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

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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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Templates for Guarantees Appendix E .DAB Agreements bfc2-071_fidic user guide_250407_final.PC's for the FIDIC Green Book Appendix D .PC's for the FIDIC Yellow Book Appendix C . . 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 .DOC .Romania.PC's for the FIDIC Red Book Appendix B .Templates for Contractual Issues Appendix F .

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.Romania. . Procurement. 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. 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. MPF Ministry of European Integration Ministry of Public Finance Ministry of Transport.DOC .

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 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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1st Edition 1999.Romania. 1st Edition 1999 Short Form of Contract. A one-day workshop with all the stakeholders took place on 6th December 2006 in Bucharest. 1st Edition 1999 Conditions of Contract for Plant and Design-Build. The Guide provides: • • • Clause-by-clause guidance for particular conditions of contract Templates for guarantees Templates for selected contractual documents. 1. The remaining parts of the standard tender documents shall not be covered by this Employer User Guide on Particular Conditions of Contract. and later presented for the Coordination Committee. The General Conditions of Contract will in due course be published in the Official Gazette of Romania for use on infrastructure projects in Romania. bfc2-071_fidic user guide_250407_final.DOC . 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. on behalf of the COWI Consortium. and approved by the MPF in January 2007 for the following FIDIC documents: • • • Conditions of Contract for Construction. 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.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. .

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

34/2006. 2.4 Particular Conditions The FIDIC Conditions of Contract define a careful balance between the rights and obligations of both parties. 2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 9 In particular. 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). maintain this balance and refrain from modifying those provisions that are seen as favouring the Contractor (such as Sub-Clause 2. to transform claims into disputes but should endeavour to find fair solutions in a reasonable time.Romania. 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. keeping only provisions that favour the Employer. with the assistance of the Engineer.DOC .5 Contract Management The FIDIC Conditions of Contract are favouring a modern type of contract management. the Employer and the Contractor. 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. • • bfc2-071_fidic user guide_250407_final.

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

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

sponsors. where the Contractor takes total responsibility for the design and construction of the infrastructure or other facility. construction and operation of the Project? Then the Concessionaire (the "Employer") probably requires to have a contract with the construction Contractor. of the Build-Operate-Transfer or similar type. i. 4. - - If this is what is wanted . Is it a privately Financed (or Public/Private Financed) Project. 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. 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. 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. where the Concessionaire takes the total responsibility for the financing. 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. - If this is what is wanted . bfc2-071_fidic user guide_250407_final. Procurement. 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.DOC . i.choose the FIDIC yellow book (P&DB). Construction) Contract. an EPC (Engineering.choose the FIDIC silver book (EPCT).Romania. 3.. without an "Engineer" being involved The Employer does not wish to be involved in the day-to-day progress of the work.e. provided the end result meets the performance criteria he has specified The parties concerned (e..g.e. .. - - If this is what is wanted . 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.choose the FIDIC silver book (EPCT).

e. road. the Employer or his architect may have done some or most of the design.g. rail link.choose the FIDIC silver book (EPCT).. as applicable.12 would be appropriate) The Employer wishes the Project to be organised on a strictly two party approach. 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. - If this is what is wanted . Is it an Infrastructure Project (e.DOC . or of a building development project. water or sewage treatment plant. bfc2-071_fidic user guide_250407_final.e. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 13 5. 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. . Is it a reconstruction or refurbishment or other type of Project? Check the above questions. 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. 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. the risk of unforeseen ground conditions should be borne by the Employer and P&DB 4. 6. transmission line. and make your choice accordingly. - - If this is what is wanted . i. i. but (with suitable modification regarding design responsibility) EPCT may be used. 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. without an "Engineer" being involved The Employer does not wish to be involved in the day-to-day progress of the work. In the case of a building.Romania. 7.choose the FIDIC silver book (EPCT). bridge. if underground works in uncertain or difficult ground conditions are likely. 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.

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

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

3.6 & 4.3.1.6.2 1.9 1.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.1 1.1.3. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.1.Romania.7 & 11. for Plant and Design-Build.4) Tests on Completion Taking-Over Certificate Defects Notification Period (as extended under 11.1 & 13.1. 1.4 & 14.3 & 8.2 1.1 1.1.1 1. In order to clarify the sequence of Contract activities. .3 1.7 1.1.1. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.7 & 14.1.5 & 10.3) Performance Certificate Final Payment Certificate Figure 4-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final. and for EPC/Turnkey Projects.4.3.3.DOC .1.3.4 & 9. 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).1 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 16 In addition.3.4.1.8 & 11.2 & 8.

.DOC . 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. Modifications to the Conditions are required to be fully adapted to the current Romanian legislation. the Engineer.2.the FIDIC Red Book .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. Under the usual arrangements for this type of contract. 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 .Romania.

4. Unless it is considered suitable. 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.Romania.DOC .” Where example wording is amended. bfc2-071_fidic user guide_250407_final. the Contract includes these completed Schedules. A Daywork Schedule may also be necessary. Before incorporating any example wording. which form part of the "Conditions of Contract for Construction" First Edition 1999 published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC). . and the Letter of Tender and Schedules for completion by the Tenderer. the following text can be used: “The Conditions of Contract comprise the "General Conditions". the Drawings.10.2. care must be taken to ensure that no ambiguity is created. they are not intended for use where most of the works are designed by the Contractor. either with the General Conditions or between the clauses in the Particular Conditions. For this type of contract. The guidance hereafter is intended to assist writers of Particular Conditions by giving options for various sub-clauses where appropriate. to cover minor works to be evaluated at cost. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 18 works. the Bill of Quantities will usually be the most important Schedule. In the preparation of the Conditions of Contract to be included in the tender documents for a contract. The tender documents issued to tenderers will consist of the Conditions of Contract. where works are valued by measurement. the Specification.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. it must be checked to ensure that it is wholly suitable for the particular circumstances. and the following "Particular Conditions". There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. 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. In addition. The General Conditions refer to any necessary data being contained in the Appendix to Tender or (for technical matters) in the Specification. which include amendments and additions to such General Conditions. and in all cases where other amendments or additions are made. and a review by suitably qualified lawyers may be advisable. each of the Tenderers should receive the data referred to in SubClause 4. For these Works. example wording should be amended before use. When the Employer accepts the Letter of Tender.

4. 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: . and include a questionnaire in the Schedules.1.7 Requirements for Contractor's Documents Phased possession of foundations. 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.1.20 Employer's Equipment and free-issue material .4. and/or specify the extent of other information which each Tenderer is to include with his Tender.DOC .4.6 .4 .1 . that this data is either prescribed by the Employer or inserted by the Tenderer.5 Provisional Sums.7. gas and other services available on the Site . The Employer may require other data from Tenderers.Romania.13. plant or means of access Contractor's designs Other contractors (and others) on the Site Setting-out points.19 Electricity.6 .6.1 Nominated Subcontractors Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion .1 .4.5. The example form in Appendix D2 provides a checklist of the data required. structures.18 Environmental constraints .8 . with the elements completed to the extent of his requirements.2 . based on this example form.7. 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.13 Permissions being obtained by the Employer . water.14 Third parties .2.4. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender.1.9. either in the General Conditions or in the example Appendix to Tender. The Employer should prepare the Appendix to Tender.1 .4. providing a convenient location for the data which is usually required.4. If each Tenderer is to produce a parent company guarantee and/or a tender security. 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. but there is no indication. lines and levels of reference . .

3 the definition of the Letter of Acceptance shall be deleted.4. and Article 94 of GD No. Such definition is set out in the mandatory particular conditions in Appendix A1.3.1 the definition of the "Base Date" may be changed to reflect a particular calendar date.3. 925/2006).4.3 .1. 273/1994).Definitions It will be necessary to amend some of the definitions.1 the definition of Contract shall reflect the deletion of Letter of Acceptance. In Sub-Clause 1. In Sub-Clause 1.1. In new Sub-Clause 1.1.4.9.3.1 . The following definitions should be modified: • In Sub-Clause 1.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance. In Sub-Clause 1. .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.20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Insurances Resolution of disputes.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.6 the "Foreign Currency" should be indicated.1.DOC .4. In Sub-Clause 1. 273/1994). Under Romanian public procurement regulations. The amendment of such definition is set out in the mandatory particular conditions in Appendix A1.1. 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.1.3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Red Book.1. Such definition is set out in the mandatory particular conditions in Appendix A1. with a clause-by-clause review. due to Romanian legislation in force.1 .18 . 4.1. 34/2006.1. In new Sub-Clause 1. 4.General Provisions Sub-Clause 1. • • • • • • 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 20 . the requirements of the Romanian procurement legislation and for clarification of the general conditions.1 Clause 1 .9 .3.

4.1.Romania. Even if the Contract clearly specifies the priority of documents. key equipment. • Sub-Clause 1. consistence of these with the tender documents should be checked and corrections.8 "Local Currency" should be defined as RON (Romanian Leu). 925/2006). provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost.2 may be varied.5 “Applicable Laws” should be defined as all Romanian legislation. as well as the fact that. A proposed amendment is included in the mandatory particular conditions in Appendix A1.4.Interpretation If the references to "profit" are to be more precisely specified.5. significant components of the Contractor’s proposal (key personnel.5 .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. Non-compliance might have serious consequences.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that. traffic management and/or environmental management plans). 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. in particular when evaluating claims.2 . New Sub-Clause 1. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present sub-clause.1. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications.1. laws.6.3 . the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No.4 . in case a conflict is subsequently found among the contract documents In Sub-Clause 1.6. Sub-Clause 1. Furthermore. (Article 95(2) of GD No. ordinances.6. . decisions. method of works. Sub-Clause 1. outline of quality assurance. if needed. Such provision is recommended so as to provide a clear reference during implementation.DOC . although applicable in many sub-clauses. 925/2006). In Sub-Clause 1.1. Sub-Clause 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 21 • • In Sub-Clause 1.” Sub-Clause 1. are not repeated in the General Conditions.Priority of Documents An order of precedence is usually necessary. if during the performance of the Contract.2 "Country" should be defined as Romania. should be introduced prior to the Contract signature.Law and Language No need for particular conditions related to this sub-clause.1.7 "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.” • • In Sub-Clause 1. the latter shall prevail. so as to ensure some enforceability to this proposal. in case a Contractor’s programme bfc2-071_fidic user guide_250407_final. such as: “In these Conditions.

11 .Romania. 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. provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract. traffic diversions.Contract Agreement The first sentence of Sub-Clause 1.Care and Supply of Documents No need for particular conditions related to this sub-clause.13 .6 . the particular regulations to be complied with by the Contractor. Sub-Clause 1. Sub-Clause 1. .12 . especially if the Contract signature or the Commencement Date occur with delays against initial time schedules Sub-Clause 1.9 . for example with: Except for the building permit to be provided by the Employer. An example form is included at the contractual templates in Appendix D2.Assignment If the Contract is concluded pursuant to a public procurement procedure. Sub-Clause 1. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions.7 .Compliance with Laws The Employers should specify.Employer's Use of Contractor's Documents No need for particular conditions related to this sub-clause. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor.DOC . Such permits include inter alia permits for site erection.Confidential Details No need for particular conditions related to this sub-clause. xxx” It is recommended to precise the scope of paragraph (b). 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.6 shall be deleted. when relevant. but are not limited to: Law No. resi- bfc2-071_fidic user guide_250407_final. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. Sub-Clause 1. in order to reflect the deletion of Letter of Acceptance.Delayed Drawings or Instructions No need for particular conditions related to this sub-clause.8 . it might be recommendable to state that any reference to calendar dates is indicative only. Sub-Clause 1. route permits.10 .Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause. Sub-Clause 1. at his own expenses. This should be done under the format: “Applicable Laws of particular relevance for the Contract include.

1 .The Employer Sub-Clause 2. These requirements.Joint and Several Liability For a major contract. 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. etc.Romania. permits to relocate public utilities. Sub-Clause 1. should be included in the Instructions to Tenderers. both early and thereafter exclusively. an additional sub-clause may be added.DOC .14 . permits for radio communication.3.Details to be Confidential If confidentiality is required. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 23 dence and work permits. Within 21 days of the signature of the Contract Agreement.” 4. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws. this should be clearly stated. An example form is annexed to this document in the templates of guarantees in Appendix D1. In case right of access is to be granted by stages. it may be desirable for each member to produce a parent company guarantee. The Contractor shall not publish. In case right of access and possession is not to be granted exclusively. The wording of such Sub-Clause could be as follows: “The Contractor shall treat the details of the Contract Agreement as private and confidential.Right of Access to the Site If right of access cannot be granted. detailed requirements for the joint venture may need to be specified. For example. Employers shall be particularly careful in relation with this sub-clause.3 [Programme]. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer. the Contractor shall submit to the Engineer the detailed planning of the Works. bfc2-071_fidic user guide_250407_final.2. which apply prior to the Contract becoming effective. details should be given. The Employer should scrutinise the joint venture agreement carefully. 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 Employer will wish the leader of the joint venture to be appointed at an early stage. New Sub-Clause 1. 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. .2 Clause 2 . and will not wish to be involved in a dispute between the members of a joint venture. providing a single point of contact thereafter.15 . permit to be published. and it may have to be approved by the project's financing institutions. with all particulars.

and aspects such as co-ordination and safety may need to be specified. as Employers are generally expected to have secured funding corresponding to the Accepted Contract Amount before the signature of the contract.7.Permits.Employer's Financial Arrangements It is possible. Sub-Clause 2. 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). Sub-Clause 2. bfc2-071_fidic user guide_250407_final. Licences or Approvals With reference to paragraph (a). for example for long term contracts. References to laws and standards should be included for formal reasons.3 . Sub-Clause 2. all relevant information.DOC . and particularly in the Specifications. However. the required land should be made available by the same Employer. 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). self-sufficient. it is good practice to include in the tender and then contract documents. it is recommended not to delete this Sub-Clause entirely. so as to facilitate access to the market.23. Therefore.Employer's Claims It has to be underlined that under Sub-Clause 14. The work to be carried out by these other contractors should be described in the tender documents. but the contract documents should be.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site.2 .4 . . 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 much as possible. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic. However. Sub-Clause 2. The Site does not include additional working areas that the Contractor might require. 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). to introduce a more precise definition of what will be considered as reasonable evidence. the Employer should state this and define the procedure that will be applied as well as the main constraint/parameters. as defined under Sub-Clause 4.Romania. in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works).5 . as contractors would be concerned by such cancellation.

. he may. in accordance with Sub-Clause 13. In addition to those limitations included in the mandatory particular conditions (Appendix A1) and deriving from the applicable Romanian legislation.Delegation by the Engineer No need for particular conditions related to this sub-clause. 10/1995.1: Specific approval of the Employer is required before instructing or approving any extension of the Time for Completion c) Sub-Clause 13.2 . (alternatively. or similar: “Notwithstanding the obligation. this obligation could be limited to major Sub-Contractors. in the opinion of the Engineer. as set out above.3. in respect of such instruction.1 . if.Engineer's Duties and Authority Any requirements for Employer's approval should be set out in the Particular Conditions. instruct the Contractor to execute all such work or to do all such things as may.4 and/or Sub-Clause 13. the example wording should be varied. This list should be extended or reduced as necessary.Romania. in the opinion of the Engineer. Attention of the Employers is drawn on the fact that such prior approval transfer responsibility from the Engineer to the Employer. However.3 Clause 3 . The Engineer shall determine an addition to the Contract Price. Such limitations should (i) be specifically detailed in the Particular Conditions and (ii) truly correspond to those mentioned in the Engineer’s contract. bfc2-071_fidic user guide_250407_final. for example: a) Sub-Clause 4. to obtain approval. that is those providing more than x% of the Accepted Contract Amount) b) Sub-Clause 8. It is clear that the Engineer has the role defined in very general terms in Article 21 paragraph d) of Law No. financial or otherwise. Employers might want to add. If the obligation to obtain the approval of the Employer only applies beyond certain limits.” Sub-Clause 3.1 and shall notify the Contractor accordingly. without relieving the Contractor of any of his duties and responsibilities under the Contract. Employers might wish to limit the authority of the Engineer. with a copy to the Employer.DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 25 4. in order to maintain control on some of the main features.4: Specific approval of the Employer is required before issuing consent for any Sub-Contractor. an emergency occurs affecting the safety of life or of the Works or of adjoining property. be necessary to abate or reduce the risk. It is also recommendable to add the following precisions.The Engineer Sub-Clause 3.1: Specific approval of the Employer is required before instructing or approving the omission of any work. The Contractor shall forthwith comply with any such instruction of the Engineer. the Conditions of Contract provide for several additional duties and authority.

