FC-UW-A-AA-10 -04/19 - 5000

Conditions of Contract for

Underground Works
GENERAL CONDITIONS
GUIDANCE FOR THE PREPARATION OF PARTICULAR
CONDITIONS AND ANNEXES: EXAMPLE FORMS OF SECURITIES
GUIDANCE FOR THE PREPARATION OF TENDER DOCUMENTS
AND ANNEXES: EXAMPLE FORMS FOR SCHEDULE OF BASELINES,
COMPLETION SCHEDULE AND SCHEDULE
OF CONTRACTOR’S KEY EQUIPMENT
FORMS OF LETTER OF TENDER, LETTER OF ACCEPTANCE,
CONTRACT AGREEMENT AND
DISPUTE AVOIDANCE/ADJUDICATION AGREEMENT

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

In collaboration with

International Federation of Consulting Engineers (FIDIC)

World Trade Center II
PO Box 311
In collaboration with
1215 Geneva 15
Switzerland
Telephone: +41 22 799 49 00
Fax: +41 22 799 49 01
E-mail: fidic@fidic.org
WWW: http://www.fidic.org
ISBN 978-2-88432-084-9 FIRST EDITION 2019

emerald book_cover_553.indd 1 4/4/2019 11:10:21 AM

 ITA-AITES is the International Tunnelling and Underground Space Association
– Association Internationale des Tunnels et de l’Espace Souterrain.

ITA was founded in 1974 by the initiative of nineteen Nations. ITA is the leading international
organization promoting the use of tunnels and underground space through knowledge
sharing and application of technology.

Independent nations can become ITA Member Nations through their national organizations.
Corporations and individuals who fulfill the statutory conditions can become Affiliate
Members. Today (2019), ITA counts 75 Member Nations and 300 corporate or individual
Affiliate Members from all parts of the globe.

I TA is governed by its General Assembly, which is regularly hosted by the annual World
Tunnel Congress. ITA’s goals include:

- to encourage new uses of underground space for the benefit of the public, environment
and sustainable development;
- to encourage studies of underground alternatives to surface construction, not only
considering construction costs but also indirect life-cycle costs and savings as well as
social and environmental advantages;
- to stimulate the development of guidelines for a positive public strategy to take
advantage of subsurface potential;
- to encourage the development of better and cheaper methods for planning,
geo-investigation, design, construction, operation, maintenance and safety of
underground structures by using improved methods such as new technical
developments and risk management principles;
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

- to improve training of everyone, especially young professionals, by conducting

workshops, by improving and coordinating academic programs worldwide, and by
improved on-the-job training.
- to bring together engineers, owners and others involved in the development of
underground space, such as architects, planners, authorities, economists, lawyers,
insurers, financers and politicians.
- to arrange international exchange on developments in underground technology and
experience from its use.

ITA, to reach its objectives, has set up Working Groups to study and report on specific
topics. In 2019, 14 Working Groups are active, amongst which Working Group 3
“Contractual Practices”. ITA also has the following 4 committees:

- ITA-COSUF, Committee on Operational Safety in Underground Facilities with the

cooperation of the World Road Association-PIARC and all the major European fire
research organizations.
- ITA-CET, Committee on Education and Training, nicknamed « University Network »
- ITA-CUS, Committee on Underground Space
- ITAtech, Committee on New Technologies

I TA has a Young Members Group (ITAym), open to professionals younger than 35 years,
and students.

I TA information on tunnelling, case histories, the ITA awards, other activities and
publications can be found here: www.ita-aites.org.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE
 GENERAL CONDITIONS

FIDIC® Conditions of Contract for

GUIDANCE FOR THE
UNDERGROUND WORKS PREPARATION OF
PARTICULAR CONDITIONS
AND ANNEXES: EXAMPLE
DESIGNED BY THE CONTRACTOR FORMS OF SECURITIES

ACCORDING TO THE REFERENCE

DESIGN BY THE EMPLOYER AND THE
GEOTECHNICAL BASELINE REPORT

First Edition 2019

ISBN 978-2-88432-084-9
GUIDANCE FOR THE
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

PREPARATION OF
TENDER DOCUMENTS
AND ANNEXES: TABLE
OF CONTENTS OF
THE GEOTECHNICAL
BASELINE REPORT,
EXAMPLE FORMS
OF SCHEDULE OF
BASELINES, COMPLETION
SCHEDULE, SCHEDULE
OF CONTRACTOR’S KEY
EQUIPMENT

FORMS OF LETTER OF
TENDER, LETTER OF
ACCEPTANCE, CONTRACT
AGREEMENT AND
DISPUTE ADJUDICATION/
AVOIDANCE AGREEMENT
In collaboration with

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES
 COPYRIGHT
Copyright © 2019 FIDIC/ITA. All rights reserved.
FIDIC: World Trade Center II, 29 route de Prés-Bois, Geneva Airport, CH-1215 Geneva,
Switzerland.
ITA-AITES : MIE 2 - Chemin de Balexert 9, CH 1219 Châtelaine (GE), Switzerland
FIDIC and ITA are the only Copyright owners of this publication, which is protected by the
Berne Convention for the Protection of Literary and Artistic Works, international conventions
such as TRIPS and the WIPO copyright treaty and national intellectual property laws. No part
of this publication can be reproduced, translated, adapted, stored in a retrieval system or
communicated, in any form or by any means, mechanical, electronic, magnetic, photocopying,
recording or otherwise, without prior permission in writing from FIDIC and ITA. The version in
English is considered by FIDIC and ITA as the official and authentic text for the purposes of
translation.
TERMS AND CONDITIONS
The widespread dissemination, acceptance and use of FIDIC and ITA publications and their
translations are important means for accomplishing FIDIC’s and ITA’s mission and are therefore
actively promoted by FIDIC and ITA. The sale of publications and their translations is an important
source of revenue for FIDIC and its members. It creates resources for providing a wide range of
services meeting the business needs of member firms. All steps, starting with the initial drafting
of publications, often require considerable effort and expense.
FIDIC and ITA regularly update and reissue publications so that users can profit from the
state-of-the-art. By supplying publications, FIDIC and ITA do not grant any intellectual property
rights. The purchase or supply of this publication, including forms for completion, by a purchaser
or authorised user, does not confer the authors’ rights under any circumstances.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Users rely on the contents of FIDIC and ITA publications, especially contracts and agreements,
for important business transactions. The use of authentic publications is therefore essential for
safeguarding their interests. FIDIC and ITA discourage modification of their publications, and
only in exceptional circumstances will they authorise modification, reproduction or incorporation
elsewhere. Permission to quote from, incorporate, reproduce or copy all or part of this
publication should be addressed to the FIDIC Secretariat, which will decide upon appropriate
terms in consultation with ITA. To request such permission, please contact FIDIC, P.O. Box 311,
CH-1215 Geneva 15, Switzerland; e-mail: fidic@fidic.org.
A license to prepare a modified or adapted publication will be agreed to under certain conditions.
Specifically the modified or adapted publication must be for internal purposes, and not be
published or distributed commercially.
In the case of FIDIC and ITA contracts and agreements, FIDIC and ITA aim to provide balanced
and equitable conditions of contract by ensuring the integrity of their publications. A purchaser
or authorised user of a FIDIC/ITA contract or agreement is thus granted the right to:
- make a single copy of the purchased document, for personal and private use;
- incorporate in other documents (or electronic files) either the original printed document (or
electronic file) or pages printed from an electronic file supplied by FIDIC for this purpose;
- draw up and distribute internally and/or among partners clearly identified Particular
Conditions or their equivalent using text provided in the FIDIC/ITA publication specifically for
this purpose;
- reproduce, complete and distribute internally and/or among partners any forms, in both
printed and electronic formats, provided for completion by the purchaser or user.

DISCLAIMER
While FIDIC and ITA aim to ensure that this publication represents the best in business practice,
they do not accept or assume any liability or responsibility for any events or the consequences
thereof that derive from the use of this publication. The FIDIC/ITA publication is provided “as is”,
without warranty of any kind, either express or implied, including, without limitation, warranties of
merchantability, fitness for a particular purpose and non-infringement. The FIDIC/ITA publication
is not exhaustive and is only intended to provide general guidance. This should not be relied upon
in a specific situation or issue. Expert legal advice should be obtained whenever appropriate,
and particularly before entering into or terminating a contract.

© FIDIC & ITA 2019

 CONTENTS

Acknowledgements

Notes

General Conditions

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Clauses 1 to 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Appendix: General Conditions of Dispute Avoidance/Adjudication
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Annex: DAAB Procedural Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Index of Sub-Clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Guidance for the Preparation of Particular Conditions

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introductory Guidance Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Particular Conditions Part A – Contract Data . . . . . . . . . . . . . . . . . . . . . . . 3
Particular Conditions Part B – Special Provisions. . . . . . . . . . . . . . . . . . . . 8
Notes on the Preparation of Special Provisions. . . . . . . . . . . . . . . 13
Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Advisory Notes to Users of FIDIC Contracts Where the Project Uses
Building Information Modelling Systems. . . . . . . . . . . . . . . . . . . . . . . . . . 58
Annexes: Example Forms of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Guidance for the Preparation of Tender Documents and Annexes

1 General Aspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
2 Central Principles, Underground Works. . . . . . . . . . . . . . . . . . . . . . . . . 77
3 Pre-Contract Actions by the Employer. . . . . . . . . . . . . . . . . . . . . . . . . . 78
4 Employer’s Tender Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Appendix A: The Geotechnical Baseline Report. . . . . . . . . . . . . . . . . . . . 85
Annexes: Example Schedule of Baselines, Example Completion Schedule,
Example Schedule of Contractor’s Key Equipment. . . . . . . . . . . . . . . . . . . . . . . . . 91

© FIDIC & ITA 2019

 Forms of Letter of Tender, Letter of Acceptance, Contract Agreement and
Dispute Adjudication/Avoidance Agreement

Letter of Tender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
Letter of Acceptance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II
Contract Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III
Dispute Avoidance/Adjudication Agreement. . . . . . . . . . . . . . . . . . . . . . . . V
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

© FIDIC & ITA 2019

 ACKNOWLEDGEMENTS

Fédération Internationale des Ingénieurs-Conseils (FIDIC) and the International

Tunnelling and Underground Space Association (ITA-AITES) extend special thanks to
the following persons who prepared, assisted and contributed in the preparation of
these FIDIC Conditions of Contract for Underground Works.

FIDIC-ITA Task Group 10, “New Form of Contract for Tunnelling and Underground
Works”:

Matthias Neuenschwander, ITA, Chairman, Neuenschwander Consulting Engineers

Ltd., Switzerland; Gösta Ericson, FIDIC, IC Group, Sweden; Hannes Ertl, FIDIC, D2
Consult International GmbH, Austria; James Maclure, FIDIC, Consultant, United
Kingdom; Andres Marulanda, ITA, Ingetec, Colombia; Charles Nairac, ITA, White &
Case LLP, France; Martin Smith, ITA, Matrics Consult Ltd., UK/Republic of Korea
and Zoltán Záhonyi, FIDIC, Z&Partners Consulting Engineers, Hungary (Contracts
Committee liaison).

The preparation was carried out under the general direction of the FIDIC Contracts
Committee:

Zoltán Záhonyi, Z&Partners Consulting Engineers, Hungary (Chairman); Vincent Leloup,

Exequatur, France; Des Barry, Consulting Engineer, Ireland; Adam Bialachowksi,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Poland; Kaj Möller, SWECO, Sweden; Siobhan Fahey, Consulting Engineer, Ireland;
Deryl L. Earsom, USA; Mike Roberts, Mott MacDonald, United Kingdom; Matthias
Neuenschwander, Neuenschwander Consulting Engineers Ltd., Switzerland; Enrico
Vink, FIDIC past Managing Director, Switzerland; Christophe Sisto, FIDIC Design &
Publications Manager, Switzerland; together with liaisons to the FIDIC Board:

Aisha Nadar, Advokatfirman Runeland AB, Sweden; Liu Luobing, Shanghai Investment
Consulting Corporation, People’s Republic of China.

The following ITA and FIDIC Special Advisors provided invaluable and continued support
in the various drafting and revision stages:

ITA President Tarcisio Celestino, University of Sao Paulo, Brasil; ITA Vice Presidents
Jinxiu Yan, China Railway Academy Co. Ltd., People’s Republic of China and Alexandre
Gomes, SMEC, Australia; ITA Executive Council members Arnold Dix, ALARP Consulting
Group, Australia and Randall Essex, Mott MacDonald, USA; ITA Executive Director
Oliver Vion, ITA-AITES, France; FIDIC Legal Reviewer Christopher Seppälä, White &
Case LLP, France; assisted by Dimitar Kondev, White & Case LLP, France.

Drafts were reviewed by many persons and organisations, including those listed
below. Their comments were duly studied by Task Group 10 and, where considered
appropriate, have influenced the wording of the clauses:

Gianni Arrigoni, ENGLAW s.r.l., Italy; Ben Beaumont, Barrister and ADR Specialist,
United Kingdom; Federico Blanc, CMC, Italy; Juan Pablo Buritica, Conconcreto,
Colombia; Hervé Chambon, Vinci Construction Grands Projets, France; Luis Chamy
Haddad, Chile; Elena Chiriotti, INCAS Partners, France; Hervé de Trogoff, Accuracy,
United Kingdom; Gonçalo Diniz Vieira, Lisbon General Drainage Plan, Portugal; Christian
Fredrik Grøner, Statkraft AS, Norway; Eivind Grøv, SINTEF Building and Infrastructure,
Norway; Dakus Gunn, Delta Consulting Group, USA; Ulf Håkansson, Skanska AB,

© FIDIC & ITA 2019

 Sweden; Martin Hunter, Yendall Hunter, United Kingdom; Tomohide Ichiguchi, Japan
International Development Agency, Japan; Frank Kehlenbach, European International
Contractors e.V., Germany; Thomas Konstantis, Marsh, United Kingdom; Husni
Madi, Shura Construction Management, Jordan; Alberto Marulanda Posada, Ingetec,
Colombia; Gérard Seingre, Nant de Drance SA, Switzerland; Vinod Shukla, PEMS
Engineering Consultants Pvt. Ltd., India; Giorgiana Tecuci, SCPA Tecuci Păltineanu,
Romania; Anton van Langelaar, DARB Practitioner, South Africa; Kitty Villani Cohen,
Council of Europa Development Bank, France; Haifeng Yan, China Harbour Engineering
Co Ltd, People’s Republic of China; Shane Yanagisawa, Salini Impregilo, USA; Eugenio
Zoppis, Salini Impregilo, Ethiopia.

Acknowledgement of all reviewers above does not mean that such persons or
organisations approve the wording of all clauses.

FIDIC and ITA very much appreciate the time and effort devoted by all the above
persons.

The ultimate decision on the form and content of the document rests with FIDIC and
ITA.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

© FIDIC & ITA 2019

 NOTES

This First Edition of the “Conditions of Contract for Underground Works” (Emerald Book) is
published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC) in a joint endeavour
with the International Tunnelling and Underground Space Association (ITA-AITES).

Based on the enquiries on international best practice in contracting of tunnelling and underground
construction works conducted by the ITA-AITES during the last fifteen years and on the
ITA-AITES Report 006 (“The ITA Contractual Framework Checklist for Subsurface Construction
Contracts”, April 2011, ISBN 978-2-9700634-7-9), these General Conditions of Contract have
been specifically drafted by a joint FIDIC – ITA Task Group for use in underground works. Their
use may also be appropriate in other types of works that include a significant geotechnical
uncertainty.

The Second Edition of the Conditions of Contract for Plant and Design-Build, 2017 published
by FIDIC (the Yellow Book 2017), was used as the basis for drafting these General Conditions
of Contract. The Sub-Clauses that are new or different from those of the Yellow Book 2017 are
listed below at the end of these introductory notes.

These Conditions include several new concepts in consideration of the risks that are peculiar to
underground works. In particular, they address the risk related to subsurface physical conditions
which are not possible to assess with sufficient precision in advance of the Contract, and
therefore cannot be assigned entirely to the Contractor.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

These Conditions reflect the fundamental principle which underlies all FIDIC contracts, namely
balanced risk allocation between the parties to the Contract. The joint FIDIC – ITA Task Group
firmly believes that such balanced risk allocation is paramount to a positive project outcome in
contracts for underground works.

Compared to other Works, Underground Works are predominantly characterized by three

unique features:
- the method of excavation and ground support are major factors for the successful realization
of the project, and therefore part of the Works;
- physical access to the Works is often limited to just a few locations or even a single
location, which places serious constraints on construction logistics and the environment;
- the land, beneath which the Works are to be constructed, typically belongs to a number of
third parties.

Further, there are two other important features that are not unique to Underground Works, but
which are characteristic of all such Works:
- they require extensive investment in contractor’s equipment;
- underground excavation and lining works are very time-consuming.

It is important that the Employer gives careful consideration to all five of the above features,
both before and during the preparation of the tender documents, because they are critical to
the feasibility of successful completion of the Works and tenderers’ ability to meaningfully price
the Works.

