FIDIC 生产设备和设计-施工合同条件 (新黄皮书 英文版第2部分）

3 The Engineer
3.1 Engineer’s Duties and Authority
The Employer shall appoint the Engineer who shall carry out the duties assigned to him in the Contract. The Engineer’s staff shall include suitably qualified engineers and other professionals who are competent to carry out these duties.
The Engineer shall have no authority to amend the Contract the Engineer may exercise the authority attributable to the Engineer as specified in or necessarily to be implied from the Contract. If the Engineer is required to obtain the Approval of the Employer before exercising a specified authority, the requirements shall be as stated in the Particular Conditions. The Employer undertakes not to impose further constraints on the Engineer’s authority, except as agreed with the Contractor.
However, whenever the Engineer exercises a specified authority for which the Employer’s approval is required, then (for the purposes of the Contract) the Employer shall be deemed to have given approval.
Except as otherwise stated in these Conditions:
(a)  Whenever carrying out duties or exercising authority, specified in or implied by the Contract, the Engineer shall be deemed to act for the Employer;
(b)  The Engineer has no authority to relieve either Party of any duties, obligations or responsibilities under the Contract; and
(c)  Any approval, check, certificate, consent, examination, inspection, Instruction, Notice, proposal, request, test, or similar act by the Engineer (including absence Of disapproval shall not relieve the Contractor from any responsibility he has Under the Contract, including responsibility for errors, omissions, discrepancies and non-compliances.
 
3.2 Delegation by the Engineer
The Engineer may from time to time assign duties and delegate authority to assistants, and may also revoke such assignment or delegation. These assistants may Include a Resident engineer, and/or independent inspectors appointed to inspect and/or test items of Plant and/or Materials. The assignment, delegation or revocation shall be in writing and shall not take effect until copies have been received by both Parties.
However, unless otherwise agreed by both Parties, the Engineer shall not delegate the authority to determine any matter in accordance with Sub-Clause 3.5[Determinations]. Assistants shall be suitably qualified persons, who are competent to carry out these Duties and exercise this authority, and who are fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language].
Each assistant, to whom duties have been assigned or authority has been delegated, Shall only be authorized to issue instructions to the Contractor to the extent defined by the delegation. Any approval, check, certificate, consent, examination, inspection, Instruction, notice, proposal, request, test, or similar act by an assistant, in Accordance with the delegation, shall have the same effect as though the act had been an act of the Engineer. However:
(a)  Any failure to disapprove any work, Plant or Materials shall not constitute Approval, and shall therefore not prejudice the right of the Engineer to reject the Work, Plant or Materials;
(b)  If the Contractor questions any determination or instruction of an assistant, the Contractor may refer the matter to the Engineer, who shall promptly confirm, reverse or vary the determination or instruction.
 
3.3    Instructions of the Engineer
The Engineer may issue to the Contractor (at any time) instructions which may be Necessary for the execution of the Works and the remedying of any defects, all in accordance with the Contract. The Contractor shall only take instructions from the Engineer, or from an assistant to whom the appropriate authority has been delegated under this Clause. If an instruction constitutes a Variation, Clause 13 [Variations and Adjustments] shall apply.
The Contractor shall comply with the instructions given by the Engineer or delegated Assistant, on any matter related to the Contract. These instructions shall be given in writing.
 
3.4    Replacement o f the Engineer
If the Employer intends to replace the Engineer, the Employer shall, not less than 42 Days before the intended date of replacement, give notice to the Contractor of the name, address and relevant experience of the intended replacement Engineer. The Employer shall not replace the Engineer with a person against whom the Contractor raises reasonable objection by notice to the Employer, with supporting Particulars.
Whenever these Conditions provide that the Engineer shall proceed in accordance With this Sub-Clause 3.5 to agree or determine any matter, the Engineer shall consult with each Party in an endeavor to reach agreement. If agreement is not achieved, the Engineer shall make a fall determination in accordance with the Contract taking due regard of all relevant circumstances.
The Engineer shall give notice to both Parties of each agreement or determination, with supporting particulars. Each Party shall give effect to each agreement or Determination unless and until revised under Clause 20 [Claims, Disputes and Arbitration].
 
4 The contractor
4.1 Contractor’s General Obligations
The Contractor shall design, execute and complete the Works in accordance with the Contract, and shall remedy any defects in the Works. When completed, the Works shall Be fit for the purposes for which the Works are intended as defined in the Contract The Contractor shall provide the Plant and Contractor’s Documents specified in the Contract, and all Contractor’s Personnel, Goods, consumables and other things and Services, whether of a temporary or permanent nature, required in and for this design, Execution, completion and remedying of defects.
The Works shall include any work which is necessary to satisfy the employer’s Requirements, Contractor’s Proposal and Schedules, or is implied by the Contract, and all works which (although not mentioned in the Contract) are necessary for stability or for the completion, or safe and proper operation, of the Works.
The Contractor shall be responsible for the adequacy, stability and safety of all Sites Operations, of all methods of construction and of all the Works.
The Contractor shall, whenever required by the Engineer, submit details of the Arrangements and methods which the Contractor proposes to adopt for the execution of the Works. No significant alteration to these arrangements and Methods shall be made without this having previously been notified to the Engineer
 
