Plant and Design-Build Contract 1st Ed (1999 Yellow Book)

• General Conditions
• Guidance for the Preparation of the Particular Conditions
• Forms of Tender, Contract Agreement and Dispute Adjudication Agreement

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 Employer's requirements, plant and/or other works; which may include any combination of civil, mechanical, electrical and/or construction works.

Fédération Internationale des Ingénieurs-Conseils (FIDIC) extends special thanks to the following members of its Update Task Group: Christopher Wade (Group Leader), SWECO-VBB, Sweden; Peter L Booen (Principal Drafter), GIBB Ltd, UK; Hermann Bayerlein, Fichtner, Germany; Christopher R Seppala (Legal Adviser), White & Case, France; and José F Speziale, IATASA, Argentina.

The preparation was carried out under the general direction of the FIDIC Contracts Committee comprising John B Bowcock, Consulting Engineer, UK (Chairman); Michael Mortimer-Hawkins, SwedPower, Sweden; Axel-Volkmar Jaeger, Schmidt Reuter Partner, Germany; and Hiroyuki Endo, Pacific Consultants, Japan.

Various drafts were reviewed by the following persons or organisations: Mushtaq Ahmad, NESPAK, Pakistan; Peter Batty, Post Buckley International, USA; Manfred Breege, Lahmeyer International, Germany; Pablo Bueno, TYPSA, Spain; Nael G Bunni, Consulting Engineer, Ireland; Ian Fraser, Beca Carter Hollings & Ferner, New Zealand; Roy Goode, Oxford University, UK; Dan W Graham, Bristows Cooke & Carpmael, UK; Mark Griffiths, Griffiths & Armour, UK; Geoffrey F Hawker, Consulting Engineer, UK; Hesse & Steinberger, VDMA, Germany; Poul E Hvilsted, Elsamprojekt, Denmark; Gordon L Jaynes, Whitman Breed Abbott & Morgan, UK; Tonny Jensen (Chairman of FIDIC Quality Management Committee), COWI, Denmark; Philip Loots & Associates, South Africa; Neil McCole, Merz and McLellan, UK; K B (Tony) Norris, Consulting Engineer, UK; Eric Petersen, CEGELEC, France; Matthew Needham-Laing, Victoria Russell & Paul J Taylor, Berrymans Lace Mawer, UK; David R Wightman & Gerlando Butera, Nabarro Nathanson, UK; the Association of Japanese Consulting Engineers; European International Contractors; Organisme de Liaison Industries Métalliques Européennes ("ORGALIME"); the International Association of Dredging Contractors; the International Bar Association; the Asian Development Bank; and the World Bank.

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.

• 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, th 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 Employer's 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 are recommended where one entity takes total responsibility for the design and execution of an engineering project. Under the usual arrangements for this type of contract, the entity carries out all the Engineering, Procurement and Construction: providing a fully-equipped facility, ready for operation (at the "turn of the key"). This type of contract is usually negotiated between the parties.
• 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.

In the preparation of these Conditions of Contract for Plant and Design-Build, 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, which will 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:

(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, then (unless it is so descriptive that it would have to be detailed in the Employer's Requirements) the sub-clause makes reference to this data being contained in the Appendix to Tender, the data either being prescribed by the Employer or being inserted by the Tenderer;

(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:

1. users would find it more convenient if any provisions which they did not wish to apply could simply be disregarded or deleted, than if additional text had to be written (in the Particular Conditions) because the General Conditions did not cover their requirements;

2. in other cases, where the application of (a) was thought to be inappropriate, the sub-clause contains the provisions which were considered applicable to most contracts.

Further information on these aspects, example wording for other arrangements, and other explanatory material and example wording to assist in the preparation of the Particular Conditions and the other tender documents, are included within this publication as Guidance for the Preparation of the Particular Conditions. Before incorporating any example wording, it must be checked to ensure that it is wholly suitable for the particular circumstances; if not, it must be amended.

Where example wording is amended, and in all cases where other amendments or additions are made, care must be taken to ensure that no ambiguity is created, either with the General Conditions or between the clauses in the Particular Conditions. It is essential that all these drafting tasks, and the entire preparation of the tender documents, are entrusted to personnel with the relevant expertise, including the contractual, technical and procurement aspects.

This publication concludes with example forms for the Letter of Tender, the Appendix to Tender (providing a check-list of the sub-clauses which refer to it), the Contract Agreement, and alternatives for the Dispute Adjudication Agreement. This Dispute Adjudication Agreement provides text for the agreement between the Employer, the Contractor and the person appointed to act either as sole adjudicator or as a member of a three-person dispute adjudication board; and incorporates (by reference) the terms in the Appendix to the General Conditions.

