Romania Ministry of Public Finance Managing Authority for Infrastructure

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

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Romania Ministry of Public Finance Managing Authority for Infrastructure

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

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

Report no. Issue no. Date of issue

Employer User Guide for Particular Conditions of Contract A 25.04.2007

Prepared Checked Approved

LHM Andreea Toma/Alexis Gressier Lars H. Møller

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

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DOC . 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 .PC's for the FIDIC Red Book Appendix B . .Romania.PC's for the FIDIC Green Book Appendix D .DAB Agreements bfc2-071_fidic user guide_250407_final.Templates for Guarantees Appendix E .Templates for Contractual Issues Appendix F .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 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. 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.DOC . MPF Ministry of European Integration Ministry of Public Finance Ministry of Transport. . 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.

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

The above mentioned GEO No. It should also be noted that a particular tender procedure ends after the signature of the related contract (or after the cancellation of the procedure). 34/2006 transposes into Romanian legislation the relevant provisions of the European Directive No. in the best case.DOC . as. Therefore. it should be understood that tender procedures do not replace adequate and efficient contract management.1 Basic Rules for Works Contracts Procurement Rules In Romania. Furthermore. unless they are explicitly incorporated as part of the Contract documents. In addition. in case a contract is terminated. It is preferable to avoid introducing references to the conditions of contract within the instructions to tenderers. bfc2-071_fidic user guide_250407_final. they just repeat the provisions of the draft conditions of contract attached to the tender dossier and in the worst case. 2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 8 2 2. the procurement rules are defined by the GEO No. . without setting unreasonable constraints. as further approved and modified by Law No.Romania. 925/2006. The criteria used in the tender should be proportional to the requirements of the project. some rules referring to procurement shall be observed during the entire life of the contract. it is not legally possible to revert to the second ranked tenderer of the original procedure. The wish of a Contracting Authority to have a “good contractor” should not result into distortion of competition or artificial requirements. detailed rules are laid down in the Implementing Norms of the said ordinance. 337/2006.2 Tender Procedure and Conditions of Contract As such. 2. 18/2004/CE defining the overall procurement rules and procedures for the entire European Union. Finally. published under GD No.3 Procurement Rules after Contract Signature Even if the tender procedure ends after contract signature. 34/2006. they are in conflict with those. It is therefore recommended to seriously consider which documents should form part of the Contract. 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.

DOC . . to transform claims into disputes but should endeavour to find fair solutions in a reasonable time. when drafting particular conditions of contract.5 Contract Management The FIDIC Conditions of Contract are favouring a modern type of contract management.4). the Employer and the Contractor. 2.Romania. 34/2006. 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. The Parties should avoid. 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. with the assistance of the Engineer. 2.4 Particular Conditions The FIDIC Conditions of Contract define a careful balance between the rights and obligations of both parties. It is therefore recommended that Employers. • • bfc2-071_fidic user guide_250407_final. maintain this balance and refrain from modifying those provisions that are seen as favouring the Contractor (such as Sub-Clause 2. keeping only provisions that favour the Employer. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 9 In particular. This balance is one of the elements that made those conditions of contract successful and widely used around the world.

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

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

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

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

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

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

In order to clarify the sequence of Contract activities.5 & 10.8 & 11.DOC .3.3. 1.1 1.7 & 11. 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).4 & 14.6.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.1.1 1.3.1.7 & 14.2 1.1.1. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.3.1.3 & 8. and for EPC/Turnkey Projects.6 & 4.1.4 & 9. for Plant and Design-Build. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.2 1. .4.4.3.3) Performance Certificate Final Payment Certificate Figure 4-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.1.1.4) Tests on Completion Taking-Over Certificate Defects Notification Period (as extended under 11.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 16 In addition.3.1 1.Romania.1 & 13.3.2 & 8.9 1.3 1.1 1.1.7 1.

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

where works are valued by measurement. . For these Works. the Specification.2. 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. 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 the preparation of the Conditions of Contract to be included in the tender documents for a contract. and in all cases where other amendments or additions are made.Romania. either with the General Conditions or between the clauses in the Particular Conditions. the Drawings. the Bill of Quantities will usually be the most important Schedule. they are not intended for use where most of the works are designed by the Contractor. bfc2-071_fidic user guide_250407_final. The tender documents issued to tenderers will consist of the Conditions of Contract.DOC . Before incorporating any example wording. 4. example wording should be amended before use. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 18 works. 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.10. and a review by suitably qualified lawyers may be advisable. it must be checked to ensure that it is wholly suitable for the particular circumstances. For this type of contract. In addition. The guidance hereafter is intended to assist writers of Particular Conditions by giving options for various sub-clauses where appropriate. the following text can be used: “The Conditions of Contract comprise the "General Conditions". to cover minor works to be evaluated at cost. and the following "Particular Conditions". There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. A Daywork Schedule may also be necessary. Unless it is considered suitable. care must be taken to ensure that no ambiguity is created. 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. the Contract includes these completed Schedules. When the Employer accepts the Letter of Tender.” Where example wording is amended.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. each of the Tenderers should receive the data referred to in SubClause 4.

4 .5.7 Requirements for Contractor's Documents Phased possession of foundations. 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. gas and other services available on the Site .7. and include a questionnaire in the Schedules.4.1 . The Employer may require other data from Tenderers.4. water.6.19 Electricity. If each Tenderer is to produce a parent company guarantee and/or a tender security. providing a convenient location for the data which is usually required.4.4.6 .1.1 .18 Environmental constraints . either in the General Conditions or in the example Appendix to Tender.2.20 Employer's Equipment and free-issue material . The example form in Appendix D2 provides a checklist of the data required.5 Provisional Sums. 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.8 . The Instructions to Tenderers may include matters referred to in some or all of the following Sub-Clauses: bfc2-071_fidic user guide_250407_final.6 .4. but there is no indication.14 Third parties .1.7.2 .13 Permissions being obtained by the Employer .1. 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: . The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender. based on this example form. .9.13.Romania. structures. with the elements completed to the extent of his requirements. plant or means of access Contractor's designs Other contractors (and others) on the Site Setting-out points. and/or specify the extent of other information which each Tenderer is to include with his Tender.DOC . lines and levels of reference .4.4. The Employer should prepare the Appendix to Tender.1 Nominated Subcontractors Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion .1 . that this data is either prescribed by the Employer or inserted by the Tenderer.

1 the definition of the "Base Date" may be changed to reflect a particular calendar date.1 Clause 1 . 273/1994). Such definition is set out in the mandatory particular conditions in Appendix A1.4. Such definition is set out in the mandatory particular conditions in Appendix A1.1. 4.Definitions It will be necessary to amend some of the definitions. In Sub-Clause 1. with a clause-by-clause review.DOC . 273/1994).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.3 . . In new Sub-Clause 1.3. In Sub-Clause 1. The following definitions should be modified: • In Sub-Clause 1. In Sub-Clause 1.General Provisions Sub-Clause 1. Under Romanian public procurement regulations.3.1.1 . • • • • • • bfc2-071_fidic user guide_250407_final.1. 4.1 the definition of Contract shall reflect the deletion of Letter of Acceptance. the requirements of the Romanian procurement legislation and for clarification of the general conditions. and Article 94 of GD No.3.1.9.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.1 . The amendment of such definition is set out in the mandatory particular conditions in Appendix A1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 20 . 925/2006).3 the definition of the Letter of Acceptance shall be deleted.1.4.1.4. due to Romanian legislation in force.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.4.Romania.18 .1.3.3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Red Book. 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. In new Sub-Clause 1. 34/2006.9 .1. In Sub-Clause 1.20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Insurances Resolution of disputes.6 the "Foreign Currency" should be indicated.

1.Law and Language No need for particular conditions related to this sub-clause.1. such as: “In these Conditions. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. (Article 95(2) of GD No. should be introduced prior to the Contract signature. the latter shall prevail. are not repeated in the General Conditions. in case a conflict is subsequently found among the contract documents In Sub-Clause 1. Such provision is recommended so as to provide a clear reference during implementation.Romania. significant components of the Contractor’s proposal (key personnel. 925/2006). Sub-Clause 1.4 .DOC . laws.2 . ordinances. traffic management and/or environmental management plans). so as to ensure some enforceability to this proposal. Sub-Clause 1.4. if during the performance of the Contract.Priority of Documents An order of precedence is usually necessary. in case a Contractor’s programme bfc2-071_fidic user guide_250407_final.Interpretation If the references to "profit" are to be more precisely specified. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications. 925/2006).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.6. although applicable in many sub-clauses. if needed. A proposed amendment is included in the mandatory particular conditions in Appendix A1.3 . New Sub-Clause 1. method of works. the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No.5 .8 "Local Currency" should be defined as RON (Romanian Leu).2 may be varied.1.5. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present sub-clause.13 should be inserted to define the expression "Unit Price" as follows: “Unit Price is the price of a unit quantity in the Bill of Quantities excluding VAT. In Sub-Clause 1.6. outline of quality assurance. Furthermore.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that. 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.” Sub-Clause 1.” • • In Sub-Clause 1. key equipment.1. as well as the fact that. in particular when evaluating claims.6. Non-compliance might have serious consequences.2 "Country" should be defined as Romania. . Sub-Clause 1. In Sub-Clause 1. Even if the Contract clearly specifies the priority of documents. decisions. consistence of these with the tender documents should be checked and corrections.4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 21 • • In Sub-Clause 1.5 “Applicable Laws” should be defined as all Romanian legislation.

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

it may be desirable for each member to produce a parent company guarantee.15 . New Sub-Clause 1. detailed requirements for the joint venture may need to be specified. The wording of such Sub-Clause could be as follows: “The Contractor shall treat the details of the Contract Agreement as private and confidential. permits to relocate public utilities.Romania. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws.2 Clause 2 . The Employer should scrutinise the joint venture agreement carefully.1 . both early and thereafter exclusively. In case right of access is to be granted by stages.3. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer.The Employer Sub-Clause 2.” 4. permit to be published. bfc2-071_fidic user guide_250407_final. an additional sub-clause may be added. with all particulars.2. 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. An example form is annexed to this document in the templates of guarantees in Appendix D1.DOC . this should be clearly stated. These requirements. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 23 dence and work permits. should be included in the Instructions to Tenderers. The Contractor shall not publish. etc. Sub-Clause 1.Joint and Several Liability For a major contract.3 [Programme].Right of Access to the Site If right of access cannot be granted. providing a single point of contact thereafter. and it may have to be approved by the project's financing institutions. and will not wish to be involved in a dispute between the members of a joint venture. permits for radio communication. Within 21 days of the signature of the Contract Agreement. For example. details should be given. the Contractor shall submit to the Engineer the detailed planning of the Works. which apply prior to the Contract becoming effective. 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. Employers shall be particularly careful in relation with this sub-clause. . The Employer will wish the leader of the joint venture to be appointed at an early stage. In case right of access and possession is not to be granted exclusively.Details to be Confidential If confidentiality is required. 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 8.14 .

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

The Contractor shall forthwith comply with any such instruction of the Engineer. for example: a) Sub-Clause 4. that is those providing more than x% of the Accepted Contract Amount) b) Sub-Clause 8. the example wording should be varied. This list should be extended or reduced as necessary.4: Specific approval of the Employer is required before issuing consent for any Sub-Contractor. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 25 4. in the opinion of the Engineer. without relieving the Contractor of any of his duties and responsibilities under the Contract. Such limitations should (i) be specifically detailed in the Particular Conditions and (ii) truly correspond to those mentioned in the Engineer’s contract.DOC .4 and/or Sub-Clause 13. Employers might wish to limit the authority of the Engineer.2 . the Conditions of Contract provide for several additional duties and authority. an emergency occurs affecting the safety of life or of the Works or of adjoining property. financial or otherwise.1 . Employers might want to add. this obligation could be limited to major Sub-Contractors.1: Specific approval of the Employer is required before instructing or approving any extension of the Time for Completion c) Sub-Clause 13. If the obligation to obtain the approval of the Employer only applies beyond certain limits. if. It is also recommendable to add the following precisions. .Delegation by the Engineer No need for particular conditions related to this sub-clause.3 Clause 3 . in respect of such instruction.Engineer's Duties and Authority Any requirements for Employer's approval should be set out in the Particular Conditions.3. in accordance with Sub-Clause 13. 10/1995.” Sub-Clause 3. or similar: “Notwithstanding the obligation. with a copy to the Employer. (alternatively. It is clear that the Engineer has the role defined in very general terms in Article 21 paragraph d) of Law No.1 and shall notify the Contractor accordingly. instruct the Contractor to execute all such work or to do all such things as may. to obtain approval. In addition to those limitations included in the mandatory particular conditions (Appendix A1) and deriving from the applicable Romanian legislation. The Engineer shall determine an addition to the Contract Price.The Engineer Sub-Clause 3. However. Attention of the Employers is drawn on the fact that such prior approval transfer responsibility from the Engineer to the Employer.Romania. bfc2-071_fidic user guide_250407_final. be necessary to abate or reduce the risk. in order to maintain control on some of the main features. as set out above. in the opinion of the Engineer. he may.1: Specific approval of the Employer is required before instructing or approving the omission of any work.

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. there may be an item of Temporary Works for which the Contractor will not be fully responsible. while waiting for additional supporting particulars. claims for extras.3.Romania. under the Contract.Management Meetings It is recommendable to introduce reference to management meetings. For example.Determinations Attention is drawn on two issues: As per Sub-Clause 1. determinations should not be unreasonably withheld or delayed. the Contract may specify temporary arrangements for river diversion which have been designed by the Engineer.” 4. responsibilities for any actions to be taken shall be in accordance with the Contract. Time and place of these meetings shall be mutually agreed taking into consideration the subject to be discussed. current and anticipated difficulties. New Sub-Clause 3. . In general.DOC . or from an assistant to whom the appropriate authority has been delegated under this Clause. claims should be dealt with in a timely manner. a review of schedules and plants for future activities.Contractor's General Obligations Occasionally. the designer or other entities are not to issue instructions directly to the Contractor. The Engineer shall record the business of management meetings and supply copies of the record to those attending the meeting and to the Employer.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 status of staffing.4 Clause 4 . safety. within two working days from the meeting. engineering. the Sub-Clause may require amendment.5 .3 . Determinations enter into force immediately. - In practice. interface with other Contractors.6 .The Contractor Sub-Clause 4.” Therefore. equipment. material supply. Sub-Clause 3. In these cases.3. The agenda for such meetings shall cover a review of progress attained. In the record. Sub-Clause 3. in order to avoid delays. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 26 Sub-Clause 3.1 .4 . Employers might consider introducing a time limit for issuing determinations. Such meetings shall take place on a monthly basis.Replacement of the Engineer No need for particular conditions related to this sub-clause. the Engineer could issue an interim determination before issuing a final one. taking ac- bfc2-071_fidic user guide_250407_final. and other pertinent topics. payments.

