Also publzshed by Watevlow

Uniform with this volume

I C.E Conditions of Contract - A Commercial Manual

G. C /Works11 Condihons of Contract - A Commercial Manual
both by Brian Meopham

Understanhng Computer Contracts by Martin Edwards

The Layman's Dlct~onaryof Engl~shLaw by Gavin McFarlane
Brian Meopham

WATERLOW
PUBLISHERS
ISBN 0 08 039234 2 WATERLOW
Bi.ian Meopham FRICS is Gelleral Manager of Contract Advisory Services Ltd
and is collcerned with the settlement of disputes and claims arising out of
constructio~~ contracts and with running courses on contract administration for
engineers, surveyors and contractors. He has had extensive experience o r working
industries in the UK and
in the civil aud mecl~anicalengineering and co~~struction
overseas.
By the same autl~or
ICE Conditions of Contract: A Commercial Manual
GC/Works/l Conditions of Contract: A Co~nnlercialManual

Also peblisl~edby Waterlows

FIDIG Conditions
The Laynlan's Dictionary of English Law by Gctvi,r McFcrrlrr,~
Understandins Business Taxation by A,,rlrorg' D. Presron
Understanding Commercial and lndustri31 Cicensing by B r e ~ l d ~
Fotvlstoii
r~~
of Contract:
Understanding Computer Contracts by Mrlrrir~EdlvorrlJ
Understanding Disn~issalL a y b), Mcrrir! Ecl~vnrrls
Understanding Insurance bv Gleily~~l Pi'illiori~s
A Commercial Manual
Understanding Recruitment Law 6 ) Drn~icl
~ Nelvell

For further information write to Waterlow Publishers,

Oyez House, 27 Crimscott Street, London SE1 5TS
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Brian MEOPHAM
Administrative forms
The administrative fonns illustrated in this book may be obvained fi.om Contract
Advisory Services Ltd, Tyttenhanger House, St Alhans, Herts AJ-4 OPG, U.K.
Tel. (0727) 25421 or 23633.

of Co,,rr-rrc~(Irireniorio~rol)/or- Worlis of
Qi~otationsin the text from Co~~clirioi~s
3rd Edition 1977 are reproduced by kind
Ci1,il Eiigi~reeriilg Co~~slr~icrio~f,
perniission of the Fbdkmtion Internationale des Ingi-nieurs-Conseils.

WATERLOW PUBLISHERS
 Contents

First Edition 1986

O Contract Advisory Services Ltd 1986

Waterlow Publishers
Oyez House, PO Box25
27 Criniscott Street T h e World Market
London EC2A 2EN Standard Letters and Fornls
A division of Pergamon Press Ltd Table of S t a ~ d a r dL e f f e ~and
. ~ Fo1.1i7s
Some Important Definitions (Clrruse I )
All rights reserved. No part of this publication may be reproduced, stored in a The Engineer and Construction Inforn~ation(Clnrrses 2-7)
retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recor-ding or othenvise, without the priol- permission Basic Obligations (Clrrrises 8-10)
of Waterlow Publishers. Site Inspection a n d the Unexpected (Clorrses If-12)
Programme a n d Method Statements (Clarrses 13-14)
ISBN 0 08 039234 2 Supervision, Setting Out and Boreholes (Clalrses 15-18)
Care and Insurance of the Works (C/oirses 19-21)
British Library Cataloguing in Publication Data Third Party a n d Employer's Liabilities (Clcruses 2 M 5 )
Meopham, Brian Regulations and Nuisance (Clrirrses 26-29)
FIDIC conditions of contract: a commercial Damage t o the Highway, and lndepeildent Contractors (Clarrses
manual.---(Waterlow practitioner's library) 30-3 1)
1. International Federation of Consultine-
Engineers. Cond~ttanrof cunrlacr Labour and Returns (Clrrrrses 34-35)
(~~it~rn;ltionnl)
fur works of civil Standards of Materials and Workmansl~ip(Clauses 366-9)
- - construction 2. Civil
eneineerinft
engineering-Contracts and specifications
T h e Contract Pesiod (Chirses 4 0 4 3 )
Extensions of Time and Progress (Clatrses 44-46)
I. Title 11. Series Liquidated Damages and Co~iipletion(Clarises 47-48)
624 TAl8O Maintenance and Defects (Clnrrses 49-50)
Variations and Their Valuation (Clarrses 51-52)
Plant, Temporary Works a n d Materials (Clauses 53-51)
Measuring the Works (Cl<~~rse.s 55-57)
Provisional Sums and Nominated Sub-Contr-actors (Clnlrses
58-59)
Certificates and Payments (Clauses 60-62)
Remedies a n d Powers (Clauses 63-64)
Special Risks (Clause 65)
Frustration, Disputes and Notices (Clauses 66-68)
Employer Default, Cost Changes and Legislation (Clcrrrses
69-70)'
Currency Matters a n d Form of Tender (Clcrrrses 71-72)
Use of Administrative Forms

Princed in Great Britain by A. Wheaton & Co. Ltd, Exeter

CHAPTER 1

The Wbrld Market

Many consultants and contractors, having cut their teeth in the honle
market, look overseas to expand their business. It is a move that needs to
be well researched and undertaken with no illusions-operating overseas
is not easy, and it will be beset by problems that the newcolner will never
previously have encountered.
Those based in the UK, however, start out on this new venture with a
considerable advantage not enjoyed by their competitors elsewhere. As
they venture overseas they will often find themselves working under
co~lditions of contract bearing striking sinlilarity to those used in
connection with UK civil engineering. The conditions they will encounter
bear the title Cot~djlitionsof Confracf (lnre~~natior~al)
for Works of Ciilil
E?~giweeringCo~wrrrrcfio~~, Third Edition, March 1977. These Conditions
are a remarkable tribute to the far-sighted engineers among cons~~ltants
and contractors who have, over the years, evolved the ICE Conditions of
Contract-for the International Conditions are closely lllodelled on
them. Certainly anyone familiar with the earlier ICE Conditions of
Contract (Fourth Edition) will be struck by the similarity, which extends
not only to the fortnat of the Conditions but even to direct comparability
between the clause numbering.
Anyone experienced in the activities of a professiollal working
colnmittee endeavouring to produce a standard document for use in the
professions and industry will know how time-consuming and difficult it is
to achieve a rational and workable document, not so distorted in the
achievement of agreement as to have beconle a consensus of nonsense.
The International Conditions have assuredly not fallen into that trap.
These Conditions have survived the traumatic birth pangs of no mere
national forum of trade interests, but the i~lfinitelymore demanding
scrutiny of inter~~ational opinion and acceptance. Twenty nine different
national'organisations of consulting engineers and 49 separate natio~lal
contractors' federations have given them the stamp of their approval. In
the writer's opinion, this broad spread of approval has only been
achieved as a result of the manifest suitability for cc)ntrolling a
construction bargain inherent in the ICE Conditions on which the
International Conditions have been modelled. (Sometimes one wonders
whether the sjme tribute will ever be applied to the JCT Conditions-and

then one thinks realistically and concludes, perhaps not.)
The International Co~lditions conlprise three distinct parts, the
General Conditions, Conditions of Particular Application, and
Conditions of Particular Application to Dredging and Reclanlation
Works, supported by a forn1,of tender and form of agreement. The bulk
of the document comprises the General Conditions contained in Part I,
which extend to 20 pages and cover the standard obligations and
liabilities colnmon to all contracts; whilst the Conditions of Particular
Application in Part 11 are drafted individually according to the needs of
the individual contract but with 2 pages of notes provided to keep the
user on the correct drafting path when compiling them. Part I11 is, as
indicated in the title, purely concerned with the idiosyncratic charac-
teristics of dredging and reclamation work and is therefore only
applicable to the limited number of projects that contain such work.
To develop further the theme of familiarity, these Conditions
incorporate a bill of quantities as one of the contract documents.
However, unless some special amendment has been made to the
Conditions, no particular Method of Measurement will be deemed to
have been employed in its preparation.
It is very easy to carp at the incorporation of bills of quantities in the
contractual arrangelllents under which construction work is undertaken,
but in practice it is difficult to come up with an alternative set of
arrangelnents better suited to the com~nercialcontrol of a construction
project. That opinion should not be interpreted as inferring that there is
nothing better than the bill of quantities for co~ll~llercialcontrol, merely
that most of the alternatives that have been tried seem in practice to be
bedevilled by even Inore deficiencies than those adnlittedly present in the
bill system. Possibly those who would discard the bill of quantities into
the dl~stbinof history in the U K should experience the startling shambles
that can sometimes occur in international contracting when these
standard International Conditions and their associated bills of quantities
have not been employed.
Enough in praise of the International Conditions, for while they have
contributed inestimable benefit to the rationalisation of commercial
arrangements in international contracting, they have also contributed a
vicarious hazard. It is very comrnon,'wl~enmaking preliminary appraisal
of the contract documents for an international project, to find oneself
looking at a set of conditions that appear to be the International
Conditions-but which in reality are not. Many governnlents have used
the Internationnl Conditions as the basis for their own national
conditions. I11 the process they have often not acknowledged that their
conditions are a distortion of the standard Conditions. There is therefore
a risk to the unwary in concluding that the works are going to be
Tlie World Market 3
undertaken under the terms of the standard International Conditions,
when in fact the obligations and liabilities of the parties have been
radically amended, by only minor changes to the wording.
Just as with the ICE Conditions, the international Conditions achieve
an extrenlely fair balance of obligation and liability between enlployer
and contractor. That balance can however be easily distorted by a few
subtle arnend~nentsincorporated in the body of the clauses without
acknowledging that any change has been made.
The title of the International Conditions refers to them being for works
of civil engineering construction. While that nlay have been the intention
of the original drafters, in practice their application has been very 1nucl1
broader: they are used extensively in building, and in industrial and
process engineering as well as in civil engineering.
It says much for their inherent suitability for use in connection with
co~~struction works bargains that in general they work well with these
other areas of business, for which they were never specifically designed.
These Conditions therefore enjoy not only amazingly wide territorial use
but also application to a wider range of situations than will be found in
the case of any form of contract applied in a national market.
In our earlier books we laid great emphasis on the need to maintain
efficientcontractual ad~uinistrationboth by Engineer and Contractor, to
avoid unnecessary dispute and financial loss to all concerned. That
message in international contracting is even more pertinent.
Consider the background against which many international projects
are undertaken. Certainly, just as in any home market, the individual job
is likely to need to function as an autonomous business in its own right.
However, since in international contracting the project may well be in a
remote area difficultof access and lacking easy communications, the need
for all of the parties to he able to fn~lctionwith autononlous authority
will be evident. As we examine the Conditions we will see that this has
been recognised by the drafters in a way that allows the Engineer's
Representative very much more autonomy than would apply to a
comparable project in the home market.
Obviously the RE can hardly pop into the home ofice to brief the
senior partnel- on a matter requiring the illvolvement of the Engineer,
when the site may be in the nliddle of Saudi Arabia, or on the northern
boundariek of Nigeria, or on one of the less accessible islands of
Indonesia, while the Engineer is resident in the consultants' head ofice in
Victoria Street, Westminster. I11 those circumstances everybody must be
able to stand on his own feet and make decisions accordingly, within a
framework of contractual arrangemellts that will make it possible.
Sheer project size will also influence the need for local autonomy. In
the nor~nalcourse of things, international projects are likely to be on a
4 Chapter I
more massive scale than their counterparts undertaken in the home
market. For example, even the largest road projects let in the UK are
unlikely to consist o f more than about 10 miles o f roadway. T h e
requirenient for a new road in Africa or the Middle East is more likely to
be let as a project o f many tens o f miles and even a hundred miles or
more. That is a 'totally different organisational problem, as coinpared
wit11 being able t o run u p and down the whole length o f the job in a
Landrover in 15 minutes.'
Now suppose disputes are allowed t o develop through less than totally
efficient contractual administration. How will they be resolved? W i t h
difficulty! Recourse t o contractllal solutions achieved outside the
boundaries o f the site, whatever may be said in the documents, will often
prove extrelnely difficult. It will involve the disputants in the ramifi-
cations o f the legal procedures o f a country, the detailed law o f which is
unfamiliar t o them, and the outcome o f which may be co~~jectural. No,
other than in matters o f dire necessity, the parties had better get it right
fist time round and within the confines o f the site offices.
T h e participant in international contracting, wllether as engineer or
contractor, needs to have chai-acteristics not always necessary in his home
market counterpart. He must be able t o act on his own initiative, cope
with the unexpected, often live in conditions that are not elltirely
comfortable, and through it all be able t o run a tl~oroughlyefficient
project well ad111iniste1-edand avoiding contractual conflict-for i f he
doesn't, both contractor, employer and engineer are all likely t o suffer-
and nowhere more so than in the financial outcome.
Can the approach o f standardised correspoildence and administrative
forms previously recommended in our other books, for use in the U K ,
work in international contracting t o smooth over and avoid many o f the
problems that can occur? With colnmon sense and a lneasure o f flexibility
the answer can be yes. As a result we have once lnore incorporated the
administrative guide-line letters related t o the clauses o f the Conditions in
the way previously recommended in the earlier books.
However, do always bear in mind that the variants on the problems,
and the probability o f non-standard amendments having been made t o
the Conditions will be far more prevalent than in the home market.
Whilst the guidelines offered are likely to keep things o n the right track,
the participants must, far more carefully than they might at home, check
things out.
Well, what about the adn~inistrative forms that our first book
recommended for use in connectio~l wit11 the ICE Conditions o f
Contract, could they be employed? W i t h care yes-we earlier mentioned
that the clause nulnbering arrangements o f both the FIDIC and the ICE
Fifth Edition Conditions are similar. Those previously recom~nended
Tlze World Market 5
forms will therefore work in the international market.
T h e reader may well enquire whether we should be introducing
administrative material specific t o the international market. In the
writer's opinion this would not be practical, since there would be so many
variants on a theme that any standardisation would be virtually
impossible. Our policy has therefore been to recommend adherence t o the
standard product, whilst recognising that it may sometimes be necessary
to make marginal 'ad hoc' amendments, by simple deletion and
overtyping, t o cope with particular problems.
In the writer's own experience the extent to which, in practice, it is
necessary to make amendments is limited. On reflection this should not
be too surprising, since the underlying philosophy o f the contractual
arrangements o f both the FIDIC and the ICE Fifth Edition Conditions
are so closely related.
Just as in the case o f the ICE book we are therefore able to state that
our objective is to provide the reader, whether he acts in the role o f
employer, contractor or engineer, with practical guidelines and under-
standing sufficient t o avoid dangerous contractual mistakes and their
impact on his business or project. This we do by:
(a) Providing a commercial analysis o f each o f the significant clauses
o f the Conditions;
( b ) Identifying the integrated basis for contract administration that is
inherent in the Conditions;
(c) Pinpointing procedures that need t o be adopted in contract
administration; and
( d ) Ensuring that the benefits and protections o f the Conditions are
obtained by both coutractor and employer.
W e trust the reader will find this book o f assistance, whether he
operates from the home office support unit o f a major international
project, is resident in the maill site office or acts as a section engineer or
supervisor in a lonely out-station site officeremote from his companions.
Wherever he be, and whether working for engineer or contractor, we
believe this book will help t o avoid problems and enhance the
profitability o f the contractor whilst assisting the smooth running o f the
project to the benefit o f engineer, employer and contractor alike. I f the
hook succeeds in this, it will have achieved its objective.

CHAPTER 2
Standard Letters and Forms
In the book on the ICE Coliditions we dwelt on the problem oftell faced
b ~ 'engineers in their first appointments on finding that they were
expected to act as bnsinessmen as well as engineers. We noted how little
attention was paid by the universities and colleges to this aspect of the
training of the graduate engineer and the extent to which he was therefore
'thrown in at the deep end' when first faced with the administrative and
co~itractualproblems of a project.
On the overseas scene these deficiencies are possibly even Inore serious
than when the new graduate engineer is operating in his home market.
While the attention paid in educational circles to contractual problems at
holne is minimal, in the context of an overseas operation, it is virtually
non-existent. The difficulties for both contractors and consultants are
then exacerbated by the staffing problems that are inherent in
international operations. If one examines the age-range of staff on a UK
project it will tend to extend evenly from those in their early to mid
twenties to those of more mature years. Thus there is often an age
grouping in which experience can support youth.
On international projects the niutual support of the age groups is often
not available for simple social reasons. However attractive the mild sense
of adventure and inducement of salary enhancement may be, both factors
synonymous with overseas projects, few people are from a family
standpoint able to spend their whole working life overseas. For many
there conies a stage when the edncational needs of their children will
dictate a retur~ito their home countries. Most find this need during the
period of secondary education when children are in the age range of
about eleven to eighteen. As a result personnel in the age range of
roughly thirty-five to fifty are often not present on an intematio~lal
project. This gap in the middle of the age range is most marked. One
tends to find people on an uliaccolnpanied tour or with wife and fanlily
up to the age of about thirty-five, and thereafter, those rather longer in
the tooth returning to the international scene in their fifties when tlie
educational needs of the family have been fulfilled.
The tendency is therefore for responsibility to come young in thejunior
to liiiddle nianagelnent level of international contracting. This inevitably
leads to a less-than-ideal breadth of experience (which sometimes olily
6
Stanrlavd Letrevs and Forms 7
~~
age can bring) among those in responsible positions. Unfortunately, as
things stand in the industry, there is but little option in the way in which
coillinercia1 and contractual experience is obtained-it has usually been
acquired from experience which colnes with time. The need therefore for
some sort of guidelines in international contracti~lgto fill this vacuuln is,
if anything, even more pressing than in the home market.
The guideline letters and forms offered by this book are therefore an
attempt to fill the vacuum. They must however, be used with extreme
discretion. There are not the standard answers available in international
contracting that there are in the UK-the users of the material offered
must appreciate this and use and check out Lhe material accordingly.
Don't assume that you are working on a standard version of FIDIC,
commo~llyyou will not be. If the guideline approach has been used
without question, it may do more harm than if nothing had been done at
all.
Conditional on that caveat being observed, this chapter sets out
standard schedules of administrative correspolldence that call be used in
conducting the business affairs of the contract, whether as contractor or
engineer, together with a rt-sum6 of the administrative forms that need to
be employed to ensure coinpliance with the requirements of the
Conditions.
The material is listed in two schedules, the first being applicable to the
actions of the contractor and the second to those of the Engineer. Each
schedule lists the subject matter concerned, the clause or clauses in the
Conditions under which the requirement arises and gives a cross reference
to tlie chapter in the book where an example of the particular letter or
form may be found (at the end).
 Stanrla,d Letters r111dForins 9
Standard Letter Pro-formas and Fonns for use in conjunction with actions of the Co~rn.r,cr See
Contractor under the Conditions of Contract Onternational) for Works of Civil CIfll,se(s) Cl?rrptrr.
Engineering Construction--Third Edition-March 1977

FIDIC/14 E~nployer'sliability to insure

Conrrncr See the works after receipt of the
Reference Strbjecl-ilfatfer Clatrse(s) Clzupter Certificate of Completion

FIDICjl5 Re-imbursernznt of the cost of

repair in respect of an
excepted risk

Request for written FIDIC/16 Request for approval of

notification of the delegated contract works/[and] third-party
powers of the Engineer's insurance
Representative
FIDIC/17 Request for re-imbursement of
Dissatisfaction with an fees paid
instruction of the Engineer's
Representative FIDIC/lS Notification of the discovery of
an item ofgeological/
Request for sanction to sub-let arcl1;leological interest

Request to clarify ambiguity FIDICjI9 Re-imbursement for additional

[and re-imburse additional cost] expense arising as the result
of the discovery oCan item of
Request for additional geological/nrcl~aeological
information intel.est

Notice of delay in the issue of FIDICi20 Requesl for the r-e-imbursernent 29 11

information of the costs associated with
patent rights in respect of
Notice of physical conditions/ varied works
artificial obstructions not
reasonably foreseeable F1DIC/21 Notice of special load to be 30(2) 12
moved
Legally/Physically i~npossible
work FIDIC/22 Notice of a claim received for 30(3) 12
damage to highway/bridge[s]
Subn~issionof programme
FIDIC/23 Re-imbt~rsementfor facilities 31 12
Sublnission of constmction provided for/used by an
arrangements and methods independent contractoria
duly constituted authority
Request for the re-imbursement
of costs in correcting faulty FIDIC/24 Notice of delay by independent 31 12
setting out attributable to contractor/duly constituted
inaccurate information provided authority

Re-imbursement for boreholes/ FIDIC/25 Staff,labour and plant returns 35 13

[and] exploratory excavation
 Srnnrlnrd Letters nnd Forms

Co,?tracr See See

Clciirse(s) Clrc~pfer Chriprer

Request for a warranty that free FIDIC/40 Clarification of the burden of 49(3)
issue materials comply with the cost for works of repair
respective kinds described in FIDIC/41 Request for re-imbursement of 50
the contract
costs associated with tracing
the cause of a defect
Application for the cost of
sanlples FIDIC/42 Confirmation of an oral 51(2)
instruction
Application for the cost of
tests Form/EW/7 Contractor's confirmatioil of -
oral instruction
Notification of the availability
of work for examination/[and] FIDIC/43 Notice requiring a varied rate 52(2)(a)
measurement before covering up
FIDIC/44 Notice of variation exceeding 52(3)
Request for the re-imbursement 10%
of costs for opening up the work
for inspection Daily notification of resources
occupied on daywork
Disagreement with an order lo
remove work said to be improper Daily record of resources used
work on daywork
Notice of delay and additional Subn~issionof monthly priced
cost due to the suspension of statement of dayworks
work
Daywork sheet
Request for permission to
proceed with suspended work Monthly claim notification

Notice to treat suspended work Assistance with re-export of

as omitted Crom the contract constructional plant

Notice of delay and additional Assistance with custon~s

cost arising from non- clearance
availability of the sitelpart
of the site Records to be prepared for
measurement purposes
Application for cxte&ion of
time Agreement/Noticc of
disagreement with measrirenlent
Request for permission to work records
night/Sunclay/ . . . . . . . . . . shifts
Objection to the no mil ratio^^ ol'
Response to notification to n non~inz~tedsub-contractor
expedite the works
Design liability onder a
Notice of substantial co~npletion nominated sub-contract
12 Chapter 2 Stmldard Letters mzc/ Fornzs 13
Co~lrracr See Standard Letter Pro-fonnas and Forms for use in conjunction wit11 actions of the
Reference Strbjecr-Mrrlter Clotrse( s ) CI7~pler. Engineer under the Conditions of Contract (International) for Works of Civil
Engineering Construction-Third Edition-March 1977
FIDIC/54 Sub~nissionof proof of payment 59(5) 22
to a nominated sub-contractor Contract See
FIDICj55 Submission of reasons for 59(5)(a) 22 Refere~~ce St~bjecr-Matter Clotrse(s) Cl~apter
withholding payment to a
non~inatedsub-contractor
Notice of the delegated powers
FIDIC/56 Submission of monthly statement 60 part I1 23 of the Engineer's Represemative
FIDIC/57 Notification of non-receipt of 60 part I1 23 Response to a notice of
payment against monthly dissatisfaction with an
Statemellt instruction of the Engineer's
Representative
FIDICj58 Submission of finel account 60 part I1 23
Approval of request for
FIDIC/59 Application for payment of the 60 part I1 23 sanction to sub-let
first part of the retention
money
Denial of request for sanction
to sub-let
FIDIC/6O Application for paynlent of 60 part I1 23
part of the retention money

FIDIC/6I Request for the maintenance 62(1) 23

certificate
Confirmation of the supply
of docun~entsfree of charge
FIDIC/62 Notice requiring payment in 65(2) 25
respect of damage arising from Acknowledgement/Rzbuttal of
a special risk
notice of delay in the issue of
information
FID1C/63 Notice of increased cost 65(4) 25
consequent on a special risk
Confirnlation of the issue of
further o r modified drawings
FIDIC/64 Request for an Engineer's 67 26
decision Constrnction infornlatio~lissue
and receipt note
FIDIC/65 Notice of change of l~on~inated 68(3) 26
address
-
Issue of an Engineer's
instruction in amplification
FIDIC/66 Notice ~Sdeterminationby the 69(1) 27
Contractor of the contract documents

FIDIC/67 Notice of change in legislation 70(2) 27 Engineer's instruction

requiring cost adjustinent
Submission of Contract Agreement
FIDIC/68 Notice of currency restriction 71 28 for execution
requiring cost adjustment
Request for submission of Bond
FIDIC/69 Request for exchange rate 72(2) 28
14 Stnnclcrrd L e t f e r s rrr7cl Forms 15

See Co~~rrncr See

Reference Clruprei. Subjecr-Marre, Clrrrtse(s) Cl,opre,

Consent to the detailed methods

FIDIC/E/12 Rebuttal of notice that physical of construction
conditions/artificial
obstructions not reasonably Notification of unsuitability of
foreseeable the proposed details of
construction methods
FIDIC/E/13 Request for estimate of the cost
of measures to be taken to Consent to changed detailed
surmount physical conditions/ methods of construction
artificial obstructions
Acknowledgen~ent/Rebuttalof
FIDIC/E/14 Approval of measures with/ delay in approval of
without n~odificationsto surmount construction method
physical conditions/artiHcial
obstructions Acknowledgen~ent/Rebuttalof
submission that approved
FIDIC/E/l5 Instruction as to how construction method could not
physical conditions/artificial reasonably have been foreseen
obstruction is to be dealt with
Request for revised Clause
FIDIC/E/16 Ordering n suspension under 14 programme
Clause 4O/Giving a variation
order under Clause 51 pursuant Approval of Contractor's agent
to physical conditions/
artificial obstruction Withdrawal of approval of
Contractor's agent
FIDIC/E/I 7 Acknowledgenlent of notice of
delay arising from physical Objection to Contractor's
conditions/artificial obstruction employee

FIDIC/E/18 Instruction to surmount Request to reclify setting-out

difficulty caused by work error
being legally/physically
in~possibleto construct/ Request for ground exploration
complete/n~aintain
FIDIC/E/33 Notification of watching rind 19 9
FIDIC/E/l9 Request for Clause 14 programme/ lighting
[and] general description of the
arrangements and neth hods of FIDIC/E/34 Request for production of 21 9
COIIS~I-uction contract works insurance
pollcy/receipt for payment
FIDIC/E/2O Approval of Clause 14 progl~alnme/ of the current premiums
[and] general description of the
arrangements and msthods of FIDIC/E/35 Request for production of third- 23(2) 10
constrllction party damage to persons and
property insurance policy/
FIDIC,'E/2 l Request for delails of the receipt for payrllellt of the
nlethods of constn~ction current premiums

Sl,bjejecr-Molter
Request for production of
Contractor's accident or
illjury to workmen insurance
policy/receipt for payment
pf the current premiun~s
Failure tb insure
Re-imbursement of fees paid
pursuant to any national or
state ordinance or other law
or any regulation or bye-law
Instruction pertaining to an
item of geological/
arcl~awlogicalinterest
Notice of interference
Approval of measures with/
without modifications for
nlovement of special loads
Notice of claim received for
damage to highway/bridge
arising from transport of
materials/constructional
plant
Request to make available
facilities provided for/used
by an independent contractor/
a duly constituted authority
Acknowledgement/Rebuttal of
notice of delay by independent
contractor/duly constituted
authority
Request for returnsof staff,
labour and plant
Instruction to carry out test
Instruction to provide sample
Procedure to be adopted prior
to covering up work
StancInrd Letters aizcl Forms 17
See Con tract See
Clmnpter Clnrrse (s) Clmaplrr
Availability for inspection
Availability for inspection
Instruction to uncover work
Order for the removal of
materials not in accordance
with the contract
Order for the re-execution of
work not in accordance with the
contract
Suspension of work
Lifting of suspension of work
Notification of the date for
commencement of the works
Acknowledgement/Rebultal of
submission that the works/
part of the works have been
delayed through non-av;iilability
of the sitelpart of the site
Assessment of extension of time
for the worksla section of the
Works during the contract
periodlat the date due or the
extended date for completion
Notification that the
Contractor is not entitled to
furt the^-] extension of time
during the Contract period/
at the due date o r extended
date of completion
Permission ibr night/[ol-]
Sunday/ . . . . . . . . working
Notification of insuflicient
rate of progress
Notification of intention to
deduct liquidated damages
 Smndnrd Letters m7d Forrn~ 19

See Conlloct See

Cl?r~j>ter Refel ence S~rhject-~Cfarrer Clnrrse(sJ CIl(rpfe~
I
Certificate of completion FIDIC/E/76 Request for Contractor's 56 21
authorised agent or representa-
Certificate of completion tive to attend the taking of
(whole) (a) measurements

Certificate of completion of a FIDIC/E/77 Proof of paylllent to nolll~nated 59(5) 22

section or part of the works sub-contracto~
I
Certificate of completion I FIDIC/E/78 Interim/Final payment 60( 1) 23
(part) (b)
l certificate
i
Work to he co~npletedprior to Form/EW/IO
the issue of certificate of and 10/1 Interim/F~nalc e t~ficdte
~ .- 23
completion

Issi~eof schedule of defects

Request to trace cause of defect

.'
v .auation order
i I;IDtC/E/XO Cert~ficat~on of the Employel's 63(1) 24
i ~ r g h to
t expel the Colltldcto~
I f r o n ~the slte and the works
Variation order
FlDIC/E/S l Notification of item 64 24
Confirmation or oral instruction calling for urgent repair

Contradiction of confirmation of FIDIC/E/S2 Engineer's decision 67 26

oral instrllction by Contractor -.

r e : Hints on the use of the administrative forms are given in Chapter 29.
Notification of rate for varied
work

Notice requiring varied rate

Notice adjusting the contract

price due to variations of
the whole of Lhe works
exceeding 10%

Daily record of resources nsed

on dayworks

Daywork sheets

Consent to the removal of plitntl

materials Ttom the site

CHAPTER 3
Some Important DeJinitions
Clause l(1)-Definitions
In the contract, as hereinafter defined, the following words and expressions shall
have the meaning hereby assigned to them, except where the context otherwise
requires.
This clause gives a series of definitions, the following being of co~nmercial
significance.
(a) 'Employer' means the party named in Part I1 who will employ the
Contractor and the legal successors in title to the Employer, but not,
except with the consent of the Contractor, any assignee of the Employer.
It should be noted that the Elnployer is t o be named in one of the
clauses of particular application in Part 11. Further, unlike the situation
in the UI<, the Employer may not assign his rights under the contract
except wit11 the consent of the Contractor. This proviso is ilnportant
since by the process of assign~uentthe obligations of the Employer
could be totally passed t o another party who then takes the place of the
original Employer. This arrangement should not be confused with sub-
letting under which it is still possible t o have recourse to the original
party with whom the Contract was first made.
(c) 'Engineer' means the Engineer designated as such in Part 11, or other the
Engineer appointed from time to time by the Employer and notified in
writing to the Contractor to act as Engineer for the purposes of the
Contract in place of the Engineer so designated.
The named Engineer in Part I1 is the Employer's agent charged with
fulfilling tnost of the administrative functions under the contract. It
should be appreciated that the Elnployer enjoys the right t o substitute
one Engineer for another but should he d o so, the Contractor ~ n u s be
l (g) 'Contract Price' means the sum named in the Letter of Acceptance, subject
notified in writing of any change made.
(d) 'Engineer's Representative'means any rcsident engineer or assistant of the
Engineer or any clerk of the works appointed fi-on? time to lime by the
Enlployer or the Engineer to perfor111 the duties set forth in Clause 2
hereof, whose authority shall be notified in writing to the Contractor by
the Engineer.
In day-to-day adnlinistration of the contract, it will be the 'Engineer's
Representative' with whom the Contractor will prinlarily deal. An
adequate understanding of his powers and their lin~itationsis essential.
Due regard should be had to the specified Clause 2 in this respect.
I n general the extent of the authority of the Engineer's Represen-
tative in international contracting tends t o be wider than in the UK,
being, it would appear, primarily the product of geography and
distance. I n practice, however, this tnay someti~nescreate difficulty
since the legal systems of certain of the countries in which the
Conditions are elnployed curtail the right of the Enlployer to delegate
matters to their Engineer, let alone an Engineer's Representative.
(0 'Contract' means the Conditions of Contract, Specification, Drawings,
Priced Bill of Quantities, Schedule of Rates and Prices, if any, Tender,
Letter'of Acceptance and the Contract Agreement, if completed.
We have here conveniently listed the doculnents which for tlie purpose
of the contract are deemed t o be contract documents.
I t should be noted that the conditions of contract include not only
the general Conditions but, of course, the Conditions of Particular
Application.
The status of the bill of quantities under an international contract
will vary considerably from that encountered in the UK, as under
Clause 57 there is no incorporation of a stipulated nlethod of
measurement. Since the extremely co~nprehensiveCivil Engineering
Standard Method of Measure~nentnow employed in the U K is not
available as a n interpretive guide to the bills, particular care must be
taken when estinlating to ensure that the work coverage of the various
items set out in the contract bills is properly understood. In this
situation it is likely t o be far Inore diflicult, based on the argunlent of
sufficiency of rates, to claim items of additional measurement o n the
basis of inadequate measurement or o ~ n i s s i o from
~l the contract bills.
From the standpoint of a U K contractor it is to be hoped that
CESMM will eventually become a n accepted feature of international
contracting. Thus it would ensure that any estimating data of relevance
in the U K would have application overseas. Possibly where UI<
consultants are involved, this will become a n accepted feature.
to such additions thereto or deductions therefrom as may be made under
the provisions hereinafter contained.
This definition is similar t o that of the old ICE Conditions of Contract,
4th Edition. We may therefore still be subject to the lawyer's argument
in the international field that the contract price named in the contract is

the price for doing the job, and that it is only to be anle~lded by
variation.
Under the revised definitio11 inserted in llle I C E Conditions of
Contract, 5th Edition, it is clear that the contract price can only be
ascertained a t the end of the contract when all measurement, price
agreements, adjustment of price fiuctuatiorls and settlement of contract
claims have been concluded and agreed. It is not possible, therefore,
under the UK version to claim that there is any express or inlplied
obligation that the contractor might be expected t o carry out the whole
of the works for the sum named.
(I) 'Drawings' means the drawings referl-ed to in the Specification and any
modification of such drawings approved in writing by the Engineer and
such other drawings as may from time to time be furnished or approved in
writing by the Engineer.
This definition is precisely the same as that contained in the ICE 4th
and 5th editions. Attention is drawn t o it, since it is s o ~ n e t i ~ n enot
s
appreciated that a change made on a drawing issued to the Contractor
is in itself a variation order and would be deemed to be an order given
in writing. Very commonly the most extensive variations occur on
drawings rather than as a result of any formally worded instruction.
(m) 'Site' means the lands and other places on, under, in or through which the
Permanent Works or Temporary Works designed by the Engineer are to
he executed and any other lands and places provided by the Employer for
working space or any other purposes as may be specifically designated in
the Contract as forming part of the Site.
An interesting situation has now developed around the various
definitions of 'Site' contained in the I C E Co~iditions5th Edition, since
by construing together the definitions of 'Site' and 'Works' it is
possible t o establish that temporary works carried out by the
Contractor outside the designated site boundaries are in fact part of the
site. By this means it is possible in the UK to obtain payment for
materials 'on site' which are not in fact within the physical boundaries
of the site as drawn by the Engineer. However, the addition of the
phrases 'designed by the Engineer' and 'specifically designated in the
Contract as for~ningpart of the Site' would appear t o avoid, from the
Employer's point of view, the possibility of sucli an interpretation
under these Conditions. ThereEore, havii~gadded the words 'designed
by the Engineer' in relation t o llle temporary works, it bas avoided the
proble~nof regarding, for example, the Contractor's own casting yard
as being part of the site, and therefore a n area of site activity that might
rate for paynlent unless specifically excluded.
Sofne 1f?zportantDefiffirzitions 23
(n) 'Approved' means approved i~: writing, including subsequent written
confirmation of previous verbal approval and 'approval' means approval
in writing, including as aforesaid.
N o colnparable definition of 'approved' and 'approval' exists in either
the 4th or 5th Editions of the I C E Conditions. Such a definition is
presumably given to fill the gap tliat niay be left by tlie lack of
authoritative codes of practice or standards to which reference might
be made in countries where works may be carried out. From the
standpoint of tendering and potential claim, however, it does raise
considerable difficulty, since 'approved' a s a definition of quality in the
specification is a criteria of subjective judgement rather than defined
standard. Inevitably what may have appeared to the esti~llatorat time
of tender reasonably likely t o attract approval, and have served as the
basis for pricing, may not subsequently be accepted by the Engineer.
In this situation the only recourse would be to register a claim for
additional expense under Clause 52(5) whilst recognising the chances of
success to be both tenuous and contentious.
A possible supporting argument that might be used in this situation
would be that the nature of the work or standard of n~aterialthat was
'approved' could not reasonably have been inferred fro111the contract.
If sucli could be established, the approved work or nlaterial would not
fall within the definition of the extent of the contract given under
Clause S(1). Were this t o be the case, the Engineer could then be
required to issue a variation order under Clause 51(1) (e) I-equiring the
execution of additional work of any kind necessary for Llie completion
of the works, or alternatively under sub-clause (c) of the same Clause
requiring a change in the character or quality o r kind of ally such work.
Clausel(4)-Meaning of Cost
The word 'cost' shall be deemed to include overhead costs whether on or off the
Site.
1. This definition of cost is a valuable addition to the contract,
particularly when viewed in co~l~lection with the interpretation of clauses
under which the Contractor shall be reimbursed for his costs. We now
have a definition of cost which would appear only to preclude profit and
in view of the considerable proportion of profit which is in reality the cost
of fina~icitlg,the aniount not adniissable as cost will be minimal.
2. Under the old Second Edition no definition of cost was contained in
the Conditions.
24 C I I O I J3~ ~ F
Since undev Clause 52(5) tlie Contractor must register claiiiis for 'any CHAPTER 4
additional paynieiit to wliich the Contractor may consider himself
entitled', and it could be argued tliat in the context of the clause payment The Engineer and Construction
in the appropriate circumstances was synonymous wit11 cost, the Inore
restricted the Engineer was able t o argue the definition of 'cost' t o be, the Information
more he was able t o cut back tlie Contractor's claim. T h e interpretation
of cost often given by the Engineer in tlie past was that it was n o niore
than the direct site cost,, totally ignoring any off-site or consequental cost
tliat stemmed from the initial act that gave rise t o tlie additional payment Clailse 2(1)-Duties and Powers of the Engineer
requirenient in the first place.
N o longer under the contract is such a n interpretation tenable. The Engineer shall carry out such duties in issuing decisions, certificates and
orders as are specified in the Contract. In the event of the Engineer being required
in terms of his appointment by the En~ployerto obtain the specific tlpproval of
the Eniployer for tlie execution of any part of these duties, this shall be set out in
Part I1 of these Conditions.

1. This sub-clause is a completely new addition to tlie International

Conditions. It should henceforth avoid any question of the contract, as
previously drafted, apparently giving to an Engineer powers wliich under
the legal systeni of certain countries the Employer is not able to d e l e ~ a t e
to an agent.
2. Where approval is required by the Engineer fro111 his Employer
prior t o the exercise by him of certain of his pourers under the contract,
these constraints o n his authority must have been noted in Part I1 of the
Conditions prior t o the fornlation of a contract.
3. I n many ways, it would be niore honest to have had a conlparable
clause incorporated in the current conditions used in the UK. All too
often the supposed unfettered quasi-judicial role of the Engineer is in
truth fettered by all manner of unpublislied constraints by the Employer.
Particularly is this the case with Government-sponsored work, where
auditor and departtilent niay make a niockery of the Engineer's
purported independent role.

Clause Z(2)-Duties and Powers of the Engineer's Representative

The Engineer's Representative shall be responsible to t11c Engineer and his duties
are to watch and sopervise the Works and to test and exaniine any materials lo be
r~sedor workmanship employed in connection with the Works. He shall have no
authority to relieve the Contractor of any of his duties or obligations under the
Contract nor, except as expressly provided hereunder or elsewhere in tile
Contract, to order any work involving delay or any extra payment by the
Employer, nor to make any variation of or in the Works.
The Engineer may from time to time in wriling delegate to the Engineer's
25

Representative any of the powers and authorities vested in the Engineer and shall
fun1is11 to the Contractor and to the Enlployer a copy of all such written
delegations of powers and authorities. Any written instruction or approval given
by the Engineer's Representative to the Contractor within the terms of such
delegation, but not otherwise, s11all bind the Contractor and the Employer as
though it had been given by the Engineer.
Provided always as follows:-
(a) Failure of the Engineer's Representative to disapprove any work or
materials shall not prejudice the power of the Engineer thereafter to
disapprove such work or materials and to 01-der the pulling down, removal
or breaking up thereof.
(b) If the Contractor sliall be dissatisfied by reason of any decision of the
Engineer's Representative, he shall be entitled to refer the matter to the
Engineer, who shall tl~erenponconfirm, reverse or vary such decision.
1. Unlike the I C E Conditions, 5th Edition, no forlnal arrangement is
established in the contract that enables a n assistant or assistants to be
appointed to the Engineer's Representative, each in his turn having his
own formally delegated powers. Administratively this must, o n a large
pl-oject, create a bottle-neck ~ullessthe Conditions have been suitably
amended.
2. T h e function of tlie Engineer's Representative is essentally to watch
and supervise the construction. These relatively superficial powers may be
extended by the Engineer delegating to the Engineer's Representative
certain powers and authorities vested in the Engineer. Where this is done
both the Contractor and E~nployerare to be provided with a copy of all
sucll written delegations. Unlike the I C E Conditions, 5th Edition, there
appears to be no constraint on the scope of delegation that nlay be made
to the Engineer's Representative.
T h e limitations possibly placed on the Engineer l~imself,and therefore
at second hand also on his Representative, which as noted under Clause
2(1), must be set out in Part 11 of the Conditions, must however always be
appreciated.
3. T h e Limitations on the unfettered powers of the Engineer, as
previously noted, are highlighted to accord with the legal codes of certain
countries in which these Conditigns are used.
4. It should be noted that failure by the Engineer's Representative to
disapprove work or ~naterialsat the titne shall not prejirdice the power of
tlie Engineer himself to require such work to be pulled down or removed
thereafter. T h e Contractor should not, therefore, be tempted t o seek to
get the Engineer's Representative to pass work which he night know in
his 11eart o f hearts was not up to specification. Subsequently, if he is
required to I-emove it. the costs involved would be radically gl-enter than
Tlie Engineer nild Coiwfr.ucrion Ii;for?ilrrtioi~ 27
l ~ a d he, of his owl1 volition, ensured that the defective work was
appropriately remedied a t the proper time.
5. Should the Contrzlctor be dissatisfied with any instruction issued by
the Engineer's Representative, he is entitled to refer the matter to the
Engineer, who shall either confirm, reverse o r vary such decision. This
right of appeal, handled with discretion, can be a most effective way of
curbing a possibly over-enthusiastic and inexperienced young Engineer's
Representative who lnay be acting in an unreasonable way t o the
probable detriment of both Employer and Contractor.
Clause %Assignment
The Contractor shall not assign the Contract or any part thereof, or any benefit
or interest therein or thereunder, otherwise than by a charge in favour of the
Contractor's bankers of any monies due or to beco~nedue under this Contract,
without the prior written consent of the En~ployer.
1. T h e process of assigtnnent means that the liabilities and obligations
of a party t o a contract are undertaken by someone else. Assigmnent
differs from sub-letting, therefore, in that in the case of sub-letting,
should the person to who111 work has been sub-let fail in his obligations,
the other contracting party still has recourse to the person with whom he
originally contracted.
2. By the combination, therefore, of Clause l(l)(a) and this clause,
neither party can assign their rights under the contract without the
written approval of the other.
Clause 4--Sub-Letting
The Contractor shall not sub-let the whole of the Works. Except where otherwise
provided by the Contract, the Contractor shall not sub-let any part of 111e works
without the prior written consent of the Engineer, w11ich shall not be
unreasonably withheld, and such consent, if given shall not relieve the Contractor
from ally liability or obligation under the Contract and he shall be responsible for
the acts, defaults and neglects of any sub-contractor, his agents, servants or
workinen, as fully as if they were the acts, defaults or neglects of the Contractor,
his agents, servants or workmen. Provided always that the provision of labour on
a piecework basis shall not be deemed to be a sub-letting under this Clause.
1. T h e wording o f this clause differs only from the I C E Conditions, 4th
Edition in that:
 (a) T h e word 'prior' has been inserted before the words 'written
consent' in the second line, and
(b) the words 'which shall not be unreasonably withheld' have been
inserted in the third line.
2. If, as he almost inevitably will, the Contractor requires to sub-let
certain parts o f , the work, and this arrangement was not specifically
incorporated into the Contract in the first place, as for example by way of
a nominated sub-contract, then he n i ~ ~obtain
st the prior written consent
of the Engineer. The quicker these matters can be cleared with the
Engineer the better, and the less likelihood there is of delay stemming
from late approval at a later date.
3. Should the Engineer withhold consent, it is then up to the
Contractor to show that such approval has been mlreasonably withheld.
If lie can show this, the Engineer will have placed his Enlployer in breach
and the additional cost to which the Contractor niay have been put in
obtaining a revised and possibly niore expensive sub-contractor would be
clainlable against the Employer.
4. It should be noted that sub-letting the whole of the Works is totally
barred. The contract gives the Engineer no authority to allow this.
Should it be reqoired, this can only be done by direct agreement with the
Employer, and the specific agreement would then need t o be incorporated
as an a~nendnlent to the Conditions by mutual agreement of both
Employer and Contractor.
5. Total sub-letting, without tlie knowledge of the Enlployer o r his
Engineer, is comniercially and legally t o be avoided, since it will place the
Contractor in breach. If this were to happen, the E~nployerwould appear
t o have the remedy of determination under Clause 63(l)(d) o r (e), in that
the Contractor would not be executing the works in accordance with the
contract. The Contractor, after appropriate notice, could then find
himself liable to the Employer for any additional expense that the
Enlployer might suffer in consequence of the deten-111ination.
Clai~se5(1)-Governing Language and Law
There shall be stated in Part I1 of t1ies;~onditions:
(a) the language or languages in which the Contract docun~entsshall he
drawn up and
(b) the country or state, the law of which is to apply to the Contract and
accol-dingto which the Contract is lo be construed.
If the said documents are written in niore than one language, the language
according to which tlie Contract is to be construed and interpreted shall also be
designated in Part 11, being therein designated the 'Ruling Language'.
Cor71rf1erzt
1. This clause is, of course, uniqi~eto the international f o r ~ n .
2. It is quite colnnlon for two langi~agesto feature in a n i n t e r ~ ~ a t i o n a l
contract. One language is likely t o be the local tongue, and the other that
of the engineering consultants who drafted the contract in the first place.
3. Not only is the ruling language t o be stipulated in the Conditions of
Particular Application, but the Conditions of Particular Application t o
be inserted in Part I1 should also state the coontry to the law of which the
contract is subject and in accorda~lcewith which it will be construed.
Clause 5(2)-Ambiguities and Discrepancies
Except if and to the extent otherwise provided by the Contract, the provisions of
the Conditions of Contract Parts I and I1 shall prevail over those of any other
document forming part of the Contract. Subject to the foregoing, the several
docu~nentsforming the Contract are to he Wken as mutually explanatory of one
another, but in case of ambiguities or discrepancies the same shall be explained
and adjusted by the Engineer who shall thereupon issue to the Contractor
instructions thereon. Provided always that if, in the opinion of the Engineer,
compliance with any such instruction shall involve tlie Contractor in any cost,
which by reason of such ambiguity or discrepancy could not re;rsonably have
been foreseen by the Contractor, the Engineer shall certify and the Enlployer shall
pay sucli additional sun1 as may be reasonable to cover such costs.
Corflll?ef~t
1. Outside the area of pure engineering claims, the most common
source o f claitll is anibiguities and discrepancies in the contract
documents.
Inevitably a fair and satisfactory resolution of this type of claim, fro111
a contractor's standpoint, is likely t o pose difficulties. T h e Engineel-, who
will have been concerned with drafting tlie docutllent in tlie first place,
will be placed in some difficulty vis-a-vis his Employes, since, should he
have to certify additional monies, illen it is likely that those additional
monies will have had their origin in some act of error or o~nissionmade
by himself.
2. Whenever, therefore, an ambiguity o r discrepa~lcyis identified at
time o f tender, the ~ n a t t e rshould be cleared with the Engineer. T o
proceed into a contract with a known and recognised ambiguity is to
invite contention, disagreenient and probable loss o n the part of the
Contractor.
3. T h e International Conditions, unlike both the I C E 4th and 5th
Editions, give a n order of precedence for the interpretation of the vallous.'
docu~nents forming the contract, in which the contract Conditions
theinselves take first place. If, therefore, the Conditions were to say one
thing and the specification another, it would be by the Conditions that

the Engineer, an arbitrator o r the Courts would be guided, rather than by
the specification.
Equally, if matters of interpretive doubt exist between the General
Conditions and the Conditions of Particular Application, it would be the
C o n d i t i o ~ ~ofs Particular Application that would take precedence in ally
country influenced by English law, since those Conditions would be
dee~nedt o be t h e very ones that had been considered by the parties as
particular to the contrack and would, therefore, take precedence over any
standard printed condition.
4. The English courts have developed a number of other rules to
establish the meaning of a Contract that is not clear, in addition to the
foregoing, of which the c no st significant in relation t o a clai~narising fi-om
ambiguity is that
5. Reliance o n this sort of asgunlent should only, however, be used in
the case of a 'latent ambiguity', as distinct from a 'patent ambiguity'.
A patent ambiguity is one that is readily apparent o n the face of the
documents and should have been capable of identification and clari-
ficatio~la t time of tender.
A latent ambiguity, however, poses a more difficult situation, since it
will only arise in a case where a form of words a t time of tender may by
one o r the parties have been taken t o tnean one thing whilst to the other
party they equally positively were taken to mean something entirely
different, and, by the llormal use of words, both interpretations would
appear equally supportable.
6. Where, because the ambiguity is of a latent nature a n d it will thus
not have been possible to resolve the matter at time of tender, and
because of this the Contractor has been involved in cost, then the
Engineer is required to certify, and the Employer t o pay, such additional
sum as may be reasonable to cover such cost.
7. The criteria that influence the adrnissio~lof such costs into the
acconnts are threefold in that:
(a) in the opinion of the Engineer such cost has been incurred,
(b) the Contractor did not anticipate the cost, and
(c) the Contractor had reason not to anticipate the cost.
8. The word 'cost' should be taken to mean the 'additional cost' t o
which the Contractor has been put as the normal and inevitable
consequence of the ambiguity and would include, for claim purposes, the
Contractor's on-cost and overheads, whether o n o r off the site, as noted
under Clause l(4).
The Engineer nncl Consrrucriot~I~zforrnnfion 31
Clause &Drawings and Instructions, Disrtlption and Additional Cost
Arising from Late Issue
(1) The Drawings shall remain in the sole custody of the Engineer, but two
copies thereof shall be furnished to the Contractor free of charge. The Contractor
shall provide and make at his own expense any further copies required by him. At
the completion of the Contract the Contractor shall return to the Engineer all
Drawings provided under the Contract.
(2) One copy of the Drawings, furnished to the Contractor as aforesaid, shall
be kept by the Contractor on the Site and the same shall at all reasonable times be
available for inspection and used by the Engineer and the Engineer's
Representative and by any other person authorised by the Eilgineer in writing.
(3) The Contractor shall give written notice to the Engineel. whenever planning
or progress of the Works is likely to be delayed or disrupted unless any further
drawing or order, including a direction, instructiol~or approv;tl, is issued by the
Engineer within a reasonable time. The notice shall include details of the drawing
or order required and of why and when it is required and of any delay or
disruption likely to be suffered if it is late.
(4) If, by reason of any failure or inability of the Engineer to issue within a
reasonable time in all the circu~nsta~~ces any drawing or order requested by the
Contractor in accordance with sub-clause (3) of this Clause, the Contractor
-
suffers delav andlor. incurs costs then the Ell~ineershall take such delav inlo
account in determining any extension of time to which the Contractor is elltitled
under Clause 44 hereof and the Contractor shall be paid the amount of such cost
as shall be reasonable
Cor~~n?enr
1. Sub-clauses (1) a n d (2) of this Clause are reminiscent of the ICE
Conditions, 4th Edition and are no tnore than points of administrative
detail.
2. Sub-clauses (3) and (4), however, are of the greatest significance;
they a r e closely aligned to the philosoplly introduced into the ICE
Conditions, 5th Edition, which recognised the burden placed o n a
contractor should he receive infor~nationa t a n unreasonable time.
3. Sub-clause (3) co~ltainsan inlportant 'condition precedent' to the
Contractor's right to be provided with additional drawings o r other
information. If the Contractor requires additional information, he must
have asked for it in writing. If he failed to ask he cannot complain that he
has not received the illfornlation required and neither can he then lodge a
clai~no n that ground.
4. -The nature of the notice required is a detailed one in that it must
provide:
(a) details of the drawing o r inforn~ationrequired,
(b) the reason for which it is required,
(c) the date by which it is required, and
(d) details of the delay or disruption likely to be suffered should it be
late.
32 Cl~npter4
5. It is clearly essential that the Contractor should have been informed
by the Engineer of the delegated authority authorised t o be the recipient
of a notice for information under the sub-clause.
6. It is perhaps a little strange that sub-clause (3) has not used the
word 'adequate' in relation t o the written notice t o be given. Under the
I C E conditions, 5th Edition 'adequate notice in writing' is to be given,
meaning in context that the notice must be given at a reasonable time.
The J C T Form of Contract deals with the question of the service of
notice in writing for additional information in a lucid form of words that
are appropriate in guiding the Contractor's actions under this Contract:
'which having regard to the date of completion or to any extension of
time then fixed was neither unreasonably distant from nor unreasonably
close to the date on which it was necessary for him to receive the same.'
T h e question of deciding reasonablet~essor otherwise of the time at
which notice for additional information is served will often produce
dificulty, and the more so on an overseas contract, with its additional
commuuication problems. It is obviously unreasonable on the first day of
a major contract to expect that every single piece of information shall be
issued immediately, and it is obvionsly equally unreasonable t o delay the
written request for additional information until the day prior to its being
required.
I n practice, each case must be taken on its merits having regard to the
delivery times that might be required for materials, the lengths of time
that would be required for drawing preparation and their transmittal t o
site, the consequential effects on other works and the time that would
nor~nallybe required t o marshal labour and plant.
Although n o clue is given i n t h e clause as t o the time at which notice is
to be served, the writer has no doubt that if the service of notice was
given a t an ul~reasonabletime, that notice could legitimately be treated
by the Engineer as invalid and n o longer carry with it any possible
remedy under sub-clause (4).
7. Clearly the Contractor can only be expected to ask for additional
information that is pertinent t o the works defined in the contract. He
cannot be expected to be a mind-reader and ask for information about a
variation when the variation has not yet been issued by the Engineer.
8. Having given adequate noticeain writing t o the Engineer requiring
the p r o v i s i o ~of
~ additional information, and that i n f o r m a t i o ~not
~ then
being forthcoming, the delay and additional cost ste~ningfrom it would
fall within the orbit of sub-clause (4).
By spelling out the consequential effect and re~nedyif the Engineer fails
to prodoce the information required, the sub-clause introduces a
significa~itdeparture from the earlier Second Edition of the International
Conditions. Previously claims arising from the late issue o f illformation
had always tended to be somewhat contentious, althougl~the production
of informati011 by the client or client's agent in due time may nevertheless
always have been cot~sidereda basic co111111on law obligation.
It should be noted by reference to Clause 44 that the Contractor still
needs to serve the relevant written notice o f delay and cost incurred
through the late receipt of information, as a 'condition precedent' to
6stablishing his right to an extension of time and additional payment to
be considered by the Engineer under Clause 52(5).
9. By reference to the words 'Contractor shall be paid the amount of
such cost' one is inlrnediately drawn back t o the definition given under
sub-clause (4) of Clause 1 where the word 'cost' was dee~nedto include
overhead costs, whether on o r off site. A delay such as might arise under
the terms of Clause 6 therefore clearly carries with it a right to overhead
ieimbursement.
Clause 7-Engineer's Powers to Issue Ftlrtl~erDrawings and I~~structions
The Engineer shall have full power and authority to supply to the Contractor
from time to time, during the progress of the Works, such rurther drawings end
instruclions as shall be necessary for the purpose of the proper and adequate
~secutionand snni~~tenance of the Works. The Contractor shnll carry out and be
bou~~clby the same.
1. T h e wording used in this clause is si~ililarto that contained in the
I C E Conditions, 4th Edition.
2. T h e clause establislles a n obligation 011 the Engineer t o provide such
further drawings and instructions as shall be necessary for the purpose of
the proper and adequate execution and maintenance of the works.
T h e crucial word here is 'proper' and in defining what is proper, regard
111ust be had not only to the amount and scope of information required,
but the time at which it is reasonably required having regard for the
Contractor's programme, or any reasonable proposal that 11e may have
111ade as to the manner and order in which he proposes t o execute the
works.
3. I f the Engineel- provides il~formationa t a time that is not 'proper',
he will have failed to provide the illformation 'from time to time during
the progress of the Works as shall be necessary' and thereby he will canse
his enlployer to be in breach of contract.
Again, however, if breach is t o be den~onstrated,the request in writing
for the information must have been made as a condition precedent under
Condition 6(3).
 The Engineer rrr~rlCoirstrric~ioliI~~fornintio~z 35

STANDARD LETTERS AND FORMS You will be aware in the meanwhile that we are contractually unable to
accept instruction fro111 .............................. save only in respect of
supervision of the work and the testing and exatl~i~lation of materials and
Reference: FIDIC/l workmanship and that this situation is presently hampering/will shortly
To: The Enlployer hamper the progress of the work.

