Romania Ministry of Public Finance Managing Authority for Infrastructure

Transposition of the FIDIC Clauses of Contract in the Romanian Language
Employer User Guide for Particular Conditions of Contract
April 2007

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Romania Ministry of Public Finance Managing Authority for Infrastructure

Transposition of the FIDIC Clauses of Contract in the Romanian Language
Employer User Guide for Particular Conditions of Contract
April 2007

DISCLAIMER: The content of this report is the sole responsibility of the Framework Contractor and can in no way be taken to reflect the views of the European Union.

Report no. Issue no. Date of issue

Employer User Guide for Particular Conditions of Contract A 25.04.2007

Prepared Checked Approved

LHM Andreea Toma/Alexis Gressier Lars H. Møller

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Table of Contents
1 1.1 1.2 1.3 1.4 1.5 2 2.1 2.2 2.3 2.4 2.5 3 3.1 3.2 4 4.1 4.2 4.3 4.4 4.5 5 5.1 5.2 5.3 5.4 5.5 6 6.1 6.2 6.3 6.4 Introduction and Background Introduction Application of the FIDIC Conditions of Contract Romanian Legislation Standard Tender Documents Acknowledgements Basic Rules for Works Contracts Procurement Rules Tender Procedure and Conditions of Contract Procurement Rules after Contract Signature Particular Conditions Contract Management The FIDIC 1999 Documents The FIDIC 1999 Documents Choice between the FIDIC Documents The FIDIC Red Book Introduction FIDIC Guidance Particular Conditions Clause-by-Clause Guidance Dispute Adjudication Agreement Guidance for Appendix to Tender The FIDIC Yellow Book Introduction FIDIC Guidance Particular Conditions Clause-by-Clause Guidance Dispute Adjudication Agreement Guidance for Appendix to Tender The FIDIC Green Book Introduction FIDIC Guidance Clause-by-Clause Guidance Guidance for the Appendix to Tender 4 4 4 5 6 7 8 8 8 8 9 9 10 10 11 14 14 14 20 61 63 64 64 64 70 111 112 113 113 113 116 127

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PC's for the FIDIC Green Book Appendix D .DOC .DAB Agreements bfc2-071_fidic user guide_250407_final.Romania.Templates for Guarantees Appendix E . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 2 7 8 Templates for Guarantees Templates for Contractual Issues 129 131 Table of Appendices Appendix A .Templates for Contractual Issues Appendix F .PC's for the FIDIC Yellow Book Appendix C . .PC's for the FIDIC Red Book Appendix B .

Romania.DOC . Procurement. Construction Conditions of Contract for EPC/Turnkey Projects European Regional Development Fund European Union Euro Fédération International des Ingénieurs-Conseils Government Decision Government Emergency Ordinance Government Ordinance International Chamber of Commerce State Inspectorate in Construction Instrument for Structural Policies for Pre-Accession Managing Authority for Infrastructure. Construction and Tourism Official Gazette of Romania Conditions of Contract for Design-Build Romanian Bank Association Romanian Chamber of Commerce Romanian Leu Terms of Reference United Nations Commission on International Trade Law Value added tax bfc2-071_fidic user guide_250407_final. MPF Ministry of European Integration Ministry of Public Finance Ministry of Transport. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 3 Abbreviations ANRMAP ARIC BCEOM CFCU CN ADNR SA CONS COWI CV DAB EC EPC EPCT ERDF EU EUR FIDIC GD GEO GO ICC ISC ISPA MA Infra MEI MPF MTCT OGR P&DB RBA RCC RON TOR UNCITRAL VAT National Authority for Regulating and Monitoring Public Procurement Romanian Association of Consulting Engineers French consulting company Central Finance and Contracts Unit National Company for Motorways and National Roads Conditions of Contract for Construction Danish consulting company Curriculum Vitae Dispute Adjudication Board European Commission Engineering. .

Romania, Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract

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1.1

Introduction and Background
Introduction

This Employer User Guide for Particular Conditions of Contract is prepared by BCEOM, a member of the COWI Consortium, under the EuropeAid Beneficiary Framework Contract - Lot 2 - Transport and Infrastructure. The Guide was prepared in response to the Terms of Reference under Letter of Contract No. Rosu-13-ter dated 21st June 2006, signed by the CFCU on 13th June 2006 and by the COWI Consortium on 12th July 2006. In November 2006, the Contract was proposed modified by eliminating activities related to the FIDIC silver book from the TOR. This was accepted by MA Infra and the CFCU, and a contract modification was signed by both parties on 12th January 2007.

1.2

Application of the FIDIC Conditions of Contract

Agreement with FIDIC An Agreement was signed on 27th June 2006 between the Romanian Ministry of Public Finance (MPF) and the FIDIC, and became effective upon FIDIC's signature on 12th July 2006. In this Agreement, FIDIC granted non-exclusive rights to MPF to translate into Romanian language and adopt into legislation the following key documents: • • • • Conditions of Contract for Construction, 1st Edition 1999 Conditions of Contract for Plant and Design-Build, 1st Edition 1999 Short Form of Contract, 1st Edition 1999 Conditions of Contract for EPC/Turnkey Projects, 1st Edition 1999.

According to Clause 4 of the Agreement, the copyright of the translation shall automatically remain with FIDIC, after the publication of the translations of the documents in the Official Gazette of Romania (OGR). Translation A translation into the Romanian language was carried out - as Task 1 of above Services Contract - during the period of August to December 2006. The translation included the General Conditions of Contract for the first 3 of the above 4 FIDIC documents, i.e. the FIDIC red, yellow, and green books.

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The approved translations will be issued by the MPF for use on infrastructure projects in Romania, after the publication in the Official Gazette of Romania.

1.3

Romanian Legislation

Relevant Romanian legislation in force includes the following laws and regulations: • Legal framework with regard to construction works: Law No. 50/1991 on the authorization of construction works, as republished in the OGR No. 933 of 13.10.2004 and amended by GEO No. 122/2004, by Law No. 119/2005, by Law No. 52/2006 and by Law No. 376/2006 (hereinafter “Law No. 50/1991”). Application Norms of Law No. 50/1991, as approved by Order No. 1430/2005 of the Minister of Transport, Construction and Tourism, as published in the OGR No. 825 of 13.09.2005. Law No. 10/1995 on quality of constructions, as published in the OGR No. 12 of 24.01.1995 and amended by GD No. 498/2001 and by Law No. 587/2002 (hereinafter “Law No. 10/1995”). Regulation on the reception of construction works and of installations related thereto, as approved by GD No. 273/1994, as published in the OGR No. 193 of 28.07.1994 and amended by GD No. 940/2006 (hereinafter “GD No. 273/1994”). Methodology for the issuance by the I.S.C. of the approval as regards technical and economic documentations related to the investments financed from public funds, as approved by Order of the I.S.C. No. 74/2007, as published in the OGR No. 101 of 09.02.2007. GEO No. 34/2006 on granting of public procurement, concession of public works and concession of services agreements, as published in the OGR No. 418 of 15.05.2006, approved and amended by Law No. 337/2006 (hereinafter “GEO No. 34/2006”). Application Norms on the granting of public procurement pursuant to GEO No. 34/2006 as approved by GD No. 925/2006, as published in the OGR No. 625 of 20.07.2006 and amended by GD No. 1056/2006 and No. 1337/2006 (hereinafter “GD No. 925/2006”). Guide for the award of public procurement contracts pursuant to GEO No. 34/2006, as approved by Order of the President of the ANRMAP No. 155/2006, as published in the OGR No. 894bis of 02.11.2006 (hereinafter the “Procurement Guide”). Regulation for surveillance of the awarding of public procurement contracts, as approved by Order of the President of the ANRMAP No. 26/2007, as published in the OGR No. 102 of 09.02.2007.

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Legal framework with regard to public procurement: -

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Legal framework with regard to public finance: Law No. 500/2002 on public finances, as published in the OGR No. 597 of 13.08.2002 and amended by Law No. 314/2003, Law No. 96/2006 and GD No. 1865/2006 (hereinafter “Law No. 500/2002”). GD No. 264/2003 on setting out actions and expense categories, criteria, procedures and limits regarding advance payments from public funds, as republished in OGR No. 109din 05.02.2004 and amended by GD Nos. 525/2004, 712/2004, 1451/2004, 728/2006 (hereinafter “GD No. 264/2003”). GO No. 79/2003 regarding the control and recovery of community funds and relevant co-financing funds used in an improper manner, as published in the OGR No. 622 of 30.08.2003, approved with amendments by Law No. 529/2003 and amended by GO Nos. 94/2004, 53/2005 and 12/2007 (hereinafter “GO No. 79/2003”). Application Norms of GO No. 79/2003, as approved by GD No. 1510/2003, as published in the OGR No. 914 of 20.12.2003 and amended by GD Nos. 2396/2004 and 1358/2006.

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Relevant provisions of the Civil Code, Commercial Code, Fiscal Code (Law No. 571/2003 approving the Fiscal Code, as published in the OGR No. 927 of 23.12.2003, as amended) and of the Fiscal Norms (GD No. 44/2004 approving the methodological norms of implementation of the Fiscal Code, as published in the OGR No. 112 of 06.02.2004, as amended).

1.4

Standard Tender Documents

Structure of Standard Tender Document A standard tender document for works contracts shall include the following documents: • Volume 1: Instructions to Tenderers • • • • Letter of Invitation Instructions to Tenderers Letter of Tender and Appendix to Tender Forms for Tender Guarantees Questionnaire Glossary Evaluation Grid Letter of Tender, including Appendix to Tender Form of Contract Agreement General Conditions of Contract Particular Conditions of Contract Forms for Guarantees

Volume 2: Conditions of Contract

Volume 3: Technical Specifications Volume 4: Bill of Quantities Volume 5: Design Documents and Drawing.

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Romania. on behalf of the COWI Consortium. The draft mandatory and additional particular conditions were discussed in detail with the MA Infra counterparts and the Working Group. Templates This Employer User Guide for Particular Conditions of Contract provides guidance for Romanian employers for the preparation of particular conditions of contract and for the Appendix to Tender. 1. and later presented for the Coordination Committee. The Guide provides: • • • Clause-by-clause guidance for particular conditions of contract Templates for guarantees Templates for selected contractual documents. A one-day workshop with all the stakeholders took place on 6th December 2006 in Bucharest. and approved by the MPF in January 2007 for the following FIDIC documents: • • • Conditions of Contract for Construction. 1st Edition 1999. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 7 General Conditions of Contract The General Conditions of Contract shall be those prepared as Task 1 of the Services Contract undertaken by BCEOM. . The remaining parts of the standard tender documents shall not be covered by this Employer User Guide on Particular Conditions of Contract. 1st Edition 1999 Conditions of Contract for Plant and Design-Build. The General Conditions of Contract will in due course be published in the Official Gazette of Romania for use on infrastructure projects in Romania. 1st Edition 1999 Short Form of Contract.DOC . bfc2-071_fidic user guide_250407_final.5 Acknowledgements The Consultants acknowledge the comprehensive assistance provided by the Coordination Committee as well as the Working Group and the counterparts set up by the MA Infra of the MPF.

Therefore. it is not legally possible to revert to the second ranked tenderer of the original procedure. The above mentioned GEO No. In addition. they are in conflict with those. Furthermore. bfc2-071_fidic user guide_250407_final. The criteria used in the tender should be proportional to the requirements of the project.2 Tender Procedure and Conditions of Contract As such. 34/2006 transposes into Romanian legislation the relevant provisions of the European Directive No. they just repeat the provisions of the draft conditions of contract attached to the tender dossier and in the worst case.1 Basic Rules for Works Contracts Procurement Rules In Romania. as. the procurement rules are defined by the GEO No. in the best case. 337/2006. published under GD No. It should also be noted that a particular tender procedure ends after the signature of the related contract (or after the cancellation of the procedure). 2. 2. detailed rules are laid down in the Implementing Norms of the said ordinance. tender procedure and conditions of contract are different processes and do not really interfere. Finally. unless they are explicitly incorporated as part of the Contract documents. the tender dossier and the Contractor’s proposal have no value after the signature of the Contract. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 8 2 2. some rules referring to procurement shall be observed during the entire life of the contract. The wish of a Contracting Authority to have a “good contractor” should not result into distortion of competition or artificial requirements.Romania. It is preferable to avoid introducing references to the conditions of contract within the instructions to tenderers. . 925/2006.DOC . 18/2004/CE defining the overall procurement rules and procedures for the entire European Union. 34/2006. as further approved and modified by Law No. without setting unreasonable constraints.3 Procurement Rules after Contract Signature Even if the tender procedure ends after contract signature. It is therefore recommended to seriously consider which documents should form part of the Contract. in case a contract is terminated. it should be understood that tender procedures do not replace adequate and efficient contract management.

4). modifications to the original contract incorporating additional work (including additional quantities) and resulting into an increase of the Accepted Contract Amount are considered as “negotiated procedure without prior publication of a contract notice” and are legally possible only in one of the situations described in Article 122 of GEO No.4 Particular Conditions The FIDIC Conditions of Contract define a careful balance between the rights and obligations of both parties. keeping only provisions that favour the Employer.5 Contract Management The FIDIC Conditions of Contract are favouring a modern type of contract management. with the assistance of the Engineer. 2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 9 In particular. . 34/2006. when drafting particular conditions of contract. with the following aspects: • The relationship between the Parties should be oriented towards the execution of the works in a satisfactory manner where conciliation and agreement are to be found rather than “aggressive” attitudes It is felt as absolutely necessary for an adequate progress of the works that a similarly adequate cash flow be maintained Claims should be notified and treated in due time. 2. maintain this balance and refrain from modifying those provisions that are seen as favouring the Contractor (such as Sub-Clause 2. • • bfc2-071_fidic user guide_250407_final.DOC . This balance is one of the elements that made those conditions of contract successful and widely used around the world. The Parties should avoid. It is therefore recommended that Employers. the Employer and the Contractor.Romania. to transform claims into disputes but should endeavour to find fair solutions in a reasonable time.

mechanical. and for the design and execution of building or engineering works. Depending on the type of work and the circumstances. Procurement and Construction (EPC): providing a fullyequipped facility. plant and/or other works. or of an infrastructure project or other type of development. Under the usual arrangements for this type of contract. particularly for relatively simple or repetitive work or work of short duration. the Contractor constructs the works in accordance with a design provided by the Employer. this form may also be suitable for contracts of greater value.the First Editions of four (4) new standard forms of contract: • CONS . Under the usual arrangements for this type of contract. the works may include some elements of Contractor-designed civil. ready for operation (at the "turn of the key"). or wholly comprises. the Engineer. Under the usual arrangements for this type of contract. electrical and/or construction works. Contractor-designed civil. mechanical.DOC . with little involvement of the Employer. mechanical.Conditions of Contract for Plant and Design-Build. but this form may also be suitable for a contract which includes. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 10 3 3.Romania. which are recommended for building or engineering works designed by the Employer or by his representative. Under the usual arrangements for turnkey projects. the Fédération Internationale des Ingénieurs-Conseils (FIDIC) published . where (i) a higher degree of certainty of final price and time is required. the Contractor carries out all the Engineering. electrical and/or construction works. electrical and/or construction works. which are recommended for the provision of electrical and/or mechanical plant.in 1999 . and (ii) the Contractor takes total responsibility for the design and execution of the project. which may be suitable for the provision on a turnkey basis of a process or power plant. Short Form of Contract. which is recommended for building or engineering works of relatively small capital value.1 The FIDIC 1999 Documents The FIDIC 1999 Documents As stated in the Foreword of the documents. . • • • bfc2-071_fidic user guide_250407_final. EPCT .Conditions of Contract for EPC/Turnkey Projects. P&DB . in accordance with the Employer's requirements. However.Conditions of Contract for Construction. which may include any combination of civil. the Contractor constructs the works in accordance with a design provided by the Employer or by his representative (if any). of a factory or similar facility. the Contractor designs and provides.

Is the Employer (or the Engineer) going to do most of the design? As in traditional projects (e. and in design-build and turnkey-type projects. particularly if the Conditions are to be used on domestic contracts. ..) The Engineer administered the Contract. - If this is what is wanted . FIDIC considers the official and authentic texts to be the versions in the English language. 2.). 3.Romania. With payment according to bills of quantities or lump sums for approved work done. infrastructure. mechanical.000) or the construction time is short (say less than 6 months). the Contractor also did the majority of the design (not only of plant projects. the Contractor did the majority of the design (e.issued in 2000 as summarised below.2 Choice between the FIDIC Documents The FIDIC Conditions of Contract are prepared as a "matching set" with each topic covered in similarly worded provisions in each of the books. irrespective of whether the design is provided by the Employer or the Contractor. or other engineering work. then consider using the Short Form of Contract.g. short construction time or involving simple or repetitive work If the price for the contract is relatively small (say under EUR 500.g. etc. so that the plant met the outline or performance specification prepared by the Employer.. where the tenders are invited on an international basis. the Employer did nearly all the design (perhaps not construction details.. Modifications may be required in some jurisdictions. but also of various infrastructure and other types of projects). Larger or more complex projects 1. or the work involved is relatively simple or repetitive (dredging work might be a good example).choose the FIDIC Red Book (CONS). General guidance is provided in the FIDIC Contracts Guide . Relatively small value contract. hydropower. could make variations. The selection of the appropriate book is critical to the success of the Project. the detail design of the plant or equipment). monitored the construction work and certified payment The Employer was kept fully informed. and the project was required to fulfill an outline or performance specification prepared by the Employer bfc2-071_fidic user guide_250407_final. buildings. including erection on site). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 11 The Forms of Contract are recommended by FIDIC for general use. etc. etc. and of whether the project involves construction. electrical and mechanical works. electrical. Is the Contractor going to do most of the design? As in traditional projects (e. reinforcement.g.DOC .

- - If this is what is wanted .. without an "Engineer" being involved The Employer does not wish to be involved in the day-to-day progress of the work. where the Concessionaire takes the total responsibility for the financing. of the Build-Operate-Transfer or similar type. i. and where there is a higher degree of certainty that the agreed contract price and time will not be exceeded The Employer does not wish to be involved in the day-to-day progress of the work.choose the FIDIC silver book (EPCT).. where the Contractor takes total responsibility for the design and construction of the infrastructure or other facility. monitored the manufacture and erection on site or construction work and certified payment With payment according to achieved milestones generally on a lump sum basis. provided the end result meets the performance criteria he has specified The parties concerned (e. Is it a privately Financed (or Public/Private Financed) Project. 4.g. 3.e.choose the FIDIC yellow book (P&DB). - - If this is what is wanted . sponsors.choose the FIDIC silver book (EPCT).. lenders and the Employer) are willing to see the Contractor paid more for the construction of the Project in return for the Contractor bearing the extra risks associated with enhanced certainty of final price and time. . Construction) Contract. i.e. Procurement. construction and operation of the Project? Then the Concessionaire (the "Employer") probably requires to have a contract with the construction Contractor. an EPC (Engineering. provided the end result meets the performance criteria he has specified The Employer is willing to pay more for construction of his Project (than would be the case if P&DB were used) in return for the Contractor bearing the extra risks associated with enhanced certainty of final price and time. - If this is what is wanted . bfc2-071_fidic user guide_250407_final.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 12 - The Engineer (or Employer's representative) administered the Contract.DOC . Is it a Process Plant or a Power Plant (or a factory or similar) where the Employer (who provides the finance) wishes to implement the Project on a Fixed-Price Turnkey Basis? Then the Employer wishes the Contractor to take total responsibility for the design and construction of the process or power facility and hand it over ready to operate "at the turn of a key" The Employer wishes a higher degree of certainty that the agreed contract price and time will not be exceeded The Employer wishes the Project to be organised on a strictly two party approach.

transmission line.. rail link. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 13 5.Romania. In the case of a building. Is it a Building Project where the Employer wishes to have his building(s) constructed on a Fixed-Price Turnkey Basis generally complete with all furniture. but (with suitable modification regarding design responsibility) EPCT may be used. 7.g. provided the end result meets the performance criteria he has specified The Employer is willing to pay more for the construction of his Project (than would be the case if P&DB were used) in return for the Contractor bearing the extra risks associated with enhanced certainty of final price and time.choose the FIDIC silver book (EPCT). 6. as applicable.e. the Employer or his architect may have done some or most of the design. provided the end result meets the performance criteria he has specified The Employer is willing to pay more for the construction of his Project (than would be the case if P&DB were used) in return for the Contractor bearing the extra risks associated with enhanced certainty of final price and time. even dam or hydropower plant) or similar where the Employer (who provides the finance) wishes to implement the Project on a Fixed-Price Turnkey Basis? Then the Employer wishes the Contractor to take total responsibility for design and construction The Employer wishes a higher degree of certainty that the agreed contract price and time will not be exceeded (except that. or of a building development project. water or sewage treatment plant. Is it an Infrastructure Project (e.DOC . road. without an Employer's Engineer being involved The Employer does not wish to be involved in the day-to-day progress of the construction work.12 would be appropriate) The Employer wishes the Project to be organised on a strictly two party approach. bfc2-071_fidic user guide_250407_final. i. i. without an "Engineer" being involved The Employer does not wish to be involved in the day-to-day progress of the work. Is it a reconstruction or refurbishment or other type of Project? Check the above questions.e. and make your choice accordingly. if underground works in uncertain or difficult ground conditions are likely. the risk of unforeseen ground conditions should be borne by the Employer and P&DB 4. - If this is what is wanted . - - If this is what is wanted . fittings and equipment? Then the Employer wishes the Contractor to take total responsibility for design and construction The Employer wishes a high degree of certainty that the agreed contract price and time will not be exceeded The Employer wishes the Project to be organised on a strictly two party approach. bridge.choose the FIDIC silver book (EPCT). .

2 FIDIC Guidance In the preparation of the General Conditions of Contract for Construction. . after approval by the MPF. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 14 4 4. bfc2-071_fidic user guide_250407_final. 1st Edition 1999. and was submitted to the MPF in December 2006. while there are many sub-clauses which will be generally applicable.e. necessary as to harmonise the contract provisions with the current Romanian legislation. were prepared in October 2006 to January 2007. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006. and was submitted to the MPF in January 2007. i. and to take account of those sub-clauses in the General Conditions which mention the Particular Conditions. The General Conditions and the Particular Conditions will together comprise the Conditions of Contract governing the rights and obligations of the parties. This Guide comprises guidance and proposals for the proposed mandatory and additional particular conditions of contract. be published in the Official Gazette of Romania for use on infrastructure projects in Romania. It will be necessary to prepare the Particular Conditions for each individual contract.1 The FIDIC Red Book Introduction This chapter provides guidance for the preparation of the Particular Conditions of Contract and the Appendix to Tender for Works Contracts using the FIDIC Conditions of Contract for Construction. in order to facilitate their incorporation into each contract.DOC . the FIDIC Red Book. it was recognized that. 4. The Romanian language version of the General Conditions of Contract and the proposed mandatory and additional particular conditions will. Mandatory and additional particular conditions of contract for the FIDIC Red Book. The sub-clauses which were considered to be applicable to many (but not all) contracts have been included in the General Conditions.Romania. there are some sub-clauses which must necessarily vary to take account of the circumstances relevant to the particular contract.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 15 For this publication. and other explanatory material and example wording to assist in the preparation of the Particular Conditions and the other tender documents. • bfc2-071_fidic user guide_250407_final. This Sub-Clause becomes inapplicable (even if it is not deleted) if it is disregarded by not specifying the amount of the advance.Romania. including the contractual. Further information on these aspects. It is essential that all these drafting tasks. the Appendix to Tender (providing a check-list of the sub-clauses which refer to it). example wording for other arrangements. and incorporates (by reference) the terms in the Appendix to the General Conditions. the data either being prescribed by the Employer or being inserted by the Tenderer Where a sub-clause in the General Conditions deals with a matter on which different contract terms are likely to be applicable for different contracts. if not. not because of any FIDIC policy in respect of advance payments. and in all cases where other amendments or additions are made. Sub-Clause 14. the Contract Agreement. the sub-clause contains the provisions which were considered applicable to most contracts. Where example wording is amended. Before incorporating any example wording. then (unless it is so descriptive that it would have to be detailed in the Specification) the sub-clause makes reference to this data being contained in the Appendix to Tender. This Dispute Adjudication Agreement provides text for the agreement between the Employer. . care must be taken to ensure that no ambiguity is created. This publication concludes with example forms for the Letter of Tender. it must be checked to ensure that it is wholly suitable for the particular circumstances. are entrusted to personnel with the relevant expertise. the Contractor and the person appointed to act either as sole adjudicator or as a member of a three-person dispute adjudication board. are included within the Guidance for the Preparation of the Particular Conditions. It should therefore be noted that some of the provisions contained in the General Conditions may not be appropriate for an apparently-typical contract. the principles applied in writing the sub-clause were: a) Users would find it more convenient if any provisions which they did not wish to apply could simply be deleted or not invoked.DOC . For example. and the entire preparation of the tender documents. where the application of (a) was thought to be inappropriate. applying the rates and prices in a Bill of Quantities If the wording in the General Conditions necessitates further data. than if additional text had to be written (in the Particular Conditions) because the General Conditions did not cover their requirements. and alternatives for the Dispute Adjudication Agreement. it must be amended. the General Conditions of Contract were prepared on the following basis: • • Interim and final payments will be determined by measurement. either with the General Conditions or between the clauses in the Particular Conditions.2 [Advance Payment] is included for convenience only. technical and procurement aspects. or b) In other cases.

In order to clarify the sequence of Contract activities.1 & 13. and for EPC/Turnkey Projects.1.3) Performance Certificate Final Payment Certificate Figure 4-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final. .1 1.Romania.1.7 & 14.DOC .9 1.1.3.3.1 1.1. for Plant and Design-Build.2 1.7 1.7 & 11. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.3.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.4 & 9.8 & 11.1.3 1.4 & 14.2 1.4) Tests on Completion Taking-Over Certificate Defects Notification Period (as extended under 11.6 & 4.4.3 & 8. 1.1. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.1.1.5 & 10.4.3.1.3.3.1 1.1 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 16 In addition. reference may be made to the charts on the next two pages and to the Sub-Clauses listed below (some Sub-Clause numbers are also stated in the charts).2 & 8.1.6.3.

Under the usual arrangements for this type of contract.the FIDIC Red Book .DOC . the Engineer. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 17 Figure 4-2 Sequence of Payment Events Figure 4-3 Sequence of Dispute Events 4. the Contractor constructs the works in accordance with design details provided by the Employer or his representative.1 Introduction The Conditions of Contract for Construction .have been prepared by FIDIC and are recommended for general use for the purpose of the construction (excluding most design) of building or engineering works where tenders are invited on an international basis.2.Romania. . Modifications to the Conditions are required to be fully adapted to the current Romanian legislation. Although these Conditions allow for the possibility that the Contractor may be required to design parts of the permanent bfc2-071_fidic user guide_250407_final.

the following text can be used: “The Conditions of Contract comprise the "General Conditions". For these Works. where works are valued by measurement. example wording should be amended before use. The guidance hereafter is intended to assist writers of Particular Conditions by giving options for various sub-clauses where appropriate. and the Letter of Tender and Schedules for completion by the Tenderer. In addition. The General Conditions refer to any necessary data being contained in the Appendix to Tender or (for technical matters) in the Specification. When the Employer accepts the Letter of Tender. either with the General Conditions or between the clauses in the Particular Conditions. it must be checked to ensure that it is wholly suitable for the particular circumstances. the Bill of Quantities will usually be the most important Schedule.Romania. it would be more appropriate to utilise FIDIC's Conditions of Contract for Plant and Design-Build or Conditions of Contract for EPC/Turnkey Projects. and in all cases where other amendments or additions are made.” Where example wording is amended. 4. the Drawings.2. and the following "Particular Conditions". Before incorporating any example wording. The tender documents issued to tenderers will consist of the Conditions of Contract. and the Instructions to Tenderers to advise them of any special matters which the Employer wishes them to take into account when pricing the Bill of Quantities but which are not to form part of the Contract.2 Preparation of Tender Documents The tender documents should be prepared by suitably qualified engineers who are familiar with the technical aspects of the required works. .DOC . A Daywork Schedule may also be necessary. which form part of the "Conditions of Contract for Construction" First Edition 1999 published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC). they are not intended for use where most of the works are designed by the Contractor. Unless it is considered suitable. care must be taken to ensure that no ambiguity is created. bfc2-071_fidic user guide_250407_final. which include amendments and additions to such General Conditions. each of the Tenderers should receive the data referred to in SubClause 4. and a review by suitably qualified lawyers may be advisable. to cover minor works to be evaluated at cost. In the preparation of the Conditions of Contract to be included in the tender documents for a contract. For this type of contract. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 18 works.10. the Specification. the Contract includes these completed Schedules. There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions.

7.4 . The Employer should prepare the Appendix to Tender. The example form in Appendix D2 provides a checklist of the data required. . The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender. gas and other services available on the Site .6 .DOC .7.19 Electricity.13.4.1 . If each Tenderer is to produce a parent company guarantee and/or a tender security.4.Romania.18 Environmental constraints . lines and levels of reference . with the elements completed to the extent of his requirements.2.4.1 .4.1.4. The Instructions to Tenderers may include matters referred to in some or all of the following Sub-Clauses: bfc2-071_fidic user guide_250407_final.6.20 Employer's Equipment and free-issue material .4. and include a questionnaire in the Schedules.4.1 .7 Requirements for Contractor's Documents Phased possession of foundations. water. plant or means of access Contractor's designs Other contractors (and others) on the Site Setting-out points.1.9.14 Third parties . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 19 The Specification The Specification may include the matters referred to in some or all of the following sub-clauses: .13 Permissions being obtained by the Employer .2 . providing a convenient location for the data which is usually required. and/or specify the extent of other information which each Tenderer is to include with his Tender. The Instructions to Tenderers The Instructions to Tenderers may need to specify any constraints on the completion of the Appendix to Tender and/or Schedules. these requirements (which apply prior to the Contract becoming effective) should be included in the Instructions to Tenderers: example forms are annexed to this document as Annexes D. but there is no indication.5 Provisional Sums.6 .5.1. based on this example form. either in the General Conditions or in the example Appendix to Tender. that this data is either prescribed by the Employer or inserted by the Tenderer. The Employer may require other data from Tenderers. structures.8 .1 Nominated Subcontractors Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion .

Such definition is set out in the mandatory particular conditions in Appendix A1. The amendment of such definition is set out in the mandatory particular conditions in Appendix A1. 4.Definitions It will be necessary to amend some of the definitions.3 .Romania.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.3.1 the definition of the "Base Date" may be changed to reflect a particular calendar date.9 .1.10 a definition of the "Taking-Over Minutes on Completion of Works" shall be included to reflect the process of takingover of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 15 of GD No. .1.3. In Sub-Clause 1.20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Insurances Resolution of disputes. the requirements of the Romanian procurement legislation and for clarification of the general conditions. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 20 .3.9.3 the definition of the Letter of Acceptance shall be deleted. 273/1994).4.1.1. the Contract is formed by the execution of the Contract Agreement after lapse of a mandatory minimum time period from the communication of the letter of award by the Employer to the Contractor (Article 205 of GEO No. 925/2006).1.1.1. In new Sub-Clause 1.1. due to Romanian legislation in force.1. • • • • • • bfc2-071_fidic user guide_250407_final.DOC .6 the "Foreign Currency" should be indicated.4.18 . In Sub-Clause 1. with a clause-by-clause review. 4. Such definition is set out in the mandatory particular conditions in Appendix A1. In new Sub-Clause 1. Under Romanian public procurement regulations. and Article 94 of GD No. The following definitions should be modified: • In Sub-Clause 1.3. 273/1994).1 .General Provisions Sub-Clause 1. In Sub-Clause 1.4.3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Red Book.4.11 a definition of the "Final Taking-Over Minutes" shall be included to reflect the process of final taking-over of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 36 of GD No.1 Clause 1 . 34/2006. In Sub-Clause 1.1 the definition of Contract shall reflect the deletion of Letter of Acceptance.1 .

