finante mandatory pc red book

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13-04-2007\fidic99_mandatory_pc_red_book_ag.doc

Mandatory Particular Conditions for FIDIC Red Book 1999 Legend: M Mandatory - required by the Romanian legislation in force M* Mandatory – required by the Romanian legislation on public finances M** Mandatory - required by the Romanian procurement act.

Clause Legend Provisions

Clause 1 - General Provisions Sub-Clause 1.1 - Definitions

Sub-Clause 1.1.1 - The Contract

- Sub-Clause 1.1.1.1 M** Delete Sub-Clause 1.1.1.1 and substitute:

“Contract” means the Contract Agreement, the Letter of Tender, these Conditions, the Specification, the Drawings, the Schedules, and the further documents (if any) which are listed in the Contract Agreement.”

- Sub-Clause 1.1.1.3 M** Delete Sub-Clause 1.1.1.3

Sub-Clause 1.1.2 - Parties and Persons

Sub-Clause 1.1.3 - Dates, Tests, Periods and Completion

- New Sub-clause 1.1.3.10 - Taking-Over Minutes upon Completion

M (see GD 273/1994)

Add new Sub-Clause 1.1.3.10:

“Taking-Over Minutes upon Completion of Works” means the minutes issued and signed in accordance with the Applicable Laws by a taking-over commission appointed by the Employer, at the Engineer’s request, recommending or not the taking-over of the Works, Section or part (as the case may be) by the Employer under Clause 10.”

- New Sub-clause 1.1.3.11 - Final Taking-Over Minutes

M (see GD 273/1994)

Add new Sub-Clause 1.1.3.11:

“Final Taking-Over Minutes” means the minutes issued and signed in accordance with the Applicable Laws by a final taking-over commission appointed by the Employer, at the Engineer’s request, recommending or not the final taking-over of the Works, Section or part (as the case may be) by the Employer under Sub-Clause 11.9.”

Sub-Clause 1.5 - Priority of Documents

M** (see article 95(2) of GD 925/2006)

Delete Sub-Clause 1.5 and substitute: “The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence: (a) the Contract Agreement, (b) the Letter of Tender, (c) the Particular Conditions, (d) these General Conditions, (e) the Specification, (f) the Drawings, (g) the Schedules, and (h) any other documents forming part of the Contract. Addenda and memoranda shall have the order of precedence of the documents they are modifying. If an ambiguity or discrepancy is found, the Engineer has authority to issue any instruction which he considers necessary to resolve an ambiguity or discrepancy.

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Clause Legend Provisions If during the performance of the Contract certain items of the Contractor’s technical offer turn out to be non-compliant with the requirements provided in the Specifications, the requirements provided in the Specifications shall prevail.”

Sub-Clause 1.6 - Contract Agreement

M** (see GO 34/2006)

Delete first sentence of Sub-Clause 1.6.

Clause 3 - The Engineer Sub-Clause 3.1 - Engineer's Duties and Authority

M see Law 10/1995 and Law 500/2002)

Insert at the end of Sub-Clause 3.1:

“The Engineer shall obtain the specific approval of the Employer before taking action under the following Sub-Clauses of these Conditions:

(a) Sub-Clause 10.1: Specific approval of the Employer is required before issuing any Taking-Over Certificate;

(b) Sub-Clause 11.9: Specific approval of the Employer is required before issuing the Performance Certificate;

(c) Sub-Clause 13.1: Specific approval of the Employer is required before instructing or approving any Variation that would cause the Contract Price to exceed the Accepted Contract Amount or any contract amount subsequently agreed upon by the Employer and the Contractor in addenda to the Contract.”

Clause 4 - The Contractor Sub-Clause 4.2 - Performance Security

M** (see article 87(b) of GD 925/2006)

Delete the first sentence of the second paragraph of Sub-Clause 4.2 and substitute:

“The Contractor shall deliver the Performance Security to the Employer within 15 days after the signature of the Contract Agreement and shall send a copy to the Engineer.”


Delete the last paragraph of Sub-Clause 4.2 and substitute:

“The Employer shall release/return the Performance Security to the Contractor as follows:

i. 70% of the amount of the Performance Security within 14 days after the date of the Taking-Over Minutes upon Completion of Works provided that no claim under the Performance Security has been made by the Employer until such date and subject to the issuance of the Taking-Over Certificate;

ii. 30% of the amount of the Performance Security, upon the issuance of the Performance Certificate provided that no claim under the Performance Security has been made by the Employer until such date.”

Sub-Clause 4.4 - Subcontractors


Add the following paragraphs after the first paragraph of Sub-Clause 4.4:

“If parts of the Works are to be performed by one or more Subcontractors, the Contractor shall, at the signature of the Contract Agreement, provide the Employer with the subcontracts

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Clause Legend Provisions signed by the Contractor with the Subcontractors designated in the Tender. Such subcontracts shall comply with the terms of the Tender and shall constitute Schedules to the Contract.

The Contractor shall not be entitled to replace any of the Subcontractors designated in the Tender without the prior consent of the Engineer.”

