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THE MINISTRY OF
CONSTRUCTION
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No. 30/2016/TT-BXD
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Hanoi, December
30, 2016
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CIRCULAR
ON
GUIDELINES FOR ENGINEERING, PROCUREMENT AND CONSTRUCTION CONTRACTS
Pursuant to the Law on Construction No.
50/2014/QH13 dated June 18, 2014;
Pursuant to the Government's Decree No.
37/2015/ND-CP dated April 22, 2015 on guidelines for construction contracts;
Pursuant to the Government's Decree No.
46/2015/ND-CP dated May 12, 2015 on quality management and construction
maintenance;
Pursuant to the Government's Decree No.
59/2015/ND-CP dated June 18, 2015 on project management;
Pursuant to the Government's Decree No.
62/2013/ND-CP dated July 25, 2013 defining the functions, tasks, entitlements
and organizational structure of the Ministry of Construction;
At the request of Director of Department of
Construction Economics,
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Article 1. Scope
1. This Circular provides guidelines for Engineering,
Procurement and Construction contracts (hereinafter referred to as EPC
contracts) for construction projects prescribed in Clause 2 Article 1 the
Government's Decree No. 37/2015/ND-CP dated April 22, 2015 on guidelines
for construction contracts (hereinafter referred to as Decree No.
37/2015/ND-CP), including: rules for applying EPC contracts; preparation and
signing of EPC contracts; management of performance of EPC contracts; rights
and obligations of entities entering into EPC contracts; EPC general
contractors; guidelines for application of EPC contract template.
2. In case of any discrepancy between the text of
an international treaty to which the Socialist Republic of Vietnam is a
signatory or accedes and regulations of this Circular, such text shall prevail.
Article 2. Regulated entities
1. Entities relating to the formation and
management of EPC contracts within the scope prescribed in Article 1 hereof.
2. Entities relating to the formation and
management of EPC contracts not within the scope prescribed in Article 1 hereof
are recommended to apply this Circular.
Article 3. Rules for applying
EPC contracts
1. According to characteristics, nature, and scope
of each project, EPC contract package and regulations of law, the investment
decision maker shall decide the form of EPC contract for such project and
contract package, and take legal responsibility for the effectiveness of
construction projects.
2. An EPC contract applies solely to construction
projects and contract packages of which execution time is required to be
shortened; or those with high requirements for engineering, technology and the
uniformity from the engineering design, procurement, construction phases to the
training in commissioning and project transfer phases.
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4. The EPC contract costs shall be managed in such
a manner as not to exceed the EPC contract price in conformity with its
agreements.
5. Engineering designs of projects or contract
packages using EPC contracts must satisfy requirements prescribed in Clause 1
Article 54 of the Law on Construction No. 50/2014/QH13.
6. EPC contracts shall be concluded and managed in
such a manner in accordance with regulations of law on construction contracts.
Article 4. Preparation and
signing
1. During the contract preparation, signing, and
performance, the Contractor is encouraged to propose initiatives, measures and
apply its experience to complete the work specified in the EPC contract, ensure
the safety, quality, schedule, objectives, requirements, and improve the effectiveness
of the project/contract package.
2. The parties shall, before the signing of EPC
contract, at least reach an agreement on the following contents:
a) Estimated scope of work
b) Location, routes, type, and level of facility;
scope, capacity, and chosen procurement plan, use capacity;
c) Materials, and data on natural conditions,
geotechnical engineering, hydrogeology, and hydrography of the area where the
facility is built;
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dd) Plans for technology, engineering, equipment,
and commerce; origin of equipment and products;
e) Plan for infrastructure connections within and
beyond the scope of facility; fire prevention measures within the scope of EPC
contract;
g) Construction-related measures, primary materials
to be used;
h) Requirements pertaining to construction quality
control, testing, commissioning, guarantees, and maintenance;
i) Solutions to architecture, ground, cross, and
vertical section of the facility, sizes and main structure of the facility
within the scope of EPC contract;
k) List and levels of standards, technical
standards to be used in engineering, procurement, and construction;
l) Technical instructions on supply and equipment,
technical services;
m) Requirements pertaining to qualifications of the
Contractor in the contract package, including: qualifications in engineering,
procurement and construction;
n) Requirements pertaining to environment
protection, safety assurance, and fire prevention, and other issues.
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p) Schedule and milestones for completion of
essential work and/or items and the whole facility to be put into operation and
use;
q) Allocate responsibilities between Employer and
Contractor with respect to supply of electricity, water, communications,
internal roads, and other available services in the facility, and processing of
interface between contract packages within the same construction project;
3. Preparation
Terms, general and special conditions of the EPC
contract must be prepared in conformity with guidelines prescribed in Article
18 hereof.
4. Signing
a) An EPC contract is signed only when all rules
for signing of the construction contract prescribed in Article 4 of Decree No.
37/2015/ND-CP are satisfied.
b) Requirements for the EPC Contractor
The EPC Contractor must have obtained adequate
operation and practice qualifications in accordance with law on construction
investment, in particular:
- Its registered lines of business are consistent
with the work of the contract package. If the Contractor is a joint venture, a
joint venture agreement is required, in which a JV's Party acts as the head of
the joint venture, takes general responsibility and commits to undertake the
tasks assigned by Contractors, and registered lines of business of each JV's
Party are consistent with the assigned tasks;
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- It satisfies financial requirements of the
project/contract package and proves its capital mobilization to perform the EPC
contract.
c) The negotiation and signing of the EPC contract
shall be carried out according to requirements in the Bidding Documents, Bids,
approved results of bidder selection, or written direct contracting issued by
competent authorities;
d) The schedule of negotiation and signing of the
contract must be consistent with the general schedule and ensure the
effectiveness of the project.
Article 5. Performance
management
The performance of EPC contract shall be managed in
accordance with Article 7 of Decree No. 37/2015/ND-CP and the following regulations:
1. Manage scope of the work according to objectives
of the contract package and list of tasks specified in the contract; inspect
whether documents on survey and engineering have applied to the tasks of EPC
contract with accuracy, adequacy, and conformity.
2. Manage the schedule of tasks in conformity with
the general schedule of the project and the EPC contract.
3. Inspect and manage quality and quantity of tasks
to be performed in the EPC contract.
4. Manage expenses associated with tasks in the EPC
contract; control, pay, and adjust the EPC prices.
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6. Manage the adjustments to the EPC contract and
its other necessary contents.
Article 6. Management of
construction survey and construction design within the scope of EPC contract
1. The construction survey within the scope of EPC
contract must be consistent with Section 1 Chapter IV of the Law on
Construction No. 50/2014/QH13; Chapter II of the Government's Decree No.
46/2015/ND-CP dated May 12, 2015 on construction quality control and
maintenance (hereinafter referred to as Decree No. 46/2015/ND-CP); Circular of
the Minister of Construction on guidelines for construction quality control and
maintenance; and regulations of relevant law provisions.
2. Management of construction design
a) The construction design within the scope of EPC
contract must be consistent with regulations on design prescribed in the Law on
Construction No. 50/2014/QH13; Chapter III of the Government's Decree No.
46/2015/ND-CP; Section 1 Chapter III of the Government's Decree No.
59/2015/ND-CP dated June 18, 2015 on management of construction projects
(hereinafter referred to as Decree No. 59/2015/ND-CP); Circular of the Minister
of Construction on guidelines for construction quality control and maintenance;
and regulations of relevant law provisions.
b) Management of appraisal, assessment, approval
and amendments to construction design:
- Engineering designs made by the Contractor must
be appraised, assessed and approved as prescribed in Articles 24 and 25 of
Decree No. 59/2015/ND-CP and Point e Clause 2 Article 32 of Decree No.
37/2015/ND-CP.
- The Contractor may create engineering designs for
parts of the facility in accordance with technical stages which are submitted
to construction authorities, investment decision maker, and investor for
appraisal, assessment, and approval as prescribed.
- The appraisal of construction design shall be
consistent with Article 83 of the Law on Construction No. 50/2014/QH13, other
than regulations in Clause 7 Article 83 of the Law on Construction No.
50/2014/QH13; Circular No. 18/2016/TT-BXD dated June 30, 2016 of the Minister
of Construction on guidelines for assessment and approval for projects and
construction designs and estimates (hereinafter referred to as Circular No.
18/2016/TT-BXD); and regulations of relevant law provisions.
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Article 7. Management of
procurement of material and technological equipment within the scope of EPC
contract
1. Prior to the procurement for EPC contract, the
Contract shall submit requirements for the procurement to the Employer for its
consent if agreed upon in the contract. The Employer’s consent will not
diminish responsibility of the Contractor for the procurement for EPC contract.
2. The Contractor may perform the direct
procurement or subcontract the procurement for the EPC contract. If the procurement
is subcontracted, the Contractor shall, prior to the selection of
subcontractors, reach an agreement with the Employer on requirements for the
subcontractor provided that requirements pertaining to engineering, origin,
technology specified in the signed EPC contract remains unchanged.
Article 8. Management of
construction within the scope of EPC contract
1. The Contractor may begin the construction only
when it satisfies all conditions prescribed in Decree No. 46/2015/ND-CP; Decree
No. 59/2015/ND-CP; Circular No. 18/2016/TT-BXD; Circular of the Minister of
Construction on guidelines for construction quality control and maintenance;
and other relevant law provisions, namely: The engineering design of facility
to be executed has been assessed, appraised, and approved as prescribed; a
construction license for the part of facility to be executed has been obtained,
except for cases eligible for exemption from construction licenses as
prescribed.
2. The management of construction specified in the
contract must be consistent with Chapter IV of Decree No. 46/2015/ND-CP;
Circular of the Minister of Construction on guidelines for construction quality
control and maintenance.
3. Management of selection of subcontractors: The
selection of subcontractors must satisfy requirements prescribed in Article 47
of Decree No. 37/2015/ND-CP.
4. In case of any absent regulations on management
of construction in this Circular, available regulations in Decree No.
37/2015/ND-CP and Circular No. 09/2016/TT-BXD dated March 10, 2016 of the
Minister of Construction on guidelines for construction contract shall apply.
Article 9. Management of
performance schedule of EPC contract within its scope
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Article 10. Quality control
within the scope of EPC contract
1. Tasks, items, and facilities to be delivered
must meet quality conditions as prescribed in regulations on construction
quality control and Article 13 of Decree No. 37/2015/ND-CP. The Contractor must
adopt appropriate measures for controlling quality of the work performed by
itself or the subcontractor.
2. All facilities, work items within the scope of
EPC contract to be put into operation must meet the conditions prescribed in
Clause 4 Article 31 of the Government’s Decree No. 46/2015/ND-CP dated May 12,
2015 on construction quality control and maintenance and Circular of the
Minister of Construction on guidelines for construction quality control and
maintenance.
Article 11. Management of
safety, environment protection, and fire prevention within the scope of EPC
contract
When the EPC contract is performed, apart from
regulations prescribed in Article 48 of Decree No. 37/2015/ND-CP, the parties
must comply with the following regulations:
1. The Employer shall inspect the Contractor’s
adoption of measures for labor safety, environment protection, and fire
prevention as agreed upon in the signed EPC contract and relevant law
provisions.
2. Labor safety management:
a) Adhere to applicable regulations of the
Government on labor safety;
b) The Contractor shall provide training in safety
for its labor and provide adequate personal protective equipment and necessary
rescue equipment;
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d) Ensure the availability of fences, lighting and
protective system of the facility until its completion and delivery.
3. Management of environment:
a) The Contractor must adopt measures for
environment assurance for labor on site and surrounding environment;
b) The parties shall inspect and monitor the
construction environment protection, and be subject to the inspection of
environment authorities. If the Contractor fails to comply with regulations on
environment protection, the Employer or a competent authority is entitled to
suspend the construction and require the Contractor to strictly adopt measures
for environment protection;
c) Any entity causing harm to environment during
the construction process shall take legal responsibility and compensate for
damage at its/his/her faults.
4. Management of fire prevention:
a) Involved parties in the EPC contract must comply
with regulations on fire prevention;
b) Install and maintain a system of fire safety so
as to control, alert, or make reasonable predictions, and avoid possible
occurrence of damage to people and property from fire;
Article 12. Management of
amendments to EPC contract and other essential contents within the scope of EPC
contract
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2. The involved parties of the contract shall also,
according to the characteristics and nature of the contract, apply other
regulations of legislation on construction investment for the purpose of
managing the contract performance properly.
Article 13. Management of
contract price, payment and settlement of EPC contract
1. Lump sum contract is a basic form of contract
price applicable to an EPC contract. If the EPC contract applies other forms of
contract price as prescribed in Article 15 of Decree No. 37/2015/ND-CP, the
investment decision maker shall, according to characteristics, nature, and
scope of each EPC project/contract package, select an appropriate form of
contract price, provided that it satisfies conditions prescribed in Clause 5
Article 15 of Decree No. 37/2015/ND-CP and take legal responsibility for the
project's effectiveness.
2. When the form of lump sum contract is used, a
price schedule of tasks and work items must be enclosed with EPC contract so as
to facilitate the management of amendments to the EPC contract during its
performance.
3. The payment of EPC contract shall be consistent
with Article 19 of Decree No. 37/2015/ND-CP.
4. The settlement of EPC contract shall be
consistent with Article 22 of Decree No. 37/2015/ND-CP.
5. The adjustments to the EPC contract price shall
be consistent with Circular No. 07/2016/TT-BXD dated March 10, 2016 of the
Minister of Construction on guidelines for adjustments to construction contract
price.
Article 14. Rights and
obligations of Employer in management of contract performance
1. The Employer has rights to:
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b) Inspect the performance of the Contractor
according to the signed contract without prejudicing the Contractor’s ordinary
course of business;
c) Suspend the contract performance and request
remedial measures upon the occurrence of any work performed by the Contractor
that breaches agreed contents in the signed contract or violate regulations of
law;
d) Request the Contractor to deliver documents
relating to the products of the contract in accordance with the agreed
contents;
dd) Consider a list of eligible subcontractors that
have not been included in the EPC contract upon the Contractor's request;
e) Other rights as prescribed.
2. The Employer has obligations to:
a) Carry out the acceptance, payment, and
settlement of contract on time as prescribed;
b) Assign key personnel to manage and perform the
contract and notify the Contractor of such assignment in writing;
c) Provide the Contractor with information,
materials, and means deemed necessary to perform the work as agreed upon in the
EPC contract;
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dd) Apply for construction licenses as prescribed,
hand over the premises to the Contractor as agreed in the EPC contract;
e) Monitor whether the tasks have been performed in
conformity with the signed contract; inspect whether measures for labor safety,
environment protection, and fire prevention have been adopted in accordance
with regulations of law;
g) Reach an agreement with the Contractor on
Bidding Documents on procurement of technological equipment in conformity with
the signed EPC contract;
h) Ensure copyright in the contract-related
consultancy products;
i) Provide training courses in commissioning of
facilities for administrative officers and workers;
k) Other obligations as prescribed.
Article 15. Rights and
obligations of Contractor in management of contract performance
1. The Contractor has rights to:
a) Require the Employer to provide information,
materials, and working facilities relating to the work as agreed upon in the EPC
contract;
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c) Organize and manage the work performance in
accordance with the signed contract;
d) Other rights as prescribed.
2. The Contractor has obligations to:
a) Provide sufficient personnel, materials,
machinery, equipment, and other facilities deemed necessary to perform the work
specified in the contract;
b) Receive, manage, store, and hand over materials
and facilities provided by the Employer in conformity with the signed EPC
contract;
c) Notify the Employer of information or materials
that are insufficient or working facilities that are unsatisfied to perform the
work of the EPC contract;
d) Keep secrets of information relating to the
contract as agreed upon in the contract or as prescribed by law;
dd) Perform the work of contract in consideration
of safety, quality, schedule and other arrangements as specified in the EPC
contract;
e) Create construction designs of work items and
main works in conformity with fundamental design or Front End Engineering
Design that has been approved, and submit them to the competent authority or
investor for assessment and approval as prescribed in Clause 2 Article 6 hereof
and regulations of law on construction;
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h) Provide training courses in commissioning of
facilities, technology transfers, and technical services as specified in the
EPC contract for administrative officers and workers;
i) Carry out testing, adjustments, and
commissioning synchronously in the facilities and deliver the completed
facilities to the Employer as agreed upon in the contract and in accordance
with applicable law;
k) Ensure that any products provided does not
constitute infringement of intellectual property rights as prescribed by law;
l) Deliver documents relating to the products of
the contract to the Employer in accordance with the EPC contract;
m) Other obligations as prescribed.
Article 16. Rights and
obligations of consultancy hired by Employer in management of contract
performance (to be applicable if the Employer hires a consultancy)
1. The consultancy of the Employer has rights to:
a) Require the Employer to provide information,
materials relating to the consulting tasks, and working facilities as agreed
upon in the consulting contract in conformity with the EPC contract;
b) Propose changes to conditions for providing
consultancy services in the interests of the Employer or upon the occurrence of
any elements affecting the consulting service quality;
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d) Have its consultancy service’s copyright
protected as prescribed by law;
dd) Request the Employer to fulfill the obligations
as specified in the EPC contract within its rights and responsibilities.
e) Other rights as prescribed.
