“ 23-24 August, 2012, Mumbai S 27-28 August, 2012, Chennai 30-31 August, 2012, Delhi Workshop on “Avoidance & Management of claims & Disputes under FIDIC (including CONS, P & DB, MDB)”An Outstanding Two-Days Workshop on... AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (including CONS, P & DB, MDB) Aug 23/24, Mumbai ‘Aug 2728, Chennal ‘Aug 30/31, Delhi Objective / Overview of the workshop : In the current economic climate, the last thing one needs on a projectis an increase in spending, It affects everybody from the Lender through tite Employer and Contractor to the Sub Contractors and Suppliers, To this end, this course looks to provide a guide to preventing the main ingredients of additional cost on projects or atleast managing them within tolerable levels. ‘Outcomes of the workshop : Although mainly centred on the FIDIC Form of Contract, the attendees will learn valuable and practical advice that will enable them to build on their knowledge in terms of claims and disputes on other formsas well Grey cia Coun) Registration ls Strongly Advised | cece aa aie econ en ee fi teed Cee MO ee Cc ed Ring+31 88208 18526 for more details foe Ro ea iy rae Ree‘AVOIDANCE AND MANAGE a AN, ise OS AOU at eM GONS, P. & DB, MDB) Your Expert Course Director Malcolm Kelly, BSc. Dip Arb, CEng. MICE, FCLArb INTERNATIONAL CONSTRUCTION DISPUTE MANAGER Chartered Civil Engineer with qualifications in arbitration having extensive experience of construction and dispute management involving major highways and bridges; power plants; airports; railways; waterways; waste water treatment plants; buildings and other infrastructure projects. Extensive experience in Contract and Construction Dispute Management carried out in UK and overseas in Central and Eastern Europe; Central America; Africa; Middle East and Asia and includes + Advising & preparation and checking of tender and contract documents including contract conditions (FIDIC, ICE, NECand bespoke); specifications; bills of quantities and the like; + Managing construction projects as The Engineer, Project Manager or Resident Engineer under FIDIC, ICE, NEC and bespoke contract forms; + Managing contractual claims and disputes under FIDIC, ICE, NEC, JCT, MF2 and bespoke forms; + Representing and assisting Employers, contractors to prepare, present or defend eases at arbitration or adjudication under FIDIC, ICB, NEC, JCT and bespoke forms; . Auditing various bodies in respect of compliance with contract and procurement procedures; + Providing training in respect of Contracts, Adjudication, roles and responsibilities and Dispute Adjudication Boards. + Adjudicatoron several projectsinUK. FIDIC President and Dispute Board Federation Listed Adjudicator. Experience as DAB Chairman in Tanzania and Swaziland and DAB Member in Estonia, Romania, nee Sacro! ous foo: ‘Why you must not miss this Course? This course will study the fundamental reasons as to why claims and disputes arise and provide assistance and guidance in preventing or managing them to the benefit of the projects and the individuals and their companies. Who should attend? This course will be of interest to those of all Ievels involved in construction and engineering projects, including Lenders, Owners and their Representatives, Contractors, Sub Contractors, Suppliers, Consultants, Insurers and Lawyers in Construction & Infrastructure, Nuclear, Power & Energy, Oil & Gas, Petrochemicals, Process, Airports & Railways, Government Structures, Transportation, Retail & Commercial, Heavy Industrial and 2 Projects.Cat CG Oat ¢ C ¢ eo0cas 08.00 REGISTRATION 1430 THE ROLE OF THE CONTRACTOR 0830 INTRODUCTION + Pre-Tender Submission ‘* Disputes cost money — lots of it! © Staff Procurement © Whatis a Claim? . Site Inspections ® Common causes of Claims © Realistic submissions @ Whatis a Dispute? © Understanding of the Risks © How do Disputes arise? * Constn mn © Provision of Resources © Contract Administration (Construction) © Contract Administration (Commercial) © Liaison * Post Construction © Contact with the Employer 00 THE ROLE OF THE CONTRACTOR (continued) (As from previous session) 09.00 FUNCTIONS AND RESPONSIBILITY + The TEAM © Pre-Construction © Consiruction © Post Construction © Records © Settlement "SCENARIO FOR INTERAC WORKS! ferences/simi 0 are Engineer and the Employer's : Pre-Construction f ‘ .00 . CASE STUDY 1 © Staff Procurement , Provision of Drawings and Documents Assistance to the Exile © Training : 13.30 CASE STUDY 2 Construction . + Covering aspects of Programming 1430. CASE STUDY 3 Taare fons + Taking Over ©" Conirast Administration (Consinetion) 1600 CASE STUDY 4 ® Lisison + Post Construction Assistance to the Employer ; * Provision of Records oe 14,00. THE ROLE OF THE ENGINEER! EMPLOYER'S REPRESENTATIVE (continued) (As from Morning Session) ‘Use of the DB Process 17.00 QUESTIONS 5 ADJOURN eee ears Teal oeAVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) Day1 - Session1AVOIDANCE AND MANAGEMENT OF CLAIMS AND DISPUTES NDER FIDIC (INCLUDING CONS, P| & DB, MDB) , DAY | SESSION 1 Malcolm Kelly malcolm@yllek100.freeserve.co.uk Cell +44 7966103853ACCAaAQ0 FORMAT oDay 1 ¢ Introduction ¢ Understanding roles and functions of the various +Players’ ¢ Issues arising from those roles and functions under FIDIC forms of Contract ¢ How to avoid claims and disputes by understanding how they arise o Day 2 ¢ Dispute Boards and their potential and use towards claim and dispute avoidance ¢ Interactive workshopINTRODUCTION o Disputes cost money - LOTS of it o Disputes cause stress o Disputes spoil relationships o Disputes disrupt and cause delay o Disputes detract from the purpose of the ProjectINTRODUCTION o What is a Claim? ¢ Generally a +Contractual Right’; eg oAclaim for payment oAclaim for more timeINTRODUCTION o Common causes of a claim eee ee mm eer reer ree eee ene Regular payments under the contract for work done Poor/wrong strategy Poor documents Poor communications Misunderstanding of the terms and conditions Instructions Variations Poor contract administration Insufficient funds Poor staff Poor records Breach of Contract Late payment or certification Unforeseeable ground conditions Force Majeure Suspension Late payments Quality below expectation Delay in completion Slow rate of progress Failure of tests Defective materialsINTRODUCTION o What is a Dispute? ¢ Definition: o Any statement, complaint, request, allegation or claim, which has been rejected and the rejection is not acceptable to the person who made the original ~ statement , complaint, request, allegation or claim. o *Dispute’ means any situation where (a) one Party makes a claim against the other Party and (b) the other Party rejects the claim in whole or in part; and (c) the first Party does not acquiesce, provided however that a failure by the other Party to oppose or respond to the claim, in whole or in part, may constitute a rejection if, in the circumstances the DAB or arbitrator as the case may be, deem it reasonable for it to do so. [SC L131 of the Gold Book] ©INTRODUCTION o How do Disputes arise? ¢ Poor/wrong strategy ¢ Poor Communications structure ¢ Oral/verbal instructions « Misunderstanding of the terms and conditions ¢ Parties become entrenched ¢ Parties do not speak to each other ¢ Contract avoidance e Inability to pay ¢ Unrealistic time-scales ¢ Broken promises ¢ Poor Contract administration ¢ Non-resolution of claimsFUNCTIONS AND RESPONSIBILITYTHE TEAMRt Gimeno tem i | f Dione ones Utero Resources PRE-CONSTRUCTIONerurens nen CONSTRUCTION DISPUTE Teleyiats) “|c “ Be av roieen tut E 7 RON er FG ce reas oe POST-CONSTRUCTIONTHE ROLE OF THE EMPLOYER o Remember what I told you!!!PRE-CONSTRUCTION — SOME PITFALLS o Strategy ¢ Wrong Contract Form o Avoidance of Legal advice o Staff Procurement + Wrong Project Management Team o Human Resources o Planning o Design « Use of In-House or Consultant o Documents ¢ No Checks o Choice of Contract Administrator + Un-wise choice and too late o Tender preparation and evaluation * Unsure you know what you want - transparency o Choice of Contractor * Un-wise choiceSTRATEGY actors affecting Choice Why FIDIC? ich +Colour’? ender Dossier”?FACTORS AFFECTING CHOICE @ Type and size of project Funding Risk allocation and where best managed ® Importance of performance of the works Certainty of cost or lowest cost = Location & Time Constraints and Pressures & Designer Expertise Experience: = Employer = Contractor « SupervisorWHO DOES WHAT? & Project/Programme Manager = Design and Management Role « What are the responsibilities? - Do we understand? - Does the Client understand? « How good is our Contract? - Plan and recruit Resources > Employ sufficient experienced personnel - Engineers - Human Resources - Back-Up - Legal/Contractual - Commercial - Planners - Administrative > Set up and put +Team’ in place = “What If?”CONSTRUCTION o Project Management Head Office Function (on behalf of the Employer) o Contract Administration ¢ Contract Administrator (Engineer/Employer’s Representative) o Employer’s Design + In-house or Consultant o Contractor’s Design * Checker/Reviewer role for Employer/Contract Administrator o Payment * Budget * When? * How? o Claim/Dispute Management ¢ Training + Understand the Contract « TolkEMPLOYERS FUNCTION DURING CONSTRUCTION - FIDIC Sign Contract Agreement (SC 16) Provide documents and drawings to the Co. Copy Contractor’s Documents as required (SC 1.10) Allow the Contractor to copy Employer’s Documents (SC 111) Obtained all planning consents ete (SC 1.13)* ive right of acces: n sion of the Sit 2.1)** Provide assistance re: permits, licences, laws of the Country (SC 2.2) Ensure Employer’s Personnel co-operate with the Contractor (SC 2.3) Provide evidence of ability to pay (SC 2.4) Make claims against the Contractor (SC 2.5) Appoint the CA (Engineer/Employer’s Representative) (SC 3.1)* Exercise an: ifi shorit rmit CA to function (SC 3. 4.4, 13.1)* Replace CA as required (SC 3.4) Receive; claim under; and return the Performance Security (SC 4.2) o Be responsible for any settin: t error, 4, EP. ° Make available all Site Data (SC 4.10)* 000 00UCDdmlCUCTWUCUCOUCHOCUMOOUUCCO CD ooEMPLOYERS FUNCTION DURING CONSTRUCTION - FIDIC ° Prov: ecessary Health ety Rules *(eg Construction Regulations) o Provide free-issue materials and equipment as set out (SC 4.20) o Set out requirements for Securi ite* o Ensure Contractor provides facilities for Employer’s Personnel ° 000000000 (SC 6.6) Ensure all H & S requirements are met (SC 6.7) Employ other Contractor(s) if Contractor fails to carry out remedial work (SC 7.6) Take ownership of Plant and Materials (SC 7.7) Maintain knowledge of Programme and Progress Claim for Delay Dam: \C 2.5 and 8.7)* Ensure no delay to testing (SC 9.2)* Take Over the Works/Section when certified by the CA (SC 10.1)** Permit the CA to issue TOC for a +Part’ 10.2) Be aware of completion of the Works/Section (SC 111) Decide whether to claim for an extension to the DNP (SC 11.3) Partake in any Value Engineering exercise (SC 13.2)EMPLOYERS FUNCTION DURING CONSTRUCTION - FIDIC eo 00 0 00 00000000 ttin: asurement at Tender stage (SC 12.2)* Impose any pr. ealing with Variations (SC 13.3)* Make any Advance Payment (SC 13.4) Ensure Performance Security in place (SC.14.6)* Pay amounts (on time) certified by CA (SC 14.7)** Consider and implement termination and arrange for completion by others (SC 15.2, 15.5, 19) Deal with any suspension by the Contractor (C 16) Ensure insurances in place (C 17 and 18) Understand Employer’s Risks (SC 17.3, 17.4) Keep informed of any claims from the Contractor (C20) Agree appointment of DB (SC 20.2)* Attend regular meetings/visits/hearings/ of DB (Various) Submit disputes to DB as necessary (SC 20.4) Decide on issue of Notice of Dissatisfaction and arbitration (SC 20.5, 20.6)POST CONSTRUCTION o Operation ¢ Consider any defects including latent defects Operate and maintain completed work o Records * Complete any outstanding records/as-builts o Settlement ¢ Continue with any dispute settlements o Other ¢ Return Performance Security upon receipt of the Performance Certificate (SC 4.2) Ensure sufficient staff to deal with any Employer’s liability after discharge.WHAT TO AVOID - EMPLOYER o Not dealing with issues/problems as they arise o Hiding behind the Contract o Not dealing with correspondence in a timely manner o Not providing sufficient welfare facilities o Always providing the minimum o Casting blame o Being +personal’How TO MANAGE - EMPLOYER ° Do it right first time - or at least before it is too late Try to resolve problems before they occur During contract drafting/megotiations, avoid or minimise changes to standard conditions and specifications At the commencement of project construction, ensure a proper handover between tender/procurement function and operations function fully describing contract details and tendering philosophy Ensure all staff and parties/participants are fully briefed on the requirements and obligations of each. Provide training on compliance with the Contract and any policies and procedures of the Employer Ensure all necessary authorities are in place o Provide peer review, senior advice and external resources as necessary to provide guidance and advice Produce a Risk Register which is monitored and updated ona regular basis Carry out constructability reviews to try to eliminate need for change Ensure programmes and progress are monitored frequently Minimise changes to the Works, but where necessary deal with them promptly and fairly Maintain good working relationships at all levels. Use the DB process and ensure attendance at the regular siteCOFFEE BREAKAVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) EXTRACTS FROM FOREWORD AND INDEX (P & DB)FOREWORD The Fédération Internationale des Ingénteurs-Conses(FIDIG) pubished, in 1999, First Exitlons of four new standerd forms of contract ‘Concitons of Contact for Construction, ‘which @re.raoommended for building or engineering works designed by the Employer or by is roprenenttivo, tho Engnoee. Under the usual arengemerts ‘ox tis fype-of contrac, the Contractor constructs the works in. accardainee wittva design provided by the Employer. However, the worksiiiay cllise sore: elamenis of Contractordesigned cid, mechanical, electical and/or constrain works. ‘Conditions of Contract for Pant ane! Design- Bui, ‘which ere recommended for the provision of elactraal andor mechanical plant, and for tho: design and execution of bulcing or engineering warks. Under the sual aitengaments. for this type of contract, the Contactor desions ard provides, in accordance with the Employer's requirements, plant end/or other ‘works; which may indlude any combhation of civil, mechanical, éectical and/or canstruction works, (Sotttors of Centos for EPGFTomkey Projects, ‘ilo shay Be suite forthe provision on a lurk bails ot 8 priodss ‘or poiver plant, af/a factory or similar Yaciity, or ot an intfastructuré project or othr {ype of- development, where @) a figher degree of cortantyof fia orice int Ame is required, and @) the Contractor takes total raaponsbilly forthe: degn and execution ofthe project, with Ite involvement ofthe Emoiyer. Under the “usual ertangoments for turkey projeols, tho Contractor eatios cut al tho ‘Engineering, Procurement and Construction (EPC: provicing a fly equipped fealty, eed for operation ft he “turn of the key"), ‘Shoit Ferm of Contract, ‘which Is recommended for buicing or engineering works of relatively small capital value. Depending on the type of work and the clcumstances, this