FIDIC条款期末复习(西南交大峨眉)

Part1
1. Appendix to Tender 投标书附件
2. Bill of Quantities 工程量表
3. Discharge 结清证明
4. Interim payment Certificate 中期付款证书
5. Performance Security 履约担保
6. Provisional Sum 备用金额暂列金额
7. Release from performance under the Law 依照法律解除履合同
8. Suspension and Termination by Contractor 由承包商暂停和终止
9. The joint insured 共同被保险人 10. Unit Price Contract单价合同
11. Value Engineering 价值工程
3. Final Payment Certificate最终支付证书
5. Retention Money 保留金
6. Statement 报表
9. Variation 变更 10. Advance Payment 预付款
1. Force Majeure 不可抗力 3. Indemnities赔款
4. the insuring Party 保险方
5. Insurance against injury to Persons and Damage to Property人身伤害和财产损失险
8. joint and several liability共同以及个别的法律责任
9. Erection/ contractor All Risks Insurance安装/建筑工程一切险
10. infringements of intellectual property right知识产权侵权
1. Base date 基准日期
2. Commencement Date 开工日期
3. Performance Security履约担保
4. Letter of Acceptance中标函 6. Defects Notification Period缺陷通知期限
The third party liability insurance 第三者责任险 the person accident injury insurance 人身意外伤害险
12. The Contract Price shall be adjusted to take account of any increase or decrease in Cost resulting from a change in the Laws of the Country (including the introduction of new Laws and the repeal or modification of existing Laws) or in the judicial or official governmental interpretation of such Laws, made after the Base Date, which affect the Contractor in the performance of obligations under the Contract.
对于基准日期后工程所在国法律有改变（包括实施新的法律，废除法律或修改现有法律）或对此类法律的司法或政府解释有变，影响承包商履行合同规定的义务的，合同价格应考虑上述改变导致的费用增减进行调整。

13. If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim.
如果承包商未能在上述28天期限内发出索赔通知，则竣工时间不得延长，承包商则无权获得追加付款，而雇主则应免除有关该索赔的全部责任。

14. The Contractor shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
承包商有权依据20.1款的规定要求（承包商的索赔）：
(a)an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion]and
依照8.4款（延长竣工时间）的规定
(b) payment of any such Cost, which shall be included in the Contract Price.”
任何此类费用应计入合同价格，给予支付，
Republic of Lebanon
Electricite Du Liban
(EDL)
Engineering, Procurement and Construction of Two Air Insulated
Substations (AIS) 220KV in Saida赛达and Baalbeck巴尔贝克
-Electricite Du Liban (EDL), the public electric power utility(公共事业公司) in Lebanon, is interested in requesting the bids for Engineering, Procurement采购and construction建设of Two Air insulated Substations (AIS)220 kv in Saida and Baalback under the International Competitive Bidding Procedures(ICB) 国际竞争性招标. EDL will finance this Contract.
-The firms will be examined for eligibility资格based on Post-qualification criteria included in the bidding documents. The firms who pass the Post-qualification criteria will have their offers subject to detailed Technical Evaluation and, thereafter, to Financial Evaluation.
-All prospective bidders will be invited to attend a pre-bid conference. Any changes to the Bidding Documents will be circulated, and issued as amendment to the bidding documents to all the bidders. The pre-bid conference will be held at the offices of EDL-floor TJ on November 1st, 2010 at 11:00 a.m.
-Interested Bidders may obtain further information from the offices of EDL(Address below), purchase the bidding documents upon payment of a non-refundable fee of 1,000,000 L.L.(One Million Lebanese Pound) +10% V AT, payable in cash or by a Banker’s draft in the name of EDL, or inspect the Bidding Documents as of the date of this Notice during the normal working hours.
-All bids shall be accompanied by a Bid Security of the amount of 1,000,000,000 L.L. (One Billion Lebanese Pounds) according to EDL approved specimen and must be delivered at the address given below before December 14, 2010 at 11:00 a.m
.
-Bids will be opened thereafter in the presence of the bidder’s repre sentatives who choose to attend.