2. The consultancy of the Employer has obligations
to:
a) Complete the work on schedule and with quality
as specified in the contract;
b) Store and return the materials and working
facilities that have been provided by the Employer upon the completion of work
as specified in the EPC contract.
c) Notify the Employer of information and materials
that are insufficient and working facilities that are unsatisfied in writing;
d) Keep secrets of consultancy services as required
by the contract or regulations of law;
dd) Sign documents relating to the management of
EPC contract within the consulting obligations as specified in the consulting
contract.
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Article 17. Management of
all-inclusive EPC contract
1. All-inclusive EPC contract means a form of
contract relating to engineering, procurement and construction of all
facilities in a construction project.
2. The management of all-inclusive EPC contract
shall be consistent with regulations of Article 5 through Article 12 of this
Circular within the entire scope of the project.
3. Rights and obligations of EPC general
contractor: In accordance with Article 15 hereof within the entire scope of the
project and the following obligations:
a) Manage scope of the work according to objectives
of the contract package and list of tasks specified in the contract; inspect
whether documents on survey, design and engineering have applied to the tasks
of all-inclusive EPC contract with accuracy, adequacy, and conformity.
b) Manage the schedule of tasks in conformity with
the general schedule of the project and the all-inclusive EPC contract.
c) Control all construction means and methods
within the construction site of the entire project.
d) Make addition or replacement of subcontractors
to ensure the quality, price, and schedule of the work specified in the
contract with the investor’s consent;
dd) Manage expenses associated with the work in the
contract; control, pay and adjust the contract price as agreed and relevant law
provisions.
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g) Cooperate with the investor in providing
training courses in commissioning of the facilities for administrative officers
and workers.
4. The all-inclusive EPC contract costs shall be
included in its contract price.
Article 18. Guidelines for
using EPC contract template enclosed with this Circular
1. The EPC contract template enclosed with this
Circular includes 2 parts:
Part I. Bases for signing of contract
Part II. Terms and conditions of contract
2. Guidelines:
a) The EPC contract template enclosed with this
Circular is a form of contract used by the investor and the contractor; in a
case where the Employer is a contractor, this template shall be applied in such
an appropriate manner.
b) The template is used for the purposes of
reference and proper application in actual conditions of the project,
facilities, and EPC contract package. In case of using the template, the
involved parties shall reach an agreement in accordance with regulations Decree
No. 37/2015/ND-CP, guidelines in this Circular and relevant regulations of law.
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d) If the scope and work requirements in a specific
contract package differ from those specified in the contract template,
amendments may be allowed provided that they are consistent with regulations of
Decree No. 37/2015/ND-CP.
dd) If the scope of acceptance work agreed by the
parties differs from that specified in the contract template, amendments may be
allowed provided that they are consistent with regulations of Decree No.
37/2015/ND-CP.
e) If the contractor is a joint venture, the
parties shall reach an agreement on performance security and bank guarantee for
advance payment in accordance with Decree No. 37/2015/ND-CP.
g) The parties shall reach an agreement on an
advance amount in accordance with requirements of each type of work in the
contract and Decree No. 37/2015/ND-CP.
h) The parties shall reach an agreement on type of
currency and methods of payment in the contract in accordance with requirements
of the Bidding Documents and regulations of law on foreign exchange.
i) This contract template shall apply to lump sum
contract. In case of a contract applying fixed price, adjustable price, or
mixed price, the parties shall make appropriate amendments to the contract in
accordance with regulations of Decree No. 37/2015/ND-CP and this Circular.
Article 19. Transitional
provisions and entry into force
1. Transitional provisions
a) With regard to an EPC contract which has been
signed before the effective date of this Circular, the involved parties shall
keep complying with regulations on construction contract before such effective
date and arrangements specified in the contract.
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c) With regard to EPC contract-related contents in
Bidding Documents or Request for Proposals, contents that have not been
published not in accordance with this Circular shall be amended properly, those
that have been published subject to amendments shall be communicated to all
bidders that have bought Bidding Documents or Request for Proposals for
appropriate amendments to their Bids and Proposals. In case of Bid closing,
Point b of this Clause shall apply.
2. Other contents relating to the EPC contract not
guided in this Circular shall be consistent with regulations of Decree
No. 37/2015/ND-CP, Circular No. 07/2016/TT-BXD dated March 10, 2016 of the
Minister of Construction on guidelines for price adjustments to construction
contracts, Circular No. 08/2016/TT-BXD dated March 10, 2016 of the Minister of
Construction on guidelines for construction consulting contracts and Circular
No. 09/2016/TT-BXD dated March 10, 2016 of the Minister of Construction on
guidelines for construction.
3. This Circular comes into force from February 20,
2017.
PP. MINISTER
DEPUTY MINISTER
Bui Pham Khanh
TEMPLATE
OF EPC CONTRACT
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
---------------
[Location]…,[date]…
ENGINEERING,
PROCUREMENT AND CONSTRUCTION CONTRACT
No.
......../…(Year)/…(symbol)
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PROJECT
(PROJECT’S NAME) OR CONTRACT PACKAGE (CONTRACT PACKAGE’S NAME) NO. …
OF
PROJECT (PROJECT’S NAME) …
BETWEEN
(EMPLOYER’S
BUSINESS NAME)
AND
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(CONTRACTOR’S
BUSINESS NAME)
TABLE
OF CONTENTS
PART 1 - BASES FOR SIGNING OF
CONTRACT
PART 2 - TERMS AND CONDITIONS OF
CONTRACT
ARTICLE 1. DEFINITIONS AND INTERPRETATION
ARTICLE 2. CONTRACT DOCUMENTS AND PRIORITY
OF DOCUMENTS
ARTICLE 3. GENERAL PROVISIONS
ARTICLE 4. SCOPE OF WORK
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ARTICLE 6. REQUIREMENTS PERTAINING
TO PROCUREMENT
ARTICLE 7. REQUIREMENTS PERTAINING
TO CONSTRUCTION
ARTICLE 8. TESTS ON COMPLETION
ARTICLE 9. EMPLOYER’S TAKING OVER
ARTICLE 10. PERFORMANCE PERIOD AND
SCHEDULE
ARTICLE 11. PERFORMANCE SECURITY
AND BANK GUARANTEE FOR ADVANCE PAYMENT
ARTICLE 12. CONTRACT PRICE, ADVANCE
PAYMENT, AND PAYMENT
ARTICLE 13. GENERAL RIGHTS AND
OBLIGATIONS OF EMPLOYER
ARTICLE 14. DUTIES AND ENTITLEMENT
OF CONSULTANT
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ARTICLE 16. ADJUSTMENTS AND
VARIATIONS
ARTICLE 17. SUBCONTRACTORS
ARTICLE 18. SUSPENSION OR
TERMINATION OF CONTRACT BY EMPLOYER
ARTICLE 19. SUSPENSION OR
TERMINATION OF CONTRACT BY CONTRACTOR
ARTICLE 20. INSURANCE AND GUARANTEE
ARTICLE 21. DEFECTS LIABILITY
ARTICLE 22. REWARDS AND PENALTIES
FOR BREACH OF CONTRACT AND LIABILITIES FOR DAMAGE
ARTICLE 23. RISKS AND FORCE MAJEURE
EVENTS
ARTICLE 24. CLAIMS AND DISPUTE
SETTLEMENT
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ARTICLE 26. GENERAL PROVISIONS
PART
1 - BASES FOR SIGNING OF CONTRACT
Pursuant to the Law on
Construction No. 50/2014/QH13 dated June 18, 2014;
Pursuant to the Government's Decree
No. 37/2015/ND-CP dated April 22, 2015 on guidelines for construction
contracts;
Pursuant to Circular No.
07/2016/TT-BXD dated March 10, 2016 of the Minister of Construction on
guidelines for adjustments to prices of construction contracts;
Pursuant to Circular No.
30/2016/TT-BXD of the Minister of Construction on guidelines for Engineering,
Procurement and Construction Contracts (EPC contracts);
Pursuant to feasibility study
report (or FEED) that has been approved in Decision No. …;
Pursuant to . . . . . . . . . .. .
. . . . .. . . . . . . . . (other bases, if any);Pursuant to results of bidder
selection as specified in the document No. .. and record of EPC contract
finalization dated . . . . . . . . . . . . . . . .
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On ………….[date], at ……..[location]
…………………………., we are:
1. Employer:
Business name: ………………………….
Representative (or the authorized
person as specified in the Power of attorney No…dated…)
Mr./Mrs.
………………….
Position: …………
Address: …………………….
Account: ………………..
TIN: ……………….
Phone number: ………………..Fax:
…………………..
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and:
2. Contractor: (in case
of a contractor being joint venture, sufficient information about each JV's
Party shall be specified, especially the head of the joint venture)
Business name:
Representative (or the authorized
person as specified in the Power of attorney No…dated…)
Mr./Mrs.
………………….
Position: …………………
Address:
.......................................................................................................................
Account:
...................................................................................................................
TIN:
.................................................................................................................
Phone number: ……………………………………… Fax:
..........................................................
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hereby reach a consensus to
conclude a EPC contract of the contract package/project (contract package/project’s
name) as follows:
ARTICLE
1. DEFINITIONS AND INTERPRETATION
Words and phrased used herein
shall, unless the context otherwise requires, have the meanings below:
1.1. Employer means (business
name of the employer as specified in “Contracting parties”).
1.2. Contractor means……….. (name
of contractor as specified in “Contracting parties”).
1.3. Employer’s Representative means
a person named by the Employer in the Contract or appointed from time to time and
manage the work on behalf of the Employer.
1.4. Contractor’s representative
means a person named by the Contractor in the Contract or appointed in
writing and manage the work on behalf of the Contractor.
1.5. Consultant means an
entity that has been hired by the Employer as specified in an agreement to
perform one or multiple professional tasks relating to the management of the
contract performance.
1.6. Consultant’s Representative
means a person appointed by the Consultant to perform the tasks assigned by
the Consultant.
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1.8. Work means all
engineering services, procurement services, and construction work to be
executed by the Contractor in conformity with requirements of the Contract and Employer’s
Requirements properly so as to provide the Employer with the Works that are
completed, safe, and effective.
1.9. Contract means all
contract documents as specified in Clause 2.1. [Contract Documents].
1.10. Bidding Documents (or
Request for Proposals) of the Employer mean all documents as prescribed in
Appendix No. … [Bidding Documents (or Request for Proposals) of the
Employer].
1.11. Bid (or Proposals) of
the Contractor means Letter of Bid bearing the Contractor’s signature and all
other documents submitted to the Employer by the Contractor as specified in the
Contract as prescribed in Appendix No. … [Bid (or Proposal) of the Contractor].
1.12. Project Standards means
regulations on engineering, economic and technical norms, procedures for
performing tasks, criteria, technical indicators, natural condition indicators
to be used in the Project/the Works as specified in the Appendix No. ... [Project
standards].
1.13. Specifications means a
set of technical requirements according to National Technical Regulation,
project standards pertaining to materials, products, and equipment to be used
in the Works and the construction, surveillance, and work acceptance as
specified in Appendix No. … [Technical instructions].
1.14. Engineering Design includes
all drawings, calculations, technical specifications and other documents
relating to the Works, etc. (The Works’ name) made by the Contractor that have
been approved by the Employer.
1.15. Front End Engineering
Design (FEED) means engineering design which is conducted after approval of
the construction project as the basis for conducting detailed design of the
Works with foreign consultants in conformity with international practice.
1.16. Letter of Bid means a
proposal made by the Contractor that has been approved by the Employer
clarifying bid price for engineering, procurement, construction and completion
of The Works in conformity with the Contract.
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1.18. Commencement Date means
the date notified under Clause 10.1. [Commencement Date and Time for Completion],
otherwise specified in Contract Agreement.
1.19. Time for Completion means
the time for completing the Works or a Section (as the case may be) under
Clause 10.2 [Time for Completion], with any extension under Clause 10.4.
[Extension of Time for Completion], calculated from the Commencement Date
(or another specific date agreed upon by the Parties).
1.20. Taking-Over Certificate means
a certificate issued under Article 9 [Employer’s Taking Over]
1.21. Day means a calendar
day and “month” means calendar month.
1.22. Working Day means a
calendar day, except for a Sunday or a holiday as prescribed in Vietnam’s law.
1.23. Contractor's Equipment means
all apparatus, machinery, vehicles, and other things required for the execution
and completion of the work and the remedying of any defects (if any).
1.24. Permanent Works means
the permanent works …(names) to be executed by the Contractor under Contract.
1.25. Section means a
Permanent Work or a part of single Permanent Work specified in the Contract (if
any).
1.26. Temporary Works means
all temporary works for the execution and completion of the Permanent Works.
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1.28. Employer’s Equipment means
apparatus, machinery and vehicles made available by the Employer for the use of
the Contract in the execution of the work, as stated in the Appendix No. ... [Bidding
Documents (or Request for Proposals) of the Employer].
1.29. Force Majeure is
defined in Article 23 [Force Majeure].
1.30. Laws means the whole
system of laws of the Socialist Republic of Vietnam.
1.31. Site means the places which
the Employer assigns to the Contractor for execution of the Works, and any
other places as may be specified in the Contract.
1.32. Variation and Adjustments means
any change to the scope of work, Specifications, Drawings, Contract Price, or
Schedule upon written prior consent of the Employer.
ARTICLE
2. CONTRACT DOCUMENTS AND PRIORITY OF DOCUMENTS
2.1. Contract Documents
Contract Documents include bases
for concluding Contract; terms and conditions of this Contract and other
documents:
2.1.1. Notification of Bid
Acceptance (or Notification of Direct Contracting or Notification of
Acceptance);
...
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2.1.3. Investment Project (or
Technical and Economic Report) that has been approved;
2.1.4. Bidding Documents (or
Request for Proposals) of the Employer;
2.1.5. Project Standards,
Specifications and Engineering Design (FEED or basic engineering);
2.1.6. Bid (or Proposal) of the
Contractor;
2.1.7. Note of Contract Negotiation
and written amendments;
2.1.8. Contract Appendices;
2.1.9. Other relevant documents.
2.2. Priority of Documents
The documents forming the Contract
are integral parts and to be taken as mutually explanatory of one another. The
Parties shall reach a consensus on any ambiguity or discrepancy. In a case
where the Parties fail to reach a consensus on priority of documents forming
the Contract, the priority shall be in accordance with the following sequence:
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2.2.2. Special Conditions of
Contract, terms of reference;
2.2.3. Investment Project (or
Technical and Economic Report) that has been approved;
2.2.4. Project Standards;
Engineering Design and Specifications;
2.2.5. Bidding Documents (or
Request for Proposals) of the Employer;
2.2.6. Bid (or Proposal) of the
Contractor;
2.2.7. Note of Contract Negotiation
and written amendments;
2.2.8. Contract Appendices;
2.2.9. Other relevant documents.
(In case of any changes to the
abovementioned priority of documents, the Parties shall reach a consensus on
them).
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3.1. Laws and Language
3.1.1. The Contract shall be
governed by the system of laws of the Socialist Republic of Vietnam and
relevant guiding documents.
3.1.2. The language for
communications shall be Vietnamese (if a Contract is involved by a foreign
party, the language for communications that is whether Vietnamese or foreign
language shall be subject to the agreement of the Parties. In case of any
dispute, the Vietnamese version shall be treated as original copy, the dispute
shall be settled according to the Vietnamese version).
3.2. Assignment
No Party is entitled to assign the
whole or a part of the Contract or any interests or benefits in the Contract. However,
a Party may assign a part of the Contract provided that such assignment is in
accordance with prescribed regulations of law with prior consent of the other
Party. The Parties may use the Contract as a security at a bank or a financial
institution.
3.3. Confidentiality
Except for necessary cases to fulfill
obligations or comply with regulations of law, the Parties shall treat the
Contract confidential. The Contractor may not disclose any information of the
Works to a third party without consent of the Employer.
3.4. Compliance with Laws
The Parties shall, in performing
the Contract, comply with applicable Laws:
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3.4.2. The Contractor must give all
notices, pay all taxes, duties and fees, and obtain all permits, licenses and
approvals, as required by the Laws in relation to the work; the Contractor
shall indemnify and hold the Employer harmless against and from the
consequences of any failure to comply with regulations of law.
3.5. Several and Joint Liability
If the Contractor is a joint
venture:
3.5.1. Each JV’s Party shall be
deemed to be jointly and severally liable.
3.5.2. The Contractor shall notify
the Employer of their leader who shall have authority to bind JV’s Parties;
3.5.3. The leader of joint venture is
approved to have authority to bind JV’s Parties to form the Contractor in all
issues relating to the Contract.
3.5.4. The Contractor shall not
alter its composition or legal status without the prior consent of the
Employer.
In order to avoid misunderstanding,
the several and joint liability of each JV’s Party forming the Contractor does
not intend to be affected or affected by the Joint Venture Agreement in
Appendix No. ...
3.6. Communications
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a) in writing and delivered by hand
(against receipt), send by post, fax, or email.
b) delivered, sent or transmitted
to the address for the recipient’s communications.
If the recipient gives notice of
another address, communications shall thereafter be delivered accordingly; and If
the recipient has not stated otherwise, any notices or requests sent by a Party
to the other accordingly as follows:
Employer:
+ Address: …………………………………
+ Phone number: ……………………………………….