Dear Sirs Yours faithfully

Contractor Limited
We refer to your request made in your letter dated ........................ /
recently intimated to us concerning your wish to assign your rights and
liabilities under the contract to .................................... pursuant to
Clause l(l)(a) of the Conditions. Reference: FIDIC/3
To: The Engineer
We are pleased to assent to your request [subject to assurances
satisfactory to us that the assignee is fully aware of his current and future Dear Sirs
liabilities to ourselves under the contract]/regret that we are unable to
assent to your request.

Yours faithfully We have recently received an instructio~~ from .................... .

....... .,
the Engineer's Representative, relating to ..............................

Contractor Limited We believe this instruction to be outside the authority/contrary to the

intentions of the Contract and express our dissatisfaction with it pursuant
to Clause 2(2)(b) of the Conditions and request that it be withdrawn/
reconsidered.
Reference: FIDIC/2
To: The Engineer Yours faithfully

Dear Sirs Contractor Limited

Request for Notificntior~ of' /fie Delegrrled Polvecr of rlle Eilgiireer's

Represnrtnfive
Reference: FIDIC/4
We note that we have not yet received written notice ol' the powers To: The Engineer
delegated to the Engineer's Representative, ....................... .
.......
pursuant to the requirements of Clauses l(l)(d) and 2(2) of the Dear Sirs
Conditions.
Reqrresffor Scrizcrioi~to Sub-Ler
To facilitate the ~llutuallyefficientadministration of the contract both we,
and presu~nablythe En~ployer,require notice of these delegated powers We request consent to sub-let the followi~lgitem/iten~sof work to the
as soon as possible. underme~ltionedfirmlfirms pursuant to Clause 4 of the Conditions.
 The Elzpir~eermid Colut~l~crion
Il~forn?crtiori 37

Reference: FIDIC/6
To: T h e Engineer

Dear Sirs

Reqrrest for Arldifiorr~~l

I1lforn7ulion
We believe the firm/firrns to have the degree of competelice and resource
appropriate to the satisfactory and timely execution of the work/works Exainination of the various drawings, specifications, approvals and
involved. instructions in our possession leaves us in some doubt as t o the details
of/specification for/firm t o be noininated for ..................... . .....
Yours faithfully
Without further information we will be unable to arrange for con-
Contractor Limited struction of/order materials for/huild ............................ thus causing
the work and following activities to be delayed with inevitable additional
consequential cost.

Reference: FIDIC/5
To: T h e Engineel
Dear Sirs
I n the course of our examination and use of the various contract
docunleilts in connection with the works, a n apparent ambiguity/
discrepancy has been identified relating to the bill description/lack of a
bill item/contradictory information as between specification and draw-
ings figured and scaled dimensions for ............................................
.................................................................................... in that
..................................................................
T o prevent this happening Lhe necessary drawings showing ...............
.........................
details of specification/approvaI/no~~ii~~atio~i
must be
received by us not later than ..............................
We make this request pursuant to Clause 6 ( 3 ) of the Conditions,
believing the request, in relation to our programme, to be neither ~ ~ n d u l y
close to nor unduly distant from the time when we might reasonably be
expected to need the i~lfornlationdetailed.
Y o w s faithfully
Contractor Limited

We therefore request clarification on Lhe point pursuant to Clause 5 ( 2 ) of

the C o ~ ~ d i t i o and
n s if necessary the issue of an instruction. Reference: FIDIC/7
To: T h e Engineer
[Should ally iilstructioti issued be such as to cause us to incur extra
Dear Sirs
expense which could not reasonab'ly have been foreseen, we note that any
additioi~alsun1 will be certified t o cover such cost.]

Yours f;~itIifully
By reference to our submitted programme and our letter reference
.................. dated ..................... requesting i~iformation/approval/a
Contractor Liiniled fir111 to be nominated for .................................. .., i t will be apparent
that its non-receipt/failure to approve/failure to nominate is now
38 C/irrpfer4

delaying/will inevetably delay our works and we therefore give notice of Reference: FIDIC/E/Z
delay and additional cost pursuant to Clause 6(4) of the Conditions. To: The Contractor

We will be ~naiiltaining such contemporary records as we believe Dear Sirs

necessary, or may be required by you, to substantiate our additional costs
and support our request for an extension of time pursuant to Clause 44.
The additional payment to which we consider ourselves entitled will be
registered in our Monthly Payment Application together with as full and
detailed particulars as can reasonably be provided in view of prevailing
circumstance and time of applicatioi~as required pursua~ltto Clause
52(5) of the Conditions.
Yours faithfi~lly
Contractor Limited
Response to n Notice of Dissntirfncriori ivitli rill Iiistrrtction of' tlie
Engirleer 's Represeritrrtive
We refer to your letter dated ........................ reference ..................
concerning an iilstructio~lof ........................... ... given concerni~lg
We note the dissatisfaction expressed but confirm/and withdrawl
and vary the it~struction [and now require that you should
.............................................................................................
.......................................................................................... I.
We give this response pursuant to Clause 2(2)(b) of the Conditions

Yours faithfully
Reference: FIDIC/E/l
To: The Contractor
Consulta~~ts
Partnership
Dear Sirs

Notice of tire Delegc~teclPoiser of rile Eirgineer's Represerifnrive

We hereby inform you that .......................... . ........, acting as the

Engineer's Representative, is given delegated authority to act generally in
respect of the contract/specifically in respect of the undernoted particular Reference: FIDIC/E/3
clauses of the Conditions of Contract: To: The Contract01

(a) Dear Sirs

(b)
(c) ......................... .
...
........................................ Approscil of Reqlrest for Sclrlctiorl to Sub-let
(dl
This delegated power is given pursuant to Clause 2(2) of the Conditions. We refer to your letter dated ........................... reference
requesting permission to sub-let the under-noted work.
Yours faithfully

Consultants Partnership
40 Cl~aprer4 Tlie En~irleerarrrl Colwtrlrctiorr Irlfb~~rrrrrtiorr 41
Our consent is give11 pursuant t o Clause 4 of the Conditions. We refer t o your letter dated ........................ reference ................
detailing an apparent discrepancy/ambiguity in the docun~entsforming
Yours faithfully the contract.

Consultants Partnership [We do not accept that there is any discrepancy/ambiguily since if you
examine .......................... . ...................... you will observe that
............................................. and you should therefore proceed to
construct the works accordingly.]
Reference: FIDI C/E/4
To: The Colltractor
[We thank you for drawing our attention to the matter [in such a tiniely
way] and agree with you that there does appear to be a(n) ambiguity/
Dear Sirs
discrepancy in the documents. Pursuant t o Clause 5 ( 2 ) of the Conditions
we therefore instruct you t o .......................................... ]
Derricrl oJ'Reqrresr for. Srrrrcriorl ro Sub-ler
Yours faithfully
We refer to your letter dated ........................ reference ..................
requesting pernlission to sub-let the under-noted work.
Consulta~ltsPartnership
Irerv of Work Firrr?
...........................
...........................
................................................ ........................... Reference: FIDIC/E/6
To: The Contractor
We regret that we are unable to give our consent to your request pursuant
to Clause 4 of the Conditions. Dear Sirs
[You will appreciate that this denial of consent is a matter of sollle
delicacy and whilst not wishing to put our reasons for the denial in of r/?eSI/(,/,/)Jo f Donuirerrrs Free o f Cliorgr
Cor7jrr~1nriorr
writing, we are prepared to discuss the matter with your representative.]
We con&-m the issue herewith of two copies free of charge of the
[Our reason for this decision is that ..................... .
..................... drawings/[and] various documents listed in the appended schedule
....................................................................................... I pursuant to Clause G(1) of the Conditions.

Yours faithfully Yours faithfully

Cotlsulta~ltsPartnership Consultants Partnership

Reference: FIDIC/E/S Reference: FIDIC/E/7

To: The Contract01 To: The Contractor
Dear Sirs Dear Sirs

oJ'Norice oJ Delnr)' irr rlre Issue oflrrfbr~rrrrfiorl

Arkrroivlerlyeri?er~t/Rebi~flnl
42 Clin[~ter4

We refer to your letter dated ........................... reference ...............

giving notice that y o i ~consider the infor~llationrequired for . .. . ....... . .. .
Construction Dnsfnbution
Con,racior

not to have been issued a t a time reasonable in all the circumstances. Information R'lvinoneEOpy
Englneei
Issue and Reprerenlallueunder Blue
CIa"seSS,II
[We d o not accept the validity of your notice, since 110 notice as a Receipt Note
condition precedent has been given by you under Clause 6 ( 3 ) requesting
the inforn~ation concerned/[and] your current approved Clause 14 Engineer's Name and Address IssueNumber
programme clearly deinonstrates that the information is not yet requiredl
[and] your actual cotlstructio~lprogress is not such as would reasonably
make the i ~ ~ f o r n ~ ayet
t i onecessary.]
~~

[We acknowledge that the i n f o r m a t i o ~previously

~ requested by you has
not yet been provided and that in consequence you are being caused
delay/likely t o be caused delay.]

[We note that any such delay is [not] critical to the timely construction of
the overall works/liable to delay section ............ of the works.]

Yours faithfully

Consultants Partnership

Reference: FIDIC/E/S
To: T h e Contractor

Dear Sirs

Co~lfir~nation
ofrlie Issrre ofFurrher Morliferl Drawings

We confirm the issue herewith of two copies of modified/[and] further

drawings pursuant to Clause 7 of the Conditions as listed o n the attached
'Drawing Receipt Note'.

You are asked to detach, date, sign and return the detachable section of
the form acknowledging safe receipt by you of the listed drawings.

Yours Pdithfully

Consultants Partnership
44 Clzrrptei. 4
Form Number E W E
Reference: FIDIC/E/9
To: The Co~ltractor
Engineer's Distribut~on hlle

Instruction me"
Blue prolect Number

Dear Sirs
611 Contract Number

Issue of' rrrr Et1girleer.k Irulrrrctiorr irr Arr~~~l~firrrriorr

of //re Cofrrl.nct
Docrrr~ze17ts Engineer's Nameandaddress Project Title

We confirm the issue of the attached 'Engineer's Inslruction'. This

instruction is issued pursuent to Clause 7 of the Collditio~~s
and is no1 a
variation order under Clause 5 l(1).

Yours faithfully

Consultallts Partnership
lEngineer/Engineer's Representative1

Date

CHAPTER 5
Basic Obligations
Clause 8-Responsibility for Construction and Design
(1) The Contractor shall, subject to the provisions of the Contract, and with
due care and diligence, execute and maintain the Works and provide all labour,
including the supervision thereof, materials, constructional plant and all other
things, whether of a temporary or permanent nature, required in and for such
execution and maintenance, so far as the ~~ecessity for providing the same is
specified in or is reasonably to he inferred from the Contract.
(2) The Contractor shall take full responsibility for the adequacy, stability and
safety of all site operations and methods of construction, provided that the
Contractor shall not be responsible, except as may be expressly provided in the
Contract, for the design or specification of the Permanent Works, or for the
design or specification of any Temporary Works prepared by the Engineer.
1. T h e contract requires that the Contractor shall construct, co~iiplete
and maintain the works. T h e requirement to provide the resources at the
rates tendered for the measured work shall however be limited to the
extent that such work is specified in o r reasonably to have been inferred
from the contract. T h e Clause is not, as some eugineers might wish t o
imagine, a 'carte blanche' requirement that the Contractor shall carry out
every requirement of the Engineer and that it shall be deemed t o be
included within the rates.
2. The contract now recognises a fundamental division of responsi-
bility between the Contractor and the Engineer:
(a) that the Contractor shall be responsible for the methods en~ployed
in construction,
(b) that the Engineer shall be responsible for the adequacy of the
design of the p e r ~ n a ~ i e n.works
t unless in the particular of an
iudividual contract certain of tlie permanent works have been
specified to be Co~itractor-designed,
(c) that any temporary works of a special and fundamental nature
designed by the Engineer shall also be llis responsibility.
It is, however, doubtful whether the terms of this clause override the
common law obligation of a Contractor t o exercise professional skill in
the perfonnance of his work. Were he t o erect a structure fundamentally
Basic Obligatio~zs 47
unsound in design, the unsoundness of which ought properly t o have
bee11 recognised by a reasouably skilled Contractor, it is questionable
whether the Conditiotls would exonerate him in the event of its collapse.
Clause %Contract Agreement
The Contractor shall when called upon so to do enter into and execute a Contract
Agreement, to he prepared and completed at the cost of tlie Employer, in the
form annexed with such modification as may be necessary.
1. It is not normally necessary for the coutract agreement to have been
co~npletedto bring the contract into existance. Normally, unless the law
of a n iudividual country would otherwise provide, the contract comes
into being at the time of the acceptance of the Contractor's tender. This
point is made in Clause 1(1)(f), in which it talks of the contract
documents comprising, among others, the tender, letter of acceptance
and the contract agreement if completed.
2. However, in view of the rather higher likelihood of contractual
problems arising on overseas projects, it is recommended that a formal
agreement be completed wherever possible.
3. A standard form of agreement is attached t o the Conditions, but it
is recognised, in view of the variance in circumstances and law affecting
overseas projects, that it may be necessary t o modify it.
4. If the parties require the contract to be made under seal it will be
necessary for a written agreement t o be con~pleted.T h e effect of making
the coiltract under seal will then depend o n the law of the particular
country concerned. Under the U K Statute of Limitations it would have
the effect of extending the period of liability from 6 to 12 years, but
whether this would also apply o n a n overseas project would depend o n
the law which is to be applied t o the Contract as defined in the
Conditions of Particular Application.
Clause l&Performance Bond
If, -for the due performance of the Contract, Llle Tender shall contain an
undertaking by the Contractor to obtain, when required, a bond or guarantee of
an insurance company or bank, or other approved sureties to be jointly and
severally bound with the Contractor to the En~ployerin a sum not exceeding that
stated in the Letter of Acceptance for such bond or guarantee, the said insurance
company or bank or sureties and the terms of the said bond or guarantee shall be
such as sl~allbe approved by the Employer. The obtaining of such bond or
guarantee or the provision of such sureties and the cost of the bond or guarantee
48 Cllapter 5 Basic Obligrrrioits 49
to be so entered into shall be at the expense in all respects of the Contractor, S T A N D A R D LETTERS A N D F O R M S
ullless the Contract otherwise provides.
Reference: FIDIC/E/lO
To: The Contract01
1. T h e liability of the Contractor t o obtaitl a performance bond o r
Dear Sirs
guarantee will only apply if the tender contained a n undertaking that he
sho~hcld o so. ~.
S~,bi?~issio~i
of Co~irrcrclAgreer~ie,itfor Esecrrrioiz
2. In effect, therefore, although the Clause states that the cost of the
bond to be so entered into shall be a t the expense of the Co~ltractorin all We e~lclose[two copies OF] the contract agreelneut to be signed [sealed]
respects, the Contractor will have had opportunity at tilne of tender to and wit~lessedby you pursuant to Clause 9 of the Conditions.
price accordingly and t o have included the cost of the bond in his bid.
3. T h e clause in the 3rd Edition n o longer mentions a 10% bond and it [Please return the completed agreement to us.]
is very conllnon for some different, and usually higher, percentage to be
required. [Please retain one copy of the agreement and return the other duly
4. It is not uncommon in an overseas tender for the Cotltractor to be co~npletedto us.]
asked to give a tender bond. This should not be co~lfusedwith the
perforllla~lcebond dealt with under Clause 10. When the Contractor Yours faitl~fully
subn~itshis bid, he may be asked to deposit a sum of money in a way
stipulated in the tender documents. Should he withdraw his tender prior
Collsultallts Partnership
lo the acceptance of his, or one of his competitor's bids, then the sun1
deposited will be forfeit.
5. This lealure of tendering is not ellcou~lteredin the UK. It places a
severe pel~itltyon the Col~lractorshould he need, for s o ~ n ec o n ~ n ~ e r c i a l Reference: FIDIC/E/ll
reason, such as a seriously incorrect bid or an over-full order book, l o To: T h e Contractor
withdraw his bid.
6. In all, four distinct types of bond are likely to be encountered in Dear Sirs
overseas work:
Request for Srrbrnissioir of Boild
(a) a performance bond,
(b) a tender bond, Wc refer to the undertaking contained in the tender requiring the
(c) a bond to secure a down-payment or ~ ~ l o b i l i s a t i o
payment,
l~ submission of a bond by you for the due performance of the contract
(d) a bond in lieu of retention money. pursuant to Clause 10 of the Conditions.
7. The wording of the bond on an overseas project should also be Prior to its sublllission your proposed surety is required to be approved
carefully checked. It is quite common for the bond to be of the type by the E~nployerand we would be pleased to receive ~lotificationof the
known as an 'on demand' bond. This means that the Elnployer can call 01-ganisationproposed by you in order that approval may be given.
the bond on his own first demafid without necessarily having to produce
evidence of default. Fro111 the En~ployer'spoint of view this is a far more The Corln of bond required shall be that attachi~lgto the Conditions oC
effective bond than will normally be encountered in the UK, but it is Contract.
unfortunately prone to abuse and this is likely to be reflected in the cost
charged to the Contractor for obtaining such a bond. Yours Caithfully

Co~lsultantsPartnership
 Site Inspection arzcl rhe Unespectecl 51

have been obtained by or o n behalf of the Employer from investigations

CHAPTER 6
Site inspection and the Unexpected
Clause 11-Inspection of Site
The Employer shall have made available to L11e Contractor wit11 the Tender
docu~nentssuch data on l~yd~~ological and sub-swface conditions as shall have
been obtained by or on behalf of the Employer from investigations undertaken
relevant to the Works and the Tender shall be deemed to have been based on such
data, but the Contractor shall be responsible for his own interpretatior~thereof.
The Contractor shall also be deemed to have inspected and exanlined the Site
and its surrou~~dings and information available in connection therewit11 and to
have satisfied himself so far as is practicable, before submitting his Tender, as to
the form and nature thereof, includillo the sub-surface conditions, the
hydrological and clinlatic conditions, the extent and nature of work and materials
l~ecessaryfor the completion of the Works, the means of access to the Site and the
. and, in -general, shall be deemed to have obtained
accommodation be mav. reouire
all necessary infornlation, subject as above mentioned, as to risks, contingencies
and all other circun~stanceswhich may influence or affect his Tender.
Co~~zrflenl
1. T h e message of this clause is that the Contractor shall d o all that
can be done, so far as is practicable, t o satisfy himself before submitting
his tender as to the adequacy of his rates in relation t o the information
given to hi111 and his enquiries about matters o n which he has been
provided with no information.
2. Of all the clauses in the contract, this will be the one that leads to
the greatest interpretative contention. In a claim situation the Engineer's
fall-back position will invariably be that the Contractor should have
made enquiry and ascertained for himself the nature of the risk that he
was undertaking.
When this argument is used, As it regularly will be, always note the
words in the Clause 'subject as above mentioned', which indicate that
over and above any information that the Contractor may have obtained
by his own enquires he shall place precedence o n the information given to
him in or with the tender documents.
3. The Clause cotmnences by placing on the Enlployer a specific
obligation by the use of the words 'the E~nployershall have made
available such data on llydrological and sub-surface conditions as shall
50
taken relevant to the Works'. T h e Contractor is then specifically required
to base his tender o n the data provided whilst retaining unto himself the
responsibility for the way in which he interprets that information.
Since almost any information will always be capable of shades of
interpretation, the word 'reasonable' must always be considered when
deciding the conclusion that could have been drawn by 'interpretation'.
T h e Third Edition has introduced a subtle change in relation to the
i ~ ~ f o r n ~ a tprovided
io~l to the Contractol- aud its status within the contract.
In the earlier Second Edition the Co~ltractorwas required t o base his
tender o n such d a t a 'as shall have been supplied by the Employer in the
docunlents furnished t o the Co~ltractorby the Employer for the purpose
of tendering'. It will be observed that there was n o specific obligation
placed upon the Employer to provide iuformatio~lif it existed, whereas
under this Edition such a n obligatiou specifically exists. Presumably were
the Employer deliberately not to have provided i ~ ~ f o r m a t i owhich
ll did
exist and which had bee11 gleaned from investigations u~ldertaken
relevant t o the works, he would be guilty of contiactoal breach.
4. If the information does exist, the E~nployeris required to provide
data on:
(a) hydrological conditions, and,
(b) sub-surface conditions.
Such data would presun~ably cover the information obtained from
boreholes as t o ground c o ~ l d i t i o ~ land
s the strata t o be encountered,
together with infor~nationo n sub-surface water and the effects that tidal
c o ~ l d i t i o ~might
ls have o n it.
It will be noted that, unlike the earlier Edition, climatic c o n d i t i o ~ ~are
s
not a subject upon which the Employer is either required or encouraged
to give information t o the Contractor. This, quite specifically, as is show11
by the second paragraph of the clause, should be ascertained by the
Contractor rrom his own enquiries.
5. T h e items up011 which the Contractor is deemed to have obtained
informatio~lby his own enquiries and upon which his tender should be
based are as follows:
(a) form and nature of the site,
(b) extent of work,
(c) nature of work,
(d) materials,
(e) means of access t o site,
(f) accommodation reqoirecl,
(g) sub-surface conditions (but only t o the extent that infor~naiionhas
not already been provided by the Employer),

(h) hydrological conditions (but only to the extent that information
has not already been provided by the Employer),
(i) climatic conditions, and
(i) all necessary information as t o risks, contingencies and all other
circumstances which may influence o r affect his tender.
6. It will be observed that the Contractor is still required t o satisfy
l~imself as t o t h e quantities and nature of the work and materials
necessary for the completion of the works. This was also a requirement
under the earlier Second Edition, which referred Lo 'quantities and nature
of the work', whereas tliis Edition refers to 'extent and nature of work'.
In the context of the Contract the words 'quantity' and 'extent' would
appear to be synonymous.
There is no Clause in these Conditions equivalent to Clause 56(2) of
the ICE Conditions, 5th Edition, under which, sl~ould the actual
quantities of work executed in respect of any item be greater o r less than
those stated in tlie bill of quantities, it might be possible for the work to
be re-rated. The 01111s therefore rests o n the Contractor at time of tender
to ensure that the rate placed against the item, regardless of the actual
quantity stated in the bill, is an appropriate rate for the quantity that will
actually be needed to coinplete the works a s indicated o n the contract
drawings.
If, therefore, the contract bills contained 100 cubic lnetres of a
particular item, whereas inspection of the site and drawings would have
shown that in reality 10,000 cubic nletres would. be required, the
Contractor under these Conditions would be expected to price at a unit
rate that would be applicable to the 10,000 rather than the 100 cubic
metre quantity.
Quite obviously this can lead to considerable swings and rou~idabouts
where either the Eniployer or the Contractor might, in a n individual case,
be the loser. The only protection that would appear to be offered t o the
Contractor would be that should the works have been grossly
nlisreprese~lted in total and quantity, he has the protection of the 10%
limit of variation stipulated in Clause 52(3). This Clause would, however,
only be of assistance if tlie aggregate effect of ON variations and quantities
diKering on remeasurement was t o exceed, either by way of o~nissionor
addition, the 10% limit slated. It would not cater for the situation in
which one qoantity had become gl-ossly distorted a s a 1-esult of a wrongly
stated initial quantity, if in total the 10% aggregate was not achieved.
7. Since English law and the protection of the Misrepresentation Act
1967 may not apply in overseas work, the Contractor may be left with no
remedy, and it is, therefore, doubly important in overseas work tliat the
accuracy of the gross quantities should be checked at tinle of tender and
prices adjusted accordingly.
Site Iirspectioi~mln' the U~~e.~pecter/ 53
S. In the situation where dispute may lurn on the knowledge or lack of
knowledge o f circ~~lnstances affecting the works, iL would be pleasiint to
imagine tlial the Engineer would have regard to the fact tliat the
Contractor may have been given substantially less time to satisfy himself
as t o quantities and other circumstances, than was available to the parties
who were responsible for the preparation of the tender doculnenls in the
first place. There is, however, no guarantee that such reasoning will
permeate the nlind OF the Engineer, particularly since, often, to admit
s ~ t c ha point might reflect adversely on the docunientation prepared by
hini in the first place.
9. T h e contractual significance of any information supplied with the
tender documents for the Contractor's guidance, o r made available for
his inspection prior to tendering, should be considered in tlie light of the
Misrepresentation Act 1967 1~E11glishla111n/~pliesto the corltrarl. If such
law does apply, the Engineer should not assume that he can necessarily
rely on the interpretation of tliis Clause to avoid the financial
consequence of inadequacy or inaccuracy in the infor~natioliprovided, or
shelter behind the protection of a disclaiming clause in the specification.
10. I n overseas work, the bill of quantities is not the established
document with the status that it enjoys in the UIC. Reliance sliould 1101
therefore be placed on the philosophy appropriate in the UK, that the
prime object of a bill of quantities is t o provide infornlation to the
tendering Contractor that will give him as true atid concise a piclure of
the works for which he is tendering, without laying traps for all other
than the clairvoyantly astute, as is practicable.
Clalrse 12-Sufficiency of Tender and Physical Conditio~lsand Artificial
Obstructions
The Contractor sh;~llbe deemed to have satisfied hiniselt' before tendering as to
the col-rectness and sufliciency of his Tender for the Works and or the rates and
prices stated in the priced Bill of Quantilies and the Schedule oC Rates and Prices,
if any, which Tender rates and prices shall, except insofar as it is otherwise
provided in the Contract, cover all his obligatioils nnder the Contract and all
rnittters and things necessary for the proper execntion and m;~intenanceof the
Works. If, however, during the execution of the Works the Contractor shall
encounter physical conditions, other than cli~naticconditions on the Site, or
artificial obstructions, which conditions or obstruc~ionscould, in his opinion, not
have been reasonably foreseen bv an exoerienced Contractor, the Contraclor
have been reasonably foreseen by an experienced Contractor, then the Eng~neer
shall certify and the E~nployershall pay the additional cost to which the
Contractor shall have been put by reason of such conditions, including the proper
and reasonable cost:
 Site ii~spectionm f d the U i ~ e x ~ ~ e c t e d 55

(a) of complying with any instrr~ctionwhich the Engineer- may issue to the
Contractor in connection therewith, and
(b) of any proper and reasonable measures approved by the Engineer which
the Contractor may take in the absence of specific instructions from the
Engineer,
as a result of such conditions or obstructions being encountered
Co~lditionswhere distance and connnunication problems lnay make
rapid instruction from the Engineer extremely difficult. It still does not
absolve, however, the Contractor from the basic liability to give written
notice in~mediately.

1. The first sentence of this clause is very similar to Clausel?(l) of the

ICE Conditions, 4th Edition in regard to the sufficiency of the
Contractor's rates. The sufficiency of the Contractor's tender and rates
extends to the works that are contracted to be executed. The adequacy of
the rates cannot, therefore, be deemed to include the sufficiency of tender
in relation to work that is not included in the Contract.
2. The second sentence, cornme~lcingwith the words 'If, however,
. . . ' is the equivalent of Clause 12(2) of the ICE Conditions, 4th Edition
in a much simplified form.
The following points are to be noted:
(a) If the Contractor encounters physical conditions or artificial
obstructions, he is required to give written notice forthwith (this
could be interpreted as a condition precedent to his right to claim
and if he were to delay notice unreasonably, this could lead to his
claim for proper and reasonable costs being time-barred).
(b) Unlike the earlier 2nd Edition, weather is excluded as a physical
condition and can now no longer, therefore, be the origin of a
claim under this clause.
(c) No provision for an interim arbitration exists as it does under the
ICE Conditions, 4th and 5th Editions.
(d) The ICE Conditions, 5th Edition specifically make provision for
the Contractor's costs in this context also to include profit. This is
not the case in the International Conditions, under which the
definition of cost in Clause l(4) applies.
(e) From the Contractor's staudpoint, he must rely solely on
extending the scope of the words 'proper and reasonable cost' as
widely as possible in order to obtain reimbursement for actions
that he may have:
(i) taken on the instructions of the Engineer, or,
(ii) undertaken without instruction in the absence of any specific
instruction, providing the measures are reasonable and are
later approved by the Engineer.
The provision for authorisation after the event is eminently fair in a set of

S T A N D A R D LETTERS A N D FORMS
Reference: FIDIC/8
To: T h e Engineer
Dear Sirs
Norice of Pliysiccrl %o~~rl;riot~s/Artificirrl
Obstt~~rcfior~s
Not Renso?rob(v
Foreseeable
During the execution of the works, we have encountered physical
co~lditio~ls other than such as would result fro111 climatic conditions/
artificial obstructions in the for111 of .........................
........ .......
.................. located .................................... which in our opinion
could not reasonably have been foreseen by a n experienced contractor
based on general tender representations/specific data provided on
hydrological/[and] sub-surface conditions, upon which our tender was
required to be based,/[o~-]site inspection and examination called for
under Clause 11 of the Conditions.
I-laving complied with the Engineer's instruction reference ...............
dated ........................ relaling to these matters/taken proper and
reasonable measures in the absence of specific instructions entailing
......................... we anticipate that these physical conditions/artificial
obstructions will cause additional cost [and delay] and therefore give
notice pursuant t o Clause 12 of the Conditions.
We will be ~nailltaining such contemporary records as we believe
necessary, or may be required by you, to substantiate our additional costs
and support our request for a n extension of t i n x pursuant to Clause 44.
The additional payment to which we consider ourselves elltitled will be
registered in our Monthly Payment Application together with as full and
detailed particulars a s can reasonably be provided in view of prevailing
circumstances and time of application as required pursuant to Clause
52(5) of the Conditions.
Yours faithfully
Site Inspectioil aild the Unexpected 57
Reference: FIDIC/E/lZ
To: The Contraclo~
Dear Sirs
Rebrrttnl of No rice of Plfvsical Cotzrlirio~!s/Art~icirrl
O b ~ r t ~ ~ r c t i oNor
t~s
Reasorlabb, Foreseerrble
We refer to your letter daled ........................ reference ...............
giving notice of the encountering of physical conditions/artificial
obstructions in the for111 of ................................. which you consider
could not reaso~iablyhave been foreseen by a n experienced contractor.
Having carefully considered the inror~nationmade available t o you at
time of tender, consisti~igof:
(a) ........................................................................
(b) ........................................................................
(c) ........................................................................
[and further having regard LO the extent l o which i t was practicable for
you Lo have made enquiries that would have identified the nature of the
problem now encountered] we inform you that we consider such problenl
to have been wholly/partly foreseeable pursuant to Clause 12 of the
Conditions.
[We therefore reject your notice and refute ally application made by you
for extension of time/[and] additional cost said l o arise fi-om the
conditio~~encountered.]
s
r o the extent that we cons~dersuch problen~to have been only partly
foreseeable, we will be pleased l o receive for c o n s i d e r a t ~ oan
~ ~estimate of
cost of the measures you propose to take so far as they relate to
[In view of the I'act that a variation has been previously ordered in Lhe
light of the difficolty encountered, the v a l ~ ~ofe such variation shall be
ascertained in accordance with Clause 52 and included in the Contract
Price.]
Yours faithfully

Consultants P a r t n e r s l ~ ~ p
.......
 Site Iiispectioli nrid t l ~ eUnesl>ecfed 59
Reference: FIDIC/E/13 modification/subjecl to modification in that ....................................
To: T h e Contractor ..........................................

This approval is given pursuant to Clause 12 of the Conditions/does not

Dear Sirs
extend to approval of your estimate of cost/cost subnlission, which will
be the subject of fitrtl~erinvestigation.
Reqiiest for E$rir,rate of the Cost of Menslrres to be Taken to S ~ i r ~ f i o u f f t
PIz).sicnl Corirlitions/Art~~cinI
Obstr.~rcrions
Yours faithfully
We refer to your letter dated ........................ reference ...............
giving notice of the encountering of physical conditions/artificial
Consultants Partnership
obstructions in the form of ................................. wliich you consider
could not reasonably have been foreseen by a n experienced contractor.

We consider your notice to have been validly given and require you to
give a n estimate of the cost of the measures you are taking/propose Reference: FIDIC/E/IS
taking to surmount the dificulties pursuant to Clause 12 of tlie To: T h e Contractor
Conditions.

Yours faithfully Dear Sirs

Consultants Partnership
We refer to your letter dated ........................ reference ...............
giving notice of the encountering of physical conditions/artificid
obstructiolis in the form of ................................. which you consider
could not reasonably have been foreseen by a n experienced contractor.
Reference: FIDIC/E/14
Since yo11 have given no indication of tlie measures you propose to take
To: T h e Contractor
to surmount the difficulty, you are instructed to ..............................
pursuant to Clause 12 of the Conditions.
Dear Sirs
This instruction is not a variation order under Clause 51, since we
consider the pl~ysical condition/artificial obstruction t o have been
reasonably foreseeable by a n experienced contractor and such instruction
is only given in default of any available proposal of your own.
We refer to your letter dated ........................ reference ...............
Yours faithfully
giving notice of tlie encountering of pliysical conditions/artificial
obstructions in the forin of ................................. which you consider
could not reasonably have been foreseen by a n experienced Contractor.
Consultants Partnership
T h e measures you are taking/propose taking are approved witliouL

CC-E
 cri7d rile Uiiexpected
Site ir~spectior~ 61

Reference: FIDIC/E/16 Clause 12 of the Conditions and note that you are being caused
To: The Contractor delay/likely to be caused delay.

Dear Sirs [We note that any such delay is [not] critical to the tinlely construction of
the overall works/liable to delay section ............... of the Works.]

Yours faithfully

We refer to your letter dated ........................ reference ...............

giving notice of the encountering of physical conditio~~s/artificial Consultailts Partnership
obstructions in the form of ................................. which you consider
could not reasonably have been foreseen by an experienced contractor.

We consider your notice to have been validly given and in view of the
magnitude of the problem and its probable effect on the design of the
perlnaneilt works, order a suspension of the works/that part of the work
being ........................ under Clause 40 pursuant to Clause 12 of the
Conditions to enable a full design study to be undertaken/[and] enclose
our variation order under Clause 51 varying the works to accom~~lodate
the proble~nencountered pursuant to Clause 12 of the Conditions.

Yours faithfully

Consultants Partnership

Reference: FIDIC/E/17
To: The Co~ltractor

Dear Sirs

Acl~iro11~lec/gei7re,,f
of Notice of D'elczj~Avisi~rg,fi.oin Plrysicrrl Corrcliriorrs/
Arrr$cinl Obsrr~rctioi7

We refer to your letter dated ........................ reference ...............

giving notice of delay arising from physical conditions/artificial
obstructions in that ...................................................

We acknowledge your notice to have been validly given pursuant to

CHAPTER 7
Programme and Method Statements
Clause l%Worli to be to tlre satisfaction of the C' ng'lrleer
Save insofar as it is legally or physically impossible, the Conuactor shall execute
and maintain the Works in strict accordance wit11 the Contract to the satisfactio~l
of the Engineer and shall comply with and adhere strictly to the Engineer's
instructions and directions on any matter whether mentioned i n the Contract or
not, touching or concerning the Works. The Contractor shall take instructions
and directions only from the Engineer or, subject to the limitations referred to i n
Clause 2 hereof, fro111the Engineer's Representative,
1. This clause lays down the Contractor's fundamental obligation
under the contract, which is to 'execute and maintain the Works'. It is
self-evident that the Contractor is obliged to execute the works in strict
accordance with the contract and t o comply with the legally and
physically possible instructions of the En;-1neer.
2. The wording of the clause is virlually the sanle as thal contained in
the I C E Conditions, 4th Edition, save only that at the end of the first
sentence the words 'touching or concerning the Works' have been added.
This a d d i t i o ~is~ significant in the context of overseas work, since it
formally states the English c o ~ n n ~ olaw n situation as regards Engineer's
instri~ctions,in that they can only be issued on matters that are germane
to the works.
3. Although in itself apparently conferring wide powers on the
Engineer to instruct the Contractor, this clause should not be read in
isolation TI-OI~ the other provisions of the contract. Any instructions
issued ]nust relate to the proper execution and maintenance of the works
in their original o r pernlissibly varied fonn, nature, character, quality or
content, as e~nphasisedby the additional words appended to tile clause
and ~nentionedin the preceeding paragraph.
It should also always be appreciated that the Engineer's autllority to
issue instructions requiring variation is again li~niteclas regards scope by
the important Clause 52(3). T h e Engineer should note that he is not
enlpowered t o deviate substantially fronl the intended objective or scope
of the works and that all he may require o r instruct musl be for the
achievement o r i~nplen~entation of the original contractual objective.
Certainly, shoold the Contractor be willing t o accept instructions for
the carrying out of work additional t o the scope of the original contract
o r outside its conte~nplation, he is not debarred from so doing, but
neither can he be expected to be tied precisely to the terms, conditions
and prices of the original contract unless he so elects.
4. This clause also provides a very i n ~ p o r t a n thook upon which it is
possible to hang one of the most contentious areas of claim-namely that
the Contractor is being required by the Engineer to carry out work to a
design that is legally o r physically i~upossibleo r tnsy, by any reasonable
nleans of construction, be totally impracticable. T o the extent. therefore,
that the carrying out of the works nlay require conlpliance with a n
instruction (which instruction could be in the form of a drawing), the
execution of which is physically impossible, notwithstanding that
completion of the Works by some other means is possible, then providing
co~llpletio~l is not possible according to the contract design o r designated
nlethod of working in regard t o all o r part of the works, the Contractor
would be entitled t o cease work unless a v a r i a t i o ~order ~ was given
enabling the work to be completed. This view is reinforced by the [act
that Clause 20 provides that damage to the Works during construction
'solely due to the Engineer's design of the Works' shall, if required by the
Engineer, be repaired and n ~ a d egood a t the cost of the Employer.
This is consistent with the view that the Contractor shall not be legally
bound to complete if the Engineer's design of the works makes illis
impracticable, and Clause 51(l)(e) makes provision for the E~lgineerto
order by way of variation additional work 'necessary for co~npletionof
the Works'.
5. I11 these situations, the Engineer will often argue that, if he varies
the work, he is varying it to suit the Co11tracto1-'s chosen method of
construction. The onus is upon the Contractor to denlonstrate that there
is no reasonable nleans o f c o n s t r u c t i o ~that
~ would enable the works to be
built-and, using the words laid down in the Contract, 'adhere strictly to
the Engineer's instructions and directions'.
It is important to appreciate that this type of situation, arising out of
the Engineer's design, is not a Contractor's risk. Clause 20(2) lays down
certain 'excepted risks' which are not the Contractor's liability and
anlong then1 is quite specifically 'a cause solely due to the Engineer's
design'.
Reference to Clause 20(1) will show that loss 01-inju~-yhappening l'rom
any of the 'excepted risks' shall be made good at the cosl of the
Enlployer.
6. If one ol' these unfortunate situations is encountered, it is essential
that a n authorilarive report on any construction failure be prepared by
an Engineer of standing and experience outside the company, as the basis
for a n expert opinion on the engineering, rather than the legal, points
raised.
Clause 14-Programme to be Furnished
(1) Within the time stated in Part I1 of these Conditions, the Contractor shall,
after the acceptance of his Tender, submit to the Engineer for his approval a
programme showing thesorderof procedure in which he proposes to carry out the
Works. The Contractor shall whenever required by the Engineer or Engineer's
Representative, also provide in writing for his information a general description
of the arrangements and methods which the Contractor proposes to adopt for the
execution of the Works.
(2) If at any time it should appear to the Engineer that the actual progress of
the Works does not confornl to the approved programme referred to in sub-
clause ( I ) of this Clause, the contractor shall produce, at the request of the
Engineer, a revised programme showing the modifications to the approved
progranlme necessary to ensure colnpletion of the Works within the time for
completion as defined in Clause 43 hereof.
(3) The submission to and approval by the Engineer or Engineer's
Representative of such progralnmes or the furnishing of such particulars shall not
relieve the Contractor of any of his duties or responsibilitics under the Contract.
1. The wording of this Clause is similar to that contained in Clauses
14(1), (2) and (7) of the ICE Conditions 5th Edition. Unlike the earlier
Second Edition of the International Conditions the provision of a
programme by the Contractor is a basic obligation and not conditional
011 a programme being requested by the Engineer.
2. The itlsertiol~of a time limit in Part I1 of the Conditions within
which the Contractor must submit his programme after the acceptance of
his Tender is a new feature of this edition.
It will be noted that the provision of information by the Contractor as
to his general arrangements and methods of working has still only t o be
made in response t o a request by the Engineer o r the Engineer's
Representative.
Despite this, in nine cases out of tell it will be t o the Contractor's
benefit t o influence the Engineer t o excercise the requirement, thereby
establishing a basis of co~l~parision should tlie Contractor's working
arrangements and methods subseque~ltlyhave to be altered due t o the
actions of the Enlployer o r the Engineer.
3. Despite the fact that no detailed procedures are laid down in this
Edition comparable to Clauses 14(3) t o (6) of the I C E Conditions 5th
Editio~iconcertling approval of the Contractor's methods of constructio~l
and any possible delay and extra cost that might stem therefrom, the
basic reasoni~lgbehind those U K clauses should still be followed as far as
possible.
4. It is absolutely vital, and this point cannot be emphasised strongly
enough, that the Contractor's programme when sublnitted should
specifically relate to the work that the Contractor teudered to carry out in
the circumstatlces that he could reasonably have envisaged from the
information provided in the tender docu~llentsor from enquiry that he
might have been expected to make a t time of tender. On no account
should the first submitted programme take into consideration changes in
the work content o r circulnstances u ~ l d e which
r it nlay be carried out that
have changed since the tender was submitted.
If before starting work circulllstallces hn12e changed, and particularly if
they are due to failures on the part of the Employer o r his Engineer to
fufill their Contract obligations, t l ~ e n two programmes should be
submitted. The first will be the tender programme, showing strictly what
it was the Contractor tendered to undertake in the circumsta~lces
apparent from the tender documents. The second programme should
incorporate the changes and demonstrate quite clearly the ilnpact that the
changes will have 011 the Contractor's order of procedure, his resources
and particularly the time that he will require to carry out his revised
liabilities. It is quite possible that a t this juncture he should be making an
application for extensio~lof time in the very first days of the Contract.
The Contractor should never allow himself to become conxnitted to
undertaking cha~lgedworks in the original contract period without those
changes being properly reflected in time and resources shown on his
programme.
5. It is very desirable that the Contractor's programme s h o ~ ~ lalso d
schedule the dates by which significant items of information will need to
be provided. This will provide good evidence of the times by which the
Engineer will need to have issued further drawings and instructions 'for
the purpose of the proper and adequate execution and ~naiute~latlce of the
works' pursuant to Clause 7.
Should the Engineer, having been specifically asked in writing for itellls
of i~lformation,then fail to produce the inforn~ationat the appropriate
time, he will not be well placed to counter the Contractor's claim for any
legitimately incurred additional expense to which the Contractor may
consider himself entitled as a result of the late receipt of the information
concerned. Under the latest edition of the contract this situatio~lis
doubly reinforced by the terms of the new Clause 6(3).
6. It should be appreciated that it is not incu~nbento n the Contractor,
if his works fall behind programme due to reasons for which he is not
responsible, to submit a revised programme for the Engineer's approval
that will achieve con~pletionof the Works within the original contract
66 Cllnpter 7 Progrnn~rrlerirld Method Striterrlents 67
completion period. Reference to n~odifications to the approved pro- STANDARD LETTERS AND FORMS
gramme 'necessary to ensure completion of the works within the time for
completion as defined in Clause 43 hereof', means that in accordance
with the terms of Clause 43 the Contractor is required to complete the Reference: FIDIC/9
works within the contract period or such extended time as may have been To: The Engineer
allowed under Clause 41.
Dear Sir

During exalni~lationof the Drawings/[and] specification/[and] instruc-

tions prior to the co~lstructionof

omply with the requirements of

/is physically illlpossible to build in

.........................................................
Since such a matter is not one for which the Contractor is liable under
Clause 13 of the Conditions, and to avoid unnecessary delay/[and]
damage to the work entailing cost for which the Employer is liable under
Clause 20, we ask {or a n instruction to vary the work in a way necessary
for the completion of the works pursuant to Clause 51(l)(e) of the
Conditions.

Yours faithfully

Contractor Limited

Reference: FlDIC/lO
To: The Engineel

Dear Sir

We enclose herewith the programme called for under Clause 14(1) of the
Conditions in the form that could reasonably be anticipatcd hascd on the
information available to us at time of tender.
 Programme and Metlfod Strrrenzents 69
will ensure that the construction operations will be carried out without
[In addition we enclose our amended programme reference ...............
detriment to the permanent works.
wl~ichnow incorporates the various changes made by the Engineer or
Elnployer to the scope and circulnstances in which the works are to be
We trust these proposals meet with your approval
earl-ied out.]
Yours faithfully
[These changes it will be observed have caused the contract period to be
extended by .!................... ]
Contractor Limited
T h e progran~n~eschedules infor~nationrequirement dates relating to the
intended fulfilment of the programme. [Whilst it is appreciated that
certain of the information called for is already in our possession, the date
by which it would have been required is included for the purpose of
overall clarity.]
Reference: FlDICiEilS
Yours faithfully To: T h e Contractor

Dear Sir
Contractor Lilnited
Insrrrrcrionf lo Srrr,nour~t D~Jcrrlrj~Co~ised by Work Being Legal1j.l
Pltysicallj~I~nl~ossible
ro Co~~strz~cr/Cor~~l~lefeiMai~~rai~f

We refer to your letter dated ..................... reference ............... /our

recent discussions a t your officeiat the site on .................. concernir~g
Reference: FIDICjll ................... .
............ and note that you consider the work
To: T h e EngineerIThe Engineer's Representative concerned t o be legally/physically impossible to construct/complete/[and]
maintain as presently designed.
Dear Sil
Having examined the matter in detail we lnust conclude that the work
S~rb171ission
of Consrr~ictio~~
Arran~gen~ents
and Merlzods cannot be constl-ucted/completed/[and] nlaintained as shown on the
drawings/[and] detailed in the specifications.
We refer to your letter ........................ requesting information
pursuant to Clause 14(1) of the Conditions pertaining to our proposed We agree, therefore, pursuant to Clause 13 of the Conditions, that you
arrangements and methods of construction for the following permanent are entitled to receive a variation order under Clause 51 to ensure the
worksitemporary works/temporary and permanent works. satisfactory co~npletiolland functioning of the works and such order is
enclosed/will be forwax-ded as soon as the nature of the variation required
T h e items covered by your req~festare: can be established.
(a) .........................................................................
Yours faithfully
(b) ........................................................................
(c) ........................................................................
and in answer we now enclose drawingsidrawings and descriptive Consultants Partnership
narrativeidrawings, calculations and descriptive narrative demonstrating
the arrangements and methods we propose to adopt, which we believe
 Progrimzme nrld Method Slatel?zerrts 71

Reference: FIDIC/E/19 W e refer to your Clause 14 programme and associated descriptive

To: T h e Contractor
Dear Sir
Reqrrest for Clrtlrse I4 Progrrr1?7n1~/[~?1il] Genercrl Deswil~riorz of the
Arr~1zgm7ze1its
nrld Merliocls of Cor7strrrctior1
We draw your attention to the contractual obligation, pursuant to Clause
14(1) of the Conditions, under which your programme and general
descriptions of arraugements and nlethods o r coilstructioil Tor carrying
out the works are required to be submitted within ............... days of the
acceptance of the tender.
Such programme and descriptions should:
[( ) co~nplywith the general prograilllne require~lle~lt indicated in the
tender documents as regards overall and detailed timing of the
various parts of the project,]
[( ) show completion dates for various parts of the project for which
sectional conlpletion by certain dates was indicated in the tender
documents,]
[( ) detail dates by which various itelus of illfor~nationwill be needed
to achieve progralnrne requirements,]
[( ) indicate those sections of the project that will be dependent on
completion by specific dates of work by other independent
contractors with who117 YOU have no privily of contmct.]
The for111 and tllethocl of programme presentation shall comply with the
specified requirements of the tender documents.
information subnlitted under cover of your letter dated ...............
reference ..................... [together with o u r subsequent meeting(s) in
which certain nlutually agreed alnend~nerltsto the programille were
made].
[It is accepted by both parties to the contract that the amendments nlade
do not coinply with the terms of the programme that could reasonably
have been envisaged f r o n ~the infortnation available at time of tender.]
[Despite/Because o r this the original tender price is agreed to remain
onaltered/in consideration of programme amendments the Contract Price
is adjnsted as follows .....................
................... 1
The [a~llended]programme reference ............... is agreed and will be
used as the basis for monitoring contract performance.
Yours kithfully
Consultants Partnership
Reference: FlDl C/E/2 1
To: T h e Contractor
Dear Sir

Yours Caithfiully We hereby request details of your proposed methods of construction

. .
p e r t a ~ n ~ ntog .................. together with calculations of stl-esses/strains/
[and] deflections that will arise in the pernlanent works.
Consultants Partnership
This request is lnade pursuant to Clause 14(1) of the Conditions to enable
us to decide whetlies if your proposed methods are adher-ed to the woi-I;
can be executed in accordance with the clrawiilgs and specifications
Reference: FIDIC/E/ZO without detriment to the permanent works when completed.
To: The Coiltractor
Yours faithfizlly
Dear Sil
Consultants Partnership
 Proercrmme rrrrrl M e f l ~ o dSfnfeii?eiifs 73
Reference: FIDIC/E/22 In the circumstances we ask you to take such steps/[or] make such
To: The Contracto~ changes as will be necessary to avoid the ground/grounds for rejection
detailed and to re-submit your amended proposals as soon as ~~ossible.
Dear Sir
Yours faithfully

We refer to our request for your proposed detailed n~ethods of Consultants Partnership
construction pertaining to ..................... dated ...........................
reference ..................... and your response dated ........................