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

“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.Contractor's Representative If the Representative is known at the time of submission of the Tender.2 .Performance Security Sub-Clause 4. or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language. annexed to the Particular Conditions. which is based at 38 Cours Albert 1er.Romania.” The acceptable form(s) of Performance Security should be included in the tender documents. The value of the Performance Security is normally based on the Accepted Contract Amount. it is recommended to include: “The Performance Security of a joint venture or consortium shall specify the name of the joint venture or consortium. They incorporate the Uniform Rules published by the International Chamber of Commerce (the "ICC"). a modification of the clause may be made in the particular conditions. it is recommended to request submission of the Performance Security at the signature of the Contract Agreement. it should amend the second sentence of the second paragraph of Sub-Clause 4. shall promptly increase the value of the Performance Security by an equal percentage. For large projects with possibly important cost-overruns. by more than ten (10%) percent. 925/2006. France). The Tenderer may wish to propose alternatives.” Sub-Clause 4. If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1.2 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. the Contractor. The proposed amendments are included in the mandatory particular conditions in Appendix A1.3 .2 as follows: “The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer. 925/2006). especially if the contract award seems likely to be delayed. the Tenderer may propose the Representative. it is recommendable to add the following text at the end of this Sub-Clause. A recom- bfc2-071_fidic user guide_250407_final. In order to avoid the risk of termination in case of failure by the Contractor to submit the Performance Guarantee.DOC .” To avoid difficulties in case of Joint Ventures. which also publishes guides to these Uniform Rules. As per the provisions of Article 89 paragraph (2) of GD No. Example forms are annexed to this document in the templates of guarantees in Appendix D1. In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions. 75008 Paris. . at the Engineer’s written request. it cannot exceed 10% of the Contract Price VAT excluded.4). and shall be in the form annexed to the Particular Conditions. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 28 Sub-Clause 4.

DOC .Romania. it is possible to specify (under Sub-Clause 14. In order to ensure that a properly nominated Contractor’s Representative is available at all times. according to the same Article 96(2) of GD No. 925/2006). as follows: At the end of point (b). The role of the Contractor’s Representative should be highlighted. The proposed modification is included in the mandatory particular conditions in Appendix A1.Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. Moreover. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). the Contractor must provide the Employer with the relevant subcontracts. this amount should be clearly stated. but also his revocation has to receive the prior consent of the Engineer. However. In such case. On a case-by-case basis. 925/2006).3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. Not only his nomination. Replace the first sentence of Sub-Clause 4. It is therefore possible to limit such requirement. Please also note that.4 with: “The Contractor shall not subcontract a larger value of the Works than the maximum specified in the Appendix to Tender. 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. . under Romanian public procurement regulations. typically in the Appendix to Tender. 925/2006. Sub-Clause 4. which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96(1) of GD No. replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor. 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.” bfc2-071_fidic user guide_250407_final.4 . if parts of the Works are to be performed by Subcontractors. 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. the Engineer’s prior consent for subcontractors might lead to excessive administration.” Subject to the mandatory provisions of the Romanian public procurement regulations. It is also recommendable to make reference to the key qualifications required at the time of the Tender. at the signature of the Contract Agreement.

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

” %) of which shall be inpercent of the Cost shall be Sub-Clause 4.DOC . further paragraphs may be added. . Sub-Clause 4.Romania. Sub-Clause 4. 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. Sub-Clause 4. In case a description or an outline of the quality assurance system was submitted as part of the Tender.11 . Sub-Clause 4. Sub-Clause 4.Site Data Under this Sub-Clause.Transport of Goods No need for particular conditions related to this sub-clause. this Sub-Clause should establish a link with the documents provided. Sub-Clause 4.1 and Sub-Clause 4.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2.Right of Way and Facilities No need for particular conditions related to this sub-clause.20. Sub-Clause 4.Unforeseeable Physical Conditions In the case of major sub-surface works. Sub-Clause 4.Quality Assurance The wording in the General Conditions imposes the requirement of a quality assurance system in accordance with details specified in the Contract. 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). Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions.14 .Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. per cent ( cluded in the Contract Price (the balance borne by the Contractor).12 and substituting by: “(b) Payment for any such Cost.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works. bfc2-071_fidic user guide_250407_final.9 .15 . If vesting of Contractor's Equipment is required.17 .13 . the Employer's obligations should be specified: see SubClause 4.Avoidance of Interference No need for particular conditions related to this sub-clause. Sub-Clause 4. subject to their being consistent with applicable laws.12 may be amended by deleting sub-paragraph (b) of Sub-Clause 4. If this risk is to be shared between the parties. usually as part of the tender documents. the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.16 .13.10 .12 .

Sub-Clause 4. for use of Employer’s Equipment or of free issue materials. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers.DOC . 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. as well as the time and place where they will be made available should be defined.” Sub-Clause 4. they should be very careful so as to ensure fair and transparent conditions of competition. in order to clarify aspects such as liability and insurance. including locations and prices. bfc2-071_fidic user guide_250407_final. the Specification should give details. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements. Furthermore.Romania.” Sub-Clause 4. . while detailed information regarding the quality and quantity of free issue materials.21 . Sub-Clause 4.19 . 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.5. if this is not located on the Site. Employers might want to include in this Sub-Clause a provision for indemnification in case of default. It might be advisable to extend it to Equipment brought to the Contractor’s site installation. For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause. In case Employers intend to use this Sub-Clause. further provisions may be necessary. so as to define their condition and suitability for use.18 . to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. Water and Gas If services are to be available for the Contractor to use. It is advisable to have those materials surveyed as part of the tender. 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).Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements. subject to Sub-Clause 2. With some types of facilities. 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.Employer's equipment and Free-Issue Material For this Sub-Clause to apply.Protection of the Environment For Works to be executed in particularly environmentally sensible areas.Electricity.20 . the Employer shall be entitled.

actual quantities. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor.Contractor's Operations on Site No need for particular conditions related to this sub-clause. the work breaks due to adverse meteorological conditions.21 [Progress Reports] with subsequent description in the Specifications): “The Contractor shall draw up a works diary for contemporary records. the equipment out of order.” Sub-Clause 4. Atmospheric conditions. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties.23 . 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. the Employer's obligations should be specified. the tests completed. supplies accepted for incorporation into the Works. 2.Fossils No need for particular conditions related to this sub-clause. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. if need be. but can be signed. it is recommendable to precise that: “For the purposes of this Sub-Clause. the unforeseen events. For example. These attachments are part of the works diaries. Sub-Clause 4. In these circumstances. Such use and access shall be regulated as part of the Contractor’s traffic management plan. 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. 3. Sub-Clause 4. the sent samples. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. New Sub-Clause 4.24 . it may not be appropriate for him to be responsible for its security. such as completed Works.DOC . bfc2-071_fidic user guide_250407_final. the materials incorporated into the works. as well as verbal orders given to the Contractor. in the case of a road rehabilitation project. in a format agreed by the Engineer. during the reported period.22 . The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. the working hours. as separate documents. the number and the qualification of the personnel working on Site.Security of the Site If the Contractor is sharing occupation of the Site with others. . At the Engineer’s request. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works.Romania.

bfc2-071_fidic user guide_250407_final.Payments to nominated Subcontractors No need for particular conditions related to this sub-clause. If a nominated Subcontractor is to be required. Employers might also consider the conclusion of a separate contract. 10/1995.Evidence of Payments No need for particular conditions related to this sub-clause. describing the particular circumstances. full details should be included in the tender documents.4.4 . Sub-Clause 5. 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. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. the Contractor has to inform in writing the Engineer about his remarks within 14 days from the date when the notice has been recorded in the works diary or attachments”. The sub-paragraphs of Sub-Clause 5. the Contractor might be required to provide inputs to the Construction Book.Nominated Sub-Contractors In most cases under Sub-Clause 4. Clause 5 should be amended.3 . In case of disagreement on a subject noted in the works diary or attachments.2 .5 Clause 5 . the Contractor selects Subcontractors. Sub-Clause 5.1 . 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.2 indicate some of the problems which may have to be overcome. Sub-Clause 5. . If the Employer anticipates that a Subcontractor is to be instructed under Clause 13 but is not to be a nominated Subcontractor.DOC . New Sub-Clause 4. Sub-Clause 5.Romania.26 .4.3.Objection to Nomination No need for particular conditions related to this sub-clause. Such inputs should be clearly defined.Definition of "nominated Subcontractor" No need for particular conditions related to this sub-clause. Furthermore. subject to any constraints specified in the Contract. it is advisable to introduce provisions similar with those of the conditions of contract for plant and design-build (Sub-Clause 5. according to Sub-Clause 4.As-Built Drawings In order to ensure full compliance with the requirements of Law No. 4. Before using this Clause. Clause 5 provides for the particular situation whereby the Employer may select a Subcontractor.6). signed by the Contractor’s Representative and countersigned by the Engineer or his representative. although the Contractor remains responsible for any act or default of Subcontractors.

for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. requests of the Contractor to work outside the normal working hours will have an impact on the activity of and required inputs from the Engineer. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 35 4. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift.6 .Facilities for Staff and Labour If the Employer will make some accommodation available. Sub-Clause 6. .DOC .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.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender. Sub-Clause 6.4 .Persons in the Service of Employer 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.2 . such as traffic management. chemicals.5 .Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause. Sub-Clause 6. etc.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.3 . Any replacement personnel shall be at least of equivalent qualification and experience.” Sub-Clause 6. except for those activities requiring continuous presence on Site.” Sub-Clause 6. Sub-Clause 6. this Sub-Clause may be deleted. In some cases.8: bfc2-071_fidic user guide_250407_final.3. his obligations to do so should be specified.Staff and Labour Sub-Clause 6.1 . Sub-Clause 6. for example). or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision.Labour Laws According to the Procurement Guide.7 .6 Clause 6 .8 .Contractor's Superintendence Add the following text at the end of Sub-Clause 6. 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 addition to any criminal liability which may be thereby incurred. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. bfc2-071_fidic user guide_250407_final.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works. or allow Contractor’s Personnel to do so. barter or disposal by Contractor’s Personnel. (d) Illegal Payments Any commission.” Add the following paragraphs at the end of Sub-Clause 6. (b) Alcoholic Liquor or Drugs The Contractor shall not. barter or otherwise dispose of any alcoholic liquor or drugs. 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.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works. barter or otherwise dispose to any person. (c) Arms and Ammunition The Contractor shall not give. Any amount paid shall be deducted from the Contractor's payment due. Sub-Clause 6. the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial.Disorderly Conduct No need for particular conditions related to this sub-clause.Romania. give. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. sell.Plant Materials and Workmanship Sub-Clause 7. 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. 4. Sub-Clause 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.8).10 .1 .Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause.9 . The Contractor must ensure that these personnel are provided with the required residence visas and work permits.7 Clause 7 . In the event of the death in the Country of any of these personnel or members of their families. or permit or allow importation.” Sub-Clause 6. gratuity.Contractor's Personnel No need for particular conditions related to this sub-clause. gift.3. sale. import. gift.11 . any arms or ammunition of any kind.DOC . advantage. . reward or bribe given. The prohibition of “Hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4.

Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment. the Contractor shall give notice to the Engineer and (if appropriate) submit proposals for compliance. If changed or new applicable standards come into force in the Country after the Base Date. if any. . debris and hazardous waste. building. Sub-Clause 7. and b) the proposals for compliance constitute a variation.Remedial Work No need for particular conditions related to this sub-clause. this should be made clear in the Specifications. Sub-Clause 7. the execution and the completed Works shall comply with the Country's technical standards.5 . Laws applicable to the product being produced from the Works.4 of the conditions of contract for plant and design-build): “The design. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 37 Sub-Clause 7. bfc2-071_fidic user guide_250407_final. waste piles. in respect of the Works and each Section. Sub-Clause 7. In the event that: a) the Engineer determines that compliance is required. the Contractor's Documents. unless stated otherwise.Romania. construction and environmental Laws.8 . Sub-Clause 7.” New Sub-Clause 7. References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date. Sub-Clause 7.Rejection No need for particular conditions related to this sub-clause.9 .Samples No need for particular conditions related to this sub-clause.Testing No need for particular conditions related to this sub-clause.DOC .Ownership of Plant and Materials No need for particular conditions related to this sub-clause. and other standards specified in the Specifications.4 . Sub-Clause 7.Technical Standards and Regulations It is advisable to precise (as per the provisions of Sub-Clause 5.2 .Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. or defined by the applicable Laws. etc).6 . levied in relation to the dumping of part or all of such materials. applicable to the Works.3 . be those prevailing when the Works or Section are taken over by the Employer under Clause 10 [Employer's Taking Over]. All these Laws shall.7 .

Failure of the Employer to provide access to and possession of the Site in due time might delay the Commencement Date and have serious consequences. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 38 then the Engineer shall initiate a Variation in accordance with Clause 13 [Variations and Adjustments].8 Clause 8 . subject to Sub-Clause 2. in the Appendix to Tender.” 4.Commencement.Time for Completion It has to be highlighted that. If the Works are to be taken-over in stages.1 is ensured. to payment of damages by the Contractor.3 .Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. these stages should be defined as Sections. the expiry of the Time for Completion does not relieve the Contractor from its obligation to perform the Works. The programme is primarily a document prepared by the Contractor. . delays and Suspension Sub-Clause 8. Failure to comply with this provision shall entitle the Employer.1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice.3.1 and Sub-Clause 8. 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.5.4 .” Sub-Clause 8.DOC . nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8. there is no need to amend the Contract in any way. as the Contract clearly describes how to handle this situation.2 . under its full responsibility.7). Sub-Clause 8. For example. In case the Works are not completed during the Time for Completion. the last sentence defines strong obligations for the Contractor.Extension of Time for Completion No need for particular conditions related to this sub-clause.1 . On the other hand. Sub-Clause 8. It is advisable to provide a time-limit for the submission of a revised programme. It is highly recommended not to sign any contract before compliance with SubClause 2. In case Employers know that the Commencement Date for a part of the Works will be delayed.Romania. 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.Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer.

the Employer will be entitled.3 or revised under the third paragraph of Sub-Clause 8. (Other items). Such indicators however shall be defined based on the Contractor’s work programme. if and when the milestone is reached. In case the Contractor incurs delays in the achievement of a milestone. Before using such system. 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. subject to Clause 2.05% of the Accepted Contract Amount per day of delay. Milestone 1 is defined hereafter. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. the milestones have to be updated in accordance with the provisions above.Delays Caused by Authorities No need for particular conditions related to this sub-clause. up to a maximum of 10% of the Accepted Contract Amount. The Contractor work programme under the present Sub-Clause is submitted. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 39 Sub-Clause 8.5.Romania. This system includes five milestones for monitoring and evaluation of the progress of the Works. The amount so withheld shall be paid to the Contractor.15(b). Sub-Clause 8. If the Accepted Contract Amount is expressed in the Local Currency. Sub-Clause 8. It is therefore possible to include a “milestones system” along the example provided below. bfc2-071_fidic user guide_250407_final.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. 28 days after the Commencement Date: All Contractor key personnel are on Site. the Engineer will define those four indicators. In case no agreement is reached during such period. Milestone 1 is defined as the achievement of the following indicators. .6 . as submitted under the first paragraph of Sub-Clause 8. to withhold from the Interim Payment Certificates an amount equal to 0. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works.3. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. Whenever a revised programme is being submitted. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. is controlled through a milestones system.7 . If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. Compliance of the progress of the Works with the Contractor’s programme.DOC .5 .Delay Damages Under many legal systems.