4.2 Performance Security
The Contractor shall obtain (at his cost) a Performance Security for proper Performance, in the amount and currencies stated in the Appendix to Tender. If an amount is not stated in the Appendix to Tender, this Sub-Clause shall not apply.
The Contractor shall deliver the Performance Security to the Employer within 28 days after receiving the Letter of Acceptance, and shall send a copy to the Engineer. The Performance Security 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 Performance Security is valid and enforceable Until the Contractor has executed and completed the Works and remedied any defects. If the terms of the Performance Security specify its expiry date, and the Contractor has not become entitled to receive the Performance Certificate by the date 28 days prior to the expiry date, the Contractor shall extend the validity of the Performance Security until the Works have been completed and any defects have been remedied.
The Employer shall not make a claim under the Performance Security, except for amounts to which the Employer is entitled under the Contract in the event of:
(a)  Failure by the Contractor to extend the validity of the Performance Security as described in the preceding paragraph, in which event the Employer may claim the full amount of the Performance Security,
(b)  Failure by the Contractor to pay the Employer an amount due, as either agreed By the Contractor or determined under Sub-Clause 2.5[Employer’s Cairns] or Clause 20 [Claims, Disputes and Arbitration], within 42 days after this Agreement or determination,
(c)  Failure by the Contractor to remedy a default within 42 days after receiving the Employer’s notice requiring the default to be remedied, or
(d) Circumstances which entitle the Employer to termination under Sub-Clause 15.2[Termination by Employer], irrespective of whether notice of termination has been given.
The Employer shall indemnify and hold the Contractor harmless against and from all Damages, losses and expenses (including legal fees and expenses) resulting from a Claim under the Performance Security to the extent to which the Employer was not entitled to make the claim.
The Employer shall return the Performance Security to the Contractor within 21 days after receiving a copy of the Performance Certificate.
 
4.3 Contractor’s Representative
The Contractor shall appoint the Contractor’s Representative and shall give him all authority necessary to act on the Contractor’s behalf under the Contract.
Unless the Contractor’s Representative is named in the Contract, the Contractor shall, prior to the Commencement Date, submit to the Engineer for consent the name and Particulars of the person the Contractor proposes to appoint as Contractor’s Representative. If consent is withheld or subsequently revoked, or if the appointed Person fails to act as Contractor’s Representative, the Contractor shelf similarly submit the name and particulars of another suitable person for such appointment.
The Contractor shall not, without the prior consent of the Engineer, revoke the appointment of the Contractor’s Representative or appoint a replacement.
The whole time of the Contractor’s Representative shall be given to directing the Contractor’s performance of the Contract. If the Contractor’s Representative is to be Temporarily absent from the Site during the execution of the Works, a suitable Replacement person shall be appointed, subject to the Engineer’s prior consent, and the Engineer shall be notified accordingly.
The Contractor’s Representative shall, on behalf of the Contractor, receive instructions under Sub-Clause 3.3 [Instructions of the Engineer].
The Contractor’s Representative may delegate any powers, functions and authority to any competent person, and may at any time revoke the delegation. Any delegation or Revocation shall not take effect until the Engineer has received prior notice signed by The Contractor’s Representative, naming the person and specifying the powers, functions and authority being delegated or revoked.
The Contractor’s Representative and all these persons shall be fluent in the language for communications defined in Sub-Clause 1.4[Law and Language].
 
4.4 Subcontractors
The Contractor shall not subcontract the whole of the Works the Contractor shall be responsible for the acts or defaults of any Subcontractor his agents or employees, as if they were the acts or defaults of the Contractor. Unless otherwise stated in the Particular Conditions:
(a)  The Contractor shall not be required to obtain consent to suppliers of Materials, Or to a subcontract for which the Subcontractor is named in the Contract;
(b)  The prior consent of the Engineer shall be obtained to other proposed Subcontractors: and
(c)  The Contractor shall give the Engineer not is than 28 days, notice of the Intended date of the commencement of each Subcontractor’s work, and of the commencement of such work on the Site.
 
4.5 Nominated Subcontractors
In this Sub-Clause, “nominated Subcontractor” means a Subcontractor whom the Engineer, under Clause 13[Variations and Adjustment], instructs the Contractor to employ as a Subcontractor. The Contractor shall not be under any obligation to employ a nominated Subcontractor against whom the Contractor raises reasonable objection by notice to the Engineer as soon as practicable, with supporting particulars.
 
4.6 Co-operation
The Contractor shall, as specified in the Contract or as instructed by the Engineer allow appropriate opportunities for carrying out work to:
(a)   The Employer’s Personnel,
(b)   Any other contractors employed by the Employer, a and
(c)   The personnel of any legally constituted public authorities
Who may be employed in the execution on or near the Site of any work not included in the Contract.
Any such instruction shall constitute a Variation if and to the extent that it causes the Contractor to incur Unforeseeable Cost’ services for these personnel and other Contractors may include the use of Contractor’s Equipment, Temporary Works or access arrangements which are the responsibility of the Contractor.
The Contractor shall be responsible for his construction activities on the Site, and shall Co-ordinate his own activities with those of other contractors to the extent (If any) specified in the Employer’s Requirements.
If, under the Contract, the Employer is required to give to the Contractor possession of any foundation, structure, plant or means of access in accordance with Contractor’s Documents, the Contractor shall submit such documents to the Engineer in the time and manner stated in the Employer’s Requirements.
 
4.7    Setting Out
The Contractor shall set out the Works in relation to original points, lines and levels of reference specified in the Contract or notified by the Engineer. The Contractor shall be Responsible for the correct positioning of all parts of the Works, and shall rectify any error in the positions, levels, dimensions or alignment of the Works.
The Employer shall be responsible for any errors in these specified or notified items of Reference, but the Contractor shall use reasonable efforts to verify their accuracy before they are used.
If the Contractor suffers delay and/or incurs Cost from executing work which was Necessitated by an error in these items of reference, and an experienced contractor Could not reasonably have discovered such error and avoided this delay and/or Cost, 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 (I) whether and (if so) to what extent the Error could not reasonably have been discovered, and (ii) the matters described in sub-paragraphs (a) and (b) above related to this extent.
 
