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THE FOUR FIDIC 1999 CONTRACT CONDITIONS

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THE FOUR FIDIC 1999 CONTRACT CONDITIONS

THE FOUR FIDIC 1999 CONTRACT CONDITIONS:

    CLAIMS & ADJUSTMENTS OF THE CONTRACT

    Peter L Booen - FIDIC'S Principal Drafter and GIBB's Head of Contract

    Presented at the Seminar "FIDIC Global Conditions of Contract", New Delhi, January 2001

    In the various Sub-Clauses, the Contractor's entitlements to claim are expressed using similar wording, typically as follows:

    "If the Contractor suffers delay and/or incurs Cost .., the Contractor shall give notice... and shall be

    entitled subject to Sub-Clause 20. 1[..], to:

    (a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.

    4[..], and

    (b) payment of any such Cost [plus reasonable profit], which shall be included in {EPCT which shall be

    added to} the Contract Price."

    Note the following aspects of this typical wording:

    ; "the Contractor shall give notice...": which is obligatory, but a failure to notify may be due to

    him not having suffered delay and not having incurred Cost.

    ; "the Contractor ... shall be entitled ...": which is not stated as being subject to anyone's

    opinion.

    ; "Subject to Sub-Clause 20.1 ...": the second and the final paragraphs of which may affect the

    Contractor's entitlements.

    ; "An extension .... if completion is... delayed ...": so it should be calculated by reference to

    the delay in completion. Sub-Clause l0.1 (i) defines the extent of work to be completed

    within the Time for Completion, which must include the matters described in sub-paragraphs

    (a) and (b) of Sub-Clause 8.2 but may exclude minor outstanding work and defects which will

    not substantially affect use for the intended purpose, as permitted in Sub-Clause 10. 1 (a).

    ; "Payment of any such Cost...": which is the Cost attributable to the event or circumstance,

    excluding Costs which are not attributable thereto.

    ; "Plus reasonable profit ...": this phrase is included in Sub-Clause which relate to failure by (or

    on behalf of) the Employer, and not to other risks.

    Employer's Sub-Clause Contractor's Entitlement Entitlement

    1.9 CONS Delayed Drawings Contractor may claim extension of time, Cost

    or Instructions and reasonable profit if Engineer fails to instruct within notified reasonable time

    1.9 P&DB Errors in the Contractor may claim extension of time, Cost Employer's Requirements and reasonable profit for error in Employer's

     Requirements which was not previously

    discoverable

    2.1 Right of Access to the Contractor may claim extension of time, Cost Site* and reasonable profit if Employer fails to give

     right of access to Site within time stated in

    the Contract

    2.5 Employer's Claims* Procedure with which

    Employer must comply

    when claiming

    payment from the

    Contractor and when

    claiming an extension

    to the Defects

    Notification Period

    4.7 Setting Out Contractor May claim extension of time, Cost

    and reasonable profit for errors in original

     setting-out points and levels of reference

    4.12 Unforeseeable Physical Contractor may claim extension of time and Conditions Cost if he encounters physical conditions which are Unforeseeable

    4.19 Electricity, Water and Employer entitled to Gas* payment if Contractor

    uses power, water or

    other services provided by the Employer, if

    any, without prior

    notice under

    Sub-Clause 2.5

    4.20 Employer's Equipment Employer entitled to and Free-Issue Material* payment if Contractor

    uses the Employer's Equipment, if any,

    without prior notice

    under Sub-Clause 2.5

    4.24 Fossils* Contractor may claim extension of time and

    Cost attributable to an instruction to

     Contractor to deal with an encountered

    archeological finding

    7.4 Testing* Contractor may claim extension of time, Cost

    and reasonable profit if testing is delayed by (or on behalf of) the Employer

    7.5 Rejection* Employer may claim

    costs if defective

    Plant, Materials or workmanship is

    rejected and

    subsequently retested 7.6 Remedial Work* Employer may claim

    costs if Contractor fails

    to carry out remedial work and if he would

    not have been entitled

    to be paid for it

    8.4 Extension of Time for Extension of Time for Contractor may claim Completion* extension of time if completion (see

     Sub-Clauses 8.2 & 10. 1) is or will be delayed

    by a listed cause

    8.5 Delays Caused by Contractor may claim extension of time if Authorities* Country's public authority causes

    Unforeseeable delay

    8.6 Rate of Progress* Employer may claim

    costs attributable to

    revised methods which

    Contractor adopts in order to overcome a

    delay for which no

    extension of time is

    due

    8.7 Delay Damages* Employer may claim

    prescribed de lay

    damages if Contractor fails to achieve

    completion within

    Time for Completion

    8.9 Consequences of Contractor may claim extension of time and Suspension* Cost if Engineer instructs a suspension of

    progress

    9.4 Failure to Pass Tests on Employer may claim Completion* costs if Works or

     Section repeatedly

    fails Test on

    Completion

    10.2 Taking Over of Parts of Contractor may claim Cost and reasonable Employer's entitlement the Works profit attributable to the taking over of a part to prescribed delay

    of the Work damages is reduced by

    a proportion related to

    the contract value of

    the part taken over

    10.3 Interference with tests Contractor may claim extension of time, Cost of Completion* and reasonable profit if Employer delays a Test on Completion