The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price.12 .Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause.Tests on Completion Sub-Clause 9.DOC .11 . it might be envisaged to (i) introduce a higher amount of delay damages. . but the Employer’s Claims procedure defined under Sub-Clause 2. 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. Sub-Clause 8. but also (ii) introduce a bonus for acceleration. Sub-Clause 8. Sub-Clause 8. except in the event of termination by the Employer.Romania. in duly justified cases. This tends to restrict the constitution of “black lists” or other similar instruments.13 . the tests requirements may have to take account of the effect of some parts of the Works being incomplete. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time.9 Clause 9 .Prolonged Suspension No need for particular conditions related to this sub-clause. If the Works are to be tested and taken-over in stages. 4. etc.3.8 .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).Resumption of Work No need for particular conditions related to this sub-clause. 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. waive their rights to delay damages. It should also be noted that Employers might. It is also mentioned that these delay damages are the only damages due for such default (late completion).1 .). Sub-Clause 8. Sub-Clause 8. or suspend the actual payment of such damages by the Contractor until the completion of the Works.Incentives for Early Completion Incentives for early completion may be included in the tender documents (although Sub-Clause 13. New Sub-Clause 8.10 .5 has to be followed. bfc2-071_fidic user guide_250407_final.9 .Consequences of Suspension No need for particular conditions related to this sub-clause. For example. For contracts where completion of the Works by a certain date is of paramount importance.Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed.

Interference with Tests on Completion No need for particular conditions related to this sub-clause. Sub-Clause 10.3 . .Delayed Tests No need for particular conditions related to this sub-clause. Sub-Clause 9. 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”.2 .2 . 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 41 Sub-Clause 9.Romania. Sub-Clause 10.DOC . GD No. it might be recommendable that the Engineer be nominated as representative of the Employer. the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed.Taking-Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No. Precise geographical definitions are advisable. 925/2006) are reflected in the mandatory particular conditions in Appendix A1. these stages should be defined as Sections. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. 4. Sub-Clause 9.10 Clause 10 .Retesting No need for particular conditions related to this sub-clause.4 . 273/1994).3. 273/1994. bfc2-071_fidic user guide_250407_final.Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause. Such regulations are reflected in the mandatory particular conditions in Appendix A1. and the Appendix to Tender should include a table. 273/1994. in the Appendix to Tender.3 .Failure to Pass Tests on Completion No need for particular conditions related to this sub-clause. Sub-Clause 10. The role of the Engineer in the taking-over commission is not defined.4 . Unless expressly forbidden by the Law. The Employer must nominate a taking-over commission (Article 7 of GD No. On the other hand.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.Employer's Taking-Over Sub-Clause 10. so as to define the Time for Completion and delay damages: example of this table is shown in the Appendix D2.1 .

Performance Certificate This Sub-Clause needs to be amended in order to comply with Romanian regulations related to taking-over of Works set out mainly in GD No. a Section. a Section or a significant part of the Works. Such regulations are reflected in the mandatory particular conditions in Appendix A1. However. if and to the extent that the Works. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 42 4.6 .9 .7 .Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final.3 .3. the Contractor is liable for the latent defects of the Works during a 10 year period.11 Clause 11 . Sub-Clause 11.” Sub-Clause 11.DOC . whilst his liability for defects affecting the structure subsists during the lifetime of the Works (Article 29 of Law No. Sub-Clause 11.Right of Access No need for particular conditions related to this sub-clause. Sub-Clause 11.10 .8 .Failure to Remedy Defects No need for particular conditions related to this sub-clause. 273/1994. The issue of the Performance Certificate represents the acceptance of the Works.Further Tests No need for particular conditions related to this sub-clause.Extension of Defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2.Removal of Defective Work No need for particular conditions related to this sub-clause.5 . Sub-Clause 11.Romania. . Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix A1.2 . 10/1995). 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. Sub-Clause 11.4 .Contractor to Search No need for particular conditions related to this sub-clause.Defects Liability Sub-Clause 11.1 . Sub-Clause 11.5 to an extension of the Defects Notification Period for the Works. It is therefore normal that the final payment and final evaluation of the Contract Price comes after such acceptance. Sub-Clause 11. a Defects Notification Period shall not be extended by more than two years. a major item of Plant or significant part of the Works (as the case may be.Unfulfilled Obligations Under Romanian law.Costs of Remedying Defects No need for particular conditions related to this sub-clause.

5%” In Sub-Clause 12. it is recommendable to define a schedule of payments.3 (a) (i): replace “10%” with “15%” In Sub-Clause 12.Omissions No need for particular conditions related to this sub-clause.4 . Sub-Clause 12. Sub-Clause 13. For “lump sum” items.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 43 Sub-Clause 11.1 .Measurement and Evaluation Sub-Clause 12.DOC .3.3. such “satisfaction” should be properly documented. b) The Contractor may initiate his own proposals under Sub-Clause 13. 4.12 Clause 12 . without prior agreement as to feasibility or price.Romania.3 .3 (a) (iii): replace “1%” with “2%”. 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”. Sub-Clause 12. .2 .Clearance of Site No need for particular conditions related to this sub-clause. variations do bfc2-071_fidic user guide_250407_final.3 (a) (ii): replace “0. Sub-Clause 12.01%” with “0.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. which are intended to benefit both Parties. seeking prior agreement so as to minimise dispute.11 .3. From this point of view. including any records for which the Contractor is to be responsible.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. 4.2.13 Clause 13 . Furthermore. details should be specified in the tender documents. or c) The Engineer may request a proposal under Sub-Clause 13.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13.Evaluation It is advisable to include the following: In Sub-Clause 12.Works to be Measured If any part of the Permanent Works is to be measured according to records of its construction.1 .

the conditions of Article 122(i) of GEO No. variations have to be made or confirmed in writing. Materials or services other than from a nominated Subcontractor. However. The Contractor shall not be entitled to any extension of time. 925/2006. as any instruction. Under the procurement legislation. 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. Such formula bfc2-071_fidic user guide_250407_final.7 . Cost or profit related to such period of review and approval. Sub-Clause 13. Sub-Clause 13. The last sentence of this Sub-Clause is of importance and introduces the principle of “non-retroactivity”. The possibility and principles of such adjustments are foreseen in Article 97 of GD No. 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.DOC . For any contract of duration of more than 12 months.4 . additional works are to be treated with considerable care. Sub-Clause 13.3 . 34/2006 have to be met.Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause. Sub-Clause 13. 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. The relevant wording is included in the mandatory particular conditions in Appendix A1.Romania.6 .8 .5 .2 . it is strongly recommended to include a price adjustment formula.Variation Procedure No need for particular conditions related to this sub-clause.Payment in Applicable Currencies No need for particular conditions related to this sub-clause. a percentage of 5% is being used. Sub-Clause 13.” Typically.Provisional Sums It is recommended to modify point (b) (ii): “A sum for overhead charges and profit.Adjustment for Changes in Cost These provisions for adjustments may be required if it would be unreasonable for the Contractor to bear the risk of escalating costs due to inflation.” Sub-Clause 13. In particular.Daywork No need for particular conditions related to this sub-clause. calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender. including for the period required for its review and approval.

these Conditions would be inappropriate if significant design input by the Contractor is required. FIDIC's other bfc2-071_fidic user guide_250407_final. typically by the National Institute of Statistics. and any other matters relating to payment.3. the provisions in the General Conditions which entitle the Contractor to payment of additional Costs will generally be of no effect. Actually the multiplier is calculated for the works performed during month n. A positive cash flow is clearly of benefit to the Contractor. Further design by the Contractor (under sub-paragraphs (a) to (d) of Sub-Clause 4. If the Contractor is to be paid actual Costs. consideration should be given to the amount and timing of payment(s) to the Contractor. without having to refer back to the Engineer for clarification or further information.14 Clause 14 . Additional Sub-Clauses may be required to cover any exceptions to the options set out in Sub.7 are not subject to this restriction. rise or fall in the cost of labour. Cases provided by Clause 13.1) is not precluded. it is sufficient not to fill in any “table of adjustment data”.” 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. Thus the Contract Price shall not be subject to any adjustment due to inflation. In those cases. Clause 12 should be replaced by provisions describing the method of determining the Costs and Contract Price. are unusual and only used when (for reasons of urgency or otherwise) the Employer is willing to accept the risks involved. 4. However.Contract price and Payment Sub-Clause 14.Clause 14. As a result. and tenderers will take account of the interim payment procedures when preparing their tenders. 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. the Contractor can prepare any other details necessary.1.1 . in order to remove any ambiguity. Lump sum contracts may be suitable if the tender documents include details which are sufficiently complete for construction and for Variations to be unlikely. However.Romania.1(a) would not apply if payment is to be made on a lump sum basis. If the contract is intended to be at fixed rates. under which the actual Costs are determined and paid. . Cost-plus contracts.DOC . From the information supplied in the tender documents. 925/2006). and construct the Works. materials or any other matters affecting the execution of the Contract. Sub-Clause 14.The Contract Price When writing the Particular Conditions. 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.

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

DOC . Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2.5. Sub-Clause 14.Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. 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. through the provision of supporting particulars. 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. - - Sub-Clause 14. Sub-Clause 14. he can also include in his claim the related financing costs.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7.5 . but in case of arithmetical mistakes. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 47 tenderers would have to price each object.7. Furthermore. such works are considered as finally approved only at the issue of the Performance Certificate.Romania. They do not imply acceptance of any work and might be modified afterwards. . Although modifications regarding works already certified should remain the exception. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix A1. by definition. The Contractor is to be notified of the value of the Interim Payment Certificate. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. It also has to be noted that. in case the Employer considers that an undue payment has been made. interim. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations. It has to be noted that the Employer is not entitled to modify any Payment Certificate.2). 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 . The scope of those provisions is to ensure that an adequate flow of cash is maintained. Such amendments are included in the mandatory particular conditions in Appendix A1. Interim Payment Certificates are.7 .Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. bfc2-071_fidic user guide_250407_final. The Engineer is due to substantiate its determination.

In such case.Delayed Payment When payments are made in Euro (or EUR).Romania. .9 . as specified for the Performance Security in Sub-Clause 4. it is useful to indicate that the central bank of the Country is the European Central Bank. bfc2-071_fidic user guide_250407_final. in amounts and currencies equal to the payments to be made. 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. as published in the C series of the Official Journal of the European Communities. annexed to the Particular Conditions: an example form is annexed in Appendix D1.9.4 [Schedule of Payments].9: “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. Sub-Clause 14. after he obtains such guarantee. when the Taking-Over Certificate has been issued for the Works. 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. in force on the first calendar day of the month in which the due date falls.DOC . while the Contractor shall be entitled. Sub-Clause 14. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects.Application for Final Payment Certificate No need for particular conditions related to this sub-clause.8 .12 . 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.2. in accordance with the estimates submitted under SubClause 14. in a form and provided by an entity approved by the Employer.10 . The Contractor may gradually increase the amount of the bank guarantee.Discharge No need for particular conditions related to this sub-clause. add the following paragraphs at the end of Sub-Clause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 48 Sub-Clause 14.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. increased by three and a half percentage points. Sub-Clause 14. Sub-Clause 14. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money.11 ." The acceptable form(s) of guarantee should be included in the tender documents.Statement of Completion No need for particular conditions related to this sub-clause.

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

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

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

Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. Sub-Clause 16. under the provisions of the Contract. depending on the complexity of the project (for example.” Sub-Clause 15.Cessation of Work and Removal of Contractor's Equipment 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 16. up to the completion of the respective Works. Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix A1.3. payments on termination will usually occur in a difficult situation of conflict. 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.2. It might be appropriate to define a time limit for the Contractor to submit its request. that once the Contract is terminated. .2. Sub-Clause 15.4 .3 . bfc2-071_fidic user guide_250407_final.3 . the advance payment shall be repaid immediately by the Contractor (if not. 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.5 .Romania. Sub-Clause 16.1 . 4.Payment on Termination After termination.Termination by Contractor See comments under Sub-Clause 15.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause. in accordance with the provisions of Sub-Clause 14. it cannot be resumed and in most cases a new tender procedure would be necessary. as he may consider proper.16 Clause 16 .DOC . Obviously.4 .Payment after Termination No need for particular conditions related to this sub-clause. Sub-Clause 15. Employers should obviously avoid putting themselves in one of the situations described.2 .Suspension and Termination by Contractor Sub-Clause 16. the advance payment guarantee might be called in by the Employer). 3 months). A Contractor should be aware before giving a notice of termination.

” bfc2-071_fidic user guide_250407_final. Sub-Clause 17.Consequences of Employer's Risks No need for particular conditions related to this sub-clause. arising from any cause whatsoever other than those for which the Employer is liable. 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.DOC . from the respective dates of use or occupation by the Contractor. Sub-Clause 17. the sum referred to in the penultimate sentence shall be …….6 .3 .Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause. an additional sub-clause may be added: “The Contractor shall take full responsibility for the care of the items detailed below. at his own cost. 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. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 53 4.Romania.2 .4 . 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. New 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. under road or rail rehabilitation projects. .6.Contractor's Care of the Works No need for particular conditions related to this sub-clause.1 . Sub-Clause 17.3.".17 Clause 17 .7 If the Contractor is to occupy the Employer's facilities temporarily. Sub-Clause 17.5 . rectify the Loss or damage to the satisfaction of the Engineer.Risk and responsibility Sub-Clause 17. For example.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project.Indemnities No need for particular conditions related to this sub-clause. the Contractor shall. 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.

The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18. 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). preferably in the form of a copy of each policy.Insurance Sub-Clause 18. such certificate would be irrelevant for Force Majeure occurring in a foreign country. exceptions and deductibles.” Sub-Clause 18. despite a frequent opinion.Notice of Force Majeure It has to be noted that.Force Majeure Sub-Clause 19. Force Majeure can be proven by other means. 4.2 . The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. Furthermore.DOC . Sub-Clause 18.1 .Romania.3. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. Sub-Clause 19. .18 Clause 18 .1 .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). Sub-Clause 18. including the conditions.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause. because the Employer may not know the amount or value of these items of equipment.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. who is to be the Contractor unless otherwise stated in the Particular Conditions.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance.3. which includes Subcontractor's equipment).2 (for Contractor's Equipment. 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.3 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 54 4.4 . Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer. limits. which is replaced by the Contract Agreement. If the Employer is to arrange any of the insurances under this Clause. The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party".19 Clause 19 . bfc2-071_fidic user guide_250407_final.2 .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.

3.20 Clause 20 . have not advised on the merits and have not prepared considered determinations.5 .1 . this is not the way that many DABs are interpreting the clause. It endeavours to prevent situations where a contractor would submit its claim long after the occurrence of an event or circumstance for which it was reasonable for the Contractor to anticipate an entitlement of time or to additional payments. 4.7 . acting in all good faith. The Engineer shall.Claims.Duty to Minimise Delay No need for particular conditions related to this sub-clause. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance.DOC .Optional termination. have not ensured that the necessary records are kept. The important matter is that the Employer. Sub-Clause 19.6 . is put on alert. DABs have in mind that the object of Clause 20.Romania. Sub-Clause 19. Sub-Clause 19. Although Sub-Clause 20. that something had recently occurred for which an entitlement for time and/or additional payment might be sought. not to bar meritorious claims. in turn. Sub-Clause 19. The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers. 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. Most DAB decisions have allowed a number of claims rejected for late notice to proceed. Accordingly.Consequences of Force Majeure No need for particular conditions related to this sub-clause. through the Engineer.1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration. .4 .Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause.1 is to prevent ambushes and minimise delays to projects. Sub-Clause 19. It is advisable to add at the end of first paragraph of Sub-Clause 19. 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. within four weeks. Disputes and Arbitration Sub-Clause 20.Release from Performance under the Law No need for particular conditions related to this sub-clause.3 . respond within 42 days after receiving a claim or further particulars.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". Payment and Release No need for particular conditions related to this sub-clause. Guid- bfc2-071_fidic user guide_250407_final.

