Bfc2-071 Fidic User Guide 250407 Final | General Contractor | Specification (Technical Standard)

Romania Ministry of Public Finance Managing Authority for Infrastructure

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

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Romania Ministry of Public Finance Managing Authority for Infrastructure

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

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

Report no. Issue no. Date of issue

Employer User Guide for Particular Conditions of Contract A 25.04.2007

Prepared Checked Approved

LHM Andreea Toma/Alexis Gressier Lars H. Møller

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

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

Construction and Tourism Official Gazette of Romania Conditions of Contract for Design-Build Romanian Bank Association Romanian Chamber of Commerce Romanian Leu Terms of Reference United Nations Commission on International Trade Law Value added tax bfc2-071_fidic user guide_250407_final. MPF Ministry of European Integration Ministry of Public Finance Ministry of Transport. . 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. 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. Procurement.DOC .

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

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1.1

Introduction and Background
Introduction

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

1.2

Application of the FIDIC Conditions of Contract

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

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

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

1.3

Romanian Legislation

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

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

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

1.4

Standard Tender Documents

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

Volume 2: Conditions of Contract

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

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

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

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

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

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

without an "Engineer" being involved The Employer does not wish to be involved in the day-to-day progress of the work. provided the end result meets the performance criteria he has specified The Employer is willing to pay more for construction of his Project (than would be the case if P&DB were used) in return for the Contractor bearing the extra risks associated with enhanced certainty of final price and time. 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. bfc2-071_fidic user guide_250407_final.choose the FIDIC silver book (EPCT).e.. - - If this is what is wanted . 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. construction and operation of the Project? Then the Concessionaire (the "Employer") probably requires to have a contract with the construction Contractor. where the Contractor takes total responsibility for the design and construction of the infrastructure or other facility. - If this is what is wanted .Romania. i. sponsors. 4. of the Build-Operate-Transfer or similar type.. 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.. i. Procurement. where the Concessionaire takes the total responsibility for the financing. provided the end result meets the performance criteria he has specified The parties concerned (e. lenders and the Employer) are willing to see the Contractor paid more for the construction of the Project in return for the Contractor bearing the extra risks associated with enhanced certainty of final price and time. Construction) Contract. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 12 - The Engineer (or Employer's representative) administered the Contract.DOC . Is it a privately Financed (or Public/Private Financed) Project. - - If this is what is wanted . an EPC (Engineering.choose the FIDIC yellow book (P&DB).choose the FIDIC silver book (EPCT). 3.e.g. .

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

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

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

8 & 11.1.1.9 1.Romania.3 & 8.5 & 10. .1.3.1 1.4) Tests on Completion Taking-Over Certificate Defects Notification Period (as extended under 11. 1.3.6. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.6 & 4. In order to clarify the sequence of Contract activities.1.2 1.1 & 13.7 1.1. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.3.1.4.3) Performance Certificate Final Payment Certificate Figure 4-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.4 & 14.1.1 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 16 In addition.1.1 1. for Plant and Design-Build.DOC .3.7 & 11.1.3 1.3.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.2 & 8.2 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).7 & 14.4.4 & 9. and for EPC/Turnkey Projects.1.1 1.3.3.

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. Modifications to the Conditions are required to be fully adapted to the current Romanian legislation.DOC . Under the usual arrangements for this type of contract.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. 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 4.2.Romania. the Engineer. .1 Introduction The Conditions of Contract for Construction . the Contractor constructs the works in accordance with design details provided by the Employer or his representative.the FIDIC Red Book .

the Contract includes these completed Schedules. the following text can be used: “The Conditions of Contract comprise the "General Conditions".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. When the Employer accepts the Letter of Tender. For these Works. 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. Before incorporating any example wording. For this type of contract.10. 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. 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. The General Conditions refer to any necessary data being contained in the Appendix to Tender or (for technical matters) in the Specification.” Where example wording is amended. and in all cases where other amendments or additions are made.DOC . the Drawings.2. each of the Tenderers should receive the data referred to in SubClause 4. 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 18 works. In addition. care must be taken to ensure that no ambiguity is created. and a review by suitably qualified lawyers may be advisable. A Daywork Schedule may also be necessary. 4. to cover minor works to be evaluated at cost. the Bill of Quantities will usually be the most important Schedule. it must be checked to ensure that it is wholly suitable for the particular circumstances. they are not intended for use where most of the works are designed by the Contractor.Romania. The tender documents issued to tenderers will consist of the Conditions of Contract. . example wording should be amended before use. There are no sub-clauses in the General Conditions which require data to be included in the Particular Conditions. 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". which include amendments and additions to such General Conditions. where works are valued by measurement. In the preparation of the Conditions of Contract to be included in the tender documents for a contract. the Specification. which form part of the "Conditions of Contract for Construction" First Edition 1999 published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC). Unless it is considered suitable.

1 .13 Permissions being obtained by the Employer . The example form in Appendix D2 provides a checklist of the data required. that this data is either prescribed by the Employer or inserted by the Tenderer.1.1 .6 . based on this example form. If each Tenderer is to produce a parent company guarantee and/or a tender security. and/or specify the extent of other information which each Tenderer is to include with his Tender.5 Provisional Sums.DOC .4.4.4.2 .18 Environmental constraints .5.13. but there is no indication. The Employer should prepare the Appendix to Tender. . and include a questionnaire in the Schedules.4. providing a convenient location for the data which is usually required. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender. 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.4. lines and levels of reference . with the elements completed to the extent of his requirements. 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.6 .9.6.1.7.2.7 Requirements for Contractor's Documents Phased possession of foundations.1 .14 Third parties . water. 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.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: .4.1.7.4. The Employer may require other data from Tenderers.8 .20 Employer's Equipment and free-issue material . structures. plant or means of access Contractor's designs Other contractors (and others) on the Site Setting-out points.Romania.1 Nominated Subcontractors Facilities for Personnel Samples Testing during manufacture and/or construction Tests on Completion .19 Electricity. gas and other services available on the Site . either in the General Conditions or in the example Appendix to Tender.

In Sub-Clause 1.1 the definition of Contract shall reflect the deletion of Letter of Acceptance. due to Romanian legislation in force. In new Sub-Clause 1. The following definitions should be modified: • In Sub-Clause 1.9 .1. In new Sub-Clause 1. Under Romanian public procurement regulations.General Provisions Sub-Clause 1.20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Insurances Resolution of disputes.Romania. 4. In Sub-Clause 1. 273/1994). with a clause-by-clause review.1.6 the "Foreign Currency" should be indicated.4.Definitions It will be necessary to amend some of the definitions. In Sub-Clause 1.1.1.1 Clause 1 .4.10 a definition of the "Taking-Over Minutes on Completion of Works" shall be included to reflect the process of takingover of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 15 of GD No.1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance. and Article 94 of GD No.3. Such definition is set out in the mandatory particular conditions in Appendix A1.18 .3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Red Book.1. the Contract is formed by the execution of the Contract Agreement after lapse of a mandatory minimum time period from the communication of the letter of award by the Employer to the Contractor (Article 205 of GEO No.1.3.1.4.1 .9.1 . In Sub-Clause 1.3.3 the definition of the Letter of Acceptance shall be deleted.1. The amendment of such definition is set out in the mandatory particular conditions in Appendix A1.3 .3. the requirements of the Romanian procurement legislation and for clarification of the general conditions.1 the definition of the "Base Date" may be changed to reflect a particular calendar date. 4. .4.1.11 a definition of the "Final Taking-Over Minutes" shall be included to reflect the process of final taking-over of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 36 of GD No. 34/2006. 925/2006). • • • • • • bfc2-071_fidic user guide_250407_final.DOC . Such definition is set out in the mandatory particular conditions in Appendix A1. 273/1994). Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 20 .

the latter shall prevail.5 .” Sub-Clause 1. Such provision is recommended so as to provide a clear reference during implementation.Priority of Documents An order of precedence is usually necessary. 925/2006). are not repeated in the General Conditions.Romania. 925/2006).” • • In Sub-Clause 1. Sub-Clause 1. consistence of these with the tender documents should be checked and corrections.5. New Sub-Clause 1. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications.6.3 . decisions. key equipment.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.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.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that.4 . traffic management and/or environmental management plans). • 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.4. Non-compliance might have serious consequences. the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No. although applicable in many sub-clauses.6.1. significant components of the Contractor’s proposal (key personnel.1. In Sub-Clause 1.5 “Applicable Laws” should be defined as all Romanian legislation. in case a conflict is subsequently found among the contract documents In Sub-Clause 1. such as: “In these Conditions. should be introduced prior to the Contract signature. (Article 95(2) of GD No.8 "Local Currency" should be defined as RON (Romanian Leu). provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. Even if the Contract clearly specifies the priority of documents. in case a Contractor’s programme bfc2-071_fidic user guide_250407_final.Law and Language No need for particular conditions related to this sub-clause.6. as well as the fact that. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 21 • • In Sub-Clause 1.2 . . if during the performance of the Contract. ordinances. outline of quality assurance. Furthermore.1.2 may be varied.DOC .Interpretation If the references to "profit" are to be more precisely specified. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present sub-clause. laws. Sub-Clause 1. so as to ensure some enforceability to this proposal.1. method of works. if needed. Sub-Clause 1. In Sub-Clause 1. in particular when evaluating claims.2 "Country" should be defined as Romania. A proposed amendment is included in the mandatory particular conditions in Appendix A1.1.4.

7 . it might be recommendable to state that any reference to calendar dates is indicative only.Romania. Sub-Clause 1. Sub-Clause 1.11 . Sub-Clause 1.Employer's Use of Contractor's Documents No need for particular conditions related to this sub-clause. Such permits include inter alia permits for site erection.Delayed Drawings or Instructions No need for particular conditions related to this sub-clause. the particular regulations to be complied with by the Contractor. Sub-Clause 1. in order to reflect the deletion of Letter of Acceptance. when relevant.12 . 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.Contract Agreement The first sentence of Sub-Clause 1. at his own expenses. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. route permits. Sub-Clause 1. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions. for example with: Except for the building permit to be provided by the Employer.Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause.13 .10 . provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract.Compliance with Laws The Employers should specify. xxx” It is recommended to precise the scope of paragraph (b). Sub-Clause 1. .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. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor.8 .Assignment If the Contract is concluded pursuant to a public procurement procedure. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue.6 . 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. This should be done under the format: “Applicable Laws of particular relevance for the Contract include. but are not limited to: Law No. traffic diversions.DOC . especially if the Contract signature or the Commencement Date occur with delays against initial time schedules Sub-Clause 1.9 . Sub-Clause 1. An example form is included at the contractual templates in Appendix D2. resi- bfc2-071_fidic user guide_250407_final.6 shall be deleted.

These requirements. bfc2-071_fidic user guide_250407_final. this should be clearly stated. permits to relocate public utilities. 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. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer.DOC . and it may have to be approved by the project's financing institutions. detailed requirements for the joint venture may need to be specified.14 . . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 23 dence and work permits. An example form is annexed to this document in the templates of guarantees in Appendix D1. an additional sub-clause may be added. New Sub-Clause 1. The Contractor shall not publish. it may be desirable for each member to produce a parent company guarantee.1 . both early and thereafter exclusively. The Employer should scrutinise the joint venture agreement carefully. the Contractor shall submit to the Engineer the detailed planning of the Works. Within 21 days of the signature of the Contract Agreement. The wording of such Sub-Clause could be as follows: “The Contractor shall treat the details of the Contract Agreement as private and confidential. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws.Right of Access to the Site If right of access cannot be granted. which apply prior to the Contract becoming effective.Romania.15 .” 4.Joint and Several Liability For a major contract. should be included in the Instructions to Tenderers. details should be given. permits for radio communication.2 Clause 2 . The Employer will wish the leader of the joint venture to be appointed at an early stage.3 [Programme]. In case right of access and possession is not to be granted exclusively.Details to be Confidential If confidentiality is required. and will not wish to be involved in a dispute between the members of a joint venture. 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. with all particulars. For example.The Employer Sub-Clause 2. 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 8.3.2. permit to be published. Sub-Clause 1. In case right of access is to be granted by stages. etc. providing a single point of contact thereafter. Employers shall be particularly careful in relation with this sub-clause.

Sub-Clause 2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 24 In case right of access and possession will be granted only for limited sections and/or for limited duration (such as in the case of rail rehabilitation works). . bfc2-071_fidic user guide_250407_final. self-sufficient. it is recommended not to delete this Sub-Clause entirely. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic. The work to be carried out by these other contractors should be described in the tender documents. 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). and particularly in the Specifications.5 . as defined under Sub-Clause 4. but the contract documents should be. to introduce a more precise definition of what will be considered as reasonable evidence.DOC . The anticipation of a risk in this regard would then reflect on the prices. Therefore.2 . it is good practice to include in the tender and then contract documents. as contractors would be concerned by such cancellation.23. as much as possible. Sub-Clause 2. the procedure defined in the present Sub-Clause has to be used in case the Employer disagrees with an amount certified or wishes to apply various penalties (such as delay damages). and aspects such as co-ordination and safety may need to be specified.Employer's Claims It has to be underlined that under Sub-Clause 14. References to laws and standards should be included for formal reasons. for example for long term contracts. as Employers are generally expected to have secured funding corresponding to the Accepted Contract Amount before the signature of the contract. so as to facilitate access to the market.Permits.7.Employer's Financial Arrangements It is possible.3 .Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site. The Site does not include additional working areas that the Contractor might require.Romania. Sub-Clause 2. Sub-Clause 2. the Employer is not allowed to make deductions from the amounts certified by the Engineer (the mandatory particular conditions allow however arithmetical mistakes to be corrected). However. Licences or Approvals With reference to paragraph (a). all relevant information.4 . However. the required land should be made available by the same Employer. in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). the Employer should state this and define the procedure that will be applied as well as the main constraint/parameters.

2 . instruct the Contractor to execute all such work or to do all such things as may. without relieving the Contractor of any of his duties and responsibilities under the Contract. the example wording should be varied.Romania. in respect of such instruction. he may.The Engineer Sub-Clause 3. the Conditions of Contract provide for several additional duties and authority. or similar: “Notwithstanding the obligation. Employers might wish to limit the authority of the Engineer. If the obligation to obtain the approval of the Employer only applies beyond certain limits. .1 . 10/1995.3. Attention of the Employers is drawn on the fact that such prior approval transfer responsibility from the Engineer to the Employer.Delegation by the Engineer No need for particular conditions related to this sub-clause. financial or otherwise. as set out above.4: Specific approval of the Employer is required before issuing consent for any Sub-Contractor. In addition to those limitations included in the mandatory particular conditions (Appendix A1) and deriving from the applicable Romanian legislation. Employers might want to add.3 Clause 3 . (alternatively. bfc2-071_fidic user guide_250407_final. However. to obtain approval.4 and/or Sub-Clause 13. this obligation could be limited to major Sub-Contractors. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 25 4. in the opinion of the Engineer. in accordance with Sub-Clause 13. It is also recommendable to add the following precisions.Engineer's Duties and Authority Any requirements for Employer's approval should be set out in the Particular Conditions. in the opinion of the Engineer. It is clear that the Engineer has the role defined in very general terms in Article 21 paragraph d) of Law No. that is those providing more than x% of the Accepted Contract Amount) b) Sub-Clause 8. for example: a) Sub-Clause 4. if.1 and shall notify the Contractor accordingly. The Engineer shall determine an addition to the Contract Price.1: Specific approval of the Employer is required before instructing or approving any extension of the Time for Completion c) Sub-Clause 13.DOC . with a copy to the Employer. an emergency occurs affecting the safety of life or of the Works or of adjoining property. in order to maintain control on some of the main features. be necessary to abate or reduce the risk.” Sub-Clause 3. The Contractor shall forthwith comply with any such instruction of the Engineer.1: Specific approval of the Employer is required before instructing or approving the omission of any work. Such limitations should (i) be specifically detailed in the Particular Conditions and (ii) truly correspond to those mentioned in the Engineer’s contract. This list should be extended or reduced as necessary.

