Construction (1999 Red Book) Subcontract Test Ed (2009)

Conditions of Subcontract for Construction (Test Edition, 2009). For building and engineering works designed by the Employer.

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ISBN:

2-88432-064-4

ISBN13:

978-2-88432-064-1

Construction (1999 Red Book) Subcontract
Test Edition; 2009
FOREWORD ACKNOWLEDGEMENTS CONTENTS Conditions of Subcontract for Works of Civil Engineering Construction For use in conjunction with the FIDIC Conditions of Contract for Construction, 1st Edition 1999. General Conditions Guidance for the Preparation of the Particular Conditions Forms of Letter of Subcontractor's Offer, Contractor's Letter of Acceptance and Subcontract Agreement
		Soft cover; 110 pages
Foreword
The terms of the Conditions of Subcontract for Construction have been prepared by the Fédération Internationale des Ingénieurs-Conseils (FIDIC) and are recommended for use in conjunction with the FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, 1st Edition 1999, and with the Multilateral Development Bank Harmonised Edition of the FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer. They replace the terms of the FIDIC Conditions of Subcontract for Works of Civil Engineering Construction, 1st Edition 1994, that were recommended for use in conjunction with the FIDIC Conditions of Contract for Works of Civil Engineering Construction (4th Edition 1987, Reprinted 1992 with Further Amendments). The document begins with a series of flow charts which show, in visual form, the critical sequences of activities which are specific and unique to the subcontract form of contract. These have been included by the drafting task group to facilitate an understanding of the procedures and terminology found in these FIDIC Conditions of Subcontract for Construction. These flow charts cover: Typical sequence of Principal Events during Subcontracts for Construction Typical sequence of Subcontract Payment Events envisaged in Clause 14 Typical sequence of Subcontract Dispute Events envisaged in Clause 20. These charts are illustrative and must not be taken into consideration in the interpretation of the Conditions of Subcontract. In the preparation of the FIDIC Conditions of Subcontract it was recognised that while there are numerous Clauses which will be generally applicable there are some clauses which must necessarily vary to take account of the circumstances and locality of the Subcontract Works. The causes of general application have been grouped together in the first part of this document and are referred to as General Conditions of Subcontract. They have been published in a form which will facilitate their inclusion as printed in the subcontract documents normally prepared. The Particular Conditions of Subcontract are linked with the General Conditions of Subcontract by the corresponding numbering of the clauses, so that the General Conditions and the Particular Conditions together comprise the Conditions of Subcontract governing the rights and obligations of the parties. The Special Conditions of Subcontract must be specially drafted to suit each individual Subcontract. The guidance in the second part of this document – Guidance for the Preparation of Particular Conditions of Subcontract – is intended to aid in this task by giving options for various clauses, where appropriate. The use of clauses or sub-clauses in the Particular Conditions of Subcontract may be necessary or appropriate for one or more reasons, of which the following are examples: Where the wording in General Conditions specifically requires that further information is to be included in Particular Conditions and the Conditions of Subcontract would not be complete without that information, namely in Sub- Clauses 1.1.8, 1.1.9, 1.1.11, 1.1.18, 1.1.27, 1.9, 2.1, 8.4, 18.1, and 18.2. Where the wording in the General Conditions indicates that supplementary information may be included in the Particular Conditions, but the Conditions of Subcontract would still be complete without any such information, namely in Sub-Clauses 1.11, 2.1, 2.2, 4.1, 7.1, 7.2, 9.1, 10.2, 10.3, 14.6, and 18.2. Where the type, circumstances or locality of the Subcontract Works necessitate additional clauses or sub-clauses (for example, when the Subcontractor has been nominated by the Employer). Where the governing law or exceptional circumstances necessitate an alteration in the General Conditions. Such alterations should be effected by stating in the Particular Conditions that a particular clause, or part of a clause, in the General Conditions is deleted and giving the substitute clause, or part, as applicable. In other cases, however, only guidance for drafting purposes is given. Before incorporating any example wording it must be checked to ensure that it is