+ Email: …………………………………………….
+ Fax: ………………………………………………
+ Website: …………………………………………
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- In a foreign country (in
case of foreign contractor):
+ Address: …………………………………
+ Phone number: ……………………………………….
+ Email: …………………………………………….
+ Fax: ………………………………………………
+ Website: …………………………………………
- In Vietnam:
+ Address: …………………………………
+ Phone number: ……………………………………….
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+ Fax: ………………………………………………
+ Website: …………………………………………
ARTICLE
4. SCOPE OF WORK
The Contractor shall execute the
engineering, procurement, and construction as specified in the Appendix No. ...
[Bidding Documents (Request for Proposals) of the Employer] according to the
Contract Price under Article 12 [Contract Price, Advance and Payment],
as generally specified, but not limited to the following Clauses and remedying
all errors under its responsibility.
Work includes engineering,
procurement, and construction to be executed by the Contractor in conformity
with requirements of the Contract and Employer’s Requirements properly so as to
provide the Employer with facilities that are completed, safe, and effective. The
Contractor shall:
4.1. Provide engineering
design, construction drawing design and other services relating to the work;
4.2. Provide or arrange to
provide necessary personnel, management, and equipment for the purpose of
executing the work except for special cases specified in the Contract;
4.3. Procure, promote, and
inspect to provide all supply and equipment for the work, Temporary Works and
necessary supply for the construction in conformity with the Engineering Design
and the Contract;
4.4. Make an Execution Plan
and perform the construction work as specified in Appendix No. … [Bidding
Documents (or Request for Proposals) of the Employer];
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4.6. Construct all Temporary
Works and maintain all of those Sections safely and effectively for the performance
of the work until they are relived of the Site or returned as required by the
Contract;
4.7. Conduct recruitment,
training, management, and supervision of Subcontractor and personnel on the Site
for the performance of the work and ensure that they are provided with
guidelines for appropriate working methods and labor safety and environment
hygiene;
4.8. Provide, manage, and
regulate the traveling in the Site; the access to the Site safely and orderly
by personnel of the Contractor, including: workers at the job site, management
and supervision staff, site management staff, personnel of Suppliers and
Subcontractors;
4.9. Prepare the testing and
commissioning as prescribed in Appendix No. … [Bidding Documents (or Request
for Proposals) of the Employer];
4.10. Undertake the testing
and commissioning as prescribed in Appendix No. … [Bidding Documents (or
Request for Proposals) of the Employer];
4.11. Supervise and direct
the testing and commissioning;
4.12. Make preparations of customs
procedures, including securities, storing, and transport in the Vietnam’s
territory applicable to those supply and equipment, imported goods serving the
construction;
4.13. Cooperate with Subcontractors,
Suppliers, and other Parties hired by the Contractor relating to the work and
technology license holders (if any) to ensure that all equipment will be used
in the Works in conformity with the Contract;
4.14. Provide all other
necessary equipment and services to satisfy the requirements for taking-over
and handover of the Works according to the Contract;
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4.16. Provide personnel of
the Employer with training and guidelines to operate and maintain the Works
within the scope specified in the Employer’s Requirements (if any).
4.17. Conduct the as-built
procedures in accordance with applicable laws.
4.18. The Contractor shall
perform any tasks, though not clarified in this Article but may be deemed in
the Contract necessary for the completion of the work, and the cost of such
task shall be deemed as concluded in the Contract Price, unless otherwise
specified in the Contract.
ARTICLE
5. REQUIREMENTS PERTAINING TO ENGINEERING SERVICES
5.1. General requirements
The Contractor shall take
responsibilities for technical design and construction drawing design of the work
(or detailed design according to FEED) and their accuracy.
If the Contractor, during the
process of technical design and construction drawing design identifies any
defects or discrepancies in Employer’s Requirements, it shall immediately give
notices to the Employer before producing technical design and construction
drawing design and request the Employer to make clarifications deemed
necessary.
The Employer shall, at any time,
upon the identification of defects in the design produced by the Contractor,
the Employer shall request the Contractor to remedy such defects in accordance
with Employer’s Requirements.
Nevertheless, the Employer shall
take responsibility for the accuracy of the following contents provided by the
Employer or the Employer’s Representative for the Contractor:
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5.1.2. Purposes of the Works or a
part thereof given by the Employer;
5.1.3. The Contractor shall ensure
that its detailed design and documents must be consistent with:
a) Regulations of law of the
Socialist Republic of Vietnam.
b) Contract Documents, including
necessary amendments upon the request of the Employer.
5.2. Regulations and standards
in design
The technical design and
construction drawing design to be produced by the Contract must comply with
Project Standards, Specifications (if any) and the system of law of the
Socialist Republic of Vietnam.
5.3. Requirements applicable to
design drawings of the Contractor
Design drawings of the Contractor
shall include drawings, deliverables, and other necessary documents as
prescribed in Bidding Documents (or Request for Proposals) The design drawings
shall be written in the language as prescribed in Clause 3.1. [Laws and
Language] unless otherwise prescribed by law.
If, upon Employer’s Requirements or
required by law, the design drawings of the Contractor shall be submitted to
the Employer for considering approving, the following notice shall also be
enclosed. Unless otherwise prescribed in Employer’s Requirements, the time for
considering approval shall not exceed … (number of days agreed upon by
Parties) days from the date on which the Employer receives eligible design
drawings from the Contractor. During the process of consideration, the Employer
may notify the Contractor of any document in the design drawings not accordance
with the Contract. Any document in the design drawings not accordance with the
Contract shall be amended by the Contractor and resubmitted o the Employer for
consideration under this Clause at the Contractor's expenses.
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5.3.1. The construction shall only
commence after the design drawings of the Contractor have been approved by the
Employer;
5.3.2. The construction shall be
executed in conformity with the design drawings approved by the Employer;
5.3.3. In case of any change of the
design drawings, the construction shall only commence after the modified design
drawings have been approved by the Employer.
The Contractor shall not be
released from responsibilities and obligations inspect of the work regardless
of any aforementioned agreement or consideration of approval (under this Clause
or other Clauses).
5.4. Responsibilities of the
Contractor for design defects
In the event the Employer detects
any defects, omission, discrepancies, or in accordance with the Contract, the
Contractor shall, at its expenses incur all costs of additional design or
remedying those defects and repair defective Works or a portion thereof
executed by the Contractor, even in the case that the Employer approve the
design drawings.
ARTICLE
6. REQUIREMENTS PERTAINING TO PROCUREMENT
6.1. Any kind of equipment
provided for the Works shall undergo the verification (the verification entity
shall be appointed by the Employer and at its expenses) to ensure the
satisfaction of quality, kind, and origin as specified in the Contract.
6.2. The Contractor must
take responsibility that all equipment operating throughout the progress of construction,
completion of Works during the guarantee period and implementation of
after-sale policies (the Contractor shall take responsibility for engineering
and personnel, namely specialists, technicians who assist the Employer in the
process of commissioning, remedying breakdown, and maintenance) within … months
from the expiry date of guarantees.
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6.4. Any equipment
transferred to the Works must obtain an assessment certificate issued by an
authority in charge of assessment of origin, kind, and quantity satisfying
requirements specified in the Contract and Bidding Documents (or Request for
Proposals), Bids (or Proposals), commitments, and Clarifications of Bids.
6.5. Any technological
equipment to be used in the Works must have clear origin, legitimate, and
consistent with this Contract, and have undergone verification process.
6.6. Any equipment to be
used in the Works must have capacity and specifications in accordance with the
design drawings that have been approved by the Employer.
6.7. Equipment must be assembled
accurately for the purpose of ensuring its normal operation and prolonging its
service life. The equipment shall be assembled in accordance with the design
and fabrication drawings and regulations specified in the equipment’s manual in
terms of assembly, operation, and profile. Any specifications absent from the
design and equipment’s manual shall apply the applicable Vietnam Standards.
6.8. Any equipment which is assembled
in such a manner as unsatisfying the specifications (inconsistent with the
design, equipment’s manual recommended by manufacturer, and applicable
technical standards and regulations, etc.) shall be refused to come to the
taking over process and moved out of the Site within … days.
6.9. The Contractor shall
prepare the Site related to the equipment assembly, engineering staff,
operating workers, repairing workers, energy sources, and necessary materials
to serve the unload off-line taking-over.
6.10. During the online
unload testing and load testing, the Contractor must make preparations of
adequate engineering staff and workers on duty so as to timely handle any
occurrence of breakdowns and defects.
6.11. The Contractor shall
monitor and provide guidelines for assembly in accordance with specifications,
design, and technical specifications of manufacturers, and cooperate with
related parties in undertaking testing of equipment with the designed capacity
so that the Employer may assess the equipment's assembly at its true quality.
6.12. The Contractor shall complete
self-testing of the equipment assembly, prepare sufficient taking-over
documents (records, as-built diagram, work logs, etc.), and inspect whether the
equipment is assembled in accordance with technical requirements, and the
testing satisfies the design requirements.
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7.1. The Contractor shall
carry out the construction in accordance with applicable technical standards or
Project Standards as specified in Appendix No. … [Project Standards] and
regulations of law on construction quality control;
7.2. Ensure that the Works
is operating as required in Bidding Documents (or request for or Request for
Proposals), Bids (or Proposals), commitments of the Contractor, Clarifications
of Bid.
7.3. The Contractor shall
make an Execution Plan, gather and arrange equipment in such a manner as not to
affect surrounding activities; ensure that the Execution Plan satisfies
engineering requirements, procurement and construction schedule and actual
conditions at Site.
7.4. Make and submit general
and monthly Time Schedules to the Employer (or Consultant) for approval as the
basis for the Contract performance. Take measures to ensure labor safety,
environment hygiene, fire prevention, and security and order during the
construction process.
7.5. According to standards
for execution and taking-over and the design drawings approved by the Employer,
the Contractor shall make procedures and plans for quality inspection in
accordance with regulations of law.
7.6. The Contractor shall
execute and complete the Works and remedy any defects identified in the Works
conforming to the design drawings approved by the Employer and comply
applicable construction procedures and rules of the State and conditions of the
Works and under guidelines of the Employer (or Consultant).
7.7. The construction and
operation process must be strictly consistent with requirements of the design
drawings approved by the Employer and recommended by manufacturers.
7.8. During the execution of
the Contract, upon occurrence of any loss or damage to the Works, personnel,
materials, or equipment, the Contractor shall repair or compensate for such
loss or damage at its expenses.
7.9. The Contractor shall
execute the construction satisfying technical requirements and Time for
Completion as specified in the Contract.
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7.11. Within … days after
the testing, if the Works have passed the required performance tests, the
Employer shall undertake the taking-over the Works to be put into service.
7.12. Upon completion of taking-over,
the Contract shall keep supervising the performance of the Works continuously
within … days and send reports on performance results to the Employer.
7.13. Ensure the effective
performance of the whole of Works that satisfies Employer’s Requirements as
specified in the Contract.
ARTICLE
8. TESTS, CORRECTION AND COMMISSIONING ON COMPLETION (hereinafter referred to
as Tests on Completion)
8.1. Contractor’s Obligations
The Contractor shall give to the
Employer (or Consultant) not less than … days’ notice of the date after which
the Contractor will be ready to carry out each of the Tests on Completion. Unless
otherwise agreed, Tests on Completion shall be carried out within … days after
this date, on such day or days as the Employer (the Consultant) shall instruct.
8.2. Delayed Tests
If the Tests on Completion are being
unduly delayed by the Contractor, the Employer (or Consultant) may by notice
require the Contractor to carry out the Tests. Within ... days after receiving
the notice, the Contractor shall carry out the Tests within that period.
If the Contractor fails to carry
out the Tests on Completion within the period of… days upon receipt of the
notice given by the Employer (or Consultant), the Employer may proceed with the
Tests at the risk and cost of the Contractor. The Tests on Completion shall
then be deemed to have been carried out in the presence of the Contractor and
the results of the Tests shall be accepted as accurate.
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If the Works, or a Section, fails
to pass the Tests on Completion, the Employer or (Consultant) may require the
failed Tests, and Tests on Completion on any related work, to be repeated under
the same terms and conditions.
8.4. Failure to Pass Tests on
Completion
If the Works, or a Section, fail to
pass the Tests on Completion repeated under Clause 8.3. [Retesting], the
Employer shall be entitled to:
(a) order further repetition of
Tests on Completion under Clause 8.3. [Retesting];
(b) if the failure deprives the
Employer of substantially the whole benefit of the Works or Section, reject the
Works or Section (as the case may be), in which event the Employer shall have
the same remedies as are provided in Point (c) Clause 21.4. [Failure to Remedy
Defects].
ARTICLE
9. EMPLOYER’S TAKING OVER
9.1. Taking Over of the Works
and Sections
The Employer shall, within … days
after receiving the Contractor’s application:
(a) issue the Taking-Over
Certificate to the Contractor, stating the date on which the Works or Section were
completed in accordance with the Contract, or
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Within … days, the Employer shall
whether issue a Taking-Over Certificate or provide explanation for the refusal.
Upon expiry of abovementioned period, if the Works or Section (as the case may
be) are substantially in accordance with the Contract and the Employer gives no
notice, the Taking-over Certificate shall be treated as issued.
9.2. Taking Over of Parts of the
Works
The Employer shall issue a Taking-Over
Certificate for any part of the Permanent Works. The Employer may not use any part
of the Works (other than as a temporary measure which is either specified in
the Contract or agreed by both Parties) unless and until such part is issued
with a corresponding Taking-Over Certificate. Nevertheless, if the Employer
does use any part of the Works prior to the issuance of the Taking-Over
Certificate:
(a) the part which is used shall be
deemed to have been taken over as from the date on which it is used;
(b) The Contractor shall cease to
be liable for the care of such part as from this date, when responsibility
shall pass to the Employer, and
(c) if requested by the Contractor,
the Employer shall issue a Taking-Over Certificate for this part.
If the Contractor incurs Cost as a
result of the Employer taking over and/or using a part of the Works, other than
such use as is specified in the Contract and agreed by both Parties, the
Contractor shall (i) give notice to the Employer and (ii) be entitled subject
to Clause 24.1 [Contractor's Claims] to payment of any Cost plus profit, which shall
be included in the Contract Price. After receiving this notice, the Employer
shall proceed in accordance with Clause 13.4. [Determinations] to agree
or determine this Cost and profit.
9.3. Interventions with Tests on
Completion
If the Contractor is prevented, for
more than … days, from carrying out the Tests on Completion by a cause for
which the Employer is responsible, the Employer shall be deemed to have taken
over the Works or Section (as the case may be) on the date when the Tests on
Completion would otherwise have been completed.
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If the Contractor suffers delay
and/or incurs Cost as a result of this delay in carrying out the Tests on
Completion, the Contractor shall give notice to the Employer or Consultant and
shall be entitled to:
(a) an extension of time for any
such delay, if the completion is or will be delayed under Clause 10.4. [Extension
of Time for completion] and
(b) payment of any such Cost plus
profit, which shall be included in the Contract Price.
After receiving this notice, the Employer
shall proceed in accordance with Clause 13.4. [Determinations] to agree
or determine these matters.
9.4. Taking-Over Certificate to
put the Works into service
The Contractor’s fulfillment of
obligations shall not be deemed as completed if the Contractor has not been
issued with Taking-Over Certificate to put the Works into service by the
Employer, clarifying the date on which the obligations are fulfilled in
accordance with the Contract.
The Employer (or Consultant) shall
issue a Taking-Over Certificate to put the Works into service within … days
after expiry of Defects Liability Period or the Contractor has provided all its
materials and has completed the Tests on Completion of all the Works and
Sections, including remedying defects.
9.5. Unfulfilled obligations
After obtaining the Taking-Over
Certificate to put the Works into service, each Party shall remain liable for
the fulfillment of any obligation which remains unperformed (specified in the
Taking-Over Certificate) at that time.
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Upon receiving the Taking-Over
Certificate to put the Works into service, the Contractor shall remove any
remaining Contractor's equipment, surplus material, wreckage, rubbish and
Temporary Works from the Site.
If the Contractor fails to remove remaining
Contractor's equipment, surplus materials, rubbish and Temporary Works from the
Site within … days from the date on which the Employer has issued the
Taking-Over Certificate to put the Works into service, the Employer may sell or
otherwise dispose of these items. The Employer shall be entitled to be paid
the costs incurred in connection with such sale, disposal and restoring the
Site.
Any balance of the moneys from the
sale shall be paid to the Contractor. If these moneys are less than the
Employer’s costs, the Contractor shall pay the outstanding balance to the
Employer.
9.7. Test runs in every portion
of the Works
This Clause shall apply to all test
runs specified in the Contract, except for test run after completion (if any).
The Contractor must provide
machinery, assistance, materials and other information, electricity, equipment,
fuel, tools, personnel, and qualified employees so as to conduct the specific test
runs efficiently. The Contractor shall reach a consensus with the Employer (or
Consultant) on time, location to conduct the test run of equipment, materials,
and other Sections.
The Employer (or Consultant) may,
pursuant to Article 16 [Price adjustments and Contract amendments], change
the location and details of specific test runs or instruct the Contractor to conduct
additional test runs. If additional test runs or changes prove that equipment,
materials, or qualifications of the Contractor are not consistent with the
Contract, those expenses associated with the conducting of changes shall be
covered by the Contractor, irrespective of other terms of the Contract.
