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

!"#$%$ &' ()% *"+,-%.# /#0,# 1).+% 233453678992:3;:36:32 <%=&%+ ,> COWI ?,#@,+(0"=

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

.

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

1

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

bfc2-071_fidic user guide_250407_final.DOC

.

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

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. MPF Ministry of European Integration Ministry of Public Finance Ministry of Transport.DOC . 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. . Procurement. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 3 Abbreviations ANRMAP ARIC BCEOM CFCU CN ADNR SA CONS COWI CV DAB EC EPC EPCT ERDF EU EUR FIDIC GD GEO GO ICC ISC ISPA MA Infra MEI MPF MTCT OGR P&DB RBA RCC RON TOR UNCITRAL VAT National Authority for Regulating and Monitoring Public Procurement Romanian Association of Consulting Engineers French consulting company Central Finance and Contracts Unit National Company for Motorways and National Roads Conditions of Contract for Construction Danish consulting company Curriculum Vitae Dispute Adjudication Board European Commission Engineering.Romania.

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

4

1
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.

bfc2-071_fidic user guide_250407_final.DOC

.

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

5

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.

-

-

-

-

Legal framework with regard to public procurement: -

-

-

-

bfc2-071_fidic user guide_250407_final.DOC

.

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

6

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.

-

-

-

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.

bfc2-071_fidic user guide_250407_final.DOC

.

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. 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. 1. . 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 draft mandatory and additional particular conditions were discussed in detail with the MA Infra counterparts and the Working Group.DOC . on behalf of the COWI Consortium. 1st Edition 1999. The Guide provides: • • • Clause-by-clause guidance for particular conditions of contract Templates for guarantees Templates for selected contractual documents.Romania. 1st Edition 1999 Short Form of Contract. The General Conditions of Contract will in due course be published in the Official Gazette of Romania for use on infrastructure projects in Romania. A one-day workshop with all the stakeholders took place on 6th December 2006 in Bucharest.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. The remaining parts of the standard tender documents shall not be covered by this Employer User Guide on Particular Conditions of Contract. and later presented for the Coordination Committee. 1st Edition 1999 Conditions of Contract for Plant and Design-Build.

unless they are explicitly incorporated as part of the Contract documents. It is preferable to avoid introducing references to the conditions of contract within the instructions to tenderers. Finally. . 2. tender procedure and conditions of contract are different processes and do not really interfere. 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). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 8 2 2. In addition. 18/2004/CE defining the overall procurement rules and procedures for the entire European Union. some rules referring to procurement shall be observed during the entire life of the contract. Therefore. The above mentioned GEO No. it should be understood that tender procedures do not replace adequate and efficient contract management.DOC . 34/2006 transposes into Romanian legislation the relevant provisions of the European Directive No. the tender dossier and the Contractor’s proposal have no value after the signature of the Contract. The wish of a Contracting Authority to have a “good contractor” should not result into distortion of competition or artificial requirements.3 Procurement Rules after Contract Signature Even if the tender procedure ends after contract signature. 2.1 Basic Rules for Works Contracts Procurement Rules In Romania. as further approved and modified by Law No. in case a contract is terminated. they just repeat the provisions of the draft conditions of contract attached to the tender dossier and in the worst case.2 Tender Procedure and Conditions of Contract As such. they are in conflict with those. as. The criteria used in the tender should be proportional to the requirements of the project. 34/2006. detailed rules are laid down in the Implementing Norms of the said ordinance. published under GD No.Romania. 925/2006. 337/2006. the procurement rules are defined by the GEO No. bfc2-071_fidic user guide_250407_final. It is therefore recommended to seriously consider which documents should form part of the Contract. Furthermore. without setting unreasonable constraints. in the best case. it is not legally possible to revert to the second ranked tenderer of the original procedure.

It is therefore recommended that Employers. when drafting particular conditions of contract. with the assistance of the Engineer.Romania. 2.5 Contract Management The FIDIC Conditions of Contract are favouring a modern type of contract management. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 9 In particular. The Parties should avoid.DOC .4 Particular Conditions The FIDIC Conditions of Contract define a careful balance between the rights and obligations of both parties. This balance is one of the elements that made those conditions of contract successful and widely used around the world. 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. maintain this balance and refrain from modifying those provisions that are seen as favouring the Contractor (such as Sub-Clause 2. 2. the Employer and the Contractor. • • bfc2-071_fidic user guide_250407_final.4). keeping only provisions that favour the Employer. 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. to transform claims into disputes but should endeavour to find fair solutions in a reasonable time.

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

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

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

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

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

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

1 1.3.1.1 1.3.1.DOC .6 & 4.1 & 13.5 & 10.4.9 1.2 & 8.1.1.3 & 8.1.3 1.1.4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 16 In addition.1. In order to clarify the sequence of Contract activities.4) Tests on Completion Taking-Over Certificate Defects Notification Period (as extended under 11.3) Performance Certificate Final Payment Certificate Figure 4-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.1.2 1.7 & 14.4 & 14. and for EPC/Turnkey Projects.4 & 9. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.2 1.3. 1. 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).8 & 11.7 & 11.1.3. .13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.7 1.Romania. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.3. for Plant and Design-Build.1.1 1.6.3.1 1.3.

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.2. 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 4.1 Introduction The Conditions of Contract for Construction . the Engineer.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.DOC . Under the usual arrangements for this type of contract. Modifications to the Conditions are required to be fully adapted to the current Romanian legislation. the Contractor constructs the works in accordance with design details provided by the Employer or his representative.Romania. .the FIDIC Red Book .

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

but there is no indication. The Employer should prepare the Appendix to Tender.7.13 Permissions being obtained by the Employer . providing a convenient location for the data which is usually required.4. gas and other services available on the Site .1 Nominated Subcontractors Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion .1.7.4 .2 .8 .4.13.4.9.Romania. structures. either in the General Conditions or in the example Appendix to Tender.7 Requirements for Contractor's Documents Phased possession of foundations. lines and levels of reference .2. with the elements completed to the extent of his requirements. The Employer may require other data from Tenderers.1 .4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 19 The Specification The Specification may include the matters referred to in some or all of the following sub-clauses: . .DOC . The example form in Appendix D2 provides a checklist of the data required. and/or specify the extent of other information which each Tenderer is to include with his Tender.4.5 Provisional Sums.1.19 Electricity.6.1.14 Third parties . and include a questionnaire in the Schedules.20 Employer's Equipment and free-issue material .18 Environmental constraints . plant or means of access Contractor's designs Other contractors (and others) on the Site Setting-out points. If each Tenderer is to produce a parent company guarantee and/or a tender security.5. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender. that this data is either prescribed by the Employer or inserted by the Tenderer.6 .4. based on this example form. The Instructions to Tenderers may include matters referred to in some or all of the following Sub-Clauses: bfc2-071_fidic user guide_250407_final.1 .4. 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. water.1 .6 . 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.

due to Romanian legislation in force.4. Under Romanian public procurement regulations.1. In Sub-Clause 1.1. In new Sub-Clause 1. • • • • • • bfc2-071_fidic user guide_250407_final. 273/1994).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. with a clause-by-clause review.1.1. The following definitions should be modified: • In Sub-Clause 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 20 . the requirements of the Romanian procurement legislation and for clarification of the general conditions. 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.1.1 the definition of Contract shall reflect the deletion of Letter of Acceptance. 34/2006. 273/1994).1. Such definition is set out in the mandatory particular conditions in Appendix A1. and Article 94 of GD No. In Sub-Clause 1.Definitions It will be necessary to amend some of the definitions.1 .1.DOC .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.3 . 4. 925/2006).18 .1 Clause 1 .3 the definition of the Letter of Acceptance shall be deleted.1 the definition of the "Base Date" may be changed to reflect a particular calendar date.1 .3. In new Sub-Clause 1. In Sub-Clause 1.Romania.4.9. In Sub-Clause 1.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Insurances Resolution of disputes.11 a definition of the "Final Taking-Over Minutes" shall be included to reflect the process of final taking-over of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 36 of GD No. Such definition is set out in the mandatory particular conditions in Appendix A1. .1.1.General Provisions Sub-Clause 1. 4.4. The amendment of such definition is set out in the mandatory particular conditions in Appendix A1.6 the "Foreign Currency" should be indicated.3.3.3.4.9 .

ordinances.8 "Local Currency" should be defined as RON (Romanian Leu).Priority of Documents An order of precedence is usually necessary. the latter shall prevail. although applicable in many sub-clauses. in case a conflict is subsequently found among the contract documents In Sub-Clause 1.1. Such provision is recommended so as to provide a clear reference during implementation. key equipment. Even if the Contract clearly specifies the priority of documents. should be introduced prior to the Contract signature. Sub-Clause 1. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present sub-clause. .5 .” • • In Sub-Clause 1. significant components of the Contractor’s proposal (key personnel. laws. A proposed amendment is included in the mandatory particular conditions in Appendix A1.6.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that.1. the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No.2 "Country" should be defined as Romania.Law and Language No need for particular conditions related to this sub-clause. are not repeated in the General Conditions.4 . in case a Contractor’s programme bfc2-071_fidic user guide_250407_final. Sub-Clause 1. so as to ensure some enforceability to this proposal. such as: “In these Conditions.2 may be varied.2 . New Sub-Clause 1. in particular when evaluating claims. consistence of these with the tender documents should be checked and corrections.1. orders and other laws and regulations and by-laws of any legally constituted public authority having the force of law in Romania.Romania. 925/2006).3 . 925/2006). Furthermore. traffic management and/or environmental management plans). In Sub-Clause 1.4. outline of quality assurance. if during the performance of the Contract. Non-compliance might have serious consequences.” Sub-Clause 1.6. • Sub-Clause 1. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost.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.1. method of works.5 “Applicable Laws” should be defined as all Romanian legislation.6.1. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications. (Article 95(2) of GD No. In Sub-Clause 1. if needed.DOC .4. decisions.5.13 should be inserted to define the expression "Unit Price" as follows: “Unit Price is the price of a unit quantity in the Bill of Quantities excluding VAT. Sub-Clause 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 21 • • In Sub-Clause 1.Interpretation If the references to "profit" are to be more precisely specified. as well as the fact that.

Sub-Clause 1.10 . Sub-Clause 1. An example form is included at the contractual templates in Appendix D2. 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.6 . Sub-Clause 1. at his own expenses. Sub-Clause 1. Such permits include inter alia permits for site erection. Sub-Clause 1. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor.13 .Confidential Details No need for particular conditions related to this sub-clause.Care and Supply of Documents No need for particular conditions related to this sub-clause. the particular regulations to be complied with by the Contractor.8 . The template for works contracts set out in Form 5 attached to the Procurement Guide allows the assignment of the works contract by the Contractor with the prior agreement of the Employer. . provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract. route permits.Romania. resi- bfc2-071_fidic user guide_250407_final. traffic diversions.11 .9 .Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause.Employer's Use of Contractor's Documents No need for particular conditions related to this sub-clause. for example with: Except for the building permit to be provided by the Employer.6 shall be deleted. in order to reflect the deletion of Letter of Acceptance.Compliance with Laws The Employers should specify. xxx” It is recommended to precise the scope of paragraph (b). when relevant.12 .Assignment If the Contract is concluded pursuant to a public procurement procedure. Sub-Clause 1. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue.DOC . it might be recommendable to state that any reference to calendar dates is indicative only.7 .Contract Agreement The first sentence of Sub-Clause 1. Sub-Clause 1. but are not limited to: Law No. 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. especially if the Contract signature or the Commencement Date occur with delays against initial time schedules Sub-Clause 1.

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

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). for example for long term contracts. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic. as contractors would be concerned by such cancellation. the required land should be made available by the same Employer. so as to facilitate access to the market. 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).3 .DOC . Licences or Approvals With reference to paragraph (a).23.Employer's Claims It has to be underlined that under Sub-Clause 14. as Employers are generally expected to have secured funding corresponding to the Accepted Contract Amount before the signature of the contract. However. it is recommended not to delete this Sub-Clause entirely.Employer's Financial Arrangements It is possible. Sub-Clause 2. References to laws and standards should be included for formal reasons. The Site does not include additional working areas that the Contractor might require. Sub-Clause 2. as much as possible. it is good practice to include in the tender and then contract documents. but the contract documents should be. and particularly in the Specifications. all relevant information. 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). in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). and aspects such as co-ordination and safety may need to be specified. as defined under Sub-Clause 4.4 . the Employer should state this and define the procedure that will be applied as well as the main constraint/parameters. 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).2 .Permits. The anticipation of a risk in this regard would then reflect on the prices.7. bfc2-071_fidic user guide_250407_final. The work to be carried out by these other contractors should be described in the tender documents. Sub-Clause 2. to introduce a more precise definition of what will be considered as reasonable evidence. self-sufficient. Sub-Clause 2. Therefore.5 .Romania.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site. However. .

Engineer's Duties and Authority Any requirements for Employer's approval should be set out in the Particular Conditions. without relieving the Contractor of any of his duties and responsibilities under the Contract.The Engineer Sub-Clause 3. bfc2-071_fidic user guide_250407_final. an emergency occurs affecting the safety of life or of the Works or of adjoining property.3. The Engineer shall determine an addition to the Contract Price. as set out above. It is also recommendable to add the following precisions. In addition to those limitations included in the mandatory particular conditions (Appendix A1) and deriving from the applicable Romanian legislation. If the obligation to obtain the approval of the Employer only applies beyond certain limits. .3 Clause 3 . Attention of the Employers is drawn on the fact that such prior approval transfer responsibility from the Engineer to the Employer. in accordance with Sub-Clause 13. financial or otherwise. in respect of such instruction. It is clear that the Engineer has the role defined in very general terms in Article 21 paragraph d) of Law No. the Conditions of Contract provide for several additional duties and authority. instruct the Contractor to execute all such work or to do all such things as may.4 and/or Sub-Clause 13.1: Specific approval of the Employer is required before instructing or approving the omission of any work. This list should be extended or reduced as necessary.1 and shall notify the Contractor accordingly. The Contractor shall forthwith comply with any such instruction of the Engineer.Delegation by the Engineer No need for particular conditions related to this sub-clause.1 .” Sub-Clause 3.DOC . to obtain approval. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 25 4.2 . Such limitations should (i) be specifically detailed in the Particular Conditions and (ii) truly correspond to those mentioned in the Engineer’s contract. 10/1995. in order to maintain control on some of the main features. However.1: Specific approval of the Employer is required before instructing or approving any extension of the Time for Completion c) Sub-Clause 13. in the opinion of the Engineer. that is those providing more than x% of the Accepted Contract Amount) b) Sub-Clause 8. he may.4: Specific approval of the Employer is required before issuing consent for any Sub-Contractor. if. in the opinion of the Engineer. (alternatively. or similar: “Notwithstanding the obligation. be necessary to abate or reduce the risk. Employers might want to add.Romania. this obligation could be limited to major Sub-Contractors. the example wording should be varied. with a copy to the Employer. for example: a) Sub-Clause 4. Employers might wish to limit the authority of the Engineer.

