8.5 Delays Caused by Authorities lf the following conditions apply, namely: (a) the Contractor has diligently followed the procedures laid down by the relevant legally constituted public authorities in the Country, (b) these authorities del8.5 Delays Caused by Authorities
lf the following conditions apply, namely:
(a) the Contractor has diligently followed the procedures laid down by the relevant legally constituted public authorities in the Country,
(b) these authorities delay or disrupt the Contractor’s work, and
(c) the delay or disruption was Unforeseeable, then this delay or disruption will be considered as a cause of delay under sub-paragraph (b) of Sub-Clause 8.4 [Extension of Time for Completion].
8.6 Rate of Progress
If, at any time
(a) actual progress is too slow to complete within the Time for Completion, and/or (b) progress has fallen (or will fall) behind the current program under Sub-Clause 8.3[Program]. other than as a result of a cause listed in Sub-Clause 8.4 [Extension of Time for Completion], then the Engineer may instruct the Contractor to submit, under Sub-Clause 8.3 [Program], a revised program and supporting report describing the revised methods which the Contractor proposes to adopt in order to expedite progress and complete within the Time for Completion.
Unless the Engineer notifies otherwise, the Contractor shall adopt these revised Methods, which may require increases in the working hours and/or in the numbers of Contractor’s Personnel and/or Goods, at the risk and cost of the Contractor. If these revised methods cause the Employer to incur additional costs, the Contractor shall subject to Sub-Clause 2.5 [Employer’s Claims] pay these costs to the Employer, in addition to delay damages (if any) under Sub-Clause 8.7 below.
8.7 Delay Damages
If the Contractor fails to comply with Sub-Clause 8.2 [-time for Completion], the Contractor shall subject to Sub-Clause 2.5 [Employer’s Claims] pay delay damages to the Employer for this default. These delay damages shall be the sum stated in the Appendix to Tender, which shall be paid for every day which shall elapse between the Relevant Time for Completion and the date stated in the Taking-Over Certificate.
However, the total amount due under this Sub-Clause shall not exceed the maximum amount of delay damages (if any) stated in the Appendix to Tender.
These delay damages shall be the only damages due from the Contractor for such Default, other than in the event of termination under Sub-Clause 15.2 [Termination by Employer] prior to completion of the Works. These damages shall not relieve the Contractor from his obligation to complete the Works, or from any other duties, obligations or responsible ties which he may have under the Contract.
8.8 Suspension of Work
The Engineer may at any time instruct the Contractor to suspend progress of part or all of the Works. During such suspension, the Contractor shall protect, store and secure such part or the Works against any deterioration, loss or damage.
The Engineer may also notify the cause for the suspension. If and to the extent that the cause is notified and is the responsibility of the Contractor, the following Sub-Clauses 8.9, 8.10, and 8.11 shall not apply.
8.9 Consequences of Suspension
If the Contractor suffers delay and/or incurs Cost from complying with the Engineer’s instructions under Sub-Clause 8.8 [Suspension of Work]and/or from resuming the work, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed under Sub-Clause 8.4[Extension of Time for Completion], and
(b) payment of any such Cost, which shall be included in the Contract Price. After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters.
The Contractor shall not be entitled to an extension of time for, or to payment of the Cost incurred in, making good the consequences of the Contractor’s faulty design, workmanship or materials, or of the Contractor’s failure to protect, store or secure in accordance with Sub-Clause 8.8 [Suspension of Work].
8.10 Payment for Plant and Materials in Event of Suspension
The Contractor shall be entitled to payment of the value (as at the date of suspension) of Plant and/or Materials which have not been delivered to Site, If:
(a) the work on Plant or delivery of Plant and/or Materials has been suspended for more than 28 days, and
(b) the Contractor has marked the Plant and/or Materials as the Employer’s property in accordance with the Engineer’s instructions.
8.11 Prolonged Suspension
If the suspension under Sub-Clause 8.8 [Suspension of Work] has continued for more than 84 days, the Contractor may request the Engineer’s permission to proceed. If the Engineer does not give permission within 28 days after being requested to do so, the Contractor may, by giving notice to the Engineer, treat the suspension as an omission under Clause13 [Variations and Adjustments] of the affected part of the Works. If the suspension affects the whole of the Works, the Contractor may give notice of termination under Sub-Clause 16.2 [Termination by Contractor].
8.12 Resumption of Work
After the permission or instruction to proceed is given, the Contractor and the Engineer shall jointly examine the Works and the Plant and Materials affected by the suspension. The Contractor shall make good any deterioration or defect in or loss of the Works or Plant or Materials, which has occurred during the suspension.
9 Test on Completion
9.1 Contractor’s Obligations
The Contractor shall carry out the Tests on Completion in accordance with this Clause and Sub-Clause 7.4 [Testing], after providing the documents in accordance with Sub-Clause 5.6[As-Built Documents] and Sub-Clause 5.7 [Operation and Maintenance Manuals].
9.2 Delayed Tests
The Contractor shall give to the Engineer not less than 21 days, notice of the date after which the Contractor will be ready to carry out each of the Tests on Completion.
Unless otherwise agreed, Tests on Completion shall be carried out within 1 4 days after this date, on such day or days as the Engineer shall instruct.