The following contents of the Emerald Book are of particular relevance:

The Geotechnical Baseline Report or GBR is defined as the single contractual source of
risk allocation related to subsurface physical conditions to the Parties. Equally important to the
physical conditions of the ground, the GBR addresses the reaction of the ground to excavation

© FIDIC & ITA 2019

 and support under the contractually agreed construction methodology. All subsurface physical
conditions not addressed in the GBR shall be considered Unforeseeable. The risks arising out
of the foreseen properties of the ground, obstacles and adverse reaction to the excavation and
ground support processes are assigned to the Contractor, as well as the production rates and
cost of performing the Works under the same conditions. Conversely, the risks arising out of
unforeseen physical conditions of the ground, obstacles, and adverse reaction to the excavation
and ground support processes are allocated to the Employer, warranting extension of time and/
or reimbursement of cost to the Contractor.

The Time for Completion of the Works, of a Section or any Milestone may largely depend on
the subsurface physical conditions that are encountered during excavation. As the risk related
to these conditions is allocated to the Employer, Time for Completion should be adjusted
by the variation of these conditions within the limits defined by the GBR, insofar as this variation
affects the critical path of the Works, of a Section or any Milestone. In the case that the amount
of more onerous conditions encountered is higher than described in the GBR, the Time for
Completion should be extended, while in the case that the amount of less onerous conditions
is higher than described in the GBR, the Time for Completion should be reduced. Accordingly,
the Contractor’s Tender shall include production rates for each excavation drive or zone, based
upon the conditions described in the GBR. The estimated quantities of the excavation, ground
support, ancillary measures and lining, as well as the corresponding production rates shall be
included in the Schedule of Baselines (Sub-Clause 8.2.2), and the corresponding sequential
logical links between Milestones shall be included in the Completion Schedule (Sub-Clause
8.2.1).

The cost of the Excavation and Lining Works will also largely depend on the subsurface
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

physical conditions and/or ground reaction(s) to such works. These Conditions provide that the
Excavation and Lining Works are to be measured and paid for using rates and prices
set out in the Bill of Quantities. Under these Conditions it is the Contractor that measures the
as-built quantities which are then agreed or determined by the Engineer. All the other Works (for
example, ancillary surface works) are to be paid on a lump sum basis.

Due to the typically long duration of underground works and to the high cost of investment in
equipment, an important portion of the cost to the Contractor, such as i.e., depreciation of and
interest for equipment, overhead charges etc., is time-related, whilst the remainder of the cost
depends on the volume or quantity of the performed works. Hence, the adjustment of Time
for Completion (if any) due to the difference between the contractually agreed and the
encountered subsurface physical conditions should also lead to an adjustment of the
Contractor’s remuneration for time-related charges. The Bill of Quantities for Excavation
and Lining Works should therefore distinguish between time-related rate items, quantity-related
rate items and fixed rate items for the performance of the Works (Sub-Clauses 13.8.2 and 13.8.3).

This publication includes comprehensive guidance for Employers in preparing tender documents
for projects using these Conditions – see the section entitled Guidance for the Preparation
of Tender Documents below. The quality of the tender documents prepared by the Employer
has a strong influence on the quality of the Contract and on the success of the Project. The
tendering of Underground Works requires a high degree of preparation of the Employer’s
reference design, and therefore FIDIC and ITA strongly recommend that the Employer engages
a team with sufficient experience in the design, procurement and management of underground
works, as well as providing the team sufficient time for careful and thorough preparation of the
tender documents.

The relevant experience of the Contractor is of paramount importance to the success of

underground works. FIDIC and ITA strongly recommend that Employers use a quality-based
selection process and that sufficient time is given to tenderers for preparation of their proposals.

© FIDIC & ITA 2019

 The Conditions of Contract for Plant and Design-Build, 2017 Edition, which served as a basis
for drafting these General Conditions of Contract, were published by FIDIC as an update of the
FIDIC 1999 Conditions of Contract for Plant and Design-Build (Yellow Book), First Edition.
The FIDIC 1999 Yellow Book has been in widespread use for nearly two decades. In particular,
it has been recognized for, among other things, its principles of balanced risk sharing between
the Employer and the Contractor in projects where the Contractor designs and constructs the
works, and may provide plant, in accordance with the Employer’s requirements, including any
combination of civil, mechanical, electrical and/or construction works.

This publication continues FIDIC’s fundamental principles of balanced risk sharing, while seeking
to build on the substantial experience gained from the use of the FIDIC Yellow Book over the
past 18 years, and from best international practice endorsed by the ITA-AITES.

These Conditions include conditions which are likely to apply to the majority of such contracts.
Essential items of information which are particular to each individual contract are to be included
in the Particular Conditions Part A – Contract Data.

In addition, it is recognized that many Employers, especially governmental agencies, may require
special conditions of contract, or particular procedures, which differ from those included in the
General Conditions. These should be included in Part B – Special Provisions. However, the
amendment of those General Conditions referring in particular to Underground Works is strongly
discouraged, as it may alter the balanced risk allocation that is central to the present Form of
Contract.

It should be noted, that the General Conditions and the Particular Conditions (Part A – Contract
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Data and Part B – Special Provisions) are all part of the Conditions of Contract.

To assist Employers in preparing tender documents and in drafting Particular Conditions of

Contract for specific projects, this publication includes Guidance on the Preparation of Tender
Documents and Guidance on the Preparation of Special Provisions, which provide important
advice to drafters of contract documents, in particular the Geotechnical Baseline Report, the
Schedule of Baselines, the Completion Schedule, the Employer’s Requirements, the Bill of
Quantities and Special Provisions. In drafting Special Provisions, if clauses or sub-clauses in the
General Conditions are to be replaced or supplemented and before incorporating any example
wording, Employers are urged to seek legal and engineering advice in an effort to avoid ambiguity
and to ensure completeness and consistency with the other provisions of the contract.

This publication begins with a series of comprehensive flow charts which typically show, in
visual form, the sequences of activities which characterize the FIDIC Underground Works form
of contract. The charts are illustrative, however, and must not be taken into consideration in the
interpretation of the Conditions of Contract.

This publication also includes a number of sample forms to help both Parties to develop a
common understanding of what is required by the contract and/or by third parties such as
providers of securities and guarantees.

Drafters of contract documents are reminded that the General Conditions of all FIDIC contracts
are protected by copyright and trademark and may not be changed without specific written
consent, usually in the form of a licence to amend, from FIDIC. If drafters wish to amend the
provisions found in the General Conditions, the place for doing this is in the Particular Conditions
Part B – Special Provisions, as mentioned above, and not by making changes in the General
Conditions as published.

FIDIC and ITA consider the official and authentic texts to be the versions in the English language.

© FIDIC & ITA 2019

 List of Sub-Clauses of these Conditions of Contract for Underground Works, First Edition 2019,
that are new or different from the Sub-Clauses in the Conditions of Contract for Plant and Design
Build, 2017 Edition:

1.1.5 “Bill of Quantities”

1.1.8 “Completion Schedule”
1.1.11 “Contract”
1.1.15 “Contract Risk Management Plan”
1.1.16 “Contract Risk Register”
1.1.20 “Contractor’s Key Equipment”
1.1.23 “Contractor’s Proposal”
1.1.39 “Employer’s Requirements”
1.1.43 “Excavation”
1.1.50 “General Conditions”
1.1.51 “Geotechnical Baseline Report”
1.1.52 “Geotechnical Data Report”
1.1.58 “Letter of Acceptance”
1.1.60 “Lining”
1.1.63 “Milestone”
1.1.64 “Milestone Certificate”
1.1.83 “Schedules”
1.1.84 “Schedule of Baselines”
1.1.85 “Schedule of Contractor’s Key Equipment”
1.1.88 “Schedule of Rates and Prices”
1.1.99 “Time for Completion”
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1.1.100 “Underground Works”

1.1.101 “Unforeseeable”
1.2 Interpretation
1.5 Priority of Documents
1.9 Errors in the Employer’s Requirements and/or in the Geotechnical Baseline Report
1.16 Contract Risk Register and Contract Risk Management Plan
2.5 Site Data and Items of Reference
3.2.2 Engineer’s Specific Duties and Authority for Excavation and Lining Works
4.10 Use of Site Data, of the Geotechnical Baseline Report and of the Geotechnical Data
Report
4.10.1 Use of Site Data
4.10.2 Use of the Geotechnical Baseline Report
4.10.3 Use of the Geotechnical Data Report
4.11 Sufficiency of the Accepted Contract Amount
4.12 Unforeseeable Physical Conditions
4.12.1 Contractor’s Notice
4.12.2 Engineer’s inspection and investigation
4.12.5 Agreement or Determination of Delay and/or Cost
4.16 Transport of Goods
4.17 Contractor’s Equipment
4.20 Progress Reports
4.24 Excavation and Lining Works
4.25 Milestones
5.1 General Design Obligations
5.2 Contractor’s Documents
6.1 Engegement of Staff and Labour
8.2 Time for Completion
8.2.1 The Completion Schedule
8.2.2 The Schedule of Baselines

© FIDIC & ITA 2019

 8.3 Programme
8.4 Advance Warning
8.5 Extension of Time for Completion
8.7 Rate of Progress
8.9 Employer’s Suspension
13.8 Measurement of Excavation and Lining Works and Adjustment of Time for Completion
and of the Contract Price
13.8.1 Responsibility for Measurement
13.8.2 Bill of Quantities for Excavation and Lining Works
13.8.3 Adjustment of Time for Completion
13.8.4 Adjustment of the Contract Price
14.1 The Contract Price
14.3 Application for Interim Payment
14.4 Schedule of Payments
20.2.4 Fully Detailed Claim
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© FIDIC & ITA 2019

 Typical Sequence of Principal Events During Contracts for Underground Works

1. The Time for Completion is to be stated (in the Contract Data) as a number of days, to which is added any
extensions of time under Sub-Clause 8.5, and subtracted or added, as the case may be, any adjustement
of time under Sub-Clause 13.8.

2. In order to indicate the sequence of events, the diagram below is based upon the example of the Contractor
failing to comply with Sub-Clause 8.2.

3. The Defects Notification Period is to be stated (in the Contract Data) as a number of days, to which is added
any extensions under Sub-Clause 11.3.

4. Depending on the type of Works, Tests after Completion may also be required.

Issue of the Submission Contractor’s 8.1 1.1.24 11.9 Issue of

Tender of the receipt of Commencement Date of Performance
Documents Tender the Letter of Date Completion Certificate
Acceptance

Base Defects
Date 8.2 Time for Notification
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Completion1 Period3

28d ≤28d ≤21d

11 Notifying
Delay of Defects
attributable
to the
Contractor2

Tender 4.2.1 Delivery of the 9. Tests on Remedying

period Performance Security Completion4 of Defects

4.2.3 Return of
the Performance
Security (subject to
Sub-Clause 11.11)

© FIDIC & ITA 2019

 Typical Sequence of Payment Events Envisaged in Clause 14

14.3, 14.6.1 Engineer 14.6 Engineer 14.7 Employer makes

receives Contractor’s issues Interim the payment to the
Statement and Payment Certificate Contractor
Supporting documents

Each of the ≤56d

monthly (or
otherwise)
interim
≤28d
payments

The final Engineer verifies the

statement, Contractor
payment submits information

≤28d ≤56d

14.11.1 Contractor 14.11.2 Contractor submits 14.13 Engineer issues 14.7 Employer
submits draft final Final Statement and the Final Payment makes payment
Statement to the Engineer 14.12 discharge Certificate
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Typical Sequence of Dispute Events Envisaged in Clause 21

Contractor 21.1 Parties 21.4.1 A Party refers 21.4.4 A Party 21.6 A Party
receives appoint the the Dispute to the may issue may initiate
the Letter of DAAB DAAB a “Notice of arbitration
Acceptance Dissatisfaction”

Parties present 21.5 Amicable

submissions to the DAAB settlement

≤28d* ≤84d ≤28d >28d

DAAB gives Arbitrator/s

its decision appointed

* If not stated otherwise in the Contract Data (Sub-Clause 21.1)

© FIDIC & ITA 2019

 Typical Sequence of Events in Agreement or Determination under Sub-Clause 3.7

Scenario 11
Engineer starts Parties’ agreement Notice of error by
performing duties Sub-Clause 3.7.1 a Party/Engineer
Sub-Clause 3.7 Sub-Clause 3.7.4

Engineer’s Notice Engineer’s Notice of

of agreement corrected agreement
Sub-Clause 3.7.1 Sub-Clause 3.7.4
Consultations

≤42d ≤14d ≤7d

Sub-Clause 3.7.3
(a), (b) or (c)

Scenario 22
Engineer starts Parties advise the Engineer’s Notice Notice of
performing duties Engineer: no agreement of determination Dissatisfaction
Sub-Clause 3.7 Sub-Clause 3.7.1(b) Sub-Clause 3.7.2 Sub-Clause 3.7.5

No Notice
of error

Consultations Period for making Engineer’s

determintaion
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≤42d ≤42d ≤14d

Sub-Clause 3.7.3 ≤28d

(a), (b) or (c)

Scenario 33
Engineer starts No agreement Engineer’s Notice Engineer’s Notice
performing duties between the Parties of determination of corrected
Sub-Clause 3.7 Sub-Clause 3.7.1(a) Sub-Clause 3.7.2 determination
Sub-Clause 3.7.4

Notice of error by Notice of

a Party/Engineer Dissatisfaction
Sub-Clause 3.7.4 Sub-Clause 3.7.5

Consultations Period for making Engineer’s

determintaion

≤42d ≤42d ≤14d ≤7d

Sub-Clause 3.7.3 ≤28d

(a), (b) or (c)

1. Agreement is reached within 42 days, error found in the Engineer’s Notice of agreement and corrected.

2. The Parties’ early advice that agreement cannot be reached and so Engineer’s determination is necessary,
no error in Engineer’s determination.

3. No agreement within 42 days, Engineer determines within 42 days, error found in the Engineer’s determination
and corrected.

© FIDIC & ITA 2019

 GENERAL CONDITIONS

FIDIC® Conditions of Contract for

GUIDANCE FOR THE
UNDERGROUND WORKS PREPARATION OF
PARTICULAR CONDITIONS
AND ANNEXES: EXAMPLE
DESIGNED BY THE CONTRACTOR FORMS OF SECURITIES

ACCORDING TO THE REFERENCE

DESIGN BY THE EMPLOYER AND THE
GEOTECHNICAL BASELINE REPORT

General Conditions

GUIDANCE FOR THE

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

PREPARATION OF
TENDER DOCUMENTS
AND ANNEXES: TABLE
OF CONTENTS OF
THE GEOTECHNICAL
BASELINE REPORT,
EXAMPLE FORMS
OF SCHEDULE OF
BASELINES, COMPLETION
SCHEDULE, SCHEDULE
OF CONTRACTOR’S KEY
EQUIPMENT

FORMS OF LETTER OF
TENDER, LETTER OF
ACCEPTANCE, CONTRACT
AGREEMENT AND
DISPUTE ADJUDICATION/
AVOIDANCE AGREEMENT
In collaboration with

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE
 CONDITIONS
GENERAL
GUIDANCE
General Conditions

CONTENTS

FORMS
1 GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions
1.2 Interpretation
1.3 Notices and Other Communications
1.4 Law and Language
1.5 Priority of Documents
1.6 Contract Agreement
1.7 Assignment
1.8 Care and Supply of Documents
1.9 Errors in the Employer’s Requirements and/or in the Geotechnical Baseline
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Report
1.10 Employer’s Use of Contractor’s Documents
1.11 Contractor’s Use of Employer’s Documents
1.12 Confidentiality
1.13 Compliance with Laws
1.14 Joint and Several Liability
1.15 Limitation of Liability
1.16 Contract Risk Register and Contract Risk Management Plan
1.17 Contract Termination

2 THE EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2.1 Right of Access to the Site

2.2 Assistance
2.3 Employer’s Personnel and Other Contractors
2.4 Employer’s Financial Arrangements
2.5 Site Data and Items of Reference
2.6 Employer-Supplied Materials and Employer’s Equipment

3 THE ENGINEER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.1 The Engineer

3.2 Engineer’s Duties and Authority
3.3 The Engineer’s Representative

General Conditions © FIDIC & ITA 2019

i
 3.4 Delegation by the Engineer
CONDITIONS

3.5 Engineer’s Instructions

GENERAL

3.6 Replacement of the Engineer

3.7 Agreement or Determination
3.8 Meetings

4 THE CONTRACTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
GUIDANCE

4.1 Contractor’s General Obligations

4.2 Performance Security
4.3 Contractor’s Representative
4.4 Subcontractors
4.5 Nominated Subcontractors
FORMS

4.6 Co-operation
4.7 Setting Out
4.8 Health and Safety Obligations
4.9 Quality.Management and Compliance Verification Systems
4.10 Use of Site Data of the Geotechnical Baseline Report and of the Geotechnical
Data Report
4.11 Sufficiency of the Accepted Contract Amount
4.12 Unforeseeable Physical Conditions
4.13 Rights of Way and Facilities
4.14 Avoidance of Interference
4.15 Access Route
4.16 Transport of Goods
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

4.17 Contractor’s Equipment

4.18 Protection of the Environment
4.19 Temporary Utilities
4.20 Progress Reports
4.21 Security of the Site
4.22 Contractor’s Operations on Site
4.23 Archaeological and Geological Findings
4.24 Excavation and Lining Works
4.25 Milestones