3 . Time and place of these meetings shall be mutually agreed taking into consideration the subject to be discussed. material supply. In the record. the Sub-Clause may require amendment.Romania. taking ac- bfc2-071_fidic user guide_250407_final. claims for extras. safety. For example. Employers might consider introducing a time limit for issuing determinations. 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. or from an assistant to whom the appropriate authority has been delegated under this Clause. . Determinations enter into force immediately. In general.4 . the designer or other entities are not to issue instructions directly to the Contractor.6 . Sub-Clause 3. the status of staffing. responsibilities for any actions to be taken shall be in accordance with the Contract.1 . The agenda for such meetings shall cover a review of progress attained. current and anticipated difficulties.” Therefore.DOC .Replacement of the Engineer No need for particular conditions related to this sub-clause. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 26 Sub-Clause 3. the Contract may specify temporary arrangements for river diversion which have been designed by the Engineer. New Sub-Clause 3. there may be an item of Temporary Works for which the Contractor will not be fully responsible. The Engineer shall record the business of management meetings and supply copies of the record to those attending the meeting and to the Employer.The Contractor Sub-Clause 4. equipment.3. In these cases. claims should be dealt with in a timely manner.Management Meetings It is recommendable to introduce reference to management meetings. payments. determinations should not be unreasonably withheld or delayed. within two working days from the meeting. under the Contract. interface with other Contractors. a review of schedules and plants for future activities. Sub-Clause 3.5 . and other pertinent topics.Determinations Attention is drawn on two issues: As per Sub-Clause 1. the Engineer could issue an interim determination before issuing a final one.4 Clause 4 . - In practice.” 4. Such meetings shall take place on a monthly basis. engineering. while waiting for additional supporting particulars.Contractor's General Obligations Occasionally.Instructions of the Engineer Attention is drawn on the following provision of this Sub-Clause: “The Contractor shall only take instructions from the Engineer.3. in order to avoid delays.

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

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

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

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

this Sub-Clause should establish a link with the documents provided.11 . 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. the Employer's obligations should be specified: see SubClause 4. per cent ( cluded in the Contract Price (the balance borne by the Contractor).Quality Assurance The wording in the General Conditions imposes the requirement of a quality assurance system in accordance with details specified in the Contract.13 .Right of Way and Facilities No need for particular conditions related to this sub-clause.10 .Access Route This Sub-Clause has to be put in relation with Sub-Clause 2. 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.Romania.12 may be amended by deleting sub-paragraph (b) of Sub-Clause 4. Sub-Clause 4. Sub-Clause 4.” %) of which shall be inpercent of the Cost shall be Sub-Clause 4. further paragraphs may be added.20.17 .Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works.Avoidance of Interference No need for particular conditions related to this sub-clause.14 .1 and Sub-Clause 4. If vesting of Contractor's Equipment is required.Unforeseeable Physical Conditions In the case of major sub-surface works. Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions. Sub-Clause 4. In case a description or an outline of the quality assurance system was submitted as part of the Tender. usually as part of the tender documents.12 . Sub-Clause 4. subject to their being consistent with applicable laws. If this risk is to be shared between the parties.Transport of Goods No need for particular conditions related to this sub-clause.9 .Site Data Under this Sub-Clause. the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.12 and substituting by: “(b) Payment for any such Cost. . Sub-Clause 4. Sub-Clause 4. bfc2-071_fidic user guide_250407_final. Sub-Clause 4.16 .DOC . Sub-Clause 4.15 .

including locations and prices. It might be advisable to extend it to Equipment brought to the Contractor’s site installation. further provisions may be necessary. subject to Sub-Clause 2. With some types of facilities. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. in order to clarify aspects such as liability and insurance. for use of Employer’s Equipment or of free issue materials. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements. In case Employers intend to use this Sub-Clause. 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.21 .19 . Employers might want to include in this Sub-Clause a provision for indemnification in case of default.” Sub-Clause 4. they should be very careful so as to ensure fair and transparent conditions of competition. Sub-Clause 4. while detailed information regarding the quality and quantity of free issue materials.18 . the Specification should give details. Furthermore.” Sub-Clause 4. 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. if this is not located on the Site. 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).20 . 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. .Electricity. Sub-Clause 4. It is advisable to have those materials surveyed as part of the tender.DOC .Protection of the Environment For Works to be executed in particularly environmentally sensible areas. 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.Romania. 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.Employer's equipment and Free-Issue Material For this Sub-Clause to apply. so as to define their condition and suitability for use. bfc2-071_fidic user guide_250407_final.5. Water and Gas If services are to be available for the Contractor to use. the Employer shall be entitled.

Fossils No need for particular conditions related to this sub-clause.Security of the Site If the Contractor is sharing occupation of the Site with others. For example.23 .” Sub-Clause 4. but can be signed. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. 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. These attachments are part of the works diaries. in the case of a road rehabilitation project. Such use and access shall be regulated as part of the Contractor’s traffic management plan. the working hours.21 [Progress Reports] with subsequent description in the Specifications): “The Contractor shall draw up a works diary for contemporary records. the Employer's obligations should be specified. the tests completed. the supplied materials. 3.DOC .22 . At the Engineer’s request. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments.Contractor's Operations on Site No need for particular conditions related to this sub-clause. it is recommendable to precise that: “For the purposes of this Sub-Clause. actual quantities. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties. the equipment out of order. 2. Sub-Clause 4. New Sub-Clause 4. the sent samples. The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. the materials incorporated into the works. such as completed Works. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. bfc2-071_fidic user guide_250407_final. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor.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. supplies accepted for incorporation into the Works. if need be. the unforeseen events. the work breaks due to adverse meteorological conditions. in a format agreed by the Engineer. as well as verbal orders given to the Contractor. Atmospheric conditions.24 . . In these circumstances. Sub-Clause 4. as separate documents. the number and the qualification of the personnel working on Site.Romania. it may not be appropriate for him to be responsible for its security. during the reported period.

6).Nominated Sub-Contractors In most cases under Sub-Clause 4. 4.4 . Sub-Clause 5. the Contractor might be required to provide inputs to the Construction Book. Clause 5 provides for the particular situation whereby the Employer may select a Subcontractor. The attention of Employers is drawn on the fact that Nominated Subcontractors shall be nominated further to a selection procedure in full accordance with the relevant procurement legislation.As-Built Drawings In order to ensure full compliance with the requirements of Law No. describing the particular circumstances.4. subject to any constraints specified in the Contract.Definition of "nominated Subcontractor" No need for particular conditions related to this sub-clause.5 Clause 5 . 10/1995.Evidence of Payments No need for particular conditions related to this sub-clause. according to Sub-Clause 4.DOC .Romania. If a nominated Subcontractor is to be required. Clause 5 should be amended.Payments to nominated Subcontractors No need for particular conditions related to this sub-clause. it is advisable to introduce provisions similar with those of the conditions of contract for plant and design-build (Sub-Clause 5. In case of disagreement on a subject noted in the works diary or attachments.3 . The sub-paragraphs of Sub-Clause 5.3. Before using this Clause. Sub-Clause 5. although the Contractor remains responsible for any act or default of Subcontractors. Sub-Clause 5. Employers might also consider the conclusion of a separate contract. 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. If the Employer anticipates that a Subcontractor is to be instructed under Clause 13 but is not to be a nominated Subcontractor.Objection to Nomination No need for particular conditions related to this sub-clause. New Sub-Clause 4. full details should be included in the tender documents.1 . bfc2-071_fidic user guide_250407_final.26 . 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”. Furthermore. signed by the Contractor’s Representative and countersigned by the Engineer or his representative.2 .4. . the Contractor selects Subcontractors. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. Such inputs should be clearly defined. Sub-Clause 5.2 indicate some of the problems which may have to be overcome.

3.DOC . chemicals.Labour Laws According to the Procurement Guide. 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.7 .4 .Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender.Persons in the Service of Employer No need for particular conditions related to this sub-clause.Romania.Staff and Labour Sub-Clause 6. Such obligation is deemed to be complied with if the tender documents indicate the relevant institutions wherefrom detailed information as regards the above mentioned regulations can be obtained.Facilities for Staff and Labour If the Employer will make some accommodation available.Contractor's Superintendence Add the following text at the end of Sub-Clause 6. his obligations to do so should be specified. . Sub-Clause 6.3 .6 Clause 6 . Sub-Clause 6. such as traffic management. Sub-Clause 6.8: bfc2-071_fidic user guide_250407_final.5 . In some cases.2 .Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause. etc. 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. except for those activities requiring continuous presence on Site. for example).6 .1 .” Sub-Clause 6.8 . 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. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract. or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision.” Sub-Clause 6. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift. Sub-Clause 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 35 4.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. this Sub-Clause may be deleted. Any replacement personnel shall be at least of equivalent qualification and experience. Sub-Clause 6.

1 . any arms or ammunition of any kind. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. Sub-Clause 6. sale. 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. reward or bribe given.11 .Plant Materials and Workmanship Sub-Clause 7. gift. Any amount paid shall be deducted from the Contractor's payment due. The Contractor must ensure that these personnel are provided with the required residence visas and work permits. barter or disposal by Contractor’s Personnel. or permit or allow importation. (c) Arms and Ammunition The Contractor shall not give.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works.” Sub-Clause 6.Disorderly Conduct No need for particular conditions related to this sub-clause. advantage. bfc2-071_fidic user guide_250407_final.Romania. In the event of the death in the Country of any of these personnel or members of their families.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works. import. the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial. sell. The prohibition of “Hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4.9 . or allow Contractor’s Personnel to do so.Contractor's Personnel No need for particular conditions related to this sub-clause. gift. give. barter or otherwise dispose to any person. Sub-Clause 6.DOC . 4.3.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause.8).7 Clause 7 .” Add the following paragraphs at the end of Sub-Clause 6. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. gratuity. (b) Alcoholic Liquor or Drugs The Contractor shall not. barter or otherwise dispose of any alcoholic liquor or drugs. in addition to any criminal liability which may be thereby incurred. . 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. 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. (d) Illegal Payments Any commission.10 .

levied in relation to the dumping of part or all of such materials. the execution and the completed Works shall comply with the Country's technical standards.4 of the conditions of contract for plant and design-build): “The design. applicable to the Works.Rejection No need for particular conditions related to this sub-clause.9 . this should be made clear in the Specifications. Laws applicable to the product being produced from the Works.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. Sub-Clause 7.Ownership of Plant and Materials No need for particular conditions related to this sub-clause. or defined by the applicable Laws. in respect of the Works and each Section.7 . Sub-Clause 7. and b) the proposals for compliance constitute a variation.Samples No need for particular conditions related to this sub-clause.DOC .Romania. . and other standards specified in the Specifications. building. bfc2-071_fidic user guide_250407_final. unless stated otherwise.Technical Standards and Regulations It is advisable to precise (as per the provisions of Sub-Clause 5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 37 Sub-Clause 7.” New Sub-Clause 7. debris and hazardous waste. if any. Sub-Clause 7. If changed or new applicable standards come into force in the Country after the Base Date. construction and environmental Laws. References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date. the Contractor's Documents. be those prevailing when the Works or Section are taken over by the Employer under Clause 10 [Employer's Taking Over]. Sub-Clause 7.6 .3 .5 . Sub-Clause 7. waste piles. In the event that: a) the Engineer determines that compliance is required.Remedial Work No need for particular conditions related to this sub-clause.4 . etc).8 . the Contractor shall give notice to the Engineer and (if appropriate) submit proposals for compliance.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment. Sub-Clause 7.2 .Testing No need for particular conditions related to this sub-clause. All these Laws shall.

.Extension of Time for Completion No need for particular conditions related to this sub-clause. subject to Sub-Clause 2. 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. 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. The programme is primarily a document prepared by the Contractor.1 is ensured. Sub-Clause 8.1 and Sub-Clause 8. 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]. there is no need to amend the Contract in any way. Failure to comply with this provision shall entitle the Employer. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8.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. In case the Works are not completed during the Time for Completion. It is advisable to provide a time-limit for the submission of a revised programme.Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8.3.” Sub-Clause 8.Commencement.5.2 . as the Contract clearly describes how to handle this situation.3 . In case Employers know that the Commencement Date for a part of the Works will be delayed. to payment of damages by the Contractor. the Contractor should not stop the Works if it is able to work on part of the Works. delays and Suspension Sub-Clause 8.1 .1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. the last sentence defines strong obligations for the Contractor. these stages should be defined as Sections. On the other hand. in the Appendix to Tender.DOC . under its full responsibility.Romania. bfc2-071_fidic user guide_250407_final.” 4. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice. It is highly recommended not to sign any contract before compliance with SubClause 2.4 . For example.7).Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer.8 Clause 8 . Sub-Clause 8. If the Works are to be taken-over in stages.

05% of the Accepted Contract Amount per day of delay. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. The four other indicators shall be agreed by the Contractor and the Engineer within 28 days from the submission of the Contractor’s work programme. Such indicators however shall be defined based on the Contractor’s work programme. to withhold from the Interim Payment Certificates an amount equal to 0. the milestones have to be updated in accordance with the provisions above.DOC . In case no agreement is reached during such period. Before using such system. (Other items). If the Accepted Contract Amount is expressed in the Local Currency.Romania. up to a maximum of 10% of the Accepted Contract Amount. This system includes five milestones for monitoring and evaluation of the progress of the Works. 28 days after the Commencement Date: All Contractor key personnel are on Site. In case the Contractor incurs delays in the achievement of a milestone.Delay Damages Under many legal systems. as submitted under the first paragraph of Sub-Clause 8. Compliance of the progress of the Works with the Contractor’s programme. It is therefore possible to include a “milestones system” along the example provided below. Milestone 1 is defined as the achievement of the following indicators. Milestone 1 is defined hereafter. The Contractor work programme under the present Sub-Clause is submitted. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. bfc2-071_fidic user guide_250407_final.7 .5 .5.6 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 39 Sub-Clause 8.3 or revised under the third paragraph of Sub-Clause 8. Sub-Clause 8. Sub-Clause 8. the Engineer will define those four indicators. is controlled through a milestones system. the Employer will be entitled. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract.3.Rate of Progress Employers sometimes complain that there is little control on the performance of the Contractor before the end of the Time for Completion. subject to Clause 2. if and when the milestone is reached. The amount so withheld shall be paid to the Contractor. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works. .15(b).Delays Caused by Authorities No need for particular conditions related to this sub-clause. 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.

New Sub-Clause 8. waive their rights to delay damages. bfc2-071_fidic user guide_250407_final. For example. It should also be noted that Employers might.13 . 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.Resumption of Work No need for particular conditions related to this sub-clause. or suspend the actual payment of such damages by the Contractor until the completion of the Works. 4. 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. .Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause. in duly justified cases.Tests on Completion Sub-Clause 9. Sub-Clause 8. Sub-Clause 8.5 has to be followed.Romania. If the Works are to be tested and taken-over in stages.Consequences of Suspension No need for particular conditions related to this sub-clause.Prolonged Suspension No need for particular conditions related to this sub-clause. Sub-Clause 8. the tests requirements may have to take account of the effect of some parts of the Works being incomplete. For contracts where completion of the Works by a certain date is of paramount importance.3. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time.2 refers to accelerated completion). except in the event of termination by the Employer. it might be envisaged to (i) introduce a higher amount of delay damages.12 .Contractor's Obligations The Specification should describe the tests which the Contractor is to carry out before being entitled to a Taking-Over Certificate. but also (ii) introduce a bonus for acceleration.).8 .10 .9 .9 Clause 9 . Sub-Clause 8. This tends to restrict the constitution of “black lists” or other similar instruments.DOC . Sub-Clause 8.Incentives for Early Completion Incentives for early completion may be included in the tender documents (although Sub-Clause 13. but the Employer’s Claims procedure defined under Sub-Clause 2. etc.1 .11 . The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price. It is also mentioned that these delay damages are the only damages due for such default (late completion).Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed.

925/2006) are reflected in the mandatory particular conditions in Appendix A1. in the Appendix to Tender. Sub-Clause 9. Sub-Clause 10.4 . If the Works are to be taken-over in stages. 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”. Such regulations are reflected in the mandatory particular conditions in Appendix A1. 273/1994.2 .3 . the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed. it might be recommendable that the Engineer be nominated as representative of the Employer. Sub-Clause 10. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 41 Sub-Clause 9.3. and the Appendix to Tender should include a table.3 . these stages should be defined as Sections. The Employer must nominate a taking-over commission (Article 7 of GD No. Sub-Clause 10.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.Failure to Pass Tests on Completion No need for particular conditions related to this sub-clause.Retesting No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final.1 . so as to define the Time for Completion and delay damages: example of this table is shown in the Appendix D2. Unless expressly forbidden by the Law. . Precise geographical definitions are advisable.Interference with Tests on Completion No need for particular conditions related to this sub-clause.Employer's Taking-Over Sub-Clause 10. 273/1994.Delayed Tests No need for particular conditions related to this sub-clause. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No.10 Clause 10 .Romania. 4. On the other hand. The role of the Engineer in the taking-over commission is not defined.Taking-Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No. 273/1994).DOC . GD No. Sub-Clause 9.4 .Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause.2 .