Sub-Clause 3. Such meetings shall take place on a monthly basis. claims should be dealt with in a timely manner. the status of staffing. Time and place of these meetings shall be mutually agreed taking into consideration the subject to be discussed. determinations should not be unreasonably withheld or delayed. - In practice. 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.Instructions of the Engineer Attention is drawn on the following provision of this Sub-Clause: “The Contractor shall only take instructions from the Engineer. . the Engineer could issue an interim determination before issuing a final one.Determinations Attention is drawn on two issues: As per Sub-Clause 1. For example. under the Contract.Replacement of the Engineer No need for particular conditions related to this sub-clause. The agenda for such meetings shall cover a review of progress attained.Management Meetings It is recommendable to introduce reference to management meetings.3 . New Sub-Clause 3. and other pertinent topics.5 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 26 Sub-Clause 3. the Sub-Clause may require amendment. while waiting for additional supporting particulars.4 Clause 4 .” Therefore. within two working days from the meeting.3. the Contract may specify temporary arrangements for river diversion which have been designed by the Engineer. The Engineer shall record the business of management meetings and supply copies of the record to those attending the meeting and to the Employer.6 . Sub-Clause 3. In the record. payments. In these cases. in order to avoid delays. Determinations enter into force immediately. safety. engineering. Employers might consider introducing a time limit for issuing determinations. equipment.Romania.3. interface with other Contractors. the designer or other entities are not to issue instructions directly to the Contractor.4 . current and anticipated difficulties. there may be an item of Temporary Works for which the Contractor will not be fully responsible.The Contractor Sub-Clause 4. In general. material supply. claims for extras. taking ac- bfc2-071_fidic user guide_250407_final. responsibilities for any actions to be taken shall be in accordance with the Contract.Contractor's General Obligations Occasionally.1 .” 4.DOC . a review of schedules and plants for future activities. or from an assistant to whom the appropriate authority has been delegated under this Clause.

normally in the Specifications. under this Sub-Clause or otherwise. such proposal shall be deemed to have been made by the Contractor under Sub-Clause 13. 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. etc) and design checkers shall be obtained. Employers should specify: Whether and to what extent the Engineer’s consent on the name and qualifications of the designer (individuals.” bfc2-071_fidic user guide_250407_final. to what extent and in which time period and according to which sequence.” It is also recommended to state that: “Any approval or consent. . providing a better definition of the design procedure. design shall be submitted by the Contractor and approved or reviewed by the Engineer and / or the Employer. Employers might consider integrating additional provisions.DOC . Employers should consider using the conditions of contract for plant and design-build.Romania. 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. including the Engineer’s personnel) Whether. shall not relieve the Contractor from any obligation or responsibility. if the Contractor is to design a very significant part of the works. 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. etc) or to an increased level of detail (for example production of working drawings for the Permanent Works). In case the Contractor is required to provide design of part of the Works. In case the Contractor is to fully design a part of the Works.2 [Value Engineering]. relocation or protection of utilities. In both cases. this should be clearly stated. and of the extent of the Employer's responsibility. - - It is also recommendable to specify that any design produced by the Contractor shall be coordinated with existing designs produced by the Employer. similar to those of Clause 5 of the conditions of contract for plant and design-build. In case the Contractor’s design proposes substantial changes to the Employer’s design (including but not limited to changes of technical solutions). sub-contractor. as well as any review. 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. In case the Contractor is to provide refined design (working drawings). However. 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. This might also include definition of possible conflict of interest (with the Employer’s Personnel.

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. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 28 Sub-Clause 4.4). A recom- bfc2-071_fidic user guide_250407_final. 75008 Paris. The proposed amendments are included in the mandatory particular conditions in Appendix A1. Example forms are annexed to this document in the templates of guarantees in Appendix D1. which is based at 38 Cours Albert 1er. The value of the Performance Security is normally based on the Accepted Contract Amount.” To avoid difficulties in case of Joint Ventures. “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. the Tenderer may propose the Representative. it is recommended to include: “The Performance Security of a joint venture or consortium shall specify the name of the joint venture or consortium.Performance Security Sub-Clause 4. especially if the contract award seems likely to be delayed. 925/2006). If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1. 925/2006. shall promptly increase the value of the Performance Security by an equal percentage.3 .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. it should amend the second sentence of the second paragraph of Sub-Clause 4. In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions. a modification of the clause may be made in the particular conditions. it is recommendable to add the following text at the end of this Sub-Clause.” Sub-Clause 4. by more than ten (10%) percent. In order to avoid the risk of termination in case of failure by the Contractor to submit the Performance Guarantee. annexed to the Particular Conditions.” The acceptable form(s) of Performance Security should be included in the tender documents.Contractor's Representative If the Representative is known at the time of submission of the Tender. France). at the Engineer’s written request.2 . or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language. . it is recommended to request submission of the Performance Security at the signature of the Contract Agreement.Romania. the Contractor. it cannot exceed 10% of the Contract Price VAT excluded. They incorporate the Uniform Rules published by the International Chamber of Commerce (the "ICC").DOC . which also publishes guides to these Uniform Rules. As per the provisions of Article 89 paragraph (2) of GD No. and shall be in the form annexed to the Particular Conditions. For large projects with possibly important cost-overruns.

It is therefore possible to limit such requirement. 925/2006). Please also note that. as follows: At the end of point (b). which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96(1) of GD No. .” bfc2-071_fidic user guide_250407_final. The proposed modification is included in the mandatory particular conditions in Appendix A1. typically in the Appendix to Tender. Moreover. if parts of the Works are to be performed by Subcontractors. Sub-Clause 4. In order to ensure that a properly nominated Contractor’s Representative is available at all times. 925/2006).DOC . but also his revocation has to receive the prior consent of the Engineer. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). under Romanian public procurement regulations. this amount should be clearly stated.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. 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. It is also recommendable to make reference to the key qualifications required at the time of the Tender. according to the same Article 96(2) of GD No. 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. the Contractor must provide the Employer with the relevant subcontracts.4 with: “The Contractor shall not subcontract a larger value of the Works than the maximum specified in the Appendix to Tender. 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.Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. it is possible to specify (under Sub-Clause 14.4 .” Subject to the mandatory provisions of the Romanian public procurement regulations.Romania. However. Not only his nomination. The role of the Contractor’s Representative should be highlighted. 925/2006. Replace the first sentence of Sub-Clause 4. On a case-by-case basis. replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor. In such case. the Engineer’s prior consent for subcontractors might lead to excessive administration. at the signature of the Contract Agreement.

when relevant. to be applied to each section of road with different cross profile characteristics (2. 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).Safety Procedures If the Contractor is sharing occupation of the Site with others. etc.Assignment of Benefit of Subcontract No need for particular conditions related to this sub-clause. “Within 28 days of the signature of the Contract Agreement. lighting. to payment by bfc2-071_fidic user guide_250407_final.5 . In these circumstances. so that road users and riparian be protected. The traffic management plan shall indicate what measures will be implemented to manage the traffic while Works are underway. it is recommendable.Romania. fence.7 . 3 or 4 lanes). as approved by the Engineer. deviations. In case of default on the part of the Contractor in maintaining or implementing such traffic management plan.” Approval by the Engineer will be granted only further to the approval by the Road Police and by the Employer’s specialised services. for transparency reasons. in the form of a sketch accompanied by narrative details. etc. it may not be appropriate for him to provide some of the listed items. Sub-Clause 4. The traffic management plan shall be approved by the Engineer before the start of the Works on any part of the Site. subject to Sub-Clause 2. - Sub-Clause 4.5. . the Contractor shall submit to the Engineer a detailed traffic management plan. the Employer's obligations should be specified. 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.8 . the sequence of signs.DOC . for example. on any part of the Site. it is highly desirable that the Specifications describe the resulting constraints and procedures for co-ordination. Sub-Clause 4. It is recommended to include at the end of this Sub-Clause provisions referring to Traffic Management Plans and similar.6 . Sub-Clause 4. the Employer shall be entitled. Such criteria might include: Personal situation (no bankruptcy or similar proceedings. Such plan shall describe. no final sentence for professional misconduct.Setting Out No need for particular conditions related to this sub-clause.Co-operation In case several contractors are working simultaneously on or near the Site. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 30 Furthermore. to detail on which criteria consent will be given.

usually as part of the tender documents.12 and substituting by: “(b) Payment for any such Cost.13 . Sub-Clause 4.13. bfc2-071_fidic user guide_250407_final.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works.Quality Assurance The wording in the General Conditions imposes the requirement of a quality assurance system in accordance with details specified in the Contract.12 .” %) of which shall be inpercent of the Cost shall be Sub-Clause 4.Site Data Under this Sub-Clause. If this risk is to be shared between the parties. the Employer's obligations should be specified: see SubClause 4. In case a description or an outline of the quality assurance system was submitted as part of the Tender.Transport of Goods No need for particular conditions related to this sub-clause.10 . 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). Sub-Clause 4. Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions.DOC . Sub-Clause 4. further paragraphs may be added.14 .Unforeseeable Physical Conditions In the case of major sub-surface works. Sub-Clause 4.20.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2.Romania. Sub-Clause 4. this Sub-Clause should establish a link with the documents provided. subject to their being consistent with applicable laws. Sub-Clause 4.Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. Sub-Clause 4. .9 . per cent ( cluded in the Contract Price (the balance borne by the Contractor). 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.Avoidance of Interference No need for particular conditions related to this sub-clause.Right of Way and Facilities No need for particular conditions related to this sub-clause. If vesting of Contractor's Equipment is required.16 .17 .1 and Sub-Clause 4.15 . the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.12 may be amended by deleting sub-paragraph (b) of Sub-Clause 4.11 . Sub-Clause 4. Sub-Clause 4.

Romania. It is advisable to have those materials surveyed as part of the tender. Sub-Clause 4.5. 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. the Employer shall be entitled. 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. . to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. subject to Sub-Clause 2. bfc2-071_fidic user guide_250407_final. for use of Employer’s Equipment or of free issue materials.” Sub-Clause 4. 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. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements. while detailed information regarding the quality and quantity of free issue materials. the Specification should give details.DOC .Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements.18 . so as to define their condition and suitability for use. Furthermore. 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). 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. Sub-Clause 4.Electricity. as well as the time and place where they will be made available should be defined. With some types of facilities. further provisions may be necessary. In case Employers intend to use this Sub-Clause.Protection of the Environment For Works to be executed in particularly environmentally sensible areas.20 . It might be advisable to extend it to Equipment brought to the Contractor’s site installation.21 .19 . including locations and prices. Water and Gas If services are to be available for the Contractor to use. they should be very careful so as to ensure fair and transparent conditions of competition. the Specification should describe each item which the Employer will provide and/or operate and should specify all necessary details. 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.Employer's equipment and Free-Issue Material For this Sub-Clause to apply. in order to clarify aspects such as liability and insurance.” Sub-Clause 4.

Atmospheric conditions. it may not be appropriate for him to be responsible for its security. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties.Fossils No need for particular conditions related to this sub-clause. the unforeseen events. Such use and access shall be regulated as part of the Contractor’s traffic management plan. .DOC . such as completed Works. supplies accepted for incorporation into the Works. At the Engineer’s request. the work breaks due to adverse meteorological conditions. 2. as well as verbal orders given to the Contractor. the equipment out of order.Contractor's Operations on Site No need for particular conditions related to this sub-clause. Sub-Clause 4. 3. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. the sent samples.Romania. Sub-Clause 4. the tests completed. actual quantities. in a format agreed by the Engineer.Security of the Site If the Contractor is sharing occupation of the Site with others. In these circumstances. the number and the qualification of the personnel working on Site. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site.25 Works Diary It is recommendable to add a new Sub-Clause [Works Diary] (or integrate these provisions with the ones of Sub-Clause 4.21 [Progress Reports] with subsequent description in the Specifications): “The Contractor shall draw up a works diary for contemporary records. the supplied materials. New Sub-Clause 4. if need be. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor. For example. as separate documents. the working hours. in the case of a road rehabilitation project.” Sub-Clause 4. the materials incorporated into the works.24 . during the reported period. but can be signed. the Employer's obligations should be specified.22 .23 . 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. 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. bfc2-071_fidic user guide_250407_final. These attachments are part of the works diaries. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments.

the Contractor selects Subcontractors.Definition of "nominated Subcontractor" No need for particular conditions related to this sub-clause. Such inputs should be clearly defined. subject to any constraints specified in the Contract.2 indicate some of the problems which may have to be overcome. Clause 5 should be amended. it is advisable to introduce provisions similar with those of the conditions of contract for plant and design-build (Sub-Clause 5.6).Romania.2 . If the Employer anticipates that a Subcontractor is to be instructed under Clause 13 but is not to be a nominated Subcontractor. full details should be included in the tender documents.Objection to Nomination No need for particular conditions related to this sub-clause. Clause 5 provides for the particular situation whereby the Employer may select a Subcontractor.3.4.3 .As-Built Drawings In order to ensure full compliance with the requirements of Law No. the Contractor might be required to provide inputs to the Construction Book. New Sub-Clause 4. according to Sub-Clause 4. Employers might also consider the conclusion of a separate contract.Payments to nominated Subcontractors No need for particular conditions related to this sub-clause.4. Sub-Clause 5. Sub-Clause 5. 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”.5 Clause 5 . Before using this Clause.Nominated Sub-Contractors In most cases under Sub-Clause 4. 10/1995. Sub-Clause 5.26 . 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.4 . describing the particular circumstances. bfc2-071_fidic user guide_250407_final. although the Contractor remains responsible for any act or default of Subcontractors. signed by the Contractor’s Representative and countersigned by the Engineer or his representative. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. The sub-paragraphs of Sub-Clause 5. 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.Evidence of Payments No need for particular conditions related to this sub-clause. Sub-Clause 5.DOC . 4. If a nominated Subcontractor is to be required.1 . In case of disagreement on a subject noted in the works diary or attachments. Furthermore. .

etc.7 . this Sub-Clause may be deleted. Sub-Clause 6.Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause. Any replacement personnel shall be at least of equivalent qualification and experience.4 .8: bfc2-071_fidic user guide_250407_final.6 Clause 6 . except for those activities requiring continuous presence on Site.3.” Sub-Clause 6. his obligations to do so should be specified.Labour Laws According to the Procurement Guide. Sub-Clause 6.2 . Sub-Clause 6.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 35 4. 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. Sub-Clause 6. for example).3 .Staff and Labour Sub-Clause 6.1 . for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract. Sub-Clause 6. such as traffic management. 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. 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. In some cases.8 . . This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift.Romania. 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. chemicals.Contractor's Superintendence Add the following text at the end of Sub-Clause 6.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender.Facilities for Staff and Labour If the Employer will make some accommodation available.DOC . or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.5 .Persons in the Service of Employer No need for particular conditions related to this sub-clause.” Sub-Clause 6.6 .

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. 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. (c) Arms and Ammunition The Contractor shall not give. barter or otherwise dispose of any alcoholic liquor or drugs. Sub-Clause 6. gift. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel.Contractor's Personnel No need for particular conditions related to this sub-clause.8). the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial. advantage.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause. any arms or ammunition of any kind.1 . barter or otherwise dispose to any person. sale. 4.” Add the following paragraphs at the end of Sub-Clause 6.7 Clause 7 .Disorderly Conduct No need for particular conditions related to this sub-clause. give. The prohibition of “Hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4. or allow Contractor’s Personnel to do so. . or permit or allow importation. Sub-Clause 6.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.11 . Any amount paid shall be deducted from the Contractor's payment due. reward or bribe given. 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. (d) Illegal Payments Any commission. (b) Alcoholic Liquor or Drugs The Contractor shall not. gift.Romania. gratuity. sell.DOC . The Contractor must ensure that these personnel are provided with the required residence visas and work permits. bfc2-071_fidic user guide_250407_final.9 .Plant Materials and Workmanship Sub-Clause 7.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works.10 .” Sub-Clause 6. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. barter or disposal by Contractor’s Personnel. In the event of the death in the Country of any of these personnel or members of their families. in addition to any criminal liability which may be thereby incurred. import.3.

waste piles. References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date. and other standards specified in the Specifications. Sub-Clause 7.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment.Rejection No need for particular conditions related to this sub-clause.4 .Samples No need for particular conditions related to this sub-clause.Romania. debris and hazardous waste.DOC .Testing No need for particular conditions related to this sub-clause. construction and environmental Laws.6 . Sub-Clause 7. etc). the execution and the completed Works shall comply with the Country's technical standards. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 37 Sub-Clause 7. be those prevailing when the Works or Section are taken over by the Employer under Clause 10 [Employer's Taking Over].Ownership of Plant and Materials No need for particular conditions related to this sub-clause. In the event that: a) the Engineer determines that compliance is required. unless stated otherwise. the Contractor shall give notice to the Engineer and (if appropriate) submit proposals for compliance. building. Sub-Clause 7. levied in relation to the dumping of part or all of such materials.9 .8 .” New Sub-Clause 7.2 .Remedial Work No need for particular conditions related to this sub-clause. Laws applicable to the product being produced from the Works. . this should be made clear in the Specifications.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. applicable to the Works.Technical Standards and Regulations It is advisable to precise (as per the provisions of Sub-Clause 5. If changed or new applicable standards come into force in the Country after the Base Date. Sub-Clause 7.4 of the conditions of contract for plant and design-build): “The design.3 . Sub-Clause 7.7 .5 . in respect of the Works and each Section. or defined by the applicable Laws. and b) the proposals for compliance constitute a variation. Sub-Clause 7. the Contractor's Documents. bfc2-071_fidic user guide_250407_final. All these Laws shall. if any.

Commencement.8 Clause 8 .3.DOC . For example.5. In case Employers know that the Commencement Date for a part of the Works will be delayed.1 . as the Contract clearly describes how to handle this situation.1 and Sub-Clause 8. these stages should be defined as Sections. If the Works are to be taken-over in stages. 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. delays and Suspension Sub-Clause 8.7).1 is ensured. subject to Sub-Clause 2.Romania. there is no need to amend the Contract in any way.Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. It is highly recommended not to sign any contract before compliance with SubClause 2.4 . It is advisable to provide a time-limit for the submission of a revised programme. under its full responsibility. . 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.2 . the expiry of the Time for Completion does not relieve the Contractor from its obligation to perform the Works. the Contractor should not stop the Works if it is able to work on part of the Works. bfc2-071_fidic user guide_250407_final. in the Appendix to Tender. Failure to comply with this provision shall entitle the Employer.Time for Completion It has to be highlighted that.Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8.Extension of Time for Completion No need for particular conditions related to this sub-clause. the last sentence defines strong obligations for the Contractor. Sub-Clause 8.” 4. to payment of damages by the Contractor. 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].” Sub-Clause 8. On the other hand. The programme is primarily a document prepared by the Contractor.3 . In case the Works are not completed during the Time for Completion.1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. Sub-Clause 8.

Sub-Clause 8.Romania. is controlled through a milestones system.Delays Caused by Authorities No need for particular conditions related to this sub-clause.5 . This system includes five milestones for monitoring and evaluation of the progress of the Works. Such indicators however shall be defined based on the Contractor’s work programme. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 39 Sub-Clause 8.05% of the Accepted Contract Amount per day of delay. if and when the milestone is reached. the Engineer will define those four indicators.5.Delay Damages Under many legal systems. bfc2-071_fidic user guide_250407_final. Before using such system. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. 28 days after the Commencement Date: All Contractor key personnel are on Site.3 or revised under the third paragraph of Sub-Clause 8. Milestone 1 is defined hereafter. as submitted under the first paragraph of Sub-Clause 8. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay.7 . The Contractor work programme under the present Sub-Clause is submitted. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14.3. to withhold from the Interim Payment Certificates an amount equal to 0.15(b). If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. . The amount so withheld shall be paid to the Contractor. the Employer will be entitled. In case the Contractor incurs delays in the achievement of a milestone. Sub-Clause 8. In case no agreement is reached during such period. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. 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. It is therefore possible to include a “milestones system” along the example provided below. Compliance of the progress of the Works with the Contractor’s programme.DOC . Whenever a revised programme is being submitted. Milestone 1 is defined as the achievement of the following indicators. up to a maximum of 10% of the Accepted Contract Amount. If the Accepted Contract Amount is expressed in the Local Currency. the milestones have to be updated in accordance with the provisions above. (Other items).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. subject to Clause 2.6 .