Even if the Contract clearly specifies the priority of documents. New Sub-Clause 1. as well as the fact that. the latter shall prevail.2 may be varied.” Sub-Clause 1.4.5 “Applicable Laws” should be defined as all Romanian legislation. such as: “In these Conditions. if needed.1. consistence of these with the tender documents should be checked and corrections. In Sub-Clause 1.5. • Sub-Clause 1. 925/2006). method of works. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications. decisions. orders and other laws and regulations and by-laws of any legally constituted public authority having the force of law in Romania. Sub-Clause 1. so as to ensure some enforceability to this proposal. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present sub-clause. (Article 95(2) of GD No. although applicable in many sub-clauses.Priority of Documents An order of precedence is usually necessary.13 should be inserted to define the expression "Unit Price" as follows: “Unit Price is the price of a unit quantity in the Bill of Quantities excluding VAT.” • • In Sub-Clause 1. laws.4 . Sub-Clause 1. .5 .DOC . traffic management and/or environmental management plans). key equipment. Sub-Clause 1. if during the performance of the Contract. A proposed amendment is included in the mandatory particular conditions in Appendix A1.1.1.2 . are not repeated in the General Conditions.Romania. ordinances. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 21 • • In Sub-Clause 1. In Sub-Clause 1. Non-compliance might have serious consequences. significant components of the Contractor’s proposal (key personnel.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that.Interpretation If the references to "profit" are to be more precisely specified.6.6. the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No. in case a Contractor’s programme bfc2-071_fidic user guide_250407_final.1. Such provision is recommended so as to provide a clear reference during implementation.2 "Country" should be defined as Romania.1.Law and Language No need for particular conditions related to this sub-clause.8 "Local Currency" should be defined as RON (Romanian Leu).7 "Site" it has to be mentioned that the Contractor’s site installation would in many cases not be part of the Site as defined under the Contract.6. outline of quality assurance. 925/2006).3 . Furthermore. should be introduced prior to the Contract signature. in particular when evaluating claims. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost.4. in case a conflict is subsequently found among the contract documents In Sub-Clause 1.

provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract.Confidential Details No need for particular conditions related to this sub-clause. traffic diversions. it might be recommendable to state that any reference to calendar dates is indicative only. Sub-Clause 1. The template for works contracts set out in Form 5 attached to the Procurement Guide allows the assignment of the works contract by the Contractor with the prior agreement of the Employer. Sub-Clause 1. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue. at his own expenses. xxx” It is recommended to precise the scope of paragraph (b).Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause. for example with: Except for the building permit to be provided by the Employer.8 . Sub-Clause 1. in order to reflect the deletion of Letter of Acceptance. the particular regulations to be complied with by the Contractor.Care and Supply of Documents No need for particular conditions related to this sub-clause. Sub-Clause 1. Sub-Clause 1.Delayed Drawings or Instructions No need for particular conditions related to this sub-clause.10 . The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions.Compliance with Laws The Employers should specify. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 22 is included in the Contract documents.Contract Agreement The first sentence of Sub-Clause 1. . This should be done under the format: “Applicable Laws of particular relevance for the Contract include. Such permits include inter alia permits for site erection.13 .DOC .11 . Sub-Clause 1. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor.7 . but are not limited to: Law No. resi- bfc2-071_fidic user guide_250407_final.Employer's Use of Contractor's Documents No need for particular conditions related to this sub-clause. especially if the Contract signature or the Commencement Date occur with delays against initial time schedules Sub-Clause 1.6 . route permits. Sub-Clause 1.Romania. An example form is included at the contractual templates in Appendix D2.12 .9 .Assignment If the Contract is concluded pursuant to a public procurement procedure.6 shall be deleted. when relevant.

The Employer should scrutinise the joint venture agreement carefully. In case right of access is to be granted by stages. These requirements.Romania. An example form is annexed to this document in the templates of guarantees in Appendix D1. permits to relocate public utilities.The Employer Sub-Clause 2. .2 Clause 2 . Employers shall be particularly careful in relation with this sub-clause. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 23 dence and work permits.Right of Access to the Site If right of access cannot be granted.DOC . this should be clearly stated. Sub-Clause 1. and it may have to be approved by the project's financing institutions. etc. it may be desirable for each member to produce a parent company guarantee.Details to be Confidential If confidentiality is required. permit to be published. permits for radio communication. and will not wish to be involved in a dispute between the members of a joint venture. In case right of access and possession is not to be granted exclusively.Joint and Several Liability For a major contract.” 4. as non-compliance with their obligations under the present subclause is a substantial failure and may lead to Termination by the Contractor under Sub-Clause 16. the Contractor shall submit to the Engineer the detailed planning of the Works. The Employer will wish the leader of the joint venture to be appointed at an early stage. New Sub-Clause 1.14 . which apply prior to the Contract becoming effective. Within 21 days of the signature of the Contract Agreement. For example. an additional sub-clause may be added.3. together with a list of all necessary permits with the time needed for obtaining those permits in order to properly carry-out the Works in compliance with the programme prepared and updated under Sub-Clause 8. should be included in the Instructions to Tenderers. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer. details should be given. both early and thereafter exclusively. it could be desirable to define Sections (in the Appendix to Tender) and define in this sub-clause the time for provision of right of access for each Section.1 . providing a single point of contact thereafter.15 . bfc2-071_fidic user guide_250407_final.2.3 [Programme]. detailed requirements for the joint venture may need to be specified. The Contractor shall not publish. The wording of such Sub-Clause could be as follows: “The Contractor shall treat the details of the Contract Agreement as private and confidential. with all particulars.

Sub-Clause 2.23.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic. Sub-Clause 2. It has to be noted that this Sub-Clause plays its role mainly when large costs overruns are occurring (including due to Contractor’s claims).DOC .3 . Therefore. so as to facilitate access to the market. as Employers are generally expected to have secured funding corresponding to the Accepted Contract Amount before the signature of the contract. the procedure defined in the present Sub-Clause has to be used in case the Employer disagrees with an amount certified or wishes to apply various penalties (such as delay damages). and particularly in the Specifications. the required land should be made available by the same Employer. in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). to introduce a more precise definition of what will be considered as reasonable evidence.Employer's Claims It has to be underlined that under Sub-Clause 14.Permits. Sub-Clause 2.Employer's Financial Arrangements It is possible. as contractors would be concerned by such cancellation. The anticipation of a risk in this regard would then reflect on the prices. it is recommended not to delete this Sub-Clause entirely.4 . as defined under Sub-Clause 4. self-sufficient.5 . bfc2-071_fidic user guide_250407_final. as much as possible.7. for example for long term contracts. The work to be carried out by these other contractors should be described in the tender documents. Licences or Approvals With reference to paragraph (a). However. Sub-Clause 2. . the Employer is not allowed to make deductions from the amounts certified by the Engineer (the mandatory particular conditions allow however arithmetical mistakes to be corrected).Romania. However. and aspects such as co-ordination and safety may need to be specified. all relevant information. but the contract documents should be. the Employer should state this and define the procedure that will be applied as well as the main constraint/parameters. References to laws and standards should be included for formal reasons. it is good practice to include in the tender and then contract documents. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 24 In case right of access and possession will be granted only for limited sections and/or for limited duration (such as in the case of rail rehabilitation works). The Site does not include additional working areas that the Contractor might require.2 .

Employers might want to add. in respect of such instruction. be necessary to abate or reduce the risk. Employers might wish to limit the authority of the Engineer. for example: a) Sub-Clause 4. or similar: “Notwithstanding the obligation.3 Clause 3 .1: Specific approval of the Employer is required before instructing or approving any extension of the Time for Completion c) Sub-Clause 13. It is also recommendable to add the following precisions.1 . . the example wording should be varied. The Contractor shall forthwith comply with any such instruction of the Engineer. without relieving the Contractor of any of his duties and responsibilities under the Contract.3.2 . This list should be extended or reduced as necessary. in accordance with Sub-Clause 13. if. It is clear that the Engineer has the role defined in very general terms in Article 21 paragraph d) of Law No. Attention of the Employers is drawn on the fact that such prior approval transfer responsibility from the Engineer to the Employer.4: Specific approval of the Employer is required before issuing consent for any Sub-Contractor. this obligation could be limited to major Sub-Contractors. However. financial or otherwise. that is those providing more than x% of the Accepted Contract Amount) b) Sub-Clause 8. bfc2-071_fidic user guide_250407_final. in the opinion of the Engineer. in order to maintain control on some of the main features. If the obligation to obtain the approval of the Employer only applies beyond certain limits.1: Specific approval of the Employer is required before instructing or approving the omission of any work. in the opinion of the Engineer. 10/1995.DOC . the Conditions of Contract provide for several additional duties and authority. The Engineer shall determine an addition to the Contract Price. with a copy to the Employer. an emergency occurs affecting the safety of life or of the Works or of adjoining property.Romania. as set out above. In addition to those limitations included in the mandatory particular conditions (Appendix A1) and deriving from the applicable Romanian legislation.1 and shall notify the Contractor accordingly.” Sub-Clause 3. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 25 4. (alternatively.4 and/or Sub-Clause 13. he may.Engineer's Duties and Authority Any requirements for Employer's approval should be set out in the Particular Conditions.Delegation by the Engineer No need for particular conditions related to this sub-clause. to obtain approval. instruct the Contractor to execute all such work or to do all such things as may.The Engineer Sub-Clause 3. Such limitations should (i) be specifically detailed in the Particular Conditions and (ii) truly correspond to those mentioned in the Engineer’s contract.

DOC . - In practice. claims should be dealt with in a timely manner.3 .” Therefore.Determinations Attention is drawn on two issues: As per Sub-Clause 1.1 . Sub-Clause 3. . In these cases. The agenda for such meetings shall cover a review of progress attained. Employers might consider introducing a time limit for issuing determinations. In the record. there may be an item of Temporary Works for which the Contractor will not be fully responsible. engineering. New Sub-Clause 3. The Engineer shall record the business of management meetings and supply copies of the record to those attending the meeting and to the Employer. For example.4 Clause 4 .Instructions of the Engineer Attention is drawn on the following provision of this Sub-Clause: “The Contractor shall only take instructions from the Engineer. while waiting for additional supporting particulars. payments.6 . determinations should not be unreasonably withheld or delayed.The Contractor Sub-Clause 4. safety. the Engineer could issue an interim determination before issuing a final one. or from an assistant to whom the appropriate authority has been delegated under this Clause.Romania. Time and place of these meetings shall be mutually agreed taking into consideration the subject to be discussed. within two working days from the meeting. taking ac- bfc2-071_fidic user guide_250407_final. interface with other Contractors. equipment. claims for extras. current and anticipated difficulties. Sub-Clause 3. in order to avoid delays. Determinations enter into force immediately. the Contract may specify temporary arrangements for river diversion which have been designed by the Engineer. the designer or other entities are not to issue instructions directly to the Contractor. the status of staffing.5 .Replacement of the Engineer No need for particular conditions related to this sub-clause.” 4. for example with the following: “The Engineer or the Contractor’s Representative may require the other to attend a management meeting in order to review the arrangements for future work.Management Meetings It is recommendable to introduce reference to management meetings. Such meetings shall take place on a monthly basis.4 . In general. and other pertinent topics. a review of schedules and plants for future activities.Contractor's General Obligations Occasionally. under the Contract. the Sub-Clause may require amendment.3. responsibilities for any actions to be taken shall be in accordance with the Contract. material supply. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 26 Sub-Clause 3.3.

shall not relieve the Contractor from any obligation or responsibility. and of the extent of the Employer's responsibility. including the Engineer’s personnel) Whether. In case the Contractor is to provide refined design (working drawings). In case the Contractor is required to provide design of part of the Works. It has to be understood that the Contractor might be required to design part of the Works even under the conditions of contract for construction. providing a better definition of the design procedure. . Attention is drawn to cases where the Employer’s Technical-Economic Committee’s approval would be required Whether and to what extent authorisations and permits are required and which Party is responsible to obtain them. Employers should consider using the conditions of contract for plant and design-build. normally in the Specifications. similar to those of Clause 5 of the conditions of contract for plant and design-build. design shall be submitted by the Contractor and approved or reviewed by the Engineer and / or the Employer.” bfc2-071_fidic user guide_250407_final. such proposal shall be deemed to have been made by the Contractor under Sub-Clause 13. etc) or to an increased level of detail (for example production of working drawings for the Permanent Works). this should be clearly stated. It is important to state the extent of such design work and whether it is relating to full design of a specific part (including Temporary Works. However. Employers might consider integrating additional provisions. it is recommendable to state the following: “The design by the Contractor shall form a coherent technical project together with the Specifications and Drawings provided by the Employer in the Contract. if the Contractor is to design a very significant part of the works. Employers should specify: Whether and to what extent the Engineer’s consent on the name and qualifications of the designer (individuals. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 27 count of the type of this item of Temporary Works.Romania. etc) and design checkers shall be obtained. This might also include definition of possible conflict of interest (with the Employer’s Personnel.” It is also recommended to state that: “Any approval or consent. to what extent and in which time period and according to which sequence.DOC . In case the Contractor is to fully design a part of the Works. sub-contractor. as well as any review. under this Sub-Clause or otherwise. In both cases.2 [Value Engineering]. - - It is also recommendable to specify that any design produced by the Contractor shall be coordinated with existing designs produced by the Employer. relocation or protection of utilities. In case the Contractor’s design proposes substantial changes to the Employer’s design (including but not limited to changes of technical solutions).

” To avoid difficulties in case of Joint Ventures. the Contractor. If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1. . For large projects with possibly important cost-overruns. As per the provisions of Article 89 paragraph (2) of GD No. at the Engineer’s written request. a modification of the clause may be made in the particular conditions. especially if the contract award seems likely to be delayed. They incorporate the Uniform Rules published by the International Chamber of Commerce (the "ICC").Contractor's Representative If the Representative is known at the time of submission of the Tender. the Tenderer may propose the Representative. annexed to the Particular Conditions. which also publishes guides to these Uniform Rules. 925/2006.2 needs to be amended in order to comply with Romanian public procurement regulations on the submission and release of the Performance Security (Articles 87(b) and 92(4) of GD No. “Whenever the Engineer determines that the Contract Price exceeds the Accepted Contract Amount or the Contract Price previously determined for the purposes of this Sub-Clause. it is recommended to request submission of the Performance Security at the signature of the Contract Agreement. The value of the Performance Security is normally based on the Accepted Contract Amount. The Tenderer may wish to propose alternatives.2 as follows: “The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer. 75008 Paris. it is recommended to include: “The Performance Security of a joint venture or consortium shall specify the name of the joint venture or consortium. 925/2006). by more than ten (10%) percent.3 . shall promptly increase the value of the Performance Security by an equal percentage.” The acceptable form(s) of Performance Security should be included in the tender documents. In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions.” Sub-Clause 4. Example forms are annexed to this document in the templates of guarantees in Appendix D1. A recom- bfc2-071_fidic user guide_250407_final. France).2 . it should amend the second sentence of the second paragraph of Sub-Clause 4. which is based at 38 Cours Albert 1er.DOC . and shall be in the form annexed to the Particular Conditions.4). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 28 Sub-Clause 4.Performance Security Sub-Clause 4. In order to avoid the risk of termination in case of failure by the Contractor to submit the Performance Guarantee. it is recommendable to add the following text at the end of this Sub-Clause.Romania. it cannot exceed 10% of the Contract Price VAT excluded. The proposed amendments are included in the mandatory particular conditions in Appendix A1. or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language.

the Contractor may not replace any of the Subcontractors designated in the Tender without the prior consent of the Engineer (Article 96(2) of GD No. 925/2006).DOC . It is also recommendable to make reference to the key qualifications required at the time of the Tender. the Contractor must provide the Employer with the relevant subcontracts.” Subject to the mandatory provisions of the Romanian public procurement regulations. which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96(1) of GD No. replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor. Sub-Clause 4. typically in the Appendix to Tender. if parts of the Works are to be performed by Subcontractors.Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. However. . add the following: “Such prior consent shall not be required if the value of the subcontract is less than one percent (1%) of the Contract Price.Romania. the Engineer’s prior consent for subcontractors might lead to excessive administration. In such case. Not only his nomination. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 29 mendation is attached in the recommended particular conditions in Appendix A2. Replace the first sentence of Sub-Clause 4.4 .” bfc2-071_fidic user guide_250407_final. The proposed modification is included in the mandatory particular conditions in Appendix A1. The role of the Contractor’s Representative should be highlighted. under Romanian public procurement regulations. as follows: At the end of point (b). On a case-by-case basis. but also his revocation has to receive the prior consent of the Engineer.4 with: “The Contractor shall not subcontract a larger value of the Works than the maximum specified in the Appendix to Tender. at the signature of the Contract Agreement. this amount should be clearly stated. It is therefore possible to limit such requirement.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. Moreover. it is possible to specify (under Sub-Clause 14. In order to ensure that a properly nominated Contractor’s Representative is available at all times. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). 925/2006. Please also note that. 925/2006). according to the same Article 96(2) of GD No.

to detail on which criteria consent will be given. as approved by the Engineer. In case of default on the part of the Contractor in maintaining or implementing such traffic management plan.Safety Procedures If the Contractor is sharing occupation of the Site with others. Such plan shall describe. fulfilled obligations as per payment of taxes and social contributions) Sound financial position Experience in similar projects (for the type of works intended to be performed by the proposed Subcontractor).6 . lighting. the sequence of signs. it is recommendable. on any part of the Site. In these circumstances. 3 or 4 lanes). Such criteria might include: Personal situation (no bankruptcy or similar proceedings.5 . the Contractor shall submit to the Engineer a detailed traffic management plan. . for transparency reasons. subject to Sub-Clause 2.Assignment of Benefit of Subcontract No need for particular conditions related to this sub-clause. etc.” Approval by the Engineer will be granted only further to the approval by the Road Police and by the Employer’s specialised services. deviations.Romania. Sub-Clause 4. Sub-Clause 4. The traffic management plan shall indicate what measures will be implemented to manage the traffic while Works are underway. for example. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 30 Furthermore. “Within 28 days of the signature of the Contract Agreement.Setting Out No need for particular conditions related to this sub-clause. in the form of a sketch accompanied by narrative details.5. it is highly desirable that the Specifications describe the resulting constraints and procedures for co-ordination. fence. it may not be appropriate for him to provide some of the listed items.Co-operation In case several contractors are working simultaneously on or near the Site. It is recommended to include at the end of this Sub-Clause provisions referring to Traffic Management Plans and similar. to be applied to each section of road with different cross profile characteristics (2. so that road users and riparian be protected. no final sentence for professional misconduct. etc. The requirements of paragraph (d) of the present Sub-Clause might need to be reviewed in particular cases: it might not be appropriate to ensure fencing and lighting of a road section. The traffic management plan shall be approved by the Engineer before the start of the Works on any part of the Site.7 . - Sub-Clause 4.8 . when relevant. the Employer shall be entitled. to payment by bfc2-071_fidic user guide_250407_final.DOC . Sub-Clause 4. the Employer's obligations should be specified.

13 .17 .10 . the Employer's obligations should be specified: see SubClause 4.20.15 .Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. this Sub-Clause should establish a link with the documents provided. In case a description or an outline of the quality assurance system was submitted as part of the Tender.” %) of which shall be inpercent of the Cost shall be Sub-Clause 4.12 may be amended by deleting sub-paragraph (b) of Sub-Clause 4.Romania. Sub-Clause 4.11 . . further paragraphs may be added. Sub-Clause 4.Transport of Goods No need for particular conditions related to this sub-clause. If vesting of Contractor's Equipment is required. It is therefore assumed that an access route exists (but its suitability for transport is not guaranteed by the Employer) and that the Contractor is entitled to use it (even if this might imply some costs).Site Data Under this Sub-Clause. Sub-Clause 4.Unforeseeable Physical Conditions In the case of major sub-surface works. Sub-Clause 4. bfc2-071_fidic user guide_250407_final. per cent ( cluded in the Contract Price (the balance borne by the Contractor). Sub-Clause 4. If this risk is to be shared between the parties. Sub-Clause 4. Sub-Clause 4.9 . usually as part of the tender documents.14 . subject to their being consistent with applicable laws.DOC .Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works. Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 31 the Contractor of the Cost of remedy measures or any higher amount depending on actual damages.13. Sub-Clause 4.Right of Way and Facilities No need for particular conditions related to this sub-clause.Quality Assurance The wording in the General Conditions imposes the requirement of a quality assurance system in accordance with details specified in the Contract. the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.Avoidance of Interference No need for particular conditions related to this sub-clause.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2. Sub-Clause 4.12 and substituting by: “(b) Payment for any such Cost.16 .12 .1 and Sub-Clause 4.

Employer's equipment and Free-Issue Material For this Sub-Clause to apply. It is advisable to have those materials surveyed as part of the tender.DOC . the Employer shall be entitled. In case the condition of free issue materials is not known before the execution of the Works (for example when some materials are to be re-used).Romania. as well as the time and place where they will be made available should be defined.Protection of the Environment For Works to be executed in particularly environmentally sensible areas. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements.18 . The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers.Electricity. For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause. if this is not located on the Site.5. Employers should ensure that all tenderers base their prices on the same assumptions and that the mechanism for incorporation of such materials does not distort competition. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 32 This Sub-Clause refers only to Equipment brought on Site. It might be advisable to extend it to Equipment brought to the Contractor’s site installation. it is recommendable to refer to the equipment proposed by the Contractor as part of its tender: “The Contractor shall use for the execution of the Works Equipment of not lower quality and capacity than the Equipment proposed in the Tender and listed in Schedule xx to the Contract. Water and Gas If services are to be available for the Contractor to use. so as to define their condition and suitability for use.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements. the Specification should describe each item which the Employer will provide and/or operate and should specify all necessary details. they should be very careful so as to ensure fair and transparent conditions of competition.20 . Sub-Clause 4. . while detailed information regarding the quality and quantity of free issue materials. bfc2-071_fidic user guide_250407_final. Furthermore. further provisions may be necessary. In case Employers intend to use this Sub-Clause. including locations and prices. the Specification should give details.” Sub-Clause 4. subject to Sub-Clause 2. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. With some types of facilities. Sub-Clause 4.19 .” Sub-Clause 4. in order to clarify aspects such as liability and insurance. for use of Employer’s Equipment or of free issue materials.21 . Employers might want to include in this Sub-Clause a provision for indemnification in case of default.

List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. the sent samples. the equipment out of order. if need be. such as completed Works. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. the materials incorporated into the works. the working hours.Security of the Site If the Contractor is sharing occupation of the Site with others. These attachments are part of the works diaries. during the reported period.Contractor's Operations on Site No need for particular conditions related to this sub-clause. as well as verbal orders given to the Contractor. the tests completed. in the case of a road rehabilitation project.Fossils No need for particular conditions related to this sub-clause. the Employer's obligations should be specified.” Sub-Clause 4. 2. the unforeseen events. supplies accepted for incorporation into the Works. the work breaks due to adverse meteorological conditions. New Sub-Clause 4. as separate documents. but can be signed. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties.Romania. actual quantities.21 [Progress Reports] with subsequent description in the Specifications): “The Contractor shall draw up a works diary for contemporary records. . Atmospheric conditions. In these circumstances. it is recommendable to precise that: “For the purposes of this Sub-Clause.23 . For example. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. Sub-Clause 4.24 . The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1.25 Works Diary It is recommendable to add a new Sub-Clause [Works Diary] (or integrate these provisions with the ones of Sub-Clause 4. 3. bfc2-071_fidic user guide_250407_final. it may not be appropriate for him to be responsible for its security. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 33 The requirement to provide 6 copies might also be adapted.22 . Such use and access shall be regulated as part of the Contractor’s traffic management plan.DOC . Sub-Clause 4. the supplied materials. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor. the number and the qualification of the personnel working on Site. At the Engineer’s request. in a format agreed by the Engineer.

Before using this Clause. Clause 5 should be amended. The sub-paragraphs of Sub-Clause 5.2 indicate some of the problems which may have to be overcome. Sub-Clause 5. . 4.26 .Evidence of Payments No need for particular conditions related to this sub-clause. although the Contractor remains responsible for any act or default of Subcontractors. 10/1995.4. the Contractor might be required to provide inputs to the Construction Book. Employers might also consider the conclusion of a separate contract.1 . subject to any constraints specified in the Contract. signed by the Contractor’s Representative and countersigned by the Engineer or his representative. it is advisable to introduce provisions similar with those of the conditions of contract for plant and design-build (Sub-Clause 5.5 Clause 5 . Sub-Clause 5.4. New Sub-Clause 4. Sub-Clause 5.Objection to Nomination No need for particular conditions related to this sub-clause. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. the Contractor has to inform in writing the Engineer about his remarks within 14 days from the date when the notice has been recorded in the works diary or attachments”. describing the particular circumstances. according to Sub-Clause 4. Clause 5 provides for the particular situation whereby the Employer may select a Subcontractor.2 .Nominated Sub-Contractors In most cases under Sub-Clause 4. Such inputs should be clearly defined. full details should be included in the tender documents.Romania. If the Employer anticipates that a Subcontractor is to be instructed under Clause 13 but is not to be a nominated Subcontractor. In case of disagreement on a subject noted in the works diary or attachments.Payments to nominated Subcontractors No need for particular conditions related to this sub-clause.DOC .Definition of "nominated Subcontractor" No need for particular conditions related to this sub-clause.As-Built Drawings In order to ensure full compliance with the requirements of Law No. Sub-Clause 5.3 . Furthermore.3. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 34 The information provided is noted in the works diary and attachments.6). The attention of Employers is drawn on the fact that Nominated Subcontractors shall be nominated further to a selection procedure in full accordance with the relevant procurement legislation. bfc2-071_fidic user guide_250407_final. If a nominated Subcontractor is to be required. the Contractor selects Subcontractors.4 .

Any replacement personnel shall be at least of equivalent qualification and experience. Sub-Clause 6.7 . .5 . such as traffic management.” Sub-Clause 6.6 Clause 6 .Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause. Sub-Clause 6.4 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 35 4.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender.8: bfc2-071_fidic user guide_250407_final.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.3 .8 .Contractor's Superintendence Add the following text at the end of Sub-Clause 6.Staff and Labour Sub-Clause 6. this Sub-Clause may be deleted. etc. the Employer must clearly indicate in the tender documents the mandatory rules regarding labour conditions and labour safety which must be complied with throughout the performance of the Contract. chemicals. Sub-Clause 6. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift. In some cases. The Employer should require Tenderers to indicate in the Tender the fact that obligations related to labour conditions and labour safety were taken into consideration in the preparation of the Tender.DOC . Sub-Clause 6. or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. requests of the Contractor to work outside the normal working hours will have an impact on the activity of and required inputs from the Engineer.Labour Laws According to the Procurement Guide. except for those activities requiring continuous presence on Site.Facilities for Staff and Labour If the Employer will make some accommodation available. Sub-Clause 6. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract.Persons in the Service of Employer No need for particular conditions related to this sub-clause. Such obligation is deemed to be complied with if the tender documents indicate the relevant institutions wherefrom detailed information as regards the above mentioned regulations can be obtained.3. his obligations to do so should be specified.Romania. for example).” Sub-Clause 6.2 .6 .1 .

promised or offered by or on behalf of the Contractor or his agent or servant or any other person on his or their behalf or on behalf of any of them in relation to the obtaining or to the execution of this or any other Contract with the Employer shall. barter or disposal by Contractor’s Personnel.” Add the following paragraphs at the end of Sub-Clause 6. sale.1 . barter or otherwise dispose of any alcoholic liquor or drugs. (c) Arms and Ammunition The Contractor shall not give. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. In the event of the death in the Country of any of these personnel or members of their families.Romania.9 .8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works. gratuity. gift.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause. in addition to any criminal liability which may be thereby incurred. give.” Sub-Clause 6. Sub-Clause 6.Contractor's Personnel No need for particular conditions related to this sub-clause.10 . or permit or allow importation. (d) Illegal Payments Any commission.7 Clause 7 . advantage. 4. import. The Contractor must ensure that these personnel are provided with the required residence visas and work permits. the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial. gift. The prohibition of “Hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4.DOC . barter or otherwise dispose to any person. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 36 “A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of Romanian language.Plant Materials and Workmanship Sub-Clause 7. reward or bribe given. any arms or ammunition of any kind. .Disorderly Conduct No need for particular conditions related to this sub-clause.8). subject the Contractor at the Employer's option to the cancellation of this and of all other contracts which he may have entered into with the Employer and also the payment of any loss or damage resulting from such cancellation. bfc2-071_fidic user guide_250407_final. Any amount paid shall be deducted from the Contractor's payment due. or allow Contractor’s Personnel to do so. Sub-Clause 6. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. sell. (b) Alcoholic Liquor or Drugs The Contractor shall not.3.11 .

Sub-Clause 7. Sub-Clause 7.Samples No need for particular conditions related to this sub-clause. etc). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 37 Sub-Clause 7. debris and hazardous waste. construction and environmental Laws. if any. If changed or new applicable standards come into force in the Country after the Base Date.Technical Standards and Regulations It is advisable to precise (as per the provisions of Sub-Clause 5.DOC . References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date. levied in relation to the dumping of part or all of such materials.Ownership of Plant and Materials No need for particular conditions related to this sub-clause. be those prevailing when the Works or Section are taken over by the Employer under Clause 10 [Employer's Taking Over]. Sub-Clause 7.6 . Sub-Clause 7.5 . this should be made clear in the Specifications.8 .Remedial Work No need for particular conditions related to this sub-clause.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment. In the event that: a) the Engineer determines that compliance is required.Testing No need for particular conditions related to this sub-clause.4 . bfc2-071_fidic user guide_250407_final.4 of the conditions of contract for plant and design-build): “The design.3 . Sub-Clause 7. unless stated otherwise. in respect of the Works and each Section. and other standards specified in the Specifications. Laws applicable to the product being produced from the Works. waste piles.Rejection No need for particular conditions related to this sub-clause.Romania. and b) the proposals for compliance constitute a variation.” New Sub-Clause 7. the Contractor's Documents. All these Laws shall.7 . Sub-Clause 7.9 .2 . the execution and the completed Works shall comply with the Country's technical standards. applicable to the Works. or defined by the applicable Laws. the Contractor shall give notice to the Engineer and (if appropriate) submit proposals for compliance.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. building. .

in the Appendix to Tender. subject to Sub-Clause 2. the last sentence defines strong obligations for the Contractor. It is highly recommended not to sign any contract before compliance with SubClause 2. In case Employers know that the Commencement Date for a part of the Works will be delayed. under its full responsibility.3 .Commencement.2 . bfc2-071_fidic user guide_250407_final. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 38 then the Engineer shall initiate a Variation in accordance with Clause 13 [Variations and Adjustments].1 and Sub-Clause 8. the expiry of the Time for Completion does not relieve the Contractor from its obligation to perform the Works. .” 4. On the other hand.8 Clause 8 . Sub-Clause 8. It is advisable to provide a time-limit for the submission of a revised programme. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice.1 is ensured.” Sub-Clause 8.3. it is advisable to define this part as a Section (in the Appendix to Tender) and to define under the present Sub-Clauses different Commencement Dates by Sections. these stages should be defined as Sections.DOC .Romania. Failure of the Employer to provide access to and possession of the Site in due time might delay the Commencement Date and have serious consequences. the Contractor should not stop the Works if it is able to work on part of the Works.5. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8.7).Extension of Time for Completion No need for particular conditions related to this sub-clause.Time for Completion It has to be highlighted that. In case the Works are not completed during the Time for Completion.Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. If the Works are to be taken-over in stages. as the Contract clearly describes how to handle this situation.Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer. The programme is primarily a document prepared by the Contractor. For example. to payment of damages by the Contractor.1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. there is no need to amend the Contract in any way.4 . delays and Suspension Sub-Clause 8. Failure to comply with this provision shall entitle the Employer.1 . Sub-Clause 8.

to withhold from the Interim Payment Certificates an amount equal to 0. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. the Engineer will define those four indicators. The amount so withheld shall be paid to the Contractor. .Delays Caused by Authorities No need for particular conditions related to this sub-clause.3. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works.Delay Damages Under many legal systems. subject to Clause 2. The Contractor work programme under the present Sub-Clause is submitted. The four other indicators shall be agreed by the Contractor and the Engineer within 28 days from the submission of the Contractor’s work programme. as submitted under the first paragraph of Sub-Clause 8. bfc2-071_fidic user guide_250407_final. It is therefore possible to include a “milestones system” along the example provided below. Milestone 1 is defined as the achievement of the following indicators.3 or revised under the third paragraph of Sub-Clause 8. Sub-Clause 8.15(b). Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. This system includes five milestones for monitoring and evaluation of the progress of the Works. Before using such system. If the Accepted Contract Amount is expressed in the Local Currency.5. up to a maximum of 10% of the Accepted Contract Amount.05% of the Accepted Contract Amount per day of delay.Romania. Such indicators however shall be defined based on the Contractor’s work programme. if and when the milestone is reached. 28 days after the Commencement Date: All Contractor key personnel are on Site.5 . In case the Contractor incurs delays in the achievement of a milestone. Compliance of the progress of the Works with the Contractor’s programme.Rate of Progress Employers sometimes complain that there is little control on the performance of the Contractor before the end of the Time for Completion. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. Milestone 1 is defined hereafter. (Other items). the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. the milestones have to be updated in accordance with the provisions above. the Employer will be entitled.6 .DOC .7 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 39 Sub-Clause 8. Sub-Clause 8. In case no agreement is reached during such period. is controlled through a milestones system. Whenever a revised programme is being submitted.