Right of Access No need for particular conditions related to this sub-clause.Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause. Sub-Clause 11.7 .2 .11 Clause 11 . However.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.Removal of Defective Work No need for particular conditions related to this sub-clause. Sub-Clause 11.Costs of Remedying Defects No need for particular conditions related to this sub-clause.8 . a Defects Notification Period shall not be extended by more than two years. if and to the extent that the Works. . Sub-Clause 11.3. bfc2-071_fidic user guide_250407_final.5 .Unfulfilled Obligations Under Romanian law.1 . whilst his liability for defects affecting the structure subsists during the lifetime of the Works (Article 29 of Law No. The issue of the Performance Certificate represents the acceptance of the Works. Sub-Clause 11. Sub-Clause 11.3 .Contractor to Search No need for particular conditions related to this sub-clause. a Section.5 to an extension of the Defects Notification Period for the Works. Such regulations are reflected in the mandatory particular conditions in Appendix A1. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix A1.Failure to Remedy Defects No need for particular conditions related to this sub-clause.DOC .Extension of Defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2. the Contractor is liable for the latent defects of the Works during a 10 year period.Romania. a Section or a significant part of the Works.10 . a major item of Plant or significant part of the Works (as the case may be.Defects Liability Sub-Clause 11.9 . Sub-Clause 11. Sub-Clause 11. It is therefore normal that the final payment and final evaluation of the Contract Price comes after such acceptance.Further Tests No need for particular conditions related to this sub-clause.4 .6 . Sub-Clause 11. 273/1994. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 42 4. 10/1995).” 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.

3.3 (a) (ii): replace “0. Sub-Clause 12. From this point of view.Works to be Measured If any part of the Permanent Works is to be measured according to records of its construction.13 Clause 13 . b) The Contractor may initiate his own proposals under Sub-Clause 13. 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”. Furthermore. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 43 Sub-Clause 11. Sub-Clause 13.01%” with “0. such “satisfaction” should be properly documented.1 . it is recommendable to define a schedule of payments.11 .2 . which are intended to benefit both Parties.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.2. .5%” In Sub-Clause 12.3. details should be specified in the tender documents. For “lump sum” items.3 .12 Clause 12 .1. 4. including any records for which the Contractor is to be responsible.Clearance of Site No need for particular conditions related to this sub-clause.Romania.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13. variations do bfc2-071_fidic user guide_250407_final.DOC .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. seeking prior agreement so as to minimise dispute.3.4 .3 (a) (iii): replace “1%” with “2%”.1 . or c) The Engineer may request a proposal under Sub-Clause 13. 4. Sub-Clause 12.Omissions No need for particular conditions related to this sub-clause.Evaluation It is advisable to include the following: In Sub-Clause 12.3 (a) (i): replace “10%” with “15%” In Sub-Clause 12. Sub-Clause 12. without prior agreement as to feasibility or price.Measurement and Evaluation Sub-Clause 12.

Sub-Clause 13. However.” Typically.Romania. 925/2006. The last sentence of this Sub-Clause is of importance and introduces the principle of “non-retroactivity”. Under the procurement legislation. Sub-Clause 13.Payment in Applicable Currencies No need for particular conditions related to this sub-clause. The Contractor shall not be entitled to any extension of time.4 . calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender. 925/2006. additional works are to be treated with considerable care. For any contract of duration of more than 12 months.Variation Procedure No need for particular conditions related to this sub-clause.5 . variations have to be made or confirmed in writing. Materials or services other than from a nominated Subcontractor. Sub-Clause 13.8 .” Sub-Clause 13. the conditions of Article 122(i) of GEO No. a percentage of 5% is being used. 34/2006 have to be met. Sub-Clause 13. The relevant wording is included in the mandatory particular conditions in Appendix A1. 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. Cost or profit related to such period of review and approval.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.Daywork No need for particular conditions related to this sub-clause. .Provisional Sums It is recommended to modify point (b) (ii): “A sum for overhead charges and profit. The possibility and principles of such adjustments are foreseen in Article 97 of GD No.Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No.6 .7 . In particular.Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause.2 . Sub-Clause 13. including for the period required for its review and approval. as any instruction.3 .DOC . Such formula 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 44 not have to be treated like an addendum. Sub-Clause 13. it is strongly recommended to include a price adjustment formula.

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

It is important to define such progress by reference to nonambiguous milestones.2 . this Sub-Clause would apply only for the conditions of contract for plant and design-build.4).4 . Sub-Clause 14. Such amendments are included in the mandatory particular conditions in Appendix A1. Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. In some cases. annexed to the Particular Conditions: an example form is annexed in Appendix D1. Some objects might also be divided into sub-phases. The acceptable form(s) of guarantee should be included in the tender documents. consideration should be given to the benefits of advance payment(s). 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.DOC . Unless this Sub-Clause is not to apply.” Sub-Clause 14.3. This Sub-Clause needs be amended in order to reflect mandatory Romanian regulations in respect of advance payments from the public funds (Law No. and any drawings required for construction may be specified as being Contractor's Documents. If Sub-Clause 14.Advance Payment When writing the Particular Conditions.3 . such Statement shall be void and ineffective. bfc2-071_fidic user guide_250407_final. 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. 500/2002 and GD No. and the Schedule would actually make reference to actual progress. in addition to the documents and information contained in the Contractor’s progress report. Sub-Clause 14. In order to ensure that a duly appointed Contractor’s Representative will be present at all time. 264/2003). the total advance payment (and the number of instalments if more than one) must be specified in the Appendix to Tender. the tender documents should include a schedule of payments (see Sub-Clause 14. For a lump sum contract. The Specification should describe the procedures under which the Contractor submits these Documents for the Engineer to approve. additional Sub-Clause(s) should be added.Romania. In case a Statement is not signed by the duly appointed Contractor’s Representative.1(b) is not to apply. 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.Schedule of Payments In most cases.Application for Interim Payment Certificate It might be useful to better define which supporting documents would be required. .

. The Contractor is to be notified of the value of the Interim Payment Certificate. They do not imply acceptance of any work and might be modified afterwards. in case the Employer considers that an undue payment has been made.DOC .Romania. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations. Although modifications regarding works already certified should remain the exception. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. Interim Payment Certificates are. 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 47 tenderers would have to price each object. bfc2-071_fidic user guide_250407_final. through the provision of supporting particulars. but in case of arithmetical mistakes. interim. It has to be noted that the Employer is not entitled to modify any Payment Certificate. he can also include in his claim the related financing costs. Sub-Clause 14.5. - - Sub-Clause 14. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix A1.5 . such works are considered as finally approved only at the issue of the Performance Certificate. Plant and Materials delivered to the Site become the property of the Employer.Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. by definition.2). several aspects need to be highlighted: The Engineer is bound by the time limit of 28 days for issue of an Interim Payment Certificate (failure to issue a Certificate in 56 days is a reason for Termination by the Contractor under Sub-Clause 16. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7. The Engineer is due to substantiate its determination.6 . Furthermore. The scope of those provisions is to ensure that an adequate flow of cash is maintained. It also has to be noted that.Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. 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.7.7 . It is however preferable that the “weight” of each sub-phase be defined in the tender documents. Sub-Clause 14.

Discharge No need for particular conditions related to this sub-clause. for example: The financing charges for amount/s receivable not paid on the due date shall be the interest rate applied by the European Central Bank to its principal refinancing operations." The acceptable form(s) of guarantee should be included in the tender documents. in accordance with the estimates submitted under SubClause 14. when the Taking-Over Certificate has been issued for the Works.DOC .2. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money.9.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. as specified for the Performance Security in Sub-Clause 4. annexed to the Particular Conditions: an example form is annexed in Appendix D1. Sub-Clause 14. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. 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. after he obtains such guarantee. it is useful to indicate that the central bank of the Country is the European Central Bank.4 [Schedule of Payments]. increased by three and a half percentage points. In such case.Statement of Completion No need for particular conditions related to this sub-clause.10 .8 . bfc2-071_fidic user guide_250407_final.9: “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee. Sub-Clause 14.Romania.11 . add the following paragraphs at the end of Sub-Clause 14. in a form and provided by an entity approved by the Employer.Delayed Payment When payments are made in Euro (or EUR). 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.Application for Final Payment Certificate No need for particular conditions related to this sub-clause. in amounts and currencies equal to the payments to be made.9 . The Contractor may gradually increase the amount of the bank guarantee. 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 14.12 . Sub-Clause 14. in force on the first calendar day of the month in which the due date falls. while the Contractor shall be entitled. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects. as published in the C series of the Official Journal of the European Communities.

13 . New Sub-Clause 14. and the date on which payment is actually made (inclusive). plus three and a half percentage points.Cessation of Employer's Liability No need for particular conditions related to this sub-clause. and only the first sentence of this Sub-Clause will apply.14 . the Particular Conditions may need to incorporate its special requirements.Romania. Sub-Clause 14.Issue of Final Payment Certificate The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. it must be named in the Letter of Tender. The default interest shall be incurred over the time which elapses between that date of the payment deadline set by the Employer (exclusive). and to seek approval of the draft tender documents.Currencies of Payment If all payments are to be made in Local Currency. on the first day of the month in which the time-limit expired. bfc2-071_fidic user guide_250407_final.16 Repayment A new Sub-Clause 14. development banks. These requirements may include tendering procedures which need to be adopted in order to render the eventual contract eligible for financing. and/or special Sub-Clauses which may need to be incorporated into the Particular Conditions. Should the Contractor fail to make repayment within the deadline set by the Employer. there may be a need to secure finance from entities such as aid agencies.DOC .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. or other international financing institutions. Bank charges incurred by the repayment of amounts due to the Employer shall be borne entirely by the Contractor. export credit agencies. Any partial payments shall first cover the interest thus established. At the rate applied by the European Central Bank to its main refinancing transactions in euro where payments are in euro. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 49 Sub-Clause 14. Amounts to be repaid to the Employer may be offset against amounts of any kind due to the Contractor. The exact wording will depend on the relevant institution. 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. This shall not affect the Parties’ right to agree on payment in instalments. so reference will need to be made to them to ascertain their requirements.15 may then be replaced. Sub-Clause 14.15 . 500/2002) and affecting the issuance of the Final Payment Certificate by the Engineer are reflected in the mandatory particular conditions in Appendix A1. .” Financing Arrangements For major contracts in some markets. If financing is to be procured from any of these sources. Sub-Clause 14. Alternatively.

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

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

Romania.Termination by Contractor See comments under Sub-Clause 15. up to the completion of the respective Works. bfc2-071_fidic user guide_250407_final.4 . 3 months). that once the Contract is terminated. Sub-Clause 16. in accordance with the provisions of Sub-Clause 14. It might be appropriate to define a time limit for the Contractor to submit its request. 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. Sub-Clause 16.3 . Employers should obviously avoid putting themselves in one of the situations described.5 .Payment after Termination No need for particular conditions related to this sub-clause.Suspension and Termination by Contractor Sub-Clause 16. 4. payments on termination will usually occur in a difficult situation of conflict.1 .2 .DOC . it cannot be resumed and in most cases a new tender procedure would be necessary. Sub-Clause 15.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. A Contractor should be aware before giving a notice of termination.Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.4 . the advance payment shall be repaid immediately by the Contractor (if not.2. under the provisions of the Contract. 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. Obviously. . Sub-Clause 16. as he may consider proper.3. depending on the complexity of the project (for example.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause. the advance payment guarantee might be called in by the Employer). Sub-Clause 15.3 .” Sub-Clause 15.Payment on Termination After termination. Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix A1.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.16 Clause 16 .2.

Sub-Clause 17.Indemnities No need for particular conditions related to this sub-clause.Romania. an additional sub-clause may be added: “The Contractor shall take full responsibility for the care of the items detailed below. the Contractor shall. such as: add paragraph (i) as follows: (i) damage to components of the Employer’s property on the Site and damage done to the Works resulting from any accident involving road users while the public use of the Works is authorised by the Employer.6. up to the respective dates of hand-over or cessation of occupation (where hand-over or cessation of occupation may take place after the date stated in the TakingOver Certificate for the Works): [Insert details] If any loss or damage happens to any of the above items while the Contractor is responsible for their care. Sub-Clause 17.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project.1 . from the respective dates of use or occupation by the Contractor. rectify the Loss or damage to the satisfaction of the Engineer. arising from any cause whatsoever other than those for which the Employer is liable.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause. the sum referred to in the penultimate sentence shall be ……. New Sub-Clause 17.Risk and responsibility 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. For example. Sub-Clause 17. at his own cost. Sub-Clause 17.3.” bfc2-071_fidic user guide_250407_final. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 53 4.4 .5 .Contractor's Care of the Works No need for particular conditions related to this sub-clause.17 Clause 17 .DOC .Consequences of Employer's Risks No need for particular conditions related to this sub-clause. Sub-Clause 17.7 If the Contractor is to occupy the Employer's facilities temporarily.Limitation of Liability An additional paragraph may be added if the total liability of the Contractor is not to be limited to the Accepted Contract Amount: “In Sub-Clause 17. .6 . 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.3 .2 .". under road or rail rehabilitation projects.

1 .Insurance Sub-Clause 18. The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party".General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance. If the Employer is to arrange any of the insurances under this Clause.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. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 54 4.2 . Furthermore.Notice of Force Majeure It has to be noted that.2 (for Contractor's Equipment.2 .18 Clause 18 .DOC . because the Employer may not know the amount or value of these items of equipment. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. Force Majeure can be proven by other means. including the conditions. The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. limits.Romania. such certificate would be irrelevant for Force Majeure occurring in a foreign country.1 . which is replaced by the Contract Agreement.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. preferably in the form of a copy of each policy. exceptions and deductibles. . Sub-Clause 18. 4. The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18.19 Clause 19 . 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. the tender documents should include details as an annex to the Particular Conditions (so that tenderers can estimate what other insurances they wish to have for their own protection).Force Majeure Sub-Clause 19. Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer.” Sub-Clause 18.3 . despite a frequent opinion.3.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 19.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause. which includes Subcontractor's equipment).4 . who is to be the Contractor unless otherwise stated in the Particular Conditions. bfc2-071_fidic user guide_250407_final. Sub-Clause 18.

DOC . the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. Most DAB decisions have allowed a number of claims rejected for late notice to proceed.3 . is put on alert. acting in all good faith.3. within four weeks. have not ensured that the necessary records are kept. Payment and Release No need for particular conditions related to this sub-clause.1 is to prevent ambushes and minimise delays to projects.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. that something had recently occurred for which an entitlement for time and/or additional payment might be sought. Sub-Clause 19. The Engineer shall. Accordingly.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". Although Sub-Clause 20. 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. DABs have in mind that the object of Clause 20.20 Clause 20 .6 . Sub-Clause 19.1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration.4 . Guid- bfc2-071_fidic user guide_250407_final. Sub-Clause 19.7 .Duty to Minimise Delay No need for particular conditions related to this sub-clause. this is not the way that many DABs are interpreting the clause. not to bar meritorious claims. in turn. respond within 42 days after receiving a claim or further particulars. . 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. The important matter is that the Employer.1 . have not advised on the merits and have not prepared considered determinations. It is advisable to add at the end of first paragraph of Sub-Clause 19. The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers.Release from Performance under the Law No need for particular conditions related to this sub-clause. through the Engineer.5 .Consequences of Force Majeure No need for particular conditions related to this sub-clause. Sub-Clause 19.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause.Optional termination. 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.Romania.Claims. Disputes and Arbitration Sub-Clause 20.