Instructions of the Engineer Attention is drawn on the following provision of this Sub-Clause: “The Contractor shall only take instructions from the Engineer. under the Contract.Replacement of the Engineer No need for particular conditions related to this sub-clause. current and anticipated difficulties. Sub-Clause 3.Romania. payments. the status of staffing. Employers might consider introducing a time limit for issuing determinations.3. In the record. Such meetings shall take place on a monthly basis. - In practice. The agenda for such meetings shall cover a review of progress attained.4 Clause 4 .4 . Determinations enter into force immediately. The Engineer shall record the business of management meetings and supply copies of the record to those attending the meeting and to the Employer.Management Meetings It is recommendable to introduce reference to management meetings. and other pertinent topics.” Therefore.Contractor's General Obligations Occasionally. interface with other Contractors. determinations should not be unreasonably withheld or delayed. equipment. safety.3 .DOC . the Contract may specify temporary arrangements for river diversion which have been designed by the Engineer. claims should be dealt with in a timely manner. the Engineer could issue an interim determination before issuing a final one. Time and place of these meetings shall be mutually agreed taking into consideration the subject to be discussed. claims for extras. In general.The Contractor Sub-Clause 4. New Sub-Clause 3. a review of schedules and plants for future activities.” 4.3. .1 .6 . Sub-Clause 3.Determinations Attention is drawn on two issues: As per Sub-Clause 1. there may be an item of Temporary Works for which the Contractor will not be fully responsible. For example. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 26 Sub-Clause 3. taking ac- bfc2-071_fidic user guide_250407_final. material supply. or from an assistant to whom the appropriate authority has been delegated under this Clause.5 . while waiting for additional supporting particulars. responsibilities for any actions to be taken shall be in accordance with the Contract. the designer or other entities are not to issue instructions directly to the Contractor. In these cases. the Sub-Clause may require amendment. 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. in order to avoid delays. engineering. within two working days from the meeting.

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

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

In order to ensure that a properly nominated Contractor’s Representative is available at all times. In such case.Romania.” bfc2-071_fidic user guide_250407_final. The role of the Contractor’s Representative should be highlighted. 925/2006.Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. 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. it is possible to specify (under Sub-Clause 14. as follows: At the end of point (b). Please also note that. this amount should be clearly stated. according to the same Article 96(2) of GD No.4 . under Romanian public procurement regulations. Moreover.DOC . 925/2006).4 with: “The Contractor shall not subcontract a larger value of the Works than the maximum specified in the Appendix to Tender.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. replacement of Subcontractors nominated in the Tender must not lead to modification of the initial technical or financial offer of the Contractor. It is also recommendable to make reference to the key qualifications required at the time of the Tender. typically in the Appendix to Tender. which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96(1) of GD No. Employers might want to define a maximum limit of sub-contracting (for example 50% of the value of the Works). the Contractor must provide the Employer with the relevant subcontracts. However. but also his revocation has to receive the prior consent of the Engineer. Sub-Clause 4. The proposed modification is included in the mandatory particular conditions in Appendix A1. 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. at the signature of the Contract Agreement. 925/2006). On a case-by-case basis. the Engineer’s prior consent for subcontractors might lead to excessive administration. Not only his nomination. if parts of the Works are to be performed by Subcontractors. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 29 mendation is attached in the recommended particular conditions in Appendix A2. Replace the first sentence of Sub-Clause 4.” Subject to the mandatory provisions of the Romanian public procurement regulations. . It is therefore possible to limit such requirement.

The traffic management plan shall indicate what measures will be implemented to manage the traffic while Works are underway.Co-operation In case several contractors are working simultaneously on or near the Site. The traffic management plan shall be approved by the Engineer before the start of the Works on any part of the Site. as approved by the Engineer. the Contractor shall submit to the Engineer a detailed traffic management plan.6 . it is recommendable. It is recommended to include at the end of this Sub-Clause provisions referring to Traffic Management Plans and similar. lighting. the Employer's obligations should be specified. subject to Sub-Clause 2. fence.7 . so that road users and riparian be protected. to payment by bfc2-071_fidic user guide_250407_final. 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). the sequence of signs. “Within 28 days of the signature of the Contract Agreement. to be applied to each section of road with different cross profile characteristics (2. Sub-Clause 4. for transparency reasons. Such criteria might include: Personal situation (no bankruptcy or similar proceedings. 3 or 4 lanes). the Employer shall be entitled. etc. it may not be appropriate for him to provide some of the listed items. In case of default on the part of the Contractor in maintaining or implementing such traffic management plan. - Sub-Clause 4. it is highly desirable that the Specifications describe the resulting constraints and procedures for co-ordination.DOC . In these circumstances. for example.Safety Procedures If the Contractor is sharing occupation of the Site with others. 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.8 . Sub-Clause 4. no final sentence for professional misconduct. . in the form of a sketch accompanied by narrative details.” Approval by the Engineer will be granted only further to the approval by the Road Police and by the Employer’s specialised services. when relevant. to detail on which criteria consent will be given.5.5 . Sub-Clause 4.Assignment of Benefit of Subcontract No need for particular conditions related to this sub-clause. Such plan shall describe. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 30 Furthermore. deviations. etc.Romania.

11 . further paragraphs may be added. this Sub-Clause should establish a link with the documents provided.Unforeseeable Physical Conditions In the case of major sub-surface works.20. Sub-Clause 4.13 . Sub-Clause 4.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works.Romania.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). 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.12 may be amended by deleting sub-paragraph (b) of Sub-Clause 4.17 .Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. .Quality Assurance The wording in the General Conditions imposes the requirement of a quality assurance system in accordance with details specified in the Contract.14 . Sub-Clause 4. Sub-Clause 4. Sub-Clause 4.Avoidance of Interference No need for particular conditions related to this sub-clause.Site Data Under this Sub-Clause. per cent ( cluded in the Contract Price (the balance borne by the Contractor).9 . Sub-Clause 4.15 . Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions.Right of Way and Facilities No need for particular conditions related to this sub-clause.1 and Sub-Clause 4.13. In case a description or an outline of the quality assurance system was submitted as part of the Tender. the Employer's obligations should be specified: see SubClause 4. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 31 the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. Sub-Clause 4. Sub-Clause 4. If this risk is to be shared between the parties.12 and substituting by: “(b) Payment for any such Cost.12 .16 .DOC . subject to their being consistent with applicable laws.Transport of Goods No need for particular conditions related to this sub-clause. If vesting of Contractor's Equipment is required. usually as part of the tender documents.Access Route This Sub-Clause has to be put in relation with Sub-Clause 2.” %) of which shall be inpercent of the Cost shall be Sub-Clause 4. Sub-Clause 4.

For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause.21 .19 . Water and Gas If services are to be available for the Contractor to use. further provisions may be necessary.Protection of the Environment For Works to be executed in particularly environmentally sensible areas.Romania. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers. . the Specification should describe each item which the Employer will provide and/or operate and should specify all necessary details.” Sub-Clause 4.20 .Employer's equipment and Free-Issue Material For this Sub-Clause to apply. in order to clarify aspects such as liability and insurance. 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. With some types of facilities.DOC . subject to Sub-Clause 2. It is advisable to have those materials surveyed as part of the tender. 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. as well as the time and place where they will be made available should be defined.Electricity. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages.5. Furthermore. while detailed information regarding the quality and quantity of free issue materials. for use of Employer’s Equipment or of free issue materials. Sub-Clause 4.” Sub-Clause 4. it is recommendable to refer to the equipment proposed by the Contractor as part of its tender: “The Contractor shall use for the execution of the Works Equipment of not lower quality and capacity than the Equipment proposed in the Tender and listed in Schedule xx to the Contract. In case Employers intend to use this Sub-Clause. bfc2-071_fidic user guide_250407_final. 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). so as to define their condition and suitability for use.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements. the Employer shall be entitled. It might be advisable to extend it to Equipment brought to the Contractor’s site installation. the Specification should give details. Employers might want to include in this Sub-Clause a provision for indemnification in case of default. they should be very careful so as to ensure fair and transparent conditions of competition. Sub-Clause 4. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements. including locations and prices. if this is not located on the Site.18 .

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. but can be signed.Romania. the number and the qualification of the personnel working on Site. bfc2-071_fidic user guide_250407_final. These attachments are part of the works diaries.DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 33 The requirement to provide 6 copies might also be adapted. the materials incorporated into the works. New Sub-Clause 4. the tests completed. as well as verbal orders given to the Contractor. In these circumstances. Such use and access shall be regulated as part of the Contractor’s traffic management plan. 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. the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. the sent samples. 3. it is recommendable to precise that: “For the purposes of this Sub-Clause.23 . if need be. . in the case of a road rehabilitation project. as separate documents.Contractor's Operations on Site No need for particular conditions related to this sub-clause. the supplied materials. actual quantities. The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. the work breaks due to adverse meteorological conditions.24 . it may not be appropriate for him to be responsible for its security.Security of the Site If the Contractor is sharing occupation of the Site with others. For example. 2.22 . the Employer's obligations should be specified. in a format agreed by the Engineer. At the Engineer’s request. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties. supplies accepted for incorporation into the Works.” Sub-Clause 4. Sub-Clause 4. the unforeseen events. Sub-Clause 4. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works.21 [Progress Reports] with subsequent description in the Specifications): “The Contractor shall draw up a works diary for contemporary records. Atmospheric conditions. the working hours.Fossils No need for particular conditions related to this sub-clause. the equipment out of order. during the reported period.

If a nominated Subcontractor is to be required.26 . In case of disagreement on a subject noted in the works diary or attachments. describing the particular circumstances.3 . the Contractor might be required to provide inputs to the Construction Book.Definition of "nominated Subcontractor" No need for particular conditions related to this sub-clause. according to Sub-Clause 4. New Sub-Clause 4.DOC . bfc2-071_fidic user guide_250407_final.2 indicate some of the problems which may have to be overcome.1 . the Contractor selects Subcontractors. The attention of Employers is drawn on the fact that Nominated Subcontractors shall be nominated further to a selection procedure in full accordance with the relevant procurement legislation. Furthermore.2 .Objection to Nomination No need for particular conditions related to this sub-clause. full details should be included in the tender documents.6). Employers might also consider the conclusion of a separate contract. Clause 5 provides for the particular situation whereby the Employer may select a Subcontractor. although the Contractor remains responsible for any act or default of Subcontractors. If the Employer anticipates that a Subcontractor is to be instructed under Clause 13 but is not to be a nominated Subcontractor. Before using this Clause.4 . signed by the Contractor’s Representative and countersigned by the Engineer or his representative. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. 10/1995. 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.As-Built Drawings In order to ensure full compliance with the requirements of Law No. it is advisable to introduce provisions similar with those of the conditions of contract for plant and design-build (Sub-Clause 5. Sub-Clause 5. subject to any constraints specified in the Contract. Sub-Clause 5.Nominated Sub-Contractors In most cases under Sub-Clause 4. Sub-Clause 5.4.4. . The sub-paragraphs of Sub-Clause 5. Clause 5 should be amended.5 Clause 5 .Romania. Such inputs should be clearly defined. Sub-Clause 5.Payments to nominated Subcontractors No need for particular conditions related to this sub-clause. 4. 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”.Evidence of Payments No need for particular conditions related to this sub-clause.3.

3 .” Sub-Clause 6.Labour Laws According to the Procurement Guide. This can be limited with: “The personnel of the Contractor will not be allowed to perform the Works in more than one shift. 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.Romania. .” Sub-Clause 6. his obligations to do so should be specified.Contractor's Superintendence Add the following text at the end of Sub-Clause 6.Staff and Labour Sub-Clause 6. Sub-Clause 6. 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.6 .8 . except for those activities requiring continuous presence on Site. 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.Persons in the Service of Employer No need for particular conditions related to this sub-clause.DOC .7 . Sub-Clause 6.Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause.5 . Sub-Clause 6.Health and Safety Additional health and safety requirements might be necessary depending on the type of works and related risks: railway. 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. such as traffic management.Facilities for Staff and Labour If the Employer will make some accommodation available. this Sub-Clause may be deleted.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents. etc. In some cases.1 . Sub-Clause 6.8: bfc2-071_fidic user guide_250407_final. for example).Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender. Any replacement personnel shall be at least of equivalent qualification and experience.3.6 Clause 6 . chemicals. or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision. Sub-Clause 6.2 .4 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 35 4.

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.9 . The prohibition of “Hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4. Sub-Clause 6. promised or offered by or on behalf of the Contractor or his agent or servant or any other person on his or their behalf or on behalf of any of them in relation to the obtaining or to the execution of this or any other Contract with the Employer shall. barter or otherwise dispose of any alcoholic liquor or drugs.DOC . gratuity.8: “(a) Foreign Staff and Labour The Contractor may import any personnel who are necessary for the execution of the Works. or allow Contractor’s Personnel to do so.Contractor's Personnel No need for particular conditions related to this sub-clause.Romania. or permit or allow importation. reward or bribe given.3.” Sub-Clause 6.Disorderly Conduct No need for particular conditions related to this sub-clause. (c) Arms and Ammunition The Contractor shall not give. import.Plant Materials and Workmanship Sub-Clause 7. gift. the Contractor shall similarly be responsible for making the appropriate arrangements for their return or burial. The Contractor shall be responsible for the return to the place where they were recruited or to their domicile of imported Contractor’s Personnel. sale. (d) Illegal Payments Any commission. give. In the event of the death in the Country of any of these personnel or members of their families. barter or disposal by Contractor’s Personnel.7 Clause 7 . barter or otherwise dispose to any person. Any amount paid shall be deducted from the Contractor's payment due.” Add the following paragraphs at the end of Sub-Clause 6. advantage.8).11 . 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 36 “A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of Romanian language. any arms or ammunition of any kind.1 . Otherwise the Contractor shall have a sufficient number of competent interpreters available on Site during all working hours. in addition to any criminal liability which may be thereby incurred. The Contractor must ensure that these personnel are provided with the required residence visas and work permits. 4. gift.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause.10 . sell. (b) Alcoholic Liquor or Drugs The Contractor shall not. Sub-Clause 6.

If changed or new applicable standards come into force in the Country after the Base Date. the Contractor shall give notice to the Engineer and (if appropriate) submit proposals for compliance. this should be made clear in the Specifications.Rejection No need for particular conditions related to this sub-clause. Laws applicable to the product being produced from the Works.DOC .7 . debris and hazardous waste. the execution and the completed Works shall comply with the Country's technical standards.8 .Remedial Work No need for particular conditions related to this sub-clause. the Contractor's Documents. levied in relation to the dumping of part or all of such materials. unless stated otherwise. and b) the proposals for compliance constitute a variation. Sub-Clause 7.Ownership of Plant and Materials No need for particular conditions related to this sub-clause.9 . be those prevailing when the Works or Section are taken over by the Employer under Clause 10 [Employer's Taking Over].Samples No need for particular conditions related to this sub-clause. if any. Sub-Clause 7.Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. waste piles. and other standards specified in the Specifications.5 .Testing No need for particular conditions related to this sub-clause. All these Laws shall.4 of the conditions of contract for plant and design-build): “The design. applicable to the Works. building. etc).4 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 37 Sub-Clause 7. .Technical Standards and Regulations It is advisable to precise (as per the provisions of Sub-Clause 5. in respect of the Works and each Section. bfc2-071_fidic user guide_250407_final. In the event that: a) the Engineer determines that compliance is required. or defined by the applicable Laws.” New Sub-Clause 7. Sub-Clause 7.Romania.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment. Sub-Clause 7. Sub-Clause 7.3 .2 . construction and environmental Laws.6 . References in the Contract to published standards shall be understood to be references to the edition applicable on the Base Date. Sub-Clause 7.

2 . subject to Sub-Clause 2.8 Clause 8 .Commencement of Work In the second sentence of the first paragraph of Sub-Clause 8.3 . the Contractor should not stop the Works if it is able to work on part of the Works. .7). there is no need to amend the Contract in any way. the expiry of the Time for Completion does not relieve the Contractor from its obligation to perform the Works. 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. in the Appendix to Tender. On the other hand. 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]. under its full responsibility. For example. It is advisable to provide a time-limit for the submission of a revised programme. Failure to comply with this provision shall entitle the Employer. Failure of the Employer to provide access to and possession of the Site in due time might delay the Commencement Date and have serious consequences.1 and Sub-Clause 8.Extension of Time for Completion No need for particular conditions related to this sub-clause.Commencement.1 .DOC .” Sub-Clause 8.Programme It has to be highlighted that the programme is not to be approved by the Engineer and / or the Employer. these stages should be defined as Sections. In case Employers know that the Commencement Date for a part of the Works will be delayed. It is highly recommended not to sign any contract before compliance with SubClause 2. If the Works are to be taken-over in stages.1 “Letter of Acceptance” shall be deleted and substituted with “Contract Agreement”. as the Contract clearly describes how to handle this situation.3. bfc2-071_fidic user guide_250407_final. Sub-Clause 8. Add the following sentences: “Such revised programme shall be submitted within 21 days from the date of the Engineer’s notice.Romania.5. the last sentence defines strong obligations for the Contractor.” 4.1 is ensured. In case the Works are not completed during the Time for Completion.Time for Completion It has to be highlighted that. to payment of damages by the Contractor.4 . delays and Suspension Sub-Clause 8. nor the Employer from its obligation to pay (with the possibility of claiming for delay damages as per Sub-Clause 8.