Unless otherwise stated in the Particular Conditions, the Tests on Completion shall be carried out in the following sequence: pre-commissioning tests, which shall include the appropriate inspections and (“dry” or “cold”)functional tests to demonstrate that each item of Plant can safely undertake the next stage,(b): commissioning tests, which shall include the specified operational tests to demonstrate that the Works or Section can be operated safely and as specified, under all available operating conditions; and trial operation, which shall demonstrate that the Works or Section perform reliably and in accordance with the Contract.
During trial operation, when the Works are operating under stable conditions, the Contractor shall give notice to the Engineer that the Works are ready for any other Tests on Completion, including performance tests to demonstrate whether the Works conform with criteria specified in the Employer’s Requirements and with the Schedule of Guarantees.
Trial operation shall not constitute a taking-over under Clause 1 0[Employer’s Taking Over].Unless otherwise stated in the Particular Conditions, any product produced by the Works during trial operation shall be the property of the Employer.
In considering the results of the Tests on Completion, the Engineer shall make allowances for the effect of any use of the Works by the Employer on the performance or other characteristics of the Works. As soon as the Works, or a Section, have passed each of the Tests on Completion described in sub-paragraph (a), (b) or (c), the Contractor shall submit a certified report of the results of these Tests to the Engineer.
If the Tests on Completion are being unduly delayed by the Employer, Sub-Clause 7.4 [Testing] (fifth paragraph) and/or Sub-Clause 10.3 [Interference with Tests on Completion] shall be applicable.
If the Tests on Completion are being unduly delayed by the Contractor, the Engineer may by notice require the Contractor to carry out the Tests within 21 days after receiving the notice. The Contractor shall carry out the Tests on such day or days within that period as the Contractor may fix and of which he shall give notice to the Engineer.
If the Contractor fails to carry out the Tests on Completion within the period of 21days, the Employer’s Personnel may proceed with the Tests at the risk and cost of the Contractor. The Tests on Completion shall then be deemed to have been carried out in the presence of the Contractor and the results of the Tests shall be accepted as accurate.
9.3 Retesting
If the Works, or a Section, fail to pass the Tests on Completion, Sub-Clause 7.5 [Rejection] shall apply, and the Engineer or the Contractor may require the failed Tests and Tests on Completion on any related work, to be repeated under the same terms and conditions.
9.4 Failure to Pass Tests on Completion
If the Works, or a Section, fail to pass the Tests on Completion repeated under Sub-Clause 9.3[Retesting], the Engineer shall be entitled to:
(a) order further repetition of Tests on Completion under Sub-Clause 9.3:
(b) if the failure deprives the Employer of substantially the whole benefit of the Works or Section, reject the Works or Section (as the case may be), in which event the Employer shall have the same remedies as are provided in sub. Paragraph(c) of Sub-Clause 11.4[Failure to Remedy Defects]; or
(C) issue a Taking-Over Certificate, if the Employer so requests.
In the event of sub-paragraph(c), the Contractor shall then proceed in accordance with all other obligations under the Contract, and the Contract Price shall be reduced by such amount as shall be appropriate to cover the reduced value to the Employer as a result of this failure. Unless the relevant reduction for this failure is stated for its method of calculation is defined) In the Contract, the Employer may require the reduction to be (1) agreed by both Parties (in full satisfaction of this failure only) and paid before this Taking-Over Certificate is issued, or (ii) determined and paid under Sub-Clause 2.5[Employer’s Claims] and Sub-Clause 3.5[Determinations].
10 Employer’s Taking Over
10.1 Taking Over of the Works and Sections
Except as stated in Sub-Clause 9.4 [Failure to Pass Tests on Completion], the Works Shall be taken over by the Employer when (i) the Works have been completed in accordance with the Contract, including the matters described in Sub-Clause 8.2 [time tor Completion and except as allowed in sub-paragraph (a) below, and (ii) a Taking-Over Certificate for the Works has been issued, or is deemed to have been issued in accordance with this Sub-Clause.
The Contractor may apply by notice to the Engineer for a Taking-Over Certificate not earlier than 14 days before the Works will, in the Contractor’s opinion, be complete and ready for taking oven lf the Works are divided into Sections, the Contractor may similarly apply for a Taking-Over Certificate for each Section.
The Engineer shall, within 28 days after receiving the Contractor’s application
(a) issue the Taking-Over Certificate to the Contractor, stating the date on which the Works or Section were completed in accordance with the Contract, except for any minor outstanding work and defects which will not substantially affect the use of the Works or Section for their intended purpose (either until or whilst this work is completed and these defects are remedied); or
(b) reject the application, giving reasons and specifying the work required to be done by the Contractor to enable the Taking-Over Certificate to be issued. The Contractor shall then complete this work before issuing a further notice under this Sub-Clause.
If the Engineer fails either to issue the Taking-Over Certificate or to reject the
Contractor’s application with the period of 28 days, and if the Works or Section (as the case may be)are substantially in accordance with the Contract, the Taking-Over Certificate shall be deemed to have been issued on the last day of that period.
10.2 Taking Over Of Parts of the Works
The Engineer may, at the sole discretion of the Employer, issue a Taking-Over Certificate for any part of the Permanent Works.