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

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

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

especially if the members are not to be appointed at the commencement of the Contract.DOC .1(a).4 shall include detailed proposals for the appointment of a replacement DAB. This alternative. the use of regular courts. the Engineer will make these pre-arbitral decisions impartially and the Employer must not prejudice this impartiality. conciliation. impartially and at the cost of the Employer. or other forms of alternative dispute resolution. Sub-Clause 20.Amicable Settlement The provisions of this Sub-Clause are intended to encourage the parties to settle a dispute amicably. including without limitation any dispute regarding its breach.5 .4 .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. for their success. Alternatively. shall be finally settled by international arbitration. the location. without the need for arbitration: for example. It is recommended. acting fairly. Sub-Clause 20.4. the International Commercial Arbitral Court near the Romanian Chamber bfc2-071_fidic user guide_250407_final. Amicable settlement procedures often depend. termination or invalidity. neither Party should seek to impose the procedure on the other Party. In the event that the Employer intends to replace the Engineer.2 and 20. so as to clarify this aspect. Therefore. . the Engineer may make these pre-arbitral decisions. The Employer should recognise that. for the fields covered by arbitration. For example.3 . by including an agreed list of potential members in the Contract: in a Schedule.6 and replace by the following sentence: “Unless settled amicably or through a DAB decision. Employers should carefully check the coherence between the arbitral institution.4 should be modified accordingly by deleting the second paragraph of Sub-Clause 20. any dispute arising out of or in connection with the Contract. although the Engineer generally acts for the Employer as specified in Sub-Clause 3. by direct negotiation. it should be noted that timely treatment of dispute is of the essence. If this alternative is considered appropriate. Clause 20.4) is English. to delete the first sentence of the first paragraph of SubClause 20. mediation.6 . which has been the Engineer's traditional role in common law countries.” Sub-Clause 20.4 and substituting with: “The Engineer shall act as the DAB in accordance with this Sub-Clause 20. Sub-Clauses 20. the Employer's notice under SubClause 3.Arbitration It shall be emphasised that the presence of an arbitral clause excludes. 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. 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.Obtaining Dispute Adjudication Board's Decision Again. on confidentiality and on both Parties' acceptance of the procedure.” Furthermore.3 should be deleted and Sub-Clause 20. language and procedure of arbitration.Romania.

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

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

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

3.3 1.7 & 14.4 2.1.3 14.3 & 1.15 18.3.4 & 1.5(b) and (c) 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 63 4.2.3 1. .Romania.1.3 DAB 20.8 14.3 bfc2-071_fidic user guide_250407_final.3 1.2 & 1.1.2(a) and (b) 14.1.5 8.4 1.7 13.2.6 14.1 18.3 1.2 6.15(b) 8.2.3 1.1 4.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix D2.2 14.7 1.5(b) 13.DOC .1.2 & 20.4 1.2(d) 18. 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.

and was submitted to the MPF in December 2006. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. . The subclauses which were considered to be applicable to many (but not all) contracts have been included in the General Conditions. 5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 64 5 5. and to take account of those sub-clauses in the General Conditions which mention the Particular Conditions. in order to facilitate their incorporation into each contract. This Guide comprises guidance and proposals for the proposed mandatory and additional particular conditions of contract. The Romanian language version of the General Conditions of Contract and the proposed mandatory and additional particular conditions will.Romania. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006. Mandatory and additional particular conditions of contract for the FIDIC Yellow Book. 1st Edition 1999.2 FIDIC Guidance In the preparation of the General Conditions of Contract for Plant and DesignBuild. bfc2-071_fidic user guide_250407_final. it was recognized that. be published in the Official Gazette of Romania for use on infrastructure projects in Romania. there are some sub-clauses which must necessarily vary to take account of the circumstances relevant to the particular contract.DOC . after approval by the MPF. The General Conditions and the Particular Conditions will together comprise the Conditions of Contract governing the rights and obligations of the parties. while there are many sub-clauses which will be generally applicable. i.e. necessary so as to harmonise the contract provisions with the current Romanian legislation. the FIDIC Yellow Book.1 The FIDIC Yellow Book Introduction This chapter provides guidance for the preparation of the Particular Conditions of Contract and the Appendix to Tender for works contracts using the FIDIC Conditions of Contract for Plant and Design-Build. It will be necessary to prepare the Particular Conditions for each individual contract.

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

7 & 14.1.DOC .13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 66 In addition. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.1.1.3.8 & 11.1.2 & 8.3.3.1 1.3.3.Romania. and for EPC/Turnkey Projects.1 1.4 & 9. reference may be made to the charts on the next two pages and to the Sub-Clauses listed below (some SubClause numbers are also stated in the charts). 1.4 & 14.7 1. In order to clarify the sequence of Contract activities.4.3 1.1.1.1 1.4) Tests on Completion Taking-Over Certificate Tests after Completion (if any) Defects Notification Period (as extended under 11.6.1.1 & 13.1.6 & 12.3) Performance Certificate Final Payment Certificate Figure 5-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.5 & 10.3.2 1.6 & 4. for Plant and Design-Build.2 1.1.9 1.1.1 1.7 & 11.1.4.1 1.3.3 & 8. .3. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.

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

The Employer's Requirements The Employer's Requirements should specify the particular requirements for the completed Works. 5. the following text can be used: “The Conditions of Contract comprise the "General Conditions". In addition.” There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. Before incorporating any example wording. structures. the Employer's Requirements. it must be checked to ensure that it is wholly suitable for the particular circumstances.2 Preparation of Tender Documents The tender documents should be prepared by suitably-qualified engineers who are familiar with the technical aspects of the required works.8 1.10. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 68 The guidance hereafter is intended to assist writers of Particular Conditions by giving options for various sub-clauses where appropriate. and the following "Particular Conditions". care must be taken to ensure that no ambiguity is created. Where example wording is amended.1 Number of copies of Contractor's Documents Permissions being obtained by the Employer Phased possession of foundations. The General Conditions refer to any necessary data being contained in the Appendix to Tender or (for technical matters) in the Employer's Requirements. and the Letter of Tender and Schedules for completion by the Tenderer. including functional requirements. and may require the Contractor to supply certain items. quality and scope. either with the General Conditions or between the clauses in the Particular Conditions.DOC . which include amendments and additions to such General Conditions. and in all cases where other amendments or additions are made. and a review by suitably-qualified lawyers may be advisable.2. The Contract will then include the accepted Proposal and completed Schedules. The matters referred to in some or all of the following Sub-Clauses might be included: 1. In the preparation of the Conditions of Contract to be included in the tender documents for a contract. . each of the Tenderers should receive the data referred to in SubClause 4. 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. The tender documents issued to tenderers will consist of the Conditions of Contract.Romania. 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). such as consumables which could be listed in a Schedule. Unless it is considered suitable. plant or means of access Intended purposes for which the Works are required bfc2-071_fidic user guide_250407_final.13 2. example wording should be amended before use.1 4.

Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 69 4. gas and other services available on the Site Employer's Equipment and free-issue material Criteria for design personnel Contractor's Documents required. fixtures. based on this example form.DOC .Romania. The example form in Appendix F2 provides a checklist of the data required. .4 13. but there is no indication.5 Other contractors (and others) on the Site Setting-out points.5 5.20 5. providing a convenient location for the data which is usually required. The Employer may require other data from Tenderers.19 4. and whether for approval Technical standards and building regulations Operational training for the Employer's Personnel As-built drawings and other records of the Works Operation and maintenance manuals Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion Damages for failure to pass Tests on Completion Tests after Completion Damages for failure to pass Tests after Completion Provisional Sums.4 9. either in the General Conditions or in the example Appendix to Tender. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender.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.2 7.6 5.1 9. The Instructions may include matters referred to in some or all of the following Sub-Clauses: 4.1 12. the scope of which should be de- bfc2-071_fidic user guide_250407_final. 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. construction.4 12.1 5. water. 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 E1.6 7.3 4.6 4. that this data is either prescribed by the Employer or inserted by the Tenderer.7 4.4 5. and/or specify the extent of other information which each Tenderer is to include with his Tender. lines and levels of reference Third parties Environmental constraints Electricity.18 4.9 9. fittings and equipment.2 5. with the elements completed to the extent of his requirements. and include a questionnaire in the Schedules. The Employer should prepare the Appendix to Tender.1 12.7 6. If each Tenderer is to produce a parent company guarantee and/or a tender security.14 4.

1 the definition of the "Base Date" may be changed to reflect a particular calendar date. 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. 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. the tenderers are often reluctant. Understandably. in order to provide a responsive Tender. 5. in the face of intense competition. Note that there can be no description in the documents which will constitute the Contract. The following definitions should be modified: • In Sub-Clause 1. In Sub-Clause 1. typically by the Employer.1 the definition of Contract shall reflect the deletion of Letter of Acceptance.1. In Sub-Clause 1. or for some years' operation.3.10 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. Such definition is set out in the mandatory particular conditions in Appendix B1. Consideration may be given to offering some remuneration to tenderers if. with spare parts and consumables provided for operation (for a specified period).1. In new Sub-Clause 1. The amendment of such definition is set out in the mandatory particular conditions in Appendix B1. . the requirements of the Romanian procurement legislation and for clarification of the general conditions. due to Romanian legislation in force. Full consideration should be given to detailed requirements.Definitions It will be necessary to amend some of the definitions. to incur great expense in preparation of tender designs. Article 94 of GD No.1.General Provisions Sub-Clause 1. 273/1994). When preparing the Instructions to Tenderers.DOC .3 the definition of Letter of Acceptance shall be deleted.Romania. 925/2006). such as the extent to which the Works are to be fully equipped.1 Clause 1 .3. In addition.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. they have to undertake studies or carry out design work of a conceptual nature.1(c). 5. ready for operation.1. thought should be given as to the extent of detail which tenderers can realistically be expected to prepare and include in their tenders. Under Romanian public procurement regulations. • • • bfc2-071_fidic user guide_250407_final.3. either for a few months' trial operation under Sub-Clause 9. with a clause-by-clause review. The extent of detail required should be described in the Instructions to Tenderers.1. the Contractor may be required to operate the Works.1 .1. 34/2006.

1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.Interpretation If the references to "profit" are to be more precisely specified.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. significant components of the Con- bfc2-071_fidic user guide_250407_final.6.8 "Local Currency" should be defined as RON (Romanian Leu).1.4 . 925/2006).3. Sub-Clause 1. in case a conflict is subsequently found among the contract documents In Sub-Clause 1. although applicable in many sub-clauses.1. • • • • • • Sub-Clause 1. ordinances.5 “Applicable Laws” should be defined as all Romanian legislation.Romania.6.11 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.DOC .2 . Such definition is set out in the mandatory particular conditions in Appendix B1.4.1.1.Law and Language No need for particular conditions related to this sub-clause.” Sub-Clause 1. In Sub-Clause 1.6 the "Foreign Currency" should be indicated. 925/2006). the latter shall prevail. Such provision is recommended so as to provide a clear reference during implementation. (Article 95(2) of GD No.1.4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 71 • In new Sub-Clause 1.5. A proposed amendment is included in the mandatory particular conditions in Appendix B1. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present Sub-Clause. In Sub-Clause 1. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications.5 .6. Sub-Clause 1. It has to be mentioned that the Contractor’s site installation would in many cases not be part of the Site as defined under the Contract. in particular when evaluating claims. decisions.1.1. Non-compliance might have serious consequences.2 may be varied. In Sub-Clause 1. if during the performance of the Contract.4.Priority of Documents An order of precedence is usually necessary. are not repeated in the General Conditions. 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. 273/1994). laws. .3 . “In these Conditions.7 "Site". Sub-Clause 1. as well as the fact that. In Sub-Clause 1. the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No.2 "Country" should be defined as Romania. Sub-Clause 1.

The template for works contracts set out in Form 5 attached to the Procurement Guide allows the assignment of the works contract by the Contractor with the prior agreement of the Employer. bfc2-071_fidic user guide_250407_final. Sub-Clause 1.10 . 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.7 .9 .6 . in case a Contractor’s programme is included in the Contract documents. outline of quality assurance. it might be recommendable to state that any reference to calendar dates is indicative only. if needed. Even if the Contract clearly specifies the priority of documents. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract. especially if the Contract signature or the Commencement Date occur with delays against initial time schedules. Sub-Clause 1. should be introduced prior to the Contract signature. Sub-Clause 1. An example form is included at the contractual templates in Appendix E2.DOC . consistence of these with the tender documents should be checked and corrections. Sub-Clause 1. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions. method of works.8 . so as to ensure some enforceability to this proposal.Contract Agreement The first sentence of Sub-Clause 1. Sub-Clause 1.6 shall be deleted. Furthermore. The provisions should take account of the Applicable Laws. traffic management and/or environmental management plans). in order to reflect the deletion of Letter of Acceptance.Care and Supply of Documents No need for particular conditions related to this sub-clause. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue. 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. if all rights to particular items of computer software (for example) are to be assigned to the Employer.Assignment If the Contract is concluded pursuant to a public procurement procedure. or Operation of the Works is subject to a process license. - - Additional provisions may be required.Romania.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. .Delayed Drawings or Instructions No need for particular conditions related to this sub-clause. key equipment.

This should be done under the format: “Applicable Laws of particular relevance for the Contract include. the issuance of the building permit by the relevant authorities might require some time after submission and approval of the Contractor’s design. providing a single point of contact thereafter.Confidential Details No need for particular conditions related to this sub-clause. Under design-build arrangements.13 . permits to relocate public utilities. These requirements. The Employer should scrutinise the joint venture agreement carefully. It is also recommended to precise the scope of paragraph (b). etc. Employers should make reference to such time period so as to avoid claims from the Contractor. Sub-Clause 1. for example with: “Except for the building permit to be provided by the Employer. . route permits. which apply prior to the Contract becoming effective. The Employer will wish the leader of the joint venture to be appointed at an early stage. should be included in the Instructions to Tenderers.Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause. For example. Such permits include inter alia permits for site erection. permits for radio communication. and will not wish to be involved in a dispute between the members of a joint venture. together with a list of all necessary permits with the time needed for obtaining those permits in order to properly carry-out the Works in compliance with the programme prepared and updated under Sub-Clause 8.” Sub-Clause 1.Romania.Joint and Several Liability For a major contract. traffic diversions.11 . when relevant.DOC . at his own expenses. and it may have to be approved by the project's financing institutions.Details to be Confidential If confidentiality is required. detailed requirements for the joint venture may need to be specified. xxx”.14 . an additional sub-clause may be added. 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.Compliance with Laws Employers should specify. Sub-Clause 1. The wording of such Sub-clause could be as follows: bfc2-071_fidic user guide_250407_final. but are not limited to: Law No. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor. the Contractor shall submit to the Engineer the detailed planning of the Works.3 [Programme]. New Sub-Clause 1.12 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 73 Sub-Clause 1. residence and work permits.15 . particular regulations to be complied with by the Contractor. Within 21 days of the signature of the Contract Agreement.

the Employer should state this and define the procedure that will be applied as well as the main constraints / parameters.2 . both early and thereafter exclusively. References to laws and standards should be included for formal reasons. details should be given. 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. The Site does not include additional working areas that the Contractor might require.The Employer Sub-Clause 2. The work to be carried out by these other contractors should be described in the tender documents.Right of Access to the Site If right of access cannot be granted. and aspects such as co-ordination and safety may need to be specified.3. with all particulars. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic.1 . in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 74 “The Contractor shall treat the details of the Contract Agreement as private and confidential. selfsufficient. 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. . except to the extent necessary to carry out his obligations there under or to comply with applicable Laws. the required land should be made available by the same Employer.2.” 5. but the contract documents should be. Sub-Clause 2.23. Sub-Clause 2. In case right of access and possession is not to be granted exclusively. and particularly in the Employer’s Requirements. 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. In case right of access is to be granted by stages. bfc2-071_fidic user guide_250407_final. The Contractor shall not publish. all relevant information. it is good practice to include in tender and then contract documents.DOC . permit to be published. so as to avoid facilitate access to the market.Romania. Employers shall be particularly careful in relation with this sub-clause. 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). this should be clearly stated. However.2 Clause 2 . as defined under sub-clause 4. Licences or Approvals With reference to paragraph (a).Permits.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site.3 .