New Sub-Clause 8.DOC . but the Employer’s Claims procedure defined under Sub-Clause 2. It is also mentioned that these delay damages are the only damages due for such default (late completion). This tends to restrict the constitution of “black lists” or other similar instruments. the tests requirements may have to take account of the effect of some parts of the Works being incomplete.Prolonged Suspension No need for particular conditions related to this sub-clause. it might be envisaged to (i) introduce a higher amount of delay damages.Consequences of Suspension No need for particular conditions related to this sub-clause. If the Works are to be tested and taken-over in stages. For contracts where completion of the Works by a certain date is of paramount importance.12 . or suspend the actual payment of such damages by the Contractor until the completion of the Works.10 . etc.9 .9 Clause 9 .Tests on Completion Sub-Clause 9. but also (ii) introduce a bonus for acceleration.Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause.2 refers to accelerated completion). . Sub-Clause 8. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price.1 . in duly justified cases.Resumption of Work No need for particular conditions related to this sub-clause. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time. for example in case payment of such damages would create strong pressures on the Contractor’s cash flow and would jeopardize the actual completion of the Works. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 40 It is recalled that delay damages cannot be simply deducted by Employers from Interim Payment Certificates.8 .5 has to be followed. Sub-Clause 8. Sub-Clause 8. waive their rights to delay damages. except in the event of termination by the Employer.Romania.3.13 . 4.Contractor's Obligations The Specification should describe the tests which the Contractor is to carry out before being entitled to a Taking-Over Certificate.). Sub-Clause 8. For example. bfc2-071_fidic user guide_250407_final. It should also be noted that Employers might.Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed. Sub-Clause 8.11 .Incentives for Early Completion Incentives for early completion may be included in the tender documents (although Sub-Clause 13.

If the Works are to be taken-over in stages.Interference with Tests on Completion No need for particular conditions related to this sub-clause.4 . 273/1994.3. Precise geographical definitions are advisable.3 . Sub-Clause 10. 273/1994. in the Appendix to Tender. The role of the Engineer in the taking-over commission is not defined. 4.DOC .10 Clause 10 .Romania. Sub-Clause 9.Retesting No need for particular conditions related to this sub-clause. Sub-Clause 9. On the other hand. Such regulations are reflected in the mandatory particular conditions in Appendix A1. these stages should be defined as Sections.Taking-Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No.Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause. GD No. Sub-Clause 10.2 . the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed. 925/2006) are reflected in the mandatory particular conditions in Appendix A1. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. Sub-Clause 10.4 .1 .Taking Over of the Works and Sections This Sub-Clause needs to be amended in order to comply with the Romanian regulations related to taking-over of Works set out mainly in GD No.2 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 41 Sub-Clause 9.3 . It remains for Employers and Engineers to agree on what exactly means “minor outstanding work and defects which will not substantially affect the use of the Works or Section for their intended purpose”.Employer's Taking-Over Sub-Clause 10.Failure to Pass Tests on Completion No need for particular conditions related to this sub-clause.Delayed Tests No need for particular conditions related to this sub-clause. and the Appendix to Tender should include a table. Unless expressly forbidden by the Law. 273/1994). . it might be recommendable that the Engineer be nominated as representative of the Employer. so as to define the Time for Completion and delay damages: example of this table is shown in the Appendix D2. bfc2-071_fidic user guide_250407_final. The Employer must nominate a taking-over commission (Article 7 of GD No.

1 .2 .Performance Certificate This Sub-Clause needs to be amended in order to comply with Romanian regulations related to taking-over of Works set out mainly in GD No. Such regulations are reflected in the mandatory particular conditions in Appendix A1.Further Tests No need for particular conditions related to this sub-clause. The issue of the Performance Certificate represents the acceptance of the Works.11 Clause 11 .Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause. a Defects Notification Period shall not be extended by more than two years. 10/1995). Sub-Clause 11.3. Sub-Clause 11.Contractor to Search No need for particular conditions related to this sub-clause. However.Unfulfilled Obligations Under Romanian law. Sub-Clause 11.Removal of Defective Work No need for particular conditions related to this sub-clause.DOC .Right of Access No need for particular conditions related to this sub-clause.6 .Defects Liability Sub-Clause 11. Sub-Clause 11. It is therefore normal that the final payment and final evaluation of the Contract Price comes after such acceptance. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix A1. Sub-Clause 11.3 .9 . a Section. 273/1994.8 .” Sub-Clause 11. the Contractor is liable for the latent defects of the Works during a 10 year period.Costs of Remedying Defects No need for particular conditions related to this sub-clause. if and to the extent that the Works.10 . Sub-Clause 11.Failure to Remedy Defects No need for particular conditions related to this sub-clause.7 .Extension of Defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2. Sub-Clause 11. .5 . a Section or a significant part of the Works. a major item of Plant or significant part of the Works (as the case may be.4 . and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage. bfc2-071_fidic user guide_250407_final.5 to an extension of the Defects Notification Period for the Works.Romania. whilst his liability for defects affecting the structure subsists during the lifetime of the Works (Article 29 of Law No. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 42 4. Sub-Clause 11.

which are intended to benefit both Parties.3 (a) (ii): replace “0.12 Clause 12 .Clearance of Site No need for particular conditions related to this sub-clause. Sub-Clause 12. it is recommendable to define a schedule of payments. . details should be specified in the tender documents.2. variations do bfc2-071_fidic user guide_250407_final. it should be noted that whenever some item is to be paid (partly or entirely) when it is achieved “at the satisfaction of the Engineer”.DOC .Measurement and Evaluation Sub-Clause 12. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 43 Sub-Clause 11. Sub-Clause 13.13 Clause 13 . without prior agreement as to feasibility or price. b) The Contractor may initiate his own proposals under Sub-Clause 13.3 (a) (i): replace “10%” with “15%” In Sub-Clause 12.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13. or c) The Engineer may request a proposal under Sub-Clause 13. Sub-Clause 12.Works to be Measured If any part of the Permanent Works is to be measured according to records of its construction.4 . 4. Furthermore.01%” with “0.Evaluation It is advisable to include the following: In Sub-Clause 12. including any records for which the Contractor is to be responsible.3.Method of Measurement It is recommended to describe the principle of the methods of measurement in the Preamble of the Bill of Quantities and the details in a “description of price” for each item of the Bill of Quantities.3 (a) (iii): replace “1%” with “2%”.Romania. For “lump sum” items.2 . such “satisfaction” should be properly documented.3. 4.Omissions No need for particular conditions related to this sub-clause.3 . From this point of view. seeking prior agreement so as to minimise dispute.1 .5%” In Sub-Clause 12.Right to Vary Several points have to be noted: Variations are initiated prior to the taking-over Variations are initiated by the Engineer (maybe at the request of the Employer) Variations do not require to be signed or approved by the Contractor and may be simply instructed.3.1. Sub-Clause 12.11 .1 .

it is strongly recommended to include a price adjustment formula. Under the procurement legislation. Sub-Clause 13. Materials or services other than from a nominated Subcontractor.3 .Romania. Sub-Clause 13. as any instruction. The last sentence of this Sub-Clause is of importance and introduces the principle of “non-retroactivity”.6 .” Typically.” Sub-Clause 13.4 .Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause. The Contractor shall not be entitled to any extension of time.5 .Variation Procedure No need for particular conditions related to this sub-clause. Such formula bfc2-071_fidic user guide_250407_final. calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender.Provisional Sums It is recommended to modify point (b) (ii): “A sum for overhead charges and profit.Daywork No need for particular conditions related to this sub-clause. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 44 not have to be treated like an addendum. Cost or profit related to such period of review and approval. 925/2006. The possibility and principles of such adjustments are foreseen in Article 97 of GD No.Payment in Applicable Currencies No need for particular conditions related to this sub-clause. In particular. Sub-Clause 13.Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No. The relevant wording is included in the mandatory particular conditions in Appendix A1.8 . Sub-Clause 13. including for the period required for its review and approval. the conditions of Article 122(i) of GEO No.2 . additional works are to be treated with considerable care.DOC .Adjustment for Changes in Cost These provisions for adjustments may be required if it would be unreasonable for the Contractor to bear the risk of escalating costs due to inflation. A new paragraph needs to be added at the end of this Sub-Clause reflecting the obligation for the Contractor to comply with Romanian public procurement regulations when purchasing Plant. variations have to be made or confirmed in writing. Sub-Clause 13. For any contract of duration of more than 12 months. 925/2006. However. a percentage of 5% is being used. Sub-Clause 13. 34/2006 have to be met. .7 .

are unusual and only used when (for reasons of urgency or otherwise) the Employer is willing to accept the risks involved.14 Clause 14 . Thus the Contract Price shall not be subject to any adjustment due to inflation.1 . Actually the multiplier is calculated for the works performed during month n.7 are not subject to this restriction. 4. A positive cash flow is clearly of benefit to the Contractor. As a result.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 45 should be based on relevant indices published by authorised bodies.1(a) would not apply if payment is to be made on a lump sum basis. Additional Sub-Clauses may be required to cover any exceptions to the options set out in Sub. it might be preferable to clearly state that: “The Tender and subsequently the Contract Amount shall have been based on the Contractor’s projections for inflation over the implementation period. these Conditions would be inappropriate if significant design input by the Contractor is required. in order to remove any ambiguity. Cost-plus contracts. FIDIC's other bfc2-071_fidic user guide_250407_final. the Contractor can prepare any other details necessary. typically by the National Institute of Statistics. Lump sum contracts may be suitable if the tender documents include details which are sufficiently complete for construction and for Variations to be unlikely. it is sufficient not to fill in any “table of adjustment data”. In those cases.” It should be noted that the proposed formula applies only for works performed after the changes occurred (so it applies for what “remains to be executed” in accordance with provisions of GD No.3. 925/2006). without having to refer back to the Engineer for clarification or further information. Clause 12 should be replaced by provisions describing the method of determining the Costs and Contract Price. consideration should be given to the amount and timing of payment(s) to the Contractor. If the contract is intended to be at fixed rates.DOC . . However. under which the actual Costs are determined and paid.Romania. and any other matters relating to payment. Further design by the Contractor (under sub-paragraphs (a) to (d) of Sub-Clause 4. Cases provided by Clause 13.Contract price and Payment Sub-Clause 14.The Contract Price When writing the Particular Conditions. and construct the Works.1) is not precluded. If the Contractor is to be paid actual Costs.Clause 14. rise or fall in the cost of labour. the provisions in the General Conditions which entitle the Contractor to payment of additional Costs will generally be of no effect. However. materials or any other matters affecting the execution of the Contract. From the information supplied in the tender documents. and tenderers will take account of the interim payment procedures when preparing their tenders. Sub-Clause 14.

bfc2-071_fidic user guide_250407_final. 264/2003). it is possible to add the following sentence at the end of this Sub-Clause: “Any Statement under this Sub-Clause shall be signed by the Contractor’s Representative duly appointed in accordance with Sub-Clause 4. consideration should be given to the benefits of advance payment(s). The acceptable form(s) of guarantee should be included in the tender documents. in addition to the documents and information contained in the Contractor’s progress report.3.1(b) is not to apply.4 .4). In case a Statement is not signed by the duly appointed Contractor’s Representative. annexed to the Particular Conditions: an example form is annexed in Appendix D1. and the Schedule would actually make reference to actual progress. If Sub-Clause 14. It is important to define such progress by reference to nonambiguous milestones.2 . The Specification should describe the procedures under which the Contractor submits these Documents for the Engineer to approve. Sub-Clause 14. For a lump sum contract. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 46 forms may be more appropriate: see FIDIC's Conditions of Contract for Plant and Design-Build or Conditions of Contract for EPC/Turnkey Projects.” Sub-Clause 14.Romania. This Sub-Clause needs be amended in order to reflect mandatory Romanian regulations in respect of advance payments from the public funds (Law No.Schedule of Payments In most cases. the total advance payment (and the number of instalments if more than one) must be specified in the Appendix to Tender. In some cases. this Sub-Clause would apply only for the conditions of contract for plant and design-build. In order to ensure that a duly appointed Contractor’s Representative will be present at all time. It is therefore recommended to elaborate a Schedule that takes into account the main steps of the Contract and the main “objects” in the design and execution. Unless this Sub-Clause is not to apply.Application for Interim Payment Certificate It might be useful to better define which supporting documents would be required. Sub-Clause 14. 500/2002 and GD No. such Statement shall be void and ineffective. Some objects might also be divided into sub-phases.DOC .Advance Payment When writing the Particular Conditions. additional Sub-Clause(s) should be added. Such amendments are included in the mandatory particular conditions in Appendix A1. and any drawings required for construction may be specified as being Contractor's Documents. .3 . Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. the tender documents should include a schedule of payments (see Sub-Clause 14.

The Engineer shall give notice to the Contractor in case the value of a Certificate would be less than the minimum value stated in the Appendix to Tender.Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. Such amendments are included in the mandatory particular conditions in Appendix A1. but in case of arithmetical mistakes. It is however preferable that the “weight” of each sub-phase be defined in the tender documents. Furthermore.DOC . .Romania. through the provision of supporting particulars. Although modifications regarding works already certified should remain the exception. Interim Payment Certificates are. Sub-Clause 14.6 . such works are considered as finally approved only at the issue of the Performance Certificate. Plant and Materials delivered to the Site become the property of the Employer. - - Sub-Clause 14. The Engineer is due to substantiate its determination. he can also include in his claim the related financing costs.2). several aspects need to be highlighted: The Engineer is bound by the time limit of 28 days for issue of an Interim Payment Certificate (failure to issue a Certificate in 56 days is a reason for Termination by the Contractor under Sub-Clause 16. The scope of those provisions is to ensure that an adequate flow of cash is maintained. in case the Employer considers that an undue payment has been made. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. It has to be noted that the Employer is not entitled to modify any Payment Certificate. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix A1. bfc2-071_fidic user guide_250407_final. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 47 tenderers would have to price each object.7. interim. Sub-Clause 14. The Contractor is to be notified of the value of the Interim Payment Certificate.5 . by definition.5. It also has to be noted that.Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No.7 . They do not imply acceptance of any work and might be modified afterwards.

9 .Statement of Completion No need for particular conditions related to this sub-clause. in accordance with the estimates submitted under SubClause 14.2. Sub-Clause 14. bfc2-071_fidic user guide_250407_final." The acceptable form(s) of guarantee should be included in the tender documents. . annexed to the Particular Conditions: an example form is annexed in Appendix D1. add the following paragraphs at the end of Sub-Clause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 48 Sub-Clause 14.DOC . in amounts and currencies equal to the payments to be made.Application for Final Payment Certificate No need for particular conditions related to this sub-clause.9: “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee. as specified for the Performance Security in Sub-Clause 4. after he obtains such guarantee. Sub-Clause 14. for example: The financing charges for amount/s receivable not paid on the due date shall be the interest rate applied by the European Central Bank to its principal refinancing operations. The amount of the bank guarantee shall however be equal to the limit of Retention Money stated in the Appendix to Tender when the total of all certified interim payments (excluding the advance payment and deductions and repayments of retention) exceeds seventy per cent (70%) of the Accepted Contract Amount less Provisional Sums. while the Contractor shall be entitled.12 . increased by three and a half percentage points.9.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee.10 . Sub-Clause 14.11 . in a form and provided by an entity approved by the Employer. as published in the C series of the Official Journal of the European Communities.8 . The release of the guarantee shall be in lieu of the release of the second half of the Retention Money under the second paragraph of Sub-Clause 14. when the Taking-Over Certificate has been issued for the Works.4 [Schedule of Payments]. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. Sub-Clause 14. in force on the first calendar day of the month in which the due date falls.Romania. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects.Discharge No need for particular conditions related to this sub-clause. In such case. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money.Delayed Payment When payments are made in Euro (or EUR). The Contractor may gradually increase the amount of the bank guarantee. it is useful to indicate that the central bank of the Country is the European Central Bank.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 49 Sub-Clause 14. 500/2002) and affecting the issuance of the Final Payment Certificate by the Engineer are reflected in the mandatory particular conditions in Appendix A1.13 .16 may be added: “The Contractor undertakes to repay to the Employer any amounts paid in excess of the final amount due within 45 days of receiving a request to do so. At the rate applied by the European Central Bank to its main refinancing transactions in euro where payments are in euro.Issue of Final Payment Certificate The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. and the date on which payment is actually made (inclusive).Cessation of Employer's Liability No need for particular conditions related to this sub-clause. The default interest shall be incurred over the time which elapses between that date of the payment deadline set by the Employer (exclusive).Romania. bfc2-071_fidic user guide_250407_final. and/or special Sub-Clauses which may need to be incorporated into the Particular Conditions. New Sub-Clause 14. The exact wording will depend on the relevant institution. the Particular Conditions may need to incorporate its special requirements. Any partial payments shall first cover the interest thus established. there may be a need to secure finance from entities such as aid agencies. on the first day of the month in which the time-limit expired.” Financing Arrangements For major contracts in some markets. the Employer may increase the amounts due by adding interest: At the discount rate applied by the central bank of the country of the Employer if payments are in the currency of that country. or other international financing institutions. Sub-Clause 14. If financing is to be procured from any of these sources. Bank charges incurred by the repayment of amounts due to the Employer shall be borne entirely by the Contractor.16 Repayment A new Sub-Clause 14. Sub-Clause 14. export credit agencies.DOC . development banks. so reference will need to be made to them to ascertain their requirements. . These requirements may include tendering procedures which need to be adopted in order to render the eventual contract eligible for financing.Currencies of Payment If all payments are to be made in Local Currency. and only the first sentence of this Sub-Clause will apply.15 .14 . Sub-Clause 14. Should the Contractor fail to make repayment within the deadline set by the Employer. it must be named in the Letter of Tender. plus three and a half percentage points.15 may then be replaced. Amounts to be repaid to the Employer may be offset against amounts of any kind due to the Contractor. This shall not affect the Parties’ right to agree on payment in instalments. Alternatively. and to seek approval of the draft tender documents.

for any reason. or by a suitably completed schedule of payments (see Sub-Clause bfc2-071_fidic user guide_250407_final. including pre-disbursement conditions for the financing arrangements. d) Giving the Contractor the right to suspend/terminate in the event of default under the financing arrangements. before submitting the Tender.DOC . Alternatively. and/or the institution may decline to provide finance for part or all of the Contract. although a large proportion of the Contract Price might be withheld until the Works are complete. whether due to a default under the financing arrangements or otherwise. It is not unusual for the Particular Conditions to include special provisions identifying different categories of Plant and specifying the documents to be presented to the relevant financing institution to obtain payment. His financing bank's requirements would then affect his attitude in contract negotiations. and/or to restrict the Contractor's rights under Clause 16. c) Provision for arbitration under recognised international rules and at a neutral location. The above arrangements (involving financing institution(s). the Contractor may be prepared to initiate financing arrangements and retain responsibility for them. . although he would probably be unable or unwilling to provide finance from his own resources. it may be difficult (or even impossible) to secure suitable financing for the project. the financing institution or bank may wish the Contract to include references to the financing arrangements. f) Specifying the payments due in the event of termination. e) Restricting the right to reject Plant. especially if funding from more than one source is to be arranged to finance different elements of supply. where the financing is not tied to the export of goods and services from any particular country but is simply provided by commercial banks lending to the Employer. These banks may wish the Contract to exclude any reference to the financing arrangements. g) Specifying that the Contract does not become effective until certain conditions precedent have been satisfied. those banks may be concerned to ensure that the Contractor's rights are very restricted.Romania. This payment arrangement can be achieved either by a high Percentage of Retention. Employer and Contractor) may be initiated by the Employer. and h) Obliging the Employer to make payments from his own resources if. However. the funds under the financing arrangements are insufficient to meet the payments due to the Contractor. They might well require the Employer to make interim payments. If the financing institution's requirements are not met. In addition. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 50 The following examples indicate some of the topics which the institution's requirements may cover: a) Prohibition from discrimination against the shipping companies of any one country. b) Ensuring that the Contract is subject to a widely-accepted neutral law. or by the Contractor.

Sub-Clause 15.Termination by Employer This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law. the last two sentences of the last paragraph of this Sub-Clause should be deleted. with the Instructions to Tenderers specifying the criteria with which the Tenderer should comply. Moreover. The acceptable form(s) of guarantee should be included in the tender documents. in the first place. guaranteeing payment when due. when preparing the tender documents. .) and might support significant additional costs in order to complete the Works. such as. both for the Contractor and for the Employer. Therefore. Items belonging to the Contractor may not be sold by the Employer. Moreover.1 . “Rushing into termination” would in any case be a mistake. 4. Since the Contractor would then have to arrange his own financing to cover the shortfall between the payments and his outgoings.15 Clause 15 . In real terms. It should be noted. unless the later has an enforceable title allowing him to do so. In case this period goes beyond the Time for Completion. he (and his financing bank) would probably require some form of security.DOC .7). by defining that a minimum (very low) rate of progress. so as to allow such negotiations to develop. Employers would often lose considerable time (including valuation.4). termination under this Sub-Clause should be used as a last resort. organisation of a new tender. In such cases. Employers might want to bring a clearer definition of the provisions of letter (b).Termination by Employer Sub-Clause 15.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 51 14. such as an enforceable court decision or a security interest over such items (which is an enforceable title per se). for example. to anticipate the latter requirement by undertaking to provide a guarantee for the element of payment which the Contractor is to receive when the Works are complete. In particular. etc.3. the Employer may postpone the termination notice. It may be appropriate for the Employer. say.2 . the fact that the Contractor is in one of the situations described in this Sub-Clause as causes for termination should not be understood as necessarily triggering termination. that termination of the Contract is a failure. the notice period should be used to initiate negotiations and remedy measures. bfc2-071_fidic user guide_250407_final. Such amendments are included in the mandatory particular conditions in Appendix A1. less than 1% over the last 6 months will be considered as “abandoning” of the works. it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8. annexed to the Particular Conditions: an example form is annexed in Appendix D2.Notice to Correct A notice to correct should mention that it is given under the present Sub-Clause and state a reasonable time period for remedial.

Termination by Contractor See comments under Sub-Clause 15.4 . It might be appropriate to define a time limit for the Contractor to submit its request. it cannot be resumed and in most cases a new tender procedure would be necessary.Payment on Termination After termination.4 . Employers should obviously avoid putting themselves in one of the situations described. 4. as he may consider proper.3 .3 .2. depending on the complexity of the project (for example. payments on termination will usually occur in a difficult situation of conflict.Suspension and Termination by Contractor Sub-Clause 16.” Sub-Clause 15. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 52 It is possible to insert the following text within the last paragraph after the second sentence: “If the Contractor fails to remove his Equipment and Temporary Works within 21 days after receiving the notice.2. the advance payment shall be repaid immediately by the Contractor (if not. Obviously.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause.DOC . Sub-Clause 16.2 .Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.Romania.5 .Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause. the Employer will be entitled to use so much of the Contractor’s Equipment and Temporary Works which have been deemed to be reserved exclusively for the execution of the Works. Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix A1.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.3. bfc2-071_fidic user guide_250407_final. that once the Contract is terminated.Payment after Termination No need for particular conditions related to this sub-clause.1 . up to the completion of the respective Works.16 Clause 16 . Sub-Clause 15. the advance payment guarantee might be called in by the Employer). A Contractor should be aware before giving a notice of termination. under the provisions of the Contract. in accordance with the provisions of Sub-Clause 14. . Sub-Clause 16. 3 months). Sub-Clause 16. Sub-Clause 15.

an additional sub-clause may be added: “The Contractor shall take full responsibility for the care of the items detailed below. Sub-Clause 17.6 .Contractor's Care of the Works No need for particular conditions related to this sub-clause. .3.Romania. at his own cost. the Contractor shall. New Sub-Clause 17. Sub-Clause 17. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 53 4. under road or rail rehabilitation projects.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. from the respective dates of use or occupation by the Contractor.” bfc2-071_fidic user guide_250407_final. the sum referred to in the penultimate sentence shall be ……. it seems reasonable to exclude damages to the Works caused by the road or rail traffic from the Contractor’s risks and therefore include those under the Employer’s risks.1 .Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause.4 .".Limitation of Liability An additional paragraph may be added if the total liability of the Contractor is not to be limited to the Accepted Contract Amount: “In Sub-Clause 17.17 Clause 17 . such as: add paragraph (i) as follows: (i) damage to components of the Employer’s property on the Site and damage done to the Works resulting from any accident involving road users while the public use of the Works is authorised by the Employer. up to the respective dates of hand-over or cessation of occupation (where hand-over or cessation of occupation may take place after the date stated in the TakingOver Certificate for the Works): [Insert details] If any loss or damage happens to any of the above items while the Contractor is responsible for their care. Sub-Clause 17.Consequences of Employer's Risks No need for particular conditions related to this sub-clause. Sub-Clause 17.7 If the Contractor is to occupy the Employer's facilities temporarily.5 .Indemnities No need for particular conditions related to this sub-clause.2 . rectify the Loss or damage to the satisfaction of the Engineer.6. Sub-Clause 17.DOC .3 . where it can be demonstrated by the Contractor that the accident cannot be partly or wholly attributed to any deficiency in the Contractor’s Traffic Management Plan. arising from any cause whatsoever other than those for which the Employer is liable.Risk and responsibility Sub-Clause 17. For example.

2 . extent or programme for the execution of the Works and to ensure adequacy of the insurance coverage at all times during the period of the Contract. which is replaced by the Contract Agreement. which includes Subcontractor's equipment). Force Majeure can be proven by other means. preferably in the form of a copy of each policy. Sub-Clause 18. limits. exceptions and deductibles.DOC .3.Notice of Force Majeure It has to be noted that.” Sub-Clause 18.2 (for Contractor's Equipment.3.1 .Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. Furthermore. The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. despite a frequent opinion. who is to be the Contractor unless otherwise stated in the Particular Conditions.Definition of Force Majeure Attention is drawn on the criteria for an event or circumstance to be defined as Force Majeure and to the exceptional character of such event or circumstance (much more than unusual or unforeseen). because the Employer may not know the amount or value of these items of equipment. Sub-Clause 18. The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party".2 .18 Clause 18 .Insurance for Works and Contractor's Equipment It is advisable to specify that: “It shall be the responsibility of the insuring Party to notify the insurance company of any change in the nature. If the Employer is to arrange any of the insurances under this Clause.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance. bfc2-071_fidic user guide_250407_final. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. Sub-Clause 19. including the conditions.1 . . 4.3 .Romania. such certificate would be irrelevant for Force Majeure occurring in a foreign country.Force Majeure Sub-Clause 19.4 . the tender documents should include details as an annex to the Particular Conditions (so that tenderers can estimate what other insurances they wish to have for their own protection).19 Clause 19 . The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18.Insurance Sub-Clause 18. Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 54 4.

not to bar meritorious claims. Disputes and Arbitration Sub-Clause 20. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. Although the figure of 28 days in which the notice must be served was somewhat arbitrary the objective was to limit the time period wherein a claim must be notified.1 .DOC .Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause.Romania. The Engineer shall. respond within 42 days after receiving a claim or further particulars. It is advisable to add at the end of first paragraph of Sub-Clause 19. Payment and Release No need for particular conditions related to this sub-clause. It endeavours to prevent situations where a contractor would submit its claim long after the occurrence of an event or circumstance for which it was reasonable for the Contractor to anticipate an entitlement of time or to additional payments. DABs have in mind that the object of Clause 20.Release from Performance under the Law No need for particular conditions related to this sub-clause.7 .1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration. have not advised on the merits and have not prepared considered determinations.3. The important matter is that the Employer.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. Most DAB decisions have allowed a number of claims rejected for late notice to proceed.5 .Claims. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 55 The notice of occurrence of Force Majeure should be accompanied by appropriate supporting documentation. Sub-Clause 19.Duty to Minimise Delay No need for particular conditions related to this sub-clause. have not ensured that the necessary records are kept.4 . Accordingly.Optional termination.6 . The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers.1 is to prevent ambushes and minimise delays to projects. within four weeks. Although Sub-Clause 20. through the Engineer. is put on alert.3 .Consequences of Force Majeure No need for particular conditions related to this sub-clause. acting in all good faith. Sub-Clause 19. Sub-Clause 19. Sub-Clause 19. in turn. this is not the way that many DABs are interpreting the clause. Sub-Clause 19. . that something had recently occurred for which an entitlement for time and/or additional payment might be sought.20 Clause 20 . Guid- bfc2-071_fidic user guide_250407_final.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". 4.

v. or should they have been so aware? Is it possible that the Contractor only considered himself entitled to make a claim – as distinct from knowing about the event – within the 4 weeks prior to the notice? Has the timing of the notice caused the Employer or the Engineer any significant prejudice in terms of the ability to mitigate or record the effects of the event? Has the timing of the notice benefited the Contractor or does it seem as if it was intended to benefit the Contractor? Was there communication. the Engineer should consider rejecting the claim on its lack of valid basis.DOC . whether at meetings or otherwise. DABs are taking notice of the first sentence of Clause 20. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 56 ance as to how the notice provisions should be applied in the best interests of Employers. If the answer to item (i) is yes. . about the problem.Romania. good project administration and fairness under the contracts. If there appears to have been a failure to notify. Consider items (vi) and (vii). Next. he should consider the following before rejecting the claim: i. 5. Is the event one which. 4. vii. other than by way of formal notice? Is it fair and reasonable. 2. to reject the claim without consideration of the merits? vi. One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. Some events might require some investigation and advice before a contractor decides that he has a claim. taking into account all of the above. iv. is capable of being the basis for a valid claim? Did the Employer or the Engineer in fact know about the event giving rise to the claim within 28 days of the event? Is the event giving rise to the claim an action or inaction by the Employer or the Engineer? Was the Employer or the Engineer aware within 28 days that a claim was probable. then rejection for lack of notice should be considered. If the answer to item (i) is that the event is not capable of being a valid claim. then the obligation to notify has not arisen. would the cost or delay claimed have been reduced if earlier notice had been given? bfc2-071_fidic user guide_250407_final. iii. Where the Engineer considers that the 28-day notice provision of Clause 20. 3. viii. ii. 1. Engineers should consider items (ii) to (iv). leaving aside Clause 20.1: it has been argued and accepted that if the Contractor has not in fact considered himself entitled to claim. If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. has there been prejudice to the Employer or benefit to the Contractor? In other words.1 may not have been complied with. ix. If the answer to any of these items is yes. consider item (v). then DABs are likely to be sympathetic to the Contractor.

allow them to refer contentious matters to an impartial dispute adjudication board.5 or in time and deducted from any cost or time determined. DABs do not insist that the notice is formal. but not essential. if the individual is selected under SubClause 20.Romania. Finally. in particular. setting out its responses to the above questions.Appointment of the Dispute Adjudication Board In the third paragraph of this Sub-Clause Letter of Acceptance” shall be deleted and substituted with “Contract Agreement” (Article 94(2) of GD No. FIDIC is prepared to perform this role.DOC . Promptly upon receipt of a claim and before rejecting a claim on notice grounds. Extent of activities off-site. If the issue is raised at meetings or in general correspondence in due time. Contract size. 925/2006). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 57 6. 8. Therefore.2 . Unless the Engineer (although appointed by the Employer) is to make the prearbitral decisions under this Clause 20. and that. Employers should choose between these possibilities with regard to: Contract complexity. for the individual(s) to be agreed before the Contract Agreement is concluded. It is preferable. the Contract should include the provisions under Clause 20 which. b) The claim may reasonably be rejected for lack of notice but the Employer should nevertheless examine the merits due to the risk that the DAB might disagree.3. whilst not discouraging the Parties from reaching agreement on disputes as the works proceed. It has to be noted that appointment of the DAB might not be opportune for all contracts. The adjudication procedure depends for its success on. amongst other things. 7. and for the DAB to visit the Site on a regular bfc2-071_fidic user guide_250407_final. There are two basic possibilities: Appointment of a DAB from the beginning of the Contract Pre-arbitral decision by the Engineer. in accordance with the alternative option described below. the Engineer should report to the Employer on its proposed action. then this is likely to be treated as adequate notice. or c) Whether the claim should be dealt with on its merits. whether any prejudice to the Employer could be evaluated in financial terms under Clause 2. the selection is made by a wholly impartial entity. consider point (ix) and. it is essential that candidates for this position are not imposed by either Party on the other Party. Consider item (viii). Sub-Clause 20. . the Parties' confidence in the agreed individual(s) who will serve on the DAB. if this authority has been delegated in accordance with the example wording in the Appendix to Tender. Advise whether: a) The claim may reasonably be rejected for lack of notice.