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:
(a) the part which is used shall be deemed to have been taken over as from the date on which it is used.
(b) the Contractor shall cease to be Liable for the care of such part as from this date, when responsibility shall pass to the Employer, and
(c) if requested by the Contractor, the Engineer shall issue a Taking-Over Certificate for this part.
After the Engineer has issued a Taking-Over Certificate for a part of the Works, the Contractor shall be given the earliest opportunity to take such steps as may be necessary to carry out any outstanding Tests on Completion. The Contractor shall carry out these Tests on Completion as soon as practicable before the expiry date of the relevant Defects Notification Period.
If the Contractor incurs Cost as a result of the Employer taking over and/or using a part of the Works, other than such use as is specified in the Contract or agreed by the Contractor, the Contractor shall (i) give notice to the Engineer and (ii) be entitled subject to Sub-Clause 20.1[Contractor’s Claims] to payment of any such Cost plus reasonable profit, which shall be included in the Contract Price. After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations to agree or determine this Cost and profit. If a Taking-Over Certificate has been issued for a part of the Works (other than a Section), the delay damages thereafter for completion of the remainder of the Works shall be reduced’ similarly, the delay damages for the remainder of the Section (if any) in which this part is included shall also be reduced. For any period of delay after the
date stated in this Taking-Over Certificate, the proportional reduction in these delay Damages shall be calculated as the proportion which the value of the part so certified bears to the value of the Works or Section(as the case may be)as a whole. The Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine these proportions. The provisions of this paragraph shall only apply to the daily rate of delay damages under Sub-Clause 8.7[Delay Damages], and shall not affect the maximum amount of these damages.
10.3 Interference with Tests on Completion
If the Contractor is prevented, for more than 1 4 days, from carrying out the Tests on Completion by a cause for which the Employer is responsible, the Employer shall be deemed to have taken over the Works or Section(as the case may be)on the date when the Tests on Completion would otherwise have been completed.
The Engineer shall then issue a Taking-Over Certificate accordingly, and the Contractor shall carry out the Tests on Completion as soon as practicable, before the expiry date of the Defects Notification Period. The Engineer shall require the Tests on Completion to be carried out by giving 14 days’ notice and in accordance with the relevant provisions of the Contract.
If the Contractor suffers delay and/or incurs Cost as a result of this delay in carrying out the Tests on Completion, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1[Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4[Extension of Time for Completion], and
(b) payment of any such Cost plus reasonable profit, which shall be included in the Contract Price.
After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine these matters.
10.4 Surfaces Requiring Reinstatement
Except as otherwise stated in a Taking-Over Certificate, a certificate for a Section or part of the Works shall not be deemed to certify completion of any ground or other surfaces requiring reinstatement.
11 Defects liability
11.1 Completion of Outstanding Work and Remedying Defects
In order that the Works and Contractor’s Documents, and each Section, shall be in the condition required by the Contract(fair wear and tear excepted)by the expiry date of the relevant Defects Notification Period or as soon as practicable thereafter, the Contractor shall:
(a) complete any work which is outstanding on the date stated in a Taking-Over Certificate, within such reasonable time as is instructed by the Engineer, and
(b) execute all work required to remedy defects 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).
If a defect appears or damage occurs, the Contractor shall be notified accordingly, by (or on behalf of) the Employer.
11.2 Cost of Remedying Defects
All work referred to in sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects] shall be executed at the risk and cost of the Contractor, if and to the extent that the work is attributable to: the design of the Works, other than a part of the design for which the Employer is responsible (if any), Plant, Materials or workmanship not being in accordance with the Contract,
(c) Improper operation or maintenance which was attributable to matters for which the Contractor is responsible funder Sub-Clauses 5.5 to 5.7 or otherwise), or
(d) failure by the Contractor to comply with any other obligation.
If and to the extent that such work is attributable to any other cause, the Contractor shall be notified promptly by (or on behalf of) the 俄employer, and Sub-Clause 13.3 [Variation Procedure] shall apply.
11.3 Extension of Defects Notification Period
The Employer shall be entitled subject to Sub-Clause 2.5[Employer’s Claims] to an extension of the Defects Notification Period for the Works or a Section if and to the extent that the Works, Section or a major item of Plant (as the case may be, and after taking over)cannot be used for the purposes for which they are intended by reason of a defect or damage. However, a Defects Notification Period shall not be extended by more than two years.
If delivery and/or erection of Plant and/or Materials was suspended under Sub-Clause 8.8[Suspension of Work] or Sub-Clause16.1 [Contractor’s Entitlement to Suspend Work], the Contractor’s obligations under this Clause shall not apply to any defects or damage occurring more than two years after the Defects Notification Period for the Plant and/or Materials would otherwise have expired.
11.4 Failure to Remedy Defects
If the Contractor fails to remedy any defect or damage within a reasonable time, a date may be fixed by (or on behalf of) the Employer, on or by which the defect or damage is to be remedied. The Contractor shall be given reasonable notice of this date.