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

75

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

bfc2-071_fidic user guide_250407_final.DOC

.

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

76

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.

-

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:

bfc2-071_fidic user guide_250407_final.DOC

.

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

77

“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.”

bfc2-071_fidic user guide_250407_final.DOC

.

Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable.Contractor's Representative If the Representative is known at the time of submission of the Tender. Moreover. it is possible to specify (under Sub-Clause 14. In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions. . at the signature of the Contract Agreement. In order to ensure that a properly nominated Contractor’s Representative is available at all times. However.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. which is based at 38 Cours Albert 1er. especially if the contract award seems likely to be delayed. under Romanian public procurement regulations. 925/2006). France). Example forms are annexed to this document in the templates of guarantees in Appendix E1. but also his revocation has to receive the prior consent of the Engineer.2 as follows: “The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer. or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language.Romania.3 . if parts of the Works are to be performed by Subcontractors. annexed to the Particular Conditions.4 . The role of the Contractor’s Representative should be highlighted. 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 78 The acceptable form(s) of Performance Security should be included in the tender documents. 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.4). which also publishes guides to these Uniform Rules. and shall be in the form annexed to the Particular Conditions. the Tenderer may propose the Representative. Not only his nomination. It is also recommendable to make reference to the key qualifications required at the time of tender. which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96 (1) of GD No. it should amend the second sentence of the second paragraph of Sub-Clause 4. The Tenderer may wish to propose alternatives. the Contractor must provide the Employer with the relevant subcontracts. 75008 Paris. 925/2006). Sub-Clause 4. one of the following sentences may be added. If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1. They incorporate the Uniform Rules published by the International Chamber of Commerce (the "ICC".DOC .” Sub-Clause 4.

Experience in similar projects (for the type of works intended to be performed by the proposed Subcontractor). details may be given as to what would be considered as a reasonable objection. . It is therefore possible to limit such requirement.5 .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.” Furthermore. Such criteria might include: Personal situation (no bankruptcy or similar proceedings. Sound financial position.Romania. it is recommendable. In such case. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 79 Please also note that. bfc2-071_fidic user guide_250407_final.DOC .Nominated Sub-Contractors In most cases under Sub-Clause 4. to detail on which criteria consent will be given. no final sentence for professional misconduct. typically in the Appendix to Tender. fulfilled obligations as per payment of taxes and social contributions). Before using this Sub-Clause. 925/2006. As regards the second sentence of this Sub-Clause 4. add the following: “Such prior consent shall not be required if the value of the subcontract is less than one percent (1%) of the Contract Price. for transparency reasons. although the Contractor remains responsible for any act or default of Subcontractors. subject to any constraints specified in the Contract.5 provides for the particular situation whereby the Employer may select a Subcontractor. according to the same Article 96 (2) of GD No.” Subject to the mandatory provisions of the Romanian public procurement regulations. the Contractor selects Subcontractors. etc. as follows: At the end of point (b). replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor. Employers might also consider the conclusion of a separate contract. 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. according to Sub-Clause 4. The proposed modification is included in the mandatory particular conditions in Appendix B1. Replace the first sentence of Sub-Clause 4.4. Sub-Clause 4. - Sub-Clause 4. the Engineer’s prior consent for subcontractors might lead to excessive administration.4. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). On a case-by-case basis.5.

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

Romania. the Sub-Clause may be amended by deleting sub-paragraph (b) of Sub-Clause 4. It might be advisable to extend it to Equipment brought to the Contractor’s site installation.1 and Sub-Clause 4. subject to their being consistent with applicable laws.Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause.Transport of Goods For a plant contract. Sub-Clause 4. . further paragraphs may be added. if this is not located on the Site. usually as part of the tender documents. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 81 Sub-Clause 4.” Sub-Clause 4.11 .Site Data Under this Sub-Clause.16 . If this risk is to be shared between the parties.13.15 .10 . It is therefore assumed that an access route exists (but its suitability for transport is not guaranteed by the Employer) and that the Contractor is entitled to use it (even if this might imply some costs).%) of which shall be included in the Contract Price (the balance percent of the Cost shall be borne by the Contractor). alternative arrangements may be appropriate.Right of Way and Facilities No need for particular conditions related to this sub-clause. the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared.” bfc2-071_fidic user guide_250407_final.20. 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.12 .Unforeseeable Physical Conditions In the case of major sub-surface works.13 .14 .DOC . Furthermore.17 . the Employer's obligations should be specified: see SubClause 4. Sub-Clause 4. If vesting of Contractor's Equipment is required. Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works. Sub-Clause 4. This Sub-Clause refers only to Equipment brought on Site. Sub-Clause 4.12 and substituting by: “(b) Payment for any such Cost. Sub-Clause 4.Avoidance of Interference No need for particular conditions related to this sub-clause. per cent (…. Sub-Clause 4.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2.

Electricity. subject to Sub-Clause 2.22 . In case Employers intend to use this Sub-Clause. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements.18 . In these circumstances. Employers might want to include in this Sub-Clause a provision for indemnification in case of default. Sub-Clause 4. for use of Employer’s Equipment or of free issue materials. including locations and prices. .” Sub-Clause 4. the Employer shall be entitled. Sub-Clause 4. the Employer’s Requirements should describe each item which the Employer will provide and/or operate and should specify all necessary details. the Employer’s Requirements should give details. further provisions may be necessary.DOC .20 . With some types of facilities. so as to define their condition and suitability for use.Protection of the Environment For Works to be executed in particularly environmentally sensible areas. For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause. bfc2-071_fidic user guide_250407_final.Security of the Site If the Contractor is sharing occupation of the Site with others. in order to clarify aspects such as liability and insurance. as well as the time and place where they will be made available should be defined. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. Water and Gas If services are to be available for the Contractor to use.Employer's equipment and Free-Issue Material For this Sub-Clause to apply.5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 82 Sub-Clause 4.19 . to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. it may not be appropriate for him to be responsible for its security.21 . while detailed information regarding the quality and quantity of free issue materials. 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 case the condition of free issue materials is not known before the execution of the Works (for example when some materials are to be re-used).Romania.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers. It is advisable to have those materials surveyed as part of the tender. Sub-Clause 4. the Employer's obligations should be specified. they should be very careful so as to ensure fair and transparent conditions of competition. The requirement to provide 6 copies might also be adapted.

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

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

As-Built Drawings No need for particular conditions related to this sub-clause.Romania. Sub-Clause 6.6 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 85 Sub-Clause 5.4 .4 . Sub-Clause 5.Technical Standards and Regulations No need for particular conditions related to this sub-clause.5 .Persons in the Service of Employer No need for particular conditions related to this sub-clause.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.DOC . bfc2-071_fidic user guide_250407_final.Operation and Maintenance Manuals No need for particular conditions related to this sub-clause.6 Clause 6 . 5.3 . Sub-Clause 5. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract.1 .3 .Staff and Labour Sub-Clause 6.7 .5 . this Sub-Clause may be deleted. Sub-Clause 5.Design Error No need for particular conditions related to this sub-clause. Such obligation is deemed to be complied with if the tender documents indicate the relevant institutions wherefrom detailed information as regards the above mentioned regulations can be obtained.8 .Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause. Sub-Clause 6.Training No need for particular conditions related to this sub-clause. .2 . Sub-Clause 5. for example). Sub-Clause 5.3.Labour Laws According to the Guide.” Sub-Clause 6. the Employer must clearly indicate in the tender documents the mandatory rules regarding labour conditions and labour safety which must be complied with throughout the performance of the Contract.Contractor's Undertaking No need for particular conditions related to this sub-clause. Sub-Clause 6.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender. or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision. 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.

import. in addition to any criminal liability which may be thereby incurred.” Add the following paragraphs at the end of Sub-Clause 6. chemicals. sell. Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. gift. or allow Contractor’s Personnel to do so. 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.Facilities for Staff and Labour If the Employer will make some accommodation available. Sub-Clause 6. etc.6 . The Contractor must ensure that these personnel are provided with the required residence visas and work permits. barter or otherwise dispose of any alcoholic liquor or drugs. sale. . (c) Arms and Ammunition The Contractor shall not give. reward or bribe given. 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.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works. such as traffic management. advantage. barter or disposal by Contractor’s Personnel.8: “A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of Romanian language. his obligations to do so should be specified. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift. (d) Illegal Payments Any commission. In the event of the death in the Country of any of these personnel or members of their families. any arms or ammunition of any kind. gratuity. 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.Romania.Contractor's Superintendence Add the following text at the end of Sub-Clause 6.7 . give.” Sub-Clause 6. or permit or allow importation.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 86 In some cases. barter or otherwise dispose to any person. gift.DOC . Sub-Clause 6. except for those activities requiring continuous presence on Site. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. subject the Contractor at the Employer's option to the cancellation bfc2-071_fidic user guide_250407_final.8 .

.7 .Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.6 . Sub-Clause 7. Sub-Clause 7. Any amount paid shall be deducted from the Contractor's payment due.Disorderly Conduct No need for particular conditions related to this sub-clause 5.Rejection No need for particular conditions related to this sub-clause.5 .Contractor's Personnel No need for particular conditions related to this sub-clause Sub-Clause 6.10 .11 . waste piles.Plant Materials and Workmanship Sub-Clause 7. Sub-Clause 7. Sub-Clause 7. Sub-Clause 7.DOC .9 .3 . etc). debris and hazardous waste.1 . 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. 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.Remedial Work No need for particular conditions related to this sub-clause.3.” bfc2-071_fidic user guide_250407_final.8).Romania.8 .Samples No need for particular conditions related to this sub-clause.Ownership of Plant and Materials No need for particular conditions related to this sub-clause.Testing No need for particular conditions related to this sub-clause.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause Sub-Clause 6. levied in relation to the dumping of part or all of such materials. if any. Sub-Clause 7.7 Clause 7 . Sub-Clause 7.4 .” Sub-Clause 6.2 . this should be made clear in the Employer’s Requirements.

Delays Caused by Authorities No need for particular conditions related to this sub-clause. as the Contract clearly describes how to handle this situation. to payment of damages by the Contractor. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 88 5.Time for Completion It has to be highlighted that the expiry of the Time for Completion does not relieve the Contractor from its obligation to perform the Works.” Sub-Clause 8. In case Employers know that the Commencement Date for a part of the Works will be delayed.Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8. the last sentence defines strong obligations for the Contractor. On the other hand. the Contractor should not stop the Works if it is able to work on part of the Works. Failure to comply with this provision shall entitle the Employer.1 .5 . Sub-Clause 8. It is advisable to provide a time-limit for the submission of a revised programme.1 and Sub-Clause 8.Commencement. 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.Romania. The programme is primarily a document prepared by the Contractor. Sub-Clause 8.5. under its full responsibility. delays and Suspension Sub-Clause 8. In case the Works are not completed during the Time for Completion.Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer. bfc2-071_fidic user guide_250407_final. .8 Clause 8 .1 is ensured.2 . For example. 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. It is highly recommended not to sign any contract before compliance with SubClause 2.Extension of Time for Completion No need for particular conditions related to this sub-clause.7). in the Appendix to Tender. If the Works are to be taken-over in stages.DOC .1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. Sub-Clause 8.3. these stages should be defined as Sections. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8.4 . there is no need to amend the Contract in any way.3 . Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice. subject to Sub-Clause 2.

if and when the milestone is reached. Sub-Clause 8. (Other items). bfc2-071_fidic user guide_250407_final. . Compliance of the progress of the Works with the Contractor’s programme. Milestone 1 is defined as the achievement of the following indicators.15(b). as submitted under the first paragraph of Sub-Clause 8. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. to withhold from the Interim Payment Certificates an amount equal to 0. Whenever a revised programme is being submitted. is controlled through a milestones system. Milestone 1 is defined hereafter.6 . the Employer will be entitled. 28 days after the Commencement Date: All Contractor key personnel are on Site. The Contractor work programme under the present Sub-Clause is submitted. In case the Contractor incurs delays in the achievement of a milestone. This system includes five milestones for monitoring and evaluation of the progress of the Works. If the Accepted Contract Amount is expressed in the Local Currency.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.DOC .5 has to be followed.Delay Damages Under many legal systems. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 89 Sub-Clause 8. up to a maximum of 10% of the Accepted Contract Amount. It is therefore possible to include a “milestones system” along the example provided below. Such indicators however shall be defined based on the Contractor’s work programme. The amount so withheld shall be paid to the Contractor. the Engineer will define those four indicators. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay. The four other indicators shall be agreed by the Contractor and the Engineer within 28 days from the submission of the Contractor’s work programme.05% of the Accepted Contract Amount per day of delay.3. the milestones have to be updated in accordance with the provisions above. In case no agreement is reached during such period.5. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works. Before using such system. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. subject to Sub-Clause 2. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. 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 2.7 . the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14.3 or revised under the third paragraph of Sub-Clause 8.Romania.

For example. the tests requirements may have to take account of the effect of some parts of the Works being incomplete. instrumentation. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time.Prolonged Suspension No need for particular conditions related to this sub-clause.Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause. .12 . Sub-Clause 8. for example in case payment of such damages would create strong pressures on the Contractor’s cash flow and would jeopardize the actual completion of the Works. If the Works are to be tested and taken-over in stages. In par- bfc2-071_fidic user guide_250407_final. It may also be appropriate for the Contractor's Proposal to include detailed arrangements. The wording in the sub-paragraphs includes the conditions which are typically applicable for a plant contract.2 refers to accelerated completion). but otherwise may require amendment.Romania.11 . New Sub-Clause Incentives for early completion may be included in the tender documents (although Sub-Clause 13.3. This tends to restrict the constitution of “black lists” or other similar instruments. etc.DOC .9 Clause 9 . or suspend the actual payment of such damages by the Contractor until the completion of the Works.9 .1 . The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price.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.Resumption of Work No need for particular conditions related to this sub-clause. Sub-Clause 8. Sub-Clause 8.10 . Sub-Clause 8. For contracts where completion of the Works by a certain date is of paramount importance. 5. except in the event of termination by the Employer. but also (ii) introduce a bonus for acceleration.Consequences of Suspension No need for particular conditions related to this sub-clause Sub-Clause 8. in duly justified cases.Tests on Completion Sub-Clause 9.8 .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. etc). waive their rights to delay damages. it might be envisaged to (i) introduce a higher amount of delay damages. It should also be noted that Employers might.