. bfc2-071_fidic user guide_250407_final.15(b). The amount so withheld shall be paid to the Contractor. Milestone 1 is defined hereafter. if and when the milestone is reached. In case no agreement is reached during such period.DOC . Sub-Clause 8. Employers should however ensure that they will themselves be in a position to meet their obligations under the Contract. (Other items). is controlled through a milestones system. 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 is therefore possible to include a “milestones system” along the example provided below. The four other indicators shall be agreed by the Contractor and the Engineer within 28 days from the submission of the Contractor’s work programme. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. Such indicators however shall be defined based on the Contractor’s work programme. as submitted under the first paragraph of Sub-Clause 8. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 39 Sub-Clause 8.Delays Caused by Authorities No need for particular conditions related to this sub-clause. Compliance of the progress of the Works with the Contractor’s programme. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works. the Employer will be entitled. Whenever a revised programme is being submitted. subject to Clause 2. to withhold from the Interim Payment Certificates an amount equal to 0.5.Romania.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.7 .3. In case the Contractor incurs delays in the achievement of a milestone. the Engineer will define those four indicators. Before using such system. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. This system includes five milestones for monitoring and evaluation of the progress of the Works. the milestones have to be updated in accordance with the provisions above.6 .5 . Milestone 1 is defined as the achievement of the following indicators.Delay Damages Under many legal systems. it may be preferable to define these damages (per day) as the percentage reduction which would be applied to each of these figures. up to a maximum of 10% of the Accepted Contract Amount. 28 days after the Commencement Date: All Contractor key personnel are on Site. If the Accepted Contract Amount is expressed in the Local Currency.3 or revised under the third paragraph of Sub-Clause 8. Sub-Clause 8.05% of the Accepted Contract Amount per day of delay. The Contractor work programme under the present Sub-Clause is submitted.

Sub-Clause 8.Consequences of Suspension No need for particular conditions related to this sub-clause.12 .9 Clause 9 .Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final.10 .Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed. Sub-Clause 8.Resumption of Work No need for particular conditions related to this sub-clause.Prolonged Suspension No need for particular conditions related to this sub-clause. 4. or suspend the actual payment of such damages by the Contractor until the completion of the Works.11 .Incentives for Early Completion Incentives for early completion may be included in the tender documents (although Sub-Clause 13.13 . in duly justified cases. Sub-Clause 8.Tests on Completion Sub-Clause 9. the tests requirements may have to take account of the effect of some parts of the Works being incomplete. Sub-Clause 8. etc.1 . For example. For contracts where completion of the Works by a certain date is of paramount importance.DOC . except in the event of termination by the Employer. waive their rights to delay damages. This tends to restrict the constitution of “black lists” or other similar instruments. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time. for example in case payment of such damages would create strong pressures on the Contractor’s cash flow and would jeopardize the actual completion of the Works. New Sub-Clause 8.5 has to be followed. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price.8 . Sub-Clause 8. . It should also be noted that Employers might.Romania. but also (ii) introduce a bonus for acceleration. it might be envisaged to (i) introduce a higher amount of delay damages.3.Contractor's Obligations The Specification should describe the tests which the Contractor is to carry out before being entitled to a Taking-Over Certificate.9 .). but the Employer’s Claims procedure defined under Sub-Clause 2. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 40 It is recalled that delay damages cannot be simply deducted by Employers from Interim Payment Certificates. If the Works are to be tested and taken-over in stages.2 refers to accelerated completion). It is also mentioned that these delay damages are the only damages due for such default (late completion).

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

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.9 .6 .Contractor to Search No need for particular conditions related to this sub-clause. a major item of Plant or significant part of the Works (as the case may be. .10 .Romania. It is therefore normal that the final payment and final evaluation of the Contract Price comes after such acceptance. if and to the extent that the Works.11 Clause 11 .2 . a Section or a significant part of the Works. whilst his liability for defects affecting the structure subsists during the lifetime of the Works (Article 29 of Law No. Sub-Clause 11.5 . Sub-Clause 11.5 to an extension of the Defects Notification Period for the Works.Right of Access No need for particular conditions related to this sub-clause. Sub-Clause 11. 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 42 4.1 . Sub-Clause 11.3 . 10/1995).DOC . 273/1994.3. Sub-Clause 11.Failure to Remedy Defects No need for particular conditions related to this sub-clause. a Section.Costs of Remedying Defects No need for particular conditions related to this sub-clause. However.Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause.” Sub-Clause 11. Sub-Clause 11.Further Tests No need for particular conditions related to this sub-clause. Sub-Clause 11. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix A1. and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage. a Defects Notification Period shall not be extended by more than two years. Such regulations are reflected in the mandatory particular conditions in Appendix A1. The issue of the Performance Certificate represents the acceptance of the Works.7 . Sub-Clause 11.Defects Liability Sub-Clause 11.Unfulfilled Obligations Under Romanian law.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.Removal of Defective Work No need for particular conditions related to this sub-clause.8 .

2 . without prior agreement as to feasibility or price.1.1 . b) The Contractor may initiate his own proposals under Sub-Clause 13. variations do bfc2-071_fidic user guide_250407_final.DOC . From this point of view.3 (a) (i): replace “10%” with “15%” In Sub-Clause 12. Sub-Clause 12. 4.Measurement and Evaluation Sub-Clause 12.12 Clause 12 . Sub-Clause 13. details should be specified in the tender documents.5%” In Sub-Clause 12.11 .Romania.Omissions No need for particular conditions related to this sub-clause.Evaluation It is advisable to include the following: In Sub-Clause 12.13 Clause 13 .4 .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. which are intended to benefit both Parties.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. it is recommendable to define a schedule of payments.Works to be Measured If any part of the Permanent Works is to be measured according to records of its construction.3 . such “satisfaction” should be properly documented. Sub-Clause 12.3 (a) (iii): replace “1%” with “2%”.3. 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”.2. or c) The Engineer may request a proposal under Sub-Clause 13. seeking prior agreement so as to minimise dispute. For “lump sum” items. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 43 Sub-Clause 11.1 .01%” with “0. 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.3. Sub-Clause 12.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13. . Furthermore.3 (a) (ii): replace “0.3.

Sub-Clause 13.Daywork No need for particular conditions related to this sub-clause. The last sentence of this Sub-Clause is of importance and introduces the principle of “non-retroactivity”. additional works are to be treated with considerable care. variations have to be made or confirmed in writing. including for the period required for its review and approval.Payment in Applicable Currencies No need for particular conditions related to this sub-clause. Sub-Clause 13. For any contract of duration of more than 12 months.Variation Procedure No need for particular conditions related to this sub-clause.Romania.2 . Materials or services other than from a nominated Subcontractor. it is strongly recommended to include a price adjustment formula. as any instruction. Sub-Clause 13.” Sub-Clause 13.” Typically. The Contractor shall not be entitled to any extension of time. In particular. The relevant wording is included in the mandatory particular conditions in Appendix A1.6 . Such formula bfc2-071_fidic user guide_250407_final.8 . The possibility and principles of such adjustments are foreseen in Article 97 of GD No. 34/2006 have to be met. However. calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender.DOC .Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause. Sub-Clause 13. Cost or profit related to such period of review and approval.5 . Under the procurement legislation.3 . 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.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.7 . 925/2006.Provisional Sums It is recommended to modify point (b) (ii): “A sum for overhead charges and profit.4 . Sub-Clause 13. Sub-Clause 13. the conditions of Article 122(i) of GEO No. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 44 not have to be treated like an addendum. a percentage of 5% is being used. 925/2006. .Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No.

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

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

bfc2-071_fidic user guide_250407_final. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations.Issue of Interim Payment Certificates The legal constraints deriving from the use of public funds for the financing of the Contract (Law No. Sub-Clause 14.Payment This Sub-Clause needs to be amended in order to reflect the deletion of Letter of Acceptance. but in case of arithmetical mistakes.7. as well as the fact that issuance of an invoice by the Contractor for each Interim Payment Certificate is mandatory under Romanian regulations. 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. - - Sub-Clause 14.Plant and Materials intended for the Works It is recalled that under Sub-Clause 7.7 . The Contractor is to be notified of the value of the Interim Payment Certificate.5. Such amendments are included in the mandatory particular conditions in Appendix A1. he can also include in his claim the related financing costs.DOC . Furthermore. 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. through the provision of supporting particulars. Interim Payment Certificates are. Although modifications regarding works already certified should remain the exception. Any other claim of the Employer has to be made in accordance with the procedure defined in Sub-Clause 2.5 . The Engineer is due to substantiate its determination. Plant and Materials delivered to the Site become the property of the Employer. It is however preferable that the “weight” of each sub-phase be defined in the tender documents. Sub-Clause 14.Romania. by definition.6 . They do not imply acceptance of any work and might be modified afterwards. It also has to be noted that. 500/2002) and affecting the issuance of Interim Payment Certificates by the Engineer are reflected in the mandatory particular conditions in Appendix A1. such works are considered as finally approved only at the issue of the Performance Certificate. The scope of those provisions is to ensure that an adequate flow of cash is maintained. in case the Employer considers that an undue payment has been made.2). 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. interim. It has to be noted that the Employer is not entitled to modify any Payment Certificate. .

in a form and provided by an entity approved by the Employer.Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. in amounts and currencies equal to the payments to be made. increased by three and a half percentage points.Discharge No need for particular conditions related to this sub-clause. The amount of the bank guarantee shall however be equal to the limit of Retention Money stated in the Appendix to Tender when the total of all certified interim payments (excluding the advance payment and deductions and repayments of retention) exceeds seventy per cent (70%) of the Accepted Contract Amount less Provisional Sums.11 . add the following paragraphs at the end of Sub-Clause 14.10 .9 . In such case. while the Contractor shall be entitled.Statement of Completion No need for particular conditions related to this sub-clause. in force on the first calendar day of the month in which the due date falls. Sub-Clause 14. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money.9. after he obtains such guarantee. annexed to the Particular Conditions: an example form is annexed in Appendix D1. . 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. in accordance with the estimates submitted under SubClause 14. Sub-Clause 14. as specified for the Performance Security in Sub-Clause 4.4 [Schedule of Payments].Romania.DOC . The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 48 Sub-Clause 14. to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money.9: “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee.8 .Application for Final Payment Certificate No need for particular conditions related to this sub-clause. it is useful to indicate that the central bank of the Country is the European Central Bank. 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. when the Taking-Over Certificate has been issued for the Works. Sub-Clause 14. The Contractor may gradually increase the amount of the bank guarantee. Sub-Clause 14.2." The acceptable form(s) of guarantee should be included in the tender documents.12 .Delayed Payment When payments are made in Euro (or EUR). as published in the C series of the Official Journal of the European Communities. bfc2-071_fidic user guide_250407_final.

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

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

Sub-Clause 15. say.2 . 4. with the Instructions to Tenderers specifying the criteria with which the Tenderer should comply. Since the Contractor would then have to arrange his own financing to cover the shortfall between the payments and his outgoings. he (and his financing bank) would probably require some form of security. Moreover. Moreover. guaranteeing payment when due. Such amendments are included in the mandatory particular conditions in Appendix A1. Therefore. annexed to the Particular Conditions: an example form is annexed in Appendix D2. In such cases. that termination of the Contract is a failure. both for the Contractor and for the Employer.7).Romania. less than 1% over the last 6 months will be considered as “abandoning” of the works. 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 may be appropriate for the Employer. so as to allow such negotiations to develop. the notice period should be used to initiate negotiations and remedy measures. organisation of a new tender. in the first place. the last two sentences of the last paragraph of this Sub-Clause should be deleted. it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8.3.4). In real terms. It should be noted. 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. In case this period goes beyond the Time for Completion. unless the later has an enforceable title allowing him to do so. such as an enforceable court decision or a security interest over such items (which is an enforceable title per se). Employers might want to bring a clearer definition of the provisions of letter (b). “Rushing into termination” would in any case be a mistake. The acceptable form(s) of guarantee should be included in the tender documents.Notice to Correct A notice to correct should mention that it is given under the present Sub-Clause and state a reasonable time period for remedial. termination under this Sub-Clause should be used as a last resort. for example.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.1 .15 Clause 15 . Employers would often lose considerable time (including valuation.Termination by Employer Sub-Clause 15. such as. In particular.DOC . when preparing the tender documents. by defining that a minimum (very low) rate of progress. 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 51 14. Items belonging to the Contractor may not be sold by the Employer. the Employer may postpone the termination notice. etc.) and might support significant additional costs in order to complete the Works. .

Termination by Contractor See comments under Sub-Clause 15.3.5 . the advance payment shall be repaid immediately by the Contractor (if not. A Contractor should be aware before giving a notice of termination.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause. that once the Contract is terminated. Sub-Clause 16. Sub-Clause 16.Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause. Employers should obviously avoid putting themselves in one of the situations described.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause. Sub-Clause 16. Obviously. the advance payment guarantee might be called in by the Employer). under the provisions of the Contract.4 .Employer's Entitlement to Termination No need for particular conditions related to this sub-clause.1 .3 . Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix A1. Sub-Clause 15.Suspension and Termination by Contractor Sub-Clause 16.2 .2.” Sub-Clause 15.4 . It might be appropriate to define a time limit for the Contractor to submit its request.3 . up to the completion of the respective Works. payments on termination will usually occur in a difficult situation of conflict.Payment after Termination No need for particular conditions related to this sub-clause. depending on the complexity of the project (for example.Romania.DOC . .Payment on Termination After termination. bfc2-071_fidic user guide_250407_final. 4. as he may consider proper. it cannot be resumed and in most cases a new tender procedure would be necessary.16 Clause 16 . the Employer will be entitled to use so much of the Contractor’s Equipment and Temporary Works which have been deemed to be reserved exclusively for the execution of the Works.2. in accordance with the provisions of Sub-Clause 14. Sub-Clause 15. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 52 It is possible to insert the following text within the last paragraph after the second sentence: “If the Contractor fails to remove his Equipment and Temporary Works within 21 days after receiving the notice. 3 months).

at his own cost.Risk and responsibility Sub-Clause 17.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause. where it can be demonstrated by the Contractor that the accident cannot be partly or wholly attributed to any deficiency in the Contractor’s Traffic Management Plan. arising from any cause whatsoever other than those for which the Employer is liable. 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. New Sub-Clause 17. Sub-Clause 17.3.Contractor's Care of the Works No need for particular conditions related to this sub-clause. Sub-Clause 17.". under road or rail rehabilitation projects.Consequences of Employer's Risks No need for particular conditions related to this sub-clause.DOC . rectify the Loss or damage to the satisfaction of the Engineer.Indemnities No need for particular conditions related to this sub-clause.6. Sub-Clause 17. Sub-Clause 17.Romania. an additional sub-clause may be added: “The Contractor shall take full responsibility for the care of the items detailed below.3 . .4 . the sum referred to in the penultimate sentence shall be ……. Sub-Clause 17.1 .7 If the Contractor is to occupy the Employer's facilities temporarily. the Contractor shall. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 53 4.” bfc2-071_fidic user guide_250407_final.5 . from the respective dates of use or occupation by the Contractor.2 . For example.17 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 17.6 . such as: add paragraph (i) as follows: (i) damage to components of the Employer’s property on the Site and damage done to the Works resulting from any accident involving road users while the public use of the Works is authorised by the Employer.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. 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.

bfc2-071_fidic user guide_250407_final. Sub-Clause 18.1 .Romania.General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance.1 . The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18.2 .2 . Sub-Clause 18. 4. a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure.2 (for Contractor's Equipment.DOC . which includes Subcontractor's equipment). Force Majeure can be proven by other means.19 Clause 19 .Insurance Sub-Clause 18. the tender documents should include details as an annex to the Particular Conditions (so that tenderers can estimate what other insurances they wish to have for their own protection). Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer. which is replaced by the Contract Agreement. such certificate would be irrelevant for Force Majeure occurring in a foreign country. The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms.Notice of Force Majeure It has to be noted that.18 Clause 18 . exceptions and deductibles. limits.Force Majeure Sub-Clause 19. preferably in the form of a copy of each policy. If the Employer is to arrange any of the insurances under this Clause. extent or programme for the execution of the Works and to ensure adequacy of the insurance coverage at all times during the period of the Contract. The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party".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).3.Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause. who is to be the Contractor unless otherwise stated in the Particular Conditions.3 . .4 . despite a frequent opinion.3.Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause.” Sub-Clause 18. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 54 4.Insurance for Works and Contractor's Equipment It is advisable to specify that: “It shall be the responsibility of the insuring Party to notify the insurance company of any change in the nature. Sub-Clause 19. because the Employer may not know the amount or value of these items of equipment. including the conditions. Furthermore.