ELECTICITE DU LIBAN
22, RUE DU FLEUVE, 12TH Floor office 1223
P.O.BOX 131, BEIRUT, LEBANON
PHONE:961-1-442720-to 444729
FAX: 961-1-583084
Part2
15. Why is Base Date needed to be specified in the tendering documents?
It can be serve as a criterion for assessing the relevant in formation in the tender. If great changes occur during the execution of the works the contract price shall be accordingly adjusted.
16. What can be construed as a variation（变更）?
P86
1) Shall changes to quantities of an item of work be deemed to a variation?
Changes to quantities of an item of work does not necessarily constitue a variation
2) Can the Engineer issue an instruction of variation after the issuing of taking-over certificate?
The engineer shall not have the authority to do that in accordance with sub-clause 13.1
No, only on the condition that such change adversely affect the performance of contractor’s obligations under the contract.
17. What’s the prerequisite for the Employer to make an advance payment to the Contractor?
Under the condition that the employer receives the interim payment certificate for the first installment and performance security and advance payment guarantee as well.
When shall the Employer make the advance payment?
On the condition that the Employer receives statement and performance security as well as the advance payment guarantee in accordance with sub-clause 14.2.
18. If an event or a circumstance can be construed as Force Majeure, what conditions shall be satisfied?
The following conditions shall be met:
(a) which is beyond a party’s control,
(b)which such party could not reasonably have provided against before entering into the contract,
(c) which, having arisen, such party could not reasonably have avoided or overcome, and
(d) which is not substantially attributable to the other party.
19. Please read the following Sub-Clause, and answer the question:
Shall the Contractor be bound by an oral instruction?
3.3 Instructions of the Engineer
If the Engineer or a delegated assistant:
•(a) gives an oral instruction,
•(b) receives a written confirmation of the instruction, from (or on behalf of) the Contractor, within two working days after giving the instruction, and •(c) does not reply by issuing a written rejection and/or instruction within two working days after receiving the confirmation, then the confirmation shall constitute the written instruction of the Engineer or delegated assistant (as the case may be).
•
20.Can a dispute be referred directly to arbitration? Why?
In most cases, a dispute shall be referred to A DAB under sub-clause 20.4. However, if there is no DAB in place under sub-clause 20.8, it can be directly referred to arbitration under sub-clause 20.6.
21. What does the Contractor typically claim for? Please list 3 Sub-Clauses that the Contractor can apply to make a claims against the Employer.
1.What is the major difference between the accepted contract amount and the contract price?
In accordance with sub-clause 14.1, the contract price can be adjusted.
2. If the payments are delayed ,what are the remedies the Contractor can resort to?
Take account of sth
Take into consideration of sth
Submit, to sb, sth
1. Can the Employer replace the Engineer without the consent of the Contractor? Why?
No , because 3.4 (p35)
2. Can the Engineer amend the Contract? Why?
Absolutely not, sub-clause3.1 provides that the engineer shall have no authority to amend the contract, as a matter of fact, the primary reason lies in the fact that the engineer is not one of the parties to the contract.
3. If the Specification is inconsistent with the Contract Agreement, who has the authority to issue necessary clarification? Which of the two documents has
the priority to be applied?
P25 1.5
4. Can one of the parties to the Contract assign the whole or any part of the Contract or any benefit or interest in or under the Contract?
P40
6. Who has the authority to nominate a Subcontractor? Is the Contractor under obligation to employ a nominated Subcontractor?
P55 5.1 5.2
2. How does the Accepted Contract Amount differ from the Contract Price?
The later can be adjusted in accordance with the agreement between the parties to the contract or the conditions of contract.
3. Does a change of law necessarily result in adjustments of the Contract Price? Why?
Yes, p91 13.7
5. Why is a written discharge both necessary for the Contractor and the Employer?
P102 14.12
1.Under what conditions the contractor shall be entitled to suspension of the work or reduction of the rate of work?
