (b) the dispute shall be settled by one arbitrator appointed in accordance with the Rules of Arbitration; and (@) the arbitration shall be conducted in the language referred to in ‘Sub-Clause 1.3 [Communications ‘The arbitrator shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the Adjudicator (other than a final and binding decision) relevant to the dispute. Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator on any matter ‘whatsoever relevant to the dispute. Neither Party shall be limited in the proceedings before the arbitrator to the evidence or arguments previously put before the Adjudicator to obtain hig*her decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the Adjudicator shall be admissible in evidence in the arbitration. ‘Short Frm of Conzact Scand EonAppendix: Rules for Adjudication referred to in Sub-Clause 14.1 [Adjudication] General Appointment of Adjudicator Terms of Appointment Genera Conestens FXG 2021 ‘Any reference in the Conditions of Contract to the Rules for Adjudication shall be deemed to be a reference to these Rules. Any reference to a Clause (oF Sub-Ciause in these Rules means a reference to a Clause or Sub-Clause of the Conditions of Contract. Definitions in the Contract shall apply in these Rules. ‘The objectives of these Rules are: (@) to facilitate the avoidance of disputes that might otherwise arise between the Parties; and. (0) _ to achieve the expeditious, efficient and cost-effective resolution of ‘any dispute that arises between the Parties. ‘These Rules shall be interpreted, the Adjudicator’s activities shall be ‘conducted and the Adjudicator shall use his/her power under the Contract ‘and these Fuules, in the manner necessary to achieve the above objectives. Ifor any reason the Parties fail to jointly appoint, or to enter into an agreement with, the Adjudicator in accordance with Sub-Clause 14.1.1 then, unless the Parties agree otherwise, either Party may apply, with a copy of the application to the other Party, to the President of FIDIC (or his/her nominee). ‘The President of FIDIC (or his/her nominee) shall appoint the Adjudicator, and such appointment shall be final and conclusive. The Parties shall be ‘deemed to have signed and be bound by an Adjudicator’s Agreement under ‘which the daily fee shall be as stated in the terms of the appointment, the monthly fee shall not anply and the governing law shall be the one defined in ‘Sub-Clause 1.4 [Governing Law]. ‘The Adiudicator shall ensure his/her availabilty throughout the term of the Adjudicator’s Agreement as necessary to fulfil his/her cuties. “The Adudicator is to be, and is to remain throughout his/her appointment, impartial and independent of the Parties and the Engineer, and shall immediately disclose in writing to the Parties anything of which he/she becomes aware which could affect his/her impartiality or independence. ‘The Adjudicator shall not give advice to the Parties or their representatives ‘concerning the conduct of the projact of which the Works form part, other than in accordance with Sub-Clause 14.1.2. “The Agjudicator shall comply with these Fules and with the provisions under the Contract that are relevant to the Adjudicator’s activities. ‘The Adjucicator shall treat the details of the Contract and all activities and hearings of the Adjudicator as confidential and shall not disclose the same ‘without the prior written consent of the Parties. The Adjudicator shall not, ‘without the consent of the Parties, assign or delegate any of his/her work Under these Rules or engage legal or technical assistance, 27