11 .).DOC .Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price. New Sub-Clause 8. etc. but also (ii) introduce a bonus for acceleration.Incentives for Early Completion Incentives for early completion may be included in the tender documents (although Sub-Clause 13. Sub-Clause 8.Prolonged Suspension No need for particular conditions related to this sub-clause. It is also mentioned that these delay damages are the only damages due for such default (late completion).9 Clause 9 . Sub-Clause 8.Tests on Completion Sub-Clause 9. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time.3.1 . Sub-Clause 8. Sub-Clause 8. 4. It should also be noted that Employers might.Resumption of Work No need for particular conditions related to this sub-clause. For example. in duly justified cases. bfc2-071_fidic user guide_250407_final. the tests requirements may have to take account of the effect of some parts of the Works being incomplete.10 . waive their rights to delay damages. or suspend the actual payment of such damages by the Contractor until the completion of the Works. . If the Works are to be tested and taken-over in stages. This tends to restrict the constitution of “black lists” or other similar instruments. 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. 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. it might be envisaged to (i) introduce a higher amount of delay damages.Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause.12 .8 . For contracts where completion of the Works by a certain date is of paramount importance.9 . Sub-Clause 8. except in the event of termination by the Employer. but the Employer’s Claims procedure defined under Sub-Clause 2.Contractor's Obligations The Specification should describe the tests which the Contractor is to carry out before being entitled to a Taking-Over Certificate.2 refers to accelerated completion).13 .5 has to be followed.Consequences of Suspension No need for particular conditions related to this sub-clause.Romania.

.1 . Unless expressly forbidden by the Law.Interference with Tests on Completion No need for particular conditions related to this sub-clause.10 Clause 10 . it might be recommendable that the Engineer be nominated as representative of the Employer. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. Sub-Clause 9. Sub-Clause 10. Sub-Clause 9. 273/1994. and the Appendix to Tender should include a table.Failure to Pass Tests on Completion No need for particular conditions related to this sub-clause.DOC .Romania.Surfaces Requiring Reinstatement 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.Delayed Tests No need for particular conditions related to this sub-clause.4 . 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”. these stages should be defined as Sections. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 41 Sub-Clause 9.4 .3 . The Employer must nominate a taking-over commission (Article 7 of GD No. 273/1994.2 .Retesting No need for particular conditions related to this sub-clause. On the other hand. the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed. If the Works are to be taken-over in stages. The role of the Engineer in the taking-over commission is not defined. Sub-Clause 10. 4. in the Appendix to Tender.2 . Such regulations are reflected in the mandatory particular conditions in Appendix A1.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. Precise geographical definitions are advisable. 273/1994). so as to define the Time for Completion and delay damages: example of this table is shown in the Appendix D2.Employer's Taking-Over Sub-Clause 10.3. 925/2006) are reflected in the mandatory particular conditions in Appendix A1.3 . bfc2-071_fidic user guide_250407_final. Sub-Clause 10. GD No.

Costs of Remedying Defects No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final. The issue of the Performance Certificate represents the acceptance of the Works. the Contractor is liable for the latent defects of the Works during a 10 year period.Contractor to Search No need for particular conditions related to this sub-clause. if and to the extent that the Works. a Section or a significant part of the Works.Romania. Sub-Clause 11.DOC . .11 Clause 11 .4 . a major item of Plant or significant part of the Works (as the case may be. 10/1995).9 . Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix A1.” Sub-Clause 11.2 .Removal of Defective Work No need for particular conditions related to this sub-clause. a Section. However. Sub-Clause 11. Sub-Clause 11. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 42 4. Sub-Clause 11.Unfulfilled Obligations Under Romanian law.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.3.Further Tests No need for particular conditions related to this sub-clause.5 to an extension of the Defects Notification Period for the Works.3 . and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage. whilst his liability for defects affecting the structure subsists during the lifetime of the Works (Article 29 of Law No.7 .5 .8 .Right of Access No need for particular conditions related to this sub-clause.Failure to Remedy Defects No need for particular conditions related to this sub-clause.Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause. It is therefore normal that the final payment and final evaluation of the Contract Price comes after such acceptance. Such regulations are reflected in the mandatory particular conditions in Appendix A1.1 .6 . Sub-Clause 11. Sub-Clause 11. 273/1994.10 . Sub-Clause 11.Defects Liability Sub-Clause 11.Extension of Defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2. Sub-Clause 11. a Defects Notification Period shall not be extended by more than two years.

4. Sub-Clause 12. Sub-Clause 12.3 (a) (iii): replace “1%” with “2%”. b) The Contractor may initiate his own proposals under Sub-Clause 13. seeking prior agreement so as to minimise dispute.4 .1. such “satisfaction” should be properly documented.5%” In Sub-Clause 12.2. Furthermore.3 (a) (i): replace “10%” with “15%” In Sub-Clause 12.3 (a) (ii): replace “0. Sub-Clause 13. or c) The Engineer may request a proposal under Sub-Clause 13. without prior agreement as to feasibility or price. Sub-Clause 12.3.3.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.11 . 4. including any records for which the Contractor is to be responsible. From this point of view.Works to be Measured If any part of the Permanent Works is to be measured according to records of its construction.DOC . it is recommendable to define a schedule of payments.12 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.Measurement and Evaluation Sub-Clause 12.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.Omissions No need for particular conditions related to this sub-clause.3.Clearance of Site No need for particular conditions related to this sub-clause. 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”. variations do bfc2-071_fidic user guide_250407_final.2 . For “lump sum” items. which are intended to benefit both Parties.1 .3 .1 .01%” with “0. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 43 Sub-Clause 11.Evaluation It is advisable to include the following: In Sub-Clause 12.Romania. details should be specified in the tender documents.13 Clause 13 . .

Daywork No need for particular conditions related to this sub-clause. The last sentence of this Sub-Clause is of importance and introduces the principle of “non-retroactivity”. additional works are to be treated with considerable care.7 . Sub-Clause 13. 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. 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. 925/2006. including for the period required for its review and approval. variations have to be made or confirmed in writing. a percentage of 5% is being used. Cost or profit related to such period of review and approval. The Contractor shall not be entitled to any extension of time. calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender.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. Under the procurement legislation.Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause.Romania. as any instruction. . the conditions of Article 122(i) of GEO No.” Typically. 925/2006.3 . For any contract of duration of more than 12 months.6 . In particular. Sub-Clause 13. However. Sub-Clause 13. Sub-Clause 13. 34/2006 have to be met.Payment in Applicable Currencies No need for particular conditions related to this sub-clause. Sub-Clause 13. Such formula bfc2-071_fidic user guide_250407_final.4 .DOC .8 . Materials or services other than from a nominated Subcontractor. Sub-Clause 13. The possibility and principles of such adjustments are foreseen in Article 97 of GD No.” Sub-Clause 13.Provisional Sums It is recommended to modify point (b) (ii): “A sum for overhead charges and profit. it is strongly recommended to include a price adjustment formula.Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No.5 .Variation Procedure No need for particular conditions related to this sub-clause. The relevant wording is included in the mandatory particular conditions in Appendix A1.2 .

and any other matters relating to payment. without having to refer back to the Engineer for clarification or further information. 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. As a result. the Contractor can prepare any other details necessary. these Conditions would be inappropriate if significant design input by the Contractor is required.DOC . consideration should be given to the amount and timing of payment(s) to the Contractor. Thus the Contract Price shall not be subject to any adjustment due to inflation.Contract price and Payment Sub-Clause 14.1) is not precluded. . 4.14 Clause 14 .1. If the contract is intended to be at fixed rates. However. are unusual and only used when (for reasons of urgency or otherwise) the Employer is willing to accept the risks involved. it is sufficient not to fill in any “table of adjustment data”. and construct the Works. 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. rise or fall in the cost of labour. Cases provided by Clause 13. If the Contractor is to be paid actual Costs. 925/2006). typically by the National Institute of Statistics. A positive cash flow is clearly of benefit to the Contractor. Lump sum contracts may be suitable if the tender documents include details which are sufficiently complete for construction and for Variations to be unlikely. and tenderers will take account of the interim payment procedures when preparing their tenders.Clause 14. FIDIC's other bfc2-071_fidic user guide_250407_final.Romania. Clause 12 should be replaced by provisions describing the method of determining the Costs and Contract Price.3. In those cases. Further design by the Contractor (under sub-paragraphs (a) to (d) of Sub-Clause 4. Actually the multiplier is calculated for the works performed during month n. under which the actual Costs are determined and paid. However. in order to remove any ambiguity. Cost-plus contracts.” 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.1 . Sub-Clause 14.1(a) would not apply if payment is to be made on a lump sum basis. the provisions in the General Conditions which entitle the Contractor to payment of additional Costs will generally be of no effect. Additional Sub-Clauses may be required to cover any exceptions to the options set out in Sub.The Contract Price When writing the Particular Conditions.7 are not subject to this restriction. From the information supplied in the tender documents. materials or any other matters affecting the execution of the Contract.

Some objects might also be divided into sub-phases.DOC . 264/2003).4 . In case a Statement is not signed by the duly appointed Contractor’s Representative. The Specification should describe the procedures under which the Contractor submits these Documents for the Engineer to approve. In order to ensure that a duly appointed Contractor’s Representative will be present at all time. in addition to the documents and information contained in the Contractor’s progress report. In some cases. Unless this Sub-Clause is not to apply. Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. consideration should be given to the benefits of advance payment(s). The acceptable form(s) of guarantee should be included in the tender documents.3. For a lump sum contract. Sub-Clause 14. . the total advance payment (and the number of instalments if more than one) must be specified in the Appendix to Tender. annexed to the Particular Conditions: an example form is annexed in Appendix D1.Advance Payment When writing the Particular Conditions. such Statement shall be void and ineffective. and the Schedule would actually make reference to actual progress.2 . 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. additional Sub-Clause(s) should be added. If Sub-Clause 14. 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. 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. bfc2-071_fidic user guide_250407_final.1(b) is not to apply. 500/2002 and GD No. It is important to define such progress by reference to nonambiguous milestones. and any drawings required for construction may be specified as being Contractor's Documents.Romania. Sub-Clause 14. Such amendments are included in the mandatory particular conditions in Appendix A1. the tender documents should include a schedule of payments (see Sub-Clause 14.Application for Interim Payment Certificate It might be useful to better define which supporting documents would be required.” Sub-Clause 14.4).3 . this Sub-Clause would apply only for the conditions of contract for plant and design-build. 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.

through the provision of supporting particulars. Furthermore. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations. in case the Employer considers that an undue payment has been made. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2. The Engineer is due to substantiate its determination.7. The Contractor is to be notified of the value of the Interim Payment Certificate. It also has to be noted that. Although modifications regarding works already certified should remain the exception. but in case of arithmetical mistakes. interim. he can also include in his claim the related financing costs. Interim Payment Certificates are. It is however preferable that the “weight” of each sub-phase be defined in the tender documents. . Plant and Materials delivered to the Site become the property of the Employer.6 . Sub-Clause 14.2).DOC .5 .Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. such works are considered as finally approved only at the issue of the Performance Certificate.Romania. 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 16.7 .Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. - - Sub-Clause 14. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. 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. bfc2-071_fidic user guide_250407_final. Sub-Clause 14. by definition. 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. Such amendments are included in the mandatory particular conditions in Appendix A1. They do not imply acceptance of any work and might be modified afterwards. The scope of those provisions is to ensure that an adequate flow of cash is maintained.5. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix A1.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7. It has to be noted that the Employer is not entitled to modify any Payment Certificate.

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.9. In such case. in amounts and currencies equal to the payments to be made.DOC . add the following paragraphs at the end of Sub-Clause 14. when the Taking-Over Certificate has been issued for the Works. Sub-Clause 14. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. . it is useful to indicate that the central bank of the Country is the European Central Bank.12 . in a form and provided by an entity approved by the Employer.8 . Sub-Clause 14. after he obtains such guarantee.9 . in accordance with the estimates submitted under SubClause 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. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 48 Sub-Clause 14. bfc2-071_fidic user guide_250407_final. 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. increased by three and a half percentage points.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee.Delayed Payment When payments are made in Euro (or EUR). to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money. as specified for the Performance Security in Sub-Clause 4. Sub-Clause 14.2. Sub-Clause 14.4 [Schedule of Payments]. as published in the C series of the Official Journal of the European Communities.10 . in force on the first calendar day of the month in which the due date falls.Romania. The Contractor may gradually increase the amount of the bank guarantee. annexed to the Particular Conditions: an example form is annexed in Appendix D1.11 .Statement of Completion No need for particular conditions related to this sub-clause. while the Contractor shall be entitled. 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. 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." The acceptable form(s) of guarantee should be included in the tender documents.

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

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

1 . The acceptable form(s) of guarantee should be included in the tender documents. that termination of the Contract is a failure. In particular. for example. the last two sentences of the last paragraph of this Sub-Clause should be deleted.Termination by Employer Sub-Clause 15.15 Clause 15 . the Employer may postpone the termination notice. It may be appropriate for the Employer. less than 1% over the last 6 months will be considered as “abandoning” of the works. both for the Contractor and for the Employer. 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 51 14.2 . Moreover. Employers would often lose considerable time (including valuation. 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. “Rushing into termination” would in any case be a mistake. In such cases.4).7). It should be noted. Therefore. etc. the notice period should be used to initiate negotiations and remedy measures. Since the Contractor would then have to arrange his own financing to cover the shortfall between the payments and his outgoings. it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8. termination under this Sub-Clause should be used as a last resort. organisation of a new tender. in the first place. with the Instructions to Tenderers specifying the criteria with which the Tenderer should comply. say.DOC .Romania. annexed to the Particular Conditions: an example form is annexed in Appendix D2. Such amendments are included in the mandatory particular conditions in Appendix A1. In real terms. when preparing the tender documents. so as to allow such negotiations to develop. In case this period goes beyond the Time for Completion. 4. bfc2-071_fidic user guide_250407_final. Sub-Clause 15. he (and his financing bank) would probably require some form of security. guaranteeing payment when due. unless the later has an enforceable title allowing him to do so. .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. 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.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 as.3. Employers might want to bring a clearer definition of the provisions of letter (b). 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). by defining that a minimum (very low) rate of progress.

Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.Romania. under the provisions of the Contract. Sub-Clause 16. A Contractor should be aware before giving a notice of termination.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. .2 . 3 months).16 Clause 16 .3. 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 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. in accordance with the provisions of Sub-Clause 14.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.Suspension and Termination by Contractor Sub-Clause 16. Obviously.1 .4 . Sub-Clause 15. Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix A1. 4. depending on the complexity of the project (for example. the advance payment guarantee might be called in by the Employer). payments on termination will usually occur in a difficult situation of conflict.4 .Payment on Termination After termination. Employers should obviously avoid putting themselves in one of the situations described.3 .” Sub-Clause 15.5 . the advance payment shall be repaid immediately by the Contractor (if not. Sub-Clause 15. Sub-Clause 16.DOC .3 . it cannot be resumed and in most cases a new tender procedure would be necessary. Sub-Clause 16. It might be appropriate to define a time limit for the Contractor to submit its request.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.2. as he may consider proper. that once the Contract is terminated.Payment after Termination No need for particular conditions related to this sub-clause.Termination by Contractor See comments under Sub-Clause 15.2. up to the completion of the respective Works.

DOC . Sub-Clause 17. arising from any cause whatsoever other than those for which the Employer is liable. at his own cost. 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.Romania.Contractor's Care of the Works No need for particular conditions related to this sub-clause.2 .4 .17 Clause 17 . 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. rectify the Loss or damage to the satisfaction of the Engineer.5 .3 .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 17.6 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 53 4. Sub-Clause 17. an additional sub-clause may be added: “The Contractor shall take full responsibility for the care of the items detailed below.” bfc2-071_fidic user guide_250407_final.Consequences of Employer's Risks No need for particular conditions related to this sub-clause. . Sub-Clause 17. New Sub-Clause 17. under road or rail rehabilitation projects. Sub-Clause 17. the sum referred to in the penultimate sentence shall be ……. For example.3.1 .Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project.7 If the Contractor is to occupy the Employer's facilities temporarily.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause.Indemnities No need for particular conditions related to this sub-clause.Risk and responsibility Sub-Clause 17. 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. Sub-Clause 17. from the respective dates of use or occupation by the Contractor.". the Contractor shall.6. 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.

Romania. 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).Force Majeure Sub-Clause 19.18 Clause 18 .3. The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18. 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.2 (for Contractor's Equipment. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. If the Employer is to arrange any of the insurances under this Clause.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).DOC . who is to be the Contractor unless otherwise stated in the Particular Conditions. . The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. preferably in the form of a copy of each policy.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause. which is replaced by the Contract Agreement.3. Sub-Clause 18. because the Employer may not know the amount or value of these items of equipment. bfc2-071_fidic user guide_250407_final.Insurance Sub-Clause 18. 4.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance.3 . despite a frequent opinion.2 . Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer.1 .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. which includes Subcontractor's equipment). Force Majeure can be proven by other means.4 . Furthermore. exceptions and deductibles. The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party". Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 54 4.19 Clause 19 . including the conditions. Sub-Clause 18.2 . such certificate would be irrelevant for Force Majeure occurring in a foreign country.” Sub-Clause 18. limits. Sub-Clause 19.Notice of Force Majeure It has to be noted that.1 .

have not advised on the merits and have not prepared considered determinations. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. Most DAB decisions have allowed a number of claims rejected for late notice to proceed. Payment and Release No need for particular conditions related to this sub-clause. Accordingly.Optional termination. acting in all good faith. Sub-Clause 19. in turn.DOC . The Engineer shall.5 . this is not the way that many DABs are interpreting the clause. Sub-Clause 19.Duty to Minimise Delay No need for particular conditions related to this sub-clause. through the Engineer.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause. not to bar meritorious claims.Consequences of Force Majeure No need for particular conditions related to this sub-clause. 4.3.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. 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. Guid- bfc2-071_fidic user guide_250407_final.Romania. that something had recently occurred for which an entitlement for time and/or additional payment might be sought. Sub-Clause 19.6 .4 .7 . . 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. Disputes and Arbitration Sub-Clause 20. is put on alert.1 .2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". Although Sub-Clause 20.20 Clause 20 . have not ensured that the necessary records are kept. Sub-Clause 19. Sub-Clause 19. The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers. respond within 42 days after receiving a claim or further particulars.1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration.1 is to prevent ambushes and minimise delays to projects. The important matter is that the Employer. within four weeks. 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. 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. It is advisable to add at the end of first paragraph of Sub-Clause 19.3 .Claims.