4.8 Safety Procedures
The Contractor shall:
(a)  Comply with all applicable safety regulations,
(b)  Take care for the safety of all persons entitled to be on the Site,
(c)  Use reasonable efforts to keep the Site and Works clear of unnecessary Obstruction so as to avoid danger to these persons,
(d)  Provide fencing, lighting, guarding and watching of the Works until completion and taking over under Clause 10[Employer’s Taking over], and
(a)  Provide any Temporary Works (including roadways, footways, guards and Fences) which may be necessary, because of the execution of the Works, for the use and protection of the public and of owners and occupiers of adjacent land.
 
4.9 Quality Assurance
The Contractor shall institute a quality assurance system to demonstrate compliance with the requirements of the Contract. The system shall be in accordance with the details stated in the Contract. The Engineer shall be entitled to audit any aspect of the system.
Details of all procedures and compliance documents shall be submitted to the Engineer for information before each design and execution stage is commenced.
When any document of a technical nature is issued to the Engineer, evidence of the prior approval by the Contractor himself shall be apparent on the document itself.
Compliance with the quality assurance system shall not relieve the Contractor of any of his duties, obligations or responsibilities under the Contract.
 
4.10   Site Data
The Employer shall have made available to the Contractor for his Information, prior to The Base Date, all relevant data in the Employer’s possession on sub-surface and hydrological conditions at the Site. Including environmental aspects. The Employer shall similarly make available to the Contractor all such data which come into the Employer’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, contingencies and other circumstances 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, its surroundings, the above data and other available information, and to have Been satisfied before submitting the Tender as to all relevant matters, including (without limitation):
(a)  the form and nature of the Site, including sub-surface conditions.
(b)  The hydrological and climatic conditions,
(c)  the extent and nature of the work and Goods necessary for the execution and completion of the Works and the remedying of any defects,
(c)  the Laws, procedures and labor practices of the Country, and
(e)  the Contractor’s requirements for access, accommodation, facilities, Personnel, power, transport, water and other services.
 
4.11 Sufficiency of the Accepted Contract Amount
The Contractor shall be deemed to:
(a)   have satisfied himself as to the correctness and sufficiency of the Accepted Contract Amount, and
(b)  have-based the Accepted Contract Amount on the data, interpretations’ necessary information, inspections, examinations and satisfaction as to all relevant matters referred to in Sub-Clause 4.10 [Site Data] and any further data relevant to the Contractor’s design. Unless otherwise stated in the Contract, the Accepted Contract Amount covers all the
Contractor’s obligations under the Contract (including those under Provisional Sums, if any) and all things necessary for the proper design, execution and completion of the Works and the remedying of any defects.
 
4.12 Unforeseeable Physical Conditions
In this Sub-Clause, “physical conditions” means natural physical conditions and man-made and other physical obstructions and pollutants, which the Contractor encounters at the Site when executing the Works, including sub-surface and hydrological conditions but excluding climatic conditions.
If the Contractor encounters adverse physical conditions which he considers to have been Unforeseeable, the Contractor shall give notice to the Engineer as soon as practicable. I his notice shall describe the physical conditions’ so that they can be inspected by the Engineer, and shall set out the reasons why the Contractor considers them to be Unforeseeable. I he Contractor shall continue executing the Works, using such proper and reasonable measures as are appropriate for the physical conditions, and shall comply with any instructions which the Engineer may give. If an instruction constitutes a Variation, Clause13 [Variations and Adjustments shall apply.
If and to the extent that the Contractor encounters physical conditions which are Unforeseeable, gives such a notice, and suffers delay and/or incurs Cost due to these Conditions, the Contractor 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 such notice and inspecting and/or investigating these physical Conditions, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) whether and (if so) to what extent these physical conditions were Unforeseeable, and (ii) the matters described in sub-paragraphs (a) and (b) above related to this extent.
However, before additional Cost is finally agreed or determined under sub-paragraph (ii).
The Engineer may also review whether other physical conditions in similar parts of the Works (if any) were more favorable than could reasonably have been foreseen when the Contractor submitted the Tender. If and to the extent that these more favorable conditions were encountered, the Engineer may proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine the reductions in Cost which were due to these conditions, which may be included (as deductions) in the Contract Price and Payment Certificates. However, the net effect of all adjustments under sub-paragraph (b) and all these reductions, for all the physical conditions encountered in similar parts of the Works’ shall not result in a net reduction in the Contract Price.
The Engineer may take account of any evidence of the physical conditions foreseen by the Contractor when submitting the Tender, which may be made available by the Contractor, but shall not be bound by any such evidence.
 
4.13 Rights of Way and Facilities
The Contractor shall bear all costs and charges for special and/or temporary rights. Of-way which he may require, including those for access to the Site. The Contractor shall also obtain, at his risk and cost, any additional facilities outside the Site which he may require for the purposes of the Works.
 
4.14 Avoidance of Interference
The Contractor shall not interfere unnecessarily or improperly with:
(a)     the convenience of the public, or
(b)     the access to and use and occupation of all roads and footpaths, irrespective of whether they are public or in the possession of the Employer or of others.
 
4.15    Access Route
The Contractor shall be deemed to have been satisfied as to the suitability and availability of access routes to the Site. The Contractor shall use reasonable efforts to prevent any road or bridge from being damaged by the Contractor’s traffic or by the Contractor’s Personnel. These efforts shall include the proper use of appropriate vehicles and routes.
Except as otherwise stated in these Conditions:
(a)  the Contractor shall (as between the Parties) be responsible for any maintenance which may be required for his use of access routes;
(b)  the Contractor shall provide all necessary signs or directions along access routes, and shall obtain any permission which may be required from the relevant authorities for his use of routes’ signs and directions;
(c)     the Employer shall not be responsible for any claims which may arise from the use or otherwise of any access route, and
(e)  cost due to non-suitability or non-availability, for the use required contractor, of access routes shall be borne by the contractor.
4.16 Transport of Goods
Unless otherwise stated in the Particular Conditions
(a)  the Contractor shall give the Engineer not less than 21 days, notice of the date
on which any Plant or a major item of other Goods will be delivered to the Site;
(b)  the Contractor shall be responsible for packing, loading, transporting, receiving,
unloading, storing and protecting all Goods and other things required for the
Works; and
(c)  the Contractor shall indemnify and hold the Employer harmless against and
from all damages, losses and expenses (including legal fees and expenses)
resulting from the transport of Goods. and shall negotiate and pay all claims
arising from their transport.
 