If the Contractor fails to remedy the defect or damage by this notified date and this remedial work was to be executed at the cost of the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the Employer may (at his option):
(a) carry out the work himself or by others, in a reasonable manner and at the Contractor’s cost, but the Contractor shall have no responsibility for this work; and the Contractor shall subject to Sub-Clause 2.5[Employer’s Claims]pay to the Employer the costs reasonably incurred by the Employer in remedying the defect or damage;
(b) require the Engineer to agree or determine a reasonable reduction In the Contract Price in accordance with Sub-clause 3.5[Determinations]; or
(c) if the defect or damage deprives the Employer of substantially the whole benefit of the Works or any major part of the Works, terminate the Contract as a whole, or in respect of such major part which cannot be put to the Intended use.
Without prejudice to any other rights, under the Contract or otherwise, the Employer shall then be entitled to recover all sums paid for the Works or for such part(as the case may be),plus financing costs and the cost of dismantling the same, clearing the Site and returning Plant and Materials to the Contractor.
11.5 Removal of Defective Work
If the defect or damage cannot be remedied expeditiously on the Site and the Employer gives consent the Contractor may remove from the Site for the purposes of repair such items of Plant as are defective or damaged. This consent may require the Contractor to increase the amount of the Performance Security by the full replacement cost of these items, or to provide other appropriate security.
11.6 Further Tests
If the work of remedying of any defect or damage may affect the performance of the Works, the Engineer may require the repetition of any of the tests described in the Contract, including Tests on Completion and/or Tests after Completion. The requirement shall be made by notice within 28 days after the defect or damage is remedied.
These tests shall be carried out in accordance with the terms applicable to the previous tests, except that they shall be carried out at the risk and cost of the Party liable, under Sub-Clause 11.2 [Cost of Remedying Defects],for the cost of the remedial work.
11.7 Right of Access
Until the Performance Certificate has been issued, the Contractor shall have the right of access to all parts of the Works and to records of the operation and performance of the Works, except as may be inconsistent with the Employer’s reasonable security restrictions.
11.8 Contractor to Search
The Contractor shall, if required by the Engineer, search for the cause of any defect. under the direction of the Engineer. Unless the defect is to be remedied at the cost of the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects],the Cost of the search plus reasonable profit shall be agreed or determined by the Engineer in accordance with Sub-Clause 3.5 [Determinations and shall be included in the Contract Price.
11.9 Performance Certificate
Performance of the Contractor’s obligations shall not be considered to have been completed until the Engineer has issued the Performance Certificate to the Contractor, stating the date on which the Contractor completed his obligations under the Contract. 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.
Only the Performance Certificate shall be deemed to constitute acceptance of the Works.
11.10 Unfulfilled Obligations
After the Performance Certificate has been issued, each Party shall remain liable for the fulfillment of any obligation which remains unperformed at that time. For the purposes of determining the nature and extent of unperformed obligations, the Contract shall be deemed to remain in force.
Upon receiving the Performance Certificate, the Contractor shall remove any remaining Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works from the Site.
If all these items have not been removed within 28 days after the Employer receives a copy of the Performance Certificate, the Employer may sell or otherwise dispose of any remaining items. The Employer shall be entitled to be paid the costs incurred in connection with, or attributable to, such sale or disposal and restoring the Site.
Any balance of the moneys from the sale shall be paid to the Contractor. If these moneys are less than the Employer’s costs, the Contractor shall pay the outstanding balance to the Employer.
12 Tests after Completion
12.1 Procedure for Tests after Completion
If Tests after Completion are specified in the Contract, this Clause shall apply. Unless otherwise stated in the Particular Conditions, the Employer shall:
(a) Provide all electricity, equipment, fuel, instruments, labor, materials, and suitably qualified and experienced staff, as are necessary to carry out the Tests after Completion efficiently, and
(b) carry out the Tests after Completion in accordance with the manuals supplied by the Contractor under Sub-Clause 5.7 [Operation and Maintenance Manuals] and such guidance as the Contractor may be required to give during the course of these Tests; and in the presence of such Contractor’s Personnel as either Party may reasonably request.
The Tests after Completion shall be carried out as soon as is reasonably practicable after the Works or Section have been taken over by the Employer. The Employer shall give to the Contractor 21 days, notice of the date after which the Tests after Completion will be carried out. Unless otherwise agreed, these Tests shall be carried out within 14 days after this date, on the day or days determined by the Employer.
If the Contractor does not attend at the time and place agreed, the Employer may proceed with the Tests after Completion, which shall be deemed to have been made in the Contractor’s presence, and the Contractor shall accept the readings as accurate.
The results of the Tests after Completion shall be compiled and evaluated by both Parties. Appropriate account shall be taken of the effect of the Employer’s prior use of the Works.
12.2 Delayed Tests
If the Contractor incurs Cost as a result of any unreasonable delay by the Employer to the Tests after Completion, the Contractor shall (i) give notice to the Engineer and (ii) be entitled subject to Sub-Clause 20.1[Contractor’s Claims]to payment of any such Cost plus reasonable profit, which shall be included in the Contract Price.
After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine this Cost and profit.
If, for reasons not attributable to the Contractor, Tests after Completion on the Works or any Section cannot be completed during the Defects Notification Period (or any other period agreed upon by both Parties), then the Works or Section shall be deemed to have passed this Tests after Completion.
12.3 Retesting
If the Works, or a Section, fail to pass the Tests after Completion:
(a) sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects] shall apply, and
(b) either Party may then require the failed Tests, and the Tests after Completion on any related work, to be repeated under the same terms and conditions.