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

Removal of Defective Work No need for particular conditions related to this sub-clause.5 to an extension of the Defects Notification Period for the Works.8 .DOC . Sub-Clause 11. Sub-Clause 11. .11 Clause 11 . Sub-Clause 11.Right of Access No need for particular conditions related to this sub-clause.10 . Sub-Clause 11.6 .Costs of Remedying Defects No need for particular conditions related to this sub-clause.Romania. a Section or a significant part of the Works. The issue of the Performance Certificate represents the acceptance of the Works. Such regulations are reflected in the mandatory particular conditions in Appendix B1. a Defects Notification Period shall not be extended by more than two years. the Contractor is liable for the latent defects of the Works during a 10 year period.5 .7 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 92 Sub-Clause 10. 273/1994.Contractor to Search No need for particular conditions related to this sub-clause. Sub-Clause 11. Sub-Clause 11. whilst his liability for defects affecting the bfc2-071_fidic user guide_250407_final.3.4 . However.Defects Liability Sub-Clause 11. Sub-Clause 11.3 .4 .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.Extension of defects Liability Period It is recommended to add: “The Employer shall be entitled subject to Sub-Clause 2.Failure to Remedy Defects No need for particular conditions related to this sub-clause.1 .Unfulfilled Obligations Under Romanian law. and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage.9 . if and to the extent that the Works. a Section.Surfaces Requiring Reinstatement No need for particular conditions related to this sub-clause. Sub-Clause 11.2 .Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause.Further Tests No need for particular conditions related to this sub-clause. 5.” Sub-Clause 11. a major item of Plant or significant part of the Works (as the case may be. It is therefore normal that the final payment and final evaluation of the Contract Price) comes after such acceptance.

to verify that the Works fulfil his performance requirements. and the minimum acceptable performance criteria should also be specified. these Tests may be the most difficult to specify well.Delayed Tests No need for particular conditions related to this sub-clause. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix B1.13 Clause 13 . 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.DOC . after taking-over. probably) the performance criteria which their Plant will achieve. For some types of Works. Sub-Clause 12. 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.4 . The provisions in the General Conditions are based upon the Tests after Completion being carried out by the Employer and his operating personnel. 5. and the Sub-Clause should be amended accordingly.11 .1 . the provisions in FIDIC's Conditions of Contract for EPC/Turnkey Projects are based upon these Tests being carried out by the Contractor.Procedure for Tests after Completion The Employer's Requirements should describe the tests he requires. in addition to that included in the Plant.12 Clause 12 . Sub-Clause 12. 5. with guidance from the Contractor's staff.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). and/or for tenderers to prescribe (in a Schedule of Guarantees.2 . If other arrangements are envisaged. Sub-Clause 11.3.1.2. which are intended to benefit both Parties. or bfc2-071_fidic user guide_250407_final.3 . It may be appropriate for the Contractor's Proposal to include detailed arrangements. Sub-Clause 12.Retesting No need for particular conditions related to this sub-clause.Romania. they should be specified in the Employer's Requirements. although they are critical to a successful outcome. personnel and power.Clearance of Site No need for particular conditions related to this sub-clause. With many types of Works.Failure to Pass Tests after Completion If the first part of this Sub-Clause is to apply. without prior agreement as to feasibility or price b) The Contractor may initiate his own proposals under Sub-Clause 13.3. and/or to define any instrumentation required. with the Employer providing consumables. it may be essential to define the physical inputs.Tests after Completion Sub-Clause 12. . For example.

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

Daywork No need for particular conditions related to this sub-clause. this type of contract is based on a lump sum price. with little or no remeasurement. it might be preferable to clearly state that: “The Tender and subsequently the Contract Amount shall have been based on the Contractor’s projections for inflation over the implementation period. 925/2006. Such formula should be based on relevant indices published by authorised bodies. in order to remove any ambiguity.Contract price and Payment Sub-Clause 14. consideration should be given to the amount and timing of payment(s) to the Contractor. The Contractor thus takes the risk of changes in cost arising from his design. rise or fall in the cost of labour. For any contract of duration of more than 12 months. and tenderers will take account of the interim payment procedures when preparing their tenders.6 . 5. A positive cash flow is clearly of benefit to the Contractor. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 95 nominated Subcontractor. Sub-Clause 13.14 Clause 14 . Sub-Clause 13. .1 .Romania.7 . Cases provided by clause 13. The lump sum price may consist of two or more amounts. The possibility and principles of such adjustments are foreseen in Article 97 of GD No. Actually the multiplier is calculated for the works performed during month n. 925/2006). The relevant wording is included in the mandatory particular conditions in Appendix B1.8 . quoted in the currencies of payment (which may.3. it is strongly recommended to include a price adjustment formula.Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No. typically by the National Institute of Statistics.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. Thus the Contract Price shall not be subject to any adjustment due to inflation. 925/2006. bfc2-071_fidic user guide_250407_final. but need not.7 are not subject to this restriction. include the Local Currency). If the contract is intended to be at fixed rates. Sub-Clause 13.The Contract Price When writing the Particular Conditions. it is sufficient not to fill in any “table of adjustment data”.DOC . Normally.” 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. materials or any other matters affecting the execution of the Contract. However.

Sub-Clause 14. Unless this Sub-Clause is not to apply. This information can also be useful for the assessment of interim payments. consideration should be given to the benefits of advance payment(s). When the tender documents are being prepared. the information may not have been priced competitively.1.1. or c) Detailed amendments to Sub-Clause 14. unit rates and other pricing information. annexed to the Particular Conditions: an example form is annexed to this document. as envisaged in the last sentence of Sub-Clause 14. since these payments would not relate to anything in his possession. 500/2002 and GD No. and the following wording might be appropriate for one of the additional Sub-Clauses.Application for Interim Payment Certificate It might be useful to better define which supporting documents would be required. This Sub-Clause needs be amended in order to reflect mandatory Romanian regulations in respect of advance payments from the public funds (Law No. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 96 In order to value Variations. the Employer must therefore decide whether he will accept being bound by the tenderer's breakdowns. including quantities. If not. 264/2003).5. If the Contractor is to be entitled to stage payments prior to shipment. he should have ensured that the Engineer has the necessary expertise to value any Variations which may be required. the tender documents may include: a) Provisions in the Appendix to Tender linking the timing of advance payment (under this Sub-Clause) to the stages of manufacture b) In the Schedule of Payments or other document to be used to determine the contract value under Sub-Clause 14. If payment for any part of the Works is to be made on the basis of measurement. bfc2-071_fidic user guide_250407_final. and any other matters relating to payment. consideration should be given to the benefits of stage payments during manufacture.3 . The Employer may consider it advisable to have some form of security.1(a) is not to apply. the part must be defined in the Contract. Sub-Clause 14. . If Sub-Clause 14. Tenders may be required to be accompanied by detailed price break-downs.Advance Payment When writing the Particular Conditions.Romania. attached in Appendix E1. the total advance payment (and the number of instalments if more than one) must be specified in the Appendix to Tender.2 .DOC . However. Such amendments are included in the mandatory particular conditions in Appendix B1. a price for each of these stages (this would require the addition of provisions for securities). If the Contractor is to provide major items of Plant. The acceptable form(s) of guarantee should be included in the tender documents. Additional Sub-Clauses may be required to cover any exceptions to the options set out in Sub-Clause 14.3(a). in addition to the documents and information contained in the Contractor’s progress report. the method of determining the Contract Price should be defined in additional Sub-Clauses.

tenderers would have to price each object. In some cases. 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. such Statement shall be void and ineffective. Disagreements may arise when the work required for a payment milestone is nearly achieved but the balance cannot b completed until some months later. If another basis is to be used for determining interim valuations. in order to assess whether they are reasonably consistent with each other. which necessitates careful definition of the payment milestones.” Sub-Clause 14. It is important to define such progress by reference to nonambiguous milestones. Some objects might also be divided into sub-phases. If payments are to be specified in a Schedule of Payments. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. Alternatively. and the Schedule would actually make reference to actual progress. Sub-Clause 14.DOC . Plant and Materials delivered to the Site become the property of the Employer. bfc2-071_fidic user guide_250407_final. and the Schedule of Payments could be in one of the following forms: a) An amount (or percentage of the estimated final Contract Price) could be entered for each month (or other period) during the Time for Completion. In case a Statement is not signed by the duly appointed Contractor’s Representative. Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. if the Works consist of only a few different types of operations.7.Schedule of Payments The General Conditions contain provisions for interim payments to the Contractor. a simple measurement approach for interim valuations may be appropriate. the "minimum amount of interim certificates" could be omitted from the Appendix to Tender. or b) The Schedule could be based on actual progress achieved in executing the Works. which may be based on a Schedule of Payments. details should be added in the Particular Conditions.5 . The figures inserted by the Tenderer in the Schedule of Payments may be compared with his tender programme (if any). .4 . 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. It is however preferable that the “weight” of each sub-phase be defined in the tender documents. this Sub-Clause would apply only for the conditions of contract for plant and design-build.Romania.3. which can prove unreasonable if the Contractor's progress differs significantly from the expectation on which the Schedule was based. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 97 In order to ensure that a duly appointed Contractor’s Representative will be present at all time. In most cases.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7.

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

Cessation of Employer's Liability No need for particular conditions related to this sub-clause. Sub-Clause 14. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money. while the Contractor shall be entitled. in accordance with the estimates submitted under SubClause 14.10 . in amounts and currencies equal to the payments to be made.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee.13 . Sub-Clause 14. Sub-Clause 14. annexed to the Particular Conditions: an example form is annexed in Appendix F1. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money.11 . Sub-Clause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 99 Sub-Clause 14.Issue of Final Payment Certificate The legal constraints deriving from the use of public funds for the financing of the Contract (Law No.Statement of Completion No need for particular conditions related to this sub-clause. The Contractor may gradually increase the amount of the bank guarantee.2.9. In such case.” The acceptable form(s) of guarantee should be included in the tender documents.9 . in a form and provided by an entity approved by the Employer. 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 14.4 [Schedule of Payments]. .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. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects. when the Taking-Over Certificate has been issued for the Works.12 . add the following paragraphs at the end of Sub-clause 14.Romania.Discharge No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final. after he obtains such guarantee.9. Sub-Clause 14. as specified for the Performance Security in Sub-Clause 4.Application for Final Payment Certificate No need for particular conditions related to this sub-clause.DOC . 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.

and/or the institution may decline to provide finance for part or all of the Contract. If the financing institution's requirements are not met. 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. 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. Any partial payments shall first cover the interest thus established. and to seek approval of the draft tender documents. plus three and a half percentage points. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 100 Sub-Clause 14. so reference will need to be made to them to ascertain their requirements. especially if funding from more than one source is to be arranged to finance different elements of supply. it may be difficult (or even impossible) to secure suitable financing for the project. However. on the first day of the month in which the time-limit expired.” Financing Arrangements For major contracts in some markets. The default interest shall be incurred over the time which elapses between that date of the payment deadline set by the Employer (exclusive).16 may be added: “The Contractor undertakes to repay to the Employer any amounts paid in excess of the final amount due within 45 days of receiving a request to do so.DOC . Bank charges incurred by the repayment of amounts due to the Employer shall be borne entirely by the Contractor. development banks. 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 Particular Conditions may need to incorporate its special requirements. . there may be a need to secure finance from entities such as aid agencies. and only the first sentence of this Sub-Clause will apply. This shall not affect the Parties’ right to agree on payment in instalments.Currencies of Payment If all payments are to be made in Local Currency. the Sub-Clause may then be replaced: New Sub-Clause 14.15 . The exact wording will depend on the relevant institution.16 Repayment A new Sub-Clause 14. export credit agencies. If financing is to be procured from any of these sources. those banks may be concerned to ensure that the Contrac- bfc2-071_fidic user guide_250407_final. At the rate applied by the European Central Bank to its main refinancing transactions in euro where payments are in euro. and the date on which payment is actually made (inclusive). The financing institution or bank may wish the Contract to include references to the financing arrangements. Amounts to be repaid to the Employer may be offset against amounts of any kind due to the Contractor. Should the Contractor fail to make repayment within the deadline set by the Employer. it must be named in the Letter of Tender. Alternatively.Romania. or other international financing institutions.

Romania. annexed to the Particular Conditions: an example form is annexed to this document. 5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 101 tor's rights are very restricted. the Employer may postpone the termination notice. etc. 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. It should be noted.7). so as to allow such negotiations to develop. the Contractor may be prepared to initiate financing arrangements and retain responsibility for them. Since the Contractor would then have to arrange his own financing to cover the shortfall between the payments and his outgoings.) and might support significant additional costs in order to complete the Works. They might well require the Employer to make interim payments. unless the later has an enforceable title allowing him to do so. 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.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. .DOC . In real terms. in the first place. In such cases.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. both for the Contractor and for the Employer. the fact that the Contractor is in bfc2-071_fidic user guide_250407_final. Moreover. Such amendments are included in the mandatory particular conditions in Appendix B1. Moreover. 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. that termination of the Contract is a failure.2 . as Annex G. In particular. “Rushing into termination” would in any case be a mistake. organisation of a new tender. His financing bank's requirement would then affect his attitude in contract negotiations.1 . In case this period goes beyond the Time for Completion. These banks may prefer the Contract to be based upon FIDIC's Conditions of Contract for EPC/Turnkey Projects.15 Clause 15 . guaranteeing payment when due. Sub-Clause 15.Termination by Employer Sub-Clause 15. The acceptable form(s) of guarantee should be included in the tender documents.3. Therefore. Alternatively. although a large proportion of the Contract Price might be withheld until the Works are complete. 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). it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8. when preparing the tender documents. termination under this Sub-Clause should be used as a last resort. Employers would often lose considerable time (including valuation. The following Sub-Clause may be added. the notice period should be used to initiate negotiations and remedy measures.

Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.3 . 3 months).A Contractor should be aware before giving a notice of termination that once the Contract is terminated.Termination by Contractor See our comments under Sub-Clause 15.4 . as he may consider proper. depending on the complexity of the project (for example.2.Payment on Termination After termination.Romania.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. . by defining that a minimum (very low) rate of progress.2 Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix B1.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause.5 .3 . under the provisions of the Contract. 5.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.3.2 . 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. Employers should obviously avoid putting themselves in one of the situations described. such as. up to the completion of the respective Works.1 . say. bfc2-071_fidic user guide_250407_final.DOC . it cannot be resumed and in most cases a new tender procedure would be necessary. Sub-Clause 15. 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. Sub-Clause 16. less than 1% over the last 6 months will be considered as “abandoning” of the works. the advance payment guarantee might be called in by the Employer).” Sub-Clause 15. for example. in accordance with the provisions of Sub-Clause 14. Employers might want to bring a clearer definition of the provisions of letter (b). Sub-Clause 16. It is possible to insert the following text within the last paragraph after the second sentence: “If the Contractor fails to remove his Equipment and Temporary Works within 21 days after receiving the notice. Sub-Clause 16.16 Suspension and Termination by Contractor Sub-Clause 16. the advance payment shall be repaid immediately by the Contractor (if not.4 . Sub-Clause 15.Payment after Termination No need for particular conditions related to this sub-clause.

. “The Contractor shall take full responsibility for the care of the items detailed below.2 . payments on termination will usually occur in a difficult situation of conflict.5 .3 . from the respective dates of use or occupation by the Contractor. Sub-Clause 17. Sub-Clause 17.3.1 .Indemnities No need for particular conditions related to this sub-clause. under road or rail rehabilitation projects.Contractor's Care of the Works No need for particular conditions related to this sub-clause.4 .Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. It might be appropriate to define a time limit for the Contractor to submit its request. an additional sub-clause may be added. 5. Sub-Clause 17.DOC . Sub-Clause 17.Consequences of Employer's Risks No need for particular conditions related to this sub-clause.6 .17 Risk and responsibility Sub-Clause 17.6. For example.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause. the sum referred to in the penultimate sentence shall be ……". Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 103 Obviously. New Sub-Clause 17. 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.7 If the Contractor is to occupy the Employer's facilities temporarily. such as: add paragraph (i) as follows: (i) damage to components of the Employer’s property on the Site and damage done to the Works resulting from any accident involving road users while the public use of the Works is authorised by the Employer.Romania. 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. 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. 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 18. the Contractor shall. at his own cost. New Sub-Clause If the Employer requires the additional protection of design insurance. The following sentence may be included in the Particular Conditions.DOC .” Sub-Clause 18. extent or programme for the execution of the Works and to ensure adequacy of the insurance coverage at all times during the period of the Contract.Insurance The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party". which includes Subcontractor's equipment). which is replaced by the Contract Agreement.Insurance for Works and Contractor's Equipment It is advisable to specify that: “It shall be the responsibility of the insuring Party to notify the insurance company of any change in the nature. exceptions and deductibles. including the conditions. because the Employer may not know the amount or value of these items of equipment.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause.3.3 . Sub-Clause 18.1 . who is to be the Contractor unless otherwise stated in the Particular Conditions. 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).2 . rectify the Loss or damage to the satisfaction of the Engineer. limits. If the Employer is to arrange any of the insurances under this Clause.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. arising from any cause whatsoever other than those for which the Employer is liable. 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. preferably in the form of a copy of each policy.Romania.4 . Sub-Clause 18. The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance. an additional sub-clause may be added.” 5.18 Clause 18 . The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. bfc2-071_fidic user guide_250407_final.2 (for Contractor's Equipment. Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer. .