form may also be suitable tor contracts of greater value, particularly for relatively simple or repetitive work of work of short duration. Under the usual arrangements for this type of contract, the Contractor constructs tha works in accordance with a dosign provided by the Empioyer or by his representative (f _any), but this form may also be eutable for a contract which includes, or wholly ‘comprises, Contractor-designed civ, mechenicel, eiectical er ‘construction works. The forms are recommended for general use where tenders are invited on an intemetionel basis. Modifications may be required in some jurisdictions, perticulary it the Conditions are to be used on domestic contracts. FIDIC considers the official and thontic texts to be the versions in the English ienguage. preparation of these Conditions of Contract for Pant and Desigr-Buid, it was, that, while there are many sub-olauses which will be generally applicable, ‘fe somne sub-clauses which must necessary vary te take account of they Girduerdiereds ‘relevant 10 the paltetiar contact, The sip-deuses wien’ were Considered to Be apical to many (but ictal oontfects ave been InGuded in the Genetal Conditions, n ono to feciitate ther ticorpaation Into each conract. “The Ganeral Consélions and the Particular Coneitions will together comprise the CConeitions of Contract governing the rights and obligations of the patios. If wit be neoessety to prepare the Particular Conciiions for each individual contract, and. to take azcount of those sub-clauses in the General Conditions ywhich mention the Particular Condtons. For this Bubioation, th General Condon were prepared én thie folowing basis: (hier paints eset or the oem Suen Contact Paice, wal be Made Os work proceeds, and wil. fyolialy be Based on inelaiments speoied in a soheduie; 1) ‘thie wording in the General Conditions necessitates turner data, then (nies it ie co deecritive that it would have to be detated in the Employers ‘Reequireinents) th sub-clause mals Yeference to this data being contained in ‘the Appendix to Tendo, tho data ether being presented by the Ertployer or ‘bang inserted by the Tenderer, 0 ‘wie « sub-ceuse in the General Conditions deals with @ maitor on. wich iferent contact tarfns are tkely to be applicable for diferent contracts, the [phnciples apptied in wating the sub-clause wate: {e) ers wouls th it me convenient t any prowekene weigh they de not Wish to apply could simply be deleted or not moked, than #-adaional ‘text had 4 Berwiritten (in the Particular Conaitions} beeatiee the General “Conditions did not: oover their fequitements; oF (©) in other cess, vitiew the application of (a) was thought to be ineppropeate, ‘the sub-clause contains the provisions which were considered applicabie to most corivecte. For exemple, Sub-Clause 142 (Advance Payment is inctuded for conwanience, not ‘because of any FIDIC policy in respect af advance payments. This Sub-Ciause ‘becomes inapplicable (even it ls not delatec if ts cisregarded by not speotying the ‘amount of the advance. It should therefore be noted that some of the provisions ‘contained in the Ganerel Conditions may not be appropriate for an eppaenty-typical contract. ‘Further information on itiese aspette, example wording for olhier arrangarnents, aid other explanatory material end, example wording to assist in the preparation of tho Partioular Conditions and the other tender doouments, are included within this publication as Guidance for the Praperation of the Particular Conditions. Before incorporating ary example wording, it must be checked to ensure that it is wholy ‘for the parlicular circumstances; f not, it must be amended. ‘example wording is arnended, and in alt casos where other amandmants or jons are made, care must bo taken to ensure that no ambiguity is crested, iter ‘General Conditions oF between the clauses in the Pertioular Conditions. It is‘Sésental thet all these Grating tasks, and the etre preparation of the tehder documents, ate eniiusted fo personnel with the relevant expertise, indluding the ccontrectual, technical and procurement aspects. “This publication concludes with example forme forthe Lettar of Tonder the Appendix to Tender (oravicing a checklt ofthe sub-clauses which refer to), the Contract ‘Agreoment, and altamelives for the Dispute Adjudloation’ Agrasment, This Dispute ‘Adjucication Agreement provides taxt for the egreement between the Employer, the ‘Contractor and the person appointed to act ether ls sole adjudicator or es ammember ‘of a three-person dispute siludication board; and Incorporates (by reference) the forms in the Appendix to the General Concions. 'AIDIG inlends to peblstt @ guide to the use ot iia Cendlione of Coniaét for ‘Construction, for Pant and Design But, and for EPG/Tumkey Projects. Another rolovant FIC publication is “Tendering Procedure", which preserts a systematic _spproach tothe sclection of tandorers and the obtaining and evaluation of tenders. |worder to clarly the sequence ef Contract aotivtes, reference may be made to the chétts on tho next two pages and to the Sub-Clausesilsted below {some Sub-Ciause ‘Rumbers ere also stated in the charts), The charts ere futrative ancl must not be ‘taken into constration i tha interpretation ofthe Conditions of Costract. 111 & 187. Base Dete 4.332 & 8:1 Commencement Date 11.86 & 42 Perfomance Seourty IAA? & 148 inlet Payment Ceriigolo 44.83 & 82 Time forCompetion (as extended under 8.4) 1184 & 94 “Tests o1 Completion ABS & 104 Teking-Over Certificate 1.136 & 121 Tests alter Completion (any) JABT & 11.1 Defects Notifeation Perot (as extended under 11.3) 1.138 & 11.9 Performance Conteate 144 & 14.19 Fal Payment Geniicatai 4 4 eset te Submlson Kesuefthe 8.4 10:1 esuo of 11.9 aus of ‘order ofthe Latgrot—_Cornmancemant Taking Over Performanes Documents Tender Acceptance. Date Corieste —Catoain ‘Tpleal sequence of Principal Events during Contracts for Plant and Design-Build 1. The Time for Completion isto be stated (rthe Appendix to Tender) 2s a number of days, to which is added any extensions of tne under Sub-Ciause 8.4, 2, _lrorder to indicate the sequence of events, the ebove diagram is based upon the example of the Contractor ‘lng to comply vith Sub-Ciause 82. 8. The Defects Notification Period Is to be stated (n the Appendix to Tend 2s a numiser of days, to which is added any extensions under Sub-Ciause 11.3. 4, Depending on the type of Worcs, Test after Completion may also be required. ero a! j GEoeaqacooaradce a« ‘ida Coitmcior 1.5 Eeghser submis Statement -Jsoves Inti to tio Engen PamentCesicatn —Ooptecor Each of te sont (or ‘otterae) tari payment The tet parment M1 Contactor submit 14.11 Contantor “TAS Engineer losuen 147 Empoyer fait hal etstaront othe subtat Frat Fre Payrent -nakes pagent Engine Statement andine —_Cereate 1612 deehape: ‘Typical sequence of Payment Events envisaged in Clause 14 Paty gros “20.9 Pate: 204A Pury oe Pos APenymay — 200 APaty ‘ates ofthe appait the {he depute tothe Iesue 8 nocg.of may kilato Intention to DAB, DAB Asselin ‘erbitason ‘Typical orm 180Conditions of Contract for PLANT and Design-Build FOR ELECTRICAL AND MECHANICAL WORKS AND FOR BUILDING AND ENGINEERING WORKS DESIGNED BY THE CONTRACTOR General Conditions FEDERATION INTERNATIONALE DES INGENIEURS-CONSELS INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS INTERNATIONALE VERENIGUNG GERATENOER. INGENIEURE FFEDERACION INTERNACIONAL De INGENERGS CONSOLTORES GENERAL: CONDITIONS GUIDANGE FOR THE PREPARATION OF PARTICULAR CONDITIONS, FORMS OF LETTER OF TENDER, CONTRACT AGREEMENT AND DISPUTE ADJUDICATION AGREEMENT FreeGeneral Conditions CONTENTS: ‘GENERAL PROVISIONS .. Assignment Gare and Supply of Documents. Errors in.tha Employer's aqurementa Employer's Use of Cantracior’s Documents Gonérector's Use of Employer's Documents ‘Confidential Betas Compliance with Laws. Joist and Severe Lisbilty ‘THE EMPLOYER .. Right of Access to the Ste Permits, Ucancas or Approvals, Employer's Parsonnel Employer's Financial Arangements Employer's Gains ‘THE ENGINEER, Engineer's Duties and Authority Delegation by the Enginesr ‘neiructions of the Engineer Replacement of the Engineer Determinetions THE CONTRACTOR ..... Contractor's General Obligations. Performance Securty Contractor's Representative ‘Suboontractors€5 Nominated Subcontractors: 46 Co-operation j AT Sating Ot 4:8 Safety Procedures | 49° Qually Assurance $10 SiteData 4.11 Sufficienoy of the Accepted Contract Amiourit 4.12 Unioreseeable Physical Conditions 4.13, Rigs of Way end Facitis 414 Aveldance of lneceronce 4.18 Access Route 4.16 Trenapot of Goods 4A? Contractor's Equipment 418 Protection of the Environment 439. Batty, Weler and Gas | 420. Employer's Equipment end Free-ssue Nie 421. Progess Reports 4.22. Soourty ofthe Ste 4.23. Contractor's Operations on Site 424 Fossis 5 DESIGN . beets ee RO S:1 General Design Obiidattons 5.2 Contactor's Documents ! 53 Contractor's Undenaking 5.4 Technioal Standards and Regulations 56 Taning 68 As-Buit Documents ‘5.7 Operation and Maintenanos Manuals 6.8 Design Eror we 6 STAFF ANDLABOUR .... sce. eseees 6.1 Engagement of Staff and Labour 6.2 Rates of Wages and Goneltions of Labour 6.3 _ Persons in the Service of Empioyer 6:4 Labour Laws 6.5 Working Hours 6.8 Facies for Staf and Labour 67 Health and Safety 6.8 Contractor's Superintondonce 6.9 Contractor's Personnel 6.10 Records of Contractor's Personnel end Equipment 6.11 Disorderly Conduct 7 PLANT, MATERIALS AND WORKMANSHIP... 28 Mariner of Execution lemedla! Work ‘Oumership of Plant and Materials Few wen —8 © COMMENCEMENT, DELAVS AND SUSPENSION 8.1 Commencement of Works 82 Timefor Completion 83. Programme 8.4 Exteneion of Time for Completion 85 Delays Cauved by Authortios 86 Reto of Progress 87 Delay Damages 8 Suspension of Work 89 Consequences of Suspension 8.10 Payment for Plant and Materials in Event of Suspension 3.11 Protonged Suspension ‘8.12, Resumption of Work @ TESTS ON COMPLETION ......... 9.1 Contractor's Obigetions 8.2 Delayed Tests 9.8 Retesting 18.4 Failure to Pass Tests on Completion 10 EMPLOYER'S TAKING OVER 104 Taking Over oftho Works and Sections 10.2 Taking Over of Paris of the Works 10.3 Interference with Tests on Complotion 10.4 Surfaces Requiring Restatement 11 DEFECTS LIABILITY... 11.1. Complaton of Outstanding Work and Remedying, 41.2 Cost of Ramedying Detoots ‘413 Extension of Defocts Notification Foriod 114. Falure to Remedy Defects 11.5 Removal of Dofective Work 116 Furthor Tests THT Right of Access 14.8 Contractor to Sserch 11.9 Performance Certificate 411.40 Untuttled Obtgetions 11.11 Glaarancs of Ste 12 TESTS AFTER COMPLETION 12.1 Procedure for Tests after Completion 12.2 Deleyad Tests 123 Retssting 124 Falure to Pass Tests efter Completion VARIATIONS AND ADJUSTMENTS . iit) > ) 184 Payment in Appiioable Curencies 188 Provisional Sums: 18.6 Daywork 18.7 Adjustments for Changes in Legistafion {SB Adjustments for Changes in Cost 44 CONTRACT PRIGE AND PAYMENT ....... 444 The Contract Price 44.2 Advance Paymont 143: Apploation for interim Payment Gartiiates 44.4 Schedule of Payments 44.5. Plent and Materials intended for the Woks 14.6. [ssue of interim Payment Certifoates 147 Paynent 148 Delayed Payot 1419 Payment of Retention Money {14.10 Statoment at Completion 14.11 Application for Final Payment Certificate 14.42 Discharge 14.18 Issue of Final Payment Certicate: {4.44 Cessation of Employer's Liabilly 44.18 Currencies of Payrant 18 TERMINATION BY EMPLOYER .. 18.4. Notice to Coneet 462 Termination by Employer 153 Valuation at Date of Termination 45.4. Payment eftor Tarmination 16.5 Employers Eniltement fo Termination 46 SUSPENSION AND TERMINATION BY CONTRACTOR. 78.1 Contractor's Entitlement to Suspend Work 16.2 ‘Termination by Contractor 16.3. Cessation of Work and Removal af Contractor's Equipment 16.4. Payment on Termination 17 RISK AND RESPONSIBILITY .. 17.4. Indemnitios 17.2. Contractor's Care of the Works 17.3 Employer's Fisk 17-4 Consequences of Employer's Risks 17.5. Intellectual end Indust! Property Rights 17.8 Limitation of Laity 18 INSURANCE .. ‘General Requirements for insurances Insurance for Works and Contractor's Equipment Insurance against Injury to Persons and Damage to Property Insurance for Contractor's Personnel19 184 nee 498 19.4 195 196 19.7 20 201 202 208 204 205 208 20.7 20.8 FORGE MAJEURE .... Dafiition of Force Majeure Notice of Force Majeure ity to Mininise Deiay ‘Gonsequancss of Fores Majeure Force Majeure Affecting Subcontractor Optional Termination, Payment and Release Fidease from Performance undor the Law CLAIMS, DISPUTES AND ARBITRATION Contactors Cams Appointment of the Dispute Adjudication Board Fetus to Agree Diepute Acjcoation Boards Obtaining Dispute Adjudication Board's Decision Amicable Settlement Arbitration Failure to Gomaly with Dispute Adjudication Boar's Dacision Expiry of Dispute Adjudication Board's Appoiritrent ‘APPENDIX INDEX OF SUB-CLAUSES GENERAL CONDITIONS OF DISPUTE ADJUDICATION AGREEMENT.AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) EXTRACTS FROM EMPLOYER ACTION SUB-CLAUSES (CONS)Oona s Yoo oS COCO O creda « ‘without the Emieyees consarit, Be Copied, used oF comimunisted to a thite party by {he Coriracio, exoant as necessary forthe purposes ofthe Cont. 142 ween Contidentiat Details ‘The Contrector stall disclose all such confidential and fier information. as the Engineer may teasonably require in order to verity the Contrector's coriwtance with ‘his Contract. 143 Compliance with Lawe The Contractor ell in performing the Contract, comply with applicable Laws. Uniess otherwise stated in the Particular Condions: the Empioyer shall have cbtsined (or shat obtir the plan ppemission for the Permanent Works, and any other pert descr ‘te Specifoaton es having been {or bein) obtained by the Employer and tho Employer shal indemnify and hold the Contractor nathiess agaist and tom ‘the consequences of any falurato do so; end (b) the Contractor shal give al notices, pay all taxes, duos dhl foe, and obtaln al permite, Foances end approvels, as requited by the Law in relation to tho execution'end completion of the Works and the remedying of any defects; anc ‘the Contractor shal indemnity and hold the Employer harmless against and ‘rom the consoquences of ary fale to da 30. 