If and to the extent that this failure and retesting are attributable to any of the matters listed in sub-paragraphs(a)to(d)of Sub-Clause 11.2 [Cost of Remedying Defects] and cause the Employer to incur additional costs, the Contractor shall subject to Sub-Clause 2.5[Employer’s Claims] pay these costs to the Employer.
12.4 Failure to Pass Tests after Completion
If the following conditions apply, namely
(a) the Works, or a Section, fail to pass any or all of the Tests after Completion, (b) the relevant sum payable as non-performance damages for this failure is stated (or its method of calculation is defined)in the Contract, and
(c) the Contractor pays this relevant sum to the Employer during the Defects Notification Period.
then the Works or Section shall be deemed to have passed these Tests after Completion.
if the Works, or a Section, fail to pass a Test after Completion and the Contractor proposes to make adjustments or modifications to the Works or such Section, the Contractor may be instructed by (or on behalf of) the Employer that right of access to the Works or Section cannot be given until a time that Is convenient to the Employer.
The Contractor shall then remain Liable to carry out the adjustments or modifications and to satisfy this Test, within a reasonable period of receiving notice by (or on behalf Of) the Employer of the time that is convenient to the Employer. However, if the Contractor does not receive this notice during the relevant Defects Notification Period, the Contractor shall be relieved of this obligation and the Works or Section (as thecae may be) shall be deemed to have passed this Test after Completion.
If the Contractor incurs additional Cost as a result of any unreasonable delay by the Employer in permitting access to the Works or Plant by the Contractor, either to investigate the causes of a failure to pass a Test after Completion or to carry out any adjustments or modifications, the Contractor shall(i)give notice to the Engineer and (ii) be entitled subject to Sub-Clause 20.1 [Contractor’s Claims’] to Payment of any such Cost plus reasonable profit, which shall be included in the Contract Price.
After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine this Cost and profit.
13 Variation and Adjustments
13.1 Right to Vary
Variations may be initiated by the Engineer at any time prior to issuing the Taking-Over Certificate for the Works, either by an instruction or by a request for the Contractor to submit a proposal. A Variation shall not comprise the omission of any work which is to be carried out by others.
The Contractor shall execute and be bound by each Variation, unless the Contractor promptly gives notice to the Engineer stating (with supporting particulars) that (i) the Contractor cannot readily obtain the Goods required for the Variation, (ii) it will reduce the safety or suitability of the Works, or (iii) it will have an adverse impact on the achievement of the Schedule of Guarantees. Upon receiving this notice, the Engineer shall cancel, Confirm or vary the instruction.
13.2 Value Engineering
The Contractor may, at any time, submit to the Engineer a written proposal which (in the Contractor’s opinion)will, if adopted,(i)accelerate completion,(ii)reduce the cost to the Employer of executing, maintaining or operating the Works,(iii)improve the efficiency or value to the Employer of the completed Works, or(iv)otherwise be of benefit to the Employer.
The proposal shall be prepared at the cost of the Contractor and shall include the items listed in Sub-Clause 1 3.3 [Variation Procedure].
13.3 Variation Procedure
If the Engineer requests a proposal, prior to instructing a Variation, the Contractor shall respond in writing as soon as practicable either by giving reasons why he cannot comply (if this is the case) or by summiting
(a) a description of the proposed design and/or work to be performed and a programme for its execution,
(b) the Contractor’s proposal for any necessary modifications to the programme according to Sub-Clause 8.3[Programme] and to the Time for Completion, and
(c) the Contractor’s proposal for adjustment to the Contract Price.
The Engineer shall, as soon as practicable after receiving such proposal (under Sub-Clause 13.2 [Value Engineering] or otherwise), respond with approval, disapproval or
comments. The Contractor shall not delay any work whilst awaiting a response.
Each instruction to execute a Variation, with any requirements for the recording of Costs shall be issued by the Engineer to the Contractor, who shall acknowledge receipt.
Upon instructing or approving a Variation, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine adjustments to the Contract Price and the Schedule of Payments. These adjustments shall include reasonable profit, and shall take account of the Contractor’s submissions under Sub-Clause 13.2[Value Engineering] if applicable.
13.4 Payment in Applicable Currencies
1f the Contract provides for payment of the Contract Price in more than one currency, then whenever an adjustment is agreed, approved or determined as stated above, the amount payable in each of the applicable currencies shall be specified. For this purpose, reference shall be made to the actual or expected currency proportions of the Cost of the varied work, and to the proportions of various currencies specified for payment of the Contract Price.
13.5 Provisional Sums
Each Provisional Sum shall only be used, in whole or in part, in accordance with the Engineer’s instructions, and the Contract Price shall be adjusted accordingly. The total sum paid to the Contractor shall include only such amounts, for the work, supplies or services to which the Provisional Sum relates, as the Engineer shall have instructed.