Sub-Clause 19. The important matter is that the Employer. Force Majeure can be proven by other means. 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. Sub-Clause 19.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. It is advisable to add at the end of first paragraph of Sub-Clause 19.3. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 105 5. Disputes and Arbitration Sub-Clause 20.4 .19 Clause 19 . Furthermore. .5 .DOC . Sub-Clause 19.Notice of Force Majeure It has to be noted that.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". Sub-Clause 19. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure. 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.7 .3 . Payment and Release No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. The notice of occurrence of Force Majeure should be accompanied by appropriate supporting documentation.Consequences of Force Majeure No need for particular conditions related to this sub-clause.2 . that something had recently occurred for which an entitlement for time and/or additional payment might be sought.Romania. is put on alert.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). Accordingly.Release from Performance under the Law No need for particular conditions related to this sub-clause. Sub-Clause 19.20 Clause 20 -Claims. Sub-Clause 19. within four weeks. 5.1 .6 .Force Majeure Sub-Clause 19.Optional termination.3.Duty to Minimise Delay No need for particular conditions related to this sub-clause. through the Engineer. despite a frequent opinion. such certificate would be irrelevant for Force Majeure occurring in a foreign country.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause.

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

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

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

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

an institution to appoint the arbitrators or to administer the arbitration. France) are frequently included in international contracts. In the absence of specific stipulations as to the number of arbitrators and the place of arbitration. in the Appendix to Tender. the implementation of the project and conduct a full audit. that it is prepared to appoint or administer. bfc2-071_fidic user guide_250407_final. it is recommended to add a new Clause 21: “The Contractor will allow the Romanian Audit Authority. 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.7 .Failure to Comply with Dispute Adjudication Board Decision No need for particular conditions related to this sub-clause. on the basis of supporting documents for the accounts. it may be necessary to designate.Romania. if necessary. unless the institution is named (and their role specified) in the arbitration rules. No satisfactory standard form of multi-party arbitration clause for international use has yet been developed.Expiry of Dispute Adjudication Board's Appointment No need for particular conditions related to this sub-clause. For major projects tendered internationally. and usually need to be prepared on a case-by-case basis. the Romanian AntiFraud Office. that would facilitate the enforcement of an arbitral award in the states of the Parties. thereby creating a multi-party arbitration. which is based at 38 Cours Albert 1er. by examining the documents or by means of on-the-spot checks. If the UNCITRAL (or other non-ICC) arbitration rules are preferred. before so designating an institution in the Appendix to Tender. While this may be feasible. It may be considered desirable in some cases for other Parties to be joined into any arbitration between the Parties.DOC . it is desirable that the place of arbitration be situated in a country other than that of the Employer or Contractor.party arbitration clauses require skilful drafting. It may also be necessary to ensure. the European Anti-Fraud Office and the European Court of Auditors to verify. 75008 Paris. the International Court of Arbitration of the ICC will decide on the number of arbitrators (typically three in any substantial construction dispute) and on the place of arbitration. Sub-Clause 20.8 . New Clause 21 Checks and Audits by Romanian and Community Bodies For contracts funded under European Commission funds. multi. These inspections may take place up to 7 years after the final payment. 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). Sub-Clause 20. The Rules of Arbitration of the International Chamber of Commerce (the "ICC". . or both. the European Commission. accounting documents and any other document relevant to the financing of the project.

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

1.Romania.” Replace third.4 1.1 18.2 & 20. as well as the per diem rate.7 13.5(b) and (c) 14. All invoices shall be accompanied by a brief description of activities performed during the relevant period.7 & 14.2 14. Following issues shall be covered by the Appendix to Tender: Item Employer Contractor Engineer Time for Completion Defects Notification Period Electronic Transmission Governing Law Ruling Language Language for Communications Time for Access to Site Performance Security Normal Working Hours Delay Damages Maximum Amount of Delay Damages Provisional Sums Adjustment of Changes in Cost Advance Payment Repayment of Advance Percentage of Retention Plant and Materials Interim Payment Certificate Currency of Payment Insurance Sub-Clause 1.3 1.1 4. 5.2(a) and (b) 14.3.3 Data bfc2-071_fidic user guide_250407_final. shall be as specified in the Dispute Adjudication Agreement.1.8 14.3 DAB 20. invoices for his/her daily fees and expenses monthly.3 1. .2 & 1.2.15(b) 8.2.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.3 1.4 2. The Employer shall then pay the Contractor in accordance with the Contract".3 1.5 8.1.3 & 1.7 1.1.3. 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.1.15 18.5(b) 13. with a copy to the Employer. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 112 “The daily fee.2. fourth and fifth paragraphs by: “The Member shall submit to the Contractor.4 & 1.3 1.2 6.4 1.DOC .2(d) 18.6 14.3 14.

Under the usual arrangements for this type of contract. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. such as. i. The Romanian language version of the General Conditions of Contract and the proposed mandatory particular conditions of contract will. .2 FIDIC Guidance The Conditions of Contract .e.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 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.Romania. 6. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 113 6 6. the Conditions may be suitable for contracts of greater value.DOC . after the approval by the MPF. the Contractor constructs bfc2-071_fidic user guide_250407_final. 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. in the current Romanian context. necessary so as to harmonise the contract provisions with the current Romanian legislation.000 Euro equivalent and up to 6 months duration. the FIDIC Green Book. However.have been prepared by FIDIC and are recommended for engineering and building work of relatively small capital value. and was submitted to the MPF in December 2006. about 500. 1st Edition 1999.the FIDIC Green Book . be published in the Official Gazette of Romania for use on infrastructure projects in Romania. depending on the type of work and the circumstances. Mandatory particular conditions of contract for the FIDIC Green Book. 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.

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

114

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.

bfc2-071_fidic user guide_250407_final.DOC

.

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

115

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.

bfc2-071_fidic user guide_250407_final.DOC

.

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

116

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

bfc2-071_fidic user guide_250407_final.DOC

.

the Site must be handed over by the Employer to the Contractor on the Commencement Date. permits etc may also be required from places other than the Country.The Employer Sub-Clause 2.6 . typhoon or volcanic activity. Sub-Clause 2. 10/1995). If the law of the Contract is not the law of the Country.7 above).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.2 Clause 2 . refer to the mandatory particular conditions in Appendix D. Sub-Clause 1.. Sub-Clause 1. explosive materials. including any design and the remedying of defects.1 should be changed in the Particular Conditions. Sub-Clause 1. Sub-Clause 1.1. which occurs when the signed Agreement has been returned by the Employer to the Contractor (see also Sub-Clause 1.2 . explosives. strike or lockout by persons other than the Contractor's personnel and other employees d) Munitions of war.. hurricane.1 . This is 14 days after the Contract has come into effect. On the other hand. this Sub-Clause could be limited by the addition at the end of the words: ".3.Priority of Documents No need for particular conditions related to this sub-clause. in the Country but not elsewhere. Otherwise there is no "Ruling Language". 1." bfc2-071_fidic user guide_250407_final.Provision of Site Unless the Parties have agreed otherwise. commotion. then Sub-Clause 6.Interpretation No need for particular conditions related to this sub-clause. 6.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.19 “Works”.DOC . disorder.Romania.Law No need for particular conditions related to this sub-clause.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 117 c) Riot.3 .5 .2 . ionising radiation or contamination by radioactivity. The term "Works" is intended to cover all the obligations of the Contractor. except as may be attributable to the Contractor's use of such munitions. Any arbitration will be conducted in the specified language. . and e) Natural catastrophes such as earthquake. if for any reason. Sub-Clause 1. radiation or radioactivity.4 .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.

Approvals The term "approval" is only used in the Conditions in relation to the performance security at Sub-Clause 4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 118 Sub-Clause 2. 8. value or duration.2 and 14.3 Clause 3 .1. 9. The Sub-Clause is intended to prevent argument. There is no dual role or duty to be impartial.4 Clause 4 . then the following words could be used in the Particular Conditions: "Replace the final sentence of Sub-Clause 3. In addition.4 . 4. then an amendment in the Particular Conditions would be desirable. If an impartial Employer's Representative is required with a role similar to the traditional Engineer. . 5.6. 10/1995 related to the verification of the proper performance of the Works through qualified persons appointed by the Employer.2.3." To the extent that the Employer has delegated powers to an Employer's representative. decisions.DOC . so some benchmark standard is needed with which the Contractor is to comply.5. 6. Once appointed. 11.1.1 to 11.1.2.Employer's Instructions No need for particular conditions related to this sub-clause Sub-Clause 2. 6.2 should be entirely deleted and replaced with the wording provided in the mandatory particular conditions (Appendix C).1.1. he should be careful not to exercise such powers himself in order to avoid the risk of conflicting instructions.3. 10. 4. etc.3. the Employer's representative acts for and in the interests of the Employer. Sub-Clause 4. 2.Romania.3. bfc2-071_fidic user guide_250407_final.2.1 and the authorised individual should be named in the Appendix. 10.1. for contracts of relatively higher complexity. 9.1 . 10. If a more specific set of standards could be referred to for a particular project.3. It is important that risks such as those of poor workmanship or Contractor's design are not transferred to the Employer unintentionally.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. 13.Contractor's Representative No need for particular conditions related to this sub-clause.2. 11.2 . so as to introduce the requirements of Law No. This is achieved by Sub-Clause 3.2 with the following: "The Employer's Representative shall exercise in a fair and impartial manner the powers of the Employer under or in connection with the following Sub-Clauses: 1. it is recommendable that Employers require more extensive professional assistance and their consultant should have clearly established delegated powers.3 .4 and insurances at Sub-Clause 14.3. 7.General Obligations Most contracts do not specify the exact standard required for each element of the Works. 12.8. Sub-Clause 3.The Contractor Sub-Clause 4.

4.4 . Sub-Clause 5. bfc2-071_fidic user guide_250407_final.1 . the Particular Conditions should reflect the requirements of Romanian public procurement regulations as regards subcontractors (Article 96 (1) of GD No. namely to allow constitution of a guarantee through progressive retentions from payments. The proposed modification is included in the mandatory particular conditions in Appendix C. Example forms are included with FIDIC's Conditions of Contract for Construction. 10/1995).3 .Subcontracting If applicable.3.Design by Contractor Sub-Clause 5. the responsibility for design will be shared as this Contract makes the Contractor responsible only for design prepared by him.DOC . The amount and a reference to the desired form of any required security should be set out in the Appendix. the Sub-Clause could be amended. Designs are submitted and may be returned with comments or rejected. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 119 Sub-Clause 4. The proposed modification is included in the mandatory particular conditions in Appendix C.Contractor's Design This Sub-Clause should be modified in order to acknowledge the requirement under Romanian law for designs to be verified by a duly certified design checker (Article 13 of Law No. The Employer need not react at all. the Specification and Drawings should be amended before the Contract is signed by the Parties. . The Conditions avoid the confusing concept of approval of design. then local commercial practice should dictate the form.2 . This means that if the Employer prefers the Contractor's tendered solution.Responsibility for Design The Contractor's responsibility for his design remains. Alternatively and particularly if the constitution of a bank guarantee might be difficult for the potential contractors. The proposed modification is included in the mandatory particular conditions in Appendix C. Suggested forms of performance bond (surety bond) or bank guarantee have not been provided.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 order of priority in the Appendix makes it clear that the Employer's documents prevail. In the event of conflict between the Specification and Drawings and the Contractor's tendered design. 6. If it is felt that the scale of project warrants security by means of a bond. The Appendix should indicate to tenderers the Sub-Clause(s) in the Specification that set out the design requirement. 925/2006). Where the Employer procures any part of the design. so as to introduce the provisions of Article 90 letter (c) of the GD No.Performance Security Sub-Clause 4. 925/2006). Sub-Clause 4.5 Clause 5 .Romania. as is made clear here and in Sub-Clause 2. As with all design-build contracts it is essential that the Employer's requirements are set out clearly and precisely. 925/2006. The extent of the Contractor's design obligation should therefore be clearly stated if disputes are to be avoided.

the intended purposes of the part of the Works to be designed by the Contractor. the Employer should do so. 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. the Appendix could stipulate that the programme should show the dates on which it is intended to prepare and submit drawings.3 and the grounds for claims under Sub-Clause 10. Sub-Clause 7.4 .Employer's Liabilities This Sub-Clause gathers together in one place the grounds for extension of time under Sub-Clause 7.3. provided that the intended purposes are defined in the Contract.Employer's Liabilities Sub-Clause 6.8 Clause 8 .1 . There is no time or claim for bad weather although this could be adjusted in the Particular Conditions if so required. Where Contractor's design is required.Taking-Over Sub-Clause 8.DOC .1 .Completion No need for particular conditions related to this sub-clause. 10% of the sum stated in the Agreement is suggested. etc.3. provision must be made in the Particular Conditions.Romania.Time for Completion Sub-Clause 7. 6. This means that if an event under Sub-Clause 6.4. Sub-Clause 7. This should be done even where this seems obvious in order to avoid argument about whether an intended purpose is defined or not. 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.Execution of the Works There is no provision for sections and for the different Times for Completion by sections.6 Clause 6 .3 .3 contributed to the delay. 6. bfc2-071_fidic user guide_250407_final. Sub-Clause 7. If a party wishes to protect the intellectual property in his design.2 . If necessary.Extension of Time The test for entitlement to an extension of time is whether it is appropriate. those should be introduced in the Particular Conditions.Programme The Appendix should stipulate any particular requirements as to the form and level of detail of programme to be submitted. The Employer must therefore make clear in the parts of the Specification that impose design obligations.1 caused critical delay to the Works and it is fair and reasonable to grant an extension of time.1 . . 6.7 Clause 7 .3.Late Completion There is a maximum amount which the Contractor is liable to pay for late completion specified in the Appendix.

1 . If any tests are required to be completed prior to taking-over. There is no provision for taking-over of only parts of the Works but if this is required.normally 12 months . 273/1994).DOC . the Employer may employ others for that purpose at the Contractor's cost.” Sub-Clause 9.from the date of taking-over. If he fails to do so.3.2 .10 Clause 10 . 273/1994. This liability remains for as long as Romanian law stipulates.Remedying Effects This Sub-Clause shall be modified in order to include the obligation for the Contractor to remedy any defects. the defect represents a breach of contract for which the Contractor is liable in damages. . these should be specified in the Specification. 6.Remedying Effects Sub-Clause 9. provision should be made in the Particular Conditions.Taking-Over Notice This Sub-Clause needs to be amended in order to comply with Romanian regulations related to taking-over of Works set out mainly in GD No. The Employer must nominate a taking-over commission (Article 7 of GD No. Once the Works are ready to be used for their intended purpose. If the Employer requires a change to part of the Works bfc2-071_fidic user guide_250407_final.1 . notified by the Employer. The definition of Works is broad enough to include any such tests. The Employer may also notify defects at any time prior to takingover. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. Such amendment is included in the mandatory particular conditions in Appendix C. it is not envisaged that the Works need be 100% complete before the Employer may take over.3.Variations and Claims Sub-Clause 10. either apparent or latent. Although he is then no longer obliged to return to Site to remedy defects. In line with normal practice.2 . 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. 6. the Employer may notify the Contractor of defects. There is no defined Defects Liability Period but during the period . The Contractor must remedy such defects within a reasonable time. the notice should be given.Uncovering and Testing No need for particular conditions related to this sub-clause.Right to Vary Variation is defined to include any change to the Specification or Drawings included in the Contract.Romania.9 Clause 9 . The proposed modification is included in the mandatory particular conditions in Appendix C. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 121 Sub-Clause 8. The liability of the Contractor for defects will not normally end with the expiry of the period stated in the Appendix.