The Employer (or Consultant) shall
notify the Contractor of its intention to participate in the test run … hours
prior to the conducting of the test run. If the Employer (or Consultant) fails
to participate in the test run at the place and time as agreed, Contractor may
conduct the test run itself, and accordingly the test run shall be deemed to be
conducted in the presence of the Employer, unless otherwise instructed by the
Employer (or Consultant).
If the Contractor faces delay or
incur costs as a result of compliance with the Employer's instructions or
delays in the Employer's responsibility, the Contractor shall inform the
Employer (or the Consultant) ) and shall be entitled subject to the notice
under Clause 24.1. [Contractor's Complaint] to:
...
...
...
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(b) pay expenses which are included
in the Contract Price.
Upon receipt of this notice, the
Employer (or Consultant) shall agree or determine these expenses as prescribed
in Clause 13.4. [Determinations].
The Contractor shall submit
confirmations of test runs to the Employer. When specific test runs are
conducted completely, the Employer shall approve the test run record made by
the Contractor. If the Employer does not participate in test runs, the
confirmations of test runs shall be deemed accurate with the Employer's
consent.
9.8. Refusal
If the results of the inspection,
monitoring, measurement or testing indicate that there are defects in the
equipment, material, design or workmanship or are inconsistent with the
Contract, the Employer (or the Consultant) may refuse equipment, materials, design
or workmanship by giving notice of reasons to the Contractor. The Contractor
shall correct the defects immediately and ensure that the rejected items are
handled in accordance with the Contract.
If the Employer (or Consultant)
requires that the equipment, materials, design or workmanship must be retested,
testing will be conducted in accordance with the preceding procedures and
conditions. If the refusal and retesting results in additional costs to the
Employer, the Contractor shall be liable to pay such costs to the Employer as
prescribed in Clause 13.2. [Employer's Complaint].
9.9. Repairs
Notwithstanding tests that have
already been completed or certified, the Employer (or the Consultant) may
instruct the Contractor to:
(a) Remove from the Site or replace
equipment or materials not conforming to the Contract,
...
...
...
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(c) Carry out urgent work to ensure
the safety of the Works.
The Contractor shall comply with
such instructions within a reasonable period of time, which is the time (if
any) specified in the instructions or shall be immediate, if urgency is
determined in accordance with paragraph (c) above.
If the Contractor fails to comply
with the instructions, the Employer will, pursuant to Clause 13.3. [The
Employer’s Instructions] have the right to hire and pay some else to do the
work. Unless the Contractor is entitled to be covered with the expenses
associated with the work, the Contractor must pay full costs due to its
non-compliance with the instructions as prescribed in Clause 13.2. [Employer's
Complains].
9.10. Ownership of equipment and
materials
Each item of equipment and
materials within the scope of the Contract will become the property of the
Employer when the Contractor has been paid for the value of the equipment and
materials.
ARTICLE
10. CONTRACT PERFORMANCE PERIOD AND SCHEDULE
10.1. Commencement Date and Date
for Completion
Commencement Date is …. and the
Employer (or Consultant) must given advance notice of Commencement Date to the
Contractor no less than ... days and the Commencement Date is within ... days
after the Contract takes effect.
The Contractor will commence the
engineering, procurement, and construction immediately after the Commencement
Date and complete the whole work before.... [date] or the Time for Completion
will be adjusted according to the Performance Schedule approved by the
Employer.
...
...
...
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The Contractor must complete all or
every part of the work (if any) within the Time for Completion including:
a) It has passed the testing after
completion of the Works or Sections as the case may be, and
b) It has completed all of the work
mentioned in the Contract or Sections for consideration as completed and
accepted in accordance with Clause 9.1. [Taking-Over of Works].
10.3. Performance Schedule
The Contractor shall submit to the
Employer (or Consultant) detailed performance schedule within ... days after
the Commencement Date. The Contractor will also submit the revised performance
schedule if the previous schedule is not consistent with the actual progress or
inconsistent with the Contractor's obligations. Except as otherwise stated in
the Contract, each Schedule shall include:
a) The contractor's performance
order and milestone for each major period;
b) The process and time for testing
after completion are specified in the Contract, and
c) Supplementary reports which
include:
- General description of the
methods that the Contractor intends to apply and the main stages in the
engineering, procurement, and construction, and
...
...
...
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The Contractor shall follow this
schedule and fulfil its obligations under the Contract unless the Employer (or
the Consultant), within ... days after receipt of the Schedule, notify the
Contractor that the extent to which this schedule is inconsistent with the
Contract. Employer’s personnel will be allowed to only rely on this Schedule
to make a plan for their activities.
The Contractor shall immediately
notify the Employer (or the Consultant) of any particular event or situation
that possibly occurs in the future that may adversely affect or delay the
performance of the work or increase the Contract Price. In that case, the
Employer (or the Consultant) may request the Contractor to report on the
effects of future events and/or proposals under Clause 16.3. [Variation
Procedure]
Any time the Employer (or the
Consultant) informs the Contractor that the progress has not complied (within
the identified scope) with the Contract or in accordance with the actual
progress and submitted plans, the Contractor shall submit to the Employer a
revised schedule in accordance with this Clause.
10.4. Extension of Time for
Completion
Pursuant to Clause 24.1
[Contractor's CLAIMS], the Contractor shall be permitted to extend the Time of
Completion if and to the extent that the completion for the purpose of Clause
9.1. [Taking-Over of Works] is being or will be delayed due to one of the
following reasons:
a) There is a change (unless the
adjustment of completion time has been agreed in accordance with Clause 16.3 [Variation
Procedure] or an important change of part of the work included in the Contract;
c) The cause of the delay resulting
in a prolonged period of time is consistent with a clause of these Conditions;
c) Delays and obstacles on the Site
caused by the Employer, the Employer’s personnel or other Contractors.
c) The lack of personnel or goods
is unpredictable due to the activities of the Government;
...
...
...
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If the Contractor considers that it
has been allowed to extend the Time of Completion, the Contractor shall give a
notice to the Employer (or the Consultant) in accordance with Clause 24.1. [Contractor's
CLAIMS]. When determining the extension of time under this Clause, the
Employer (or Consultant) must review previous decisions and may increase but
not reduce the total duration of the extension.
10.5. Delays due to Authorities
If the following conditions apply,
such as:
a) The contractor has complied with
the procedures prescribed by the State, but the authorities did not meet the
deadline as prescribed or did not perform the work proposed by the Contractor
and
b) The delay or failure to perform
such work is unpredictable even by an experienced Contractor when submitting
bid.
Such delay or failure to perform
the work will therefore be considered a cause of delay in accordance with
Clause 10.4. [Extension of Time of Completion].
10.6. Actual performance
progress
At any time:
a) The actual performance progress
is too slow to complete the work within the given Time for Completion time,
and/or
...
...
...
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other than the reasons mentioned in
Clause 10.4. [Extension of Time for Completion], then the Employer (or
the Consultant) may instruct the Contractor, in accordance with Clause 10.3.
[Progress of work performance], to submit of a revised schedule and a report
describing the modifications proposed by the Contractor to follow progress and complete
within the given Time for Completion.
Unless the Employer (or the
Consultant) has given another notice, the Contractor shall apply these revised
methods, which may require an increase in the number of work hours and the
number of Contractor's personnel and/or the goods to which the Contractor is
subject to risk and any costs. If these modifications result in additional
costs to the Employer, pursuant to Clause 13.2. [The Employer's complaint], the
Contractor will pay these costs to the Employer, in addition to the damage
caused by the delay (if any) as prescribed in Clause 10.7 hereunder.
10.7. Damage caused by delays
If the Contractor fails to comply
with Clause 10.2. [Time for Completion], the Contractor shall, in
accordance with Clause 13.2. [Employer's complaint] will pay the Employer for
damage caused by this non-compliance. The damages will be the amount specified
in Appendix No. ... [Performance Schedule] will be paid daily for the
period between the Time for Completion and the date set forth in the
Taking-Over Certificate. However, the total amount under this Clause shall not
exceed the total maximum amount resulting from the damage due to delay (if any)
set forth in Appendix No ...
The damages will be only damages
caused by the Contractor’s faults, rather than termination under Clause 18.7.
[Termination by the Employer] before completing the work. This compensation
does not relieve the Contractor’s obligation to complete the work or any of its
responsibilities or obligations under the Contract.
ARTICLE
11. PERFORMANCE SECURITY AND BANK GUARANTEE FOR ADVANCE PAYMENT
11.1. Performance Security
The Contractor shall pay the
Employer the Performance Security corresponding to the amount and currency
prescribed in Special Conditions of Contract.
The Contractor shall furnish the
Performance Security to the Employer within … days from the date on which the
Contract is signed. The Performance Security shall be issued by a qualified
bank or credit institution as required by law using the form in Appendix No. …
or another form approved by the Employer.
...
...
...
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The Employer may not collect
Performance Security, except for the amount of money to which the Employer is
entitled under the Contract in the following cases:
(a) The Contractor fails to extend
the validity of the Performance Security; in this case the Employer may collect
the full amount of the Performance Security.
(b) The Contractor fails to make
payment of the debt as agreed to the Employer or the debt to be payable under
Clause 13.2. [Employer’s Claims] or Article 24 [CLAIMS and Settlement of
Disputes], within ... days after the agreement or decision on the debt payable.
(c) The Contractor fails to correct
defects within ... days after receiving the request of the Employer to remedy
defects, or
(d) Where the Employer is allowed
to terminate the Contract under Clause 18.7. [Termination by the Employer],
regardless of a notice of termination.
Employers must compensate and bear
disadvantages to the Contractor for damages, losses and expenses (including
legal costs and fees) due to a complaint about the Performance Security to the
extent that the Employer is not allowed to make a complaint.
The Employer must return the
Performance Security to the Contractor within ... days after issuing the
Taking-Over Certificate to put the Works into service and after the Employer
has received the Guarantee of Works in accordance with the provisions of the
Contract.
11.2. Bank Guarantee for Advance
Payment
The Contractor must furnish a Bank
Guarantee for Advance Payment to the Employer within ... days after the
effective date of the Contract corresponding to the amount and type of advance.
The Bank Guarantee for Advance Payment shall remain valid until the advance
payment is recovered and deducted corresponding to the amount of the recovered
advance.
...
...
...
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12.1. Contract Price
12.1.1. Except as otherwise
provided by the Parties in the Specific Conditions, this Contract is a lump sum
contract and shall only be governed by its terms and conditions.
12.1.2. After evaluating all of work
performed and obligations fulfilled by the Contractor under the Contract, the
Employer shall pay the Contractor the Contract Price including:
a) Vietnamese Dong: VND
..............................
In particular (if the parties have
agreed to separate each portion of the work):
- Engineering: VND …,
- Procurement: VND …,
- Construction: VND ….
b) Foreign currency: …………………… (insert
foreign currency to be used).
...
...
...
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- Engineering: ...,
- Procurement: …,
- Construction:….
c) Any additions or reductions
approved by the Employer in accordance with the Contract.
12.1.3. Except as otherwise
expressly provided in the Contract, the Contract Price includes all costs
incurred to perform the work: all costs, fees, profits and all taxes relating
to the work in accordance with regulations of law;
12.1.4. Contract Price includes all
costs related to copyright, etc.
12.1.5. Except as otherwise
expressly provided in the Contract, the Contractor shall bear all risks associated
with the cost of performance and the Contractor shall be deemed to have
acquired all necessary information and taken into account all circumstances
that likely affect the costs when determining the Contract Price.
12.2. Advance
12.2.1. After receiving the
Performance Security and the Bank Guarantee for Advance Payment, the Employer
shall advance the Contractor an amount (the total advance value must not exceed
50% of the contract value):
...
...
...
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In particular (if the parties have
agreed to separate each portion of the work):
- Engineering: VND…, in proportion
to …% of engineering value;
- Procurement: VND…, in proportion
to …% of engineering value;
- Construction: VND…, in proportion
to …% of engineering value;
b) Foreign currency: ……. (Unit
of foreign currency), in proportion to .. % of Contract Price.
In particular (if the parties have
agreed to separate each portion of the work):
- Engineering: (foreign currency’s
unit)…, in proportion to …% of engineering value;
- Procurement: (foreign currency’s
unit)…, in proportion to …% of engineering value;
- Construction: (foreign currency's
unit)…, in proportion to …% of engineering value;
...
...
...
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12.2.2. The advance will be
withdrawn by deduction in the payments. The deduction rate will be based on
the recovery rate specified in Appendix No. ... [Contract Price, Advance, and
Payment]. The contract advance will be fully recovered when the payment value
reaches 80% of the Contract Price as specified in Appendix No. …[Contract
Price, Advance, and Payment].
12.3. Payment
12.3.1. Currency and methods of
payment
a) Currency used to pay the
Contract is Vietnamese currency and .... (specify the type of foreign
currency used in payment).
b) The method of payment is wire
transfer (or in other forms agreed upon by the Parties in accordance with
the relevant law); except for the contents relating to equipment that will be
made in the form of irrevocable L/C.
12.3.2. Milestones
The payments shall be made in …
installments, in accordance with the milestones as specified in Appendix No. … [Contract
Price, Advance, and Payment]. Where:
a) Engineering:
- First installment: ….% of Contract
Price after the Contractor has completed the design of Sections or the work performance
... (agreed upon by the Parties).
...
...
...
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- … installment
- Last installment: ….% of Contract
Price after the Contractor has completed the full design of the Works that has
been approved by the Employer.
b) Procurement:
- First installment: ….% of
Contract Price after the Contractor has furnished equipment of the Sections… ;
- Second installment: ….% of
Contract Price after the Contractor has furnished equipment of the Sections… ;
- … installment
- Last installment: ….% of Contract
Price after the Contractor has furnished all of equipment as specified in the
Contract.
c) Construction:
- First installment: ….% of
Contract Price (or value of the completed Sections) after the Contractor has
completed the Sections...(Sections’ names).
...
...
...
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- … installment
- Last installment: ….% of Contract
Price (or remaining value) after the Contractor has completed the work and
agreement in the Contract.
The Employer shall pay the
Contractor the entire Contract Price after the Contractor has completed all work
of the Contract which has been taken over and the Parties have completed the
contract settlement as prescribed in Article 25. [Final Settlement and
Completion] and after the Employer receives the Guarantee of the Works issued
by the Contractor.
Payments are made according to
these milestones. In case the actual work progress is later than the
milestones of the Contract, the Employer may agree to determine the payment amounts
according to the milestones specified in the Contract or make payments
according to the actual work progress when the Contractor has completed the work.
12.3.3. Payment documents
The Contractor will submit the
payment documents in ... copies to the Employer upon the deadline for payment stated
in the Contract. Payment documents include but not limited to the following
documents (for a specific contract, the relevant Parties shall agree on
other documents required):
- Taking-Over Certificate in the
payment period with confirmations of Employer’s representative or Consultant’s
representative (if any) and Contractor’s representative. This Taking-Over
Certificate is an acceptance certificate of the completed Works, Sections, or
suitable to the Scope of Work to be performed under the Contract (without the
need for certification of completed work quantity);
- Schedule of additional quantity
value (if any) beyond the Scope of Work in accordance with the Contract, with
the certification of the Employer's representative or Consultant's
representative (if any) as stated in Appendix No. 3;
- The payment request made by the
Contractor as prescribed in Appendix No. 1, including: the value of the
completed quantity under the Contract as specified in Appendix 2, the value of
the additional work quantity (if any), the advance deduction, the amount
requested for payment in the period after the offsetting with certifications of
Employer’s representative and Contractor’s representative.
...
...
...
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Except as otherwise provided in
Clause 13.2. [Employer’s Claims], after receiving complete payment
documents in accordance with the Contract, the Employer will pay the Contractor
within ... working days.
12.3.5. Delayed payment
If the Contractor does not receive
payment under Clause 12.3. [Payment], the Employer must pay the financial charges
to the Contractor on the basis of the amount that was not paid during the late
time at the overdue interest rate applicable to the first day of late payment quoted
by the commercial bank where the Contractor opens a checking account until the
Employer has made full payment to the Contractor.
12.3.6. Payment of Retention Money
The Employer will pay all the
retention money withheld by the Contractor when the Parties have sufficient
grounds for determining the amounts of the payments and when the Contractor
fulfills the obligation to guarantee the Works in accordance with the
provisions of Clause 20.2. [Guarantee].
ARTICLE
13. GENERAL RIGHTS AND OBLIGATIONS OF EMPLOYER
13.1 Employer’s Personnel
13.1.1. The Employer must ensure
that the Employer’s Personnel and other Contractors on the Site will:
(a) Cooperate with the Contractor
in accordance with Clause 15.3. [Cooperation]
...
...
...
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13.1.2. Employer’s Representative
The Employer may appoint a
representative to perform the Contract. In this case, the Employer must
provide the Contractor with notice of the name, address, duties and powers of
the representative.
The Employer’s representative shall
carry out the duties assigned to him/her and exercise the powers authorized by
the Employer. Unless the Employer gives notice to the Contractor, the
Employer’s representative shall be deemed to have full rights of the Employer
under the Contract, except as specified in Clause 18.7. [Termination by the
Employer].