5 DESIGN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

5.1 General Design Obligations

5.2 Contractor’s Documents
5.3 Contractor’s Undertaking
5.4 Technical Standards and Regulations
5.5 Training
5.6 As-Built Records
5.7 Operation and Maintenance Manuals
5.8 Design Error

ii © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 6 STAFF AND LABOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CONDITIONS
GENERAL
6.1 Engagement of Staff and Labour
6.2 Rates of Wages and Conditions of Labour
6.3 Recruitment of Persons
6.4 Labour Laws
6.5 Working Hours

GUIDANCE
6.6 Facilities for Staff and Labour
6.7 Health and Safety of Personnel
6.8 Contractor’s Superintendence
6.9 Contractor’s Personnel
6.10 Contractor’s Records
6.11 Disorderly Conduct

FORMS
6.12 Key Personnel

7 PLANT, MATERIALS AND WORKMANSHIP. . . . . . . . . . . . . . . . . . . . . . . . 50

7.1 Manner of Execution

7.2 Samples
7.3 Inspection
7.4 Testing by the Contractor
7.5 Defects and Rejection
7.6 Remedial Work
7.7 Ownership of Plant and Materials
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7.8 Royalties

8 COMMENCEMENT, DELAYS AND SUSPENSION. . . . . . . . . . . . . . . . . . . 53

8.1 Commencement of Works

8.2 Time for Completion
8.3 Programme
8.4 Advance Warning
8.5 Extension of Time for Completion
8.6 Delays Caused by Authorities
8.7 Rate of Progress
8.8 Delay Damages
8.9 Employer’s Suspension
8.10 Consequences of Employer’s Suspension
8.11 Payment for Plant and Materials after Employer’s Suspension
8.12 Prolonged Suspension
8.13 Resumption of Work

9 TESTS ON COMPLETION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

9.1 Contractor’s Obligations

9.2 Delayed Tests
9.3 Retesting
9.4 Failure to Pass Tests on Completion

General Conditions © FIDIC & ITA 2019

iii
 10 EMPLOYER’S TAKING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
CONDITIONS
GENERAL

10.1 Taking Over the Works and Sections

10.2 Taking Over Parts
10.3 Interference with Tests on Completion
10.4 Surfaces Requiring Reinstatement
GUIDANCE

11 DEFECTS AFTER TAKING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

11.1 Completion of Outstanding Work and Remedying Defects

11.2 Cost of Remedying Defects
11.3 Extension of Defects Notification Period
FORMS

11.4 Failure to Remedy Defects

11.5 Remedying of Defective Work off Site
11.6 Further Tests after Remedying Defects
11.7 Right of Access after Taking Over
11.8 Contractor to Search
11.9 Performance Certificate
11.10 Unfulfilled Obligations
11.11 Clearance of Site

12 TESTS AFTER COMPLETION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

12.1 Procedure for Tests after Completion

12.2 Delayed Tests
12.3 Retesting
12.4 Failure to Pass Tests after Completion

13 VARIATIONS AND ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

13.1 Right to Vary

13.2 Value Engineering
13.3 Variation Procedure
13.4 Provisional Sums
13.5 Daywork
13.6 Adjustments for Changes in Laws
13.7 Adjustments for Changes in Cost
13.8 Measurement of Excavation and Lining Works and Adjustment of Time for
Completion and Contract Price

14 CONTRACT PRICE AND PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

14.1 The Contract Price

14.2 Advance Payment
14.3 Application for Interim Payment
14.4 Schedule of Payments
14.5 Plant and Materials intended for the Works

iv © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 14.6 Issue of IPC

CONDITIONS
14.7 Payment

GENERAL
14.8 Delayed Payment
14.9 Release of Retention Money
14.10 Statement at Completion
14.11 Final Statement
14.12 Discharge

GUIDANCE
14.13 Issue of FPC
14.14 Cessation of Employer’s Liability
14.15 Currencies of Payment

15 TERMINATION BY EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

FORMS
15.1 Notice to Correct
15.2 Termination for Contractor’s Default
15.3 Valuation after Termination for Contractor’s Default
15.4 Payment after Termination for Contractor’s Default
15.5 Termination for Employer’s Convenience
15.6 Valuation after Termination for Employer’s Convenience
15.7 Payment after Termination for Employer’s Convenience

16 SUSPENSION AND TERMINATION BY CONTRACTOR . . . . . . . . . . . . . . 95

16.1 Suspension by Contractor

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16.2 Termination by Contractor

16.3 Contractor’s Obligations After Termination
16.4 Payment after Termination by Contractor

17 CARE OF THE WORKS AND INDEMNITIES. . . . . . . . . . . . . . . . . . . . . . . . 97

17.1 Responsibility for Care of the Works

17.2 Liability for Care of the Works
17.3 Intellectual and Industrial Property Rights
17.4 Indemnities by Contractor
17.5 Indemnities by Employer
17.6 Shared Indemnities

18 EXCEPTIONAL EVENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

18.1 Exceptional Events

18.2 Notice of an Exceptional Event
18.3 Duty to Minimise Delay
18.4 Consequences of an Exceptional Event
18.5 Optional Termination
18.6 Release from Performance under the Law

General Conditions © FIDIC & ITA 2019

v
 19 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
CONDITIONS
GENERAL

19.1 General Requirements

19.2 Insurance to be provided by the Contractor

20 EMPLOYER’S AND CONTRACTOR’S CLAIMS. . . . . . . . . . . . . . . . . . . . . 106

GUIDANCE

20.1 Claims
20.2 Claims For Payment and/or EOT

21. DISPUTES AND ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

FORMS

21.1 Constitution of the DAAB

21.2 Failure to Appoint DAAB Member(s)
21.3 Avoidance of Disputes
21.4 Obtaining DAAB’s Decision
21.5 Amicable Settlement
21.6 Arbitration
21.7 Failure to Comply with DAAB’s Decision
21.8 No DAAB In Place

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

GENERAL CONDITIONS OF DISPUTE AVOIDANCE/ADJUDICATION

AGREEMENT

INDEX OF SUB-CLAUSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

vi © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 CONDITIONS
GENERAL
General Conditions

1
General Provisions

GUIDANCE
1.1
Definitions In the Contract the following words and expressions shall have the meanings stated,
except where the context requires otherwise

1.1.1 “Accepted Contract Amount” means the amount accepted in the Letter of
Acceptance for the execution of the Works in accordance with the Contract.

FORMS
1.1.2 “Advance Payment Certificate” means a Payment Certificate issued
by the Engineer for advance payment under Sub-Clause 14.2.2 [Advance
Payment Certificate].

1.1.3 “Advance Payment Guarantee” means the guarantee under Sub-Clause

14.2.1 [Advance Payment Guarantee].

1.1.4 “Base Date” means the date 28 days before the latest date for submission
of the Tender.

1.1.5 “Bill of Quantities” means the document entitled bill of quantities as

included in the Contract as part of the Schedule of Rates and Prices.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

1.1.6 “Claim” means a request or assertion by one Party to the other Party for
an entitlement or relief under any Clause of these Conditions or otherwise
in connection with, or arising out of, the Contract or the execution of the
Works.

1.1.7 “Commencement Date” means the date as stated in the Engineer’s Notice
issued under Sub-Clause 8.1 [Commencement of Works].

1.1.8 “Completion Schedule” means the document entitled completion schedule

as included in the Contract stating the Time for Completion for each of the
Works, the Sections (if any) and/or the Milestones (as the case may be) and
setting out the logical sequential links between each Time for Completion,

1.1.9 “Compliance Verification System” means the compliance verification

system to be prepared and implemented by the Contractor for the Works in
accordance with Sub-Clause 4.9.2 [Compliance Verification System].

1.1.10 “Conditions of Contract” or “these Conditions” means these General

Conditions as amended by the Particular Conditions.

1.1.11 “Contract” means the Contract Agreement, the Letter of Acceptance, the
Letter of Tender, any addenda referred to in the Contract Agreement, these
Conditions, the Employer’s Requirements, the Geotechnical Baseline Report,
the Schedules, the Contractor’s Proposal, the JV Undertaking (if applicable)
and the further documents (if any) including the Contract Risk Management
Plan, the Contract Risk Register and the Geotechnical Data Report, which
are listed in the Contract Agreement or in the Letter of Acceptance.

1.1.12 “Contract Agreement” means the agreement entered into by both Parties
in accordance with Sub-Clause 1.6 [Contract Agreement].

General Conditions © FIDIC & ITA 2019

1
 1.1.13 “Contract Data” means the pages, entitled contract data which constitute
CONDITIONS

Part A of the Particular Conditions.

GENERAL

1.1.14 “Contract Price” means the price defined in Sub-Clause 14.1 [The Contract
Price].

1.1.15 “Contract Risk Management Plan” means the document entitled contract
risk management plan (as may be updated and/or revised from time to time)
GUIDANCE

prepared and maintained in accordance with Sub-Clause 1.16 [Contract

Risk Register and Contract Risk Management Plan].

1.1.16 “Contract Risk Register” means the document entitled contract risk
register required under Sub-Clause 1.16 [Contract Risk Register and
Contract Risk Management Plan] (as may be updated and/or revised from
time to time) which identifies relevant risks, and the actions which are to be
FORMS

taken to avoid or reduce these risks.

1.1.17 “Contractor” means the person(s) named as contractor in the Letter of

Tender accepted by the Employer and the legal successors in title of such
person(s).

1.1.18 “Contractor’s Documents” means the documents prepared by the

Contractor as described in Sub-Clause 5.2 [Contractor’s Documents],
including calculations, digital files, computer programs and other software,
drawings, manuals, models, specifications and other documents of a
technical nature.

1.1.19 “Contractor’s Equipment” means all apparatus, equipment, machinery,

construction plant, vehicles and other items required by the Contractor for
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the execution of the Works. Contractor’s Equipment excludes Temporary

Works, Plant, Materials and any other things intended to form or forming
part of the Permanent Works.

1.1.20 “Contractor’s Key Equipment” means the items (if any) of the Contractor’s
Equipment that are stated in the Schedule of Contractor’s Key Equipment.

1.1.21 “Contractor’s Key Personnel” means the positions (if any) of the
Contractor’s Personnel, other than the Contractor’s Representative, that are
specified in the Employer’s Requirements.

1.1.22 “Contractor’s Personnel” means the Contractor’s Representative and all

personnel whom the Contractor utilises on Site or other places where the
Works are being carried out, including the staff, labour and other employees
of the Contractor and of each Subcontractor; and any other personnel
assisting the Contractor in the execution of the Works.

1.1.23 “Contractor’s Proposal” means the part of the Tender stated or implied
as being the Contractor’s proposal for execution of the Works, as included
in the Contract. Such documents may include the Contractor’s preliminary
design.

1.1.24 “Contractor’s Representative” means the natural person named by the

Contractor in the Contract or appointed by the Contractor under Sub-Clause
4.3 [Contractor’s Representative], who acts on behalf of the Contractor.

1.1.25 “Cost” means all expenditure reasonably incurred (or to be incurred) by the
Contractor in performing the Contract, whether on or off the Site, including

2 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 taxes, overheads and similar charges, but does not include profit. Where the

CONDITIONS
Contractor is entitled under a Sub-Clause of these Conditions to payment of

GENERAL
Cost, it shall be added to the Contract Price.

1.1.26 “Cost Plus Profit” means Cost plus the applicable percentage for profit
stated in the Contract Data (if not stated, five percent (5%)). Such percentage
shall only be added to Cost, and Cost Plus Profit shall only be added to the
Contract Price, where the Contractor is entitled under a Sub-Clause of these

GUIDANCE
Conditions to payment of Cost Plus Profit.

1.1.27 “Country” means the country in which the Site (or most of it) is located,
where the Permanent Works are to be executed.

1.1.28 “DAAB” or “Dispute Avoidance/Adjudication Board” means the sole

member or three members (as the case may be) so named in the Contract, or

FORMS
appointed under Sub-Clause 21.1 [Constitution of the DAAB] or Sub-Clause
21.2 [Failure to Appoint DAAB Member(s)].

1.1.29 “DAAB Agreement” means the agreement signed or deemed to have been
signed by both Parties and the sole member or each of the three members
(as the case may be) of the DAAB in accordance with Sub-Clause 21.1
[Constitution of the DAAB] or Sub-Clause 21.2 [Failure to Appoint DAAB
Member(s)], incorporating by reference the General Conditions of Dispute
Avoidance/Adjudication Agreement contained in the Appendix to these
General Conditions with such amendments as are agreed.

1.1.30 “Date of Completion” means the date stated in the Taking-Over Certificate
issued by the Engineer; or, if the last paragraph of Sub-Clause 10.1 [Taking
Over the Works and Sections] applies, the date on which the Works or Section
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

are deemed to have been completed in accordance with the Contract; or, if
Sub-Clause 10.2 [Taking Over Parts] or Sub-Clause 10.3. [Interference with
Tests on Completion] applies, the date on which the Works or Section or
Part are deemed to have been taken over by the Employer, or, if Sub-Clause
4.25 [Milestones] applies, the date stated in the Milestone Certificate issued
by the Engineer.

1.1.31 “day” means a calendar day.

1.1.32 “Daywork Schedule” means the document entitled daywork schedule (if
any) included in the Contract, showing the amounts and manner of payments
to be made to the Contractor for labour, materials and equipment used for
daywork under Sub-Clause 13.5 [Daywork].

1.1.33 “Defects Notification Period” or “DNP” means the period for notifying
defects and/or damage in the Works or a Section or a Part (as the case
may be) under Sub-Clause 11.1 [Completion of Outstanding Work and
Remedying Defects], as stated in the Contract Data (if not stated, one year),
and as may be extended under Sub-Clause 11.3 [Extension of Defects
Notification Period]. This period is calculated from the Date of Completion of
the Works or Section or Part.

1.1.34 “Delay Damages” means the damages for which the Contractor shall be
liable under Sub-Clause 8.8 [Delay Damages] for failure to comply with
Sub-Clause 8.2 [Time for Completion].

1.1.35 “Dispute” means any situation where:

(a) one Party makes a claim against the other Party (which may be a
Claim, as defined in these Conditions, or a matter to be determined

General Conditions © FIDIC & ITA 2019

3
 by the Engineer under these Conditions, or otherwise);
CONDITIONS

(b) the other Party (or the Engineer under Sub-Clause 3.7.2 [Engineer’s
GENERAL

Determination]) rejects the claim in whole or in part; and

(c) the first Party does not acquiesce (by giving a NOD under Sub-Clause
3.7.5 [Dissatisfaction with Engineer’s determination] or otherwise),
provided however that a failure by the other Party (or the Engineer) to oppose
or respond to the claim, in whole or in part, may constitute a rejection if, in
GUIDANCE

the circumstances, the DAAB or the arbitrator(s), as the case may be, deem
it reasonable for it to do so.

1.1.36 “Employer” means the person named as the employer in the Contract Data
and the legal successors in title to this person.

1.1.37 “Employer’s Equipment” means the apparatus, equipment, machinery,

FORMS

construction plant and/or vehicles (if any) to be made available by the

Employer for the use of the Contractor under Sub-Clause 2.6 [Employer-
Supplied Materials and Employer’s Equipment]; but does not include Plant
which has not been taken over under Clause 10 [Employer’s Taking Over].

1.1.38 “Employer’s Personnel” means the Engineer, the Engineer’s Representative

(if appointed), the assistants described in Sub-Clause 3.4 [Delegation by the
Engineer] and all other staff, labour and other employees of the Engineer and
of the Employer engaged in fulfilling the Employer’s obligations under the
Contract; and any other personnel identified as Employer’s Personnel, by a
Notice from the Employer or the Engineer to the Contractor.

1.1.39 “Employer’s Requirements” means the document entitled employer’s

requirements, as included in the Contract, and any additions and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

modifications to such document in accordance with the Contract. Such

document describes the purpose(s) for which the Works are intended, and
specifies the Contractor’s Key Personnel and required equipment (if any), the
scope, any preliminary design carried out by or on behalf of the Employer
(Employer’s reference design), and design and/or other performance,
technical and evaluation criteria for the Works.

1.1.40 “Employer-Supplied Materials” means the materials (if any) to be supplied

by the Employer to the Contractor under Sub-Clause 2.6 [Employer-Sup-
plied Materials and Employer’s Equipment].

1.1.41 “Engineer” means the person named in the Contract Data appointed by
the Employer to act as the Engineer for the purposes of the Contract, or
any replacement appointed under Sub-Clause 3.6 [Replacement of the
Engineer].

1.1.42 “Engineer’s Representative” means the natural person who may

be appointed by the Engineer under Sub-Clause 3.3 [The Engineer’s
Representative].

1.1.43 “Excavation” means those parts of the Works required to excavate,

temporarily support and secure the space for the Underground Works,
including exploratory investigations, preliminary mitigation measures, ground
treatment, ground water management, ground support measures, seepage
treatment, temporary and ancillary works (all other works that are required
to execute the Excavation) (in each case if any).

1.1.44 “Exceptional Event” means an event or circumstance as defined in

Sub-Clause 18.1 [Exceptional Events].

4 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 1.1.45 “Extension of Time” or “EOT” means an extension of the Time for

CONDITIONS
Completion under Sub-Clause 8.5 [Extension of Time for Completion].