444 Joint and Severat f the Contractor constitutes (under applicable Laws)-2 joint venture, consortizn or Liability ‘ther unincorporated grouping of two or more persons: {@) those persons shel be doomed io be jointly and severly Ibi to the Employer {or the performance of the Contrect; ©) these persons shell notify the Employer oftheir lead who ail ave authority {c bind the Gontractor and each of these persons; and (©) the Contractor shia not after its compostion or legal talus witout the prior consent of the Employer: : Right of Access to ‘The Employer shell give the Contractor ight of aocess to, and possession of, all parts the Site of the Site within the time (or times) stated in the Appendix to Tender. The right and possession may not be exclusive to the Contractor funder the Contract, the Employer is required to give (lo the Gontracor) possession of any. foundtion, structure, plant ormears of access, the Employer shall do so in the tme and manner stated in the Speotication, However, the Employer may withhold any such right or possession unl the Performance Securty has been recolved. if no such time is stated in the Appendix to Tender, the Employer shall give the ‘Contractor right of access to, and possession of, the Sito within euch times as may ‘be required fo enable the Contractor to proceed in aocordance with the. programme submitted under Sub-Clause 8.8 [Programme pe Contractor suffers delay andor incurs Cost 5 a result of 2 falure by the to give any such ight or possession witin such time, the Contacte shal Hz SNhP GNa TINA SONVeid 'SID3 AB SSN SAISNTOXS Yohoz NN GNA TLINN ZONVed ‘SIO3 Ad SSN AAISMIOXS YOS: er) {2} ar eersign of time for any auch delay, F completion 1 or wal ba delayed, under Sub-Geause 84 [Etansion of Te tor Completion, a (©) peymontofeny such Cost plus reasonable profit which shal be ntact tie Contact Price, “After fecelving this ratios, the Enghear shal proceed in aocordance with Sub: Glause 3.5 [Determinations] to agree or determine these matters. However, and fo the extent thet the Employers faiure was caused by any eror of olay by the Contractor, including an error in, oF delay inthe subsnission of, ary of the Contractor's Documents, the Contractor shall nat be entited fo euch extension of ‘ime, Cost or proft. a2 - Permits, Licences or The Employer shel where he i na. postion to do 80} prove reasonable assistance Approvals: to the Contractor a the requést ofthe Contrector: fel by obtaining copies of the Laws of the Country wich are relevant to the ‘Contract but are not readty avallable, and (©) forthe Contractor’ expfcations for ary permits, icances or approves requited by the Laws of the Country: which the Contractor fs requted to oblain under Sub-Clause 1.19 {Compliance wit Laws, 4) for the dafvery of Goods, including clearance through customs, and 4) forthe export of Contractor's Equipment when tis removed from the Site, 2g a ee See Employer's Personnel The Employer shal be responsible for ensuring that the Employer's Personnel andthe Employer's other contractors on tha Site: (@) co-operate with the Contractor’ efforts under Sub-Clausie 4.8 [Co-peration, and. () _ teke.actions simarto those which the Contractor Is tequired to fake under sub- paragrapis (8), ( and (o) of Sub-Clause 46 [Safety Procedures) and under Sub-Clause 4.18 [Protection of the. Eavroamen. (a = aoe Employer's Financiat The Employer stall submit, within 28 days after receiving any request trom the ‘Arrangements Contractor, roasonble evidence that financial arrangements have been mada and are boing maintained which wil enable the Employer to pay the Contract Price (as ‘estimated at that time) in accordance with Ciauso 14 [Contract Price and Paymend ‘the Employer intends to make ary material change to his nancial atangaments, the Employer shall give notice to the Contractor with detailed particulars. Ifthe Employer considers himself to-be entitled to any. payment under any Ciause of these Conditions or otherwise in connection with the Gontract, and/or to any extension OF the Defects Notation Period, the Employer or the Enghieer shall ave natioe and partcdars to the Contractor. Howevey, notice is not required for payments due under ‘Sub-Clauso 4.19 (Blootioty, Water and Gas], under Sub-Ciause 4.20 [Employers ZB Fiquomert and Froo-esvo Matera, or for thor covcearaquostad by ro Contraco 2 jjotioe shell be given es soon as practicable after the Employer became aware of ‘oF crourstanoas giving rise to the claim. A notice relating fo any extension Defects Notification Period shal be given bsfore the expiry of such period 9| | | | | | | | | LO2 NAP CNS “LNA SONVeHd ‘S193 AB SSN SAISIONE HOS oa sep] “The panoulrs shall 9pecly tho Clause or other bass of tho cio, and al luo subelantation of the amount ant/or extension to which the Employer considers bhimsat to be ent n connsction with the Gortract. Te Engineer shal thon proceed ‘n accordance with Sub-Cisuse 3.5 [Dotemminations| to grea or determine. the amount (ary) which the Employer is ented to be paid by the Contract, andor {@ tho extension (f eny) ofthe Defects Notiteation Period in accordance with Sub- Clause 11.8 [Extension of Doteots Notcation Perio. ‘This amount may be Included as @ deduction in the Contract Price and Payment Conitfcates. The Esrployer shail only be entitled to set off against or meke any ‘eduction from an amount certtled na Payment Gerifcate, oF to otherwise-ciaim ‘against the Contractor, in accordance with this Sub-Ciause. Thgdraineor Engineer's Duties and The Employer shall appoint the Engineer who shall carry out the duties assigned to. Authority 10 him in the Contract. The Engiaer’s staf shall include sultably qualified enginesrs anc ‘other professionals who are competent to cary out these cities, “Tho Engineer shal have no authority fo amend the Contract. “The Engines may exerci the euthortysitributale tothe Engineer ao epooid in or recessatiy fo-be impled fom the Contact. the Engineer is required to obtain the approval ofthe Employer before exercising @ epeciied authori, the requiements shal 'bo as slated in the Pariouar Condtions. The Employer uridertakss not to impose ‘urher constants on te Engineer's author, except as agreed with the Contractor However, wienevar the Enginear exercises a specified authoriy for which the. Employer's approval is required, then tor the purposes of the Gontract} the Employer shalbe-deomed to have given approval Bicopt ae othorwied stated in these Conditions: (6) whenever carrying out duties or exercising authority, specified in or implied by ‘the Contact, the Engineer shall be deemed to act for the Employer; {) the Engineer has no authority to relieve either Party of eny duties, obigations or responsiblties under the Contact; and any approval, chook, certifcete, consent, examination, Inspection, instruction, notice, proposal, request, test, or similar act by the Engineer (noluxing absence Of disapproval) shall not refove the Contractor from any responsibilty ho has ‘under the Contract, including responsibilty for erore, omissions, ciscrepancies ‘and nor-compiznoss. ‘The Einar may For ine tote assign duis and delegate author to assistants, and may also revoke sucti assignment or delegation. These assistants may nolude & resident engineer, and/or Independent inspectors appointed to inspect end/or test tems of Plant and/or Metarias. Tho assignment, delegation or revocation shal be fn ASE ngig ane sal not take effect unt copies Pave bsen received by bon Parkes if over, unless otherwise agroed by both Parties, the Engineer sal not dtegete the ep BEY fo deternina any mater accerdance wth Sub-Cluse 3.5 Detemnatons Df serts sal be satay cused persons, wo er corpetent to cary out tote i> anenins ef Cerme Coant,. AVOIDANCE AND MANAGEMENT OF : CLAIMS & DISPUTES UNDER FIDIC ‘ (incl CONS, P & DB, MDB) Day1 - Session2AVOIDANCE AND MANAGEMENT OF CLAIMS AND DISPUTES UNDER FIDIC (INCLUDING CONS, P & DB, MDB) DAY 1 SESSION 2 Malcolm Kelly malcolm@yllek 100.freeserve.co.uk Cell +44 7966103853ROLE OF THE CONTRACT ADMINISTRATOR o I thought it was meant to be over here!!DIFFERENCES BETWEEN ENGINEER/EMPLOYER’S REPRESENTATIVE o The Engineer « Red Book - Conditions of Contract for Construction (Employer Design) « Yellow Book = Plant and Design-Build (Contractor Design) ¢ Pink Book -MDB Harmonised Edition (Employer Design) o The Employer’s Representative ¢ Silver Book - Engineering, Procurement and Construction (EPC/Turnkey) (Contractor Design) ¢ Gold Book ~ Design, Build and Operate (Contractor Design)CA - PRE-CONSTRUCTION o Staff Procurement ¢ CA must be in place early + Suggest CA is part of the tender evaluation process ¢« CA must form his own team early - experience and youth + Sort out future delegation o Assistance to the Employer ¢ Advice on constructability + Advice on document management « Advice on contractor selection + Advice on dispute avoidance o Training ¢ For both CA and PM staffCONSTRUCTION — SOME ORIGIN OF CLAIMS o Duties and Authority + Abuse/misuse of those set out in the Contract Documents o Instructions + Abuse/misuse of those covered under SC 3.3 o Determinations + Inability to operate Sub Clause 3.5 as intended o Contract Administration (Construction) « Misunderstanding/misuse of Contract Clauses. o Contract Administration (Commercial) + Misunderstanding/misuse of Contract ClausesDUTIES AND AUTHORITY o Appointment/Authority ¢ Sub-Clause 112.4 defines the Engineer as =the person appointed by the Employer and named in the Appendix to Tender’ * Appointed internally, or c + Appointed by the Employer under a separate Contract = eg FIDIC White + Individual or Organisation? o Duties « These are as assigned to CA in the Contract (SC 3.1) * Deemed to act for and fully represent the Employer except for SC SS 5=-mi der: Ww is mi 7 . 0 a rit © act = di © . ini: nm i ith ructit ontract = mi er: SW is m: e ~ Has avi c isi: ital i ngineers ani ri i et 0 ¢ ow util 3.1) - C does not + Re: ibl di ‘in: chority an ignin: ies.INSTRUCTIONS o SC 3.3 [Instructions of the [CA].] * “The [CA] may issue to the Contractor (at any time) issue instructions ........ Which may be necessary for the execution of the Works and the remedying of any defects......... The Contractor shall only take instructions from the [CA] or from an assistant to whom the appropriate authority has been delegated ..... ¢ The Contractor shall comply with these instructions given .....on any matter related to the Contract. Whenever practicable their instructions shall be given in writing. If the [CA] * (a) gives an oral instruction + (b) receives written confirmation from the Contractor within 2 days + (c) does not reply with a written rejection in 2 days then confirmation shall constitute the written instruction. c: o wrong? Instruction not in writing Instruction not necessary for the execution of the Works Instruction by person not delegated Contractor has not been told of any delegation No reply to Contractor of written confirmation Nobody knows who gave the instruction¢ DETERMINATIONS o SC 3.5 [Determinations] bn + Whenever these conditions provide, the [CA] shall proceed in accordance with this Sub Clause 3.5 to agree or determine any matter, the [CA] shall consult with each Party in an endeavour to reach agreement. If agreement is not achieved, the [CA] shall make a fair determination in accordance with the Contract, taking due regard of all circumstances. The [CA] shall give notice to both Parties of each agreement or — determination, with supporting particulars. Bach Party shall give effect to each agreement or determination unless and until revised under Clause 20 (Claims, Disputes and Arbitration]. Where docs it apply? Sub Clauses: Red/Pink 195 2.1; 2.5: 118; 12.3; 12.4; 13.25 18.7; 1; 2.5; 4.7; 4.12; 4.19; 4.20; 4.24; 7.4; 12.2; 12.4; 13.8; 13.7; 14.4; 15.3; 15.4; 16.1; 17.4; 18.1; .3; 11.4; 118; 12.2; 12.4; 13.3 13.7; 6: ILM 12.4; 12.6; 18.2; 13.8; 13.6;CONTRACT ADMINISTRATION - CONSTRUCTION + Issuing Instructions and Variations (C 3 and 13) + Making Determinations by consulting with both parties and endeavouring to reach agreement - if not then determination in accordance with the Contract (SC 3.5) + Carrying out approvals, certification, consents and other administrative duties. (Various ) + Receiving notices regarding delays and potential extra cost and deal with them in a reasonable time under SC 3.5 or as set out in the Contract (Various eg 19, 2.1, 4.8, 4.12, 7.4, 19.2 and especially 20.1) + Reviewing and/or approving Contractor’s designs (C5 in Yellow) Gopgenting to Sub-Contractors and additional working hours (SC 4.4 Carrying out audits of Contractor’s Quality System (SC 4.9) Carrying out tests (SC.7.4) Reviewing and awarding an extension of the Time for Completion Receiving and reviewing programmes submitted under SC 8.3 and informing Contractor where programmes are inconsistent with actual progress or with Contractor's obligations [Note: Not to approve or accept! + Suspending all or any part of the Works (SC 8.8) . Issuing Taking Over Certificates and Performance Certificate (SC 10.1 - Ensuring any defects or outstanding work is completed (CL) + Regular meetings with all StakeholdersCONTACT ADMINISTRATION - COMMERCIAL Measuring and Valuing the Works (SC 12.1 Red/MDB) + Issuing interim and final payment certificates (SC 14.6 and 14.13) + Receiving notices of claim; considering and then responding to the claim within the prescribed time with approval or disapproval; monitoring and instructing contemporary records; then proceeding in accordance with SC 3.5 to determine the claim (SC 20.1) + Advising Employer of latest situation including estimates and potential claims; disputes; other costs. Updating budget and cash-flow and liaising with PM teamCONTRACT ADMINISTRATOR’S FAILURE TO PERFORM o Consequences: ¢ Contractor may be relieved of certain obligations unbeknown to the Employer until it is too late ¢ Parties may become confused leading to ill-feeling and disputes + Parties submit a claim which then becomes a dispute « CAis in breach of his duty of professional skill causing problems to himself and his company + Contractor carries out instructions/variations which were invalid causing delay and expense, more ill-feeling and disputes * CA may be sued by the Employer « CA may be sued by the Contractor for negligent © misstatementWHAT TO AVOID = CONTRACT ADMINISTRATOR Not delegating properly or at all Not talking or listening Being +personal’ Allowing Parties to by-pass CA/Contract requirements Always +being right’ Putting off until +tomorrow’ what can/should be done +today’ Not being available when required Not dealing with Notices in time or at all Not carrying out duties set out or implied in the Contract Poor document control Issuing oral instructions Falling behind with Programme and Progress Certifying incorrectly or in +bad faith’ Not responding to a claim from either Party Not consulting with the Parties under SC 3.5 Not producing a 3.5 Determination under any of the Sub Clauses Producing a 3.5 Determination that is biased and notin accordance with the Contract Assuming everything will be alright ©0070000 000000000 ° °How TO MANAGE - CONTRACT ADMINISTRATOR Do it right first time Understand the Contract requirements of all participants Deal with notices within the set timescales Prepare and update weekly, Claim, Variations, Instructions and Dispute Registers. Be fair Instil a training regime from beginning Listen and consider - do not reject out of hand Listen to advice - it usually comes free and you do not have to take it. Records, records, records ..... Treat people as you would like to be treated ~ respect and integrity o Ensure a claim is dealt with appropriately, no matter how frivolous or unlikely it may seem Follow up with the appropriately delegated staff Keep the Employer informed - remember the CA is an ’Agent’ Use the DB = opinion? Ask +WHAT IF?’ Remember, the more you agree the more gets agreed 00900 0000 oo ©0000CA POST CONSTRUCTION * Generally the Employer is running the show, but: o May require advice from the CA regarding o Maintenance o Testing o Operation o Final Account o Adjudication? o Arbitration?? o Employer definitely requires: o Records o As-BuiltsAVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) EXTRACTS FROM CONTRACT ADMINISTRATOR ACTION SUB-CLAUSES‘The partiaders shal spaoty the Ciause or other basis of the lem, and shal include | substantston of the amount ander extension to which the Employer considers himself tobe ented in connection wih the Contact. The Engineer shal then proceed in accordance with Sub-Cisuse 8.5 [Detorminations] to agree or determine () the amount ff any) which the Empioyer is entited to be paid by the Contvetor, anor {the extension (fen of the Defects Notficalion Period in accordance with SuD- Cause 11.3 [Extension of Detects Notification Period. ‘This amount may be inctidled as a deduction in-the Contract Price and Payment Certifoates. The Employer shall only be enlifled to sot off against or make any stabilly oF for the ‘completion, or safe and proper operation, of the Worcs, ‘The Contractor shall’b3 seepanstole for the atloquaoy, Stebilly and safely of al Sto ‘operations, of sf methods of construction and ofall tha Works, The Contractor shell, whenever required by the Eager, subrait detals of the ‘arrangements. and methods. which the Contractor proposes to adopt for the sxeeution of the Works, No significant alteration to these arretgaments. and ratiods shal be made without this faving previously been notiled to the Enginaer ie evtcor oak st ek cont» Panik Sai. ep peviorrienca, fn hovamountand esrencies stated in the Appendix to Tener (fan ‘amaunt isnot stated in the Apert to Teridey, his Sub-Casee sha not app. “The Contractor shal deliver the Performarico Security to thie Etiployer within 28 days ‘aftér receiving tha Ltr of Aaceptance, and shall sand a copy to the Enger, The ‘farmers Geer el ea yeni et tah ae bot ‘epivoved by the Employer ond -shall.be inthe “orm. annexed t0 the rule Oo tons or in another form apiroved by the Epoyer. “the Contactor shall ensine that the Petformenice: Sebi 8: velld and ervoreeable Unt the Contractor hes executed end. completed the: Works and remacied any defeats. If the terms of the Performance Security spealy ts expry dats, and the ‘Contractor has not booms ented to reopive the Performance Certticate by the date £28 daye arr to tho expiry dato, the Contractor shal extend the valty of the ‘Perlornence Security trl the Works have been completed and any dofecte have ‘been remedied, “The Employer shall ot make-a clelm under the Performance Securty, except for ‘amounts to which the Employer is entided under the Contract in the event of {@) alu by:the Contactor to extens the vatdty of the Performanos Securty as ‘described in the preceding paragraph, in which event the Employer may clei tho full amount of the Performence Security, {h) fall by the Contractor to pay the Employer an amount due, as either agreed by the Contractor or dterrined under Sub-Clause 2.5 [Employers Cais] or Clause 20 [Claims, Disputes end Arbitration), within 42 dave after thie ‘agreement or determination, {fale by the Contractor to remedy a cefenit within 42 days ater receiving the ‘Employers notice requiring the defaut to be remediad, oF (circumstances which entite the Employer to terminator under Suib-Clause 182 [Tamination by Emovoyey, respective of whether notica of termination has been given ‘The Employer shell indemnity and hold the Contractor harmless against and from alt damages, losses and expenses (including legal feas and expersee) resulting from & ‘under the Performance Security to the extent fo which the Emplayer was not to make the cis. iemployor shal roturn the Performance Secutty to the Contractor within 21 days ecehing a copy of the Performance Cartficate. Ceol Coe fr st or Dat tsaaneCeCac ans Coane Ad “The ‘Cotitradtor shal. appoint thé Conitrentoi"s Representative ane shall give Piri "all Contractor's: authority nacessary to act on the Contractor's behalT undst the Contract. Representative Unleds the Contractor's Representative § named in te Gonitéch, the Contractor shal, priorto-the Convneacament Date, submit to the Bigiieer for const the namie and partiaders of the parson the Contractor propases to appoint, as. Contractor's Flepresertative. If consent is withtweid or subsequantiy revoked, or i the eppointect person tele to act as Contractor's Roprosontatve, the Contractor shal simierly eubrrit the name and particuars of another sutale pareon for such appointment. The Contiactor shell not, without the pdar consent of the Engineer, revoke the ‘appointment of the Contractor's Representative or aposint a ceplacement. “The Wwhiolé time of the Contactor's’ Raprestinttie shall te-givei 10 Grecting the ‘Gonttactors etormarce of th Contact. the Gartctor's Representative ito bs ‘temporarily ‘@bssnt from the Sita during. the execution of the Works, a. ‘suitabie ‘yeplanement person shall-be appointed, subject to the Engirtear’s prtor corsant, and ‘to Engineer shal bo noted aocordngy. “Thee Contractor's Reproseniave shal, on behalf of the Contactor, palo rinictions untir Sub-Giauso 8:3 Insitutions of the Engines “The Contractor's Representative may delegate eny powers, functions ad aunty to ‘ery competent person, and may al any'time revoi tha delagation. Any delegation or ‘evocation shall not take effect unt the Engineer has reoaved prior notice signed by the Contractor's: Reprecantative, naiming the person end specifying the powers, ‘unctions.and authori being delegated or revokes. “The Contractor's Representative and af these persons shal be. luent inthe language ‘for communications defined in Sub-Ceuse 1.4 (Law: and Language. 4 ~ - Subcontractors “The Canractor shal not suboontract the whole af the Works, “The Contractor shall be responsibie for the acts or dafauits of ayy Subcontractor, his agents or employees, 2 Ff they were the acts or defauts of the Contractor. Unless otherie statod inthe Particular Conditions: (@ the Contractor shell not be required to obtain consent to eupplios of Matos, ‘af to@ subconiract for which the Subcontractor is named in the Contract; (©) the prior consent of the Engineer shall be obtained to other proposed ‘Subcontractors; and (6) the Contractor shall give the Engineer not less than 26 days" notice of the Intended date of the commencement of each Suboontrector’s work, end of he. ‘commencement of such work on the Sit. ie Pee LEE 7 =neeses Nominated In this Sub-Ciause, “nominated Suicontractor* means a Subsontractor whom the Subcontractors, Engineer, under Clause 13 [Variations and Adjustments, inetructs the Contractor to ‘employ as a Subcontractor. The Contractor shall not be under ery obligation to employ ‘a nominated Subocntractor against whom the Contractor raises reason objection SB arte Eero ar ay tn. tm pr Serres 46 & - He - Co-operation E824 rd contactor shal, ao specie inthe Contract ores nsructd by the Engineer, \ ‘enprapriate opportunities for canying out work to: 18 Aas)Ay Satting Out 14 rs (‘the Employer's Persona, rl 16) aryrother contractors employ by the Emipoyer, anc {6} the persnnnal of any legally constituted aubie autherias, suho may be employed in the execution on oF néar the Ste of dey Work riot incl in the Contract ‘Any such instruction shall ccestitute 2 Variation if and to the étant that causes the Contractor to incur Unioroseesble Cost. Services for thees pecscnnel and other contractors may include the use of Contractor's Equipment, Temporary Works or ‘access arrangements which are the responsily of the Contractor “The Contractor shal be raszonsibe for his construction actvties.on the Ste, end sha co-ordinate his own activities with those of otner contractors te the extent ¢f ay) specie in tha Employer's Requrernents. ‘f undorthe Contract the’ Eimployer is requited to gle forthe Gcntrantor essession ‘of any faundation, structure, plant or means of acces: in. accordance with ‘Contractor's Documents, the: Gontiactor. shall submit: sucls; coouments to. the, Engineer in the tine and manner steted in the Employers Requiernnte: “The-Contractor sha! set out te Works i relation to evigindl- Gels, in end bvels of teferende specified in the Gentract-or notified by the Engineer. The Gontractor shall be responsibls for the coect positioning of al parts of the Works, and stra rectify any efror i the positions, levels, dimensions or alignment of-thie Works. “The Eployex shel be responetble for any errors in these peat or noted items of reference, but the Contractor shall use reaeonabie forts to: verly their accuracy ‘before they are used. if the: Contactor suffers delay andior incuxs Cost ‘fom executing work which was necessitated by an eror in these items of reterence; and an. experienced contractor cauid not reasonably have discovered such error and avoided this det enc/or Cost, ‘the Contractor shell give notice to the Engineer and shal be entitled subject to Sub ‘Gauss 20-4 [Contracter's Claims} to: {@ en extonsion of time for any such detay, it completion is or wil be delayed, Under Sub-Ciauss 8.4 [Extension oF Timo for Completion), and {) payment of any suct Cost plus reasonable prof, which shal be included in the Gonttact Price. ‘After teosiving this natice, the Enginger shell proceed in accordance with Sub-Cisuse {35 [Detarninations to: agree or datermine (} whether and (f s0) to what extent the ‘efrar could not reasonably have been discovered, and (i) the matters described in ‘sub-paragraph (@) and (b} above related to this extent. ‘The Contractor shal (@) comply with al appicable safety reguations, ‘take core forthe safety of al persons entitled to be on the Site, ‘uso reasonable efforts to Keep the Site and Works clear of unnecessary 3) obstruction go as to avoid danger to these persons, provide fencing, lighting, guarding and watching of the Works unt completion ‘and taking over under Clause 10 [Employer's Taling Over, and Centra tC t Pt anDeen Bale| i | Can) @ prolice aity Teripokay Works (heticny readies, footway, quas and “ero55) which may be naceseans because ofthe execution ofthe Works, for the ‘us0 and piotsction ofthe puke and of owners and cccuners of adacent land. 49 ‘Quality Assurance “The Ouiitiector shal ingttute 0 cualty eBeurenco eyéterh to camonsirate compliance vith the requirements of the Contract. The system shall be. aooordancs with the details stated in the: Gontract. The Engineer shell Ue entiled to cuct ery agpoot ofthe system. Delais of al procedures end comptance documenis stal be guoriied to the Engjnepr for infoimaticn before each dasign end execution stage is comnmieticed, When any dooument of a techrical natar is issued to the Engineer, evidence: of the piior approval bythe Contractor himeelf shal be-apparent on the document tel Coin wit he quelty surance sista shi not rave tie Gohtaetor of any ‘of His dies, obligations or responsibilities under the Contect: aad - Site Data “The Employer stil have made evalebis to the Contractor Tor his formation, pier tio Bees Dat all roevant data in the Employer's possession on sub-suriaes and Tiyckological conditions at the Sit, inolading enveonmental atoeets. The Emoloyer shail sinifrly reke available %6 the Contractor all such data which come into the Employer's possession after the Base, Date. The Contractor shal be-responsitie for inlerpeting al such data. “Jott extent which wes practicable (kichig aecount of pos And te), the Contractor _shal bo cleemad to have obtained al necessary infcemation ap to risks, contingencies ‘and other ooumstances which may infueice or affect the Teridsr-o” Woiks, To the ‘same extent, the Contractor shaf be deemed to, have inspected. and exectined the Site, is suroundings, the above data end cine avalable information, éd to have been satisfied balére subriting the Tender as 10. all relevant raters, including (wsthout imitation): {@) the form and natuie of the Sito, including sub-eurfaoe covkitions, {®) _thalydroiogical end climatic conditions, (@)__ the extont and nese of the work ancl Goods neoastary Yor the execution an -cornplaticn of the Works and the remedying of any defects, (@_ the.Laws, procedures and labour practices of the Country, od {the Contractor's requirements for access, accommodation, factites, ‘personnel, power, transport, water and ofher services. Sufficiency of the ‘The Contractor shall be deemed to: ‘Amount (@) have satisfied himsf 2s to the correctness and sufficiency of the Accepted Contract Amount, andl (0) have basad the Accapted Contract Amount on the dete, intorprtations, necessary information, inspections, examinations and satisfaction 6s to all relevent metlors referred to n Sub-Ciause 4.10 [Ste Data} ond any futher data «elevent to the Contractors design. and the remedying of eny defects.ane, Jn this Sub-Clause, "physiéel conidions mains viakifa! physical conditions aria nen Untorésesdble Prysice! © medde. and other physical obstructions an pollutants, which the Contractor ‘Conditions ‘encounters at the Ste when executing the Works, incudeg sub-suriaoe. and hydrological conditions out excluding climatic eanditons. Ifthe Contrebor encounteradvorse physical coriiions which he conekiers to have. been Unforessoabla, the Contractor shall give notice to the Engineer as soon as: practicabls, ‘Thi notioa shall describe the physical conditions, 9o.that they-cen be inspécted by ‘he Engineer, and shall set out the reasons whty the Contracies. considers them to 08, Unforesseabl. The Gontrector shall continua executing the Wor, using such proper and reasonable meesures es ate, propria for the physical corions, and shall ‘campy with eny instructions which frie Enoinéer may give. ter instruction consttutes 2 Veriation, Giause 48 [Variations and Adjustments] shell eaply. i and to the extent thatthe Contractor encouriters physical conditions which ares LUnforiseeaibe, ves such notice, and eufers delay and/or curs Cost dutta these ‘conuitons, the Contractor shal be ented subject Sub-Ciauen 20.1 [Contractors ‘Clalins} to: {i ar-extension of time for any euch day if eoripotion is 6r wil be. dated, under Sub-Ciause 8.4 [Extension of Time for Completion}, and. ©) payment-of any such Cost, which shall be Hclutied in the Contract Prica. ‘ter receling such notice and inspedting erid/or investigating these physical conditions, the Englresr shall proceed In accordance with Sub-lause 3.5 {Boteintionsto:agrs or determine () whether and Qf so} t0-what extent these physical condlions were Unioresesabie, and fi) tha, matters described in. sub paragraph (e) and (o) above reeted t this extent. However, below adkftional Costs fraty agreed or determined under sub-paragraph, the Engineer mey eso review wihother othr physical condiions-n similar parte ofthe ‘Wore (F any} ware more favourable then octéd resaonably have been foreseen when the Contractor submited the: Tender. if and to the extent that theee mor favourable ccondtions-were encountered, the Engineer may proceed ia socordance with Sub~ ‘Clause 8.5 [Determinations] to agree oF Cetermine the recuctions in Cost which were ‘dua to these condlions, which may be included fas deductons) in the Contract Price ‘end Payment Catiicates, However, the net effect of al adustments under sub- pperagraph fb) and all these reductions, fora the physical condtians encountered in ‘Smile pests ofthe Werks, shal not rast not rection nthe Contract Price. “Tho Engineer may take account of any evidence of the ptysical conditions foreseen. by the Contractor when submitting the Tender, which mey be made available by the Contractor, but shal not be bound by ary such evidence. AN on Rights of Way and ‘The Contractor shall bear ali casts and changes for special and/or temporary rights Facilities chway Which he may requir, including those for access to the Site. The Contractor ‘shall abo obtain, at his risk and cost, ary actional facities outede the Site which be may requite forthe purposes of the Works. KER aaa és : ig A Avoidance of | /5' tractor shall not interfere unnecessarily or improperly with: Interterence ARDEA Py) the convenience of he pubtC, oF \ 16 NSE Conaions el Cantatore Dat Bt{®)therdbzeas' ‘and use Sl acca ota tes and fects, WesbedtNe ‘of whither tey-areipublc or inthe possession of tha Employer or of abies. ‘The Contractor shall inderrrify anid field the Employer harmless against and ronal damages, sot