If the Employer wishes to replace
any person appointed as its representative, within no less than ... days, the
Employer shall appoint the substitute and provide the Contractor with a notice
of name, address, duties and power at the same time.
13.1.3. Other personnel of the
Employer
The Employer may appoint
representatives to perform certain tasks in the Contract. In this case, the
Employer must provide the Contractor with written notice of the names, contact
information, duties and powers of these employees.
These employees must be qualified
to perform the duties and authorized powers and proficiency in the
communication language set forth in Clause 3.1. [Laws and Language]
13.1.4. Authorized person
All persons, including the
Employer’s representative and persons assigned or authorized by the Employer,
shall have the right to give instructions to the Contractor only in the
circumstances specified in the authorization. Any approval, review,
confirmation, consent, inspection, supervision, instruction, notice,
recommendation, request, test or similar acts of the authorized persons, in
conformity with the authorization, will have the same validity as if the act
was done by the Employer. However:
...
...
...
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(b) Any failure to consent to any
work, equipment or material shall not constitute an approval and, therefore,
shall not prejudice the rights of the Employer in rejecting the work,
equipment, or material;
(c) If the Contractor has any
suspicion of a decision or instruction of the Assistant, the Contractor may
raise the matter with the Employer, who shall promptly assert, reverse or alter
that decision or instruction.
13.2. Employer’s Claims
If the Employer considers that it
is entitled to any payment in accordance with any of these Conditions or other
provisions relating to the Contract, and/or for the extension of the Defects
Notification Period, the Employer must give a notice and provide details to the
Contractor.
The Employer shall give a notice as
soon as possible upon the discovery of a problem or situation that results in a
complaint. Notice of extension of Defects Notification Period must be made
before the deadline for notice.
The basis for complaint must be
specified in Article(s) or other complaint bases and include evidence of the
amount and/or extension to which the Employer claims to be entitled in
connection with the Contract. Subsequently, the Employers must follow the
Clause 13.4. [Determinations] to reach a consensus or decide (i) amount
(if any) for which the Employer has the right to request from the Contractor
and/or (ii) extends Defects Notification Period (if any) as prescribed in Clause
21.3. [Extension of Defects Notification Period].
Employers can deduct this amount
from any debt or amount to be owed by the Contractor. Employer is entitled to
deduct or reduce the amount from the total Contractor's debt that has been
confirmed or any other claim against the Contractor under this Clause.
13.3. Employer’s Instructions
The Employer may provide the
Contractor with necessary instructions to fulfill its obligations under the Contract.
Each instruction must be in writing and state the obligations associated with
it and the Clauses (or other clauses of the Contract) in which the obligations
are specified. If guidance leads to an alternation, Article 16 [ADJUSTMENTS
AND VARIATIONS] shall apply.
...
...
...
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13.4. Determinations
Whenever this Condition stipulates
that the Employer must agree or resolve a matter, the Employer must discuss
with the Contractor to try to reach an agreement. If no agreement is reached,
the Owner must make an objective decision consistent with the Contract with
careful consideration of all relevant contexts.
The Owner must notify the
Contractor of any agreement or decision with specific evidence. Each party
shall endeavor to respect the validity of each agreement or decision, unless
the Contractor notifies the Employer of its dissatisfaction with a decision
within ... days from the day on which the notice is received. Subsequently, the
other Party may refer the dispute to the Dispute Resolution Board (if any)
under Clause 24.4. [Conclusion of the Dispute Resolution Board].
13.5. Permission for the
Contractor to access the Site
The Employer must give the
Contractor the right to access and use all parts of the Site for the duration
of the Contract. If no time is specified in Appendix No. ... [Bid (or Proposal)
of the Employer], the Employer must allow the Contractor the right to access and
use the Site for executing the construction in accordance with the performance
schedule that has been submitted to the Employer under Clause 10.3. [Performance
Schedule]Where the Contractor has not received the right to receive and use
the Site due to the delay of the Employer and incur costs during this period,
the Contractor shall notify the Employer and shall have the right, under Clause
24.1. [Contractor’s Claims] to require:
(a) the extension of the execution
period due to the delay if the completion is delaying or will delay as
prescribed in Clause 10.4. [Extension of Time for Completion]
(b) the payment of expenses which
are included in the Contract Price.
Upon receipt of this notice, the
Employer (or Consultant) shall agree or determine these expenses as prescribed
in Clause 13.4. [Determinations].
However, if and to the extent that
the Employer does not allow such rights to the Contractor due to defects or
delays of the Contractor, including a defect or delay in submitting any
material, the Contractor will not be entitled to the extension of this time and
cost.
...
...
...
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The Employer shall (if he is in a
position to do this) provide reasonable assistance to the Contractor, upon the
request of the Contractor, in terms of obtaining a permit or written approval
to perform the work in accordance with the law.
13.7. Other rights and
obligations as prescribed by law.
ARTICLE
14. DUTIES AND ENTITLEMENT OF CONSULTANT
(To
be applicable when the Employer hires a Consultant)
Article 14.1. Duties and rights
of Consultant
Consultant is a person who will
perform the tasks assigned by the Employer under a consultant contract. The
Consultant may be composed of individuals who have professional qualifications
to carry out these tasks.
The Consultant has no right to
modify the contract. The Consultant may exercise the rights attached to the
title of Consultant as determined or implied as deemed necessary in the
Contract. If the Consultant is required to obtain the Employer's approval prior
to the exercise of a specific right, these requirements must be stated in the
Contract. The Employer commits itself not to impose any constraints on the
Consultant's rights, except for matters as agreed with the Contractor.
Unless stated otherwise under this
condition:
(a) Whenever the Consultant perform
a task or exercise a right that has been specified or implied in the Contract,
the Consultant shall be deemed to be employed by the Employer.
...
...
...
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(c) Any Consultant's approval,
inspection, certification, consent, review, inspection, notice, recommendation,
request, test or similar actions (including the absence of objections) will
also not exempt the Contractor from any responsibility under the Contract,
including responsibility for defects, omissions, discrepancies and
noncompliance.
14.2. Authorization of the
Consultant
The Consultant may assign tasks and
authorize certain individuals with the Employer's consent. These individuals
may be a permanent resident Consultant and/or independent supervisor designated
to supervise and/or test equipment and/or materials. The assignment,
authorization or cancellation of the assignment or authorization of the
Consultant must be in writing and effective only when both parties receive the
written communication. However, unless otherwise agreed by both Parties, the
Consultant will not authorize any matter under Clause 13.4. [Determinations].
These individuals must have
professional qualifications to carry out the tasks authorized and at the same
time acquire proficiency in the communication language as defined in Clause
3.1. [Laws and Language].
Each person assigned to the task or
authorized is only entitled to give instructions to the Contractor within the
scope of the authorization. Any consent, inspection, confirmation, review,
instruction, notice, recommendation, request, test or similar act of an individual
in accordance with the authorization will have the same effect as the
performance of the Consultant. However:
(a) Any failure to consent to any
work, equipment or material shall not constitute an approval and, therefore,
shall not prejudice the rights of the Consultant in rejecting the work,
equipment, or material.
(b) If the Contractor has any
suspicion of a decision or instruction of an individual, the Contractor may
raise the matter with the Consultant, who shall promptly assert, reverse or
alter that decision or instruction.
14.3. Consultant's Instructions
The Consultant may, at any time,
provide the Contractor with additional instructions or drawings necessary for
the construction of the Works and for the correction of any defects in
accordance with the Contract. The Contractor will only receive instructions
from the Consultant or its authorized representative. If an instruction constitutes
a Variation, the Article 16 [ADJUSTMENTS AND VARIATIONS] shall apply.
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(a) gives oral instructions; and
(b) receives a written request for
instructions from yourself but do not respond by giving written opinion within
... working days, upon receipt of a request
the request is the written
instructions of the Consultant or the authorized person (as the case may be).
14.4. Replacement of Consultant
If the Employer intends to replace
the Consultant, no less than ... days before the intended replacement date, the
Employer shall notify the Contractor of the respective details of the Consultant
who is expected to replace. The Employer shall not replace the Consultant with
any person for whom the Contractor expresses its refusal by giving notice to
the Employer, together with the details, to explain the reasons.
14.5. Decision of Consultant
These conditions require that when
the Consultant (on behalf of the Employer) undertakes the work under this
Clause to agree or resolve a matter, it should try to discuss with each Party
to reach an agreement.
The Consultant should notify both
Parties of each agreement or decision with his defense argument. Each party
shall endeavor to respect the validity of each agreement or decision, unless
they are subject to the consideration under Article 24 [CLAIMS and
Settlement of Disputes].
ARTICLE
15. GENERAL RIGHTS AND OBLIGATIONS OF CONTRACTOR
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The Contractor shall perform the
engineering, procurement, and construction under the Contract and repair any
defects in the Works. Upon completion, the Works must be in accordance with
the purposes as defined in the Contract.
The Contractor shall furnish the
Contractor's equipment and documents as set out in the Contract and all
Contractor's personnel, goods, consumables, other items and services whether
temporary or permanent as required in and for engineering, construction,
completion and defect correction.
This work must include all the work
required to meet the Employer’s Requirements, or is covered by the Contract and
all work (including absence from the Contract) necessary for the stability or
the completion or the safety and well-functioning of the Works.
The Contractor is responsible for
the appropriateness, stability and safety of site operations, construction
methods and the entire Works.
The Contractor, whenever requested
by the Employer, shall submit the details of the arrangement and methods
proposed by the Contractor for the execution of the Works. No substantial
changes to the arrangements and methods may be made without prior notice to the
Employer.
15.2. Contractor’s
Representative
The Contractor shall appoint a
Contractor’s representative and authorize the representative to perform the
Contract on behalf of the Contractor.
Unless the representative of the
Contractor is named in the Contract, prior to the Commencement Date of the
Works, the Contractor shall notify the Employer of name and details of the
person requested to be the Contractor's representative for consideration. If
this person is not accepted or being rejected thereafter, or if the appointed
person is not qualified to act as a Contractor’s representative, the Contractor
shall, in such a similar manner, notify the Employer of name and details of
another representative suitable for this position.
The Contractor may not discharge
the Contractor’s representative or appoint a substitute without prior consent
of the Employer.
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The Contractor’s representative may
authorize its functions and powers to those who are capable and may revoke this
authorization at any time. The authorization or revocation will only be
effective when the Employer receives a prior consent bearing the signature of
the Contractor’s representative, authorized person's name and rights and powers
vested or canceled.
Contractor’s representative and
aforementioned persons must be proficient in the communication language
specified in Clause 3.1. [Laws and Language].
15.3. Cooperation
As stated in the Contract or
Employer’s Instructions (or the Consultant’s Instructions), the Contractor
shall be responsible for the cooperation with:
(a) The Employer’s Personnel,
(b) Other Contractors hired by the
Employer, and
(c) Employees of competent
authorities,
To be hired or sent to perform the work
not included in the Contract.
Services provided for these persons
and other Contractors, including the use of Contractor’s equipment, Temporary
Works or arrangement of access to the Site fall on the Contractor's
responsibility. Where these services incur expenses not included in the
Contract Price, the Parties shall consider these additional expenses.
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Under the Contract, if the Contractor
requests the Employer to give the right use any platform, structure, workshop
or means of access at the request of the Contractor, the Contractor shall
submit the request to the Employer (or the Consultant) in conformity with the
time and format in the Bidding Documents.
15.4. Location of boundary markers
The Contractor must locate the
Works by boundary markers and reference elevation as defined in the Contract. The
contractor will be responsible for accurately identifying all of Sections and
correcting the defects of location, height, size or lining of the Works.
The Employer will be responsible
for any errors in the information provided in the sections indicated above or
the notices for reference (boundary marks, linearity and elevation), but the
Contractor must try to verify their precision before the use.
In the event that the Contractor suffers
delay and/or incur Cost not at its faults, the Contractor shall give a notice
to the Employer (or the Consultant) and shall be entitled subject to notice under
Clause 24.1. [Contractor’s Claims] to:
(a) an extension of time for any
such delay, if the completion is or will be delayed, under Clause 10.4. [Extension
of Time for Completion] and
(b) the payment of any such Cost,
which shall be included in the Contract Price.
Upon receipt of such notice, the
Employer (or the Consultant) shall proceed in accordance with the Clause 13.4. [Determinations]
to agree or determine (i) whether and (if so) to what extent that errors cannot
reasonably be detected, and (ii) the matters described in paragraph (a) and (b)
above related to this extent.
15.5. Safety Procedures
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(a) comply with all applicable
occupational safety regulations;
(b) take care for the safety of all
persons entitled to be on the Site;
(c) Adopt measures for ensuring the
safety of the Works and for those authorized to be on the Site.
15.6. Site conditions
The Employer shall have made
available to the Contractor for its information about sub-surface conditions,
hydrogeology and the content of the Site survey, including the environment aspects
relating to the Contract.
To the extent which was practicable
(taking accounting of cost and time), the Contractor shall be deemed to have obtained
all necessary information as to the risks, contingencies and other circumstances
which may influence or affect the Bid or Works. To the same extent, the
Contractor shall be deemed to have inspected and examined the Site, its
surroundings, the above data and other available information, and to have
satisfied before submitting the Bid as to all relevant matters, including
limitation):
(a) the form and nature of the
Site, including sub-surface conditions,
(b) the hydrological and climatic
conditions,
(c) the extent and nature of the
work and Goods necessary for the execution and completion of the Works and the
remedying of any defects.
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(e) the Contractor’s requirements
for access, accommodation, facilities, personnel, transport, water and other
services.
The Contractor shall be deemed to
have satisfied itself as to the correctness and sufficiency of the Site
conditions in determining Contract Price.
15.7. Unforeseeable Physical
Conditions
In this Clause, “physical
conditions” means natural physical conditions and man-made and other physical
obstructions and pollutants, which the Contractor encounters at the Site when
executing the Works, including sub-surface and hydrological conditions but
excluding climatic conditions.
If the Contractor encounters
adverse physical conditions which he considers to have been Unforeseeable, the
Contractor shall give notice to the Employer (or the Consultant) as soon as
practicable. This notice shall describe the physical conditions, so that they
can be inspected by the Employer (or Consultant), and shall set out the reasons
why the Contractor considers them to be Unforeseeable. The Contractor shall
continue executing the Works, using such proper and reasonable measures as are
appropriate for the physical conditions, and shall comply with any instructions
which the Employer (or Consultant) may give. If an instruction constitutes a
Variation, the Article 16 [ADJUSTMENTS AND VARIATIONS] shall apply.
If and to the extent that the
Contractor encounters physical conditions which are Unforeseeable, gives such a
notice, and suffers delay and/or incurs Cost due to these conditions, the
Contractor shall be entitled subject to notice under Clause 24.1 [Contractor’s
Claims] to:
(a) an extension of time for any
such delay, if the completion is or will be delayed, under Clause 10.4. [Extension
of Time for Completion], and
(b) payment of any such Cost, which
shall be included in the Contract Price.
However, before additional Cost is
finally agreed or determined under paragraph (b), the Employer (or Consultant)
may also review whether other physical conditions in similar parts of Works (if
any) were more favorable than could reasonably have been foreseen when the
Contractor submitted the Bid. If and to the extent that these more favorable
conditions were encountered, the Employer (or Consultant) may proceed in
accordance Clause 13.4 [Determinations ] to agree or determine the
reductions in Cost which were due to these conditions, which may be included
(as deductions) in the Contract Price and Payment Certificates. However, the
net effect of all adjustments under paragraph (b) and all these reductions, for
all the physical conditions encountered in similar parts of the Works, shall
not result in a net reduction in the Contract Price.
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15.8. Rights of Way and
Facilities
The Contractor shall incur the Cost
of special and/or temporary rights-of-way which are necessary for the Works,
including access to the Site. The Contractor shall obtain, at its risk and
cost, any additional rights of way or facilities outside the Site which he may
require for the purposes of the Works.
15.9. Avoidance of Interference
The Contractor shall not interfere
unnecessarily or improperly with:
(c) the convenience of the public,
or
(d) the access to and use and
occupation of all roads and footpaths, irrespective of whether they are public
or in the possession of the Employer or of others.
The Contractor shall indemnify and
hold the Employer harmless against and from all damages, losses and expenses
(including legal fees and expenses) resulting from any such unnecessary or
improper interference.
15.10. Access Route
The Contractor shall be deemed to
have been satisfied as to the availability and suitability of access routes to
the Site. The Contractor shall use reasonable efforts to prevent any road or
bridge from being damaged by the Contractor’s traffic or by the Contractor’s
Personnel. These efforts shall include the proper use of appropriate vehicles
and routes.
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(a) the Contractor shall (as
between the Parties) be responsible for any maintenance which may be required
for his use of access routes;
(b) the Contractor shall provide
all necessary signs or directions along access routes, and shall obtain any
permission which may be required from the relevant authorities for his use of
routes, signs and directions;
(c) the Employer shall not be
responsible for any claims which may arise from the use or otherwise of any
access route;
(d) the Employer does not guarantee
the suitability or availability of particular access routes; and
(e) Costs due to non-suitability or
non-availability, for the use required by the Contractor, of access routes
shall be borne by the Contractor.