4.17 Contractor’s Equipment
The Contractor shall be responsible for all Contractor’s Equipment. When brought on to the Site, Contractor’s Equipment shall be deemed to be exclusively intended for the execution of the Works. The Contractor shall not remove from the Site any major items of Contractor’s Equipment without the consent of the Engineer. However, consent shall not be required for vehicles transporting Goods or Contractor’s Personnel off Site.
 
4.18 Protection of the Environment
(d)  The Contractor shall take all reasonable steps to protect the environment (both on and off the Site) and to limit damage and nuisance to people and property resulting from pollution, noise and other results of his operations.
The Contractor shall ensure that emissions, surface discharges and effluent from the Contractor’s activities shall not exceed the values indicated in the Employer’s Requirements, and shall not exceed the values prescribed by applicable Laws.
 
4.19 Electricity, Water and Gas
The Contractor shall, except as stated below, be responsible for the provision of all Power, water and other services he may require.
The Contractor shall be entitled to use for the purposes of the Works such supplies of electricity, water, gas and other services as may be available on the Site and of which details and prices are given in the Employer’s Requirements. The Contractor shall, at his risk and cost, provide any apparatus necessary for his use of these services and for measuring the quantities consumed.
The quantities consumed and the amounts due (at these prices) for such services shall be agreed or determined by the Engineer in accordance with Sub-Clause 2.5 [Employer’s Claims] and Sub-Clause 3.5 [Determinations].The Contractor shall pay these amounts to the Employer.
 
4.20 Employer’s Equipment and Free-Issue Material
The Employer shall make the Employer’s Equipment (if any) available for the use of the Contractor in the execution of the Works in accordance with the details, arrangements and prices stated in the Employer’s Requirements. Unless otherwise stated in the Employer’s Requirements:
(a)  the Employer shall be responsible for the Employer’s Equipment, except that
(b)  the Contractor shall be responsible for each item of Employer’s Equipment whilst any of the Contractor’s Personnel is operating it, driving it, directing it or in possession or control of it.
The appropriate quantities and the amounts due (at such stated prices) for the use of Employer’s Equipment shall be agreed or determined by the Engineer in accordance with Sub-Clause 2.5 [Employer’s Claims] and Sub-Clause 3.5 [Determinations]. The Contractor shall pay these amounts to the Employer.
The Employer shall supply, free of charge, the “free-issue materials” (if any) in accordance with the details stated in the Employer’s Requirements. The Employer shall, at his risk and cost, provide these materials at the time and place specified in the Contract. The Contractor shall then visually inspect them, and shall promptly give notice to the Engineer of any shortage, defect or default in these materials. Unless otherwise agreed by both Parties, the Employer shall immediately rectify the notified shortage, defect or default.
After this visual inspection, the free-issue materials shall come under the care, custody and control of the Contractor. The Contractor’s obligations of inspection, care, custody and control shall not relieve the Employer of liability for any shortage, defect or default not apparent from a visual inspection.
 
4.21 Progress Reports
Unless otherwise stated in the Particular Conditions, monthly progress reports shall be prepared by the Contractor and submitted to the Engineer in six copies. The first report shall cover the period up to the end of the first calendar month following the Commencement Date. Reports shall be submitted monthly thereafter, each within 7 days after the last day of the period to which it relates.
Reporting shall continue until the Contractor has completed all work which is known to be outstanding at the completion date stated in the Taking-Over Certificate for the Works.
Each report shall include
(a)  charts and detailed descriptions of progress, including each stage of design, Contractor’s Documents, procurement, manufacture, delivery to Site, Construction, erection, testing, commissioning and trial operation;
(b)  photographs showing the status of manufacture and of progress on the Site;
(c)  for the manufacture of each main item of Plant and Materials, the name of the manufacturer, manufacture location, percentage progress, and the actual or expected dates of:
(ⅰ)  commencement of manufacture
(ⅱ)  Contractor's inspections,
(ⅲ)  tests, and
(ⅳ)  shipment and arrival at the Site;
(d)  the details described in Sub-Clause 6.10 [Records of Contractor’s Personnel and Equipment];
(e)  copies of quality assurance documents, test results and certificates of Materials;
(f)  list of Variations, notices given under Sub-Clause 2.5 [Employer’s Claims] and notices given under Sub-Clause 20.1 [Contractor’s Claims];
(g)  safety statistics, including details of any hazardous incidents and activities relating to environmental aspects and public relations; and
(h)  comparisons of actual and planned progress, with details of any events or circumstances which may jeopardize the completion in accordance with the Contract, and the measures being (or to be) adopted to overcome delays.
 
4.22 Security of the Site  
Unless otherwise stated in the Particular Conditions:
(a)  the Contractor shall be responsible for keeping unauthorized persons off the Site, and
(b)  authorized persons shall be Limited to the Contractor’s Personnel and the Employer’s Personnel; and to any other personnel notified to the Contractor, by the Employer or the Engineer, as authorized personnel of the Employer’s other contractors on the Site.
 