Two conditions shall be met: first of all, the Engineer fails to certify in accordance with sub-clause 14.6 [issue of interim payment certificates] or the employer fails to comply with sub-clause 2.4[employer’s financial arrangements] or sub-clause 14.7 [payment], and the contractor shall give not less than 21 days’ notice to the Employer.
2. According to sub-paragraph (d) of Sub-Clause 15.2, the Employer shall be entitled to terminate the Contract if the Contractor subcontracts the whole of the
Works or assign the Contract without required agreement. Why is it provided in this way? Please justify the provision.
It is evident that the contractual agreement signed by the contractor and the Employer is based on the parties’ mutual trust. Therefore the provision can serve as a deterrent to ensure that the interests of the Employer shall be protected.
4. Which Party shall be the insuring Party for insurance against injury to persons and Damage to Property and for insurance for Works?
Unless otherwise stated in the particular conditions, the contractor shall be the insuring party.
5. Why does the Sub-Clause 4.17 provide that “The Contractor shall not remove from the Site any major items of Contractor’s Equipment without the
consent of the Engineer”? If the Contractor violates the provision, what could be the possible consequence?
It is provided so in that the works can be completed within the stated date. If the contractor violates the provision, time for completion is likely to be delayed and the contractor is liable for such a delay.
6. Can insurance cover the loss and damage from any cause listed in Sub-Clause 1
7.3[Employer’s Risks]? If it excludes such loss and damage, wh ich Party
Insurance against injury to persons and damage to property may exclude liability to the extent that it arises from a cause listed in Sub-Clause 17.3 [Employer’s Risks], except to the exte nt that cover is available at commercially reasonable terms.
Insurance for works and Contractor’s Equipment shall cover loss or damage from the risks listed in sub-paragraphs (c),(g) and (h) of Sub-Clause 17.3 [Employer’s risks].
If and to the extent that any of the risks list in Sub-Clause 17.3 results in loss or damage to the works, or contractor’s documents, the Contractor shall rectify the loss or damage to the extent required by the Engineer.
If the Contractor incurs Cost from rectifying the loss or damage, the Contractor shall be entitled to payment of any such cost. In the case of sub-paragraphs
(f),(g) of Sub-Clause 17.3 [Employer’s risks], reasonable profit on the cost shall be included.
1.Which party shall be the insuring party for insurin g works, materials and contractor’s documents and Contractor’s equpiments?
Unless othewise stated in the particular conditions, the contractor shall be the insuring party.
Unless othewise stated in the particular conditions, insurance under Sub-Clause 18.2 and 18.3 shall be effected and maintained by the Contractor as the insuring party.
2.What are the possible consequences if the Contractor fails to make a claim consistent with the provisions stipulated in Sub-Clause 20.1?
Refer to the second paragraph of sub-clause 20.1
3.Can the risks included in Sub-Clause 19.1 be insurable?
In most cases , damage or loss caused by the risks listed in sub-clause 19.1 shall not be insurable with the exception of the loss or damage caused by natural force
4 What i s the major reason to provide that The Contractor shall not remove from the Site any major items of Contractor’s Equipment wi thout the consent
of the Engineer?
Contractor’s Equipment is deemed to be used for execution and completion of the permanent work s and such a/the provision can partly ensure the works can be completed in accordance with Contract.
5 Can a delegated assistant deal with a claim given by the Contractor or the Employer?
No, sub-clause 3.2 makes it clear that the Engineer shall not delegate the authority to determine any matter in accordance with sub-clause 3.5[determinations] 6 What shall the contractor be obliged to do if an important antiquity is found on the site?
The contractor shall be obliged to inform the Engineer and take reasonable precautions against his staff and other person from removing or damaging it.
1 What is the major function of a performance security? And when shall the performance security be returned to the contractor?
To ensure that the contractor can perform the contract properly
2 What is the reason for providing(规定) that the contractor shall not remove from the site any major items of his equipment without the consent of the
engineer?
The main reason is to facilitate/guarantee the completion of the works in accordance with the contract.
3 To list the clause that provides the delayed drawings and instructions.
Clause 1.9
4 .Which Party shall be the insuring Party for insurance against injury to persons and Damage to Property and for effecting and maintaining the insurance for Works?