Clause 8 - Commencement, Delays and Suspension Sub-Clause 8.1 - Commencement of Work

M** In the second sentence of the first paragraph of Sub-Clause 8.1 delete “Letter of Acceptance” and substitute “Contract Agreement”.

Clause 10 - Employer's Taking Over Sub-Clause 10.1 - Taking-Over Certificate

M

(see Law 10/1995 and GD 273/1994)

Add at the end of the second paragraph of Sub-Clause 10.1:

“The Engineer shall request the Employer to nominate a taking-over commission that acting in accordance with the Applicable Laws shall issue and sign the Taking-Over Minutes upon Completion of Works.”

M

Delete first sentence of third paragraph and substitute:

“Subject to the Employer’s decision based on the recommendation provided in the Taking-Over Minutes upon Completion of the Works, the Engineer shall, within 56 days after receiving the Contractor’s application:”

M Delete last paragraph of sub-clause 10.1.

Sub-Clause 10.2 - Taking-Over of Parts of the Works

M

(see Law 10/1995 and GD 273/1994)

Delete first paragraph of Sub-Clause 10.2 and substitute:

“The Engineer may, at the sole discretion of the Employer, issue a Taking-Over Certificate for any part of the Permanent Works, provided that such part is physically and functionally independent.”

Delete second paragraph of Sub-Clause 10.2 and substitute:

“The Employer shall not use any part of the Works (other than as a temporary measure which is either specified in the Contract or agreed by both Parties) unless and until the Engineer has issued a Taking-Over Certificate for this part. However, if the Employer does use any part of the Works before the Taking-Over Certificate is issued, the Contractor shall cease to be liable for the care of such part as from this date, when responsibility shall pass to the Employer.”

Clause 11 - Defects Liability

Sub-Clause 11.1 – Completion of Outstanding Work and Remedying Defects

M

(see Law 10/1995 and GD 273/1994)

Delete sub-paragraph (b) of Sub-Clause 11.1 (b) and substitute:

"(b) execute all work required to remedy any defects, either apparent or latent, or damage, as may be notified by (or on behalf of the Employer) on or before the expiry date of the Defects Notification Period for the Works or Section (as the case may be).”

Sub-Clause 11.9 - Performance Certificate

M Delete second paragraph of Sub-Clause 11.9 and substitute:

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Clause Legend Provisions (see Law 10/1995 and GD 273/1994)

“Subject to the Employer’s decision based on the recommendation provided in the Final Taking-Over Minutes, the Engineer shall issue the Performance Certificate within 28 days after the latest of the expiry dates of the Defects Notification Periods, or as soon thereafter as the Contractor has supplied all the Contractor’s Documents and completed and tested all the Works, including remedying any defects. A copy of the Performance Certificate shall be issued to the Employer.”

Sub-Clause 11.10 - Unfulfilled Obligations

M Add new paragraph:

“The issuing of the Performance Certificate by the Engineer shall be without prejudice to the Contractor’s liability for the latent defects of the Works during the periods of liability imposed by the Applicable Laws.”

Clause 13 - Variations and Adjustments Sub-Clause 13.5 - Provisional Sums

M** Add at the end of Sub-Clause 13.5:

“When purchasing Plant, Materials or services pursuant to sub-paragraph (b) other than from a nominated Subcontractor (as defined in Clause 5 [Nominated Subcontractors], the Contractor shall comply with public procurement regulations under the Applicable Laws.”

Clause 14 - Contract Price and Payment Sub-Clause 14.1 - The Contract Price

M Add at the end of Sub-Clause 14.1:

“The Engineer shall notify the Employer and the Contractor whenever he acknowledges that the Contract Price exceeds the Accepted Contract Amount or any contract amount subsequently agreed upon by the Employer and the Contractor in addenda to the Contract.”

Sub-Clause 14.2 - Advance Payment

M*

(see article 52 of Law 500/2002 and GD 264/2003, subject to the provisions of Article 8 thereof)

Delete Sub-Clause 14.2 and substitute: “The Employer shall make interest-free advance payments in view of the execution of the Works, when the Contractor submits guarantees in accordance with this Sub-Clause. The total of each advance payment, the number and timing of instalments (if more than one) and the applicable currencies and proportions, shall be stated in the Appendix to Tender. Unless and until the Employer receives the relevant guarantees, or if the total of each advance payment is not stated in the Appendix to Tender, this Sub-Clause shall not apply. The Engineer shall issue an Interim Payment Certificate for the first instalment of each advance payment after receiving a Statement (under Sub-Clause 14.3 [Application for Interim Payment Certificates]) and after the Employer receives (i) the Performance Security in accordance with Sub-Clause 4.2 [Performance Security] and (ii) a guarantee in amounts and currencies equal to the advance payment. This guarantee shall be issued by a bank and from within a country (or other jurisdiction) approved by the Employer, and shall be in the form annexed to the Particular Conditions or in another form approved by the Employer.