the Parties may prefer to defer the appointment until a dispute has arisen. the Employer and the tenderer may each propose one member. Each Party may be reluctant to choose names from a list of people who have already been contacted by the other Party. however. each individual person is referred to as a Member. each of whom has entered into a tripartite agreement with both Parties The form of this tripartite agreement could be one of the two alternatives shown in Appendix D2.Romania. the Employer (or the tenderer) could similarly propose suitable persons for the tenderer (or the Employer) to accept. For a one-person DAB to be mutually agreed. At an early stage. DAB is recommended for contracts of more than 5 million Euro and DAB of 3 members for contracts of more than 100 million Euro. duration and the fields of expertise which will be involved. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 58 basis. For a three-person DAB.DOC . reflecting the additional administrative tasks which a chairman will have to perform. Both of these forms incorporate (by reference) the General Conditions of Dispute Adjudication Agreement. this may give rise to problems if. . the Parties may either so agree before the Contract Agreement is concluded or agree the appointment within the specified period thereafter. which are included as Appendix to the General Conditions because they are also referred to in Sub-Clause 20. For some projects. having entered into a tripartite agreement with both Parties. Alternatively. to whom the dispute should be referred. Sub-Clause 20.2 provides for two alternative arrangements for the DAB: a) One person. similar to the above procedure. bfc2-071_fidic user guide_250407_final. when a dispute arises. therefore. Under the example text in the Appendix to Tender. Typically. who acts as the sole member of the DAB. or b) A DAB of three persons. as appropriate to the arrangement adopted. taking account of its size. it may be considered appropriate to appoint a one-person DAB for each major field of expertise relevant to the Works. the Employer (or the tenderer) could propose the names and curriculum vitae of suitable persons.2 plus the Appendix . consideration should be given as to whether a one-person or three-person DAB is preferable for a particular project.General Conditions of Dispute Adjudication Agreement with its Annex (Procedural Rules) and the Dispute Adjudication Agreement should be amended to comply with the wording contained in the corresponding sections of FIDIC’s Conditions of Contract for Plant and Design-Build. the Parties cannot agree which field is applicable and. assuming that they have not previously indicated their willingness to accept. for the tenderer and the Employer respectively to accept.2. For the chairman. in which case Sub-Clause 20. It may be appropriate for the chairman's retainer fee to be more than that of the other two members. It may be advisable to propose alternates in case some subsequently decline the appointment. for the tenderer (or the Employer) to accept. Under either of these forms of Dispute Adjudication Agreement.

language and procedure of arbitration.6 and replace by the following sentence: “Unless settled amicably or through a DAB decision. although the Engineer generally acts for the Employer as specified in Sub-Clause 3. including without limitation any dispute regarding its breach.4 . It is recommended. the Employer's notice under SubClause 3.” Furthermore.6 . so as to clarify this aspect.Arbitration It shall be emphasised that the presence of an arbitral clause excludes. on confidentiality and on both Parties' acceptance of the procedure.Romania. the Engineer may make these pre-arbitral decisions. Sub-Clause 20. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 59 The appointment of the DAB may be facilitated. termination or invalidity. any dispute arising out of or in connection with the Contract.3 should be deleted and Sub-Clause 20. the Engineer will make these pre-arbitral decisions impartially and the Employer must not prejudice this impartiality. which has been the Engineer's traditional role in common law countries.Amicable Settlement The provisions of this Sub-Clause are intended to encourage the parties to settle a dispute amicably. by direct negotiation. shall be finally settled by international arbitration. Clause 20.3 . . without the need for arbitration: for example. If this alternative is considered appropriate.4. Therefore. to delete the first sentence of the first paragraph of SubClause 20. This alternative.4 and substituting with: “The Engineer shall act as the DAB in accordance with this Sub-Clause 20. may be appropriate if the Engineer is an independent professional consulting engineer with the experience and resources required for the administration of all aspects of the contract. Sub-Clause 20. Sub-Clauses 20. conciliation. by including an agreed list of potential members in the Contract: in a Schedule.” Sub-Clause 20.1(a). Alternatively. or other forms of alternative dispute resolution. for their success. the International Commercial Arbitral Court near the Romanian Chamber bfc2-071_fidic user guide_250407_final.DOC .5 . impartially and at the cost of the Employer.4 shall include detailed proposals for the appointment of a replacement DAB. For example. acting fairly. Employers should carefully check the coherence between the arbitral institution.4 should be modified accordingly by deleting the second paragraph of Sub-Clause 20. the use of regular courts. it should be noted that timely treatment of dispute is of the essence. The Employer should recognise that. In the event that the Employer intends to replace the Engineer.Obtaining Dispute Adjudication Board's Decision Again. the location.2 and 20. neither Party should seek to impose the procedure on the other Party. Amicable settlement procedures often depend.4) is English.Failure to Agree Dispute Adjudication Board It shall be noted that the president of FIDIC can be the appointing entity only if the language for communications (as defined under Sub-Clause 1. especially if the members are not to be appointed at the commencement of the Contract. mediation. for the fields covered by arbitration.

. an institution to appoint the arbitrators or to administer the arbitration.Romania. Sub-Clause 20. In international contracts.7 .Expiry of Dispute Adjudication Board's Appointment No need for particular conditions related to this sub-clause. thereby creating a multi-party arbitration. before so designating an institution in the Appendix to Tender. unless the institution is named (and their role specified) in the arbitration rules. it is desirable that the place of arbitration be situated in a country other than that of the Employer or Contractor.DOC . It may be considered desirable in some cases for other Parties to be joined into any arbitration between the Parties. This country should have a modern and liberal arbitration law and should have ratified a bilateral or multilateral convention (such as the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). and usually need to be prepared on a case-by-case basis. No satisfactory standard form of multi-party arbitration clause for international use has yet been developed. New Clause 21 Checks and Audits by Romanian and Community Bodies For contracts funded under European Commission funds. it may be necessary to designate. it is recommended to add a new Clause 21: bfc2-071_fidic user guide_250407_final. The Contract should include provisions for the resolution by international arbitration of any disputes which are not resolved amicably. the International Court of Arbitration of the ICC will decide on the number of arbitrators (typically three in any substantial construction dispute) and on the place of arbitration. in the Appendix to Tender.Failure to Comply with Dispute Adjudication Board Decision No need for particular conditions related to this sub-clause.party arbitration clauses require skilful drafting. or both. 75008 Paris. While this may be feasible. international commercial arbitration has numerous advantages over litigation in national courts. In the absence of specific stipulations as to the number of arbitrators and the place of arbitration. that would facilitate the enforcement of an arbitral award in the states of the Parties. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 60 of Commerce and Industry uses its own procedural rules. The Rules of Arbitration of the International Chamber of Commerce (the "ICC". and may be more acceptable to the Parties. Careful consideration should be given to ensuring that the international arbitration rules chosen are compatible with the provisions of Clause 20 and with the other elements to be set out in the Appendix to Tender. It may also be necessary to ensure. Sub-Clause 20. which is based at 38 Cours Albert 1er. Employers are advised to link with the relevant arbitral institutions before defining such conditions.8 . For major projects tendered internationally. that it is prepared to appoint or administer. France) are frequently included in international contracts. If the UNCITRAL (or other non-ICC) arbitration rules are preferred. multi.

including its information systems. without prejudice to the obligations of public law to which they are subject. by examining the documents or by means of on-the-spot checks. Such amendments should be included in Clause 2 of the Dispute Adjudication Agreements. In case the language for communications defined in the Contract is Romanian. subsistence costs.Romania. local travel and other miscellaneous costs” bfc2-071_fidic user guide_250407_final. Access given to agents of the said bodies shall be on the basis of confidentiality with respect to third parties. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 61 “The Contractor will allow the Romanian Audit Authority. .DOC . whenever necessary. Furthermore. Documents must be easily accessible and filed so as to facilitate their examination and the Contractor must inform the Employer of their precise location. on the basis of supporting documents for the accounts. it could be specified: “fluent in the language for communications defined in the Contract or assisted.4 Dispute Adjudication Agreement It is advisable to include a number of amendments to the General Conditions of Dispute Adjudication Agreement. the implementation of the project and conduct a full audit.” Clause 6 Payment Replace letter (c) of first paragraph by: “a fixed per diem for expenses incurred in connection with the Member's duties. the Romanian AntiFraud Office. The Contractor guarantees that the rights of the bodies mentioned under the first paragraph of the present Clause to carry out audits. These are: Clause 3 Warranties – second paragraph – letter (c) There might be a lack of qualified DABs fluent in the Romanian language. the Contractor will allow the Romanian and European AntiFraud Offices to carry out checks and verifications on-the-spot in accordance with the procedures set out in the European Community legislation for the protection of the financial interests of the European Communities against fraud and other irregularities. These inspections may take place up to 7 years after the final payment. the European Commission. the Contractor undertakes to give appropriate access to staff or agents of the bodies mentioned under the first paragraph of the present Clause to the sites and locations at which the Contract is carried out. if necessary. the European Anti-Fraud Office and the European Court of Auditors to verify.” 4. To this end. to any sub-contractor or any other party benefiting from European Commission funds. accounting documents and any other document relevant to the financing of the project. as well as all documents and databases concerning the technical and financial management of the project and to take all steps to facilitate their work. checks and verification will be equally applicable. by a qualified translator. for each overnight away from the Member’s home and covering the cost of hotel. under the same conditions and according to the same rules as those set out in this Clause.

Any air travel must be by economy class while train travel may be by 1st class. . and shall thereafter be adjusted. Invoices for other expenses and for daily fees shall be submitted following the conclusion of a site visit or hearing.” Replace third paragraph by: “The Member shall submit invoices for payment of the monthly retainer quarterly.” bfc2-071_fidic user guide_250407_final. faxes and telexes. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 62 And add letter (e) to the first paragraph: (e) “other reasonable expenses incurred in connection with the Member's duties. international travel expenses. at each anniversary of the date on which the Dispute Adjudication Agreement became effective.DOC . using the following revision formula: (specify relevant index and formula). courier charges. such as the cost of telephone calls. Unless it specifies otherwise. All invoices shall be accompanied by a brief description of activities performed during the relevant period and shall be addressed to the Contractor.” Replace second paragraph by: “The retainer and daily fees. as well as the per diem rate. these fees shall remain fixed for the first 24 calendar months.Romania. facilities and venues for meetings and hearings: a receipt shall be required for each item. shall be as specified in the Dispute Adjudication Agreement.

1.1.6 14.DOC . .7 13.4 & 1.1 18.2 & 20.1.4 2.2 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 63 4.15(b) 8.3.5(b) and (c) 14.2(a) and (b) 14.1.2.2 & 1.3 1.3 1.Romania. Following issues shall be covered by the Appendix to Tender: Employer Contractor Engineer Time for Completion Defects Notification Period Electronic Transmission Governing Law Ruling Language Language for Communications Time for Access to Site Performance Security Normal Working Hours Delay Damages Maximum Amount of Delay Damages Provisional Sums Adjustment of Changes in Cost Advance Payment Repayment of Advance Percentage of Retention Plant and Materials Interim Payment Certificate Currency of Payment Insurance 1.7 1.3 1.2.5 8.1.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix D2.4 1.2.3 DAB 20.3 bfc2-071_fidic user guide_250407_final.1 4.3 1.3 & 1.2 14.7 & 14.4 1.8 14.15 18.5(b) 13.2(d) 18.3 1.3 14.3.

1st Edition 1999. This Guide comprises guidance and proposals for the proposed mandatory and additional particular conditions of contract. Mandatory and additional particular conditions of contract for the FIDIC Yellow Book. it was recognized that. bfc2-071_fidic user guide_250407_final. and was submitted to the MPF in December 2006. there are some sub-clauses which must necessarily vary to take account of the circumstances relevant to the particular contract. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. 5. The Romanian language version of the General Conditions of Contract and the proposed mandatory and additional particular conditions will.DOC . after approval by the MPF. and to take account of those sub-clauses in the General Conditions which mention the Particular Conditions. The General Conditions and the Particular Conditions will together comprise the Conditions of Contract governing the rights and obligations of the parties. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 64 5 5. in order to facilitate their incorporation into each contract.2 FIDIC Guidance In the preparation of the General Conditions of Contract for Plant and DesignBuild. .e. the FIDIC Yellow Book. i. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006. necessary so as to harmonise the contract provisions with the current Romanian legislation. while there are many sub-clauses which will be generally applicable. The subclauses which were considered to be applicable to many (but not all) contracts have been included in the General Conditions.Romania. be published in the Official Gazette of Romania for use on infrastructure projects in Romania.1 The FIDIC Yellow Book Introduction This chapter provides guidance for the preparation of the Particular Conditions of Contract and the Appendix to Tender for works contracts using the FIDIC Conditions of Contract for Plant and Design-Build. It will be necessary to prepare the Particular Conditions for each individual contract.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 65 For this publication. if not. the General Conditions were prepared on the following basis: i. are entrusted to personnel with the relevant expertise. technical and procurement aspects. ii. This publication concludes with example forms for the Letter of Tender. care must be taken to ensure that no ambiguity is created. than if additional text had to be written (in the Particular Conditions) because the General Conditions did not cover their requirements. the Contract Agreement. the sub-clause contains the provisions which were considered applicable to most contracts. This Dispute Adjudication Agreement provides text for the agreement between the Employer. and incorporates (by reference) the terms in the Appendix to the General Conditions. not because of any FIDIC policy in respect of advance payments. and the entire preparation of the tender documents. Sub-Clause 14. example wording for other arrangements. and will typically be based on instalments specified in a schedule If the wording in the General Conditions necessitates further data.2 [Advance Payment] is included for convenience. and in all cases where other amendments or additions are made. it must be amended. It is essential that all these drafting tasks. Before incorporating any example wording. It should therefore be noted that some of the provisions contained in the General Conditions may not be appropriate for an apparently-typical contract. . and alternatives for the Dispute Adjudication Agreement. the Contractor and the person appointed to act either as sole adjudicator or as a member of a three-person dispute adjudication board. then (unless it is so descriptive that it would have to be detailed in the Employer's Requirements) the sub-clause makes reference to this data being contained in the Appendix to Tender. This SubClause becomes inapplicable (even if it is not deleted) if it is disregarded by not specifying the amount of the advance. Where example wording is amended. the data either being prescribed by the Employer or being inserted by the Tenderer Where a sub-clause in the General Conditions deals with a matter on which different contract terms are likely to be applicable for different contracts. will be made as work proceeds. where the application of (a) was thought to be inappropriate. bfc2-071_fidic user guide_250407_final.DOC . are included within this publication as Guidance for the Preparation of the Particular Conditions. and other explanatory material and example wording to assist in the preparation of the Particular Conditions and the other tender documents. or (b) In other cases. Further information on these aspects. Interim payments. the Appendix to Tender (providing a checklist of the sub-clauses which refer to it). For example. it must be checked to ensure that it is wholly suitable for the particular circumstances. either with the General Conditions or between the clauses in the Particular Conditions. including the contractual.Romania. in respect of the lump sum Contract Price. the principles applied in writing the sub-clause were: (a) Users would find it more convenient if any provisions which they did not wish to apply could simply be deleted or not invoked. iii.

3.1.1.1.4.3. In order to clarify the sequence of Contract activities.9 1.1 1.3.6.3 & 8. reference may be made to the charts on the next two pages and to the Sub-Clauses listed below (some SubClause numbers are also stated in the charts).7 1.3) Performance Certificate Final Payment Certificate Figure 5-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.1 1.5 & 10.4 & 9.3.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 66 In addition.1 1.3.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.2 1.6 & 12.3.3 1.7 & 14.1.4) Tests on Completion Taking-Over Certificate Tests after Completion (if any) Defects Notification Period (as extended under 11.Romania.1.1.7 & 11. for Plant and Design-Build.4 & 14. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.1 1. .8 & 11. and for EPC/Turnkey Projects.1.1. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.2 1.4.2 & 8.1 1.DOC .6 & 4.1.3.3.1. 1.1 & 13.

delivery and installation) of plant.the FIDIC Yellow Book .Romania. . and for the design and execution of building or engineering works. Under the usual arrangements for these types of contract.1 Introduction The Conditions of Contract for Plant and Design-Build . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 67 Figure 5-2 Sequence of Payment Events Figure 5-3 Sequence of Dispute Events 5. Modifications to the Conditions are required to be fully adapted to the current Romanian legislation.2. of plant and/or building and/or engineering works.have been prepared by the FIDIC and are recommended for general use for the procurement (including design. bfc2-071_fidic user guide_250407_final. the Contractor is responsible for the design and provision. manufacture. where tenders are invited on an international basis. in accordance with the Employer's requirements.DOC .

2 Preparation of Tender Documents The tender documents should be prepared by suitably-qualified engineers who are familiar with the technical aspects of the required works. such as consumables which could be listed in a Schedule. and the following "Particular Conditions". Before incorporating any example wording. Where example wording is amended.” There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. quality and scope. which include amendments and additions to such General Conditions. The tender documents issued to tenderers will consist of the Conditions of Contract. the Employer's Requirements. The Contract will then include the accepted Proposal and completed Schedules. structures.DOC . example wording should be amended before use. The matters referred to in some or all of the following Sub-Clauses might be included: 1.10. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 68 The guidance hereafter is intended to assist writers of Particular Conditions by giving options for various sub-clauses where appropriate.Romania. including functional requirements. and the Instructions to Tenderers to advise them of any matters which the Employer wishes them to include in their Proposal but which do not form part of the Employer's Requirements for the Works. Unless it is considered suitable. and the Letter of Tender and Schedules for completion by the Tenderer. and in all cases where other amendments or additions are made. The Employer's Requirements The Employer's Requirements should specify the particular requirements for the completed Works. and may require the Contractor to supply certain items.13 2. either with the General Conditions or between the clauses in the Particular Conditions. which form part of the "Conditions of Contract for Plant and Design-Build" First Edition 1999 published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC). care must be taken to ensure that no ambiguity is created. 5.8 1.1 4.1 Number of copies of Contractor's Documents Permissions being obtained by the Employer Phased possession of foundations. In the preparation of the Conditions of Contract to be included in the tender documents for a contract. . and a review by suitably-qualified lawyers may be advisable. In addition.2. each of the Tenderers should receive the data referred to in SubClause 4. The General Conditions refer to any necessary data being contained in the Appendix to Tender or (for technical matters) in the Employer's Requirements. it must be checked to ensure that it is wholly suitable for the particular circumstances. plant or means of access Intended purposes for which the Works are required bfc2-071_fidic user guide_250407_final. the following text can be used: “The Conditions of Contract comprise the "General Conditions".

that this data is either prescribed by the Employer or inserted by the Tenderer. The Employer should prepare the Appendix to Tender. The Instructions may include matters referred to in some or all of the following Sub-Clauses: 4. with the elements completed to the extent of his requirements.4 5. providing a convenient location for the data which is usually required. but there is no indication. fittings and equipment.5 5. The example form in Appendix F2 provides a checklist of the data required.4 9. The Employer may require other data from Tenderers. construction. water.DOC .4 12. If each Tenderer is to produce a parent company guarantee and/or a tender security.6 5. gas and other services available on the Site Employer's Equipment and free-issue material Criteria for design personnel Contractor's Documents required.1 18 20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Tests after Completion Insurances Resolution of disputes A design-build contract may constitute a turnkey contract and include design. and/or specify the extent of other information which each Tenderer is to include with his Tender. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 69 4.2 7.7 6. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender.Romania.3 4. and whether for approval Technical standards and building regulations Operational training for the Employer's Personnel As-built drawings and other records of the Works Operation and maintenance manuals Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion Damages for failure to pass Tests on Completion Tests after Completion Damages for failure to pass Tests after Completion Provisional Sums. either in the General Conditions or in the example Appendix to Tender.6 7.2 5.14 4.18 4. the scope of which should be de- bfc2-071_fidic user guide_250407_final.1 12.19 4.4 13. lines and levels of reference Third parties Environmental constraints Electricity.1 9.7 4.1 12.6 4.1 5.5 Other contractors (and others) on the Site Setting-out points. and include a questionnaire in the Schedules. fixtures.9 9.20 5. based on this example form. these requirements (which apply prior to the Contract becoming effective) should be included in the Instructions to Tenderers: example forms are annexed to this document in Appendix E1. The Instructions to Tenderers The Instructions to Tenderers may need to specify any constraints on the completion of the Appendix to Tender and/or Schedules. .

Definitions It will be necessary to amend some of the definitions.3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Yellow Book. Such definition is set out in the mandatory particular conditions in Appendix B1. in order to provide a responsive Tender.3. the Contract is formed by the execution of the Contract Agreement after lapse of a mandatory minimum time period from the communication of the letter of award by the Employer to the Contractor (Article 205 of GEO No. 5. Note that there can be no description in the documents which will constitute the Contract. In new Sub-Clause 1. the requirements of the Romanian procurement legislation and for clarification of the general conditions. The extent of detail required should be described in the Instructions to Tenderers. 273/1994). In Sub-Clause 1.10 a definition of the "Taking-Over Minutes on Completion of Works" shall be included to reflect the process of taking over of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 15 of GD No.1.1. Article 94 of GD No.3. • • • bfc2-071_fidic user guide_250407_final. to incur great expense in preparation of tender designs. they have to undertake studies or carry out design work of a conceptual nature. The amendment of such definition is set out in the mandatory particular conditions in Appendix B1. typically by the Employer. Full consideration should be given to detailed requirements.1. ready for operation. in the face of intense competition. due to Romanian legislation in force. In addition. Consideration may be given to offering some remuneration to tenderers if. When preparing the Instructions to Tenderers. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 70 fined in the Employer's Requirements. with a clause-by-clause review.1 .1.1 Clause 1 . 34/2006.3 the definition of Letter of Acceptance shall be deleted. In Sub-Clause 1. 5.1. the tenderers are often reluctant.DOC . thought should be given as to the extent of detail which tenderers can realistically be expected to prepare and include in their tenders.1 the definition of Contract shall reflect the deletion of Letter of Acceptance.1(c). either for a few months' trial operation under Sub-Clause 9. or for some years' operation. such as the extent to which the Works are to be fully equipped. the Contractor may be required to operate the Works. Under Romanian public procurement regulations. with spare parts and consumables provided for operation (for a specified period).1. 925/2006).3.1 the definition of the "Base Date" may be changed to reflect a particular calendar date. Understandably.General Provisions Sub-Clause 1. The following definitions should be modified: • In Sub-Clause 1. .Romania.

In Sub-Clause 1. In Sub-Clause 1.5 .1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.1.Interpretation If the references to "profit" are to be more precisely specified. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present Sub-Clause.6. 925/2006).3. Sub-Clause 1. Non-compliance might have serious consequences.8 "Local Currency" should be defined as RON (Romanian Leu). Sub-Clause 1.DOC . are not repeated in the General Conditions. laws.1.7 "Site".4. • • • • • • Sub-Clause 1.6 the "Foreign Currency" should be indicated. decisions.4 . the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No. as well as the fact that.2 may be varied. In Sub-Clause 1. orders and other laws and regulations and by-laws of any legally constituted public authority having the force of law in Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 71 • In new Sub-Clause 1. In Sub-Clause 1.1. “In these Conditions. the latter shall prevail. It has to be mentioned that the Contractor’s site installation would in many cases not be part of the Site as defined under the Contract. Sub-Clause 1. Such definition is set out in the mandatory particular conditions in Appendix B1.2 "Country" should be defined as Romania. significant components of the Con- bfc2-071_fidic user guide_250407_final. if during the performance of the Contract.Priority of Documents An order of precedence is usually necessary.1. ordinances. Such provision is recommended so as to provide a clear reference during implementation. (Article 95(2) of GD No. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications.6.3 . A proposed amendment is included in the mandatory particular conditions in Appendix B1. in case a conflict is subsequently found among the contract documents In Sub-Clause 1.4.4.1. Sub-Clause 1.6.Law and Language No need for particular conditions related to this sub-clause. 925/2006).” Sub-Clause 1.5 “Applicable Laws” should be defined as all Romanian legislation.2 .1.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that. in particular when evaluating claims.11 a definition of the "Final Taking-Over Minutes" shall be included to reflect the process of final taking over of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 36 of GD No.Romania.1. 273/1994).5. although applicable in many sub-clauses. In Sub-Clause 1. .

Even if the Contract clearly specifies the priority of documents. it might be recommendable to state that any reference to calendar dates is indicative only.Assignment If the Contract is concluded pursuant to a public procurement procedure. An example form is included at the contractual templates in Appendix E2. The provisions should take account of the Applicable Laws. Sub-Clause 1.6 .Care and Supply of Documents No need for particular conditions related to this sub-clause. namely for a purpose not envisaged by the designer The Contractor's Documents will include computer software (programs) which the Employer will use other than as permitted in this Sub-Clause. consistence of these with the tender documents should be checked and corrections. if needed. so as to ensure some enforceability to this proposal. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. in order to reflect the deletion of Letter of Acceptance.7 . key equipment. if all rights to particular items of computer software (for example) are to be assigned to the Employer. Furthermore. should be introduced prior to the Contract signature. .8 . The template for works contracts set out in Form 5 attached to the Procurement Guide allows the assignment of the works contract by the Contractor with the prior agreement of the Employer.9 . provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract. or Operation of the Works is subject to a process license. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 72 tractor’s proposal (key personnel. especially if the Contract signature or the Commencement Date occur with delays against initial time schedules.Employer's Use of Contractor's Documents Amendments to this Sub-Clause may be required if: The Employer will require more use of the Contractor's Documents than as permitted in this Sub-Clause: the Contractor should then be indemnified from liability which might arise from inappropriate use. traffic management and/or environmental management plans).Delayed Drawings or Instructions No need for particular conditions related to this sub-clause.10 . Sub-Clause 1.Contract Agreement The first sentence of Sub-Clause 1. in case a Contractor’s programme is included in the Contract documents. bfc2-071_fidic user guide_250407_final.6 shall be deleted. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue.Romania. Sub-Clause 1. - - Additional provisions may be required. Sub-Clause 1. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions.DOC . method of works. Sub-Clause 1. outline of quality assurance.

11 . . permits for radio communication. the Contractor shall submit to the Engineer the detailed planning of the Works. the issuance of the building permit by the relevant authorities might require some time after submission and approval of the Contractor’s design.Joint and Several Liability For a major contract.Details to be Confidential If confidentiality is required.” Sub-Clause 1. The Employer will wish the leader of the joint venture to be appointed at an early stage. and it may have to be approved by the project's financing institutions. at his own expenses. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 73 Sub-Clause 1.3 [Programme]. together with a list of all necessary permits with the time needed for obtaining those permits in order to properly carry-out the Works in compliance with the programme prepared and updated under Sub-Clause 8. For example. but are not limited to: Law No. These requirements. for example with: “Except for the building permit to be provided by the Employer. Under design-build arrangements.15 . when relevant. It is also recommended to precise the scope of paragraph (b).Confidential Details No need for particular conditions related to this sub-clause. residence and work permits. which apply prior to the Contract becoming effective.DOC . This should be done under the format: “Applicable Laws of particular relevance for the Contract include.Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause. Such permits include inter alia permits for site erection. an additional sub-clause may be added. etc. permits to relocate public utilities.14 . authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor.13 . Employers should make reference to such time period so as to avoid claims from the Contractor. Within 21 days of the signature of the Contract Agreement.Romania. traffic diversions. should be included in the Instructions to Tenderers. xxx”. detailed requirements for the joint venture may need to be specified. The Employer should scrutinise the joint venture agreement carefully.Compliance with Laws Employers should specify. Sub-Clause 1. route permits. New Sub-Clause 1. providing a single point of contact thereafter. and will not wish to be involved in a dispute between the members of a joint venture. particular regulations to be complied with by the Contractor. Sub-Clause 1.12 . it may be desirable for each member to produce a parent company guarantee: an example form is annexed to this document in the templates of guarantees in Appendix E1. The wording of such Sub-clause could be as follows: bfc2-071_fidic user guide_250407_final.

with all particulars. and particularly in the Employer’s Requirements. In case right of access and possession is not to be granted exclusively.Right of Access to the Site If right of access cannot be granted. selfsufficient. but the contract documents should be.1 . In case right of access is to be granted by stages. as much as possible.3. Employers shall be particularly careful in relation with this sub-clause. as non-compliance with their obligations under the present subclause is a substantial failure and may lead to Termination by the Contractor under Sub-Clause 16.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site. this should be clearly stated. details should be given. . The Site does not include additional working areas that the Contractor might require. in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). Licences or Approvals With reference to paragraph (a). it is good practice to include in tender and then contract documents. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic. In case right of access and possession will be granted only for limited sections and/or for limited duration (such as in the case of rail rehabilitation works). both early and thereafter exclusively. bfc2-071_fidic user guide_250407_final.The Employer Sub-Clause 2. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer. However.Romania.Permits. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 74 “The Contractor shall treat the details of the Contract Agreement as private and confidential.DOC . The Contractor shall not publish. as defined under sub-clause 4. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws. and aspects such as co-ordination and safety may need to be specified. all relevant information. The work to be carried out by these other contractors should be described in the tender documents. Sub-Clause 2. permit to be published. it could be desirable to define Sections (in the Appendix to Tender) and define in this sub-clause the time for provision of right of access for each Section. the Employer should state this and define the procedure that will be applied as well as the main constraints / parameters.2 Clause 2 .3 . References to laws and standards should be included for formal reasons.” 5.2. the required land should be made available by the same Employer. so as to avoid facilitate access to the market.2 . Sub-Clause 2.23.

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Sub-Clause 2.4 - Employer's Financial Arrangements It is possible, for example for long term contracts, to introduce a more precise definition of what will be considered as reasonable evidence. However, it is recommended not to delete this Sub-Clause entirely, as contractors would be concerned by such cancellation. The anticipation of a risk in this regard would then reflect on the prices. It has to be noted that this Sub-Clause plays its role mainly when large costs overruns are occurring (including due to Contractor’s claims), as Employers are generally expected to have secured funding corresponding to the Accepted Contract Amount before the signature of the contract. Sub-Clause 2.5 - Employer's Claims It has to be underlined that under sub-clause 14.7, the Employer is not allowed to make deductions from the amounts certified by the Engineer (the mandatory particular conditions allow however arithmetical mistakes to be corrected). Therefore, the procedure defined in the present sub-clause has to be used in case the Employer disagrees with an amount certified or wishes to apply various penalties (such as delay damages).