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

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

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

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

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

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

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

DOC .Romania.6 14. .5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix D2.2.1 18.3 1.3 1.4 1.3 1.1.3.2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 63 4.2.3 1.4 2.7 1.3 14.2 14.5(b) 13.3 1.1.7 & 14.3 & 1.4 & 1.1.1.5 8. 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 1.4 1.7 13.2(a) and (b) 14.2 6.15 18.3.8 14.5(b) and (c) 14.2(d) 18.15(b) 8.2 & 20.3 bfc2-071_fidic user guide_250407_final.2 & 1.3 DAB 20.1 4.1.

This Guide comprises guidance and proposals for the proposed mandatory and additional particular conditions of contract. after approval by the MPF.e. there are some sub-clauses which must necessarily vary to take account of the circumstances relevant to the particular contract. in order to facilitate their incorporation into each contract. and to take account of those sub-clauses in the General Conditions which mention the Particular Conditions.2 FIDIC Guidance In the preparation of the General Conditions of Contract for Plant and DesignBuild. 5. It will be necessary to prepare the Particular Conditions for each individual contract.Romania. the FIDIC Yellow Book. and was submitted to the MPF in December 2006. be published in the Official Gazette of Romania for use on infrastructure projects in Romania. The Romanian language version of the General Conditions of Contract and the proposed mandatory and additional particular conditions will. it was recognized that. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006.1 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. bfc2-071_fidic user guide_250407_final.DOC . necessary so as to harmonise the contract provisions with the current Romanian legislation. 1st Edition 1999. i. The subclauses which were considered to be applicable to many (but not all) contracts have been included in the General Conditions. The General Conditions and the Particular Conditions will together comprise the Conditions of Contract governing the rights and obligations of the parties. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 64 5 5. while there are many sub-clauses which will be generally applicable. Mandatory and additional particular conditions of contract for the FIDIC Yellow Book.

the Contractor and the person appointed to act either as sole adjudicator or as a member of a three-person dispute adjudication board. iii. and the entire preparation of the tender documents. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 65 For this publication. . ii. the General Conditions were prepared on the following basis: i. 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. and incorporates (by reference) the terms in the Appendix to the General Conditions. it must be amended. the Appendix to Tender (providing a checklist of the sub-clauses which refer to it). Further information on these aspects. Before incorporating any example wording. 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. including the contractual. 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. technical and procurement aspects. will be made as work proceeds. in respect of the lump sum Contract Price. are included within this publication as Guidance for the Preparation of the Particular Conditions. it must be checked to ensure that it is wholly suitable for the particular circumstances. the sub-clause contains the provisions which were considered applicable to most contracts.Romania. Where example wording is amended. This publication concludes with example forms for the Letter of Tender. and other explanatory material and example wording to assist in the preparation of the Particular Conditions and the other tender documents. not because of any FIDIC policy in respect of advance payments. Interim payments.2 [Advance Payment] is included for convenience. and in all cases where other amendments or additions are made. or (b) In other cases. It should therefore be noted that some of the provisions contained in the General Conditions may not be appropriate for an apparently-typical contract. are entrusted to personnel with the relevant expertise. It is essential that all these drafting tasks. Sub-Clause 14. either with the General Conditions or between the clauses in the Particular Conditions. the Contract Agreement. where the application of (a) was thought to be inappropriate.DOC . This Dispute Adjudication Agreement provides text for the agreement between the Employer. if not. and will typically be based on instalments specified in a schedule If the wording in the General Conditions necessitates further data. and alternatives for the Dispute Adjudication Agreement. For example. bfc2-071_fidic user guide_250407_final. example wording for other arrangements. than if additional text had to be written (in the Particular Conditions) because the General Conditions did not cover their requirements. 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.

2 1.1.Romania.1 1.4) Tests on Completion Taking-Over Certificate Tests after Completion (if any) Defects Notification Period (as extended under 11.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.2 1.1.6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 66 In addition. 1.3.3.6 & 12.1.1 1.4.7 & 11.1.1.1 1.DOC .6 & 4.1. and for EPC/Turnkey Projects.3. 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).3.3. for Plant and Design-Build.5 & 10.4. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.7 & 14. .1. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.3) Performance Certificate Final Payment Certificate Figure 5-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final. In order to clarify the sequence of Contract activities.1 & 13.1.3.3.1.1 1.4 & 9.3 1.4 & 14.1 1.8 & 11.1.9 1.3.1.3 & 8.2 & 8.7 1.

Modifications to the Conditions are required to be fully adapted to the current Romanian legislation.have been prepared by the FIDIC and are recommended for general use for the procurement (including design. delivery and installation) of plant. manufacture. where tenders are invited on an international basis. . in accordance with the Employer's requirements.Romania.2.the FIDIC Yellow Book . bfc2-071_fidic user guide_250407_final. of plant and/or building and/or engineering works.DOC . 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 5.1 Introduction The Conditions of Contract for Plant and Design-Build . Under the usual arrangements for these types of contract. and for the design and execution of building or engineering works. the Contractor is responsible for the design and provision.

and a review by suitably-qualified lawyers may be advisable. In the preparation of the Conditions of Contract to be included in the tender documents for a contract.1 4. The tender documents issued to tenderers will consist of the Conditions of Contract. care must be taken to ensure that no ambiguity is created. such as consumables which could be listed in a Schedule. and in all cases where other amendments or additions are made. which include amendments and additions to such General Conditions.DOC . and the Letter of Tender and Schedules for completion by the Tenderer. 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).” There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. the Employer's Requirements. each of the Tenderers should receive the data referred to in SubClause 4. and the following "Particular Conditions". The General Conditions refer to any necessary data being contained in the Appendix to Tender or (for technical matters) in the Employer's Requirements. Before incorporating any example wording.Romania. Unless it is considered suitable. The matters referred to in some or all of the following Sub-Clauses might be included: 1.2 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. example wording should be amended before use. 5. In addition. it must be checked to ensure that it is wholly suitable for the particular circumstances. 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. including functional requirements. the following text can be used: “The Conditions of Contract comprise the "General Conditions". and may require the Contractor to supply certain items.13 2. 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.2. Where example wording is amended. plant or means of access Intended purposes for which the Works are required bfc2-071_fidic user guide_250407_final. The Employer's Requirements The Employer's Requirements should specify the particular requirements for the completed Works.10. . structures. The Contract will then include the accepted Proposal and completed Schedules. quality and scope.8 1.1 Number of copies of Contractor's Documents Permissions being obtained by the Employer Phased possession of foundations. either with the General Conditions or between the clauses in the Particular Conditions.

3 4.1 12. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender.1 12.DOC .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.6 7. the scope of which should be de- 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 69 4.5 Other contractors (and others) on the Site Setting-out points.18 4. .4 12. The Employer should prepare the Appendix to Tender. construction.6 5. fixtures. The Instructions may include matters referred to in some or all of the following Sub-Clauses: 4.14 4.4 5.1 5. and include a questionnaire in the Schedules. and/or specify the extent of other information which each Tenderer is to include with his Tender. The Employer may require other data from Tenderers. 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. 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. The example form in Appendix F2 provides a checklist of the data required. lines and levels of reference Third parties Environmental constraints Electricity.9 9.6 4.19 4. fittings and equipment.5 5.7 4.7 6.4 9. providing a convenient location for the data which is usually required. with the elements completed to the extent of his requirements.2 5.2 7.4 13. If each Tenderer is to produce a parent company guarantee and/or a tender security.1 9. 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. gas and other services available on the Site Employer's Equipment and free-issue material Criteria for design personnel Contractor's Documents required.Romania.20 5. based on this example form. that this data is either prescribed by the Employer or inserted by the Tenderer. water. either in the General Conditions or in the example Appendix to Tender.

3.3 the definition of Letter of Acceptance shall be deleted. • • • bfc2-071_fidic user guide_250407_final.1. the Contractor may be required to operate the Works. such as the extent to which the Works are to be fully equipped. in order to provide a responsive Tender. . ready for operation. Note that there can be no description in the documents which will constitute the Contract.1 Clause 1 . In addition. the requirements of the Romanian procurement legislation and for clarification of the general conditions. Full consideration should be given to detailed requirements.3. the tenderers are often reluctant.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. In new Sub-Clause 1.1.General Provisions Sub-Clause 1. with spare parts and consumables provided for operation (for a specified period). Article 94 of GD No.Romania.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.Definitions It will be necessary to amend some of the definitions. typically by the Employer. Understandably. 34/2006. The following definitions should be modified: • In Sub-Clause 1. Consideration may be given to offering some remuneration to tenderers if. 5. Under Romanian public procurement regulations. In Sub-Clause 1.1 . 925/2006). either for a few months' trial operation under Sub-Clause 9.1 the definition of the "Base Date" may be changed to reflect a particular calendar date. or for some years' operation. Such definition is set out in the mandatory particular conditions in Appendix B1.1(c). in the face of intense competition. the Contract is formed by the execution of the Contract Agreement after lapse of a mandatory minimum time period from the communication of the letter of award by the Employer to the Contractor (Article 205 of GEO No. 5. When preparing the Instructions to Tenderers.1.1. due to Romanian legislation in force.1. thought should be given as to the extent of detail which tenderers can realistically be expected to prepare and include in their tenders. The extent of detail required should be described in the Instructions to Tenderers. they have to undertake studies or carry out design work of a conceptual nature.1 the definition of Contract shall reflect the deletion of Letter of Acceptance.DOC . with a clause-by-clause review. 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.3. The amendment of such definition is set out in the mandatory particular conditions in Appendix B1. In Sub-Clause 1. to incur great expense in preparation of tender designs. 273/1994).1.

Such definition is set out in the mandatory particular conditions in Appendix B1.1. “In these Conditions. 925/2006). certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications.4.1. Sub-Clause 1. are not repeated in the General Conditions.2 "Country" should be defined as Romania. if during the performance of the Contract. .2 . In Sub-Clause 1.1.11 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.8 "Local Currency" should be defined as RON (Romanian Leu). Sub-Clause 1. In Sub-Clause 1.Romania.4.5.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.DOC . decisions. 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.4. laws.5 “Applicable Laws” should be defined as all Romanian legislation.6.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that.6. (Article 95(2) of GD No. although applicable in many sub-clauses.5 . • • • • • • Sub-Clause 1.3. In Sub-Clause 1. 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. 925/2006).4 . the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No. significant components of the Con- bfc2-071_fidic user guide_250407_final.2 may be varied. In Sub-Clause 1. orders and other laws and regulations and by-laws of any legally constituted public authority having the force of law in Romania. Such provision is recommended so as to provide a clear reference during implementation. 273/1994). provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. Sub-Clause 1. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present Sub-Clause.6.3 . In Sub-Clause 1. as well as the fact that. in case a conflict is subsequently found among the contract documents In Sub-Clause 1.” Sub-Clause 1. A proposed amendment is included in the mandatory particular conditions in Appendix B1. Sub-Clause 1. the latter shall prevail.Interpretation If the references to "profit" are to be more precisely specified.Priority of Documents An order of precedence is usually necessary.1.Law and Language No need for particular conditions related to this sub-clause.1.6 the "Foreign Currency" should be indicated. ordinances.1.1.7 "Site". in particular when evaluating claims. Non-compliance might have serious consequences.

outline of quality assurance. The provisions should take account of the Applicable Laws.Assignment If the Contract is concluded pursuant to a public procurement procedure. in order to reflect the deletion of Letter of Acceptance.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. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works.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.Romania.10 . method of works.Delayed Drawings or Instructions No need for particular conditions related to this sub-clause.7 . bfc2-071_fidic user guide_250407_final.DOC . Sub-Clause 1. traffic management and/or environmental management plans). key equipment. 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.9 . Sub-Clause 1. Sub-Clause 1. if needed. - - Additional provisions may be required.8 . the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue. provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract. should be introduced prior to the Contract signature. it might be recommendable to state that any reference to calendar dates is indicative only. Sub-Clause 1.6 shall be deleted. 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. . if all rights to particular items of computer software (for example) are to be assigned to the Employer. Furthermore.Contract Agreement The first sentence of Sub-Clause 1.6 . consistence of these with the tender documents should be checked and corrections. or Operation of the Works is subject to a process license. 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. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions. Sub-Clause 1. An example form is included at the contractual templates in Appendix E2. so as to ensure some enforceability to this proposal. Even if the Contract clearly specifies the priority of documents. in case a Contractor’s programme is included in the Contract documents.

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

The Contractor shall not publish. Sub-Clause 2. as defined under sub-clause 4. 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.” 5.Right of Access to the Site If right of access cannot be granted. In case right of access and possession is not to be granted exclusively. In case right of access is to be granted by stages. selfsufficient.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site.Romania. The work to be carried out by these other contractors should be described in the tender documents. References to laws and standards should be included for formal reasons.23. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer. as much as possible.Permits. so as to avoid facilitate access to the market.3 . in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). details should be given. The Site does not include additional working areas that the Contractor might require. and aspects such as co-ordination and safety may need to be specified. Employers shall be particularly careful in relation with this sub-clause.2. However.3. but the contract documents should be.The Employer Sub-Clause 2. 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. and particularly in the Employer’s Requirements. permit to be published. it could be desirable to define Sections (in the Appendix to Tender) and define in this sub-clause the time for provision of right of access for each Section. this should be clearly stated. . with all particulars. bfc2-071_fidic user guide_250407_final. the Employer should state this and define the procedure that will be applied as well as the main constraints / parameters. both early and thereafter exclusively. 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). all relevant information.DOC .2 .1 . Sub-Clause 2. the required land should be made available by the same Employer. Licences or Approvals With reference to paragraph (a). It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws. it is good practice to include in tender and then contract documents.2 Clause 2 .

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

Experience in similar projects (for the type of works intended to be performed by the proposed Subcontractor). although the Contractor remains responsible for any act or default of Subcontractors. The attention of Employers is drawn on the fact that Nominated Subcontractors shall be nominated further to a selection procedure in full accordance with the relevant procurement legislation. 925/2006.Romania. the Engineer’s prior consent for subcontractors might lead to excessive administration. Sound financial position. It is therefore possible to limit such requirement. In such case.5 provides for the particular situation whereby the Employer may select a Subcontractor. The proposed modification is included in the mandatory particular conditions in Appendix B1.Nominated Sub-Contractors In most cases under Sub-Clause 4. according to the same Article 96 (2) of GD No. 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. this amount should be clearly stated. Before using this Sub-Clause.4.DOC . the Contractor selects Subcontractors. it is recommendable. Replace the first sentence of Sub-Clause 4. for transparency reasons. to detail on which criteria consent will be given. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). . bfc2-071_fidic user guide_250407_final. fulfilled obligations as per payment of taxes and social contributions). replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor. no final sentence for professional misconduct. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 79 Please also note that. Sub-Clause 4. As regards the second sentence of this Sub-Clause 4. etc. typically in the Appendix to Tender. Employers might also consider the conclusion of a separate contract.” Furthermore. Such criteria might include: Personal situation (no bankruptcy or similar proceedings.5.4. - Sub-Clause 4.5 . 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. details may be given as to what would be considered as a reasonable objection. On a case-by-case basis. subject to any constraints specified in the Contract.” Subject to the mandatory provisions of the Romanian public procurement regulations. according to Sub-Clause 4.