4.23 Contractor’s Operations on site
The Contractor shall confine his operations to the Site, and to any additional areas which may be obtained by the Contractor and agreed by the Engineer as working areas. The Contractor shall take all necessary precautions to keep Contractor’s Equipment and Contractor’s Personnel within the Site and these additional areas, and to keep them off adjacent land.
During the execution of the Works, the Contractor shall keep the Site free from all unnecessary obstruction, and shall store or dispose of any Contractor’s Equipment or surplus materials. The Contractor shall clear away and remove from the Site any wreckage, rubbish and Temporary Works which are no longer required.
Upon the issue of a Taking-Over Certificate, the Contractor shall clear away and Remove, from that part of the Site and Works to which the Taking-Over Certificate Refers, all Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works. The Contractor shall Leave that part of the Site and the Works in a clean and safe condition. However, the Contractor may retain on Site, during the Defects Notification Period, such Goods as are required for the Contractor to fulfill obligations under the Contract.
 
4.24   Fossils
 
All fossils, coins, articles of value or antiquity, and structures and other remains or items of geological or archaeological interest found on the Site shall be placed under the care and authority of the Employer. The Contractor shall take reasonable precautions to prevent Contractor’s Personnel or other persons from removing or damaging any of these findings.
The Contractor shall, upon discovery of any such finding, promptly give notice to the Engineer, who shall issue instructions for dealing with it. If the Contractor suffers delay and/or incurs Cost from complying with the instructions, the Contractor shall give a further 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 further notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters.
 
5  Design
5.1 General Design Obligations
the Contractor shall carry out, and be responsible for, the design of the Works. Design shall be prepared by qualified designers who are engineers or other professionals who comply with the criteria (if any) stated in the Employer’s Requirements. Unless otherwise stated in the Contract, the Contractor shall submit to the Engineer for consent the name and particulars of each proposed designer and design Subcontractor.
The Contractor warrants that he, his designers and design Subcontractors have the experience and capability necessary for the design. The Contractor undertakes that the designers shall be available to attend discussions with the Engineer at all reasonable times, until the expiry date of the relevant Defects Notification Period.
Upon receiving notice under Sub-Clause 8. 1[Commencement of Works], the Contractor shall scrutinize the Employer’s Requirements (including design criteria and Calculations, if any) and the items of reference mentioned in Sub-Clause 4.7 [Setting Out]. Within the period stated in the Appendix to Tender, calculated from the Commencement Date, the Contractor shall give notice to the Engineer of any error, fault or other defect found in the Employer’s Requirements or these items of reference.
After receiving this notice, the Engineer shall determine whether Clause 13 [Variations and Adjustments] shall be applied, and shall give notice to the Contractor accordingly. If and to the extent that (taking account of cost and time) an experienced contractor exercising due care would have discovered the error, fault or other defect when examining the Site and the Employer’s Requirements before submitting the Tender, the Time for Completion shall not be extended and the Contract Price shall not be adjusted.
 
5.2   Contractor’s Documents
The Contractor’s Documents shall comprise the technical documents specified in the Employer’s Requirements, documents required to satisfy all regulatory approvals, and the documents described in Sub-Clause 5.6 [As-Built Documents, and Sub-Clause 5.7 [Operation and Maintenances Manuals].Unless otherwise stated in the Employer’s Requirements, the Contractor’s Documents shall be written in the language for communications defined in Sub-Clause 1.4 [Law and Language] The Contractor shall prepare all Contractor’s Documents, and shall also prepare any other documents necessary to instruct the Contractor’s Personnel. The Employer’s Personnel shall have the right to inspect the preparation of all these documents, wherever they are being prepared.
If the Employer’s Requirements describe the Contractor’s Documents which are to be submitted to the Engineer for review and/or for approval, they shall be submitted accordingly, together with a notice as described below. In the following provisions of this Sub-Clause, (i)” review period “means the period required by the Engineer for review and (if so specified) for approval, and (ii)” Contractor’s Documents” exclude any documents  which are not specified as being required to be submitted for review And/or for approval.
Unless otherwise stated in the Employer’s Requirements, each review period shall not exceed 21 days, calculated from the date on which the Engineer receives a Contractor’s Document and the Contractor’s notice. This notice shall state that the Contractor’s Document is considered ready, both for review (and approval, if so specified) in accordance with this Sub-Clause and for use. The notice shall also state that the Contractor’s Document complies with the Contract, or the extent to which it does not comply.
The Engineer may, within the review period, give notice to the Contractor that a Contractor’s Document fails (to the extent stated) to comply with the Contract. If a Contractor’s Document so fails to comply, it shall be rectified, resubmitted and reviewed (and, if specified, approved) in accordance with this Sub-Clause, at the Contractor’s cost. For each part of the Works, and except to the extent that the prior approval or consent of the Engineer shall have been obtained:
(a)  in the case of a Contractor’s Document which has (as specified) been submitted for the Engineer’s approval:
(ⅰ)  the Engineer shall give notice to the Contractor that the Contractor’s Document is approved, with or without comments, or that it fails (to the extent stated) to comply with the Contract;
(ii)  execution of such part of the Works shall not commence until the Engineer has approved the Contractor’s Document; and
(iii)  the Engineer shall be deemed to have approved the Contractor’s Document upon the expiry of the review periods for all the Contractor’s Documents which are relevant to the design and execution of such part, unless the Engineer has previously notified otherwise in accordance with sub-paragraph (i):
(b)  execution of such part of the Works shall not commence prior to the expiry of the review periods for all the Contractor’s Documents which are relevant to its design and execution;
(c)  execution of such part of the Works shall be in accordance with these reviewed (and, if specified, approved) Contractor’s Documents; and
(d)  if the Contractor wishes to modify any design or document which has previously been submitted for review (and, if specified, approval), the Contractor shall immediately give notice to the Engineer. Thereafter, the Contractor shall submit revised documents to the Engineer in accordance with the above procedure.
If the Engineer instructs that further Contractor’s Documents are required, the Contractor shall prepare them promptly.
Any such approval or consent, or any review (under this Sub-Clause or otherwise) shall not relieve the Contractor from any obligation or responsibility
 