5.3.3 Clause 3 - The Engineer Sub-Clause 3.1 - Engineer's Duties and Authority Any requirements for Employer's approval should be set out in the Particular Conditions. This list should be extended or reduced as necessary. If the obligation to obtain the approval of the Employer only applies beyond certain limits, financial or otherwise, the example wording should be varied. It is clear that the Engineer has the role defined in very general terms in Article 21 paragraph d) of Law No. 10/1995. However, the Conditions of Contract provide for several additional duties and authority. Employers might want to limit the authority of the Engineer, in order to maintain control on some of the main features. Such limitations should (i) be specifically detailed in the Particular Conditions and (ii) truly correspond to those mentioned in the Engineer’s contract. In addition to those limitations included in the mandatory particular conditions (Appendix B1) and deriving from the applicable Romanian legislation, Employers might want to add, for example: a) Sub-Clause 4.4: Specific approval of the Employer is required before issuing consent for any Sub-Contractor; (alternatively, this obligation could be limited to major Sub-Contractors, that is those providing more than x% of the Accepted Contract Amount) b) Sub-Clause 8.4 and/or Sub-Clause 13.1: Specific approval of the Employer is required before instructing or approving any extension of the Time for Completion

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c) Sub-Clause 13.1: Specific approval of the Employer is required before instructing or approving the omission of any work. Attention of the Employers is drawn on the fact that such prior approval transfers responsibility from the Engineer to the Employer. It is also recommendable to add the following precisions, or similar: “Notwithstanding the obligation, as set out above, to obtain approval, if, in the opinion of the Engineer, an emergency occurs affecting the safety of life or of the Works or of adjoining property, he may, without relieving the Contractor of any of his duties and responsibilities under the Contract, instruct the Contractor to execute all such work or to do all such things as may, in the opinion of the Engineer, be necessary to abate or reduce the risk. The Contractor shall forthwith comply with any such instruction of the Engineer. The Engineer shall determine an addition to the Contract Price, in respect of such instruction, in accordance with Clause 13.1 and shall notify the Contractor accordingly, with a copy to the Employer.” Sub-Clause 3.2 - Delegation by the Engineer No need for particular conditions related to this sub-clause. Sub-Clause 3.3 - Instructions of the Engineer Attention is drawn on the following provision: “The Contractor shall only take instructions from the Engineer, or from an assistant to whom the appropriate authority has been delegated under this Clause.” Therefore, under the Contract, other entities are not to issue instructions directly to the Contractor. Sub-Clause 3.4 - Replacement of the Engineer No need for particular conditions related to this sub-clause. Sub-Clause 3.5 - Determinations Attention is drawn on two issues: As per Sub-Clause 1.3, determinations should not be unreasonably withheld or delayed. In general, claims should be dealt with in a timely manner. Employers might consider introducing a time limit for issuing determinations. Determinations enter into force immediately.

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In practice, the Engineer could issue an interim determination before issuing a final one, in order to avoid delays, while waiting for additional supporting particulars. New Sub-Clause 3.6 - Management Meetings It is recommendable to introduce reference to management meetings, for example with the following:

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“The Engineer or the Contractor’s Representative may require the other to attend a management meeting in order to review the arrangements for future work. Such meetings shall take place on a monthly basis. The Engineer shall record the business of management meetings and supply copies of the record to those attending the meeting and to the Employer, within two working days from the meeting. In the record, responsibilities for any actions to be taken shall be in accordance with the Contract. The agenda for such meetings shall cover a review of progress attained, a review of schedules and plants for future activities, the status of staffing, engineering, safety, equipment, material supply, payments, current and anticipated difficulties, interface with other Contractors, claims for extras, and other pertinent topics. Time and place of these meetings shall be mutually agreed taking into consideration the subject to be discussed.”

5.3.4 Clause 4 - The Contractor Sub-Clause 4.1 - Contractor's General Obligations Occasionally, there may be an item of Temporary Works for which the Contractor will not be fully responsible. For example, the Contract may specify temporary arrangements for river diversion which have been designed by the Engineer. In these cases, the Sub-Clause may require amendment, taking account of the type of this item of Temporary Works, and of the extent of the Employer's responsibility. Sub-Clause 4.2 - Performance Security Sub-Clause 4.2 needs to be amended in order to comply with Romanian public procurement regulations on the submission and release of the Performance Security (Articles 87(b) and 92(4) of GD No. 925/2006). The proposed amendments are included in the mandatory particular conditions in Appendix B1. In order to avoid the risk of termination for failure by the Contractor to submit the Performance Security, it is recommended to request submission of the Performance Security at the signature of the Contract Agreement. The value of the Performance Security is normally based on the Accepted Contract Amount. As per the provisions of Article 89 paragraph (2) of GD No. 925/2006, it cannot exceed 10% of the Contract Price VAT excluded. For large projects with possibly important cost-overruns, it is recommendable to add the following text at the end of this Sub-Clause: “Whenever the Engineer determines that the Contract Price exceeds the Accepted Contract Amount or the Contract Price previously determined for the purposes of this Sub-Clause, by more than ten (10%) percent, the Contractor, at the Engineer’s written request, shall promptly increase the value of the Performance Security by an equal percentage.” To avoid difficulties in case of Joint Ventures, it is recommended to include: “The Performance Security of a joint venture or consortium shall specify the name of the joint venture or consortium.”

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4 . if parts of the Works are to be performed by Subcontractors. The role of the Contractor’s Representative should be highlighted. It is also recommendable to make reference to the key qualifications required at the time of tender. They incorporate the Uniform Rules published by the International Chamber of Commerce (the "ICC".3 . especially if the contract award seems likely to be delayed. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 78 The acceptable form(s) of Performance Security should be included in the tender documents. bfc2-071_fidic user guide_250407_final. which also publishes guides to these Uniform Rules. and shall be in the form annexed to the Particular Conditions.2 as follows: “The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer. 925/2006).DOC . it is possible to specify (under Sub-Clause 14. Not only his nomination.Contractor's Representative If the Representative is known at the time of submission of the Tender.4).Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. The Tenderer may wish to propose alternatives. the Contractor must provide the Employer with the relevant subcontracts. If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. at the signature of the Contract Agreement. but also his revocation has to receive the prior consent of the Engineer. or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language.” Sub-Clause 4.Romania. which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96 (1) of GD No. Moreover. the Tenderer may propose the Representative. 925/2006). In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions. under Romanian public procurement regulations. In order to ensure that a properly nominated Contractor’s Representative is available at all times. . 75008 Paris. Example forms are annexed to this document in the templates of guarantees in Appendix E1. Sub-Clause 4. However. annexed to the Particular Conditions. France). it should amend the second sentence of the second paragraph of Sub-Clause 4. which is based at 38 Cours Albert 1er. one of the following sentences may be added. the Contractor may not replace any of the Subcontractors designated in the Tender without the prior consent of the Engineer (Article 96 (2) of GD No.

Employers might also consider the conclusion of a separate contract. Before using this Sub-Clause.4. Sub-Clause 4.Nominated Sub-Contractors In most cases under Sub-Clause 4. to detail on which criteria consent will be given. according to Sub-Clause 4. as follows: At the end of point (b). although the Contractor remains responsible for any act or default of Subcontractors. The proposed modification is included in the mandatory particular conditions in Appendix B1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 79 Please also note that. Sound financial position. according to the same Article 96 (2) of GD No. for transparency reasons. typically in the Appendix to Tender.DOC . Such criteria might include: Personal situation (no bankruptcy or similar proceedings.5 provides for the particular situation whereby the Employer may select a Subcontractor. The attention of Employers is drawn on the fact that Nominated Subcontractors shall be nominated further to a selection procedure in full accordance with the relevant procurement legislation. 925/2006. etc. . - Sub-Clause 4. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). this amount should be clearly stated. the Contractor selects Subcontractors. On a case-by-case basis. subject to any constraints specified in the Contract. fulfilled obligations as per payment of taxes and social contributions). Experience in similar projects (for the type of works intended to be performed by the proposed Subcontractor).” Furthermore. As regards the second sentence of this Sub-Clause 4. it is recommendable. add the following: “Such prior consent shall not be required if the value of the subcontract is less than one percent (1%) of the Contract Price.5.4 with: “The Contractor shall not subcontract a larger value of the Works than the maximum specified in the Appendix to Tender. details may be given as to what would be considered as a reasonable objection. Replace the first sentence of Sub-Clause 4. bfc2-071_fidic user guide_250407_final. In such case.Romania. no final sentence for professional misconduct.4. the Engineer’s prior consent for subcontractors might lead to excessive administration. replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor.” Subject to the mandatory provisions of the Romanian public procurement regulations.5 . It is therefore possible to limit such requirement.

9 . lighting. It is recommended to include at the end of this Sub-Clause provisions referring to Traffic Management Plans and similar. fence. the Employer's obligations should be specified.Safety Procedures If the Contractor is sharing occupation of the Site with others. “Within 28 days of the signature of the Contract Agreement. the Employer shall be entitled.6 .Setting Out No need for particular conditions related to this sub-clause. this Sub-Clause should establish a link with the documents provided. The traffic management plan shall be approved by the Engineer before the start of the Works on any part of the Site. Sub-Clause 4. Such plan shall describe. The traffic management plan shall indicate what measures will be implemented to manage the traffic while Works are underway. 3 or 4 lanes).DOC . The requirements of paragraph (d) of the present Sub-Clause might need to be reviewed in particular cases: it might not be appropriate to ensure fencing and lighting of a road section. deviations. for example. .Romania. In case of default on the part of the Contractor in maintaining or implementing such traffic management plan.7 . In these circumstances. bfc2-071_fidic user guide_250407_final. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages.” Approval by the Engineer will be granted only further to the approval by the Road Police and by the Employer’s specialised services. when relevant. as approved by the Engineer. In case a description or an outline of the quality assurance system was submitted as part of the Tender. to be applied to each section of road with different cross profile characteristics (2. it is highly desirable that the Employer’s Requirements describe the resulting constraints and procedures for co-ordination. Sub-Clause 4.Quality Assurance In case a description or an outline of the quality assurance system was submitted as part of the tender. so that road users and riparian be protected. it may not be appropriate for him to provide some of the listed items. in the form of a sketch accompanied by narrative details.8 . the sequence of signs.5. this Sub-Clause should establish a link with the documents provided. on any part of the Site.Co-operation In case several contractors are working simultaneously on or near the Site. subject to Sub-Clause 2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 80 Sub-Clause 4. Sub-Clause 4. etc. the Contractor shall submit to the Engineer a detailed traffic management plan.

” Sub-Clause 4.%) of which shall be included in the Contract Price (the balance percent of the Cost shall be borne by the Contractor). Sub-Clause 4.12 . it is recommendable to refer to the equipment proposed by the Contractor as part of its tender: “The Contractor shall use for the execution of the Works Equipment of not lower quality and capacity than the Equipment proposed in the Tender and listed in Schedule xx to the Contract. This Sub-Clause refers only to Equipment brought on Site. if this is not located on the Site.15 . the Sub-Clause may be amended by deleting sub-paragraph (b) of Sub-Clause 4.10 . .Right of Way and Facilities No need for particular conditions related to this sub-clause.13 . alternative arrangements may be appropriate. It is therefore assumed that an access route exists (but its suitability for transport is not guaranteed by the Employer) and that the Contractor is entitled to use it (even if this might imply some costs).Unforeseeable Physical Conditions In the case of major sub-surface works. Sub-Clause 4.Transport of Goods For a plant contract.11 .16 .1 and Sub-Clause 4. Sub-Clause 4.12 and substituting by: “(b) Payment for any such Cost. further paragraphs may be added. the Employer's obligations should be specified: see SubClause 4. Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions. Sub-Clause 4.17 . the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.Site Data Under this Sub-Clause. Sub-Clause 4.Romania.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2. If this risk is to be shared between the parties.Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. Sub-Clause 4. Furthermore. It might be advisable to extend it to Equipment brought to the Contractor’s site installation.Avoidance of Interference No need for particular conditions related to this sub-clause.20.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works.13.DOC . per cent (….14 .” bfc2-071_fidic user guide_250407_final. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 81 Sub-Clause 4. If vesting of Contractor's Equipment is required. usually as part of the tender documents. subject to their being consistent with applicable laws.

19 . It is advisable to have those materials surveyed as part of the tender. the Employer’s Requirements should give details.Security of the Site If the Contractor is sharing occupation of the Site with others. Employers should ensure that all tenderers base their prices on the same assumptions and that the mechanism for incorporation of such materials does not distort competition. For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause. Water and Gas If services are to be available for the Contractor to use. In case Employers intend to use this Sub-Clause. subject to Sub-Clause 2.5.Romania. further provisions may be necessary. while detailed information regarding the quality and quantity of free issue materials. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. the Employer's obligations should be specified. the Employer’s Requirements should describe each item which the Employer will provide and/or operate and should specify all necessary details. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. With some types of facilities. including locations and prices. so as to define their condition and suitability for use.21 . In case the condition of free issue materials is not known before the execution of the Works (for example when some materials are to be re-used). they should be very careful so as to ensure fair and transparent conditions of competition.Electricity. it may not be appropriate for him to be responsible for its security.18 . Employers might want to include in this Sub-Clause a provision for indemnification in case of default. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers. the Employer shall be entitled. for use of Employer’s Equipment or of free issue materials. in order to clarify aspects such as liability and insurance. The requirement to provide 6 copies might also be adapted.22 . bfc2-071_fidic user guide_250407_final. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 82 Sub-Clause 4. In these circumstances. as well as the time and place where they will be made available should be defined.Employer's equipment and Free-Issue Material For this Sub-Clause to apply. Sub-Clause 4.” Sub-Clause 4.Protection of the Environment For Works to be executed in particularly environmentally sensible areas. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements. Sub-Clause 4. Sub-Clause 4.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements.DOC .20 . .

” Sub-Clause 4. the unforeseen events. the work breaks due to adverse meteorological conditions. Sub-Clause 4. “The Contractor shall draw up a works diary for contemporary records. bfc2-071_fidic user guide_250407_final.Fossils No need for particular conditions related to this sub-clause. as well as verbal orders given to the Contractor. the sent samples. New Sub-Clause 4. At the Engineer’s request.24 . the materials incorporated into the works. in a format agreed by the Engineer. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor. 2. the supplied materials.DOC . in the case of a road rehabilitation project. signed by the Contractor’s Representative and countersigned by the Engineer or his representative. as separate documents. the tests completed. the Contractor has to inform in writing the Engineer about his remarks within 14 days from the date when the notice has been recorded in the works diary or attachments”.21 [Progress Reports] with subsequent description in the Employer’s Requirements. The information provided is noted in the works diary and attachments. the number and the qualification of the personnel working on Site. the equipment out of order. .25 – Works Diary It is recommendable to add a new Sub-Clause [Works Diary](or integrate these provisions with the ones of Sub-Clause 4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 83 For example. during the reported period. These attachments are part of the Works diaries. actual quantities. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. In case of disagreement on a subject noted in the works diary or attachments. 3. Atmospheric conditions. it is recommendable to precise that: “For the purposes of this Sub-Clause. The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. if need be. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. Such use and access shall be regulated as part of the Contractor’s traffic management plan. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. such as completed Works. the working hours. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties.Contractor's Operations on Site No need for particular conditions related to this sub-clause.23 .Romania. supplies accepted for incorporation into the works. but can be signed.

equipment.5 Clause 5 . For example.6) Details regarding the operation and maintenance manuals (Sub-Clause 5.5) Details regarding the as-built documents to be provided (Sub-Clause 5. 10/1995 related to the verification of design by duly certified design checker. while detailed drawings might be produced at a later stage.7). Tenderers should be advised of the extent to which the Employer's outline design is a suggestion or a requirement. Sub-Clause 5. depending on the part of the works to be designed and on the level of detail. The first paragraph of this Sub-Clause should be amended for the purposes of compliance with Article 13 of Law No. for the Plant and any necessary c) Making necessary connections to the Plant.DOC .Design This Clause might be completed with an indication of the schedule for execution and submission of the design. which may include an outline design. The Employer's Requirements should specify the extent to which Contractor's Documents are required.Contractor's Documents The "Contractor's Documents" are defined as the documents which the Contractor must submit to the Engineer. the Employer’s Requirements shall define: Whether a review and / or approval process is required (for the purpose of Sub-Clause 5. refer to the mandatory particular conditions in Appendix B1. to the place where the Plant is to be erected.2) The extent of training required (Sub-Clause 5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 84 5.Romania. and/or b) Providing suitable access on the Site. . Furthermore. which will not necessarily include (for example) all the technical documents which the Contractor's Personnel will need in order to execute the Works. Such a design might have been necessary to establish the feasibility of the project. and/or of the possibility of substantial submissions at particular stages of the design-build process.General Design Obligations The Contractor commences by scrutinising the Employer's Requirements.1 .3. bfc2-071_fidic user guide_250407_final. Sub-Clause 5. it may be appropriate for the Employer's Requirements for a plant contract to specify that the Contractor's Documents shall include drawings showing how the Plant is to be affixed and any other information required for: a) Preparing suitable foundations or other means of support. taking account of the time necessary to review the different types of drawing. as specified elsewhere in the Contract. Different "review periods" may be specified. which of them are required for approval (not just review). For instance. it is advisable to request the entire design documents required for application for a building permit to be produced and submitted within a given time period. and the submission procedures.2 .

Contractor's Undertaking No need for particular conditions related to this sub-clause.1 .4 . 5.Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause.Design Error No need for particular conditions related to this sub-clause. Any replacement personnel shall be at least of equivalent qualification and experience.4 . or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision.Labour Laws According to the Guide. Sub-Clause 5.Operation and Maintenance Manuals No need for particular conditions related to this sub-clause. Sub-Clause 5.Staff and Labour Sub-Clause 6.Training No need for particular conditions related to this sub-clause.5 .2 .7 .” Sub-Clause 6. bfc2-071_fidic user guide_250407_final. this Sub-Clause may be deleted. Sub-Clause 5.6 Clause 6 .DOC .6 . the Employer must clearly indicate in the tender documents the mandatory rules regarding labour conditions and labour safety which must be complied with throughout the performance of the Contract. Sub-Clause 6.3 .Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents. . for example).As-Built Drawings No need for particular conditions related to this sub-clause.3. Sub-Clause 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 85 Sub-Clause 5.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender.5 . Such obligation is deemed to be complied with if the tender documents indicate the relevant institutions wherefrom detailed information as regards the above mentioned regulations can be obtained. The Employer should require Tenderers to indicate in the Tender the fact that obligations related to labour conditions and labour safety were taken into consideration in the preparation of the Tender. Sub-Clause 5. Sub-Clause 6. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract.Persons in the Service of Employer No need for particular conditions related to this sub-clause.8 .Technical Standards and Regulations No need for particular conditions related to this sub-clause.Romania. Sub-Clause 5.3 .

the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial (b) Alcoholic Liquor or Drugs The Contractor shall not. any arms or ammunition of any kind.” Add the following paragraphs at the end of Sub-Clause 6. or permit or allow importation. sell. gratuity. sale. barter or disposal by Contractor’s Personnel. his obligations to do so should be specified.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. Sub-Clause 6. reward or bribe given.Romania.” Sub-Clause 6. in addition to any criminal liability which may be thereby incurred. subject the Contractor at the Employer's option to the cancellation bfc2-071_fidic user guide_250407_final. gift. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. give. (d) Illegal Payments Any commission.6 . except for those activities requiring continuous presence on Site. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 86 In some cases. import.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works. The Contractor must ensure that these personnel are provided with the required residence visas and work permits. requests of the Contractor to work outside the normal working hours will have an impact on the activity of and required inputs from the Engineer. In the event of the death in the Country of any of these personnel or members of their families. advantage. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. etc. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift.8 . chemicals. Sub-Clause 6. barter or otherwise dispose of any alcoholic liquor or drugs. such as traffic management. promised or offered by or on behalf of the Contractor or his agent or servant or any other person on his or their behalf or on behalf of any of them in relation to the obtaining or to the execution of this or any other Contract with the Employer shall. (c) Arms and Ammunition The Contractor shall not give. .7 .Facilities for Staff and Labour If the Employer will make some accommodation available. gift.DOC .Contractor's Superintendence Add the following text at the end of Sub-Clause 6. or allow Contractor’s Personnel to do so.8: “A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of Romanian language. barter or otherwise dispose to any person.

Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation.Ownership of Plant and Materials No need for particular conditions related to this sub-clause.9 . etc).Rejection No need for particular conditions related to this sub-clause. Sub-Clause 7. if any. this should be made clear in the Employer’s Requirements.Remedial Work No need for particular conditions related to this sub-clause. The prohibition of “hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4.Contractor's Personnel No need for particular conditions related to this sub-clause Sub-Clause 6.8 .7 Clause 7 .Disorderly Conduct No need for particular conditions related to this sub-clause 5. levied in relation to the dumping of part or all of such materials.3 . debris and hazardous waste. Any amount paid shall be deducted from the Contractor's payment due. Sub-Clause 7.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.DOC .6 .Plant Materials and Workmanship Sub-Clause 7.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause Sub-Clause 6.7 .3. .8). Sub-Clause 7.” Sub-Clause 6. waste piles.11 .” bfc2-071_fidic user guide_250407_final.Testing No need for particular conditions related to this sub-clause. Sub-Clause 7.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 87 of this and of all other contracts which he may have entered into with the Employer and also the payment of any loss or damage resulting from such cancellation. Sub-Clause 7.4 .2 . Sub-Clause 7.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment.1 .Samples No need for particular conditions related to this sub-clause. Sub-Clause 7.5 .10 .

Commencement. these stages should be defined as Sections. to payment of damages by the Contractor. The programme is primarily a document prepared by the Contractor.Delays Caused by Authorities No need for particular conditions related to this sub-clause.4 .1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”.” Sub-Clause 8.1 .Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. Failure of the Employer to provide access to and possession of the Site in due time might delay the Commencement Date and have serious consequences. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 88 5.1 is ensured. it is advisable to define this part as a Section (in the Appendix to Tender) and to define under the present Sub-Clauses different Commencement Dates by Sections.7). nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8.8 Clause 8 . On the other hand.5.1 and Sub-Clause 8. In case Employers know that the Commencement Date for a part of the Works will be delayed. For example. . subject to Sub-Clause 2. bfc2-071_fidic user guide_250407_final. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice.3 . delays and Suspension Sub-Clause 8.Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer.3. It is advisable to provide a time-limit for the submission of a revised programme. the last sentence defines strong obligations for the Contractor.2 . Sub-Clause 8.Romania.DOC . the Contractor should not stop the Works if it is able to work on part of the Works. under its full responsibility.Time for Completion It has to be highlighted that the expiry of the Time for Completion does not relieve the Contractor from its obligation to perform the Works. If the Works are to be taken-over in stages.Extension of Time for Completion No need for particular conditions related to this sub-clause. Sub-Clause 8. in the Appendix to Tender. Failure to comply with this provision shall entitle the Employer. there is no need to amend the Contract in any way. In case the Works are not completed during the Time for Completion. It is highly recommended not to sign any contract before compliance with SubClause 2. as the Contract clearly describes how to handle this situation. Sub-Clause 8.5 .

it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. subject to Sub-Clause 2. up to a maximum of 10% of the Accepted Contract Amount. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works.15(b). It is recalled that delay damages cannot be simply deducted by Employers from Interim Payment Certificates but the Employer’s Claims procedure defined under Sub-Clause 2.3. Milestone 1 is defined hereafter. Milestone 1 is defined as the achievement of the following indicators.6 . the Employer will be entitled. It is therefore possible to include a “milestones system” along the example provided below. The four other indicators shall be agreed by the Contractor and the Engineer within 28 days from the submission of the Contractor’s work programme.5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 89 Sub-Clause 8. The Contractor work programme under the present Sub-Clause is submitted.Romania. is controlled through a milestones system. as submitted under the first paragraph of Sub-Clause 8. (Other items). bfc2-071_fidic user guide_250407_final. Compliance of the progress of the Works with the Contractor’s programme. The amount so withheld shall be paid to the Contractor.5 has to be followed.3 or revised under the third paragraph of Sub-Clause 8.DOC .Delay Damages Under many legal systems. Whenever a revised programme is being submitted. the Engineer will define those four indicators. Before using such system.Rate of Progress Employers sometimes complain that there is little control on the performance of the Contractor before the end of the Time for Completion. to withhold from the Interim Payment Certificates an amount equal to 0. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. . Sub-Clause 8. This system includes five milestones for monitoring and evaluation of the progress of the Works. If the Accepted Contract Amount is expressed in the Local Currency.05% of the Accepted Contract Amount per day of delay. Such indicators however shall be defined based on the Contractor’s work programme. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. the milestones have to be updated in accordance with the provisions above.7 . 28 days after the Commencement Date: All Contractor key personnel are on Site. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. In case no agreement is reached during such period. In case the Contractor incurs delays in the achievement of a milestone. if and when the milestone is reached.

. the tests requirements may have to take account of the effect of some parts of the Works being incomplete.Romania.10 .11 .Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause.9 Clause 9 . 5. Sub-Clause 8. If the Works are to be tested and taken-over in stages. etc). waive their rights to delay damages. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 90 It is also mentioned that these delay damages are the only damages due for such default (late completion.Prolonged Suspension No need for particular conditions related to this sub-clause.Resumption of Work No need for particular conditions related to this sub-clause. For example. but also (ii) introduce a bonus for acceleration. This tends to restrict the constitution of “black lists” or other similar instruments. For contracts where completion of the Works by a certain date is of paramount importance.8 .Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed.2 refers to accelerated completion). Sub-Clause 8. for example in case payment of such damages would create strong pressures on the Contractor’s cash flow and would jeopardize the actual completion of the Works. Sub-Clause 8.Consequences of Suspension No need for particular conditions related to this sub-clause Sub-Clause 8. instrumentation. except in the event of termination by the Employer. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time. New Sub-Clause Incentives for early completion may be included in the tender documents (although Sub-Clause 13. In par- bfc2-071_fidic user guide_250407_final. in duly justified cases.DOC .9 .1 .3.Tests on Completion Sub-Clause 9. Sub-Clause 8. etc.Contractor's Obligations The Employer's Requirements should describe the tests which the Contractor is to carry out before being entitled to a Taking-Over Certificate. it might be envisaged to (i) introduce a higher amount of delay damages. The wording in the sub-paragraphs includes the conditions which are typically applicable for a plant contract.12 . It may also be appropriate for the Contractor's Proposal to include detailed arrangements. but otherwise may require amendment. It should also be noted that Employers might. or suspend the actual payment of such damages by the Contractor until the completion of the Works.

Sub-Clause 10. The Employer must nominate a taking-over commission (Article 7 of GD No. 5. . Sub-Clause 10.3 .3 . sub-paragraph (c) refers to trial operation.1 .Interference with Tests on Completion No need for particular conditions related to this sub-clause.Taking Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No. Sub-Clause 9. during which any product produced by the Works becomes the property of the Employer. 273/1994. 273/1994). is to be defined in the Particular Conditions or in the Employer's Requirements. GD No. Unless expressly forbidden by the Law.Failure to Pass Tests on Completion If the reduction referred to in the final paragraph. The role of the Engineer in the taking over commission is not defined.DOC . Sub-Clause 9. He thus becomes responsible for disposing of it. If the product is to be retained by the Contractor. 273/1994. in the Appendix to Tender. 925/2006) are reflected in the mandatory particular conditions in Appendix B1. Such regulations are reflected in the mandatory particular conditions in Appendix B1. so as to define the Time for Completion and delay damages: the table is shown in the example Appendix. minimum acceptable performance criteria should also be specified. the Sub-Clause should be amended accordingly. bfc2-071_fidic user guide_250407_final. based on the extent of the failure.10 Clause 10 . On the other hand. Sub-Clause 9.Taking Over of the Works and Sections This Sub-Clause needs to be amended in order to comply with Romanian regulations related to taking-over of Works set out mainly in GD No. these stages should to be defined as Sections. and the Appendix should include a table.4 .3.2 .Retesting No need for particular conditions related to this sub-clause.Delayed Tests No need for particular conditions related to this sub-clause. If the Works are to be taken-over in stages. the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 91 ticular.2 . and entitled to retain the proceeds from selling it. It remains for Employers and Engineers to agree on what exactly means “minor outstanding work and defects which will not substantially affect the use of the Works or Section for their intended purpose”. Precise geographical definitions are advisable.Employer's Taking-Over Sub-Clause 10. it might be recommendable that the Engineer be nominated as representative of the Employer.Romania. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No.

if and to the extent that the Works.7 .3.Removal of Defective Work No need for particular conditions related to this sub-clause.Failure to Remedy Defects No need for particular conditions related to this sub-clause.Right of Access No need for particular conditions related to this sub-clause. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 92 Sub-Clause 10.5 . Such regulations are reflected in the mandatory particular conditions in Appendix B1.Defects Liability Sub-Clause 11. Sub-Clause 11.Romania. Sub-Clause 11. a Defects Notification Period shall not be extended by more than two years. and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage.Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause. . Sub-Clause 11.Further Tests No need for particular conditions related to this sub-clause.Unfulfilled Obligations Under Romanian law. 5.11 Clause 11 . However. It is therefore normal that the final payment and final evaluation of the Contract Price) comes after such acceptance. Sub-Clause 11.4 . Sub-Clause 11.2 .1 .4 . Sub-Clause 11.Costs of Remedying Defects No need for particular conditions related to this sub-clause. a major item of Plant or significant part of the Works (as the case may be. 273/1994.Performance Certificate This Sub-Clause needs to be amended in order to comply with Romanian regulations related to taking-over of Works set out mainly in GD No. a Section.3 .” Sub-Clause 11.Extension of defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2.5 to an extension of the Defects Notification Period for the Works. whilst his liability for defects affecting the bfc2-071_fidic user guide_250407_final.Contractor to Search No need for particular conditions related to this sub-clause.6 .8 . Sub-Clause 11.Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause.9 . the Contractor is liable for the latent defects of the Works during a 10 year period. Sub-Clause 11.10 . The issue of the Performance Certificate represents the acceptance of the Works. a Section or a significant part of the Works.DOC .

Procedure for Tests after Completion The Employer's Requirements should describe the tests he requires. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix B1. it may be essential to define the physical inputs. after taking-over. It may be appropriate for the Contractor's Proposal to include detailed arrangements. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 93 structure subsists during the lifetime of the Works (Article 29 of Law No.1. . 5.3. Sub-Clause 11. the provisions in FIDIC's Conditions of Contract for EPC/Turnkey Projects are based upon these Tests being carried out by the Contractor.3 . The provisions in the General Conditions are based upon the Tests after Completion being carried out by the Employer and his operating personnel.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13. and/or for tenderers to prescribe (in a Schedule of Guarantees. For some types of Works. with the Employer providing consumables.2. 5.12 Clause 12 . With many types of Works. Sub-Clause 12.13 Clause 13 .Tests after Completion Sub-Clause 12.Clearance of Site No need for particular conditions related to this sub-clause.DOC . Sub-Clause 12. with guidance from the Contractor's staff.4 .11 . the method of calculating the non-performance damages (based on the extent of the failure) should be defined in the Particular Conditions or in the Employer's Requirements.3.Delayed Tests No need for particular conditions related to this sub-clause. If other arrangements are envisaged.Romania. Sub-Clause 12. these Tests may be the most difficult to specify well. or bfc2-071_fidic user guide_250407_final. and the Sub-Clause should be amended accordingly.Failure to Pass Tests after Completion If the first part of this Sub-Clause is to apply. although they are critical to a successful outcome. and/or to define any instrumentation required. personnel and power.Retesting No need for particular conditions related to this sub-clause. probably) the performance criteria which their Plant will achieve. and the minimum acceptable performance criteria should also be specified. 10/1995). For example. which are intended to benefit both Parties. to verify that the Works fulfil his performance requirements. in addition to that included in the Plant.1 .2 . without prior agreement as to feasibility or price b) The Contractor may initiate his own proposals under Sub-Clause 13. they should be specified in the Employer's Requirements.

Cost or profit related to such period of review and approval.Right to Vary Several points have to be noted: Variations are initiated prior to the taking over.3 . including for the period required for its review and approval.1 .Variation Procedure No need for particular conditions related to this sub-clause. A new paragraph needs to be added at the end of this Sub-Clause reflecting the obligation for the Contractor to comply with Romanian public procurement regulations when purchasing Plant.Provisional Sums Although generally inappropriate for this type of contract.2 . a Provisional Sum may be required for parts of the Works which are not required to be priced at the risk of the Contractor.Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause. From this point of view.DOC . 34/2006 have to be met. In particular. The Contractor shall not be entitled to any extension of time. the percentage should be quoted by tenderers in the Appendix to Tender. Sub-Clause 13. For example. Materials or services other than from a bfc2-071_fidic user guide_250407_final.5 .3. Sub-Clause 13. or to deal with a major uncertainty regarding sub-surface conditions. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 94 c) The Engineer may request a proposal under Sub-Clause 13.” Sub-Clause 13. However. as any instruction. If a Provisional Sum is likely to be valued under Sub-Clause 13. additional works are to be treated with considerable care. probably). a Provisional Sum may be necessary to cover goods which the Employer wants to select. seeking prior agreement so as to minimise dispute. It is essential to define the scope of each Provisional Sum (in a Schedule.Payment in Applicable Currencies No need for particular conditions related to this sub-clause. since the defined scope will then be excluded from the other elements of the Accepted Contract Amount. the conditions of Article 122 (i) of GEO No. variations do not have to be treated like an addendum. . variations have to be made or confirmed in writing Under the procurement legislation. It is recommended to modify point (b) (ii): “A sum for overhead charges and profit. Variations are initiated by the Engineer (maybe at the request of the Employer) Variations do not require to be signed or approved by the Contractor and may be simply instructed.4 . calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender.” Typically. - Sub-Clause 13.Romania. a percentage of 5% is being used. Sub-Clause 13.5(b).