Confirmation is hereby given that the proposed nlethod has the consent
of the Engineer pursuant to Clause 14(1) of the Conditions. Reference: FIDIC/E/21
To: The Contl-actor
Yours faithfully
Dear Sir

Consultants Partnership Coriserir to Clmirge~lDefoiierl Werliorls of' Coiistr~rctioir

We refer to your revised proposed detailed methods of c o n s t r ~ ~ c t l o ~

pertaining to ..................... dated .............................. reference
Reference: FIDIC/E/23 .................. given in response Lo our rejection of your original proposal
To: The Contractor dated .......................

Dear Sir We are now pleased to confir~nthat the amended proposed method has
the consent of the Engitleer pursuant to Clause 14(1) of the Conditions.

Yours faithfully

We refer to our request for your proposed detailed methods of

construction pertaining to ........................ dated ........................ Consultants Partnership
reference .................. and your response dated ........................

Having carefully examined your proposal we regret that the Engineer is

unable to give consent, pursuant to Clause 14(1) of the Conditions, to the
detailed method put forward, sipce it fails to 111eet the requireme~ltsof the Reference: FIDIC/E/25
drawings and Specifications/will be detrimental to the Pernlanerlt Works. To: The Contl-actor

In particular the ground/grounds for rejection is/are that: Dear Sir

of Coir.rrrrrrrioii Merliod
ofDeinj1 hr .-L~~~~roerrl
Arl~iioi~:lerlgeiiie~ir/Rebr~ffoI
[ (a) .................................................................. 1
[ (b) .................................................................. I We refer to your letter dated ........................ reference ...............
[ (c) .................................................................. I giving notice that you consider the Engineer's consent to your proposed
74 Clin/)rer 7 Progrrrmnze arid Metllod Strrternents 75

methods of constrnctiot~ for ................................. to have been
u~ireasollablydelayed.
[We do not accept the validity of your notice since your original proposal
was only sent to us on ...................... giving us ............... days to
consider the matter/a matter of col~siderablecon~plexity.]
[Our response will, however, be forwarded in the near future/as soon as
possible/by ............................ ..]
[We are, however, now pleased to be able to give col~firn~atioll
that the
proposed 111ethod has the consent of the Engineer pursuant to Clause
14(1) of the Collditions.]
[We ack~lowledgethat the consent previously requested by you has not
yet been provided and that in consequence you are being caused
delay/likely to be caused delay.]
[We d o not accept the validity of your notice since:
[( ) the nature of the method of construction was specifically indicated
in the Tender doculnents and we draw your attention to
........................ J
[( ) the problem inherent in the construction of ...................
was specifically indicated in the tender documents and we draw
your attention to ........................ ]
[( ) the lrature of the approved construction method is one regularly
used in the industry and should have been readily foreseeable by
an exnerienced contractor.1
[We accept the validity of your notice and note that you anticipate
s u f f e r i ~delay/[and]
~g additional costs in consequence.]
[Details of your additional costs should be prolnptly submitted in
accordance with the requirements of the Contract.]

[We note that ally such delay is [not] critical to the timely construction of [We note that ally such delay is [not] CI-iticalto the timely construction of
the overall works/liable to delay section .............................. of the the overall works/liable to delay section ........................ of the
works.] Works.]

Yours faithfully Yours faithfully

Collsultallts Partnership Consulta~ltsPartnership

Reference: FIDIC/E/26
To: The Contractor
Reference: FIDIC/E/27
To: The Cotltracto~
Dear Sil.
Dear Sir
of S~rbrr7issior1tlicit Apl~roved Coristrrtcliorr
Ackr~o~~~led'gerrrerIr/Reb~~r~al
~Mer/iodrozrld Nor Rerlsollob/~~
Iznl'e been Foreseerl

We refer to your letter dated ........................ reference ...............
giving notice that you consider the method of collstruction approved by
us, under cover or our letter dated ...................... in relation to
........................ could not reaso~lably have been foreseen by an
experienced contractor at the time of tender.
We refer to your [latest] Clause 14 programme dated ........................
reference ............... and regl-et to inrorn you that your actual progress
does not confir111with the approved programn~e/whilstcomplying with
your approved programme will delay the overall project progress.
76 Cl~a[>tw7

[You are therefore required t o produce a revised programme showing the CHAPTER 8
modifications to the origitlal/earlier progralnnle necessary to ensure
completion of the works by the time for completion [as extended], namely Supervision, Setting Out and Boreholes
the ......................... p ~ r s i ~ a to
n t Clause 14(2) of the Conditiotls.]

[You are therefore requested to put forward a n acceleratioll proposal for

the whole of the works/that section of the work being ........................
byl ........................]
t o ensure c o ~ n p l e t i o ~
Clause 15-Contractor's Superinteodeoce
[Should your proposal be techtlically and financially approved, the time The Contractor shall give or provide all necessary superintendence during the
for co~npletionof the whole of the works/that section of the works being execution of the Works and as long thereafter as the Engineer [nay consider
........................ shall be deemed amended t o ........................ by necessary for the propcr Culfilling of the Contractor's obligations under the
nlutal agreement between the parties.] Contract. The Contractor, or a coinpeten1 and authorised agent or rep~.esentative
approved of in writing by the Engineer, which approval may at any tilile be
withdrawn, is to be constantly on the Works and shall give his wllole time to the
Yours faithfully superintendence of the same. If such approval shall be withdrawn by the
Engineer, the Contractor shall, as soon as is practicable, having regard to the
requirement of replacing him as hereinafter mentioned, after receiving written
Consultants Partnership notice of such withdrawal, remove the agent f i o n ~the Works and shall not
thereafter employ him again on the Works in any capacity and shall replace him
by another agent approved by the Engineer. Such authorised agent or
representative shall receive, on behalf of the Contractor, directions and
instructions fron~the Engineer, or, subject to the lin~itittionsof Cliluse 2 hereof,
the Engineer's Representative.

1. This clause clearly establisl~esthe Contri~ctor's liability to give

adequate superinte~idenceto the works cli~ritlgthe whole period of their
execution, and for as long il~ereafieras the Engineer considers necess:rry,
presun~ablyin fulfil~nentof the lnaintenance obligatiolls subsequent to
the receipt of the certificate of colllpletio~lor works under Clause 48.
2. Whel-e the period o r work execution is extended, therefore, the
Contractor will inevitably be committed to the additional cost of
superintendence and its other associated ancillary costs over the extended
period. Any claitn that may be needed for additional cost where time is
involved must, of course, reflect this consideration.
3. If it becomes necessary on the instruction of the Engineer to replace
the Contractor's superintendent, the Contractor is allowed a reason:~ble
time under the clause t o find a replacement and the person concerned
need 1101 be withdrawn until the replacenient has been obtained.

Clause l&Cootractor's Enlployees

(1) The Contractor shall provide and enlploy on the Site in connection wllib ihe
execution and maintenance of the Works
78 Chapter 8
(a) only such technical assistants as are skilled and experienced in their
respective callings and such sub-agents, foren~enand leading hands as are
competent to give proper supervision to the work they are required to
supervise, and
(b) such skilled, semi-skilled and i~nskilled labour as is necessary for the
proper and timely execution and maintenance of the Works.
(2) The Engineer shall be at liberty to object to and recltiire the Contractor to
remove forthwith from the Works any person enlployed by the Contractor in or
about the execution or cnliiintenance of the Works who, in the opinion of the
Engineer, misconducts himself or is incompetent or negligent in tlle performance
of his duties, or whose e~nploymentis otherwise considered by the Engineer to be
undesirable and such person shall not be again employed upon the Works
without the written permission of the Engineer. Any pel-son so removed from the
Works shall be replaced as soon as possible by a competent substitute approved
by the Engineer.
1. T h i s Clause pulls together under o n e heading t h e Engineer's
authority given t o him t o ellsure t h a t only suitably qualified personnel a r e
employed o n t h e Works.
2. T h e inclusion o f t h e words 'or whose employment is otherwise
considered by t h e Engineer to be undesirable' appears t o a d d a category
of persou who might be rejected by t h e Engineer o n political grounds.
3. I t is likely t h a t t h e organisatiotl, ~ l l o t i v a t i o at ~n d cosltrol o f overseas
labour will present difficulties that a r e n o t encountered in the UK. I t is
essential t h a t t h e Contractor's management establish g o o d rapport with
the Engineer t o avoid a n y possibility o f unnecessarily disturbed site
relations t h a t might sten1 from a t o o blatant a n d unilateral exercise by t h e
Engineer o f his powers under this clause.
The Contractor shall be responsible for the true and proper setting out of the
Works in relation to original points, lines and levels of reference given by the
Engineer in writing and for the correctness, subject 21s above mentioned, of the
position, levels, dimentions and alignn~entof all parts of the Works and for the
provision of all necessary instruments, appliances and labour in connection
thel-ewith. If, at any time during the'progress of the Works, any el-ror slx~llappear
or arise in the position, levels, dinlensions or alignlnent of any part of the Works,
the Contractor, on being required so to do by the Engineer or Engineer's
Representative, shall at his own cost rectify such error to the satisfaction of the
Engineer or Engineer's Representative. unless such an error is based on incorrect
data supplied in writing by the Engineer or the Engineer's Representative, in
which case the expense of rectifying the same shall be borne by the Employer. The
checking of any setting out or of any line or level by the Engineer or the
Engineer's Representative shall not in any way relieve the Contractor of his
Supe~.visioll,Setting 01rt rir~dBoreholes 79
responsibility fol- the correctness thereof and the Contractor shall carefullv
protect and preserve all bench-marks, sight-rails, pegs and other things used in
setting out the Works.
1. T h e clause is essentially the same a s that contained in t h e I C E
Conditions, 4 t h Edition. 1t does, l~owever,establish with greater clarity
the respective I-esponsibilities of the E n g i ~ i e e r:~nd the Contractor for
setting o u t a n d also introduces the Engineer's Representative as well as
t h e Engineer into t h e clause.
2. T h e respective responsibilities o f t h e Engineer and rlle Contractor
under the clause a r e that:
(a) the Engineer is responsible for t h e a c c t ~ r a c yof t h e original points,
lis~esa n d levels fro111 which t h e W o r k s a r e t o be set o u t by the
Contractor;
(b) t h e Contractor is responsible for t h e accuracy o f t h e setting o u t
from t h e information provided by t h e Engineer.
If there is a n error in the original points, lines and levels of reference
given by the Engineer, a n d those errors a r e accc~ratelytransferred i n t o the
s e t t i ~ ~o gu t carried o u t by t h e Contractor, then tlle cost of rectifying t h e
same a ~ ~ presumably
d also a n y work t h a t m a y have been wrongly
constructed, will be t o t h e Employer's cost.
3. T h e provision of erroneous basic setting o u t information appears t o
be a fairly c o ~ n n ~ o cause n of additional cost b e i ~ ~ suffered
g by
contractors. A proper awareness of t h e division o f responsibility is,
therefore, essential.
D u e t o the often inadequate basic i n f o r ~ n a t i o n available in under-
developed countries, p r o h l e ~ n sin this area will h e even lllore comnionly
encountered t h a n in the UK, and they must h e quickly identified a n d
h r o u g l ~ tt o t h e attention o f the Engineer. To allow lnatlers to d r a g o n
with incorrect infornlation being used c a n prove disastrous. It might well
be that t h e Engineer should be persuaded to suspend t h e work under
Clause 40 until matters call be properly sorted out.
Clause IS-Borel~oles and EXploratory Excavation
If, at any time during the execution of the Works, the Enginecr shall rcclnil-e the
Contractor to nlake boreholes or to carry out esplori~toryexcavation, such
requirement sliall be ordered in writing and shall be deenlcd to be a n addition
ordered under the provisions of Clause 51 hereor, ullless a provisional stun in
respect of such anticipated work shall have been inclttdcd in the Bill of Quantities.
SO Chapter 8 Superuisiori, Setting Out nrld Boreholes S1
Co177irienr STANDARD LETTERS AND FORMS
1. The wording of this Clause is exactly the same as that contained in
the ICE Conditions, 4th Edition. If the Contractor carries out any Reference: FIDIC/12
exploratory excavation works he will be paid for it either by way of a To: The EngineerIThe Engineer's Representative
variation or, possibly, on a daywork basis or measured rate against a
provisional sum that may have been included in the Bill. Dear Sil
2. It should be noted that no formal variation as such needs to be
issued, since the Cliuse states 'shall be deemed to be an addition Reqresr for Rein7burser?terzt of Cost.r in Correctirig Frnrlry Seiriiig Our
ordered'. Therefore, automatically, if exploratory work is carried out by A rrriblrrrrble to Ii~acc~rrnte
Iifo~ii?atior~
Proeiclerl
the Contractor to the written requirements of the Engineer, he will be
paid for it. We refer to your instruction no. ............... enclosing setting out books
3. It must be emphasisecl, however, that the requirement to receive the reference .................... .......I drawings reference ........................ for
ordel- in writing still exists. This type of work should, therefore, not be the purpose of providing setting out information in relation to original
carried out, and neither for that matter shonld any other, 011 a verbal points, lines and level of reference.
i~lstructiononly.
It is now apparent that these setting out books/drawings were inaccurate
in that ....................................................................................
and that as a direct consequence we have incurred the expense of
rectifying setting out errors/[and] correcting faulty co~~struction.

We therefore request re-imbursement of our additional costs pursuant to

Clause 17 of the Conditions.

All necessary records to substantiate the loss and expense incurred are
being maintained and will be available l o assist in any ascertainnient that
you wish to make.

Yours faithfully

Contractor Limited

Reference: FIDICl13
To: The Engineer

Dear Sir

We have recently been ~equestedto make boreholes/[and] exploratoly

I
82 Chupter. 8 Superuisioii, Settir~gOut and Borel~oles 83
p~

excavatio~isand since such work is not included in the bill of quantities,
request an order under the provisions of Clause 51 pursuant to Clause 18
of the Conditions.
Yours f a i t h f ~ ~ l l y
[Appreciating this to be a ~ n a t t e rof some delicacy, we have refrained
fronl stating a reason for our directive in this notice but will be prepared
to discuss the matter with a senior and accredited representative of your
Company.]
Yours faitl~fi~lly

Colltractor Limited
Consultants Partnership

Reference: FIDIC/E/28
To: T h e Contractor Reference: FIDIC/E/30
To: T h e Colitractor
Dear Sil
Dear Sir

We colifir~napproval of Mr. ..................... as your co~npetentand

authorised agent pursua~ltto Clause I5 of Lhe Conditions. We regret that we ~ l l u s tdirect you Lo reliiove Mr. ............... from the
works pursuant to Clause 16(2) of the Conditions on the ground that he
Yours faithfnlly has niisco~iductedliimself/is incompetent/negligent in perfornlance of his
dutieslhas failed to conform with the particular provisions with regard to
safety.

[Appreciating this to be a matter of sonle delicacy, we have refrained

fi-0111stating our detailed reasons for our directive in this notice but will
be prepared to discuss the matter with a senior and accredited
rep]-esentative from your Company.]
Reference: FIDIC/E/29
To: T h e Co~itractor Yours faithfully

Dear Sir
Co~isultantsPartnersliip

We regret that we must withdraw our approval of Mr. ............... as

your competent and authorisecl agent pursuant to Clause 15 of the
Conditions. Reference: FIDIC/E/31
To: T h e Co~itractor
We direct that he be withdrawn Trom the site as soon ns can reasonably
be arranged without detriment to the works. Dear Sir
84 Chnpter 8
CHAPTER 9

W e have noted that .................. is wrongly set o u t in relation t o t h e Care and Insurance of the Works
setting o u t information i n the for111 of .............../and t h a t this h a s
arisen through incorrect information supplied in writing t o you in tlie
f o r m o f ...........................

You are therefore required t o rectify t h e error a t your o w n cost/and t h e

cost o f so doing will be borne by t h e Employer pursuant t o Clause 17 of
t h e Conditions.
[Details o f y o u r additional costs should be prolnptly submitted in
accordance with t h e requirements o f t h e Contract.]
Y o u r s faithfully
Clause 19-Watching and Lighting
The Contractor shall in connection \vith the Works provide and mainlain at his
own cost all lights, guards, fencing and watching when and where necessary or
reqnired by the Engineer or Engineer's Representative, or by any duly constituted
authority, for the protection of tlie Works, or for the safety and convenience of
the public or others.

I. Again tlie wording in t h e clause is vil-tually the same as tliat in

C o n s ~ ~ l t a nPartnership
ts
t h e I C E Conditions, 4 t h Edition, save only that t h e Engineer's
Representative is introduced, a n d Tor tlie words 'any colnpetent statutory
o r o t h e r authority' there is substituted 'or by a n y duly constituted
authority'
Reference: FIDIC/E/32 2. Sitice watching a n d lighting is likely t o be a time-related cost, an
To: T h e Contractor extension will cause t h e cost incurred by t h e Contractor t o increase.

D e a r Sil Clause 20(1)-Care of the Works

Request for G r o u ~ ~
E ds p l o r o r i o ~ ~
W e hereby require you t o m a k e boreholes/carry o u t exploratory
excavation as indicated o n t h e ellclosed drawing/drawings/ ...............
pursuant t o Clause 18 o f t h e Conditions.
Such work shall be deenled t o be a variation ordered under Clause 51/be
adjusted against tlie sum included f o r t h e purpose i n t h e bill of quantities/
nieasured a n d priced in accordalice with t h e itetns contained for t h e
purpose i n t h e bill o f quantities.
Yours faithfully
Consultants Partnership
From the commencement of the Works until the date stated in tlie Czl-tificatc of
Complelion for the whole of the Works pursuant to Clause 48 hereof the
Contractol- shall take full responsibilily for the cnre thereof. Provided tliat if the
Engineer shall issue a Certificate of Co~npletionin respect of any part of the
Pennanent Works the Contractor shall ceasc to be liable for the care of that part
of the Permanent Works from the date stated in the Cerlificate of Completion in
respect of that part and the responsibilily for the care of that pilrt shall pass to tlie
Employer. Provided further that the Contractor shall take fill1 responsibility for
the care of any outstanding work which he shall have underlaken to finish during
the Period of Maintenance until such outstauclins work is completed. In case any
damage, loss or injury shall happen to the Works, or to any part thereof, from
any cause whatsoever, save and except the excepted risks as defined in sub-clause
(2) of this Clause, while the Contractor shall be responsible for the care thereof
the Contractor shall, at his own cost, repair and make good the same, so that at
completion the Permanent Works shall be in good order and condition and in
conforniity in every respect with the requirements of the Contract and the
Engineer's instructions. In the event of any such damage, loss or illjury happening
from any of the excepted risks, the Contractor shall, if and to the extent required
by the Engineer and subject always to the provisions of Clause 65 hereof, repair

--
aud make good the same as aforesaid at the cost oS the Employer. The Contractor
shall also be liable for any damage to the Works occasioned by him in the course
of any operations carried out by him for the purpose of completing any
outstanding work or complying with his obligations under Clauses 49 or 50
hereof.
I. The wording,oS this Clause is similar to that contained in the ICE
Conditions of Contract 4th Edition. This si~nilarityof wording carries
with it the same possibility of confusion for responsibility for the works,
particulary so far as insurance is concerned, as was the case under the 4th
Edition I C E Conditions.
It will be observed that the Contractor's responsibility for the works
ceases o n the date stated in the certificate of c o ~ n p l e t i o for
~ i the whole of
the Works, together with his liability to insure. There is a very real
danger, therefore, since the Contractor's liability to insure ceases
im~nediatelyupon completion, tliat the Enlployer may not have made
alternative insurance arrangements covering tlie period susequent to that
date. In a notable case, where a fire occured the day after completio~land
the Employer had not insured, the Contractor was still held liable to
complete the works under his basic obligation under Clause 13 t o
execute, complete and maintain tlie works.
The Contractor should, therefore, in order to protect his own interests,
request that the E~igineernotify the Employer some time in advance of
the issue of the certificate of completion of the date on which the
certificate will be issued in order that the Enlployer may make
appropriate insurance arrangements.
Under tlie I C E Conditions, 5th Edition this problem has been partially
resolved by making the Contractor responsible for the care of the works
until fourteen clays after the Engineer shall lla\,e issued a certificate of
completion for the whole o r the works.
2. I11 general the express obligation assu~nedunder this contmct, as
with no st other building and civil engineering contracts, is that the
Contractor shoulcl l l a ~ i dovel- the works at the end of the period of
maintenance in good order and condition, and in confor~ilityin every
respect with the requirements.,of the contract.
3. This requireme~lti~iiposeson the Contractor an obligation for care,
carrying with it a liability t o make good any damage that may occur, save
only insofar as sollie specified source of damage is specifically not the
Contractor's responsibility and is stipulated to be at the risk and cost of
the Employer.
4. The contract recog~iisescertain of these risks that should be to the
cost of the Eniploper in Clause 20(2) and designates them 'excepted risks'.
Cnre n i ~ dI i ~ s ~ r ~ oofi ~the
c e Worl;s 87
5. It will be noted that even so far as the 'excepted risks' are
concerned, the Contractor is still liable to repair and make good ally
damage, although the cost of the same would be borne by the Employer.
6. For the first time under the International Conditions the need for a
certificate of completio~iin respect of any pnrr of the Permanent Works
that have been handed to the Employer is recognised. O n the issue of a
certificate of sectional completion, the Contractor ceases to be liable for
the care of the part covered by the certificate.
7. Eveti after the issue of a certificate of completion o r sectional
co~npletion,the Contractor r e ~ n a i ~liable
is in respect of any outstanding
work which he shall have ~ m d e r t a k e nto finish during the period of
lilai~ltenanceuntil such outstanding work has been completed.
Clause 20(2)-Excepted Risks
The 'excepted I-isks' are war, hostilities (whether war bc declared or not).
invasion, act of foreign enemies, rebellion, revolution. insurrection or military or
usurped power, civil wal-, or unless solely restricted to employees of the
Contractor or his sub-cont~.actorsand arising fro111 the conduct of the Works,
riot, com~notionor disorder. or use or occupation by the Employer of iuiy of the
Permanent Works, or a cause solely due to the Engineer's design oS the Works, or
ionising radiations or contamination by radio-activity Troni a n y iiocieal- Sue1 or
from any nuclear waste from the combustioli or liuclear fuel, radio-active toxic
explosive, or other liazardous properties of any explosive, nucle;lr assenibly or
nuclear component thereof, pressure waves caused by aircraft or other aerial
devices travelling at sonic or supersonic speeds, 0,- any such openition of the
Sorces of nature as an experienced contractor could not foresee, or reasonably
lnake provision for or insure z~gainst;all of which are herein collectively referred
to as the 'excepted risks'.
1. The International Conditions add to the usual 'excepted risks':
(a) Commotion or disorder, but not if among the Contractor's own
employees,
(b) the operation of the forces of nature sucli as reasonable foresight
and ability on the part of the Contractor could not foresee, or
reasonably provide or insure against.
2. T h e second category of extension of the 'excepted risks' appears
capable of some dispute as to w h a t could or could not have been foreseen
with reasonable foresight. We are fortunate in the UK in that we live in a
climate of benign nature ancl are not subject to typhoons, earthquakes,
volca~iiceruptions a ~ i dthe onslaugllt of tidal waves, and it is doubtless
these extremities of nature tliat the clause seeks to except k o m the
Contractor's risk. Not, unfortunately, entirely clearly.
88 Chapter 9
3. In r&s~u~ni:
then, the risks that the Contractor is not required to
undertake are those that arise from:
(i) war,
(ii) usurped power o r civil war,
(iii) riots, other than among the contractor's own employees,
(iv) wear atid tear o r damage resulting from use by the E~nployerof
any part of the permanent works, for which it would appear under the
3rd Edition, that a certificate of completio~ior sectional conipletio~lneed
not ~iecessarilyhave bee11 issued for the purpose of 'excepted risks' under
the Clause,
(v) radio-active hazards and damage caused by aircraft,
(vi) the very important area that arises from defect and damage
attributable to the Engineer's design, and which, as we have seen. can he
li~ikedback t o Clause 13,
(vii) the operations of the forces of nature that could not be anticipated
by reasonable foresight.
The effect of all damage that is attributable to one or other of the
'excepted risks' is that whilst the Contractor is bound t o carry out repair,
the E~nployeris b o i ~ ~ liod pay him for so doing.
Clause 21-Insurance of the Works
Withoilt limiting his obligation and responsibilities under Clause 20 hereof, the
Contractor shall insure in the joint nmnes of the Employer and the Contractor
against all loss or damage from whatever cause arising, other than the excepted
risks, for which he is responsible under the terms of the Contract and in such
manner that the Enlployer and the Contractor are covered for the period
stipulated in Clause 20(1) Irereof and are also covered during the period of
m;lintenance for loss or damage arising from a cause, occurring prior to the
period ~Tmaintenauce,and Tor any loss or da~nageoccasioned by the Contractor
in the coiwse or any operations carried out by him for the purpose or complying
with his obligations under Clauses 49 and 50 liereof-
(a) The Works for the time being executed to the estimated current value
thereof. or such additional sum as mav be swecified in Part I1 in the
..
Contractor to the replacement value of such Constructional plan; and
other things.
Such insurance shall be erected with an insurer and in terms approved by the
Employer, which approval shall not be unreasonably withheld, and the
Contractor shall, whenever required, produce to the Engineer or the Engineer's
Representative the policy or policies of insurance and the receipt for payment of
the current premiun~s.
1. T h e Contractor should note that his obligation imder this clause to
insure in respect of the matters specified does not limit his obligatio~is
under Clause 20. Further his obligation to insure under this Clause
extends to matters additional to those specified in Clause 20 in that things
brought o n to the site by the Contractor, including ~naterials and
constructional plant, are to be covered.
2. It will be noted, unlike the case of the earlier Second Edition and the
I C E 5th Edition, that the stipulation noting that the Contractor is not
required to insure against the necessity for attention to work which is not
in accordance with the contract is no longer contained in the clause.
Presin~~ably, therefore, the Contractor catl~iotbe required to insure (so
far as such a matter is insurable) that the works are in accordance with
the terms of the contract.
3. Tlie Contractor is reqnired to submit the name of the insurer and
the terms of the insurance to the Employer for his approval. Although
not expressed, this should be done in writing, in order that the Employer,
who may withhold his approval if there is good reason, may satisfy
hinlself on the matter.
4. T h e Contractor must, when required by the Engineer or the
Engineer's Representative, produce for inspection the policy o r policies
of insurance atid receipt for p a y ~ n e t ~made
ts in respect of premiums.
5. Such i~lsura~ices should be arranged prior t o conimencing the
works.
6. It should be ~ i o t e ~that
d the cover does not extend to the period of
maintenance, except for loss or damage arising from a cause occurring
prior t o the colillnencelnent of the period of maintenance, or loss or
damage caused by the contractor while carring out operations in respect
of defects liability under Clause 49 o r searching for the cause of a defect
under Clai~se50. Accordingly, on the certified c o n ~ p l e t i o ~ofi the works
(or any part or parts thereof), the Employer should arrange insurance
cover.
It is in the Contractor's interest to ensure that such cover is taken by
the Employer, since, should he have failed to d o so and the works be
subseq~~ently clestroyed by sollie reason other than a n 'excepted risk', the
Contractor could still find himself liable under his basic contractual
liability t o complete and maintain the whole of the works.
 Crwe r r ~ ~Iilsrrrni?ce
d of tl7e Works 91
STANDARD LETTERS A N D F O R M S defined under Clause 20(2), we reqnire the cost of the necessary work to
be added to the contract sum pursuant to Clause 20(1) of the Conditions.

Reference: FIDIC/l4 Yours faithfully

To: T h e En;-1neer

Dear Sir . Contractor Litilited

Ei~lli~~lo).erS
Lirtbi1it.1,to Irrsnre the Works After Receipt of tire Certificrire of
Coi?~llpletiorr

Noting that we may shortly expect to receive a certificate of cotupletion Reference: FIDIC/l6
for that part of the works consisting of ....................................... /a To: The Employer
certificate of con~pletionfor the whole of the works, and that upon its
issue our liability for fnll responsibility for the care and insurance of the Dear Sir
part of the works/wliole of the works ceases, we ask that you ensure that
the Eniployer be made aware of the need t o effect appropriate insurance
against all loss o r damage fi-om whatever cause arising.
We submit herewith details o r the terms of our proposed contract works/
We make this request to avoid any possibility of the Works being at any [and] third party insurance arrangements and request your approval
time uni~isuredby tlie operation of Clause 20 of the Conditions. pursuant to Clause(s) 2I/[and] 23 of the Conditions.
Yours faithfully Yours t'aithfully

Contractor Linlited Contractor Li~iiitecl

Reference: FIDIC/lS
To: The Engineer Reference: FIDIC/E/33
To: The Contractor
Dear Sir
Dear Sir
Reirnbvrserr~enloftlie Cost ofRepair iii Resperf of rrrz 'E\-re/7rerl Risk'
Norificoriorr ofSr!f'ety/[rr~rrlj
Seci~ritjReqrri~er?rerrrs
We note your instruction reference ........................ requiring us to
repair .......................................... damaged by ........................ We refer to the state of .......................................... and consider the
matter to be a safety/[and] security hazard.

Since tlie need Lo repair arises as a result o r one of the 'excepled risks' You are therefore required t o provide and maintain a1 your own cost
cc-Ij
lights/guards/fe~icitlgadjacent t o ............................. enerally in con- C H A P T E R 10
n e c t i o l ~with ..................... pursualll t o Clause 19 of the Conditions.
Third Party and Employer's Liabilities
Yours faithfully

Consultants Partnership

Clause 22-Damage to Persons and Property

Reference: FIDIC/E/34 ( I ) The Contractor shall, except if and so far as the Contract provides
otherwise, indemnify tlie Employer against all losses and claims in respect of
To: T h e Contractor injuries or damage to any person or material or physical darnage to any property
whatsoever which lnay arise out of or in consequence of the erection and
D e a r Sir maintenance of the Works and against all claims, proceedings, damages, costs,
charges and expenses whatsoever in respect of or in relation thereto except any
Prorlricriotz of Co~lrrrrcr Works Iiu~trcrticePolicj,/Receipt for P r ~ j ~ ~ i ~oJe r i r co~npensationor damages fol- 01-with respect to:
rhe Ci,rretlr Pretz7i~rrll.s (a) The pernlanent use or occupatioll of land by the Works or any part
thereof.
W e hereby require you t o produce details of y o u r insurer a n d the terllls of (b) The 1-ight of the Employer to execute the Works or any part thereof on.
over, under, in or through any land.
yourievidence i n the form o f receipts f o r payment o f t h e current premiom Injuries or damage to persons or property which are the unavoidi~ble
(c)
for your contract works insurance in tlie joint names of Employer a n d result of the execution or nx~intenanceof the Works in accordance with
Coniraclor. the Cont~xct.
(d) Injuries or da~nitgeto persons or properly resulting from any act or
Such request is m a d e p u r s i ~ a t~o~Clause
t 21 of tlie Conditions. neglect of the Employer, his agents, servants 0,- other Contractors, not
being en~ployedby the Contractor, or for or in respect of any claims,
proceedings, damages, costs, charges and expenses in respect thereof or in
Yours faithfi~lly relation thereto or where the injury or damage was contributed to by the
Contractor, his servants or agents such part of the co~npensationas may
be just and equitable having regard to the estent of the responsibility of
C o ~ ~ s i l l t a nPartnership
ts the Employer, his servants or agents or other Contracloi-s for the damage
or injury.
(2) The Employer shall indemnify the Contractor against all clilims, procced-
~ngs,damages, costs, charges ;tnd expenses in respect of the lnallers referred to in
the proviso to sub-clause ( I ) of this Clause.

1. T h i s clause covers all circumstances in which the C o l ~ t r a c l o ris

required t o indemnify the Elnployer against third party liability t o
persons a n d property. It carries with il a recipl-ocal liability under sub-
clause (2) covering those areas in which the employer is required t o give a
countn--indemnity to t h e Contractor in a similar way.
2. T h e listings c o l ~ t a i l ~ eind sub-clause (I)(a) t o (d) contain iniportallt
excepting provisos a s t o the Contractor's liability. T h a t under (c), dealing
with damage t o persolis and property that is the unavoidable result of the
e x e c l ~ t i o and
l ~ n ~ a i n t e n a n c eo r the works in accol-dance with t h e contract,
is o n e which in practice nlay give rise t o dispute. It is in this area t h a t
third parties m a y lodge c l a i ~ ~for ~ s nuisance covering noise, dust a n d
general loss o f a ~ n e t ~ i tarising y from t h e construction works. It is kip t o
the Contractor in avoiding such liability to d e m o t ~ s t r a t ethat t h e noise o r
dust o r other nuisance is t h e unavoidable result o f carrying o u t t h e works
in accordance,with t h e Contract.
3. Equally it should be noted t h a t t h e Contractor is not liable where
the injury o r d a n ~ a g eresults fro111 a n act o r neglect o f t h e Enlployer
himself.
4. T h e inevitable d i f f i c ~ ~ l that t y occul-s with d a m a g e t o standing crops
will n o w presumably b e covered under proviso (c).
Clause 23-Tllird P a r t y lnsurance
(1) Before commencing the execulion of the Works the Contractor, but
without limiting his obligations and responsibilities under Clause 22 hereof, shall
insure against his liability for any material or physical damage, loss or injury
which may occur to any property, including that of the Employer, or Lo any
person, including any employee of the Employer, by or arising out of the
crecution of the Works or the carrvine. out of the luatters referred to in the
proviso to Clause 22(1) hereof.
(2) Such insnl-ance shall be erected with an insurer and in lenns approved by
the Employer, which approval shall not be unreasonably withheld, and for at
least the amount stated in the Appendix to the Tender. The Contractor shall,
whenever required, produce to the Engineer or the Engineer's Representative the
policy or policies of insurance and the receipts for payment of the current
premioms.
(3) The terms shall include a provision whereby, in the event of any clainl in
respect of which the Contractor would be entitled to receive indemnity under the
policy being brought or made against the Employer, the insured will indemnify
the Enlployer against such claims and any costs, charges and expenses in respect
thcreor.
1. T h e C o ~ ~ t r a c t oisr required t o sub111it t h e n a m e of his insurer a n d
the terms o r t h e i n s u r a l ~ c et o the Employer f o r his inspection a n d
approval.
2. T h e i ~ m o u n tof t h e third party i n s ~ ~ r a ~covered
ice by t h e policy is t o
h e inserted in t h e appendix to t h e tender.
3. As in t h e case of insurance erected under Clause 21. the Contractor
niust produce f o r t h e inspection o f t h e Engineer o r t h e Engineer's
Representalive the policy o r policies of i n s u n ~ n c ea n d the receipts for
payment o f t h e current premiums.
4. T h e terms o f t h e Contractor's third party insurance at-e also to
include a provision t o cover a n y claim against which t h e Employer
provides t h e Contractor with indemnity under Clause 22(l)(a) t o (d). W e
have therefore the rather peculiar situation in which under Clause 22 the
Employer provides t h e Contractor wilh indemnity b u t under Clause 23
the Contractor insul-es the Employer against t h e financial risks inhet-ent
in the i ~ ~ d e r n n igiven.
ty T h i s arrangement is new Lo t h e Third Edition t u ~ d
parallels the situation that n o w exists under the I C E Conditions, 5th
Edition.
Clause 24-Accident o r Injury t o Worklnen and Related Insurance
( I ) The Employer shall !not be liable for or in respect of any damages or
con~pensationpayable at law in respect or in consequence of any accident or
injury to any workman or other person in the employment of the Contractor or
any sob-contractor, save and except an accident or injury resulting from any act
or default of the Employer, his agents ot- servants. The Contractor shall
indemnify and keep indemnified the Employer against all such damages and
compensation save and except as aforesaid, and against all claims, proceedings,
costs, charges and expenses whatsoever in respect thereof or in relation thereto.
(2) The Contractor shall insure against such liability wilh an insurer approved
by the Employer, which approval shall not be unreasonably withheld, and shall
continue such insuraice during the whole of the time ihat any persons are
employed by him on the Wol-lcs and shall, when required, produce to the Engineer
or the Engineer's Representative such policy of insurance and the receipt Cot
payment of the current premium. Provided always that in respect of any persons
employed by any sob-contri~ctor,the Contraclor's obligations to insure its
aforesaid under this sub-clause shall be satisfied if the sub-Contractor shall have
insured ;tgainst the liability in respect of such persons in such nlanner that the
En~ployeris indemnified ut~derthe policy, but the Contractor shall require such
sub-contractor to produce to Lhe Engineer or the Engineel-'s Representative, when
requiz-ed, such policy of insurance and the receipt for the payment of thc current
premium.
1. T h e Condition is virtually t h e s a m e as t h a t c o ~ ~ t a i ~in~ tehde I C E
Conditions, 4th Edition, save t h a t in sub-clause (2) the Contractor is
required t o produce evidence o f insul-ance t o the Engineer o r the
Engineer's Representative rather t h a n t h e Employer.
2. It will be noted that t h e Contl-actor is n o t required t o illdelnnify the
Employer in consequence of a n y accident o r injury l o a n y w o r k m a n if
that w o r k m a n is injured as a result of a n act o r default of t h e Employer
o r of the Employer's agents o r servants.
Clause 25-Remedy if Contractor iails to lnsnre
I f the Contractor shall fail to eKea and keep in Sorcc the insnrance rererred to in
Clauses 21, 23 and 24 hereof, or any other insul'ance which he may be required to
eKect under the tel-111s or the Contract. then and in any such case the Employer
96 Cl~npter10
may effect and keep in force any such insurance and pay such premium or
premiums as may be necessary for that purpose and from time to time deduct the S T A N D A R D LETTERS A N D F O R M S
amount so paid by the Eniployer as aforesaid from any monies due or which may
become due to tlie Contractor, or recover the same as a debt due from the Reference: FIDIC/E/35
Contr;lctor. To: The Co~itractor
Coi??n?ent
Dear Sir
1. T h e wording of this clause is exactly the same as that c o ~ l t a i ~ i eind
the ICE Conditions, 4th'Edition. Its effect is that, should the Contractor Protlrtcriorr of Tlrirrl Prirlj~Drrfr7rrge to Persoirs urrd Properr,) Iirs~irni~ce
fail to carry any of the insurances that he is required t o have under the Poliq,/Receij~rfor Prr.yiiient of ll7e C~rrrerrtPref,1ilifr7s
ternls of the contract, the Elilployer may eKect insurance and surcharge
the Contractor. We hereby require you to produce details of your insurer and the t e r ~ u sof
2. It should be appreciated that, in the event of contract over-run, the your/evidence in the f o r ~ nof receipts for payment of the current premium
Contractor's expenditure on various insurance premiunns will increase for your third party liability itisurance Cor darnage to persons and
substantially, and this colnpotlent of cost should always be a factor property for tlie amount of ............... as detailed in the appendix to the
considered in an over-run claim. for111of tender.

Such request is made pursuant to Clause 23(2) o r the Conditions

Yours faithfully

Consultants Partnership

Reference: FIDIC/E/36
To: T h e Contractor

Dear Sir

Prorli~crion of' Coiftrrroor's Accrrle~rt or lr?jtrr}> ro Worliffrerf 111s~rrnirre

Poliq~/Receij~r for Prr.)>rf7eirlof rlfe C~rrrerrrPrer77iro7rs

We hereby require you to produce details of your insul-er and the ternls of
your/evidence in the form of receipts for the paylilent of the current
premiinn for your accident o r injury to workmen insurance.

Such request is made p ~ ~ r s u ato

~ iClause
t 24(2) of the Conditions

Yours faithfully

C o ~ i s u l t a ~ lPartnership
ts
Reference:
To:
FIDIC/E/37
T h e Contractor f CHAPTER I 1

Dear Sir
II Regulations and Nuisance
Frrilr~~e
to I~rsrrre
I
We refer to o u r request'reference ............... dated ........................
requesting satisfactory evidence that there is in force the insurance
referred to in Clause/Clauses 2l/[and] 23/[and] 24 and, noting your
i Clause 26--Notices and Fees and Conlpliance with Regulatior~s
I ( I ) The Contractor shall give all notices and pay all fees required to bc given or
inability to produce such evidence, inrornl you of the intention of the
Einployer to elfect such insurance.
1
k
paid by any National or State Statute, Ordinance or other Law, or any
regulation, or bye-law of any local or other duly constituted authority in relation
i to the execution of the Works and by the rules and regulations of all public bodies
The ainount of any premiums paid by the Employer will be recovered and comoanies whose nrooertv or rights are affected 01-lnav be affected in auv
A A , , u

fro111 any inonies due o r that lnay become due to yo11 or as a debt way by the Works.
~>ursuant to Clause 25 o r the Conditions. iI (2) The Contractor shall confor~nin all respects with the provisions of any
such Statute. Ordinance or Law as aforesaid iind the regul;~tionsor bve-laws of
any local or other duly constituted authority whicli may be applicable Lo the
Yours faithfully Works and with such rules and ~.egulationsof public bodies and compenies as
9,
aforesaid and shall keep the Employer indemnified against all pen~~lties and
liabilitv of ever" kind for breach of anv such Statute. Ordinmlce or Law.
~ ~~~
2

Consultants Partnership 1, regulation of bye-law.

(3) The E~nployerwill repay or allo\r, to the Contractor all snch sums as the
Engineer shall certify to have been properly payable and paid by Lhe Contractor
in respect of such fees.

1. Although the wording of this clause is different from the

comparable clause in the I C E conditions of Contract, 4th Edition, the
intent and spirit of the clause is very nluch the same.
2. It will be noted, however, that there is no warl-anty provided by the
clause that appropriate planning permissions will have been obtained Tor
the works.
3. In general, whilst the Contractor is required to give all notices and
pay all fees required t o be given o r paid in connection with the works, he
is entitled t o be re-imbursed for the sums so paid by the Einployer o n the
certification of the En;o ~ ~ ~ e e r .
4. The sums involved in this situation can often be considerable and
should not be ovel-looked for purposes of re-iinburse~nent. Whilst it is
usually appreciated that re-imbursen~ent sl~ould be sought where
payments are made as the result of the rules and regulations of public
bodies, inspection of the Clause will show that 'companies' may also fall
into the same category.
5. N o equivalent to Clause 26A of the I C E Conditions, 4th Edition
exists in this contract. That clause, which covers the U K Public Utilities
100 Chapter I 1
Street Works Act 1950 provisions, would, of course, not be applicable
overseas. Should any equivalent be encountered, then it would fall within
the broad drafting of the present Clause 26.
6. Presumably, if delay resulted from a need to serve notices as a
result of varied works, whether in respect of street works or any other
work, then the Contractor would be entitled l o claim for any delay u ~ l d e r
Clause 44 and I-egister application for payulent of ally a d d ~ t i o ~ iexpense
al
under Clause 52(5). ' costs incurred by the Contractor would be i~lcorporated into the
Clause 27-Fossils and Antiquities
All fossils, coins, articles of value or antiqnity and structures and other remains or
things of geological or arcl~eologicalinterest discovered on the site of the Works
shall as between the Employer and the Contractor be deemed to he the absolute
property of the Employer. The Contractor shall take reasonable precautions to
prevent his workmen or any other persous fron~removing or da~negingany such
article or thing and shall i~n~nediately upon discovery thereof and, before
ren~oval,acquaint the Engineer's Represe~ltativeof such discovery and carry out,
at the expense of the Employer. the Engineer's Representative's orders as to the
disposal of the same.
1. T h e wording of this clause is virtually the s a ~ l l eas that contained in
the I C E Conditions of Contract, 4th Edition, save that the 'Engineer's
Representative' is substituted for the Engineer.
2. A fossil o r antiquity o r structure would in all probability fall within
the definition of a n artificial or physical obstruction under Clause 12. The
Contractor should therefore be able to obtain his additional expense
under Clause l2(b), so far as it has caused delay and affected surrounding
works. His direct costs associated with the disposal of the items would be
clai~nedunder Clause 27 itself.
Clause 28-Patent Rights and Royalties
The Contractor shall save hannless and indemnify the Employer iron1 and
against all clainls and proceedings for or on account of infri~lgementof any
patent rights, design trademark or name or other protected rights in respect of
any Constructional Plant, machine, work, or material used for or in connection
with the Works or any of them and from and against all clain~s,proceedings,
damages, costs, charges and expenses whatsoever in repect thereof or in relation
thereto. Except where otherwise specified, the Contractor shall pay all tonnages
and other royalties, rent and other payments or con~pensationif any, for getting
stone, sand, gravel, clay or other materials required for the Works or any of them.
1. T h e wording of this Clause is virtually the salile as that contained in
Regtrlntions arld Nuisance 101
the ICE Conditions, 4th Edition. Athough the Co~itractoris required t o
indenlnify the Employer against all clai~llsand proceedings o n account of
infringement of patent rights, it should be appreciated that this only
applies t o those infringements that would have arisen from the nature of
the work originally specified. If as a result of variatiotls some
infringement is made, then, w11ilst tlie Contractor would i ~ l d e ~ l l ~ lthe
ify
En~ployeragainst the costs that would arise from such infringen~etlt,the
valuation of the variation under Clause 52.
2. Although it is noted in the last sentence of the Clause that the
Contractor shall pay all tonnage and other royalties and co~llpetlsatio~l
fol- getting stone, sand and gravel for the works, and presulnably this is
seen in terllls o f extraction from borrow pits, the salne r e a s o ~ i i ~would
~g
not appear to apply to the co~llparablecosts associated with the provisio~l
of off-site tips and to this extent the c o ~ l ~ ~ lpreviously
~ e ~ l t made o n this
subject against Clause 26 would appear to apply.
Clause 29-Interference with Traffic and Adjoining Properties
All operations necessary for tlle execution of the Works shall, so far as
con~pliancewith the requirements of the Contract pennits, be carried on so as not
to interfere unnecessarily or improperly with the convenience of the public or the
access to, use and occupation of public or private roads and footpaths lo or of
properties whether in the possession of the Enlployer or of any other person. The
Contractor shall save harmless and indemnify the Employer in I-espect of all
claims, proceedings, damages, costs, charges and expenses whatsoever arising out
of, or in relation to, any such matters insofar as the Contractor is responsible
therefor.
1 The wording of the clause is virtually the sanle as that in the ICE
Conditions, 4th Edition, except that the words 'insofar as the Co~ltractor
i s respo~lsibletherefor' have been added to the end o r the clause. It
im~nediately emphasises, therefore, that there could be interference
imposed 011 the Colltractor whet1 carrying out the works for which he was
not respotlsible.
2. T h e Contractor is not responsible for acts of interference and
~luisancethat arise where:
(a) they are an inevitable outcome of complying with the reqoire-
lllents of the Contract, nrlrl
(b) the Contractor necessarily thereby interferes with the co~lvenie~lce
or access of third parties, 01rt1
(c) by the proper carrying out of the works such inconven~ence
cannot be avoided.
102 Chapter 11 Regrrlafiorzs arzd h'trisonce 103

3. I11 weighing the Contractor's responsibility under this clause, regard S T A N D A R D LETTERS A N D F O R M S
should also be had to the counter-indemnity provided by the Elnployer
u l ~ d e rClause 22(2) for certain classes of liability for damage to persons
and property. Reference: FIDIC/17
To: T h e Engineer

Dear Sir

We have recently paid fees amounting to ............... in repect of

................................................... as required under the llational
statute/state statute/ordi~lance/law/regulation/bye-I.....................
governlng ..............................

We therefore request that the alnounl properly payable and paid by us be

certified pursuant to Clause 26(3) of the Conditions.

Yours faithfi~lly

Contractor Limited

Reference: FIDICjlS
To: T h e Engineer's Represeutative

Dear Sil

Nor$icorio~?of' rile D i s c o ~ ' e ~ .of

j ~ ~(111 I/err? qf Geologicf~l/Arc/foeoiogicnl
Ir7rer.est

We llerewitl~give written notice of discovery of .................................

.................. located at .............................. pursuant Lo Clause 27
of the Conditions.

We are complying with the general obligations imposecl on L I in ~ relati011

to fossils, antiquities or other objects of interest o r value o n d e ~Clause
- 27
and request your ilistruction in regard t o what is to be done concerning Reference: FIDIC/%O
the object reported. To: The Engineer
Yours f a i t h f ~ ~ l l y Dear Sir

Reqrresrfor rlie Reiii7b~rrseiiieiirof'tlie Costs Associated ~ v i r l Pctteirr

i Rights
Contraclor Limited iri Respect of Vcrrierl Worl<s

As a result of properly instructed val-ialions to the works involving the

use of .............................. we have incurred costs pertaining t o patent
rigI~ts/royaltiesassociated with the materials/process involved.

Reference: FIDICjl9 T h e cost incurred amounts to ............... and we request that such
To: T h e Engineer's Represel~tative amount be added to the contract price pursuant to Clause 28 of the
Conditions.
Dear Sir
Yours f a i t h f ~ ~ l l y

We refer t o the recent discovery of ................................. on he
site/located at ........................................... and your subsequent
instruction/instructio~is,with which we have complied.
As a result of such compliance we seek re-imbursement of our additional
costs pursuant to Clauses 27 and 12 of the Conditions.
We will be lilaintai~~ing such contemporary records as we believe
necessary, or may be required by you, to substantiate our additional costs
and support our request for a n extension of time pursuant to Clause 44.
The additional payment to which we consider ourselves entitled will be
registered in our monthly payment application together with as full and
detniled particulars as can reasonably be provided in view of prevailing
circtunista~icesand time of application as requil-ed pursuant to Clause
5 2 ( 5 ) of the Conditions.
Yours faithfully
Contractor Lilnitetl
Contractor Li~nited
Rererence: FIDIC/E/38
To: T h e Contractor
Dear Six
Re-inihrrrsni7eiit of Fees Pcrid P~rrsrrniitto criiy Nrrrioricrl or Stcrte Srcrrrrle,
Orcli~?flnceor oflier Lnia or oily Regrtlrrtion or Bye-lcti~>
We refer Lo your request for re-inibursement dated ........................
reference ............... together with supporting evidence in respect of
fees/rates/taxes paid by you in respect of .................................. in
relation to the execution of the works/whose property o r rights are or
niay be affected by the works.
It is acknowledged that such fees/rates/taxes are a cost to be re-imbursed
pursuant to Clause 26(3) of the Conditions and the appropriate alnount
will be included in our next certificate issued under Clause 60.
Yours faithfully
Consultants Partnership
 Regulatio~~s
a r ~ dNzrisrrr~ce 107
--
Reference: FIDIC/E/39 Your attention is drawn to your obligations and liabilities under Clause
To: The Co~itractot 29 of the Conditions and your potential liability for costs, charges and
expenses arising out of the tnatters that are the subject of complaint.
Dear Sir
Yours faithfully

We refel- to the recent discovery made of ........................ on the site/in Co~lsultantsPartnership

the area of .......................................... and give the u~ldertloted
i ~ ~ s t r u c t i o ~ ~ / i n s t r u cint i relation
o ~ ~ s to the item/items pursuant to Clause
27 of the Conditions.
(a) Tlie ownership of the said item/items shall vest in the hands of the
Employer.
(b) All reasonable precautio~lsshall be taken t o prevent d a ~ n a g eto the
iteni/iterns.
[( ) Facilities shall be prov~dedto enable the itelns to be removed by
....................... /your ow11 labour uuder the supervisio~iof

[ ( ) T h e item/items shall be handed t o ................... ..]

[( ) ........................................................................ ]
Records of any additional costs incurred shall be maintained for the
Engineer's approval and subseqoent re-imbursement by the Employer.