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

Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions. if this is not located on the Site.15 .10 . Sub-Clause 4.” bfc2-071_fidic user guide_250407_final. further paragraphs may be added. the Sub-Clause may be amended by deleting sub-paragraph (b) of Sub-Clause 4. .12 . Furthermore. It might be advisable to extend it to Equipment brought to the Contractor’s site installation. the Employer's obligations should be specified: see SubClause 4. If this risk is to be shared between the parties. Sub-Clause 4. Sub-Clause 4.20. If vesting of Contractor's Equipment is required.17 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 81 Sub-Clause 4.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2.Site Data Under this Sub-Clause.” Sub-Clause 4.DOC .%) of which shall be included in the Contract Price (the balance percent of the Cost shall be borne by the Contractor). usually as part of the tender documents.Right of Way and Facilities No need for particular conditions related to this sub-clause. Sub-Clause 4.Unforeseeable Physical Conditions In the case of major sub-surface works.16 .Romania.12 and substituting by: “(b) Payment for any such Cost.1 and Sub-Clause 4.11 . the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared. alternative arrangements may be appropriate. It is therefore assumed that an access route exists (but its suitability for transport is not guaranteed by the Employer) and that the Contractor is entitled to use it (even if this might imply some costs).13.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works.Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. 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.Avoidance of Interference No need for particular conditions related to this sub-clause. Sub-Clause 4. This Sub-Clause refers only to Equipment brought on Site. per cent (….13 . Sub-Clause 4.14 .Transport of Goods For a plant contract. subject to their being consistent with applicable laws.

The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. The requirement to provide 6 copies might also be adapted. 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).19 . Sub-Clause 4.21 . bfc2-071_fidic user guide_250407_final.18 .Electricity. Water and Gas If services are to be available for the Contractor to use. while detailed information regarding the quality and quantity of free issue materials. it may not be appropriate for him to be responsible for its security. the Employer’s Requirements should describe each item which the Employer will provide and/or operate and should specify all necessary details. In case Employers intend to use this Sub-Clause. in order to clarify aspects such as liability and insurance. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers. . as well as the time and place where they will be made available should be defined.20 . Sub-Clause 4.Romania. they should be very careful so as to ensure fair and transparent conditions of competition. Sub-Clause 4.5.Security of the Site If the Contractor is sharing occupation of the Site with others. for use of Employer’s Equipment or of free issue materials. Employers might want to include in this Sub-Clause a provision for indemnification in case of default. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements. including locations and prices. For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. subject to Sub-Clause 2. further provisions may be necessary.22 . the Employer shall be entitled. the Employer’s Requirements should give details.Protection of the Environment For Works to be executed in particularly environmentally sensible areas. so as to define their condition and suitability for use. With some types of facilities.Employer's equipment and Free-Issue Material For this Sub-Clause to apply. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 82 Sub-Clause 4. 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.” Sub-Clause 4.DOC . It is advisable to have those materials surveyed as part of the tender. the Employer's obligations should be specified.

New Sub-Clause 4. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. the working hours. the unforeseen events. The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. Atmospheric conditions. signed by the Contractor’s Representative and countersigned by the Engineer or his representative. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. as separate documents. At the Engineer’s request. .21 [Progress Reports] with subsequent description in the Employer’s Requirements. Sub-Clause 4. such as completed Works.Contractor's Operations on Site No need for particular conditions related to this sub-clause. the equipment out of order. 3.23 . in a format agreed by the Engineer. the supplied materials. bfc2-071_fidic user guide_250407_final. supplies accepted for incorporation into the works. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 83 For example. if need be.24 . The information provided is noted in the works diary and attachments. it is recommendable to precise that: “For the purposes of this Sub-Clause. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. as well as verbal orders given to the Contractor. the materials incorporated into the works.” Sub-Clause 4. during the reported period. but can be signed. the tests completed. the number and the qualification of the personnel working on Site. the sent samples. Such use and access shall be regulated as part of the Contractor’s traffic management plan.Fossils No need for particular conditions related to this sub-clause. These attachments are part of the Works diaries.Romania. In case of disagreement on a subject noted in the works diary or attachments. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties. 2.DOC . “The Contractor shall draw up a works diary for contemporary records. actual quantities. 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”. in the case of a road rehabilitation project.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. the work breaks due to adverse meteorological conditions.

10/1995 related to the verification of design by duly certified design checker. and the submission procedures. the Employer’s Requirements shall define: Whether a review and / or approval process is required (for the purpose of Sub-Clause 5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 84 5. which will not necessarily include (for example) all the technical documents which the Contractor's Personnel will need in order to execute the Works.3. bfc2-071_fidic user guide_250407_final.5 Clause 5 . Sub-Clause 5. equipment. which of them are required for approval (not just review).Design This Clause might be completed with an indication of the schedule for execution and submission of the design. refer to the mandatory particular conditions in Appendix B1. Different "review periods" may be specified. The Employer's Requirements should specify the extent to which Contractor's Documents are required. depending on the part of the works to be designed and on the level of detail.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. .Romania. Tenderers should be advised of the extent to which the Employer's outline design is a suggestion or a requirement. to the place where the Plant is to be erected.7). Sub-Clause 5.2) The extent of training required (Sub-Clause 5.Contractor's Documents The "Contractor's Documents" are defined as the documents which the Contractor must submit to the Engineer. and/or b) Providing suitable access on the Site. 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. which may include an outline design. The first paragraph of this Sub-Clause should be amended for the purposes of compliance with Article 13 of Law No. Such a design might have been necessary to establish the feasibility of the project. while detailed drawings might be produced at a later stage. for the Plant and any necessary c) Making necessary connections to the Plant. For example. taking account of the time necessary to review the different types of drawing.1 . Furthermore.DOC . as specified elsewhere in the Contract.General Design Obligations The Contractor commences by scrutinising the Employer's Requirements.5) Details regarding the as-built documents to be provided (Sub-Clause 5. and/or of the possibility of substantial submissions at particular stages of the design-build process. For instance.2 .

or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision.6 Clause 6 .Labour Laws According to the Guide. 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. Sub-Clause 6.3 .7 . for example).Technical Standards and Regulations No need for particular conditions related to this sub-clause. . this Sub-Clause may be deleted.6 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 85 Sub-Clause 5.” Sub-Clause 6. Sub-Clause 6.Training No need for particular conditions related to this sub-clause. Sub-Clause 5.Persons in the Service of Employer No need for particular conditions related to this sub-clause. Sub-Clause 5.Romania. 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.Staff and Labour Sub-Clause 6.4 .Contractor's Undertaking No need for particular conditions related to this sub-clause.Design Error No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final. 5. Sub-Clause 6. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract.4 . Sub-Clause 5.As-Built Drawings No need for particular conditions related to this sub-clause.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender.3.1 .Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents. Any replacement personnel shall be at least of equivalent qualification and experience. 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.8 . Sub-Clause 5.Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause.DOC .3 . Sub-Clause 5.Operation and Maintenance Manuals No need for particular conditions related to this sub-clause.2 .5 .5 .

Facilities for Staff and Labour If the Employer will make some accommodation available. gratuity.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works. barter or otherwise dispose to any person.” Sub-Clause 6. In the event of the death in the Country of any of these personnel or members of their families.DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 86 In some cases. or allow Contractor’s Personnel to do so. Sub-Clause 6. gift. give. The Contractor must ensure that these personnel are provided with the required residence visas and work permits. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift. . subject the Contractor at the Employer's option to the cancellation bfc2-071_fidic user guide_250407_final. Sub-Clause 6.8: “A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of Romanian language.6 . sale.8 . barter or disposal by Contractor’s Personnel. 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. chemicals.” Add the following paragraphs at the end of Sub-Clause 6. or permit or allow importation.7 . advantage. 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. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. (d) Illegal Payments Any commission. barter or otherwise dispose of any alcoholic liquor or drugs. in addition to any criminal liability which may be thereby incurred. such as traffic management. reward or bribe given. (c) Arms and Ammunition The Contractor shall not give.Romania.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. requests of the Contractor to work outside the normal working hours will have an impact on the activity of and required inputs from the Engineer. any arms or ammunition of any kind. etc. import. his obligations to do so should be specified. gift. except for those activities requiring continuous presence on Site.Contractor's Superintendence Add the following text at the end of Sub-Clause 6. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. sell.

if any. this should be made clear in the Employer’s Requirements. Sub-Clause 7.1 . levied in relation to the dumping of part or all of such materials.8).Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works. 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.5 . Any amount paid shall be deducted from the Contractor's payment due.Ownership of Plant and Materials No need for particular conditions related to this sub-clause.Remedial Work No need for particular conditions related to this sub-clause.10 . Sub-Clause 7.” bfc2-071_fidic user guide_250407_final.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause Sub-Clause 6.4 . Sub-Clause 7.” Sub-Clause 6.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment.Contractor's Personnel No need for particular conditions related to this sub-clause Sub-Clause 6.Romania. Sub-Clause 7. waste piles. etc).11 . debris and hazardous waste.8 .Rejection No need for particular conditions related to this sub-clause. The prohibition of “hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4.9 .2 .3.3 .Testing No need for particular conditions related to this sub-clause.Plant Materials and Workmanship Sub-Clause 7.7 .7 Clause 7 . .DOC . Sub-Clause 7.Disorderly Conduct No need for particular conditions related to this sub-clause 5.6 . Sub-Clause 7. Sub-Clause 7.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation.Samples No need for particular conditions related to this sub-clause.

Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. It is advisable to provide a time-limit for the submission of a revised programme.Commencement. bfc2-071_fidic user guide_250407_final. Failure to comply with this provision shall entitle the Employer. 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.Romania.3. the Contractor should not stop the Works if it is able to work on part of the Works. as the Contract clearly describes how to handle this situation.1 is ensured. On the other hand.1 .5 . In case Employers know that the Commencement Date for a part of the Works will be delayed.2 .4 .3 . in the Appendix to Tender. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice.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. Sub-Clause 8. under its full responsibility.” Sub-Clause 8. it is advisable to define this part as a Section (in the Appendix to Tender) and to define under the present Sub-Clauses different Commencement Dates by Sections. these stages should be defined as Sections. subject to Sub-Clause 2. the last sentence defines strong obligations for the Contractor.Extension of Time for Completion No need for particular conditions related to this sub-clause. It is highly recommended not to sign any contract before compliance with SubClause 2. . delays and Suspension Sub-Clause 8. The programme is primarily a document prepared by the Contractor.7).Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 88 5. to payment of damages by the Contractor. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8. For example.5. Sub-Clause 8. Sub-Clause 8. there is no need to amend the Contract in any way.Delays Caused by Authorities No need for particular conditions related to this sub-clause.8 Clause 8 .1 and Sub-Clause 8.1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. If the Works are to be taken-over in stages. In case the Works are not completed during the Time for Completion.DOC .

the milestones have to be updated in accordance with the provisions above. The amount so withheld shall be paid to the Contractor. . Sub-Clause 8. up to a maximum of 10% of the Accepted Contract Amount. Whenever a revised programme is being submitted. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works. If the Accepted Contract Amount is expressed in the Local Currency. Such indicators however shall be defined based on the Contractor’s work programme. is controlled through a milestones system.3 or revised under the third paragraph of Sub-Clause 8. Milestone 1 is defined as the achievement of the following indicators.DOC . Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. Compliance of the progress of the Works with the Contractor’s programme.Romania. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency.15(b). 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 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. (Other items).Delay Damages Under many legal systems. subject to Sub-Clause 2. In case no agreement is reached during such period. the Engineer will define those four indicators. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 89 Sub-Clause 8. In case the Contractor incurs delays in the achievement of a milestone. the Employer will be entitled. if and when the milestone is reached.7 . 28 days after the Commencement Date: All Contractor key personnel are on Site. bfc2-071_fidic user guide_250407_final. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. to withhold from the Interim Payment Certificates an amount equal to 0.5. The Contractor work programme under the present Sub-Clause is submitted.5 has to be followed.6 . it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures.05% of the Accepted Contract Amount per day of delay. This system includes five milestones for monitoring and evaluation of the progress of the Works.3. as submitted under the first paragraph of Sub-Clause 8. Milestone 1 is defined hereafter.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. It is therefore possible to include a “milestones system” along the example provided below.

It should also be noted that Employers might. but otherwise may require amendment. 5.10 . waive their rights to delay damages.DOC . except in the event of termination by the Employer. Sub-Clause 8. Sub-Clause 8. Sub-Clause 8. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time.8 . Sub-Clause 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.12 .Consequences of Suspension No need for particular conditions related to this sub-clause Sub-Clause 8. In par- 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.Prolonged Suspension No need for particular conditions related to this sub-clause.2 refers to accelerated completion). 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.Romania.9 . but also (ii) introduce a bonus for acceleration.Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause.3.Resumption of Work No need for particular conditions related to this sub-clause. instrumentation. it might be envisaged to (i) introduce a higher amount of delay damages.11 . etc). If the Works are to be tested and taken-over in stages. For contracts where completion of the Works by a certain date is of paramount importance. The wording in the sub-paragraphs includes the conditions which are typically applicable for a plant contract. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price. It may also be appropriate for the Contractor's Proposal to include detailed arrangements. For example.1 . This tends to restrict the constitution of “black lists” or other similar instruments. . in duly justified cases. or suspend the actual payment of such damages by the Contractor until the completion of the Works.9 Clause 9 .Tests on Completion Sub-Clause 9. New Sub-Clause Incentives for early completion may be included in the tender documents (although Sub-Clause 13. etc.Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed. 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.

Employer's Taking-Over Sub-Clause 10. On the other hand. it might be recommendable that the Engineer be nominated as representative of the Employer. The role of the Engineer in the taking over commission is not defined.2 . the Sub-Clause should be amended accordingly.3 . in the Appendix to Tender. GD No.Taking Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No. Sub-Clause 10. sub-paragraph (c) refers to trial operation. during which any product produced by the Works becomes the property of the Employer.4 .Interference with Tests on Completion No need for particular conditions related to this sub-clause. Sub-Clause 9. Such regulations are reflected in the mandatory particular conditions in Appendix B1.Romania. bfc2-071_fidic user guide_250407_final. Unless expressly forbidden by the Law.Failure to Pass Tests on Completion If the reduction referred to in the final paragraph. based on the extent of the failure. 5.10 Clause 10 . 273/1994. Sub-Clause 10. Sub-Clause 9.DOC . 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No.3. Precise geographical definitions are advisable. If the product is to be retained by the Contractor.Retesting No need for particular conditions related to this sub-clause. 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”.1 .3 . 273/1994.2 . is to be defined in the Particular Conditions or in the Employer's Requirements. 273/1994). these stages should to be defined as Sections. Sub-Clause 9. He thus becomes responsible for disposing of it. . If the Works are to be taken-over in stages. The Employer must nominate a taking-over commission (Article 7 of GD No. 925/2006) are reflected in the mandatory particular conditions in Appendix B1. and entitled to retain the proceeds from selling it. so as to define the Time for Completion and delay damages: the table is shown in the example Appendix.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. and the Appendix should include a table. 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 91 ticular.Delayed Tests No need for particular conditions related to this sub-clause. the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed.