5.3     Contractor’s Undertaking
The Contractor undertakes that the design, the Contractor’s Documents, the execution and the completed Works will be in accordance with:
(a)  the Laws in the Country, and
(b)  the documents forming the Contract, as altered or modified by Variations
 
5.4     Technical Standards and Regulations
The design, the Contractor’s Documents, the execution and the completed Works shall comply with the Country’s technical standards, building, construction and environmental Laws, Laws applicable to the product being produced from the Works, and other standards specified in the Employer’s Requirements, applicable to the Works, or defined by the applicable Laws.
All these Laws shall, in respect of the Works and each Section, be those prevailing when the Works or Section are taken over by the Employer under Clause 10 [Employer’s Taking Over].References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date, unless stated otherwise.
If changed or new applicable standards come into force in the Country after the Base Date, the Contractor shall give notice to the Engineer and (if appropriate) submit proposals for compliance. In the event that:
(a)  the Engineer determines that compliance is required, and
(b)  the proposals for compliance constitute a variation,
then the Engineer shall initiate a Variation in accordance with Clause 13 [Variations and Adjustments].
 
5.5  Training
The Contractor shall carry out the training of Employer’s Personnel in the operation and maintenance of the Works to the extent specified in the Employer’s Requirements. If the Contract specifies training which is to be carried out before Taking-over, the Works shall not be considered to be completed for the purposes of Taking-over under Sub-Clause 10.1 [Taking 0ver of the Works and Sections until this training has been completed.
 
5.6  As-Built Documents
The Contractor shall prepare, and keep up-to-date, a complete set of “as-built” records of the execution of the Works, showing the exact as-built locations, sizes and details of the work as executed. These records shall be kept on the Site and shall be used exclusively for the purposes of this Sub-Clause. Two copies shall be supplied to the Engineer prior to the commencement of the Tests on Completion.
In addition, the Contractor shall supply to the Engineer as-built drawings of the Works, showing all Works as executed, and submits them to the Engineer for review under Sub-Clause 5.2 [Contractor’s Documents]. The Contractor shall obtain the consent of the Engineer as to their size, the referencing system, and other relevant details.
Prior to the issue of any Taking-Over Certificate, the Contractor shall supply to the Engineer the specified numbers and types of copies of the relevant as-built drawings, in accordance with the Employer’s Requirements. The Works shall not be considered to be completed for the purposes of taking-over under Sub-Clause 10.1[Taking Over of the Works and Sections] until the Engineer has received these documents.
 
5.7 Operation and Maintenance Manuals
Prior to commencement of the Tests on Completion, the Contractor shall supply to the Engineer provisional operation and maintenance manuals in sufficient detail for the Employer to operate, maintain, dismantle, reassemble, adjust and repair the Plant.
The Works shall not be considered to be completed for the purposes of taking-over under Sub-Clause 10.1 [Taking Over of the Works and Sections]until the Engineer has received final operation and maintenance manuals in such detail, and any other manuals specified in the Employer’s Requirements for these purposes.
 
5.8  Design Error
If errors, omissions, ambiguities, inconsistencies, inadequacies or other defects are found in the Contractor’s Documents, they and the Works shall be corrected at the Contractor’s cost, notwithstanding any consent or approval under this Clause.
 
6.1 Engagement of Staff and Labor
Except as otherwise stated in the Employer’s Requirements, the Contractor shall make arrangements for the engagement of all staff and labor, local or otherwise, and for their payment, housing, feeding and transport.
 
6.2  Rates of Wages and Conditions of Labor
The Contractor shall Pay rates of wages, and observe conditions of labor, which are not Lower than those established for the trade or industry where the work IS carried out. If no established rates or conditions are applicable, the Contractor shall pay rates of wages and observe conditions which are not lower than the general Level of wages and conditions observed locally by employers whose trade or industry is similar to that of the Contractor.
 
6.3  Persons in the Service of Employer
The Contractor shall not recruit, or attempt to recruit, staff and labor from amongst the Employer’s Personnel.
 
6.4 Labor Laws
The Contractor shall comply with all the relevant labor Laws applicable to the Contractor’s Personnel, including Laws relating to their employment, health, safety, Welfare, immigration and emigration, and shall allow them all their legal rights.
The Contractor shall require his employees to obey all applicable Laws, including those concerning safety at work.
 
6.5  Working Hours
No work shall be carried out on the Site on locally recognized days of rest, or outside the normal working hours stated in the Appendix to Tender, unless:
(a)  otherwise stated in the Contract,
(b)  the Engineer gives consent, or
(c)  the work is unavoidable, or necessary for the protection of life or property or for the safety of the Works, in which case the Contractor shall immediately advise the Engineer.
 
6.6  Facilities for Staff and Labor
Except as otherwise stated in the Employer’s Requirements, the Contractor shall provide and maintain all necessary accommodation and welfare facilities for the Contractor’s Personnel. The Contractor shall also provide facilities for the Employer’s Personnel as stated in the Employer’s Requirements.
The Contractor shall not permit any of the Contractor’s Personnel to maintain any temporary or permanent living quarters within the structures forming part of the Permanent Works.
 
6.7  Health and Safety
The Contractor shall at all times take all reasonable precautions to maintain the health and safety of the Contractor’s Personnel. In collaboration with local health authorities. the Contractor shall ensure that medical staff, first aid facilities, sick bay and ambulance services are available at all times at the Site and at any accommodation for Contractor’s and Employer’s Personnel, and that suitable arrangements are made for all necessary welfare and hygiene requirements and for the prevention of epidemics.
The Contractor shall appoint an accident prevention officer at the Site, responsible for maintaining safety and protection against accidents. This person shall be qualified for this responsibility, and shall have the authority to issue instructions and take protective measures to prevent accidents. Throughout the execution of the Works, the Contractor shall provide whatever is required by this person to exercise this responsibility and authority.
The Contractor shall send, to the Engineer, details of any accident as soon as practicable after its occurrence. The Contractor shall maintain records and make reports concerning health, safety and welfare of persons, and damage to property, as the Engineer may reasonably require.
 