Where the Engineer considers that the 28-day notice provision of Clause 20. Consider items (vi) and (vii). ix. One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. to reject the claim without consideration of the merits? vi. If the answer to item (i) is that the event is not capable of being a valid claim. Is the event one which.1: it has been argued and accepted that if the Contractor has not in fact considered himself entitled to claim. viii. 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. whether at meetings or otherwise. 2. would the cost or delay claimed have been reduced if earlier notice had been given? bfc2-071_fidic user guide_250407_final. If there appears to have been a failure to notify. If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. iv. v. 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. other than by way of formal notice? Is it fair and reasonable. iii. has there been prejudice to the Employer or benefit to the Contractor? In other words. good project administration and fairness under the contracts. DABs are taking notice of the first sentence of Clause 20. If the answer to item (i) is yes. he should consider the following before rejecting the claim: i. about the problem. then the obligation to notify has not arisen. then rejection for lack of notice should be considered. If the answer to any of these items is yes. 4. 5. the Engineer should consider rejecting the claim on its lack of valid basis. vii. 1.Romania. leaving aside Clause 20.DOC . . ii. taking into account all of the above. Some events might require some investigation and advice before a contractor decides that he has a claim. 3. Engineers should consider items (ii) to (iv). consider item (v). Next.1 may not have been complied with. then DABs are likely to be sympathetic to the Contractor. 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.

7. Extent of activities off-site. 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. FIDIC is prepared to perform this role. Employers should choose between these possibilities with regard to: Contract complexity. Unless the Engineer (although appointed by the Employer) is to make the prearbitral decisions under this Clause 20. if this authority has been delegated in accordance with the example wording in the Appendix to Tender. Finally.5 or in time and deducted from any cost or time determined. It has to be noted that appointment of the DAB might not be opportune for all contracts. consider point (ix) and. the Parties' confidence in the agreed individual(s) who will serve on the DAB.Romania.3. Consider item (viii). Sub-Clause 20. for the individual(s) to be agreed before the Contract Agreement is concluded. but not essential. if the individual is selected under SubClause 20. or c) Whether the claim should be dealt with on its merits.2 . the selection is made by a wholly impartial entity. it is essential that candidates for this position are not imposed by either Party on the other Party. amongst other things. whilst not discouraging the Parties from reaching agreement on disputes as the works proceed. 8. . The adjudication procedure depends for its success on. setting out its responses to the above questions. whether any prejudice to the Employer could be evaluated in financial terms under Clause 2.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. Advise whether: a) The claim may reasonably be rejected for lack of notice. 925/2006). There are two basic possibilities: Appointment of a DAB from the beginning of the Contract Pre-arbitral decision by the Engineer. allow them to refer contentious matters to an impartial dispute adjudication board. It is preferable. DABs do not insist that the notice is formal. the Engineer should report to the Employer on its proposed action. the Contract should include the provisions under Clause 20 which. Promptly upon receipt of a claim and before rejecting a claim on notice grounds. in accordance with the alternative option described below. in particular. Contract size. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 57 6. Therefore. then this is likely to be treated as adequate notice. and that. If the issue is raised at meetings or in general correspondence in due time.DOC . and for the DAB to visit the Site on a regular bfc2-071_fidic user guide_250407_final.

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

although the Engineer generally acts for the Employer as specified in Sub-Clause 3. Sub-Clause 20. the Employer's notice under SubClause 3. the International Commercial Arbitral Court near the Romanian Chamber bfc2-071_fidic user guide_250407_final. for their success. In the event that the Employer intends to replace the Engineer. conciliation. language and procedure of arbitration. Employers should carefully check the coherence between the arbitral institution. . to delete the first sentence of the first paragraph of SubClause 20.Arbitration It shall be emphasised that the presence of an arbitral clause excludes.3 should be deleted and Sub-Clause 20.” Sub-Clause 20. neither Party should seek to impose the procedure on the other Party. 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. mediation.” Furthermore. Therefore.Obtaining Dispute Adjudication Board's Decision Again. the use of regular courts. It is recommended. it should be noted that timely treatment of dispute is of the essence.4) is English.1(a). Alternatively. including without limitation any dispute regarding its breach.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. acting fairly.4 .4 shall include detailed proposals for the appointment of a replacement DAB. impartially and at the cost of the Employer. by direct negotiation. If this alternative is considered appropriate. termination or invalidity.Romania. For example. any dispute arising out of or in connection with the Contract. the Engineer will make these pre-arbitral decisions impartially and the Employer must not prejudice this impartiality. the location. without the need for arbitration: for example. This alternative. 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. The Employer should recognise that. Clause 20. Amicable settlement procedures often depend. Sub-Clauses 20. which has been the Engineer's traditional role in common law countries. the Engineer may make these pre-arbitral decisions.4.4 and substituting with: “The Engineer shall act as the DAB in accordance with this Sub-Clause 20.2 and 20. or other forms of alternative dispute resolution. shall be finally settled by international arbitration.4 should be modified accordingly by deleting the second paragraph of Sub-Clause 20.5 .DOC .Amicable Settlement The provisions of this Sub-Clause are intended to encourage the parties to settle a dispute amicably. by including an agreed list of potential members in the Contract: in a Schedule. for the fields covered by arbitration. so as to clarify this aspect. especially if the members are not to be appointed at the commencement of the Contract. on confidentiality and on both Parties' acceptance of the procedure.6 .3 . Sub-Clause 20.6 and replace by the following sentence: “Unless settled amicably or through a DAB decision.

The Rules of Arbitration of the International Chamber of Commerce (the "ICC". No satisfactory standard form of multi-party arbitration clause for international use has yet been developed.7 . Employers are advised to link with the relevant arbitral institutions before defining such conditions. an institution to appoint the arbitrators or to administer the arbitration. 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. Sub-Clause 20. In international contracts. unless the institution is named (and their role specified) in the arbitration rules. If the UNCITRAL (or other non-ICC) arbitration rules are preferred. 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. before so designating an institution in the Appendix to Tender. and usually need to be prepared on a case-by-case basis. it is desirable that the place of arbitration be situated in a country other than that of the Employer or Contractor. and may be more acceptable to the Parties. that it is prepared to appoint or administer. thereby creating a multi-party arbitration. In the absence of specific stipulations as to the number of arbitrators and the place of arbitration. . in the Appendix to Tender.Romania.Failure to Comply with Dispute Adjudication Board Decision No need for particular conditions related to this sub-clause. 75008 Paris. New Clause 21 Checks and Audits by Romanian and Community Bodies For contracts funded under European Commission funds. While this may be feasible. Sub-Clause 20.DOC . multi.8 . For major projects tendered internationally. 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). The Contract should include provisions for the resolution by international arbitration of any disputes which are not resolved amicably. international commercial arbitration has numerous advantages over litigation in national courts. it is recommended to add a new Clause 21: bfc2-071_fidic user guide_250407_final. which is based at 38 Cours Albert 1er.party arbitration clauses require skilful drafting. 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. or both. that would facilitate the enforcement of an arbitral award in the states of the Parties. it may be necessary to designate.Expiry of Dispute Adjudication Board's Appointment No need for particular conditions related to this sub-clause. France) are frequently included in international contracts. It may also be necessary to ensure.

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. To this end. on the basis of supporting documents for the accounts. whenever necessary. Such amendments should be included in Clause 2 of the Dispute Adjudication Agreements. to any sub-contractor or any other party benefiting from European Commission funds.” Clause 6 Payment Replace letter (c) of first paragraph by: “a fixed per diem for expenses incurred in connection with the Member's duties. subsistence costs.DOC . local travel and other miscellaneous costs” bfc2-071_fidic user guide_250407_final. Documents must be easily accessible and filed so as to facilitate their examination and the Contractor must inform the Employer of their precise location. if necessary. 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. These inspections may take place up to 7 years after the final payment. 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. the European Anti-Fraud Office and the European Court of Auditors to verify.Romania. including its information systems.” 4. These are: Clause 3 Warranties – second paragraph – letter (c) There might be a lack of qualified DABs fluent in the Romanian language. by a qualified translator. In case the language for communications defined in the Contract is Romanian. checks and verification will be equally applicable. the implementation of the project and conduct a full audit. 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. Furthermore. the Romanian AntiFraud Office.4 Dispute Adjudication Agreement It is advisable to include a number of amendments to the General Conditions of Dispute Adjudication Agreement. under the same conditions and according to the same rules as those set out in this Clause. Access given to agents of the said bodies shall be on the basis of confidentiality with respect to third parties. it could be specified: “fluent in the language for communications defined in the Contract or assisted. . for each overnight away from the Member’s home and covering the cost of hotel. accounting documents and any other document relevant to the financing of the project. the European Commission. The Contractor guarantees that the rights of the bodies mentioned under the first paragraph of the present Clause to carry out audits. 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.

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

3 DAB 20.1.3 1.2(a) and (b) 14.8 14.4 1.4 1.Romania.1.2 & 20.5(b) 13. 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 1.1.1 4.6 14.3.3.15 18. .2.15(b) 8.4 2.7 1.2 14.7 13.5(b) and (c) 14.3 & 1.3 bfc2-071_fidic user guide_250407_final.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix D2.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 63 4.2(d) 18.1.2.2 6.1 18.4 & 1.3 1.3 14.2.7 & 14.DOC .3 1.3 1.5 8.2 & 1.3 1.

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

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

4.7 & 11.1.Romania.9 1.4.4 & 14.8 & 11.3) Performance Certificate Final Payment Certificate Figure 5-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.3.4) Tests on Completion Taking-Over Certificate Tests after Completion (if any) Defects Notification Period (as extended under 11.3 1.1.2 & 8.1.3.3.1 & 13.3.2 1.1.7 1.DOC .1.1.6 & 4.1.3. 1.6 & 12.1. and for EPC/Turnkey Projects. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.4 & 9.3 & 8.1 1. In order to clarify the sequence of Contract activities. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 66 In addition.6.1 1.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8. for Plant and Design-Build.3.7 & 14.1.3.1 1. 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).1 1.1.1.5 & 10.2 1.1 1. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.3. .

and for the design and execution of building or engineering works.Romania. where tenders are invited on an international basis. Under the usual arrangements for these types of contract. bfc2-071_fidic user guide_250407_final.2. Modifications to the Conditions are required to be fully adapted to the current Romanian legislation.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. . manufacture. in accordance with the Employer's requirements.have been prepared by the FIDIC and are recommended for general use for the procurement (including design. delivery and installation) of plant. of plant and/or building and/or engineering works.the FIDIC Yellow Book . the Contractor is responsible for the design and provision.DOC .

2. Where example wording is amended. 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.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. and may require the Contractor to supply certain items.1 4. . the Employer's Requirements. including functional requirements.1 Number of copies of Contractor's Documents Permissions being obtained by the Employer Phased possession of foundations. and a review by suitably-qualified lawyers may be advisable.10. such as consumables which could be listed in a Schedule.” There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. plant or means of access Intended purposes for which the Works are required bfc2-071_fidic user guide_250407_final. care must be taken to ensure that no ambiguity is created.8 1. 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. The Employer's Requirements The Employer's Requirements should specify the particular requirements for the completed Works. The matters referred to in some or all of the following Sub-Clauses might be included: 1. quality and scope. each of the Tenderers should receive the data referred to in SubClause 4. 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). 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. and in all cases where other amendments or additions are made. Before incorporating any example wording. In addition. example wording should be amended before use. and the following "Particular Conditions". which include amendments and additions to such General Conditions. and the Letter of Tender and Schedules for completion by the Tenderer. 5. In the preparation of the Conditions of Contract to be included in the tender documents for a contract.DOC .Romania. the following text can be used: “The Conditions of Contract comprise the "General Conditions". either with the General Conditions or between the clauses in the Particular Conditions. The Contract will then include the accepted Proposal and completed Schedules. Unless it is considered suitable. structures. The tender documents issued to tenderers will consist of the Conditions of Contract.13 2.

4 9. lines and levels of reference Third parties Environmental constraints Electricity. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 69 4.5 Other contractors (and others) on the Site Setting-out points.5 5.1 5.18 4.19 4. The Instructions may include matters referred to in some or all of the following Sub-Clauses: 4.Romania.4 12.2 5. 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 E1.4 5.1 9. the scope of which should be de- bfc2-071_fidic user guide_250407_final.1 12. The example form in Appendix F2 provides a checklist of the data required. The Employer may require other data from Tenderers. and/or specify the extent of other information which each Tenderer is to include with his Tender. gas and other services available on the Site Employer's Equipment and free-issue material Criteria for design personnel Contractor's Documents required. fixtures. If each Tenderer is to produce a parent company guarantee and/or a tender security.6 5.6 7. The Employer should prepare the Appendix to Tender.7 4.7 6.2 7.1 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. but there is no indication. either in the General Conditions or in the example Appendix to Tender.14 4. . construction. providing a convenient location for the data which is usually required. that this data is either prescribed by the Employer or inserted by the Tenderer.4 13.6 4.3 4. based on this example form. with the elements completed to the extent of his requirements.DOC .20 5. and include a questionnaire in the Schedules. 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.9 9. 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. fittings and equipment.1 12. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender. water.

ready for operation. • • • bfc2-071_fidic user guide_250407_final.1 Clause 1 . or for some years' operation. In new Sub-Clause 1. typically by the Employer.DOC . Under Romanian public procurement regulations. Note that there can be no description in the documents which will constitute the Contract. Such definition is set out in the mandatory particular conditions in Appendix B1.3. The extent of detail required should be described in the Instructions to Tenderers. such as the extent to which the Works are to be fully equipped. The following definitions should be modified: • In Sub-Clause 1. they have to undertake studies or carry out design work of a conceptual nature. either for a few months' trial operation under Sub-Clause 9. In Sub-Clause 1. 5. 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. Article 94 of GD No. Consideration may be given to offering some remuneration to tenderers if.1.1. The amendment of such definition is set out in the mandatory particular conditions in Appendix B1. 273/1994). . in order to provide a responsive Tender. In addition. In Sub-Clause 1.1.3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Yellow Book. 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.3. to incur great expense in preparation of tender designs.1.Definitions It will be necessary to amend some of the definitions. thought should be given as to the extent of detail which tenderers can realistically be expected to prepare and include in their tenders. with spare parts and consumables provided for operation (for a specified period). 34/2006.1.1(c).1 the definition of the "Base Date" may be changed to reflect a particular calendar date. When preparing the Instructions to Tenderers.3 the definition of Letter of Acceptance shall be deleted. Full consideration should be given to detailed requirements. in the face of intense competition. 925/2006). due to Romanian legislation in force. Understandably.Romania.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. the tenderers are often reluctant. with a clause-by-clause review.1.1 .3. the Contractor may be required to operate the Works.General Provisions Sub-Clause 1. the requirements of the Romanian procurement legislation and for clarification of the general conditions.1 the definition of Contract shall reflect the deletion of Letter of Acceptance. 5.