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

122

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:

bfc2-071_fidic user guide_250407_final.DOC

.

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

123

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

bfc2-071_fidic user guide_250407_final.DOC

.

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

124

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-

bfc2-071_fidic user guide_250407_final.DOC

.

The Contractor must use his right to terminate within 21 days or lose it. 7 days after the Employer's receipt of a default notice.4 . . 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. 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. 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.3. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 125 mination takes place.2 .2 . Sub-Clause 13. refer to the mandatory particular conditions provided in Appendix C. the Contractor may suspend all or part of his work.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. complication and scope for dispute are avoided. Sub-Clause 12. By specifying the damages payable to the innocent party for the defaults leading to the termination. The Employer's costs in obtaining a replacement contractor will generally be higher than the Contractor's loss of profit. 21 days later the option to terminate arises if the Employer persists with non-payment or other default. Notice must be given at once. the Employer will be obliged to agree terms with the Contractor for the retention of such equipment. which must refer to Sub-Clause 12. however. See also the definition at Sub-Clause 1.Risk and Responsibility Sub-Clause 13. Sub-Clause 12. Reference to the applicable law would be necessary.13 Clause 13 . This is to prevent a party abusing a right to terminate in his dealings with the other party for the remainder of the project.3 . 6. refer to the mandatory particular conditions provided in Appendix C.DOC . Care should be taken.1.Romania. bfc2-071_fidic user guide_250407_final.Force Majeure To qualify as Force Majeure.14.2. the Employer may take over and use the Contractor's Equipment to complete the Works. Sub-Clause 12. much delay.Contractor's Care of the Works Although the Contractor is responsible for the Works prior to taking-over. If Contractor's Equipment is essential for the safety or stability of the Works.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.1 . events must prevent performance of an obligation.Default by Employer This provision provides the Contractor's main remedy for non-payment.

Delays will inevitably occur if the parties initiate the procedure to appoint an adjudicator only when a dispute has arisen.3 should be deleted if the Employer takes out the insurance. Sub-Clause 14.1 . bfc2-071_fidic user guide_250407_final. Any requirements for insurance after the date of the Employer's notice under Sub-Clause 8. tenderers should generally be asked to submit details of their insurance cover with their tenders. It should be noted that in the event of the Employer's failure to insure.Arrangements No need for particular conditions related to this sub-clause.14 Clause 14 .1 with the following: "The Employer shall. See also Clause 13.Failure to Insure No need for particular conditions related to this sub-clause.DOC . the Contractor may give notice under Sub-Clause 12. As smaller contracts are likely to fall within tenderers' standing Contractors' All Risk (CAR) insurance policies.1 . Third Party. in the amounts and with the exclusions stipulated in the Appendix. Care should be taken about whether an adjudicator should be local or from a neutral country.3 . The Employer shall provide the Contractor with evidence that any required policy is in force and that the premiums have been paid.Romania. in view of the costs involved in arbitration.3.Extent of Cover The Employer should set out his precise requirements in the Appendix. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 126 6. Sub-Clause 14. Although the adjudicator should be impartial. If the Employer wishes to take out the insurances instead of the Contractor. should be covered by Particular Conditions.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. any extra cost of a truly impartial adjudicator is a recommended investment. 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. or arising from taking-over parts of the Works.2 .Resolution of Disputes Sub-Clause 15.2. 6. even of minor disputes. . 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. the following should be used as a Particular Condition in place of Sub-Clause 14." Sub-Clauses 14. prior to the Commencement Date.3. However.Insurance Sub-Clause 14. public liability insurance would normally be mandatory.15 Clause 15 .2 and 14. effect insurance in the joint names of the Parties of the types.1: • "Replace the text of Sub-Clause 14.

bfc2-071_fidic user guide_250407_final.5 10.4 Guidance for the Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.4 Data Document identification is necessary to avoid any possible doubt.8 14. If there is no bill of quantities.4 1. including the extent to which any design proposals are to be submitted with the tender. Sub-Clause 15.2 11.2 4.1 & 11. delete the reference.1 1.3 . Sub-Clause 15.1 7.7 11.Arbitration Arbitration may not be commenced unless the dispute has first been the subject of adjudication. 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.3 Sub-Clause 1. 6.Dayworks Valuation of the Works Materials and Plant Retention Currency of Payment Rate of Interest Insurances Arbitration Rules 9.5 2.4 5. A complete list of Drawings is always desirable and could be attached on a separate sheet.1 15.2 11. Following issues shall be covered by the Appendix: Item Contract Documents Time for Completion Law of the Contract Language Provision of Site Authorised Person Employer's Representative Performance Security Contractor's Design Programme Amount Payable due to Failure to Complete Period for Notifying Works Variation Procedure .Romania.3 11.1.DOC .1 3.1.9 1. the reference to the Contractor's tendered design should be deleted. If none. . if required. by an arbitrator.1 11.Notice of Dissatisfaction No need for particular conditions related to this sub-clause. The Specification should set out in clear terms any design that the Contractor is required to undertake.2 7. The Rules of arbitration should be stipulated in the Appendix. for example because specifications have been subject to revisions.1 3.2 .

such as schedules of information provided by the Contractor (elements of the Contractor proposal). 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 128 If there are additional documents which are required to form part of the Contract. these should be added by the Employer. Consideration should be given in each case to the required priority.DOC .Romania. .

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

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

1. Appendix The Appendix is based on the draft proposed by FIDIC. Templates for Contractual Issues. modified for particular requirements of Romanian legislation. modified for particular requirements of Romanian legislation. 8.DOC . Appendix to Tender The Appendix to Tender is based on the draft proposed by FIDIC. modified for particular requirements of Romanian legislation.1. The templates are attached in Appendix E.1. Contract Agreement The Contract Agreement is based on the draft proposed by FIDIC. Letter of Tender The Letter of Tender is based on the draft proposed by FIDIC. Templates for Contractual Issues. bfc2-071_fidic user guide_250407_final.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. . 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 8.2.2 FIDIC Green Book This section presents the following templates for contractual issues: • • Agreement Appendix.Romania. modified for particular requirements of Romanian legislation. modified for particular requirements of Romanian legislation. The templates are attached in Appendix E. Agreement The Agreement is based on the draft proposed by FIDIC.

Romania.DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 132 8. . The templates are attached in Appendix F. DAB Agreements bfc2-071_fidic user guide_250407_final.3 Dispute Adjudication Agreements The proposed DAB Agreements are based on the draft proposed by FIDIC.1. modified for particular requirements of Romanian legislation: • • Dispute Adjudication Agreement (one person DAB) Dispute Adjudication Agreement (three person DAB).

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

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

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

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

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

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

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

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.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 .Demand Guarantee Advance Payment Guarantee Retention Money Guarantee Payment Guarantee by Employer. yellow and green books. bfc2-071_fidic user guide_250407_final.

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

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). published as number 458 by the International Chamber of Commerce. At the request of the Principal. Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public.2 of the conditions of the Contract.Romania. which are set out in a document entitled Instructions to Tenderers) require his offer to be supported by a tender security. This guarantee is subject to the Uniform Rules for Demand Guarantees. when this guarantee shall expire and shall be returned to us. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 142 TENDER SECURITY Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (defined as the Employer). 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. withdrawn his offer after the latest time specified for its submission and before the expiry of its period of validity. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. we <Insert name of bank> hereby irrevocably undertake to pay you. except as stated above. without your agreement. . 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. or (b) You awarded the Contract to the Principal and he has refused to execute the Contract Agreement. the Beneficiary/Employer.DOC . or (c) You awarded the Contract to the Principal and he has failed to comply with sub-clause 4. and that the conditions of your invitation (the "conditions of invitation".

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

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

within such period of 28 days.Romania.6 of the conditions of the Contract with a copy being passed to us. we <Insert name of Bank> hereby irrevocably undertake to pay you. This guarantee is fully transferable in favour of [financing institution] its successors and assignees. when this guarantee shall expire and shall be returned to us. 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. This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. the Beneficiary/Employer. At any time.DOC . published as number 458 by the International Chamber of Commerce. 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. . as evidenced by your notices issued under sub-clause 14. any sum or sums not exceeding in total the amount of <Insert amount> (the "guaranteed amount". 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. 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. At the request of the Principal. for reasons attributable to the Principal. for which the Contract requires him to obtain a guarantee. We undertake to pay you such guaranteed amount upon receipt by us. and The nature of such defect(s). our liability under this guarantee shall not exceed the total amount of retention money released to the Principal by you. 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"). and that this guarantee has not been extended. except as stated above. 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). of your demand in writing and your written statement that the performance certificate has not been issued.

Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public.DOC . published as number 458 by the International Chamber of Commerce. the Beneficiary/Contractor. 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. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. 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. 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. At the request of the Principal. . 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. (b) Any demand for payment must be accompanied by a copy of [list of documents evidencing entitlement to payment]. This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees.Romania. we <Insert name of Bank> hereby irrevocably undertake to pay you. and The amount(s) which the Principal has failed to pay. in respect of which the Principal has failed to make payment in full. 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 . bfc2-071_fidic user guide_250407_final.Romania. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 147 Appendix E . .Templates for Contractual Issues E.1 .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.

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

1.Romania.3 1.3 1. in the currencies and proportions in which the Contract Price is payable 50% of the Accepted Contract Amount Maximum Amount of SubContracting Period for Notifying unforeseeable errors.7 & 14. 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.DOC .3.2.3 & 1.7 13.1.5 8.4 & 1.3.3 1.1.4 5.2.1 4.3 1.15(b) 08:00 .3 1.> days 6.7 1.2 Data <Insert name of Employer> <To be filled by the Contractor> <Insert name of the Engineer> <Insert time> days 365 days Facsimile only Romanian law Romanian Romanian 21 days after Commencement Date 10 % of the Accepted Contract Amount.5(b) Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.4 2. . 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 8.1.1.1% of the final Contract Price per day.4 1.16:00 Monday to Friday 0.2.1 <Insert No.2 & 1.4 1. 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. faults and defects in the Employer' Requirements Normal working hours Delay damages for the Works 4.

01 – 0. Sector: Outfits for mines.25 0. Steel S As above. Construction Industry.Aggregates f .01 – 0. quarries and construction manufacturing. Tables for indices of market price goods and services.25 Total Coefficient value (4) 0. Sector: other non metallic mineral products manufacturing Energy E As above.fixed b .01 – 0.25 0. Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.01 – 0. Tables for indices of prices for the industrial production. Tables for indices of prices for the industrial production.DOC . Sources of indices: Index for adjustment (1) Labour L Published source of Index (2) Base value Base Date (3) at National Institute of Statistics. Note: The tenderer shall quote in column (3) the value of the cost index at the Base Date.25 0. .25 0.8 Cost index (2) Range of coefficient value (3) 0. Sector: production.01 – 0.Labour c .01 – 0.Cement Note: 13. Tables for indices of prices for the industrial production.25 0. Cement C As above. Tables for indices of prices for the industrial production.01 – 0.1 0.Fuel e . Sector of crude oil extraction Fuel F As above.25 0.1 L B F A E M S C 1.Bitumen d .01 – 0.Romania.Energy g . Tables for indices of price for the industrial production. transport and distribution of electricity. Gross average salary for the month in question Bitumen B As above. Sector: cement manufacturing.00 The tenderer shall fill in column (4) with value of relevant coefficient . gas and hot water Equipment/Machinery M As above. for the national economy.Steel i . Sector: metallic construction and components manufacturing.Equipment/Machinery h . Sector: liquid fuels Aggregates A As above. Monthly Bulletin Table for: Average nominal salary.25 0. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 150 Adjustment for Change in Cost Table of adjustment data Example Coefficients and description of related cost elements (1) a . Tables for indices of prices for the industrial production.falling within the range specified in column (3).

1 18.2 Currencies and proportions 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 14.15 Romanian Leu (RON) 18. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.2(a) Repayment amortisation of advance payment 14.1 18.DOC . 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.3 14.000 EUR per occurrence with the number of occurrences unlimited Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.2 In accordance with the provisions of Government Decision No.2 Start repayment of advance payment 14.3 14.3 500.5(b) [project requirements] [project requirements] 1% of Accepted Contract Amount 14.6 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. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.

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 1.7) Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final.6 20.6 20.2 20.DOC .3) Delay Damages (Sub-Clause 8.6 Time for Completion (Sub-Clause 1.2 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.Romania.3.5.1. .1.3 20.6) 20.

and The completed Schedules. 2. 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. the Contractor hereby covenants with the Employer to execute and complete the Works and remedy any defects therein. Whereas the Employer desires that the Works known as <Insert project name> should be executed by the Contractor. . The Employer and the Contractor agree as follows: 1. in conformity with the provisions of the Contract. In consideration of the payments to be made by the Employer to the Contractor as hereinafter mentioned. Between <Insert name of Employer> of Romania (hereinafter called "the Employer") of the one part. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract hereinafter referred to. month and year>. 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.. <Insert nos. The Employer hereby covenants to pay the Contractor.Romania. 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. and <Insert name and country of Contractor> (hereinafter called "the Contractor") of the other part. if any> The Conditions of Contract The Specification The Drawings. the Contract Price at the times and in the manner prescribed by the Contract. in consideration of the execution and completion of the Works and the remedying of defects therein.DOC . 4.

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

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

4 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. [Note: with the exception of the items for which the Employer's requirements have been inserted.4 4. (e) The Drawings…………………. .1 3.1% per day up to a maximum of 10% of sum stated in the Agreement 365 days calculated from the dated stated in the notice under Sub-Clause 8.1 ______________ (details) 10.9 1.1.2 _____ days Romanian Law Romanian Commencement Date Sub-Clause 1. the Contractor shall complete the following information before submitting his offer. (f) The Contractor's tendered design (g) The bill of quantities…………… (h) …………………………………..1 3. (i) …………………………………. 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.2 Within 14 days of the Commencement Date 4.. ….2 7.] Item Documents forming the Contract listed in the order of priority Document (delete if not applicable) (a) The Agreement………………… (b) Particular Conditions………….Romania.2 7.1.1 10% of the sum stated in the Agreement As per form attached Refer Specification Clause No..4 9.1 & 11. (c) General Conditions…………….1 Document Identification Data bfc2-071_fidic user guide_250407_final.4 5. 1. (d) The Specification……………….5 2.DOC .5 0..2 ______________ (details) 7.

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. 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. Plants and Fees Contractor's Equipment Third Party injury to persons and damage to property Workers Other cover Arbitration Rules 14.1 11. .1 11.1) Percentage of retention Currency of payment Rate of interest 11.8 ___________________ 5% __________________ RON National Bank of Romania reference rate at Contract signature plus 3 percentage points.DOC .7 11.3 Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final.1 11.1 Amount: The sum stated in the Agreement plus 15% Full replacement cost 500 000 Euro per event.Romania.3 Place of Arbitration 15. Unlimited number of events As per legislation in force Exclusions: 15. per annum Insurances Type of Cover: The Works. Materials.3 11.3 Rules of procedures of the International Commercial Arbitration Court at the Romanian Chamber of Commerce and Industry President of the International Commercial Arbitration Court at the Romanian Chamber of Commerce and Industry Bucharest Appointing Authority 15.

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

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

.DOC .Romania. 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.

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

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

Sign up to vote on this title
UsefulNot useful