For each Provisional Sum, the Engineer may instruct:
(a) work to be executed (including Plant, Materials or services to be supplied) by the Contractor and valued under Sub-Clause 13.3[Variation Procedure]; and/or
(b) Plant, Materials or services to be purchased by the Contractor, for which there shall be included in the Contract Price:
(i) the actual amounts paid (or due to be paid) by the Contractor, and
(ii) a sum for overhead charges and profit, calculated as a percentage of these actual amounts by applying the relevant percentage rate (if any) stated in the appropriate Schedule. If there is no such rate, the percentage rate stated in the Appendix to Tender shall be applied.
The Contractor shall, when required by the Engineer, produce quotations, invoices vouchers and accounts or receipts in substantiation.
13.6 Day work
For work of a minor or incidental nature, the Engineer may instruct that a Variation shall be executed on a day work basis. The work shall then be valued in accordance with the day work schedule included in the Contract, and the following procedure shall apply. If a day work schedule is not included in the Contract, this Sub-Clause shall not apply.
Before ordering Goods for the work, the Contractor shall submit quotations to the Engineer. When applying for payment, the Contractor shall submit invoices, vouchers and accounts or receipts for any Goods.
Except for any items for which the day work schedule specifies that payment is not due, the Contractor shall deliver each day to the Engineer accurate statements in duplicate which shall include the following details of the resources used in executing
(a) the previous day’s work:
(b) the names, occupations and time of Contractor’s Personnel, the identification, type and time of Contractor’s Equipment and Temporary Works, and
(c) the quantities and types of Plant and Materials used.
One copy of each statement will, if correct, or when agreed, be signed by the Engineer and returned to the Contractor. The Contractor shall then submit priced statements of these resources to the Engineer, prior to their inclusion in the next Statement under Sub-Clause14.3 [Application for Interim Payment Certificates].
13.7 Adjustments for Changes in Legislation
The Contract Price shall be adjusted to take account of any increase or decrease in Cost resulting from a change in the Laws of the Country (including the introduction of new Laws and the repeal or modification of existing Laws) or in the judicial or official governmental interpretation of such Laws, made after the Base Date, which affect the Contractor in the performance of obligations under the Contract.
If the Contractor suffers (or will suffer) delay and/or incurs (or will incur) additional Cost as a result of these changes in the Laws or in such interpretations, made after the Base Date, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1[Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed under Sub-Clause 8.4[Extension of Time for Completion], and
(b) payment of any such Cost, which shall be included in the Contract Price.
After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause [determinations] to agree or determine these matters.
13.8 Adjustments for Changes in Cost
In this Sub-Clause, “table of adjustment data” means the completed table of adjustment data included in the Appendix to Tender. If there is no such table of adjustment data, this Sub-Clause shall not apply.
If this Sub-Clause applies, the amounts payable to the Contractor shall be adjusted for rises or falls in the cost of labor, Goods and other inputs to the Works, by the addition or deduction of the amounts determined by the formulae prescribed in this Sub-Clause. To the extent that full compensation for any rise or fall in Costs is not covered by the provisions of this or other Clauses, the Accepted Contract Amount Shall be deemed to have included amounts to cover the contingency of other rises and falls in costs.
The adjustment to be applied to the amount otherwise payable to the Contractor, as valued in accordance with the appropriate Schedule and certified in Payment Certificates, shall be determined from formulae for each of the currencies in which the Contract Price is payable. No adjustment is to be applied to work valued on the basis of Cost or current prices. The formulae shall be of the following general type:
Pn=a+ b Ln +c En +d Mn +….
Lo Eo Mo
Where
“Pn is the adjustment multiplier to be applied to the estimated contract value in the relevant currency of the work carried out in period “n”, this period being a month unless otherwise stated in the Appendix to Tender; “a” is a fixed coefficient, stated in the relevant table of adjustment data, representing the non-adjustable portion in contractual payments;
“b”,"c","d”…are coefficients representing the estimated proportion of each cost element related to the execution of the Works, as stated in the relevant table of adjustment data; such tabulated cost elements may be indicative of resources such as labor, equipment and materials;“Ln”,”En”,”Mn”… are the current cost indices or reference prices for period “n”, expressed in the relevant currency of payment, each of which is applicable to the relevant tabulated cost element on the date 49 days prior to the last day of the period (to which the particular Payment Certificate relates); and “LO”,”Eo”,”Mo”,…are the base cost indices or reference prices, expressed in the relevant currency of payment, each of which is applicable to the relevant tabulated cost element on the Base Date.
The cost indices or reference prices stated in the table of adjustment data shall be Used. If their source is in doubt, it shall be determined by the Engineer. For this purpose, reference shall be made to the values of the indices at stated dates (quoted in the fourth and fifth columns respectively of the table for the purposes of clarification of the source; although these dates (and thus these values) may not correspond to the base cost indices.
In cases where the” currency of index” (stated in the table) is not the relevant currency of payment, each index shall be converted into the relevant currency of payment at the selling rate, established by the central bank of the Country, of this relevant currency on the above date for which the index is required to be applicable.
Until such time as each current cost index is available, the Engineer shall determine a provisional index for the issue of Interim Payment Certificates. When a current cost index is available, the adjustment shall be recalculated accordingly.
If the Contractor fails to complete the Works within the Time for Completion, adjustment of prices thereafter shall be made using either (i) each index or price applicable on the date 49 days prior to the expiry of the Time for Completion of the Works, or (ii) the current index or price: whichever is more favorable to the Employer.