GENERAL
1.1.46 “FIDIC” means the Fédération Internationale des Ingénieurs-Conseils, the
International Federation of Consulting Engineers.

1.1.47 “Final Payment Certificate” or “FPC” means the payment certificate

issued by the Engineer under Sub-Clause 14.13 [Issue of FPC].

GUIDANCE
1.1.48 “Final Statement” means the Statement defined in Sub-Clause 14.11.2
[Agreed Final Statement].

1.1.49 “Foreign Currency” means a currency in which part (or all) of the Contract
Price is payable, but not the Local Currency.

FORMS
1.1.50 “General Conditions” means this document entitled “Conditions of
Contract for Underground Works”, as published by FIDIC.

1.1.51 “Geotechnical Baseline Report” or “GBR” means the report entitled

geotechnical baseline report as included in the Contract that describes the
subsurface physical conditions to serve as the basis for the execution of the
Excavation and Lining Works, including design and construction methods,
and the reaction of the ground to such methods. The GBR sets out the
allocation of the risk between the Parties for such subsurface physical
conditions.

1.1.52 “Geotechnical Data Report” or “GDR” means the report entitled

Geotechnical Data Report as included in the Contract containing the
geological, geotechnical and hydrogeological data deemed to be in the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Employer’s possession at the Base Date.

1.1.53 “Goods” means Contractor’s Equipment, Materials, Plant and Temporary

Works, or any of them as appropriate.

1.1.54 “Interim Payment Certificate” or “IPC” means a Payment Certificate

issued by the Engineer for an interim payment under Sub-Clause 14.6 [Issue
of IPC].

1.1.55 “Joint Venture” or “JV” means a joint venture, association, consortium or

other unincorporated grouping of two or more persons, whether in the form
of a partnership or otherwise.

1.1.56 “JV Undertaking” means the letter provided to the Employer as part of the
Tender setting out the legal undertaking between the two or more persons
constituting the Contractor as a JV. This letter shall be signed by all the
persons who are members of the JV, shall be addressed to the Employer
and shall include:

(a) each such member’s undertaking to be jointly and severally liable

to the Employer for the performance of the Contractor’s obligations
under the Contract;
(b) identification and authorisation of the leader of the JV; and
(c) identification of the separate scope or part of the Works (if any) to be
carried out by each member of the JV.
1.1.57 “Laws” means all national (or state or provincial) legislation, statutes, acts,
decrees, rules, ordinances, orders, treaties, international law and other laws,
and regulations and by-laws of any legally constituted public authority.

General Conditions © FIDIC & ITA 2019

5
 1.1.58 “Letter of Acceptance” means the letter of formal acceptance, signed by
CONDITIONS

the Employer, of the Letter of Tender, including any annexed memoranda

GENERAL

comprising agreements between and signed by both Parties. If there is no

such letter of acceptance, the expression “Letter of Acceptance” means
the Contract Agreement and the date of issuing or receiving the Letter of
Acceptance means the date of signing the Contract Agreement.

1.1.59 “Letter of Tender” means the letter of tender, signed by the Contractor,
GUIDANCE

stating the Contractor’s offer to the Employer for the execution of the Works.

1.1.60 “Lining” means the Works required to permanently line and support the
excavated space for the Underground Works, whether constructed at the
same time or at a later stage, including waterproofing, contact grouting and
backfill (in each case if any).
FORMS

1.1.61 “Local Currency” means the currency of the Country.

1.1.62 “Materials” means things of all kinds (other than Plant), whether on the Site
or otherwise allocated to the Contract and intended to form or forming part
of the Permanent Works, including the supply-only materials (if any) to be
supplied by the Contractor under the Contract.

1.1.63 “Milestone” means any event in the project defined as a milestone in the
Completion Schedule. The completion of the Excavation and the completion
of the Lining shall be deemed to be Milestones.

1.1.64 “Milestone Certificate” means the certificate issued by the Engineer under
Sub-Clause 4.25 [Milestones].
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

1.1.65 “month” is a calendar month (according to the Gregorian calendar).

1.1.66 “No-objection” means that the Engineer has no objection to the Contractor’s
Documents, or other documents submitted by the Contractor under these
Conditions, and such Contractor’s Documents or other documents may be
used for the Works.

1.1.67 “Notice” means a written communication identified as a Notice and issued

in accordance with Sub-Clause 1.3 [Notices and Other Communications].

1.1.68 “Notice of Dissatisfaction” or “NOD” means the Notice one Party may give
to the other Party if it is dissatisfied, either with an Engineer’s determination
under Sub-Clause 3.7 [Agreement or Determination] or with a DAAB’s
decision under Sub-Clause 21.4 [Obtaining DAAB’s Decision].

1.1.69 “Part” means a part of the Works or part of a Section (as the case may be)
which is used by the Employer and deemed to have been taken over under
Sub-Clause 10.2 [Taking Over Parts].

1.1.70 “Particular Conditions” means the document entitled particular conditions

of contract included in the Contract, which consists of Part A - Contract
Data and Part B – Special Provisions.

1.1.71 “Party” means the Employer or the Contractor, as the context requires.
“Parties” means both the Employer and the Contractor.

1.1.72 “Payment Certificate” means a payment certificate issued by the Engineer

under Clause 14 [Contract Price and Payment].

6 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 1.1.73 “Performance Certificate” means the certificate issued by the Engineer

CONDITIONS
(or deemed to be issued) under Sub-Clause 11.9 [Performance Certificate].

GENERAL
1.1.74 “Performance Damages” means the damages to be paid by the Contractor
to the Employer, for the failure to achieve the guaranteed performance of the
Plant and/or the Works or any part of the Works (as the case may be), as set
out in the Schedule of Performance Guarantees.

GUIDANCE
1.1.75 “Performance Security” means the security under Sub-Clause 4.2
[Performance Security].

1.1.76 “Permanent Works” means the works of a permanent nature which are to
be executed by the Contractor under the Contract.

1.1.77 “Plant” means the apparatus, equipment, machinery and vehicles (including

FORMS
any components) whether on the Site or otherwise allocated to the Contract
and intended to form or forming part of the Permanent Works.

1.1.78 “Programme” means a detailed time programme prepared and submitted

by the Contractor to which the Engineer has given (or is deemed to have
given) a Notice of No-objection under Sub-Clause 8.3 [Programme].

1.1.79 “Provisional Sum” means a sum (if any) which is specified in the Contract
by the Employer as a provisional sum, for the execution of any part of the
Works or for the supply of Plant, Materials or services under Sub-Clause
13.4 [Provisional Sums].

1.1.80 “Quality Management System” or “QM System” means the Contractor’s

quality management system (as may be updated and/or revised from time to
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

time) in accordance with Sub-Clause 4.9.1 [Quality Management System].

1.1.81 “Retention Money” means the accumulated retention moneys which the
Employer retains under Sub-Clause 14.3 [Application for Interim Payment]
and pays under Sub-Clause 14.9 [Release of Retention Money].

1.1.82 “Review” means examination and consideration by the Engineer of a

Contractor’s submission in order to assess whether (and to what extent) it
complies with the Contract and/or with the Contractor’s obligations under or
in connection with the Contract.

1.1.83 “Schedules” means the document(s) entitled Schedules prepared by the

Employer and completed by the Contractor, as attached to the Letter of
Tender and included in the Contract. Such document(s) shall include the
Schedule of Baselines, the Completion Schedule, the Schedule of Rates
and Prices and the Schedule of Contractor’s Key Equipment, and may
include data, quantities, lists and Schedules of Payments and/or Schedule
of Performance Guarantees.

1.1.84 “Schedule of Baselines” means the document entitled schedule of

baselines as included in the Contract, setting out the Excavation and
Lining Works activities or items and their corresponding quantities based
on the subsurface physical conditions described in the GBR, and their
corresponding production rates as provided by the Contractor.

1.1.85 “Schedule of Contractor’s Key Equipment” means the document entitled

schedule of contractor’s key equipment (if any) as included in the Contract.

1.1.86 “Schedule of Payments” means the document(s) entitled schedule of

General Conditions © FIDIC & ITA 2019

7
 payments (if any) in the Schedules showing the amounts and manner of
CONDITIONS

86payments to be made to the Contractor.

GENERAL

1.1.87 “Schedule of Performance Guarantees” means the document(s) entitled

schedule of performance guarantees (if any) in the Schedules showing the
guarantees required by the Employer for performance of the Works and/
or the Plant or any part of the Works (as the case may be), and stating the
applicable Performance Damages payable in the event of failure to attain any
GUIDANCE

of the guaranteed performance(s).

1.1.88 “Schedule of Rates and Prices” means the document(s) entitled schedule
of rates and prices included in the Contract.

1.1.89 “Section” means a part of the Works specified in the Contract Data as a
Section (if any).
FORMS

1.1.90 “Site” means the places where the Permanent Works are to be executed
and to which Plant and Materials are to be delivered, and any other places
specified in the Contract as forming part of the Site.

1.1.91 “Special Provisions” means the document (if any), entitled special
provisions which constitutes Part B of the Particular Conditions.

1.1.92 “Statement” means a statement submitted by the Contractor as part of

an application for a Payment Certificate under Sub-Clause 14.2.1 [Advance
Payment Guarantee] (if applicable), Sub-Clause 14.3 [Application for Interim
Payment], Sub-Clause 14.10 [Statement at Completion] or Sub-Clause
14.11 [Final Statement].
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

1.1.93 “Subcontractor” means any person named in the Contract as a

subcontractor, or any person appointed by the Contractor as a subcontractor
or designer, for a part of the Works; and the legal successors in title to each
of these persons.

1.1.94 “Taking-Over Certificate” means a certificate issued (or deemed to be

issued) by the Engineer in accordance with Clause 10 [Employer’s Taking
Over].

1.1.95 “Temporary Works” means all temporary works of every kind (other than
Contractor’s Equipment) required on Site for the execution of the Works.

1.1.96 “Tender” means the Letter of Tender, the Contractor’s Proposal, the JV
Undertaking (if applicable), and all other documents which the Contractor
submitted with the Letter of Tender, as included in the Contract.

1.1.97 “Tests after Completion” means the tests (if any) which are stated in the
Employer’s Requirements and which are carried out in accordance with the
Special Provisions after the Works or a Section (as the case may be) are
taken over under Clause 10 [Employer’s Taking Over].

1.1.98 “Tests on Completion” means the tests which are specified in the Contract
or agreed by both Parties or instructed as a Variation, and which are carried
out under Clause 9 [Tests on Completion] before the Works or a Section (as
the case may be) are taken over under Clause 10 [Employer’s Taking Over].

1.1.99 “Time for Completion” means the time for completing the Works, a
Section or a Milestone (as the case may be) under Sub-Clause 8.2 [Time for
Completion] as stated in the Completion Schedule, and as may be extended

8 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 under Sub-Clause 8.5 [Extension of Time for Completion] or adjusted under

CONDITIONS
Sub-Clause 13.8.3 [Adjustment of Time for Completion], calculated from the

GENERAL
Commencement Date.

1.1.100 “Underground Works” means all Works located beneath the natural or
man-made surface of the earth, including ancillary surface works.

1.1.101 “Unforeseeable” means not reasonably foreseeable by an experienced

GUIDANCE
contractor by the Base Date. Notwithstanding the foregoing, all subsurface
physical conditions described in the GBR are deemed to be foreseeable, and
all subsurface physical conditions outside the scope of conditions defined in
the GBR are deemed to be Unforeseeable.

1.1.102 “Variation” means any change to the Employer’s Requirements or the

Works, which is instructed as a Variation under Clause 13 [Variations and

FORMS
Adjustments].

1.1.103 “Works” mean the Permanent Works and the Temporary Works, or either of
them as appropriate.

1.1.104 “year” means 365 days.

1.2
Interpretation In the Contract, except where the context requires otherwise:

(a) words indicating one gender include all genders; and “he”, “his” and
“himself” shall be read as “he/she”, “his/her” and “himself/herself”
respectively;
(b) words indicating the singular also include the plural and words
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

indicating the plural also include the singular;

(c) provisions including the word “agree”, “agreed” or “agreement”
require the agreement to be recorded in writing;
(d) “written” or “in writing” means hand-written, type-written, printed or
electronically made, and resulting in a permanent record;
(e) “may” means that the Party or person referred to has the choice of
whether to act or not in the matter referred to;
(f) “shall” means that the Party or person referred to has an obligation
under the Contract to perform the duty referred to;
(g) “consent” means that the Employer, the Contractor or the Engineer
(as the case may be) agrees to, or gives permission for, the requested
matter;
(h) “including”, “include” and “includes” shall be interpreted as not being
limited to, or qualified by, the stated items that follow;
(i) words indicating persons or parties shall be interpreted as referring
to natural and legal persons (including corporations and other legal
entities); and
(j) “execute the Works” or “execution of the Works” means the design,
construction and completion of the Works and the remedying of any
defects.
(k) “ancillary surface Works” means surface facilities and Works inherent
and necessary to the Underground Works; and
(l) “subsurface” excludes shallow excavations for surface Works, such
as but not limited to, items of work for Employer’s and Contractor’s
site facilities and buried utilities

In any list in these Conditions, where the second-last item of the list is
followed by “and” or “or” or “and/or” then all of the list items going before
General Conditions © FIDIC & ITA 2019
9
 this item shall also be read as if they are followed by “and” or “or” or “and/or”
CONDITIONS

(as the case may be).

GENERAL

The marginal words and other headings shall not be taken into consideration
in the interpretation of these Conditions.

1.3
Notices and
GUIDANCE

Other Communications Wherever these Conditions provide for the giving of a Notice (including
a Notice of Dissatisfaction) or the issuing, providing, sending, submitting
or transmitting of another type of communication (including acceptance,
acknowledgement, advising, agreement, approval, certificate, Claim,
consent, decision, determination, discharge, instruction, No-objection,
record(s) of meeting, permission, proposal, record, reply, report, request,
Review, Statement, statement, submission or any other similar type of
FORMS

communication), the Notice or other communication shall be in writing and:

(a) shall be:

(i) a paper-original signed by the Contractor’s Representative, the
Engineer, or the authorised representative of the Employer (as
the case may be); or
(ii) an electronic original generated from any of the systems of
electronic transmission stated in the Contract Data (if not stated,
system(s) acceptable to the Engineer), where the electronic
original is transmitted by the electronic address uniquely assigned
to each of such authorised representatives,
or both, as stated in these Conditions; and
(b) if it is a Notice, it shall be identified as a Notice. If it is another form
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

of communication, it shall be identified as such and include reference

to the provision(s) of the Contract under which it is issued where
appropriate;
(c) delivered by hand (against receipt), or sent by mail or courier (against
receipt), or transmitted using any of the systems of electronic
transmission under sub-paragraph (a)(ii) above; and
(d) delivered, sent or transmitted to the address for the recipient’s
communications as stated in the Contract Data. However, if the
recipient gives a Notice of another address, all Notices and other
communications shall be delivered accordingly after the sender
receives such Notice.

Where these Conditions state that a Notice or NOD or other communication

is to be delivered, given, issued, provided, sent, submitted or transmitted, it
shall have effect when it is received (or deemed to have been received) at the
recipient’s current address under sub-paragraph (d) above. An electronically
transmitted Notice or other communication is deemed to have been received
on the day after transmission, provided no non-delivery notification was
received by the sender.

All Notices, and all other types of communication as referred to above, shall
not be unreasonably withheld or delayed.

When a Notice or NOD or certificate is issued by a Party or the Engineer, the

paper and/or electronic original shall be sent to the intended recipient and a
copy shall be sent to the Engineer or the other Party, as the case may be. All
other communications shall be copied to the Parties and/or the Engineer as
stated under these Conditions or elsewhere in the Contract.

10 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 1.4

CONDITIONS
Law and Language The Contract shall be governed by the law of the country (or other jurisdiction)

GENERAL
stated in the Contract Data (if not stated, the law of the Country), excluding
any conflict of law rules.

The ruling language of the Contract shall be that stated in the Contract Data
(if not stated, the language of these Conditions). If there are versions of any
part of the Contract which are written in more than one language, the version

GUIDANCE
which is in the ruling language shall prevail.

The language for communications shall be that stated in the Contract Data.
If no language is stated there, the language for communications shall be the
ruling language of the Contract.

1.5

FORMS
Priority of Documents The documents forming the Contract are to be taken as mutually explanatory
of one another. If there is any conflict, ambiguity or discrepancy, the priority
of the documents shall be in accordance with the following sequence:

(a) the Contract Agreement;

(b) the Letter of Acceptance;
(c) the Letter of Tender,
(d) the Particular Conditions Part A – Contract Data, the Completion
Schedule and the Schedule of Baselines;
(e) the Particular Conditions Part B – Special Provisions;
(f) the Geotechnical Baseline Report;
(g) these General Conditions;
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(h) the Employer’s Requirements;

(i) the other Schedules;
(j) the Contractor’s Proposal;
(k) the JV Undertaking (if the Contractor is a JV); and
(l) any other documents forming part of the Contract, including the
Geotechnical Data Report, the Contract Risk Register and the
Contract Risk Management Plan.

If a Party finds an ambiguity or discrepancy in the documents, that Party

shall promptly give a Notice to the Engineer, describing the ambiguity or
discrepancy. After receiving such Notice, or if the Engineer finds an ambiguity
or discrepancy in the documents, the Engineer shall issue the necessary
clarification or instruction.