Unless otherwise stated in the Particular Conditions, the insurance shall be effected and maintained by the Contrator as insuring party.
2) How to determine the Contract price in the Red Book?
It shall be agreed or determined under Sub-Clause 12.3 and be sujected to any adjustments in accordance with the contract.
3) When shall the first half of the retention monies be certified and made/paid to the Contractor?
After the taking-over certificate is issued.
1. To specify the reason for providing that the Contractor shall not subcontract the whole of the works.
On the basis of the tendering procedure, the contractor is qualified to execute and complete the permanent works. If the contractor subcontracts the whole of the works, it may endanger the interest of the employer and delay or even ruin the works.
2. If the contractor is not satisfied with the determination made by the Engineer/the assistant to whom authority is properly delegated, what measures can be
taken by the Contractor?
Refer to sub-clause 3.2
In this case, the contractor can refer this matter to DAB for its decision in accordance with sub-clause 20.4.
3. What’s the major function of the performance security?
It is to ensure that the contractor can perform the contract properly. Otherwise, the employer shall make a claim under the performance security.
1) What are the major dispute resolution methods?
Meditation, DRB (Dispute Review Board), DAB and arbitration
Litigation
2) Can a determination made by the Engineer be revisited by DAB?
In accordance with Sub-clause 20.4, it can be referred as a dispute to DAB and be revised.
What’s the major difference between the decision made by DAB and the arbitral award?
The former can be revised in amicable settlement or an arbitral award; the latter is final and binding.
Quote:
Because of the situation in the Middle East and overseas engineering mode is not familiar with, underestimate the difficulty of implementation of the project, which did not fully conside the cost of project implementation.
1) What are the major points conveyed by Sub-Clause 20.1?
Not only the Contractor but also the Engineer should be time-conscious concerning the matter of claims.
To comply with the procedure of making claims is quite essential for the Contractor.
Revised or not
Temporarily Binding or not
Final and binding
The decision made by the DAB can be revised by an amical settlement or an arbitral award while the arbitral award is final and binding on/upon the parties to the Contract.
国际工程实务英语百事通
2. If the contractor submits his application for interim payment on June 7 and the engineer acknowledges receipt on that day, when shall the date for interim
payment by Employer be expired?
August 2
3. Who has the right to initiate an instruction? Does an instruction constitute a variation? Why?
No, it doesn’t necessarily constitute a variation.
A variation shall mainly involve changes to the scope , design , quality of the works.
A variation shall be consistent with the provision of sub-clause 13.1.if an instruction constitutes a variation, clause 13 shall apply.”
4. State the major reason for the provision that the contractor shall be entitled to terminate the contract if prolonged suspension affects the whole of the
works.
For the sake of the contractor.
The works has been suspended by the Engineer for more than 84 days and the whole of the works is affected. Therefore, to terminate the contract by the contractor is to avoid great loss and potential disputes involved.
1. What are the typical ways to resolve a dispute between the contractor and the employer?
1)amicable settlement; 2)Litigation /arbitration
ADR
2. Why is it provided t hat “for a DAB of three persons, the DAB shall be deemed to have received such reference on the date when it is received by t he
chairman of the DAB?” (Refer to sub-clause 20.4)
dissatisfaction if the DAB fails to give its decision within the stated period.
3. When shall a decision made by a DAB become effective?
•If the DAB has given its decision as to a matter in dispute to both Parties, and no notice of dissatisfaction has been given by either Party within 28 days after it received the DAB’s decision, then the decision shall become final and binding upon both Parties.
4. How do you understand the statement that the DAB shall be deemed to be not acting as arbitrators? (Refer to sub-clause 20.6)
The arbitrator(s) shall have full power to open up（公开）, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DAB, relevant to the dispute.
The decision made by the arbitral tribunal is final and binding.
6. In what way a decision made by a DAB is different from an award given by an arbitral court?
The decision made by a DAB usually becomes temporarily binding until revised by subsequent arbitration or court proceedings, while the award given by a tribunal is final and binding.