8 . Sub-Clause 11.5 .DOC .Unfulfilled Obligations Under Romanian law.Contractor to Search No need for particular conditions related to this sub-clause. Sub-Clause 11. Sub-Clause 11.” Sub-Clause 11.5 to an extension of the Defects Notification Period for the Works. Sub-Clause 11. Sub-Clause 11. 5. .Extension of defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2.7 .2 .6 .10 . the Contractor is liable for the latent defects of the Works during a 10 year period. a Section or a significant part of the Works. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 92 Sub-Clause 10.11 Clause 11 .3 .Costs of Remedying Defects No need for particular conditions related to this sub-clause.4 .Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause. a major item of Plant or significant part of the Works (as the case may be. Sub-Clause 11. However. The issue of the Performance Certificate represents the acceptance of the Works. Sub-Clause 11.Romania.Further Tests No need for particular conditions related to this sub-clause.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.Defects Liability Sub-Clause 11. whilst his liability for defects affecting the bfc2-071_fidic user guide_250407_final. 273/1994.Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause. a Defects Notification Period shall not be extended by more than two years.Failure to Remedy Defects No need for particular conditions related to this sub-clause. a Section. Such regulations are reflected in the mandatory particular conditions in Appendix B1.3. if and to the extent that the Works. It is therefore normal that the final payment and final evaluation of the Contract Price) comes after such acceptance.4 .Removal of Defective Work No need for particular conditions related to this sub-clause.Right of Access No need for particular conditions related to this sub-clause.1 . Sub-Clause 11. and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage.9 .

Tests after Completion Sub-Clause 12. 5. 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. which are intended to benefit both Parties. with the Employer providing consumables. after taking-over.11 . the provisions in FIDIC's Conditions of Contract for EPC/Turnkey Projects are based upon these Tests being carried out by the Contractor. It may be appropriate for the Contractor's Proposal to include detailed arrangements. personnel and power. probably) the performance criteria which their Plant will achieve. they should be specified in the Employer's Requirements. in addition to that included in the Plant. 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.2. although they are critical to a successful outcome.1. 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.2 . and/or for tenderers to prescribe (in a Schedule of Guarantees.Delayed Tests No need for particular conditions related to this sub-clause. . these Tests may be the most difficult to specify well.3. Sub-Clause 12.12 Clause 12 . Sub-Clause 11. and the Sub-Clause should be amended accordingly.3 .13 Clause 13 .Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13. 10/1995). to verify that the Works fulfil his performance requirements. and the minimum acceptable performance criteria should also be specified. With many types of Works. 5.4 . For example. 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 essential to define the physical inputs.3.Procedure for Tests after Completion The Employer's Requirements should describe the tests he requires.1 .Failure to Pass Tests after Completion If the first part of this Sub-Clause is to apply. and/or to define any instrumentation required. For some types of Works. Sub-Clause 12. Sub-Clause 12.DOC . or bfc2-071_fidic user guide_250407_final.Romania.Clearance of Site No need for particular conditions related to this sub-clause. with guidance from the Contractor's staff. without prior agreement as to feasibility or price b) The Contractor may initiate his own proposals under Sub-Clause 13. If other arrangements are envisaged.

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

but need not. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 95 nominated Subcontractor. rise or fall in the cost of labour. Normally.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.1 . If the contract is intended to be at fixed rates.The Contract Price When writing the Particular Conditions. 925/2006. typically by the National Institute of Statistics.Contract price and Payment Sub-Clause 14.14 Clause 14 .7 .” It should be noted that the proposed formula applies only for works performed after the changes occurred (so it applies for what “remains to be executed” in accordance with provisions of GD No. The lump sum price may consist of two or more amounts. Sub-Clause 13. with little or no remeasurement. The possibility and principles of such adjustments are foreseen in Article 97 of GD No. 925/2006). include the Local Currency). Thus the Contract Price shall not be subject to any adjustment due to inflation. . Such formula should be based on relevant indices published by authorised bodies.3.6 .Daywork No need for particular conditions related to this sub-clause. Sub-Clause 13. it is strongly recommended to include a price adjustment formula. consideration should be given to the amount and timing of payment(s) to the Contractor. quoted in the currencies of payment (which may. Sub-Clause 13. A positive cash flow is clearly of benefit to the Contractor. and tenderers will take account of the interim payment procedures when preparing their tenders. Cases provided by clause 13. For any contract of duration of more than 12 months. 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. bfc2-071_fidic user guide_250407_final. this type of contract is based on a lump sum price. materials or any other matters affecting the execution of the Contract. 5.DOC .8 . The Contractor thus takes the risk of changes in cost arising from his design. 925/2006.7 are not subject to this restriction. However. in order to remove any ambiguity.Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No. Actually the multiplier is calculated for the works performed during month n. it is sufficient not to fill in any “table of adjustment data”. The relevant wording is included in the mandatory particular conditions in Appendix B1.Romania.

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

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

7 . 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.Romania. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations.Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. .6 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 98 Sub-Clause 14. The Engineer is due to substantiate its determination. he can also include in his claim the related financing costs. it is useful to indicate that the central bank of the Country is the European Central Bank. Such amendments are included in the mandatory particular conditions in Appendix A1. such works are considered as finally approved only at the issue of the Performance Certificate.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 14.8 . bfc2-071_fidic user guide_250407_final. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2.Delayed Payment When payments are made in Euro. through the provision of supporting particulars. by definition.DOC . The scope of those provisions is to ensure that an adequate flow of cash is maintained. but in case of arithmetical mistakes. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix B1. in case the Employer considers that an undue payment has been made.5. It has to be noted that the Employer is not entitled to modify any Payment Certificate. Interim Payment Certificates are. Although modifications of regarding works already certified should remain the exception. 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. It also has to be noted that. increased by three and a half percentage points. 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. They do not imply acceptance of any work and might be modified afterwards. interim. - - Sub-Clause 14. as published in the C series of the Official Journal of the European Communities. Furthermore. in force on the first calendar day of the month in which the due date falls.2).

DOC .4 [Schedule of Payments]. Sub-Clause 14.9.Cessation of Employer's Liability No need for particular conditions related to this sub-clause.Statement of Completion No need for particular conditions related to this sub-clause. after he obtains such guarantee. 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. Sub-Clause 14. in a form and provided by an entity approved by the Employer.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. bfc2-071_fidic user guide_250407_final.14 . Sub-Clause 14.9. Sub-Clause 14.Application for Final Payment Certificate No need for particular conditions related to this sub-clause.Romania. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects. The Contractor may gradually increase the amount of the bank guarantee. while the Contractor shall be entitled.” The acceptable form(s) of guarantee should be included in the tender documents.12 .Issue of Final Payment Certificate The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. when the Taking-Over Certificate has been issued for the Works. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 99 Sub-Clause 14.Discharge No need for particular conditions related to this sub-clause.10 .13 . as specified for the Performance Security in Sub-Clause 4. in amounts and currencies equal to the payments to be made.2. “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee. add the following paragraphs at the end of Sub-clause 14. in accordance with the estimates submitted under SubClause 14.9 .11 . . 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. 500/2002) and affecting the issuance of the Final Payment Certificate by the Engineer are reflected in the mandatory particular conditions in Appendix B1. Sub-Clause 14. In such case. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. annexed to the Particular Conditions: an example form is annexed in Appendix F1.

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

His financing bank's requirement would then affect his attitude in contract negotiations. in the first place.DOC . In real terms. 5. the Employer may postpone the termination notice. In particular. The following Sub-Clause may be added. guaranteeing payment when due. Moreover.1 .15 Clause 15 . “Rushing into termination” would in any case be a mistake. that termination of the Contract is a failure. .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. It should be noted. the Contractor may be prepared to initiate financing arrangements and retain responsibility for them. etc. Employers would often lose considerable time (including valuation. although he would probably be unable or unwilling to provide finance from his own resources. he (and his financing bank) would probably require some form of security. organisation of a new tender. 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.Termination by Employer Sub-Clause 15. In such cases. termination under this Sub-Clause should be used as a last resort. unless the later has an enforceable title allowing him to do so. In case this period goes beyond the Time for Completion. the notice period should be used to initiate negotiations and remedy measures. Alternatively. both for the Contractor and for the Employer. These banks may prefer the Contract to be based upon FIDIC's Conditions of Contract for EPC/Turnkey Projects. The acceptable form(s) of guarantee should be included in the tender documents.) and might support significant additional costs in order to complete the Works. They might well require the Employer to make interim payments. so as to allow such negotiations to develop.Romania.7). Sub-Clause 15. It may be appropriate for the Employer. such as an enforceable court decision or a security interest over such items (which is an enforceable title per se). annexed to the Particular Conditions: an example form is annexed to this document.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. it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8. although a large proportion of the Contract Price might be withheld until the Works are complete. Since the Contractor would then have to arrange his own financing to cover the shortfall between the payments and his outgoings. the fact that the Contractor is in bfc2-071_fidic user guide_250407_final. when preparing the tender documents. Such amendments are included in the mandatory particular conditions in Appendix B1. Therefore. 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. Moreover.3.2 . as Annex G. the last two sentences of the last paragraph of this Sub-Clause should be deleted. Items belonging to the Contractor may not be sold by the Employer.

2. under the provisions of the Contract. .Termination by Contractor See our comments under Sub-Clause 15.Romania. in accordance with the provisions of Sub-Clause 14.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. Sub-Clause 16. the advance payment guarantee might be called in by the Employer). depending on the complexity of the project (for example. less than 1% over the last 6 months will be considered as “abandoning” of the works.4 . for example. 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. 5. bfc2-071_fidic user guide_250407_final. 3 months).16 Suspension and Termination by Contractor Sub-Clause 16.A Contractor should be aware before giving a notice of termination that once the Contract is terminated.DOC . 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 16. such as.” Sub-Clause 15. as he may consider proper. Sub-Clause 15.2 Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix B1. say. up to the completion of the respective Works.1 .Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.Payment after Termination No need for particular conditions related to this sub-clause.3. by defining that a minimum (very low) rate of progress. the advance payment shall be repaid immediately by the Contractor (if not.Payment on Termination After termination.5 .Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.3 . Employers should obviously avoid putting themselves in one of the situations described. the Employer will be entitled to use so much of the Contractor’s Equipment and Temporary Works which have been deemed to be reserved exclusively for the execution of the Works.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause. Sub-Clause 16.2 .3 . it cannot be resumed and in most cases a new tender procedure would be necessary.4 . Employers might want to bring a clearer definition of the provisions of letter (b). Sub-Clause 15.

Romania. the sum referred to in the penultimate sentence shall be ……". 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.6 . payments on termination will usually occur in a difficult situation of conflict. 5.Consequences of Employer's Risks No need for particular conditions related to this sub-clause.7 If the Contractor is to occupy the Employer's facilities temporarily. 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.3 .5 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 103 Obviously. 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.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. Sub-Clause 17. Sub-Clause 17.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause.2 .3. under road or rail rehabilitation projects. an additional sub-clause may be added. For example.4 . New Sub-Clause 17. Sub-Clause 17. “The Contractor shall take full responsibility for the care of the items detailed below.17 Risk and responsibility Sub-Clause 17. .Contractor's Care of the Works No need for particular conditions related to this sub-clause.DOC . It might be appropriate to define a time limit for the Contractor to submit its request.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. 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.1 .Indemnities No need for particular conditions related to this sub-clause.6. Sub-Clause 17. from the respective dates of use or occupation by the Contractor.

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

Consequences of Force Majeure No need for particular conditions related to this sub-clause.7 . Furthermore.5 .Duty to Minimise Delay No need for particular conditions related to this sub-clause. The notice of occurrence of Force Majeure should be accompanied by appropriate supporting documentation.Optional termination. 5.3 .Romania.Release from Performance under the Law No need for particular conditions related to this sub-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). the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. Accordingly.1 . is put on alert.3.3. despite a frequent opinion. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 105 5. 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.Force Majeure Sub-Clause 19. Disputes and Arbitration Sub-Clause 20. It is advisable to add at the end of first paragraph of Sub-Clause 19. such certificate would be irrelevant for Force Majeure occurring in a foreign country.1 . Sub-Clause 19. Sub-Clause 19. that something had recently occurred for which an entitlement for time and/or additional payment might be sought. within four weeks. 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 19.6 . Payment and Release No need for particular conditions related to this sub-clause.19 Clause 19 .4 .DOC . Sub-Clause 19.20 Clause 20 -Claims. Sub-Clause 19.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure.2 .Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. bfc2-071_fidic user guide_250407_final. Sub-Clause 19.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". through the Engineer. The important matter is that the Employer. Force Majeure can be proven by other means.Notice of Force Majeure It has to be noted that.

whether at meetings or otherwise. If the answer to item (i) is that the event is not capable of being a valid claim. If the answer to item (i) is yes. acting in all good faith. 4. this is not the way that many DABs are interpreting the clause. The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers. then DABs are likely to be sympathetic to the Contractor. he should consider the following before rejecting the claim:(i) (ii) (iii) (iv) (v) Is the event one which.DOC . 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. about the problem.Romania. not to bar meritorious claims. Engineers should consider items (ii) to (iv). DABs have in mind that the object of Sub-Clause 20. . DABs are taking notice of the first sentence of Sub-Clause 20.1 is to prevent ambushes and minimise delays to projects. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 106 The Engineer shall. have not advised on the merits and have not prepared considered determinations. Although Sub-Clause 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. If the answer to any of these items is yes. Where the Engineer considers that the 28-day notice provision of SubClause 20. taking into account all of the above. the Engineer should consider rejecting the claim on its lack of valid basis. leaving aside Clause 20. have not ensured that the necessary records are kept.1: it has been argued and accepted that if the Contractor has bfc2-071_fidic user guide_250407_final.1 may not have been complied with. Most DAB decisions have allowed a number of claims rejected for late notice to proceed. 3. 1. Next. respond within 42 days after receiving a claim or further particulars. good project administration and fairness under the contracts. consider item (v).1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration. other than by way of formal notice? Is it fair and reasonable. in turn. Guidance as to how the notice provisions should be applied in the best interests of Employers. to reject the claim without consideration of the merits? (vi) (vii) (viii) (ix) 2.

If the issue is raised at meetings or in general correspondence in due time. would the cost or delay claimed have been reduced if earlier notice had been given? 6.2 . setting out its responses to the above questions. Some events might require some investigation and advice before a contractor decides that he has a claim. . whether any prejudice to the Employer could be evaluated in financial terms under Sub-Clause. then rejection for lack of notice should be considered.2. then the obligation to notify has not arisen. Consider items (vi) and (vii). (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. Unless the Engineer (although appointed by the Employer) is to make the prearbitral decisions under this Clause 20. 5. 8.DOC .5 or in time and deducted from any cost or time determined. the Contract should include the provisions under Clause 20 which. If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. in accordance with the alternative option described below. If there appears to have been a failure to notify. in particular. Contract size.Romania. There are two basic possibilities: Appointment of an “ad-hoc” DAB pre-arbitral decision by the Engineer. It has to be noted that appointment of the DAB might not be opportune for all contracts. or (c) Whether the claim should be dealt with on its merits. Advise whether: (a) The claim may reasonably be rejected for lack of notice. Extent of activities off-site. the Engineer should report to the Employer on its proposed action. Finally. has there been prejudice to the Employer or benefit to the Contractor? In other words. DABs do not insist that the notice is formal. consider point (ix) and. 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. One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. 925/2006). Promptly upon receipt of a claim and before rejecting a claim on notice grounds. 7. then this is likely to be treated as adequate notice. Employers should choose between these possibilities having regard to: Contract complexity.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. Consider item (viii). whilst not discouraging the Parties from reaching agreement on dis- bfc2-071_fidic user guide_250407_final. Sub-Clause 20.