that something had recently occurred for which an entitlement for time and/or additional payment might be sought. . in turn.3. DABs have in mind that the object of Clause 20.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure".Optional termination.4 . Guid- bfc2-071_fidic user guide_250407_final. Although Sub-Clause 20.DOC . Although the figure of 28 days in which the notice must be served was somewhat arbitrary the objective was to limit the time period wherein a claim must be notified.3 .1 appears to say that any claim notified more than 28 days after the event can be dismissed without consideration.Consequences of Force Majeure No need for particular conditions related to this sub-clause. Accordingly. Sub-Clause 19. Sub-Clause 19. Payment and Release No need for particular conditions related to this sub-clause.7 .Release from Performance under the Law No need for particular conditions related to this sub-clause. Most DAB decisions have allowed a number of claims rejected for late notice to proceed. through the Engineer. The result is that Employers have been significantly disadvantaged in the DAB process by the fact that Engineers.Duty to Minimise Delay No need for particular conditions related to this sub-clause. within four weeks. not to bar meritorious claims. have not ensured that the necessary records are kept. 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. The Engineer shall.5 . Disputes and Arbitration Sub-Clause 20.1 .20 Clause 20 . this is not the way that many DABs are interpreting the clause. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. acting in all good faith.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause. 4. Sub-Clause 19.6 .Claims. The important matter is that the Employer. It is advisable to add at the end of first paragraph of Sub-Clause 19. Sub-Clause 19. 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.Romania.1 is to prevent ambushes and minimise delays to projects. is put on alert.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. Sub-Clause 19. respond within 42 days after receiving a claim or further particulars. have not advised on the merits and have not prepared considered determinations.

would the cost or delay claimed have been reduced if earlier notice had been given? bfc2-071_fidic user guide_250407_final. he should consider the following before rejecting the claim: i. has there been prejudice to the Employer or benefit to the Contractor? In other words. 4. Engineers should consider items (ii) to (iv).1: it has been argued and accepted that if the Contractor has not in fact considered himself entitled to claim. 2. leaving aside Clause 20. Where the Engineer considers that the 28-day notice provision of Clause 20. or should they have been so aware? Is it possible that the Contractor only considered himself entitled to make a claim – as distinct from knowing about the event – within the 4 weeks prior to the notice? Has the timing of the notice caused the Employer or the Engineer any significant prejudice in terms of the ability to mitigate or record the effects of the event? Has the timing of the notice benefited the Contractor or does it seem as if it was intended to benefit the Contractor? Was there communication. consider item (v). other than by way of formal notice? Is it fair and reasonable. Next. to reject the claim without consideration of the merits? vi. 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. . 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. One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. v. 1. vii. If there appears to have been a failure to notify. ix. the Engineer should consider rejecting the claim on its lack of valid basis. then rejection for lack of notice should be considered. then DABs are likely to be sympathetic to the Contractor. taking into account all of the above. ii. Is the event one which.DOC . 5.1 may not have been complied with. good project administration and fairness under the contracts. 3. about the problem.Romania. Consider items (vi) and (vii). If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. then the obligation to notify has not arisen. whether at meetings or otherwise. If the answer to any of these items is yes. iii. DABs are taking notice of the first sentence of Clause 20. If the answer to item (i) is that the event is not capable of being a valid claim. iv. viii. Some events might require some investigation and advice before a contractor decides that he has a claim. If the answer to item (i) is yes.

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

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

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

before so designating an institution in the Appendix to Tender. which is based at 38 Cours Albert 1er. and may be more acceptable to the Parties. If the UNCITRAL (or other non-ICC) arbitration rules are preferred. For major projects tendered internationally. In the absence of specific stipulations as to the number of arbitrators and the place of arbitration. international commercial arbitration has numerous advantages over litigation in national courts.party arbitration clauses require skilful drafting. New Clause 21 Checks and Audits by Romanian and Community Bodies For contracts funded under European Commission funds. multi. 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. an institution to appoint the arbitrators or to administer the arbitration. .7 . and usually need to be prepared on a case-by-case basis. it is desirable that the place of arbitration be situated in a country other than that of the Employer or Contractor.Expiry of Dispute Adjudication Board's Appointment 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 60 of Commerce and Industry uses its own procedural rules. In international contracts. Sub-Clause 20. It may also be necessary to ensure.Romania. Sub-Clause 20.8 . the International Court of Arbitration of the ICC will decide on the number of arbitrators (typically three in any substantial construction dispute) and on the place of arbitration.Failure to Comply with Dispute Adjudication Board Decision No need for particular conditions related to this sub-clause. it is recommended to add a new Clause 21: bfc2-071_fidic user guide_250407_final.DOC . The Rules of Arbitration of the International Chamber of Commerce (the "ICC". that it is prepared to appoint or administer. 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). France) are frequently included in international contracts. that would facilitate the enforcement of an arbitral award in the states of the Parties. It may be considered desirable in some cases for other Parties to be joined into any arbitration between the Parties. Employers are advised to link with the relevant arbitral institutions before defining such conditions. or both. The Contract should include provisions for the resolution by international arbitration of any disputes which are not resolved amicably. 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. thereby creating a multi-party arbitration. 75008 Paris. it may be necessary to designate. While this may be feasible. in the Appendix to Tender.

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

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

1 18.3.2(a) and (b) 14.3.7 1.4 2.3 1.3 & 1.5(b) 13.1.1. 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 1.2.15 18.3 bfc2-071_fidic user guide_250407_final.2 & 20.7 & 14.2 6.DOC .5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix D2.5 8.2 & 1.1.8 14.4 1.1.15(b) 8.4 1.7 13.1.6 14.3 DAB 20. .4 & 1.2 14.3 1.3 1.5(b) and (c) 14.3 1.2.3 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 63 4.3 14.1 4.2(d) 18.2.Romania.

Romania.e. and to take account of those sub-clauses in the General Conditions which mention the Particular Conditions. 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. after approval by the MPF. bfc2-071_fidic user guide_250407_final. it was recognized that.1 The FIDIC Yellow Book Introduction This chapter provides guidance for the preparation of the Particular Conditions of Contract and the Appendix to Tender for works contracts using the FIDIC Conditions of Contract for Plant and Design-Build. The FIDIC General Conditions of Contract were translated into Romanian language in August to November 2006.2 FIDIC Guidance In the preparation of the General Conditions of Contract for Plant and DesignBuild. .DOC . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 64 5 5. 1st Edition 1999. there are some sub-clauses which must necessarily vary to take account of the circumstances relevant to the particular contract. The subclauses which were considered to be applicable to many (but not all) contracts have been included in the General Conditions. It will be necessary to prepare the Particular Conditions for each individual contract. in order to facilitate their incorporation into each contract. and was submitted to the MPF in December 2006. This Guide comprises guidance and proposals for the proposed mandatory and additional particular conditions of contract. The General Conditions and the Particular Conditions will together comprise the Conditions of Contract governing the rights and obligations of the parties. were prepared in October 2006 to January 2007 and was submitted to the MPF in January 2007. i. 5. The Romanian language version of the General Conditions of Contract and the proposed mandatory and additional particular conditions will. the FIDIC Yellow Book. necessary so as to harmonise the contract provisions with the current Romanian legislation. Mandatory and additional particular conditions of contract for the FIDIC Yellow Book.

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

1 1.2 1.1 1.3) Performance Certificate Final Payment Certificate Figure 5-1 Sequence of Principal Events bfc2-071_fidic user guide_250407_final.3.1.9 1. and for EPC/Turnkey Projects.1.1.7 1.7 & 11.3.7 & 14.1.4 & 14.Romania.3.3 & 8.13 Base Date Commencement Date Performance Security Interim Payment Certificate Time for Completion (as extended under 8.6 & 4.6 & 12.4.5 & 10. In order to clarify the sequence of Contract activities.1 1.4) Tests on Completion Taking-Over Certificate Tests after Completion (if any) Defects Notification Period (as extended under 11.3.8 & 11.1 1.1.4.DOC .6. 1. .4 & 9.1.1.2 & 8.3.1.1. FIDIC has published a contracts guide to the use of its Conditions of Contract for Construction.1.3 1.2 1.1 & 13. for Plant and Design-Build.3. The charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Contract.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 66 In addition.1 1.3.3. reference may be made to the charts on the next two pages and to the Sub-Clauses listed below (some SubClause numbers are also stated in the charts).

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

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

lines and levels of reference Third parties Environmental constraints Electricity.Romania.5 Other contractors (and others) on the Site Setting-out points. providing a convenient location for the data which is usually required.1 18 20 Contractor's Representative (name and curriculum vitae) Quality Assurance system Tests on Completion Tests after Completion Insurances Resolution of disputes A design-build contract may constitute a turnkey contract and include design. construction. with the elements completed to the extent of his requirements.4 12.9 9. the scope of which should be de- bfc2-071_fidic user guide_250407_final. 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 E1.1 12. 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.7 6. and include a questionnaire in the Schedules.DOC . that this data is either prescribed by the Employer or inserted by the Tenderer. The Instructions may include matters referred to in some or all of the following Sub-Clauses: 4.2 5. 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. If each Tenderer is to produce a parent company guarantee and/or a tender security.4 9.20 5. but there is no indication.4 5.6 4.7 4.6 7.18 4.1 9. fittings and equipment. The example form in Appendix F2 provides a checklist of the data required.4 13. The Employer may require other data from Tenderers.19 4.14 4.1 12.3 4.1 5. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 69 4. either in the General Conditions or in the example Appendix to Tender. water.2 7. The Employer should prepare the Appendix to Tender.5 5. gas and other services available on the Site Employer's Equipment and free-issue material Criteria for design personnel Contractor's Documents required. based on this example form. The Appendix to Tender Many sub-clauses in the General Conditions make reference to data being contained in the Appendix to Tender. and/or specify the extent of other information which each Tenderer is to include with his Tender. .6 5. fixtures.

Romania.1(c). Under Romanian public procurement regulations. In new Sub-Clause 1.DOC . thought should be given as to the extent of detail which tenderers can realistically be expected to prepare and include in their tenders. In Sub-Clause 1.1.1.3 Particular Conditions Clause-by-Clause Guidance This section includes guidance for the preparation of the particular conditions of contract for the FIDIC Yellow Book. 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 following definitions should be modified: • In Sub-Clause 1. in the face of intense competition.Definitions It will be necessary to amend some of the definitions. 34/2006. the Contractor may be required to operate the Works. ready for operation.1. 5. Understandably. 925/2006). The amendment of such definition is set out in the mandatory particular conditions in Appendix B1.10 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. to incur great expense in preparation of tender designs. the tenderers are often reluctant. .3.1. In addition.1. The extent of detail required should be described in the Instructions to Tenderers. 5.3. either for a few months' trial operation under Sub-Clause 9. 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. Article 94 of GD No. Such definition is set out in the mandatory particular conditions in Appendix B1. such as the extent to which the Works are to be fully equipped.General Provisions Sub-Clause 1. with a clause-by-clause review. due to Romanian legislation in force. the requirements of the Romanian procurement legislation and for clarification of the general conditions. Consideration may be given to offering some remuneration to tenderers if. Note that there can be no description in the documents which will constitute the Contract. 273/1994).1 .3. In Sub-Clause 1. Full consideration should be given to detailed requirements. or for some years' operation. When preparing the Instructions to Tenderers. they have to undertake studies or carry out design work of a conceptual nature.1 Clause 1 .3 the definition of Letter of Acceptance shall be deleted. • • • bfc2-071_fidic user guide_250407_final.1 the definition of Contract shall reflect the deletion of Letter of Acceptance.1. in order to provide a responsive Tender.1 the definition of the "Base Date" may be changed to reflect a particular calendar date. with spare parts and consumables provided for operation (for a specified period). typically by the Employer.

7 "Site".6 the "Foreign Currency" should be indicated.2 . 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.5.5 . 925/2006). decisions.6.4.4 .1 the definition of the "Accepted Contract Amount" shall be modified in order to reflect the deletion of the Letter of Acceptance.1.1. In Sub-Clause 1.2 may be varied.6. Sub-Clause 1. • • • • • • Sub-Clause 1. A proposed amendment is included in the mandatory particular conditions in Appendix B1. as well as the fact that.2 "Country" should be defined as Romania.Law and Language No need for particular conditions related to this sub-clause. the order of precedence shall reflect the deletion of the Letter of Acceptance (Article 94(2) of GD No.Interpretation If the references to "profit" are to be more precisely specified.3 . Such definition is set out in the mandatory particular conditions in Appendix B1. Sub-Clause 1. (Article 95(2) of GD No.1. laws. Such provision is recommended so as to provide a clear reference during implementation.8 "Local Currency" should be defined as RON (Romanian Leu). 273/1994). Sub-Clause 1. In Sub-Clause 1. although applicable in many sub-clauses.4.DOC .” Sub-Clause 1. the latter shall prevail. if during the performance of the Contract. Non-compliance might have serious consequences.Priority of Documents An order of precedence is usually necessary. In Sub-Clause 1. provisions including the expression “Cost plus reasonable profit” require this profit to be one-twentieth (5%) of the respective Cost. 925/2006).3.Romania. Sub-Clause 1. significant components of the Con- bfc2-071_fidic user guide_250407_final. “In these Conditions.Communications Attention is drawn on the importance of the requirements of the first sentence of the last paragraph that. In Sub-Clause 1.1.1. .1.1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 71 • In new Sub-Clause 1. orders and other laws and regulations and by-laws of any legally constituted public authority having the force of law in Romania. in case a conflict is subsequently found among the contract documents In Sub-Clause 1.6. are not repeated in the General Conditions.5 “Applicable Laws” should be defined as all Romanian legislation. in particular when evaluating claims.4. In Sub-Clause 1.11 a definition of the "Final Taking-Over Minutes" shall be included to reflect the process of final taking over of works by a commission to be appointed by the Employer in accordance with Romanian regulations (Article 36 of GD No. ordinances. It is recommendable to integrate as part of the Contract (as documents listed under letter (h) of the present Sub-Clause. certain elements of the Contractor’s technical offer turn out to be noncompliant with the requirements in the Specifications.

Sub-Clause 1.Assignment If the Contract is concluded pursuant to a public procurement procedure. method of works. if all rights to particular items of computer software (for example) are to be assigned to the Employer. in order to reflect the deletion of Letter of Acceptance.6 . if needed. or Operation of the Works is subject to a process license.9 .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.Contract Agreement The first sentence of Sub-Clause 1. Even if the Contract clearly specifies the priority of documents. Sub-Clause 1. traffic management and/or environmental management plans).DOC . in case a Contractor’s programme is included in the Contract documents. - - Additional provisions may be required. it might be recommendable to state that any reference to calendar dates is indicative only. Furthermore.10 . especially if the Contract signature or the Commencement Date occur with delays against initial time schedules. . so as to ensure some enforceability to this proposal. provided that the Contractor remains liable towards the Employer for the performance of any obligations under the works contract. bfc2-071_fidic user guide_250407_final. outline of quality assurance. as it may be considered a means of escaping the mandatory legal provisions on public procurement of works. The provisions should take account of the Applicable Laws. should be introduced prior to the Contract signature.8 . Sub-Clause 1.6 shall be deleted.Care and Supply of Documents No need for particular conditions related to this sub-clause. consistence of these with the tender documents should be checked and corrections. 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.Delayed Drawings or Instructions No need for particular conditions related to this sub-clause. Sub-Clause 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 72 tractor’s proposal (key personnel. The form of Contract Agreement should be included in the tender documents as an annex to the Particular Conditions.Romania. the assignment of the whole or any part thereof by the Contractor (even with the prior agreement of the Employer) is a sensitive issue.7 . 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. An example form is included at the contractual templates in Appendix E2. key equipment.

an additional sub-clause may be added. New Sub-Clause 1. authorisations and/or permits required from relevant national/local authorities shall be obtained by the Contractor. route permits.” Sub-Clause 1. the issuance of the building permit by the relevant authorities might require some time after submission and approval of the Contractor’s design. residence and work permits. permits for radio communication. but are not limited to: Law No. Employers should make reference to such time period so as to avoid claims from the Contractor. it may be desirable for each member to produce a parent company guarantee: an example form is annexed to this document in the templates of guarantees in Appendix E1. The wording of such Sub-clause could be as follows: bfc2-071_fidic user guide_250407_final. and it may have to be approved by the project's financing institutions. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 73 Sub-Clause 1. permits to relocate public utilities.Contractor's Use of Employer's Documents No need for particular conditions related to this sub-clause. Sub-Clause 1. etc. and will not wish to be involved in a dispute between the members of a joint venture. Such permits include inter alia permits for site erection. Within 21 days of the signature of the Contract Agreement. at his own expenses. should be included in the Instructions to Tenderers.11 . which apply prior to the Contract becoming effective. when relevant. detailed requirements for the joint venture may need to be specified. These requirements.3 [Programme]. xxx”. It is also recommended to precise the scope of paragraph (b). traffic diversions. 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. particular regulations to be complied with by the Contractor. providing a single point of contact thereafter.Confidential Details No need for particular conditions related to this sub-clause.13 .Romania. for example with: “Except for the building permit to be provided by the Employer. 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. Under design-build arrangements. Sub-Clause 1. For example.14 . This should be done under the format: “Applicable Laws of particular relevance for the Contract include.Joint and Several Liability For a major contract.15 .12 .Details to be Confidential If confidentiality is required. the Contractor shall submit to the Engineer the detailed planning of the Works. .Compliance with Laws Employers should specify.DOC .