15.11. Transport of Goods
Unless otherwise stated in
Particular Conditions:
(a) the Contractor shall give the
Employer not less than …(21 days’ notice) of the date on which any Plant or a
major item of other Goods will be delivered to the Site;
(b) the Contractor shall be
responsible for packing, loading, transporting, receiving, unloading, storing
and protecting all Goods and other things required for the Works; and
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15.12. Contractor’s Equipment
The Contractor shall be responsible
for all Contractor’s Equipment. When brought on to the Site, Contractor's
Equipment shall be deemed to be exclusively intended for the execution of the
Works. The Contractor shall not remove from the Site any major items of
Contractor’s Equipment without the consent of the Employer (or the Consultant) However,
consent shall not be required for vehicles transporting Goods or Contractor’s
Personnel off Site.
15.13. Protection of the
Environment
The Contractor shall take all
reasonable steps to protect the environment (both on and off the Site) and to
limit damage and nuisance to people and property resulting from pollution,
noise and other results of his operations.
The Contractor shall ensure that
emissions, surface discharges and effluent from the Contractor’s activities
shall not exceed the values stated in the Specification or prescribed by
applicable Laws.
15.14. Electricity, Water and
other Services
The Contractor shall, except as
stated below, be responsible for the provision of all power, water and other
services he may require.
The Contractor shall be entitled to
use for the purposes of the Works such supplies of electricity, water, gas and
other services as may be available on the Site and of which details and prices
are given in the Employer’s Requirements. The Contractor shall, at his risk
and cost, provide any apparatus necessary for his use of these services and for
measuring the quantities consumed.
The quantities consumed and the
amounts due (at these prices) for such services shall be agreed or determined
in accordance with Clause 13.2 [Employer’s Claims] and Clause 13.4 [Determinations].
The Contractor shall pay these amounts to the Employer.
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The Employer shall make the
Employer’s Equipment (if any) available for the use of the Contractor in the
execution of the Works in accordance with the details, arrangements and prices
stated in the Specification. Unless otherwise stated in the Specification:
(a) the Employer shall be
responsible for the Employer’s Equipment, except that
(b) the Contractor shall be
responsible for each item of Employer’s Equipment whilst any of the Contractor’s
Personnel is operating it, driving it, directing it or in possession or control
of it.
The appropriate quantities and the
amounts due (at such stated prices) for the use of Employer’s Equipment shall
be agreed or determined in accordance with Clause 13.2 [Employer’s Claims]
and Clause 13.4 [Determinations]. The Contractor shall pay these
amounts to the Employer.
Employer shall supply, free of
charge, the “free-issue materials” (if any) in accordance with the details
stated in the Employer’s Requirements. The Employer shall, at his risk and
cost, provide these materials at the time and place specified in the Contract.
The Contractor shall then visually inspect them, and shall promptly give notice
to the Employer of any shortage, defect or default in these materials. Unless
otherwise agreed by both Parties, the Employer shall immediately rectify the
notified shortage, defect or default.
After this visual inspection, the
free-issue materials shall come under the care, custody and control of the Contractor.
The Contractor’s obligations of inspection, care, custody and control shall not
relieve the Employer of liability for any shortage, defect or default not
apparent from a visual inspection.
15.16. Progress Reports
Unless otherwise stated in the Particular
Conditions, monthly progress reports shall be prepared by the Contractor and
submitted to the Consultant in … copies. The first report shall cover the
period up to the end of the first calendar month following the Commencement
Date. Reports shall be submitted monthly thereafter, each within … days after
the last day of the period to which it relates.
Reporting shall continue until the
Contractor has completed all work which is known to be outstanding at the
completion date stated in the Taking-Over Certificate for the Works.
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(a) charts and detailed
descriptions of progress, including each stage of design, procurement,
manufacture, delivery to Site, construction, erection and testing;
(b) photographs showing the status
of manufacture and of progress on the Site;
(c) for the manufacture of each
main item of Plant and Materials, the name of the manufacturer, manufacture
location, percentage progress, and the actual or expected dates of:
(i) commencement of manufacture,
(ii) Contractor’s inspections,
(iii) Employer’s tests, and
(iv) shipment and arrival at the
Site;
(d) the details described in
[Records of Contractor’s Personnel and Equipment];
(e) copies of quality assurance
documents, test results and certificates of Materials;
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(g) safety statistics, including
details of any hazardous incidents and activities relating to environmental
aspects and public relations; and
(h) comparisons of actual and
planned progress, with details of any events or circumstances with may
jeopardize the completion in accordance with the Contract, and the measures
being (or to be) adopted to overcome delays.
15.17. Security of the Site
Unless otherwise stated in
Particular Conditions:
(a) the Contractor shall be
responsible for keeping unauthorized persons off the Site, and
(b) authorized persons shall be
limited to the Contractor’s Personnel and the Employer’s Personnel; and to any
other personnel notified to the Contractor, by the Employer (or the authorized
person), as authorized personnel of the Employer’s other contractors on the
Site.
15.18. Contractor’s Operations
on Site
The Contractor shall confine his
operations to the Site, and to any additional areas which may be obtained by
the Contractor and agreed by the Engineer as additional working areas. The
Contractor shall take all necessary precautions to keep Contractor’s Equipment
and Contractor’s Personnel within the Site and these additional areas, and to
keep them off adjacent land.
During the execution of the Works,
the Contractor shall keep the Site free from all unnecessary obstruction, and
shall store or dispose of any Contractor’s Equipment or surplus materials. The
Contractor shall clear away and remove from the Site any wreckage, rubbish and
Temporary Works which are no longer required.
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15.19. Training
The Contractor shall provide
personnel of the Employer with training and guidelines to operate and maintain
the Works within the scope specified in the Employer’s Requirements. If the
Contract states that the training shall be provided before taking-over of
Works, the Works shall not be deemed to be completed for taking over under
Clause 9.1. [Taking Over of Works] until the training is completed.
15.20. As-built Documents
The Contractor shall prepare and
update promptly sufficient as-built documents on execution of the Works, indicating
accurate location, size, and specifications of the Works in as they have been
executed. These documents shall be kept in the Site and only used for the
purposes of this Clause. The Employer shall be provided with … copies before
the commencement of the Tests on Completion.
In addition, the Contractor shall
provide the Employer with as-built documents of the Works, indicating details
of the Works as they have been executed and submit them to the Employer for
approval under Article 5 [Requirements for engineering]. The Contractor
will receive an acceptance of the Employer in terms of size, system of
references, and other relevant details.
Before issuing the Taking-Over
Certificate, the Contractor shall provide the Employer with detailed data and
as-built documents as required by the Employer. The Works shall not be
considered to be completed for the purposes of taking-over under Clause 9.1. [Taking
Over of Works] if the Employer does not receive the abovementioned
documents.
15.21. Operation and Maintenance
Manuals
Prior to the commencement of the
Tests on Completion, the Contractor shall submit to the Employer operation and
maintenance manuals in substantially sufficient detail for the Employer to
operate, maintain, dismantle, reassemble, adjust and repair Equipment.
The Works shall not be considered
to be completed for the purposes of taking-over under Clause 9.1. [Taking
Over of Works] until official operation and maintenance manuals and other
manuals specified in Employer’s Requirements have been submitted to the
Employer.
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All antiques, coins, antiquities or
other relics or geological or archaeological items found on Site will be placed
under the preservation and authority of the Employer. The Contractor shall
cause his Personnel or others not to take away or damage any items found.
Upon discovery any of aforesaid
items, the Contractor shall immediately give notice to the Employer for
consideration. If the Contractor suffers delay and/or incurs Cost from
complying with the Engineer’s instructions under Clause 18.2 [Suspension of
Work] and/or from resuming the work, the Contractor shall give notice to
the Employer (or the Consultant) and shall be entitled subject to Clause 24.1 [Contractor’s
Claims] to:
(a) an extension of time for any
such delay if the completion is or will be delayed under Clause 10.4.
[Extension of Time for Completion]
(b) payment of any such Cost, which
shall be included in the Contract Price.
After receiving this notice, the
Employer [the Consultant] shall proceed in accordance with Clause 13.4 [Determinations]
to agree or determine these matters.
15.23. Other rights and
obligations as prescribed by law.
ARTICLE
16. ADJUSTMENTS AND VARIATIONS
16.1.Adjustments
16.1.1. The Contract Price shall be
adjusted upon any changes to the quantities of any item of work included in the
Contract. In case of any changes to the quantities of any item of work included
in the Contract, the Parties shall make an additional Annex, in which
quantities of additional work and price shall be specified.
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16.2. Variations
Variations may be initiated by the
Employer (or the Consultant) at any time prior to issuing the Taking-Over
Certificate for the Works under Clause 9.1. [Taking Over of Works] either
by an instruction or by a request to submit a proposal.
The Contractor shall execute each
Variation or remedy the work solely with consent of the Employer (or the
Consultant). Any amendment shall not reduce or invalidate the Contract’s
validity.
If the Contractor fails to make any
changes required by the Employer, the Contractor shall immediately give notice
to the Employer (or the Consultant) stating (with supporting particulars) that
(a) the Contractor cannot readily obtain necessary equipment required for the
Variation, (ii) such Variation triggers a substantial change in the sequence or
progress of the Works or (iii) such changes will badly affect the achievement
of performance guarantees. Upon receipt of this notice, the Employer (or the
Consultant) shall either confirm or vary the instruction.
16.3. Variation Procedure
If the Employer (or the Consultant)
requests a Variation or the Contractor proposes a Variation, the Contractor
shall respond in writing, either by giving reasons why he cannot comply (if
this is the case) or by submitting:
a) a description of the proposed
work to be performed and a program for its execution,
b) the Contractor’s proposal for
any necessary modifications to the performance schedule and time for completion
under Article 10 [Performance Schedule], and
c) the Contractor’s proposal for
adjustments of Contract Price.
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ARTICLE
17. SUBCONTRACTORS
17.1. General provisions of
Subcontractors
17.1.1. The Contractor shall not
subcontract the whole of the Works and shall be responsible for the quality,
schedule and safety of the whole of the Works or defects of any Subcontractor.
17.1.2. The Contractor shall not be
required to obtain consent of the Employer (or the Consultant) to suppliers
solely of Materials, or to a subcontract for which the Subcontractor is named
in the Contract.
17.1.3. the prior consent of the
Employer (or the Consultant) to other proposed Subcontractors.
17.1.4. The Contractor shall give
the Employer (or the Consultant) not less than … days’ notice of the intended
date of commencement of such work on Site.
17.1.5. Each subcontract shall
include provisions which would entitle the Employer to require the subcontract
to be assigned to the Employer under Clause 17.2. [Assignment of Benefit of
Subcontract] (if or when applicable), or in the event of termination under
Clause 18.7. [Termination by Employer].
17.2. Assignment of Benefit of
Subcontractor
If a Subcontractor’s obligations
extend beyond the expiry date of the relevant Defects Notification Period and
the Employer (or the Consultant), prior to this date, instructs the Contractor
to assign the benefit of such obligations to the Employer, then the Contractor
shall do so. Unless otherwise stated in the assignment, the Contractor shall
have no liability to the Employer for the work carried out by the Subcontractor
after the assignment takes effect.
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For the purpose of this Contract,
“Nominated Subcontractor” means a Subcontractor:
(a) who is nominated to act as a
Subcontractor for the Contractor by the Employer to carry out a portion of the
work with high technical requirements or when the Contractor fails to meet the
performance schedule after receiving the Employer’s request, or
(b) whom the Employer (or the
Consultant) instructs the Contractor to employ as a Subcontractor.
17.4. Objection to Nomination
The Contractor shall not be under
any obligation to employ a nominated Subcontractor against whom the Contractor
raises reasonable objection by notice to the Employer (or the Consultant) as
soon as practicable, with supporting particulars. An objection shall be deemed
reasonable if it arises from (among other things) any of the following matters,
unless the Employer agrees in writing to indemnify the Contractor against and
from the consequences of the matter:
(a) there are reasons to believe
that the Subcontractor does not have sufficient competence, resources or
financial strength;
(b) the nominated Subcontractor
does not accept to indemnify the Contractor against and from any negligence or
misuse of Goods by the nominated Subcontractor, his agents and employees; or
(c) the nominated Subcontractor
does not accept to enter into a subcontract which specifies that, for the
subcontracted work (including design, if any), the nominated Subcontractor
shall:
(i) undertake to the Contractor
such obligations and liabilities as will enable the Contractor to discharge his
obligations and liabilities under the Contract, and
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17.5. Payment to nominated
Subcontractors
The Contractor shall pay to the
nominated Subcontractor the amounts to be due in accordance with the
subcontract. These amounts plus other charges shall be included in the Contract
Price in accordance with sub-paragraph (b) of Clause 13.5 [Provisional
Sums], except as stated in Clause 17.6 [Evidence of Payments].
17.6. Evidence of Payments
Before issuing a Payment
Certificate which includes an amount payable to a nominated Subcontractor, the
Employer (or the Consultant) may request the Contractor to supply reasonable
evidence that the nominated Subcontractor has received all amounts due in
accordance with previous Payment Certificates, less applicable deductions for
retention or otherwise. Unless the Contractor:
(a) submits this reasonable
evidence to the Engineer, or
(b) satisfies the Employer (or the
Consultant) in writing that he Contractor is reasonably entitled to withhold or
refuse to pay these amounts, and submits to the Consultant reasonable evidence
that the nominated Subcontractor has been notified of the Contractor’s entitlement,
Then the Employer may (at his sole
discretion) pay, direct to the nominated Subcontractor, part or all of such
amounts previously certified (less applicable deductions) as are due to the
nominated Subcontractor and for which the Contractor has failed to submit the
evidence described in sub-paragraphs (a) or (b) above. The Contractor shall
then repay, to the Employer, the amount which the nominated Subcontractor was
directly paid by the Employer.
ARTICLE
18. SUSPENSION OR TERMINATION BY EMPLOYER
18.1. Notice to Correct
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18.2. Suspension of Work
The Employer (or the Consultant)
may at any time instruct the Contractor to suspend progress of part or all of
the Works if the Contractor fails to meet requirements for quality, progress,
and labor safety under the Contract. During such suspension, the Contractor
shall protect, store and secure such part or the Works against any
deterioration, loss or damage.
The Employer (or the Consultant)
may also notify the cause for the suspension. If and to the extent that the
cause is notified and is the responsibility of the Contractor, the Contractor
shall suffer the consequences of the suspension.
18.3. Consequences of Suspension
If the Contractor suffers delay
and/or incurs Cost from complying with the Engineer’s instructions under Clause
18.2 [Suspension of Work] and/or from resuming the work, the Contractor
shall give notice to the Employer (or the Consultant) and shall be entitled
subject to Clause 22.1 [Contractor’s Claims] to:
(a) an extension of time for any
such delay if the completion is or will be delayed under Clause 10.4. [Extension
of Time for Completion] and
(b) payment of any such Cost, which
shall be included in the Contract Price.
After receiving this notice, the
Employer [the Consultant] shall proceed in accordance with Clause 13.4 [Determinations]
to agree or determine these matters.
The Contractor shall not be entitled
to an extension of time for, or to payment of the incurred in, making good the
consequences of the Contractor’s faulty.
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The Contractor shall be entitled to
payment of value (as at the date of suspension) of Plant and Materials which
have not been delivered to Site, if:
a) the work on Plant or delivery of
Plant and/or Materials has been suspended for more than … days, and
b) the Contractor has marked the
Plant and/or Materials as the Employer’s property in accordance with the
Employer [or the Consultant]’s instructions.
18.5. Prolonged Suspension
If the suspension under Clause 18.2
[Suspension of Work] has continued for more … days, the Contractor may
request the Employer [the Consultant]’s permission to proceed. If the Employer
[the Consultant] does not give permission within … days after being requested
to do so, the Contractor may, by giving notice to the Employer treat the
suspension as an omission. If the suspension affects the whole of the Works,
the Contractor may give notice of termination under Clause 19.2 [Termination
by Contractor].
18.6. Resumption of Work
After the permission or instruction
to proceed is given, the Contractor and the Parties shall jointly examine the
Works and the Plant and Materials affected by the suspension. The Contractor
shall make good any deterioration or defect in or loss of the Works or Plant or
Materials, which has occurred during the suspension.
18.7. Termination by Employer
The Employer shall be entitled to
terminate the Contract if the Contractor:
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(b) abandons the Works or otherwise
plainly demonstrates the intention not to continue performance of his
obligations under the Contract or continual … days of non-performance of the
work under the Contract,
(c) without reasonable excuse fails
to proceed with the Works in accordance with Clause 10 [Commencement, Delays
and Suspension],
(d) subcontracts the whole of the
Works or assigns the Contract without the required agreement,
(e) becomes bankrupt.
In any of these events or
circumstances, the Employer may, upon giving … days’ notice to the Contractor,
terminate the Contract and expel the Contractor from the Site. However, in the
case of sub-paragraph (e), the Employer may by notice terminate the Contract
immediately.
The Employer’s election to
terminate the Contract shall not prejudice any other rights of the Employer,
under the Contract.
The Contractor shall then leave the
Site and deliver any required Goods, all Contractor’s Documents, and other
design documents made by or for him, to the Employer. However, the Contractor
shall use his best efforts to comply immediately with any reasonable instructions
included in the notice (i) for the assignment of any subcontract, and (ii) for
the protection of life or property or for the safety of the Works.