wholly suitable for the particular circumstances and, if not, it must be varied. Where example wording is varied and in all cases where additional material is included in the Particular Conditions of Subcontract, care must be taken to ensure that no ambiguity is created with the General Conditions of Subcontract or between the clauses in the Particular Conditions of Subcontract. The Guidance for the Preparation of Particular Conditions of Subcontract include sample forms, with some guidance, of annexes that are to be attached to the Particular Conditions of Subcontract: Annex A: Particulars of the Main Contract Annex B: Scope of Subcontract Works and Schedule of Subcontract Documents Annex C: Incentive(s) for Early Completion, Taking-Over by the Contractor and Subcontract Bill of Quantities Annex D: Equipment, Temporary Works, Facilities, and Free-Issue Materials to be provided by the Contractor Annex E: Equipment, Temporary Works, Facilities, and Free-Issue Materials to be Provided by the Contractor Annex F: Insurances Annex G: Subcontract Programme Annex H: Other Items Sample forms of offer, acceptance and agreement at the end of the document are: Letter of Subcontractor's Offer Contractor's Letter of Acceptance Appendix to the Subcontractor's Offer Subcontract Agreement Acknowledgements In preparing the FIDIC Conditions of Subcontract for Construction, special thanks are extended to members of the Subcontract Task Group of the FIDIC Contracts Committee. The task group comprised Richard Appuhun, Civil Engineer, Italy, Nael Bunni, Chartered Engineer, Ireland, Edward Corbett, Corbett & Co., UK, Shiobhan Fahey, Consulting Engineer, Ireland, and Zoltan Záhonyi, Consulting Engineer, Hungary. The preparation was carried out under the general direction of the FIDIC Contracts Committee which comprised until September 2009: Axel-Volkmar Jaeger, Consulting Engineer, Germany (Chair); Christopher Wade, Consulting Engineer, UK (Former Chair); Philip Jenkinson, Atkins, UK; Nael Bunni, Chartered Engineer, Ireland; Legal Adviser Christopher Seppala, White and Case LLP, France; Special Adviser Michael Mortimer-Hawkins, Consulting Engineer, UK and Sweden. From September 2009, the committee comprised Philip Jenkinson, Atkins, UK (Chair), Christoph Theune, Pöyry Environment GmbH, Germany, and Zoltan Záhonyi, Consulting Engineer, Hungary, with Axel-Volkmar Jaeger, Christopher Wade, Nael Bunni, Christopher Seppala, and Michael Mortimer-Hawkins as Special Advisers. Drafts were reviewed by many persons and organisations, including those listed below. Their valuable comments were reviewed by the Subcontract Task Group and, where considered appropriate, have influenced the wording of the clauses. Des Barry, JB Barry & Partners, Ireland; Pieter de Bruijn, Ballast Nedam Infra B.V., Netherlands; Peer Dalland, Dalland Associates Pty Ltd, Australia; European International Contractors; Dr Götz-Sebastian Hök, Dr Hök Stieglmeier & Kollegen, Germany; Anthony Hussey, Hussey Fraser Solicitors, Ireland on behalf of the Chartered Institute of Arbitrators (Irish Branch); Wolf-Rainer Kruska, KfW Bankengruppe, Germany; Brian Bond, Consulting Engineer, Ireland; Advocate Patrick MM Lane SC, Maisels Group, South Africa; HH Humphrey Lloyd QC, Atkin Chambers, UK; Darko Plamenac, Construction and Geodesy Advanced School, Serbia; Siemens A.G., Germany; Svend Poulsen, Atkins, Denmark; Robin Schonfeld, SMEC International Pty Ltd, Australia; Christopher Seppala, White & Case, France; Olivier Wolters, Simed Health Care Group B.V., Netherlands; Professor Rudi Klein, Specialist Engineering Contractors' Group, UK; George Rosenberg Corbett & Co., UK; and all other persons who gave comments and feedback. FIDIC wishes to record its appreciation of the time and effort devoted by all the above. FIDIC also wishes to thank Geoff French, Executive Committee member responsible for the FIDIC Contracts Committee, Enrico Vink, Managing Director, FIDIC, and Peter Boswell, General Manager, FIDIC, for their support and help in producing this document. The ultimate decision regarding the wording of the clauses and format of the document rests with FIDIC, and acknowledgement of reviewers does not mean that they concur with or approve the wording of all clauses. ContentsGENERAL CONDITIONS 1. Definitions and Interpretation 1.1 Subcontract Definitions 1.2 Headings and Marginal Notes 1.3 Subcontract Interpretation 1.4 Subcontract Communications 1.5 Priority of Subcontract Documents 1.6 Notices, Consents, Approvals, Certificates, Confirmations, Decisions, and Determinations 1.7 Joint and Several Liability under the Subcontract 1.8 Subcontract Law and Language 1.9 Subcontract Agreement 1.10 No Privity of Contract with Employer 1.11 Subcontract Sections 2. The Main Contract 2.1 Subcontractor's Knowledge of