Yours faithfully

Consulta~ltsPartnership

Reference: FIDIC/E/40
To: T h e Contractor

Dear Sir

We refer to your c o ~ i s t r ~ ~ c toperations

io~i [in the area of ..................... ]
and are concerned to note TI-om our own observatio~is/complai~its
received from members of the public/oul- client that the works are
interfering onnecessar.ily/i~l~properly with the public convenience/access
t o ..................... /use by the public of ........................
C H A P T E R 12
Damage to the Highway and Independent
Contractors
Clause 30-Extaordinary traffic-Special Loads and Claims for Damage
to Higl~waysor Watercourses arising therefrom
(I) The Contractor. shall use every reasonable memis to prevent any of the
highways or bridges communicating with or on the routes to the Site from being
damaged or injured by any trafficof the Contractor or any of his sub-contractors,
and, in particular, shall select routes, choose and use vehicles and restrict and
distribute loads so that any such extraordinary traffic as will inevitably arise from
tlie moving of plant and material from and to the Site shall be limited, as far as
reasonably possible, and so that no unnecessary damage or injury may be
occasioned to sucli highways and bridges.
(2) Should it be found necessary for tlie Contractor to move one or more loads
of Constructional Plant, machinery or pre-constructed units or parts of units or
work over parl of a highway or bridge, the moving whereof is likely to damage
any highway or bridge unless special protection or slrengthening is carried out,
then the Contractor shall, before moving the load on to such l~igllwayor bridge,
give notice to the Engineer or Engineer's Representative of the weight and other
particulars of the load to be moved and his propos;~ls for protecting and
strengthening the said highway or bridge. Unless within fourteen days of the
receipt of such notice the Engineer shall by counter-notice direct that such
protection or strengthening is unnecessary, then the Contractor will carry out
such proposals or any modification thereof that the Engineer shall require, and
unless there is an item or items in the Bill of Quantities for pricing by the
Contractor of tlie necessary works for the protection or strengthening aforesaid,
the costs thereof shall be paid by the Enlployer to the Contractor.
(3) If during tlie execution of the Works, or at any time thereafter the
Contractor shall receive any claitn arising out of the execution of the Works in
respect of damage or injury to highways or bridges, he shall immediately report
the same to the Engineer and thereafter the E~nployer shall negotiate the
settle~nentof and pay all snius due in respect of such claim and shall indemnify
the Contractor in respect thereof and in respect of all claims, proceedings,
damages, costs, charges and expenses in relation thereto. Provided always that if
and so far as any such claims or part thereof shi~llin the opinion of the Engineer
be due to :my failure on the part of the Contractor to observe and perform his
obligations under sub-clauses (I) and (2) of this Clause, then the amount certified
by tlie Engineer to be due to such railure shall be paid by the Contractor to the
En~ployer.
(4) Where the nature of the Works is such as to require tlie use by the
Contractol- of water-borne transport, the foregoing provisions or the Clause shall
be construed its though 'highway' inclitded a lock, dock sea wall, or other
structure related to a waterway and 'vehicle' included craft, and shall have effect
accordingly.
1. T h e transportation of plant and components in conllection with a n
overseas contract will often pose greater problenls than will be
experienced in the U K for two reasons:
(a) lack of a l t e r ~ ~ a t i routing
ve possibilities,
(b) the likelihood that existing road systems will not have been built
to the satne standards of constt-oction as woold be found in the
UK, thus leading t o a greater likelihood of tiamage than would be
the case in the home market.
For these reasons, therefore, it is doubly iruporlant that the Contractor
be aware of the respective liabilities of the parties in relation to damage to
highways and that he should take the appropriate action to ensure that
his interests in this respect under the contract are properly protected.
2. The Contractor's general obligations are defined under sub-clause
(1). They a r e that he shoold:
(a) use every reasonable means to prevent damage,
(b) select routes appropriate t o the loads to be carried,
(c) employ vehicles as suitable as possible for the task in hand
As has been noted, the options that are open to the Contractol- to liilfil
these obligations lnay be extremely limited. One can well imagine the
situation of a site served by a single-track unmetallecl road of
considerable length suffering extrenle damage in the rainy season when
being subject to traflic which, by U K standards, would be of modest
proportions.
In this context the true meaning of the worcl 'extraordinary' should be
considered-the Oxford Dictionary defines it as 'out o r the usual course'.
It is not, therefore, only beavier-than-us~1a1weights being carried that
should be considered as extraordinary tmffic, but the sheer volume of
traffic seen in relation to the amount of traffic n o m ~ a l l ycarried by the
road and the l ~ a t u r eof the road itself. Quite modest demands placed o n
the road by the Contractor or ally of his sub-contractors al-e, in certain
circumstances. likely to cause damage.
3. It is likely, therefore, that the Contractor will need to serve notice
on the Engineer or the Engineer's Representative quite commonly,
indicating that it will be necessary to car]-y out protection and
strengthening work and detailing the nature of his proposals.
The Contractor will the11 have placed the problem firmly in the hands
o r the Engineer and any one of three possibilities may thereafter ensue:
(a) within fourteen days the Engit~eerby counter-notice may direct
such protection o r strengthening as is necessary;
 Darl~ogeto the tligh~vaymld Ir~rleperlderltCor~trartor:~ 111
(b) within fourteen days, n o respollse having been received, the 3. Should the works of independent contractors delay o r disrupt the
Contractor may carry out the proposals put forward by him; contract works, the Contractor should seek a n extension of time under
(c) within fourteen days the Ellgineer may direct that ~nodificatio~ls Clause 44 under the ground of a special circomstance, whilst registering
be made to the proposals put forward by the Contractor. his claim to additional expense onder Clause SZ(5).
The cost and expense involved in carrying out the work shall then be paid
by the Einployer t o the Coiltractor, unless a n item o r items were included
in the bill of quantities t o b e priced by the Contractor at time of tender.
I n effect, therefore, the Contractor will have been paid for the work
carried out by Ilim either way.
4. Thereafter, should the Contractor receive a claim arising out of
damage o r injury to the highway, he must report it t o the Engineer and
the Employer udll indemnify the Contractor against any costs involved.
If, however, the Contractor has not f~llfilledhis obligations under sub-
clauses (I) and (Z), he may fail entirely or partially to recover the damage
re-instatement costs involved.

Clause 31-Work by Independent Contractors

The Contractor shall, in accordance with the requirements of the Engineer, afford
irll reasonable opportunities for carrying out their work to any other contractors
employed by the Employer and their workmen alld to the workn~enof the
Employer and of any other duly constittrted authorities who may be employed in
the execution on or near the site of any work not included in the Contract or of
any co~ltractwhich the Employer may enter into in co~~nection with or ancillary
to the Works. If, however, the Contractor shall on the written request of the
Engineer or the Engineer's Representative, make available to any such other
contractor, or to the Employer or any such authority any roads or ways for the
maintenance of which the Contractor is responsible, or permit the use of any such
of the Contractor's scaffolding or other plant on the Site, or provide any other
service of whatsoever nature, for any such, the Employer shall pay to the
Contractor in respect of such use or service such sum or suns as shall in the
opinion of the Engineer be reasonable.

1. The wording of this Clause is totally different to that conlained in

the ICE Conditions of Contract, 4th Edition and provides a substantially
clearer basis under which the Contractor can recover his additional costs
for facilities provided by hiin to' other- independent contractors o r
properly co~lstitutedauthorities in the direct employ of the En~ployer.
2. It will be noted that the Contractor does not have to provide special
facilities additional t o those that he would have provided for his ow11
works before he has a right t o financial recovery. Merely t o permit the
organisations concerned to use his own scaffolding o r facilities of
whatever nature is sufficient grouild for the E~nployer to pay the
Contractor for the use of such a service.
112 Clznpter 12 Dnri~ngeto the Highwujl nnrl I n d e p e ~ ~ d C
o ~o rt ~ t z ~ c t o r s 113
S T A N D A R D LETTERS A N D F O R M S Reference: FIDIC/22
To: The Engineer

Reference: FIDIC/21 Dear Sir

To: T h e Engineer
Notice ofa Clcriiir Received for Dniriage fo Hrglrirrrj~/Bri(Ige/B?i(lgfs
Dear- Sir
We have recently received fro111 ................... .
..
...... a claim for
Notice of Special Load to be nifovecl .................. in respect of damage or injury to ........................

We herewith give notice pursuaut to Clause 30(2) of the Conditio~lsof ihe
need to move a load of/loads of constructio~lalplant/machinery/pre-
constructed units/materials over the highway between .....................
and ..................... [and across the bridgelbridges at ..................... ]
and believe the load/loads concerned islare likely l o cause damage to the
highway [and bridgelbridges].
Having observed and performed our obligations under Clause 30(1) and
(2) of the Conditions. we request that the Employer negotiate the
settlement of sums due in respect of the claim pursuant to Clause 30(3) of
the Conditions.
Yours faitllrully

T h e weight of the loadleach load amounts to ............... aud will be

transported on ...................... the most suitable vehicle/vehicles Contractol- Limited
reasonably available for the purpose.

T h e route proposed is the only one available/the mosl appropriate t o the

Reference: FIDIC/23
lond/loads t o be carried and we undertake t o use every reasonable nleans
To: The Errgineer-
to prevent damage.
Dear Sil
T o this end we propose to protect/strengthen the highways/[and
bridgelbridges] by rneans of ........................ Reiirrbi/rseirreirt for Furilities Proi~idedfor/Used by cur f,ic/e~~eiic/eizf
Contr(rcror/D~l/j~ Co~lsrit~r/ed
Autlrorifj~
Unless within 14 days we receive a counter-notice directing lhat our
proposals are unnecesssary or that they should be ~nodified we will In accordance with your written instruction we have made available to
proceed wit11 t l ~ enecessal-y protection/strengthe~li~lg
work. .................... .. an independent conlractor/a duly constituted
authority facilities for the mainlenance of which we are responsible!
The cost of the necessary work we understand will be met by the special facilities consisting of ..................
En~ployerso far as they are not covered by priceable i t e ~ n sin ihe Bill of
Quantities. We now I-equil-e paytnent in respect of sucli ose/ser.vice i n accordance
with the appended details pursuant to Clause 31 of the Condilions.
Yours faithf~ully
Yours faithft~lly
Contractor Li~nited
Contractor Limited
 Dniiinge to the Nigh~vrr)~
orid Iiideper~dei~t
Contractors 115
Reference: FIDIC/24 Reference: FIDIC/E/41
To: T h e Engineer To: The Contractor

Dear Sir Dear Sir

Notice of Delriy Crtrrsed by Iiicle/~eridenr Conwnclor/Dri/~~Consritritecl
Aurkor.ily
You will be aware of the iilterdepende~lceof our works with those of your
indepellclent contractor/duly coiistituted authority carrying out the
installation of .................... .
........ and that in accordance with the
requirements of Clause 31 of the Conditions we have afforded them every
reasonable facility in the execution of their works on the siteladjacent to
the site.
Their works however are now behind progran~n~e/[and] greatly increased
in scope and despite all reasonable efforts that we have made to integrate
their operations into our overall programme, we find that in the area of
................................... our works are being seriously impeded by
Ii~srrrioiorins to Mensrrres Reqlrirecl for the ibfoeeii~e~ir
of Specif11Lorrrls
We refer to your letter dated ........................ referellce ...............
giving notice pursuant t o Clause 30(2) of the Conditions of the movement
of a special load over the highway between ........................... and
........................... [and across the bridgelbridges at ................ ..]
T h e measures you propose to take to protect/strengthen the highway/
[and bridgelbl-idges] are unnecessary/are approved without inodification/
subject to lllodification in that ........................
[Details of your additional costs should hc pl-on~ptlysubnlitted in
accordance with the requirements of the contract.]
Yours f a i t l ~ f ~ ~ l l y

Having no privity of contract with the orga~lisatio~l concerned through

wliicli we can seek remedy, and as it is becoming increasingly apparent Consultants Partnersllip
that these circurnsta~ices,which we believe could not reasonably have
been foreseen by a n experienced contractor a t the time of tender, are now
delaying/wilI inevitably delay our works, we therefore give notice of delay
and additiotlal cost.

We will be maintaining slrch conteinpomry records as we believe Reference: FIDIC/E/42

necessary, or may be required by you, to substantiate our additional costs To: T h e Contractor
and support our request for an extension ol' time pursuant to Clause 44.
Dear Sir
T h e adclitio~~al
p a y ~ l l e ~to
l t which we consider ourselves entitled will be
registered in our monthly payment application together with as full and
detailed particulars a s can reasonf?bly be provided in view of prevaili~lg
circumstances and tilue of application as required pursuant to Clause
52(5) o f the Conditions. i i o n .....................
Receipt 1s acknowledged of your c o n i n ~ ~ ~ ~ l i c adated
............ reference ............... detailing danlage caused/[and] a clainl
Yours Faithfi~lly received from the highway aulhority in relation to that damage at
........................

Contractor Limited It is noted that such damage arose during the traIlspor1 to s ~ t eof
materials/constructional plant for the permanent works.
 to the tliglnv~ijtniid I~~depeizdeilt
Drii~~nge Coirrrnctors 117
Reference: FIDIC/E/44
The Employer will negotiate, settle and pay all sums due in respect of the
To: The Contractor
claim./In so far, however, a s we consider the damage to have [partially]
arisen througll failure on your p a t t o observe and perfort11 your
Dear Sir
obligations under Clause 30(1) of the Conditions, [a proportion of the
settled sum calculated a t ............... per cent of] such sums will be
certified by us and deducted fro111 nlonies otherwise due lo you under the
Colltract.
We refer to your letter dated ........................ reference ...............
These procedures are adopted pursuant to Clause 30(3) of the
giving noticc that you consider that your works are being delayed/
Conditiotls.
disrupted by ................................
Yours faithfully
[We d o not accept the validity of your notice given pursuant to Clause 31
of the Conditions, since the nature of the circumstances causing the
delay/disruption could have reasonably bee11 foreseen by an experienced
Consultants Partnership
contractor.]

[We accept the validity of your notice given pursuant t o Clause 31 of the
Conditions and note that you anticipate suKering delay/[and] additional
Reference: FIDIC/E/43
The Co~ltractor cost in consequence.]
To:
[Details of your additional costs should be promptly s~tbtnitied in
Dear Sir
accordance with the requirements of the contract.]

[We note that any such delay is [not] critical to the tinlely construction of
the overall works/liable to delay section ............... of the Works.]
You are requested to provide .............................. for the use of
Yours faithfully
....................... who will shortly cotnmence work/is currently working
on site. The firm is an independent contractor/duly constituted authority
and communication with them should be made either through or after
Consultants Partnership
infornling ourselves.

This direction is given pursuant to Clause 31 of the Conditions and the

nature of the requirement noted was specifically indicated [and priced] in
the bill of quantities/shall be deeined to be a variation order under Clause
5l/is cotlsidered to be a requirenient reasonably to be foreseen by an
experienced contractor a t time of tender.

Yours faithfully

Consultanls Partnership
 (c) Transport labour ~1111ess
the contracl
C H A P T E R 13 (d) House labour otherwise provides and
(e) Feed labour so far a s it is
Labour and Returns (f) Pay laboul- necessary.
(g) Provide water for drinking and washing purposes
(h) Nor make available alcoholic liquor o r drugs (unless allowed by
the authorities).
(i) Nor make available arms o r ammunilion
(i) Recognise festivals, days of rest, religious o r olher customs
C l a ~ ~ 3s L
e C o n t r a c t o r ' s Obligations in Regard to the Provision of Labour (k) C0111ply with the directions of duly constituted authorities in the
(1) The Contractor shall make his own arrangements for the engagement of all event of epidemics
labour, local or otherwise, and, save insofar as the Contract otherwise provides, (m) Discipli~ielabour to avoid disorder and to maintain peace and
for the transporl, housing, feeding and payment thereof. protect persons and property.
(2) The Contractor shall, so far as is reasonably p~xcticable,having regard to
local conditions, provide on the Site to the satisfaction of the Engineer's 2. It is apparent that the overall cost of nnploying labour o n an
Representative an adequate supply of drinking and other water for use of the overseas contract will be substantially greater than the mere wage cost
Contractor's staff and work people. when all other a~lcillarylabour obligations have been taken into account.
(3) The Contractor shall not, otherwise than in accordance with the statutes, 3. T h e Contractor is naturally I-eponsible for ensuring that these
Ordinances and Government Regulations or Orders for the time being in force
impo~.t,sell, give, barter or otherwise dispose of any alcoholic liquor or drllgs, or obligatio~lsare observed by all his sub-contractors.
permit or suffer ally such importation, sale, gift, barter or disposal by his sub- l s particular applicatio~lso far a s
4. At time of tender, the c o ~ l d i t i o ~of
colllractors, agents or employees. they affect labour should be perused with special care, since they are
(4) The Contractor shall not give, barter or otherwise dispose of to any person likely to cover such matters as:
or persons any arms or ammunition of any kind, or permit or suffer the same as
aforesaid. (a) obtaining permits for the importation of labour,
(5) The Contractor shall, in all dealings with labour in his employ, have due (b) regulations a s to hours of e m p l o y n l e ~ ~and
t c o ~ l d i t i o ~ l of
s
regal-d to all recognised festivals, days of rest and religious or other customs. engagement,
(6) In the event of any outbreak of illness of an epidemic nature, the
Contractor shall comply with and carry out such regulations, orders and (c) health regulations,
requirements as may be made by the Government or the local medical or sanitary (d) rates of pay,
authorities for the purpose of dealing with and overcoming the same. (e) c o ~ n p l i a ~ l cwith
e local labour regulations.
(7) The Contractor shall at all times take all reasonable precautions to prevent
any unlawful, riotous or disorderly conduct by or amongst his employees and for 5. It ~ l l u s tbe emphasised that the terms of Clause 34(1) are not a
the preservation of peace and protection of persons and property in the requirement placed 011 the Contractor to house local labour but only t o
neighbourhood of the Works against the same. make housing provision for imported labour a s necessary.
(8) The Contractor shall be responsible for observance by his sub-contractors
of the foregoing provisions.
(9) 1111~.orher corzrlirio,~srrJJecring labour o,zd ,i,r,ges sl,all be us set ottl it, Pcl1.1II C l a ~ ~ 35-Returns
se of Staff, L a b o i ~ rand Plant
34 as rirrzy be necessrrrl..
in tire Clartse ~rr~,,,bered The Contractor shall, if I-eqoired by the Engineer, deliver to the Engineer's
Representative, or at his office, a return in detail in such forin and at such
intervals as the Engineer may prescribe showing the supervisory staff and the
numbers of the several classes of labour f~-omtime lo time enlployed by the
Corlorle~rr
Conlractor on the Site, and such information respecting Constructional Plant as
1. T h e Contractor's respo~lsibilitiesin relation to the care of labour are the Engineer's Representative may require.
far more extensive than under the I C E Conditions of Contract 4th o r 5th
Editions. These respotlsibilities are to:
1. T h e terms of this clause are broadly the same a s those contained in
(a) Engage local labour the ICE Conditions 4th Edition, save only that the Engineer's
(b) Engage imported labour
118
 Lrrbolir. nnfl Ret~rrrzs 121
Representative is featured and that returns may also be I-equired in S T A N D A R D LETTERS A N D F O R M S
relation to supervisory staff.
2. The Contractor is not obliged to submit supervisory staff and
labour returns or infortnation cancel-ning his plant under this clause Reference: PlDICj25
unless requested to d o so by the Engineer; often, however, it n ~ a ybe as To: T h e Engineer's Representative
much in his interests a s the Employer's to do so.
3. The Engineer will, doubtless, invoke the provisions of this clause Dear Sil
where returns o r information would be of assistance, for example, with
regard to varied work involving additional o r different plant and which
c o ~ ~ for111
ld an area of subsequent contention. Such particulars would
also be relevant to any action taken under Clauses 12, 46 o r 53. We attach our sta& labour and plant returns for week ........
4. Where some variation of price provisions apply, other than by the pursuant to Clause 35 of the Conditions in the form reyrrested.
application of an agreed formula, the Contractor might be obliged to
provide silnilar particulars, insofar as labour is concerned, to those called Yours faithfully
for here.

Contractor Linlited

ReTel-ence: FIDIC/E/45
To: The Contractor

Dear Sir

You are required to provide a dailyiweekly staff, labour and plant retul-n
covering both your own I-esources and those of any approved sub-
contl-aclor pursuant to Clause 35 of the Conditions.

Such returns shall be made in a form approved by Mr. ..................

Yours faithfully

Consultants Partnership
CHAPTER 14
Standards of Materials and
Workmanship
Clause 36(1)-Qtiality of Materials and Workmanship and Tests
A11 materials and workmanship shall be of the respective kinds described in the
Contract and in accorda~ice with the Engineer's instructions and shall be
subjected from time to time to such tests as the Engineer may direct at the place
of manuFacture or fabrication, or on tlie Site or at such other place or places as
may be specified in the Contract, or at all or any of such places. The Contractor
~1x111provide such assistance, inst~~urnents,
machines, labour and materials as as-e
normally required for examining, measuring and testing any work and the
quality, weight or quantity of any material used and shall supply sanlples of
materials before incorporation in thc works for testing as may be selected and
required by tlie Engineer.
Coili~~re~~t
1. T h e wording of this clause is virtually the same as tliat contained in
the ICE Conditions of Contract, 4th Edition.
2. It is suggested that any tests required by the Engineer should be
notified by hini in writing and, wherever possible, sufficiently in advance
L O permit the Contractor t o arrange for a representative to be present
should he so wish.
3. Where suitable fill is to be obtained fi-om the excavation, this should
be regarded as ~naterialand the instroctions of the Engineer in regard
thereto souglit, and such Lests only carried out as the Engineer nlay
direct.
4. T h e desirability of reasonable advance notice also arises fro111 the
specific requirenle~it for the Contractor to provide such assistance,
instruments, machines, labour and nlaterials as are normally required for
examining, ~lieasi~ring and testing any work a ~ ? dtlie quality, weight or
qi~antityof ally ~ilaterialused. a (3) The cost of making any Lest shall be borne by the Convactor iTsuc11 test is
5. When requested by the Engineer, tlie Conll-actor is to supply
samples of materials before incorporation in the works for testing. Such
samples are to be selected by the Engineer.
6. The Engineer should confine his selecting and testing of samples to
deter-mining whether they comply witli the contract. Should the Engineer,
by selection ancl testing of samples, cause the Contractor Lo incorporate
in the WOI-ksa specific coninlodity which is nlore costly o r less readily
obtainable than an alternative commodity offered by him u,hicli would
122
also comply witli the requirements of the contract, tlie Engineer, by his
actions, tilight (in the absence o f any express provisions on tlie matter in
the contract) unconsciously have instructed a variation for which the
Contractor could claitn additional payment under Clause 51 and/or an
extension of ti~ileunder Clause 44.
7. The assistance, labour and nlaterials to be provided in this sub-
clause are to be such as are nor~nallyrequired. Should tlie contractor be
called upon to provide Illore than lie considers to be the normal
requirement, he can clai~nthe excess to be a variation and seek payment
u ~ l d e r Clause 52 for the additional costs or expense involved, or,
alternatively, obtain rei~nbursetne~ltthrough the other sub-clause
provisions of this clause.
8. Where nlaterials under the contract are to be provided under free
issue by the Eniployer Lhe Contractor slioulcl obtain a wal-rarity from the
Employer certifying tliat the materials comply with the kinds described in
the contract and inde~nnifyiiigthe ContracLor fro111 any liability should
they fail t o d o so.
Clause 36(2)-Cost of Samples
All samples shall be supplied by the Contractor at his own cost if the supply
thereof is clearly intended by or provided for in the Contract, but if not, then at
the cost of the Employer.
1. The wording of this sub-clause is exactly the same as that contained
in the ICE Coxiditions of Contract, 5th Edition.
2. Unless the supply of sanlples by the Contractor is intended by, o r
provided for, in the specification, dl-awings or bills o f quantities, they are
to be at the cost of the Employer. It is suggested that payment sl~ouldbe
made, where practicable, through interim certificates.
3. T h e Contractor should submit particulars of the cost concerned to
the Engineer for checking and certification.
Clause 36(3) and (4)-Cost of Tests
clearly intended by or provided foi. i n Llie Contract and, in the cases only of a test
under load or of a test to ascertain whether the design of any finisl~edor partially
finished work is appropriate for the purposes which it was intended to fi~lfil,is
partici~larisedin the Contract in sulficient detail to enable tlie Contractor to price
or allow for the same in his Tender.
(4) If any test is ordered by the Engineer wliicli is either:
(a) not so intended by or provided for, or
(b) (in the cases above mentioned) is not so particularised, 01

(c) tliough so intended 01-provided for is ordered by the Engineer to be
carried out by an independent person at any place other than the site or
the place of lnanufacture or fabrication of the materials tested,
then the cost of such test shall be borne bv the Contractor. if the test shows the
~~~~~~ ~~~~ ~ ~~ ~ ~
workmanship or malerials not to be in accordance with the provisions of the
Contract or the Engineer's instructions, but otherwise by the Employer.
1. The p o s i t i o ~with
~ regard to the cost of testing closely resembles the
situation relating to the supply of samples, except that. in the case of a
test under load or a test to ascertain whether the design of any finished
work is appropriate for the purpose which it is intended to fulfil, the cost
of such testing must be paid for by the Employer, unless it was
particularised in the Contract in sufficieilt detail to enable the Cot~tractor
to price or allow for the same it1 his tender and it has, therefore, already
been paid Tor in effect by the Employer.
2. Except where the cost of testing is to be borne by the Contractor,
having previously been included in his rates or against a specific bill item,
he should submit full particulars of the cost c o i l c e r ~ ~ et od the Eilgineer for
checking and certification.
3. It should be particularly noted that where the tests demonstrate that
the work~llansliipo r materials are not in accordance wit11 the specifi-
cation, then all such costs shall be borne by the Contractor.
4. Where it is proven by tests that workmanship and materials d o
co~lformto the specification, the cost of such tests will be borne by the
Elllployer. This point may o n occasion be profitably made to a n Engineer
who perists in unreasonable testing demands which collsiste~~tly show the
work to be in accordance with the contract.
5. Even where a testing requirement may have been clearly intended
and particularised in the contract d o c u i n e ~ ~ t sshould
, the Engineer
subsequently require the test to be carried out by a n independent person
away from the site or the place of manufacture, then the costs of such
test, should the materials pass the test, will again be borne by the
Employer.
It is somewhat anomalous that the clause appears t o make no
provision for the cost of the test so made being offset by the likely cost of
the tests that would have been incurred had they been made at the site, as
presumably required by the original contract terms.
Clause 38(l)-Examination of Work Before Covering Up
No work shall be covered no or r~utout of view without the approval of the
Engineer or the Engineer's Representative and the Contractor shall atrord full
opportunity for the Engineer or the Engineer's Representative to examine and
Stoi?rlor.rlsof hlarerials rrrlrl Workniansl~i/~ 125
Ineastire any work which is about to be covered up or put out of view and to
examine foundations before permanent work is placed thereon. The Contractor
shall give due notice to tlie Engineer's Representative whenever any suc11 work or
foundations is or are ready or about to be ready for examination and the
Eneineer's Reoresentative shall. without unreasonable delav... unless he considers
it unnecessary and advises the Contractor accordingly, attend for the purpose of
exainining and lneasuriug such work or of examining such foundations.
Coir~il?enc
1. This clause is very similar to that contained in the I C E Conditions
of Contract, 4th Edition, save only that for the Engineer the words
'Engineer or the Engineer's Representative' are introduced.
2. A sound basis of administration is essential if the requiretlleilts of
this clause are to be effectively controlled.
3. Since in ally work of cotlstructiotl, layer upon layer of work may
progressively be put out of view by covering u p with a subsequent layer,
it is essential that the Engineer's inspection requirements are clearly
established and adequate notice given.
4. Notification should be given by standard proforma that works
which will be s~tbsequei~tly covered u p are available for tneasurement
and/or inspection.
5. If the Engineer ullreasollably delays inspection of the works without
sound reason founded in proper regard for the contract, the Contractor
may have grounds for claim.
Clause 38(2)-Uncovering and Making Openings
The Contractor shall uncover any part or parts of the Works or make openings in
or through the same as the Engineer may from time to time direct and shall
reinstate and make good such part or parts to the satisfaction of the Engineer. If
any such part or parts have been covered up or put out of view after compliance
with the requirements of sub-clause (1) of this Clause and are found to be
executed in accordance with the Contrzlct, the expenses of uncovering, making
openings in or through, reinstating and making good the same, shall be borne by
tlie Employer, but in any other case all costs shall be borne by the Contractor.
Co~r?~iieiir
1. The Engineer may require the Contractor to open u p ally part of the
works for inspection.
2. Where, however, the Contractor has co~npliedwith the require-
~llentsof Clause 38(1) and it is found that the works have been executed
in accordance with the contract, the costs shall be paid by the Employer.
Clause 39(1)-Removal of Improper Work and Materials
The Engineer shall, during the progress of the woi-ks have power to order in
writing from time to time:
 a) the removal from the Site, within such time or tin~esas may be specified in Contractor has not con~pliedwith a n order ibr removal of work where
the order, of any mate^-ials which, in the opinion of the Engineer, are not the work is not in conformity with the specification and drawings.
in accordance with the Contract. 2. If in reality the work of renioval and substitution is, in fact, a
(b) the substitiition of proper and suitable materials, and
(c) the ren~ovaland proper re-execution, not withstanding any previous tests variation order for which the Contractor should be paid, rererence should
thereof or interim payment therefor, of any work which in respect of be made to Clause 51(2), under which 'no such val-iation shall be made by
materials or workn~ansliipis not, in tlie opinion of the Engineer, in the Contractor without a n order in writing of the Engineer'. If such work
accordance with the Contract. were genuinely to be variation work rather than remedial work. the
Co~itractor would be quite entitled to refuse to comply with such
instructiol~until he had in his hands the appropriate order.
1. It is under this clause that the Engineer has authority t o order
defective work or ~liaterials to be ren~oved from the Site and for
substitute and replacement work to be carried out.
2. T h e Contractor should be careful to ensure that he does not carry
out work under this clause that is in reality the product of n o more than a
change of mind by the Engineer when he sees the end product that has
resulted from strict adherence to the terms of the specification and
drawings. In such a case, the contractor should register his objection and
require a n appropriately worded variation order before carrying out any
such work.
3. T h e Inere fact that the work concerned may previously have been
the subject of test or included in a n interim payment does 1101 debar the
Engineer from still requiring its s u b s e q u e ~ ~removal
t and proper re-
execution.
4. Should the instruction for removal and re-execution be unreason-
ably delayed by the Engineer, and substantial further works have been
built o n or around the offending section, thus causing its removal and re-
execution to be l~eedlesslyexpensive, the Contractor might claim that the
Engineer had not given his instruction at a n appropriate time for the
purpose of tlie proper and adequate execution and niaintenauce of tlie
works pursuant to Clause 8, and thus that the C o ~ ~ t r a c t oshould
r be
reimbursed the additional and unnecessarily incurred extra cost.

Clause 39(2)-Default of Contractor in Compliance with Order to Remove

Improper Work and Materials
In case of default on the part of the Co~~tractorin carrying out such order, the
Employer shall be entitled to employ and pay other persons to carry out the same
and all expenses consequent thereon or incidental thereto shall be recoverable
fro111the Contractor by the Employer, or may be deducted by the Employer from
any n~oniesdue or which may become due to the Contractor.

1. In order that the Contractor may be penalised for this type of

default, it is, of course, still necessary for it t o be shown that the
S T A N D A R D LETTERS A N D F O R M S Reference: FIDIC/28
To: The Engineel
Reference: FIDIC/26
To: T h e Engineer
Dear Sir
Dear Sir
il~1plicnrioi7/orthe Cosr of Tesrs
Request for n ~ i r r r r ~ r l r vrlirtt
. . Free Isstte Mrrrerirrls Corrlply ivirl~ the
Respective Kir10s Described ill the Contract We have recently carried out tests [under load] to ascerlain whether the
design is suitable for the purpose inlended/arianged for tests to be carried
We hereby request a written warranty guaranteeing that the free issue out by an independent person away from the site on ............... to the
. .
materials conslstlng of ........................... being supplied to us by the instructions of the Engineer's Representative/the Engineer, which tests
Employer comply with the respective kinds described in the contract have shown the workithe materials to conlply in all respects with Lhe
pursuant t o Clause 36(1) of the Conditions and that they will be issued at provisions of the contract.
appropriate times.
Since such tests were not clearly intended by or provided for in the
Should such inaterials prove defective or fail to be delivered to contract/particularised in suficient detail Lo enable the Contractor to
programme, we will request reasonable reinlbursenlent for additional price for them in the tender/carried out on the site, application is made
costs incurred. for re-inlbursement pursuant t o Clause 36(4) o r the Conditions.

Yours faithfully Supporting details are appended

Yours faithfully
Contractor Limited

Contraclor Limited
Reference: FIDIC/27
To: T h e En; nlneer

Dear Sir
Applicatiori for tlte Cost of S m ~ p l e s Reference: FIDIC/29
To: The Engineer's Representative
We have recently supplied samples o f . ................. Lo the instructions of
the Engineer's Representative/the Engineer and since the supply thereof
was not clearly intended by o r provided for in the contract, application is Dear Sir
made for reimbursenlent pursuant to Clause 36(2) of the Conditions.
Supporting details are appended. Norificrrtiorl of the A i ~ r r i l ~ b i l i r yof Worl; for Esrrrr~irrrrrio~~/[rrirrI]
Mertsrtrer?7er1tBefore Coverirrg Up
Yours faithfully
We give notice pursuant to Clause 3S(1) of the Conditions that
Contractor Limited
................................. is available for inspection/[and] lneasurement
before covering op.
We request that inspection/[a11d]1lleasuren1e11tbe made by
............... to enable the works to proceed.
Yours faithf~~lly
We have recently received a n order dated ........................ reqoiring us
to remove ........................... on the gro~illdsthat the work has been
improperly e x e c ~ ~ t e d / c o n s t r ~ ~using
c t e d ~naterialsnot complying with the
specification.

We believe that the work to wliich the order relates complies 111 all
Contractor Linlited respects with the terms of the contract and that as such its removal
should not be required pursuant t o Clairse 39(1) of the Conditions but
should be the subject of a variation order issued ~ ~ n d Clause
er 5 1 of the
Conditions.
Reference: FIDIC/30
To: T h e Engineer Yours faithfully
Dear Sir
Contractor Limited
Request for the Re-ir>rblfrser?~er~r
of Costs for Operrir~g'/I.' rite Worli for
Iflspectior~

We refer to the Engineer's instruction No. ......... instructing us to open

up .............................. for inspection.
Since provision for this requirement was not made in the contract, the
terms of Clause 38(1) of the Conditions were co~npliedwith, and since
inspection has shown the works/[and] ~naterialst o be in accordance with
the Contract, we request that the costs, together with the cost of making
good be added to tlie contract sun1 pursuant to Clause 38(2) of the
Conditions.
All necessary records to substantiate our costs incurred have been
tnaintained and will be available l o assist in the ascertain~nentof cost.
Yours faithfully
Contractor Liiilited
Reference: FIDIC/31
To: T h e Engineer
Reference: FIDIC/E/46
To: T h e Contractor
Dear Sir
Irwrrfrctiow to Ccrrq, Oftr Test
You are directed, pursuant to Clause 36(1) of the Conditions, to carry
out a test on ..................... at the place of rni~nufacture/fabrricatio+
the site. The actual material/article for testing will be selected by
Mr. ...............
The for111 of the test will be as set out in section .................. of the
specification/as detailed on the appended scheclule/as instructed by
Mr. ..................
[As such test was clearly provided f o ~ .in the contract/designecI to
ascertain whether the design of the finished work is appropriate for the
purpose intended and was particularised in the specifici~tion/bill of
quantities, the cost of nlaking S U C I ~test will be borne by yourself pursuant
to Clause 36(3) of the Conditions.]

Dear Sir [Since such lest was not provided for/pariicolarised in the contract, the
cost will be borne by the Employer p l ~ r s u a ~ lto
t Clause 36(4) of the
Disngreer~renr~rirhor1 Ordei. to Rairovr Woric Scrid to be Irrr~~roper
Work Conditions providing the test shows the workmanship o r ~naterialsto be
 Stnim'nr.rls of Mc~ter.ialsnrirl Ct.br.lirilr~imsllil,p 133
in accordance wit11 the provisio~lsof the contract and the Engineer's necessary ~ ~ l e a s u r e ~ l l or
e n texalninatiotl to be carried out particularly in
instr~~ctions.] respect of but not limited to:

Yours faithfully
(a) ........................................................................
(b) ........................................................................
(c)
Consulla~ltsParunership
( ) ........................................................................
[In the event that your Company already operates appropriate noti-
fication procedures that will meel our approval we will be pleased to
adopt your existing arratlgement.]
Reference: FIDIC/E/47
To: T h e Co~ltractor [The required notificatiolls will be given on our 'Availability fol-
Inspection For111 3' a copy of which is appended for your infon-1nation.1
Dear Sir
Yours faithfully

Consulta~ltsPartnership
You are directed to provide a saluple of ..................... consisting of
.................. pursuallt to Clause 36(2) of the Conditions.

Since such requirement was [not] clearly intended by or provided for in

the contract, the cost will be borne by the E~~~ployer/yourself.

Yours failhfillly

C o ~ l s u l t a ~ lPartnership
ts

Reference: FIDIC/E/4S
To: T h e Contract01

Dear Sir

Procerl~~re
f o be Adopted Prior. ro Covering rtp Works

Your attention is drawn to the fact that prior notice is I-equired to be

give11 by you before any work is covered up or put out of view pursuant
to Clause 38(1) of the Conditions.

In this c o t l ~ ~ e c t i we
o ~ lrequire you t o notify .................. to enable any
 Strnrclnr.rls of Murer.irr/s rrr7d Workr77~nslrip 135
-
Reference: FiDlC/E/49
Availability for To: The Contractor
inspection
Dear Sir

Contractor's Name and Address ' Sheet umber Receipt o f your 'Availability for Inspection' for111 reference nu~llbel.
Piojecr Title .................. is acknowledged.
a/9*".,.*-
Engineer's Name "-.*- xi
Locarion .-+, %%+, It is co~lfirllledthat inspection in this particular case is no1 considered
Employer's Name -. \ necessary/will be carried out by ........................ on .................. at
,----~...a.~-u.m&-
*, ..................I has already bee11 carried out by ..................... and that
Contractor's Agent approval for covering up/will be signed for a t time of inspection when
Inspected and Approved passedihas been givenihas been denied pursuant to Clause 38(1) of the
Conditions.

Inspected by Yours faithfully

(EngineeilEngioeei's Representative)
C o ~ l s u l t a ~ lPartnership
ts

Reference: FIDlCiEi50
To: The C o ~ ~ t r a c t o r

Dear Sir
Irzstr.irctior~to Ur7cover. Worli

You are hereby instructed to uncover .................. / n a k e an opening

through .................. pursuant t o Clause 38(2) of the Conditions.

As you have [not] complied with the requirements of Clause 38(1) of the
Conditions, prior to covering up the said work, any cost in so doing and
s u b s e q u e ~ ~reinstatement
t will be borne by yourself/lhe Employer
providing the works are fourld l o be executed in accordallce will1 the
terms oC the Contract.

Yours f a i t h f ~ ~ l l y

C o ~ ~ s u l t a ~Partnership
lts
 Srrr~~rlrrrn's
of Mnterinls n11d Work117n1ulzil> 137

Reference: FIDIC/E/51 [Any derdult on your part in delaying tlie proper re-execution o r the said
To: T h e Contraclor work will cause the Employer to have the work earl-ied out by ollier
means, rendering you liable for all expenses consequelit thereon o r
Dear Sir incidental thereto [which will be deducted from monies due or which may
become due to you] pursuant to Clause 39(2) of the Conditions.]
Orrler,for rlle Rei~fovnlof illrrterirrls ,lor ill Accorclrrr~cei1~it11
rhe Co~rrrcrct
Yours faithfully
You are hereby instructed t o remove tlie ~ ~ l i d e r ~ l onlaterials
ted f r o ~ nthe
site which in the opinion of tlie Etigilleer are not in accordance with the
Contract: Consultants Partnership
(a) ........................................................................
(h) ........................................................................
(c) ........................................................................
and to replace the said nlaterials with proper and suitable nlaterials

This ilislruction is given pursuant to Clauses 39(l)(a) and 39(lj(b) of the

Conditions.

Yours f a i t h f ~ ~ l l y

Co~lsultantsPartnership

Reference: FIDY C/E/52

To: The Contracto~

Dear Sir

Order for rlle Re-Esenirion of Worlr Nor ill Accorrlni~reivirlr 111eCo?rti.nct

You are hereby instructed to remove and properly re-execute the

ulidernoted work which in the opinion of the Engineer is not in
accordance with the contract in respect of malerials/[and] workmanship:
(a) ........................................................................
( j ........................................................................
(c) ........................................................................
This instruction is given pursuant to Clause 39(l)(c) of tlie Conditions.

CHAPTER 15
The Contract Period
Cla~tse40(1)-Susl)ension of Work
The Contractor shall, on the written order of the Engineer, suspend the progress
of the Works or any part thereof for such tinle or times and in SLICII manner as the
Engineer may consider necessary and shall, during such suspensioll properly
protect and secure the work so far as is necessary in the opinion of the Engineer.
The extra cost incurred by the Contractor in giving etTect to the Engineer's
instructions under this Clause shall be borne and paid by the Elnployer ~~nless
such suspension is:
(a) otherwise provided for in the Contract, or
(b) necessary by reason of son~edefault 011 the part of the Contractor, or
(c) necessary by reason orcli~naticconditions on the Site, or
(d) necessary for the proper execution of the Wor-ks or for the safety of the
Works or any part thereof insofar as such necessity does 1101 arise from
any act or default by the Engineer or the Employer or fro111 any of the
excepted risks defined in Clause 20 hereof.
Provided that the Contractor shall not be entitled to recover ally such extra cost
unless hc gives notice of his intention to claim within 28 days of the Engineer's
order. The Engineer shall settle and determine such estl'a payment and/or
extension of time nnder Clause 44 hereof to be made to the Contracto~in respect
of such claim as shall, in the opinion of the Engineer, be fair and reasonable.
Coiilrl7ent
1. T h e Contractor may only suspend the progress of the Works on the
written order of the Engineer. If he does so without a written order, the
provisio~lsof Clause 63 (forfeiture) may become applicable.
2. T h e Engineer is empowered to suspend the progress of the works (or
any part thereof) for such time and in such manner as he lnay consider
necessary. It appears reasonable, however, that the Contractor should be
informed, if only in general terms, of the reasons for any suspe~lsio~l at
the time it is ordered.
3. It is for the Engineer t o decide the necessity for suspending the
progress o f the works. T h e uon-availability o r the site, insufficiency of
drawings or any nlatter fallitlg within the scope of Clause 12 might, for
example, necessitate such suspension.
4. If, as ahnost invariably will be the case, the Co~ltractorwishes to
clailil the additional expense to which lle will have been put by reason of
~p
the ordered suspension, he must give written notice of his intention to the
Engineer within 28 days of the Engineer's order. This period of notice is
quite specific and should the Contractor fail to put in the relevant notice,
the Engineer would be entitled t o treat any subseque~ltclaim made by
him as time-barred.
5. The clause, unlike its equivalent in the earlier 2nd Edition, contains
no comprehensive delnition of 'cost' that might fall within the scope of
the Contractor's claim. T h e cost definition of Clause l(4) will, however,
provide the wide-ranging breadth of definition required.
6 . The clause now contains f o r ~ u a arrangements
l for extension of time
as a result of suspension. A t the same time, therefore, that the Contractor
makes application for his addiliotlal costs, he should also make
application for extension of time k~nderClause 44 on the ground of
suspension under Clause 40(1).
7. T h e additional cost to which the Contl-actor llas been put sl~ould
initially be lodged for payment application purposes as a claim registered
in his monthly payment application under Clause 52(5).
8. As ~ i n d e rboth the 4th and 5th Editions of the I C E Conditions, the
right to re-imbursement for costs for suspension are q o,I i Ifled in that if
the requirement had been othel-wise provided Cot in the contract. o r was
necessary for the proper execution or safety o f the works, or caused by
the Contractor's default or clinlatic conditions, the cost would not be re-
imbursable.
9. An intel-esting anonlaly appears, however, to exist between Claose
40(l)(c) so far as it relates to non-payment of additional costs arising
from a suspe~lsiondue to weather conditions affecting the safety or
quality of the works and a possible interplay between Clauses I I and 12.
IC the Contractor should have been given information at the titne of
tender o n the subject of climatic cotlditions that prove to be erroneous, it
would appear possible that, whilst recovery might not be possible under
Clause 40, it could equally well be pursued iunder Cli~nse12.
10. When the Engineer gives a sospension order 11e should clearly
stipulale what lle requires the Contractor to d o in order to protect and
secure the work PI-operly. The clause talks of this being undertaken 'so
f i ~asr is necessary in the opinion of the Engineer'; clearly, therefore, iCthe
E ~ ~ g i n e ehas
r a n opinion on the subject he must convey i t to the
Contractor in order that he may implement the requirements of thal
opinion.
T h e measures which the Contractor utldertakes to the instroction of
the Engineer will form part and parcel o r the cost of suspension, which
the Contractol- will be entitled to have re-imbursed providing the reason
for the suspension in tlle first place was one entitling the Contlzctor to
co~npensation.In many parts of the world i t is absolutely essential that
140 Chnl~rerIS
the lnatter of protecting and securing the work during suspension be
carefully considered. A job which has stood for some months,
unprotected and insecured, it1 an area of tropical rain forest has to be
seen t o be believed, and the cost of either adequately protecting in the
first place, o r remedying niatters later, will be very considerable.
Clause 40(2)-Suspension Lasting Longer than 90 Days
Ilthe progress of the Works or any part thereof is suspended on the written order
of the Engineer and if per~nissionto I-esumework is not given by the Engineer
within a period of 90 days from the date of suspension, then, ln~lesssuch
suspension is withi11 paragraph (a), (b), (c) or (d) of sub-clause (I) of this Clause,
the Contractor may serve a written notice 011 the Engineer requiring pertnissioll
within 28 days fro111receipt thereof to proceed with the work or that part thereof
in regard to which progress is suspended and, if such permission is not granted
within that time, the Contractor by a Curther written notice so served may, but is
not bound to, elect or treat the suspension where it affects part only of the Works
as an omission of such part under Clnuse 51 hereof or where it affects the whole
Works, as an nbilndonme~~t of the Couwact by the Employer.
Co117rnent
1. This section of Clause 40 has been IIILIC~ sinlplified in the 3rd
Edition as co~nparedwith the earlier 2nd Edition and is now closely allied
to the I C E Conditions, 5th Edition.
2. If a suspellsioll order lasts for more than 90 days, the Contractor
may, if he so wishes, serve a written notice on the Engineer reqlliring
permission, within 25 days of receipt of that notice, to proceed with the
works o r that part which has been suspended. If such permission is not
granted witfiin 28 days, the Contractor nlay by a further wl-itten notice
served on the Engineer treat the suspended works (where only part of the
works is concerned) as being at1 o~llissionof that work from the contract
under Clause 51, or, where the whole wol-ks are concerned, as an
abandonment of the contract by the Employer.
3. Should the suspended work be onlitted by virtue of the provisions of
snb-clause (2), appropriate adjustments t o the contract price should be
made by the Engineer under Clause 52.
4. T h e Contractor, provided IlZgives the requisite notices, may also be
entitled to claim varied rates o r prices under Clause 52(2) for the residue
of the work i i the nature or amount of the omission changes the
characteristics of the work still to be carried out.
5. If the Contract is abandoned by the Enlployer under the operation
of this sub-clause, the Contractor may be entitled t o danlages for breach
of contract. However, before serving a notice treating the suspensio~lof
the whole works as a n a b a ~ l d o n ~ n e nbyt the Employer, the Contractor
Tile Cof~trnctPeriod 141
should check most carefully that the suspension does not arise from some
default on his part, o r from sonle other matter for ~,Jlic11 11e is
contractually responsible o r that would not provide ground for notice of
abandonment.
Clause ill-Commencement o f Works
The Contractor shall collllllellce the Works on Site witllin the period n;lmed in the
Appendix to the Tender after the receipt by him of a written order to this efrect
fi-0111the Engineer and sllall proceed with the same with due cxnedition :,nil
~ A.--
~~~ ..-..
~
without delay, except as may be expressly sanctioned or ordered by the Engineer,
or- be wvholly beyond the Contractor's control.
1. There are 1111-eedifferent definitions of the pel-iod within which the
Contractor shall commence work after receipt by him of an order in
writing fro111 the Engineer in the various civil engineering conditiolls of
contract. They are:
(a) In the case of the ICE Conditions 4th Edition, 'within 14 days
after receipt by him of an order in writing to this eKect fi-om the
Engineer';
(b) I n the case of the I C E Conditions 5th Edition, 'as soon as is
reasonably possible after the date for commencement of the works
to be notified by the Engineer in writing';
(c) In the case of the International Conditions, 'within the period
named in the Appendix to the tender after the receipl by him of a
written order to this effect from the Engineer'.
2. The International Conditions, as will be seen, are based on a specilic
period being stated in the tender. In this way it will be possible for the
Contractor to define the period available for mobilisation subsequent to
the order to start work. Obviously, ill the overseas environment, it is
essential that he shoulcl know this at the time of tendel-.
3. The order to commence work should be given in writing by the
Engineer and should be specific in its terlns and take etfect on its receipt
by the Contractor.
4. Unlike the ICE Conditions 5th Edition, there is no proviso that the
order- to commence work shall be given within a reasonable time after the
date of the acceptance of the tender. If the order is unduly long delayed
after acceptance of the tender, the Contractor may, with some
justification, feel himself entitled t o clailu in the light of changed market
conditions that might exist when work is started. This could, however,
only be lodged under an implied condition that the order to commence
142 Clmpter 15
should not be u~lreasonablydelayed after the date of acceptance. T h e
definitio~lof a reasonable period could only be adjudged o n the evidence
of the individoal contract.
5. If the Contractor delays con~mencementor does not proceed with
due diligence and the Engineer is of the opinion that such delay o r lack of
progress is u~lreasonable a n d unwarranted, then he should give
consideration to the provisions of Clause 46, or nlore seriously, those of
Clause 63 (forfeiture). '
Clause 42(1)-Possession of Site
Save insofar as the Contract may prescribe the extent of portions of the Site of
which the Contractor is to be given possession from time to time alld the order in
which such portions shall be made available to him and, subject to any
requirement in the Contract as to the order in which the work shall be executed,
the E~nployerwill, with the Engineer's written order to commence the Works,
give to the Contractor possession of so much of the Site as may be required to
enable the Contractor to commence and proceed with the execution of the Works
in accordance with the programllle reierred to in Clause 14 hereof, if any, and
otherwise in accordance with such reasonable proposals of the Contractor 21s he
shall by notice in writing to the Engineer make and will from time to time as the
Works proceed give to the Contractor possession of such flirther portions of the
Site as may be required to enable the Contractor to proceed with the execution of
the Works with due despatch in accordance with the said progrannne or
proposals, as the case may be. If the Contractor suffersdelay or incurs cost from
failure on the part of the Employer to give possession in accordance with the
terms of this Clause, the Engineer shall grant an extellsion of time for the
completion of the works and certify such sun1 as, in his opinion shall be fair to
cover the cost incurred, which sum shall be paid by the Employer.
Co~iom?errr
1. This clause is virtually the same as that contained in the I C E
Conditions of Contract, 4th Edition and is a reiteration of the basic
conunon law principle which states that if a contractor is to carry out his
work, he must be given possessio~lof enough of the site for him to d o so.
2. Unless the Contract has in some way prescribed the extent of
portions of the site that will be ~m~ade
available to the Contractor from
time to time, giving the order in which, and the time at which, such
portions will be made available, the Employer shall make available so
much of the site as will enable the Contractor l o conlmence and proceed
either in accordance with:
(a) the Clause 14 programme, if any, or
(b) such reasonable proposals of the Contractor as he shall make by
notice in writing to the Engineer.
Tlie Corlrrcrcr Period 143
3. It will be seen that it is essential for the Contractor to be able to
establish, by being able to prove the tinling 1 ) r o p o ~ a against
l~ which he
intended to carry out the work, that he has actually been delayed by the
non-availability of the site or part of the site. Without such evidence, it
may very well be hard to establish the case for ~ . e c o ~ ~ ~ p e n s e .
4. Even, therefore, if it is not the Contractor's intention to submit a
Clause 14 programme, he should indicate his written proposals in general
terms in order that there lnay be written evidence of his site requirements.
5. It will be observed that the Contractor's right t o claim both
addilional expense and time arises within this particular Clause and
without reference to Clause 44 o r 52(5), and that in consequence there is
no specific recluiren~entfor the Contractor to llave given written notice.
C o m ~ n o nsense dictates, however, that such notice should still be served.
Clause 42(2)-Wayleaves, etc.
The Contractor shall bear all costs and charges for special or tenlporary
wayleaves required by him in connectioll with access to the Site. The Contractor
shall also provide at his own cost any additional acco~nmodationoutside the Site
required by him for the purposes of the Works.
,
Although this sub-clause would appear self-explanatory, the following
points should he borne in mind:
(a) Where the Contractor's obligations under this clause are increased
by variations, then be nlay be entitled t o clainl re-imbursement for
the additional expense or charges directly attributable thereto
under Clause 52.
(b) Similarly, the necessity for OK-site acconnnodation might result
from a variation and the cost thereof would also be recoverable.
(c) O n the wording of Clause 26, the Contractor may be entitled to
repayment of rates and taxes in respect of temporary structures
situated other than o n the site but used exclusively for the purpose
of the works.
Clause 43--Time for Conlpletion
Subject to any requirement in the Contract as lo completion of any section of the
Works befol-e completion o i the whole, the whole of the Works shall be
completed, in accol-dancewith the provisions of Clause 48 hereof, within the time
stated in the Contract calct~latedfrom the last day of the period named in the
Appendix to the Tender as that within which the Works are to bc commenced, or
such extended time as may be allowed under Clause 44 hereof
144 Chc~pter1.5 The Contrnct Periocl 145
c011?111~111 S T A N D A R D LETTERS A N D F O R M S
1. T h e significance of this clause is that it clearly establishes the date
fro111 which all time-related provisions of the contract will be calculated. Reference: FIDIC/32
2. T h e crucial date for com~nencementof the works is to be calculated
To: T h e E~igineer
fro111 the last day of the period named in the Appendix t o the Tender as
that within which the works are t o be commenced, or, of course, any time Dear Sir
granted in extenschn thereof under Clause 44. In this respect tlie contract
Notice o f De/nj, n i ~ dAdclilior~rilCosfs Dlie f o rlre Slis/~errsior~
of. Work
periocl is differently specified from both the ICE Conditio~is,4th and 5th
Editions, under which the period is calculated from the date of the
We refer to the suspension order on the contract workslthat part of the
Engineer's order to conllnence work.
contract works being ........................ dated .................. and serve
3. Paragraph 2 of the forin of tender colitains the followi~ig
notice of extra cost in giving effect to the order pursuant to Clause 40(1)
~rndertaking:
of the Conditions, such suspension to our knowledge not having been
'2. We undertake if our Tender is accepted to colnrnence the Works within provided for in the contract nor being attributable to weather conditions,
............... days of receipt of the Engineer's order to commence, and to complete any default 011 our part nor essential for the proper execotion o r safety of
and deliver the whole of tlie Works comprised in the Contract within ............... the works.
days calculated from tlie last day of tlie aforesaid period in which the Works are
to be con~menced.'
We will be maintaining such conteinporary records as we believe
If, then, in a typical tender the first blank in the tender clause had been necessary, o r lilay he required by you, to substantiate our additional costs
completed by the insertion of 28 days, tlie period for co~iipletionof works and support 0111 request for an extension of tinle pursuant to Clause 44.
would be calculated t o c o ~ ~ ~ r n e 28
n c edays after receipt of the Engineer's
order to commence. Again it should be noted that the period is calculated T h e additional payment to which we consider ourselves entitled will be
in this case Trom 28 days after receipr of the Engineer's order to registered in our montlily pay~iieiltapplication together with as full and
commence and not tlecessarily f1-om the date of the Engineer's order detailed particulars as can reasoilably be provided in view of prevailing
itself. circumstances and tinie of application as required pursuant to Clause
4. When sabo~ittinghis Clause 14 programnle, the Contractor may, 52(5) of the Conditions.
therefore, take account of the period specified (in the case afoul- example
28 days) and have this available t o him for m o b i l i s a t i o ~prior
~ t o the poilit Yours faithfully
at which he for~nallyregisters his programme as starting.