    11.3 Extension of Defects Employer may claim Notification Period* extension of the

    Defects Notification

    Period if Works or Section or major Plant

    cannot be used for

    intended purpose

    because of any defect 11.4 Failure to Remedy Employer may claim Defects* costs if Contractor fails

    to remedy a defect for

    which Contractor is

    responsible

    11.8 Contractor to Search* Contractor may claim Cost and reasonable

    profit if instructed to search for cause of a defect for which he is not responsible

    12.2 P&DB Delayed Tests* Contractor may claim Cost and reasonable

    profit if Employer delays a Test after

    Completion

    12.3 CONS Evaluation Engineer evaluates each item of work,

    applying measurement and appropriate rate

    or price

    12.3 P&DB Retesting* Employer may claim

    costs attributable to repeated failures of

    Test after Completion 12.4 CONS Omissions Contractor may claim a Cost which, although

    it had been included in a BoQ item, he would not recover because the item was for work

    which has been omitted by Variation

    12.4 P&DB Failure to Pass Contractor may claim Cost and reasonable Employer may claim Tests after Completion* profit if Employer delays access to the Works prescribed

    or Plant non-performance

    damages in event of

    failure to pass Test

    after Completion

    13.2 CONS Value Engineering Contractor may claim half of the saving in

    contract value of his redesigned post-contract

    alternative proposal, which was approved

    without prior agreement of such contract

    value and of how saving would be shared

    13.3 Variation Procedure* The Contract Price shall be adjusted as a result of Variations

    13.7 Adjustments for Contractor may claim extension of time and Employer may claim changes in Legislation* Cost attributable to a change in the Laws of payment of reduction

    the Country in Contractor's Cost

    attributable to a

    change in the Laws of

    the Country

    14.4 Schedule of Payments* If interim payment installments were not

    defined by reference to actual progress and

    actual progress is less than that on which the

    schedule of payments was originally based,

    these installments may be revised

    14.8 Delayed Payment* Contractor may claim financing charges if he

    does not receive payment in accordance with

    Sub-Clause 14.7

    15.3 Valuation at Date of Works, Goods and Termination* Contractor's

     Documents are valued

    after Employer has

    terminated Contract 15.4 Payment after Employer may claim

    Termination* losses and damages

    after terminating

    Contract

    16.1 Contractor's Contractor may claim extension of time, Cost Entitlement to Suspend and reasonable profit if Engineer fails to Work* certify or if Employer fails to pay amount

    certified or fails to evidence his financial

    arrangements, and Contractor suspends work

    16.4 Payment on Contractor may claim losses and damages Termination* after terminating Contract

    17.1 Indemnities* Contractor may claim cost attributable to a Employer may claim

    matter against which he is indemnified by cost attributable to a

    Employer matter against which

    he is indemnified by

    Contractor

    17.4 Consequences of Contractor may claim extension of time, Cost Employer's Risks* and (in some cases) reasonable profit if

    Works, Goods or Contractor's Documents are

    damaged by an Employer's risk as listed in

    Sub-Clause 17.3

    18.1 General Requirements Contractor may claim cost of premiums if Employer may claim for Insurances* Employer fails to effect insurance for which cost of premiums if

    he is the "Insuring Party" Contractor fails to

    effect insurance for

    which he is the

    "Insuring Party"

    18.2 Insurance for Works and Employer may claim Contractor's Equipment (last payment of reduction paragraph)* in cost of premiums if

    the Contractor's

     insurance of an

    Employer's risk

    becomes unavailable at

    commercially

    reasonable terms

    19.4 Consequences of Force Contractor may claim extension of time and Majeure* (in some cases) Cost if Force Majeure

    prevents him from performing obligations

    19.6 Optional Payment, Contractor work and other Costs are valued Termination and Release* after progress is prevented by a prolonged

    period of Force Majeure and either Party then

    gives notice of termination.

    20.1 Contractor's Claim* Procedure with which the Contractor must

    comply when claiming an extension of time

    and/or additional payment.

    Sub-Clauses marked are those relevant to EPCT 3.5, although their details may differ from those in the

    provisions relevant to CONS/P&DB 3.5

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