ard exoenses (rckicing egal fs andl expanses) ebuting Fort any uch urnesasary oF improper ilorference, 448 ~ ee Access Route “The Contractor shall-be deemed fo have een satisfied a8 40 the sultablty and valablity of access routes to the Sito. The Contractor shall use reasonabs effets ta prevent any road or bridge from taing damaged by the Contractors trafic or Hy the Contractor's Personnel, These forts shail include the. propor uso of anpropriata veticles and routes. Exdgp! as ceruise stated 1 these Gonaiticns: (@ th GonwasiGr shall (2p between ine Faities) be restonsible’ for any’ rralitenande which my be rege for his use of assess routs; fe) the Contactor shall provide al necessary signs or directions dlerg: dccass routes, end shal obisin’ any gorission which: may ba required trom tho: ____flevant authorise for his uso of routes fers andl fections: 16) the Employer shal not te responsible fot any cleime weer may aribo from tho Use or othenviss of any ancess route, {d) the Employer does riot guarentee the sultablity or avaliiy of pertiouler ‘doceKs routes, and 'e) Costs ue to non-suiebty or non-avelblity, for the: use requked by the “Contrector of access routes shel be bome by thé Contractor 436 . - a - Aransport of Goods Unless ethics tated inthe Partiowar Concitions: {alee Contactar shall give tho Engineer not fos than 21-day! notice ofthe date (op which ary Plant of @ mejor tem of. otber Goods wil bo doliverad to the St; (b) the Contractorhat be nsgponsibe for pecking, osc, teaneparting, recshing, Lnicaging, staring end protecting all Goods and ofher things required forthe Works; and © the Contactor shall ncctmnty and hold the Employer harmiees against er ‘rom alt damages, losses. and expenses (cluding lagel fees and expentes) resuing ftom the transport of Goods, end shall nsgotate and pey al claims _afsng from thet transport. a ———________—- - 2 —— Contractor's “The Contractor shall ba responsible for all Contractor's Equnent. Whan brought on Equipment to the Site, Contractor's Equipment shal be deemed to be exclusively intended forthe ‘execution of the Works, The Contractor shell not remove fom the Ste any major tons ‘of Contractor's Equipment without the consont ofthe Enginoor. However, consert shal ‘not be required fr vehicles transporting Goods or Contractors Personnel off Sk. 418 7 - — -— Protection of the ‘The Contractor shal take all reasonable stops to protect the environment (both on anc Environment ___ off the Ste] and to iit damage and nuisance to paopie and property rseuting from tution, noise and other results of his operations. CContrector shell enaure thet emissions, surface discharges and effuent from the 6 actvties shall not exceed the values indicated in the Employer's rents, ard shall it exceed the values prescribed by applicable Laws, 7| 419 ‘The’ Gontraator shal except as slated beiow, be tesponsble fr the provision of ell Electielty Water and power, water and other services ho my requ. Gas ‘The Contractor shail ba entitled to use forthe purposes of the Works auch supplies cf clecticty, water, gas andl other sonices as may ba avalablo.on the'Ste and of ‘which dotals end prices are given in the Employer's Requiiements. The Contractor shal, at his risk and cost, provide any apparatus necessary for his use of these ssarvices and for measuring the quantiles consumed, “The quentilias consumed and! the amounts a at these prices) for such services shall bbe agreed or determined by the Engineer in accordance with Suo-Ceuse 2.5 | [Employer's Giains] end Sub-Clause 8.5 [Determinations]. The Contactar shal pay {those amounts to the Employer 420 site - Employers Equipment “Ths Employer sell male the Einployet's Eaulpmest any) avatabto rth use ofthe land Free:lesue Material Contractor inthe execution ofthe Works Mvecoordennce wilh he das, arrangements end pices stated 'n the Employers Requirements. Unless othewise stated in the Emgtoyer's Requirements: (© the Einployer. shal be responce for the Eriployer's Equipitent, excont that | (©) the Contractor shal be resporsitte for each item of Ernployer's. Equipment ‘whist any of the Contractor's Personne! is operating it, driving it, eltecting itor it possession or conti of “The eopropriate quantities end the amounts dus fat suc sled pices for the use of [Employer's Equipment stl bs agreed or determined by the Engineer in ecoordenice ‘with Sqb-Clause 2.5 [Employer's Claims) and Sub-Giauss 8:5 (Determinatons), Tha Contiactor shall pay these-amourts to the Employer. “The Employer ehall supply, ftes of charge, the “feeesue meters’ (F ary) iy ‘ecoordarce with the detais tated in the Employer's Requiements. The Employer ‘hal, t is rsk and cost, provide those materials gt tho tne end place specie the Contract. The Contractor shal then aval Inspect them, and shal promptly give ! notice to the Engineer of ery shortage, defect or default in these materia. Uriess clherwise abreed by noth Paros, the Emoioyet shall mediately reiiy the netic ‘artage, detector dotaut. ‘this visual inspection he tree saue meters shell com under he cae, custoxly fd contol of the Contractor. Te Contractor's obligations of inspection, care, ‘custody ard convo shal rot releve the Employer of Yablty for any shortage, defect ‘or detauit not apparent for a visu inspection. 421 — Progress Reports Uniess otherwise sisted ints Particular Constions, monty progress reports shal be prepéred by the Contractor and submitted to the Engineer in 8x copies. The fst report shal cover the period up t the end ofthe fst calendar rionty folowing the Commencement Date, Reports shal be submited monthly treeaer, each within 7 aye ste the last day ofthe peviod Yo which trates, £65, BaReporing shal continue untl the Contractor has completed all work whichis known & ‘uttlandng at tho complotion date stated in the Taking. Over Certificate forthe e aD oe i SEZ lo coor ertcace: 18 NOES orton Cra Prt an Da ats ereaze uc ‘Seoutty of the Site |e) cherls and detailed descriptions of progiess, ‘holuding dah stage ‘of design, Contractor's Documents, procurement, manufacture, ditvory to" Sts; construction, erection, testing, cofrmisslring ard tia operation; ‘&)‘phoiogrenhs showing the status of manuiecture and of progress on the Site: (© for the’ manufacture ofeach main ec of Plant and Mates, the aa of te manuiacturer, manufacture locaton, percantaye progress, and the acti! or sexpected datos of () —_commencertient of manufacture, {@) Gontaotor's inspections, (i) tests, anc (M)-Sepment and nivel at the Sits; (Gs detas deseren in Sub-Ciause 6.10 [Recorele of Contractors Personne! 00 Equine : Bh ape eek niece ete, te tae a ei ‘f) Ist of Variations, notices given undor Sib Clauss 2.6 (Gnployer's Claims] andl notices glier under Sub-Clause 20.1 [Cantractor's Gtaims) @)sefely slatstcs, ieluding detals of ary hazardous: incidtnis ani actives ‘elling to ervronimental aspects and publ relations ‘FY _comparisons of actual and plined progress with details of any events or clroumstanoas which may Jeopercise:the.coripteton.in aecordance-with the Contrast, and the measures bakig (or 16 ba) edopted to overcome dois. lose otherwise stated in the Petioular Condtions: 19 He Osco ta ba eapna tr teri nmr rvs of a andl (b) authorised péreons shall be tinted to the Contractot’s Personne! and the Employer's Persomnst ad to anyother personne! notified t6 the Contractor, by ‘tho Employer or ite Engineer, as authorised personnel ofthe Employer's other ‘corivactors en the Site. “The Contrector shall confine his operations tothe Sita, and to'any edtional areas which may be obirined by the Contractor end sireed by the Engineer es working artas. The Contractor ehst take a necessary precautions to keep Contrectors Equipment and Contractors Pereonnal within the Ste end these actonel areas, anc to knep them off exjecent lend. Daring the execution of the Works, the Contractor shall keep the Site freo from all ‘unnecessary obsisuction, and shal store of dispose of any Contractor's Equipment ot surplus meterls. The Contactor shail clear away and remove from the Site any ‘wreckage, ribbish:and Temporary Works which are no longer required. Upon the issue of a Taking-Over Cortifeate, the Contractor shail clear away. and remove, from that part of the Site and Works to which the Teking-Over Cerificate all Contractor's Equipment, surplus matorial, wreckage, rubbish and Temporary . The Contractor chal leave thet part of the Sito and the Works in a cioan and condition. Homever, the Contractor may retain on Site, during the Detects fication Period, such Goods 3s are required for the Contractor to fut obigations 19434. ‘Fossiis BA oo ‘General Design Obligations BQ ‘AV Tossls, ooing; ates of value or smiquiy, and strdchites ehid-cthier remains oF items of geological oF archaeological iiteest found on the Sto shal bo placed under ‘he. care end authorly of the Employer, The Contractor shall tale reasonabie precautions to prevent. Contractor's Pessorne! or other parsons ftom. removing ot ‘damaging any ot these frdings, “The Contractor shit, ypon dlaoovery oF any’such nding; romptiy gh rotioe tothe Engineer, who chal gous ntrucone for dosing with i. the Contractor exfors delay and/or incurs Cost for complying with the Intrectons, the Contrector stat give & ‘uti potion 1o the: Engineer end shal be ented subject to, Sub-Cleuee 20.1 {Contractor's Cistns} to: |e) sr extension of time for any such delay, IF completion 's or wil be dekayed. ‘uncier Sub-Clause 8 4 [Extension of Time for Completion}, and fe) payment of any such Cost, which shall bp inciured inthe Contract Poe. ‘Aller receiving this futher natioe, the Engineer ehall progeed in eocoriance with Sub- ‘Chhuse &.5 [Determinations] to exroe or determine these catlets. ‘The’ Contractor shal carry out. andl be responstoe fe, the design ofthe Works, Design shall be pineved ty quelfied designers who ere engineers o other professions who ‘comply with the ortere (F ery) stated in the’ Empioyers Recueiments, Unless ‘othewse stated in the’ Contract, the Contractor fist euomit to: the. Engineer tor consent the nee and nartoulbrs ofeach proposed designer nd dasign Suboonivadtor “The: Contactor vearrants that he, his designers end design Subcontractors have the ‘experience and capabilty necessary for the dsign. The Contractor undertokes that the desgners shall be avalable 10 attend aiscussons with the Engrieer at al reasonable times, until the expity dete of the relevant Defects Notification Perio, Upon recthing notice under Sub-Glause. 8.1 [Commencement of Works), the Contractor chal scrutinise the Employer's Requirements fcucing design criteria ancl Ceuns shal apply. ‘The Contractor shall also submit ery other notices which are required by the Contract, ‘and supporting particulars forthe cleim, al as relevent to such event or croumstancs, ‘The Conivactor shal keep such contemporary records as rnay be necessary ti substantiate eny claim, ether on the Sito or at another location acceptable 20 the “Enginoer. Without admitting the Employer’ iabilty the Engineer may, efter receiving any notice tinder this Sub-Cleuse, manor tha, record-Kooping and/or instruc the Contractor to keep further contemporary records. The Contractor sball permit the Engincer to iepact al these records, end shal (f instructed) Submit coples to the Enginoer within 42 days ater the Contractor became aware [or should have beconte aware) of the event or creumstance ging rise to the claim, or within such other period as may bbe proposed by the Contractor ar approved by tha Engineer, the Contractor shat to'the Enginoor a fuily dotallod claim which includes ful eupporting particulars of sof the claim and of the extension of fe and/or adkftional payment claimed. event or circumstance giving sss to the caim has a continxing ettect: {his fly dtated claim shell be considered as interim; conslonce Cate er CentondE (2) {©) the Contractor shat send further interim claims at monthly intervals. ing the accumulated delay and/or amount claimed, and euch futher particulars as the Engineer may rasonably require; and (@ the Contractor shal sencl a nal claim within 28 days atte the end of the effects reguling fom the vent or cicumstans, or within euch other period as may bo proposed by the Contractor and approved by the Enginosr. ‘Within 42 days after receiving a clsim or any further particulars supporting a previous ‘aim, or witin such other perac as may be preposed by the Engineer and approved by the Contractor, the Engnéer shal respond wih approval, or with P3- the runways and taxi-ways (including lighting and signing); + P4- terminal building; + P5- the hangars; + P6- the control tower; + P7—Cabling & Electrical; and + P8—the Baggage Handling. Packages 3 to 8 inclusive are all ‘Yellow Book’, whilst Packages 1 and 2 are ‘Red| Book’. P1 design is carried out by the Employer. P2 foundation design is carried out by the P3, P4, P5 and P6 Contractors. —The Engineer for all Packages is EngCon Ltd, now referred to as ‘the Engineer’. The Site The Site is essentially a sandy/clay material overlying a sloping rock strata (20 deg from north to south) varying in strength and with a potential fault line running diagonally across the Site (west to east) at approximately the mid-point, although this} is not borne out by the pre-tender geotechnical investigation. The main buildings are mid-Site with the Control Tower at the Souther End and the hangars towards the North. I Relevant Dates and Completion Times (as at the beginning of 2010) Package Commencement || Time for ‘Comment Completion 1 []]Enabling ‘May 2008 7.5 years |||Not complete Civils for 3, 4, 6, & 6 May 2010 years _||Sectional Completion for each Package 3 |/Runways and | Dec 2009 4 years Key Dates for Taxiways and various design Associated Works stages 4 ||| Terminal Building Jun 2010 4B years _||[itto | 5 |||Hangars Jan 2010 4years _||[ditto 6 ||[Controt Tower Jan 2010 Byears [ditto | i 7 car Jan 2011 45 years 8 [Baggage Handling van 2012 3.5 years‘TRAINING WORKSHOP AUGUST 2012 - MUMBAI, CHENNA! AND DELHI BASIC INFORMATION SCHEDULE 2008 2009 2010 Gamesaward 01/06/2008 4 PL Enabling. 01/05/09 - 30/10/10 prcerencnmmciea P2chis o1/0s/20- 20/04/13 P3 Runweys etc 0/01/20 - 31/12/13 PaTerminalalég —01/06/10-34/32/14 PS Hangers oyor/s0- 31/22/13, PG Control Tower _01/04/30- 23/32/12 Pree oayonyan -31/05/25 8 Beggage Handling 01/01/12 31/05/34 Games Commence 01/06/2016 2011 2012 2013 2014 2015 2016Enabling Works ~ Red Book Scenario 1 ~— Packay In the Appendix to Tender for the P1 Documents, a Time for access to the Site and a starting date of the 1%* May 2009 is given and a completion date of 30" aorot0. The Contract is awarded to the lowest tenderer on 7 May 2009. Due to internal issues within the Government of Utopia, completion of the acquisition of land is not complete until 31 July 2009. * Do you envisage any problems with the situation as presented and if so, could they have been avoided? — (quote relevant Sub-Clauses)AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) Day2 - Session1AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) SCENARIO 1 RELEVANT SUB CLAUSESAPPENDIX TO TENDER: L Note: with the exception of the items for which the Employer's requirements have been "nsared, the folowing nfrmation must be completed beloro tho Tenders submitted} Sen Sub-Olmwo Dafa Employer's name end eddies ...... 142.2818 oe Contractors rere and-addess ..... 11.2384 Engiioet’s name end addimss........ 1424848 ‘Time for Complation ofthe Works... TASB... Defects Notation Period 0.2... 1.48. trons tasrission systema... 