Reference: FIDICJ33
To: The Engineer

We refer to the suspension order on the contract works/tbat part 01. tile
contract works being ........................ dated ............... and noting 90
146 Clir~pterIS Tlre Conrmct Period 147

days to have elapsed from the date of order, serve written notice pursuant with our reasonable proposal submitted in writing the site ought properly
t o Clause 40(2) of the Conditions requiring permission within 28 days t o to have been available to us/the section of the site defined as
proceed with the suspended works. ..................... ought properly to have been available t o us/[but that] we
were unable to be give11 access.
Yours faithf~~lly
1' It will be apparent that this non-availability of the sitela site arealsite
areas is now delaying/will inevitably delay our works and we therefore
Contractor Limited give notice of delay and additional cost pursuant t o Clause 42(1) of the
Conditions.

We will be nlai~ltai~lingsuch contelnporary records as we believe

Reference: FIDlC/34 necessary, or may be required by you, to substantiate our additionill costs
To: The Engineer and support our I-equest for an extension of time pursuant to Clause 44.

Dear Sir
W o r k as Oiiiitte(fioi~i the Coi~rrnci
Notice to Treur S~irj~ericletl
We refer to our letter dated ............... requesting permission to proceed
with the contract works/part of the contract works being ..................
............... and noting 28 days lo have elapsed since our reqllest foi-
permission to proceed, now give nolice pursua~ltt o Clause 40(2) electing
to treat the suspetlsion as a n abando~inlentof the works/an onlission of
the suspended part of the works under Clause 5 1.
The additional payment to which we consider 0111-selves entitled will be
registered in our monthly paynleilt application together with as CLIII and
detailed particulars as can reasonably be provided in view of prevailing
circumstances and time of application as required pursuant to Clause
52(5) of the Conditions.
Yours faithfully
Contractor Linlited

Yours faithfully
Reference: FIDIC/E/53
Contractor Li~nited To: The Contractor

Dear Sir

Reference: FIDIC/35
To: The Engineer
We hereby instruct you to suspend the progress of the wol-ks/that part of
Dear Sir the works being ........................... porsuant to Clause 40(1) of the
Conditions.
Notice qf Delcn, nrirl Arlrlirioiinl Cost Arish~g/ i o ~ i iNoir-A ~~ailctbiliry
of tlie
Site/Porr of /lie Sire [As such suspension arises fro111 a cause previously detailed in (he
Contract and thereby deemed to be priced by you at time of
You will be aware that on the date for c o m ~ ~ ~ e n c e m oe nr tthe works tender/ottributable to weather condilions/atl~-ibt~table to your default in
notified by the Enginerr pursuant to Clause 4l/whe11 in compliallce with that .............................. [necessary for the proper execution of the
our subnlitted programme pursuant Lo Clause 14/when in c o ~ ~ l p l i a ~ l c e Work/necessary for the safety of the Work and such llecessity does not
arise from any act o r default of the Engi~ieero r the Employer or from Reference: FIDlC/E/55
any of the excepted risks defined in Clause 20 in that ...................... ..I, To: The Contractor
this is not a ~ ~ ~ a tgiving
t e r entitlement to fi~iallcialcompensatioti [nor to
extension of time] since the suspension is provided for in the Dear Sir
contract/arises from your default.]
Nor(ficfirioil of rl7e Dole for Coi11117e11ceineilr
of tlze M'orlis
During the period of suspension you are required properly to protect and
We liereby give notice that you shall coni~nencethe Works 011 site within
secure tlie work [and in particular you are t o ........................1.
............... days of the date/receipt of this letter [namely ..................]
pursuant t o Clause 41 of the Conclitions.
[It is acknowledged that such suspension provides ground [both] for
financial compensation/[and] extension of time and you are stroiigly
Y o i ~ r sfaithfully
advised to co~ilplywith the various provisions of the Contract in regard
thereto.]
Consultants Partnership
Yours iaitlifi~lly

Consultants Partnership Reference: FIDIC/E/56

To: T h e Col~tractor

Dear Sir
Sirbi~~issiotirl~rir rlre l~Vorli.s/Prrriof [lie
.~lcR~io~~~ler~e~i~e~~r/ReOi~r~r~//of
Work.r/Hc~~~e
Been Deloyerl Tl~rortgliNoir-A~~riilribilir.~~
qfltlie sirclPrtrr of
Reference: FIDIC/E/54 rhe Site
To: T h e Co~itractol
We refel- to your letter dated ........................ reference ...............
Dear Sir giving notice that you consider the sitelpart of the site consisting o r
....................... not t o have been made available to yo11 pursuant to
Clause 42(1) of the Conditions.

[We d o not accept the validity of your notice, since tlie contract
We refer to our notification of suspension of work dated ..................... prescribed the extent of portions of the site o i which you were to be given
reference ........................... and now confirm its lifting as from possessioli froill time to time and such arrangen~entsare being lionourecl
..................... I X I L - S L I ~ Jto
I ~ Clatlse 40(2) o r the Conditions. by the Employer/the part of the site concerned is not presently required
to enable the works t o be executed in the order laid down in the
contract/non-possessio~i of the part of the site concerned is not
Yours faithfillly preventing you constructing the works in accordance with tlie approved
Clause 14 programmeljoint occupation by two 01- more technology
contl-actors was clei~rlyforeseeable by a n experienced contractor and an
C o n s ~ ~ l t a nPartnership
ts expectation of sole possession by you is clearly unreasonable/[and] your
actual progress is not such as would make the possession of that part of
the site yet necessary.]
-- - ~

[We acknowledge that possession of the sitelthat part of the site is CHAPTER 16
necessary and that in c o n s e q u e ~ ~ cofe its non-availability you are being
caused delay/likely to be caused delay.] Extensions of Time and Progress
[We note that any such delay is [not] critical to the t i ~ ~ ~construction
ely of
the overall works/liable to delay section ............... of the works.]

Y o t ~ r sf a i t h f ~ ~ l l y
Clause 4.tExtensioe of Time
Should the amount of extra or additional work orany kind or any cause ordelay
Consultants Partnership referred to in the Conditions, or excepiional adverse climatic conditions, or other
special cii-curnstances of any kind whatsoever which may occur, other than
through a default of the Cont~.actor,be such as fi~irlyto entitle thc Contractor to
an extension of time for the co~apletion of the Works, the Engineer shall
deterlnine the amount of soch extension, and shall notify the Employer and the
Contractor accordingly. Provided that the Engineer is not bound to take into
account any extra or additional work or other special circumslances ~mlessthe
Contractor has within 28 davs after such work has been commenced. or such

which he ma; consider himself entitled i t 1 order that such submission mav be
investigated at the time.

1. T h e wording of this clause is similar in effect to that contained in the

I C E Conditions, 5th Edition, Clause 44(1) except that notice is required
to be submitted to the 'Engineer's Representative' rather than the
Engineer. Further there is the important requirement that the Engineer
shall notify theE11ijd0,ver arirl Coi?rrartor accordingly.
2. There is, in the International Conditions, no provision Tor interim
extellsions of time as is the current case in the U.K.
3. It will be observed that there is no direct correlation in the clause
between time and money. Any Contractor will readily appreciate,
however, that an extension to the period of contract work will invariably
give I-iseto additional cost.
4. As the contract lacks any direct correlation between time and
money, the issue should be judged on the common law basis, which is
that in cases where there is no demonstrable fault by either party and a n
extension of time is required, the damage is borne as it falls, with the
Employer carrying the burden of loss associated with the non-availability
of the works, and the Contractor bearing the cost of working for the
extended period; where, however, the extension arises from some fault of
the Employer o r the Engineer, not only will the Contractor be exonerated
from liquidated damages for the period of extension, but he nay also
obtain recompense for his time-related costs.
152 Clznpter 16
5. The Contractor when applying for extensions of tiine will, therefore,
be pursuing a two-fold purpose, first, to establish ground for fi~lancial
recovery related t o the period of extension together with possible
disruption costs, and second, to afford the Co~ltractorprotection fro111
liquidated damages during tlie period of extension under whatever
groutld the extension be granted.
6. Close regard.should be had t o the require~nentthat tlie Contractor
serve notice of his r e q u i r e ~ n e for
~ ~ ta n e x t e t i s i o ~of~ time within 28 clays of
the cause that gave rise t o the need for the extetisioti.
Although there is a safety outlet in the clause in the form of the words
'or as so011 thereafter as is practicable', this should not be i-elied on and
for all practical administrative purposes the service of the relevant notice
within 28 days should always be regarded as a c o l ~ d i t i o precedent ~l t o the
establishment of ground for extension.
7. T h e various grounds for extension that coold be pursued either
specifically under the contract Condilions o r by way of an implied term
are as follows:
(a) Extra o r additional work specifically mentioned under Clause 44,
where such work has arisen as the result of a variatio~iorder under
Clause 5 l(l)(a).
(b) Change in the character or quality or kind of any such work,
arising as a result of a variatiotl order issued under Clause 51(l)(c)
that coold be held l o be a special circumstance pursuant to Clause
44.
(c) Climatic or l~ydrologicalcos~ditionsof a niore severe llalure than
could reasonably have bee11i~ilplieclfrom the i l i f o r ~ n a t i ogive11
~ ~ by
the Employer pursuant to Clause 11. Under nor~ilalcircun~stances
it is doubtful whether money coi~ldbe obtained on such a ground.
(d) Delay arising fi-om failure o r inability of the Engineer to issue at a
reasonable time the necessary drawings and instructions requested
by the Co~ltractorpursuant l o Clause 6(3), giving rise t o a right t o
recovery under Clause 6(4) and t o extra time under Clause 44.
(e) Delay arising from the encountering of physical or artificial
conditions that could not reaso~lablyhave been foreseen by a n
experienced Contractor pursuant to Clause 12, being a special
c o n d i t i o ~p~~ ~ r s u a to
n t Clause 44.
(f) Delay resolting from clarification of ambiguities in the various
contract d o c u ~ i l e ~ l tpursuant
s to Clause 5(2), being a special
circumsta~lcepursuant to Clause 44.
(g) Delay as a result of a n Engineer's instruction in regard to Inalters
which a Contractor could not reasonably have foreseen at the time
of tender, being a special circumstance pursuant to Clause 44.
Estensior1s of Time nr~rlProgress 153
(h) Delay as a result o f tlie putting forward o r melhods of
construction, to nieet the requirements of the Engineer, dissiriiilar
to those that could reasonably have been foresee11 by a n
experienced Contractor at tlie time of tender, being a special
circumstance pursuant to Clause 44.
(i) Delay arising fi-on1 the provisio~l of facilities for indeperldent
contractors pursuant to Clause 31, being a special circumstance
pursuant to Clause 14.
(j) Delay arising fi-om suspensio~ioS work pursuant to Clause 40(1).
(k) Delay arising from the non-availability of the site or part of tlie
site pursuant to Clause 42(1).
(1) Delay arising fi-om a special circumstance of any kind whatsoever,
which niay be such as fairly to entitle the Contractor t o an
exte~lsio~iof Lillie under Clause 44.
An exte~isiotlgranted specifically under this heading and not
arising from ally other source in the contract o r from breach of an
iniplied term, is uot likely to carry with it any right to financial
recompense, as it will probably have arisen as a result of:
(1) Act of God,
(2) Force majeure,
(3) Strike,
(4) Lockout o r civil commotion,
(5) Contractor's inability for reasons beyolid his control and
which he could not reasonably have foreseen at the date of
tender to secure such labour and niaterials as are essential for
the proper carrying out of the works.
Clause 45-No Night or Sunday Work
Subject to any provision to the contrary contained in the Contract, none of the
Permanent Works sliall, save as hereina1ic~-provided, be carried on during t h e
night or on Sundays, if locally recognised as days of rest, or their locally
recognised equivalent without the permission in writing of the Engineer's
Representative, except when the work is unavoidably or absolutely necessary for
the saving of life or property or for tlie safety of the WOE-ks, in which case the
Contractor shall ilnn~ediately advise the Enginee~.'~ Represcntatirze. Provided
always that the provisions of this Clause shall not be applicable in the case of a n y
work which it is customary lo carry out by rotary or double shifts.
T h e terms of this clause are virtually the s;lme as that contained i n the
ICE Conditions, 4th Edition, except that locally recognised days oS rest
are introduced into tlie claose and permission is sought from 'tlie
Engineer's Representative' rather than the Engineer.
 Extensions of Time orzd Progress 155
Clause 4 6 R a t e of Progress In practice the taking of such a step with a Contractor generally
recognised to be competent would be extremely ill-advised, as the
If for any reason, which does not entitle the Contractor to iln extension of time,
the rate of progress of the Works or any section is at any time, in the opinion of repercussions o n the Employer in eventually receiving his completed
the Engineer, too slow to ensure completion by tlie prescribed time or extended works might well be less favourable than allowing a n unsatisfactory
tirne for completion, the Engineer shall so notify the Contractor in writing and situation to continue t o conclusion.
the Contractor shall thereupon take such steps as are necessary and the Engineer
tnay approve to expedite progress so as to complete the Works or such section by
the prescribed time or extended time. The Contractor shall not be entitled to any
additional paynlent for taking such steps. If, as a result of any notice given by the
Engineer under this Clause, the Contractor shall seek the Engineer's pernlission
to do any work at night or on Sunditys, if locally recognised as days of rest, or
their locally recognised equivalent, such pernlission shall not be unreasonably
refused.

1. Any notice served by the Engineer under Clause 46 against the

Contractot- must be in writing. Before such a notice is issued, the
E~lgineershould carefully consider whether in fact in the light of the
applications made to him by the Contractor he ought, in accordance with
the terms of the contract, t o have granted an extension of time, and that
had he so done an acceleration lot ice would not be necessary.
2. O n receipt of the notice, the Conrractor should submit t o the
Engineer his proposals for expediting the works. T h e Contractor, at this
point, particularly if the Engineer has not given a n extension of time,
should consider whether the rate of progress has been or is being aEected
by any matters for which he could claim an extel~sionof time and, if he
believes such to be the case, he should make application forthwith, even
though he might not previously have done so.
3. T h e Contractor should not adopt measures for expedition unless
such measures have been approved by the Engineer. T h e Engineer should
advise the Contmctor of his approval o r otherwise without delay.
4. If nigllt working is proposed by the Contraclor but is not permitted
by the Engineer, and there is no equivalent practical measure of
expedition, then the Engineer must grant a n extension of time for a
period corresponding to the delay which is solely attributable t o the
denial of night working. It is, of course, for the Contraclor t o
denlonstrate the absence of a pracuical equivalent to night working.
This type of extension would not be one that would cal-ry with it time-
related financial recompense, since the need for expedition will have
arisen ft-0111 sonle previous failure o n tlie part of the Contractor.
5. If the C o l ~ t r a c t o ~
I-efuses
. or fails to expedite the works, then the
Engineer should consider whether or not it would be appropriate to
reconlnlend the i~llplementation of the forfeiture precedure provided
under Clause 63 and to certify accordingly.

CC-K
 Exleiisions of Time cr11rlProgress 157

STANDARD LETTERS AND FORMS Reasoil Time in

Weelcs
Reference: FIDIC136 [(*) The putting forward of
To: The Engineer methods of construction
for the Engineer's approval,
Dear Sir the nature and conlplexity
of which could not
Applicrrliorr for Exterisiori'of Time reasonably have been foreseen
by an experienced contractor
We herewith make application for extension of time pursuant to Clause at the time of lendel-]
44 of the Conditions, having previously given notice of our intention to [(") Limitations imposed on the
clainl for delay by cover of our Ietterlletters dated . .... . ... ........ . and now methods of construction to
noting the consequence of such delayldelays to be reasonably apparent. co~nplywith design
criteria supplied by the
The circumstances giving rise to delay/most recent circulnstances giving Engineer and not nlade
rise to delay are ...... ...... .... . .... ........ ... . ... ........ .... .. available at time of tender]
[(*) Correction of setting out
This delay/[and] delays previously notified arise[s] on the ground of: of the works due to errors
attributable to wrong setting
Clause Rerrsor~ Tirile iir out information provided by
Weeks the Engineer]
5(2), 13 [(*) Clarification of a~llbiguity] [(*) The making of boreholes or
6(4) [(*) Late receipt of setting-out
carrying out of exploratory
information] excavation not provided for
[(*) Late receipt or drawings] under the contract]
[(*) Late receipt of details] [(*) Making good damage, loss or
[(*) Late receipt of bending injury attributable to an
schedules] excepted risk]
[(*) Late nomination of a [(*) Carrying out varied work to
nominated sub-contractor] obtain compliance with a
[(*) Encountering physical or statute, ordinance, law
artificial obstructions regulation or byelaw]
which could not reasonably [(*) Delay by an independellt
have been foreseen by an contractor or duly
experienced contractor at coustituted authority]
time of tender] " [(*) Provision of facilities for
[(*) Con~pliancewith an Engineer's independent contractor or
instruction causing delay that duly constituted authority]
could not reasonably have been [(*) Suspension of woi-k or part
foreseen by an experienced of the work]
contractor at time of tender] [( ) Suspension of work or part
Late consent to the proposed of the work arising under
[(")
methods of construction] subsection (b) of noted clause]
 C l q f e r 16 Exrensio~zsof Tirile arirl Progress 159
Reusoil Titlie iii Reference: FIDIC/37
Weeks To: T h e Engineer
[(*) Non-availability of the
site o r part of the site] Dear Sir
[(*) Increase in quantities under
Clause 5 1(2)]
............. .Sllifts
Reqrrestfor Per~iiissiolito Work Nig/zt/Srn~r/ay/.
[(*) ' Variation under Clause 51(1)]
We hereby request, in the interest of the tiu~elyexecution of the works,/in
[( ) ~ x c e ~ i i o n aadverse
ll~ climatic
conditions] view of the ilotiiicatioil received by us to expedite the works in
Strike or lock-out not caused accordance with Clause 46, permission t o work night/Sunday/
[( )
directly by the u n r e a s o ~ ~ a b l e
............... shifts pursuant t o Clause 45 of the Conditions.
action of the Contractor, being
Yours faithfully
a special circu~nstance]
(") Non-availability of
Employer-supplied free
Contractor Limitecl
issue materials being
a special circumstance]
[( ) A special circumstance
it1 the form of

Reference: FIDIC/38
Total/Cumulative total of weeks applied for To: T h e Engineer

We deeln all these weeks/ ............... of these weeks to rate for additional
payinent pursuant t o Clause 52(5) of the Conditions, the appropriate
notice/notices having been previously given.
Yours raithfully
Contractol- Limited
NB. All grounds for extension marked with an asterisk will probably carry
grounds for financial re-imbursement. In some cases where grounds fol- extension
have not been marked with an asterisk but where delay is caused under that
heading as a direct consequence of an earlier delay under an asterisked heading,
money may still be re-imbursable (for exan~ple,delay in the issue of an instruction
nlight result ill the works falling into the rainy season or into n pmiod of
exceptionally adverse clinlatic conditions which would not have been encountered
had the earlier delay not taken place).
Dear Sil
We refer to your expedition notice issued pursuant to Clause 46 of the
C o n d i t i o ~ ~dated
s ..................... and submit o u r proposals to ensure
completion by the prescribed time/question the validity of your notice in
view of o u r previous requests for extensions of time under the Contract
that have not so far bein granted/dealt with/noting that you have been
unable Lo sanclion our proposals for night/Sunday/ .................. shifts,
and, there being no feasible alternative means of expedition, now request
an extension of time of ..................... to cover the time that would
otherwise have bee11 made u p by the additional shifts.
Yours faithfully
Contraclor Limited
 Extensiorls of Tirile mzd Progress
Reference: FIDIC/E/57
To: The Contractor
not reasonably have been
Dear Sir foreseen by an experienced
contractor a t time of tender]
A.rsessrilent of Exterision of Time for rile Worksla Secrioii of the Works Late consent to the proposed
[(*)
During tlie Contruct Periorijnt the Dzie Dcrre or the Extencled Dare for methods of construction]
Coii?plerion [(*) The putting forward of
methods of construction for
We refer to your application/applications dated .............................. ihe Engineer's approval, the
reference ..................... made for extension of time to the works/that nature and complexity of which
section of the works being ..................... to which you cousider you could not reasonably have
are entitled pursuant t o Clause 44 of the Conditions. been foreseen by an
experienced contractor at the
We have carefully investigated such clain~/claimsaud consider that you time of tender]
are entitled to a total/cumulative extellsion to date in respect of the [(*) Limitations imposed on the
Works/the noted section of the Works amounting to ............... weeks. methods of construction to
comply with design criteria
The said total/cumulative extension is awarded pursuant to the supplied by the Engineer and
undernoted stipulated clause or clauses of the Conditions on the ground uot made available at time
of: of tender]
[(*) Correction of setting-out
Reason Tiii~e of the works due to errors
in Weeks attributable to wrong
Clarification of setting-out information
ambiguity] provided by the Engineer]
Late receipt of setting- The making of boreboles or
out i~lformation] [(*)
carrying out of exploratory
Late receipt of drawings] excavation not provided for
Late receipt of details] under the contract]
Late receipt of bending Making good damage, loss or
scl~edules] [(*)
injury attributable to an
Late nomination of a excepted risk]
~lominatedsub-contractor] Carrying out varied work to
Encountering physical or [(*)
obtain compliance with a
artificial obstructions statute, ordinance, law,
wl~ichcould not reasonably regulation or byelaw]
have been foreseen by an [(*) Delay by an independent
experienced contractor at contractor or duly
time of tender] constituted autl~ority]
Compliance with an [(*) Provision of facilities for
Engineer's instruction independent contractor or
causing delay that could duly constituted authority]
 Ester1sio17sofTil71e and Progress 163

Tinre instruction might result in the works falling inlo the rainy season or into a period
in Weeks of exceptionally adverse climatic co~iditions which would not have been
encountered had tlie earlier delay not taken place).
[(*) Suspension of work or part
of the work]
[( ) Suspension of work o r
,, part of the work arising
Reference: FIDIC/E/58
under.-subsection (b) of To: The Contractor
noted clause]
[(*) Non-availability of the Dear Sir
site o r part of the site]
[(*) Increase in quantities Norr3ccrtion that the Contrnrtor is 110t Eiltitlecl to [Fzrrtl~er]E.x~errsior~
of
under Clause 51(2)] Tirile Durir7g tile Contrcrct Perioc//frr tl7e Due Drrre or Exterlrled Dore of
[(7Variation under Clause Conr/~letion
51(111
We have carefully investigated your application/applicatio~~s for exten-
[( ) Exceptional adverse
climatic conditions] sion of time for all tlie circunlstances affecting the works/that section of
the works being ..................
[( ) Strike o r lock-out not
caused directly by the
unreasonable action of We now confirm that we are able to grant a t this timetat this, tlie due date
for completion [as previously extended] no [further] extension of time.
the contractor, being a
special circumstance]
Any delay [beyond any period previously granted] is considered solely
[(*) Non-availability of Employer-
due to circun~stanceso r default for which you as Contractor are solely
supplied free-issue
responsible under the terms of the contract.
materials being a special
circumstance]
This notice is given pursuant to Clause 44 of the Conditions.
[( ) A special circumstance
in the form of
Yours faithfully
.....................1
Total/Cumulative total of weeks granted

Yours faithfully Reference: FIDIC/E/59

To: The Colltractor
Consulta~ltsPartnership Dear Sir
NB. All grotinds for extension marked with an asterisk will probably carry [Refirsal of] Perr~rissio~~ ................... Workirr~
for Niylrl/[or] S~irrrlc~.v/..
grounds for financiill re-imbursement. In some cases where grounds for extension
have not been marked with an asterisk but where delays caused under that
heading arise as a direct consequence of an earlier delay under an asterisked We refer to your request for s a ~ i c t i o it~o be given for niglit/[or]
heading, money may still be re-imbursable (ror example, delay in the issue of an Su~lday/.................. working and confirm the giving of the necessary
per~nission/thatsuch permission cannot be given pursuant to Clause 45 C H A P T E R 17
of the Conditions.

Yours faithfully
Liquidated Damages and Completion

Consultants Partnership

Clause 47-Liquidated Damages for Delay and Bonus for Early

Reference: FIDIC/E/60
To: T h e Contractor
Dear Sir
Noiijicnriolr of lnsuficie~zrRnre o f Progress
We observe that your present rate of progress of the works/that section of
the worlcs being ............... is not in accord with the current approved
Clause 14 programme and that as a consequence you a r e unlikely to/will
not achieve completion by the prescribed time [as previously extended].
Since there is no ground entitling you t o a n extension of time to cover the
likely late con~pletion,you are required to indicate, for o u r approval, the
means by which you propose to expedite progress.
This notice is given pursuant t o Clause 46 of the Conditions
Completion
(1) If the Contractor sl~allfail to complete the Works witllin the time
prescribed by Clause 43 hereof, then the Contractor shall pay to the Employer the
s u ~ nstated in the Contract as liquidated damages for such default and not as a
penalty for every day or part of a day which shall elapse between the time
prescribed by Clause 43 hereof and the date of certified co~npletionof the Works.
The Employer may, without prejudice to any other method of recovery, deduct
the amount of such damages from any monies in his hands, due or which may
become due to the Contractor. The payment or deduction of such damages shall
not relieve the Contractor from his obligations to complete the Works, or from
any other of his obligations and liabilities under the Contract.
(2) If, before the completion of the whole of the Works any part or section of
the Works has been certified by the Engineer as completed, pursuant to Clause 48
hereof, and occupied or used by the En~ployer,the liquidated damages for delay
shall, for any ~ e r i o dof delav after such certificate and in the absence of anv
(3) If ir is deslesirerl ro provide irr [Ire Contract for flse prtjnnenr of u bo,ars in
relurio~rto cofnpletio,~of Nie Worlis or n,fj'parr or .~errior?tl~ereofrlris slzoll be ser
out rn Purl N in rlle clnnse rno,tbe,rrl47.

Yours faithfully
1. The words 'liquidated damages' used in a contract indicate a pre-
estimate of the damage that will be incurred if a certain event takes place.
Consultants Partnership i.e. in the case of a construction contract, failure to complete the works
by a stipulated date.
O n occasion in contracts the form of words may be expanded sliglltly
t o iuclude the word 'ascertain' in the forln 'liquidated a n d ascertained
damages'. Although the additional word conveys a greater clarity of
meaning in layman's terms, it has n o greater significance than mere
clarification.
2. T h e contract requires a sum per day to have been inserted in the
Appendix to the Form of Tender prior to tender. This figure when
multiplied by the number of days of delay in completion, will provide the
agreed amount of liquidated damages. (For example, f I00 per day x 50
days' period of agreed delay =£5,000 liquidated damages.)
166 Cliapler 1 7
3. I t will be observed that, unlike the I C E Conditions, 5th Edition,
there is no built-in standard provision for a 'limit' to the amount of
liquidated damages that can be levied. This point sllould be considered
for qualification at tender stage if it is felt that there could be serious
commercial risk of substantial over-run. Despite the actual wording of
the clause, however, the Appendix t o tlie Form of Tender does contain
provision for a limit t o be inserted, aiid if used, should be amplified with
a particular Part I1 clause.
4. I t will also be observed tliat there are not the sophisticated
arrangen~entsof the I C E Conditions, 5th Edition for sectional com-
pletion ancl that this is covered under sub-clause (2) in a similar simple
form t o that contained in the I C E Conditions, 4th Edition.
5. It is for the Employer aiid not the Engineer to i ~ n p l e n ~ e nthese
t issue a Certificate of Completion in respect of the Works. The Engineer shall,
provisions. T h e Employer will be aware of the date for conlpletion stated
in the contract and of the certificates of co~npletionissned by the
Engineer. H e should, of course, also be notified by the Engineer of any
extension of time which may have been made o r be tulder consideration.
6. It is to be noted that the ainouiit of liquidated damages will be
reduced proportionally where a section of the works has been handed
over prior to completion of the whole of the works. I11 these
circun~stances, the Engineer sliould provide particulars necessary for
calculating the reduction of liquidated damages for the part o r parts of
the works tliat have been certified as having been completed, before the
co~npletionof the whole of the works and occupied or used by the
Employer.
7. The incorporation of a bonus provision for early co~npletionunder
the conditions of Particular Application can pose considerable con-
tractual difficulty. If a bonus is t o be earned, the works, or part of the
works, niust be conipleted earlier than tlie date ascertained from tlie
period for completioii stated in the contract. Should the Contractor
intend to earn the stated bonus, lie will obviously have t o resource the
contract t o achieve that objective. Equally, it will be necessary for the
Engineer and the Employer to ensure that they are in a position t o fulfil
their obligations under the Contract in such a way tliat the Contractor
will not be denied the opportunity to earn the bonus that he has
resourced to achieve.
With the bonus clause operating, the Contractor should regard the
shortened period of work execution tliat lie has resouced to achieve as
being the revised completion period. Sliould he be delayed by the
Engineer o r the Employer, lie will then require extensions of time related
to the shorter period rather t l ~ a i the
i period of time stated in the contract
for contract completion. In this way the denial of the opportunity to earn
the stipulated bonus, together with his additional resources in over-run,
Liq~riclaterlDnnlages and Co~npletio~i 167
will be a component of claim Lo be registered under Clause 52(5).
Since this type of situation niay prove highly contentioiis, it behoves
the Contractor to treat a Contract with a bonus clause in it with some
circumspection.
Clause &(I)-Certificate of Conlpletion of Works
When the whole of the Works have been substantially completed and have
satisfactorily passed any final test that nlap be prescribed by the Contract, the
Contractor may give a notice to that effect to the Engineer or to the Engineer's
Representative accompanied by an undertaking to finish any outstanding work
during the Period of Maintenance. Such notice and undertaking shall he in
writing and shall he deemed to be a request by the Contractor for the Engineer to
within 21 days of the date of delivery of such notice either issue to the Contractor,
with a copy to the Employer, a Certificate of Completion stating the date on
which, in his opinion, the Works were substantiitlly completed in accordance with
the Contract, or give instructions in writing to the Contractor specifying all the
work which, in the Engineer's opinion, requires to be done by the Contractor
before the issue of such a Certificate. The Engineer shall also notify the
Contractor of any defects in the Works afTecting substantial conipletion that may
appear after such illstructions and before completion of the work specified
therein. The Contractor shall he entitled to receive such a certificate of
Completion within 21 days of completion to the satisractio~iof the Engineer of
the work so specified and making good any defects so notified.
1. T h e wording of this sub-clause is virtually tlie same as that
contained in the I C E Conditions, 5th Edition except that in the
penultinlate sentence a further provision is added:
'The Engineer shall also notify tlie Contractor of any defects in the works
affecting substantial completion that tnay appear after such instructions and
before completion of the works specified therein.'
The final sentence then has added to it tile words 'and making good any
defects so notified'.
The effect of this amendment to the sub-clause is that before the
Engineer is prepared to issue a completion certifici~te,lie may illso reqoire
defects to be made good that appear after he has given a n instruction as
to any further work that needs t o be carried out. This additional
requirement may dangerously prolong the periocl prior t o the receipt of
the certificate of completion.
2. T h e onus rests upon the Co~ltractorto initiate the completion
procedures. When he believes tlie works to be si~bstantiallycompleted
and t o have passed any required test, he shall give a written notice Lo the
Engineer requesting the issue of a certificate of completion.
 168 Cl~apter17

3. The form of words 'substantially completed' does not illeall completion of any ground or surfaces requiring re-instatement, unless such
completed in every respect, and were that what the contract meant, then Certificate shall expressly so state.
the contract would have said so. It is anticipated in most fornls of
construction contract that at the completion stage certain minor and
insignificant works may still need to be completed and that the 1. This sub-clause is intensely practical. On a major contract the final
completing of those works shall not be a valid reason for withholding the clearing up processes will often need to be done comprehensively over the
certificate of completion. whole site area whilst it may well be that certain sections of the work or
4. Within 21 days of the date of delivery of the Contractor's notice, the even the whole works are in all other respects nsable by tlie employer.
Engineer shall either: 2. One can imagine the application of the sub-clause to extensive
(a) issue a certificate of completion, stating the date on which in his e not or way works where final grassing and seeding of the whole area
opinion the works were substantially completed; or, might well be dependent 011awaiting the appropriate season of the year.
(b) specify to the Contractor those works which in his o p i ~ l i oneed
~ l to 3. The sub-clause carries with it a converse implied obligation that the
be carried out before the issue of such a certificate. Engineer will not unreasonably withhold a certificate of completion in
Thereafter, in the case of alternative (b), for all practical purposes the respect of a section of the works because ground re-instatement has not
procedure will commence again with the Contractor giving notice to the finally been carried out.
Engineer when he has completed the works notified, slating that in his
opinion the works are now substa~itiallycompleted.
5. Sub-sections (2) and (3) cater for those circu~nstances where
sectional co~npletionhas either been stipulated in the contract or is
allowed as a matter of practical convenience between the colitracting
parties in respect of some section that has been occupied or used by the
Employer.
6. If the Contractor has applied for a certificate of substantial
completion in respect of a section of the work that has bee11completed to
the satisfaction of the Engineer and taken into use by the Employer, then
a certificate for that section must be issued. If such a certificate is not
issued, the Employer will be placed in breach, since although the first part
of that sentence which commences with the words 'provided that the
Engineer may give' is permissive only and no criteria are laid down for its
operation, the second part is mandatory, and applies only if a 'substantial
part' of the works as a whole qualifies by virtue of the Employer entering
into occupation. It amounts to a prohibition on the Employer entering
into possession without conceding substantial co~npletionof the part so
occupied.
7. The certificate of substantial conipletion will define the moment at
which the 'period of maintenanc;' commences, and in the event of a
contract overrun for which no extension has been granted, this will be the
termi~lati~lg point for the Employer's right to levy liquidated damages.

Clause 48(4)-Re-Instatement of ground

Provided always that a certificale of completion given in respect of any sectioll or
part of the works before complelion of the whole shall not be deemed to certify
 Liquidated Danlages nrld Corrlpletiorr 171

STANDARD LETTERS AND FORMS Reference: FIDIC/E/62

To: The Contractor
Reference: FIDlC/39
To: The Engineer Dear Sir

Dear Sir
We refer to your letter reference ............... dated ........................
ilidicati~lg that you consider the whole of the works to have bee11
We herewith apply for a certificate of colnpletion of works, believing the subsla~ltially completed [and to have passed such final tests as are
wliole of the works to have been substanlially completed pursuant to prescribed in the contract].
Clause 48(1) of the Conditions, and undertake to finish any outstanding
work during the period of maintenance. [We note your undertaking to finish ally ~ n i t ~ outstanding
or work during
the period of maintenance.]
Yours faithfully
We agree the wliole of the works to be substantinlly complete and liereby
issue our certificate of co~npletio~l stating the date of completioll as being
Contractor Limited ........................ pursoant to Clause 48(1) of the Conditions.

Yours faithfully

Reference: FlDIC/E/61
To: The Contractor Consultants Partnership

Dear Sir

We note that the works/that section of the works being ..................

were/was not completed by the due date for completiol~[as extended] and
continued so uncompleted until .....................

As a consequence we are notifying the E~nployerof his right to levy

liquidated damages for delay amounting to .................. pursuant to
Clause 47(1) of the Conditions; We anticipate that the Employer will
deduct and retain such sum from ally further sum otherwise payable to
you.

Yours faithfully

Considtants Partnership
 Reference: FIDIC/E/63
Serral Number
Ce@ificateof ~~~~~~b~~~~~
cansaciai To: The Colltractor
Completion (a) Engneer
Employer
Repreianlallve under
Clruse 56111
Dear Sir

Certificate of Co~npletionof'a Sectior~or Part of rhe Wor/<.s

Engineer's Nameand Address ' Project Title

We refer to your letter reference .................. dated ......................
indicating that yo11 collsider that part of the works being ..................
Empioyer s Name and Address
and specified as a section in respect of which a separate time for
completion is provided in the conlractla substalltial part of the works
being ........................ has been both completed to the satisfactioil of
Contractor's Name and Address the Engineer and occupied or used by the Employerlhas been substan-
tially completed.
, , . ,
Amount of Retention for Release [We note your uildertaking to finish any minor outstanding work during
Checked by
the period of maintenance.]

Certified by (Engineer] . We agree that section/part of the works to be substantially complete and
>.. hereby issue our certificate or sectional or part con~pletion,stating the
. .,,
Dateof Issue .."......... ....... date of colnpletion as being .................. pursuant to Clauses 48(2) and
The date on which in my opinion the whole oi the in accordance with the Contract 48(3) of the Conditions.
is stared below.
'i.

Completion Date .+.... ". Yours raithfully

complete any outstanding works

Consultants Partnership
,,

less any sums paid pursuant to

within 14 days of the issue dare

retention money andshsil be paid against

 Form Number EWl5 Reference: FIDIC/E/64
Cedifieate of Distribution
Conoacior~~. ~ ..
To: T h e Contractor
Completion . . .. . . . .
Ml:y-,yF,-,,
Eng,neer
Employer
.............
..............
.G(lidl21
G , Project
~ ~ Number
~
Pa@of the . ... . . .
Rep.esenial,"o"ndci
Rep.eseniallvoundci Bivo
Dear Sir
CiauSe56(11
Contract Number
Works (b)
W o r k ro be Corrrplered P r i o r ro flre I s s ~ i eoj'rr Cerrrfrrrire qf'Coirif11erioir

We refer to your letter reference ............... dated ........................

indicating that you consider the whole of the work to have been
Empioyer's Name and Address
substantially completed/part of the work being ........................ and
specified as being a section in respect of which a separate tinie for
completion is provided in the Contract/a substantial part of the work
Contracto~'~
Name and Address being ....................... has been completed to the satisfactioll of the
Eilgilleer and occupied or used by the Employer/has been substantially
completed.
Amount of Retention for Release
Checked by We do not p r e s e ~ ~ t lconsider
y the work concerned to be substantially
complete and give inslruction pursuant to Clause 48(1) of the Conditions
Certified by (Engineer1
requiring the undernoted work to be done:
Datcof Issue

Upon satisfactory colnpletion of these outstanding items our certificate of

completion/certificate of sectional o r part co~npletionwill be issued.
.#
Description of Section or&*!n b ?,
Yours faithfully

, i . ? i
i ' # Noies.\ Consultants Partnership
: 'r-" nnu6deliaringhas beengivenoishalibedeemed to have been given.
? agbpplicable.to complete any outstanding workswithin the Period of
.,.'.: *-.'".........
, *<,*. ,.Main enancs.

Completion o f a Sectionor Part of theworks is

the Contracrorsnoticeof substantial
completion. jiapplicable. and in my opinion no funherwork requires to be
done before the issue of such Certificate.

(3)One half of the retention money in respect oithe said Section or Pan
i i paidwithin 14 days of the issue date stated above.
~ h a be

(41 For the purpose of caicuiatingthe retention now due and for insurance
purpeses and for no other purpose the said Section or Pan is valued at
E...................................

ow stated t o b?due i n respect of retention money end shall be paid against

the authoricy of the lnterim Cortificsfe Form No: EW/10 issued herewith.

C H A P T E R 18
Maintenance and Defects
Clause 49(1)-Definition of 'Period of Maintenance'
In these Conditions the expression 'Period of Maintenance' shall mean the period
of maintenance named in the Appendix to the Tender, calculated from the date of
completion of the Works, certified by the Engineer in accordance with Clause 48
hereof, or, in the event of more than one certificate having been issued by the
Engineer under the said Clause, from the respective dates so certified and in
relation to the Period of Maintenance the expression 'the Works' shall be
construed accordingly.
1. The period ormaintenance will norn~allybe six or twelve monihs. It
runs, as is indicated in this sub-clause, fi-on1 the date of substantial
con~pletionnamed in the Engineer's certificate. It does not run from the
date when the Engineer's certificate of substantial c o ~ n p l e t i o ~
isl received
but from the date of conlpletion certified in the certificate. Were the
operative dale to be the date of actual receipt, the period of maintenance
could, of course, be artificially extended.
2. It must always be appreciated that liability for 'latent' defects will
extend for the period of l i ~ n i t a t i odefined
~~ by local law which may be for
a shorter or longer period than that defined by the UK Lin~itationActs.
Clause 49(2)-Execution of Work of Repair
To the intent that the Works sl~allat or as soon as practicable after the expiration
of the Period of Maintenance be delivered to the Employer in the condition
required by the Contract, fair wear and tear excepted, to the satisfaction of the
Engineer, the Contractor shall finish the work, if any, outstanding at the date of
completion, as certified under Clalxse 48 hereof, as soon as practicable after such
date and shall execute all such w o k of repair, amendment, reconstruction,
rectification and making good defects, imperfections, shrinkages or other faults as
may be required of the Contractor in writing by the Engineer during the Period of
Maintenance, or within fourteen days after its expiration, as a result of an
inspection made by or on behalf of the Engineer prior to its expiration.
1. A t the time that the certificate of substantial co~npletionis issued,
the Engineer should provide a scl~eduleof outstanding works a n d these
176
Mairztenrrnce nrrd Defects 177
should be conlpleted as soon as is practicable by the Contractor.
Sobsequently, as defects during the period of nlaintenance come t o light,
the Contractor will be required to make them good. In equity, u~llessa
particular item is a rnatter of urgency or affects the safe use of the works,
the orders for such work should be given in reasonable quantity and the
Contractor should not be expected t o be back a n d forth at a moment's
notice for trivial items. This consideration is particularly pertinent in
relation to a n overseas contract, as the retention of a local resource may
not be practical in the period of maintenance.
2. Prior to the expiration of the period of maintenance, the Engineer
should inspect the works and should, either before o r not later than 14
days after its expiration, instruct the Contractor in writing to carry out
any works of repair found necessary. We have here the equivalent of 'the
schedule of making good defects' so familiar t o builders under the J C T
F o r n ~ sof Contract.
3. It should he noted that the maintenance liability does not extend to
fair wear a n d tear. I t is all too c o m ~ ~ ~t oo find
n the Contractor being
required to carry out maintenance work which owes its origins in no way
to the manner in which he has executed the work but stems solely from
the uses t o which the works are being put by the Employer. Particularly
will this be found t o apply t o items in the finishing trades.
4. Equally the Contraclor should take care to ensure that he does not
carry out, at his own cost, purported works of repair that have arisen
despite the fact that he has complied totally with the r e q u i r e n l e ~ ~of
t s the
drawings a n d specification in relation t o workmanship and materials.
Clause 49(3)-Cost of Execution of Work of Repair
All such work shall be carried out by the Contractor at his own expense if the
necessity thereof shall, in the opinion of the Engineer, be due to the use of
materials or workmanship not in accordance with the Contract, or to neglect or
failure on the part of the Contractor to comply with any obligation, expressed or
implied, on the Contractor's part under the Contract. If, in the opinion of the
Engineer, such necessity shall he due to any other cause, the value of a11 such
work shall be ascertained and paid for as if it were additional work.
1. This sub-clause recognises that it is not uncommon for additional
work require~nentsto come to ligllt during the maintenance period. It
specifically points out that such work should be paid for as if it were
additional work.
The Contractor should, however, always resist being paicl for such
work a1 the rates applicable to the general contract works iund insist that
any basis of payment be related t o the s111al1 and isolnlecl n a u ~ r eof the
178 Cl~rrpter.I 8
work being carried out. I t is likely that a daywork re-imbursement basis
will not be adequate, since daywork is essentially applicable to those
a~icillaryworks that cannot properly be measured, carried out during the
main contract period.
2. As soot^ as the scl~eduleof detects is received by the Contractor, the
notified itenls should be split into three categories:
(a) work that Brises fxom fair wear and tear due to the occupancy of
the Employer; ' of any defect, imperfection of falllt under the direction of the Engineer. Unless
(b) work of repair and re-instatement that has arisen despite
compliance by the Contractor with the terlns of the drawings and
specification as regards workmanship and material; and
(c) work that is genuillely the Contractor's lia~bilityand can be shown
t o have its origins in non-conlpliance with the terlns of the
specification and drawings.
3. The Engineer should be notified of all items that the Contractor
co~lsidersfall within category (a) or (b), and authority for paynlent be
obtained, if possible, prior to the commitment by the Co~itractorof
expenditure in carrying out work against the items concerned.
Clause 49(4)-Remedy on Contractor's Failure to Carry Out the Works
Required
If the Contractol- shall fail to do any sucll work ;Is aforesaid )required by the
Engineer, the Employer shall be entitled to employ and pay other persons lo carry
out the same and if such work rs work which, in the opinion of the Engineer, tlie
Contractor was liable to do at his own expense under the Contract, then all
expenses consequent thereon or incidental thereto shall be recoverable from the
Contractor by thc Employer, or ,nay be deducted by the Enlployer fi-on1 any
~nol~iesdue or which ruay beco~nedue to the Contritctor.
1. This type ofprovisioll, enabling the works t o be properly completed
and ensuring the Employer's riglit of offset in respect of such completion.
is a standard stipulation in most forms of constructiotl contract.
2. Note, howevel-, that the clause only applies to those works that the
Contractor should have carried out a t his ow11 cost. If he is asked during
the period of ~ n a i n t e n a ~ ~toc ecarry out work outside the scope of his
original contract and which does not arise from the maintenance
obligations, he may, if lie is unable l o establish a satisfactory basis for
payment, refuse to carry out such work.
3. It will be noted'tliat there are n o standard t e r n ~ scovering provision
for temporary and permanent re-instatement of the highway in the
Moiirtewrri~ce~rrlrlDejects 179
I~lter~lationalConditions. Doubt could therefore arise as to liability Tor
damage to highways and the terlns of each individual contract
specification should be carefully examined.
!I
I!
r Clause 5 G C o n t r a c t o r to Search
The Coiltractor shaLI, if required by the Engineer in writins, search tbr the cause
such defect, imperfection or fault shall be one for which the Contractor is liable
I!I under tlie Contract, the cost of the work carried out by the Contractor in
searching as aforesaid shall be borne by the Employer. If such defect,
!I imperfection or fault shall be one for which the Contractor is lii~bleas aforesaid,
the cost or the work cari.ied oul in seaching as afol-esaid shall be borne by the
Colltractor and he shall in such case repair, rectify and make good such defecl,
imperfection or fault at his own expense in accordance with the provisions of
/i Claose 49 hereof.
1. The wording o f this clause is virtually the same as that contained in
the ICE Conditions, 4th and 5th Editions. Because, however, ~ ~ n d the er
International Conditions the contract tel-minates a t the end of the period
of maintenance, the Co~ltractorcan only be asked t o carry out the type o f
search envisaged by this clause prior Lo the end of the maintenance
period.
2. By this clause, the contract legislales for the practical point that in
major works of construction the cause of a clefect lnay be far from
obvious. Some resources most, therefore, be available l o delve into tlie
matter under the direction of the Engineel-, and what better resource than
the Contractor?
3. Where it can be shown that the defect has its origins in some design
failure, the cost of both the research and the repair will be borne by the
Employer. Where, however, the defect is found to be a t i r i b u t ~ ~ btloe some
act or omission by the Contractor, the cost both of repair and research
would, ofcourse. be borne by the Contractor.
4. Unfortunately, where some major defect has arisen that was
attributable to defective design, it is always possible that the Employer
might seek refuge in the common law doctrine illat an experienced
contractor in exercising due professional skill ought properly to 11ave
identified the defective design and sought t o remedy it prior to
construction. Where large sums are involved, this must, regrettably, be
regarded as a grey area.
180 Clznpter I S Mniritennnce nrrrl Defects 181

STANDARD LETTERS AND FORMS Since such investigation has shown the defect not to be attributable to the
use of niaterials or workmatlship not in accordance with the contract or
Reference: FIDICI.10 to neglect or failure on the part of the Colltractor to comply with any
To: The Engineer obligation, expressed or implied, on the Contractor's part under the
Contract, it is requested that the cost of the aforementioned resources be
Dear Sir borne by the Employer pursuant to Clause 50 of the Conditions.

Clnri@crrtion of the Brrrrlerr of Costfor- W o r k s ofReprrir

Yours faithf~~lly

We refer to the schedule of defects notified by the E~lgi~ieer

pursuant to
Clause 49(2) of the Conditions and question whether the following items: Contractor Limited

6)
(ii)
(iii) ........................................................................ Reference: FIDIC/E/65
(iv) To: The Contractor
are attributable either to the use of materials or work~nanshipnot in
accordance with the contract or to neglect or failure on the part of the Dear Sir
Contractor to comply with any obligation expressed or implied on the
Issrre of Scl~erirrleof Defects
Contractor's part under the contract.

Believing these items of defect to have arisen from some other cause, we We issue herewith a schedule of defects of various itelns which are
request that their value be ascertained and paid for as if it were additional required to be made good pursuant to Clause 49(2) and 49(3) of the
work pursuant to Clause 49(3) of the Conditions. Conditions.

Yours faithfully Should you consider any of the notified items to be attributable to fair
wear and tear or to have arisen despite, in your opinion, complia~icewith
the contract in respect of l late rials and workmanship, please notify 11s
Cotltractor Limited accordingly within ............... days.

If in our opinion such defects are so caused, the value of work entailed in
Reference: FIDICl41 making good will be ascertained and paid for as additional work.
To: The Engineer
All items or actual defect, whether by way of additional work or
Dear Sir otherwise, are required to be made good prior to the issue of tlie
li~ainte~~allce
certificate under Clause 62(1) of the Conditions, the issue of
Reqrrestfo/~e-irrrbrtrser,re~rrof Costs Associrrted ~ v i t l Trncirig
! /lie Ccrrrse of which is a condition precedent to final payment.
cr Defect
Yours faithfully
We refer to the Engineer's instruction ................................. dated
.............................. directing that such resource as nay be necessary
he used to determine the cause of the defect noted. namely Colisultants Partnership
.......................................
182 Cl~npter18

Reference: FIDIC/E/66 CHAPTER 19

To: T h e Contractor
Variations and Their Valuation
Dear Sir

You are hereby directed. to search for and carry out such tests and trials
as may be required to trace the cause/causes of the undernoted Clause 51(1)-Variation Orders
defectldefects pursnant to Clause 50 of the Conditions: The Engineer shall make any variation of the foljn, quality or quantity of tlic
........................................................................ Works or any part thereof that may, in his opinion, be necessary and for that
(a) purpose, or if for any other reason it shall, in his opinion be desirable, he shall
(b) ........................................................................ have power to order the Contractor to do and the Contrilctor shall do any of tlie
(c) ........................................................................ following:
( ) ........................................................................ increase or decrease tlie quantity of any work included in the Contract,
(a)
Subsequetitly you will make good and re-instate as necessary t o the (b) omit any such work,
instruction of Mr. .................. (c) change the character or qual~tyor kind of any such work,
(d) change the levels, lines, positions and dilnensions of any part of the
Works, and
Should the defect, imperfection or fault be one for which you are (e) execute additional work of any kind necessary for tlie completion of the
reponsible under tlie contract, the cost will be borne by yourself, but Works,
otherwise by the Employer. and no such variation shall in any way vitiate or invalidate the Contract, but the
value, if any, of all such variations shall be taken into account in ascertaining the
Yours faithfully amolnlt of the Contract Price.