The weightings (coefficients) for each of the factors of cost stated in the table(s) of Adjustment data shall only be adjusted if they have been rendered unreasonable, unbalanced or inapplicable, as a result of Variations.
14 Contract Price and Payment
14.1 The Contract Price
Unless otherwise stated in the Particular Conditions
(a) the Contract Price shall be the lump sum Accepted Contract Amount and be subject to adjustments in accordance with the Contract;
(b) the Contractor shall Pay all taxes, duties and fees required to be paid by him under the Contract, and the Contract Price shall not be adjusted for any of these costs, except as stated in Sub-Clause 13.7 [Adjustments for Changes in Legislation];
(c) any quantities which may be set out in a Schedule are estimated quantities and are not to be taken as the actual and correct quantities of the Works which the Contractor is required to execute; and
(d) any quantities or price data which may be set out in a Schedule shall be used for the purposes stated in the Schedule and may be inapplicable for other purposes.
However, if any part of the Works is to be paid according to quantity supplied or work done, the provisions for measurement and evaluation shall be as stated in the Particular Conditions. The Contract Price shall be determined accordingly, subject to adjustments in accordance with the Contract.
14.2 Advance Payment
The Employer shall make an advance payment, as an interest-free loan for mobilization and design, when the Contractor submits a guarantee in accordance with this Sub-Clause. The total advance payment, the number and timing of installments (If more than one), and the applicable currencies and proportions, shall be as stated in the Appendix to Tender.
Unless and until the Employer receives this guarantee, or if the total 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 installment 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 an entity 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.
The Contractor shall ensure that the 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 the 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 the guarantee until the advance Payment has been repaid.
The advance payment shall be repaid through percentage deductions in Payment Certificates. Unless other percentages are stated in the Appendix to Tender:
(a) deductions shall commence in the Payment Certificate in which the total of all certified interim payments (excluding the advance payment and deductions and repayments of retention)exceeds ten per cent(10％)of the Accepted Contract Amount less Provisional Sums; and
(b) deductions shall be made at the amortization rate of one quarter(25％)of the amount of each Payment Certificate(excluding the advance Payment and deductions and repayments of retention) in the currencies and proportions of the advance payment, until such time as the advance payment has been repaid.
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.
14.3 Application for Interim Payment Certificates
The Contractor shall submit a Statement in six copies to the Engineer after the end of the period of payment stated in the Contract (if not stated, after the end of each month), in a form approved by the Engineer, showing in detail the amounts to which the Contractor considers himself to be entitled, together with supporting documents which shall include the relevant report on progress in accordance with Sub-Clause 4.21 [Progress Reports]. The Statement shall include the following items, as applicable, which shall be expressed in the various currencies in which the Contract Price is payable, in the sequence listed:
(a) the estimated contract value of the Works executed and the Contractor’s Documents produced up to the end of the month (including Variations but excluding items described in sub-paragraphs (b) to (g) below):
(b) any amounts to be added and deducted for changes in legislation and changes in cost, in accordance with Sub-Clause 13.7[Adjustments for Changes in legislation] and Sub-Clause13.8 [Adjustments for Changes in Cost]:
(c) any amount to be deducted for retention, calculated by applying the percentage of retention stated in the Appendix to Tender to the total of the above amounts, until the amount so retained by the Employer reaches the Limit of Retention Money (if any)stated in the Appendix to Tender;
(d) any amounts to be added and deducted for the advance payment and repayments in accordance with Sub-Clause 14.2[Advance Payment];
(e) any amounts to be added and deducted for Plant and Materials in accordance with Sub-Clause14.5 [Pant and Materials intended for the Works];
(f) any other additions or deductions which may have become due under the Contract or otherwise, including those under Clause 20[Claims, Disputes and Arbitration]; and
(g) The deduction of amounts certified in all previous Payment Certificates.
14.4 Schedule of Payments
If the Contract includes a Schedule of Payments specifying the installments in which The Contract Price will be paid, then, unless otherwise stated in this Schedule:
(a) The installments quoted in the Schedule of Payments shall be the estimated Contract values for the purposes of sub-paragraph (a) of Sub-Clause 14.3 [Application for Interim Payment Certificates];
(b) Sub-Clause 14.5 [plant and Materials intended for the Works] shall not apply; and
(C) If these installments are not defined by reference to the actual progress achieved in executing the Works, and lf actual progress is found to be Less than that on which the Schedule of Payments was based, then the Engineer may proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine revised installments, which shall take account of the extent to which progress is less than that on which the installments were previously based.
If the Contract does not include a Schedule of Payments, the Contractor shall submit non-binding estimates of the payments which he expects to become due during each quarterly period. The first estimate shall be submitted within 42 days after the Commencement Date. Revised estimates shall be submitted at quarterly intervals, until the Taking-Over Certificate has been issued for the Works.
14.5 Plant and Materials intended for the Works
If this Sub-Clause applies, Interim Payment Certificates shall include, under sub-paragraph (e) of Sub-Clause 14.3, (i) an amount for Plant and Materials which have been sent to the Site for incorporation in the Permanent Works, and (ii) a reduction when the contract value of such Plant and Materials is included as part of the Permanent Works under sub-paragraph (a) of Sub-Clause14.3 [Application for Interim Payment Certificates].