1B... Boverng Law Filing tiguage Lanquaga for communications... “Time for access to the Site... enount of Performanda Securty =... bee 3% ofthe Agceptad Contréct Amount, in the curencies anc proportions in which the Content rica is payable Normab working hous sce 6B. Pee ‘Delay demedes for. the Works . 87 B14A5R) —__ %ofie ral Contrast rico por ‘day. in the currencies and proportions in which the Contract Pca i payeble Meximurn amount of delay damages... 8.7. ____% of the final Contract Pace Wtere ae Provisional Sums: Percentage for adjustment of Provisional Sums... esse esos 18.500) feipie eee EESYi i i 3 ; } 1 5 } 4ag, ——— ‘Confidential Details 113 a Compliance with Laws 4a doint and Several Liability without the Employer's consent, be copied, used or conmmunicated to third perty by the Contractor, except as necessary forthe purposes af the Contract. The Contractor shal disclose all such contidential and other information es the Enginger may reasonetoly require in order to very the Contractor's camplance with ‘ie Contract, “The Contractor shall in performing the Contract, comply with applicable Laws, Unless othonvisa stated in the Panticular Conciions: (@)__ the Employer shall have obtained for shal obtait) the planning, zoning or simier permiseion for the Permanent Works, and any other parisien desortoad in ‘ho Specification as having beon fot being) dotainad by the Employer, and the: [Employer shal indetnify anc hold the: Contractor hariees ageinat and ‘ror the consoqusnoes ot any fala to do so; and {) the Contractor shal give al notices, pay al takes, dies and fees, and obtain ‘al permits, ances and approvals, as fequited by the Lawe In relation tothe ‘execution ancl completion of tha Works and the remetting of any dafacts;arkd ‘tho. Contractor shall indemnity and hold the Employer hannless against and ‘fom the consequences of ary fale to do 80. lf-the Contractor constitutes funder applicable Laws) a joint venture, consortium or ‘her unincorporated grouping of two oF more persons: {@) these persons shal be deemed to be joint and several blot the Emetoyer forthe perfomance ofthe Contract : (©) these persons sta notiy the Employer Of their eel who cha have ation {o bie! he Gontrector and each of these persons; and {© the Contractor shall rot sorts compotion or logalstaus without the por consent ofthe Employer. Bom “The Employer shal give the Contractor ight of access to, and possession of ll parts Cf tha Site within the time {or times) stated in the Appendix to Tender. The right and possession may not be exclusive to the Contractor lf, under the Contrect, the Employer ie required to give (fo the Contractor) possassion of any foundation, ‘sructiure, plant or moans of access, the Employer shal do so in the frie end trianner «tated in the Specification. However, the Eriployer may withhold eny such right or ‘possession until the Performance Scurty has ban receNed. Eno such time is stated in the Appendix to Tender, the Employer shall gia the ‘Contractor right of access to, and possession of, the Site within euch tines os mey bbe required to enable the Contractor to proceed in accordance withthe programme submited under Su0-Clause 8.3 [Programme Che Contractor cufors delay aniVor incurs Cost 38 a result of a falar by the fo give eny such right or possession within such tim, the Contractor shall "iiotice to the Engineer end shall be entitled subject to Sub-Cieuge 20.1 Claes to ‘cnr art x Cation(@) en extention of ine for any such daley, competion is or willbe delayed, Lundor Sub-Ciauso 8.4 [Exension of Tine for Completion, end {0} payment of any such Cost pus reasonable prof, which shat be inctuded fh the Contract Price, ‘After receiving this rofice, the Engineer shalt proceed in secordance with Sub- ‘Clause 3.5 (Determinations to agree or determine these matters. Howover, it and to the extent thatthe Employers tatu was caused by ary err o¢ lay by Ihe Contractor, inducing an ror in, oF dala inthe submission of, any of to Contractors Doouronts, tho Contractor chall not be anéiled fo such extension, of ‘9, Cost or prot, “The'Employér shall (nore fe isin ¢ position to'do so) provide reasonable astiotance to the Cofitractor at the request ofthe Contractor: (@: by obtaining copies of the Laws ‘of the’ Couriry whic ‘are relevent to the ‘Contract but are not readily avaliable, and ©), forthe Contrstors eppications for any permits, ioences or anorovats required ‘oy the Lans of the County: @ which the Contractor is required to, obtain tinder Sub-Clause 1.13. [Compliance with Laws), {9 forthe delivery of Goods, inclusing clearance thraugh customs, eri 1) forths export of Contractors Equipment wher itis removed from the Ste, 28 a a Employer's Personnel The Epioyar sl be response fox enouring tat the Employer's Persomnal and the Employer's other convactors on the Ste: @) co-operate withthe Contractors efforts under Sub-Clause 4.5 [Co-speri, and (Ol take mations similar to tose which the Géntracto is required to take under sib- paragraphs (a), (0) snd (e) of Suib-Cause 4.8 [Sefsty Procestires} and vider ‘Sub-Ciause 4.18 (Protection ofthe Ervionment. 26 Employer's Financial The Employer shall submit, within 28 days alter receiving any request from the Arrangements: Contractor, reasonable evidenos that financial arrangements nave bean mads and aro beng mahtained which wit enable the Employer to pay the Contrast Price fas estinated at that tne) in aocardance with Glaues 14 (Coriract Price and Payend. the Employer nfands to make any material change to's Shania amangements, the Employer shal give nates to the Contactor with cetaiod parteiars 2 ——-—-- — Employer's Ciaims {Fhe Employer considers himself fo bo ented to any payment under any Cleuse of ‘thoze Conditions or otherwise in connsotion with the Coriract, andor to any extension ‘of the Defects Notficaon Peto, the Employer or the Enger shall ge notioe and parlculars tothe Contractor. However, notice is not required for payments dua under Sub-Giause 4.19 (Blectrciy, Water and Gas), under Sub-Ciause 4.20 (Employer's ASidorent and Froe-esve Mater, or or other servos requestd bythe Corio: hotice shall be given as scan as practicable alter the Employer became aware ot nt oF croumstances giving ise to the Gaim. A notice relating to any extension [Defects Notification Period ehall be gven before the expty of such patod. Goal centors 9{the Contractor fs to comply wth the instruction tha Employer shall be entited to corpo and pay other persons to cary out tia work. Exeept tothe extent that tho Contractor would have bean ented to payment for the work, the Contractor shal subject to Sub-Ctause 2.5 [Employars Clans] pay to the Employer af costa arising ‘rum ts feu, Ww oe ‘Ownership of Plant and Each tam of Plant and Materials shel, to the extent consistent with the Laws ofthe Materials ‘Country, bscome the property of the Employer at whichover fs the earier of the following tines, feo from fens and other sneumbrances: 18) when itie deiverad to tho Sto; 1b) when the Contractor is ented to paymant, of the value of the Plant anid ‘Meterais under Sub-Ciause 8.10 [Payrmant for Plant and Materials in Event of ‘Suspension. Unless ofharwise tated nthe: Specification, the Contactor shall pay a moyaltes, ris end other payments for: ©) atu Matos cbteined ftom outside the Ste, and {©) the dspased of retora fram domoitons and excavations tof der surphs rotor (whether naturel or man-made), except 1 the extent that cleposat ‘areas within the Ste are spectted in the Contec, oh ncement, Delays and Suspension Bt Gormmenicementiot Works The Engiiedr shal gle the Contractor not less then 7 days! notice of the Corntrenooment Data. Uniese olhewise stated in the. Particular Conditions, the (Cermenengament Date shall be within 42 days after the Contractor receives the Letter cf Acceptence, “The Contractor shall commence the execution of the Works as soon a8 fs reasonably practicable afer the Commencement Dats, end shel then proceed wit the Works with dve expection and without delay. pe aE EEE - ‘Timo for Cornpiation “he Convctor sot carrot he wok of he Works, an each Seton ff ens ‘within the Time for Completion for the Works or Section (as the case may be), Incheding: {@) achieving the passing of tho Testa on Completion, and {©) completing af work which is stated in the Contrant as beng required forthe ‘Works or Secion to be considered to be competed forthe purpoase of taking- ‘ove under Sub-Clause 10.1 (Taking Over ofthe Works and Sections 2: fhe Contractor shal eubrnta deteled time programma tothe Engheer within 28 cays 2 receiving the notice under Sub-Clause 6.1 [Commencement of Werks). The shall deo submit a revised prograrrme whonever the previous programme ingonsistent with actual progress or with the Gonizactor's obligations. Each ie shall include: conc Canta ComatAVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) Day2 - Session2Scenario 2 — Package 4 ~ Terminal Building ~ Vellow Book The (P4) Contractor starts submitting drawings under ‘transmittal’ slips in October 2010, at the rate, on average, of 50/month. The Engineer is required to review all drawings and give approval to the general layout designs. There is continual exchange of correspondence and the Engineer finally approves the layout designs at the end of March 2011. However, in mid- April 2011, he realises both he and the Contractor has failed to take into account a basic fundamental in the design which affects the layout of the Terminal Building and withdraws his approval, instructing the Contractor to re-submit his design, within 2 weeks. The Contractor immediately submits his notice of claim and follows up at the end of October 2011 with his claim for redesign costs, and for an extension of time on the basis that the Engineer had approved his design and drawings and was fully aware of the ‘basic fundamental requirement’ as he was responsible for inserting them in to the Employer's Requirements. ining ‘The Engineer rejects the claim at the end of January 2012'and at the begi of March 2012, the Contractor sends the Engineer a notice of dispute saying he is going to refer the matter to a DAB. * Which Sub-Clauses are relevant to this situation? «Were the actions of the Engineer correct? © Were the actions of the Contractor correct, including referring to a DAB? * What actions could have been taken by Contractor or Engineer to improve matters? © The Engineer proposes to the Employer that he represents him at the DAB. Is this a good idea?AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) SCENARIO 2 RELEVANT SUB CLAUSESSez O) 428 Al Tossis, con, articles of value or entiquly, end structures and other remins or Fossile items of geological or archaeological interast found on the Site shall be placed under tho cara end authority of the Employer, The Contractor shell take reasonable ‘precautions to pravent Contractor's Pereornel or other persons ftom removing or damaging any ofthese findings. ‘The Contractor shall, upon discovery of eny such finding, promptly give notin to tho Enginaer, who shal issue instructions for deeing with it. Ifthe Cantractor suffers detay ander incurs Cost from complying with the instructions, the Contractor shall give a futher notee to the Engineer and shal be entitled subject to Sub-Clause 20.4 [Conbacter's Claims) to: (@) er eitansion of tins for ery such’ dotay, If completion is or wil ba delayed, under Sub-Ciauise 8.4 [Exlension of Time for Completion, and. (@) payment of any such Cost, whic shal be included in the Contract Price, ‘Afr idoaiving this futher notice, the Enginéer stil picéead in accordance with Sub ‘Clause 3:5 Detentions) to agree oF deterrine tase matters. BA Gavioral Design “The Coiti@etor sel carry out, erdbo fasponibla for, the design of the Werks. Design ‘Obligations hall be prepared by quaiied designers who ais engines or other proeesionalé whe cconsgly Wily the itis any) stated In the Eriployer's “Requiromete. Uribe cothenwise: stated in the Gontract, the Contractor shall eubmit to the Engineer for’ ‘corigant the name and particulars of each prapastd designer end desien Subcontractor “The Contractoi-werrants that he, his designers and design Sibsoritactots have the expariende and capablity necessary forthe design. The Contctor ndertakes that ‘the designeis shall be availabe to attend ascussions with the Engheeer st at reacenablo times, unl the expiry date ofthe relevant Defects Notification Pod, ‘Upon tacking. notice undér -Sub-Clause 6:1 [Commencement of Works], the ‘Contractor shel sorutnice the Employer's Requremants (notudng design cfitera and ‘clcliations, tf en) and the tems of reterence mentioned in Sub-Cisuse 4.7 (Sating Ou. Within the period stated in the Appendix to Tendex, calosated from the ‘Gomnmercernert Deto, the Contractor shal give notice to the Engineer of ery error, ‘tutor other defect four inthe Emoloyar's lequlrements oF these items of refereeco, ‘fice rioolving this notice, the Engineer shat determine whether Clause 1 (Veiatons ‘end Adjustments] shal be applied, and shal give notios to the Contzctor acoordingy. If ‘and to the extent that filing account of cost and tima) an expavienced contractor exercshig due care woud hve discovered the err, feuit or other defect when ‘examining the Ste and the Employer's Requirements before submitting the Tender the “Time for Completion shall not be extended and the Cantract Price shal not be adjusted, 52 — = ‘Contractor's Doeumenis The Contracter's Documents shal coms he tehrica documents spectedin the AE BeEOOVe"'S Feceirements, documents requted to saisty al reguetory spprovals, nd LER RB eocuments cescived in Sub-Clavse 6.8 [As But Documents) and Sub-Clavee js! ROperation and Maintenance Manuals}. Uniess otherwise stated in the Employer's (BEEP BAe atrements, the Contractor's Documents shal be written in the language for \ Bet p egarisations cafned in Sub-Cuse 14 Law and Language a craw tcauto PeeMele ‘Sram Coons Se2 (2) ‘The Cortractor shall prepere alt Contractor's Doourants, and shell aiso prepare any ‘other doouments necessary to instruct the Contractor's Pereonnel. The Employer's Persannel shall have the right to inspect the preparation of ll these documents, ‘wherever they are being prepared. Ifthe Employer's Requraments describe the Contractor's Documents which are to be submitted to the Engineer for review andlor for approval, they shall be submited accordingly, together with a. notice as described below. in the following provisions of this Suio-Clause, () “review period” means tha period required by the Engineer for ‘review and ff 60 specified) for approval, and (i) “Contractor's Documents exclude eniy ootirients which are nol spectiod as, being required to be aubvritied for ratiaw andlor (or approval. Unless otherwise stated inthe Employer's Requirements, ach review period tal not ‘exceed 21 days, calaueted ftom the date on which the Engrs roelves a Contractor's Document and the Conirectors nice. Tie notice shal state tht the Covivector’s ‘Bogurtent is concidared rea, both for review and approval fs spect) accordance wilt tie Sub-Ciauos.and for use. The nolioe shal aso ate tht the Convector's "Dueiment comolea wth te Corie, or he extent fo which it doesnt comp. “The:Enginber may, Wihin the Tele peviod, give. noted to tho Contactor thet Gontiactr's Docurnent fas. o the extent slated) to comply with the Contact. re ‘Contractor's ‘Document o fells to comply, shat be reciied, resubmitted and reviowed (and, #f spectied, approved) in accordance vith this Sub-Ceuse, atthe ‘Contre cost, Fox each part of the Works, and excent to the 6xtent thatthe piior approve! or consent ‘of the Engineer shal have been obitaned: (in tho" case of @ Contractor's Document which hase spectied) best sib or the Enghser's approve te Fngineer-snl ge notion to tho Corrente thst th’ Contact's Documents eproved, wth ortho comments tht Yao tothe extent stated) to comply with the Contract; {@ —-exeoutfon of such. part of the Works shal not commence unt the Engineer has approved the Contractor's Document; and @ the Enghosr chal be deemed to have aperoved the Contacto's Doourment upon the expiry of the maview periods for all the Contractor's Decumerte which ae revert othe delgn and exouton of such part, Unoa tho Engineer hea previously noted ohorwsein accordance wth eub-pevagraph (ei execution of euch part ofthe Works shal not cornmence pit tothe exy of the review periods for all the Contractor's Documents which are relevant to its: design and execution; (9 execxtion of euch par ofthe Works sal bein accardance with these revwed (end, spected, approves} Conractor’s Documents and @) if the Contractor wishes to modify any design or document which has: proviously boen submitted for review (and, if spectied, anprove, the Contracior shal immediately give notice 10 the Ergineet, Thetetta, the CGontrecto: cho submit rvaod dooumerts to the Engineer in accordance ith the nove procectu. A “The Engineer instructs that further Contractor's Documnents ere required, the ractor shak prepare therm promptly. OREO 7eZ (BS) Any such approval or consent, or ery review (under tis Sub Clauss or otherwise) shall net relive the Contractor from any ebsigation or responsibly 53 Contractor's Undertaking The Contractor undertakes that the dasign, the Contractor's Documents, the execution end the completed Works wit be in aocordenice with: @ the Laws inthe Country, and (©) the documents forming the Qoniract, as altered or modified by Verietions. 