However.Contract price and Payment Sub-Clause 14. . 5. quoted in the currencies of payment (which may.Daywork No need for particular conditions related to this sub-clause. 925/2006). Sub-Clause 13. this type of contract is based on a lump sum price.Romania.6 . but need not. A positive cash flow is clearly of benefit to the Contractor.8 . include the Local Currency). The Contractor thus takes the risk of changes in cost arising from his design. Cases provided by clause 13. in order to remove any ambiguity. Normally. Sub-Clause 13. The lump sum price may consist of two or more amounts. it is strongly recommended to include a price adjustment formula. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 95 nominated Subcontractor. consideration should be given to the amount and timing of payment(s) to the Contractor.The Contract Price When writing the Particular Conditions. typically by the National Institute of Statistics.Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No. For any contract of duration of more than 12 months. materials or any other matters affecting the execution of the Contract. with little or no remeasurement.7 are not subject to this restriction. it is sufficient not to fill in any “table of adjustment data”. rise or fall in the cost of labour.7 .” It should be noted that the proposed formula applies only for works performed after the changes occurred (so it applies for what “remains to be executed” in accordance with provisions of GD No.14 Clause 14 .DOC . Such formula should be based on relevant indices published by authorised bodies. If the contract is intended to be at fixed rates.1 .3. Actually the multiplier is calculated for the works performed during month n. and tenderers will take account of the interim payment procedures when preparing their tenders. 925/2006. The relevant wording is included in the mandatory particular conditions in Appendix B1. Thus the Contract Price shall not be subject to any adjustment due to inflation. Sub-Clause 13. bfc2-071_fidic user guide_250407_final. The possibility and principles of such adjustments are foreseen in Article 97 of GD No. it might be preferable to clearly state that: “The Tender and subsequently the Contract Amount shall have been based on the Contractor’s projections for inflation over the implementation period. 925/2006.Adjustment for Changes in Cost These provisions for adjustments may be required if it would be unreasonable for the Contractor to bear the risk of escalating costs due to inflation.

Sub-Clause 14. a price for each of these stages (this would require the addition of provisions for securities). in addition to the documents and information contained in the Contractor’s progress report. annexed to the Particular Conditions: an example form is annexed to this document. The Employer may consider it advisable to have some form of security. attached in Appendix E1. including quantities. as envisaged in the last sentence of Sub-Clause 14. and any other matters relating to payment. Unless this Sub-Clause is not to apply.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 96 In order to value Variations. unit rates and other pricing information. the part must be defined in the Contract. 500/2002 and GD No. Such amendments are included in the mandatory particular conditions in Appendix B1. . the method of determining the Contract Price should be defined in additional Sub-Clauses. bfc2-071_fidic user guide_250407_final.Advance Payment When writing the Particular Conditions.1(a) is not to apply. the total advance payment (and the number of instalments if more than one) must be specified in the Appendix to Tender.1.2 . and the following wording might be appropriate for one of the additional Sub-Clauses. the information may not have been priced competitively. Tenders may be required to be accompanied by detailed price break-downs. This Sub-Clause needs be amended in order to reflect mandatory Romanian regulations in respect of advance payments from the public funds (Law No. Sub-Clause 14.3(a). If Sub-Clause 14. he should have ensured that the Engineer has the necessary expertise to value any Variations which may be required. When the tender documents are being prepared. since these payments would not relate to anything in his possession. the Employer must therefore decide whether he will accept being bound by the tenderer's breakdowns.3 . Additional Sub-Clauses may be required to cover any exceptions to the options set out in Sub-Clause 14. 264/2003). If not. However.5.Application for Interim Payment Certificate It might be useful to better define which supporting documents would be required.DOC . consideration should be given to the benefits of stage payments during manufacture. The acceptable form(s) of guarantee should be included in the tender documents. the tender documents may include: a) Provisions in the Appendix to Tender linking the timing of advance payment (under this Sub-Clause) to the stages of manufacture b) In the Schedule of Payments or other document to be used to determine the contract value under Sub-Clause 14. If the Contractor is to provide major items of Plant. consideration should be given to the benefits of advance payment(s).1. This information can also be useful for the assessment of interim payments. or c) Detailed amendments to Sub-Clause 14. If the Contractor is to be entitled to stage payments prior to shipment. If payment for any part of the Works is to be made on the basis of measurement.

” Sub-Clause 14. and the Schedule of Payments could be in one of the following forms: a) An amount (or percentage of the estimated final Contract Price) could be entered for each month (or other period) during the Time for Completion.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7. a simple measurement approach for interim valuations may be appropriate. if the Works consist of only a few different types of operations. It is however preferable that the “weight” of each sub-phase be defined in the tender documents. If another basis is to be used for determining interim valuations.Romania. the "minimum amount of interim certificates" could be omitted from the Appendix to Tender.7.5 . which can prove unreasonable if the Contractor's progress differs significantly from the expectation on which the Schedule was based. Some objects might also be divided into sub-phases. Plant and Materials delivered to the Site become the property of the Employer.3. tenderers would have to price each object. which necessitates careful definition of the payment milestones. Sub-Clause 14. It is therefore recommended to elaborate a Schedule that takes into account the main steps of the Contract and the main “objects” in the design and execution. The figures inserted by the Tenderer in the Schedule of Payments may be compared with his tender programme (if any). and the Schedule would actually make reference to actual progress. bfc2-071_fidic user guide_250407_final. It is important to define such progress by reference to nonambiguous milestones. it is possible to add the following sentence at the end of this Sub-Clause: “Any Statement under this Sub-Clause shall be signed by the Contractor’s Representative duly appointed in accordance with Sub-Clause 4.Schedule of Payments The General Conditions contain provisions for interim payments to the Contractor. In case a Statement is not signed by the duly appointed Contractor’s Representative. . Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. If payments are to be specified in a Schedule of Payments. details should be added in the Particular Conditions. Disagreements may arise when the work required for a payment milestone is nearly achieved but the balance cannot b completed until some months later. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. such Statement shall be void and ineffective. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 97 In order to ensure that a duly appointed Contractor’s Representative will be present at all time. In some cases. this Sub-Clause would apply only for the conditions of contract for plant and design-build. In most cases. in order to assess whether they are reasonably consistent with each other.DOC . which may be based on a Schedule of Payments. or b) The Schedule could be based on actual progress achieved in executing the Works. Alternatively.4 .

They do not imply acceptance of any work and might be modified afterwards. It also has to be noted that.8 . in case the Employer considers that an undue payment has been made. increased by three and a half percentage points. Such amendments are included in the mandatory particular conditions in Appendix A1.Delayed Payment When payments are made in Euro.Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No.6 . in force on the first calendar day of the month in which the due date falls. as published in the C series of the Official Journal of the European Communities. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix B1.Romania. through the provision of supporting particulars. by definition. interim. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2. It has to be noted that the Employer is not entitled to modify any Payment Certificate. bfc2-071_fidic user guide_250407_final. for example: The financing charges for amount/s receivable not paid on the due date shall be the interest rate applied by the European Central Bank to its principal refinancing operations. it is useful to indicate that the central bank of the Country is the European Central Bank. Interim Payment Certificates are.7 . several aspects need to be highlighted: The Engineer is bound by the time limit of 28 days for issue of an Interim Payment Certificate (failure to issue a Certificate in 56 days is a reason for Termination by the Contractor under Sub-Clause 16.Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. - - Sub-Clause 14. The scope of those provisions is to ensure that an adequate flow of cash is maintained.5. he can also include in his claim the related financing costs. The Contractor is to be notified of the value of the Interim Payment Certificate The Engineer shall give notice to the Contractor in case the value of a Certificate would be less than the minimum value stated in the Appendix to Tender. Although modifications of regarding works already certified should remain the exception. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 98 Sub-Clause 14. The Engineer is due to substantiate its determination. Furthermore. Sub-Clause 14. . as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations.DOC .2). such works are considered as finally approved only at the issue of the Performance Certificate. but in case of arithmetical mistakes.

to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money. In such case.Discharge No need for particular conditions related to this sub-clause.Romania.13 .Issue of Final Payment Certificate The legal constraints deriving from the use of public funds for the financing of the Contract (Law No.Cessation of Employer's Liability No need for particular conditions related to this sub-clause. The amount of the bank guarantee shall however be equal to the limit of Retention Money stated in the Appendix to Tender when the total of all certified interim payments (excluding the advance payment and deductions and repayments of retention) exceeds seventy per cent (70%) of the Accepted Contract Amount less Provisional Sums. while the Contractor shall be entitled. annexed to the Particular Conditions: an example form is annexed in Appendix F1.2.Statement of Completion No need for particular conditions related to this sub-clause.14 .4 [Schedule of Payments]. in amounts and currencies equal to the payments to be made. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 99 Sub-Clause 14. “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee. in a form and provided by an entity approved by the Employer. 500/2002) and affecting the issuance of the Final Payment Certificate by the Engineer are reflected in the mandatory particular conditions in Appendix B1.DOC .11 . . the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. Sub-Clause 14.” The acceptable form(s) of guarantee should be included in the tender documents. Sub-Clause 14. bfc2-071_fidic user guide_250407_final.12 . as specified for the Performance Security in Sub-Clause 4. The release of the guarantee shall be in lieu of the release of the second half of the Retention Money under the second paragraph of Sub-Clause 14. when the Taking-Over Certificate has been issued for the Works. after he obtains such guarantee.9. Sub-Clause 14. add the following paragraphs at the end of Sub-clause 14. in accordance with the estimates submitted under SubClause 14. Sub-Clause 14.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects.9.9 . Sub-Clause 14.Application for Final Payment Certificate No need for particular conditions related to this sub-clause.10 . The Contractor may gradually increase the amount of the bank guarantee.

The default interest shall be incurred over the time which elapses between that date of the payment deadline set by the Employer (exclusive). and the date on which payment is actually made (inclusive). This shall not affect the Parties’ right to agree on payment in instalments. If financing is to be procured from any of these sources. Amounts to be repaid to the Employer may be offset against amounts of any kind due to the Contractor. Bank charges incurred by the repayment of amounts due to the Employer shall be borne entirely by the Contractor. it may be difficult (or even impossible) to secure suitable financing for the project. those banks may be concerned to ensure that the Contrac- bfc2-071_fidic user guide_250407_final. . it must be named in the Letter of Tender. and only the first sentence of this Sub-Clause will apply. plus three and a half percentage points. and to seek approval of the draft tender documents.16 may be added: “The Contractor undertakes to repay to the Employer any amounts paid in excess of the final amount due within 45 days of receiving a request to do so.DOC . The financing institution or bank may wish the Contract to include references to the financing arrangements. Any partial payments shall first cover the interest thus established. export credit agencies. However. At the rate applied by the European Central Bank to its main refinancing transactions in euro where payments are in euro. the Sub-Clause may then be replaced: New Sub-Clause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 100 Sub-Clause 14.Romania. especially if funding from more than one source is to be arranged to finance different elements of supply.15 . Alternatively. on the first day of the month in which the time-limit expired. there may be a need to secure finance from entities such as aid agencies.” Financing Arrangements For major contracts in some markets.16 Repayment A new Sub-Clause 14. If the financing institution's requirements are not met. The exact wording will depend on the relevant institution. so reference will need to be made to them to ascertain their requirements. It is not unusual for the Particular Conditions to include special provisions identifying different categories of Plant and specifying the documents to be presented to the relevant financing institution to obtain payment. the Employer may increase the amounts due by adding interest: At the discount rate applied by the central bank of the country of the Employer if payments are in the currency of that country. development banks.Currencies of Payment If all payments are to be made in Local Currency. and/or the institution may decline to provide finance for part or all of the Contract. or other international financing institutions. Should the Contractor fail to make repayment within the deadline set by the Employer. the Particular Conditions may need to incorporate its special requirements. where the financing is not tied to the export of goods and services from any particular country but is simply provided by commercial banks lending to the Employer.

15 Clause 15 . the notice period should be used to initiate negotiations and remedy measures. etc. the Employer may postpone the termination notice. They might well require the Employer to make interim payments. when preparing the tender documents.1 . in the first place. Moreover. to anticipate the latter requirement by undertaking to provide a guarantee for the element of payment which the Contractor is to receive when the Works are complete. His financing bank's requirement would then affect his attitude in contract negotiations. although he would probably be unable or unwilling to provide finance from his own resources. termination under this Sub-Clause should be used as a last resort.Romania. Items belonging to the Contractor may not be sold by the Employer. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 101 tor's rights are very restricted. The acceptable form(s) of guarantee should be included in the tender documents. guaranteeing payment when due. that termination of the Contract is a failure. annexed to the Particular Conditions: an example form is annexed to this document.2 . it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8. In such cases.Termination by Employer This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law. Such amendments are included in the mandatory particular conditions in Appendix B1.3. Since the Contractor would then have to arrange his own financing to cover the shortfall between the payments and his outgoings. as Annex G. In case this period goes beyond the Time for Completion. In real terms. Moreover.) and might support significant additional costs in order to complete the Works. such as an enforceable court decision or a security interest over such items (which is an enforceable title per se). although a large proportion of the Contract Price might be withheld until the Works are complete. so as to allow such negotiations to develop.7). unless the later has an enforceable title allowing him to do so.Termination by Employer Sub-Clause 15. . In particular. Alternatively.DOC . It should be noted. the Contractor may be prepared to initiate financing arrangements and retain responsibility for them. Therefore. 5. “Rushing into termination” would in any case be a mistake.Notice to Correct A notice to correct should mention that it is given under the present Sub-Clause and state a reasonable time period for remedial. the fact that the Contractor is in bfc2-071_fidic user guide_250407_final. Employers would often lose considerable time (including valuation. Sub-Clause 15. the last two sentences of the last paragraph of this Sub-Clause should be deleted. he (and his financing bank) would probably require some form of security. organisation of a new tender. It may be appropriate for the Employer. The following Sub-Clause may be added. both for the Contractor and for the Employer. These banks may prefer the Contract to be based upon FIDIC's Conditions of Contract for EPC/Turnkey Projects.

4 . Sub-Clause 16.Romania. Sub-Clause 16.5 . the advance payment guarantee might be called in by the Employer). Sub-Clause 15.Payment after Termination No need for particular conditions related to this sub-clause.16 Suspension and Termination by Contractor Sub-Clause 16.4 .Termination by Contractor See our comments under Sub-Clause 15.1 . the Employer will be entitled to use so much of the Contractor’s Equipment and Temporary Works which have been deemed to be reserved exclusively for the execution of the Works.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause. the advance payment shall be repaid immediately by the Contractor (if not. Sub-Clause 15. It is possible to insert the following text within the last paragraph after the second sentence: “If the Contractor fails to remove his Equipment and Temporary Works within 21 days after receiving the notice.” Sub-Clause 15. 5.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. Sub-Clause 16.Payment on Termination After termination.3. under the provisions of the Contract.3 . bfc2-071_fidic user guide_250407_final. 3 months). Employers might want to bring a clearer definition of the provisions of letter (b).2. depending on the complexity of the project (for example. say.A Contractor should be aware before giving a notice of termination that once the Contract is terminated. it cannot be resumed and in most cases a new tender procedure would be necessary.Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause. such as.2 .DOC . up to the completion of the respective Works. by defining that a minimum (very low) rate of progress. in accordance with the provisions of Sub-Clause 14.3 . . Employers should obviously avoid putting themselves in one of the situations described. for example.2 Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix B1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 102 one of the situations described in this Sub-Clause as causes for termination should not be understood as necessarily triggering termination. as he may consider proper. less than 1% over the last 6 months will be considered as “abandoning” of the works.

an additional sub-clause may be added. For example.DOC .Romania.Consequences of Employer's Risks No need for particular conditions related to this sub-clause. New Sub-Clause 17.2 .5 .3. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 103 Obviously. from the respective dates of use or occupation by the Contractor. . Sub-Clause 17.Contractor's Care of the Works No need for particular conditions related to this sub-clause.3 .4 .1 . the sum referred to in the penultimate sentence shall be ……". “The Contractor shall take full responsibility for the care of the items detailed below.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause.17 Risk and responsibility Sub-Clause 17.6.Limitation of Liability An additional paragraph may be added if the total liability of the Contractor is not to be limited to the Accepted Contract Amount: “In Sub-Clause 17. under road or rail rehabilitation projects. where it can be demonstrated by the Contractor that the accident cannot be partly or wholly attributed to any deficiency in the Contractor’s Traffic Management Plan. payments on termination will usually occur in a difficult situation of conflict.Indemnities No need for particular conditions related to this sub-clause. it seems reasonable to exclude damages to the Works caused by the road or rail traffic from the Contractor’s risks and therefore include those under the Employer’s risks. such as: add paragraph (i) as follows: (i) damage to components of the Employer’s property on the Site and damage done to the Works resulting from any accident involving road users while the public use of the Works is authorised by the Employer.6 .7 If the Contractor is to occupy the Employer's facilities temporarily. up to the respective dates of hand-over or cessation of occupation (where hand-over or cessation of occupation may take place after the date stated in the TakingOver Certificate for the Works): [Insert details] bfc2-071_fidic user guide_250407_final.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. It might be appropriate to define a time limit for the Contractor to submit its request. Sub-Clause 17. Sub-Clause 17. 5. Sub-Clause 17. Sub-Clause 17.

1 . the tender documents should include details as an annex to the Particular Conditions (so that tenderers can estimate what other insurances they wish to have for their own protection).3 . Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer. exceptions and deductibles.4 . The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18. who is to be the Contractor unless otherwise stated in the Particular Conditions. arising from any cause whatsoever other than those for which the Employer is liable. limits. Sub-Clause 18.” Sub-Clause 18. because the Employer may not know the amount or value of these items of equipment.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause. New Sub-Clause If the Employer requires the additional protection of design insurance. which includes Subcontractor's equipment).18 Clause 18 .Insurance The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party". preferably in the form of a copy of each policy.DOC .2 .2 (for Contractor's Equipment.Romania.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance. If the Employer is to arrange any of the insurances under this Clause. bfc2-071_fidic user guide_250407_final. the Contractor shall. which is replaced by the Contract Agreement.Insurance for Works and Contractor's Equipment It is advisable to specify that: “It shall be the responsibility of the insuring Party to notify the insurance company of any change in the nature. Sub-Clause 18. rectify the Loss or damage to the satisfaction of the Engineer. . extent or programme for the execution of the Works and to ensure adequacy of the insurance coverage at all times during the period of the Contract. The following sentence may be included in the Particular Conditions.” 5. an additional sub-clause may be added. The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. Sub-Clause 18. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 104 If any loss or damage happens to any of the above items while the Contractor is responsible for their care. including the conditions. at his own cost.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause.3.

1 . through the Engineer.Duty to Minimise Delay No need for particular conditions related to this sub-clause.3.3 . the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. 5. Disputes and Arbitration Sub-Clause 20. Although the figure of 28 days in which the notice must be served was somewhat arbitrary the objective was to limit the time period wherein a claim must be notified.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure".6 .5 .3.Consequences of Force Majeure No need for particular conditions related to this sub-clause. Sub-Clause 19. The notice of occurrence of Force Majeure should be accompanied by appropriate supporting documentation. despite a frequent opinion. It endeavours to prevent situations where a contractor would submit its claim long after the occurrence of an event or circumstance for which it was reasonable for the Contractor to anticipate an entitlement of time or to additional payments.Notice of Force Majeure It has to be noted that. is put on alert.7 . bfc2-071_fidic user guide_250407_final. Sub-Clause 19.Definition of Force Majeure Attention is drawn on the criteria for an event or circumstance to be defined as Force Majeure and to the exceptional character of such event or circumstance (much more than unusual or unforeseen). Force Majeure can be proven by other means.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause. Sub-Clause 19. such certificate would be irrelevant for Force Majeure occurring in a foreign country. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 105 5.Force Majeure Sub-Clause 19.Romania.4 . Accordingly.20 Clause 20 -Claims. .19 Clause 19 .Optional termination.Release from Performance under the Law No need for particular conditions related to this sub-clause.DOC . Sub-Clause 19.1 . Payment and Release No need for particular conditions related to this sub-clause. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. that something had recently occurred for which an entitlement for time and/or additional payment might be sought. The important matter is that the Employer. Furthermore. Sub-Clause 19. within four weeks. It is advisable to add at the end of first paragraph of Sub-Clause 19.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. Sub-Clause 19.2 .

acting in all good faith. have not ensured that the necessary records are kept. is capable of being the basis for a valid claim? Did the Employer or the Engineer in fact know about the event giving rise to the claim within 28 days of the event? Is the event giving rise to the claim an action or inaction by the Employer or the Engineer? Was the Employer or the Engineer aware within 28 days that a claim was probable. he should consider the following before rejecting the claim:(i) (ii) (iii) (iv) (v) Is the event one which. to reject the claim without consideration of the merits? (vi) (vii) (viii) (ix) 2. The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers. then DABs are likely to be sympathetic to the Contractor.DOC . If the answer to item (i) is yes. Most DAB decisions have allowed a number of claims rejected for late notice to proceed. other than by way of formal notice? Is it fair and reasonable. 1. Guidance as to how the notice provisions should be applied in the best interests of Employers. DABs are taking notice of the first sentence of Sub-Clause 20. the Engineer should consider rejecting the claim on its lack of valid basis.1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration. respond within 42 days after receiving a claim or further particulars. good project administration and fairness under the contracts. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 106 The Engineer shall. If the answer to any of these items is yes. or should they have been so aware? Is it possible that the Contractor only considered himself entitled to make a claim – as distinct from knowing about the event – within the 4 weeks prior to the notice? Has the timing of the notice caused the Employer or the Engineer any significant prejudice in terms of the ability to mitigate or record the effects of the event? Has the timing of the notice benefited the Contractor or does it seem as if it was intended to benefit the Contractor? Was there communication. in turn. If the answer to item (i) is that the event is not capable of being a valid claim. 3. Engineers should consider items (ii) to (iv).1 may not have been complied with.1: it has been argued and accepted that if the Contractor has bfc2-071_fidic user guide_250407_final. this is not the way that many DABs are interpreting the clause. DABs have in mind that the object of Sub-Clause 20. Next.1 is to prevent ambushes and minimise delays to projects. 4. about the problem.Romania. leaving aside Clause 20. not to bar meritorious claims. Where the Engineer considers that the 28-day notice provision of SubClause 20. have not advised on the merits and have not prepared considered determinations. consider item (v). Although Sub-Clause 20. taking into account all of the above. whether at meetings or otherwise.

then rejection for lack of notice should be considered.DOC . There are two basic possibilities: Appointment of an “ad-hoc” DAB pre-arbitral decision by the Engineer. Consider item (viii). would the cost or delay claimed have been reduced if earlier notice had been given? 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 107 not in fact considered himself entitled to claim. 8.5 or in time and deducted from any cost or time determined. whilst not discouraging the Parties from reaching agreement on dis- bfc2-071_fidic user guide_250407_final. Unless the Engineer (although appointed by the Employer) is to make the prearbitral decisions under this Clause 20. 5. If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. then this is likely to be treated as adequate notice. DABs do not insist that the notice is formal. Finally. then the obligation to notify has not arisen. Sub-Clause 20. If there appears to have been a failure to notify. whether any prejudice to the Employer could be evaluated in financial terms under Sub-Clause. the Engineer should report to the Employer on its proposed action. or (c) Whether the claim should be dealt with on its merits.Romania. 925/2006).2. One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. Employers should choose between these possibilities having regard to: Contract complexity. Extent of activities off-site. Some events might require some investigation and advice before a contractor decides that he has a claim. the Contract should include the provisions under Clause 20 which. in accordance with the alternative option described below. setting out its responses to the above questions.Appointment of the Dispute Adjudication Board In the third paragraph of this Sub-Clause Letter of Acceptance” shall be deleted and substituted with “Contract Agreement” (Article 94(2) of GD No. Contract size.2 . . 7. consider point (ix) and. If the issue is raised at meetings or in general correspondence in due time. Consider items (vi) and (vii). Promptly upon receipt of a claim and before rejecting a claim on notice grounds. in particular. (b) The claim may reasonably be rejected for lack of notice but the Employer should nevertheless examine the merits due to the risk that the DAB might disagree. Advise whether: (a) The claim may reasonably be rejected for lack of notice. has there been prejudice to the Employer or benefit to the Contractor? In other words. It has to be noted that appointment of the DAB might not be opportune for all contracts.

Alternatively. The form of this tripartite agreement could be one of the two alternatives shown at the end of this publication.4 together with the Appendix and Annex to the General Conditions. amongst other things. for certain types of project. each individual person is referred to as a Member.2. it may be decided to retain the services of a permanent DAB.3. the Parties' confidence in the agreed individual(s) who will serve on the DAB. should be amended to comply with corresponding wording contained in the FIDIC Conditions of Contract for Construction. Typically. Before the Contract is entered into. if the individual is selected under SubClause 20. In this case Sub-Clauses 20. taking account of its size.DOC . duration and the fields of expertise which will be involved. DAB is recommended for contracts of more than 5 Million Euro and DAB of 3 members for contracts of more than 100 Million Euro. This alternative. Sub-Clause 20. as appropriate to the arrangement adopted. Therefore. it is essential that candidates for this position are not imposed by either Party on the other Party. where it would be appropriate for the DAB to visit the Site on a regular basis. having entered into a tripartite agreement with both Parties. the selection is made by a wholly impartial entity. Both of these forms incorporate (by reference) the General Conditions of Dispute Adjudication Agreement.2 and 20. although the Engineer generally acts for the Employer as specified in Sub-Clause 3. or (b) A DAB of three persons. the bfc2-071_fidic user guide_250407_final. and that. Sub-Clause 20. However.1(a). The appointment of the DAB may be facilitated by including an agreed list of potential members in the Contract: in a Schedule. consideration should be given as to whether a one-person or three-person DAB is preferable for a particular project. particularly those involving extensive work on Site. FIDIC is prepared to perform this role. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 108 putes as the works proceed. The adjudication procedure depends for its success on. allow them to refer contentious matters to an impartial dispute adjudication board.Romania. which has been the Engineer's traditional role in common law countries. each of whom has entered into a tripartite agreement with both Parties. may be appropriate if the Engineer is an independent professional consulting engineer with the experience and resources required for the administration of all aspects of the contract.2 envisages appointment of the DAB after a Party gives notice of its intention to refer a dispute to a DAB. . Under either of these alternative forms of Dispute Adjudication Agreement.2 provides for two alternative arrangements for the DAB: (a) One person. if this authority has been delegated in accordance with the example wording in the Appendix to Tender. The Employer should recognise that. which are included as the Appendix to the General Conditions because they are also referred to in Sub-Clause 20. the Engineer may make these pre-arbitral decisions. who acts as the sole member of the DAB. and the Dispute Adjudication Agreement.

for the fields covered by arbitration. shall be finally settled by international arbitration.Arbitration It shall be emphasised that the presence of an arbitral clause excludes. including without limitation any dispute regarding its breach. without the need for arbitration: for example.DOC .6 and replace by the following sentence: “Unless settled amicably or through a DAB decision. for their success. If this alternative is considered appropriate. In international construction contracts.4 should be modified accordingly by deleting the second paragraph of Sub-Clause 20. Amicable settlement procedures often depend.Obtaining Dispute Adjudication Board's Decision Again.” Furthermore.4) is English. acting fairly. Employers should carefully check the coherence between the arbitral institution.3 . on confidentiality and on both Parties' acceptance of the procedure.Amicable Settlement The provisions of this Sub-Clause are intended to encourage the parties to settle a dispute amicably.4 . international commercial arbitration has numerous advantages over litigation in national courts. the Employer's notice under SubClause 3. Sub-Clause 20. neither Party should seek to impose the procedure on the other Party.6 . language and procedure of arbitration. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 109 Engineer will make these pre-arbitral decisions impartially and the Employer must not prejudice this impartiality. Therefore. by direct negotiation. or other forms of alternative dispute resolution. Sub-Clause 20. any dispute arising out of or in connection with the Contract. Sub-Clause 20.4 shall include detailed proposals for the appointment of a replacement DAB. the use of regular courts.” Sub-Clause 20. The Contract should include provisions for the resolution by international arbitration of any disputes which are not resolved amicably.5 . the location. so as to clarify this aspect.Romania. termination or invalidity. Sub-Clauses 20. In the event that the Employer intends to replace the Engineer.4 and substituting with: “The Engineer shall act as the DAB in accordance with this Sub-Clause 20. It is recommended. conciliation. bfc2-071_fidic user guide_250407_final.2 and 20.3 should be deleted and Sub-Clause 20. For example. it should be noted that timely treatment of dispute is of the essence. Employers are advised to link with the relevant arbitral institutions before defining such conditions. the International Commercial Arbitral Court near the Romanian Chamber of Commerce and Industry uses its own procedural rules. mediation.Failure to Agree Dispute Adjudication Board It shall be noted that the president of FIDIC can be the appointing entity only if the language for communications (as defined under Sub-Clause 1.4. impartially and at the cost of the Employer. and may be more acceptable to the Parties. . to delete the first sentence of the first paragraph of SubClause 20.

The Rules of Arbitration of the International Chamber of Commerce (the "ICC". it may be necessary to designate. an institution to appoint the arbitrators or to administer the arbitration. Sub-Clause 20. and usually need to be prepared on a case-by-case basis.8 .party arbitration clauses require skilful drafting.Expiry of Dispute Adjudication Board's Appointment No need for particular conditions related to this sub-clause. No satisfactory standard form of multi-party arbitration clause for international use has yet been developed. it is desirable that the place of arbitration be situated in a country other than that of the Employer or Contractor. if necessary. before so designating an institution in the Appendix to Tender. For major projects tendered internationally. it is recommended to add a new Clause 21: “The Contractor will allow the Romanian Audit Authority. It may be considered desirable in some cases for other Parties to be joined into any arbitration between the Parties. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 110 Careful consideration should be given to ensuring that the international arbitration rules chosen are compatible with the provisions of Clause 20 and with the other elements to be set out in the Appendix to Tender. the implementation of the project and conduct a full audit. Sub-Clause 20. the Romanian AntiFraud Office. that it is prepared to appoint or administer. . the European Anti-Fraud Office and the European Court of Auditors to verify. on the basis of supporting documents for the accounts. by examining the documents or by means of on-the-spot checks. bfc2-071_fidic user guide_250407_final. This country should have a modern and liberal arbitration law and should have ratified a bilateral or multilateral convention (such as the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards).Romania. the European Commission. accounting documents and any other document relevant to the financing of the project.Failure to Comply with Dispute Adjudication Board Decision No need for particular conditions related to this sub-clause. the International Court of Arbitration of the ICC will decide on the number of arbitrators (typically three in any substantial construction dispute) and on the place of arbitration. It may also be necessary to ensure. unless the institution is named (and their role specified) in the arbitration rules. 75008 Paris. New Clause 21 Checks and Audits by Romanian and Community Bodies For contracts funded under European Commission funds. or both. If the UNCITRAL (or other non-ICC) arbitration rules are preferred. These inspections may take place up to 7 years after the final payment. While this may be feasible. multi. that would facilitate the enforcement of an arbitral award in the states of the Parties. thereby creating a multi-party arbitration.DOC .7 . which is based at 38 Cours Albert 1er. In the absence of specific stipulations as to the number of arbitrators and the place of arbitration. in the Appendix to Tender. France) are frequently included in international contracts.

the Contractor will allow the Romanian and European AntiFraud Offices to carry out checks and verifications on-the-spot in accordance with the procedures set out in the European Community legislation for the protection of the financial interests of the European Communities against fraud and other irregularities. by a qualified translator. courier charges. to any sub-contractor or any other party benefiting from European Commission funds.4 Dispute Adjudication Agreement It is advisable to include a number of amendments to the General Conditions of Dispute Adjudication Agreement. Documents must be easily accessible and filed so as to facilitate their examination and the Contractor must inform the Employer of their precise location.Romania. including its information systems. as well as all documents and databases concerning the technical and financial management of the project and to take all steps to facilitate their work. international travel expenses. The Contractor guarantees that the rights of the bodies mentioned under the first paragraph of the present Clause to carry out audits. such as the cost of telephone calls. These are: Clause 3 Warranties – second paragraph – letter (c). checks and verification will be equally applicable. it could be specified “fluent in the language for communications defined in the Contract or assisted. local travel and other miscellaneous costs”.” 5. under the same conditions and according to the same rules as those set out in this Clause. for each overnight away from the Member’s home and covering the cost of hotel. the Contractor undertakes to give appropriate access to staff or agents of the bodies mentioned under the first paragraph of the present Clause to the sites and locations at which the Contract is carried out. To this end. In case the language for communications defined in the Contract is Romanian. subsistence costs.DOC . Add letter (d) to the first paragraph: (d) “other reasonable expenses incurred in connection with the Member's duties. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 111 Furthermore. Access given to agents of the said bodies shall be on the basis of confidentiality with respect to third parties. Any air travel must be by economy class while train travel may be by 1st class.” Replace second paragraph by: bfc2-071_fidic user guide_250407_final. Such amendments should be included in Clause 2 of the Dispute Adjudication Agreements. without prejudice to the obligations of public law to which they are subject. whenever necessary. . faxes and telexes. facilities and venues for meetings and hearings: a receipt shall be required for each item.” Clause 6 Payment Replace letter (b) of first paragraph by: (b) “a fixed per diem for expenses incurred in connection with the Member's duties. There might be a lack of qualified DABs fluent in the Romanian language.