1.6
Contract Agreement The Parties shall sign a Contract Agreement within 35 days after the
Contractor receives the Letter of Acceptance, unless they agree otherwise.
The Contract Agreement shall be based on the form annexed to the Particular
Conditions. The costs of stamp duties and similar charges (if any) imposed
by law in connection with entry into the Contract Agreement shall be borne
by the Employer.

If the Contractor comprises a JV, the authorised representative of each

member of the JV shall sign the Contract Agreement.

1.7
Assignment Neither Party shall assign the whole or any part of the Contract or any benefit
or interest in or under the Contract. However, either Party:

General Conditions © FIDIC & ITA 2019

11
 (a) may assign the whole or any part of the Contract with the prior
agreement of the other Party, at the sole discretion of such other
CONDITIONS

Party; and
GENERAL

(b) may, as security in favour of a bank or financial institution, assign

the Party’s right to any moneys due, or to become due, under the
Contract without the prior agreement of the other Party.

1.8
GUIDANCE

Care and Supply

of Documents Each of the Contractor’s Documents shall be in the custody and care of
the Contractor, unless and until submitted to the Engineer. The Contractor
shall supply to the Engineer one paper-original, one electronic copy (in the
form as specified in the Employer’s Requirements or, if not stated, a form
acceptable to the Engineer) and additional paper copies (if any) as stated in
the Contract Data of each of the Contractor’s Documents.
FORMS

The Contractor shall keep at all times, on the Site, a copy of:

(a) the Contract;

(b) the records under Sub-Clause 6.10 [Contractor’s Records] and
Sub-Clause 20.2.3 [Contemporary records];
(c) the publications (if any) named in the Employer’s Requirements;
(d) the Contractor’s Documents; and
(e) Variations, Notices and other communications given under the
Contract.

The Employer’s Personnel shall have right of access to all these documents
during all normal working hours, or as otherwise agreed with the Contractor.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If a Party (or the Engineer) becomes aware of an error or defect (whether of a

technical nature or otherwise) in a document which was prepared by (or on
behalf of) the Contractor for use in the execution of the Works, the Party (or
the Engineer) shall promptly give a Notice of such error or defect to the other
Party (or to the Parties). The Contractor shall then promptly rectify the error
or defect at the Contractor’s risk and cost.

1.9
Errors in the Employer’s
Requirements and/or in the
Geotechnical Baseline Report If the Contractor finds an error, fault or defect in the Employer’s Requirements
and/or the Geotechnical Baseline Report as a result of scrutinising them
under Sub-Clause 5.1 [General Design Obligations], the Contractor shall
give a Notice to the Engineer within the period stated in the Contract Data (if
not stated, 42 days) calculated from the Commencement Date.

If, after expiry of this period, the Contractor finds an error, fault or defect in
the Employer’s Requirements and/or in the Geotechnical Baseline Report,
the Contractor shall also give a Notice to the Engineer describing the error,
fault or defect.

The Engineer shall then proceed as specified under Sub-Clause 3.7

[Agreement or Determination] to agree or determine:

(a) whether or not there is an error, fault or defect in the Employer’s

Requirements;
(b) whether or not (taking account of cost and time) an experienced
contractor exercising due care would have discovered the error, fault

12 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 or other defect:

CONDITIONS
• when examining the Site and the Employer’s Requirements and

GENERAL
before submitting the Tender; or
• if the Contractor’s Notice is given after the expiry of the period
stated in the first paragraph of this Sub-Clause, when scrutinising
the Employer’s Requirements and the Geotechnical Baseline
Report under Sub-Clause 5.1 [General Design Obligations]; and

GUIDANCE
(c) what measures (if any) the Contractor is required to take to rectify the
error, fault or defect.

For the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer
receives the Contractor’s Notice under this Sub-Clause shall be the date of
commencement of the time limit for agreement under Sub-Clause 3.7.3.

If there is an error, fault or defect in the Employer’s Requirements and/or in

FORMS
the Geotechnical Baseline Report under sub-paragraph (b) above, and if an
experienced contractor would not have discovered the error, fault or other
defect:

(i) Sub-Clause 13.3.1 [Variation by Instruction] shall apply to the

measures that the Contractor is required to take (if any); and
(ii) if the Contractor suffers delay and/or incurs Cost as a result of
the error, fault or defect, the Contractor shall be entitled subject to
Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or
payment of such Cost Plus Profit.
1.10
Employer’s Use of
Contractor’s Documents As between the Parties, the Contractor shall retain the copyright and other
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

intellectual property rights in the Contractor’s Documents and other design

documents made by (or on behalf of) the Contractor.

The Contractor shall be deemed (by signing the Contract Agreement) to give
to the Employer a non-terminable transferable non-exclusive royalty-free
licence to copy, use and communicate the Contractor’s Documents and
such other design documents, including making and using modifications of
them. This licence shall:

(a) apply throughout the actual or intended operational life (whichever is

longer) of the relevant parts of the Works;
(b) entitle any person in proper possession of the relevant part of the
Works to copy, use and communicate the Contractor’s Documents
and such other design documents for the purposes of completing,
operating, maintaining, altering, adjusting, repairing and demolishing
the Works;
(c) in the case of Contractor’s Documents and such other design
documents which are in the form of electronic or digital files, computer
programs and other software, permit their use on any computer on
the Site and/or at the locations of the Employer and the Engineer and/
or at other places as envisaged by the Contract; and
(d) in the event of termination of the Contract:
(i) under Sub-Clause 15.2 [Termination for Contractor’s Default],
entitle the Employer to copy, use and communicate the
Contractor’s Documents and the other design documents made
by or for the Contractor; or
(ii) under Sub-Clause 15.5 [Termination for Employer’s Convenience],
Sub-Clause 16.2 [Termination by Contractor] or Sub-Clause

General Conditions © FIDIC & ITA 2019

13
 18.5 [Optional Termination], entitle the Employer to copy, use
CONDITIONS

and communicate the Contractor’s Documents for which the

GENERAL

Contractor has received payment

for the purpose of completing the Works and/or arranging for any
other entities to do so.
The Contractor’s Documents and other design documents made by (or on
behalf of) the Contractor shall not, without the Contractor’s prior consent,
be used, copied or communicated to a third party by (or on behalf of) the
GUIDANCE

Employer for purposes other than those permitted under this Sub-Clause.

1.11
Contractor’s Use of
Employer’s Documents As between the Parties, the Employer shall retain the copyright and other
intellectual property rights in the Employer’s Requirements and other
FORMS

documents made by (or on behalf of) the Employer. The Contractor may, at
the Contractor’s cost, copy, use and communicate these documents for the
purposes of the Contract.

These documents (in whole or in part) shall not, without the Employer’s
prior consent, be copied, used or communicated to a third party by the
Contractor, except as necessary for the purposes of the Contract.

1.12
Confidentiality The Contractor shall disclose all such confidential and other information
as the Engineer may reasonably require in order to verify the Contractor’s
compliance with the Contract.

The Contractor shall treat all documents forming the Contract as confidential,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

except to the extent necessary to carry out the Contractor’s obligations

under the Contract. The Contractor shall not publish, permit to be published,
or disclose any particulars of the Contract in any trade or technical paper or
elsewhere without the Employer’s prior consent.

The Employer and the Engineer shall treat all information provided by the
Contractor and marked “confidential”, as confidential. The Employer shall
not disclose or permit to be disclosed any such information to third parties,
except as may be necessary when exercising the Employer’s rights under
Sub-Clause 15.2 [Termination for Contractor’s Default].

A Party’s obligation of confidentiality under this Sub-Clause shall not apply

where the information:

(a) was already in that Party’s possession without an obligation of

confidentiality before receipt from the other Party;
(b) becomes generally available to the public through no breach of these
Conditions; or
(c) is lawfully obtained by the Party from a third party which is not bound
by an obligation of confidentiality.

1.13
Compliance with Laws The Contractor and the Employer shall, in performing the Contract,
comply with all applicable Laws. Unless otherwise stated in the Employer’s
Requirements:

(a) the Employer shall have obtained (or shall obtain) the planning,
zoning or building permit or similar permits, permissions, licences
and/or approvals for the Permanent Works, and any other permits,

14 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 permissions, licenses and/or approvals described in the Employer’s

CONDITIONS
Requirements as having been (or being) obtained by the Employer.

GENERAL
The Employer shall indemnify and hold the Contractor harmless
against and from the consequences of any delay or failure to do so,
unless the failure is caused by the Contractor’s failure to comply with
sub-paragraph (c) below;
(b) the Contractor shall give all notices, pay all taxes, duties and fees,
and obtain all other permits, permissions, licences and/or approvals,

GUIDANCE
as required by the Laws in relation to the execution of the Works. The
Contractor shall indemnify and hold the Employer harmless against and
from the consequences of any failure to do so unless the failure is caused
by the Employer’s failure to comply with Sub-Clause 2.2 [Assistance];
(c) within the time(s) stated in the Employer’s Requirement’s the
Contractor shall provide such assistance and all documentation, as
described in the Employer’s Requirements or otherwise reasonably

FORMS
required by the Employer, so as to allow the Employer to obtain any
permit, permission, licence or approval under sub-paragraph (a)
above; and
(d) the Contractor shall comply with all permits, permissions, licences and/
or approvals obtained by the Employer under sub-paragraph (a) above.

If, having complied with sub-paragraph (c) above, the Contractor suffers
delay and/or incurs Cost as a result of the Employer’s delay or failure to
obtain any permit, permission, licence or approval under sub-paragraph (a)
above, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims
For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit.

If the Employer incurs additional costs as a result of the Contractor’s failure

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

to comply with:

(i) sub-paragraph (c) above; or

(ii) sub-paragraph (b) or (d) above, provided that the Employer shall have
complied with Sub-Clause 2.2 [Assistance],
the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or EOT] to payment of these costs by the Contractor.

1.14
Joint and Several Liability If the Contractor is a Joint Venture:

(a) the members of the JV shall be jointly and severally liable to the
Employer for the performance of the Contractor’s obligations under
the Contract;
(b) the JV leader shall have authority to bind the Contractor and each
member of the JV; and
(c) neither the members nor (if known) the scope and parts of the Works to
be carried out by each member nor the legal status of the JV shall be
altered without the prior consent of the Employer (but such consent shall
not relieve the altered JV from any liability under sub-paragraph (a) above).

1.15
Limitation of Liability Neither Party shall be liable to the other Party for loss of use of any Works,
loss of profit, loss of any contract or for any indirect or consequential loss
or damage which may be suffered by the other Party in connection with the
Contract, other than under:

(a) Sub-Clause 8.8 [Delay Damages];

(b) sub-paragraph (c) of Sub-Clause 13.3.1 [Variation by Instruction];

General Conditions © FIDIC & ITA 2019

15
 (c) Sub-Clause 15.7 [Payment after Termination for Employer’s
CONDITIONS

Convenience];
GENERAL

(d) Sub-Clause 16.4 [Payment after Termination by Contractor];

(e) Sub-Clause 17.3 [Intellectual and Industrial Property Rights];
(f) the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor];
and
(g) Sub-Clause 17.5 [Indemnities by Employer].
GUIDANCE

The total liability of the Contractor to the Employer under or in connection

with the Contract, other than:

(i) under Sub-Clause 2.6 [Employer-Supplied Materials and Employer’s

Equipment];
(ii) under Sub-Clause 4.19 [Temporary Utilities];
(iii) under Sub-Clause 17.3 [Intellectual and Industrial Property Rights];
FORMS

and
(iv) under the first paragraph of Sub-Clause 17.4 [Indemnities by
Contractor],
shall not exceed the sum stated in the Contract Data or (if a sum is not so
stated) the Accepted Contract Amount.

This Sub-Clause shall not limit liability in any case of fraud, gross negligence,
deliberate default or reckless misconduct by the defaulting Party.

1.16
Contract Risk Register and
Contract Risk Management Plan The Contractor shall complete and maintain the Contract Risk Register and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

shall prepare and maintain the Contract Risk Management Plan to manage
and control the risks identified in the Contract Risk Register. The Contractor
shall submit his initial Contract Risk Register and Contract Risk Management
Plan to the Engineer for Review, with a Notice in accordance with Sub-Clause
5.2.2 [Review by Engineer] within 28-days of the Commencement Date, and
thereafter updated Contract Risk Registers and Contract Risk Management
Plans shall be submitted at regular intervals (if not specified otherwise,
every 3 months), and promptly after the occurrence of any event requiring a
revision or update.

The Contract Risk Register and Contract Risk Management Plan shall
comply with requirements, if any, stated in the Employer’s Requirements and
shall include the Contractor’s procedures to ensure that:

(a) Contract Risk Management meetings are held regularly to review and
update the Contract Risk Register and Contract Risk Management
Plan, and
(b) actions are taken – including issuing advance warning notices under
Sub-Clause 8.4 [Advance Warning] and/or meetings are called under
Sub-Clause 3.8 [Meetings], whenever a known, probable or uncertain
future event is likely to have one of the effects listed in Sub-Clause 8.4
[Advance Warning].
1.17
Contract Termination Subject to any mandatory requirements under the governing law of the
Contract, termination of the Contract under any Sub-Clause of these
Conditions shall require no action of whatsoever kind by either Party other
than as stated in the Sub-Clause.

16 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 2
The Employer

CONDITIONS
GENERAL
2.1
Right of Access to the Site The Employer shall give the Contractor right of access to, and possession
or the necessary right of use of, all parts of the Site within the time (or times)
stated in the Contract Data. The right and possession may not be exclusive
to the Contractor. If, under the Contract, the Employer is required to give

GUIDANCE
(to the Contractor) possession of any foundation, structure, plant or means
of access, the Employer shall do so in the time and manner stated in the
Employer’s Requirements. However, the Employer may withhold any such
right or possession until the Performance Security has been received.

If no such time is stated in the Contract Data, the Employer shall give the
Contractor right of access to, and possession of, those parts of the Site

FORMS
within such times as may be required to enable the Contractor to proceed
in accordance with the Programme or, if there is no Programme at that time,
the initial programme submitted under Sub-Clause 8.3 [Programme].

If the Contractor suffers delay and/or incurs Cost as a result of a failure by

the Employer to give any such right or possession within such time, the
Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or EOT] to EOT and/or payment of such Cost Plus Profit.

However, if and to the extent that the Employer’s failure was caused by
any error or delay by the Contractor, including an error in, or delay in the
submission of, any of the applicable Contractor’s Documents, the Contractor
shall not be entitled to such EOT and/or Cost Plus Profit.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If, under the Contract, the Employer is required to give to the Contractor
possession of any foundation, structure, plant or means of access in
accordance with Contractor’s Documents, the Contractor shall submit such
Contractor’s Documents to the Engineer in the time and manner stated in
the Employer’s Requirements.

2.2
Assistance If requested by the Contractor, the Employer shall promptly provide
reasonable assistance to the Contractor so as to allow the Contractor to
obtain:

(a) copies of the Laws of the Country which are relevant to the Contract
but are not readily available; and
(b) any permits, permissions, licences or approvals required by the Laws
of the Country (including information required to be submitted by the
Contractor in order to obtain such permits, permissions, licences or
approvals):
(i) which the Contractor is required to obtain under Sub-Clause
1.13 [Compliance with Laws];
(ii) for the delivery of Goods, including clearance through customs;
and
(iii) for the export of Contractor’s Equipment when it is removed from
the Site.

2.3
Employer’s Personnel and
Other Contractors The Employer shall be responsible for ensuring that the Employer’s Personnel
and the Employer’s other contractors (if any) on or near the Site:

General Conditions © FIDIC & ITA 2019

17
 (a) co-operate with the Contractor’s efforts under Sub-Clause 4.6
CONDITIONS

[Co-operation]; and
GENERAL

(b) comply with the same obligations which the Contractor is required to
comply with under sub-paragraphs (a) to (e) of Sub-Clause 4.8 [Health
and Safety Obligations] and under Sub-Clause 4.18 [Protection of the
Environment].

The Contractor may require the Employer to remove (or cause to be

GUIDANCE

removed) any person of the Employer’s Personnel or of the Employer’s other

contractors (if any) who is found, based on reasonable evidence, to have
engaged in corrupt, fraudulent, collusive or coercive practice.

2.4
Employer’s Financial
Arrangements The Employer’s arrangements for financing the Employer’s obligations under
FORMS

the Contract shall be detailed in the Contract Data.

If the Employer intends to make any material change (affecting the Employer’s
ability to pay the part of the Contract Price remaining to be paid at that time
as estimated by the Engineer) to these financial arrangements, or has to do
so because of changes in the Employer’s financial situation, the Employer
shall immediately give a Notice to the Contractor with detailed supporting
particulars.

If the Contractor:

(a) receives an instruction to execute a Variation with a price greater

than ten percent (10%) of the Accepted Contract Amount, or the
accumulated total of Variations exceeds thirty percent (30%) of the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Accepted Contract Amount;

(b) does not receive payment in accordance with Sub-Clause 14.7
[Payment]; or
(c) becomes aware of a material change in the Employer’s financial
arrangements of which the Contractor has not received a Notice
under this Sub-Clause,
the Contractor may request and the Employer shall, within 28 days
after receiving this request, provide reasonable evidence that financial
arrangements have been made and are being maintained which will enable
the Employer to pay the part of the Contract Price remaining to be paid at
that time (as estimated by the Engineer).