3. In case right of access is to be granted by stages. but the contract documents should be. It is also recommendable to specify what possession of Site implies as regards operation and maintenance of facilities on Site and as regards traffic.Employer's Personnel These provisions should be reflected in the Employer's contracts with any other contractors on the Site. Sub-Clause 2. as much as possible. so as to avoid facilitate access to the market.The Employer Sub-Clause 2. The work to be carried out by these other contractors should be described in the tender documents. bfc2-071_fidic user guide_250407_final. In case right of access and possession is not to be granted exclusively. the required land should be made available by the same Employer. this should be clearly stated.DOC . References to laws and standards should be included for formal reasons.Permits.” 5. 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. However. and particularly in the Employer’s Requirements. the Employer should state this and define the procedure that will be applied as well as the main constraints / parameters. it is good practice to include in tender and then contract documents.23. Employers shall be particularly careful in relation with this sub-clause.Right of Access to the Site If right of access cannot be granted. Sub-Clause 2. 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. The Contractor shall not publish.Romania. or disclose any particulars of the Works in any trade or technical paper or elsewhere without the prior written agreement of the Employer. both early and thereafter exclusively. In case right of access and possession will be granted only for limited sections and/or for limited duration (such as in the case of rail rehabilitation works). permit to be published. except to the extent necessary to carry out his obligations there under or to comply with applicable Laws. and aspects such as co-ordination and safety may need to be specified. all relevant information.3 .2 Clause 2 . with all particulars.2. it could be desirable to define Sections (in the Appendix to Tender) and define in this sub-clause the time for provision of right of access for each Section.2 . in the particular case of temporary diversions specifically required by the Employer (for example in the case of bridge works). Licences or Approvals With reference to paragraph (a). . The Site does not include additional working areas that the Contractor might require. details should be given. as defined under sub-clause 4.1 .

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

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

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

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

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

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

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which also publishes guides to these Uniform Rules. In case the Employer is not prepared to accept another form of security than the one annexed to the Particular Conditions. the Tenderer may propose the Representative. . it is possible to specify (under Sub-Clause 14. If the ruling language is not the same as the language for day to day communications (under Sub-Clause 1. Sub-Clause 4. However. 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. or if for any other reason it is necessary to stipulate that the Contractor's Representative shall be fluent in a particular language. and shall be in the form annexed to the Particular Conditions.3) that Statements have to be signed by the Contractor’s Representative so as to be taken into consideration. if parts of the Works are to be performed by Subcontractors.4). 925/2006). The role of the Contractor’s Representative should be highlighted. at the signature of the Contract Agreement.Contractor's Representative If the Representative is known at the time of submission of the Tender. which is based at 38 Cours Albert 1er. The Tenderer may wish to propose alternatives.4 .Subcontractors The wording in the General Conditions includes the conditions which will usually be applicable. Not only his nomination. In order to ensure that a properly nominated Contractor’s Representative is available at all times.DOC . 925/2006).2 as follows: “The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer. especially if the contract award seems likely to be delayed. but also his revocation has to receive the prior consent of the Engineer. It is also recommendable to make reference to the key qualifications required at the time of tender. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 78 The acceptable form(s) of Performance Security should be included in the tender documents. bfc2-071_fidic user guide_250407_final. France). Moreover. They incorporate the Uniform Rules published by the International Chamber of Commerce (the "ICC". it should amend the second sentence of the second paragraph of Sub-Clause 4. the Contractor must provide the Employer with the relevant subcontracts.Romania. Example forms are annexed to this document in the templates of guarantees in Appendix E1. 75008 Paris.” Sub-Clause 4. annexed to the Particular Conditions. under Romanian public procurement regulations. one of the following sentences may be added.3 . which must comply with the terms of the Tender and shall constitute Schedules to the Contract (Article 96 (1) of GD No.

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

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

Romania. Furthermore.10 .Access Route This Sub-Clause has to be put in relation with Sub-Clause 2. .%) of which shall be included in the Contract Price (the balance percent of the Cost shall be borne by the Contractor).Transport of Goods For a plant contract. Sub-Clause 4. it is recommendable to refer to the equipment proposed by the Contractor as part of its tender: “The Contractor shall use for the execution of the Works Equipment of not lower quality and capacity than the Equipment proposed in the Tender and listed in Schedule xx to the Contract. Sub-Clause 4.” bfc2-071_fidic user guide_250407_final.11 .Avoidance of Interference No need for particular conditions related to this sub-clause. If vesting of Contractor's Equipment is required. Sub-Clause 4.1 and Sub-Clause 4. per cent (…. the Employer's obligations should be specified: see SubClause 4. Sub-Clause 4.15 . 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 . Sub-Clause 4.20. the Sub-Clause may be amended by deleting sub-paragraph (b) of Sub-Clause 4.12 and substituting by: “(b) Payment for any such Cost.14 . It might be advisable to extend it to Equipment brought to the Contractor’s site installation. Sub-Clause 4. Employers are required to make available all necessary relevant data on sub-surface and hydrological conditions. If this risk is to be shared between the parties.DOC . usually as part of the tender documents.Unforeseeable Physical Conditions In the case of major sub-surface works.12 . further paragraphs may be added.17 .16 . if this is not located on the Site.Sufficiency of the Accepted Contract Amount No need for particular conditions related to this sub-clause. alternative arrangements may be appropriate. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 81 Sub-Clause 4.Site Data Under this Sub-Clause.” Sub-Clause 4. the allocation of the risk of sub-surface conditions is an aspect which should be considered when tender documents are being prepared. subject to their being consistent with applicable laws.Contractor's Equipment If the Contractor is not to provide all the Contractor's Equipment necessary to complete the Works. This Sub-Clause refers only to Equipment brought on Site.Right of Way and Facilities No need for particular conditions related to this sub-clause.13.

as well as the time and place where they will be made available should be defined.Electricity. The provisions of the present Sub-Clause should be adapted from one project to another in function of the configuration of the Site. 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.Security of the Site If the Contractor is sharing occupation of the Site with others. the Employer’s Requirements should describe each item which the Employer will provide and/or operate and should specify all necessary details. in order to clarify aspects such as liability and insurance. Water and Gas If services are to be available for the Contractor to use.Progress Reports The progress report is one of the main supporting documents to be submitted together with the Statements.” Sub-Clause 4.5. In case Employers intend to use this Sub-Clause. Employers might want to include in this Sub-Clause a provision for indemnification in case of default.21 . subject to Sub-Clause 2. to payment by the Contractor of the Cost of remedy measures or any higher amount depending on actual damages. they should be very careful so as to ensure fair and transparent conditions of competition. With some types of facilities. so as to define their condition and suitability for use. 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).Employer's equipment and Free-Issue Material For this Sub-Clause to apply. further provisions may be necessary.DOC .Protection of the Environment For Works to be executed in particularly environmentally sensible areas.18 . bfc2-071_fidic user guide_250407_final. The requirement to provide 6 copies might also be adapted. For instance: “In case of default on the part of the Contractor in meeting the requirements of the present Sub-Clause. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 82 Sub-Clause 4. the Employer shall be entitled. it may not be appropriate for him to be responsible for its security.Romania. for use of Employer’s Equipment or of free issue materials. Sub-Clause 4. The exact conditions and prices for Equipment should be detailed and disclosed to all tenderers.20 . the Employer's obligations should be specified. Sub-Clause 4. It is advisable to have those materials surveyed as part of the tender. the Employer’s Requirements should give details. The level of detail to be provided as part of the progress reports might be adapted to the projects requirements.19 .22 . In these circumstances. Sub-Clause 4. including locations and prices. while detailed information regarding the quality and quantity of free issue materials. .

the Contractor has to provide all necessary information for the daily completion of the works diary and attachments. Sub-Clause 4. The information provided is noted in the works diary and attachments. it is recommendable to precise that: “For the purposes of this Sub-Clause. actual quantities. during the reported period. bfc2-071_fidic user guide_250407_final. These attachments are part of the Works diaries. the number and the qualification of the personnel working on Site. the equipment out of order. such as completed Works. 2. the road users and riparian shall not be considered as unauthorised persons in the normal use of the road and access to riparian properties. if need be. “The Contractor shall draw up a works diary for contemporary records.23 .Fossils No need for particular conditions related to this sub-clause. Attachments with detailed data on all elements which are checked on Site and used for the calculation of the payments to the Contractor. the materials incorporated into the works. At the Engineer’s request. Such use and access shall be regulated as part of the Contractor’s traffic management plan. the working hours. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 83 For example. List of any obstructions and other difficulties encountered by the Contractor in the execution of the Works. the Contractor has to inform in writing the Engineer about his remarks within 14 days from the date when the notice has been recorded in the works diary or attachments”. supplies accepted for incorporation into the works. as well as verbal orders given to the Contractor. signed by the Contractor’s Representative and countersigned by the Engineer or his representative.” Sub-Clause 4. The Contractor shall be responsible to ensure that adequate back-up of this information is provided. the work breaks due to adverse meteorological conditions.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 supplied materials. 3.21 [Progress Reports] with subsequent description in the Employer’s Requirements. the unforeseen events. The works diary shall be held on Site and the Contractor’s Representative shall daily record the following information (as a minimum): 1. In case of disagreement on a subject noted in the works diary or attachments.24 .Romania. in a format agreed by the Engineer. but can be signed. Atmospheric conditions. the tests completed.Contractor's Operations on Site No need for particular conditions related to this sub-clause. in the case of a road rehabilitation project.DOC . . the sent samples. as separate documents. New Sub-Clause 4.

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. 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.1 . for the Plant and any necessary c) Making necessary connections to the Plant. Sub-Clause 5.2 . Tenderers should be advised of the extent to which the Employer's outline design is a suggestion or a requirement. equipment. Furthermore. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 84 5. 10/1995 related to the verification of design by duly certified design checker. Sub-Clause 5. Such a design might have been necessary to establish the feasibility of the project. .Design This Clause might be completed with an indication of the schedule for execution and submission of the design. refer to the mandatory particular conditions in Appendix B1.5) Details regarding the as-built documents to be provided (Sub-Clause 5. and/or b) Providing suitable access on the Site.6) Details regarding the operation and maintenance manuals (Sub-Clause 5.Romania.3. while detailed drawings might be produced at a later stage. bfc2-071_fidic user guide_250407_final. as specified elsewhere in the Contract.7). which will not necessarily include (for example) all the technical documents which the Contractor's Personnel will need in order to execute the Works.DOC . taking account of the time necessary to review the different types of drawing.General Design Obligations The Contractor commences by scrutinising the Employer's Requirements. to the place where the Plant is to be erected.2) The extent of training required (Sub-Clause 5. and the submission procedures.5 Clause 5 . the Employer’s Requirements shall define: Whether a review and / or approval process is required (for the purpose of Sub-Clause 5. which of them are required for approval (not just review). The first paragraph of this Sub-Clause should be amended for the purposes of compliance with Article 13 of Law No. For instance. and/or of the possibility of substantial submissions at particular stages of the design-build process.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. For example. which may include an outline design. Different "review periods" may be specified. depending on the part of the works to be designed and on the level of detail.

Design Error No need for particular conditions related to this sub-clause.DOC .7 .Rates of Wages and Conditions of Labour No need for particular conditions related to this sub-clause. Sub-Clause 5. Sub-Clause 5. Sub-Clause 5.2 .Staff and Labour Sub-Clause 6. . for example).Operation and Maintenance Manuals No need for particular conditions related to this sub-clause. Such obligation is deemed to be complied with if the tender documents indicate the relevant institutions wherefrom detailed information as regards the above mentioned regulations can be obtained.3.As-Built Drawings No need for particular conditions related to this sub-clause.6 .Contractor's Undertaking No need for particular conditions related to this sub-clause.5 . Sub-Clause 6. or to restrict them to the times specified by the Tenderer (in order to plan the Engineer's supervision. Sub-Clause 5. Sub-Clause 6.6 Clause 6 . Any replacement personnel shall be at least of equivalent qualification and experience.4 .5 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 85 Sub-Clause 5.Engagement of Staff and Labour It is advisable to link key personnel to be employed with the requirements of the tender documents.Training No need for particular conditions related to this sub-clause.4 .3 .” Sub-Clause 6.3 . The Employer should require Tenderers to indicate in the Tender the fact that obligations related to labour conditions and labour safety were taken into consideration in the preparation of the Tender. Sub-Clause 5.1 . this Sub-Clause may be deleted. Sub-Clause 6.Romania. 5.Technical Standards and Regulations No need for particular conditions related to this sub-clause. for instance: “The Contractor shall employ key personnel as proposed in the Tender and listed in Schedule xx to the Contract. 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. bfc2-071_fidic user guide_250407_final.Working Hours If the Employer does not wish to specify working hours in the Appendix to Tender.Labour Laws According to the Guide.Persons in the Service of Employer No need for particular conditions related to this sub-clause.8 .

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

. debris and hazardous waste. etc). Sub-Clause 7.7 Clause 7 .7 . Sub-Clause 7.3.2 .Royalties It is advisable to specify that: “The Contractor shall also be liable for all payments or compensation. Sub-Clause 7. Sub-Clause 7.Contractor's Personnel No need for particular conditions related to this sub-clause Sub-Clause 6.3 . Sub-Clause 7.10 .4 .Romania.Rejection No need for particular conditions related to this sub-clause. Sub-Clause 7.Inspection In case the Contractor shall cover the costs of testing by the Employer’s Personnel (including testing equipment.Records of Contractor's Personnel and Equipment No need for particular conditions related to this sub-clause Sub-Clause 6.Manner of Execution It is recalled that Materials are things to be supplied or form part of the Permanent Works.5 .9 .Remedial Work No need for particular conditions related to this sub-clause.11 .1 .Disorderly Conduct No need for particular conditions related to this sub-clause 5. 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. levied in relation to the dumping of part or all of such materials.DOC .Plant Materials and Workmanship Sub-Clause 7.Ownership of Plant and Materials No need for particular conditions related to this sub-clause. The prohibition of “hazardous Materials” does not exclude hazardous processes (covered under Sub-Clause 4.” bfc2-071_fidic user guide_250407_final. Any amount paid shall be deducted from the Contractor's payment due.Testing No need for particular conditions related to this sub-clause. if any. this should be made clear in the Employer’s Requirements.8). Sub-Clause 7.8 .6 . waste piles.Samples No need for particular conditions related to this sub-clause.” Sub-Clause 6.

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

the milestones have to be updated in accordance with the provisions above. It is therefore possible to include a “milestones system” along the example provided below. The amount so withheld shall be paid to the Contractor.7 . to withhold from the Interim Payment Certificates an amount equal to 0.Romania. up to a maximum of 10% of the Accepted Contract Amount. Before using such system. as submitted under the first paragraph of Sub-Clause 8. . The four other indicators shall be agreed by the Contractor and the Engineer within 28 days from the submission of the Contractor’s work programme. This system includes five milestones for monitoring and evaluation of the progress of the Works. the damages per day may either be defined as a percentage or be defined as a figure in Local Currency: see Sub-Clause 14. Such indicators however shall be defined based on the Contractor’s work programme. subject to Sub-Clause 2. 28 days after the Commencement Date: All Contractor key personnel are on Site. Any remaining monies so withheld shall be paid upon the issue of the Taking-Over Certificate for the Works.3 or revised under the third paragraph of Sub-Clause 8.6 . the Engineer will define those four indicators.5.DOC . Milestone 1 is defined hereafter. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 89 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. (Other items). Sub-Clause 8. Compliance of the progress of the Works with the Contractor’s programme.05% of the Accepted Contract Amount per day of delay. In case the Contractor incurs delays in the achievement of a milestone.Delay Damages Under many legal systems. the amount of these pre-defined damages must represent a reasonable pre-estimate of the Employer's probable loss in the event of delay.3. If the Accepted Contract Amount is expressed in the Local Currency. If the Accepted Contract Amount is to be quoted as the sum of figures in more than one currency. if and when the milestone is reached. bfc2-071_fidic user guide_250407_final. 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. 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. In case no agreement is reached during such period. Whenever a revised programme is being submitted.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.15(b). Milestone 1 is defined as the achievement of the following indicators.5 has to be followed. The Contractor work programme under the present Sub-Clause is submitted.