If the lists referred to in sub-paragraphs (b) (i) or(c) (i) below are not included in the Appendix to Tender, this Sub-Clause shall not apply.
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 either: the relevant Plant and Materials:
(i) are those Listed in the Appendix to Tender for Payment when shipped.
(ii) have been shipped to the Country, en route to the Site, in accordance with the Contract; and
(iii) are described in a clean shipped bill of lading or other evidence of shipment, which has been submitted to the Engineer together with evidence of payment of freight and insurance, any other documents reasonably required, and a bank guarantee in a form and issued by an entity approved by the Employer in amounts and currencies equal to the amount due under this Sub-Clause: this guarantee may be in a similar form to the form referred to in Sub-Clause 14,2 [Advance Payment] and shall be valid until the Plant and Materials are properly stored on Site and protected against loss, damage or deterioration: or
(c) 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.
The additional amount to be certified shall be the equivalent of eighty percent of the Engineer’s determination of the cost of the Plant and Materials (including delivery to Site), taking account of the documents mentioned in this Sub-Clause and of the contract value of the Plant and Materials.
The currencies for this additional amount shall be the same as those in which payment Will become due when the contract value is included under sub-paragraph (a) of Sub-Clause 14.3 [Application for Interim Payment Certificates].Al that time, the Payment Certificate shall include the applicable reduction which shall be equivalent to, and in the same currencies and proportions as, this additional amount for the relevant Plant and Materials.
14.6 Issue of Interim Payment Certificates
No amount will be certified or paid until the Employer has received and approved the Certificates Performance Security. Thereafter, the Engineer shall, within 28 days after receiving a Statement and supporting documents, issue to the Employer an Interim Payment Certificate which shall state the amount which the Engineer fairly determines to be due, with supporting particulars.
However, prior to issuing the Taking-Over Certificate for the Works, the Engineer shall not be bound to issue an Interim Payment Certificate in an amount which would (after retention and other deductions) be less than the minimum amount of Interim Payment Certificates (if any) stated in the Appendix to Tender. In this event, the Engineer shall give notice to the Contractor accordingly.
An Interim Payment Certificate shall not be withheld for any other reason although:
(a) if any thing supplied or work done by the Contractor is not in accordance with the Contract, the cost of rectification or replacement may be withheld until rectification or replacement has been completed; and/or
(b) If the Contractor was or is failing to perform any work or obligation in accordance with the Contract, and had been so notified by the Engineer, the value of this work or obligation may be withheld until the work or obligation has been performed.
The Engineer may in any Payment Certificate make any correction or modification that should properly be made to any previous Payment Certificate. A Payment Certificate shall not be deemed to indicate the Engineer’s acceptance, approval, consent or satisfaction.
14.7 Payment
The Employer shall pay to the Contractor:
(a) the first installment of the advance payment within 42 days after issuing the Letter of Acceptance or within 21 days after receiving the documents in accordance with Sub-Clause 4.2[Performance Security]and Sub-Clause 14.2 [Advance Payment], whichever is Later;
(b) the amount certified in each Interim Payment Certificate within 56 days after the Engineer receives the Statement and supporting documents; and
(c) the amount certified in the Final Payment Certificate within 56 days after the Employer receives this Payment Certificate.
Payment of the amount due in each currency shall be made into the bank account, nominated by the Contractor, in the payment country(for this currency)specified in the Contract.
14.8 Delayed Payment
If the Contractor does not receive Payment in accordance with Sub-Clause 14.7 [Payment], the Contractor shall be entitled to receive financing charges compounded monthly on the amount unpaid during the period of delay. This period shall be deemed to commence on the date for payment specified in Sub-Clause 14.7[Payment].
irrespective (in the case of its sub-paragraph(b))of the date on which any Interim Payment Certificate is issued.
Unless otherwise stated in the Particular Conditions, these financing charges shall be calculated at the annual rate of three percentage points above the discount rate of the central bank in the country of the currency of payment, and shall be paid in such currency.
The Contractor shall be entitled to this payment without formal notice or certification and without prejudice to any other right or remedy.
14.9 Payment of Retention Money
When the Taking-Over Certificate has been issued for the Works, and the Works have passed all specified tests (including the Tests after Completion, if any), the first half of the
Retention Money shall be certified by the Engineer for payment to the Contractor. If a Taking-Over Certificate is issued for a Section, the relevant percentage of the first half of the Retention Money shall be certified and paid when the Section passes all tests. Promptly after the latest of the expiry dates of the Defects Notification Periods, the outstanding balance of the Retention Money shall be certified by the Engineer for payment to the Contractor. If a Taking-Over Certificate was issued for a Section, the relevant percentage of the second half of the Retention Money shall be certified and paid promptly after the expiry date of the Defects Notification Period for the Section.
However if any work remains to be executed under Clause11 [Defects Liability] or Clause 12[Tests after Completion], the Engineer shall be entitled to withhold certification of the estimated cost of this work until it has been executed.
The relevant percentage for each Section shall be the percentage value of the Section as stated in the Appendix to Tender. If the percentage value of a Section is not stated in the Appendix to Tender, no percentage of either half of the Retention Money shall be released under this Sub-Clause in respect of such Section.