2.5
Site Data and
Items of Reference The Employer shall have made available to the Contractor for information,
before the Base Date, all relevant data in the Employer’s possession on the
topography of the Site, on hydrological, climatic and environmental conditions
at the Site and adjacent property, and on the geological, geotechnical and
hydrogeological data of the subsurface of the Site.

In particular, the Employer shall have made available to the Contractor, prior
to the Base Date:

(a) the Geotechnical Baseline Report (GBR); and

(b) the Geotechnical Data Report (GDR).
The original survey control points, lines and levels of reference (the “items
of reference” in these Conditions) shall be specified in the Employer’s
Requirements or issued to the Contractor by a Notice from the Engineer.

18 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 2.6

CONDITIONS
Employer-Supplied Materials

GENERAL
and Employer’s Equipment If Employer-Supplied Materials and/or Employer’s Equipment are listed in
the Employer’s Requirements for the Contractor’s use in the execution of the
Works, the Employer shall make such materials and/or equipment available
to the Contractor in accordance with the details, times, arrangements, rates
and prices stated in the Employer’s Requirements.

GUIDANCE
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,
using it, or in control of it.

3
The Engineer

FORMS
3.1
The Engineer The Employer shall appoint the Engineer, who shall carry out the duties
assigned to the Engineer in the Contract.

The Engineer shall be vested with all the authority necessary to act as the
Engineer under the Contract.

If the Engineer is a legal entity, a natural person employed by the Engineer

shall be appointed and authorised to act on behalf of the Engineer under the
Contract.

The Engineer (or, if a legal entity, the natural person appointed to act on its
behalf) shall be:
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(a) a professional engineer having suitable qualifications, experience and

competence to act as the Engineer under the Contract; and
(b) shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law
and Language].

Where the Engineer is a legal entity, the Engineer shall give a Notice to the
Parties of the natural person (or any replacement) appointed and authorised
to act on its behalf. The authority shall not take effect until this Notice has
been received by both Parties. The Engineer shall similarly give a Notice of
any revocation of such authority.

3.2
Engineer’s Duties
and Authority 3.2.1 Engineer’s General Duties and Authority

Except as otherwise stated in these Conditions, whenever carrying out

duties or exercising authority, specified in or implied by the Contract, the
Engineer shall act as a skilled professional and shall be deemed to act for the
Employer.

The Engineer shall have no authority to amend the Contract or, except as
otherwise stated in these Conditions, to relieve either Party of any duty,
obligation or responsibility under or in connection with the Contract.

The Engineer may exercise the authority attributable to the Engineer as

specified in or necessarily to be implied from the Contract. If the Engineer is
required to obtain the consent of the Employer before exercising a specified
authority, the requirements shall be as stated in the Particular Conditions.

General Conditions © FIDIC & ITA 2019

19
 There shall be no requirement for the Engineer to obtain the Employer’s
CONDITIONS

consent before the Engineer exercises his/her authority under Sub-Clause

GENERAL

3.7 [Agreement or Determination]. The Employer shall not impose further

constraints on the Engineer’s authority.

However, whenever the Engineer exercises a specified authority for which

the Employer’s consent is required, then (for the purposes of the Contract)
such consent shall be deemed to have been given.
GUIDANCE

Any acceptance, agreement, approval, check, certificate, comment, consent,

disapproval, examination, inspection, instruction, Notice, No-objection,
record(s) of meeting, permission, proposal, record, reply, report, request,
Review, test, valuation, or similar act (including the absence of any such
act) by the Engineer, the Engineer’s Representative or any assistant shall
not relieve the Contractor from any duty, obligation or responsibility the
FORMS

Contractor has under or in connection with the Contract.

3.2.2 Engineer’s Specific Duties and Authority for Excavation and Lining Works

The Engineer shall monitor and record progress of the execution of the
Excavation and Lining Works, for compliance with the Contractor’s obligations
under Sub-Clause 4.24 [Excavation and Lining Works].

Such records shall state whether the measures taken under Sub-Clause 4.24
[Excavation and Lining Works] were jointly agreed between the Engineer and
the Contractor, and if not, the Engineer’s reasons for disagreement.

The Engineer shall provide a copy of such records to the Contractor within
a time that shall be mutually agreed (in the absence of agreement, within 14
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

days of the execution of the Works being recorded). The Contractor shall
examine the records and be deemed to have accepted them unless within 7
days from receipt of the records the Contractor gives a Notice to the Engineer
that the records are asserted as being inaccurate.

After receiving this Notice, the Engineer shall review the records and either
confirm or amend them within 14 days, failing which the records shall be
deemed confirmed as corrected by the Contractor’s Notice. In performing
this task, the Engineer shall proceed under Sub-Clause 3.7 [Agreement or
Determination] and, for the purpose of Sub-Clause 3.7.3 [Time limits], the
date the Engineer receives the Contractor’s Notice under this Sub-Clause
shall be the date of commencement of the time limit for agreement under
Sub-Clause 3.7.3.

If the Engineer fails properly to record progress of the execution of the
Excavation and Lining Works, or to provide the records to the Contractor
within the agreed period, and such failure causes delay and/or additional
Cost, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit.

3.3
The Engineer’s
Representative The Engineer may appoint an Engineer’s Representative and delegate to
him/her in accordance with Sub-Clause 3.4 [Delegation by the Engineer] the
authority necessary to act on the Engineer’s behalf at the Site, except to
replace the Engineer’s Representative.

The Engineer’s Representative (if appointed) shall comply with sub-paragraphs

(a) and (b) of Sub-Clause 3.1 [The Engineer] and shall be based at the

20 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Site for the whole time that the Works are being executed at the Site. If

CONDITIONS
the Engineer’s Representative is to be temporarily absent from the Site

GENERAL
during the execution of the Works, an equivalently qualified, experienced
and competent replacement shall be appointed by the Engineer, and the
Contractor shall be given a Notice of such replacement.

3.4
Delegation by

GUIDANCE
the Engineer The Engineer may from time to time assign duties and delegate authority to
assistants, and may also revoke such assignment or delegation, by giving
a Notice to the Parties, describing the assigned duties and the delegated
authority of each assistant. The assignment, delegation or revocation shall
not take effect until this Notice has been received by both Parties. However,
the Engineer shall not delegate the authority to:

FORMS
(a) act under Sub-Clause 3.7 [Agreement or Determination]; and/or
(b) issue a Notice to Correct under Sub-Clause 15.1 [Notice to Correct].

Assistants shall be suitably qualified natural persons, who are experienced

and competent to carry out these duties and exercise this authority, and who
are fluent in the language for communications defined in Sub-Clause 1.4
[Law and Language].

Each assistant, to whom duties have been assigned or authority has been
delegated, shall only be authorised to issue instructions to the Contractor
to the extent defined by the Engineer’s Notice of delegation under this
Sub-Clause. Any act by an assistant, in accordance with the Engineer’s
Notice of delegation, shall have the same effect as though the act had been
an act of the Engineer. However, if the Contractor questions any instruction
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or Notice given by an assistant, the Contractor may by giving a Notice refer

the matter to the Engineer. The Engineer shall be deemed to have confirmed
the assistant’s instruction or Notice if the Engineer does not respond, within
7 days after receiving the Contractor’s Notice, reversing or varying the
assistant’s instruction or Notice (as the case may be).

3.5
Engineer’s Instructions The Engineer may issue to the Contractor (at any time) instructions which
may be necessary for the execution of the Works, all in accordance with the
Contract. The Contractor shall only take instructions from the Engineer, or
from the Engineer’s Representative (if appointed) or an assistant to whom
the appropriate authority to give instruction has been delegated under
Sub-Clause 3.4 [Delegation by the Engineer].

Subject to the following provisions of this Sub-Clause, the Contractor

shall comply with the instructions given by the Engineer or the Engineer’s
Representative (if appointed) or delegated assistant, on any matter related
to the Contract.

If an instruction states that it constitutes a Variation, Sub-Clause 13.3.1

[Variation by Instruction] shall apply.

If not so stated, and the Contractor considers that the instruction:

(a) constitutes a Variation (or involves work that is already part of an

existing Variation); or
(b) does not comply with applicable Laws or will reduce the safety of the
Works or is technically impossible

General Conditions © FIDIC & ITA 2019

21
 the Contractor shall immediately, and before commencing any work related
CONDITIONS

to the instruction, give a Notice to the Engineer with reasons. If the Engineer
GENERAL

does not respond within 7 days after receiving this Notice, by giving a Notice
confirming, reversing or varying the instruction, the Engineer shall be deemed
to have revoked the instruction. Otherwise the Contractor shall comply with
and be bound by the terms of the Engineer’s response.

3.6
GUIDANCE

Replacement of
the Engineer If the Employer intends to replace the Engineer, the Employer shall, not less
than 42 days before the intended date of replacement, give a Notice to the
Contractor of the name, address and relevant experience of the intended
replacement Engineer.

If the Contractor does not respond within 14 days after receiving this Notice,
FORMS

by giving a Notice stating an objection to such replacement with reasons,

the Contractor shall be deemed to have accepted the replacement.

The Employer shall not replace the Engineer with a person (whether a
legal entity or a natural person) against whom the Contractor has raised
reasonable objection by a Notice under this Sub-Clause.

If the Engineer is unable to act as a result of death, illness, disability or

resignation (or, in the case of an entity, the Engineer becomes unable or
unwilling to carry out any of its duties, other than for a cause attributable
to the Employer) the Employer shall be entitled to immediately appoint a
replacement by giving a Notice to the Contractor with reasons and the name,
address and relevant experience of the replacement. This appointment shall
be treated as a temporary appointment until this replacement is accepted by
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Contractor, or another replacement is appointed, under this Sub-Clause.

3.7
Agreement or Determination When carrying out his/her duties under this Sub-Clause, the Engineer shall
act neutrally between the Parties and shall not be deemed to act for the
Employer.

Whenever these Conditions provide that the Engineer shall proceed under
this Sub-Clause to agree or determine any matter or Claim, the following
procedure shall apply:

3.7.1 Consultation to reach agreement

The Engineer shall consult with both Parties jointly and/or separately, and
shall encourage discussion between the Parties in an endeavour to reach
agreement. The Engineer shall commence such consultation promptly
to allow adequate time to comply with the time limit for agreement under
Sub-Clause 3.7.3 [Time limits]. Unless otherwise proposed by the Engineer
and agreed by both Parties, the Engineer shall provide both Parties with a
record of the consultation.

If agreement is achieved within the time limit for agreement under Sub-Clause
3.7.3 [Time limits] the Engineer shall give a Notice to both Parties of the
agreement, which agreement shall be signed by both Parties. This Notice
shall state that it is a “Notice of the Parties’ Agreement” and shall include a
copy of the agreement.

If:

22 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (a) no agreement is achieved within the time limit for agreement under

CONDITIONS
Sub-Clause 3.7.3 [Time limits]; or

GENERAL
(b) both Parties advise the Engineer that no agreement can be achieved
within this time limit
whichever is the earlier, the Engineer shall give a Notice to the Parties
accordingly and shall immediately proceed under Sub-Clause 3.7.2
[Engineer’s Determination].

GUIDANCE
3.7.2 Engineer’s Determination

The Engineer shall make a fair determination of the matter or Claim, in

accordance with the Contract, taking due regard of all relevant circumstances.

Within the time limit for determination under Sub-Clause 3.7.3 [Time limits],

FORMS
the Engineer shall give a Notice to both Parties of his/her determination.
This Notice shall state that it is a “Notice of the Engineer’s Determination”,
and shall describe the determination in detail with reasons and detailed
supporting particulars.

3.7.3 Time limits

The Engineer shall give the Notice of agreement, if agreement is achieved,

within 42 days or within such other time limit as may be proposed by the
Engineer and agreed by both Parties (the “time limit for agreement” in these
Conditions), after:

(a) in the case of a matter to be agreed or determined (not a Claim), the

date of commencement of the time limit for agreement as stated in
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the applicable Sub-Clause of these Conditions;

(b) in the case of a Claim under sub-paragraph (c) of Sub-Clause
20.1[Claims], the date the Engineer receives a Notice under
Sub-Clause 20.1 from the claiming Party; or
(c) in the case of a Claim under sub-paragraph (a) or (b) of Sub-Clause
20.1 [Claims], the date the Engineer receives:
(i) a fully detailed Claim under Sub-Clause 20.2.4 [Fully Detailed
Claim]; or
(ii) in the case of a Claim under Sub-Clause 20.2.6 [Claims of
continuing effect], an interim or final fully detailed Claim (as the
case may be).

The Engineer shall give the Notice of his/her determination within 42 days or
within such other time limit as may be proposed by the Engineer and agreed
by both Parties (the “time limit for determination” in these Conditions), after
the date corresponding to his/her obligation to proceed under the last
paragraph of Sub-Clause 3.7.1 [Consultation to reach agreement].

If the Engineer does not give the Notice of agreement or determination within
the relevant time limit:

(i) in the case of a Claim, the Engineer shall be deemed to have

given a determination rejecting the Claim; or
(ii) in the case of a matter to be agreed or determined, the matter
shall be deemed to be a Dispute which may be referred by
either Party to the DAAB for its decision under Sub-Clause 21.4
[Obtaining DAAB’s Decision] without the need for a NOD (and
Sub-Clause 3.7.5 [Dissatisfaction with Engineers determination]
and sub-paragraph (a) of Sub-Clause 21.4.1 [Reference of a
Dispute to the DAAB] shall not apply).
General Conditions © FIDIC & ITA 2019
23
 3.7.4 Effect of the agreement or determination
CONDITIONS
GENERAL

Each agreement or determination shall be binding on both Parties (and shall

be complied with by the Engineer) unless and until corrected under this
Sub-Clause or, in the case of a determination, it is revised under Clause 21
[Disputes and Arbitration].

If an agreement or determination concerns the payment of an amount from

GUIDANCE

one Party to the other Party, the Contractor shall include such an amount
in the next Statement and the Engineer shall include such amount in the
Payment Certificate that follows that Statement.

If, within 14 days after giving or receiving the Engineer’s Notice of agreement
or determination, any error of a typographical or clerical or arithmetical nature
is found:
FORMS

(a) by the Engineer: then he/she shall immediately advise the Parties
accordingly; or
(b) by a Party: then that Party shall give a Notice to the Engineer, stating
that it is given under this Sub-Clause 3.7.4 and clearly identifying the
error. If the Engineer does not agree there was an error, he/she shall
immediately advise the Parties accordingly.
The Engineer shall within 7 days of finding the error, or receiving a Notice
under sub-paragraph (b) above (as the case may be), give a Notice to
both Parties of the corrected agreement or determination. Thereafter, the
corrected agreement or determination shall be treated as the agreement or
determination for the purpose of these Conditions.

3.7.5 Dissatisfaction with Engineer’s determination

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If either Party is dissatisfied with a determination of the Engineer:

(a) the dissatisfied Party may give a NOD to the other Party, with a copy
to the Engineer;
(b) this NOD shall state that it is a “Notice of Dissatisfaction with the
Engineer’s Determination” and shall set out the reason(s) for
dissatisfaction;
(c) this NOD shall be given within 28 days after receiving the Engineer’s
Notice of the determination under Sub-Clause 3.7.2 [Engineer’s
Determination] or, if applicable, his/her Notice of the corrected
determination under Sub-Clause 3.7.4 [Effect of the agreement or
determination] (or, in the case of a deemed determination rejecting
the Claim, within 28 days after the time limit for determination under
Sub-Clause 3.7.3 [Time limits] has expired); and
(d) thereafter, either Party may proceed under Sub-Clause 21.4 [Obtaining
DAAB’s Decision].

If no NOD is given by either Party within the period of 28 days stated in

sub-paragraph (c) above, the determination of the Engineer shall be deemed
to have been accepted by both Parties and shall be final and binding on
them.

If the dissatisfied Party is dissatisfied with only part(s) of the Engineer’s

determination:

(i) this part(s) shall be clearly identified in the NOD;

(ii) this part(s), and any other parts of the determination that are affected

24 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 by such part(s) or rely on such part(s) for completeness, shall be

CONDITIONS
deemed to be severable from the remainder of the determination; and

GENERAL
(iii) the remainder of the determination shall become final and binding on
both Parties as if the NOD had not been given.

In the event that a Party fails to comply with an agreement of the Parties under
this Sub-Clause 3.7 or a final and binding determination of the Engineer, the
other Party may, without prejudice to any other rights it may have, refer

GUIDANCE
the failure itself directly to arbitration under Sub-Clause 21.6 [Arbitration] in
which case the first and the third paragraphs of Sub-Clause 21.7 [Failure
to Comply with DAAB’s Decision] shall apply to such reference in the same
manner as these paragraphs apply to a final and binding decision of the
DAAB.

3.8

FORMS
Meetings The Engineer or the Contractor’s Representative may require the other to
attend a management meeting to discuss arrangements for future work and/
or other matters in connection with execution of the Works.

The Employer’s other contractors, the personnel of legally constituted public

authorities and/or private utility companies, and/or Subcontractors may
attend any such meeting, if requested by the Engineer or the Contractor’s
Representative.