This tends to restrict the constitution of “black lists” or other similar instruments.1 . . instrumentation. New Sub-Clause Incentives for early completion may be included in the tender documents (although Sub-Clause 13. The usual practice is to limit the total amount of delay damages at a maximum of 15% of the final Contract Price.Payment for Plant and Materials in Event of Suspension No need for particular conditions related to this sub-clause. the tests requirements may have to take account of the effect of some parts of the Works being incomplete. The wording in the sub-paragraphs includes the conditions which are typically applicable for a plant contract. For contracts where completion of the Works by a certain date is of paramount importance. It may also be appropriate for the Contractor's Proposal to include detailed arrangements. except in the event of termination by the Employer.9 Clause 9 .Tests on Completion Sub-Clause 9. in duly justified cases. For example.12 . 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.DOC . but otherwise may require amendment. it might be envisaged to (i) introduce a higher amount of delay damages. but also (ii) introduce a bonus for acceleration.2 refers to accelerated completion).11 . If the Works are to be tested and taken-over in stages.Romania.8 . etc). or suspend the actual payment of such damages by the Contractor until the completion of the Works.Resumption of Work No need for particular conditions related to this sub-clause. 5. Sub-Clause 8.10 .Consequences of Suspension No need for particular conditions related to this sub-clause 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.Prolonged Suspension No need for particular conditions related to this sub-clause. etc. It should also be noted that Employers might.3. Sub-Clause 8. Sub-Clause 8. In par- bfc2-071_fidic user guide_250407_final. waive their rights to delay damages.Suspension of Work It is highlighted that suspension may be instructed but does not necessarily have to be instructed. Sub-Clause 8. some categories of works should normally be suspended under certain weather conditions (concreting or asphalt works during winter time.9 .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.

5. Unless expressly forbidden by the Law. 925/2006) are reflected in the mandatory particular conditions in Appendix B1. the Sub-Clause should be amended accordingly. minimum acceptable performance criteria should also be specified.2 . GD No. Sub-Clause 10.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. Precise geographical definitions are advisable. He thus becomes responsible for disposing of it. and the Appendix should include a table. Sub-Clause 9. 273/1994). If the product is to be retained by the Contractor. Such regulations are reflected in the mandatory particular conditions in Appendix B1. The role of the Engineer in the taking over commission is not defined. On the other hand.Interference with Tests on Completion No need for particular conditions related to this sub-clause.4 . is to be defined in the Particular Conditions or in the Employer's Requirements.DOC . sub-paragraph (c) refers to trial operation.Taking Over of Parts of the Works The Romanian regulations related to taking-over of parts of the Works (GD No.Romania.Retesting No need for particular conditions related to this sub-clause.Delayed Tests No need for particular conditions related to this sub-clause. 273/1994.10 Clause 10 . it might be recommendable that the Engineer be nominated as representative of the Employer. and entitled to retain the proceeds from selling it. 273/1994.Failure to Pass Tests on Completion If the reduction referred to in the final paragraph. It remains for Employers and Engineers to agree on what exactly means “minor outstanding work and defects which will not substantially affect the use of the Works or Section for their intended purpose”. these stages should to be defined as Sections.Employer's Taking-Over Sub-Clause 10.3 . Sub-Clause 9. so as to define the Time for Completion and delay damages: the table is shown in the example Appendix. during which any product produced by the Works becomes the property of the Employer.2 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 91 ticular.3 . 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No.3. If the Works are to be taken-over in stages. . the issuance of the Taking-Over Certificate is mandatory and therefore may not be presumed. Sub-Clause 10. bfc2-071_fidic user guide_250407_final. The Employer must nominate a taking-over commission (Article 7 of GD No.1 . Sub-Clause 9. in the Appendix to Tender. based on the extent of the failure.

The issue of the Performance Certificate represents the acceptance of the Works. and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage.3. Sub-Clause 11. a Defects Notification Period shall not be extended by more than two years. It is therefore normal that the final payment and final evaluation of the Contract Price) comes after such acceptance. 273/1994.Costs of Remedying Defects No need for particular conditions related to this sub-clause. Sub-Clause 11. a Section or a significant part of the Works.3 . whilst his liability for defects affecting the bfc2-071_fidic user guide_250407_final.Failure to Remedy Defects No need for particular conditions related to this sub-clause.Removal of Defective Work No need for particular conditions related to this sub-clause. Sub-Clause 11.1 .6 . Sub-Clause 11.4 .5 . Such regulations are reflected in the mandatory particular conditions in Appendix B1. Sub-Clause 11. However.11 Clause 11 .10 .5 to an extension of the Defects Notification Period for the Works. the Contractor is liable for the latent defects of the Works during a 10 year period.Right of Access No need for particular conditions related to this sub-clause.Further Tests No need for particular conditions related to this sub-clause. Sub-Clause 11. .” Sub-Clause 11. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 92 Sub-Clause 10.Romania.2 .Completion of Outstanding Work and Remedying Defects No need for particular conditions related to this sub-clause.8 .Unfulfilled Obligations Under Romanian law.Defects Liability Sub-Clause 11.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. Sub-Clause 11. if and to the extent that the Works.7 . 5. Sub-Clause 11.Surfaces Requiring Reinstatement 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 2.9 . a Section.4 .Contractor to Search No need for particular conditions related to this sub-clause. a major item of Plant or significant part of the Works (as the case may be.

with the Employer providing consumables.12 Clause 12 .1. For example. and/or for tenderers to prescribe (in a Schedule of Guarantees.Retesting No need for particular conditions related to this sub-clause. 5. and the minimum acceptable performance criteria should also be specified.11 . or bfc2-071_fidic user guide_250407_final. If other arrangements are envisaged. and/or to define any instrumentation required.Romania.3. although they are critical to a successful outcome.DOC . after taking-over.3. without prior agreement as to feasibility or price b) The Contractor may initiate his own proposals under Sub-Clause 13.Procedure for Tests after Completion The Employer's Requirements should describe the tests he requires. Sub-Clause 12. The provisions in the General Conditions are based upon the Tests after Completion being carried out by the Employer and his operating personnel. these Tests may be the most difficult to specify well.3 . With many types of Works. and the Sub-Clause should be amended accordingly. Sub-Clause 12. probably) the performance criteria which their Plant will achieve.Delayed Tests No need for particular conditions related to this sub-clause.2 .Clearance of Site No need for particular conditions related to this sub-clause.1 . in addition to that included in the Plant. For some types of Works.Tests after Completion Sub-Clause 12. . to verify that the Works fulfil his performance requirements. Such statutory periods of liability are acknowledged in the mandatory particular conditions in Appendix B1. it may be essential to define the physical inputs. 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. Sub-Clause 11. the provisions in FIDIC's Conditions of Contract for EPC/Turnkey Projects are based upon these Tests being carried out by the Contractor. which are intended to benefit both Parties. 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. Sub-Clause 12. 5.4 .2. 10/1995).13 Clause 13 . they should be specified in the Employer's Requirements. It may be appropriate for the Contractor's Proposal to include detailed arrangements.Failure to Pass Tests after Completion If the first part of this Sub-Clause is to apply. personnel and power.Variations and Adjustment Variations can be initiated by any of three ways: a) The Engineer may instruct the variation under Sub-Clause 13. with guidance from the Contractor's staff.

A new paragraph needs to be added at the end of this Sub-Clause reflecting the obligation for the Contractor to comply with Romanian public procurement regulations when purchasing Plant. From this point of view. If a Provisional Sum is likely to be valued under Sub-Clause 13. seeking prior agreement so as to minimise dispute. It is essential to define the scope of each Provisional Sum (in a Schedule.Provisional Sums Although generally inappropriate for this type of contract.2 .” Typically. However. Materials or services other than from a bfc2-071_fidic user guide_250407_final.3 .” Sub-Clause 13.3. - Sub-Clause 13. or to deal with a major uncertainty regarding sub-surface conditions. It is recommended to modify point (b) (ii): “A sum for overhead charges and profit. Sub-Clause 13. calculated as a percentage of these actual amounts by applying the relevant percentage specified in the Appendix to Tender. a Provisional Sum may be required for parts of the Works which are not required to be priced at the risk of the Contractor. 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. additional works are to be treated with considerable care.DOC .Right to Vary Several points have to be noted: Variations are initiated prior to the taking over.Value Engineering It is advisable to specify that: “The Contractor shall be fully responsible for any proposal made under this Sub-Clause.5(b). the percentage should be quoted by tenderers in the Appendix to Tender. the conditions of Article 122 (i) of GEO No.Romania. Cost or profit related to such period of review and approval. variations have to be made or confirmed in writing Under the procurement legislation. variations do not have to be treated like an addendum. The Contractor shall not be entitled to any extension of time. 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. . Sub-Clause 13. Sub-Clause 13. 34/2006 have to be met. In particular.1 . probably). as any instruction.Variation Procedure No need for particular conditions related to this sub-clause.5 .Payment in Applicable Currencies No need for particular conditions related to this sub-clause.4 . a Provisional Sum may be necessary to cover goods which the Employer wants to select. a percentage of 5% is being used. including for the period required for its review and approval. since the defined scope will then be excluded from the other elements of the Accepted Contract Amount.

typically by the National Institute of Statistics. The relevant wording is included in the mandatory particular conditions in Appendix B1. The possibility and principles of such adjustments are foreseen in Article 97 of GD No.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. Such formula 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.” 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. Normally. this type of contract is based on a lump sum price.1 . quoted in the currencies of payment (which may.7 are not subject to this restriction. and tenderers will take account of the interim payment procedures when preparing their tenders. A positive cash flow is clearly of benefit to the Contractor. include the Local Currency). with little or no remeasurement.3. .Adjustment for Changes in Legislation The possibility of such adjustments is foreseen in Article 97 paragraph (3) letter (a) of GD No. 5.14 Clause 14 . but need not. materials or any other matters affecting the execution of the Contract.6 . 925/2006). Sub-Clause 13. in order to remove any ambiguity. For any contract of duration of more than 12 months. 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 95 nominated Subcontractor. rise or fall in the cost of labour. Sub-Clause 13. If the contract is intended to be at fixed rates. 925/2006.8 . Actually the multiplier is calculated for the works performed during month n. The Contractor thus takes the risk of changes in cost arising from his design. it is strongly recommended to include a price adjustment formula. 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. Thus the Contract Price shall not be subject to any adjustment due to inflation.DOC . it is sufficient not to fill in any “table of adjustment data”. Sub-Clause 13. Cases provided by clause 13.Romania.7 .The Contract Price When writing the Particular Conditions. The lump sum price may consist of two or more amounts. 925/2006. However.Daywork No need for particular conditions related to this sub-clause.Contract price and Payment Sub-Clause 14.

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

a simple measurement approach for interim valuations may be appropriate. . It is however preferable that the “weight” of each sub-phase be defined in the tender documents. Plant and Materials delivered to the Site become the property of the Employer.3. 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. details should be added in the Particular Conditions.Schedule of Payments The General Conditions contain provisions for interim payments to the Contractor. In some cases. The figures inserted by the Tenderer in the Schedule of Payments may be compared with his tender programme (if any). In most cases. 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. Disagreements may arise when the work required for a payment milestone is nearly achieved but the balance cannot b completed until some months later. in order to assess whether they are reasonably consistent with each other. 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. If payments are to be specified in a Schedule of Payments. which may be based on a Schedule of Payments. It is important to define such progress by reference to nonambiguous milestones. tenderers would have to price each object. If another basis is to be used for determining interim valuations. the "minimum amount of interim certificates" could be omitted from the Appendix to Tender. this Sub-Clause would apply only for the conditions of contract for plant and design-build. which necessitates careful definition of the payment milestones. if the Works consist of only a few different types of operations.5 . Situations in which payments depend on a rate of achievement estimated by the Engineer without proper substantiation should be avoided. Some objects might also be divided into sub-phases. It should be noted that the Site has a precise definition and this does not necessarily include Contractor’s compound and other installations. 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. or b) The Schedule could be based on actual progress achieved in executing the Works. In case a Statement is not signed by the duly appointed Contractor’s Representative.DOC .Romania. such Statement shall be void and ineffective. and the Schedule would actually make reference to actual progress. Alternatively. Sub-Clause 14.4 .Plant and Materials intended for the Works It is recalled that under Sub-Clause 7.” Sub-Clause 14.7. which can prove unreasonable if the Contractor's progress differs significantly from the expectation on which the Schedule was based.

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

Sub-Clause 14. bfc2-071_fidic user guide_250407_final. 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.Romania. in accordance with the estimates submitted under SubClause 14. The Contractor shall ensure that the guarantee is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects.10 . to a reduction of the amount of the bank guarantee corresponding with the first half of the Retention Money. The Contractor may gradually increase the amount of the bank guarantee. as specified for the Performance Security in Sub-Clause 4.9. Sub-Clause 14. Sub-Clause 14.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.11 .2. while the Contractor shall be entitled. the Engineer shall certify and the Employer shall make payment to the Contractor of the amounts related to Retention Money.4 [Schedule of Payments]. 500/2002) and affecting the issuance of the Final Payment Certificate by the Engineer are reflected in the mandatory particular conditions in Appendix B1. annexed to the Particular Conditions: an example form is annexed in Appendix F1.” The acceptable form(s) of guarantee should be included in the tender documents.13 . add the following paragraphs at the end of Sub-clause 14. when the Taking-Over Certificate has been issued for the Works. in a form and provided by an entity approved by the Employer.12 . in amounts and currencies equal to the payments to be made.9 .Discharge No need for particular conditions related to this sub-clause.Statement of Completion No need for particular conditions related to this sub-clause.9. 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. .Payment of Retention Money In case the Employer agrees not to retain monies but to obtain a corresponding bank guarantee. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 99 Sub-Clause 14.Application for Final Payment Certificate No need for particular conditions related to this sub-clause. after he obtains such guarantee. Sub-Clause 14. In such case.Cessation of Employer's Liability No need for particular conditions related to this sub-clause.14 . “The Contractor may request the payment of retention money against the submission to the Employer of a bank guarantee.

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

His financing bank's requirement would then affect his attitude in contract negotiations. The following Sub-Clause may be added. Moreover. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 101 tor's rights are very restricted. Items belonging to the Contractor may not be sold by the Employer. It should be noted. 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. organisation of a new tender. Sub-Clause 15.DOC . such as an enforceable court decision or a security interest over such items (which is an enforceable title per se). although he would probably be unable or unwilling to provide finance from his own resources. termination under this Sub-Clause should be used as a last resort. that termination of the Contract is a failure. In particular. In real terms. They might well require the Employer to make interim payments. when preparing the tender documents. The acceptable form(s) of guarantee should be included in the tender documents. Such amendments are included in the mandatory particular conditions in Appendix B1. “Rushing into termination” would in any case be a mistake. Alternatively. It may be appropriate for the Employer. it should be stated that it does not prejudice any right of the Employer (at least under Sub-Clause 8.Termination by Employer Sub-Clause 15.Romania. unless the later has an enforceable title allowing him to do so. Moreover. In case this period goes beyond the Time for Completion. 5. In such cases. he (and his financing bank) would probably require some form of security. Employers would often lose considerable time (including valuation. Therefore. etc.Termination by Employer This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law. the Contractor may be prepared to initiate financing arrangements and retain responsibility for them. the notice period should be used to initiate negotiations and remedy measures. These banks may prefer the Contract to be based upon FIDIC's Conditions of Contract for EPC/Turnkey Projects. the Employer may postpone the termination notice. the fact that the Contractor is in bfc2-071_fidic user guide_250407_final. both for the Contractor and for the Employer.2 . guaranteeing payment when due.3.15 Clause 15 . . in the first place.7). so as to allow such negotiations to develop. annexed to the Particular Conditions: an example form is annexed to this document.1 .Notice to Correct A notice to correct should mention that it is given under the present Sub-Clause and state a reasonable time period for remedial. to anticipate the latter requirement by undertaking to provide a guarantee for the element of payment which the Contractor is to receive when the Works are complete. although a large proportion of the Contract Price might be withheld until the Works are complete. the last two sentences of the last paragraph of this Sub-Clause should be deleted. as Annex G.