6.8 Contractor’s Superintendence
Throughout the design and execution of the Works, and as long thereafter as is necessary to fulfill the Contractor’s obligations, the Contractor shall provide all necessary superintendence to plan, arrange, direct, manage, inspect and test the work.
Superintendence shall be given by a sufficient number of persons having adequate knowledge of the language for communications(defined in Sub-Clause 1.4 [Law and Language]) and of the operations to be carried out (including the methods and techniques required, the hazards likely to be encountered and methods of preventing accidents), for the satisfactory and safe execution of the Works.
 
6.9 Contractor’s Personnel
The Contractor’s Personnel shall be appropriately qualified, skilled and experienced in their respective trades or occupations. The Engineer may require the Contractor to remove (or cause to be removed) any person employed on the Site or Works, including the Contractor’s Representative if applicable, who:
(a)  persists in any misconduct or lack of care.
(b)  carries out duties incompetently or negligently,
(c)  fails to conform with any provisions of the Contract, or
(d)  persists in any conduct which is prejudicial to safety, health, or the protection of the environment.
If appropriate, the Contractor shall then appoint (or cause to be appointed) a suitable replacement person.
 
6.10 Records of Contractor’s Personnel and Equipment
The Contractor shall submit, to the Engineer, details showing the number of each class of Contractor’s Personnel and of each type of Contractor’s Equipment on the Site. Details shall be submitted each calendar month, in a form approved by the Engineer, until the Contractor has completed all work which is known to be outstanding at the completion date stated in the Taking-Over Certificate for the Works.
 
6.11  Disorderly Conduct
The Contractor shall at all times take all reasonable precautions to prevent any unlawful, riotous or disorderly conduct by or amongst the Contractor’s Personnel, and to preserve peace and protection of persons and property on and near the Site.
 
7  Plant, Materials and Workmanship
7.1  Manner of Execution
The Contractor shall carry out the manufacture of Plant, the production and manufacture of Materials, and all other execution of the Works:
(a)  in the manner (if any) specified in the Contract,
(b)  in a proper workmanlike and careful manner, in accordance with recognized good practice, and
(c)  with properly equipped facilities and non-hazardous Materials, except as otherwise specified in the Contract.
 
7.2  Samples
The Contractor shall submit the following samples of Materials, and relevant Information, to the Engineer for review in accordance with the procedures for Contractor’s Documents described in Sub-Clause 5.2 [Contractor’s Documents]:
(a)  manufacturer’s standard samples of Materials and samples specified in the Contract, all at the Contractor’s cost, and
(b)  additional samples instructed by the Engineer as a Variation.
Each sample shall be labeled as to origin and intended use in the Works
 
7.3  Inspection
The Employer’s Personnel shall at all reasonable times:
(a)  have full access to all parts of the Site and to all places from which natural Materials are being obtained, and
(b)  during production, manufacture and construction (at the Site and elsewhere), be entitled to examine, inspect, measure and test the materials and workmanship, and to check the progress of manufacture of Plant and production and manufacture of Materials.
The Contractor shall give the Employer’s Personnel full opportunity to carry out these activities, including providing access, facilities, permissions and safety equipment. No such activity shall relieve the Contractor from any obligation or responsibility.
The Contractor shall give notice to the Engineer whenever any work is ready and before it is covered up, put out of sight, or packaged for storage or transport. The Engineer shall then either carry out the examination, inspection, measurement or testing without unreasonable delay, or promptly give notice to the Contractor that the Engineer does not require to do so. If the Contractor fails to give the notice, he shall, lf and when required by the Engineer, uncover the work and thereafter reinstate and make good, all at the Contractor’s cost.
 
7.4 Testing
This Sub-Clause shall apply to all tests specified in the Contract, other than the Tests after Completion (if any).
The Contractor shall provide all apparatus, assistance, documents and other information, electricity, equipment, fuel, consumables, instruments, labor, materials, and suitably qualified and experienced staff, as are necessary to carry out the specified tests efficiently. The Contractor shall agree, with the Engineer, the time and place for the specified testing of any Plant, Materials and other parts of the Works.
The Engineer may, under Clause 1 3[Variations and Adjustments], vary the location or details of specified tests, or instruct the Contractor to carry out additional tests. If these varied or additional tests show that the tested Plant, Materials or workmanship is not in accordance with the Contract, the cost of carrying out this Variation shall be borne by the Contractor, notwithstanding other provisions of the Contract.
The Engineer shall give the Contractor not less than 24 hours’ notice of the Engineer’s intention to attend the tests. If the Engineer does not attend at the time and place agreed, the Contractor may proceed with the tests, unless otherwise instructed by the Engineer, and the tests shall then be deemed to have been made in the Engineer’s presence.
If the Contractor suffers delay and/or incurs Cost from complying with these instructions or as a result of a delay for which the Employer is responsible, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
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 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.
The Contractor shall promptly forward, to the Engineer duly certified reports of the tests. When the specified tests have been passed, the Engineer shall endorse the Contractor’s test certificate. or issue a certificate to him, to that effect. If the Engineer has not attended the tests, he shall be deemed to have accepted the readings as accurate.
 