The Engineer shall keep a record of each management meeting and supply
copies of the record to those attending and to the Employer. At any such
meeting, and in the record, responsibilities for any actions to be taken shall
be in accordance with the Contract.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

4.1
Contractor’s
4
The Contractor

General Obligations The Contractor shall execute the Works in accordance with the Contract.
When completed, the Works (or Section or Part or major item of Plant, if any)
shall be fit for the purpose(s) for which they are intended, as defined and
described in the Employer’s Requirements (or, where no purpose(s) are so
defined and described, fit for their ordinary purpose(s)).

The Contractor shall provide the Plant (and spare parts, if any) and
Contractor’s Documents specified in the Employer’s Requirements, and
all Contractor’s Personnel, Goods, consumables and other things and
services, whether of a temporary or permanent nature, required to fulfil the
Contractor’s obligations under the Contract.

The Works shall include any work which is necessary to satisfy the Employer’s
Requirements, Contractor’s Proposal and Schedules, or is implied by the
Contract, and all works which (although not mentioned in the Contract) are
necessary for stability or for the completion, or safe and proper operation, of
the Works.

The Contractor shall be responsible for the adequacy, stability and safety
of all the Contractor’s operations and activities, of all of the Contractor’s
methods of construction, and of all the Works.

The Contractor shall, whenever required by the Engineer, submit details of

the arrangements and methods which the Contractor proposes to adopt for
General Conditions © FIDIC & ITA 2019
25
 the execution of the Works. No significant alteration to these arrangements
CONDITIONS

and methods shall be made without this alteration having been submitted to
GENERAL

the Engineer.

4.2
Performance Security The Contractor shall obtain (at the Contractor’s cost) a Performance Security
to secure the Contractor’s proper performance of the Contract, in the
amount and currencies stated in the Contract Data. If no amount is stated in
GUIDANCE

the Contract Data, this Sub-Clause shall not apply.

4.2.1 Contractor’s obligations

The Contractor shall deliver the Performance Security to the Employer,

with a copy to the Engineer, within 28 days after receiving the Letter of
Acceptance. The Performance Security shall be issued by an entity and from
FORMS

within a country (or other jurisdiction) to which the Employer gives consent
and shall be in the form annexed to the Particular Conditions, or in another
form agreed by the Employer (but such consent and/or agreement shall not
relieve the Contractor from any obligation under this Sub-Clause).

The Contractor shall ensure that the Performance Security remains valid and
enforceable until the issue of the Performance Certificate and the Contractor
has complied with Sub-Clause 11.11 [Clearance of Site]. If the terms of
the Performance Security specify an expiry date, and the Contractor has
not become entitled to receive the Performance Certificate by the date 28
days before the expiry date, the Contractor shall extend the validity of the
Performance Security until the issue of the Performance Certificate and the
Contractor has complied with Sub-Clause 11.11 [Clearance of Site].
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Whenever Variations and/or adjustments under Clause 13 [Variations and

Adjustments] result in an accumulative increase or decrease of the Contract
Price by more than twenty percent (20%) of the Accepted Contract Amount:

(a) in the case of such an increase, at the Employer’s request the

Contractor shall promptly increase the amount of the Performance
Security in that currency by a percentage equal to the accumulative
increase. If the Contractor incurs Cost as a result of this Employer’s
request, Sub-Clause 13.3.1 [Variation by Instruction] shall apply as if
the increase had been instructed by the Engineer; or
(b) in the case of such a decrease, subject to the Employer’s prior consent
the Contractor may decrease the amount of the Performance Security
in that currency by a percentage equal to the accumulative decrease.

4.2.2 Claims under the Performance Security

The Employer shall not make a claim under the Performance Security, except
for amounts to which the Employer is entitled under the Contract in the event
of:

(a) failure by the Contractor to extend the validity of the Performance

Security, as described in this Sub-Clause, in which event the
Employer may claim the full amount (or, in the case of previous
reduction(s), the full remaining amount) of the Performance
Security;
(b) failure by the Contractor to pay the Employer an amount due,
as agreed or determined under Sub-Clause 3.7 [Agreement or
Determination] or agreed or decided under Clause 21 [Disputes
and Arbitration], within 42 days after the date of the agreement or
determination or decision or arbitral award (as the case may be);

26 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (c) failure by the Contractor to remedy a default stated in a Notice

CONDITIONS
given under Sub-Clause 15.1 [Notice to Correct] within 42 days

GENERAL
or other time (if any) stated in the Notice;
(d) circumstances which entitle the Employer to terminate the
Contract under Sub-Clause 15.2 [Termination for Contractor’s
Default], irrespective of whether a Notice of termination has been
given; or
(e) if under Sub-Clause 11.5 [Remedying of Defective Work off Site]

GUIDANCE
the Contractor removes any defective or damaged Plant from the
Site, failure by the Contractor to repair such Plant, return it to the
Site, reinstall it and retest it by the date of expiry of the relevant
duration stated in the Contractor’s Notice (or other date agreed
by the Employer).

The Employer shall indemnify and hold the Contractor harmless against and

FORMS
from all damages, losses and expenses (including legal fees and expenses)
resulting from a claim under the Performance Security to the extent that the
Employer was not entitled to make the claim.

Any amount which is received by the Employer under the Performance

Security shall be taken into account:

(i) in the Final Payment Certificate under Sub-Clause 14.13 [Issue of

FPC]; or
(ii) if the Contract is terminated, in payment due to the Contractor
under Sub-Clause 15.4 [Payment after Termination for Contractor’s
Default], Sub-Clause 15.7 [Payment after Termination for Employer’s
Convenience], Sub-Clause 16.4 [Payment after Termination by
Contractor], Sub-Clause 18.5 [Optional Termination], or Sub-Clause
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

18.6 [Release from Performance under the Law] (as the case may be).

4.2.3 Return of the Performance Security

The Employer shall return the Performance Security to the Contractor:

(a) within 21 days after the issue of the Performance Certificate and the
Contractor has complied with Sub-Clause 11.11 [Clearance of Site];
or
(b) promptly after the date of termination if the Contract is terminated
in accordance with Sub-Clause 15.5 [Termination for Employer’s
Convenience], Sub-Clause 16.2 [Termination by Contractor],
Sub-Clause 18.5 [Optional Termination] or Sub-Clause 18.6 [Release
from Performance under the Law].

4.3
Contractor’s
Representative The Contractor shall appoint the Contractor’s Representative and shall give
him/her all authority necessary to act on the Contractor’s behalf under the
Contract, except to replace the Contractor’s Representative.

The Contractor’s Representative shall be qualified, experienced and

competent in the main engineering discipline applicable to the Works and
fluent in the language for communications defined in Sub-Clause 1.4 [Law
and Language].

Unless the Contractor’s Representative is named in the Contract, the

Contractor shall, before the Commencement Date, submit to the Engineer
for consent the name and particulars of the person the Contractor proposes

General Conditions © FIDIC & ITA 2019

27
 to appoint as Contractor’s Representative. If consent is withheld or
CONDITIONS

subsequently revoked, or if the appointed person fails to act as Contractor’s

GENERAL

Representative, the Contractor shall similarly submit the name and particulars
of another suitable replacement for such appointment. If the Engineer does
not respond within 28 days after receiving this submission, by giving a
Notice to the Contractor objecting to the proposed person or replacement,
the Engineer shall be deemed to have given his/her consent.
GUIDANCE

The Contractor shall not, without the Engineer’s prior consent, revoke the
appointment of the Contractor’s Representative or appoint a replacement
(unless the Contractor’s Representative is unable to act as a result of death,
illness, disability or resignation, in which case his/her appointment shall be
deemed to have been revoked with immediate effect and the appointment
of a replacement shall be treated as a temporary appointment until the
Engineer gives his/her consent to this replacement, or another replacement
FORMS

is appointed, under this Sub-Clause).

The whole time of the Contractor’s Representative shall be given to

directing the Contractor’s performance of the Contract. The Contractor’s
Representative shall act for and on behalf of the Contractor at all times
during the performance of the Contract, including issuing and receiving all
Notices and other communications under Sub-Clause 1.3 [Notices and
Other Communications] and for receiving instructions under Sub-Clause 3.5
[Engineer’s Instructions].

The Contractor’s Representative shall be based at the Site for the whole
time that the Works are being executed at the Site. If the Contractor’s
Representative is to be temporarily absent from the Site during the execution
of the Works, a suitable replacement shall be temporarily appointed, subject
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

to the Engineer’s prior consent.

The Contractor’s Representative may delegate any powers, functions and

authority except:

(a) the authority to issue and receive Notices and other communications
under Sub-Clause 1.3 [Notices and Other Communications]; and
(b) the authority to receive instructions under Sub-Clause 3.5 [Engineer’s
Instructions]),
to any suitably competent and experienced person and may at any time
revoke the delegation. Any delegation or revocation shall not take effect until
the Engineer has received a Notice from the Contractor’s Representative,
naming the person, specifying the powers, functions and authority being
delegated or revoked, and stating the timing of the delegation or revocation.

All these persons shall be fluent in the language for communications defined
in Sub-Clause 1.4 [Law and Language].

4.4
Subcontractors The Contractor shall not subcontract:

(a) works with a total accumulated value greater than the percentage
of the Accepted Contract Amount stated in the Contract Data (if not
stated, the whole of the Works); or
(b) any part of the Works for which subcontracting is not permitted as
stated in the Contract Data.

The Contractor shall be responsible for the work of all Subcontractors, for
managing and coordinating all the Subcontractors’ works, and for the acts

28 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 or defaults of any Subcontractor, any Subcontractor’s agents or employees,

CONDITIONS
as if they were the acts or defaults of the Contractor.

GENERAL
The Contractor shall obtain the Engineer’s prior consent to all proposed
Subcontractors, except:

(i) suppliers of Materials; or

(ii) a subcontract for which the Subcontractor is named in the Contract.

GUIDANCE
Where the Contractor is required to obtain the Engineer’s consent to a
proposed Subcontractor, the Contractor shall submit the name, address,
detailed particulars and relevant experience of such Subcontractor and the
work intended to be subcontracted to the Engineer and further information
which the Engineer may reasonably require. If the Engineer does not
respond within 14 days after receiving this submission (or further information

FORMS
if requested), by giving a Notice objecting to the proposed Subcontractor,
the Engineer shall be deemed to have given his/her consent.

The Contractor shall give a Notice to the Engineer not less than 28 days
before the intended date of the commencement of each Subcontractor’s
work, and of the commencement of such work on the Site.

4.5
Nominated
Subcontractors In this Sub-Clause, “nominated Subcontractor” means a Subcontractor named
as such in the Employer’s Requirements or whom the Engineer, under Sub-Clause
13.4 [Provisional Sums], instructs the Contractor to employ as a Subcontractor.

4.5.1 Objection to Nomination

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

The Contractor shall not be under any obligation to employ a nominated

Subcontractor whom the Engineer instructs and against whom the Contractor
raises reasonable objection by giving a Notice to the Engineer, with detailed
supporting particulars, no later than 14 days after receiving the Engineer’s
instruction. An objection shall be deemed reasonable if it arises from (among
other things) any of the following matters, unless the Employer agrees to
indemnify the Contractor against and from the consequences of the matter:

(a) there are reasons to believe that the nominated Subcontractor does
not have sufficient competence, resources or financial strength;
(b) the subcontract does not specify that the nominated Subcontractor
shall indemnify the Contractor against and from any negligence or
misuse of Goods by the nominated Subcontractor, the nominated
Subcontractor’s agents and employees; or
(c) the subcontract does not specify 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 the Contractor’s
corresponding obligations and liabilities under the Contract; and
(ii) indemnify the Contractor against and from all obligations and
liabilities arising under or in connection with the Contract and
from the consequences of any failure by the Subcontractor to
perform these obligations or to fulfil these liabilities.

4.5.2 Payments to nominated Subcontractors

The Contractor shall pay to the nominated Subcontractor the amounts due

General Conditions © FIDIC & ITA 2019

29
 in accordance with the subcontract. These amounts plus other charges shall
CONDITIONS

be included in the Contract Price in accordance with sub-paragraph (b) of

GENERAL

Sub-Clause 13.4 [Provisional Sums], except as stated in Sub-Clause 4.5.3

[Evidence of Payments].

4.5.3 Evidence of Payments

Before issuing a Payment Certificate which includes an amount payable to

GUIDANCE

a nominated Subcontractor, the Engineer 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) (i) satisfies the Engineer in writing that the Contractor is reasonably
FORMS

entitled to withhold or refuse to pay these amounts, and

(ii) submits to the Engineer reasonable evidence that the nominated
Subcontractor has been notified of the Contractor’s entitlement,
then the Employer may (at the Employer’s sole discretion) pay, directly 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.

Thereafter, the Engineer shall give a Notice to the Contractor stating the
amount paid directly to the nominated Subcontractor by the Employer and,
in the next IPC after this Notice, shall include this amount as a deduction
under sub-paragraph (b) of Sub-Clause 14.6.1 [The IPC].
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

4.6
Co-operation The Contractor shall, as specified in the Employer’s Requirements or
as instructed by the Engineer, co-operate with and allow appropriate
opportunities for carrying out work by:

(a) the Employer’s Personnel;

(b) any other contractors employed by the Employer; and
(c) the personnel of any legally constituted public authorities and private
utility companies,
who may be employed in the carrying out, on or near the Site, of any work
not included in the Contract. Such appropriate opportunities may include
the use of Contractor’s Equipment, Temporary Works, access arrangements
which are the responsibility of the Contractor, and/or of the other Contractor’s
facilities or services on the Site.

The Contractor shall be responsible for the Contractor’s construction

activities on the Site, and shall use all reasonable endeavours to co-ordinate
these activities with those of other contractors to the extent (if any) specified
in the Employer’s Requirements or as instructed by the Engineer.

If the Contractor suffers delay and/or incurs Cost as a result of an instruction

under this Sub-Clause, to the extent (if any) that co-operation, allowance
of opportunities and coordination was Unforeseeable having regard to that
specified in the Employer’s Requirements, the Contractor shall be entitled
subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/
or payment of such Cost Plus Profit.

30 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 4.7

CONDITIONS
Setting Out The Contractor shall set out the Works in relation to the items of reference

GENERAL
under Sub-Clause 2.5 [Site Data and Items of Reference].

4.7.1 Accuracy

The Contractor shall:

GUIDANCE
(a) verify the accuracy of all these items of reference before they are used
for the Works;
(b) promptly deliver the results of each verification to the Engineer;
(c) rectify any error in the positions, levels, dimensions or alignment of the
Works; and
(d) be responsible for the correct positioning of all parts of the Works.

FORMS
4.7.2 Errors

If the Contractor finds an error in any items of reference, the Contractor shall
give a Notice to the Engineer describing it:

(a) within the period stated in the Contract Data (if not stated, 28 days)
calculated from the Commencement Date, if the items of reference
are specified in the Employer’s Requirements; or
(b) as soon as practicable after receiving the items of reference, if they
are issued by the Engineer under Sub-Clause 2.5 [Site Data and Items
of Reference].

4.7.3 Agreement or Determination of rectification measures, delay and/or Cost

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

After receiving a Notice from the Contractor under Sub-Clause 4.7.2

[Errors], the Engineer shall proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determine:

(a) whether or not there is an error in the items of reference;

(b) whether or not (taking account of cost and time) an experienced
contractor exercising due care would have discovered such error
• when examining the Site and the Employer’s Requirements
before submitting the Tender; or
• when scrutinising the Employer’s Requirements under
Sub-Clause 5.1 [General Design Obligations], if the items of
reference are specified in the Employer’s Requirements and the
Contractor’s Notice is given after the expiry of the period stated
in sub-paragraph (a) of Sub-Clause 4.7.2; and
(c) what measures (if any) the Contractor is required to take to rectify the
error
(and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer
receives the Contractor’s Notice under Sub-Clause 4.7.2 [Errors] shall be the
date of commencement of the time limit for agreement under Sub-Clause
3.7.3).

If, under sub-paragraph (b) above, an experienced contractor would not

have discovered the error:

(i) Sub-Clause 13.3.1 [Variation by Instruction] shall apply to the

measures that the Contractor is required to take (if any); and
(ii) if the Contractor suffers delay and/or incurs Cost as a result of the
error, the Contractor shall be entitled subject to Sub-Clause 20.2

General Conditions © FIDIC & ITA 2019

31
 [Claims For Payment and/or EOT] to EOT and/or payment of such
CONDITIONS

Cost Plus Profit.

GENERAL

4.8
Health and Safety
Obligations The Contractor shall:

(a) comply with all applicable health and safety regulations and Laws;
GUIDANCE

(b) comply with all applicable health and safety obligations specified in
the Contract;
(c) comply with all directives issued by the Contractor’s health and
safety officer (appointed under Sub-Clause 6.7 [Health and Safety of
Personnel]);
(d) take care of the health and safety of all persons entitled to be on the
FORMS

Site and other places (if any) where the Works are being executed;
(e) keep the Site, Works (and the other places (if any) where the Works
are being executed) clear of unnecessary obstruction so as to avoid
danger to these persons;
(f) provide fencing, lighting, safe access, guarding and watching of:
(i) the Works, until the Works are taken over under Clause 10
[Employer’s Taking Over]; and
(ii) any part of the Works where the Contractor is executing
outstanding works or remedying any defects during the DNP;
and
(g) provide any Temporary Works (including but not limited to, roadways,
footways, guards and fences) which may be necessary, because of
the execution of the Works, for the use and protection of the public
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

and of owners and occupiers of adjacent land and property.