54 ‘Technical Standanis and The design, the Contractor's Dacuments, the exaoution and the completed Werks Fregulations shal comply withthe County's technical standarcs, ouling; constuction and “stvitaniental Law, Laine applicable t the produot boing produced fom the Wor, and other standards spectied in the Employer's Requiramants, apploabio to the Werks, or defined by the applicable Laws. [A nese Laws sna in teapect of the Works enc! watt Section, be those preveing ‘when ihe Worka or Seoiion ere taken over by the Eripiover under Clause 10 {Employers Taling Over). Raterences in the Contract to published standards chal be ‘understood 10 be tferenioes to ths ection applicable on ine Base Dail, urlest sted ‘atherniéo, lfcrangéd or now eppicable standards coms into force ifthe County after the Base Date, the Contractor shel ‘give notice to the Engineer ene (F apnroprate) submit ‘propdsals or compliance. the event that (a) the Engineer determines thet compliance is required, and 8) the proposals for comnlience consilite a variation, ther the Engineer shal iniiate& Variation in accordance with Giause 18 [Varistors and Agjustments| Training “The Contractor shall cary ut tho taining of Employer's Personnel inthe operation ‘and maintenenco: of tho Works to tho extent specttied in thy Employer's Requirements, tf the Contract species tmsiing which fs to be cared out betore faking-over the Works shal rt bo consared to bo completad for tho purposoe of ‘aking-over under Subr Gayso 10.1 [ating Orer of the Works and Sections} unit this ‘vat has been completed. 86 FE ee Ee ae 7 ‘As-Built Documents Tha Contraotor shall prepare, and keep up-to-date, & complete sot of “as-bui” records of the execution ofthe Works, showing the exact as-bultlocatons, sizes andl details of the work as axeciited. Tiese records shal be kapt on the Site and shat be sed exclusively forthe purposes of this Sub-Clause. Two copies shall be supplied to the Eiginear prir to the commencement of the Tests on Completion. Inadion, the Contractor shal supply to the Engineer as-buit drawings of the Works, showing af Works @s executed, and submit them to the Engineer ‘or neview under Sub-Cause 5.2 [Contractor's Documents}. The Contractor shalt obtain the consent of io the Inaus of any Taking Over Cerificate, the Contractor shal supply to the oor the epectied numbers and fyoos of copies ofthe relevant as-buit drawings, fance with the Employer's Raquirarents. The Werks shall not be coneidered oti et Gxt or Par OBB 22Sa 2 (4) this Clause, such ackitional or broader force majeure events or cicumstancss shal ‘not excuse the Contractor's non-performence or entitle him to reef uncer this Giause. 198 Optional Termination, {the execution of substelal ll the Works in progress ls provented for a continuous Payment and Release period of 84 days by reason of Force Majeure of which notioe hes been given undor ‘Sub-Clause 19.2 (Notice of Foro Majeure}, or for mutiple periods wihich total more than 140 days due to the same notified Force Majcure, then ether Party may give to ‘the other Party @ notiog of termination of the Contract. in this event, the termination, hall take effect 7 days afta the notice fs gen, and the Contractor shall proceed ir accordance with Sub-Clause 16. [Cessation of Work anc! Removal af Contractor's Equipment). Upon such ternation, the Enginear shall determine the Velie of the works done and lesus8 a Payment Certificate which shal inotuds: (2) the:amouints payabe for any work carted out for whic a price fe tated n the ‘Sonat ©) the Coot of tant and Matorele. ordered for the Works whith have been dolvered to: the Contractor, or of whieh the. Contractor 1 Hable to accept dlvery: this Plant and Metarals shel become the propefty of (and ba at the ‘ek of the Employer when paid for by the Employer, and the Contractor shal ‘lace the same at the Employer's csposal {@ any ther Cost or billy which inthe oournstances veo reasonably inauned by the Contractor the expectation of eomplting the Werke; (@ the Cost of removal of Temporary Works and Contractor's Equlpment rom the Sito end tha return of thaso tems tothe Contractors works fn his county (or to any other destination at ho greeter cost ard {@ the Cos of reparation ofthe Gontracio’s staf and cbour employed wholly in connection with the Works atthe date of terination, 187 = : ee tease frorn Natnithstencing ony othor prousion of this Ceuse, If any: event or creumstanos Performance outside the contol of the Parties frcluding, but not limited to, Foree Mejeure) arises under the Law which mekes i imgoesibie oF unlawful for ether or both Parts to ‘uit its or their ‘contrcival obigetonss or which, under the law governing the Contract, entitles the Parties to be released from further performance of the Contract, then upon notice by celther Party tothe other Party of such event or circumstance: (a) the Partce shel be élechargod from further performance, without prehlee to “the rights of ether Paty in respect of any previous breach ofthe Contract, and {@) the sum payable by the Employer tothe Contractor shal be the same as would have boon payable under Sub-Clause 19. {Optional amination, Payment anc ‘Retease) Fthe Contract had been terminated under Sub-Giause 19.6. ch Qeocies and Arbitration 1f the Contractor coneidere timself to be entitled to any extension of the Time for iG:sComploton andlor ony addtional payment, under any Clause of these Conditions or fenwise in connection with the Contract, the Contractor shall gi@ notioa to the jnéer, describing the avent or circumstance giving rsa to the clalm.-The nate ibe given as soon as practicable, and not later then 28 days aftar tho Contractor 1e were, or should heve become aware, ofthe event or circumstance. 59| se “2 Cs) Ifthe Contractor falls to gve notice of a claim withia euch period of 28 days, the Time {fos Completion shall not be extended, the Contractor shall not bs enttled to edition! payment, and the Empioyer shall be discharged from alrlabiy in connection wit tho, ‘aim, Otherwise, the flowing provisions ofthis Sub-Clause chal ppl. ‘The Contractor shal also submit eny other notices which are required by the Contract, ‘and eupporting particular forthe caim, al as relevant to such event or croumstentce. ‘The Contactor shal Kean euch contemporary records 26 may be necessary 10 substatalo ery dam, eter on the Ske or at enothor location acceplatio to the Enginoax Without acting the Employer's fit, the Engnger may, efterrecelvng -any-neiloe under this ‘Sub-Clause, monitor the. record-keeping and/or Instruct the Contractor to Keep further contemporary records, The Contractor shall permit the Engineer to inspect ‘all these records, and shal (f instructed) submit copies fo the Enghiar Within 42 cae eter the Contractor beosme aware (or should have become aware) ot the evert er cicumetarice giving rico tothe claim, cr within: such other period as may be proposed by the Contrattor and approved by the Engineer the Contractor shall ‘Sond to Ui Engineer a filly datelied cleim which includes fal supporting particulars of tho basis oe elim and! of the extension of tne and/or adional paymont claimed, Atte evant or Grcuristance giving rise tothe ci hess & continuing eect (©) shiouly detalad cm shall be considered es interim: (6) tte Contactor shall gend futher interim claims at monthly intervals, hing the sceurulated delay andor amount clamad, and such further partoulrs a the Engineer may reasonably rerire: and {6} the Contractor shell cond e inal cm win 28 days ater the enc ofthe eects reauling fom the event or excurnstance, or wah sush other period asa bo proposed by the Contvector end approved by the Engineer. Within 42 days efter receiving @ lain oF any further particulars supporting a {revious Gaim, or thin such othor pviod as may be proposed by the Engineer and approved by the Contractor, the: Engineer shall respond with ‘ppproval, or with ‘isapprovel and datelled comments, He may also request ery necessary further partoulre, but shal nevertheless glo his response on the principles ofthe cles ‘within such time. [Each Payment Cortiioste shall include stich amounts for any. claim as have been ‘eaponebly substantiated as dus under the relevant orovision of the Contract. Unies ‘and unt the parloulare euppied are suficiont to substantiate the whole of the claim, the Cortrector shall only be antled to peymont for eubh part of the claim as he has tigen able fo substantiate, ‘The Engineer shall prooged in aovordance with Sub-Clause 8.5 {Daterminetions} to ‘agree oF determine @) the extension (f any) of the Time for Completion (aefore or after ‘ts expig) In acoordence with Sub-Clause 8.4. [Exlensian of Time far Completion), and/or (the additonal payment gf any} to which the Contractor is entitled uncle the Contract. “The requiements of ths Sub-Clause ae in action to those of eny other Suib-Clause ich may epiy to a claim. the Contractor fas to comply with this or another Sub- In relation to ary csim, eny extension of ime entdor exittonel paymont sha cunt of the axtont(f any) fo whic the false has prevented or prejudiced inwestigaton of the cam, uriess the claim fs exciulad under the second yaph of this Sub-Clauce. 230 os S 60 onion of Cote ond Dass20.2 Appointment of the Dispute Adjudication Board 203 -—— Fallure to Agro Disputo Adjudication Board de ZL) Digputes chal be adjudicated by a DAB in adcordanes with Sub-Ciause 20.4 [Obtaining Dispute Acjuctcetion Boerdl’s Decision). The Perties shal jointly eppoint @ DAB by the date 28 days alter a Parly gives natice to the other Party of iis itantion to refer a depute to @ DAB in accordance with Sub-Clauss 20:4. ‘The DAB shall comprise, as stated in the: Apperidix to Tender, ether one or thros stably qualifed persons (‘the merits"). the number Is not so stated and the Parties do not agree otherwise, the OAB shall comprise threa persons. Ifthe DAB is to cornprise three persons, each Party shall nominate one member fot the epprovel of the othor Party, The Parties shall consut both these members. and ‘shal agree upon tho third meriber, who shal be appointed fo eet as cheman. However: ia lst of potertal members is nctudsd in the Contact, the merobere erat be selected from those on thelist other than anyone who is nile or unwting to accept appointment to the OAB, “The sgroamsnt bétwaen the Parties end ether te gole meme: (‘adjcttetor] or ‘sch of the three members shal ncorporete by reference ths General Covidtons of ‘Dispute Adjucation. Ageéement contsined i the Append to these Gersral ‘Condtione. with such amendments are agreed between tem, “The terme of tho rerrunsiation of sitter the sole member or ach of the three imembers shell-be mutually egiéed upon by the Panios whieragreatig the farms of ‘apoointment, Each Parly shall be responsible for paying one-half of his remitneration: tt atany tine the Parties 20 age, they may appbint & suitably quasied pereon oF ‘persons 16 replace any’ one or more members of te DAB, Unless the Parties soree ‘oihernise, the appointinent wil come ito effect fa member dectiies to act or is Unable t0 aot ase result of ean, disabilly, Fesignation or terminalion of appointment. “The replacement shall be appoint in the sae mariner as he replaned person wos: Toquited to have been nominated or agreed upon, as daseted in his Sub-Ciauee “Tho appointment of ery member may bs terminated by eval agreement of both Parties, but not by the Employer or the Contractor acting alone, Uriess otherwise ‘egreed by both Perties, the appointment of the DAB (including each member shell ‘expire when the DAB has given its decision on the dispute refered to it under Sub- Clause 20.4 [Obtaining Dispute Adjudication Board's Decision), unless other igputes have boen refered to the DAB by that time under Sub-Clause 20.4, in ‘which event the relevant date shall be when the DAB hes algo given decisions on thase disputes. Itany of the folowing conditions apply, namey: (@) tho Partice fll to agree upon the appcintment ofthe sole member of the DAB ‘by the date stated in the fst paragraph of Sub-Ciause 20.2 Appointment of the Dispute Adjuctcation Board, () either Paty falls to nominate a membar (for epproval by the other Pert) of a ‘DAB of three persons by such date, the Pertes fal to agras upon the appotntiment of the thitd member {to ect 2s chairman) of the DAB by such dato, or the Pertics fall to agree upon the appointment of a replacement person within £42 days after the date on wrich the gcke member or one of the three members dealings to act or Is unable to act as a result of death, cisely, resignation or ‘s:mination of appointment, 61Se 2 (7) ther the appointing entity or offiie! named in the Appendix to Tender shall, upon the: request of sther or both of the Perties and after de consultation with both Parties, ‘appoint ths member of the DAB. This appointment shal be final and conciusive. Each Party shal be responsive for paying one-half of tHe remuneration of the appointing ently oF offi, a depute (ey kind whateco.) eros been he Paro connection th, or ating out of, the Contractor the execution ofthe Works, intuding any dsptte as to ‘any certificate, determination, instruction, opinion or valuation of the Engineer, then afte: a DAB has been appointed pursue to Sub-Clauses 20:2 npointment of the ‘DAB and. 20:3 Fale to Agree DAB} ether Pexty may refer the césputo in wikg to the DAB for is decision, with copies. to the other Party and the Engineer. Such ‘faronce shall state that itis given under this Sub- Claus. For a DAB of three peor, the DAE shall be daemet! to have: received such rofeterice an the date when it received by the chairmen of the DAB. Both