FIDIC intends to publish guides to the above Conditions of Contract. Another relevant FIDIC publication is "Tendering Procedure", which presents a systematic approach to the selection of tenderers and the obtaining and evaluation of tenders.

In order to clarify the sequence of Contract activities, reference may be made to the charts on the next two pages and to the Sub-Clauses listed below (some Sub-Clause numbers are also stated in the charts). The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.

1.1.3.1 & 13.7 Base Date
1.1.3.2 & 8.1 Commencement Date
1.1.6.6 & 4.2 Performance Security
1.1.4.7 & 14.3 Interim Payment Certificate
1.1.3.3 & 8.2 Time for Completion (as extended under 8.4)
1.1.3.4 & 9.1 Tests on Completion
1.1.3.5 & 10.1 Taking-Over Certificate
1.1.3.6 & 12.1 Tests after Completion (if any)
1.1.3.7 & 11.1 Defects Notification Period (as extended under 11.3)
1.1.3.8 & 11.9 Performance Certificate
1.1.4.4 & 14.13 Final Payment Certificate

Under the usual arrangements for these types of contract, the Contractor is responsible for the design and provision, in accordance with the Employer's requirements, of plant and/or building and/or engineering works.

The guidance hereafter is intended to assist writers of the Particular Conditions by giving options for various sub-clauses where appropriate. As far as possible, example wording is included, in italics. In some cases, however, only an aide-memoire is given.

Before incorporating any example wording, it must be checked to ensure that it is wholly suitable for the particular circumstances. Unless it is considered suitable, example wording should not be used without amendment.

Where example wording is amended, and in all cases where other amendments or additions are made, care must be taken to ensure that no ambiguity is created, either with the General Conditions or between the clauses in the Particular Conditions.

In the preparation of the Conditions of Contract to be included in the tender documents for a contract, the following text can be used:

The Conditions of Contract comprise the "General Conditions", which form part of the "Conditions of Contract for Plant and Design-Build" First Edition 1999 published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC), and the following "Particular Conditions", which include amendments and additions to such General Conditions.

1.1 Definitions
1.2 Interpretation
1.3 Communications
1.4 Law and Language
1.5 Priority of Documents
1.6 Contract Agreement
1.7 Assignment
1.8 Care and Supply of Documents
1.9 Errors in the Employer's Requirements
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 Laws
1.14 Joint and Several Liability

2 THE EMPLOYER

2.1 Right of Access to the Site
2.2 Permits, Licences or Approvals
2.3 Employer's Personnel
2.5 Employer's Claim

3 THE ENGINEER

3.1 Engineer's Duties and Authority
3.2 Delegation by the Engineer
3.3 Instructions of the Engineer
3.4 Replacement of the Engineer
3.5 Determinations

4 THE CONTACTOR

4.1 Contractor's General Obligations
4.2 Performance Security
4.3 Contractor's Representative
4.4 Subcontractors
4.5 Nominated Subcontractors
4.6 Co-operation
4.7 Setting Out
4.8 Safety Procedures
4.9 Quality Assurance
4.10 Site Data
4.11 Sufficiency of the Accepted Contract Amount
4.12 Unforeseeable Physical Conditions
4.13 Rights of Way and Facilities
4.14 Avoidance of Interference
4.15 Access Route
4.16 Transport of Goods
4.17 Contractor's Equipment
4.18 Protection of the Environment
4.19 Electricity, Water and Gas
4.20 Employer's Equipment and Free-Issue Material
4.21 Progress Reports
4.22 Security of the Site
4.23 Contractor's Operations on Site
4.24 Fossils

5 DESIGN

5.1 General Design Obligations
5.2 Contractor's Documents
5.3 Contractor's Undertaking
5.4 Technical Standards and Regulations
5.5 Training
5.6 As-Built Documents
5.7 Operation and Maintenance Manuals
5.8 Design Error

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
6.9 Contractor's Personnel
6.10 Records of Contractor's Personnel and Equipment
6.11 Disorderly Conduct

7 PLANT, MATERIALS AND WORKMANSHIP

7.1 Manner of Execution
7.2 Samples
7.3 Inspection
7.4 Testing
7.5 Rejection
7.6 Remedial Work
7.7 Ownership of Plant and Materials
7.8 Royalties