3 . Sub-Clause 16. such as. the Employer will be entitled to use so much of the Contractor’s Equipment and Temporary Works which have been deemed to be reserved exclusively for the execution of the Works.Valuation at Date of Termination It is advisable to define a time limit for the Engineer’s activities under this SubClause.Employer's Entitlement to Termination No need for particular conditions related to this sub-clause. in accordance with the provisions of Sub-Clause 14.1 .5 . say. the advance payment guarantee might be called in by the Employer). bfc2-071_fidic user guide_250407_final.Payment after Termination No need for particular conditions related to this sub-clause.” Sub-Clause 15. less than 1% over the last 6 months will be considered as “abandoning” of the works. for example.16 Suspension and Termination by Contractor Sub-Clause 16. by defining that a minimum (very low) rate of progress. 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.DOC .Payment on Termination After termination.2.Cessation of Work and Removal of Contractor's Equipment No need for particular conditions related to this sub-clause.Termination by Contractor See our comments under Sub-Clause 15. Sub-Clause 15. Sub-Clause 15.Contractor's Entitlement to Suspend Work No need for particular conditions related to this sub-clause.4 .3 . Sub-Clause 16. the advance payment shall be repaid immediately by the Contractor (if not. up to the completion of the respective Works. depending on the complexity of the project (for example. as he may consider proper. Sub-Clause 16. .2 Amendments to this Sub-Clause are included in the mandatory particular conditions in Appendix B1. it cannot be resumed and in most cases a new tender procedure would be necessary.4 . 5.A Contractor should be aware before giving a notice of termination that once the Contract is terminated.Romania. Employers might want to bring a clearer definition of the provisions of letter (b). under the provisions of the Contract. It is possible to insert the following text within the last paragraph after the second sentence: “If the Contractor fails to remove his Equipment and Temporary Works within 21 days after receiving the notice.2 . Employers should obviously avoid putting themselves in one of the situations described.3. 3 months).

7 If the Contractor is to occupy the Employer's facilities temporarily.Indemnities No need for particular conditions related to this sub-clause. 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. 5.5 . .1 . New Sub-Clause 17. where it can be demonstrated by the Contractor that the accident cannot be partly or wholly attributed to any deficiency in the Contractor’s Traffic Management Plan. It might be appropriate to define a time limit for the Contractor to submit its request. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 103 Obviously. 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. Sub-Clause 17. under road or rail rehabilitation projects. For example.Contractor's Care of the Works No need for particular conditions related to this sub-clause.Employer's Risks Employers might want to adapt the definition of risks in accordance with the specifics of each project. 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. Sub-Clause 17.4 . payments on termination will usually occur in a difficult situation of conflict. Sub-Clause 17. Sub-Clause 17. “The Contractor shall take full responsibility for the care of the items detailed below.6.Intellectual and Industrial Property Rights No need for particular conditions related to this sub-clause. an additional sub-clause may be added.6 . from the respective dates of use or occupation by the Contractor.17 Risk and responsibility Sub-Clause 17.3 .DOC .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 17.3.2 . the sum referred to in the penultimate sentence shall be ……". Sub-Clause 17.Romania.Consequences of Employer's Risks No need for particular conditions related to this sub-clause.

including the conditions. If the Employer is to arrange any of the insurances under this Clause. rectify the Loss or damage to the satisfaction of the Engineer. Insurances so provided by the Contractor are to be consistent with the general terms agreed with the Employer. 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).Insurance for Contractor's Personnel No need for particular conditions related to this sub-clause.Romania. which is replaced by the Contract Agreement. which includes Subcontractor's equipment).2 . extent or programme for the execution of the Works and to ensure adequacy of the insurance coverage at all times during the period of the Contract. The following sentence may be included in the Particular Conditions. Sub-Clause 18.3.2 (for Contractor's Equipment. at his own cost. arising from any cause whatsoever other than those for which the Employer is liable. the Contractor shall. The Instructions to Tenderers may therefore require tenderers to provide details of the proposed terms. preferably in the form of a copy of each policy. because the Employer may not know the amount or value of these items of equipment.18 Clause 18 . .DOC .Insurance for Works and Contractor's Equipment It is advisable to specify that: “It shall be the responsibility of the insuring Party to notify the insurance company of any change in the nature.3 . exceptions and deductibles. New Sub-Clause If the Employer requires the additional protection of design insurance. 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. Sub-Clause 18. who is to be the Contractor unless otherwise stated in the Particular Conditions.4 .Insurance against Injury to Persons and Damage to Property No need for particular conditions related to this sub-clause.Insurance The wording in the General Conditions describes the insurances which are to be arranged by the "insuring Party". an additional sub-clause may be added. The Employer may find it difficult to effect the insurances described in the third paragraph of Sub-Clause 18. bfc2-071_fidic user guide_250407_final. Sub-Clause 18. limits.” Sub-Clause 18.1 .General Requirements for Insurances This Sub-Clause needs to be modified to reflect the deletion of the Letter of Acceptance.” 5.

4 .3. Force Majeure can be proven by other means. Payment and Release No need for particular conditions related to this sub-clause. the Employer or the Engineer would be compromised in responding to or taking damage-limitation measures associated with the event or circumstance. Furthermore.6 . within four weeks. It is advisable to add at the end of first paragraph of Sub-Clause 19.19 Clause 19 . The notice of occurrence of Force Majeure should be accompanied by appropriate supporting documentation. 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.7 . Sub-Clause 19. Sub-Clause 19. such certificate would be irrelevant for Force Majeure occurring in a foreign country.Release from Performance under the Law No need for particular conditions related to this sub-clause.1 . that something had recently occurred for which an entitlement for time and/or additional payment might be sought.Force Majeure Affecting Subcontractor No need for particular conditions related to this sub-clause. Sub-Clause 19.Duty to Minimise Delay No need for particular conditions related to this sub-clause.Notice of Force Majeure It has to be noted that. 5.2 the following: "and shall be accompanied by appropriate documentation evidencing the occurrence of Force Majeure". Accordingly.Force Majeure Sub-Clause 19. Sub-Clause 19.Contractor's Claims This Sub-Clause defines the procedure applicable for notification and treatment of Contractor’s claims. Sub-Clause 19.3.Romania. despite a frequent opinion.3 .5 . through the Engineer.1 . a certificate issued by the relevant Chamber of Commerce is not necessarily required (even in Romania) to support the occurrence of Force Majeure.DOC .2 .20 Clause 20 -Claims.Optional termination.Consequences of Force Majeure No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final. Sub-Clause 19. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 105 5.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). Disputes and Arbitration Sub-Clause 20. 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. is put on alert.

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

(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. whilst not discouraging the Parties from reaching agreement on dis- bfc2-071_fidic user guide_250407_final.2. Consider item (viii). Advise whether: (a) The claim may reasonably be rejected for lack of notice. then the obligation to notify has not arisen. 925/2006). Employers should choose between these possibilities having regard to: Contract complexity.Romania. then rejection for lack of notice should be considered. Some events might require some investigation and advice before a contractor decides that he has a claim. the Contract should include the provisions under Clause 20 which. 8. If there appears to have been a failure to notify. If the issue is raised at meetings or in general correspondence in due time. Sub-Clause 20. DABs do not insist that the notice is formal. Promptly upon receipt of a claim and before rejecting a claim on notice grounds. then this is likely to be treated as adequate notice. in particular. 7. Finally. setting out its responses to the above questions. Unless the Engineer (although appointed by the Employer) is to make the prearbitral decisions under this Clause 20. 5. would the cost or delay claimed have been reduced if earlier notice had been given? 6.5 or in time and deducted from any cost or time determined. has there been prejudice to the Employer or benefit to the Contractor? In other words. There are two basic possibilities: Appointment of an “ad-hoc” DAB pre-arbitral decision by the Engineer. in accordance with the alternative option described below. Contract size. Extent of activities off-site. the Engineer should report to the Employer on its proposed action. . 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.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. 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.DOC . consider point (ix) and.2 . One DAB decided that the “circumstance” had not arisen until after a reasonable time for investigation. Consider items (vi) and (vii). If it is probable that the Contractor would have considered himself entitled to claim more than 4 weeks before the notice. whether any prejudice to the Employer could be evaluated in financial terms under Sub-Clause.

who acts as the sole member of the DAB. and the Dispute Adjudication Agreement. This alternative. DAB is recommended for contracts of more than 5 Million Euro and DAB of 3 members for contracts of more than 100 Million Euro.1(a). as appropriate to the arrangement adopted. Before the Contract is entered into. Under either of these alternative forms of Dispute Adjudication Agreement.2 and 20.3.2. Typically. for certain types of project.4 together with the Appendix and Annex to the General Conditions. where it would be appropriate for the DAB to visit the Site on a regular basis. However. taking account of its size. the Engineer may make these pre-arbitral decisions. if this authority has been delegated in accordance with the example wording in the Appendix to Tender. the Parties' confidence in the agreed individual(s) who will serve on the DAB.2 envisages appointment of the DAB after a Party gives notice of its intention to refer a dispute to a DAB. should be amended to comply with corresponding wording contained in the FIDIC Conditions of Contract for Construction. Therefore. it is essential that candidates for this position are not imposed by either Party on the other Party. Alternatively. amongst other things. 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. each individual person is referred to as a Member. which has been the Engineer's traditional role in common law countries. if the individual is selected under SubClause 20. . and that. or (b) A DAB of three persons. duration and the fields of expertise which will be involved. The appointment of the DAB may be facilitated by including an agreed list of potential members in the Contract: in a Schedule. In this case Sub-Clauses 20. may be appropriate if the Engineer is an independent professional consulting engineer with the experience and resources required for the administration of all aspects of the contract. Sub-Clause 20. allow them to refer contentious matters to an impartial dispute adjudication board. the selection is made by a wholly impartial entity. The Employer should recognise that. the bfc2-071_fidic user guide_250407_final. 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. it may be decided to retain the services of a permanent DAB. The adjudication procedure depends for its success on. Both of these forms incorporate (by reference) the General Conditions of Dispute Adjudication Agreement.Romania. each of whom has entered into a tripartite agreement with both Parties. although the Engineer generally acts for the Employer as specified in Sub-Clause 3. particularly those involving extensive work on Site. FIDIC is prepared to perform this role. Sub-Clause 20. which are included as the Appendix to the General Conditions because they are also referred to in Sub-Clause 20. The form of this tripartite agreement could be one of the two alternatives shown at the end of this publication.DOC .

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

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

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

2 14.2 & 1.3 & 1.1.2(d) 18. All invoices shall be accompanied by a brief description of activities performed during the relevant period.7 1.3 1.3 14.1.4 2. with a copy to the Employer.1.3 Data bfc2-071_fidic user guide_250407_final.4 & 1.6 14.3 1.2.7 13.1 4.2.1.2(a) and (b) 14.5 Guidance for Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2. as well as the per diem rate. 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 1.5(b) 13.3 DAB 20.5 8.2.1 18. 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.15(b) 8.7 & 14.DOC .” Replace third. 5.Romania. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 112 “The daily fee. invoices for his/her daily fees and expenses monthly.2 & 20.4 1.5(b) and (c) 14.3 1.8 14. The Employer shall then pay the Contractor in accordance with the Contract".1.15 18. shall be as specified in the Dispute Adjudication Agreement.3 1.3.4 1.3. fourth and fifth paragraphs by: “The Member shall submit to the Contractor.2 6.

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

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

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

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

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6.3

Clause-by-Clause Guidance

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

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

1.1.14

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1 . radiation or radioactivity. Sub-Clause 1.DOC . 10/1995). including any design and the remedying of defects. . 6. the Site must be handed over by the Employer to the Contractor on the Commencement Date. The term "Works" is intended to cover all the obligations of the Contractor.1.5 . which occurs when the signed Agreement has been returned by the Employer to the Contractor (see also Sub-Clause 1.2 . Sub-Clause 1.Interpretation No need for particular conditions related to this sub-clause.Romania.Priority of Documents No need for particular conditions related to this sub-clause.The Employer Sub-Clause 2.4 .1.Law No need for particular conditions related to this sub-clause.2 Clause 2 . refer to the mandatory particular conditions in Appendix D. Any arbitration will be conducted in the specified language.Provision of Site Unless the Parties have agreed otherwise." bfc2-071_fidic user guide_250407_final. This is 14 days after the Contract has come into effect. Sub-Clause 1. this Sub-Clause could be limited by the addition at the end of the words: ". Sub-Clause 2. if for any reason. Sub-Clause 1.Permits and Licences A new paragraph should be added reflecting the obligation for the Employer to obtain the construction permit for the execution of the Works (Article 21 of Law No. On the other hand. explosives. disorder. except as may be attributable to the Contractor's use of such munitions.3.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. Otherwise there is no "Ruling Language". hurricane.19 “Works”. If the law of the Contract is not the law of the Country.1 should be changed in the Particular Conditions. Sub-Clause 1. 1. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 117 c) Riot.6 . then Sub-Clause 6. permits etc may also be required from places other than the Country.. strike or lockout by persons other than the Contractor's personnel and other employees d) Munitions of war. explosive materials. ionising radiation or contamination by radioactivity.3 .. commotion. and e) Natural catastrophes such as earthquake.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 . typhoon or volcanic activity. in the Country but not elsewhere.

6. the Employer's representative acts for and in the interests of the Employer.Employer's Instructions No need for particular conditions related to this sub-clause Sub-Clause 2. bfc2-071_fidic user guide_250407_final.Romania.1 and the authorised individual should be named in the Appendix.5. There is no dual role or duty to be impartial.3. If a more specific set of standards could be referred to for a particular project. This is achieved by Sub-Clause 3. then an amendment in the Particular Conditions would be desirable. 6.Contractor's Representative No need for particular conditions related to this sub-clause.1.2 with the following: "The Employer's Representative shall exercise in a fair and impartial manner the powers of the Employer under or in connection with the following Sub-Clauses: 1.3 Clause 3 .1 to 11.3 . 4. 9. he should be careful not to exercise such powers himself in order to avoid the risk of conflicting instructions.1.General Obligations Most contracts do not specify the exact standard required for each element of the Works. so some benchmark standard is needed with which the Contractor is to comply.1. 8.Approvals The term "approval" is only used in the Conditions in relation to the performance security at Sub-Clause 4.3. 5. for contracts of relatively higher complexity." To the extent that the Employer has delegated powers to an Employer's representative. 10. 6.3. The Sub-Clause is intended to prevent argument.2 . then the following words could be used in the Particular Conditions: "Replace the final sentence of Sub-Clause 3. Sub-Clause 4. If an impartial Employer's Representative is required with a role similar to the traditional Engineer.The Contractor Sub-Clause 4.4 . value or duration.3. It is important that risks such as those of poor workmanship or Contractor's design are not transferred to the Employer unintentionally. it is recommendable that Employers require more extensive professional assistance and their consultant should have clearly established delegated powers. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 118 Sub-Clause 2. 11.2.2. so as to introduce the requirements of Law No.1.1. In addition. 13. 7.3.2. . decisions.1 .1. 4. 2. 11.3. 10.4 and insurances at Sub-Clause 14. 12. 10. etc.DOC . 9.2 and 14.4 Clause 4 . 10/1995 related to the verification of the proper performance of the Works through qualified persons appointed by the Employer.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. Once appointed. Sub-Clause 3.2.2 should be entirely deleted and replaced with the wording provided in the mandatory particular conditions (Appendix C).8.

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

Employer's Liabilities This Sub-Clause gathers together in one place the grounds for extension of time under Sub-Clause 7. Sub-Clause 7. There is no time or claim for bad weather although this could be adjusted in the Particular Conditions if so required.Programme The Appendix should stipulate any particular requirements as to the form and level of detail of programme to be submitted. those should be introduced in the Particular Conditions.1 caused critical delay to the Works and it is fair and reasonable to grant an extension of time. . Where Contractor's design is required. 6.8 Clause 8 .DOC .4 .Late Completion There is a maximum amount which the Contractor is liable to pay for late completion specified in the Appendix.Taking-Over Sub-Clause 8.3 . Sub-Clause 7. provided that the intended purposes are defined in the Contract.Extension of Time The test for entitlement to an extension of time is whether it is appropriate. 6.3.Employer's Liabilities Sub-Clause 6.7 Clause 7 .1 . 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. 6. 10% of the sum stated in the Agreement is suggested. The Employer must therefore make clear in the parts of the Specification that impose design obligations. If necessary.Time for Completion Sub-Clause 7.2 . Sub-Clause 7.Execution of the Works There is no provision for sections and for the different Times for Completion by sections. If a party wishes to protect the intellectual property in his design. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 120 The Contractor will have an absolute obligation to ensure that the parts of the Works designed by him are fit for their purpose.6 Clause 6 .3. bfc2-071_fidic user guide_250407_final.4.Completion No need for particular conditions related to this sub-clause. This means that if an event under Sub-Clause 6.3 contributed to the delay.3 and the grounds for claims under Sub-Clause 10. the Employer should do so.3.1 . the Appendix could stipulate that the programme should show the dates on which it is intended to prepare and submit drawings. the intended purposes of the part of the Works to be designed by the Contractor. etc.Romania. This should be done even where this seems obvious in order to avoid argument about whether an intended purpose is defined or not.1 . provision must be made in the Particular Conditions.