273/1994). ordinances. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present Sub-Clause.6 the "Foreign Currency" should be indicated.6.Romania. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. Sub-Clause 1.DOC .3. “In these Conditions. Such provision is recommended so as to provide a clear reference during implementation. in particular when evaluating claims.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 71 • In new Sub-Clause 1.1.6. 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. Sub-Clause 1.6.1. Sub-Clause 1. decisions. A proposed amendment is included in the mandatory particular conditions in Appendix B1.3 . 925/2006).4.5 .5 “Applicable Laws” should be defined as all Romanian legislation. if during the performance of the Contract.Interpretation If the references to "profit" are to be more precisely specified. Sub-Clause 1.7 "Site".5. laws. Non-compliance might have serious consequences. In Sub-Clause 1.1. • • • • • • Sub-Clause 1. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications. significant components of the Con- bfc2-071_fidic user guide_250407_final. 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.Priority of Documents An order of precedence is usually necessary. In Sub-Clause 1.” Sub-Clause 1.4.2 may be varied. although applicable in many sub-clauses.Law and Language No need for particular conditions related to this sub-clause. In Sub-Clause 1. . the latter shall prevail.1.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance. are not repeated in the General Conditions.1.4.11 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. Such definition is set out in the mandatory particular conditions in Appendix B1. In Sub-Clause 1.4 . the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No.1. (Article 95(2) of GD No.2 "Country" should be defined as Romania.2 .8 "Local Currency" should be defined as RON (Romanian Leu).1. in case a conflict is subsequently found among the contract documents In Sub-Clause 1. as well as the fact that. 925/2006).

method of works. if needed. key equipment.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.6 shall be deleted. so as to ensure some enforceability to this proposal. An example form is included at the contractual templates in Appendix E2. provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract.Contract Agreement The first sentence of Sub-Clause 1.7 . Sub-Clause 1. traffic management and/or environmental management plans).6 . Sub-Clause 1. Furthermore. in case a Contractor’s programme is included in the Contract documents. Sub-Clause 1. or Operation of the Works is subject to a process license. should be introduced prior to the Contract signature. The provisions should take account of the Applicable Laws.Care and Supply of 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.Delayed Drawings or Instructions No need for particular conditions related to this sub-clause. 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. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works.8 . Sub-Clause 1. 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. 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.Assignment If the Contract is concluded pursuant to a public procurement procedure. - - Additional provisions may be required. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue. consistence of these with the tender documents should be checked and corrections. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions.10 . outline of quality assurance. .9 . in order to reflect the deletion of Letter of Acceptance. it might be recommendable to state that any reference to calendar dates is indicative only. Even if the Contract clearly specifies the priority of documents. Sub-Clause 1.Romania.DOC . if all rights to particular items of computer software (for example) are to be assigned to the Employer. bfc2-071_fidic user guide_250407_final.

the issuance of the building permit by the relevant authorities might require some time after submission and approval of the Contractor’s design. etc. It is also recommended to precise the scope of paragraph (b). This should be done under the format: “Applicable Laws of particular relevance for the Contract include. 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. Within 21 days of the signature of the Contract Agreement.Confidential Details 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 73 Sub-Clause 1. traffic diversions. Sub-Clause 1. but are not limited to: Law No. Such permits include inter alia permits for site erection.13 . The Employer will wish the leader of the joint venture to be appointed at an early stage. an additional sub-clause may be added.11 . permits for radio communication. route permits. permits to relocate public utilities. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor.15 . at his own expenses. particular regulations to be complied with by the Contractor. The Employer should scrutinise the joint venture agreement carefully. when relevant.3 [Programme]. New Sub-Clause 1. which apply prior to the Contract becoming effective. for example with: “Except for the building permit to be provided by the Employer.Romania.12 . Under design-build arrangements.14 . Employers should make reference to such time period so as to avoid claims from the Contractor. residence and work permits. detailed requirements for the joint venture may need to be specified. . 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. Sub-Clause 1. and will not wish to be involved in a dispute between the members of a joint venture. providing a single point of contact thereafter.Joint and Several Liability For a major contract.DOC .Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause. The wording of such Sub-clause could be as follows: bfc2-071_fidic user guide_250407_final. and it may have to be approved by the project's financing institutions.” Sub-Clause 1. These requirements. xxx”.Compliance with Laws Employers should specify. the Contractor shall submit to the Engineer the detailed planning of the Works.Details to be Confidential If confidentiality is required. For example. should be included in the Instructions to Tenderers.

it is good practice to include in tender and then contract documents. In case right of access and possession is not to be granted exclusively. permit to be published.3.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site.The Employer Sub-Clause 2. 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). 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. this should be clearly stated. both early and thereafter exclusively. Sub-Clause 2. as much as possible. and aspects such as co-ordination and safety may need to be specified.2. 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 . In case right of access is to be granted by stages. bfc2-071_fidic user guide_250407_final. the required land should be made available by the same Employer. selfsufficient. .Permits.2 Clause 2 .DOC . The Site does not include additional working areas that the Contractor might require. Employers shall be particularly careful in relation with this sub-clause.Right of Access to the Site If right of access cannot be granted. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer. but the contract documents should be. all relevant information. The work to be carried out by these other contractors should be described in the tender documents. with all particulars.23. as defined under sub-clause 4. so as to avoid facilitate access to the market. Licences or Approvals With reference to paragraph (a). details should be given. 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. in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). Sub-Clause 2. the Employer should state this and define the procedure that will be applied as well as the main constraints / parameters. References to laws and standards should be included for formal reasons. However.3 . except to the extent necessary to carry out his obligations there under or to comply with applicable Laws.Romania.” 5.2 . The Contractor shall not publish. and particularly in the Employer’s Requirements. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic.

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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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3 . and shall be in the form annexed to the Particular Conditions. or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language. under Romanian public procurement regulations.4).Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. 75008 Paris. which also publishes guides to these Uniform Rules. 925/2006). If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1.4 . In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions.DOC . which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96 (1) of GD No. However. The role of the Contractor’s Representative should be highlighted. Example forms are annexed to this document in the templates of guarantees in Appendix E1. Not only his nomination. the Tenderer may propose the Representative. but also his revocation has to receive the prior consent of the Engineer. it should amend the second sentence of the second paragraph of Sub-Clause 4. one of the following sentences may be added.” Sub-Clause 4. if parts of the Works are to be performed by Subcontractors. it is possible to specify (under Sub-Clause 14. . at the signature of the Contract Agreement.Contractor's Representative If the Representative is known at the time of submission of the Tender. the Contractor must provide the Employer with the relevant subcontracts.2 as follows: “The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer. 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. France). especially if the contract award seems likely to be delayed. 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. 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". 925/2006). Moreover. annexed to the Particular Conditions. which is based at 38 Cours Albert 1er. In order to ensure that a properly nominated Contractor’s Representative is available at all times.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. bfc2-071_fidic user guide_250407_final. Sub-Clause 4. The Tenderer may wish to propose alternatives.Romania.

5. 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. 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 provides for the particular situation whereby the Employer may select a Subcontractor. according to the same Article 96 (2) of GD No. subject to any constraints specified in the Contract. On a case-by-case basis. typically in the Appendix to Tender. Replace the first sentence of Sub-Clause 4. to detail on which criteria consent will be given. . etc. Sub-Clause 4.4. bfc2-071_fidic user guide_250407_final.” Furthermore. the Engineer’s prior consent for subcontractors might lead to excessive administration. As regards the second sentence of this Sub-Clause 4. as follows: At the end of point (b).4 with: “The Contractor shall not subcontract a larger value of the Works than the maximum specified in the Appendix to Tender.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 79 Please also note that.DOC . Before using this Sub-Clause. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). Employers might also consider the conclusion of a separate contract. fulfilled obligations as per payment of taxes and social contributions). although the Contractor remains responsible for any act or default of Subcontractors. this amount should be clearly stated.Nominated Sub-Contractors In most cases under Sub-Clause 4. 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.5 . no final sentence for professional misconduct. Such criteria might include: Personal situation (no bankruptcy or similar proceedings. Sound financial position. Experience in similar projects (for the type of works intended to be performed by the proposed Subcontractor). the Contractor selects Subcontractors. it is recommendable.” Subject to the mandatory provisions of the Romanian public procurement regulations. 925/2006. In such case. It is therefore possible to limit such requirement. according to Sub-Clause 4. details may be given as to what would be considered as a reasonable objection.4. The proposed modification is included in the mandatory particular conditions in Appendix B1. for transparency reasons.

Setting Out No need for particular conditions related to this sub-clause. so that road users and riparian be protected.Romania. it is highly desirable that the Employer’s Requirements describe the resulting constraints and procedures for co-ordination. the Employer shall be entitled.8 . Sub-Clause 4. Sub-Clause 4. as approved by the Engineer.6 . to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. when relevant.5. In case a description or an outline of the quality assurance system was submitted as part of the Tender. this Sub-Clause should establish a link with the documents provided. 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. . fence. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 80 Sub-Clause 4. It is recommended to include at the end of this Sub-Clause provisions referring to Traffic Management Plans and similar. deviations. In these circumstances. “Within 28 days of the signature of the Contract Agreement. 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.” Approval by the Engineer will be granted only further to the approval by the Road Police and by the Employer’s specialised services.Quality Assurance In case a description or an outline of the quality assurance system was submitted as part of the tender.Co-operation In case several contractors are working simultaneously on or near the Site.7 . bfc2-071_fidic user guide_250407_final. Sub-Clause 4. to be applied to each section of road with different cross profile characteristics (2.9 . in the form of a sketch accompanied by narrative details. for example. on any part of the Site.Safety Procedures If the Contractor is sharing occupation of the Site with others. etc. it may not be appropriate for him to provide some of the listed items. 3 or 4 lanes). The traffic management plan shall indicate what measures will be implemented to manage the traffic while Works are underway. lighting. the sequence of signs. Such plan shall describe. In case of default on the part of the Contractor in maintaining or implementing such traffic management plan.DOC . the Contractor shall submit to the Engineer a detailed traffic management plan. subject to Sub-Clause 2. the Employer's obligations should be specified.

Sub-Clause 4.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2.” bfc2-071_fidic user guide_250407_final. 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).Transport of Goods For a plant contract. If vesting of Contractor's Equipment is required.Romania. the Sub-Clause may be amended by deleting sub-paragraph (b) of Sub-Clause 4.Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause.Site Data Under this Sub-Clause.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works. It might be advisable to extend it to Equipment brought to the Contractor’s site installation. Sub-Clause 4.Avoidance of Interference No need for particular conditions related to this sub-clause. if this is not located on the Site. usually as part of the tender documents. .17 . Furthermore.20.%) of which shall be included in the Contract Price (the balance percent of the Cost shall be borne by the Contractor).Right of Way and Facilities No need for particular conditions related to this sub-clause.15 .1 and Sub-Clause 4. the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.11 . Sub-Clause 4.DOC . per cent (…. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 81 Sub-Clause 4.13. This Sub-Clause refers only to Equipment brought on Site.” Sub-Clause 4. 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. Sub-Clause 4. further paragraphs may be added. Sub-Clause 4. Sub-Clause 4.12 .16 . Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions. subject to their being consistent with applicable laws.Unforeseeable Physical Conditions In the case of major sub-surface works.12 and substituting by: “(b) Payment for any such Cost.14 . alternative arrangements may be appropriate.10 . If this risk is to be shared between the parties.13 . the Employer's obligations should be specified: see SubClause 4.

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). bfc2-071_fidic user guide_250407_final. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers. the Employer's obligations should be specified. for use of Employer’s Equipment or of free issue materials. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 82 Sub-Clause 4. they should be very careful so as to ensure fair and transparent conditions of competition.Security of the Site If the Contractor is sharing occupation of the Site with others. further provisions may be necessary. It is advisable to have those materials surveyed as part of the tender. the Employer’s Requirements should describe each item which the Employer will provide and/or operate and should specify all necessary details. the Employer’s Requirements should give details. the Employer shall be entitled. . The requirement to provide 6 copies might also be adapted. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. in order to clarify aspects such as liability and insurance.Protection of the Environment For Works to be executed in particularly environmentally sensible areas. Sub-Clause 4. so as to define their condition and suitability for use. Sub-Clause 4. while detailed information regarding the quality and quantity of free issue materials. In case Employers intend to use this Sub-Clause.19 .22 .5. as well as the time and place where they will be made available should be defined.20 . subject to Sub-Clause 2. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. it may not be appropriate for him to be responsible for its security.” Sub-Clause 4.Employer's equipment and Free-Issue Material For this Sub-Clause to apply.21 . For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause.18 .Romania. Employers might want to include in this Sub-Clause a provision for indemnification in case of default. Water and Gas If services are to be available for the Contractor to use.Electricity. Sub-Clause 4. including locations and prices. 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. In these circumstances.DOC . The level of detail to be provided as part of the progress reports might be adapted to the projects requirements.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements. With some types of facilities.

if need be. the supplied materials. .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.” Sub-Clause 4. The information provided is noted in the works diary and attachments. 3. These attachments are part of the Works diaries. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties. the work breaks due to adverse meteorological conditions. it is recommendable to precise that: “For the purposes of this Sub-Clause. signed by the Contractor’s Representative and countersigned by the Engineer or his representative. in a format agreed by the Engineer. the sent samples. the equipment out of order. but can be signed. New Sub-Clause 4.Romania. The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. Atmospheric conditions. as separate documents. the unforeseen events.23 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 83 For example. as well as verbal orders given to the Contractor. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor. Such use and access shall be regulated as part of the Contractor’s traffic management plan. bfc2-071_fidic user guide_250407_final. in the case of a road rehabilitation project. At the Engineer’s request. the number and the qualification of the personnel working on Site. the tests completed. the working hours. such as completed Works. Sub-Clause 4.21 [Progress Reports] with subsequent description in the Employer’s Requirements. 2. 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.Contractor's Operations on Site No need for particular conditions related to this sub-clause.DOC .24 . List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. 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”. the materials incorporated into the works.Fossils No need for particular conditions related to this sub-clause. during the reported period. actual quantities. supplies accepted for incorporation into the works. “The Contractor shall draw up a works diary for contemporary records.

equipment.5 Clause 5 . to the place where the Plant is to be erected. . depending on the part of the works to be designed and on the level of detail.Design This Clause might be completed with an indication of the schedule for execution and submission of the design.2 . taking account of the time necessary to review the different types of drawing. The Employer's Requirements should specify the extent to which Contractor's Documents are required. 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. for the Plant and any necessary c) Making necessary connections to the Plant. 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. while detailed drawings might be produced at a later stage. For example. and the submission procedures.2) The extent of training required (Sub-Clause 5.7). bfc2-071_fidic user guide_250407_final. and/or b) Providing suitable access on the Site. The first paragraph of this Sub-Clause should be amended for the purposes of compliance with Article 13 of Law No. Furthermore.1 . which will not necessarily include (for example) all the technical documents which the Contractor's Personnel will need in order to execute the Works. as specified elsewhere in the Contract. which of them are required for approval (not just review). Different "review periods" may be specified. Sub-Clause 5.3.Romania. Sub-Clause 5. the Employer’s Requirements shall define: Whether a review and / or approval process is required (for the purpose of Sub-Clause 5.DOC . 10/1995 related to the verification of design by duly certified design checker. Tenderers should be advised of the extent to which the Employer's outline design is a suggestion or a requirement. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 84 5.6) Details regarding the operation and maintenance manuals (Sub-Clause 5. 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.5) Details regarding the as-built documents to be provided (Sub-Clause 5.General Design Obligations The Contractor commences by scrutinising the Employer's Requirements.Contractor's Documents The "Contractor's Documents" are defined as the documents which the Contractor must submit to the Engineer. which may include an outline design. For instance. refer to the mandatory particular conditions in Appendix B1.

this Sub-Clause may be deleted.Staff and Labour Sub-Clause 6. Sub-Clause 5.3. bfc2-071_fidic user guide_250407_final. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract. Sub-Clause 5.1 .Persons in the Service of Employer No need for particular conditions related to this sub-clause.Technical Standards and Regulations No need for particular conditions related to this sub-clause. Sub-Clause 6.” Sub-Clause 6. or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision. Sub-Clause 5.Operation and Maintenance Manuals No need for particular conditions related to this sub-clause.Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause.Romania. 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 6. Sub-Clause 5.7 .Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender. 5.4 .5 . Sub-Clause 5. Any replacement personnel shall be at least of equivalent qualification and experience.5 . .3 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 85 Sub-Clause 5.8 .Design Error No need for particular conditions related to this sub-clause.2 .6 . 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 .Contractor's Undertaking No need for particular conditions related to this sub-clause. 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.Labour Laws According to the Guide.DOC .Training No need for particular conditions related to this sub-clause. for example). Sub-Clause 6.As-Built Drawings No need for particular conditions related to this sub-clause.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.4 .6 Clause 6 .

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

Sub-Clause 7.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 6.4 .Rejection No need for particular conditions related to this sub-clause.Romania.1 . waste piles.Ownership of Plant and Materials No need for particular conditions related to this sub-clause.10 .” Sub-Clause 6.9 .7 .DOC . this should be made clear in the Employer’s Requirements.7 Clause 7 . etc). .Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.Samples 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. debris and hazardous waste.8 . Sub-Clause 7.3 .3.Contractor's Personnel No need for particular conditions related to this sub-clause Sub-Clause 6.” bfc2-071_fidic user guide_250407_final. Sub-Clause 7.5 . if any.Testing No need for particular conditions related to this sub-clause.2 . levied in relation to the dumping of part or all of such materials.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. Sub-Clause 7.11 .6 .Disorderly Conduct No need for particular conditions related to this sub-clause 5.8).Remedial Work No need for particular conditions related to this sub-clause. Any amount paid shall be deducted from the Contractor's payment due. Sub-Clause 7. 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. Sub-Clause 7.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment.

1 .7). there is no need to amend the Contract in any way. .Commencement. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice. If the Works are to be taken-over in stages. Sub-Clause 8.2 . Sub-Clause 8. bfc2-071_fidic user guide_250407_final. to payment of damages by the Contractor. The programme is primarily a document prepared by the Contractor. delays and Suspension Sub-Clause 8. under its full responsibility.4 .” Sub-Clause 8.8 Clause 8 .1 is ensured. It is highly recommended not to sign any contract before compliance with SubClause 2. these stages should be defined as Sections. Failure to comply with this provision shall entitle the Employer. For example.1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”.DOC .5.3. 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.1 and Sub-Clause 8. It is advisable to provide a time-limit for the submission of a revised programme. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 88 5.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.Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. In case Employers know that the Commencement Date for a part of the Works will be delayed. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8. in the Appendix to Tender. 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. subject to Sub-Clause 2. the Contractor should not stop the Works if it is able to work on part of the Works. On the other hand.5 .Delays Caused by Authorities No need for particular conditions related to this sub-clause.3 . Sub-Clause 8. the last sentence defines strong obligations for the Contractor.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. In case the Works are not completed during the Time for Completion.Extension of Time for Completion 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 89 Sub-Clause 8.7 . Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works.5 has to be followed. 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. Such indicators however shall be defined based on the Contractor’s work programme.Delay Damages Under many legal systems. is controlled through a milestones system. Milestone 1 is defined hereafter. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. In case no agreement is reached during such period. In case the Contractor incurs delays in the achievement of a milestone. This system includes five milestones for monitoring and evaluation of the progress of the Works. (Other items).6 . if and when the milestone is reached. as submitted under the first paragraph of Sub-Clause 8.5.DOC . the Engineer will define those four indicators. If the Accepted Contract Amount is expressed in the Local Currency. to withhold from the Interim Payment Certificates an amount equal to 0. Whenever a revised programme is being submitted.Romania.3. subject to Sub-Clause 2.15(b). The Contractor work programme under the present Sub-Clause is submitted. up to a maximum of 10% of the Accepted Contract Amount.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. . Before using such system. Milestone 1 is defined as the achievement of the following indicators. Compliance of the progress of the Works with the Contractor’s programme. the Employer will be entitled. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. It is therefore possible to include a “milestones system” along the example provided below. 28 days after the Commencement Date: All Contractor key personnel are on Site. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. bfc2-071_fidic user guide_250407_final. the milestones have to be updated in accordance with the provisions above.05% of the Accepted Contract Amount per day of delay. The amount so withheld shall be paid to the Contractor.3 or revised under the third paragraph of Sub-Clause 8. Sub-Clause 8. 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.