After termination, the Employer may
complete the Works and/or arrange for any other entities to do so. The
Employer and these entities may then use any Goods, Contractor’s Documents and
other design documents made by or on behalf of the Contractor.
The Employer shall then give notice
that the Contractor’s Equipment and Temporary Works will be released to the
Contractor at or near the Site. The Contractor shall promptly arrange their
removal, at the risk and cost of the Contractor. However, if by this time the
Contractor has failed to make a payment due to the Employer, these items may be
sold by the Employer in order to recover this payment. Any balance of the
proceeds shall then be paid to the Contractor.
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As soon as practicable after a
notice of termination under Clause 18.7 [ Termination by Employer] has taken effect,
the Employer shall proceed in accordance with Clause 13.4 [ Determinations ] to
agree or determine the value of the Works, Goods and Contractor’s Documents,
and any other sums due to the Contractor for work executed in accordance with
the Contract.
18.9. Payment after Termination
After a notice of termination under
Clause 18.7 [Termination by Employer] has taken effect, the Employer may:
(a) proceed in accordance with
Clause 13.2 [Employer’s Claims],
(b) withhold further payments to
the Contractor until the costs of design (if any), execution, completion and
remedying of any defects, damages for delay in completion (if any), and all
other costs incurred by the Employer, have been established, and/or
(c) recover from the Contractor any
losses and damages incurred by the Employer and any extra costs of completing
the Works, after allowing for any sum due to the Contractor under Clause 18.8 [
Valuation at Date of Termination]. After recovering any such losses,
damages and extra costs, the Employer shall pay any balance to the Contractor.
18.10. Employer’s Entitlement to
Termination for Convenience
The Employer shall be entitled to
terminate the Contract, at any time for the Employer’s convenience, by giving
notice of such termination to the Contractor. The termination shall take effect
… days after the later of the dates on which the Contractor receives this
notice or the Employer returns the Performance Security. The Employer shall
not terminate the Contract under this Clause in order to execute the Works
himself or to arrange for Works to be executed by another contractor.
After this termination, the
Contractor shall proceed in accordance with Clause 19.3 [ Cessation of Work
and Removal of Contractor’s Equipment] and shall be paid accordance with
Clause 18.9 [Payment on Termination].
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19.1. Contractor’s Entitlement
to Suspend Work
If the Employer [the Consultant]
fails to comply with Clause 12.3 [Payment], the Contractor may, after
giving not less than … days’ notice to the Employer, suspend work (or reduce
the rate of work) unless and until the Contractor has received the Payment
Certificate, reasonable evidence or payment, as the case may be and as
described in the notice.
The Contractor’s action shall not
prejudice his entitlements to financing charges under Section 12.3.5 [Delayed
Payment] and to termination under Clause 19.2 [ Termination by
Contractor].
If the Contractor subsequently
receives such Payment Certificate, evidence or payment (as described in the
relevant Clause and in the above notice) before a notice of termination, the
Contractor shall resume normal working as soon as reasonably practicable.
If the Contractor suffers delay
and/or incurs Cost as a result of suspending work (or reducing the rate of
work) in accordance with this Clause, the Contractor shall give notice to the
Employer and shall be entitled subject to Clause 24.1 [Contractor’s Claims]
to:
(a) an extension of time for any
such delay, if the completion is or will be delayed, under Clause 10.4. [Extension
of Time for Completion], and
(b) payment of any such Cost plus
profit, which shall be included in the Contract Price.
After receiving this notice, the
Employer shall proceed in accordance with Clause 13.4. [Determinations] to
agree or determine these matters.
19.2. Termination by Contractor
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(a) the Contractor does not receive
the amount due under an Interim Payment Certificate within … days after the
expiry of the time stated in Point 12.3.2 [Payment] within which payment is to
be made (except for deductions in accordance with Clause 13.2 [Employer’s
Claims],
(b) the Employer substantially
fails to perform his obligations under the Contract,
(c) The Contractor suspends the
work in continual … days at the Employer’s faults,
(d) a prolonged suspension affects
the whole of the Works as described in Clause 18.5 [Prolonged Suspension],
or
(e) the Employer becomes bankrupt
or goes into liquidation.
In any of these events or
circumstances, the Contractor may, upon giving … days’ notice to the Employer,
terminate the Contract. However, in the case of paragraph (e), the Employer
may by notice terminate the Contract immediately.
19.3. Cessation of Work and
Removal of Contractor’s Equipment
After a notice of termination under
Clause 18.10 [Employer’s Entitlement to Termination for Convenience], or
Clause 19.2 [Termination by Contractor] has taken effect, the Contractor
shall promptly:
(a) cease all further work, except
for such work as may have been instructed by the Employer for the protection of
life or property or for the safety of the Works.
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(c) remove all other Goods from the
Site, except as necessary for safety, and leave the Site.
19.4. Payment on Termination
After a notice of termination under
Clause 19.2 [Termination by Contractor] has taken effect, the Employer shall
promptly:
(a) return the Performance
Security, Bank Guarantee for Advance Payment to the Contractor and other guarantees,
(b) pay the Contractor in
accordance with Clause 18.9 [Payment on Termination], and
(c) pay to the Contractor the
amount of any loss or damage sustained by the Contractor as a result of this
termination.
ARTICLE
20. INSURANCE AND GUARANTEE
20.1. Insurance
Parties shall purchase compulsory
insurance as prescribed by law; and other voluntary insurance agreed upon by
Parties.
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After receiving the Taking-Over
Certificate for the Works and Sections to be put in use, the Contractor shall:
- Offer warranty for the Works of
special class or class 1 within … (not less than 24 months) months with the
warranty amount of 3% of Accepted Contract Amount; or offer warranty for the
Works of class 2, 3, 4 and other Works within … (not less than 12 months)
months with the warranty amount of 5% of Accepted Contract Amount; and offer
warranty for equipment as recommended by manufacturers;
- Provide the Employer with a
warranty security within … days from the day on which the Taking-Over
Certificate for the Works and Sections to be put into use is received. The
warranty security shall remain valid until the expiry of the warranty period
and be issued by a natural or juridical person using the form prescribed in
Appendix No. … [Forms] or another form subject to the Employer’s consent;
- In the warranty period, the
Contractor shall remedy any defects by a cause for which the Contractor is
responsible in the course of executing the Works at the Contractor’s costs. The
remedying defects shall begins not later than … days after receiving the
Employer's notice of such defects. Beyond the expiry of the aforementioned
period, if the Contractor fails to begin remedying defects, the Employer shall
be entitled to employ another Contractor (a third party) to carry out the work
and the Contractor shall pay to the Employer the costs reasonably incurred in
remedying the defect by the third party. The Contractor shall pay to the third
party within … days after receiving such notice of the Employer. Upon expiry of
the payment period, if the Contractor fails to pay these costs, the Employer
shall subject to Article 24 [Claims and Dispute Settlement] require the
Contractor to make payment.
ARTICLE
21. DEFECTS LIABILITY
21.1. Completion of Outstanding
Work and Remedying Defects
In order that the Works and
Contractor’s Documents, and each Section, shall be in the condition required by
the Contract (fair wear and tear excepted) by the expiry date of the relevant
Defects Liability Period, the Contractor shall:
(a) complete any work which is
outstanding on the date stated in a Taking-Over Certificate, within such
reasonable time as is instructed by the Employer, and
(b) execute all work required to
remedy defects or damage, as may be notified by (or on behalf of) the Employer
on or before the expiry date of the Defects Notification Period for the Works
or Section.
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21.2. Cost of Remedying Defects
All work referred to in paragraph
(b) of Clause 21.1 [Completion of Outstanding Work and Remedying Defects]
shall be executed at the risk and cost of the Contractor, if and to the extent
that the work is attributable to:
(b) Plant, Materials or workmanship
not being in accordance with the Contract,
(c) by the Contractor to comply
with any other obligation.
If and to the extent that such work
is attributable to any other cause, the Contractor shall be notified promptly
by the Employer, and Clause 16.3 [Variation Procedure] shall apply.
21.3. Extension of Defects
Liability Period
The Employer shall be entitled
subject to Clause 13.2 [Employer’s Claims] to an extension of Defects
Notification Period or the Works or a Section if an to the extent that the
Works, Section or a major item of Plant (as the case may be, and after taking
over) cannot be used for the purposes for which they are intended by reason of
a defect or by reason of damage attributable to the Contractor. However, a
Defects Notification Period shall not be extended by more than .. years (agreed
by Parties).
If delivery and/or erection of
Plant and/or Materials was suspended under Clause 18.2. [Suspension of Work]
or Clause 19.1 [Contractor’s Entitlement to Suspend Work], the
Contractor’s obligations under this Clause shall not apply to any defects or
damage occurring more than (two) years after the Defects Notification Period
would otherwise have expired.
21.4. Failure to Remedy Defects
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If the Contractor fails to remedy
the defect or damage by this notified date and this remedial work was to be
executed at the cost of the Contractor under Clause 21.2 [Cost of Remedying
Defects], the Employer may (at his option):
(a) carry out the work himself or
by others, in a reasonable manner and at the Contractor’s cost, but the
Contractor shall have no responsibility for this work; and the Contractor shall
subject to Clause 13.2 [Employer’s Claims] pay to the Employer the costs
reasonably incurred by the Employer in remedying the defect or damage;
(b) determine a reasonable
reduction in the Contract Price in accordance with Clause 13.4 [Determinations];
or
(c) if the defect or damage
deprives the Employer of substantially the whole benefit of the Works or any
major part of the Works, terminate the Contract as a whole, or in respect of
such major part which cannot be put to the intended use. Without prejudice to
any other rights, under the Contract or otherwise, the Employer shall then be
entitled to recover all sums paid for the Works or for such part (as the case
may be), plus financing costs and the cost of dismantling the same, clearing
the Site and returning Plant and Materials to the Contractor.
21.5. Removal of Defective Work
If the defect or damage cannot be
remedied expeditiously on the Site and the Employer gives consent, the
Contractor may remove from the Site for the purposes of repair such items of
Plant as are defective or damaged. This consent may require the Contractor to
increase the amount of the Performance Security by the full replacement cost of
these items, or to provide other appropriate security.
21.6. Further Tests
If the work of remedying of any
defects or damage may affect the performance of the Works, the Engineer may
require the repetition of any of the tests described in the Contract. The
requirement shall be made by notice within … days after the defect or damage is
remedied.
These tests shall be carried out in
accordance with the terms applicable to the previous tests, except that they
shall be carried out at the risk and cost of the Party liable, under Clause
21.2 [Cost of Remedying Defects], for the cost of the remedial work.
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The Contractor shall, if required
by the Employer [the Consultant], search for the cause of any defect, under the
direction of the Consultant. Unless the defect is to be remedied at the cost
of the Contractor under Clause 21.2 [Cost of Remedying Defects], the
Cost of the search plus profit shall be agreed or determined by the Employer in
accordance with Clause 13.4 [Determinations] and shall be included in
the Contract Price.
ARTICLE
22. REWARDS AND PENALTIES FOR BREACH OF CONTRACT AND LIABILITIES FOR DAMAGE
22.1. Reward for early
completion
If the Contractor succeeds to
complete the project ahead of schedule specified in the contract, the Employer
shall consider rewarding a certain amount of money for each day/weed/month…the
work is completed ahead of schedule equivalent to …% of contract price, but not
exceeding ….
22.2. Penalties for breaches of
agreement:
If the Contractor violates
Performance Schedule not caused by any force majeure events or through no fault
of the Employer, the Contractor shall face a fine of .... (1) % Contract Price
for each late week. Total fine value does not exceed 12% of the violating part
of Contract.
If the Contractor violates term of
quality in the Contract and that of regulations of law in force, the Contractor
must demolish and reconstruct relevant part of Works. The Contractor shall
incur Cost of demolition and reconstruction, and any other damage. In case of
late completion of the Works, the Contractor shall also liable for a fine of
breaking the said Performance Schedule.
22.3. Indemnities
Apart from the fine amounts for
breach of Contract under Clause 22.2 [Penalties for breaches of Contract],
the Parties shall take responsibility for breaches of construction contract as
prescribed in Article 43 of Decree No. 37/2015/ND-CP dated April 22, 2015 of
the Government on guidelines for construction contracts.
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The Contractor shall take full
responsibility for the care of the Works and Goods from the Commencement Date
until the Taking-Over Certificate is issued (or is deemed to be issued under
Clause 9.1. [Taking Over of Works and Sections]) for the Works, when
responsibility for the care of the Works shall pass to the Employer. If a
Taking-Over Certificate is issued (or is so deemed to be issued) for any
Section or part of the Works, responsibility for the care of the Section or
part shall then pass to the Employer.
After responsibility has
accordingly passed to the Employer, the Contractor shall take responsibility
for the care of any work which is outstanding on the date stated in a
Taking-Over Certificate, until this outstanding work has been completed.
If any loss or damage happens to
the Works, Goods or Contractor’s Documents during the period when the
Contractor is responsible for their care, from any cause not listed in Clause
23.1 [Risks and Force Majeure], the Contractor shall rectify the loss or
damage at the Contractor’s risk and cost, so that the Works, Goods and
Contractor’s Documents conform with the Contract.
The Contractor shall be liable for
any loss or damage caused by any actions performed by the Contractor after a
Taking-Over Certificate has been issued. The Contractor shall also be liable
for any loss or damage which occurs after a Taking- Over Certificate has been
issued and which arose from a previous event for which the Contractor was
liable.
22.5. Intellectual and
Industrial Property Rights
In this Clause, “infringement”
means an infringement (or alleged infringement) of Property Rights any patent,
registered design, copyright, trade mark, trade name, trade secret or other
intellectual or industrial property right relating to the Works; and “claim”
means a claim (or proceedings pursuing a claim) alleging an infringement.
Whenever a Party does not give
notice to the other Party of any claim within 28 days of receiving the claim,
the first Party shall be deemed to have waived any right to indemnity under
this Clause.
The Employer shall indemnify and
hold the Contractor harmless against and from any claim alleging an
infringement which is or was:
(a) an unavoidable result of the
Contractor’s compliance with the Contract, or
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(i) for a purpose other than that
indicated by, or reasonably to be inferred from, the Contract, or
(ii) in conjunction with anything
not supplied by the Contractor, unless such use was disclosed to the Contractor
prior to the Commencement Date or is stated in the Contract.
The Contractor shall indemnify and
hold the Employer harmless against and from any other claim which arises out of
or in relation to (i) the design, manufacture, or construction of the Works, or
(ii) use of Contractor's Equipment or (iii) use of the Works.
If a Party is entitled to be
indemnified under this Clause, the indemnifying Party may (at its cost) conduct
negotiations for the settlement of the claim, and any litigation or arbitration
which may arise from it. The other Party shall, at the request and cost of the
indemnifying Party, assist in contesting the claim. This other Party (and its
Personnel) shall not make any admission which might be prejudicial to the
indemnifying Party, unless the indemnifying Party failed to take over the
conduct of any negotiations, litigation or arbitration upon being requested to
do so by such other Party.
22.6. Limitation of Liability
Total liability of the Contractor
to the Employer, under or in connection with the act other than under Clause
15.14 [Electricity, Water and Gas], Clause 15.15. [Employer’s Equipment and
Free-Issue Materials], Clause 22.3. [Indemnities] and Clause 22.5.
[Intellectual and Industrial Property Rights], shall exceed …(the sum resulting
from the application of a multiplier (less or greater than one) to the Accepted
Contract Amount.
This Clause shall not limit
liability in any case of fraud, deliberate default or reckless misconduct by
the defaulting Party.
ARTICLE
23. RISKS AND FORCE MAJEURE
23.1. Risks and Force Majeure
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b) Force Majeure means a risky
event occurring objectively which is unpredictable before entering into the
Contract and could not reasonably overcome despite all the necessary measures
and possibilities, namely: earthquake, hurricane, flood, tsunami,
conflagration, hostilities or other force majeure events.
c) If a Party faces force majeure
circumstances, then it shall given notice to the other Party as soon as
practicable.
23.2. Consequences of Risks
If and to the extent that any of
the risks listed in Clause 23.1 above results in loss or damage to the Works,
Real Estate, Equipment or Contractor’s Documents, the Contractor shall promptly
give notice to the Employer and shall rectify this loss or damage to the extent
required by the Employer.
If the Contractor suffers delay
and/or incurs Cost from rectifying this loss or damage, the Contractor shall
give a further notice to the Employer and shall be entitled subject to Clause
24.1 [Contractor’s Claims] to:
a) an extension of time for any
such delay if the completion is or will be delayed under Clause 10.4. [Extension
of Time for Completion];
b) payment of any such Cost, which
shall be included in the Contract Price.
After receiving this further
notice, the Employer shall proceed to agree or determine these matters.
23.3. Responsibilities of the
Contractor for risks
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After responsibility has
accordingly passed to the Employer, the Contractor shall take responsibility
for the care of any work which is outstanding on the date stated in a
Taking-Over Certificate, until this outstanding work has been completed.
If any loss or damage happens to
the Works, Goods or Contractor’s Documents during the period when the
Contractor is responsible for their care, from any cause not listed in Clause
23.1 [Risks and Force Majeure], the Contractor shall rectify the loss or damage
at the Contractor’s risk and cost, so that the Works, Goods and Contractor’s
Documents conform with the Contract.