1. Which party shall be the insuring party (应投保方/投保人)for the works, goods, and Contractor’s equipment?
Unless otherwise stated in the particular conditions, the insurance shall be effected (taken out) and maintained by the contractor as the insuring party. Insure against one’s liability for loss or damages or expenses, or claims.
If the contractor fails to take out the insurance , the employ may choose to effect the insurance and pay premiums due.__ The contractor shall pay the premiums to the Employer and the contract price shall be adjusted accordingly.
The main obligation of the policyholder is to pay the premiums in accordance with the policy.
2. Which party shall be the insuring party for insuring against injury to persons and damage to property?
Unless otherwise stated in the particular conditions, the insurance shall be effected (taken out) and maintained by the contractor as the insuring party.
3. If the contractor’s equipment was insured and then be damaged by a gang of terrorists, which party shall be liable for the da mage?
The Employer
Under sub-clause 18.2 of the general conditions, insurance for Cont ractor’s equipment shall cover all loss and damage from any cause not listed in sub-clause 17.3. In this case, contractor’s equipment was caused by terrorists, which falls into one of the risks listed in sub-clause 17.3. Therefore, the employer shall be liable for such damage under sub-clause 17.4.
Risk management
4. What measures can the contractor take in order to avoid or minimize injury to his employees?
The contractor shall effect and maintain insurance for Contractor’s personnel. In addition, edu cation concerning safety should be given in order to arouse their awareness of safety.
5. state the period of coverage(保险期限) for contractors personnel.
The insurance shall be maintained in full force and effect during the whole time that these personnel are assisting in the execution of the Works.
在整个施工期间为其现场机构雇用的全部人员
6. When shall the contractor and the Employer negotiate the terms of the relevant insurance? 对保险条件进行谈判
Before/ prior to the issue of the letter of acceptance.
7. Who are the parties in an insurance agreement?
The parties include the insurer（保险人）, the insured(投保人/被保险人）, and the beneficiaries(受益人)
When shall the notice of termination become effective?
1) If the notice is issued by the Employer according to Sub-Clause 15.2, it shall take effect _28 days after the later of the dates on which the Contractor
receives this notice or the Employer returns the performance security.
2) If the notice is issued by the Contractor according to Sub-Clause 16.2, it shall take effect 28 days after the Employer receives the notice..
3) If the notice is given either by the Employer or the Cotractor under Sub-Clause 19.6, it shall take effect 7 days after the notice is given.
If a loss or damage occurs during the course of executing the works, which party shall be liable to the loss or damage?
1) If any loss or damage happens to the Works, Goods or Contractor’s Documents during the period when the Contractor is responsi ble for their care, from
any cause not listed in Sub-Clause 17.3 [Employer’s Risks], the Contractor shall rectify the loss or damage at the Contractor’s risk and cost;
2) If the loss or damage is attributable to the employer’s risks, the Employer shall be liable to such loss or damage.
3) It should be noted that the contractor(the insuring party应投保方) can resort to the insurance policy for the works, goods or contractor’s documents in
order to minimize the loss or damage.
Who shall bear the cost of rectifying the loss or damage caused by one of the risks listed under sub-clause 17.3?
In accordance with sub-clause 17.4, the cost shall be borne by the employer. However, the loss or damage of the insured items, including the works, goods or contractor’s documents, can be covered on the basis of the policy.
Part3
Case 1
Directions: Study the case and point out the mistakes the Contractor makes and offer some tips for the Contractor.
The Contractor enters into an agreement with the Employer for the hydropower station and the agreement is based on the conditions of Contract for Constructions.
1)Soon after the commencement of the Works, a major earthquake struck the Country, the Contractor gives notice to the Employer 28 days later after the
Contractor became aware of the earthquake constituting Force Majeure.
14
2)During the execution of the Works, the contractor finds out the cost of labor has sharply increased resulting from an amendment to the Laws of the
Country. 42 days later, the Contractor gives notice to the Engineer of claiming payment of additional Cost.
28
3)Prior to the completion of the works, it rains heavily for 2 weeks on end and it is evident that the completion will be delayed, the Contractor therefore
gives notice to the Engineer stating that he suffers delay because of the unforeseeable physical condition and he shall be entitled to an extension of time for such delay.