12 .10 .Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause.Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed. For example. instrumentation.Romania.Tests on Completion Sub-Clause 9. but otherwise may require amendment. Sub-Clause 8.11 .1 . It should also be noted that Employers might. If the Works are to be tested and taken-over in stages. the tests requirements may have to take account of the effect of some parts of the Works being incomplete.9 . but also (ii) introduce a bonus for acceleration.DOC . This tends to restrict the constitution of “black lists” or other similar instruments. Sub-Clause 8.8 .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. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price. In par- bfc2-071_fidic user guide_250407_final. Sub-Clause 8. New Sub-Clause Incentives for early completion may be included in the tender documents (although Sub-Clause 13. 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. It may also be appropriate for the Contractor's Proposal to include detailed arrangements. or suspend the actual payment of such damages by the Contractor until the completion of the Works.3. 5. The wording in the sub-paragraphs includes the conditions which are typically applicable for a plant contract.9 Clause 9 . For contracts where completion of the Works by a certain date is of paramount importance.2 refers to accelerated completion).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. waive their rights to delay damages. 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. etc. etc).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 Sub-Clause 8. . in duly justified cases. except in the event of termination by the Employer.

3 . sub-paragraph (c) refers to trial operation.2 .3 . Sub-Clause 10. If the product is to be retained by the Contractor.3. Sub-Clause 9. it might be recommendable that the Engineer be nominated as representative of the Employer. On the other hand.10 Clause 10 . The Employer must nominate a taking-over commission (Article 7 of GD No.Interference with Tests on Completion No need for particular conditions related to this sub-clause. Precise geographical definitions are advisable. and the Appendix should include a table. based on the extent of the failure.Taking Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No. bfc2-071_fidic user guide_250407_final.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.Romania. He thus becomes responsible for disposing of it. Sub-Clause 9.1 . Unless expressly forbidden by the Law. Sub-Clause 10.2 . 273/1994. 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”.DOC . in the Appendix to Tender. Such regulations are reflected in the mandatory particular conditions in Appendix B1.Employer's Taking-Over Sub-Clause 10. Sub-Clause 9. GD No. and entitled to retain the proceeds from selling it. . is to be defined in the Particular Conditions or in the Employer's Requirements.Failure to Pass Tests on Completion If the reduction referred to in the final paragraph.Delayed Tests No need for particular conditions related to this sub-clause. The role of the Engineer in the taking over commission is not defined. during which any product produced by the Works becomes the property of the Employer. the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed.4 . 273/1994). 273/1994. If the Works are to be taken-over in stages. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 91 ticular. 5. so as to define the Time for Completion and delay damages: the table is shown in the example Appendix. the Sub-Clause should be amended accordingly. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. minimum acceptable performance criteria should also be specified.Retesting No need for particular conditions related to this sub-clause. 925/2006) are reflected in the mandatory particular conditions in Appendix B1. these stages should to be defined as Sections.

11 Clause 11 . . Sub-Clause 11. 273/1994.5 . Sub-Clause 11.3.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.Right of Access No need for particular conditions related to this sub-clause. 5.4 . Sub-Clause 11.2 . and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage. Sub-Clause 11. if and to the extent that the Works. However.Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause. a Section or a significant part of the Works. the Contractor is liable for the latent defects of the Works during a 10 year period.10 .Defects Liability Sub-Clause 11.Unfulfilled Obligations Under Romanian law.7 .Romania.DOC .Failure to Remedy Defects No need for particular conditions related to this sub-clause.Costs of Remedying Defects No need for particular conditions related to this sub-clause.8 . whilst his liability for defects affecting the bfc2-071_fidic user guide_250407_final. Sub-Clause 11.5 to an extension of the Defects Notification Period for the Works. Sub-Clause 11.4 . Sub-Clause 11. a Defects Notification Period shall not be extended by more than two years.3 .Removal of Defective Work No need for particular conditions related to this sub-clause. Sub-Clause 11.” Sub-Clause 11. a major item of Plant or significant part of the Works (as the case may be.Extension of defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2.Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause.1 . Such regulations are reflected in the mandatory particular conditions in Appendix B1.Further Tests No need for particular conditions related to this sub-clause.9 . a Section.Contractor to Search 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. It is therefore normal that the final payment and final evaluation of the Contract Price) comes after such acceptance. The issue of the Performance Certificate represents the acceptance of the Works.6 .

5.2. after taking-over.Procedure for Tests after Completion The Employer's Requirements should describe the tests he requires. The provisions in the General Conditions are based upon the Tests after Completion being carried out by the Employer and his operating personnel. It may be appropriate for the Contractor's Proposal to include detailed arrangements.Romania.13 Clause 13 .12 Clause 12 .Clearance of Site No need for particular conditions related to this sub-clause.11 . and/or to define any instrumentation required. Sub-Clause 11.1. For some types of Works.3.Delayed Tests No need for particular conditions related to this sub-clause. probably) the performance criteria which their Plant will achieve. personnel and power.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13.1 . with the Employer providing consumables.Tests after Completion Sub-Clause 12. although they are critical to a successful outcome. If other arrangements are envisaged. . Sub-Clause 12. 5. they should be specified in the Employer's Requirements. the provisions in FIDIC's Conditions of Contract for EPC/Turnkey Projects are based upon these Tests being carried out by the Contractor. in addition to that included in the Plant. and the Sub-Clause should be amended accordingly.4 .3. Sub-Clause 12.Failure to Pass Tests after Completion If the first part of this Sub-Clause is to apply. 10/1995). and the minimum acceptable performance criteria should also be specified. 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.DOC . With many types of Works.3 . and/or for tenderers to prescribe (in a Schedule of Guarantees. 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. For example. these Tests may be the most difficult to specify well. without prior agreement as to feasibility or price b) The Contractor may initiate his own proposals under Sub-Clause 13. or bfc2-071_fidic user guide_250407_final.2 . with guidance from the Contractor's staff. Sub-Clause 12. it may be essential to define the physical inputs. which are intended to benefit both Parties. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix B1.Retesting No need for particular conditions related to this sub-clause. to verify that the Works fulfil his performance requirements.

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

The relevant wording is included in the mandatory particular conditions in Appendix B1.DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 95 nominated Subcontractor. Actually the multiplier is calculated for the works performed during month n. 925/2006.14 Clause 14 . it is sufficient not to fill in any “table of adjustment data”. and tenderers will take account of the interim payment procedures when preparing their tenders. . but need not.Contract price and Payment Sub-Clause 14. in order to remove any ambiguity.3. 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 lump sum price may consist of two or more amounts. The possibility and principles of such adjustments are foreseen in Article 97 of GD No. rise or fall in the cost of labour. 5.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. However. If the contract is intended to be at fixed rates. consideration should be given to the amount and timing of payment(s) to the Contractor. Cases provided by clause 13. Such formula should be based on relevant indices published by authorised bodies.6 . 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. For any contract of duration of more than 12 months.” 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. 925/2006). Normally. with little or no remeasurement. it is strongly recommended to include a price adjustment formula. quoted in the currencies of payment (which may. materials or any other matters affecting the execution of the Contract. Sub-Clause 13. this type of contract is based on a lump sum price.Romania. include the Local Currency). bfc2-071_fidic user guide_250407_final. Thus the Contract Price shall not be subject to any adjustment due to inflation.The Contract Price When writing the Particular Conditions.Daywork No need for particular conditions related to this sub-clause.7 . typically by the National Institute of Statistics.1 . A positive cash flow is clearly of benefit to the Contractor.7 are not subject to this restriction.8 . 925/2006. The Contractor thus takes the risk of changes in cost arising from his design. Sub-Clause 13.

or c) Detailed amendments to Sub-Clause 14. Tenders may be required to be accompanied by detailed price break-downs.1. consideration should be given to the benefits of advance payment(s). If payment for any part of the Works is to be made on the basis of measurement. including quantities. Sub-Clause 14. This information can also be useful for the assessment of interim payments.Application for Interim Payment Certificate It might be useful to better define which supporting documents would be required. If not. Additional Sub-Clauses may be required to cover any exceptions to the options set out in Sub-Clause 14.3 .1(a) is not to apply. and the following wording might be appropriate for one of the additional Sub-Clauses. attached in Appendix E1.DOC .1. since these payments would not relate to anything in his possession. the total advance payment (and the number of instalments if more than one) must be specified in the Appendix to Tender. 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. Such amendments are included in the mandatory particular conditions in Appendix B1. he should have ensured that the Engineer has the necessary expertise to value any Variations which may be required.Romania.3(a). .5. and any other matters relating to payment. When the tender documents are being prepared.Advance Payment When writing the Particular Conditions. 500/2002 and GD No. Sub-Clause 14. annexed to the Particular Conditions: an example form is annexed to this document. This Sub-Clause needs be amended in order to reflect mandatory Romanian regulations in respect of advance payments from the public funds (Law No. as envisaged in the last sentence of Sub-Clause 14. 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. the information may not have been priced competitively. However. bfc2-071_fidic user guide_250407_final. a price for each of these stages (this would require the addition of provisions for securities). Unless this Sub-Clause is not to apply. the method of determining the Contract Price should be defined in additional Sub-Clauses. 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. unit rates and other pricing information.2 . in addition to the documents and information contained in the Contractor’s progress report. the part must be defined in the Contract. 264/2003). If Sub-Clause 14. The Employer may consider it advisable to have some form of security. the Employer must therefore decide whether he will accept being bound by the tenderer's breakdowns. If the Contractor is to provide major items of Plant. If the Contractor is to be entitled to stage payments prior to shipment.

It is however preferable that the “weight” of each sub-phase be defined in the tender documents. 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.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7.” Sub-Clause 14. or b) The Schedule could be based on actual progress achieved in executing the Works. if the Works consist of only a few different types of operations. bfc2-071_fidic user guide_250407_final. 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. 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. In some cases. .Romania. Sub-Clause 14. Some objects might also be divided into sub-phases. It is important to define such progress by reference to nonambiguous milestones.5 .7. tenderers would have to price each object.3. which necessitates careful definition of the payment milestones. Alternatively. this Sub-Clause would apply only for the conditions of contract for plant and design-build. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. in order to assess whether they are reasonably consistent with each other.4 . In most cases. In case a Statement is not signed by the duly appointed Contractor’s Representative. If another basis is to be used for determining interim valuations. Disagreements may arise when the work required for a payment milestone is nearly achieved but the balance cannot b completed until some months later. which may be based on a Schedule of Payments. 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. Plant and Materials delivered to the Site become the property of the Employer. details should be added in the Particular Conditions. and the Schedule would actually make reference to actual progress. Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. which can prove unreasonable if the Contractor's progress differs significantly from the expectation on which the Schedule was based. such Statement shall be void and ineffective. a simple measurement approach for interim valuations may be appropriate.DOC . the "minimum amount of interim certificates" could be omitted from the Appendix to Tender. If payments are to be specified in a Schedule of Payments. The figures inserted by the Tenderer in the Schedule of Payments may be compared with his tender programme (if any).Schedule of Payments The General Conditions contain provisions for interim payments to the Contractor.

The scope of those provisions is to ensure that an adequate flow of cash is maintained. but in case of arithmetical mistakes. such works are considered as finally approved only at the issue of the Performance Certificate.DOC . Sub-Clause 14. by definition.5. It also has to be noted that. it is useful to indicate that the central bank of the Country is the European Central Bank. The Engineer is due to substantiate its determination. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2. in case the Employer considers that an undue payment has been made. through the provision of supporting particulars. 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.2). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 98 Sub-Clause 14. 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. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix B1. Although modifications of regarding works already certified should remain the exception. Such amendments are included in the mandatory particular conditions in Appendix A1. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations. bfc2-071_fidic user guide_250407_final.Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No.6 . It has to be noted that the Employer is not entitled to modify any Payment Certificate. interim. . increased by three and a half percentage points.Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. Interim Payment Certificates are.Delayed Payment When payments are made in Euro. as published in the C series of the Official Journal of the European Communities.Romania. They do not imply acceptance of any work and might be modified afterwards. in force on the first calendar day of the month in which the due date falls. 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. - - Sub-Clause 14.8 .7 . Furthermore. he can also include in his claim the related financing costs.

Sub-Clause 14. 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 B1.Application for Final Payment Certificate No need for particular conditions related to this sub-clause.Romania.DOC .12 . .9. 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.Cessation of Employer's Liability No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final.10 . when the Taking-Over Certificate has been issued for the Works. Sub-Clause 14. annexed to the Particular Conditions: an example form is annexed in Appendix F1.9 . add the following paragraphs at the end of Sub-clause 14.14 . in accordance with the estimates submitted under SubClause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 99 Sub-Clause 14. as specified for the Performance Security in Sub-Clause 4. after he obtains such guarantee.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. Sub-Clause 14.9.” The acceptable form(s) of guarantee should be included in the tender documents.Discharge No need for particular conditions related to this sub-clause.13 . The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects.Statement of Completion No need for particular conditions related to this sub-clause.Issue of Final Payment Certificate The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. Sub-Clause 14. “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee.4 [Schedule of Payments].11 . in a form and provided by an entity approved by the Employer. 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. The Contractor may gradually increase the amount of the bank guarantee.2. In such case. in amounts and currencies equal to the payments to be made. while the Contractor shall be entitled.

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

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

3 months). depending on the complexity of the project (for example.4 . Sub-Clause 16.2 .5 .A Contractor should be aware before giving a notice of termination that once the Contract is terminated. Sub-Clause 16.Payment after Termination No need for particular conditions related to this sub-clause.2. the advance payment shall be repaid immediately by the Contractor (if not.3 . bfc2-071_fidic user guide_250407_final.” Sub-Clause 15. Employers might want to bring a clearer definition of the provisions of letter (b). 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.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.4 . the advance payment guarantee might be called in by the Employer). 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. Sub-Clause 15. in accordance with the provisions of Sub-Clause 14. 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. Employers should obviously avoid putting themselves in one of the situations described. by defining that a minimum (very low) rate of progress. it cannot be resumed and in most cases a new tender procedure would be necessary.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause. Sub-Clause 15. for example.2 Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix B1. Sub-Clause 16.3 . less than 1% over the last 6 months will be considered as “abandoning” of the works. . such as. up to the completion of the respective Works.Termination by Contractor See our comments under Sub-Clause 15.16 Suspension and Termination by Contractor Sub-Clause 16. say.Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.Payment on Termination After termination.1 .DOC . under the provisions of the Contract.Romania. as he may consider proper.3. 5.

the sum referred to in the penultimate sentence shall be ……". from the respective dates of use or occupation by the Contractor.6 .Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause.3.6.Indemnities No need for particular conditions related to this sub-clause. “The Contractor shall take full responsibility for the care of the items detailed below. 5.Consequences of Employer's Risks No need for particular conditions related to this sub-clause. 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. under road or rail rehabilitation projects.4 .17 Risk and responsibility Sub-Clause 17. Sub-Clause 17.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. Sub-Clause 17. 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. an additional sub-clause may be added. It might be appropriate to define a time limit for the Contractor to submit its request.Romania. Sub-Clause 17.1 .7 If the Contractor is to occupy the Employer's facilities temporarily.DOC . . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 103 Obviously. Sub-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. New Sub-Clause 17. For example.Contractor's Care of the Works No need for particular conditions related to this sub-clause. Sub-Clause 17.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 17.5 . 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.2 .3 .

Romania. at his own cost.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause. The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. Sub-Clause 18. The following sentence may be included in the Particular Conditions. preferably in the form of a copy of each policy. The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. an additional sub-clause may be added. exceptions and deductibles.4 . which includes Subcontractor's equipment). Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer.3. arising from any cause whatsoever other than those for which the Employer is liable.Insurance The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party".” 5. the Contractor shall.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.” Sub-Clause 18.1 .3 . including the conditions. New Sub-Clause If the Employer requires the additional protection of design insurance.DOC .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. bfc2-071_fidic user guide_250407_final.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance. 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). because the Employer may not know the amount or value of these items of equipment. who is to be the Contractor unless otherwise stated in the Particular Conditions. If the Employer is to arrange any of the insurances under this Clause.18 Clause 18 . . 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. rectify the Loss or damage to the satisfaction of the Engineer.2 (for Contractor's Equipment. Sub-Clause 18. limits.

Sub-Clause 19. . Accordingly. that something had recently occurred for which an entitlement for time and/or additional payment might be sought. 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. within four weeks. Force Majeure can be proven by other means. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. Furthermore.Force Majeure Sub-Clause 19.6 .Duty to Minimise Delay No need for particular conditions related to this sub-clause.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. through the Engineer.19 Clause 19 .Release from Performance under the Law No need for particular conditions related to this sub-clause.1 .5 .20 Clause 20 -Claims. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. The important matter is that the Employer.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). 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. Sub-Clause 19.4 . Sub-Clause 19.Consequences of Force Majeure No need for particular conditions related to this sub-clause.1 . It is advisable to add at the end of first paragraph of Sub-Clause 19.Romania.7 . Payment and Release No need for particular conditions related to this sub-clause. 5.Optional termination.3. is put on alert. Sub-Clause 19.3.DOC . 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.3 .2 . bfc2-071_fidic user guide_250407_final.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". Sub-Clause 19.Notice of Force Majeure It has to be noted that. The notice of occurrence of Force Majeure should be accompanied by appropriate supporting documentation. despite a frequent opinion. Disputes and Arbitration Sub-Clause 20. Sub-Clause 19.