6.DOC .Romania. In line with normal practice.3. the Employer may notify the Contractor of defects.1 . The liability of the Contractor for defects will not normally end with the expiry of the period stated in the Appendix. 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.Right to Vary Variation is defined to include any change to the Specification or Drawings included in the Contract. The proposed modification is included in the mandatory particular conditions in Appendix C. Once the Works are ready to be used for their intended purpose.1 .normally 12 months . If he fails to do so. The definition of Works is broad enough to include any such tests. The Employer may also notify defects at any time prior to takingover.Variations and Claims Sub-Clause 10.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. .2 . If any tests are required to be completed prior to taking-over. The Contractor must remedy such defects within a reasonable time. The Employer must nominate a taking-over commission (Article 7 of GD No. the defect represents a breach of contract for which the Contractor is liable in damages. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 121 Sub-Clause 8. these should be specified in the Specification.10 Clause 10 . provision should be made in the Particular Conditions.from the date of taking-over.Remedying Effects Sub-Clause 9. If the Employer requires a change to part of the Works bfc2-071_fidic user guide_250407_final. Such amendment is included in the mandatory particular conditions in Appendix C. notified by the Employer.3. Although he is then no longer obliged to return to Site to remedy defects.2 . This liability remains for as long as Romanian law stipulates.” Sub-Clause 9.9 Clause 9 . 273/1994). the Employer may employ others for that purpose at the Contractor's cost.Uncovering and Testing No need for particular conditions related to this sub-clause. There is no defined Defects Liability Period but during the period . it is not envisaged that the Works need be 100% complete before the Employer may take over. There is no provision for taking-over of only parts of the Works but if this is required. either apparent or latent. 273/1994) which shall issue and sign taking-over minutes upon completion of Works (Article 15 of GD No. the notice should be given. 273/1994.Remedying Effects This Sub-Clause shall be modified in order to include the obligation for the Contractor to remedy any defects. 6.

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

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

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Lump sum price

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

Lump sum price with schedule of rates

Lump sum price with bill of quantities

Remeasurement with bill of quantities

Cost reimbursable

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

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

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

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14. bfc2-071_fidic user guide_250407_final.4 . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 125 mination takes place. This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law. the Contractor may suspend all or part of his work. 6. The Contractor must use his right to terminate within 21 days or lose it. Sub-Clause 12. By specifying the damages payable to the innocent party for the defaults leading to the termination.Risk and Responsibility Sub-Clause 13.13 Clause 13 . Notice must be given at once. events must prevent performance of an obligation. The Employer's costs in obtaining a replacement contractor will generally be higher than the Contractor's loss of profit.Contractor's Care of the Works Although the Contractor is responsible for the Works prior to taking-over. the Employer may take over and use the Contractor's Equipment to complete the Works.DOC .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.3 . Sub-Clause 13. Reference to the applicable law would be necessary. See also the definition at Sub-Clause 1. which must refer to Sub-Clause 12. Sub-Clause 12. refer to the mandatory particular conditions provided in Appendix C. the Employer will be obliged to agree terms with the Contractor for the retention of such equipment. If Contractor's Equipment is essential for the safety or stability of the Works. 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. however. Sub-Clause 12.2.3. 7 days after the Employer's receipt of a default notice. much delay. This is to prevent a party abusing a right to terminate in his dealings with the other party for the remainder of the project. 21 days later the option to terminate arises if the Employer persists with non-payment or other default.1. This Sub-Clause could be amended in order to provide for a clear IV degree termination clause (“pact comisoriu de gradul IV”) under Romanian law. Care should be taken. 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. . refer to the mandatory particular conditions provided in Appendix C. complication and scope for dispute are avoided.1 .Default by Employer This provision provides the Contractor's main remedy for non-payment.2 .Force Majeure To qualify as Force Majeure.Romania.2 .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.

It should be noted that in the event of the Employer's failure to insure. effect insurance in the joint names of the Parties of the types.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.3 . prior to the Commencement Date. in the amounts and with the exclusions stipulated in the Appendix.Extent of Cover The Employer should set out his precise requirements in the Appendix. Any requirements for insurance after the date of the Employer's notice under Sub-Clause 8.2. See also Clause 13. in view of the costs involved in arbitration. Sub-Clause 14. the Contractor may give notice under Sub-Clause 12. public liability insurance would normally be mandatory. The Employer shall provide the Contractor with evidence that any required policy is in force and that the premiums have been paid.15 Clause 15 . Delays will inevitably occur if the parties initiate the procedure to appoint an adjudicator only when a dispute has arisen. Sub-Clause 14. or arising from taking-over parts of the Works.2 .3. any extra cost of a truly impartial adjudicator is a recommended investment." Sub-Clauses 14.1 .Insurance Sub-Clause 14. should be covered by Particular Conditions.14 Clause 14 . 6.DOC . even of minor disputes.1: • "Replace the text of Sub-Clause 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 126 6.1 .Romania. tenderers should generally be asked to submit details of their insurance cover with their tenders.Arrangements No need for particular conditions related to this sub-clause. bfc2-071_fidic user guide_250407_final. 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.3. . Care should be taken about whether an adjudicator should be local or from a neutral country.1 with the following: "The Employer shall.2. If the Employer wishes to take out the insurances instead of the Contractor.Resolution of Disputes Sub-Clause 15. Third Party.2 and 14. As smaller contracts are likely to fall within tenderers' standing Contractors' All Risk (CAR) insurance policies. However. Although the adjudicator should be impartial. the following should be used as a Particular Condition in place of Sub-Clause 14. 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.Failure to Insure No need for particular conditions related to this sub-clause.3 should be deleted if the Employer takes out the insurance.

3 Sub-Clause 1.2 11.4 5. 6. including the extent to which any design proposals are to be submitted with the tender.5 10. for example because specifications have been subject to revisions. bfc2-071_fidic user guide_250407_final. Sub-Clause 15.1 & 11. . If none.Notice of Dissatisfaction No need for particular conditions related to this sub-clause. delete the reference.3 .1.1. The Specification should set out in clear terms any design that the Contractor is required to undertake.DOC .1 3. Sub-Clause 15. The Rules of arbitration should be stipulated in the Appendix. 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.4 Guidance for the Appendix to Tender A template for the Appendix to Tender is shown in Appendix F2.8 14. the reference to the Contractor's tendered design should be deleted.5 2. A complete list of Drawings is always desirable and could be attached on a separate sheet.4 1.2 4.Dayworks Valuation of the Works Materials and Plant Retention Currency of Payment Rate of Interest Insurances Arbitration Rules 9. If there is no bill of quantities. if required.1 15.1 3.Arbitration Arbitration may not be commenced unless the dispute has first been the subject of adjudication. Following issues shall be covered by the Appendix: Item Contract Documents Time for Completion Law of the Contract Language Provision of Site Authorised Person Employer's Representative Performance Security Contractor's Design Programme Amount Payable due to Failure to Complete Period for Notifying Works Variation Procedure .1 11.Romania.4 Data Document identification is necessary to avoid any possible doubt. by an arbitrator.7 11.3 11.2 11.2 7.2 .9 1.1 7.1 1.

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

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

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

modified for particular requirements of Romanian legislation.1 FIDIC Red and Yellow Books This section presents the following templates for contractual issues for the FIDIC red and yellow books: • • • Letter of Tender Appendix to Tender Contract Agreement. Templates for Contractual Issues. The templates are attached in Appendix E. 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. bfc2-071_fidic user guide_250407_final. 8.2 FIDIC Green Book This section presents the following templates for contractual issues: • • Agreement Appendix. modified for particular requirements of Romanian legislation.1. . Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 131 8 Templates for Contractual Issues 8. Appendix The Appendix is based on the draft proposed by FIDIC.1.DOC .Romania. Templates for Contractual Issues. modified for particular requirements of Romanian legislation. Appendix to Tender The Appendix to Tender is based on the draft proposed by FIDIC.1. The templates are attached in Appendix E. modified for particular requirements of Romanian legislation. modified for particular requirements of Romanian legislation. Agreement The Agreement is based on the draft proposed by FIDIC.2.

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

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

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

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

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

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

Additional Particular Conditions The following pages provide the proposed additional particular conditions for the FIDIC yellow book. 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 138 Appendix B2 .Romania. .

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 139 Appendix C . .DOC . The Mandatory Particular Conditions was approved by the MPF in January 2007.Romania. No additional particular conditions of contract are proposed for the FIDIC green book. 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 140 Appendix D . .Templates for Guarantees This Appendix D includes the recommended six (6) templates for guarantees as outlined in Chapter 7 above: • • • • • • Parent Company Guarantee Tender Security Performance Security . yellow and green books.Romania. bfc2-071_fidic user guide_250407_final.Demand Guarantee Advance Payment Guarantee Retention Money Guarantee Payment Guarantee by Employer. The templates are applicable for the FIDIC red.

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

Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public. and that the conditions of your invitation (the "conditions of invitation". the Beneficiary/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. .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. we <Insert name of bank> hereby irrevocably undertake to pay you. or (c) You awarded the Contract to the Principal and he has failed to comply with sub-clause 4.2 of the conditions of the Contract. 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. without your agreement. 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). Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. withdrawn his offer after the latest time specified for its submission and before the expiry of its period of validity. At the request of the Principal. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 142 TENDER SECURITY Brief description of Contract: <Insert description> Name and address of Beneficiary: <Insert name and address> (defined as the Employer). when this guarantee shall expire and shall be returned to us. except as stated above. or (b) You awarded the Contract to the Principal and he has refused to execute the Contract Agreement.DOC . published as number 458 by the International Chamber of Commerce.

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

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

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

in respect of a payment due under the Contract. 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. . 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. This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees. in respect of which the Principal has failed to make payment in full. we <Insert name of Bank> hereby irrevocably undertake to pay you. 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. (b) Any demand for payment must be accompanied by a copy of [list of documents evidencing entitlement to payment]. 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. and The amount(s) which the Principal has failed to pay. the Principal has failed to make payment in full by the date fourteen days after the expiry of the period specified in the Contract as that within which such payment should have been made. Date __________________________ Signature(s) ________________________________________ bfc2-071_fidic user guide_250407_final. except as stated above. the Beneficiary/Contractor.Romania. 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).

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

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

2 & 1.7 13.1.> days 6.1.4 1.5 8.4 1.1 4.5(b) Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final.3 1.4 & 1. .7 1.2.1 <Insert No.3.16:00 Monday to Friday 0.Romania.4 2.2.15(b) 08:00 .3. 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. faults and defects in the Employer' Requirements Normal working hours Delay damages for the Works 4.1.1.3 1.3 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.2.2 Data <Insert name of Employer> <To be filled by the Contractor> <Insert name of the Engineer> <Insert time> days 365 days Facsimile only Romanian law Romanian Romanian 21 days after Commencement Date 10 % of the Accepted Contract Amount. in the currencies and proportions in which the Contract Price is payable 15% of the final Contract Price 5% Maximum amount of delay damages Percentage for adjustment of Provisional Sums 8.3 1.1.4 5.DOC .1% of the final Contract Price per day.3 1.7 & 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 1.3 & 1.

Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final. Construction Industry. transport and distribution of electricity.01 – 0.25 0. gas and hot water Equipment/Machinery M As above. Steel S As above.01 – 0. Sector: cement manufacturing. Tables for indices of market price goods and services. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 150 Adjustment for Change in Cost Table of adjustment data Example Coefficients and description of related cost elements (1) a .01 – 0. Tables for indices of prices for the industrial production. for the national economy.25 0. Tables for indices of price for the industrial production. Sector: other non metallic mineral products manufacturing Energy E As above.01 – 0.25 0.Romania.DOC . Sector of crude oil extraction Fuel F As above.8 Cost index (2) Range of coefficient value (3) 0.fixed b .25 0.25 0. Tables for indices of prices for the industrial production.1 L B F A E M S C 1.25 0. quarries and construction manufacturing.01 – 0.Equipment/Machinery h .falling within the range specified in column (3).01 – 0. Sector: metallic construction and components manufacturing.01 – 0. Gross average salary for the month in question Bitumen B As above. Cement C As above. Sector: Outfits for mines. Sector: production.Cement Note: 13.25 Total Coefficient value (4) 0.Energy g .Steel i .1 0.25 0.Aggregates f . Tables for indices of prices for the industrial production. Tables for indices of prices for the industrial production. Sources of indices: Index for adjustment (1) Labour L Published source of Index (2) Base value Base Date (3) at National Institute of Statistics. .Bitumen d . Sector: liquid fuels Aggregates A As above.00 The tenderer shall fill in column (4) with value of relevant coefficient . Tables for indices of prices for the industrial production.Fuel e .01 – 0. Monthly Bulletin Table for: Average nominal salary. Note: The tenderer shall quote in column (3) the value of the cost index at the Base Date.Labour c .

3 14. Transposition of the FIDIC Clauses of Contract in the Romanian Language Employer User Guide for Particular Conditions of Contract 151 Total advance payment 14.000 EUR per occurrence with the number of occurrences unlimited Initials of signatory of Tender ___________________________________________________________ bfc2-071_fidic user guide_250407_final. 264/2003 as further modified and completed 10% of each certificate 5% of Accepted Contract Amount Number and timing of instalments 14.5(b) [project requirements] [project requirements] 1% of Accepted Contract Amount 14.1 18. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.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 14.1 18. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.6 14.2 Start repayment of advance payment 14. .2 In accordance with the provisions of Government Decision No.Romania. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.3 500.15 Romanian Leu (RON) 18.2(b) Percentage of retention Limit of Retention Money If Sub-Clause 14.2(d) 14 days 21 days 18.DOC .2(a) Repayment amortisation of advance payment 14. 264/2003 as further modified and completed In accordance with the provisions of Government Decision No.3 14.2 Currencies and proportions 14.

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 1.5.Romania.6 20.3) Delay Damages (Sub-Clause 8.3 20.6 Time for Completion (Sub-Clause 1.2 20.1.6 20.DOC .3.6) 20.2 70 days after the Commencement Date DAB of one member The President of FIDIC or a person appointed by the President 1 Romanian Bucharest 20.7) Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final. .1.

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

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

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

1. . (i) ………………………………….] Item Documents forming the Contract listed in the order of priority Document (delete if not applicable) (a) The Agreement………………… (b) Particular Conditions………….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.. (c) General Conditions……………. …..1.2 ______________ (details) 7.5 0.5 2.4 1.1 10% of the sum stated in the Agreement As per form attached Refer Specification Clause No.Romania..2 7.4 5..1 3.9 1. (f) The Contractor's tendered design (g) The bill of quantities…………… (h) ………………………………….2 _____ days Romanian Law Romanian Commencement Date Sub-Clause 1. (d) The Specification……………….2 Within 14 days of the Commencement Date 4.1 & 11.2 7. 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.. (e) The Drawings………………….1 Document Identification Data bfc2-071_fidic user guide_250407_final.4 9.1 ______________ (details) 10.DOC .1 3. [Note: with the exception of the items for which the Employer's requirements have been inserted.4 4. 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. 1. the Contractor shall complete the following information before submitting his offer.

3 Place of Arbitration 15.1) Percentage of retention Currency of payment Rate of interest 11.1 11.2 ______________ (details) ______________ (details) ______________ (details) ______________ (details) Materials __________ 80% Plant ______________ 90% As all Materials and Plant on Site are deemed to be the property of the Employer (SubClause 4.1 11. per annum Insurances Type of Cover: The Works.8 ___________________ 5% __________________ RON National Bank of Romania reference rate at Contract signature plus 3 percentage points. .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. Plants and Fees Contractor's Equipment Third Party injury to persons and damage to property Workers Other cover Arbitration Rules 14.7 11. Unlimited number of events As per legislation in force Exclusions: 15.Romania.3 11.DOC . 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 Amount: The sum stated in the Agreement plus 15% Full replacement cost 500 000 Euro per event.3 Signature Capacity _____________________________________ _____________________________________ _______________________________________ duly authorised to sign for and on behalf of bfc2-071_fidic user guide_250407_final.1 11.1 11. Materials.

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

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

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.

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

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.Romania.DOC . .

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