The Contractor shall also be liable
for any loss or damage which occurs after a Taking- Over Certificate has been
issued and which arose from a previous event for which the Contractor was
liable.
23.4. Indemnities
The Contractor shall indemnify and
hold harmless the Employer against and from all claims, damages, losses and
expenses (including legal fees and expenses) in respect of:
(a) bodily injury, sickness,
disease or death, of any person whatsoever arising out of or in the course of
or by reason of the Contractor’s execution and completion of the Works and the
remedying of any defects, unless attributable to any negligence, willful act or
breach of the Contract by the Employer, the Employer’s Personnel, or any of
their respective agents, and
b) damage to or loss of any
property, real or personal (other than the Works), to the extent that such
damage or loss:
- arises out of or in the course of
or by reason of the Contractor’s execution and completion of the Works and the
remedying of any defects;
- attributable to any negligence,
willful act or breach of the Contract by the Employer, the Employer’s
Personnel, or anyone directly or indirectly employed by any of them.
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23.5. Notice of Force Majeure
If a Party is or will be prevented
from performing its substantial obligations under the Contract by Force
Majeure, then it shall give notice to the other Party of the event or
circumstances constituting the Force Majeure and shall specify the obligations,
the performance of which is or will be prevented. The notice shall be given as
soon as practicable after the Party became aware, or should have become aware,
of the relevant event or circumstance constituting Force Majeure.
The Party shall, having given
notice, be excused performance of its obligations for so long as such Force
Majeure prevents it from performing them.
Notwithstanding any other provision
of this Clause, Force Majeure shall not apply to obligations of either Party to
make payments to the other Party under the Contract.
23.6. Consequences of Force
Majeure
If the Contractor is prevented from
performing its substantial obligations under the Contract by Force Majeure of
which notice has been given under Clause 23.5. [Notice of Force Majeure],
and suffers delay and/or incurs Cost by reason of such Force Majeure, the
Contractor shall be entitled subject to Clause 24.1 [Contractor’s Claims]
to:
a) an extension of time for any
such delay if the completion is or will be delayed under Clause 10.4. [Extension
of Time for Completion];
b) if the event or circumstance is
of the kind described in Points (c) Clause 23.1 [Risks and Force Majeure] and
payment of any such Cost.
After receiving this further
notice, the Employer shall proceed to agree or determine these matters.
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If the execution of substantially
all the Works in progress is prevented for a continuous period of … days by
reason of Force Majeure of which notice has been given under Clause 23.5. [Notice
of Force Majeure], or for multiple periods which total more than … days due
to the same notified Force Majeure, then either Party may give to the other
Party a notice of termination of the Contract. In this event, the termination
shall take effect … 7 days after the notice is given.
Upon such termination, the Employer
shall issue the Contractor with a Payment Certificate which shall include:
a) the amounts payable for any work
carried out for which a price is stated in the Contract;
b) the Cost of Plant and Materials
ordered for the Works which have been delivered to the Contractor, or of which
the Contractor is liable to accept delivery: this Plant and Materials shall
become the property of (and be at the risk of) the Employer when paid for by
the Employer, and the Contractor shall place the same at the Employer’s
disposal;
c) other Costs or liabilities which
in the circumstances were reasonably and necessarily incurred by the Contractor
in the expectation of completing the Works;
d) the Cost of removal of Temporary
Works and Contractor’s Equipment from the Site and the return of these items to
the Contractor’s works;
e) the Cost of compensation of the
Contractor’s staff and labor employed wholly in connection with the Works at
the date of termination.
ARTICLE
24. CLAIMS AND DISPUTE SETTLEMENT
24.1. Contractor's Claims
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If the Contractor fails to give
notice of a claim within such period of … 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. Otherwise, the following provisions of this Clause shall apply.
The Contractor shall also submit
any other notices which are required by the Contract, and supporting
particulars for the claim, all as relevant to such event or circumstance.
The Contractor shall keep such
contemporary records as may be necessary to substantiate any claim. Without
admitting the Employer’s liability, the Employer may, after receiving any
notice under this Clause, monitor the record-keeping and/or instruct the
Contractor to keep further contemporary records. The Contractor shall permit
the Employer to inspect all these records, and shall (if instructed) submit
copies to the Employer.
Within … days after the Contractor
became aware (or should have become aware) of the event or circumstance giving
rise to the claim, or within such other period as may be proposed by the
Contractor and approved by the Employer, the Contractor shall send to the
Employer a fully detailed claim which includes full supporting particulars of
the basis of the claim and of the extension of time and/or additional payment
claimed. If the event or circumstance giving rise to the claim has a
continuing effect:
(a) this fully detailed claim shall
be considered as interim;
(b) the Contractor shall send
further interim claims at monthly intervals, giving the accumulated delay
and/or amount claimed, and such further particulars as the Employer may
reasonably require; and
(c) the Contractor shall send a
final claim within … days after the end of the effects resulting from the event
or circumstance, or within such other period as may be proposed by the
Contractor and approved by the Employer.
Within … days after receiving a
claim or any further particulars supporting a previous claim, or within such
other period as may be proposed by the Employer and approved by the Contractor,
the Employer shall respond with approval, or with disapproval and detailed
comments. He may also request any necessary further particulars, but shall
nevertheless give his response on the principles of the claim within the above
defined time period.
Each Payment Certificate shall
include such additional payment for any claim as has been reasonably
substantiated as due under the relevant provision of the Contract. Unless and
until the particulars supplied are sufficient to substantiate the whole of the
claim, the Contractor shall only be entitled to payment for such part of the
claim as he has been able to substantiate.
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The requirements of this Clause are
in addition to those of any other Clauses which may apply to a claim. If the
Contractor fails to comply with this or another Clause in relation to any
claim, any extension of time and/or additional payment shall take account of
the extent (if any) to which the failure has prevented or prejudiced proper
investigation of the claim, unless the claim is excluded under the second
paragraph of this Clause.
24.2. Appointment of the Dispute
Board (to be used when the Parties agree to settle disputes through reconciliation
by Dispute Board)
Disputes shall be referred to a
Dispute Board (hereinafter referred to as DB) for decision in accordance with
Clause 24.4 [Obtaining Dispute Board’s Decision]. The Parties shall
appoint a DB … days after a Party give notice to the other Party of its
intention to refer to a DB for dispute settlement.
The DB shall comprise, as stated in
the Particular Conditions, either one or three suitably qualified persons (“the
members”). If the number is not so stated and the Parties do not agree
otherwise, the DB shall comprise three persons.
If the DB comprises three persons,
each Party shall nominate one member for the approval of the other Party. The
first two members shall recommend and the Parties shall agree upon the third
member, who shall act as chairman.
However, if a list of potential
members has been agreed by the Parties and is included in the Contract, the
members shall be selected from those on the list, other than anyone who is
unable or unwilling to accept appointment to the DB.
The agreement between the Parties
and either the sole member or each of the three members shall incorporate by
reference the General Conditions of Dispute Board Agreement contained in the
Appendix to these General Conditions, with such amendments as are agreed
between them.
The terms of the remuneration of
either the sole member or each of the three members, including the remuneration
of any expert whom the DB consults, shall be mutually agreed upon by the
Parties when agreeing the terms of appointment. Each Party shall be
responsible for paying one-half of this remuneration.
If at any time the Parties so
agree, they may appoint a person or persons suitable for replacing one or
multiple DB's members. Unless otherwise agreed by Parties, they appointment
shall take affect if a member declines to act or is unable to act as a result
of death, disability, resignation or termination of appointment. A replacement
shall be appointed in the same manner as the replaced person was required to
have been nominated or agreed upon, as described in this Clause.
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24.3. Failure to Agree on the
Composition of the Dispute Board
If any of the following conditions
apply, namely:
(a) the Parties fail to agree upon
the appointment of the sole member of the DB by the date stated in Clause 24.2;
(b) either Party fails to nominate
a member (for approval by the other Party), or fails to approve a member
nominated by the other Party, of a DB of three persons by such date;
(c) the Parties fail to agree upon
the appointment of a third member (to act as chairman) of the DB by such date;
(d) the Parties fail to agree upon
the appointment of a replacement person within … days after the date on which
the sole member or one of the three members declines to act or is unable to act
as a result of death, disability, resignation or termination of appointment,
then the appointing entity or official named in the Particular Conditions
shall, upon the request of either or both of the Parties and after due consultation
with both Parties, appoint this member of the DB. This appointment shall be
final and conclusive. Each Party shall be responsible for paying one-half of
the remuneration of the appointing entity or official.
24.4. Obtaining Dispute Board’s
Decision
If a dispute (of any kind
whatsoever) arises between the Parties in connection with, or arising out of,
the Contract or the execution of the Works, including any dispute as to any
certificate, determination, instruction, opinion or valuation of the Employer,
either Party may refer the dispute in writing to the DB for its decision, with
copies to the other Party and the Employer under Clause 24.2. [Appointment
of Dispute Board] and Clause 24.3. [Failure to Agree on Dispute Board
Such reference shall state that it is given under this Clause.
For a DB of three persons, the DB
shall be deemed to have received such reference on the date when it is received
by the chairman of the DB.
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Within .. days after receiving such
reference or provisional sums in accordance with Appendix No. … [Dispute
Board]. Conditions of the Dispute Board Agreement, within any later period,
or within such other period as may be proposed by the DB and approved by both
Parties, the DB shall give its decision, which shall be reasoned and shall
state that it is given under this Clause. However if no Party makes full
payment as indicated in invoices submitted itself under Appendix No. ...
[Dispute Board]. Dispute Board is not required to make a decision until theses
invoices are fully paid. The decision shall be binding on both Parties, who
shall promptly give effect to it unless and until it shall be revised in an
amicable settlement or an arbitral award as described below. Unless the
Contract has already been abandoned, repudiated or terminated, the Contractor
shall continue to proceed with the Works in accordance with the Contract.
If either Party is dissatisfied
with the DB’s decision, then either Party may, within 28 … after receiving the
decision, give a Notice of Dissatisfaction to the other Party . If the DB fails
to give its decision within the period of … days (or as otherwise approved)
after receiving such reference, then either Party may, within … days after this
period has expired, give a Notice of Dissatisfaction to the other Party.
In either event, this Notice of
Dissatisfaction shall state that it is given under this Clause, and shall set
out the matter in dispute and the reason(s) for dissatisfaction. Except as
stated in Clause 24.7 [Failure to Comply with Dispute Board’s Decision] and
Clause 24.8 [Expiry of Dispute Board’s Appointment], neither Party shall
be entitled to commence lawsuit or arbitration of a dispute unless a Notice of
Dissatisfaction has been given in accordance with this Clause.
If the DB 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 … days after it received the DB’s decision,
then the decision shall become final and binding upon both Parties.
24.5. Amicable Settlement
Where a Notice of Dissatisfaction
has been given under Clause 24.4. [Obtaining Dispute Board’s Decision],
both Parties shall attempt to settle the dispute amicably before the
commencement of arbitration. However, unless both Parties agree otherwise, the
Party giving a Notice of Dissatisfaction should move to commence lawsuit or
arbitration after the … day from the day on which a Notice of Dissatisfaction
was given, even if no attempt at an amicable settlement has been made.
24.6. Dispute settlement by
Court or Arbitration
Any dispute between the Parties
arising out not settled amicably and in respect of which the DB's decision (if
any) has not become final and binding shall be finally settled by Court or
Arbitration. In this case, the procedures for settlement of disputes shall be
consistent with regulations of law or arbitration rules.
24.7. Failure to Comply with
Dispute Board’s Decision
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(a) no Party gives a Notice of
Dissatisfaction in a given time prescribed in Clause 24.4 [Obtaining Dispute
Board’s Decision],
(b) the Dispute Board’s decision
(if any) is final and binding.
(c) a Party fails to comply with
the Dispute Board’s decision, then the other Party may refer the failure
itself to arbitration or a court under Clause 24.6 [Dispute settlement at
Court or Arbitration], Clause 24.4. [Obtaining Dispute Board’s Decision]
and 24.5. [Amicable Settlement] shall not apply to this reference.
24.8. Expiry of Dispute Board’s
Appointment
If a dispute arises between the
Parties in connection with, or arising out of, the Contract or the execution of
the Works and there is no DB in place, whether by reason of the expiry of the
DB's appointment or otherwise:
(a) Clause 24.4. [Obtaining
Dispute Board’s Decision] and Clause 24.5. [Amicable Settlement] shall
not apply, and
(b) the dispute may be referred
directly to arbitration or court under Clause 24.6. [Dispute settlement at
Court or Arbitration].
ARTICLE
25. FINAL STATEMENT AND COMPLETION
25.1. Final Statement
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(a) Taking-Over Certificate for the
whole of the Works under scope of the Contract;
(b) Certificate of additional
quantities of any item of work (if any) beyond the scope of the Contract;
(c) calculations of Statement at
completion (hereinafter referred to as Statement A-B), clarifying paid sums and
outstanding sums payable to the Contractor by the Employer;
(d) as-built documents, logs of
executing the Works;
(e) Other documents (as agreed in
the Contract, if any).
If the Employer disagrees or cannot
verify any part of the draft final statement, the Contractor shall submit such
further information as the Employer may reasonably require and shall make such
changes in the draft as may be agreed between them. The Contractor shall
prepare and submit to the Employer the final statement as agreed.
However if, following discussions
between the Employer and the Contract and any changes to the draft final
statement which are agreed, the Employer shall make payments as specified in
the Final Statement in accordance with Clause 12.3. [Payment].
When submitting the Final
Statement, the Contractor shall submit a discharge which confirms that the total
of the Final Statement represents full and final settlement of all money due to
the Contractor under or in connection with the Contract. This discharge may
state that it becomes effective when the Contractor has received the
Performance Security and the outstanding balance of this total, in which event
the discharge shall be effective on such date.
The Employer shall subject to
Clause 12.3. [Payment] pay to the Contractor total outstanding sums
after deducting total sums to which the Employer is entitled under Clause 13.2.
[Employer’s Claims].
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The Employer shall not be liable to
the Contractor for any matter or thing under or in connection with the
Contract, except to the extent that the Contractor shall have included an
amount expressly for it:
a) in the Final Statement and also
b) (except for matters or things
arising after the issue of the Taking-Over Certificate for the Works) in the
Statement at completion described in Clause 25.1. [Statement at Completion].
However, this Clause shall not
limit the Employer’s liability under his indemnification obligations, or the
Employer’s liability in any case of fraud, deliberate default or reckless
misconduct by the Employer.
25.3. Completion
The Parties shall conduct the
completion within … days but not exceeding 90 days from the date on which:
a) They has fulfilled obligations
completely under the Contract;
b) The Contract is terminated under
Clause 18.7. [Termination by Employer] or Clause 19.2. [Termination
by Contractor] or the Contract is annulled as prescribed by law.
ARTICLE
26. GENERAL PROVISIONS
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26.2. This Contract takes
effect from …. (or at the time agreed by the Parties) and after the Employer
receives the Performance Security under Clause 11.1. [Performance Security].
CONTRACTOR’S
REPRESENTATIVE
(signatures and seals, if any, of all JV’s Parties)
EMPLOYER’S
REPRESENTATIVE
APPENDIX
1
PAYMENT
REQUEST
[Date]……………….
Project’s name:
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Employer:
Contractor:
Payment installment No.:
According to the quantity of work
that has been taken over, the Contractor requires the Employer to make payment
as follows:
No.
Item
Unit
Amount
(VND)
Notes
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2
3
4
5
1
Value of quantity of work done
under Contract (specified in Appendix 2)
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Value of quantity of additional
work beyond the Contract (specified in Appendix 3)
3
Reduction of Advance Payment
(under Contract)
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Value of payment required (1+2-3)
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In words:
Attachments:
Contractor
(Signature, full name, position and seal)
Employer
(Signature, full name, position and seal)
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Consultant’s
Representative (if any)
(Signature, full name, position and seal)
APPENDIX
2
SCHEDULE
OF VALUE OF WORK DONE UNDER CONTRACT
[Date]……………….
Project’s name
Name/number of Contract:
Employer:
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Payment installment No.:
Bases:
No.
Description
Unit
Quantity
Unit
Amount
(VND)
Notes
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Done
Under
Contract
Done
1
2
3
4
...
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6
7
8
9
...
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...
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...
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...
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...
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...
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Total
In words:
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Contractor
(Signature, full name, position and seal)
Employer
(Signature, full name, position and seal)
APPENDIX
3
SCHEDULE
OF ADDITIONAL QUANTITIES OF WORK BEYOND THE SCOPE OF CONTRACT
[Date]……………….
Project’s name
Name/number of Contract:
Employer:
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Payment installment No.:
Bases:
No.
Description
Unit
Additional
quantity
Unit
(VND)
Amount
(VND)
Notes
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Additional
Unit
Under
Contract
Additional
Unit
1
2
3
4
5
...
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7
8
9
...
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...
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Total
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Contractor
(Signature, full name, position)
Employer
(Signature, full name, position)
Notes: column (5) and (7) is used
in case the Parties agree to use the Unit in the Contract to apply any work
arising beyond the scope of the Contract and any work arising in similar
nature.