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

has there been prejudice to the Employer or benefit to the Contractor? In other words. Finally. Some events might require some investigation and advice before a contractor decides that he has a claim. would the cost or delay claimed have been reduced if earlier notice had been given? 6. 8. or (c) Whether the claim should be dealt with on its merits. the Engineer should report to the Employer on its proposed action. then this is likely to be treated as adequate notice.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. DABs do not insist that the notice is formal. the Contract should include the provisions under Clause 20 which. then rejection for lack of notice should be considered. Advise whether: (a) The claim may reasonably be rejected for lack of notice. If there appears to have been a failure to notify. If the issue is raised at meetings or in general correspondence in due time. whilst not discouraging the Parties from reaching agreement on dis- bfc2-071_fidic user guide_250407_final. Contract size. One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. (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.2. It has to be noted that appointment of the DAB might not be opportune for all contracts. setting out its responses to the above questions. 925/2006).2 .DOC . . 5. Extent of activities off-site. in accordance with the alternative option described below. Consider items (vi) and (vii).5 or in time and deducted from any cost or time determined. Unless the Engineer (although appointed by the Employer) is to make the prearbitral decisions under this Clause 20. Sub-Clause 20. If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. Employers should choose between these possibilities having regard to: Contract complexity. There are two basic possibilities: Appointment of an “ad-hoc” DAB pre-arbitral decision by the Engineer. Promptly upon receipt of a claim and before rejecting a claim on notice grounds. Consider item (viii). 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. consider point (ix) and. then the obligation to notify has not arisen. 7. in particular.Romania. whether any prejudice to the Employer could be evaluated in financial terms under Sub-Clause.

the selection is made by a wholly impartial entity. as appropriate to the arrangement adopted. taking account of its size. In this case Sub-Clauses 20.3. 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.2 provides for two alternative arrangements for the DAB: (a) One person. particularly those involving extensive work on Site. DAB is recommended for contracts of more than 5 Million Euro and DAB of 3 members for contracts of more than 100 Million Euro. the Engineer may make these pre-arbitral decisions. Both of these forms incorporate (by reference) the General Conditions of Dispute Adjudication Agreement.2 and 20. where it would be appropriate for the DAB to visit the Site on a regular basis. Therefore.Romania.4 together with the Appendix and Annex to the General Conditions. This alternative. if this authority has been delegated in accordance with the example wording in the Appendix to Tender.2. and that. if the individual is selected under SubClause 20. should be amended to comply with corresponding wording contained in the FIDIC Conditions of Contract for Construction. duration and the fields of expertise which will be involved. or (b) A DAB of three persons. The adjudication procedure depends for its success on. Before the Contract is entered into. Alternatively. although the Engineer generally acts for the Employer as specified in Sub-Clause 3.1(a). it may be decided to retain the services of a permanent DAB. amongst other things. The Employer should recognise that. each of whom has entered into a tripartite agreement with both Parties. which are included as the Appendix to the General Conditions because they are also referred to in Sub-Clause 20. The appointment of the DAB may be facilitated by including an agreed list of potential members in the Contract: in a Schedule. each individual person is referred to as a Member. which has been the Engineer's traditional role in common law countries. consideration should be given as to whether a one-person or three-person DAB is preferable for a particular project.2 envisages appointment of the DAB after a Party gives notice of its intention to refer a dispute to a DAB. However. Sub-Clause 20. having 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. The form of this tripartite agreement could be one of the two alternatives shown at the end of this publication. FIDIC is prepared to perform this role. it is essential that candidates for this position are not imposed by either Party on the other Party. allow them to refer contentious matters to an impartial dispute adjudication board.DOC . the bfc2-071_fidic user guide_250407_final. Under either of these alternative forms of Dispute Adjudication Agreement. and the Dispute Adjudication Agreement. who acts as the sole member of the DAB. the Parties' confidence in the agreed individual(s) who will serve on the DAB. for certain types of project. . Typically. Sub-Clause 20.

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

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

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

15(b) 8. invoices for his/her daily fees and expenses monthly. .4 1.5 8.7 1.1.2(d) 18. All invoices shall be accompanied by a brief description of activities performed during the relevant period. 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.2 & 20.3 14.1 4.3 1.4 1. The Employer shall then pay the Contractor in accordance with the Contract".3 Data bfc2-071_fidic user guide_250407_final.1.8 14.2(a) and (b) 14.3.1.DOC .3 1.5(b) 13.5(b) and (c) 14.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.” Replace third. 5.2 & 1.4 2.7 & 14. as well as the per diem rate. shall be as specified in the Dispute Adjudication Agreement. fourth and fifth paragraphs by: “The Member shall submit to the Contractor.2.2.3 & 1. with a copy to the Employer.Romania.2 6.3.15 18.3 1.3 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 112 “The daily fee.1.7 13.6 14. 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 1.2 14.1 18.3 DAB 20.2.4 & 1.3 1.1.

Mandatory particular conditions of contract for the FIDIC Green Book. The Romanian language version of the General Conditions of Contract and the proposed mandatory particular conditions of contract will.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. depending on the type of work and the circumstances.2 FIDIC Guidance The Conditions of Contract . 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.DOC . and was submitted to the MPF in December 2006. 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. such as. about 500. the FIDIC Green Book. i. However.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.have been prepared by FIDIC and are recommended for engineering and building work of relatively small capital value. . the Conditions may be suitable for contracts of greater value. 6. after the approval by the MPF. 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. the Contractor constructs bfc2-071_fidic user guide_250407_final. 1st Edition 1999. be published in the Official Gazette of Romania for use on infrastructure projects in Romania. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006.Romania.000 Euro equivalent and up to 6 months duration.e. in the current Romanian context. necessary so as to harmonise the contract provisions with the current Romanian legislation. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. Under the usual arrangements for this type of contract.

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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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commotion. ionising radiation or contamination by radioactivity. This is 14 days after the Contract has come into effect.3 . Sub-Clause 2. Sub-Clause 1. 1. 10/1995). 6. The term "Works" is intended to cover all the obligations of the Contractor.1 . 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.Provision of Site Unless the Parties have agreed otherwise.Romania. permits etc may also be required from places other than the Country.. radiation or radioactivity. including any design and the remedying of defects.1. refer to the mandatory particular conditions in Appendix D.Interpretation No need for particular conditions related to this sub-clause. this Sub-Clause could be limited by the addition at the end of the words: ". hurricane.DOC .19 “Works”. On the other hand. .The Employer Sub-Clause 2. typhoon or volcanic activity.1 should be changed in the Particular Conditions.2 .6 .Law No need for particular conditions related to this sub-clause.2 . Sub-Clause 1.5 . explosive materials. then Sub-Clause 6. explosives. disorder. which occurs when the signed Agreement has been returned by the Employer to the Contractor (see also Sub-Clause 1.Priority of Documents No need for particular conditions related to this sub-clause. except as may be attributable to the Contractor's use of such munitions.7 above).2 Clause 2 . strike or lockout by persons other than the Contractor's personnel and other employees d) Munitions of war. in the Country but not elsewhere. Sub-Clause 1. if for any reason. If the law of the Contract is not the law of the Country..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. and e) Natural catastrophes such as earthquake.3." bfc2-071_fidic user guide_250407_final.1. Sub-Clause 1.4 . Otherwise there is no "Ruling Language". the Site must be handed over by the Employer to the Contractor on the Commencement Date.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. Any arbitration will be conducted in the specified language.

13.1 to 11. it is recommendable that Employers require more extensive professional assistance and their consultant should have clearly established delegated powers.Employer's Instructions No need for particular conditions related to this sub-clause Sub-Clause 2. 12.2 and 14." To the extent that the Employer has delegated powers to an Employer's representative.1.1. value or duration.1. then an amendment in the Particular Conditions would be desirable.2. 6. 9.3.The Contractor Sub-Clause 4. In addition.4 Clause 4 . Once appointed. 4.Contractor's Representative No need for particular conditions related to this sub-clause.8. 10/1995 related to the verification of the proper performance of the Works through qualified persons appointed by the Employer. so as to introduce the requirements of Law No. 10.3. 11. 10. The Sub-Clause is intended to prevent argument. If a more specific set of standards could be referred to for a particular project.3 Clause 3 .6. for contracts of relatively higher complexity.2.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.2. bfc2-071_fidic user guide_250407_final. If an impartial Employer's Representative is required with a role similar to the traditional Engineer. 9. decisions. There is no dual role or duty to be impartial. 4. 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.3 .1 .Romania. 6.4 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 118 Sub-Clause 2.1 and the authorised individual should be named in the Appendix. 7.3.2 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. 10. so some benchmark standard is needed with which the Contractor is to comply. 11.2.3. etc.4 and insurances at Sub-Clause 14. 5.1. Sub-Clause 4. Sub-Clause 3. then the following words could be used in the Particular Conditions: "Replace the final sentence of Sub-Clause 3. . This is achieved by Sub-Clause 3.Approvals The term "approval" is only used in the Conditions in relation to the performance security at Sub-Clause 4.2 .General Obligations Most contracts do not specify the exact standard required for each element of the Works.2 should be entirely deleted and replaced with the wording provided in the mandatory particular conditions (Appendix C).3.DOC . It is important that risks such as those of poor workmanship or Contractor's design are not transferred to the Employer unintentionally. 2.1. 8.3.1.5.

Performance Security Sub-Clause 4. If it is felt that the scale of project warrants security by means of a bond. The Appendix should indicate to tenderers the Sub-Clause(s) in the Specification that set out the design requirement. The extent of the Contractor's design obligation should therefore be clearly stated if disputes are to be avoided. As with all design-build contracts it is essential that the Employer's requirements are set out clearly and precisely. the order of priority in the Appendix makes it clear that the Employer's documents prevail. Designs are submitted and may be returned with comments or rejected.4 .1 . as is made clear here and in Sub-Clause 2.5 Clause 5 . 10/1995). 925/2006).4. .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 Conditions avoid the confusing concept of approval of design. The proposed modification is included in the mandatory particular conditions in Appendix C. The amount and a reference to the desired form of any required security should be set out in the Appendix. Alternatively and particularly if the constitution of a bank guarantee might be difficult for the potential contractors. the Particular Conditions should reflect the requirements of Romanian public procurement regulations as regards subcontractors (Article 96 (1) of GD No.Romania. In the event of conflict between the Specification and Drawings and the Contractor's tendered design. The proposed modification is included in the mandatory particular conditions in Appendix C.3 .Design by Contractor Sub-Clause 5.2 .Responsibility for Design The Contractor's responsibility for his design remains. The Employer need not react at all. Where the Employer procures any part of the design. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 119 Sub-Clause 4. This means that if the Employer prefers the Contractor's tendered solution. then local commercial practice should dictate the form. Sub-Clause 5. Sub-Clause 4. the responsibility for design will be shared as this Contract makes the Contractor responsible only for design prepared by him. Suggested forms of performance bond (surety bond) or bank guarantee have not been provided.DOC . Example forms are included with FIDIC's Conditions of Contract for Construction. the Sub-Clause could be amended. The proposed modification is included in the mandatory particular conditions in Appendix C. 925/2006).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. bfc2-071_fidic user guide_250407_final. the Specification and Drawings should be amended before the Contract is signed by the Parties. 6.3. so as to introduce the provisions of Article 90 letter (c) of the GD No. namely to allow constitution of a guarantee through progressive retentions from payments. 925/2006.Subcontracting If applicable.

Employer's Liabilities Sub-Clause 6.6 Clause 6 .DOC .3. .3. bfc2-071_fidic user guide_250407_final. If necessary.1 . the Appendix could stipulate that the programme should show the dates on which it is intended to prepare and submit drawings. 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.Execution of the Works There is no provision for sections and for the different Times for Completion by sections.7 Clause 7 . 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.Employer's Liabilities This Sub-Clause gathers together in one place the grounds for extension of time under Sub-Clause 7. 6.1 .Completion No need for particular conditions related to this sub-clause.4 .Taking-Over Sub-Clause 8. provided that the intended purposes are defined in the Contract.3 and the grounds for claims under Sub-Clause 10.Programme The Appendix should stipulate any particular requirements as to the form and level of detail of programme to be submitted. There is no time or claim for bad weather although this could be adjusted in the Particular Conditions if so required. the intended purposes of the part of the Works to be designed by the Contractor.2 .4.Late Completion There is a maximum amount which the Contractor is liable to pay for late completion specified in the Appendix. those should be introduced in the Particular Conditions.Extension of Time The test for entitlement to an extension of time is whether it is appropriate. the Employer should do so.1 caused critical delay to the Works and it is fair and reasonable to grant an extension of time. 10% of the sum stated in the Agreement is suggested.Romania. etc. The Employer must therefore make clear in the parts of the Specification that impose design obligations. Sub-Clause 7. provision must be made in the Particular Conditions.3 contributed to the delay. Sub-Clause 7.1 .3. This should be done even where this seems obvious in order to avoid argument about whether an intended purpose is defined or not.8 Clause 8 .Time for Completion Sub-Clause 7. This means that if an event under Sub-Clause 6. 6. Sub-Clause 7.3 . If a party wishes to protect the intellectual property in his design. Where Contractor's design is required. 6.

If he fails to do so.normally 12 months . 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. the Employer may employ others for that purpose at the Contractor's cost.” Sub-Clause 9. these should be specified in the Specification.2 . provision should be made in the Particular Conditions.Uncovering and Testing No need for particular conditions related to this sub-clause. Once the Works are ready to be used for their intended purpose. notified by the Employer. This liability remains for as long as Romanian law stipulates.3. Such amendment is included in the mandatory particular conditions in Appendix C. There is no defined Defects Liability Period but during the period . If the Employer requires a change to part of the Works bfc2-071_fidic user guide_250407_final.2 . There is no provision for taking-over of only parts of the Works but if this is required. 6. either apparent or latent. The liability of the Contractor for defects will not normally end with the expiry of the period stated in the Appendix. The Employer may also notify defects at any time prior to takingover.Remedying Effects Sub-Clause 9.3. 6.Right to Vary Variation is defined to include any change to the Specification or Drawings included in the Contract.Variations and Claims Sub-Clause 10. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 121 Sub-Clause 8.from the date of taking-over.10 Clause 10 . the Employer may notify the Contractor of defects. If any tests are required to be completed prior to taking-over. The proposed modification is included in the mandatory particular conditions in Appendix C.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. The Contractor must remedy such defects within a reasonable time. 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. the notice should be given.1 .1 . In line with normal practice. Although he is then no longer obliged to return to Site to remedy defects. The Employer must nominate a taking-over commission (Article 7 of GD No.DOC .9 Clause 9 . 273/1994.Romania.Remedying Effects This Sub-Clause shall be modified in order to include the obligation for the Contractor to remedy any defects. it is not envisaged that the Works need be 100% complete before the Employer may take over. the defect represents a breach of contract for which the Contractor is liable in damages. The definition of Works is broad enough to include any such tests. 273/1994). .

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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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The Contractor must use his right to terminate within 21 days or lose it.13 Clause 13 .1 . refer to the mandatory particular conditions provided in Appendix C. Care should be taken.Risk and Responsibility Sub-Clause 13. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 125 mination takes place. 7 days after the Employer's receipt of a default notice. much delay. The Employer's costs in obtaining a replacement contractor will generally be higher than the Contractor's loss of profit.2. Reference to the applicable law would be necessary. which must refer to Sub-Clause 12. the Contractor may suspend all or part of his work. This is to prevent a party abusing a right to terminate in his dealings with the other party for the remainder of the project. the Employer will be obliged to agree terms with the Contractor for the retention of such equipment. See also the definition at Sub-Clause 1.Force Majeure To qualify as Force Majeure. If Contractor's Equipment is essential for the safety or stability of the Works. however. Sub-Clause 13. the Employer may take over and use the Contractor's Equipment to complete the Works.Default by Employer This provision provides the Contractor's main remedy for non-payment. Sub-Clause 12.4 .2 .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.1. 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. refer to the mandatory particular conditions provided in Appendix C.2 .14. Sub-Clause 12. 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.3. 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. complication and scope for dispute are avoided.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. 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. 6.DOC . Sub-Clause 12. 21 days later the option to terminate arises if the Employer persists with non-payment or other default. By specifying the damages payable to the innocent party for the defaults leading to the termination. events must prevent performance of an obligation.3 .Contractor's Care of the Works Although the Contractor is responsible for the Works prior to taking-over. Notice must be given at once. bfc2-071_fidic user guide_250407_final.Romania. .

As smaller contracts are likely to fall within tenderers' standing Contractors' All Risk (CAR) insurance policies. The Employer shall provide the Contractor with evidence that any required policy is in force and that the premiums have been paid. Delays will inevitably occur if the parties initiate the procedure to appoint an adjudicator only when a dispute has arisen.15 Clause 15 .Resolution of Disputes Sub-Clause 15.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.Extent of Cover The Employer should set out his precise requirements in the Appendix.Romania.1 . Although the adjudicator should be impartial. bfc2-071_fidic user guide_250407_final.2. Care should be taken about whether an adjudicator should be local or from a neutral country. the following should be used as a Particular Condition in place of Sub-Clause 14.3 should be deleted if the Employer takes out the insurance. any extra cost of a truly impartial adjudicator is a recommended investment. See also Clause 13.Arrangements No need for particular conditions related to this sub-clause. should be covered by Particular Conditions.3.3 .Failure to Insure No need for particular conditions related to this sub-clause.2 . Sub-Clause 14.Insurance Sub-Clause 14. It should be noted that in the event of the Employer's failure to insure. 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. 6. 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. effect insurance in the joint names of the Parties of the types. .1 . prior to the Commencement Date. Third Party. public liability insurance would normally be mandatory. Sub-Clause 14.1: • "Replace the text of Sub-Clause 14.14 Clause 14 . in view of the costs involved in arbitration. However." Sub-Clauses 14. in the amounts and with the exclusions stipulated in the Appendix. or arising from taking-over parts of the Works. the Contractor may give notice under Sub-Clause 12. tenderers should generally be asked to submit details of their insurance cover with their tenders. Any requirements for insurance after the date of the Employer's notice under Sub-Clause 8.1 with the following: "The Employer shall.2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 126 6. even of minor disputes.2 and 14. If the Employer wishes to take out the insurances instead of the Contractor.DOC .3.

4 1. If none.2 7.4 Data Document identification is necessary to avoid any possible doubt. If there is no bill of quantities. delete the reference. 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. The Specification should set out in clear terms any design that the Contractor is required to undertake. Sub-Clause 15.1 11.1 7. . 6.8 14. if required.1 3.3 Sub-Clause 1. A complete list of Drawings is always desirable and could be attached on a separate sheet. 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 .9 1.1 3. by an arbitrator.5 2.2 11.5 10.4 Guidance for the Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.3 . Sub-Clause 15.Notice of Dissatisfaction No need for particular conditions related to this sub-clause. The Rules of arbitration should be stipulated in the Appendix.3 11.Romania.2 4. for example because specifications have been subject to revisions.1 & 11.Dayworks Valuation of the Works Materials and Plant Retention Currency of Payment Rate of Interest Insurances Arbitration Rules 9.DOC . bfc2-071_fidic user guide_250407_final.1 1.7 11.1.4 5.2 11.1 15.Arbitration Arbitration may not be commenced unless the dispute has first been the subject of adjudication. including the extent to which any design proposals are to be submitted with the tender. the reference to the Contractor's tendered design should be deleted.2 .1.

such as schedules of information provided by the Contractor (elements of the Contractor proposal). bfc2-071_fidic user guide_250407_final. .Romania. these should be added by the Employer.DOC . 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. Consideration should be given in each case to the required priority.