2(a) and (b) 14.5(b) 13. The Contractor shall pay each of the Member's invoices in full within 28 calendar days after receiving each invoice and shall apply to the Employer (in the Statements under the Contract) for reimbursement of one-half of the amounts of these invoices. invoices for his/her daily fees and expenses monthly.3 1.1.3.1.3 1.5 8. All invoices shall be accompanied by a brief description of activities performed during the relevant period.15(b) 8.1.15 18. with a copy to the Employer.” Replace third. Following issues shall be covered by the Appendix to Tender: Item Employer Contractor Engineer Time for Completion Defects Notification Period Electronic Transmission Governing Law Ruling Language Language for Communications Time for Access to Site Performance Security Normal Working Hours Delay Damages Maximum Amount of Delay Damages Provisional Sums Adjustment of Changes in Cost Advance Payment Repayment of Advance Percentage of Retention Plant and Materials Interim Payment Certificate Currency of Payment Insurance Sub-Clause 1.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.Romania. fourth and fifth paragraphs by: “The Member shall submit to the Contractor. 5.3.2 & 1.1.2 6.3 1. shall be as specified in the Dispute Adjudication Agreement.1 18.4 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 112 “The daily fee.7 13.2(d) 18.2 14.4 2.5(b) and (c) 14.3 & 1.1 4.2.3 14.3 DAB 20. .DOC .6 14.2 & 20.4 & 1.8 14.2.2.3 Data bfc2-071_fidic user guide_250407_final.4 1.3 1. as well as the per diem rate.7 & 14. The Employer shall then pay the Contractor in accordance with the Contract".1.3 1.7 1.

1 The FIDIC Green Book Introduction This chapter provides guidance for the preparation of the Particular Conditions of Contract and the Appendix for Works Contracts using the FIDIC Short Form of Contract. The Romanian language version of the General Conditions of Contract and the proposed mandatory particular conditions of contract will. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. necessary so as to harmonise the contract provisions with the current Romanian legislation. and was submitted to the MPF in December 2006. The main aim has been to produce a straightforward flexible document which includes all essential commercial provisions and which may be used for all types of engineering and building work with a variety of administrative arrangements. about 500.DOC . the Contractor constructs bfc2-071_fidic user guide_250407_final.Romania. However. 6. after the approval by the MPF.2 FIDIC Guidance The Conditions of Contract . Mandatory particular conditions of contract for the FIDIC Green Book. in the current Romanian context. This Guide comprises the proposed mandatory particular conditions of contract as well as guidance regarding the conditions of contract that might lead Employers to define additional particular conditions. They are considered most likely to be suitable for fairly simple or repetitive work or work of short duration without the need for specialist subcontracts. Under the usual arrangements for this type of contract.the FIDIC Green Book . depending on the type of work and the circumstances.e.have been prepared by FIDIC and are recommended for engineering and building work of relatively small capital value.000 Euro equivalent and up to 6 months duration. such as. be published in the Official Gazette of Romania for use on infrastructure projects in Romania. the Conditions may be suitable for contracts of greater value. i. 1st Edition 1999. the FIDIC Green Book. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 113 6 6.

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the Works in accordance with design provided by the Employer or by his representative (if any). However, this form may also be suitable for contracts which include, or wholly comprise, contractor-designed civil, mechanical and/or electrical works. In addition, the Employer has a choice of valuation methods. Furthermore, although there is no reference to an impartial Engineer, the Employer may appoint an independent Engineer to act impartially, should he wish to do so. The form is recommended for general use, though modifications are required so as to adapt the form to the current Romanian legislation. The intention is that all necessary information should be provided in the Appendix to the Agreement, the latter incorporating the tenderer's offer and its acceptance in one simple document. The General Conditions are expected to cover the majority of contracts. Nevertheless, users are able to introduce Particular Conditions if they wish, to cater for special cases or circumstances. The General Conditions and the Particular Conditions will together comprise the Conditions governing the rights and obligations of the parties. To assist in the preparation of tender documents using these Conditions, Notes for Guidance are included. These Notes will not become one of the documents forming the Contract. Finally, applicable Rules for Adjudication are also included.

6.2.1 Notes for Guidance General The objective of this Contract is to express in clear and simple terms traditional procurement concepts. The Contract is intended to be suitable for works of simple content and short duration. If it is required that the Contractor should undertake design, this is also provided for. A single document is proposed for the form of tender and the agreement. This reflects the simple projects envisaged. One result of the simple form of Contract is that there is an increased burden on the Employer to set out in the Specification and Drawings the full scope of works, including the extent of any design to be done by the Contractor. There is no Engineer or Employer's Representative in the formal sense used in some other FIDIC Conditions. The Employer takes all necessary actions. However, the Employer must nominate his authorised spokesman and, if he wishes to engage a consultant to administer the Contract, may appoint a representative with specific delegated duties and authority. The Contractor also nominates a representative. The Conditions contain no overall limit on the Contractor's liability. If such a limit is required, a Clause should be inserted in the Particular Conditions.

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Agreement The printed form envisages a simple procedure of offer and acceptance. In order to avoid the traps and uncertainties that surround "letters of acceptance" and "letters of intent", it was thought preferable to promote a clear and unambiguous practice. It is intended that the Employer will write in the Employer's name in the Agreement and fill in the Appendix where appropriate and send two copies to tenderers together with the Specification, Drawings etc forming the tender package. In respect of both copies, the Contractor is to complete, sign and date the Offer section and complete any remaining spaces in the Appendix. Having decided which tender to accept, the Employer signs the Acceptance section of both copies and returns one copy to the Contractor. The Contract comes into effect upon receipt by the Contractor of his copy. If post-tender negotiations are permitted and changes in specification or price are agreed, then the form can still be used after the Parties have made and initialled the appropriate changes to their respective documents. The Contractor thus makes a revised offer in response to the Employer's revised tender documents and the revised offer is accepted by the Employer signing and returning the Acceptance form. If the changes are extensive, a new form of Agreement should be completed by the Parties. As the Contract comes into effect upon receipt of the signed Acceptance by the Contractor, the Employer should take steps to establish when receipt occurs, for example by requiring the Contractor to collect and sign for the Agreement. When the applicable law imposes any form of tax such as VAT on the Works, the Employer should make clear whether tenderers should include such taxes in their prices. Similarly, if payment is to be made in whole or in part in a currency other than the currency of the Country, the Employer should make this clear to tenderers. See Sub-Clause 11.7. Appendix The Employer should complete the Appendix as indicated prior to inviting tenders. Tenderers may be asked to insert a Time for Completion at 1.1.9 if none is specified. Where tenderers are required to submit design with their tenders, the documents containing the tendered design should be identified by the tenderer against item 1.1.1(f) of the Appendix. A number of suggestions have been made in the Appendix, such as the time for submission of the Contractor's programme under Sub-Clause 7.2 and the amount of retention under Sub-Clause 11.3. If these suggestions are adopted by the Employer, no action is required. Otherwise, they should be deleted and replaced.

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6.3

Clause-by-Clause Guidance

This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Green Book, with a clause-by-clause review.

6.3.1 Clause 1 - General Provisions Sub-Clause 1.1 - Definitions The definitions in these Conditions are not all the same as those to be found in other FIDIC Contracts. This is as a result of the need for simplicity in Conditions of this sort. Significantly different definitions include Commencement Date, Site, Variation and Works. 1.1.1 "Contract". The list of documents serves two purposes: firstly, to identify which documents form part of the Contract; and secondly, to provide an order of priority in the event of conflict between them. Document identification is necessary to avoid any possible doubt, for example because specifications have been subject to revisions. A complete list of Drawings is always desirable and could be attached on a separate sheet. There is no need for Particular Conditions but if amendments to these Conditions are required, they should be inserted on the sheet headed Particular Conditions and given priority over the General Conditions. If none, delete the reference. The Specification should set out in clear terms any design that the Contractor is required to undertake, including the extent to which any design proposals are to be submitted with the tender. If none, the reference to the Contractor's tendered design should be deleted. If there is no bill of quantities, delete the reference. If there are additional documents which are required to form part of the Contract, such as schedules of information provided by the Contractor, these should be added by the Employer. Consideration should be given in each case to the required priority. 1.1.7 "Commencement Date". The starting date for the Contract is 14 days after the date when the Contractor receives the Agreement signed by the Employer, unless the Parties agree otherwise. "Force Majeure" may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as all of the four conditions stated in the definition have been satisfied: a) War, hostilities (whether war be declared or not), invasion, act of foreign enemies b) Rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war

1.1.14

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which occurs when the signed Agreement has been returned by the Employer to the Contractor (see also Sub-Clause 1..Romania. 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 117 c) Riot. Sub-Clause 1.Permits and Licences A new paragraph should be added reflecting the obligation for the Employer to obtain the construction permit for the execution of the Works (Article 21 of Law No. this Sub-Clause could be limited by the addition at the end of the words: ". in the Country but not elsewhere. Sub-Clause 1. hurricane. the Site must be handed over by the Employer to the Contractor on the Commencement Date." bfc2-071_fidic user guide_250407_final.DOC . The term "Works" is intended to cover all the obligations of the Contractor.Priority of Documents No need for particular conditions related to this sub-clause. 1.The Employer Sub-Clause 2.Law No need for particular conditions related to this sub-clause. disorder.Interpretation No need for particular conditions related to this sub-clause. Sub-Clause 2. ionising radiation or contamination by radioactivity. refer to the mandatory particular conditions in Appendix D. explosives. typhoon or volcanic activity. This is 14 days after the Contract has come into effect.. if for any reason.3.2 Clause 2 .2 . and e) Natural catastrophes such as earthquake. Sub-Clause 1.Provision of Site Unless the Parties have agreed otherwise. except as may be attributable to the Contractor's use of such munitions. commotion. On the other hand.19 “Works”.1 . including any design and the remedying of defects. strike or lockout by persons other than the Contractor's personnel and other employees d) Munitions of war.7 above).1. 10/1995). Sub-Clause 1.3 . radiation or radioactivity.1. .4 . Otherwise there is no "Ruling Language".1 should be changed in the Particular Conditions. Sub-Clause 1. Any arbitration will be conducted in the specified language.5 . permits etc may also be required from places other than the Country.2 . then Sub-Clause 6. If the law of the Contract is not the law of the Country.Statutory Obligations Changes to the law after the date of the Contractor's offer are at the Employer's risk and any delay or additional costs are recoverable by the Contractor.Communications The problem of languages is addressed by requiring the important communications such as notices and instructions to be in the language stated in the Appendix. explosive materials.6 .

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 118 Sub-Clause 2.3. The Sub-Clause is intended to prevent argument. then an amendment in the Particular Conditions would be desirable.4 Clause 4 .Employer's Representative The Contractor should know who in an Employer organisation is authorised to speak and act for the Employer at any given time. 4. etc. so some benchmark standard is needed with which the Contractor is to comply. the Employer's representative acts for and in the interests of the Employer. he should be careful not to exercise such powers himself in order to avoid the risk of conflicting instructions. value or duration.DOC .3 . bfc2-071_fidic user guide_250407_final.Romania.4 .Approvals The term "approval" is only used in the Conditions in relation to the performance security at Sub-Clause 4. 12. 7. Sub-Clause 3. 6. Once appointed. If an impartial Employer's Representative is required with a role similar to the traditional Engineer. 2.1. 11. .3.2.1 and the authorised individual should be named in the Appendix.2 and 14. 10/1995 related to the verification of the proper performance of the Works through qualified persons appointed by the Employer.Contractor's Representative No need for particular conditions related to this sub-clause. 10.3. for contracts of relatively higher complexity. 9. 9.3.The Contractor Sub-Clause 4.5.3 Clause 3 .8.1. 5.1.1.General Obligations Most contracts do not specify the exact standard required for each element of the Works. then the following words could be used in the Particular Conditions: "Replace the final sentence of Sub-Clause 3. so as to introduce the requirements of Law No. 11.2.2 with the following: "The Employer's Representative shall exercise in a fair and impartial manner the powers of the Employer under or in connection with the following Sub-Clauses: 1.3.2. it is recommendable that Employers require more extensive professional assistance and their consultant should have clearly established delegated powers. Sub-Clause 4. 8. 10. 10. It is important that risks such as those of poor workmanship or Contractor's design are not transferred to the Employer unintentionally. This is achieved by Sub-Clause 3.6. decisions.3. 13.1.2.2 should be entirely deleted and replaced with the wording provided in the mandatory particular conditions (Appendix C).4 and insurances at Sub-Clause 14.Employer's Instructions No need for particular conditions related to this sub-clause Sub-Clause 2. There is no dual role or duty to be impartial. If a more specific set of standards could be referred to for a particular project. In addition.1.2 . 4." To the extent that the Employer has delegated powers to an Employer's representative. 6.1 .1 to 11.

then local commercial practice should dictate the form. the Sub-Clause could be amended. The proposed modification is included in the mandatory particular conditions in Appendix C. as is made clear here and in Sub-Clause 2.Subcontracting If applicable. The proposed modification is included in the mandatory particular conditions in Appendix C.Design by Contractor Sub-Clause 5.1 . If it is felt that the scale of project warrants security by means of a bond. In the event of conflict between the Specification and Drawings and the Contractor's tendered design. namely to allow constitution of a guarantee through progressive retentions from payments. Alternatively and particularly if the constitution of a bank guarantee might be difficult for the potential contractors.3 . Where the Employer procures any part of the design.2 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 119 Sub-Clause 4. The extent of the Contractor's design obligation should therefore be clearly stated if disputes are to be avoided. 925/2006. so as to introduce the provisions of Article 90 letter (c) of the GD No. The Employer need not react at all. Suggested forms of performance bond (surety bond) or bank guarantee have not been provided. the Particular Conditions should reflect the requirements of Romanian public procurement regulations as regards subcontractors (Article 96 (1) of GD No. The Conditions avoid the confusing concept of approval of design. 925/2006). The proposed modification is included in the mandatory particular conditions in Appendix C.DOC . the Specification and Drawings should be amended before the Contract is signed by the Parties.4 should be modified in order to comply with Romanian public procurement regulations as regards the Performance Security (Articles 87(b) and 92(4) of GD No.5 Clause 5 . 6.4 . This means that if the Employer prefers the Contractor's tendered solution. Designs are submitted and may be returned with comments or rejected.Contractor's Design This Sub-Clause should be modified in order to acknowledge the requirement under Romanian law for designs to be verified by a duly certified design checker (Article 13 of Law No. The amount and a reference to the desired form of any required security should be set out in the Appendix. the order of priority in the Appendix makes it clear that the Employer's documents prevail. The Appendix should indicate to tenderers the Sub-Clause(s) in the Specification that set out the design requirement.3. bfc2-071_fidic user guide_250407_final. As with all design-build contracts it is essential that the Employer's requirements are set out clearly and precisely. 925/2006).Performance Security Sub-Clause 4. the responsibility for design will be shared as this Contract makes the Contractor responsible only for design prepared by him.Romania. 10/1995). Sub-Clause 4.4. Example forms are included with FIDIC's Conditions of Contract for Construction.Responsibility for Design The Contractor's responsibility for his design remains. . Sub-Clause 5.

etc. bfc2-071_fidic user guide_250407_final. An extension of time should not be granted to the extent that any failure by the Contractor to give an early warning notice under Sub-Clause 10.3 contributed to the delay.3.Taking-Over Sub-Clause 8. If a party wishes to protect the intellectual property in his design. the intended purposes of the part of the Works to be designed by the Contractor.6 Clause 6 .DOC .Extension of Time The test for entitlement to an extension of time is whether it is appropriate.3. 10% of the sum stated in the Agreement is suggested. the Employer should do so.3 and the grounds for claims under Sub-Clause 10. The Employer must therefore make clear in the parts of the Specification that impose design obligations. those should be introduced in the Particular Conditions.Completion No need for particular conditions related to this sub-clause. Where Contractor's design is required.1 . If necessary. This means that if an event under Sub-Clause 6.1 caused critical delay to the Works and it is fair and reasonable to grant an extension of time. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 120 The Contractor will have an absolute obligation to ensure that the parts of the Works designed by him are fit for their purpose. 6.8 Clause 8 . provided that the intended purposes are defined in the Contract. There is no time or claim for bad weather although this could be adjusted in the Particular Conditions if so required. 6. Sub-Clause 7.1 .Romania. 6.Late Completion There is a maximum amount which the Contractor is liable to pay for late completion specified in the Appendix. Sub-Clause 7.1 .Time for Completion Sub-Clause 7.3.Execution of the Works There is no provision for sections and for the different Times for Completion by sections. Sub-Clause 7. This should be done even where this seems obvious in order to avoid argument about whether an intended purpose is defined or not.7 Clause 7 .Employer's Liabilities Sub-Clause 6.2 .3 . provision must be made in the Particular Conditions.Employer's Liabilities This Sub-Clause gathers together in one place the grounds for extension of time under Sub-Clause 7. .4.Programme The Appendix should stipulate any particular requirements as to the form and level of detail of programme to be submitted. the Appendix could stipulate that the programme should show the dates on which it is intended to prepare and submit drawings.4 .

The Employer must nominate a taking-over commission (Article 7 of GD No.Uncovering and Testing No need for particular conditions related to this sub-clause. the Employer may employ others for that purpose at the Contractor's cost. either apparent or latent. If any tests are required to be completed prior to taking-over. the Employer may notify the Contractor of defects. 273/1994.2 . the defect represents a breach of contract for which the Contractor is liable in damages. 6. it is not envisaged that the Works need be 100% complete before the Employer may take over. If the Employer requires a change to part of the Works bfc2-071_fidic user guide_250407_final. these should be specified in the Specification. If he fails to do so.Remedying Effects This Sub-Clause shall be modified in order to include the obligation for the Contractor to remedy any defects. notified by the Employer. Although he is then no longer obliged to return to Site to remedy defects.normally 12 months .10 Clause 10 . The Employer may also notify defects at any time prior to takingover. provision should be made in the Particular Conditions. .Variations and Claims Sub-Clause 10. In line with normal practice.from the date of taking-over. Such amendment is included in the mandatory particular conditions in Appendix C. the notice should be given. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. The liability of the Contractor for defects will not normally end with the expiry of the period stated in the Appendix. The Contractor must remedy such defects within a reasonable time.Right to Vary Variation is defined to include any change to the Specification or Drawings included in the Contract. The proposed modification is included in the mandatory particular conditions in Appendix C. There is no provision for taking-over of only parts of the Works but if this is required. There is no defined Defects Liability Period but during the period .3. The definition of Works is broad enough to include any such tests.1 .Taking-Over Notice This Sub-Clause needs to be amended in order to comply with Romanian regulations related to taking-over of Works set out mainly in GD No. 6. It might therefore be provided that: “The expiry of the period stated in the Appendix does not prejudice the Contractor’s liability for the latent defects of the Works during the periods of liability imposed by the Applicable Laws.Remedying Effects Sub-Clause 9.Romania.DOC .9 Clause 9 .2 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 121 Sub-Clause 8.” Sub-Clause 9.1 . This liability remains for as long as Romanian law stipulates. 273/1994).3. Once the Works are ready to be used for their intended purpose.

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designed by the Contractor either as part of his tender or after the Contract was awarded, then this is to be done by way of an addition to the Specification or Drawings which by Sub-Clause 5.2 will prevail over Contractor's design. Sub-Clause 10.2 - Valuation of Variations This Sub-Clause sets out alternative procedures for the valuation of Variations, to be applied in the order of priority given. It applies equally to omissions as to additional works. a) A lump sum should be the first method to be considered as it can encompass the true cost of a Variation and avoid subsequent dispute over the indirect effect. The Employer can invite the Contractor to submit an itemised make-up (Sub-Clause 10.5) before instructing the Variation so that an agreed lump sum can form part of the instruction. b) Alternatively, a more traditional approach can be taken by valuing the Variation at rates in the bill of quantities and any schedules, or c) Using these rates as a basis, or d) Using new rates. e) Daywork rates are normally used when the Variation is of an indeterminate nature or is out of sequence with the remaining Works. To ensure reasonable daywork rates, provision should be made for these to be priced competitively in the tender documents. Sub-Clause 10.3 - Early Warning This Sub-Clause and Sub-Clause 10.5 require the Contractor to notify the Employer of events promptly and to detail any claim within 28 days. If the effects of the event are increased or if the ability of the Employer to verify any claim is affected by the failure to notify, then the Employer is protected. Sub-Clause 10.4 - Right to Claim No need for particular conditions related to this sub-clause. Sub-Clause 10.5 - Variation and Claim Procedure No need for particular conditions related to this sub-clause.

6.3.11 Clause 11 - Contract Price and Payment Sub-Clause 11.1 - Valuation of the Works Normally only one of the options in the Appendix should be used to indicate how the sum in the offer is be calculated and presented. The following explains what is intended:

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Lump sum price

A lump sum offer without any supporting details. This would be used for very minor works where Variations are not anticipated and the Works will be completed in a short period requiring only one payment to the Contractor. A lump sum offer supported by schedules of rates prepared by the tenderer. This would be a larger contract where Variations and stage payments would be required. If the Employer does not have the resources to prepare his own bill of quantities then this alternative would be suitable. A lump sum offer based on bill of quantities prepared by the Employer. This would be the same as last but where the Employer has the resources to prepare his own bill of quantities. A better contract would result with an Employer’s bill of quantities. A sum subject to remeasurement at the rates offered by the tenderer in the bill of quantities prepared by the Employer. This would be the same as last but would suit a contract where many changes are envisaged to the Works after the Contract has been awarded. An estimate prepared by the tenderer which will be replaced by the actual cost of the Works calculated in accordance with the terms set by the Employer. This would suit a project where the extent of work cannot be ascertained before the Contract is placed. An example of this would be an emergency reconstruction of a building damaged by fire.

Lump sum price with schedule of rates

Lump sum price with bill of quantities

Remeasurement with bill of quantities

Cost reimbursable

However, if for some special reason, more than one option is selected, for example there is a remeasureable element in a lump sum Contract, then the details should be carefully defined. The Foreword indicates that this Short Form of Contract is intended for works of short duration. In the event of a contract for works of long duration, a new clause could be inserted at Sub-Clause 11.1 to adjust for the rise and fall in the cost of labour, materials and other imports to the Works. Such a clause could be adapted from the other FIDIC Conditions of Contract. Sub-Clause 11.2 - Monthly Statements If the Contract is for a lump sum, consideration should be given as to how the work is to be valued for the purposes of interim payments. In completing the Appendix for Sub-Clause 11.1, the Employer may request tenderers to submit a

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cash flow forecast linked to a stage payment proposal for agreement. This would be reviewed in the event of an extension of time made in accordance with Sub-Clause 7.3. Alternatively, interim payment can be based on valuation of the Works which would also be appropriate for remeasurement and cost reimbursable Contracts. Payment could also be based on the achievement of milestones or a schedule of activities to which values are assigned. An invoice may also be required, in which case it could be submitted with the statement. Sub-Clause 11.3 - Interim Payments No provision is made for advance payments. If such a payment is to be made, there should be provision in the Particular Conditions and for any security to be provided by the Contractor. An example form of advance payment guarantee is to be found in FIDIC's Conditions of Contract for Construction (Sub-Clause 14.2). Sub-Clause 11.4 - Payment of First Half of Retention The deduction of retention is sometimes replaced by the provision of security by the Contractor to the Employer. Alternatively, the entire retention sum deducted is released after taking-over upon the provision by the Contractor of security. In either event, suitable text would be required in the Particular Conditions. An example form of retention guarantee is to be found in the FIDIC Conditions of Contract for Construction; refer Appendix F1. Sub-Clause 11.5 - Payment of Second Half of Retention The release of the second part of the retention will serve as confirmation that all notified defects have been remedied. Sub-Clause 11.6 - Final Payment This Sub-Clause should be modified in order to provide for the obligation for the Contractor to issue an invoice; refer to the mandatory particular conditions in Appendix C. Sub-Clause 11.7 - Currency It is assumed that payments will be in a single currency. If this is not the case, the proportions of different currencies should be stated in the Appendix and provision made in the Specification or the Particular Conditions as to how payment is to be made. Sub-Clause 11.8 - Delayed Payment An invoice to be issued by the Contractor may also be required.

6.3.12 Clause 12 - Default Sub-Clause 12.1 - Default by Contractor The Employer may terminate the Contract if the defaulting Contractor does not respond to a formal notice by taking all practicable steps to put right his default. This recognises that not all defaults are capable of correction in 14 days. If ter-

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This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law. events must prevent performance of an obligation. . If Contractor's Equipment is essential for the safety or stability of the Works. 6. refer to the mandatory particular conditions provided in Appendix C. complication and scope for dispute are avoided. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 125 mination takes place. Sub-Clause 13.Contractor's Care of the Works Although the Contractor is responsible for the Works prior to taking-over.Insolvency The right of the Employer to retain the Contractor's Equipment may clash with the right of a liquidator or receiver to realise the assets of an insolvent Contractor. if the equipment on Site is hired: no specific provision is made to cover this situation and the Employer is unlikely to be able to retain such equipment.Default by Employer This provision provides the Contractor's main remedy for non-payment. 7 days after the Employer's receipt of a default notice.1. the Employer will be obliged to agree terms with the Contractor for the retention of such equipment. Sub-Clause 12. which must refer to Sub-Clause 12.1 . Sub-Clause 12.Risk and Responsibility Sub-Clause 13.Romania. The Contractor must use his right to terminate within 21 days or lose it. The Employer's costs in obtaining a replacement contractor will generally be higher than the Contractor's loss of profit. Reference to the applicable law would be necessary. Notice must be given at once.2 . See also the definition at Sub-Clause 1.Payment upon Termination This Sub-Clause enables the financial aspects of the Contract to be resolved quickly and without the necessity to await the completion of the Works by others. he is protected by the obligation to insure the Works under Clause 14 and by his ability to recover under Clause 6 his Cost if one of the Employer's Liabilities occurs. refer to the mandatory particular conditions provided in Appendix C. By specifying the damages payable to the innocent party for the defaults leading to the termination. the Contractor may suspend all or part of his work.13 Clause 13 . 21 days later the option to terminate arises if the Employer persists with non-payment or other default.Force Majeure To qualify as Force Majeure. bfc2-071_fidic user guide_250407_final. however.2 .3. much delay.DOC .3 .4 . This is to prevent a party abusing a right to terminate in his dealings with the other party for the remainder of the project.2.14. the Employer may take over and use the Contractor's Equipment to complete the Works. Sub-Clause 12. Care should be taken. This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law.

bfc2-071_fidic user guide_250407_final.Romania. tenderers should generally be asked to submit details of their insurance cover with their tenders.1 with the following: "The Employer shall.15 Clause 15 .2 .Failure to Insure No need for particular conditions related to this sub-clause. the costs of employing someone from a third country could be disproportionate if it is necessary for the adjudicator to visit or if a hearing became necessary. It should be noted that in the event of the Employer's failure to insure.Extent of Cover The Employer should set out his precise requirements in the Appendix. in the amounts and with the exclusions stipulated in the Appendix.14 Clause 14 . in view of the costs involved in arbitration. the following should be used as a Particular Condition in place of Sub-Clause 14.1 .Resolution of Disputes Sub-Clause 15.3 should be deleted if the Employer takes out the insurance. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 126 6. effect insurance in the joint names of the Parties of the types. .Insurance Sub-Clause 14.Adjudication There are advantages in appointing an adjudicator from the outset even though the adjudicator may not be required to take any action or earn any fee unless and until a dispute is referred to him. the Contractor may give notice under Sub-Clause 12.1 .2.1: • "Replace the text of Sub-Clause 14. It is therefore recommended that the Employer propose a person to act as adjudicator either at tender stage or shortly after the Agreement is signed and that the matter is discussed and agreed as soon as possible. Although the adjudicator should be impartial.3. If the Employer wishes to take out the insurances instead of the Contractor. Third Party. or arising from taking-over parts of the Works. any extra cost of a truly impartial adjudicator is a recommended investment. As smaller contracts are likely to fall within tenderers' standing Contractors' All Risk (CAR) insurance policies." Sub-Clauses 14. The Employer shall provide the Contractor with evidence that any required policy is in force and that the premiums have been paid. See also Clause 13.DOC . prior to the Commencement Date.3. Care should be taken about whether an adjudicator should be local or from a neutral country. However. Sub-Clause 14.Arrangements No need for particular conditions related to this sub-clause. should be covered by Particular Conditions. Any requirements for insurance after the date of the Employer's notice under Sub-Clause 8. Delays will inevitably occur if the parties initiate the procedure to appoint an adjudicator only when a dispute has arisen. even of minor disputes.2 and 14. 6.3 .2. public liability insurance would normally be mandatory. Sub-Clause 14.

2 . Sub-Clause 15.1 7.1 3. 6.3 11. bfc2-071_fidic user guide_250407_final.4 1. if required.Arbitration Arbitration may not be commenced unless the dispute has first been the subject of adjudication.2 4.1. A complete list of Drawings is always desirable and could be attached on a separate sheet.5 10. If none.2 7.2 11. Sub-Clause 15.1 & 11. the reference to the Contractor's tendered design should be deleted.5 2. for example because specifications have been subject to revisions.2 11.4 Data Document identification is necessary to avoid any possible doubt. including the extent to which any design proposals are to be submitted with the tender.7 11.1 3.Dayworks Valuation of the Works Materials and Plant Retention Currency of Payment Rate of Interest Insurances Arbitration Rules 9. If there is no bill of quantities.1 11.3 Sub-Clause 1. delete the reference. The Specification should set out in clear terms any design that the Contractor is required to undertake.9 1.Notice of Dissatisfaction No need for particular conditions related to this sub-clause. Following issues shall be covered by the Appendix: Item Contract Documents Time for Completion Law of the Contract Language Provision of Site Authorised Person Employer's Representative Performance Security Contractor's Design Programme Amount Payable due to Failure to Complete Period for Notifying Works Variation Procedure .Romania.4 Guidance for the Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.1 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 127 It is intended that all decisions made by the Employer or his representative should be capable of being reviewed by an adjudicator and.8 14. The Rules of arbitration should be stipulated in the Appendix.3 . .4 5.1.DOC .1 15. by an arbitrator.

these should be added by the Employer. such as schedules of information provided by the Contractor (elements of the Contractor proposal).Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 128 If there are additional documents which are required to form part of the Contract. . bfc2-071_fidic user guide_250407_final. Consideration should be given in each case to the required priority.DOC .