Pavles shall promptly make availabe to tho DAB ai nvrtation, access to the ‘Site and anproprate fects, as the DAB may requtre forthe purpose of meking @ ‘decision on such spule. Tae DAB shal be deemed to be rst acting as abiratoe). ‘Within 84 daye after receiving such reference, or the stivence payrment refered to it Clauise 6 of the Aspendi - Generel Conditions of Dispute Adjudication Agreement, ‘whichiver deta is later, ot within such olher period as may be preposed by the DAB. ‘and approved by both Perils, the DAB ehall give its decision, which shal be reesoned cand ehal-etate that Ibis given under this Sub-Ciause, However, tf nether of the Partles bas paid In full to invoices submitted by-each member pursuant to Clause 6 of the Appantix, the DAB shal not be obliged to give tts decision unt such mwolces have 'boen paid in full, The decision shal be binding on bath Paros, wiio shell prompty give ‘effect toi unless andl until t shalt be revised in an afticabla settlement or an erbitral award as. desorbed below. Unless the Contract hss altpady been abandoned, ‘epiidatet or terminated, the Goniractor shall continue to proceed with the Werks sccordance with the Contract. Wether Party is clssatisiod with the DA's decision, the ger Party may, witin 28 ‘day after recaiving the decision, give notice to the other Party of its dissatisfaction. if fhe DAB fale to ge te dation within the parod of 84 days (ores otherwise eperoven) ‘after receiving such teference or such payment, then sither Perty may, within 28 days after this period has expired, give notics to the other Party of ite dissatietaction. Inter event, this notice of cissatisfeation shal stats that tis given under this Sub- ‘Glause, and shall set cut the matter in dispute and the reason(s) for dssatisfacton, [Excap! as stated 1 Sub-Clause 207 [Falure to Comply with Disoute Adudcation ‘Board's Deoision} and Suo-Ciause 20.8 (Expiry of Dispute Adjustcation Board's Appcintmenty, neither Party shal be ented to commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance wih this Sub-Ciause. {the DAB has given its decision as to @ matter in ckspute to both Parties, andno nctioe Of cissalisiaction has been given by either Party within 28 days afte It received tha ‘DAB's decision, then the decision shat! become final and binding upen both Pertss. jon, However, unless both Parties agree otherwise, arbitration may be orn of Cents rau Caen atS< 29) commenced on oF alter the fity;sith cay after the day on which notte of dissatisfaction wes gen, even fo attempt at amicable satlemont hes been made 206 ~ -——__-_-- — Arbitration Unless cettled amicatiy, any dispute in respact of which the DAB's decision (fany) has not become final and binding shell be Grily salted by intemational asitration. Uriess. ‘otherwise agreed by both Partios: @) the cispute shell be Snely settled under the Fules of Avbitraton of tho International Chamber of Commerce, (©) the dispute shal be seitied by three erbitralors appointed in ancofdance with ‘these Fes, and (6) the ertiraticn shell be condubtedtin the language for communications detined in Sub-Clauge 1:4 [Law and Language}. ‘Tho rbitrator(s} shall have fuil-power to open up, faview snd revise any certicate, \detertinstlon; instruction, opinion oc valuation of the Engineer, and any decision of tha OA, overt othe copa, Nang aba cunt te Eleaf beg clel ‘ab a-vitness and ohving evidence before the artitratoré) on any matter whatsoever relevant:to the dispute, \NelterParty shal be trted the plocadings bette arbtretr() othe evidernoe ‘or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction, Any-decision of the DAB shall bb eairissbe in evidence h the eration, ‘Aiton. may be commenced prior to or after completion of the Works. Ths ‘obligations of the Parties, the Engires: and the DAB shell het be altered by reason of _any sibitration being conducted during the progress of the Works. Board's Decision (a) ltr Patty has given notios of cissatistaction within the period stated in Sub- Glayse 20.4 [Obtaining Dispute Adjucoaton Board's Decision}, ©) the DAB's related decision (any) has become final and binding, and (6) 2 Patty fais to comply with this decision, thon the other Parly may, without prejudice to any other rights t may have, weer: the faye tuoll to aritation under Sub-Clause 20.8 [Arbivation). Sub-Gavse 204 [Obtain Dispute Adualcation Board's Decision and Sub-Clause 208 (amicable ‘Softement| shat not apply to this raterenns. Expiry of Dispute tha depute erece between te Pats connection wt, or erg ost tho Adjudication Board's Contract or the execution of the Works end there is no DAB in place, whether by Appointment reason of the expiry of the DAB's appointment oF otherwise: (8) Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision] and Sub- Clause 20.6 anicabia Satiement shal not apply, end (b) the dispute may De soferod diety to erbitvallon under Sub-Cinuse 20.6AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB Day2 - Session3Scenario 3 ~ Package 2 — Civil Works ~ Red Book In the P2 (Civils) Contract there is a Sectional Time for Completion of the P4 (Terminal Building) foundations of the end of November 2011. The Contractor has programmed his work so that he requires excavation drawings from the P4 Contractor by 30 April 2011, followed by the reinforcement drawings, 6 weeks later and further designs for the columns and other concrete works underground within 2months of that date. The Engineer does not comment on the programme, although, just before departing on holiday to Turkey (for the 6" year running) in mid-April 2011, he is aware that the P4 Contractor has started submitting drawings and feels he has plenty of time to deal with the matter when he returns in 3 weeks’ time. On the 28" April 2011, the P2 Contractor sends an RFI to the Engineer saying he is entitled to the excavation drawings by the time shown on the programme, accepted by the Engineer by default as it was not commented on. The Contractor then writes to the Engineer on 1* May 2011 saying he has heard nothing from the Engineer and intends to send his claim in next week because his workforce is standing. He also states that of, course, this has a knock-on effect on the columns and the concrete underground work, all with their own Time for Completion. + What are the causes of this claim? © Were they avoidable? © What actions can and should the Engineer take, giving references to applicable clauses?After a lengthy phone call with the Contract Director, the Engineer eventually, on 31® July 2011, awards an extension to the Time for Completion for the Section (Construction of Foundations) of the end of 2011. The Contractor does not accept this and submits a claim, including delays to the other Sections, but the Engineer rejects the claim on the basis it is time- barred on the other Sections. The Contractor asks for a 3.5 Determination, which the Engineer gives in mid February 2012. The Contractor then submits a dispute to the DAB. © Was the Engineer correct to award the extension to the Time for Completion? * Was the Engineer correct to ‘time-bar’ the claim? © What role do you envisage the Engineer playing in the DAB Process?AVOIDANCE AND MANAGEMENT OF CLAIMS & DISPUTES UNDER FIDIC (incl CONS, P & DB, MDB) SCENARIO 3 RELEVANT SUB CLAUSESSe3t) General Conditions Genfral Provisions ut Detnitions 444 “The Contract Seow Contre {tv the Contitions of Contract (tiese Conditions’), which Inolude Perticuler Conditions ‘and these Generel Condioris, tho folowing words end expressions shal have the, _meaniegs stated. Words inciosting persons or parties include cornorations and other ‘egal entities, except where.the context requires otherwise, i 11. "Contract? moans the Contract Agreament, the Latter of Aacantarcs, the Letter of Teider these Conditions, the Speciation, the Drawings, the Schoculss, and the further documents Of any} which ere fsted in the Contract Agreement ors the Laltorof Acceptance. 1112 “Conirast Agreefnent’ means the contrect agreement ff any} retorted to In ‘Sub-Gause 1.6 {Contract Agreement. 4.14.3 “Latter of Acceptanice" means the lets of format acceptance, signed by ‘the Employer, of the: Letter of Tender, including any annexed memoranda, comprising agreements betvean and signed by both Pertes.f theres io eile of acceptance, the expression ‘Letter f Acceptanos" means tie Contract Agreomant and the date of issuing or recaving the Letter. of ‘Accopience means the dete of cigning to Contract Agroormant. 1.1.1.4 “Latter of Tender moons the documesit ented letter of tender, which wae ‘cotipleed by the Contractor and incixdes the signed offer to the Employer Tor the Works. 1.15 “Specification” means tne document entitled specication; as included! in ‘the Contract, and any additions and modifeations to the specication in ‘accordance with tha Contract. Such documert specifies the Works, 41.1.6 "Drawings" means the drawings ofthe Works, as inciuded jn the Contract, ‘end eny additional end modified drawings iseued by (or on babalf.of) the ‘Employer in aooordencs wih the Contract 4.4.1.7 "Schedules" means the doournent(s)antited schedules, completed by the ‘Contractor and submitted with the Letter of Tender, a included in the Contract. Such document may inciude the Bil of Quaniites, data, Ess, and ‘Schedules ofratas ancior prices. 444.8 "Tender" maane the Lettor of Tender and all otter docunients which the Contractor submitted with the Letter of Tender, as included in the Contract. “Appendix to Tender’ means the completed pages entiled appendix to fender which ere appended to and form part of the Letter of Tender “40 "BW of Quentities” and “Daywork Schedule’ mean the documents 80 named (f any) which are comprised in the Schedules. 119 Delayed Drawings ot Insteuotions. 140 Emplover’s Use of Se. 3 Ce) ‘Teeter ea oto to te Erin wnt i yt delayed or disrupted if any. necessary drawing or- instruction Ts Not isstied to the Conttactor within a partioular time, which shall bereasonable. The notice shell include ‘details of the necessary drawing or instruction, details of why'and by when ft should ‘be etiod,-end details of the nature and emount of the delay or disruption ety to. be suilefed if tis ata \Vthe Contractor suers delay and/or incurs Costas a resut of &falare ofthe Eniginaer to'iso0e the notifed drawing or instruction within a time which is reasonable anc is _spociied in the notice with supporting detals, the Contractor shall give a further notice 10 the Engineer and shal be ertlled subject to Sub-Clause 20:1 Contactor’ Claims] to: an .extoneion of time for any such dely, it cbimplalion is or willbe delayed, under Sub-Glause 8.4 [Exansion of Time tor Completion], and ©) payment oFeny such Gost pus reasonable prof, whikh shall be inatuded in the Contract Price. ‘Ail recehiing this futher notice, the Engineer shal proceed in accordance with Sub- ‘Glause 3.5 (Determinations) to agree or deternine these matters, However, if and to the extent that the Engineer's fare wap caused by‘ any etror or delay by the Contractor, including an err in, or delay'n the submission of, any of the ‘Cantrector's Documents, the Contractor shal not be entitled 0 such extension of time, Cost or prof, ‘As between the Parties, the Contractor stal retain the copvriaht and other intelectual53 (3) “The partiouare shell spodty the Clause or other basis ofthe eaim, and shall include: ‘ubetantation of tho amount end/or extension to which the Employer considers. ‘ims to bo entitted in connection withthe Contract. The Enginser shal then proceedt in accordance with Sub-Clauso 8.5 [Determinations] to agree or determine) the ‘amount (i any) which the Empiayer is entitled to be peid by the Contractor, and/or {§ the extension ff ary) of the Defects Notification Period in eooordance with Sub- ‘Clause 11.3 [Extension of Oefocts Notifcation Period}. ‘This amount may be included as a deduction in the Contract Price and Payment Corttfcates. The Employer shal only be ented to sat off against or make ary deduction from an amount cortifed in a Paymmant Cartiicate, or to otherwise ci against the Contractor, in 2ccordance with this Sub-Ciause.. Thgdpaincer 31 Engineor's Dutiss and The’ Employer shall appoint the Engineer who shall cary Gut ths tuties assigned to ‘Authority ‘him in the Contract. The Engineers staff shal inolude surtably qualied engineers anc ‘thor profecsionals who are competont to cary out thess duties. “Tho Engineor shal have no authority to amend the Contract. “The Engineer may exercise the euthorty attloutable to the Engineer es epecifed In-or necessarly to be imalled from the Contract the Engineer is required to obtain the: appreval ofthe Employer before exercising e speciied authority, the requirements shell be as stated in the Parlicult Conditions. The Emoloyer undertakes not to impose ‘further constraints on the Engineer's author, except as agreed with the Contractor. ‘However, whenever the Engineer exercises a speciad authority’ tor wihich the Employer's appreval ie roquied, then (lor the purposes of the Contract} the Employer ‘shal be doomed to-have given aporovel. ‘Except as othiennige stated in those Conditions: (@) whenever carrying out duties or exercising authority, speciied ln or imped ty the Contact, the Engineer shal be daemed fo act for he Employer; {©} the Enginoor has no authori to relieve ether Perty of eny duties, obigations or responsiolties under the Contract; and © ery enprovel, check, carticate, consent, sxaminetion, inspection, instruct, rrotice, proposal, request, test, or similar act by the Engineer fncluding absence ‘of cleepproval) shall not refeve the Contractor from ary responsibly he has under the Contract, Including responsiblity for errors, omissions, discrepancies ‘end non-compliances. 82 —~ Delegation by the ‘The Engineer may from time to time assign duties and delegete authory to assistants, Engineer ‘and may also revoke auch assignrnent or delegation. Thesa assistants may inckde a resident engines, and/or independent Inspectors appointed to inspect and/or test ‘toms of Pant andor Materials, The assignment, delegation or revocation shal be in vying and shall not take effect unt! copies have been received by both Parties 7 unless otherwise egroed by both Parton, the Engineer shal not delegate the pit attern ay ‘matter in aocordence with Sub-Clause 3.6 [Deverminations} 8 shell be sultebly qualified persons, who are competent {0 cany out these Cters.l Gos ter Conatee 19oe se > 4) duties and exercise this authority, and who are fluent in the language for ‘communications definad in Sub-Clause 1.4 [Law and Language). Each easistant, to who dutts have boon assigned or authorty has been delegated, hal ony be authorised to issue insbuctons to the Contacto tothe extent definad by the delegation. Any approval, check, certificate, consent, exarnation, inspection, Instruction, notice, proposal, tequesl, txt, or simfar act by an dessa, fa 2ocociance with the delggstion, shall heve the same effect as though the. act hac boon en act of the Engreat. However (6) any fare to disapprove any work, Plant or Matariis shall not constiute ‘saprava end shal tharefare not prejudice the right atthe Enger to reject the, work, Plant ot Materials, {0) tis Contiactor questions any delertirtion or trustion Of an aacstert, the ‘Contrator may refer the matter to the Enghsey, who shal promt. oom, -reverse or vary the delemination crinsiruction, Instructions ef-the “The Engineer may issue to the Contractor {at ay tins) instructions

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