P45
Case 2
Directions: Study the case, answer the following questions.
1) The Contractor gave no notice to the Engineer before covering up a particular work. Later the Engineer required the Contractor to uncover the concealed works and test, the Contractor complied with the instruction and the testing result was consistent with the Contract.
In this case, what mistake did the Contractor make? Who shall pay the cost of uncovering and reinstating?\
P61 Contractor
2) When required by the Engineer, the Contractor uncovers the concealed work and carries out additional test on it. Although the Engineer has issued a certificate for the work before it is covered up, the result of retest turns out that it fails to be consistent with the Contract.
In this case, who shall bear the cost for uncovering, reinstating and covering-up? And if the Contractor hence suffers a delay, shall the Contractor be entitled to an extension of time for any such delay?
Case 3
Directions: Study the following picture concerning the project of the National Stadium and analyze possible Contractual relationships in English. Note: 1)The construction of the National Stadium followed the PPP mode (Private + Public + Partnership公共私营合作制), and it is co-owned by the Beijing State-Owned Assets Management Co. Ltd (BSAM), who shares 58 percent of the total assets, and the China International Trust and Investment (CITIC) Consortium, who holds the rest of the assets.
2) Reference words: 项目联合体:consortium;中信集团: CITIC Group;
中国国际工程咨询公司: China International Engineering Consulting Corporation;
北京市国资公司:Beijing State-Owned Assets Management Co., Ltd;
美国金州控股公司: Golden State Holding Group Corporation;
北京城建集团有限责任公司: Beijing Urban Construction Group (BUCG).
1.Suppose the Contractor is planning to transport a major item of Plant to the Site, but the Contractor fails to notify the Engineer in advance. While in the course of
transportation, the transporting heavy truck collides with a car and the driver in the car is badly injured. When it comes to liability, the contractor refuses to admit liability and asks the victim to negotiate with the Employer. Please point out what the Contractor does in the case is not in accordance with the Contract.
2. A tender pays a visit to the Site of the works, and finds out that the Access routes to the Site are not suitable but the tender fails to include the cost for maintaining the
suitability of access routes in the tender documents. Later, the tender is awarded the contract. During the Construction of the works, The Contractor again costs a sum of money to ensure the suitability of the access routes. Now the Contractor decides to ask the Employer to pay all the costs.
Question: if you were the Contractor, what measure would you take in this case?
4.When required by the Engineer, the Contractor uncovers the concealed work and carries out additional test on it. Although the Engineer has issued a certificate for the work
before it is covered up, the result of retest turns out that it fails to be consistent with the Contract. In this case, who shall bear the cost for uncovering, reinstating and covering-up? And if the Contractor hence suffers a delay, shall the Contractor be entitled to an extension of time for any such delay? Suppose the retest result shows the concealed work complies with the Contract, and then who shall bear the cost?
1.Suppose a gang of terrorist’s raid the Contractor’s Site and destroy a major equipment of the Contractor. And the C ontractor has insured the
equipment. In this case, is the insurer liable for compensating for the loss? Can the Sub-Clause 17.3 be applied to the case? Why?
According to Sub-Clause 18.2, it is clear that unless otherwise stated in the Particular Conditions, the insurance maintained in the case shall cover all loss and damage from any cause not listed in Sub-Clause 17.3[Employer’s risks].
In the case, the damage to the equipment is caused by a gang of terrorists. The risk (namely, terrorism) involved falls into the risks listed in Sub-Clause 17.3. Therefore the insurer is not liable for the loss.
Suppose a contractor enters into an agreement with an employer for the housing works known as Golden Sunlight and the agreement is based on the Conditions of Contract for Constructions.
1) Soon after the commencement of works, a major earthquake struck the Country, the Contractor gave notice to the Employer 28 days later after the Contractor became aware of the earthquake constituting Force Majeure;
The Contractor Shall give notice to the Employer within 14 days after the contractor became aware , or should have become aware, of the earthquake。