7.5  Rejection
If as a result of an examination, inspection, measurement or testing, any Plant, Materials, design or workmanship is found to be defective or otherwise not in accordance with the Contract, the Engineer may reject the Plant, Materials, design or workmanship by giving notice to the Contractor, with reasons. The Contractor shall then promptly make good the defect and ensure that the rejected item complies with the Contract.
If the Engineer requires this Plant, Materials, design or workmanship to be retested, the tests shall be repeated under the same terms and conditions. If the rejection and retesting 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.
 
7.6  Remedial Work
Notwithstanding any previous test or certification, the Engineer may instruct the Contractor to:
(a)  remove from the Site and replace any Plant or Materials which is not in accordance with the Contract,
(b)  remove and re-execute any other work which is not in accordance with the Contract, and
(c)  execute any work which is urgently required for the safety of the Works, whether because of an accident, unforeseeable event or otherwise.
The Contractor shall comply with the instruction within a reasonable time, which shat be the time (if any) specified in the instruction, or immediately if urgency is specifies under sub-paragraph(c).
If the Contractor fails to comply with the instruction, the Employer shall be entitled to employ and pay other persons to carry out the work. Except to the extent that the Contractor would have been entitled to payment for the work, the Contractor shall Subject to sub-clause 2.5 [employer’s claims] pay to the employer all costs arising from this failure.
 
7.7  Ownership of Plant and Materials
Each item of Plant and Materials shall, to the extent consistent with the Laws of the Country, become the property of the Employer at whichever is the earlier of the following times, free from liens and other encumbrances:
(a)  when it is delivered to the Site;
(b) when the Contractor is entitled to payment of the value of the Plant and Materials under Sub-Clause 8.10 payment for Plant and Materials in Event of Suspension].
 
7.8  Royalties
Unless otherwise stated in the Employer’s Requirements, the Contractor shall pay loyalties, rents and other payments for:
(a)  natural Materials obtained from outside the Site, and
(b)  the disposal of material from demolitions and excavations and of other surplus material (whether natural or man-made), except to the extent that disposal areas within the Site are specified in the Contract.
 
8  Commencement, Delays and Suspension
8.1  Commencement of Work
The Engineer shall give the Contractor not less than 7 days, notice of the Commencement Date. Unless otherwise stated in the Particular Conditions, the Commencement Date shall be within 42 days after the Contractor receives the Letter of Acceptance.
The Contractor shall commence the design and execution of the Works as soon as is reasonably practicable after the Commencement Date, and shall then proceed with the Works with due expedition and without delay.
 
8.2  Time for Completion
The Contractor shall complete the whole of the Works, and each Section (if any) within the Time for Completion for the Works or Section (as the case may be) including:
(a)  achieving the passing of the Tests on Completion, and
(b)  completing all work which is stated in the Contract as being required for the Works or Section to be considered to be completed for the purposes of taking-over under Sub-Clause 10.1 [Taking Over of the Works and Sections].
 
8.3  Program
The Contractor shall submit a detailed time program to the Engineer within 28 days after receiving the notice under Sub-Clause 8.1 [Commencement of Works].The Contractor shall also submit a revised program whenever the previous program is inconsistent with actual progress or with the Contractor’s obligations. Each program shall include:
(a)  the order in which the Contractor intends to carry out the Works, including the anticipated timing of each stage of design, Contractor’s Documents, procurement, manufacture, inspection, delivery to Site, construction, erection, testing, commissioning and trial operation,
(b)  the periods for reviews under Sub-Clause 5.2 [Contractor’s Documents and for any other submissions, approvals and consents specified in the Employer’s Requirements,
(c)  the sequence and timing of inspections and tests specified in the Contract, and
(d)  a supposing report which includes:
(ⅰ)  a general description of the methods which the Contractor intends to adopt, and of the major stages, in the execution of the Works, and
(ⅱ)  details showing the Contractor's reasonable estimate of the number of each class of Contractor's Personnel and of each type of Contractor's Equipment, required on the Site for each major stage.
Unless the Engineer, within 21 days after receiving a program, gives notice to the Contractor stating the extent to which it does not comply with the Contract, the Contractor shall proceed in accordance with the program, subject to his other obligations under the Contract. The Employer’s Personnel shall be entitled to rely upon the program when planning their activities.
The Contractor shall promptly give notice to the Engineer of specific probable future events or circumstances which may adversely affect the work increase the Contract Price or delay the execution of the Works. The Engineer may require the Contractor to submit an estimate of the anticipated effect of the future event or circumstances, and/or a proposal under Sub-Clause13.3 [Variation Procedure].
If, at any time, the Engineer gives notice to the Contractor that a program fails (to the extent stated) to comply with the Contract or to be consistent with actual progress and the Contractor’s stated intentions, the Contractor shall submit a revised program to the Engineer in accordance with this Sub-Clause
 
8.4  Extension of Time for Completion
The Contractor shall be entitled subject to Sub-Clause 20.1[Contractor’s Claims] to an extension of the Time for Completion if and to the extent that completion for the purposes of Sub-Clause 10.1 Faking Over of the Works and Sections] is or will be delayed by any of the following causes:
(a)  a Variation (unless an adjustment to the Time for Completion has been agreed under Sub-Clause13.3 [Variation Procedure]),
(b)  a cause of delay giving an entitlement to extension of time under a Sub-Clause of these Conditions,
(c)  exceptionally adverse climatic conditions,
(d)  Unforeseeable shortages in the availability of personnel or Goods caused by epidemic or governmental actions, or
(e)  any delay, impediment or prevention caused by or attributable to the Employer, the Employer’s Personnel, or the Employer’s other contractors on the Site.
If the Contractor considers himself to be entitled to an extension of the Time for Completion, the Contractor shall give notice to the Engineer in accordance with Sub-Clause 20.1[Contractor’s Claims]. When determining each extension of time under Sub-Clause 20.1, the Engineer shall review previous determinations and may Increase, but shall not decrease, the total extension of time.