Main Contract 2.2 Compliance with Main Contract 2.3 Instructions and Determinations under Main Contract 2.4 Rights, Entitlements and Remedies under Main Contract 2.5 Main Contract Documents 3. The Contractor 3.1 Contractor's Instructions 3.2 Access to the Site 3.3 Contractor's Claims in connection with the Subcontract 3.4 Employer's Claims in connection with the Main Contract 3.5 Co-ordination of Main Works 4. The Subcontractor 4.1 Subcontractor's General Obligations 4.2 Subcontract Performance Security 4.3 Access to the Subcontract Works 4.4 Subcontractor's Documents 5. Assignment of the Subcontract and Subcontracting 5.1 Assignment of Subcontract 5.2 Subcontracting 6. Co-operation, Staff and Labour 6.1 Co-operation under the Subcontract 6.2 Persons in the Service of Others 6.3 Contractor's Subcontract Representative 6.4 Subcontractor's Representative 7. Equipment, Temporary Works, Other Facilities, Plant, and Materials 7.1 Subcontractor's Use of Equipment, Temporary Works, and/or Other Facilities 7.2 Free-Issue Materials 7.3 Indemnity for Misuse 7.4 Ownership of Subcontract Plant and Materials 7.5 Subcontractor's Equipment and Subcontract Plant 8. Commencement and Completion 8.1 Commencement of Subcontract Works 8.2 Subcontract Time for Completion 8.3 Extension of Subcontract Time for Completion 8.4 Subcontract Programme 8.5 Subcontract Progress Reports 8.6 Suspension of Subcontract Works by the Contractor 8.7 Subcontract Damages for Delay 9. Tests on Completion 9.1 Subcontract Tests on Completion 9.2 Main Contract Tests on Completion 10 COMPLETION AND TAKING-OVER THE SUBCONTRACT WORKS 10.1 Completion of Subcontract Works 10.2 Taking-Over the Subcontract Works 10.3 Taking-Over by the Contractor 11. Defects Liability 11.1 Subcontractor's Obligations after Taking-Over 11.2 Subcontract Defects Notification Period 11.3 Performance Certificate 12. Measurement and Evaluation 12.1 Measurement of Subcontract Works 12.2 Quantity Estimated and Quantity Executed 12.3 Evaluation under the Subcontract 13. Subcontract Variations and Adjustments 13.1 Variation of Subcontract Works 13.2 Valuation of Subcontract Variations 13.3 Request for Proposal for Subcontract Variation 13.4 Subcontract Adjustments for Changes in Legislation 13.5 Subcontract Adjustments for Changes in Cost 13.6 Subcontract Daywork 14. Subcontract Price and Payment 14.1 The Subcontract Price 14.2 Subcontract Advance Payment 14.3 Subcontractor's Monthly Statements 14.4 Subcontractor's Statement at Completion 14.5 Contractor's Application for Interim Payment Certificate 14.6 Interim Subcontract Payments 14.7 Payment of Retention Money under the Subcontract 14.8 Final Subcontract Payment 14.9 Delayed Payment under the Subcontract 14.10 Cessation of the Contractor's Liability 14.11 Subcontract Currencies of Payment 15. Termination of the Main Contract and Termination of the Subcontract by the Contractor 15.1 Termination of Main Contract 15.2 Valuation at Date of Subcontract Termination 15.3 Payment after Termination of Main Contract 15.4 Termination of Main Contract in Consequence of Subcontractor Breach 15.5 Notice to Correct under the Subcontract 15.6 Termination of Subcontract by the Contractor 16. Suspension and Termination by the Subcontractor 16.1 Subcontractor's Entitlement to Suspend Work 16.2 Termination by the Subcontractor 16.3 Payment on Termination by the Subcontractor 17. Risk and Indemnities 17.1 Subcontractor's Risks and Indemnities 17.2 Contractor's Indemnities 17.3 Subcontract Limitation of Liability 18. Subcontract Insurances 18.1 Subcontractor's Obligation to Insure 18.2 Insurance arranged by the Contractor and/or the Employer 18.3 Evidence of Insurance and Failure to Insure 19. Subcontract Force Majeure 19.1 Subcontract Force Majeure 20. Notices, Subcontractor's Claims and Disputes 20.1 Notices 20.2 Subcontractor's Claims 20.3 Failure to Comply 20.4 Subcontract Disputes 20.5 Appointment of the Subcontract DAB 20.6 Obtaining Subcontract DAB's Decision 20.7 Subcontract Arbitration Index and Index of Sub-Clauses GUIDANCE FOR THE PREPARATION OF PARTICULAR CONDITIONS OF SUBCONTRACT Contents Introduction Notes on the Preparation of Subcontract Tender Documents Clauses 1 - 20 Annexes Annex A: Particulars of the Main Contract Annex B: Scope of Subcontract Works and Schedule of Subcontract Documents Annex C: Incentive(s) for Early Completion, Taking-Over by the Contractor and Subcontract Bill of Quantities Annex D: Equipment, Temporary Works, Facilities, and Free-Issue Materials to be provided by the Contractor Annex E: Insurances Annex F: Subcontract Programme Annex G: Other Items SAMPLE FORMS Letter of Subcontractor's Offer Appendix to the Subcontractor's Offer Contractor's Letter of Acceptance Subcontract Agreement

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