Consultants Partnership 1. Although the wording of this clause is exactly the same as that of
the I C E Conditions, 4th Edition, one must be aware of the underlying
10% limit of variation under Clause 52(3).
2. This is tlie clause that gives the Engineer f o r ~ n a lpower t o issue
variations under the Contract.
3. The tabolated categories of variation set down are signilicantly
different in principle t o those of the I C E Conditions, 5th Edition, in chal
the Engineer is not empowered to make 'changes' in the specified
sequence, niethod o r tinling of co~istruction.
4. The powers given t o the Engineer d o not entitle hi111 to order
variations that would vary the basic terms, conditions and objects of the
contract. The contract has been a two-way bargain between Employer
and Contraclor, and one party cannot unilaterally change the basis of
that contract, although the ternls can always be varied by mutual
agreement.
By the objects of the contract we have in nli~ldthe underlying purpose
behind the contract, for instance a contract for the construction of a
sewerage works could 11ot be varied to the co~lstructionof a motorway,
184 Clzal~cevI 9
or the contract for the construction of a hundred-house housing estate
varied t o that for the construction of a thousand houses, even were the
limit of variation under Clause 52(3) t o have been deleted.
5. The sub-clause contains the normal form of words often found in a
construction contract, 'no variation shall in any way vitiate o r invalidate
the Contract', which, provided such variation is issued in accordance with
the powers bestowed by the contract on the Engineer, is perfectly
reasonable.
I t must, however, be emphasised that this form of words does not give
the Engineer overriding powers to issue variations of any sort outside the
terms, cotlditions o r objects of the Contract.
Clause 51(2)-Variation Orders to be in Writing
No such variations shall be made by the Contractor without an order in writing
of the Engineer. Provided that no order in writing shall be required for increase or
decrease in the quantity of any work, where such increase or decrease is not the
result of an order given under this Clause hut is the result of the quantities
exceeding or being less than those stated in the Bill of Quantities. Provided also
that if for any reason the Engineer shall consider it desirable to give any such
order verbally, the Contractor shall comply with s11c11order and any confirmation
in writing of such verbal order given by the Engineer, whether before or after the
carrying out of the order, shall be deemed to be an order in uzriting within the
nleaniqg of this Clause. Provided further that if the Contractor shall within seven
days confirm in writing to the Engineer, and such confirnlation shall not be
contradicted in writing within fourteen days by the Engineer, it shall he deemed
to be an order in writing by the L-ng'ineer.
COIIII??~~~~
1. The C o ~ ~ t r a c t has
o r no authority t o carry out varied work unless 11e
has received an appropriate order from the Engineer. Such a n order may
have been received in any one of the following ways:
(a) in writing from the Engineer,
(b) orally from the Engineer, with written confirmation provided by
the Engineer,
(c) orally by the Engineer and confirmed in writing by the
Contractor within seven days t o the Engineer, and not
subsequently dissented from in writing by the Engineer within
fourteen days of such conitmation.
2. Unlike the situation under the ICE Conditions, 5th Edition, the
Engineer has not the limitation imposed upon him that any dissent
expressed by hi111 shall be given 'forthwith'.
Note, however, the stipulation in relation t o a n oral instructioll that
Variations arzd Tlzeir Yalzration 185
'the Contractor shall compiy with such order'; it is dificult to see how the
Engineer could ~llorallysupport the withdrawal of his order if the work
had actually been carried out and the Contractor had confirmed the order
in writing before the Engineer's consent was withdrawn.
The clause, however, as now drafted is throughly bad and should be
qualified at time of tender t o avoid a situation in which the Contractor is
required to conlply with a verbal instruction lhat col~ldsubsequetltly be
dissented from by the Engineer u p t o three weeks later.
3. If at all possible, the Co~ltractorshould adopt the following
procedure:
(a) confirm the oral inst!.uction in writing immediately,
(b) delay the start of orally instructed work for fourteen days
thereafter to enable the Engineer to dissent from such order
should he so require, o r
(c) if the work needs to be carried out as a matter of urgency, insist
a t least on a handwritten instruction before taking any action.
4. It sl~ouldbe noted that a n order in writing is not required merely
because the quantities are more o r less than those contained in the Bill of
Quantities other than as the result of a variation (or t o put it plainly, no
variation is required where the bill of quantities is wrong). With the
revised terms of Clause 52(3) it can no longer be argued that adjustnlent
of actnal quantities does not fall within the limit of variation
consideration.
5. For a variation order t o be valid, the nature of the variation does
not have t o be described in words. I t is suficient, and nol~ethelessa
variation order in writing, if confirmation is given to the issue of a
drawing which itself shows the work changed from that contained o n the
original Contract drawing.
Clause 52(1)-Valuation of Variations
All extra or additional work done or work omitted by order of the Engineer shall
be valued at the rates and prices set out in the Contract if, in the opinion of the
Engineer, the same sllall be app1ic;tble. If the Contract does not conrain any rates
or prices applicable to the extra or additional work, then suitable rates or prices
shall be agreed upon between the Engineer and the Contractor. 1x1 the event of
disagreement the Engineer shall fix such rates or prices as shall, in his opinion, he
reasonable and proper.
1. Unlike the ICE Conditions, 4th Edition, the point is made in this
sub-clause that where the Bill rates d o not apply, 'suitable rates o r prices
sliall be agreed upon between the Engineer and the Contractor'. It would
seem that the rating approach of this Contract is not quite as arbitrary as
that under the old 4th Edition.
2. Unfortunately, the clause does not give the type of guidance
contained in tlie I C E Conditions, 5th Edition, as to when bill rates are
applicable, although guidance as to the attitude that should be adopted
can well be obtained from that other form; for to quote:
'Where work is of a similar character and executed under similar conditions to
work priced in the Bill of Quantities, it shall be valued at such rates and prices
contained t11ereiu as may be applicable. Where work is not of a similar character
or is not executed under similar conditions, the rates and prices in the Bill of
Quantities shall be used as the basis for valoation so far as may be reasonable,
failing which a fair valuation shall be made.'
3. T h e surest way to guarantee that appropriate rates are applied to
particular items of work is t o ensure that the description given to the
items in measurement is completely clear and unambiguous, and, that
where tlie work is of a different character executed under dissimilar
conditions to that contained in the original Contract, that such disparity
is properly reflected in the wording of the r e m easured
, item.
4. The importance of proper measurement descliption cannot be over-
empbasised.
Somewhat paradoxically, the simpler the initial form of measurement
and iten1 description, the less likelihood is there that tlle measurenlent
system so established will be able to deal effectively and fairly with any
form of s~tbstantialvariation. Generally, sophisticated measuri~lgsys-
tems, as for exanlple that set u p by tlle Standard Method of
Measurement of Building Work in tlie UIC, can cope quile easily with
changes in the character of the work and the costs so generated can be
reflected in the fomi of the measul-enlent and i t e ~ n sreqnired t o be taken
under the established rules. Thus, in tbe absence of 21 co~nprel~ensive
established method of ~iieasorement, appropriate rating can only be
carried out against full and accurate descriplions.
5. Althougll the sub-clause notes 'in the event of disagreement the
Engineer shall fix such rates o r prices as shall, in his opinion, be
reasonable and proper', the Contractor has a right of appeal concerning
such fixed prices by way of sub-%lause 52(2), and he should register any
such claim in his monthly payment applications under sub-clause 52(5).
Clause 52(2)--Power of Engineer to Fix Rates
Provided that if the nature or amonnt of any o~iiissionor addition relative to the
nature or amount of the whole of the Works or to any part thereof shall be such
that, in the opinion of the Engineer, the rate or price contained in the Contract
for any item of the Works is, by rcason of such olllission or addition, rendered
unreasonable or inapplicable, then a suilable rate or price sllall he agreed upon
between the Engineer and lhe Contractor. In the event of disagreement the
Engineer shall fix such other rate or price as shall, in his opinion, be ieasonable
and proper having regard to the circumstunces.
Provided also that no increase or decrease under sub-clause (1) of this Clause
or variation of rate or price under sub-clause (2) of this Clause shall be made
irnless, as soon aftel-the date of the order as is pructicablc ;und, in the case of extra
or additional work, before the co~nmencementof the work or as soon tlmreafter
as is practicable, notice sliall have been given in writing:
(a) by the Conlrz~clorto llie Engineer of his intenti011 to claim extra
payment or a varied rate or price, or
by the Engineer to the Contractor of his intention to vary a rate or price.
(b)
1. T h e Contract recog~iisesthat it may be totally inappropriate to have
a contract rate o r price applied 'willy nilly' t o a varied scope of wol-k.
As a n extreme example, let us imagine that a contract for a road
contained a relatively icsignificant anloullt of excavation in cuttings,
say 100,000 cnbic metres, and that as a result of a realignment the
quantity increases to 1,100,000 cubic metres.
It is clearly likely that the unit rate applicable to the 100,000 cubic
metres would be totally inappropriate when applied to the 1,100.000
cubic metres.
2. Whilst the sub-clause wo111d appear t o recognise the need possibly
to vary a rate due t o extensive change in quantity, it does not o n tlie face
of it appear to recognise the need to vary rates because of Lhe work being
of a different character executed under dissimilar conditions, other t h a n
as niay be a ~ x u e dby inference through sub-clause 52(1).
3. Whilst, as noted, the sub-clause provides for the adjustment of rates
o r prices for any item of work rendered unreasonable or inapplicable by
virtue of the nature o r amonnt of any omission o r addition, it mas(, o r
course, be noted by the Contractor that (under this edition) this is not
confined solely to variatio~lsordered in writing under Clause 51(1), but
also applies to quantity changes identified on remeasurement.
4. I t nlay well be that as a result of variation o r radical fluctuation in
quantity some adjustment of genel-a1 or prelirilinary items, as distinct
from individual unit rates, might also be required. It would again be
under this sub-clause that application for revised payment would be
made.
cc-n
 5. If the Contractor is dissatisfied with a rate uotified t o him by the
Engineer in writing, he nus st give notice as soon as practicable under
Clause 52(2)(a).
6. If the Engineer seeks l o vary a bill rate in the latter stages of final
account negotiation, the Contractor may often be able t o use the defence
that the Engineer has not on his part provided the written notice called
for uuder Clauseh52(2)(b) and thereby avoid an untoward and late-stage
downward adjustment of the account. I n this situation the application of
the sub-clause is argued t o be a 'condition precedent' t o the establishment
of a right to vary the rate.
Clause 52(3)-Variations Exceeding 10%
If, on certified completion of the whole of the Works, it shall be found that a
reduction or increase greater than 10% of the sum named in the Lctter of
Acceptance, excluding all fixed sums, provisional sums and allowance for
dayworks, if any, results from:
(a) the aggregate effecl of all Variation Orders, and
(b) all adjustments upon measllrement of the estimated quantities set 0111 in
the Bill of Quantities, excluding all provisional sums, dayworks and
adjustments of price made under Clause 70(1) hereof,
but not fronl any other cause, the amount of the Contract Price shall be adjusted
by such sum as may be agreed between the Contractor and the Engineer or,
failing agreement, fixed by the Engineer having regard to all material and relevant
ractors, including the Contractor's site and general overhead costs of the
Contract.
1. There is no counterpart to this 'limit of variation' sub-clause in the
I C E Conditions, either 4th o r 5th Editions. T h e requirement for suc11 a
sub-clause in a n overseas Contract arises from the greater need for the
Contractor to be able to place reliance on the scope of work indicated to
hirn in the Contract Bills, than would be the case in the UK, where he
would have, in all probability, greater opportunity to spread his
overheads, labour and plant resources betweell various contracts than
would be the case overseas.
2. T h e clause recognises quite elearly that, should the scope of work
vary extensively, a ~ l o n ~ a l o urecovery
s of the Contractor's o n costs and
overheads through the rates will occur. F o r example, a f 10111. contract
tnay have been set up and resourced t o be carried out in 24 months.
Should the value the11 fall to, say, £5m., there is every likelihood that
there will be gross under-recovery of the Contractor's various fixed site
costs, and the clause recognises that this should be reflected in the rates
fixed by the Engineer.
3. There appears to be n o specific demand made on the Contractor
that he should serve a notice requiring his rates to be revised under this
sub-clause as a condition precedent to maintaining that right. Discretion
dictates, however, that h e should d o so as soon as such a situation is
apparent, lest it might be argued that, since it was called for under Clause
52(2), it would also apply in the case of Clause 52(3).
4. While it will be noted that the limit of variation has been lowered in
this edition from 15% to lo%, it is even Inore important t o appreciate the
sigilificance of the definitions that are associated with defiuing the limits
of variation.
5. T h e intention would appear t o be that adjustlneuts should be made
if the final value o f the r~iensiired11.ork is 10% greater or less than the
amolult of the f ~ ? r m n . e dit,orli contained in the origirlal Contract.
Unfortunately the clarity of this intentiot~has become obscured by the
following ambiguities built into the sub-clause as drafted, in that:
(a) the meaning of the words 'on certified completion of the whole of
the Works' can be the subject of argunlent as t o whether it means
the value on certified 'substantial completion', or the value after
the carrying out of any maintenance work, with the issue of the
final certificate providing evidence of the total contract value
ascertained in accordance with the tertns of the contract. It is
believed that the intention of the drafters was that the second
definition would apply, while, on occasion, it could be to the
Contractor's advantage to argue that it applies t o the former.
(b) I n defining the tendered measured work value no difficulty would
appear to apply. When assessi~lgthe re-measured value, howeve~;
whilst clearly the effect on measured work of variatiotl orders and
the adjustment of the estimated quantities set out in the bill is
brought into the equation, confusion is created by the phrase
'excludi~lg all provisional sums'. T h e tern1 'provisional sum' as
defined under sub-clause 58(1) can apply either to tile work of a
no~ninatedsub-contractor o r t o work which might subsequently
be the subject of nleasuretnent. Should, therefore, work which was
originally covered by a provisio~lalsun1 at time of tender, and that
is subsequently valued by becoming measured work, come into the
definition of measured work for the purpose of establishing
whether or not a litnit of variation has been exceeded or not? T h e
Co~lditionsappear to d o nothing to assist on this point.
It would appear possible for the Contractor t o argue t11e case
either way to suit his convenience. Logically, however, in the final
account, work which had originally been the subject of a
provisional sunl and hecalne measured work would no longer be a
provisional sum; on the other hand, work which had been carried
190 Cl~apter19
out by a nominated sub-contractor and been the subject of a
lump-sum final account could perhaps still be argued t o be a
provisional sum. T h e writer leans toward defillitlg as provisio~lal
sums, on the final account side of the equalions only that work
that has become the subject of Iutnp-sum nolninated sub-
Engineer. -
contracts where ~ n o n i e s are paid on the itlstructio~l of the
6. If the contract is subject t o English Law the ql~estjonof grossly
wrongly stated quantities could be treated as a misreprese~ltationand fall
under the Misrepreselltation Act 1967 as ground for recovery.
Clause 52(4)-Daywork
The Engineer may, if, in his opinion it is necessary or desirable, order in writing
that any additional or substituted work shall be executed on a daywork basis. The
Contractor shall then be paid for such work under the conditions set out in the
Daywork Schedule included in the Contract and at the rates and prices affixed
thereto by him in his Tender.
The Contractor shall furnish to the Engineer such receipts or other vouchers as
may be necessary to prove the amonnls paid and, before ordering materials, shall
submit to the Engineer quotations for the same for his approval.
In respect of all work executed on a daywork basis, the Contl-actor shall,
during the continuance of such work, deliver each day to the En,'o~neer's
Representative an exact list in duplicate of the names, occupatioil and time of all
workmen employed on such work and a statement, also in duplicate, showing the
descrintion and onantitv of all materials and plant used thereon or therefor
(,,rllc~tR:trl p1,~11t .tlldtlir)~lI I I .IC;.I~JIIIISC
\1*111511 is IIICILII~CY~i n 1 1 1 ~ .~ C ~ ~ C I I L : I ! ; C
rhc S.+alt~lc.I$i~cinbeiurc rcl>l~c,Ilo). OIW~ s p .)> ~ ' s : i i l l I I ~ .,nrl
i l > r r c , i l , ;,r \'.l~en:$yl.;~d.b~ iqnsd b) l l l i l . ~ ~ ~ . n < i rI' .<: ~ I ~ ~ c ~ c ~ .I~In: d.?:I~II~I ~IICJ ~~
to the Contractor.
At the end of each month the Contractor shall deliver to the Engineer's
Rzpresenlative a priced statnnent of the labour, materials and plant, except as
aforesaid, used and the Contractor shall not be entitled to any payment unless
such lists and statements have been fully and punctually rendered. Provided
always that if the El~gineershall consider that for any reason tlie sending of such
list or statement by the Contractor, in accordance with the foregoing provision
was i~n~mcticable, he shall nevertheless be entitled to autliorise payment for such
work, either as daywork, on being satisfied as to the time employed and plant and
materials used on such work, or at such value therefore as shall, in his opinion, be
fair and reasonable.
Co>??ment
1. Since on a n overseas contract it is likely that there will be no
available daywork schedule equivale~it to that published by the
Federation of Civil Engitleering Contractors ln the UK, it is essential that
the contract carries its own daywork scl~eduleincluded in the bill of
01111
I slntcmcnt \\.III.11
quantities. A t time of tender, the Contractor will probably be required to
insert his own all-in rates against items given, both for laboul- and plant,
and t o quote t11e percentage addition required t o the net cost of materials.
2. Since tlie daywork rates quoted will be those applicable at tlie time
of tender, should there be a fluctuatiotl clause in the contract, the
daywork account, unlike the situation under the I C E Conditions, 5th
Edition, would be made the subject of price fluctuation.
3. T h e Contractor is required to submit t o the Engineel- for his
approval quotations for materials before ordering them. Whilst this
require~~lent will obviously apply to significant i t e n ~ sof a totally different
nature to those contained in the original works, one cannot conceive it
being applied to I-outine, run-of-the-mill materials in continuous use
throughout the works. Where, however, significant items are involved,
the obtaining of quotatiolls for materials forming part of the additional,
substituted or varied work, and the delivery of the same, could involve
delay, and in that event the provisiotls of Clause 44 should be kept in
nlind.
4. For each day during which daywork is being carried out, the
Contractor is required to submit unpriced particulars of the labour,
~naterialsand plant involved.
5. These particulars, if corl-ect, are to be signed by the Engineer's
Representative when they have been agreed and returned to the
Contractor.
6. If any particulars al-e foulld t o be incorrect, the Engineer's
Representative should notify the Contractor accordingly, in order that
ally adjustlnellt necessary may be agreed.
7. A t the end o r each month, the Colltractor is required to deliver to
the Engineer's Representative a priced slatement o r the labour, l~laterials
and plant used. Although the sub-clause might appear t o suggest that a
detailed account is not required, and tllal the priced slatentent migl~tbe
in sumlnarised form based on the detailed lists and statements previously
submitted, it would obviously be appropriate early in the contract to
establish with the Engineer's Representative the fol-m in which the priced
daywork account is to be submitted, i.e. whether the sumnlarised fol-m
would be applicable or whether detailed sheets in respect of each order
would be appropriate.
If there is a choice, the individual detailed sheets would be found
adn~inistrativelyeasier to handle.
8. T h e Contl.actor rnlist have I-egard t o the importance of submitting
the required particulars putlctually and in accordance with the period
stated. Such s~lbmissionsmay well be treated as coilditio~lal to the
making of payment. The Engineer has optional powers to allow the
sub~l~ission of dayworks that are out of ti~lie, but it would appear
exceedingly foolish t o assume that the Engineer would always be kindly
disposed to using such optional powers.
9. When descriptio~lsare inserted on a daywork sheet, it is absolutely
essential that the work concerned be clearly described and that the
authority for carrying it O L I ~noted. Since daywork i t e ~ n scan become the
subject of long term contention, there is little point in the provision of a
description that iq terse to the point of being meaningless, if, two years
later, it results in the daywork sheet being discarded merely because the
parties to the Contract are totally unable t o identify the nature of the
work being claimed.
10. Every effort must he made throughout the contract to avoid a
daywork backlog arising. The responsibility for the submission and
agreement of daywork sheets must be clearly placed in the hands of a
natned individual.
The reasons for this are:
(a) the likelihood of contract staff dispersal and their being unavail-
able for clahn preparation,
(b) in a developing country funds may not be available t o pay claims
other than during the currency of the works,
(c) fair clai~nsconciliati011 may be impossible to achieve despite the
contractual theory.
4. On the face of it the sub-clause as now drafted would appear to bar
a clai~nthat had not been registered in a mollthly payment application. In
the English courts this has been held not to be the case ullder the old ICE
Conditions, 4th Edition, where the need for registration as a condition
precedent was not as strongly made.

Claose 52(5)-Notice of Claims

The Contractor shall send to the Engineer's Representative once in every month
an account giving particulars, as full and detailed as possible, of all claims for any
additional payment to which the Contractor may consider himself entitled and of
all extra or additional work ordered by the Engiueer which he has executed
during the preceding month.
No final or interiln claim for payment for ally such work will be considered
which has not been included in sucll particulars. Provided always that the
Engineer shall be entitled to authorise payment to be made for any sucll work
notwithstanding the Contractor's failure to comply with this condition if the
Contractor has at the earliest practicable opportunity notified the Engineer that
he intends to make a claim for such work.

1. The wording of this sub-clause is similar to that contained in the

ICE Conditions, 4th Edition, save that for the Engineer is substituted the
'Engineer's Representative' as the person to whom details are t o be sent
every month, and for the words 'giving full and detailed particulars' is
substituted 'giving particulars, as full and detailed as possible'.
2. As this is the focal point for claims registration in the contract, it is
here that all claims of whatever nature, together with rating claims,
should be registered-noting that*'no final o r interim claim' will be
considered that has not been so registered.
3. For all practical purposes it will he suficie~lt if the claims are
registered as an appendix to the regular monthly payment applications.
Obviously, the greater the detail that can be given the better, and,
particularly in overseas work, the most strenuous efforts should be made
to avoid the formal type of claim submission at the end of the contract
that is sometilnes required in the UK.
 V~~.icllfioi~s
aizd Their Valz~nlio~i 195
1
STANDARD LETTERS AND FORMS
Contractor's
Confirmation
Reference: FIDIC/42 of Oral
To: The L:- ng.lneer Instruction
Dear Sir Contractor's nameandaddress confirmation Number

Date
-*":,.
Engineer's Name Confirn>atto~gi"3"by
"* \'
In accordance with the requirements of Clause 51(2) of the Employer's Name
Co~lditionsthe oral instruction issued by .................. in respect of
Project Title
... . .. . .......... . ... is confirmed. Location

.~.
Notes: i ,,j-
";
.-*
[Pending the elapse of the period of 14 days within which such order may <
i t 1 Theoial1nstrucl#ongivenby .... ..,* . . . />:.'' ,
.. ...:3,z.
....~
~. ..... >
be contradicted, or the earlier written confirmation of the order by the has been noted and is being <ornp$d wig?:
''~ ", 'i
121 The instruction is hereby conflrmedin~ritingbnduniebs i
Engineer, no work will be undertaken against the order.] coniradicted in writing forthwjth7shallbeddernedt?be.ai;orderin
/
writing by the ~ n g i n e e : p ~ i ~ u ~ m i . ~ ~ ' c l a ~ ~ s e 5 1 ( 2 ~ ~ '

[Noting the need for the work verbally ordered to receive immediate
attention, we are proceeding with it prior to 14 days elapsing, or the
earlier written confinnation of the order by the Engineer, at your request
in good faith and the acceptance by the Enlployer of a moral obligation
to pay for the work involved.]

Yours faithfully

Contractor Limited

N.B. If it has not been possible to have the oral inslruction arrangemellt
under the 3rd Edition amended, i~lstruclionsverbally issued will be
treated by one or other of the two confirination alternatives set out in the
standard letter. The former of the two procedures set down should be
adopted wherever possible and resort made to the latter only in a matter
of construction emergency or extreme urgency.
196 Clrapter 19 Vrrriations and Their Vah~rrriol~ 197

Reference: FIDIC/43 Reference: FIDIC/45

To: The En,'olneer To: The Engineer's Representative

Dear Sir Dear Sir

Notice Req~ririfrga Vuried Rcrre

We herewith gi;e notice pursuant to Clause 52(2)(a) of the Conditions In accordance with the require~llentsof Clause 52(4) of the Conditions we
requiring a varied rate for ........................ since the nature/amount of append a duplica<e record showing:
such item, in consequence of variation relative to the nalure/amount of
the whole coiltract worklpart of tlie contract work, is such as to render (a) Items of daywork being undertaken
the rate unreasonable/inapplicable by reason of ........................ (b) Names, occupations and times of men so enlployed
(c) Details of material and plant used
Yours faithfully for works dated ..................

Contractor Limited On agreement one copy should be signed and returned to our site office
for the attention of ........................

Yours faithfully
Reference: FIDIC/44
To: The Engineer
Contractor Limited
Dear Sir

Notice of' Vrrriririoi?Esceeclil~g10%

It is becolning apparent Lhat on certified co~~ipletionof the whole of the
works it will probabIy be found that there has beell an increasela decrease
greater than 10% of the sum named in the letter of acceptance in
accordance with the definitions of the contract.

In the event of this occuring we will wish the amount of tlie contract price
to be adjusted taking into account our site and general overhead costs
and other relevant factors pursuant to Clause 52(3) of the Conditions [in
accordance with the enclosed details].

We deem this to be the notice, if required, under Clause 52(5) of Lhe

Conditions.

Yours faithrully

Contractor Linlited
 Variatioiis orid Tlieir I'al~ration 199

Distribution
Reference: FIDIC/46
Daily Record of "ire
,US
To: The Engineer's Xeprcsentative
Resources used
on Dayarvork Dear Sir

e ~ddreis
contractor's ~ a m and Sheet NO.
Arising from In accorda~lcewith the requirements of Clai~se52(4) orthe Conditions we
-
Enaineer's InstructionNo.
,.,a
'i.
append the priced schedules of daywork covered by our daily notifi-
Employer's Name variation o6er ~h cations for the period dated . ... .... . ... .........
Project Title confirmationhmI~'e~~"r
Location tn?pti-~~-..->~- h-~ Yours faithfully
Description of work executed

Co~ltractorLimited
Date of work

(Contractor's Repre~entafivel
Certitied correct by

IEngineer's Repiesentalive)
Date Csrtmed '
.-..*.
,.-~
-
, ,.. '~;:.v
',. ,.
"%,,

.,,.,
",,\.-'\til

,.' ,,
' -.,!nti;imati6n
'.,~, does 2

'., ofhenvise
a,,*
and
i nedessaii~yimply
"p?;ie."l.ti; Oaywoik or

r I ODerrtiua'EName ; liras ...,.... 'l,, 1 Hours

 Reference: EIDIC/47
Daywork To: The Engineer and Engineer's Representative
Sheet
Dear Sir

Contractor's Name and Addiess Sheet No,

Month Attention is drawn to our payment application no. ............ for the
Compiled from understated
Record shee"ttwos montl~of ............... in which the following items of clainl are registered:
Employer's Name

Project Tirie
(a) ........................................................................
Location (b)
Description of work executed (c)
(d) ........................................................................
Approved by We deem this to be a notice, if required as a condition precedent,
IEngineei's Representative for hours and quantities1 .*,* .. pursuant to Clause 52(5) of the Conditions, establishing right to both
I week I rues I wed I ~ h u rI (To
I uvlon
/..-I *
\,
Sac, I "5yn I
(
.''Totag
i."' r
IliRale if 10
interini and filial payment.
I I I I I 1i ~b.. i.i -1. dl I
I, 1 '*a~>+.,l lk,.-'
-1 *,. s
-\,
*
** 1
5
I Yours faitlif~~lly

Contractor Linlited
I I
I
I
, "*
I, 1.. 'I. . I- I
I I

Deaiisofamounlofwanel
I

..:"
,,.. ...,'-">
.*-,"*,~'
I 'il
,
. .'".I_
.",, -..
. .. .
II
...- I
.I^ I I
SubTaial C
Scbeduteiiddilion 4b
e..kv-..,
I
I

Reference: FIDIC/E/67
To: The Co~itractor

Dear Sir

We enclose herewith our 'Variation Order' reference No. ..................

[logether with ..................... ] issued pursuant to Clause 51(1) of ihe
Conditions.

Yours faithfully

Colisultants Partnership
 202 Cl7apter I 9
Reference: FIDICIEI68
Variation Order ~ i ~ ~ ~ b ~ ~ , ~ ~ To. The Contractor

Dear Sir

Corrfir177ntiorrof Oral Irrstr~~crio~r

Engineer's Name and Address ProlectT8tle
We enclose herewith our co~lfir~ilatiol~
of oral inslruclion reference
no. ..................
-~%
i *,
Contractor's Name and Address iocatlon '\-,*
'\ -\, This confirlns the instruction orally given by ..................... [perlaining
Jka""-~
i
.

-".-'A.&
". . h"
\~.>~ to ..................] pursuant to Clause 51(2) of ihe Conditions.
.~" .,-,.
, ~, ~ ~~ t , i, , ~~t~i ou~ nm b e......
orel i =gl.,,......
Order Number ~ ~ ~ f
., ~ ~b..i i ~ f i l i c a b l ~ l - ~ - ~ - - ~ ' ~
Ordered by
, .
:. .
(Engineerltngineei's ~epresent?,i<el,d~
. " ..,
b~-.k%,x-%*
I <,,,
Yours faithfi~lly

~* .* : Consultants Partnership
>~ .............
The undernoted reqvirernent involving change by way of
[Tick a5 applicable1 * , ,
,
"
i %.*,-dd
. " .'ii
.+ "

Addition
Omission
Subslitution
Alteration
Quality
, __.
.,",..~ -*," ~ .
I..

IS ordered as a variation u n d e r t h e Contract ' ',

Reference: FIDIC/E/69
To: The Contraclor

Dear Sir

Cor~lrarlicriorlo f Cor!fir1r1arior7
of Oral lirsrnrcliorr Oj, Colzrrrrrtor

We refer to your communicalion dated ........................... reference

............... purporting to give c o ~ ~ f i r ~ n a t of
i o noral instruction said lo
have been given by ..................... relating lo ...........................
Rates Deduced from a Accepted Quotation
Daywork Such c o ~ ~ f i r m a t iis
o ~herewith
l contradicted in writing forthwith pursuant
--.., %
", "
.... e f f p f o n p**jectvalue Bnttirning has been
to Clause jI(2) of the Contract.

. , ( ~ Sanctioned
1
Employer
by the (el Recorded for back
charging
Yours faithfully

Id1 Assessed by the Planning

Engineer
C o ~ ~ s u l t d ~Partnership
lts

CC-N
204 Clznpter I 9

Reference: FIDICIEI70 Prior to/As soon as possible after carrying out the said work, we give
To: The C o ~ ~ t r a c l o r notice of our intention to vary the said rates and prices and hereby fix
such ratelrates as in the circumstatlces we think reasonable and proper as
Dear Sir noted below.
Rnre
Notificntior~of Rate for Vnried Worlr

We refer to our recent'consultations on the subject of a ratelrates for

.................. arising as a result of variation.
This notice is given pnrsuant Lo Clause 52(2)(b) of the Collditiolls
[We are pleased to confirm our agreement to the utlderlloted ratelrates.]
Yours faithfully
[We regret that we are unable to agree your rate/proposal/proposals and
now determine the ratelrates as noted below.
Consultants Partnership

In agreeing/determining the ratelrates we have followed the deter~nini~lg Reference: FIDIC/E/72

principles of the contract and now accordingly so notify you pursua~ltto
To: T h e Contraclol
Clause 52(1) of the Conditions.
Dear Sir
Yours faithfully
Nofice Arljlrstirrg rlre Corrtrcrrt Price Ulie to I'<friotiorrs q/'llze Pl'lzole qfrlre
Wor/<sExceeclirrg 10 Per Cer~r
Consultants Partnership
We refer to our recent consullations pertaining to the increase/decrease
exceeding 10 per ceut of the sulll named in the lelter of acceplance,
excludillg all fixed sums/provisional s~u~l~s/[and]
allowance for dayworks.

T h e increaseldecrease results from the aggregate effect of all variation

Reference: FIDIC/E/71
orders/[and] all adjustlllellts upon the measurement of the estimated
To: T h e ContracLor
quantities set out in the bill of quantities, excluding all provisional
sun~s/dayworks/[and]adjustlnellts of the price tnade under Clause 70(1)
Dear Sir
of the Conditions.
Notice Reqlririizg Vuried Rare
[We are pleased to confinn our agreement that the contract price be
increased/decrertsed by the sum of ........... .]
We refer to the variation pertaining to .................. and note in
collseqilence of the variation relative to the whole/part of the contract
[We regret that we are unable to agree to your proposal to
work that in our opinion certain of the rates and prices colltai~ledin the
increase/dec~easethe contract price by the sum of ............ ]
contract are rendered u~lreasollableo r inapplicable.
In agreeing/detern~in~!~g
the increase/decrease to the contract price, we
have followed the delermining principles of the contract and now
accordi~~gly
so notify you pursuant to Clause 52(3) of the Cot~ditions.
[The itenls agree with your previol~slysubn~ittedrecords and the pricing
is in accordance with the Contract and arithmetically correct/althougl~
certain arithmetical mistakes were made, these have been col-rected. The
sheetlsheets has/have been signed and one copy is returned to you for
inclusion in the accounts.]

Consultants ~ a r c ~ ~ e r s h i p [The items are un-supporled by agreed records/not priced in accordance

with the contract/sub~l~itted
out of time and are therefore rejected.]

These procedures are operated pursua111 to Clause 52(4) of the

Reference: FIDIC/E/73 Conditions.
To: The Contractor
Yours faithfully
Dear Sir

Dnilv Recorcl of Resol~rcesUsed or! Dc1.1111~orlr Consultants Partnership

The daily record of resources used 011 daywork in respect of
.................. daled ........................ is acknowledged.

The record is agreed correct and has bee11 signedlhas been amended it]
cotlsultatio~~
with your representalive and signed as amet~ded/isrejected
as the work covered by the record is already itlcluded elsewhere under the
Contract and we draw yo111 atte~llionto ..................I no i ~ ~ s t r u c t i ofor
n
the work was given/[although] it has been rendered out of time.

One copy is returned to you pursuant to Clause 52(4) of the Conditions.

Yours fiithfully

Consultants Partnership

Reference: FIDIC/E/74
To: The Contractor

Dear Sir

Receipt of your daywork sheet/sheets number ............... /numbers

............ to ............ for the month of .................. is acknowledged.
CHAPTER 20
Plant, Temporary Works and
Materials
Clause 53(1)-Vesting of Plant and Materials
All conslructiol~alPlant, Telnporary Works and lnaterials provided by the
Contractor shall, when brought on to the Site, he deemed to be exclusively
intended for the execution of the Works and the Contractor shall not remove the
same or any part thereof, except for the purpose of moving it from one part of the
Site to another, without the consent, in writing, of the Engineer, which shall not
be unreasonably withheld.
1. This clause has particular relevance in the event of forfeiture under
Clause 36, since it provides the client with security of ownership in the
materials, plant and temporary works on the Site.
2. It should be noted that, where nlaterials are stored outside the
boundary of the site, these will not, unless sonle special arrangement has
been nlade t o the contrary, vest in and be deemed t o be the property of
the Employer. T h e clause accounts for the usual unwillingness on the part
of the Engineer to make paytnent for luaterials which are not deposited
within the actual physical confines of the site.
3. Under sub-section (2) o r the clause, the Contractor is responsible
for renloving from the site all plant and tenlporary works renlaining and
any unused lnaterials a t the completion of the works.
4. Under sub-section (3) of the clause, the Employer, despite the fact
that ownership will have vested in him, xuldertakes no liability for loss or
injury in respect of the constructional plant, tenlporary works or
materials, unless it arises under an excepted risk pursuant to Clause 20, or
under the 'war' Clause 65.
Clause 53(4) and (5)-Re-Export of Plant and Castoms Clearance
(4) I11 respect of any Constructional Plant which the Contractor shall have
imported for the pul-poses of the Works, the Employer will assist the Contractor,
where required, in procuring any necessary Government consent to the re-export of
such Constructional Plant by the Contractor upon the relnoval thereof as
arol-esaid.
(5) The Employer will assisl the Contractor, where requred, in obtaining
clearance through the Custonis of constructional Plant, materials and other things
required for the Works.
1. In matters of governlnental consents and c u s t o n ~ sclearance, the
Employer is under a specific obligation to assist the Contractor.
2. T h e two sub-clauses, however, provide no more than a lever, since
'will assist' carries every shade of meaning fro111 the most modest aid to
that of intense hard work. More seriously, although the obligation exists,
and in whatever degree it may be exercised, it provides no guarantee of
success or contractual remedy should the assistance fail to procure the
desired I-esult.
Clause 53(6)-Particular Conditions Affecting Plant, Temporary Works
and Materials
A n j ~ orlro. c o ~ r d i t i o ,affecl;ng
~~ Co,~strucrio~mlPlr~nt, Tenrporoui Worlis onrl
~nc!re~iffls,sliaN be set orit b7 Port II in rhe Clrrrrse 1aonbered53ns i1rcq3be ,zeces.soq,.
1. This clause is a n exatnple of one of the clauses of particular
application which are required to be completed in Part 11 of the
Conditions.
2. Since for tendering purposes the matters referred to in the clause
will be of great pricing significance, it is essential that they should have
been conlprehensively considered by the Engineer and appropriately
covered in the tender document.
3. Care nlust be taken by the Contractor to ensure that the conditions
of particular application are not altered in any way as between the
inforlnation given a t time of tender and that contained in the contract
document a t time of signature and acceptance. If a change has been
made, then its colnlnercial ilnplication should have been properly
considered by the Contractor
4. Matters such as the following should be considered for Part I1
coverage:
(a) Payment of o r relief from c ~ ~ s t o dues,
~ns
(b) Harbour dues,
(c) Wharfage, lauding and pilot dues,
(d) ArrangenlenLs for hired plant.
(e) Exclusion from clause 53 of transport fleets used in the country
generally,
(f) Paynlellt for materials off-site,
(g) Pay~nelltTor niaterials F.O.B.
 Plant, Terliporary rsorlis ar~clMaterials 21 1

Clause 5 L A p p r o v a l of Materials not Implied S T A N D A R D LETTERS A N D FORMS

The operation of Clause 53 hereof shall not be deemed to inlply any approval by
the Engineer of the materials or other matters referred to therein, nor shall it
prevent the rejection of any such materials at any time by the Engineer. Reference: EIDIC/48
To: T h e Employer

Dear Sir
1. T h e only basis for approval of materials is that, in accordance with
Clause 36(1), they must be of ihe respective kinds described in the
contract and in accordance with the Engineer's instructions.
2. The clause merely en~phasisesthe point that n o approval will be
We refer to oul- contract with you for the construction of
implied merely from the fact that ownership of the nlaterials has vested in
.............................. and confirtn our wish t o re-export the following
the hands of the Employer.
items of constructional plant imported for the pnrposes of the works:
3. Unlike Clause 54 of the ICE Conditions, 5th Edition, n o provision
exists to deal with payment for n~aterialsoff site. Should this be required, (a)
it can only be done through a condition of particular application (b)
appended possibly t o Clause 53. (c) ..................................................
(dl
In this context we would ask for your assistance in procuring government
consent to such re-export pursuant to Clause 53(4) of the Conditions and
request a n appointment with you t o discuss the n ~ a t t e rnlore fully.

Yours faithfully

Contractor Limited

Reference: FIDIC/49
To: T h e Employer

Dear Sir

Assistar~ceII,~I/I
CZIS~OI~IS
C/ecrrfrrlce

We refer Lo our contract with you for lhe col~struction of

For the purpose of the work i t will be necessary to import/we are presently
inlporting certain items of plantjpand] ~ n i ~ t e r i a and
l s we would ask for
your assistance in obtaining clearance through custo~ilsfor the itenis
concerned pursuant t o Clause 53(5) of the Conditions.
T o this end we request a n appointment with you t o discuss the matter C H A P T E R 21
more fully.

Yours faithfully
Measuring the Works

Contractor Limited

Clause 55-Quantities

Referetlce: FIDIC/E/75 The quantities set out in the Bill of Quantities are the estimated quantities of the
work, but they are not to be taken as the actual and correct quantities of thc
To: T h e Contractor works to be executed by Lhe Contractor in fillfilment of his obli~ationsunder the
Contract.
Dear Sir

Works/&1~1rerirrIsfi.0171
Corlse?rt to tile Rer77ovnl of'PI~r?lr/Terrlporarj~ rhe 1. The clai~seestablishes that the bill of quantities used in c o ~ ~ j u n c t i o n
Sire with the Inter~iationalConditions is a bill of estimated o r provisional
quantities and does not set o u t to be a firm representation of quantities
We refer to your request for permission to relnove ............... £1-om the required for the works as is the normal procedure under a building
site and confir~nour consent pursuant to Clause 53(1) of the Conditions. contract in the United Kingdom.
Although it is made clear that the quantities contained in the bill are
Yours faithfully estiniated quantities, this does not give the Engineer freedom to
incorporate grossly misleading quantities as a ~iieansof providiug a
hidden contingency sum in the contract or perhaps t o deflate the initial
Consultaiits Partnership tender price in order to get work started in a time of financial stringency.
T h e bill should set out to provide a fair representation of the quantity,
scope and character of the work t o be carried out and t o the extent that it
may for a variety of reasons fail to achieve that end, the Engineer may be
laying his client open to, at best, revaluation of the rates under Clause
52(2) o r 52(3) or, a t worst, a claim for financial loss arising from
n~isrepresentationif the Contract is made the subject of English law.
2. It should be noted under Clause 52(3) tliat the 10% limit o f variation
is brought into play by the net effect of variations and the quantities
being greater or less than those contained in the bill of quantilies.
3. Unlike the I C E Conditions, 5th Edition, there is no clause in the
Iliternational Conditions that specifically requires the correction of any
error in description in the bill.of quantities o r on~issiontherefrom.
Since it is further likely that the bill of quantities will not enjoy the
formal backing of any established method of measurement, the
Contractor will have to argue ally case for correction purely on its ow11
merits, facing from the Engineer the counter argument tliat the rates
contained in the bill of quantities are inclusive rates and should,
therefore, have allowed for any work not otl~erwiseidentified in the bill.
214 Cf~nprer21
4. It will not be possible for the Engineer to pursue this line of
al-gument, if the items tliat he argues should have been included in the
rates were not show11 o n the drawings in the first place.
Clause 5 G M e a s u r e m e n t of tile Works
The Engineer shall, except as other\vise stated, ascertain and delemine by
measurement the value in terms of the Contract of work done in accordance with
the Contract. He shall, when he requires any part or parts of the Works to he
measured, give notice to the Contractor's authorised agent or representative who
shall forthwith r~tlendor send a q~~alified agent to assist the Engineer or the
Engineer's Representative in making such measurement, and shall furnish all
particulars required by either of them. Should tlie Contractor not attend or
neglect or omit to send such agenl, then the measurement made by the Engineer
or approved by him shall he taken to he the measurement of the work. For the
purpose of measuring s11c11permanent work as is to be measured by records and
drawings, tlie Engineer's Representative shall prepare records and drawings
month by month of such work and the Contractor, as and when cillled upon to do
so in wriUng, shall, within fourteen days, attend to exa~nineand agree such
records and drawings with the Engineer's Representative and shall sign the same
when so agreed. If the Contractor does not so attend to examine and agree any
such recol-cls and drawings, they shall he taken to be correct. If, after exaniination
of S I I C ~records and drawings, the Contractor docs not agree the same or does not
sign tlie same as agreed, Lhey shall nevertheless be taken to be correct, unless the
Contractor shall, within fourteen days of such examination, lodge with the
Engineer's Representative, for decision by tlie Engineer, notice in writing of the
respects in which such records and drawings are claimed by him to be incorrect.
1. Although it is theoretically the Engineer's duty to ascertain and
determine the value of work carried out by measure~nent,the Contractor
obviously has an overwhelming need to be closely associated with that
~neasuren~ent. Often it will be found that it is the Engineer rather than the
Contractor who tends to neglect the measuring duties under tlie contract.
Whatever arrangements may be agreed upon in relation to a n individual
contract, it is of paramount iniportance to the Contractoi- that the
lileasurenielits be 100% u p to date, so avoiding a possible backlog of
lneasurement and contention.
2. Reference to the first sentence of the clause will show that the
Engineer's obligation is t o measure only that work done in accordance
with the contract. It is in this sentence that the Engineer's authority is
f o u ~ i d e dto delete work from nieasureiilent either for which proper
instri~ctionhas not been given, o r which has 1101 bee11 executed in
accordalice with the ternis of tlie specification and drawings.
3. It will be noted that, as in the case of the I C E Conditions, 5th
Edition, the Cotitractor is required t o send a qualified person to assist the
Measuring the Worlis 215
Engi~ieero r the Engitieer's Representative in taking measureIileiits and
that, should he neglect to send such a person, then the measurenients
unilaterally take11 by the E ~ l g i ~ i e ewill
r be deenled to be correct. The
clause certainly does not, however, give the Eugiileer the authol-ity to
lneasure the works unilaterally without having giveti the Contractol- an
opport~uiityt o be present and then to say that those liieasurenients as
taken are the correct m e a s u r e r ~ ~ e ~and
i t s to brook no query o n them.
4. The second half of the clause, dealing with the preparation of
records and record drawings, is unique t o the International Conditions.
The reqoirenients are eminently sensible when viewed in tlie contest of
overseas work, whel-e gl-eat difficulty may often be found in providing the .
resources for day-to-day measurement, and the need for valid records
therefore becomes doubly important.
5. At the start of the job the Contractor's surveyor should agree with
his counterpart actilig for the Engineer the nature of tlie records tliat it is
proposed t o make, the form in which they should be pi-esented, and the
people whose responsibility it will be to ensure that they are regularly
taken.
6. The clause lays down a timetable for the preparation of such
records, requiring that it be carried out r n o ~ i t hby month and that a
representative of the Co~ltractorshall exailline and sign such records for
correctness within fourteen days of being requested to d o so. After
signature, such records will provide the basis for measuremetit.
7. Should the Contractor's represelitative not be prepared t o sign the
records after his itispection and certify that they are correct, the
Contractor is specifically required t o give notice within fourteen days of
such examination detailing in what respect he claiills the records to be
incorrect. Should he fail to give such notice within the time laid down, his
right to objection is lost and the records will be deemed to be correct for
the purposes of nieasurement.
Notice of objection as to the accuracy of records is, therefore,
adlninistratively one of the inost important considerations for the
Contractor's surveyor under the contract.
8. T h e written decisiozi required as a result of the nolice would fall
within the scope of Clause 67 for a n 'Engineer's written decision'. In
practice the mere fact that the Contractor was prepared to take the
trouble to ask for a written decisioli would normally lead, if there were
any genuine doubt as to the validity of the records in his possession, to
the Engineer changing his decision without goilig to the length of tlie
foriilal dispute procedures.
 Mensr!ring r/ze 1fJo~ks 217
--

Clause 57-Method of Measurement S T A N D A R D LETTERS A N D F O R M S

The Wol-ks shiill be measured net, notwithstanding any general or local custom.
except where otherwise specifically described or prescribed in the Contract. Reference: FIDIC/SO
To: T h e Engineer's Representative

Dear Sir
1. Clause 57 of the International Conditions incorporates n o formal
method of meas"rement. In this respect it is unlike both the I C E
Records to be Prepared,for. ilferrsuret~rertrPrrr[,oses
Conditions, 4th and St11 Editions.
2. The sole guidance given by the contract is, therefore, that the works
Reference is made to the requirements for monthly records and drawings
shall be measured 'net'. This appears t o mean that the lneasuremelit will
to be prepared for nieasurelnent purposes pursuant t o Clause 56 of the
make no allowalice for waste, overlaps, bulking, compaction, working
Conditions.
space or any other allowance that might normally be required during the
execution of the works.
T o assist oul- eficient contract administration we would be pleased to
Such extra work and material required niust, therefore, be added as an
receive from you a n indication of the permanent works to be so recorded
enhance~nentto the rates for the 'net' work that will fall to be measured
together with details of the records and drawi~igsco~isiderednecessary,
in accordance with the clause.
any data you may require fro111 us and whether any assistance will be
3. T h e concluding words of the clense, 'except where otherwise
required in colnlection with their compilation.
specifically described o r prescribed in the contract' lnay operate in one of
two ways, or as a combination of the two:
Our Mr. ............... or such o t l ~ e rrepresentative as we may sob-
(a) by some other section of the contract, as fol- exalnple the sequently nominate in his place is authorised to attend, examine, agree
specification o r the bills of quantities or even possibly the and sign such records and drawings with the Engineer's Representative.
drawings, having introduced measurement rules specific t o indiv-
idual items of work; Yours faithfully
(b) by some other clause in another o r the contl-act documents, or
possibly by way of a clause of parlicular application, introclucillg a
published method of measurement-in tlie case of contracts
handled either by UI< C o ~ i s ~ ~ l t aor l ~the
l s local branches of a U K
Consultant, it is quite c o ~ i i n ~ oto~ ifind that either the S t a ~ ~ d a r d
Method of Measurement of Civil Engineering Quantities issued by Reference: FIDICj5l
the Institution of Civil Engineers 1953, or the Standard Method of To: T h e Engineer's Representative
Measurement of Civil Engineering Quantities issued in 1976 has
become incorporated. Dear Sir
4. Where a recoy~iised niethod of measurelnent has become in-
corporated, the proble~nsof the .Contractor's ~ n e a s u r i ~ isurveyor
g are
greatly eased. T h e method by which the works are then to be measured
We refer to the measurement records alid drawings for the month of
will have been authoritatively stated and he will no longer find liimself in
........................ covering ................................. [and confir111 our
a position in which every additional item of liieasurernent is likely t o be
agreement to the records and drawings as presented and signed by us].
treated by the Engineer as a 'try-on' and matter of dispute, however
genuine in reality tlie item may be.
[We regret that we are tnlable t o agree these records end drawings,
Lhem to be incorrect in that ....................................
co~~siderillg
[If after further con side ratio^^ you still believe the records a n d drawings C H A P T E R 22
as presented to be correct, we would ask that the matter be passed t o the
Engineer for his further col~sideration pursuant t o Clause 56 of the
Conditions.]
Provisional Sums and Nominated
Sub-Contractors
Yours faithfully

Colltvactor Limited Clause 58(l)-Provisional Sun1

'Provisional Sum' means a sum included in the C o n t ~ l c and
t so designated in the
Bill of Quantities for the execution of work or the supply of goods, materials, or
services, or for contingencies, which sun1 nlay be used, in wllole or in part, or not
Reference: FIDIC/E/76 at all, at the direction and discretion of the Engineer. The Contract Price shall
To: T h e Contractor include only such amounts in respect of the work, supply or services to which
such Provisional SLIIIISrelate as the Engineer shall approve or determine in
Dear Sil accordance with this Clause.

1. This definitio~l of 'provisional sum' would appear to be a

We hereby give notice pursuant to Clause 56 of the C o l ~ d i t i o ~ of l s our
intellti011 t o take n ~ e a s u r e m e t ~ of
t s that part of the works comprising
You are invited to send your representative to assist in the taking of such
l ~ ~ e a s u r e l n e ~and
l t s he should arrauge a time ~nutuallyconvenietlt with
our Mr. .................. for this purpose.
Yours faithfully
Consultlu~tsPartnership
retrogressive step into added confusion. It now covers any SUIII of money
inserted it] the Cotltract for whatever purpose where work was not, at the
time the contract documents were prepared, treated as ~ l ~ e a s u r ework.d
2. The one thing that a provisiol~alSLIIII c a l ~ l ~ be
o t used for is to place
within the contract a sum of 111oney which the Engineer had never
intended t o use under the terms of the contract and which related to work
to be carried out by an illdependellt contractor. If for sollle budgetary
consideratioil the Engineer must needs d o this, there is of course nothing
to stop hi111 incorporating such sums, providing that in the tender
document he specifically stipulates that they will be o ~ l ~ i t t eind total and
only appear for the purposes of, say, gr:lnt approval. Withoot such a
~ l o t a t i othe
~ ~ sum concerned would obviously misrepresent the antici-
pated scope of the work to the Cotltractor.
3. It is a col~siderablepity that the Corlditions do not use the clear
defi~lilio~l of 'provisional sums' and 'prime cost items' provided by
Clauses 58(1) and (2) of the I C E Conditions, 5th Edition.