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Clause Legend Provisions The Contractor shall ensure that each relevant guarantee is valid and enforceable until the advance payment has been repaid, but its amount may be progressively reduced by the amount repaid by the Contractor as indicated in the Payment Certificates. If the terms of a guarantee specify its expiry date, and the advance payment has not been repaid by the date 28 days prior to the expiry date, the Contractor shall extend the validity of such guarantee until the advance payment has been repaid. Each advance payment shall be repaid through deductions from the Payment Certificates until the end of the relevant year. Deductions shall be made in such amounts as the Contractor may from time to time notify to the Engineer provided that each advance payment shall be repaid in full until the end of the relevant year. If an advance payment has not been repaid until the end of the relevant year, the whole of the balance then outstanding shall immediately become due and payable by the Contractor to the Employer. The Employer shall also be entitled to penalties related to such balance at the rate provided for budgetary debts under the Applicable Laws and calculated over the period between the receipt and the repayment of the relevant advance payment by the Contractor. If the advance payment has not been repaid prior to the issue of the Taking-Over Certificate for the Works or prior to termination under Clause 15 [Termination by Employer], Clause 16 [Suspension and Termination by Contractor] or Clause 19 [Force Majeure] (as the case may be), the whole of the balance then outstanding shall immediately become due and payable by the Contractor to the Employer.”

Sub-Clause 14.5- Plant and Materials intended for the Works

M*

(see article 52 of Law 500/2002)

Delete third paragraph of Sub-Clause 14.5 and substitute:

“The Engineer shall determine and certify each addition if the following conditions are satisfied:

(a) the Contractor has:

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

(ii) submitted a statement of the Cost of acquiring and delivering the Plant and Materials to the Site, supported by satisfactory evidence;

and (b) the relevant Plant and Materials:

(i) are those listed in the Appendix to Tender for payment when delivered to the Site, and

(ii) have been delivered to and are properly stored on the Site, are protected against loss, damage or deterioration, and appear to be in accordance with the Contract.”

Sub-Clause 14.6 - Issue of Interim Payment Certificates

M Add a new paragraph at the end of Sub-Clause 14.6:

“Notwithstanding the provisions of Sub-Clause 2.5 [Employer's Claims], the Employer shall be entitled to correct arithmetical errors in any Payment Certificate.”

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Clause Legend Provisions M*

(see Law 500/2002)

Add a new paragraph at the end of Sub-Clause 14.6:

“Without prejudice to any other rights of the Contractor under the Contract or otherwise, the Engineer may not issue an Interim Payment Certificate that would cause the aggregate amounts certified for payment to exceed the Accepted Contract Amount or any contract amount subsequently agreed upon by the Employer and the Contractor in addenda to the Contract.”

Sub-Clause 14.7 - Payment

M Add before the first paragraph of Sub-Clause 14.7:

“Within 7 days from the issuing of the Payment Certificate by the Engineer, the Contractor shall issue an invoice to the Employer for the amount specified in the corresponding Payment Certificate.”

M Delete sub-paragraph (a) of Sub-Clause 14.7.

M Delete sub-paragraph (b) of Sub-Clause 14.7 and substitute:

"(b) the amount specified in each invoice corresponding to each Interim Payment Certificate within 28 days after issuance by the Contractor of such invoice.”

M Delete letter (c) of first paragraph of Sub-Clause 14.7 and substitute:

"(c) the amount specified in the invoice corresponding to the Final Payment Certificate within 56 days after issuance by the Contractor of such invoice.”

Sub-Clause 14.8 - Delayed Payment

M Delete the last paragraph of Sub-Clause 14.8 and substitute:

“The Contractor shall be entitled to this payment, against submission of an invoice, without any other formal notice or certification, and without prejudice to any other right or remedy.”

Sub – Clause 14.13- Issue of Final Payment Certificate

M Add a new paragraph at the end of Sub-Clause 14.13:

“Without prejudice to any other rights of the Contractor under the Contract or otherwise, the Engineer may not issue the Final Payment Certificate if the aggregate amounts certified for payment exceed the Accepted Contract Amount or any contract amount subsequently agreed upon by the Employer and the Contractor in addenda to the Contract.”

Clause 15 - Termination by Employer Sub-Clause 15.2 - Termination by Employer

M Delete the last two sentences of last paragraph of Sub-Clause 15.2

Clause 16 - Suspension and Termination by Contractor Sub-Clause 16.2 - Termination by Contractor

M Delete sub-paragraph (e) of Sub-Clause 16.2 and substitute:

"(e) the Employer fails to comply with Sub-Clause 1.7 [Assignment].”

Clause 18 - Insurance Sub-Clause 18.1 - General Requirements for Insurance

M In the second sentence of the second paragraph of Sub-Clause 18.1 delete “Letter of Acceptance” and substitute “Contract Agreement”.

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Clause Legend Provisions

Clause 20 - Claims, Disputes and Arbitration Sub-Clause 20.2 - Appointment of the Dispute Adjudication Board

M** Delete “Letter of Acceptance” and substitute “Contract Agreement”.