8 COMMENCEMENT, DELAYS AND SUSPENSION

8.1 Commencement of Works
8.2 Time for Completion
8.3 Programme
8.4 Extension of Time for Completion
8.5 Delays Caused by Authorities
8.6 Rate of Progress
8.7 Delay Damages
8.8 Suspension of Work
8.9 Consequences of Suspension
8.10 Payment for Plant and Materials in Event of Suspension
8.11 Prolonged Suspension
8.12 Resumption of Work

9 TESTS 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 of the Works and Sections
10.2 Taking Over of Parts of the Works
10.3 Interference with Tests on Completion
10.4 Surfaces Requiring Reinstatement

11 DEFECTS LIABILITY

11.1 Completion of Outstanding Work and Remedying Defects
11.2 Cost of Remedying Defects
11.3 Extension of Defects Notification Period
11.4 Failure to Remedy Defects
11.5 Removal of Defective Work
11.6 Further Tests
11.7 Right of Access
11.8 Contractor to Search
11.9 Performance Certificate
11.10 Unfulfilled Obligations
11.11 Clearance of Site

12 TESTS AFTER COMPLETION

12.1 Procedure for Tests after Completion
12.2 Delayed Tests
12.3 Retesting
12.4 Failure to Pass Tests after Completion

13 VARIATIONS AND ADJUSTMENTS

13.1 Right to Vary
13.2 Value Engineering
13.3 Variation Procedure
13.4 Payment in Applicable Currencies
13.5 Provisional Sums
13.6 Daywork
13.7 Adjustments for Changes in Legislation
13.8 Adjustments for Changes in Cost

14 CONTRACT PRICE AND PAYMENT

14.1 The Contract Price
14.2 Advance Payment
14.3 Application for Interim Payment Certificates
14.4 Schedule of Payments
14.5 Plant and Materials intended for the Works
14.6 Issue of Interim Payment Certificates
14.7 Payment
14.8 Delayed Payment
14.9 Payment of Retention Money
14.10 Statement at Completion
14.11 Application for Final Payment Certificate
14.12 Discharge
14.13 Issue of Final Payment Certificate
14.14 Cessation of Employer's Liability
14.15 Currencies of Payment

15 TERMINATION BY EMPLOYER

15.1 Notice to Correct
15.2 Termination by Employer
15.3 Valuation at Date of Termination
15.4 Payment after Termination
15.5 Employer's Entitlement to Termination

16 SUSPENSION AND TERMINATION BY CONTRACTOR

16.1 Contractor's Entitlement to Suspend Work
16.2 Termination by Contractor
16.3 Cessation of Work and Removal of Contractor's Equipment
16.4 Payment on Termination

17 RISK AND RESPONSIBILITY

17.1 Indemnities
17.2 Contractor's Care of the Works
17.3 Employer's Risks
17.4 Consequences of Employer's Risks
17.5 Intellectual and Industrial Property Rights
17.6 Limitation of Liability

18 INSURANCE

18.1 General Requirements for Insurances
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

19 FORCE MAJEURE

19.1 Definition of Force Majeure
19.2 Notice of Force Majeure
19.3 Time of Notice
19.4 Duty to Minimise Delay
19.5 Consequences of Force Majeure
19.6 Optional Termination, Payment and Release
19.7 Release from Performance under the Law

20 CLAIMS, DISPUTES AND ARBITRATION

20.1 Contractor's Claims
20.2 Appointment of the Dispute Adjudication Board
20.3 Failure to Agree Dispute Adjudication Board
20.4 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

APPENDIX

GENERAL CONDITIONS OF DISPUTE ADJUDICATION AGREEMENT

INDEX

2. GUIDANCE FOR THE PREPARATION OF THE PARTICULAR CONDITIONS

INTRODUCTION

1 GENERAL PROVISIONS
2 THE EMPLOYER
3 THE ENGINEER
4 THE CONTRACTOR
5 DESIGN
6 STAFF AND LABOUR
7 PLANT, MATERIALS AND WORKMANSHIP
8 COMMENCEMENT. DELAYS ANS SUSPENSION
9 TESTS ON COMPLETION
10 EMPLOYER'S TAKING OVER
11 DEFECTS LIABILITY
12 TESTS AFTER COMPLETION
13 VARIATIONS AND ADJUSTMENTS
14 CONTRACT PRICE AND PAYMENT
15 DEFAULT OF CONTRACTOR
16 DEFAULT OF EMPLOYER
17 RISK AND RESPONSBILITY
18 INSURANCES
19 FORCE MAJEURE
20 CLAIMS, DISPUTES AND ARBITRATION

ANNEXES

FORMS OF SECURITIES