Before the Contract is entered into. each of whom has entered into a tripartite agreement with both Parties. Therefore.Romania. or (b) A DAB of three persons. it is essential that candidates for this position are not imposed by either Party on the other Party. The Employer should recognise that.2 envisages appointment of the DAB after a Party gives notice of its intention to refer a dispute to a DAB. which has been the Engineer's traditional role in common law countries. although the Engineer generally acts for the Employer as specified in Sub-Clause 3. if this authority has been delegated in accordance with the example wording in the Appendix to Tender. Alternatively. . for certain types of project. Typically. should be amended to comply with corresponding wording contained in the FIDIC Conditions of Contract for Construction. 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. who acts as the sole member of the DAB. the bfc2-071_fidic user guide_250407_final. FIDIC is prepared to perform this role. taking account of its size. Under either of these alternative forms of Dispute Adjudication Agreement. the Engineer may make these pre-arbitral decisions. 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. In this case Sub-Clauses 20. Both of these forms incorporate (by reference) the General Conditions of Dispute Adjudication Agreement. the Parties' confidence in the agreed individual(s) who will serve on the DAB. particularly those involving extensive work on Site. duration and the fields of expertise which will be involved. each individual person is referred to as a Member. This alternative. which are included as the Appendix to the General Conditions because they are also referred to in Sub-Clause 20. may be appropriate if the Engineer is an independent professional consulting engineer with the experience and resources required for the administration of all aspects of the contract. However. as appropriate to the arrangement adopted. the selection is made by a wholly impartial entity. and that. and the Dispute Adjudication Agreement. Sub-Clause 20.2 provides for two alternative arrangements for the DAB: (a) One person.2 and 20. The form of this tripartite agreement could be one of the two alternatives shown at the end of this publication. allow them to refer contentious matters to an impartial dispute adjudication board.2. if the individual is selected under SubClause 20. it may be decided to retain the services of a permanent DAB. amongst other things.DOC . Sub-Clause 20. DAB is recommended for contracts of more than 5 Million Euro and DAB of 3 members for contracts of more than 100 Million Euro.4 together with the Appendix and Annex to the General Conditions. where it would be appropriate for the DAB to visit the Site on a regular basis. The adjudication procedure depends for its success on.1(a).3. The appointment of the DAB may be facilitated by including an agreed list of potential members in the Contract: in a Schedule.

It is recommended. Employers should carefully check the coherence between the arbitral institution. For example. the location. conciliation. the use of regular courts.6 and replace by the following sentence: “Unless settled amicably or through a DAB decision. If this alternative is considered appropriate. to delete the first sentence of the first paragraph of SubClause 20. neither Party should seek to impose the procedure on the other Party. and may be more acceptable to the Parties. language and procedure of arbitration.DOC . without the need for arbitration: for example. shall be finally settled by international arbitration. Therefore. mediation.3 should be deleted and Sub-Clause 20.3 .Amicable Settlement The provisions of this Sub-Clause are intended to encourage the parties to settle a dispute amicably. Sub-Clause 20. including without limitation any dispute regarding its breach. for the fields covered by arbitration. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 109 Engineer will make these pre-arbitral decisions impartially and the Employer must not prejudice this impartiality. The Contract should include provisions for the resolution by international arbitration of any disputes which are not resolved amicably.” Sub-Clause 20. on confidentiality and on both Parties' acceptance of the procedure. In the event that the Employer intends to replace the Engineer. Sub-Clause 20.6 . it should be noted that timely treatment of dispute is of the essence.Romania.4 and substituting with: “The Engineer shall act as the DAB in accordance with this Sub-Clause 20. the International Commercial Arbitral Court near the Romanian Chamber of Commerce and Industry uses its own procedural rules. any dispute arising out of or in connection with the Contract. Sub-Clauses 20. for their success. acting fairly.5 . Employers are advised to link with the relevant arbitral institutions before defining such conditions. Amicable settlement procedures often depend. or other forms of alternative dispute resolution.Obtaining Dispute Adjudication Board's Decision Again.4 should be modified accordingly by deleting the second paragraph of Sub-Clause 20. so as to clarify this aspect. the Employer's notice under SubClause 3.4 shall include detailed proposals for the appointment of a replacement DAB.4) is English.” Furthermore. bfc2-071_fidic user guide_250407_final. .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. by direct negotiation. Sub-Clause 20.2 and 20.4.4 . termination or invalidity.Arbitration It shall be emphasised that the presence of an arbitral clause excludes. In international construction contracts. international commercial arbitration has numerous advantages over litigation in national courts. impartially and at the cost of the Employer.

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

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

4 & 1.3 & 1.8 14. 5. 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. invoices for his/her daily fees and expenses monthly.7 13.15(b) 8. shall be as specified in the Dispute Adjudication Agreement.” Replace third.5(b) and (c) 14. fourth and fifth paragraphs by: “The Member shall submit to the Contractor.7 & 14.2.2(a) and (b) 14. The Employer shall then pay the Contractor in accordance with the Contract".1.4 1.1 18.3.6 14.4 1. with a copy to the Employer.2 & 20.2 6.5(b) 13.3 1.1 4.1.Romania.3 Data bfc2-071_fidic user guide_250407_final.3 DAB 20.3 1.3 1.2(d) 18. as well as the per diem rate.2 14.1.2 & 1.7 1. 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. .1.5 8.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.1.DOC .3.2.2. All invoices shall be accompanied by a brief description of activities performed during the relevant period.3 1.15 18.3 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 112 “The daily fee.4 2.3 14.

6.have been prepared by FIDIC and are recommended for engineering and building work of relatively small capital value. . were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. Mandatory particular conditions of contract for 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 6.1 The FIDIC Green Book Introduction This chapter provides guidance for the preparation of the Particular Conditions of Contract and the Appendix for Works Contracts using the FIDIC Short Form of Contract. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006. The main aim has been to produce a straightforward flexible document which includes all essential commercial provisions and which may be used for all types of engineering and building work with a variety of administrative arrangements. after the approval by the MPF. in the current Romanian context.DOC . The Romanian language version of the General Conditions of Contract and the proposed mandatory particular conditions of contract will. necessary so as to harmonise the contract provisions with the current Romanian legislation. the FIDIC Green Book. Under the usual arrangements for this type of contract.the FIDIC Green Book . be published in the Official Gazette of Romania for use on infrastructure projects in Romania.e. However. about 500. 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. depending on the type of work and the circumstances. i. the Conditions may be suitable for contracts of greater value. such as. 1st Edition 1999. 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.Romania. the Contractor constructs bfc2-071_fidic user guide_250407_final.000 Euro equivalent and up to 6 months duration. and was submitted to the MPF in December 2006.2 FIDIC Guidance The Conditions 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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10/1995). including any design and the remedying of defects.19 “Works”.Law No need for particular conditions related to this sub-clause. permits etc may also be required from places other than the Country. explosive materials.3 . except as may be attributable to the Contractor's use of such munitions. On the other hand.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. Sub-Clause 1. 6. Sub-Clause 1. typhoon or volcanic activity.1.Romania.Interpretation No need for particular conditions related to this sub-clause. radiation or radioactivity.3. and e) Natural catastrophes such as earthquake.2 . The term "Works" is intended to cover all the obligations of the Contractor. ionising radiation or contamination by radioactivity. This is 14 days after the Contract has come into effect.4 .1.Priority of Documents No need for particular conditions related to this sub-clause.The Employer Sub-Clause 2. strike or lockout by persons other than the Contractor's personnel and other employees d) Munitions of war.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. explosives. Sub-Clause 2. in the Country but not elsewhere. Otherwise there is no "Ruling Language".2 Clause 2 . this Sub-Clause could be limited by the addition at the end of the words: ". . commotion.7 above).1 should be changed in the Particular Conditions. hurricane. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 117 c) Riot.Provision of Site Unless the Parties have agreed otherwise. the Site must be handed over by the Employer to the Contractor on the Commencement Date.5 .2 .DOC . Sub-Clause 1.6 . 1. Sub-Clause 1. refer to the mandatory particular conditions in Appendix D. disorder.. Sub-Clause 1. Any arbitration will be conducted in the specified language. 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. which occurs when the signed Agreement has been returned by the Employer to the Contractor (see also Sub-Clause 1.. then Sub-Clause 6. if for any reason." bfc2-071_fidic user guide_250407_final.

4.2.1 . etc. 9. Sub-Clause 4.General Obligations Most contracts do not specify the exact standard required for each element of the Works. 9. so as to introduce the requirements of Law No. the Employer's representative acts for and in the interests of the Employer.1 to 11.1.2." To the extent that the Employer has delegated powers to an Employer's representative.2 and 14.5. it is recommendable that Employers require more extensive professional assistance and their consultant should have clearly established delegated powers. 8.2 .3. 11.3 Clause 3 .1 and the authorised individual should be named in the Appendix. This is achieved by Sub-Clause 3. The Sub-Clause is intended to prevent argument. then the following words could be used in the Particular Conditions: "Replace the final sentence of Sub-Clause 3.3.2 should be entirely deleted and replaced with the wording provided in the mandatory particular conditions (Appendix C).Romania.Employer's Instructions No need for particular conditions related to this sub-clause Sub-Clause 2.Contractor's Representative No need for particular conditions related to this sub-clause.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. 10/1995 related to the verification of the proper performance of the Works through qualified persons appointed by the Employer.2.1. decisions. If an impartial Employer's Representative is required with a role similar to the traditional Engineer.The Contractor Sub-Clause 4.Approvals The term "approval" is only used in the Conditions in relation to the performance security at Sub-Clause 4.4 Clause 4 . 2. 13.3.1. If a more specific set of standards could be referred to for a particular project. 6.1. 6. 5.1. It is important that risks such as those of poor workmanship or Contractor's design are not transferred to the Employer unintentionally.3. 11. he should be careful not to exercise such powers himself in order to avoid the risk of conflicting instructions. 12. Sub-Clause 3.1.4 . Once appointed. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 118 Sub-Clause 2. . 10. for contracts of relatively higher complexity. There is no dual role or duty to be impartial. so some benchmark standard is needed with which the Contractor is to comply. 10. 7.3. 4. value or duration.DOC .4 and insurances at Sub-Clause 14. then an amendment in the Particular Conditions would be desirable.8. 10.6.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. bfc2-071_fidic user guide_250407_final.3 .2. In addition.3.

The extent of the Contractor's design obligation should therefore be clearly stated if disputes are to be avoided. Suggested forms of performance bond (surety bond) or bank guarantee have not been provided. .4 . This means that if the Employer prefers the Contractor's tendered solution. the order of priority in the Appendix makes it clear that the Employer's documents prevail. as is made clear here and in Sub-Clause 2.3 . bfc2-071_fidic user guide_250407_final.Subcontracting If applicable. Where the Employer procures any part of the design. The Employer need not react at all.Romania. 925/2006). the Sub-Clause could be amended.3. 925/2006. the responsibility for design will be shared as this Contract makes the Contractor responsible only for design prepared by him. Example forms are included with FIDIC's Conditions of Contract for Construction. namely to allow constitution of a guarantee through progressive retentions from payments.DOC .Responsibility for Design The Contractor's responsibility for his design remains. Sub-Clause 5. The amount and a reference to the desired form of any required security should be set out in the Appendix.Design by Contractor Sub-Clause 5. 10/1995). 6. Designs are submitted and may be returned with comments or rejected. Alternatively and particularly if the constitution of a bank guarantee might be difficult for the potential contractors.2 . the Particular Conditions should reflect the requirements of Romanian public procurement regulations as regards subcontractors (Article 96 (1) of GD No. As with all design-build contracts it is essential that the Employer's requirements are set out clearly and precisely. the Specification and Drawings should be amended before the Contract is signed by the Parties. The proposed modification is included in the mandatory particular conditions in Appendix C. The Appendix should indicate to tenderers the Sub-Clause(s) in the Specification that set out the design requirement.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. The Conditions avoid the confusing concept of approval of design.4. The proposed modification is included in the mandatory particular conditions in Appendix C. so as to introduce the provisions of Article 90 letter (c) of the GD No.1 . Sub-Clause 4. In the event of conflict between the Specification and Drawings and the Contractor's tendered design. then local commercial practice should dictate the form. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 119 Sub-Clause 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.Performance Security Sub-Clause 4. 925/2006). The proposed modification is included in the mandatory particular conditions in Appendix C. If it is felt that the scale of project warrants security by means of a bond.5 Clause 5 .

.Programme The Appendix should stipulate any particular requirements as to the form and level of detail of programme to be submitted. This should be done even where this seems obvious in order to avoid argument about whether an intended purpose is defined or not. the Employer should do so. 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. Sub-Clause 7. those should be introduced in the Particular Conditions.Taking-Over Sub-Clause 8.Employer's Liabilities Sub-Clause 6.7 Clause 7 .Employer's Liabilities This Sub-Clause gathers together in one place the grounds for extension of time under Sub-Clause 7.Late Completion There is a maximum amount which the Contractor is liable to pay for late completion specified in the Appendix. the intended purposes of the part of the Works to be designed by the Contractor. the Appendix could stipulate that the programme should show the dates on which it is intended to prepare and submit drawings.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. Sub-Clause 7.1 .8 Clause 8 . The Employer must therefore make clear in the parts of the Specification that impose design obligations.3 . provided that the intended purposes are defined in the Contract. provision must be made in the Particular Conditions.6 Clause 6 .3 and the grounds for claims under Sub-Clause 10. 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.DOC .Extension of Time The test for entitlement to an extension of time is whether it is appropriate.2 . 6.Romania. etc.1 .Execution of the Works There is no provision for sections and for the different Times for Completion by sections.3.4. There is no time or claim for bad weather although this could be adjusted in the Particular Conditions if so required.3. Sub-Clause 7.3 contributed to the delay. bfc2-071_fidic user guide_250407_final. 6. Where Contractor's design is required. This means that if an event under Sub-Clause 6.Time for Completion Sub-Clause 7.4 .Completion No need for particular conditions related to this sub-clause.1 . If a party wishes to protect the intellectual property in his design. If necessary. 6.3.

from the date of taking-over.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. In line with normal practice.DOC . 273/1994.2 .Remedying Effects Sub-Clause 9. notified by the Employer.Right to Vary Variation is defined to include any change to the Specification or Drawings included in the Contract. The definition of Works is broad enough to include any such tests. This liability remains for as long as Romanian law stipulates. The Employer must nominate a taking-over commission (Article 7 of GD No.Uncovering and Testing No need for particular conditions related to this sub-clause. these should be specified in the Specification. Once the Works are ready to be used for their intended purpose. the Employer may notify the Contractor of defects. The liability of the Contractor for defects will not normally end with the expiry of the period stated in the Appendix. There is no defined Defects Liability Period but during the period . The Employer may also notify defects at any time prior to takingover.” Sub-Clause 9.Variations and Claims Sub-Clause 10.3. 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. .3.1 .1 . 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No.2 . the notice should be given. 6. the Employer may employ others for that purpose at the Contractor's cost. Although he is then no longer obliged to return to Site to remedy defects. If any tests are required to be completed prior to taking-over. 273/1994). Such amendment is included in the mandatory particular conditions in Appendix C. If he fails to do so.10 Clause 10 . The Contractor must remedy such defects within a reasonable time.Romania. If the Employer requires a change to part of the Works bfc2-071_fidic user guide_250407_final. provision should be made in the Particular Conditions. the defect represents a breach of contract for which the Contractor is liable in damages.normally 12 months . The proposed modification is included in the mandatory particular conditions in Appendix C. 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 121 Sub-Clause 8. There is no provision for taking-over of only parts of the Works but if this is required. it is not envisaged that the Works need be 100% complete before the Employer may take over. either apparent or latent.Remedying Effects This Sub-Clause shall be modified in order to include the obligation for the Contractor to remedy any defects.9 Clause 9 .