Romania. the FIDIC red. 925/2006 on public procurement. i. yellow and green books. It is foreseen that these templates can be applied for all the 3 FIDIC books. A performance security as surety bond is not covered by the public procurement regulations that require a bank guarantee. . bfc2-071_fidic user guide_250407_final.e. Parent Company Guarantee This template is based on the template proposed by FIDIC. Performance Security . i. 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 . refer their Annex C. refer their Annex A. the provisions of GD No.e. and adjusted in compliance with the requirements of the Romanian legislation.DOC . as required by the public procurement regulations The assignability of the guarantee is usually required by financing bank.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. This section presents the following templates for guarantees: The templates are attached in Appendix D. refer their Annex B. 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. • Tender Security This template is based on the template proposed by FIDIC.Demand Guarantee Advance Payment Guarantee Retention Money Guarantee Payment Guarantee by Employer.

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

Templates for Contractual Issues. modified for particular requirements of Romanian legislation. bfc2-071_fidic user guide_250407_final. Agreement The Agreement is based on the draft proposed by FIDIC.2. Letter of Tender The Letter of Tender is based on the draft proposed by FIDIC.1. Templates for Contractual Issues. The templates are attached in Appendix E. modified for particular requirements of Romanian legislation.1.1.DOC . 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. modified for particular requirements of Romanian legislation. Appendix The Appendix is based on the draft proposed by FIDIC.Romania. Appendix to Tender The Appendix to Tender is based on the draft proposed by FIDIC. .2 FIDIC Green Book This section presents the following templates for contractual issues: • • Agreement Appendix. modified for particular requirements of Romanian legislation. 8.1 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. modified for particular requirements of Romanian legislation. Contract Agreement The Contract Agreement is based on the draft proposed by FIDIC. The templates are attached in Appendix E.

3 Dispute Adjudication Agreements The proposed DAB Agreements are based on the draft proposed by FIDIC. The templates are attached in Appendix F. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 132 8. .1. DAB Agreements bfc2-071_fidic user guide_250407_final.Romania. modified for particular requirements of Romanian legislation: • • Dispute Adjudication Agreement (one person DAB) Dispute Adjudication Agreement (three person DAB).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. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 133 Appendix A . Additional Particular Conditions of Contract. Mandatory Particular Conditions of Contract Appendix A2. .Romania.DOC . The Mandatory Particular Conditions was approved by the MPF in January 2007. 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 134 Appendix A1 .DOC . bfc2-071_fidic user guide_250407_final.Mandatory Particular Conditions The following pages provide the mandatory particular conditions for the FIDIC red book.Romania.

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

Mandatory Particular Conditions of Contract Appendix B2.DOC .Romania. Additional Particular Conditions of Contract. The Mandatory Particular Conditions was approved by the MPF in January 2007.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 136 Appendix B . bfc2-071_fidic user guide_250407_final. .

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

bfc2-071_fidic user guide_250407_final.DOC .Romania. .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 138 Appendix B2 .

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

bfc2-071_fidic user guide_250407_final. The templates are applicable for the FIDIC red.Romania.Demand Guarantee Advance Payment Guarantee Retention Money Guarantee Payment Guarantee by Employer.DOC .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 . yellow and green books. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 140 Appendix D .

This guarantee shall apply and be supplemental to the Contract as amended or varied by the Employer and the Contractor from time to time.DOC . as a primary obligation. we will indemnify the Employer against and from all damages. If the Contract does not come into full force and effect within a year of the date of this guarantee. or by any other matters. and that the conditions of your invitation require his offer to be supported by a parent company guarantee. 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. This guarantee shall come into full force and effect when the Contract comes into full force and effect. and waiving the benefits of discussion and division. 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. and our liability hereunder shall be discharged absolutely. We confirm that the benefit of this guarantee may be assigned subject only to the provisions for assignment of the Contract. the due performance of all the Contractor's obligations and liabilities under the Contract. or by any variation or suspension of the works to be executed under the Contract.Romania. We hereby authorise them to agree any such amendment or variation. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. 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. awarding the Contract to the Contractor. . the due performance of which and compliance with which by the Contractor are likewise guaranteed hereunder. In consideration of you. when this guarantee shall expire and shall be returned to us. 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. or by any amendments to the Contract or to the constitution of the Contractor or the Employer. the Employer. 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). or if you demonstrate that you do not intend to enter into the Contract with the Contractor. If the Contractor fails to so perform his obligations and liabilities and comply with the Contract. 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. This guarantee shall continue in full force and effect until all the Contractor's obligations and liabilities under the Contract have been discharged.

without your agreement. withdrawn his offer after the latest time specified for its submission and before the expiry of its period of validity. This guarantee is subject to the Uniform Rules for Demand Guarantees. or (c) You awarded the Contract to the Principal and he has failed to comply with sub-clause 4. 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). . when this guarantee shall expire and shall be returned to us. 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. 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.DOC .2 of the conditions of the Contract. the Beneficiary/Employer. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. At the request of the Principal. 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). and that the conditions of your invitation (the "conditions of invitation". we <Insert name of bank> hereby irrevocably undertake to pay you.Romania. published as number 458 by the International Chamber of Commerce. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. 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. except as stated above.

for reasons attributable to the Principal.DOC . except as stated above.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. within such period of 28 days. shown in parentheses [ ] bfc2-071_fidic user guide_250407_final. 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.Romania.] This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. of your demand in writing and your written statement that the performance certificate has not been issued. We have been informed that <Insert name of contractor> (hereinafter called the "Principal") is your contractor under such Contract. 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. 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"). Date __________________________ Signature(s) ________________________________________ 1 When writing the tender documents. the writer should ascertain whether to include the optional text. 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. any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount". . we <Insert name of bank> hereby irrevocably undertake to pay you. [This guarantee is fully transferable in favour of [financing institution) its successors and assignees). We undertake to pay you such guaranteed amount upon receipt by us. published as number 458 by the International Chamber of Commerce. which requires him to obtain a performance security. the Beneficiary/Employer. 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). At the request of 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. and that this guarantee has not been extended. and The respect in which the Principal is in breach. when this guarantee shall expire and shall be returned to us.

Following receipt (from the Principal) of a copy of each purported notice. 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. 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. we shall promptly notify you of the revised guaranteed amount accordingly. 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. 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. 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). within such period of 28 days.Romania. Such guaranteed amount shall be reduced by the amounts of the advance payment repaid to you. except as stated above. we <Insert name of Bank> hereby irrevocably undertake to pay you. published as number 458 by the International Chamber of Commerce. the Beneficiary/Employer. 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. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. We undertake to pay you such guaranteed amount upon receipt by us.6 of the conditions of the Contract. any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount". when this guarantee shall expire and shall be returned to us. . This guarantee shall become effective upon receipt [of the first instalment] of the advance payment by the Principal.DOC . for which the Contract requires him to obtain a guarantee. as evidenced by your notices issued under sub-clause 14. The authenticated demand and statement must be received by us at this office on or before <Insert date> (the "expiry date"). Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. and The amount which the Principal has failed to repay.

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 early payment of [part of] the retention money.DOC . At any time. when this guarantee shall expire and shall be returned to us. 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"). our liability under this guarantee shall not exceed the total amount of retention money released to the Principal by you. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. and that this guarantee has not been extended. for which the Contract requires him to obtain a guarantee. At the request of the Principal. of your demand in writing and your written statement that the performance certificate has not been issued. 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. 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. This guarantee is fully transferable in favour of [financing institution] its successors and assignees.Romania. we <Insert name of Bank> hereby irrevocably undertake to pay you. the Beneficiary/Employer. any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount".6 of the conditions of the Contract with a copy being passed to us. We undertake to pay you such guaranteed amount upon receipt by us. for reasons attributable to the Principal. as evidenced by your notices issued under sub-clause 14. 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). 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. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. . and The nature of such defect(s).

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. 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). published as number 458 by the International Chamber of Commerce.DOC . 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.Romania. in respect of which the Principal has failed to make payment in full. in respect of a payment due under the Contract. . 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. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. (b) Any demand for payment must be accompanied by a copy of [list of documents evidencing entitlement to payment]. except as stated above. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. and The amount(s) which the Principal has failed to pay. This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. we <Insert name of Bank> hereby irrevocably undertake to pay you. 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. At the request of the Principal. the Beneficiary/Contractor.

Templates for Contractual Issues E. bfc2-071_fidic user guide_250407_final.FIDIC Red and Yellow Books This Appendix E.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.1 . . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 147 Appendix E .DOC .

Bill of Quantities.Romania. Signature ________________ in the capacity of ____________________________________________ duly authorised to sign tenders for and on behalf of _________________________________________ Address: ___________________________________________________________________________ Date: ______________________________________________________________________________ * If the Tenderer does not accept. 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. as set out in Schedule <Insert no. . [We have completed the Schedule by adding our suggestions for the other Member of the DAB. together with your written acceptance thereof. If this offer is accepted. Unless and until a formal Agreement is prepared and executed this Letter of Tender. 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 propose that the DAB be jointly appointed in accordance with Sub-Clause 20. the attached Appendix and Addenda Nos. We acknowledge that the Appendix forms part of this Letter of Tender. Drawings. commence the Works as soon as is reasonably practicable after the Commencement Date. the other Schedules. Specification. we will provide the specified Performance Security. shall constitute a binding contract between us.> 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. If these suggestions are not acceptable to you. We understand that you are not bound to accept the lowest or any tender you may receive.* 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. this paragraph may be deleted and replaced by: We do not accept your suggestions for the appointment of the DAB. <Insert Nos. or such other sum as may be determined in accordance with the Conditions of Contract.DOC . but these suggestions are not conditions of this offer.2 of the Conditions of Contract. bfc2-071_fidic user guide_250407_final. We accept your suggestions for the appointment of the DAB. but these suggestions are not conditions of this offer].>. We have included our suggestions in the Schedule.

1.1.3 1.1 4.4 1.3.2 & 1.2.2.5(b) Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.3 1.4 & 1.5 8. faults and defects in the Employer' Requirements Normal working hours Delay damages for the Works 4.1. 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.3 1.7 13.3 1.4 5.Romania.DOC .7 & 14.3.1.3 1.4 2. .4 1.3 & 1.2 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.> days 6. 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 1.7 1.16:00 Monday to Friday 0.1% of the final Contract Price per day. 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 8.2. 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.1.15(b) 08:00 .1 <Insert No.

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

000 EUR per occurrence with the number of occurrences unlimited Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.DOC . 264/2003 as further modified and completed 10% of each certificate 5% of Accepted Contract Amount Number and timing of instalments 14.3 14.15 Romanian Leu (RON) 18.2(b) Percentage of retention Limit of Retention Money If Sub-Clause 14.2 In accordance with the provisions of Government Decision No.6 14.1 18.2(a) Repayment amortisation of advance payment 14. . 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.2 Start repayment of advance payment 14.3 500. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 151 Total advance payment 14. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.3 14. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.Romania.2 Currencies and proportions 14.2(d) 14 days 21 days 18.5 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 14.5(b) [project requirements] [project requirements] 1% of Accepted Contract Amount 14.1 18.

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 20.5.3) Delay Damages (Sub-Clause 8.6 Time for Completion (Sub-Clause 1.6) 20.6 20.3.7) Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of 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 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 1.1.Romania.DOC .1.6 20. .2 20.

<Insert nos. The Letter of Tender dated <Insert date> The Addenda Nos. 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. 2. . month and year>. in consideration of the execution and completion of the Works and the remedying of defects therein. and The completed Schedules. Whereas the Employer desires that the Works known as <Insert project name> should be executed by the Contractor. The Employer hereby covenants to pay the Contractor. 4. The Employer and the Contractor agree as follows: 1.. if any> The Conditions of Contract The Specification The Drawings. In consideration of the payments to be made by the Employer to the Contractor as hereinafter mentioned. the Contract Price at the times and in the manner prescribed by the Contract. Between <Insert name of Employer> of Romania (hereinafter called "the Employer") of the one part. 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. in conformity with the provisions of the Contract. 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. 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.Romania. the Contractor hereby covenants with the Employer to execute and complete the Works and remedy any defects therein. and has accepted a Tender by the Contractor for the execution and completion of these Works and the remedying of any defects therein.DOC .

2includes the recommended templates for the FIDIC green book for contractual issues as outlined in Chapter 8 above: • • Agreement Appendix. .DOC .2.FIDIC Green Book This Appendix E. 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 154 E.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.…….DOC . ……………………………………….. Authorised to sign on behalf of (organization name): ………………………………………………………………. Date: ………………………………………………..…. ACCEPTANCE The Employer has by signing below.. (in figures) (………………………….. This offer. The Contractor is …………………………………………………………………………………………………………………………. .. The Employer desires the execution of certain Works known as ……………………………………………………………………………………………………………………………. bfc2-071_fidic user guide_250407_final... the Employer shall pay the Contractor in accordance with the Contract.. accepted the Contractor's offer and agrees that in consideration for the execution of the Works by the Contractor.) to which the following VAT amount will be added ………………………………………………………………………………………………………………… (in words) ……………………………………………………………………….. of …………………………………………………………………………………………………………………………….) or for such other sum as may be ascertained under the Contract. Capacity: ………………………………………. ……………………………………….. This Agreement comes into effect on the date when the Contractor receives one original of this document signed by the Employer... of ……………………………………………………………………………………………………………………………. Signature: Name: ………………………………………. Authorised to sign on behalf of (organization name): ………………………………………………………………. of ………………………………………………………………………………………………………………… (in words) ……………………………………………………………………….…. Signature: Name: ………………………………………. The Contractor understands that the Employer is not bound to accept the lowest or any offer received for the Works.. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 155 AGREEMENT The Employer is …………………………………………………………………………………………………………………………..Romania. (in figures) (…………………………. may be accepted by the Employer by signing and returning one original of this document to the Contractor before…………………… (date).……. of which the Contractor has submitted two signed originals. Date: ………………………………………………. excluding value added tax (VAT). Capacity: ……………………………………….

1 10% of the sum stated in the Agreement As per form attached Refer Specification Clause No.] Item Documents forming the Contract listed in the order of priority Document (delete if not applicable) (a) The Agreement………………… (b) Particular Conditions………….1 ______________ (details) 10..2 _____ days Romanian Law Romanian Commencement Date Sub-Clause 1..DOC .5 0. 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 11.4 1. 1. .2 7.2 ______________ (details) 7..4 4.Romania.1 3.9 1. 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. [Note: with the exception of the items for which the Employer's requirements have been inserted. (f) The Contractor's tendered design (g) The bill of quantities…………… (h) …………………………………. (c) General Conditions……………..1 3. (e) The Drawings………………….1 Document Identification Data bfc2-071_fidic user guide_250407_final. (d) The Specification……………….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 8.4 5.4 9.2 7. ….5 2.1 & 11. (i) ………………………………….2 Within 14 days of the Commencement Date 4.1.1. the Contractor shall complete the following information before submitting his offer..

per annum Insurances Type of Cover: The Works.3 11.3 Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final.3 Place of Arbitration 15.1 11.1 11.1 Amount: The sum stated in the Agreement plus 15% Full replacement cost 500 000 Euro per event.8 ___________________ 5% __________________ RON National Bank of Romania reference rate at Contract signature plus 3 percentage points.1 11.7 11. Unlimited number of events As per legislation in force Exclusions: 15.2 ______________ (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. Plants and Fees Contractor's Equipment Third Party injury to persons and damage to property Workers Other cover Arbitration Rules 14. . Materials.DOC .1) Percentage of retention Currency of payment Rate of interest 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 15.1 11.Romania. 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.

.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 158 Appendix F . bfc2-071_fidic user guide_250407_final.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).DOC .

in accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. The Employer. 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). Contractor and Member jointly agree as follows: 1. The Employer and the Contractor jointly and severally undertake to pay the Member.Romania.DOC . words and expressions shall have the same meanings as are assigned to them in the General Conditions of Dispute Adjudication Agreement. 2. the Member undertakes to act as the DAB (as adjudicator) in accordance with this Dispute Adjudication Agreement. 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. In accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. In these provisions. This Dispute Adjudication Agreement shall be governed by the law of Romania. For example: In the procedural rules annexed to the General Conditions of Dispute Adjudication Agreement. bfc2-071_fidic user guide_250407_final. [Details of amendments to the General Conditions of Dispute Adjudication Agreement. Rule _ is deleted and replaced by: ………] 3. 4. The conditions of this Dispute Adjudication Agreement comprise the "General Conditions of Dispute Adjudication Agreement". plus A daily fee of <Insert amount> per day. and the following provisions. 5. . if any. 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". which include amendments and additions to the General Conditions of Dispute Adjudication Agreement. the Member shall be paid as follows: A retainer fee of <Insert amount> per calendar month. in consideration of the carrying out of these services. 6.

.Romania.DOC . 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.

In accordance with Clause 6 of the General Conditions of Dispute Adjudication Agreement. In these provisions. as one of the three persons who are jointly to act as the DAB. as described in this Dispute Adjudication Agreement. For example: In the procedural rules annexed to the General Conditions of Dispute Adjudication Agreement. [Details of amendments to the General Conditions of Dispute Adjudication Agreement. The conditions of this Dispute Adjudication Agreement comprise the "General Conditions of Dispute Adjudication Agreement". in consideration of the carrying out of these services. bfc2-071_fidic user guide_250407_final. and the following provisions. The Employer and the Contractor jointly and severally undertake to pay the Member. 4. 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 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. 5. Rule _ is deleted and replaced by: " … "] 3. 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]. 6. 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. words and expressions shall have the same meanings as are assigned to them in the General Conditions of Dispute Adjudication Agreement.Romania. The Employer. Contractor and Member jointly agree as follows: 1. This Dispute Adjudication Agreement shall be governed by the law of Romania.DOC . the Member undertakes to serve. the Member shall be paid as follows: A retainer fee of <Insert amount> per calendar month. 2. plus A daily fee of <Insert amount> per day. if any.

DOC .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.

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