Clause 58(2)-Use of Provisior~alSums

in respect of every l'rovisional Sum the Engineer shall have power to order:
(a) Work to be executed, including goods, materials or services to he supplied
by the Contractor. The Contract Price shall include the value of such
work executed or such goods, materials or services supplied determined in
accordance with Clause 52 hereof.
219
cc-0

(b) Work to be executed or goods, materials or services to be supplied by a
nominated Sub-contractor as hereinafter defined. The sum to be paid to
the Contractor therefor shall be determined and paid in accordance with
Clause 59(4) hereof.
(c) Goods and materials to be purchased by the Contractor. The sum to be
paid to the Contractor therefor shall be determined and paid in
accordance with Clause 59(4) hereof.
1. Provisiotlal sunls under the terms of the Contract may be used to
cover:
(a) Measured work valued a t bill rates, if the same a r e applicable, and
if not then at suitable rates o r prices agreed between the Engineer
and the Contractor;
(b) w o r k c a r r i e d out by a notllinated sub-contractor a u d thereafter
subject to the various additions stipulated under Clause 59(4); and
(c) T h e provision of goods a n d materials, which although not actually
designated as such by the contract, would appear to fall within the
category of what under the J C T Fornls would be called a
~ ~ o n l i n a t esupplier.
d Again provision should be made for the
various additions t o be made t o the sum involved in accordance
with Clause 59(4).
2. I n accordance with sub-clause (3) of this clause, the Contractor
when required by the Engineer shall produce all quotations, invoices.
vouchers and accounts or receipts in connectio~lwith expenditure made
in respect of provisional sums.
Clause 59(1)-Nominated Sub-Contractors
All specialists, merchants, tradesmen and others executing any work o r supplying
any goods, n~aterialsor services for wbich Provisional Sums are included in the
Contract, who may have been or be nominated or selected or approved by the
Employer or the Engineer, and all persons to whom by virtue of the provisions of
the Contract the Col~tractoris reqnired,to sub-let any work shall, in the execution
of such work or the supply of such goods, materials, or services, be deemed to be
sub-contractors etnployed by the Contractor and are referred to in this Contract
as 'nominated Sub-Contractors'.
1. T h e Clause appears to recoguise two distinct types of nolnit~ated
sub-contractor that could arise under the terms of the contracl:
Provisionul srirns arid Nonrinared Sub-confraclors 22 1
(a) a firm nominated or selected a n d approved by the Employer or the
Engineer to carry out work o r supply goods for which a
provisional sun1 is included in the contract, aud
(b) any other person t o whom by virtue of any of the other provisions
of the contract the Contractor is required to sub-let any work.
2. By this latter definition, a person o r con~patly carrying out
measured work contained in the contract bills that was specified to be
carried out by a named firtn, o r by any one of a list of named firms,
would also be a tlomillated sub-contractor.
3. D u e t o the inclusion of the second non~inatedcategory, the range of
persons against whom the Contractor could object under Clause 59(2)
below is considerably increased.
Clause 59(2)-Objection to Nomination
The Contractor shall not be required by the Employer or the Engineer or be
deemed to be under any obligation to employ any nominated Sub-contractor
against whom the Contractor may raise reasonable objection, or who shall
decline to enter into a sub-contract with the Contractor containing provisions:
(a) that in respect of the work, goods, materials or services the subject of the
sub-contract, the nominated Sub-Conluaclor will undertake lowards the
Contractor the like obligations and liabilities as ;Ire imposed on the
Contractor towards the Employer by the terms of the Contract and will
save harn~lessand indemnify the Contractor from and against the sanle
and from all claims, proceedings, damages, costs, charges and expenses
whatsoever arising out of or in connection therewith, or arising out of or
in connection with any failure to perfornl such obligations or to fi~lfilsuch
liabilities, and
(b) that the nominated Sub-contractor will save harmless and indemnify the
Contractor from and against any negligence by the nominated Sub-
Contractor, his agents, workmen and servants and from and against any
misuse by him or them of any Constr~~ctionnl Plant or Temporary Works
provided by the Contractor for the purposes of the Contract and from all
claitns as aforesaid.
1. The right of objection to the nomination of a sub-contractor is
featured in both the I C E Conditions, 4th and 5th Editions and the earlier
2nd Edition of the Internatiollal Conditions.
T h e right of tlie Contractor Lo object l o the no~ninationof tlie sub-
cotltractor is a crucial one that ought properly to be more appreciated by
the general Contractor t h a n is usually the case.
Very commonly the adequate a t ~ de c o ~ ~ o m fulfillment
ic oT the maill
contract works will depend o n the competent programmed performance
222 C/ICIJIIEY22
of the various specialist sub-contractors. If the ~ n a i nCo~itractorfinds
himself encu~nberedwith a group of managerially inept and financially
insecure sub-contractors, he will have little chance of perfornling his
overall contract adequately and profitably.
2. Regrettably postulation of the grounds for reasonable objection will
ahnost inevitably give rise to a degree of acrimony.
Where the potential sub-contractor tnerely refuses to enter into a sub-
contract that would contain the provisions itemised under (a) and (b), the
matter will be relatively straightforward. I n practice, however, it is
unlikely that these would be the grounds for objection and it is rather
more likely that one or more of the following objectiolis will be the cause
for concern:
(a) that the sub-contractor is believed to be financially insecure,
(b) that previous experience of working with the sub-contractor on
comparable works has shown him t o be incapable of handling
work in the quantity and of the complexity called for in the
present scheme,
(c) that his availability of skilled labour will be inadequate for the
scheme,
(d) that he has insufficient managerial capability for the works
concerned, or
(e) that lie will be unable to comply with the require~nentso r t h e tnain
Contract programme.
I n this latter respect only it may be possible to argue that the objection
would fall within categories (a) and (b) of Sub-clause (2).
Any remarks of the nature outlined, which may of necessity have to be
made in correspondence with the Engineer, must obviously be well
researched and properly founded with background evidence that the
Contractor would be prepared to produce. However, bearing in mind the
consequences to the Contractor's own business if he is landed with a n
inadequately performing sub-contractor, it would not pay him to be too
squeamish.
It must be appreciated that once the sub-contractor has been
appointed, he is then the Contractor's sole responsibility and any
possibility of a solution t o the proble~nwill have been lost when he failed
to object to the nominatio~i.This would apply even if the nominated sub-
contractor were to go bankrupt. T h e contractor would then have to find
a n alternative sub-contractor t o carry out the work, possibly at a higher
price, with the diffez-eucebetween the original and new price having to be
met by tlie Contractor.
3. I t should also be appreciated that whilst no reference is made in the
C o ~ i d i t i o ~tios a sub-contractor's right to object t o be being nominated t o
p ~ ~ - ~ ~ -
a 1nai11Contractor, embarrassing though this may be, such a right equally
exists. At the stage when the main Contractor is required to place a
nomination with the sub-contractor n o contract exists between the iwo
parties and therefore the sub-contractor can tnerely refuse to enter into a
contract with the main Contractor, if he so wishes.
4. Unfortunately, unlike the I C E Conditions, 5th Edition, n o provi-
sion is made to govern the Engineer's actions if an objection is validly
lodged by the Contractor.
The alternatives provided by the I C E Conditions can, however,
provide useful guidance on the steps that could be taken. They are to:
(a) no~ninatea n alternative sub-contractor to wliom the Contractor
would not object,
(b) omit the work wliich is the subject of the n o n l i ~ ~ a t i oSrolii
n the
contract and have it carried out by an independent conlractor,
(c) subject to the Employer's consent, indemnify the Contractor
against any liability he might experience through entering into a
sub-contract where tlie sub-contractor would not accept the ternis
co~itainedin sub-clause @)(a) and (b), or
(d) direct the Contractor to carry out the work or arrange for the
supply of the goods liimself.
5. In all these matters the Contractor should heal- in mind the
provisions of Clause 6(3) and (4). He needs to have given written notice
to the Engineer in respect of the various s lo mi nations required to protect
himself should nominatio~lbe delayed and the works thereby he delayed
andlor effected with additional cost to the Contractor.
Clause 59(3)-Design Requiremeuts to be Stated
IF in connection with any Provisional Sum the services to be provided inchtde any
matter of design or specification of any part of the Permanent Works or of any
ecluipment 01- plant to be incorporated therein, such requirements shall be
expressly stated in the Contract and shall be included in any nominated Sub-
Coiilracl. The non~inatedSub-Coiitracl ~ 1 ~ specify
~ 1 1 that the nominated Sub-
Contractor providing such services will save harmless and indemnify the
Contractor from and against the same and fi-omall claims, proceedings, damages,
costs, charges and expenses whatsoever arising out of or in connection with any
failure to perform soch obligadons or lo fulfil such liabilities.
1. This sub-clause introduces an entirely new provision into the
International Conditions and is allied to the provision now contained in
the I C E Conditions, 5th Edition. The sub-clause recognises the common
difficulty where the specialist design service of a particular firm nlay be

needed and where resort nlay already have been made t o them by the
Engineer prior to Tender in connection with his own overall design.
The provision of specialist items of plant involving a considerable
amount of sub-contractor design on a major sewage works springs
readilyto mind in this context.
2. Since under Clause 8(2) the Contractor is not responsible for the
design of any of the permanent works except as may be expressly
provided in the Contract: and since the main Contractor is liable for the
operations of his sub-contractors (including nonlinated sub-contractors),
if the sub-contractor is t o be respot~siblefor design, such liability tllust be
expressly stated as required by this sub-clause.
3. It is to be noted that the sub-contractor when providing design is to
indemnify the Contractor against any liability arising out of the provision
of those services. Presumably if such indemnity could not be obtained it
would be good ground for the Contractor to object to the nomination
under sub-clause 59(2).
4. I n practice any prndent Contractor will need to regard the presence
of a design element in a ~lonlinated sub-contract with considerable
circun~spection.
It could well be that by accepting the nomination of a specialist to
design some item to a perfor~nancecriterion, if subsequently the specialist
failed t o meet that criterion, the Contractor could find himself liable for
some defect inherent in the design-having accepted the consequences
and the cost associated with any failure. If the particular component
involved was fundamental to the satisfactory performance of the works,
the liability that could fall on the Co~ltractorcould be very substantial.
It is most in~portantthat the Contractor receives an effective warranty
as to the design from his sub-contractor. The Contractor should always
ensure that he has sight of a valid design indemnity policy that would
cover the sub-contractor to the full extent of any potential liability that
might arise frotn failure in the sub-contractor-designed works.
Clause 59(4)-Payment in respect of Work Carried Out By Nominated
Sub-contractors
For all work executed or goods, materials or services supplied by any nominated
Sub-Contractor, there shall be included in the Contract Price:
(a) the actual price paid or due to be piid by the Contractor, on the direction
of the Engineer, and in accordance with the Sub-Contract;
(h) the sum, if any, entered in the Bill of Quantities for labour supplied by the
Contractor in co~n~ection therewith, or if ordered by the Engineer
pursuant to Clause 58(2)(b) hereof, as may be determined in accordance
with Clause 52 hereof;
Proei.riona1 S L I I ~ Sa i d No~?zii~rtterl
Sllb-cot~trrrcfors 225
(c) in respect of all other chai-ges and profit, a sum being a percentage rate of
the actual price paid or due to be paid calculated, where provision has
been made in the Bill of Quantities f o a~rate to be set against the relevant
Provisional Sum, at the rate inserted by the Contractor against that item
or, where no such provision has been made, at the rate inserted by the
Contractor in the Appendix to the Tender and repented where provision
for such is made in a special iten1 provided in the Bill of Quantities for
such purpose.
1. This sub-claose deals with the monies due to be paid t o the maill
Contractor in respect of the nominated sub-contract and does not
concern itselr with the paynlent position as between the Contractor and
the sub-contractor.
2. The price instructed to be paid to the sub-contractor on the
direction of the Engineer will not take account of any monies that the
1nai11Contractor nlay have t o pay the sub-contractor as a result of contra
charges or breach of contract by the main Contractor, where the breach
is not due to sonie act of error or o~nissionon the part of the E~nployeror
the Engineer.
For example, there might be a nonlinated sub-contract for structural
steelwork, which in terms of the sub-contract had been agreed by the
Engineer at f100,000, but which, due to overrltn caused by the main
Contractor, entitled the sub-contractor to claim for additional increased
costs outside the period of firm price together with additional
preliminaries in the period of overrun of, say, f10,000. I n that case,
although the Sub-Contractor might legitin~ately look to the main
Contractor for the f10,000, the main Contractor could not in his turn
recover that money fi-om the Employer.
3. It will be noted that there is no provision in the International
Conditions that recognises a cash discount provision in respect of
nominated sub-contracts.
4. The nlonies included in the niain contract final account in respect of
the works of the nominated sub-contractor will consist of:
(a) the actual price to be paid t o the nominated sub-contractor strictly
in accordance with the terms o r the sub-contract;
(b) the amount to be paid in I-espect of builders' work in connection
with, and any attendance on the nominated sub-contractor which
in the contract docun1ents may have been in the fortn of, items of
~neasured work, o r covered by lump sums, o r possibly a
percentage addition as required under sub-clause 59(4)(b); and
(c) a percentage addition for charges and profit in accordance with
sub-clause 59(4)(c) a t the rate inserted in the contract bills, or if no
226 C/znp~er22
such rate has been specifically inserted, the11 at the percentage rate
set down in the Appendix t o the Form of Tender.
Clause 59(5)-Payment to Nominated Sub-Contractor
Beforeissuing, under Clause 60 hereof, any certificate, which incli~des any
payment in respect of work.done or goods, materials or services supplied by any
nominated Sub-contractor, the Engineer slrall be entitled to demand fi-om the
Contractor reasonable proof that all payments, less retentions, included in
previous certificates in respect oC the work or goods, materials or services of such
nominated Sub-contractor have been paid or discharged by the Contractor, in
defanlt whereof i~nlessthe Contractor shall:
(a) inform the Engineer that he had reasonable cause for withholding or
refusing to make such payments and
(b) produce to the Engineer reasonable proof that 11e has so informed such
non~inatedSub-contractor in writing,
the Enlployer shall be entitled to pay to such nominated Sub-contractor direct,
upon the certificale of the Engineer, all payments, less retentions, provided for in
the Sub-Contract, which the Contractor has failed to make to such non~inated
Sub-contractor and to deduct by way of set-off the amount so paid by the
Employer from any sums due or wliich may become doe fro111 the En~ployerto
the Contractor.
Provided always that. where the Engineer bas certified and the Employer has
paid direct 21s aforesaid, the Engineer shall in issuing any fi~rthercertificale in
favour of the Contraclor deduct from the amount thereof the amount so paid,
direct as aforesaid, but shall not withl~oldor delay the issue of the certificate itself
when due to be issued under the terms of the Contract.
1. A provision of this sort has featured in the ICE Conditions, 4th and
5111 Eclitions and the previous 2nd Edition of the International F o r ~ n .
Whilst the provision is readily understandable, it still behoves the
Engineer to exercise use of it with great discretion. As worded it follows
that payment must already have been made l o the Contractor so that
direct paylnelit to the nolllitlated Sub-contractor is llecessarily a double
paytl~ent-necessibling a suficiency of monies owing to the Cotltractor
to ensore an a d e q i ~ a t ecover in the set-off.
2. Before the issue of any certificate under Clause 60 which includes
payment t o a ~ ~ o t n i ~ l a tsub-contractor,
ed the Engineer is elltitled to
receive reasonable proof from the Contractor that all payments under
previous certificates have been duly made. T o achieve this require~llentit
is essential that the main Contractor has built into his administrative
system s o l i ~ emeans of ensuring that the evidence of payment is readily
available.
Provisioiznl s~lrilsr n ~ dN o n ~ i ~ ~ n S~rb-corirr.nc~or.s
lerl 227
3. As this sub-clause is not a tnandatory requirement under which the
Engineer nlust check the payment position of nominated sub-contractors.
it is u ~ ~ l i k e lthat
y any action would be taken ntlder the clause until a
complaint was received from a non~inatedsub-contractor.
4. Where the main Contractor considers that he Ilas good reason for
making a deduction from the monies certified, he would be well advised
to treat as a 'condition precendent' t o deduction the requirement that he
i n f o r n the Engineer accordingly and procluce t o the Engineer reasonable
proof that he has i ~ l f o r ~ n ethe
d nominated sub-contractor.
Clause 59(6)-Assigno~ent of Nominated Sub-Contractors' Guarantees
In the event of a nominated Sub-Contractor, as hereinbefore delined, having
underlaken towards the Contractor in resoect of the work executed. or the zoods.
Period of Maintenance, assign to the Employer, ar the Employer's request and
cost, the benefit of such obligation for the unexpired duration thereof
1. Certain of the works carried out by nominated sob-contractors may
carry with them guarantees as t o perfortnance that are valid for a longer
period than the period of maintenance established under the main
COLltract.
2. Since the privity of contract existing under the ternis of a nominated
sub-contract will be between the maill Contractor and the sub-
contractor, if the Employer is to enjoy the benefit of any extended period
of m a i l ~ t e n a ~ ~
inc e[respect of the specialist works, arrangements must be
made to assign that benefit f1-on1 the r11ai11 Contractor to the E~nployer
for any period in excess of the normal lnain contracl mainterr;~nceperiod.
3. This lype of extended g u a r a ~ ~ t emay e exisl in [respect of specialist
electl-ical and mecl~nnicalservices plant, nsp11;1lt and Celt roofing, certain
flooring lnaterials and so on.
4. It is likely that the selection of a p a r t i c ~ ~ l anon~illated
r sub-
contractor by the Employer's Engineer will have been inlluenced by the
lengtl~of the period of guaralltee olrered. T h e arrangement 1;kicl d o w ~ in ~
the sub-clause under which, a t the E~nployer'srequest and cost, the
benefit call be transferred to the Employer is thus an important
consideration.
STANDARD LETTERS AND FORMS Your instructions are therefore sought

Yours faithfully
Reference: FIDIC/52
To: The Engineer
Contractor Limited
Dear Sir

Reference: FIDIC/53
To: The En,'oineer
We refer to your i~lstructiotl dated ....................... nonliilatitlg
..................... .. ....... for .................................. and regret Dear Sir
to inform you of our objection to the nomination pursuant to Clause
59(2) of the Conditions on the ground that:
[( ) The i~orninatedfirm, in respect of the work, goods, materials or
services which are the subject of the sub-contract, will not We refer to your instructions dated .............................. nominating
undertake towards the Contractor the like obligatio~~s and ........................... for ...
liabilities as are inlposed on the Contractor towards the Employer
by the terms of the contract and will not save harmless and Examination of the proposed sub-contract documents indicates matters
indelnnify the Contractor from and against the same and from all of design and specification within the sub-contract/that were not
claims, proceedings, damages, costs, charges and expenses what- expressly stated in the main Contract prfrsnant to Clause 59(3) of the
soever arising out of or in connection therewith, or arising out of Condilions/[and] wl~ich, althougl~specifically stated under the lnait~
or in connection with any failure to perforin such obligations or Contract pursuant to Clause 59(3) of the Conditions, are not the subject
fulfill such liabilities.] of indemnity as to the adequacy of the design in the documel~tson which
[( ) The uo~ninated sub-contractor will not save har~nless and we are required to sub-contract as between the sub-contractor and
indemnify the Contractor from and against any negligence by the ourselves.
nominated sub-contractor, his agents, workmen and servants and
from and against any misuse by him or them of any constructional We must therefore either receive from you a statement from the
plant or temporary works provided by the Contractor for the Enlployer iilde~nnifyingus against any liability for the adequacy of the
purposes of the contract and from all claims as aforesaid.] sub-contract design or object to the nomination under Clause 59(2) of the
[( ) The no~ilinated sub-contractor is believed to be financially Conditions.
insecure.]
[( ) The nonlinated firm has, in the previous experience of this Yours faithfully
company, shown itself on comparable work to be incapable of
handling work in the quantity and of the conlplexity called for in
the present scheme.] Contractor Limited
[( ) The nominated sub-contractor does not have an availability of
skilled labol~radequate for the scheme.]
[( ) The nominated sub-contractor has insufficient managerial capabi- Reference: FIDIC/54
lities for the work concerned.] To: The Engineer
[( ) The nominated sub-conti-actor is unable to colnply with the
requirements of the main contract programn~e.] Dear Sir
S~1Lrr7issro1r
of Proof of Pnyr,7enf to 0 Nor7rirrnterl Sub-Cor~trncror Reference: IIIDICIEI77
To: The Co~itracto~
We refer to your request for proof of pay~lle~lt to nominated sub-
contractors pursuant to Clause 59(5) of ihe Conditions and now enclose Dear Sir
[ .............................................................................. ] ill respect
of the undermentioned fir~n(s): Proofof Pnynlerzr ro N o ~ r r i ~ r ~Szrb-Corrb.actor
rrrl

(0 We refer to the nominated sub-contract for .................. being carried

(ii) ........................................................................... out by .................. and request proof of pay~nenlin respect of the
(iii) notl lies incloded for them under our certificate No. .................. dated
(i-4 ............................
Yours faithfully Such proof shall be in the form of ..................... and is requested
pursuant to Clause 59(5) of the Conditions.
Contractor Limited Yours faithfully

Reference: FIDICj55
To: The Engineer

Dear Sir

S~rbrrrissiorrof Reosorzs for Wiflrl7olrli,rg Pr~jorzerrr lo u Nor7rirrared Sub-

Conrrncror

We refer to our co~ltractualobligation to inform the Engineer of any

reasonable cause for withholding payment to a nominated sub-contractor
pursuant to Clause 59(5)(a) of the Conditio~isand now give written
notice that we have withheld ............... fro111 ................... . ............
.................................... due to ...............................................
against Certificate No. ..........

We enclose a copy of our letter iated .................................... so

i~lrorlningthe nolninatecl sub-contractor concerned.

Yours faithfully

Contractor Limited

C H A P T E R 23
Certzjicates and Payments
Clause 60-Payment Arrangements
(I) Unless otherwise provided, payments shall be made at monthly intervals in
accordance with the conditions set out in Part I1 in the Clause numbered GO.
(2) PVIiere ndvr~,rcesrrre to be iiiride b.y the Ei~~ployer lo t/,e Corirroctor in respec1
of Coirsli~rrctio,mlPlarrt o,irl iimteririls, llle co?rtlitio,?sofpri?,,le,ii ojrd repr!.Iir7le,lr
sllnN be rrs secr out in P f ~IIt hi the Clnrrse rzronbered60.
(3) If the execution of the Works shall necessitate the in~portationof materials,
plant or equipment from a country other than that in which the Works are being
executed, or if the Works or any part thereof are to be executed by labour
imported from any other country, or if any other circumstances shall render it
necessary or desirable, a proportion of the payment to be made under the
Contract shall be. made in the appropriate foreign currencies and in accordance
with the provisions of Clause 72 hereof. The conditions under which such
paylnents are to be n~adeshall be as set out in Part I1 in the Clause numbered GO.
1. Examination of this clause shows that there is n o standard payment
clause under the International Conditions of Contract. I n every contract,
therefore, all relevant matters associated with payment must be laid down
in Part I1 of the Conditions by the Engineer or Einployer prior to tender,
or be as qualified and amended by negotiation between Contractor and
Employer prior to award of contract.
2. T o assist in the task of checking, drafting and negotiating p a y ~ l l e ~ l t
conditions under the I ~ l t e r n a t i o l ~ aConditions,
l the following aide-
lnemoire checklist sets down the various matters for consideration.
(a) Acl,,anrepc~yr?ienlsstipulating:
(i) a n ~ o u n tto be paid expressedgs a percentage of the tender sum o r
as a n agreed lump sum,
(ii) when payment is t o be made,
(iii) where payment is t o be made and in what currency,
(iv) manner in which repayment is to be made expressed as a
percentage of the advance to be repaid each month against a
stipulated number of n ~ o ~ l t h lpayments
y (e.g. perhaps o n a f1111.
advance payment 10% of the advance per month against nlonthly
payments 4-13 inclusive-the Contractor will wish t o delay
232
repayments for as long as possible to assist in achieving positive
cash flow and t l ~ i swill obviously be a n important factor in
negotiation).
It lnay be preferable to negotiate for advance payment t~sillgthe term
'n~obilisation'. T h e object should be to try t o have inserted into the
contract bills o r the summary thereof a specific item for mobilisation,
theoretically earnlarked to be expended by the Contractor against the
initial cost incurred by him in setting u p the job in the territory
concerned. By this means the early paynlent will not have t o be
progressively repaid through the job since it will not have featured in the
general level of pricing associated with the measured work rates. Payment
should be negotiated to be made either as a stipulated single lump-sum
payment o n award of contract o r alternatively in proportions over the
first two o r three monthly payments.
Great care must be taken to avoid confusion being created in reported
levels of operating perforn?ance produced by mobilisation payments that
are in fact substalltially in advance of actual contract expenditure.
(b) Requirement for strbr~~issior~ b y the Coritrarlor to the Erigirreer ojcr
n~orithlypujo~ientrrpplicafiori incorporating the following:
(i) details of advance paynlents and repayments,
(ii) the esti~natedcontract valoe of the pernlanent works executed up
to the end o r the month,
(iii) a list of any goods o r materials delivered to the site Sol-, but not
yet incorporated in, the permanent works, a t their invoiced
value,
(iv) materials off site formally vested in the ownership of the
Employer and similarly valued to those under (iii),
(v) materials FOB subject to special contract arrangements,
(vi) cost of temporary works a n d plant where separately identified,
and the estimated anlounts to which the Contractor considers
himself entitled in connection with all other matters Sor which
provision is made under the contract, particularly in respect of
his a d d i t i o ~ ~costs
a l as registered lrnder Clause 52(5),
(vii) rerot~ercrble iricrenserl costs of labour, n~aterialsor any olher
matters affecting the cost of the execution of the works as set out
in Part I1 in the clause numbered 70,
(viii) additional costs incurred by the Contractor pilrsuant to
legislative changes occurring after a date 30 days prior to the
latest date for sublllission of tenders pursuant to Clause 70(2),
(ix) re-imbursement of any Loss o r damage arising £1-om the
imposition of currency restrictions and/or transfer of currency
restrictions in relati011 t o the c u r r e ~ ~ co yr currencies in which the

Contract price is to be paid, made by the government or
authorised agency of the government of the country in whicli the
works are carried out, after a date 30 days before submission of
tenders, pursuant lo Clause 71,
(x) amounts due to nominated sub-contractors,
(xi) interest on overdue payments.
(c) Any stipulation as to the rniriirrrrrn~ a,rloriiir of ctii Erxirleer's
rerf(ficate issued for pa'y~nent purposes. T h e Contractor should always
resist a minimum certificate provision, as it could seriously and adversely
effect his cash flow.
(d) Statement of the period l~dtlrirri i ~ l ~ i ctile
l ~ Errrl~loyeris reqtrired ro
rimkepqnr~errrill llorroririrzg the Erzgineer's ccrf(ficore.
Ideally the period defined should be the period between the submission
of the Contractor's monthly statement and payment being made rather
than the period between the issue of the Engineer's certificate and
payment being made.
If the recommended procedure is not adopted and the Engineer is very
tardy in issuing his certificates, while the Employer may honour the
payment ternls defined by the issue of the certificate, an inordinate time
may nonetheless elapse between a payment application being ~ n a d eby the
Contractor and cash actually being received, with no easy nleans
available to the Contractor to expedite payment.
T h e ideal worcling for the nionthly pay~nentclause would be after the
style of that set out below:
'Within fourteen days of the date of delivery to the Engineer or the Engineel-'s
Repz.esenlative of the Contractor's monthly statement, the Engineer or the
Engineer's Representalive shall certify and the Employer shall pay to the
Contractor the amount so certified after deducting any previous paymmts on
account and the amounts of any retention nlonies properly withheld under the
ternls of the Contl.act.
(e) Definition of the mrrorulr qf' rlre reter~rioirr~rorre),that can be held
prior to the issue of a certificllte of substantial completion. In general the
amounts o r retention nloney held 011 overseas contracts tend to be higher
than those encountered in the U K and are only ameliorated by the
c u s t o ~ nof advance contract payments.
Rather than the commonly stipulated 10% or IS%, the Contractor
should aim for a situation in accordance with the suggested retention
clause set out below:
'The retention to be made pursuant to this Clause will be a sum equal to 5% of the
amount due to the Contractor until a reserve shall have been accu~nulatedin the
hands of the Employer up to a limit of 3% of the Tender total.'
(r) Arrangements for porfirrl release o/ rerer~tiorron the issue o r the
certificate of substantial completion.
Certificates arzd Paj~n7e11t.s 235
T h e Contractor should endeavour to ensure that not less than 50% of
the limit of retention being held at substa~ltialcompletion is released on
the issue of the appropriate completion certificate. Where certificates o f
substantial sectional conipletio~lhave been issued in respect of defined
parts of the works or parts of the works taken into beneficial occupation
by the Employer, an earlier proportional reduction should have been
made prior t o the issue of the certificate of substantial conlpletion of the
whole o f the works.
(g) Arrangements for the releu,se of tile residue o/rlre rrrenrio~rnrorries
to be nlade within a stipulated period of days after the expiration of the
period of maintenance.
(h) Provision for iilrerest or1 oiierdlre pojorrerrrs related both to the
failure o f the Engineer to certify or the Employer t o pay using the
soggested for111of words set out below:
'In the event of failure by the Engineer to certify or the Employer to nlaite
payment in accordance wit11 the terms of tlie Contract, the Employer shall pay lo
the Contractor interest upon any payment overdue therettnder at a rate per
annum equivalent to 2% plus the ~ninimuinrate at which a recogniscd National
Ua~lkin the country of work execution will lend. In the event of any variation in
the said Bank rate being announced whilst such payment remains overdue, the
interest payable to the Contractor for the period that such payment renlains
overdoe shall be correspondingly varied from the date of such variation.'
The provision of interest on overdue paylnents is an inlporlant
consideration in overseas work, as one of the lnajor problems often faced
by the Contractor is that of obtaining payment for the work carried out.
T h e enornlity of this proble~nlias been recognised by the drafters of
the Conditions by a termination clause (69) having been included for
the benefit of the Contractor on payment default by the Employer. This is
a feature that is not found in the I C E Conditions, 4th or 5th Editions.
(i) Arrangements for paja,lerrrfor rr~rrterinlsrrr rirtle ofsl~ippbrg against
evidence provided by shipping documents (this matter should always be
discussed with a purchasing specialist to ensure that arrangements made
are practical).
(j)Provision to be made that will allow the Engineer ro orr~i<fi.orilcrrrjJ
certificore rhe i~rrl~reof' rrrrj, iil.orX- rlorie, goods or rtlrrteria1.s s~r/q)lirrlor
services rendered ivirlr lehiclr Ire rrrrqJ/(~rthe rirrre behrg b~ clis.sarisfied and
for that porpose or for any other reason which to him may seen1 proper
by any certificate to delete, correct or modify any surn previously certified
by him.
This provision must, however, be qualified in such a way that the
Engineer shall not reduce in any interim certificate any sum previously
certified by hill1 in respect of work done, or goods or ~naterialssupplied
by a norninated sub-contractor where tlie Contractor has already paid or
is bound to pay that sum to the nominated sub-contractor.
 (k) Mnnrler in ivllicl~ pn~v17ents are to be 1?7~1de,with provisions
covering:
(i) place a t which paytnent is t o be made,
proportions of the various currencies in which payment is to be
(ii)
made,
details of exchange rates to be applied a s between the contract
(iii)
currency 'used to define the tender and contract sum and the
currencies in which the various payment proportio~lsare t o be
made,
(iv) any arrangenient that may be required to cover variations in
exchange rates arising fiom the norlnal market forces of
international trade, as distinct f r o n ~sonle legislative move of the
government o r authorised agency of the government of the
country in which the works a r e being executed effecting exchange
rates pursuant t o Clause 71(3).
As it is particularly desirable that all financial matters should be settled a s
quickly as possible on a n international contract, due to the need t o
disperse staff, a n additional clause of particular applicatio~lshould be
inserted to provide contractual hacking to the speedy completion of the
final account.
Wording in tlie form set o u t below is suggested:
'Not later than three months after the issue of the certificate of substantial
completion for the whole of the Works pursuant to Clause 48, the Contractor
shall submit to the Engineer a statement of Final Account (other than for any
work for which payment may be due under Clauses 49 and 50 or any further
supplementary work ordered after the issue of the certificate of substantial
completion with the Contractor's consent pursuant to Clause 5 I) with supporting
doculnents showing in detail the value of the work in accordance with the
Contract together with all further suins which the Contractor considers to be due
to him under the Contract. Within three months after the receipt of this Final
~ ~
Account and of all information reasonably required for its verification the
Engineer shall issue a penultimate certificate stating:
(a) the amount which in his opinion is due under the Contract, and (after
giving credit to the Employer for all amounts previously paid by the
Employer and for all sums to wllich the Employer is entitled under the
Contract)
(b) the balance, if any, due from the Employer to the Contractor or from the
Contractor to the Employer as the case may be. Such balance shall,
subject to Clause 47 hereof, be paid to or by the Contractor as the case
may require within 28 days of the cerlificate subject to any retention
withheld in accordance with the Contract.
Not later than one month after the issue of the ~naintenancecertificate the
Conlractor shall submit to the Engineer a supplenlentary statement of account
detailing the value of all additional work done pursuant to Clauses 49 and 50 and
additional variation work done and ordered after the issue of the certificate of
substantial completion witli the Contractor's consent. and the balance of anv
amounts thos o;tstanding together with tlie residue of any retention money shail
be paid to the Contractor within 28 days of the issue of the Engineer's Final
Certificate.'
Clause 61-Final Approval of tlre Works
N.; ccrlllicarc ,111cr tl,.rn 1 1 \ ~~ ; C I ~ I I C I I ; ('~~ttt:i.tt:
~~I~~ rL, i n CI:iulc 67
r~.ic~11..1
Il:rc.>f ih.111hc dcctltcd to idnitirulc , ~ p p ~ o \, ; i,
li
ille \V,,rh>.
1. This s i ~ n p l eclause adds emphasis t o the fact that the issue of a n
interim certificate does not constitute approval of any work carried out o r
provide evidence that the work has been carried o u t in accordance wit11
the terms of the specification and drawings and that it thus complies with
the contract.
2. Only with the iss:~e of the maintenance eel-tificate is evidence
provided that the Contractor has in total fulfilled his obligations under
the contract and that, in accordance witli the definition of his
responsibilities under Clause 8(1), he shall have-'with due care and
diligence, executed a n d ~naintainedthe Works and provided all labour,
i r ~ c l u c l i ~the
~ g supel-vision thereof, materials, Constructional Plant and all
other things, whether of a temporary o r permanent nature, required in
and for such execution and niaintenatlce, so far a s the necessity for
p ~ o v i d i n gthe same is specified in o r is reasonably t o be inferred fi-om the
Contract.' Even a t that stage the Contractor may continue t o be liable for
any latent defects that lnay appear within the period of limitation
established by the law of the county applicable to the contract.
Clause 62(1)-Maintenance Certificate
The Contract shall not he considered as completed until il Maintenance
Certificate shell hnve been signed by the Engineer and delivered to tlie Employer-
stating that the Works have bee11 completed and maintained to his satisfaction.
The Maintenance Certificate shall be given by the Engineer within 28 days zilier
the expiration of the Period of Maintenance, or, if different periods of
Milintenance shall become applicable to different sections or parts of the Works,
the expiration of the latest such period, or as soon thereafter as any wnrks
ordered during such period pursuant to Clauses 49 and 50 hereof, shall have been
completed to the satisfaction of the Engineer and full effect shall be given to this
Clause, notwithstanding any previous entry on the Works or the taking
possession, working or using thereof or any part thereof by the Employer.
Provided always the issue of the Maintenance Certificate shall not be a condition
precedent to payment to the Contractor of the second portion or the retenlion
money in accordance with the conditions set out in Part I1 in the Cl;~nse
numbered 60.

1. The speed with which the niaintellance certificate is issued u,ill
depend entirely on the speed with which the Contractor attends to the
defects; the quicker he does this, the sooner will he have completed his
obligations under the contract.
2. The provision of the last sentence of the sub-clause is of
considerable importanceand does not featnre in the ICE Conditions, 4th
o r 5th Editions. It will 'be seen that the noti-issue of the maintenance
certificate cannot be used by the Enlployer as a pretext to withhold
payment of the second portion of ihe retention money. He is of coulse
entitled t o withhold separately a sun1 of lnoney that would cover the
various contract liabilities in respect of maintenance that the Contractor
had not yet fulfilled.
Cowiil?er?I
I. I t ri~ustbe appreciated that the issue of the maintenance certificate
does not necessarily absolve the Contractor f'ro111 all subsequent liability
for maintenance work that nlay be required. Where the defect concerned
is a latent rather than a patent defecl, the Contractor niay find himself
liable to make the defect good within the periods defined by any locally
applicable statute of limitations.
2. A 'latent defect' may be defined as a defect that would not have
been revealed by reasonable inspection during the execution of the work
and which wonld not produce observable defects within the period of
maintenance. A case in point might concern a situation where a
Contractor, unbeknown to the Engineer, bad used high aluniina cement
in the concrete for a structural frame and defects that arose from its use
did not come to light for several years.

Clause 62(2)-Cessation of Employer's Liability

The Employer shall not be liable to the Contractor for any matter or thing arising
out of or in connection with the Contract or the execution of the Works unless
the Contractor shall have made a claim in writing in respect thereof before the
giving of the Maintenance Certificate under this Clause.

1. The existence of this Clause in the International form should not be

overlooked. It is one that does not Ceature in the standard U K civil
engineering conditions, although on occasion engineers have been known
to insert a comparable clause in home contracts.
2. Its effect is to time-bar any further matter being raised by the
Contractor after the issue of the maintenance certificate. Although on the
wording of the sub-clause it is not cotnpletely clear that full and detailed
particulars of the claim, as well as nolice of claim, nlust have been served
before the giving of the maintenance certificate, it would be as well t o
proceed on the assumption that that was in fact the case.

Clause 62(3)-Unfulfilled Obligatio&

Notwithstanding the issue of the Maintenance Certificate the Contractor and,
subject to sub-clause (2) of this Clause, the Employer shall remain liable for the
fulfillment of any obligation incurred undel- the provisions of the Contract prior
to the issue of the Maintenance Certificate which remains unprrforrned at the
time such Certificate is issued and, for the purposes of detenuining the nature and
extent of any such obligation, the Contract shall be deemed to remain in force
between the parties hereto.
STANDARD LETTERS AND FORMS Reference: FIDlC/SS
To: The Engineer
Reference: FIDIC/56 Dear Sir
To: The Engineer

Dear Sir
Srrbri7ission of iMoi7thly Staterirer~r
We enclose our Statement no. . ... ..... for the period dated
pursuant to Clause 60 Part I1 of the Conditions.
Yours faithfully
We enclose our statenlent of final account together with supporting
documentation pursuant to Clause 60, Part I1 o r the Conditions showing
in detail the value of work done [together with all further sums to which
... ..... . . ..... we believe ourselves entitled] in accordance with the contract.
Yours faithfi~lly

Contractor Limited
Contractor Limited

Reference: FIDIC/59
To: The Engineel
Reference: FIDIC/57
To: The En,'-nieer Dear Sir

Dear Sir A~~plicofiorzfor

Pn.vnrer7t oj'tlre First Par/ ofrhe Rerentroiz h f o ~ r e y

We refer to the certificate of completio~~ dated ........................ issued

We regret to inform you that paylnent against our Statement no. .........
has not been received within the stipulaled period of ......... days from
the delivery of the statelnenl to the Engineer/Etlgineer's Representative
pursuant to Clause 60, Part I1 of the Conditions. Interest entitlement on
the overdue payment will therefore be included at the rate laid down in
the contract in our next statement.'
Yours faithfully
under Clause 48(1) and note that we may except payment of the 61-stpar1
of the retention money within ......... days of the date of the said
certificate pursuant to Clause 60, Part I1 of the Conditions. The amount
due we understand to be ..............., subject to any interest on any
overdue payment in accordance with the contract should the .. . .. . .. . day
payment period be extended.
Yours faithfully

Contractor Limited
Contractor Limited
 Cerrificutes r r ~ dPuynrents 243

Reference: FIDIC/60 returned t o us the perforn~ancebond taken out in connection with the
To: T h e Engineer works in order that it may now be cancelled.

Dear Sir Yours faithfully

Applicnriofifor Pnjnlieflt of the Secoiid Port ofllre Rererzriotz Morrej>

Contractor Limited
We note [that the issue. of the maintenance certificate requil-ed under
Clause 62(1) has been made] that the period of maintenance expired on
...................... leading us to expect payment of the second part of the
retention money within ......... days of the above date pursuant t o Clause Reference: FIDIC/E/78
60, Part I1 of the Conditions. To: T h e Contractor

T h e amount due we understand to be ............... subject to any interest Dear Sir

on overdue payments in accordance with the contract should the .........
clay payment period be exceeded.

Yours faitl~fi~lly We acknowledge delivn-y of your n ~ o n t h l ystatement for the month o r

............... on ........................ /state~nent of final acco~unt and
supporting documentation on ..................... and now issue our
Contractor Lin~ited interim/final certificate in the cumulative amount of ................ whicll
after adjustment for retention a ~ ~previous d payn~ents eel-tifies
.................. as due for payn~entpursl~antto C h o s e 60(---) [stating the
n t .................. in our opinion finally due under the contract up
a n l o ~ ~of
to the date of the m a i n t e n a ~ ~ ccertificate
e which arter adjustment for
previous payments certifies .................. as due for payment pursuant
to Clause 60(-)] of the Conditions.

Reference: FIDICi61 A copy of the aforen~entioned doclunent has been sent t o the
To: T h e Engineer Employer/our accounts department and falls due Cor payrnenl on

Dear Sir
Yours Caithfi~lly

We believe Lhat we have now completed all work of repair, amendment, Consultants Partnership
reconstruclio~~,rectification and n ~ a k i n ggood of defects, imperfectiot~s,
shrinkages and other faults required undev Clauses 49 and 50 and request
the issue of the maintenance certificate pursuant t o Clause 62(1) of the
Conditions.

As with the issue of the n~aintenancecertificate our various liabilities

under the conlract will have ceased, we will also be pleased to have
Bnterim/Final , ,......................................
Cerlificate Continuation

Engineer s Nameand Address Cenmcate No

Employer's Name and Address

Contractor's Name and Address

project Title
Location

cenified by

(Engineer or Engineer's Representative if issued pursuant to

Clause 60121lEngineer if issued pursuant to Clause 601311

(a1 Valueof Permanentwork

j. f

(bl Amounts includedlon acco

contiact
* .. . .~. .~.~
icl Amount of price fluctuation (if8w!icatilel....'"..."

'
....
a
" -, ,

.",
-*
. ._.
''.
- ........... E
!
(dl Less5% of (a) *{bl+ lclor3?&ol~ender~ofal~hicheueris
the lesseramorint ;is retention. .......i.:.h .....::<.'
.................. I
$
, . t: '<: f
(el ~ d amoynr
d Jf. i<t nrion releas& wider ihe contract
pursuan~~'t6>~orm &s EW14 EW/i (issue Nos I
exoiiauon .dl the beriod'af-maiGtenSnce and EWl11 as

i ,f i
i;,, , .*; ,
i f..,.,
It] *"-% df-the &lue o f g o o d s o i maieiials delivered to Site
,_.n@.?@:incor&rated jn-thgPermanent Works.

<, *** i f
*, 'Eumulatiue Amount Certified ...........................................
.%#.;
£

L-/"
For details o f amounrs ceitlfied in respect of Nominated Sub-contracts see continuation sheet
 Form Nlimber EWI11
Reference: FlDIC/E/79
To: The Employer Maintenance Distribution
Conliscioi

Certificate Employei
Engineer. .. . .
Repiessnlail"eundei.. . . . Blue
Dear Sir Clause 5siii

Mcti,rret~ftiireCer.lifiro/e
Engineer s Nameand Address
We enclose herewith our maintenance certificate statilly the date on
which the Contractor completed his obligations to conlplete and
Employer 5 Nameand Addieas
nlaintain the works to our satisfi~ciio~l
pursuant to Clause 62(1) of the
Conditions.
Contractor's Nameand Address
*,----.-
'1
A copy of the said certificate has beell sent to the Contractor.

Yours faithfully
#-,
"
; *-, \., "'\
A m o u n t of Retention for Release
Checked b y

Consultants Partnership Certified b y ltngineerl

CI&S& 49 and 50 of the Conditions i<&ted below.

',
'-\ ..~-,,, -'~.,, '.%~~-

Maintenance Completion D

I. *
.*
".(3j,<The issueof fhisceitilicate shall not be taken as relieving either the
Confracioiorthe Employeifromany liabiiitytheone towacds theother
arising out o f or in any way connectedwith fhcperiormanceof fhmr
respective obligafioos under thecontiact.

T w statedto b e d u e i n respect of retention money andshali be paid againstthe

a Form Na; Ewfloissued herewith.

C H A P T E R 24
Remedies and Powers
Clause 63(1)-Forfeiture
If the Contractor shall become bankrupt, or have a receiving order made against
him, or shall present his petition in bankruptcy, or shall make an agreement with
or assignnlent in favour of his creditors, or shall agree to carry out the Contract
under a con~mitteeof inspection of his creditors or, being a corporation, shall go
into liquidation (other than a voluntary liquidation for the purposes of
amalgamation or reconstruction), or if the Contractor shall assign the Contract,
without the consent in writing of the Employer first obtained, or shall have an
execution levied on his goods, or if the Engineer shall certify in writing to the
Employer that in his opinion the Contractor:
(a) has abandoned the Contract, or
(bj without reasonable excuse has failed to commence the Works or has
suspended the progress of the Works for 28 days after receiving from the
Engineer written notice to proceed, or
(c) has failed to re~novematerials from the Site or to pull down and replace
work for 28 days after receiving from the Engineerwritten notice that the
said materials or work had been condemned and rejected by the Engineer
under these conditions, or
(d) despite previous warning by the Engineer in writing is not executing the
Works in accordance with the Contract, or is persistently or flagrantly
neglecting to carry out his obligations under the Contract, or
(e) bas, to the detriment of good workmanship, or in defiance of the
Engineer's instri~ctionsto the contrary, sub-let any part of the Contract.
then the Employer may, after giving 14 days' notice in writing to the Contractor,
enter upon the Site and the Works and expel the Contractor therefrom without
thereby voiding the Contract, or affecting the rights and powers conferred on the
Employer or the Engineer by the contract, and may hinlself complete the Wol-ks
or may employ any other contractor to colnplete the Works. The Employer or
such other contractor may use for such completion so much of the consLructiona1
plant, temporary works and materials, wluch have been deemed to be reserved
exclusively for the execution of the Works, under the provisions of the Contract,
.
. , and the Em~lover
as he or thev, mav, think Droner. . . mav.> . at anv time. sell anv of
the said constructional plant, temporary works and unused materials and apply
the proceeds of sale in or towards the satisfaction of any sums due or which may
become due to him from the Contractor under the Contract
Corr~inerzr
1. T h e terms of this condition are very sin~ilarto those of the I C E
Conditions, 5th Edition, save only that any natlled periods of time of 14
248
Rerneclies ar~rlPowevs 249
days have been increased t o 28 days and any named periods of 7 days t o
14 days.
2. T h e Contract recognises three broad categories of situation in which
forfeiture might be appropriate:
(a) T h e bankruptcy of the Contractor;
(b) T h e works o r part of the works having been sub-let without the
consent of the Engineer;
(c) A series of reasons set down in s u b clauses (a) to (d), all of which
in one form o r another are directly concerned with the Coutractor
having failed to commence the Works, o r having commenced
them, failing to proceed with d u e diligence.
3. T h e Engineer should only exercise his power Lo certify under this
sub-clause in the most extreme circumstances, and then only after the
no st careful consideration of all the relevant factors, where h e is of the
opinion that irrefutable evidence exists of default in the context of the
matter specified.
4. Even in circun~stanceswhere the E ~ ~ g i n emay
e r have so certified, the
Employer needs to consider very carefully whether his best inteiest would
in fact be served by having the contract forfeit. If the forfeiture is related
in some way t o tardy progress, it nlay be that forfeiture and the
subsequent involvelllent of another contractor may in the long run result
in a n even greater delay than would have occurred had the original
Contractor, however slowly, finished the work that he had contracted to
carry out. I t should also be borne in mind that the existing Contractor's
tardiness is likely t o lead to him being liable t o the Ernployer for
liquidated damages.
Clause 63(2)-\'aluation a t Date of Forfeiture
The Engineer shall, as soon as may be practicable after any such entry and
expulsion by the Employer, fix and determine esprrrre, or by or after reference to
the parties, or after such investigations or enqi~iriesthat he may think to make or
institute, and shall certify what amoont, if any, bad at the time of such entl-y and
expulsion been reasonably earned by or would reasonably accrue to the
Contractor in respect of work then acti~allydone by him under the Contt.act and
the value of any of the said unused or partially used materials, any Constructional
Plant and any Temporary Works.
Corrrrnerzl
T h e object of this valuation will be to obtain a true value of wol-k
executed and nlaterials o n site together with constructional plant and
tenlporary works which vested in the Employer a t the date of forfeiture.
Such valuatio~lmay then serve a s a basis for assessment of liability
between the parties to the Contract.
250 Cliaptei. 23
Clause 63(3)-Payment after Forfeiture
If the Employer shall enter and expel the Contractor under this Clause, he shall
not be liable to pay to the Contractor any money on account of the Contract until
the expiration of the Period of Maintenance and thereafter until the costs of
execution and maintenance, damages for delay in completion if any, and all other
expenses incurred by the Employer have been ascertained and the amount thereof
certified by the Engineer. The Contractor shall then be entitled to receive only
such ~ ~ 1 1 or
1 1 sums, if any, a? the Engineer may certify would have been payable to
him upon due completion by him after deducting the said amount. If such
amount sliall exceed the sun1 whicll would have been payable to the Contractor
on due conlpletion by him, then the Contractor shall, upon demand, pay to the
Employer the a~nounto i such excess and it shall be deemed a debt due by the
Contractor to the Employer and shall be recoverable accordingly.
Remedies and Po1ljer.s 25 1
1. T h e philosophy behind t h e contract is t h a t renledial works shall be
carried o u t against a schedule o f defects a n d that this will enable such
w o r k t o be executed economically a n d i n reasonable quantity.
2. T h e contract recognises, however, t h a t there nlay o n occasion be a n
overriding need t o have w o r k carried o u t a s a nlatter of urgency. i n this
situation t h e Engineer m u s t first require t h e Contractor t o carry o u t t h e
work. I n t h e event o f his being unable t o d o s o within a reasonable time,
alternative resource m a y be employed t o carry it out, a n d t h e cost s o
incurred deducted f r o m anlounts d u e t o Lhe Contractor if t h e Contractor
was liable for such work.

l o essence Lhe financial settle~llentbetween the parties depends o n taking

the total cost incurred by t h e Employer, together with a n y danlage that
h e has suffered d u e to the rorfeiture, a n d if suc11 sun1 is greater tllan h e
might reasonably have expected to have incurred h a d t h e original
Contractor conlpleled t h e Works, then the difference will be a debt owing
by t h e Contractor t o t h e Employer. T o tile extent t h a t t h e valuation
referred t o in sub-clause 6 3 ( 2 ) nlay s h o w there to be monies outstanding
t o the Contractor, those monies will b e u s e d partially t o ofl'set the debt,
with t h e residue being payable o n demand by t h e Contractor t o t h e
Employer.

Clause 64--Urgent Repairs

I f by reason of any accident, or failure or other event occurring to in 01. in
connection with the Works, or any part thereof, either during the execution of the
Works, or during the Period of Maintenance, any remedial or other work or
repair shall, in the opinion of the Engineer or the Engineer's Representative, be
urgently necessary for the safety of lhe Works and the Contractor is unable or
unwilling at once to do such work or repair, the E~nployermay e~nployand pay
other persons to carry out such work o r repair as the Engineer or the Engineer's
Representative may consider necessary. If the work or repair so done by the
Enlployer is work which, in the opinion of the Engineer, the Contractor was
liable to d o at his own expense under the Contract, ail expenses properly incurred
by the Employer in so doing shall be recoverable from the Contractor by the
En~ployer,or may be deducted by the Enlployer from any ~noniesdue or which
may become due to the Contractor. Provided always that the Engineer or the
Engineer's Representative, as the case may be shall, as soon after the occurrence
of any such emergency as may he reasonably practicable, notify the Contractor
thereof in writing.
 Rernedies ancl Powers 253

STANDARD LETTERS AND FORMS the satisfaction of any sums due or which may become due to you from
the Contractor under the contract.

Reference: FIDIC/E/$O Yours faithfully

To: The Employer
Consultants Partnership
Dear Sir

Ce~r13cntior1 Righr ro Espel rile Corltrircror fi.orn rile Site

of the El?ll)/oj~er.'s
nrlrl the Wo1.k~
Reference: FIDIC/E/$l
We hereby certify pursuant Lo Clause 63(1) of the Conditions that in our To: The Contractor
opinion the Contractor has:
Dear Sir
[( ) abandoned the contract.]
[( ) without reasonable excuse failed to colnnlellce the works in
accordance with Clause 41.1
[( ) suspended the progress of the works for 28 days after receiving We herewith give notice of an emergency matter in the form of
from the Engineer written notice to proceed.] .................. calling for urgent repair pursuant to Clause 64 of the
[( ) failed to reillove ~naterialsfrom the site or to pull down and Conditions.
replace work for 28 days after receiving from the Engineer written
uotice that the said materials or work has been condemned and Any delay in the execution of the necessary work may result in the work
rejected by the Engineer ~ulderthese conditions.] being carried out by the Employer's or other workmen and to the extent
[( ) despite previous warnings by the Engineer i11 writing, not executed that the work should be done at your expense under the contract the
the works in accordance with the contract or persistently or necessary sum will become due from you/he deducted from monies
flagrantly neglected to carry out the contract.] otherwise due to you.
[( ) to the detriment of good workmanship or in defiance of the
Engineer's instruction to the contrary, sublet a part of the Yours faithfully
contract.]

In consequence you are entitled after giving fourteen days' notice in Consultants Partnership
writing to the Contractor to enter upon the site and the works and expel
the Contractor therefrom without thereby voiding the contract or
releasing the Co~ltractorfrom any of his obligations or liabilities under
the contract, or affecting the rights and powers conferred on the
E~nployeror the Engineer by the cbntracl.