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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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Default by Employer This provision provides the Contractor's main remedy for non-payment.Contractor's Care of the Works Although the Contractor is responsible for the Works prior to taking-over.1. the Employer may take over and use the Contractor's Equipment to complete the Works. bfc2-071_fidic user guide_250407_final.3. Sub-Clause 12.Force Majeure To qualify as Force Majeure. 6. This is to prevent a party abusing a right to terminate in his dealings with the other party for the remainder of the project.4 .2. much delay. the Contractor may suspend all or part of his work. Reference to the applicable law would be necessary.2 . the Employer will be obliged to agree terms with the Contractor for the retention of such equipment. Sub-Clause 12. complication and scope for dispute are avoided. however. 21 days later the option to terminate arises if the Employer persists with non-payment or other default. 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. events must prevent performance of an obligation. which must refer to Sub-Clause 12.DOC . 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. 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. See also the definition at Sub-Clause 1. The Employer's costs in obtaining a replacement contractor will generally be higher than the Contractor's loss of profit. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 125 mination takes place.1 .13 Clause 13 . 7 days after the Employer's receipt of a default notice.Risk and Responsibility Sub-Clause 13. Notice must be given at once. By specifying the damages payable to the innocent party for the defaults leading to the termination.Romania.3 . Care should be taken. refer to the mandatory particular conditions provided in Appendix C. refer to the mandatory particular conditions provided in Appendix C. The Contractor must use his right to terminate within 21 days or lose it. Sub-Clause 12.Insolvency The right of the Employer to retain the Contractor's Equipment may clash with the right of a liquidator or receiver to realise the assets of an insolvent Contractor. If Contractor's Equipment is essential for the safety or stability of the Works.2 . .14. Sub-Clause 13. 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.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.

in view of the costs involved in arbitration.Romania.2. It should be noted that in the event of the Employer's failure to insure.14 Clause 14 .1 .DOC .Extent of Cover The Employer should set out his precise requirements in the Appendix. The Employer shall provide the Contractor with evidence that any required policy is in force and that the premiums have been paid. or arising from taking-over parts of the Works. 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.1 with the following: "The Employer shall. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 126 6. any extra cost of a truly impartial adjudicator is a recommended investment.2 and 14.15 Clause 15 .Resolution of Disputes Sub-Clause 15. even of minor disputes. should be covered by Particular Conditions. See also Clause 13. tenderers should generally be asked to submit details of their insurance cover with their tenders.2.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. Sub-Clause 14. Third Party.Insurance Sub-Clause 14. public liability insurance would normally be mandatory. .Arrangements No need for particular conditions related to this sub-clause. the costs of employing someone from a third country could be disproportionate if it is necessary for the adjudicator to visit or if a hearing became necessary. Delays will inevitably occur if the parties initiate the procedure to appoint an adjudicator only when a dispute has arisen. in the amounts and with the exclusions stipulated in the Appendix. If the Employer wishes to take out the insurances instead of the Contractor. bfc2-071_fidic user guide_250407_final.2 . the following should be used as a Particular Condition in place of Sub-Clause 14. Sub-Clause 14.1 . However." Sub-Clauses 14. the Contractor may give notice under Sub-Clause 12. effect insurance in the joint names of the Parties of the types.3 should be deleted if the Employer takes out the insurance.3 .Failure to Insure No need for particular conditions related to this sub-clause. As smaller contracts are likely to fall within tenderers' standing Contractors' All Risk (CAR) insurance policies. prior to the Commencement Date.3. Care should be taken about whether an adjudicator should be local or from a neutral country.1: • "Replace the text of Sub-Clause 14.3. Although the adjudicator should be impartial. Any requirements for insurance after the date of the Employer's notice under Sub-Clause 8. 6.

4 5.7 11. The Rules of arbitration should be stipulated in the Appendix.8 14.Dayworks Valuation of the Works Materials and Plant Retention Currency of Payment Rate of Interest Insurances Arbitration Rules 9. by an arbitrator. 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. Sub-Clause 15. Sub-Clause 15.1 3.3 .2 11. If none.3 11.1 3.DOC . 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 .1. for example because specifications have been subject to revisions.5 2.4 Guidance for the Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.1 7.1 15. A complete list of Drawings is always desirable and could be attached on a separate sheet.2 4.1.Romania.1 11. 6. The Specification should set out in clear terms any design that the Contractor is required to undertake.2 11.Notice of Dissatisfaction No need for particular conditions related to this sub-clause. delete the reference.2 . bfc2-071_fidic user guide_250407_final.1 1. If there is no bill of quantities.3 Sub-Clause 1.9 1.5 10.2 7.4 1.1 & 11. 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.Arbitration Arbitration may not be commenced unless the dispute has first been the subject of adjudication.4 Data Document identification is necessary to avoid any possible doubt. . if required.

Romania. these should be added by the Employer. bfc2-071_fidic user guide_250407_final.DOC . such as schedules of information provided by the Contractor (elements of the Contractor proposal). 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. .

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

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

1. . Agreement The Agreement is based on the draft proposed by FIDIC. modified for particular requirements of Romanian legislation. modified for particular requirements of Romanian legislation. Templates for Contractual Issues.1.2 FIDIC Green Book This section presents the following templates for contractual issues: • • Agreement Appendix.Romania. 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.1. modified for particular requirements of Romanian legislation. The templates are attached in Appendix E. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 131 8 Templates for Contractual Issues 8. Appendix to Tender The Appendix to Tender is based on the draft proposed by FIDIC. Templates for Contractual Issues. modified for particular requirements of Romanian legislation. Contract Agreement The Contract Agreement is based on the draft proposed by FIDIC.2. modified for particular requirements of Romanian legislation. Letter of Tender The Letter of Tender is based on the draft proposed by FIDIC. Appendix The Appendix is based on the draft proposed by FIDIC. The templates are attached in Appendix E.DOC . bfc2-071_fidic user guide_250407_final.

3 Dispute Adjudication Agreements The proposed DAB Agreements are based on the draft proposed by FIDIC. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 132 8.1.DOC . . modified for particular requirements of Romanian legislation: • • Dispute Adjudication Agreement (one person DAB) Dispute Adjudication Agreement (three person DAB).Romania. The templates are attached in Appendix F. DAB Agreements bfc2-071_fidic user guide_250407_final.

The Mandatory Particular Conditions was approved by the MPF in January 2007. Additional Particular Conditions of Contract. bfc2-071_fidic user guide_250407_final.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. Mandatory Particular Conditions of Contract Appendix A2.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 133 Appendix A . .

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

Romania.Additional Particular Conditions The following pages provide the proposed additional particular conditions for the FIDIC red book.DOC . 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 135 Appendix A2 .

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

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

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

The Mandatory Particular Conditions was approved by the MPF in January 2007. bfc2-071_fidic user guide_250407_final.Romania.DOC . . 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.

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

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. 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).Romania. This guarantee shall apply and be supplemental to the Contract as amended or varied by the Employer and the Contractor from time to time. 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. 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. or if you demonstrate that you do not intend to enter into the Contract with the Contractor. We confirm that the benefit of this guarantee may be assigned subject only to the provisions for assignment of the Contract. or by any other matters.DOC . we <Insert name of parent company> irrevocably and unconditionally guarantee to you. awarding the Contract to the Contractor. In consideration of you. the due performance of all the Contractor's obligations and liabilities under the Contract. the due performance of which and compliance with which by the Contractor are likewise guaranteed hereunder. This guarantee shall continue in full force and effect until all the Contractor's obligations and liabilities under the Contract have been discharged. including the Contractor's compliance with all its terms and conditions according to their true intent and meaning. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. . as a primary obligation. we will indemnify the Employer against and from all damages. or by any variation or suspension of the works to be executed under the Contract. this guarantee shall be void and ineffective. whether with or without our knowledge or consent. the Employer. If the Contract does not come into full force and effect within a year of the date of this guarantee. We hereby authorise them to agree any such amendment or variation. and our liability hereunder shall be discharged absolutely. If the Contractor fails to so perform his obligations and liabilities and comply with the Contract. and that the conditions of your invitation require his offer to be supported by a parent company guarantee. when this guarantee shall expire and shall be returned to us. 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. or by any amendments to the Contract or to the constitution of the Contractor or the Employer. and waiving the benefits of discussion and division.

DOC . or (c) You awarded the Contract to the Principal and he has failed to comply with sub-clause 4. At the request of the Principal. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. or (b) You awarded the Contract to the Principal and he has refused to execute the Contract Agreement. 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 35 days after the expiry of the validity of the Letter of Tender). 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. . the Beneficiary/Employer. which are set out in a document entitled Instructions to Tenderers) require his offer to be supported by a tender security. published as number 458 by the International Chamber of Commerce.2 of the conditions of the Contract. 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). except as stated above. without your agreement. withdrawn his offer after the latest time specified for its submission and before the expiry of its period of validity. and that the conditions of your invitation (the "conditions of invitation". 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. when this guarantee shall expire and shall be returned to us. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public.Romania. This guarantee is subject to the Uniform Rules for Demand Guarantees.

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

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

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

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

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.FIDIC Red and Yellow Books This Appendix E. .Templates for Contractual Issues 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 147 Appendix E .DOC .Romania.1 .

We offer to execute and complete the Works and remedy any defects therein in conformity with this Tender which includes all these documents. [We have completed the Schedule by adding our suggestions for the other Member of the DAB. Signature ________________ in the capacity of ____________________________________________ duly authorised to sign tenders for and on behalf of _________________________________________ Address: ___________________________________________________________________________ Date: ______________________________________________________________________________ * If the Tenderer does not accept. this paragraph may be deleted and replaced by: We do not accept your suggestions for the appointment of the DAB. Specification. <Insert Nos. as set out in Schedule <Insert no. together with your written acceptance thereof.> for the execution of the above-named Works. but these suggestions are not conditions of this offer]. bfc2-071_fidic user guide_250407_final. Unless and until a formal Agreement is prepared and executed this Letter of Tender. We have included our suggestions in the Schedule. shall constitute a binding contract between us. commence the Works as soon as is reasonably practicable after the Commencement Date. If these suggestions are not acceptable to you. Drawings. . we propose that the DAB be jointly appointed in accordance with Sub-Clause 20.2 of the Conditions of Contract.>. Bill of Quantities. we will provide the specified Performance Security. We accept your suggestions for the appointment of the DAB.DOC . the other Schedules.Romania. We acknowledge that the Appendix forms part of this Letter of Tender. and complete the Works in accordance with the above-named documents within the Time for Completion. the attached Appendix and Addenda Nos. or such other sum as may be determined in accordance with the Conditions of Contract.* 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. 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. If this offer is accepted. We understand that you are not bound to accept the lowest or any tender you may receive. for the sum of (in currencies of payment) ………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………. but these suggestions are not conditions of this offer.

1% of the final Contract Price per day.3 1.3.2.1.4 1.1. faults and defects in the Employer' Requirements Normal working hours Delay damages for the Works 4.3 1.2.3 1.7 & 14.3 1. 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. .7 13.3 1.4 5.2 & 1.4 & 1.DOC . 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 1.5 8.1 <Insert No. 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.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. 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.5(b) Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.2.1.7 1.> days 6.3 & 1.1.3.1.Romania.15(b) 08:00 .16:00 Monday to Friday 0.4 2.1 4.4 1.

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

15 Romanian Leu (RON) 18.2 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. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.000 EUR per occurrence with the number of occurrences unlimited Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.3 14.1 18.1 18.2 Start repayment of advance payment 14.3 500. .2 Currencies and proportions 14.5(b) [project requirements] [project requirements] 1% of Accepted Contract Amount 14. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.2(a) Repayment amortisation of advance payment 14.2(b) Percentage of retention Limit of Retention Money If Sub-Clause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 151 Total advance payment 14.2(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. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No. 264/2003 as further modified and completed 10% of each certificate 5% of Accepted Contract Amount Number and timing of instalments 14.Romania.DOC .3 14.6 14.

1.1.5.2 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.DOC .6 Time for Completion (Sub-Clause 1.6 20.3 20.6) 20.3.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 152 Date by which the DAB shall be appointed The DAB shall be Appointment (if not agreed) to be made by Number of arbitrators Language of arbitration Place of arbitration If there are Sections: Definition of Sections: Description (Sub-Clause 1.3) Delay Damages (Sub-Clause 8.6 20.7) Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final.2 20. .

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

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

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

1.1 & 11.DOC . 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.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.Romania.5 0. (i) ………………………………….2 _____ days Romanian Law Romanian Commencement Date Sub-Clause 1. . the Contractor shall complete the following information before submitting his offer.4 9.2 Within 14 days of the Commencement Date 4.4 5.1 3.1 Document Identification Data bfc2-071_fidic user guide_250407_final.. ….1. 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 4.. (c) General Conditions…………….5 2. 1. (e) The Drawings…………………. (f) The Contractor's tendered design (g) The bill of quantities…………… (h) ………………………………….2 7. [Note: with the exception of the items for which the Employer's requirements have been inserted.2 ______________ (details) 7..2 7.9 1.] Item Documents forming the Contract listed in the order of priority Document (delete if not applicable) (a) The Agreement………………… (b) Particular Conditions………….4 1.1 ______________ (details) 10. (d) The Specification………………..1 10% of the sum stated in the Agreement As per form attached Refer Specification Clause No.1 3..

1) Percentage of retention Currency of payment Rate of interest 11.DOC .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.Romania.1 Amount: The sum stated in the Agreement plus 15% Full replacement cost 500 000 Euro per event. Materials.8 ___________________ 5% __________________ RON National Bank of Romania reference rate at Contract signature plus 3 percentage points.3 Place of Arbitration 15.3 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. Unlimited number of events As per legislation in force Exclusions: 15. 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 11.1 11. .3 11. Plants and Fees Contractor's Equipment Third Party injury to persons and damage to property Workers Other cover Arbitration Rules 14.1 11.7 11. per annum Insurances Type of Cover: The Works.1 11.3 Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final.1 11.

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 . .Romania.

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

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. .

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

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. .