It is foreseen that these templates can be applied for all the 3 FIDIC books. • Tender Security This template is based on the template proposed by FIDIC. as required by the public procurement regulations The assignability of the guarantee is usually required by financing bank. Performance Security . 925/2006 on public procurement. This section presents the following templates for guarantees: The templates are attached in Appendix D. the FIDIC red. refer their Annex A. A performance security as surety bond is not covered by the public procurement regulations that require a bank guarantee. yellow and green books. refer their Annex B. Parent Company Guarantee This template is based on the template proposed by FIDIC. refer their Annex C. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 129 7 • • • • • • Templates for Guarantees Parent Company Guarantee Tender Security Performance Security . bfc2-071_fidic user guide_250407_final. and adjusted in compliance with the requirements of the Romanian legislation as follows: • The waiver of the benefits of discussion and division is required under Romanian law to ensure that the guarantor's obligation is a primary obligation and that a guarantor may not claim against the Employer that he is not liable for the full amount in case there are several guarantors The assignability of the guarantee is usually required by financing bank.e. i.e.Demand Guarantee This template is based on the template proposed by FIDIC. and adjusted in compliance with the requirements of the Romanian legislation as follows: • • The release of up to 70% has been provided in the mandatory particular conditions. and adjusted in compliance with the requirements of the Romanian legislation. the provisions of GD No. .DOC . i.Demand Guarantee Advance Payment Guarantee Retention Money Guarantee Payment Guarantee by Employer.Romania.

refer their Annex E. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 130 Advance payment Guarantee This template is based on the template proposed by FIDIC. and adjusted in compliance with the requirements of the Romanian legislation. and adjusted in compliance with the requirements of the Romanian legislation on public finance. Payment Guarantee by Employer This template is based on the template proposed by FIDIC. . refer their Annex G. refer their Annex F. where the advance payment is to be returned by the end of the financial year.DOC . Retention Money Guarantee This template is based on the template proposed by FIDIC. bfc2-071_fidic user guide_250407_final. refer GD No.Romania. 264/2003. and adjusted in compliance with the requirements of the Romanian legislation.

Templates for Contractual Issues. . Contract Agreement The Contract Agreement is based on the draft proposed by FIDIC. 8. modified for particular requirements of Romanian legislation. Appendix to Tender The Appendix to Tender is based on the draft proposed by FIDIC. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 131 8 Templates for Contractual Issues 8. Appendix The Appendix is based on the draft proposed by FIDIC. Templates for Contractual Issues. modified for particular requirements of Romanian legislation. modified for particular requirements of Romanian legislation.2.DOC . Letter of Tender The Letter of Tender is based on the draft proposed by FIDIC. modified for particular requirements of Romanian legislation.Romania.1. The templates are attached in Appendix E. bfc2-071_fidic user guide_250407_final. modified for particular requirements of Romanian legislation.1 FIDIC Red and Yellow Books This section presents the following templates for contractual issues for the FIDIC red and yellow books: • • • Letter of Tender Appendix to Tender Contract Agreement.1.1. Agreement The Agreement is based on the draft proposed by FIDIC.2 FIDIC Green Book This section presents the following templates for contractual issues: • • Agreement Appendix. The templates are attached in Appendix E.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 132 8. DAB Agreements bfc2-071_fidic user guide_250407_final. The templates are attached in Appendix F.DOC . .1.3 Dispute Adjudication Agreements The proposed DAB Agreements are based on the draft proposed by FIDIC. modified for particular requirements of Romanian legislation: • • Dispute Adjudication Agreement (one person DAB) Dispute Adjudication Agreement (three person DAB).Romania.

bfc2-071_fidic user guide_250407_final. Additional Particular Conditions of Contract. .Romania. Mandatory Particular Conditions of Contract Appendix A2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 133 Appendix A .DOC .PC's for the FIDIC Red Book This Appendix A contains the proposed particular conditions for the FIDIC red book as follows: • • Appendix A1. The Mandatory Particular Conditions was approved by the MPF in January 2007.

bfc2-071_fidic user guide_250407_final. .DOC .Romania.Mandatory Particular Conditions The following pages provide the mandatory particular conditions for the FIDIC red book. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 134 Appendix A1 .

Romania.DOC . . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 135 Appendix A2 . bfc2-071_fidic user guide_250407_final.Additional Particular Conditions The following pages provide the proposed additional particular conditions for the FIDIC red book.

Romania. Mandatory Particular Conditions of Contract Appendix B2.DOC . The Mandatory Particular Conditions was approved by the MPF in January 2007. bfc2-071_fidic user guide_250407_final. Additional Particular Conditions of Contract. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 136 Appendix B .PC's for the FIDIC Yellow Book This Appendix A contains the proposed particular conditions for the FIDIC yellow book as follows: • • Appendix B1.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 137 Appendix B1 .Romania. bfc2-071_fidic user guide_250407_final. .DOC .Mandatory Particular Conditions The following pages provide the mandatory particular conditions for the FIDIC yellow book.

. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 138 Appendix B2 .DOC .Romania. bfc2-071_fidic user guide_250407_final.Additional Particular Conditions The following pages provide the proposed additional particular conditions for the FIDIC yellow book.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 139 Appendix C . The Mandatory Particular Conditions was approved by the MPF in January 2007.PC's for the FIDIC Green Book This Appendix C contains the proposed mandatory particular conditions for the FIDIC green book. No additional particular conditions of contract are proposed for the FIDIC green book. . bfc2-071_fidic user guide_250407_final.DOC .Romania.

Romania. yellow and green books. . The templates are applicable for the FIDIC red. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 140 Appendix D . bfc2-071_fidic user guide_250407_final.DOC .Demand Guarantee Advance Payment Guarantee Retention Money Guarantee Payment Guarantee by Employer.Templates for Guarantees This Appendix D includes the recommended six (6) templates for guarantees as outlined in Chapter 7 above: • • • • • • Parent Company Guarantee Tender Security Performance Security .

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 141 PARENT COMPANY GUARANTEE Brief description of Contract: <Insert description> Name and address of Employer: <Insert name and address> (together with successors and assigns). we will indemnify the Employer against and from all damages. and waiving the benefits of discussion and division. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. This guarantee shall continue in full force and effect until all the Contractor's obligations and liabilities under the Contract have been discharged. and our liability hereunder shall be discharged absolutely. or by any other matters. or by any amendments to the Contract or to the constitution of the Contractor or the Employer. including the Contractor's compliance with all its terms and conditions according to their true intent and meaning. we <Insert name of parent company> irrevocably and unconditionally guarantee to you. the due performance of which and compliance with which by the Contractor are likewise guaranteed hereunder. the Employer.Romania. . We hereby authorise them to agree any such amendment or variation.DOC . and that the conditions of your invitation require his offer to be supported by a parent company guarantee. as a primary obligation. when this guarantee shall expire and shall be returned to us. If the Contract does not come into full force and effect within a year of the date of this guarantee. This guarantee shall apply and be supplemental to the Contract as amended or varied by the Employer and the Contractor from time to time. or if you demonstrate that you do not intend to enter into the Contract with the Contractor. or by any variation or suspension of the works to be executed under the Contract. the due performance of all the Contractor's obligations and liabilities under the Contract. awarding the Contract to the Contractor. This guarantee shall come into full force and effect when the Contract comes into full force and effect. If the Contractor fails to so perform his obligations and liabilities and comply with the Contract. losses and expenses (including legal fees and expenses) which arise from any such failure for which the Contractor is liable to the Employer under the Contract. whether with or without our knowledge or consent. We have been informed that <Insert name of Tenderer> (hereinafter called the "Contractor") is submitting an offer for such Contract in response to your invitation. In consideration of you. This guarantee shall be governed by the law of the same country (or other jurisdiction) as that which governs the Contract and any dispute under this guarantee shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such Rules. We confirm that the benefit of this guarantee may be assigned subject only to the provisions for assignment of the Contract. Our obligations and liabilities under this guarantee shall not be discharged by any allowance of time or other indulgence whatsoever by the Employer to the Contractor. this guarantee shall be void and ineffective.

At the request of the Principal. and that the conditions of your invitation (the "conditions of invitation". Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 142 TENDER SECURITY Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (defined as the Employer).2 of the conditions of the Contract. without your agreement. which are set out in a document entitled Instructions to Tenderers) require his offer to be supported by a tender security. or (b) You awarded the Contract to the Principal and he has refused to execute the Contract Agreement. withdrawn his offer after the latest time specified for its submission and before the expiry of its period of validity. when this guarantee shall expire and shall be returned to us. any sum or sums not exceeding in total the amount of <Insert amount> (say: <Insert amount in words>) upon receipt by us of your demand in writing and your written statement (in the demand) stating that: (a) The Principal has. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. This guarantee is subject to the Uniform Rules for Demand Guarantees. we <Insert name of bank> hereby irrevocably undertake to pay you.Romania. except as stated above. the Beneficiary/Employer. or (c) You awarded the Contract to the Principal and he has failed to comply with sub-clause 4. We have been informed that <Insert name of Tenderer> (hereinafter called the "Principal") is submitting an offer for such Contract in response to your invitation. The authenticated demand and statement must be received by us at this office on or before <Insert date> (the date 35 days after the expiry of the validity of the Letter of Tender).DOC . published as number 458 by the International Chamber of Commerce. .

we <Insert name of bank> hereby irrevocably undertake to pay you. any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount". Following the receipt by us of an authenticated copy of the taking-over certificate for the whole of the works under Clause 10 of the conditions of the Contract. for reasons attributable to the Principal. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 143 PERFORMANCE SECURITY -DEMAND GUARANTEE Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (whom the Contract defines as the Employer). We undertake to pay you such guaranteed amount upon receipt by us. shown in parentheses [ ] bfc2-071_fidic user guide_250407_final. and The respect in which the Principal is in breach. . such guaranteed amount shall be reduced by 70% and we shall promptly notify you that we have received such certificate and have reduced the guaranteed amount accordingly. and that this guarantee has not been extended. [This guarantee is fully transferable in favour of [financing institution) its successors and assignees). We have been informed that the Beneficiary may require the Principal to extend this guarantee if the performance certificate under the Contract has not been issued by the date 28 days prior to such expiry date. which requires him to obtain a performance security. within such period of 28 days. The authenticated demand and statement must be received by us at this office on or before <Insert date> (the date 70 days after the expected expiry of the Defects Notification Period for the Works) (the "expiry date"). published as number 458 by the International Chamber of Commerce. except as stated above. when this guarantee shall expire and shall be returned to us. of your demand in writing and your written statement that the performance certificate has not been issued. say: <Insert amount in words>) upon receipt by us of your demand in writing and your written statement stating: (a) (b) That the Principal is in breach of his obligation(s) under the Contract.1 Any demand for payment must contain your [minister's/director's] (1) signature(s) which must be authenticated by your bankers or by a notary public.DOC . We have been informed that <Insert name of contractor> (hereinafter called the "Principal") is your contractor under such Contract.Romania. the writer should ascertain whether to include the optional text. Date __________________________ Signature(s) ________________________________________ 1 When writing the tender documents. the Beneficiary/Employer. At the request of the Principal.] This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees.

This guarantee shall become effective upon receipt [of the first instalment] of the advance payment by the Principal. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. for which the Contract requires him to obtain a guarantee. the Beneficiary/Employer.Romania.6 of the conditions of the Contract. Following receipt (from the Principal) of a copy of each purported notice. except as stated above. we <Insert name of Bank> hereby irrevocably undertake to pay you. At the request of the Principal. any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount". This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. published as number 458 by the International Chamber of Commerce. We have been informed that <Insert name of Contractor> (hereinafter called the "Principal") is your contractor under such Contract and wishes to receive an advance payment.DOC . we shall promptly notify you of the revised guaranteed amount accordingly. We undertake to pay you such guaranteed amount upon receipt by us. We have been informed that the Beneficiary may require the Principal to extend this guarantee if the advance payment has not been repaid by the date 28 days prior to such expiry date. as evidenced by your notices issued under sub-clause 14. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. within such period of 28 days. . The authenticated demand and statement must be received by us at this office on or before <Insert date> (the "expiry date"). of your demand in writing and your written statement that the advance payment has not been repaid and that this guarantee has not been extended. when this guarantee shall expire and shall be returned to us. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 144 ADVANCE PAYMENT GUARANTEE Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (defined as the Employer). Such guaranteed amount shall be reduced by the amounts of the advance payment repaid to you. and The amount which the Principal has failed to repay. say: <Insert amount in words>) upon receipt by us of your demand in writing and your written statement stating: (a) (b) That the Principal has failed to repay the advance payment in accordance with the conditions of the Contract.

We have been informed that <Insert name of Contractor> (hereinafter called the "Principal") is your contractor under such Contract and wishes to receive early payment of [part of] the retention money. The authenticated demand and statement must be received by us at this office on or before <Insert date> (the date 70 days after the expected expiry of the Defects Notification Period for the Works) (the "expiry date"). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 145 RETENTION MONEY GUARANTEE Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (defined as the Employer). the Beneficiary/Employer. published as number 458 by the International Chamber of Commerce. we <Insert name of Bank> hereby irrevocably undertake to pay you. our liability under this guarantee shall not exceed the total amount of retention money released to the Principal by you.DOC . This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. except as stated above. for which the Contract requires him to obtain a guarantee. and that this guarantee has not been extended. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. within such period of 28 days. when this guarantee shall expire and shall be returned to us. . any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount".Romania.6 of the conditions of the Contract with a copy being passed to us. as evidenced by your notices issued under sub-clause 14. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. of your demand in writing and your written statement that the performance certificate has not been issued. say: <Insert amount in Words>) upon receipt by us of your demand in writing and your written statement stating: (a) (b) That the Principal has failed to carry out his obligation(s) to rectify certain defect(s) for which he is responsible under the Contract. At the request of the Principal. for reasons attributable to the Principal. We have been informed that the Beneficiary may require the Principal to extend this guarantee if the performance certificate under the Contract has not been issued by the date 28 days prior to such expiry date. At any time. and The nature of such defect(s). We undertake to pay you such guaranteed amount upon receipt by us. This guarantee is fully transferable in favour of [financing institution] its successors and assignees.

any sum or sums not exceeding in total the amount of <Insert amount> (say: <Insert amount in words>) upon receipt by us of your demand in writing and your written statement stating: (a) That. published as number 458 by the International Chamber of Commerce. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 146 PAYMENT GUARANTEE BY EMPLOYER Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (defined as the Contractor). This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. except as stated above. (b) Any demand for payment must be accompanied by a copy of [list of documents evidencing entitlement to payment]. We have been informed that <Insert name of Employer> (whom the Contract defines as the Employer and who is hereinafter called the "Principal") is required to obtain a bank guarantee. . in respect of a payment due under the Contract. The authenticated demand and statement must be received by us at this office on or before <Insert date> (the date six months after the expected expiry of the Defects Notification Period for the Works) when this guarantee shall expire and shall be returned to us. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final.DOC . and The amount(s) which the Principal has failed to pay. the Principal has failed to make payment in full by the date fourteen days after the expiry of the period specified in the Contract as that within which such payment should have been made. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. we <Insert name of Bank> hereby irrevocably undertake to pay you. in respect of which the Principal has failed to make payment in full. At the request of the Principal. the Beneficiary/Contractor.Romania.

1 includes the recommended templates for the FIDIC red and yellow books for the contractual issues as outlined in Chapter 8 above: • • • Letter of Tender Appendix to Tender Contract Agreement. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 147 Appendix E .DOC .Templates for Contractual Issues E. bfc2-071_fidic user guide_250407_final.Romania.1 .FIDIC Red and Yellow Books This Appendix E. .

DOC . If this offer is accepted. we propose that the DAB be jointly appointed in accordance with Sub-Clause 20. shall constitute a binding contract between us. this paragraph may be deleted and replaced by: We do not accept your suggestions for the appointment of the DAB. Unless and until a formal Agreement is prepared and executed this Letter of Tender. Specification. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 148 LETTER OF TENDER NAME OF CONTRACT: <Insert Name of Contract> TO: <Insert name of the Employer> We have examined the Conditions of Contract. Bill of Quantities. as set out in Schedule <Insert no. . but these suggestions are not conditions of this offer. together with your written acceptance thereof.>. the attached Appendix and Addenda Nos. the other Schedules. Signature ________________ in the capacity of ____________________________________________ duly authorised to sign tenders for and on behalf of _________________________________________ Address: ___________________________________________________________________________ Date: ______________________________________________________________________________ * If the Tenderer does not accept. we will provide the specified Performance Security.* We agree to abide by this Tender until <Insert validity date> and it shall remain binding upon us and may be accepted at any time before that date.> for the execution of the above-named Works. We offer to execute and complete the Works and remedy any defects therein in conformity with this Tender which includes all these documents. We have included our suggestions in the Schedule. If these suggestions are not acceptable to you. but these suggestions are not conditions of this offer]. We acknowledge that the Appendix forms part of this Letter of Tender. or such other sum as may be determined in accordance with the Conditions of Contract. We accept your suggestions for the appointment of the DAB. [We have completed the Schedule by adding our suggestions for the other Member of the DAB. Drawings. for the sum of (in currencies of payment) ………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………. and complete the Works in accordance with the above-named documents within the Time for Completion. We understand that you are not bound to accept the lowest or any tender you may receive. <Insert Nos. bfc2-071_fidic user guide_250407_final.2 of the Conditions of Contract. commence the Works as soon as is reasonably practicable after the Commencement Date.Romania.

in the currencies and proportions in which the Contract Price is payable 15% of the final Contract Price 5% Maximum amount of delay damages Percentage for adjustment of Provisional Sums 8.3 1.7 1.5 8.2.1.5(b) Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.15(b) 08:00 .3.7 & 14.3 1. the following information must be completed before the Tender is submitted] Item Employer's name and address Contractor's name and address Engineer's name and address Time for Completion of the Works Defects Notification Period Electronic transmission systems Governing Law Ruling language Language for communications Time for access to the Site Amount of Performance Security Sub-Clause 1. in the currencies and proportions in which the Contract Price is payable 50% of the Accepted Contract Amount Maximum Amount of SubContracting Period for Notifying unforeseeable errors.2.1.> days 6.7 13.1.4 1.3 1.Romania.2 & 1.3 1.16:00 Monday to Friday 0.4 2.DOC .3 1.4 & 1.1 <Insert No.4 1. faults and defects in the Employer' Requirements Normal working hours Delay damages for the Works 4.1% of the final Contract Price per day.2 Data <Insert name of Employer> <To be filled by the Contractor> <Insert name of the Engineer> <Insert time> days 365 days Facsimile only Romanian law Romanian Romanian 21 days after Commencement Date 10 % of the Accepted Contract Amount.2.1.4 5.3. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 149 APPENDIX TO TENDER [Note: with the exception of the items for which the Employer's requirements have been inserted. .3 & 1.1 4.1.

Labour c .25 0.01 – 0.falling within the range specified in column (3). Sector: liquid fuels Aggregates A As above.25 Total Coefficient value (4) 0.Aggregates f . Cement C As above. Monthly Bulletin Table for: Average nominal salary.1 0. quarries and construction manufacturing. Sector: Outfits for mines. Sector: other non metallic mineral products manufacturing Energy E As above. Sector: cement manufacturing.Steel i . gas and hot water Equipment/Machinery M As above. for the national economy.01 – 0. Sector: metallic construction and components manufacturing.Equipment/Machinery h .25 0.01 – 0.25 0.25 0. Tables for indices of market price goods and services.00 The tenderer shall fill in column (4) with value of relevant coefficient .25 0.Bitumen d .01 – 0.Romania. transport and distribution of electricity. Tables for indices of prices for the industrial production. Sector of crude oil extraction Fuel F As above.Fuel e . Tables for indices of prices for the industrial production. Note: The tenderer shall quote in column (3) the value of the cost index at the Base Date. Gross average salary for the month in question Bitumen B As above. Tables for indices of prices for the industrial production.8 Cost index (2) Range of coefficient value (3) 0.Cement Note: 13. Sources of indices: Index for adjustment (1) Labour L Published source of Index (2) Base value Base Date (3) at National Institute of Statistics.01 – 0.01 – 0. Tables for indices of price for the industrial production.25 0. Tables for indices of prices for the industrial production. . Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.25 0. Steel S As above.01 – 0.01 – 0.1 L B F A E M S C 1.DOC . Construction Industry.fixed b . Tables for indices of prices for the industrial production.Energy g . Sector: production. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 150 Adjustment for Change in Cost Table of adjustment data Example Coefficients and description of related cost elements (1) a .

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 151 Total advance payment 14.2(a) Repayment amortisation of advance payment 14.000 EUR per occurrence with the number of occurrences unlimited Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.2 In accordance with the provisions of Government Decision No.2 Currencies and proportions 14. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.3 500.1 18.3 14.2(d) 14 days 21 days 18.1 18. 264/2003 as further modified and completed 10% of each certificate 5% of Accepted Contract Amount Number and timing of instalments 14.2 Start repayment of advance payment 14.5 applies: Plant and Materials for payment when shipped en route to the Site Minimum amount of Interim Payment Certificates Currency/currencies of payment Periods for submission of insurance: (a) evidence of insurance (b) relevant policies Maximum amount of deductibles for insurance of the Employer's risks Minimum amount of third party insurance 14. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.15 Romanian Leu (RON) 18. . 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.3 14.6 14.Romania.DOC . 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.5(b) [project requirements] [project requirements] 1% of Accepted Contract Amount 14.2(b) Percentage of retention Limit of Retention Money If Sub-Clause 14.

7) Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final. .2 70 days after the Commencement Date DAB of one member The President of FIDIC or a person appointed by the President 1 Romanian Bucharest 20.3.3 20.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 152 Date by which the DAB shall be appointed The DAB shall be Appointment (if not agreed) to be made by Number of arbitrators Language of arbitration Place of arbitration If there are Sections: Definition of Sections: Description (Sub-Clause 1.DOC .6 Time for Completion (Sub-Clause 1.1.6 20.6 20.3) Delay Damages (Sub-Clause 8.6) 20.1.5.2 20.

in conformity with the provisions of the Contract. The Employer hereby covenants to pay the Contractor. and <Insert name and country of Contractor> (hereinafter called "the Contractor") of the other part. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract hereinafter referred to. month and year>. .. The Letter of Tender dated <Insert date> The Addenda Nos. 2. The following documents shall be deemed to form and be read and construed as part of this Agreement: (a) (b) (c) (d) (e) (f) 3. In Witness whereof the parties hereto have caused this Agreement to be executed the day and SIGNED by: ______________________________ SIGNED by: ______________________________ for and on behalf of the Employer in the presence of Witness: Name: Address: Date: for and on behalf of the Contractor in the presence of ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ Witness: ________________________________ Name: ________________________________ Address: ________________________________ Date: bfc2-071_fidic user guide_250407_final. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 153 CONTRACT AGREEMENT This Agreement made the <Insert date. 4.Romania. the Contractor hereby covenants with the Employer to execute and complete the Works and remedy any defects therein. the Contract Price at the times and in the manner prescribed by the Contract.DOC . In consideration of the payments to be made by the Employer to the Contractor as hereinafter mentioned. and The completed Schedules. <Insert nos. if any> The Conditions of Contract The Specification The Drawings. Whereas the Employer desires that the Works known as <Insert project name> should be executed by the Contractor. and has accepted a Tender by the Contractor for the execution and completion of these Works and the remedying of any defects therein. in consideration of the execution and completion of the Works and the remedying of defects therein. Between <Insert name of Employer> of Romania (hereinafter called "the Employer") of the one part. The Employer and the Contractor agree as follows: 1.

Romania.FIDIC Green Book This Appendix E. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 154 E.2includes the recommended templates for the FIDIC green book for contractual issues as outlined in Chapter 8 above: • • Agreement Appendix.DOC .2. bfc2-071_fidic user guide_250407_final. .

This Agreement comes into effect on the date when the Contractor receives one original of this document signed by the Employer.. Signature: Name: ………………………………………. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 155 AGREEMENT The Employer is ………………………………………………………………………………………………………………………….. of ……………………………………………………………………………………………………………………………. Capacity: ……………………………………….…..) to which the following VAT amount will be added ………………………………………………………………………………………………………………… (in words) ………………………………………………………………………. the Employer shall pay the Contractor in accordance with the Contract..) or for such other sum as may be ascertained under the Contract. Date: ………………………………………………. The Contractor is …………………………………………………………………………………………………………………………. Signature: Name: ………………………………………. The Employer desires the execution of certain Works known as ……………………………………………………………………………………………………………………………. may be accepted by the Employer by signing and returning one original of this document to the Contractor before…………………… (date).DOC .……. ……………………………………….. Authorised to sign on behalf of (organization name): ………………………………………………………………. ………………………………………... Capacity: ………………………………………. This offer.. accepted the Contractor's offer and agrees that in consideration for the execution of the Works by the Contractor... ACCEPTANCE The Employer has by signing below. (in figures) (…………………………. Date: ………………………………………………. Authorised to sign on behalf of (organization name): ……………………………………………………………….. (in figures) (…………………………..……..…. excluding value added tax (VAT). The Contractor understands that the Employer is not bound to accept the lowest or any offer received for the Works. of …………………………………………………………………………………………………………………………….. . bfc2-071_fidic user guide_250407_final.Romania. OFFER The Contractor has examined the documents listed in the Appendix which forms part of this Agreement and offers to execute the Works in conformity with the Contract for the sum. of which the Contractor has submitted two signed originals. of ………………………………………………………………………………………………………………… (in words) ……………………………………………………………………….

1% per day up to a maximum of 10% of sum stated in the Agreement 365 days calculated from the dated stated in the notice under Sub-Clause 8.1 3...2 7.1 Document Identification Data bfc2-071_fidic user guide_250407_final.] Item Documents forming the Contract listed in the order of priority Document (delete if not applicable) (a) The Agreement………………… (b) Particular Conditions………….4 4. (f) The Contractor's tendered design (g) The bill of quantities…………… (h) …………………………………. (d) The Specification………………. 1.4 5.4 9..1 10% of the sum stated in the Agreement As per form attached Refer Specification Clause No. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 156 APPENDIX This Appendix forms part of the Agreement.9 1..2 Within 14 days of the Commencement Date 4.2 7.5 0.1 3. Time for Completion Law of the Contract Language Provision of Site Authorised Person Name and Address of Employers Representative (if known) Performance Security (if any) Amount Form Requirements for Contractor's design (if any) Programme Time for Submission Form of Programme Amount payable due to failure to complete Period for notifying defects Variation procedure Daywork rates Valuation of the Works Lump sum Price 11.Romania.1.1.4 1.DOC . …. the Contractor shall complete the following information before submitting his offer. (e) The Drawings…………………. (c) General Conditions……………. . [Note: with the exception of the items for which the Employer's requirements have been inserted. (i) ………………………………….1 ______________ (details) 10.5 2.1 & 11..2 _____ days Romanian Law Romanian Commencement Date Sub-Clause 1.2 ______________ (details) 7.

DOC . Unlimited number of events As per legislation in force Exclusions: 15.3 11.1 Amount: The sum stated in the Agreement plus 15% Full replacement cost 500 000 Euro per event. per annum Insurances Type of Cover: The Works.1 11.1 11.Romania.3 Place of Arbitration 15. Plants and Fees Contractor's Equipment Third Party injury to persons and damage to property Workers Other cover Arbitration Rules 14.1) Percentage of retention Currency of payment Rate of interest 11. .7 11.2 ______________ (details) ______________ (details) ______________ (details) ______________ (details) Materials __________ 80% Plant ______________ 90% As all Materials and Plant on Site are deemed to be the property of the Employer (SubClause 4.3 Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final. Materials.8 ___________________ 5% __________________ RON National Bank of Romania reference rate at Contract signature plus 3 percentage points.1 11.1 11. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 157 Lump sum price with schedules of rates Lump sum price with bill of quantities Remeasurement with tender bill of quantities Cost reimbursable Percentage of value of Materials and Plant 11.3 Rules of procedures of the International Commercial Arbitration Court at the Romanian Chamber of Commerce and Industry President of the International Commercial Arbitration Court at the Romanian Chamber of Commerce and Industry Bucharest Appointing Authority 15.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 158 Appendix F .DAB Agreements This Appendix F includes the recommended templates for the following DAB agreements as outlined in Chapter 8 above: • • Dispute Adjudication Agreement (one person DAB) Dispute Adjudication Agreement (three person DAB). . bfc2-071_fidic user guide_250407_final.DOC .Romania.

5. and the following provisions. In these provisions.DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 159 DISPUTE ADJUDICATION AGREEMENT [for a one-person DAB] Name and details of Contract Name and address of Employer Name and address of Contractor Name and address of Member _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ Whereas the Employer and the Contractor have entered into the Contract and desire jointly to appoint the Member to act as sole adjudicator who is also called the "DAB". 6. In accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. . This Dispute Adjudication Agreement shall be governed by the law of Romania. Contractor and Member jointly agree as follows: 1.Romania. The conditions of this Dispute Adjudication Agreement comprise the "General Conditions of Dispute Adjudication Agreement". words and expressions shall have the same meanings as are assigned to them in the General Conditions of Dispute Adjudication Agreement. The Employer. in consideration of the carrying out of these services. In consideration of these fees and other payments to be made by the Employer and the Contractor in accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. [Details of amendments to the General Conditions of Dispute Adjudication Agreement. if any. which include amendments and additions to the General Conditions of Dispute Adjudication Agreement. The Employer and the Contractor jointly and severally undertake to pay the Member. plus A daily fee of <Insert amount> per day. the Member undertakes to act as the DAB (as adjudicator) in accordance with this Dispute Adjudication Agreement. Rule _ is deleted and replaced by: ………] 3. bfc2-071_fidic user guide_250407_final. the Member shall be paid as follows: A retainer fee of <Insert amount> per calendar month. For example: In the procedural rules annexed to the General Conditions of Dispute Adjudication Agreement. which is appended to the General Conditions of the "Conditions of Contract for Construction" First Edition 1999 published by the Fédération Internationale des IngénieursConseils (FIDIC). 2. in accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. 4.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 160 SIGNED by: _________________ SIGNED by: _________________ SIGNED by: ______________ The Member in the presence of in the presence of _______________ _______________ _______________ _______________ for and on behalf of the Employer for and on behalf of the Contractor in the presence of in the presence of Witness: Name: Address: Date: _________________ _________________ _________________ _________________ Witness: _________________ Witness: Name: ____________________ Name: Address: _________________ Address: Date: _________________ Date: bfc2-071_fidic user guide_250407_final.Romania.DOC . .

as described in this Dispute Adjudication Agreement.Romania.DOC . if any. 6. 2. words and expressions shall have the same meanings as are assigned to them in the General Conditions of Dispute Adjudication Agreement. which is appended to the General Conditions of the "Conditions of Contract for Construction" First Edition 1999 published by the Fédération Internationale des IngénieursConseils (FIDIC). In these provisions. In accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. the Member undertakes to serve. Rule _ is deleted and replaced by: " … "] 3. For example: In the procedural rules annexed to the General Conditions of Dispute Adjudication Agreement. The Employer. the Member shall be paid as follows: A retainer fee of <Insert amount> per calendar month. [Details of amendments to the General Conditions of Dispute Adjudication Agreement. bfc2-071_fidic user guide_250407_final. The conditions of this Dispute Adjudication Agreement comprise the "General Conditions of Dispute Adjudication Agreement". Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 161 DISPUTE ADJUDICATION AGREEMENT [for each member of a three-person DAB] Name and details of Contract Name and address of Employer Name and address of Contractor Name and address of Member _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ Whereas the Employer and the Contractor have entered into the Contract and desire jointly to appoint the Member to act as one of the three persons who are jointly called the "DAB" [and desire the Member to act as chairman of the DAB]. 4. Contractor and Member jointly agree as follows: 1. as one of the three persons who are jointly to act as the DAB. . The Employer and the Contractor jointly and severally undertake to pay the Member. 5. in accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. in consideration of the carrying out of these services. and the following provisions. plus A daily fee of <Insert amount> per day. This Dispute Adjudication Agreement shall be governed by the law of Romania. In consideration of these fees and other payments to be made by the Employer and the Contractor in accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. which include amendments and additions to the General Conditions of Dispute Adjudication Agreement.

Romania. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 162 SIGNED by: _________________ SIGNED by: _________________ SIGNED by: ______________ The Member in the presence of in the presence of _______________ _______________ _______________ _______________ for and on behalf of the Employer for and on behalf of the Contractor in the presence of in the presence of Witness: Name: Address: Date: _________________ _________________ _________________ _________________ Witness: _________________ Witness: Name: ____________________ Name: Address: _________________ Address: Date: _________________ Date: bfc2-071_fidic user guide_250407_final.DOC .