Thereafter you may yourself or by the employment or another contractor

complete the works and you or such other contractor may use for such
completion so much of the constructional plant, temporary works and
materials as have become the property of the Employer under Clauses 53
and 54; or you or they may at any time sell any of the said constructional
plant and unused materials and apply the proceeds of sale in or towards

C H A P T E R 25
Special Risks
Clause 65(1)-No Liability on the Contractor for Special Risks
Notwithstanding anytl~ingin the Contract contained:
(1) The Contractor shall be under no liability \vl~atsoeverwhether by way of
i ~ ~ d e n ~ nor
i t yotherwise for or in respect of destruction of or damage to the
Works, save to work condemned under the provisions of Clause 39 hereof prior
to the occurrence of any special risk hereinafter mentioned, or to property whether
of the Employer or third parties, or for or in respect of injury or loss of life which
is the consequence of any special risk as hereinafter defined. The Employer shall
indemnify and save harmless the Contractor against and from the same and
against and from all claims, proceedings, da~nages,costs, charges and expenses
whatsoever arising thereout or in connection therewith.
Cori?n~eiff
T h e special risks clause of the International Conditions extends the area
of 'excepted risks' already e ~ ~ c o u ~ l t e under
r e d Clause 20(2) t o encornpass
a further range of 'special risks' that are predominantly a feature of
i ~ ~ t e r ~ ~ a t iwork
o n a l and unlikely to be encountered in the home market.
Against these 'special risks' the Employer indemnifies the Contractor
fro111 all liabilities.
Clauses 65(2), (3) and (4)-Payment made to the Contractor in respect of
Danlage to the Works arising from a Special Risk
(2) If the Works or any materials on or near or in transit to the Site, or any
other property of the Contractor used or intended to be used for the purpose of
the Works, shall sustain destruction or damage by reason of any of the said
special risks the Contractor shall be entitled to payment for:
(a) any permanent work and for any materials so destroyed or damaged,
and so far as may be required by the Engineer, or as may he necessary for the
completion of the Works, on the basis*of cost plus suc11 profit its the Engineer
may certiry to be reasonable;
(b) replacing or making good any such destruction or damage to the Works;
(c) replacing or making good such materials or other property of the
Contractor used or intended to be used for the purpose of tlle Works
(3) Destruction, damage, injury or loss of life caused by the explosion or
impact wlierever and whatever occurring of any mine, bomb, shell, grenade or
other projectile, missile, munition, or explosive of war, shall be deemed to be a
consequence of the said special risks.
Special Ri.rlis 255
(4) The Emnlover shall reoav to the Contractor any increased cost of or
in&dental to tlie evecution of i11d Works, other than suc1;as may be attributable
to the cost of reconstructing work condemned under the provisions of Clause 39
hereof, prior to the occurrence of any special risk, which is however attributable
to or consequent on or the result of or in any way whatsoever connected with the
said special risks, subject however to the provisions in this Clause hereinaftel.
contained in regard to outbreak or war, but the Contractor shall as soon as any
such increase of cost shall come to his knowledge forthwith notify the Engineer
thereof in writing.
1. This group of sub-clauses deals with the payment rights of the
Contractor in the event of damage to the works arising as a result of a
'special risk' short only of full-scale war and termination of the contract
as a consequence thereof.
2. I n the event of the works being damaged a s a consequence of one o r
other of the 'special risks', it~cludingthe consequences of explosives it1
whatever form used in connec:ion with war-like activities, the C o l ~ l r a c t o r
will be entitled to be paid for:
(a) d a ~ n a g e dperlnanenl work at contract rates,
(b) materials destroyed o r d a ~ u a g e da t cost,
(c) replacing and making good the damaged work o n a cost-plus basis
with a n allowallce for profit,
(d) replacing destroyed materials o n a cost-plus-profit basis,
(e) replacing the Contractor's plant a n d temporary works o n a cost-
plus-profit basis.
3. I n addition the Contractor will be entitled undel- sub-claose (4) Lo
his incidental costs associated with the disruptive circumstances of
encountering a special risk, providing he gives written notice of such
increased cost, as soon a s the increase cotnes to his knowledge.
I t is not immediately clear from the wording of the clause whelher the
notice relates purely to additional incidental costs, o r to the mail1 areas of
cost noted under sub-clause (2). T o be o n the safe side it should be
assumed that notices are required in whichever category increased cost
might fall.
Clawse 65(5)-Definition of Special Risks
The special risks are war, hostilities (whethe$-war be declared or noL), invasion,
act or foreign enemies, the nuclear and pressure waves risk described in Clause
20(2) hereof, or insofar as it relates to the counlry in which the Works are being
or are Lo he executed or n~aintained,rebellion, revolution, insurrection, military
or usurpted power, civil war, or unless solely restricted lo the employees of the
Contractoj- or to the Sub-Contmctors and arising Cro~nthe conduct of' the Works,
riot, connnotion or disorder.

1. Special risks fall into three distinct categories:
(i) those of a general nature that would affect the works,
(ii) those that specifically relate to the country in which the works are
being carried out, and,
(iii) those that specifically relate t o the works themselves.
2. These various categories of special risk are then:
Culegoqi ( i )
(a) war,
(b) hostilities (whether war be declared or not),
(c) invasion,
(d) act of foreign enemies,
(e) nuclear risks,
(f) pressure waves caused by aircraft.
Category (ii)
(a) rebellion in the country where the work is being carried out,
(b) revolution in the country where the work is being carried out,
(c) insurrection in the country where the work is being carried out,
(d) military o r usurped power in the country where the work is being
carried out,
(e) civil war in the country where the work is being carried out.
Cutegor:v (iii)
riot, c o n ~ m o t i o nand disorder, unless solely restricted to the employees
of the Contractor o r his sub-contractors and arising from the conduct
of the works.
3. One of the most likely overseas 'special risks' will be riot that has its
origins away from the actual works, but which affects the Works. I t is
most important that the Contractor should always endeavour t o establish
that ally civil disturbance is not unique t o his works or specifically caused
by the works.
Clause 65(6)-Outbreak of W&
If dul-ing the currency of the Contract, there shall be an outbreak of war, whether
war is declared or not, in any part of the world which, whether financially or
otherwise, materially affects the execution of the Works, the Contractor shall,
unless and until the Contract is terminated under the provisions of the Clause,
continue to use his best e~~deavours to complete the execution of the Works.
Provided always that the Employer shall be entitled at any time after such
outbreak of war to tenninate the Contract by giving written notice to the
Special Risks 257
--
Contractor and, upon such notice being given, this Contract shall, except as to
the rights of the parties under this Clause and to the operation of Clause 67
hereof, tenninate, but without prejudice to the rights of either pilrty in respect of
any antecedent breach thereof.
1. Outbreak of war in any part of the world does not provide ground
upon which the Contractor may terminate. His obligation is still t o use
his best endeavours to complete the execution of the Works. T o the
extent, however, he may be involved in additional costs because of the
outbreak of war, which is one of the special risks, he will be entitled to
additional paylnent in accorda~lcewith the terms laid down elsewhere in
the clause.
2. I t will be observed that only the E~nployeris entitled to terminate
the contract o n the outbreak of war, and thereafter, the Contractor's
remedies for such ter~ninationare separately established under sub-clause
(8).
3. In the event oC ter~ninationhaving been adopted by the E~nployer,
the Contractor is required to remove from the site all his own
construction plant and that of his sub-contractors, u ~ i t hall reasonable
despatch, in accordance with the provisions of sub-clause (7).
Clause 65(8)-Payment if Contract is Terminated by tile Enlployer as a
result of War or a s a result of the Employer's Default
(8) If the Contract shall be terminated as aforesaid, the Contractor shall be
paid by the Employer, in so far as such amounts or items shall not have already
been covered by payment on account made to the Contractor, for all work
executed prior to the date of termination at the rates and prices provided in the
Contract and in addition:
(a) The amounts payable in respect of any preliminary items, so far as the
work or service comprised therein has been carried out or performed, and
a proper proportion as certified by the Engineer on any such items, the
work or service comprised in which has been partially carried out or
performed.
(b) The cost of materials or goods reasonably orde~edfor the Works which
shall have been delivered to the Contractor or of which the Contractor is
legally liable to accept delivery, such n~aterialsor goods becoming the
property of the E~nployerupon such payments bcing made by him.
(c) A sum to be certified by the Engineer, being the amonnt of any
expenditure reasonably incurred by the Contractor in the expectation of
completing the whole of the Works in so far as such expenditure shall not
have been covered by payments in this sub-clause before mentioned.
(d) Any additional sum payable under the provisions of sub-clauses (I), (2)
and (4) of this Clause.
258 Clznl~ter25 Special Risks 259

(e) The seasonable cost of the removal of Constructional Plant under sub-
clause (7) of this Clause and, if required by the contractor, return thereof
to the Contrador's main plant yard in his country of registration or to
other destination, at no greater cost.
(0 The reasonable cost of repatriation of all the Contractor's staff and
workmen employed on and in counection with the Works at the time of
such termination.
Provided always th'at against any payments due from the Employer under this
sub-clause, the Employer shall be entitled to be credited with any outstanding
balances due from the Contractor for advances in respect of Constructional Plant
and Materials and any other sums which at the date of te~mination were
recoverable by the E~nployer from the Contractor under the terms of the
Contract.
(1) ancillary increased costs arising as a result of the special risk,
(m) the cost of removing plant t o the Contractor's country of
registration,
(11) the cost of repatriating the Contractor's workmen and staff,
and in the case of determination by the Contractor as a result of an
Employer's default pursuant to Clause 69,
(0) the amount of any loss o r damage ar~singout of determination,
i.e. the a n ~ o u n t of overhead and profit recovery that the
Contractor u'ould have nlade had he been able t o complete the
Works.

1. The contract may be terminated for one or other of three reasons:

(a) by the Employer because of a n outbreak of war, whether war is
declared or not, in any part of the world which materially affects
the execution of the Works,
(b) by the Contractor because of a default o n the part of the
Employer as stipulated under Clause 69,
(c) as a result of frustration in accordance with Clause 66.
2. In the event of termination as the result of war o r fi-ustration, the
Contractor will be paid for the following in the manner indicated:
(a) pertnauent work completed a t contract rates,
(b) preliminary items performed at contract rates,
(c) the proportion of the work partly carried out at a proportion of
the contract rates,
(d) materials delivered for which the Contractor must pay (these
materials then vest in the hands of the Employer),
(e) materials for which the Contractor must accept delivery arld pay
(these materials will then vest in the hands of the Employer),
(f) any other expenditure incurred by the Contractor in the
expectation of completing the work,
(g) the value of work damaged as a result of the special risk,
(h) the value of materials damaged as a result of the special risk,
(i) the replacement value of damaged work as a result of the special
risk,
(j) the replacement value of materials damaged as a result of the
special risk,
(k) the replacement value of Contractor's plant as a result of the
special risk,
 Special Risks 26 1

STANDARD LETTERS AND FORMS We will be maintaining such contemporary records as we believe
necessary, or may be required by you, to substantiate our additional costs
and support our request for an extension of time pursuant to Clause 44.
Reference: FZDI C/62
To: The Engineer The additional payment to which we consider ourselves entitled will be
registered in our monthly payment application together with as full and
Dear Sir detailed particulars as can reasonably be provided in view of prevailing
circulnstances and time of application as required pursuant to Clause
Nofice Reqlririrzg Pojo??e~~i
irr Respect of Drrnrrrge A~isirrg Frori? Specirrl 52(5) of the Conditions.
Risk
Yours faithfully
Notice is given that as a result of a special risk in the form of
................................. damage has been sustaiued and re-
ilnbursetnent is sought pursuallt to Clause 65(2) of the conditions. Contractor Limited

Such re-imbursement is to cover damage to pernianent works at coutract

rates, /materials destroyed at cost, /materials damaged at cost, /replacing
damaged works at cost plus profit, /replacing destroyed materials at cost
plus profit, /replacing Contractor's plant at cost plus profit, /replacing
temporary works at cost plus profit, in accordance with the details
appended.

Yours raithfully

Cotltractor Limited

Reference: FIDIC/63
To: The En,'-1neer

Dear Sir

Norice of Iwcrenserl Cosr Consequent or1 a Specicrl Rislc

By reference to our submitted programme/sile minutes/ .....................

it will be apparent that consequent on a special risk in the form of
........................... increased costs are being incurred as a result of
general disruption/[ond] delay and we therefore give notice of delay and
additional cost pursuant to Clause 65(4) of the Conditions.

C H A P T E R 26
Frustration, Disputes and Notices
Clause 66-Payment in the event of Frustration
If a war, or other circumstances outside the control of both parties, arise after the
Contract is made so that either party is prevented from fulfilling his contractual
obligations, or under the law governing the Contract, the parties are released
Srom further performance, then the sum payable by the Employer to the
Contractor in respect of the work executed shall be the same as that which would
have been payable under Clause 6 5 hereof if the Contract had been tern~inated
under the provisions of Clause 6 5 hereof.
1. Frustration is t h e legal tern1 f o r a situation whereby i n certain
circumstances a contract c a n n o longer be carried o u t a n d is held n o
longer binding o n t h e parties. Frustration c a n arise in a number of ways
a u d in the context o f building a n d engineering contracts will norll~ally
arise by reason of some supervening event, s u c l ~as destruction o f t h e
entire site (not t h e works o n t h e site) by fire o r flood s o t h a t t h e
resumption o f t h e project is impossible, o r tile passage of legislation
rendering t h e w o r k illegal. T h e contract c a n n o t be treated a s frustrated
nlerely because t h e works have proved t o be significa~~tly m o r e difficult in
their execution t h a n had been anticipated by the parties t o the contract.
2. Whilst i n t h e contracting c l i n ~ a t eof the United Kingdom such a
situation could only very rarely arise, it is in overseas contracting, a very
much greater possibility. T h e need for t h e overseas project manager t o be
alive t o t h e doctrine o f frustration is therefore very necessary.
3. T h e basis of financial settlement is set o u t in C l a ~ i s e65 in relation t o
t h e various special risks a n d the outbreak o f war.
Clause 67-Settlement of Disputes-Arbitration
If any dispute or difference of any kind whatsoever shall arise hetween the
Employer and the Contractor or the Engineer and the Contractor in connection
with, or arising out of the Contract, or the execution of the Works, whether
during the progress of the Works or after their completion and wirether before or
after the tern~ination,abandonment or breach of lhe Contract, it shall, in tile first
place, be referred to and settled by the Engineer who shall, within a period o f 9 0
days after being requested by either party to d o so, give written notice of his
Frlrsrratior~,Disputes rrnd Notices 263
decision to the Employer and the Contractor. Subject to arbitration, as
hereinafter provided, such decision in respect of every matter so referred shall be
final and binding upon the Employer and the Contractor and shall forthwith be
given effect by the Employer and by the Contractor, who shall proceed with the
~-
execution of the Works with all due dilieence whether h e or the Enmlovez.
~
~~ ~
requires arbitration, as hereinafter provided, or not. If the Engineer has given
. ~ ~ ~ ,
written notice of his decision to the Employer and the Contractor and no claim to
arhitration has been communicated to him by either the Enlployer or the
Contractor within a period o r 90 days from receipt of such notice, the said
decision shall remain final and binding on the Employer and the Contractor. If
the Engineer shall fail to give notice of his decision, as aforesaid, within a period
of 90 davs after heinr- reauested
. .
as aroresaid. or if either the Emnlovzr a
or the
Contractor be dissatisfied with any such decision, then and in any such case eithel-
the E m ~ l o y e or
r the Contractor may within 90 days after receiving notice of such
decision, or within 90 days after tlie expiration of the first namld period of 90
days, as the case may he, require that the nlatter or matters in dispute be referred
to arbitration as hereinafter provided. All disputes or diferences in respect of
\vhich the decision, if any, of the Engineer has no1 become final and binding as
aforesaid shall be finally settled under the rules of conciliation of the
International Chamber of Commerce by one or more arbilrators appointed under
such rules. The said arbitrators shall have full power to open up, revise and
review any decision, opinion, direction, certificate or valuation of the Engineer.
Neither party shall be limited in the proceedings before such arbitrators to the
evidence or areuments ~ u forward
t before the Enrrineer for the nlirnose of
giving evidei& before the arbitrators on any matter whatsoever relevenl to the
dispute or difference referred to the arbit1,atot-s as aforesaid. The reference to
arbitration may proceed notwitl~standingthat the Works shall not then be or be
alleged to he complete, provided always that the obligations of the Employcr, the
Engineer and the Contractor shall not be altered by reason of the i~rbitration
being conducted during the progress of the Works.
1. It is necessary that a dispute o r dilference should exist before a n
Engineer's decision is sought o r given. Accordingly, t h e initial rejection,
for example, o f a claim o r contention does no1 necessa~-ilyconstitute a n
Engineer's decision.
2. I t is desirable that disputes o r dilrerences referred t o t h e Engineer
for decision under this clause are clearly stated t o have been submitted
for t h a t purpose, a s opposed t o being a n atlempt t o negotiate a
settlement before resorting t o the provisions o f this clause.
3. A n Engineer's decision should be s o worded so t h a t it c a n only be
capable of being construed as a decision.
4. T h e time limits contained in this clause are strict and shoold be
carefully noted. T h e Enginee1- s l ~ o u l dslale his decision ill wl-itjng a n d give
notice o f the s a m e t o t h e Employer and t h e Contractor within a
 Frlrstration. Disputes and r~otices 265
stipulated period of 90 days of the request for his decision having been (2) AII notices to be given to the Employer or to the Engineer under the terms
made. of the Contract shall be served by sending by post or delivering the same to the
Thereafter one or other of the following outcomes is possible: respective addresses nonlinated for that purpose in Part 11 of these Conditions.
(3) Either party may change a nominated address to another addl-ess in the
(a) The Engineer's written decision is given will~inthe period of 90 country where the Works are being executed by prior written notice to the otlrer
days and is accepted by both the Employer and the Contractor. party and the Engineer may do so by prior wl-illen notice to both parties.
(b) The Engineer fails t o give a decision in the period of 90 days and
then either'tlle Employer or the Contractor may within a further
90 days require that the matter be referred t o arbitration. 1. Although the establishment of a n address to which notices and
(c) The decision of the Engineer is given within 90 days of being written orders can be sent might appear to be so self-evident as to be
requested, but if either the Employer or the Contractor is trivial, it can, on an overseas contract, cause considerable difficulty unless
dissatisfied with the decision, either party may a t ally time within it has been properly thought out, because of problems of distance and
90 days of being notified of the decision require that the matter be possibly unreliable postal services.
referred t o arbitration. 2. he appropriate addresses of the Employer and Engineer are
required to be stated in the Part 11 Conditions of Particular Application,
5. It is most important that if circu~nstancesare nlovi~lgtowards an
while tbe Contractor is required to nominate forn~allyan appropriate
arbitration the relevent notices be served in the stipulated periods. Should
address for himself.
the Contractor fail to d o this, he may find that his right to refer the
matter in dispnte t o arbitration has become lime-barred. Whilst it is true
that under English law the courts might, in certain circumstances, extend
the time within which a request for a reference t o arbitration might be
made, no such possibility of flexibility should be assumed on a n overseas
contract.
6. It will be noted that under the arbitration clause of the International
Form reference may be made to the arbitrator notwithstanding that the
Works are not then or not alleged t o be complete.
7. Under the rules of conciliation and arbitration of the International
Chamber of Commerce, one arbitrator can be nominated by each of the
disputants, and the two arbitrators thus appointed then appoint a referee
who would be drawn in should the two appointed arbitrators fail t o
agree.
8. The cumbersome three-arbitrator arrangement could be modified
by mutual agreement between the parties for the matter to be heard
before a single arbitrator only. It would be best were this arrangement to
have been incorporated by amendment to the contract conditions prior t o
the formation of the contract. However, even if this has not been done,
the parties could come t o a supplementary agreement by mutual consent
under which the matter would be referred to one arbitrator only.

Clause 68-Service of Notices

(1) All certificates, notices or written orders to be given by the Employer or by
Ibe Engineer to the Contractor under the terms of the Contract shall be served by
sending by post to or delivering the same to the Contractor's principal place of
business, or s11c11other address as the Contractor shall nominate for this purpose.
266 Clzapter 26
Frustrarioiz, Disguzes aizrl Notices 267

Reference: nDIC/E/S2
STANDARD LETTERS AND FORMS To: The Contractor

Dear Sir
Reference: FIDIC/64
To: The En,'allleer Ellginerr 's Decision

Dear Sir We refer to the dispute/difference between the contracting parties

Req~iestfor a17 Engineer's Decision
We refer to the dispu~e/differencebetween the col~tracting parties
concerning ........................... and request an Engineer's Decision on
the matterlmatters a t issue pursuant to Clause 67 of the Conditions.
collcerl~it~g......................................................... and hereby
give an Engineer's Decision on the matter/nlatters at issue pursuant to
Clause 67 of the Conditions as detailed on the appended 'Statement of
Decision'.
Yours Caithfully

Yours faithfully
Consultants Partnership

Contractor Limited

Reference: FIDlC/65
To: The Engineer and the Employer

Dear Sir

Notice of Clrrnzge of Nol?li~nrrtedAddress

We herewith give notice of change of our nominated address pursuant to

Clause 68(3) of the Conditions from .......................................
to ....................................

Yours faithfully

Coctraclor Limited

CHAPTER 27
Employer Default, Cost Changes and
Legislation
Clause 69-Determination by the Contractor on the Default of the
Employer
(1) In the event of the Employer:
(a) failing to pay the Contractor the an~oontdue under any certificate of the
Erigineer within 30 days after the same sliall have become due under tlie
tenits or tlie Contract, subject to any deduction that the Elnployer is
entitled to make under the Contract, or
(b) interfering with or obstructing or refusing any required approval to the
issue of any such certificate, or,
(c) becoming bankrupt or, being a company, goiog into liquidation, other
than for the purpose of a scheme of reconstruction or amalgamation, or
(d) giving fomial notice to the Contractor that for unforeseen reasons, due to
economic dislocation, it is impossible for hi111 to continue to meet his
contractual obligations
the Contractor shall be entitled to terminate his employment under the Contribct
after giving fourteen days' prior written notice to the Employer, with a copy to
the Engineer.
(2) Upon expiry of the fourteeo days' notice referred to in sub-clause (I) of this
Clause, the Contractor shall, notwithstanding the provisions of Clause 53(1)
hereof. with all reasonable desoatcli. remove from the Site all Constructional
Plant brought by him thereon. '
(3) In the event of s~ic11termination the En~ployershall he under the same
obiigation to the Contractor in regard to payment as if the Contract had been
terminated under the provisions of Clause 65 hereof, but, in addition to the
payr~~elentsspecified in Clause 65(8) hereof, the Employer sliall pay to the
Contractor the amonat of any loss or damage to the Contractor arising out of or
in conllection with or by consequence of such termination.
1. This clause in the Internationdl Conditions provides the Contractor
with his most effective protection in the event of payment breach by the
Employer. It is a clause that has n o equivalent under tlie I C E Conditions,
5th Edition, althougl~a comparable protectioll may be found under the
J C T Form.
2. Termination, however, the procedure i~ivolvedin the ending of tlie
contract, is not an action t o be undertaken lightly by any contractor. It
does, however, particularly in the difficult circumstances often connected
E~nplogerDefirulr, Cost Cl~nwgesa i ~ rLegislrrtion
i 269
with paynle~ltin overseas territories, represent a very powerfnl protection
in the hands of the Contractor. T h e timing of its use must, however,
always be carefully considered in relation to on-going busi~iessin the
country or with the En~ployerconcerned.
3. T h e most common ground for. ternlination would be that in which
the Elnployer was failing t o h o ~ l o u rpayment against a certificate of the
Engineer within 30 days after the same should have become due under
the terms of the contract.
In co~lsideringthis ground two points need to be considered:
(a) Since no standard period for honouring a certificate is stated in
the Part I Conditions, care l i ~ u s tbe taken to ensure that an
appropriate period is inserted in the Conditions of Particular
Application in Part II.
(b) T h e Contractor's r e n ~ e d yfor late payment where payment is made
not later than 30 days after the due date will depend purely on
levying interest on the a ~ ~ i o u t of i t the outstanding debt, again
related t o a specific sub-clause that will need to have bee11written
into the Conditions of Particular Application in Part 11.
The Pact that a Contractor may not have terminated a contract at the 30
day tilt-off point does not preclude hi111 fl-0111 obtaining this remedy
should the breach contit~ue-neither would it preclude l ~ i mfi.0111 charging
interest, providing the right had been contained in the Conditions of
Particular Application.
4. T h e second g r o n ~ ~for
d termination is in Inally ways inter-related to
the first, in that under the first ground, a certificate 111ust have been issued
prior t o there being evidence of the Employer having failed to 11onour it.
Clearly the Contract must cater for a situation in which the Employer
seeks l o circumvent his liability by preventing a certificate being issued,
and this the second ground for terll~inationdoes by preventing the
Employer from interfering with or o b s t r ~ ~ c t i nor
g r e f u s i ~ ~any
g required
approval associated with the issue orally certificate. 'Any certificate' can,
of course, mean not only a paymellt certificate but also certificates o r
completion and maintenance.
5. The third category deals with the situation of the Employer's
bankruptcy. Although this gives ground for the Contractor to terminate
and provisio~ifor re-imbursement, such terliiination is likely t o be a
Pyrrhic victory.
6. The fourth ground for termination is a particularly international
one in that it relates to economic dislocatiol~that would prevent the
Elnployer from honouring his contractual obligations.
7. 111the event of failure t o pay being the ground for tern~ination,total
time lapse prior t o the Contractor being able t o tertllil~atewill be defined

by the initial 30 day period under sub-clause (l)(a) plus the required
period of notice of 14 days, alnounti~lgto 44 days in all.
8. In all nor~ilalcircumstances the mere threat of ter~ni~iation by any
Contractor would act as a powerful catalyst to ensure that delayed
payments are properly made. Where, however, the E~llployeris in serious
financial difficulty, it may be sensible for the Contractor to deter~ninethe
contract, within t!le framework of this Clause, to limit to manageable
pvoportio~isthe debt build up between Employer and Contractor, against
which, in the event of the Employer's bankruptcy, he would beconle
another creditor subject to the complications of tlie bankruptcy laws o r
the legal system of a possibly alien land.
9. The Contractor's rights to re-imbursement are as defined in the
notes to Clause 65(8), but with the addition of the alliount of any loss or
damage arisi~igout of, or in connectioll with, or by consequence of such
termination. On this basis therefore, in theory, the Contractor is entitled
to recover the a ~ n o u ~of
l t his overhead and profit margin that lie should
have earned had he not been denied the opportunity of carrying out the
work owing to his need to terminate. If therefore, the Employer actually
had funds to meet his liabilities (and this will always be t11e ove~~wl~elming
question mark), the Contractor's remedy could be both wide-ranging and
profitable.
Clause 70(1)-Price Fluctuations on a Variable Price Contract
Adjustments to the Contract Price shall be made in respect of rise or fall in the
costs of labour and/or materials or any other matters affectingthe cost of tlie
execution of the Works, as set out in Part IS in the Clause numbered 70.
1. As in so many other features of the I~lternationalConditions, there
is no particular way laid down in which increased costs are to be handled.
It is left to the parties to ensure that the matter is appropriately covered
in the Conditions of Particular Application in Part I1 especially written
for the project concerned.
2. The choices open to the paxties, assuming the contract is not to be
on a fixed price, are:
(a) to arrange for specific items of increased cost to be picked up
against some form of basic list,
(b) to construct a formula method of price adjustment, whilst bearing
in mind the i~nprobabilityof there being available the type of
indices employed in the UI< in colinection with both the Baxter
and N E D 0 formulae, used for civil engineering and building
contracts respectively.
Er~~ployer
Defnlilt, Cosr Cl~m~ges
nr~clLegislnriorl 271
3. By whichever means the matter be dealt with, the Contractor must
bear in mind that the pattern of his overseas costs will be radically
different to those he would encounter in the UK, and, in structuring his
approach to tlie fluctualion clause, the following factors must be borne in
mind:
(a) His on-site and off-site overheads will be a far higher proportion
of total cost than in the UK. (11 is quite possible for these to
represent up to 50% of the cost of the works).
(b) A whole new range of costs in the for111of shipping and freight will
be encountered that lilust need be the subject of adjustment.
(c) Plant costs will probably be radically higher as a proportion of
total cost than those encountered in the U K , owing often to the
need to purchase items of plant specific to the contract and either
totally write them off, or provide a modest residoal value
adjustment only. There is also a greater incidence of breakdowns
2nd the difficulty of repair associated with local operators of
limited experience and non-availability of spares.
4. If a forniula basis of adjustment is to be employed, then in the
formula it will be necessary to reflect:
(a) local labour,
(b) materials,
(c) major sub-cotltract works callilig for large-scale imported and
expatriate labour,
(d) plant costs,
(e) freight costs,
(f) overheads, possibly related to a U K base, and adjusted against
aliv locallv available cost of livine index.
5. Where a basic list approach is utilised, picki~igup only labour,
materials and freight, it is essential that a very substantial percentage
addition, probably in the order of 60%, be added to the net recovery to
provide for what would otherwise be a non-adjustable element.
6. The arrallgements adopted will need to be a cornpromise between
the achievement of a Fair return and simplicity. Were the arrangements to
be too complicated, they might prove inoperable in practice. However the
matter is handled, extreme care needs to be used in drafting the Clause of
Particular Application.
7. Unless great care is taken, it is all too easy to find in the event that
one lias a series of ambiguities that can throw the operation of the
fluctuation clause into such co~lfusio~l that the outcome of the contract
may be in question right up to the agreement of the final account. A
sound approach would be to use the wording of the home-based JCT and
272 C l ~ a p t 27
e~ Enzployer Default, Cost Changes unrd Legislufioii 273
I C E Conditions as a comprehensive check-list for the matters that sliould S T A N D A R D LETTERS A N D F O R M S
have been considered when drafting the Clause of Particular Application.

Reference: FIDIC/66
Clause 70(2)-Tax Matter A d j ~ ~ s t n ~ e n t s T h e Engineer and the Employer
To:
If, after the date 30 days prior to the latest date for submission of tenders for the
Works there occurlin the country in which the Works are being or are to be
executed changes to any National or State Statute, Ordinance, Decree or other Dear Sir
Law or any regulation or bye-law of any local or other duly constituted authority,
or the introduction of any such National or State Statute, Ordinance, Decree, Notice of Deter~i~innliorr
by the Contrrrctor
Law, regulation or bye-law which causes additional or reduced cost to the
Contractor, other than under sub-clause (1) of this Clause, in the execution of the
Works, such additional or reduced cost shall be certified by the Engineer and shall W e herewith give notice of [intended] d e t e r n ~ i ~ l a t i opursuant
n t o Clause
be paid by or credited to the Employer and the Contract Price adjusted 69(1) of the Conditions [and will deter~ninethe Contract unless paylnenl
accordingly. is made against Certificate no. ......... dated ..................... within 14
days of receipt of this notice under sub-section (a) of the stipulated
Clause].
1. T h e base-date stipulated by the sub-clause against which increases
or decreases will be calculated should be carefully noted. It is 30 days Such notice is given 011the ground that:
prior l o the latest date for submission of tenders.
2. T h e tenderer ~ i ~ u therefore
st be careful t o ensure that he does not [Payment has not been 111ade against Certificate no. ......... dated
take iuto account in his price a n y increased cost as a result of legislative ..................... within 14 days of our notice of intentiou to deternline
change that occurs subsequent t o a period 30 days prior to the date of the Contract u~ilesssuch certificate was honoured.]
tender. T h e words 'latest date' s l ~ o u l d also be appreciated, since
confusion could very well be caosed where the submission date was put [The Enlployer has interfered with and obstructed the issue of a certificate
back. and owing to this caught the effect of legislative changes, that due under this Contract in that ........................ 1.
would not otherwise have been encountered had the bids actually been
submitted by the original subnlission date. r r h e Employer is bankrupt/in liquidation.]
3. It should be appreciated that this sub-clause is not one of the
Clauses of Particular Application, and unless the contract lias bee11 [The Employer lias given formal notice that for unforeseen reasons, due
specifically amended, will feature as a basis for adjustment even in what to economic dislocation it is inlpossible for him to continue to meet his
would otherwise be a firm price contract. contractual obligations.]

We deem this notice to have been given neither unreasonably nor

vexatiously a n d will be seeking restilution in accordance with the terlns of
Clauses 69(3) and 65(S) of the Conditions.

Yours faithfully

Co~ltractorLimited
Reference: FIDIC/67
CHAPTER 28
To: The E*ng'~ n e e r

Dear Sir
Currency Matters and Form of Tender
Notice of Clialige in Legislntiori Requiring Cost Acljcrstnient

We give notice that as a result of legislative change increased costs will be

incurred in respect of .............................. for which re-imbursement Clause 71-Remedy for Imposed Currency Restrictions
will be sought pursuant to Clause 70(2) of the Conditions.
If, after the date 30 prior to the latest date for submission of tenders for the
Yours faithfully Works the Government or authorised agency of the Government of the country
in w11ic11the Works are beinz- or are to be executed imuoses currencv restrictions
:in:l 31 11;111st>r of C U I ~ C I I O ~ C , I ~ I C L I O I III<I rcliitiu~i10 IIIC currency or C L I ~ I Z I I ~ i~nC S
ivlllcll lllc C:onlr.tc~l I'rlcc is lo he ~p.ttJ.lhe L:~i,ploycr ili.tll it-trnburs: .tny Iur,I , <
Conlraclor Limited damage to the Contractor arising therefrom. without .~reiudice - to the right of the
Contractor to exercise any other-rights or rehedies to which he is entit]& in such
event.

1. This provision is new to the International Conditions. At first sight

it appears a welcome protection for the Contractor; however, the manner
in which it could ever be operated in practice seeins extremely
questionable.
2. Let us imagine a hypothetical example in which the Contractor has
tendered in anticipation of taking all his profits out of the country, and in
the first few days of the contract, a co~npleteclamp-down is placed on the
transfer of fnnds. Clearly the imposed cash lock-up will adversely effect
the Contractor, since he inay be denied the use of the funds elsewhere in
his operations. Although in theory this entitles the Contractor t o re-
imburse~nentof any loss, it would appear that the re-imbursei~~ent would
then itself be caught up in the very same net that had given rise to the
need for re-irnbursement in the first place.
3. The individual citizen of a country o r stale cannol by the ternls of a
Contract that he enters into override the rule of law of his country,
which, on the face of it this Clause might appear t o wish to do. At best
the frozen funds would be subject t o loss re-imburseinent in the territory
concerned resulting in a n escalating lock-up until some happier day
when, possibly, the restriction might be lifted.
4. I n order t o prevent the Contractor losing the possible long-term
benefit of a remedy (when a change in the law of the country would allow
it), be must serve notice of claiin to recompense prior to the giving of the
Maintenance Certificate t o avoid the matter being time-barred pursuant
to Clause 62(2) of the Conditions.

Clause 72-No Adjustment for Variation in the Rates of Currency
Exchange
(1) Where the Co~~tract provides for paynlent in whole or in part to be made to
the Contractor in foreign currency or currencies, such payment shall not be
subject to variations in the rate or rates of exchange between such specified
foreign currency or currencies and the currency of the country in which the
Works are to be executed.
(2) Where the Employer shall have required the Tender to be expressed in a
single currency but with payment to be made in more than one currency and the
Contractor has stated the proportions or amounts of other currency or currencies
in which he requires payment to be made, the rate or rates of exchange applicable
for calculating the paylnent of such proportions or amounts shall be those
prevailing, as determined by the Central Bank of the country in which the Works
are to he executed, on the date 30 days prior to the latest date for the submission
of tenders for the Works, as shall have been ~~otified to the Contractor by the
Employer prior to the submission of tenders or as provided for in the tender
documents.
(3) Where the Contract provides for payment in more than one currency, the
proportions or amounts to be paid in foreign currencies in respect oTProvisiona1
Sum items shall be detei-mined in accordance with the principles set fort11 in sub-
clauses ( I ) and (2) of this Clat~seas and when these sums are utilised in whole or
in part in accordance with the provisions of Clauses 58 and 59 hereof.
1. I n sub-clause (1) the reference to 'foreign currency or currencies'
relates to a curreucy other than the currency of the country in which the
Works are to be carried out. One call envisage a situatiou in which a
British Co~ltractorworking in Saudi Arabia was to be paid in A~nerican
Dollars, and regardless of what might happen t o the rate of exchange as
between the Saudi Riyal and the America11 Dollar, payments made t o the
Contractor in dollars would be solely governed by the pricing levels in
dollars of his o r i g i ~ ~bid
a l regardless of any movements in exchange rates.
2. In the case of the situation outlined in sub-clause (2) an initial bid
might have been give11 in Saudi Riyals, a s required by the Employer,
whilst the Contractor has qualified his bid to require 50% of the eventual
Contract price t o be paid in Sterling, 25% in American Dollars and 25%
in Saudi Riyals.
T o establish the rates of exchange that would be adopted in the case of
the sterling and dollar payments, the rate of exchange ruling 30 days
prior t o the latest date Tor the submission of teuder would be used in
making currency conversions for the total duration of the contract,
regardless of the way in which rates of exchange might subsequently
fl octuate under the forces of international trade.
3. In this way any currency gain or loss would stay, as between the
parties. precisely as it fell without ally adjustment.
Czrrrencjj Mattel-s a72d For171 of Terider 277
4. The last part of sub-clause (2) appears a~nbiguousas t o whether or
uot the Employer, prior t o the sub~nissionof tenders, should have
informed the C o ~ ~ t r a c t oofr the exchange rates that would be applied as
fixed by the Central Bank of the country in which the Works were to be
carried out, or, whether in fact the notification is intended l o relate only
to the date upon which the bids are t o be returned. Clearly the
Contractor should argue that the former i~llerpretationis the correct one
and look t o the Employer a t time of tender t o provide such exchange rate
details. If they are not forthcoming, then the Contractor at time of tender
should ensure that he has on his files a letter from the Central Bank
concerned detailing the exchange rates as a t the base date 30 days prior t o
the latest date for the submission of the tenders.
5. The Contractor should a t time of tender qualify his bid, t o allow for
change in the stated currency proportions, if due t o changing circum-
stances additional correl~cyhas to be drawn into the country in which the
works are carried out t o fund those works. This situatiotl might arise
either as a result of variation, or, possibly sadly, because the contract was
a loss-maker, or the payment terms were not being sufficiently pro~nptly
honoured.
6. Sub-clause (3) of the clause does no more thau indicate that in
dealing with currency proportions in relation to work carried out agaiust
provisional sums these shall be treated as a mirror itnage of the
arrangements that apply to the works overall.
Form of Tender
1. The followi~lg points should be noted as regal-ds the Form of
Tender utlder the I~lter~lational Form.
2. (a) In the introductory paragraph to the form, followil~g the
i ~ ~ s e r t i oof
n the tender figures should be inserted the words 'as
detailed in our enclosed tender letter'.
(h) I n the enclosed tender letter, in relation t o ally qualification that
may have been given, the word 'assu~nption' should never be used.
Rather should the words 'based 011' be used where the Contractor's
price is dependent upon some interprelatioil of the i~lfor~natiotl
given t o him, or a qualificatio~lthat he ~ n a k e ill'
s his bid.
(c) The period within whic11 the Coutractor will be required t o
commence the work after receipt of the Engineer's order to
comnlence is defined in paragraph 2 of the F o m l of Tender.
As will be recalled, the contract period as defined under Clause
41 conlmences a t the time the Contractor has undertaken t o
 C~lrrericyMatters mid For177 o f Teizder 279

commence tile work and not from the date of the Engineer's ordel- STANDARD LETTERS AND FORMS
to connnellce.
(d) In sectio~l4 of the For111 of Tender a period of validity is to be
given during which period the bid re~naitls binding upon the Reference: FIDICi68
Contractol-. This may on occasion be further reinforced by a bid To: Tbe Engineer
bond to prevent the Contractor withdrawing his tender prior to
acceptance or prior to the expiration of that period. Very Dear Sir
cornino~llythe period of validity required on an overseas tender
will be a considerable one. Notice o f Ci~rrenc].
Restrictiorr Rer/~~il;irig
Cost Arljzrstr?~e~~t

We herewith give notice that as a resull or an inlposed currency

restrictiot~after a period 30 days prior to the date for subulissio~lof
tender loss is being incurred and re-imbursemenl is sougbt pursuant to
Clause 71 of the Conditions.

[Pending legislative change we note that payment arising fi-om re-

imbursement may have to be held in the country and request that it be
deposited in ...........................................................................
bank in the name of ..................... i ..................... ]

We will be tnaintaining such details and colltelnporary records as we

believe necessary, or may be required by you, to substantiate our
additiotlal cost.

The additional payment to which we consider ourselves entitled will be

requested in our ~nonthlypayment application together with as full and
detailed particulars as can reasonably be provided in view of prevailing
circ~unstancesand time of application as required pursuant to Clause
52(5) of the Conditions.

Yours faithfully

Contractor Linlited

p~~

Reference: FIDIC/69
To: The Engineer

Dear Sir

Request for Notificatiorl of Excizarlge Rate

280 28
Cl~nprer.

We note that our tender for ........................... is to be expressed in CHAPTER 29

............but with paynlent being made in ..................
We therefore request notification of the exchange rate or rates applicable
Use of Administrative Forms
for calculating the payment of sucll proportions or amounts as are to be
paid it1 currencies other than the tender currency pursuant to Clause
72(2) of tlie Conditions.

Yours faithfully The ad~llinistrativeforrtis illustratedsin this book were designed niai~lly
for use in contlection with the ICE Conditions of Contract, Fifth Edition.
They can however be used in conju~~ction with the administratiotl of a
Contractor Linlited contract under the Illternational Conditions with only the most tllarginal
of amendments to certain of the forms, and to the majority, with no
anlendment at all. It has not been considered feasible to design forms that
are particular to the requirements of the International Conditions, since
these requirements will vary, at the detailed level, fi-om contract to
contract to accord with the Clauses of Particular Application.
It is also necessary, when considering these forms, to bear in mind that
the respective duties of the Engineer's Representative and Engineer are
different to those for which the forn~swere designed, whilst the authority
of the Engineer may have been further constrained by specific liinitations
placed 0x1 his authority by the E~llployer.
We now give a colll~ne~ltary on each of the forms, with a r&sume of
their relevalice to work under tlie Itlternatioilal Conditions, together with
amendment and usage hints.

Form EW/1-Construction Information Issue and Receipt Note (11. 43)

This form provides an authenticated record of the dates on which the
Contractor received construction information. It is recomme~ldedthat all
drawings, specifications, bending schedules, details, b i l l tables and
co~lstructio~l inforiuatio~iof whatever sort be transnlitted under cove]- of
the fonns.
The Engineer should detail under 'Item' the infor~~lation provided, e.g.
Drainage Drawing, Bending Schedule etc. Under 'Reference' should be
given the code used to identify the 'Item'.
Each itell1 should be issued under Clause G or 7 and the form ticked
accordingly. Items issued under Clause 6 shduld comprise the inform-
ation on which the Tender was based, whilst under 7 should be issued
such niodified or further drawings and illstructions as inay in the
Engineer's opinion be uecessary for the purpose of the proper and
adequate construction con~pletionaud nlaintena~lceof the Works.
It is to be noted that (1) should be deleted f r o n ~the clause reference
7(1).
28 1
282 Cl~nptcr29
Form EW/2-Engineer's Instruction (p. 45)
This form is designed for day-to-day con~munication between the
Engineer and Contractor. It sl~ouldbe used whenever written instruction
(short of a letter) is called for in the Conditions and the matter is not
covered by one of the certificates or variation orders.
The form may be used without amendment.
Form EW/SAvailability for Inspection (p. 134)
It is recomlneilded that the Engineer's Representative and Contractor's
agent agree as soon as possible after the date for com~net~celnent of
works notified by the Engineer those items of work to be iilspected and
measured prior to coveritlg up. The items should be regularly reviewed
and amended as the character aud type of work uudertaken changes
during construction.
The ouus rests on the Contractor to give notice to the Engiueer
whenever any such work is I-eady or about to be ready for examination
and/or measurement. The notice should be given on the form by the
Contractor's agent or representative, noting the work concerned.
Thereafter the Engineer's Representative should attend to the exami-
nation without u~lreaso~lable delay or notify the Contractor if he
considers it unnecessary.
The form may be used without amendment.
Forms EW/4 and 5-Certificates of Completion of WI~ole(a) or Part of the
Works (b) (pp. 172 and 174)
The issue of certificates of completion, whether in respect of the whole of
the works or a section or part, is an administrative obligation of the
Engineer's Representative or Engineer. The date of completioll stated in
the appropriate certificate defines coulpletion relative to the original or
any extended completioll date, establishes the period in which the
En~ployermight be entitled to levy liquidated damages, triggers release of
part of the retention money, defines the start of the period of
maintenance and marks the end of the Contractor's obligatioil to take
full respousibility for the care of the works atld to insure accordingly.
The onus for giving written notice applying for a certificate rests with
the Contractor. Such notice must be acconlpanied by an undertaking to
finish any outstanding work during the period of maintenance.
The Forlns may be used without a~nendment.
Use of Adri?irzistrafiveForms 283
Form EW/&-Variation Order (p. 202)
A variation is a change as defined by Clause 51(1) or as created by
instructions deemed to be variations issued under other clauses of the
Conditions. Change or variation is assessed having regard to the
character and content of the works as defined by the information on
which the tender was based at the date of acceptance of the Contraclor's
tender for the works.
The Contractor cannot make a variation to the works without an order
from the Engineer, although subject Po the terms of Clause 51(2) the
order may be given orally in the first instance.
The form may be used without amendment.
Form EW/7-Contractor's Confirmation of Oral lnstrnction (p. 195)
The form may be used to confirm oral instructions given to the
Contractor in accordance with the requiremeuts of Clause 51(2).
The form needs to be slightly alnended so that refereilce in the Notes to
'unless contradicted in writing forthwith' reads 'unless contradicted in
writiilg within 14 days'.
Forms EW/8 and 9-(a) Daywork Sheet and (b) Daily Record of Resources
Used on Daywork (pp. 198 and 200)
I n respect of all work executed on a claywork basis the Coiltractor must
duriug the continuance of such work deliver each day to the Engineer's
Representative an exact list in duplicate of the names, occupatiolls and
times of all worktneu employed on such work and a statement, also in
duplicate, showing the description aud quantity of all lnaterials aud plant
used thereoil or therefor. The Daily Record of Resources Used on
Daywork caters for this requirement.
At the end of each mouth the Contractor will co~npilea priced
statement from the Daily Records on the Daywork Sheet and pass it to
the Engineer's Representative.
Altl~ougb the Daywork Sheet has bee11 designed to be used in
co~~junction with the Schedules of Dayworks carried out I~~cidetltal
to Coutract Works issued by the Federation of Civil Engineering
Contractors in the UK, the form is equally applicable to any form of
daywork charging used.
The forms may be used without amendment.
284 Clzapfer 29
Forms EW/10 and 10/1-Interim/Final Certificate (pp. 244 and 245)
It is t o be noted that under the International Conditions either the Index
Engineer o r Engineer's Representative may issue both interim and final
certificates, subject to ally curtailmelit of their authority imposed by the
Employer and notified to the Contractor.
Subject to that proviso, the forms may be used, but should be carefully
checked t o ensure that they comply with the Clause of Particular
Application numbered 60.
Clause
T h e following poitlts should always be checked: the manner in which
any down payment (if any) is to be repaid, whether the retention Access, Contractor to satisfy himself I1
arrangements as stated apply, and whether ally particular payment d u e Accident or injury to workmen-Insurance against 24(2)
Accident or injury to workmen-Liability for 24( 1)
date can be established under the terms o f Clause 60. Accommodation outside the site-Contractor
The forms must be amended t o ensure cotnplia~lcewith Clause 60 a s to provide 42(2)
drafted particular to the individual contract. Address, change of 68(3)
Adjustment of contract price if variations exceed
10 per cent of tender sum 52(3)
Administrative forms -
Form EW/ll-Maintenance Certificate (p. 247) Advances on constructional plant and materials 60(2)
Advance payments -
T h e issue of the maintenance certificate is an obligation of the Engineer
Adverse physical conditions and artificial
o r Engineer's Representative, subject to any curtaihne~lt o f their obstructions I2
authority imposed by the Employer and notified to the Contractor. T h e Agent of Contractor 15
certificate signifies that the Contractor has carried out his obligatious Agreement 9
under the contract to c o n ~ p l e t eand maintain the works. T h e m a i n t e ~ l a ~ l c e Alcoholic liquor or drugs 34(3)
completio~ldate stated in the maintenatlce certificate reasonably euables Alterations, additions and omissions 51.52
Ambiguities in contract documents 5(2)
ally residue of the second half of the retention money t o be released. Antiquities 27
T h e form may be used with only marginal amendments whereby Approval of materials, etc., not implied 54
~.eferenceto sub-clause (3) of Clause 60 should be deleted in Note (2). Approval only by maintenance certificale 61
'Approved' I(l)(n)
Arbitration 67
Arms and ammunition 34(4)
Artificial obstructions 12
Assignment of contract 3
Assignment of nominated sub-contractor's
obligations 59(6)
Authorities, work by 31
Availability for inspection (Form EW/3) -

Bankruptcy of Contractor 63(1)

Bills of quantities -
Bills of quantities-estimated only 55
Bond, down payment or mobilisation -
performance 10
retention -
tender -
Bonus for completion 47(3)
Boreholes and exploratory excavation 18
286 Il~dex Index

Care of works Defective materials and workmanship

Certificate of completion (a) (Form EW/4)
Certificate of completion of part of the works Defects, Contractor to search for, if required
(b) (Form EW/5) Definition of special risk
Certificate, maintenance Definitions
period for honouring Delay, liquidated damages for
Certificates and payment Delays and cost on delivery of drawings
Certification of completion of works Design by nominated sub-contractors
Certification of conlpletion by stages Design, responsibility for
Civil Engineering Standard Method of Determination by Contractor
Measurement (CESMM) Discrepancies in documents
Claims for extra or additional work or expense Dismissal of Contractor's employees
Commencenlent of works Disorderly conduct, etc.
Commercial control Disruption
Colnpletion of works, bonus for Documents mutually explanatory
time for Drawings
time for extension of
Compliance with statutes, regulations, etc. Drawings, delay in issue
Construction information issue and receipt Dredging
note (Form EW/I) Drugs or Alcoholic liquor
Construction, responsibility for
Constructional plant, insurance of Employees, Contractor's
Contingencies, provisions for
Contract agreement . ,
Emnlover
Emplojer no1 1i;iblc lbr d:,m.xgu 8 , ) pl.xtll. clz.
documents Employcr's deC,+ult,p.!) ~ncnt1,) l l ~ cc\cnl a i
price Enl~lover'sl ~ : i h ~..l ~
c to\ ~. t i o nu i
Contractor's confirmation of oral instruction
(Form EW/7) ! ~n$a&mentof labour
Engineer
Contractor's general responsibilities Engineer's Representative
superintendence I Engineer and Engineer's Representative, duties
employees 1 and powers of
Cost
Costs, increase or decrease of 1 Engineer's instruction (Form EW/12)
Epidemics
Covering up work, examination before I Errors in setting-out
Currencies, payment in foreign I Examination of work before covering up
rates of exchange i
I Excepted risks
Currency restrictions ii
Customs clearance Exchange, rates of
Execution of works of repair
Daily record of resources used on daywork
(Form EW/8)
1 Exploratory excavation
Extension of time, due to Employer's failure
Damage to highways or watercourses to give possession of site
to persons and property for completion
to works I for completion, pay and non-pay
Extraordinary traffic
to works, from special risk
Damages. liquidated Faulty work, removal of
Daywork Fees and notices
Daywork sheet (Form EW/9) i! Fencing, watching, lighting, etc
Decrease or increasc of costs 1 Festivals and religious customs
Default of contractor Fluctuation, price
of employer Foreign currencies, payment in
288
Form of tender
Fossils
Foundations, examination of
Frustration
Further drawings and instructions
Giving of notices-Payment of fees
~ o v e r n i n glanguage and law
Guarantee of insurance company or bank
I.C.E. Conditions of Contract
Improper work and materials
Increase or decrease of costs
Indemnity by contractor
by employer
Injury to persons-Damage to property
inspection and testing of materials and workmanship
Inspection of foundations, etc.
of site by contractor
Instructions of engineer
Insurance-Of works
remedy on failure to insure
third party
workmen
Interest on overdue payments
Interference with trallic and adjoining properties
InterimIFinal certificate (Form EW/IO and EW/IO/I)
International Conditions, uses of
Interpretation, rules of
Labour, engagement of
other conditions affecting labour and wages
Language(s)
Latent ambiguities
defect
Law to which contract subject
Legally impossible work
Legislation, subsequent
Lighting, fencing, watching, etc.
Limit of variation
Liquidated damages for delay
Maintenance
Maintenance certificate
certificate (Form EW/I I )
Materials, advances on constructional plant and
Materials-Approval of, etc., not implied
FOB
improper, removal of
on site
quality of
supply of
Index Index
Measurement by Engineer
Measurement, method of
quantities estimated only
records
Method of measurement
Minimum certificate
Mobilisation payments
Monthly payment application
Night and Sunday work
Nominated sub-contractors, assignment of
obligations of
Nominated sub-contractors, certificate of
payments to
sub-contractors, definition
sub-contractors, design by
sub-contractors, payment to
Non-standard conditions
Notice of claims
Notices, service of
Notice and fees, payment of
!
Objection to nominated sub-contractor
Omissions, alterations and additions
Openings, uncovering and making
Oral instruction
Order of work, contractor to furnish progritmme
Other contractors, opportunities for
Outbreak of war
Overseas expansion
! Patent ambiguities
I
Ij
rights and royalties
Payment, after forfeiture
a t time of shipping
if contract terminated
in foreign currencies
I
manner of
Performance bond
Period of maintenance
Physical conditions
Physically impossible work
Plant, advances in respect of materials and
customs clearance
Employer not liable for damage to, etc.
etc., exclusive use for the works
other conditions affecting
re-export of
removal of, etc.
supply of
Possession of site
290 Index Index

Power of Engineer to fix rates Sufficiency of tender

Price fluctuations Suspension
-
Proeramme to be furnished
Progress, rate of Tax matter adjustments
Provision to indemnify Contractor Third party, liabilities
to indemnify Employer Traffic, extraordinary
Provisional sums, definition of interference with
use of
Uncovering work and making openings
Quality of materials and workmanship Unfulfilled obligations
Quantities Urgent repairs '

Rate of progress Valuation a t date of forfeiture

of exchange Variations
Rates, power of Engineer to fix Variation order (Form EWI6)
Reclamation work Vanatlons, valuation of
Records for measurement V a r ~ a t ~ o nexceedtng
s 10 per cent
Re-export of plant
Regulations, statutes, etc., compliance with War, outbreak of
Religious customs and festivals payment in the event of
Remedy, failing to carry out works of repail Watching and lighting
Removal of improper work and materials Water, supply of
of Contractor's employees Wayleaves, etc.
of plant, etc. Work, examination of before covering up
Retention money improper, removal of
Returns of labour, etc. suspension of
Risks, excepted suspension lasting longer than 90 days
special Work to be to satisfaction of Engineer
Roads, etc., damage by extraordinary traific Workmanship, quality of
interference with access to Works, ca1-e of
Royalties and patent rights completion of (maintenance certificate)
commellcement of
Safety of site operations insurance of
Samples, cost of repair of
Schedule of defects time for completion of
Setting-out Works to be measured
Shift working
Site
Site, inspection of
Site, possession of
Soecial loads
risks
StaK overseas
Standard guidance letters
Statutes, regulations, etc., conlpliance with
Subcontractors, nominated
responsibility of the contractor for acts and
and default of
observance by
Sub-letting
Subsequent legislation