Within 21 days of the Commencement Date and before commencing any

construction on the Site, the Contractor shall submit to the Engineer for
information a health and safety manual which has been specifically prepared
for the Works, the Site and other places (if any) where the Contractor intends
to execute the Works. This manual shall be in addition to any other similar
document required under applicable health and safety regulations and Laws.

The health and safety manual shall set out all the health and safety
requirements:

(i) specified in the Employer’s Requirements;

(ii) that comply with all the Contractor’s health and safety obligations
under the Contract; and
(iii) that are necessary to effect and maintain a healthy and safe working
environment for all persons entitled to be on the Site and other places
(if any) where the Works are being executed.

This manual shall be revised as necessary by the Contractor or the

Contractor’s health and safety officer, or at the reasonable request of the
Engineer. Each revision of the manual shall be submitted promptly to the
Engineer.

In addition to the reporting requirement of sub-paragraph (g) of Sub-Clause

4.20 [Progress Reports], the Contractor shall submit to the Engineer details
of any accident as soon as practicable after its occurrence and, in the case
of an accident causing serious injury or death, shall inform the Engineer
immediately.

32 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The Contractor shall, as specified in the Employer’s Requirements and as

CONDITIONS
the Engineer may reasonably require, maintain records and make reports

GENERAL
(in compliance with the applicable health and safety regulations and Laws)
concerning the health and safety of persons and any damage to property.

4.9
Quality Management and
Compliance Verification

GUIDANCE
Systems 4.9.1 Quality Management System

The Contractor shall prepare and implement a QM System to demonstrate

compliance with the requirements of the Contract. The QM System shall be
specifically prepared for the Works and submitted to the Engineer within 28
days of the Commencement Date. Thereafter, whenever the QM System is
updated or revised, a copy shall promptly be submitted to the Engineer.

FORMS
The QM System shall be in accordance with the details stated in the Employer’s
Requirements (if any) and shall include the Contractor’s procedures:

(a) to ensure that all Notices and other communications under Sub-Clause
1.3 [Notices and Other Communications], Contractor’s Documents,
as-built records, O&M Manuals, and contemporary records can be
traced, with full certainty, to the Works, Goods, work, workmanship
or test to which they relate;
(b) to ensure proper coordination and management of interfaces between
the stages of execution of the Works, and between Subcontractors;
and
(c) for the submission of Contractor’s Documents to the Engineer for
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Review.

The Engineer may Review the QM System and may give a Notice to the
Contractor stating the extent to which it does not comply with the Contract.
Within 14 days after receiving this Notice, the Contractor shall revise the QM
System to rectify such non-compliance. If the Engineer does not give such
a Notice within 21 days of the date of submission of the QM System, the
Engineer shall be deemed to have given a Notice of No-objection.

The Engineer may, at any time, give a Notice to the Contractor stating the
extent to which the Contractor is failing to correctly implement the QM
System to the Contractor’s activities under the Contract. After receiving this
Notice, the Contractor shall immediately remedy such failure.

The Contractor shall carry out internal audits of the QM System regularly, and
at least once every 6 months. The Contractor shall submit to the Engineer
a report listing the results of each internal audit within 7 days of completion.
Each report shall include, where appropriate, the proposed measures to
improve and/or rectify the QM System and/or its implementation.

If the Contractor is required by the Contractor’s quality assurance certification

to be subject to external audit, the Contractor shall immediately give a Notice
to the Engineer describing any failing(s) identified in any external audit. If the
Contractor is a JV, this obligation shall apply to each member of the JV.

4.9.2 Compliance Verification System

The Contractor shall prepare and implement a Compliance Verification

System to demonstrate that the design, Materials, Employer-Supplied

General Conditions © FIDIC & ITA 2019

33
 Materials (if any), Plant, Contractor’s Key Equipment, work and workmanship
CONDITIONS

comply in all respects with the Contract.

GENERAL

The Compliance Verification System shall be in accordance with the details

stated in the Employer’s Requirements (if any) and shall include a method for
reporting the results of all inspections and tests carried out by the Contractor.
In the event that any inspection or test identifies a non-compliance with the
Contract, Sub-Clause 7.5 [Defects and Rejection] shall apply.
GUIDANCE

The Contractor shall prepare and submit to the Engineer a complete set
of compliance verification documentation for the Works or Section (as the
case may be), fully compiled and collated in the manner described in the
Employer’s Requirements or, if not so described, in a manner acceptable to
the Engineer.
FORMS

4.9.3 General provision

Compliance with the QM System and/or Compliance Verification System

shall not relieve the Contractor from any duty, obligation or responsibility
under or in connection with the Contract.

4.10
Use of Site Data, of the
Geotechnical Baseline
Report and of the
Use of Site Data 4.10.1
Geotechnical Data Report
Subject to the provisions of Sub-Clause 4.10.2 [Use of Geotechnical Baseline
Report], the Contractor shall be responsible for interpreting all data referred
to under Sub-Clause 2.5 [Site Data and Items of Reference].
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Subject to the provisions of Sub-Clause 4.10.2 [Use of Geotechnical
Baseline Report] and to the extent which was practicable (taking account of
time and cost and access to the Site and its surroundings), the Contractor
shall be deemed to have obtained all necessary information as to risks,
contingencies and other circumstances which may influence or affect the
Tender 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 been satisfied before submitting the
Tender as to all matters relevant to the execution of the Works, including:

(a) the form and nature of the Site and adjacent structures or
developments;
(b) the hydrological and climatic conditions, and the effects of climatic
conditions at the Site;
(c) the extent and nature of the work and Goods necessary for the
execution of the Works;
(d) the Laws, procedures and labour practices of the Country; and
(e) the Contractor’s requirements for access, accommodation, facilities,
personnel, power, transport, water and any other utilities or services.

4.10.2 Use of the Geotechnical Baseline Report

The Contractor shall be deemed to have based the Tender and the
Contractor’s Proposal for the Excavation and Lining Works on the subsurface
physical conditions and ground reactions described in the GBR, irrespective
of any discrepancy or ambiguity that may be found between such conditions
and/or reactions and the conditions described in any data made available
under Sub-Clause 2.5 [Site Data and Items of Reference].

34 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 4.10.3 Use of the Geotechnical Data Report

CONDITIONS
GENERAL
If an alternative construction method for the Excavation and/or Lining Works
is agreed between the Parties, and if the GBR is silent on one or more
parameters that are relevant to such alternative method, reference shall be
made to the GDR to integrate or amend the GBR accordingly.

4.11

GUIDANCE
Sufficiency of the
Accepted Contract Amount The Contractor shall be deemed to:

(a) have satisfied himself/herself as to the correctness and sufficiency of

the Accepted Contract Amount; and
(b) Subject to Sub-Clause 4.10.2 [Use of Geotechnical Baseline
Report], have based the Accepted Contract Amount on the data,

FORMS
interpretations, necessary information, inspections, examinations and
satisfaction as to all relevant matters described in Sub-Clause 4.10
[Use of Site Data and Geotechnical Baseline and Geotechnical Data
Report] and any further data relevant to the Contractor’s design.

Unless otherwise stated in the Contract, the Accepted Contract Amount

shall be deemed to cover all the Contractor’s obligations under the Contract
and all things necessary for the proper execution of the Works in accordance
with the Contract.

4.12
Unforeseeable Physical
Conditions In this Sub-Clause, “physical conditions” means natural physical conditions,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

physical obstructions (natural or man-made), pollutants and reactions of the

ground to Excavation, which the Contractor encounters at the Site during
execution of the Works, including subsurface and hydrological conditions
but excluding climatic conditions at the Site and the effects of those climatic
conditions.

If the Contractor encounters physical conditions which the Contractor

considers to have been Unforeseeable and that will have an adverse effect
on the progress and/or increase the Cost of the execution of the Works, the
following procedure shall apply.

However the impact on progress and/or Cost of any conditions that are
described in the Geotechnical Baseline Report shall not be assessed under
this Sub-Clause but under Sub-Clause 13.8. [Measurement of Excavation
and Lining Works and Adjustment of Time for Completion and Contract
Price].

4.12.1 Contractor’s Notice

After discovery of such physical conditions, the Contractor shall give a

Notice to the Engineer, which shall:

(a) be given as soon as practicable and in good time to give the Engineer
opportunity to inspect and investigate the physical conditions promptly
and before they are disturbed;
(b) describe the physical conditions, so that they can be inspected and/
or investigated promptly by the Engineer;
(c) set out the reasons why the Contractor considers the physical
conditions to be Unforeseeable; and

General Conditions © FIDIC & ITA 2019

35
 (d) describe the manner in which the physical conditions will have an
CONDITIONS

adverse effect on the progress and/or increase the Cost of the

GENERAL

execution of the Works.

This Notice may include the Contractor’s proposals for measures to be taken
to further investigate and/or mitigate such physical conditions.

4.12.2 Engineer’s inspection and investigation

GUIDANCE

The Engineer shall inspect and investigate the physical conditions (subject to
the safety of access) immediately or within a period of days as agreed with
the Contractor, after receiving the Contractor’s Notice.

The Contractor shall continue execution of the Works, using such proper
and reasonable measures as are appropriate for the physical conditions and
to enable the Engineer to inspect and investigate them.
FORMS

4.12.3 Engineer’s instructions

The Contractor shall comply with any instructions which the Engineer may give
for dealing with the physical conditions and, if such an instruction constitutes a
Variation, Sub-Clause 13.3.1 [Variation by Instruction] shall apply.

4.12.4 Delay and/or Cost

If and to the extent that the Contractor suffers delay and/or incurs Cost due
to these physical conditions, having complied with Sub-Clauses 4.12.1 to
4.12.3 above, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to EOT and/or payment of such Cost.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

4.12.5 Agreement or Determination of Delay and/or Cost

The agreement or determination, under Sub-Clause 20.2.5 [Agreement or

determination of the Claim], of any Claim under Sub-Clause 4.12.4 [Delay
and/or Cost] shall include consideration of whether and (if so) to what extent
the physical conditions were Unforeseeable.

The Engineer may also review whether other physical conditions in similar
parts of the Works (if any) were at the Base Date reasonably foreseeable by
an experienced contractor (or, as regards subsurface physical conditions
described in the GBR, were more favourable than those described in the
GBR), it being understood that such conditions that have given rise to an
adjustment under Sub-Clause 13.8.3 [Adjustment of Time for Completion]
would not be considered for this purpose. If and to the extent that these more
favourable conditions were encountered, the Engineer may take account of
the reductions in Cost which were due to these conditions in calculating the
additional Cost to be agreed or determined under this Sub-Clause 4.12.5.
However, the net effect of all additions and reductions under this Sub-Clause
4.12.5 shall not result in a net reduction in the Contract Price.

In respect of delay caused to the Excavation and Lining Works by

Unforeseeable physical conditions, the Cost shall be determined by reference
to the relevant time-related cost items in the Bill of Quantities, to the extent
that unit rates exist and are comparable.

Subject to Sub-Clause 4.10.2 [Use of the Geotechnical Baseline Report],

the Engineer may take account of any evidence of the physical conditions
foreseeable by the Contractor by the Base Date, which the Contractor may

36 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 include in the supporting particulars for the Claim under Sub-Clause 20.2.4

CONDITIONS
[Fully detailed Claim], but shall not be bound by any such evidence.

GENERAL
4.13
Rights of Way and Facilities The Contractor shall bear all costs and charges for special and/or temporary
rights-of-way which may be required for the purposes of the Works, including
those for access to the Site.

GUIDANCE
The Contractor shall also obtain, at the Contractor’s risk and cost, any additional
facilities outside the Site which may be required for the purposes of the Works.

4.14
Avoidance of Interference The Contractor shall not interfere unnecessarily or improperly with:

(a) the convenience of the public; or

FORMS
(b) 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.

4.15
Access Route The Contractor shall be deemed to have been satisfied, at the Base Date,
as to the suitability and availability of the access routes to the Site. The
Contractor shall take all necessary measures to prevent any road or bridge
from being damaged by the Contractor’s traffic or by the Contractor’s
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Personnel. These measures shall include the proper use of appropriate

vehicles (conforming to legal load and width limits (if any) and any other
restrictions) and routes.

Except as otherwise stated in these Conditions:

(a) the Contractor shall (as between the Parties) be responsible for repair
of any damage caused to, and any maintenance which may be
required for the Contractor’s use of, access routes;
(b) the Contractor shall provide all necessary signs or directions along
access routes, and shall obtain any permissions or permits which
may be required from the relevant authorities, for the Contractor’s use
of routes, signs and directions;
(c) the Employer shall not be responsible for any third party claims which
may arise from the Contractor’s use or otherwise of any access route;
(d) the Employer does not guarantee the suitability or availability of
particular access routes; and
(e) all Costs due to non-suitability or non-availability, for the use required
by the Contractor, of access routes shall be borne by the Contractor.

To the extent that non-suitability or non-availability of an access route arises

as a result of changes to that access route by the Employer or a third party
after the Base Date, and as a result the Contractor suffers delay and/or
incurs Cost, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to EOT and/or payment of such Cost.

General Conditions © FIDIC & ITA 2019

37
 4.16
Transport of Goods
CONDITIONS

The Contractor shall:

GENERAL

(a) give a Notice to the Engineer not less than 21 days before the date on
which any Plant, item of Contractor’s Key Equipment, or a major item
of other Goods (as specified in the Employer’s Requirements), will be
delivered to the Site;
(b) be responsible for packing, loading, transporting, receiving, unloading,
GUIDANCE

storing and protecting all Goods and other things required for the
Works;
(c) be responsible for customs clearance, permits, fees and charges
related to the import, transport and handling of all Goods, including
all obligations necessary for their delivery to the Site; and
(d) indemnify and hold the Employer harmless against and from all
damages, losses and expenses (including legal fees and expenses)
FORMS

resulting from the import, transport and handling of all Goods, and
shall negotiate and pay all third party claims arising from their import,
transport and handling.

4.17
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’s Key
Equipment shall be designated as such in the Schedule of Contractor’s
Key Equipment including its conforming characteristics as specified in the
Employer’s Requirements.

The date of delivery to the Site of each item of the Contractor’s Key
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Equipment, and the duration of its presence on the Site, shall be consistent
with the Completion Schedule

The Contractor shall not remove from the Site or any other agreed location
any items of the Contractor’s Key Equipment and/or any other major items
of the Contractor’s Equipment, without the Engineer’s consent. However,
consent shall not be required for vehicles transporting Goods or Contractor’s
Personnel off Site.

In addition to any Notice given under Sub-Clause 4.16 [Transport of Goods],

the Contractor shall give a Notice to the Engineer of the date on which any
item of the Contractor’s Key Equipment and/or any other major items of
Contractor’s Equipment has been delivered to the Site. This Notice shall be
given within 7 days of the delivery date, shall identify whether the item of the
Contractor’s Key Equipment and/or any other major item of the Contractor’s
Equipment is owned by the Contractor or a Subcontractor or another person
and, if rented or leased, shall identify the rental or leasing entity.

4.18
Protection of
the Environment The Contractor shall take all necessary measures to;

(a) protect the environment (both on and off the Site);

(b) comply with the environmental impact statement for the Works (if
any); and
(c) limit damage and nuisance to people and property resulting from
pollution, noise and other results of the Contractor’s operations and/
or activities.

38 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The Contractor shall ensure that emissions, surface and subsurface

CONDITIONS
discharges, effluent and any other pollutants from the Contractor’s activities

GENERAL
shall exceed neither the values indicated in the Employer’s Requirements nor
those prescribed by applicable Laws.

4.19
Temporary Utilities The Contractor shall, except as stated below, be responsible for the provision
of all temporary utilities, including electricity, gas, telecommunications, water

GUIDANCE
and any other services the Contractor may require for the execution of the
Works.

The following provisions of this Sub-Clause shall only apply if, as stated
in the Employer’s Requirements, the Employer is to provide utilities for the
Contractor’s use. The Contractor shall be entitled to use, for the purposes
of the Works, the utilities on the Site for which details and prices are given

FORMS
in the Employer’s Requirements. The Contractor shall, at the Contractor’s
risk and cost, provide any apparatus necessary for the Contractor’s use of
these services and for measuring the quantities consumed. The apparatus
provided for measuring quantities consumed shall be subject to the
Engineer’s consent. The quantities consumed (if any) during each period
of payment stated in the Contract Data (if not stated, each month) shall be
measured by the Contractor, and the amount to be paid by the Contractor
for such quantities (at the prices stated in the Employer’s Requirements)
shall be included in the relevant Statement.

4.20
Progress Reports Monthly progress reports, in the format stated in the Employer’s Requirements
(if not stated, in a format acceptable to the Engineer), shall be prepared by
the Contractor and submitted to the Engineer. Each progress report shall be
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

submitted in one paper-original, one electronic copy and additional paper

copies (if any) as stated in the Contract Data. The first report shall cover the
period up to the end of the first month following the Commencement Date.
Reports shall be submitted monthly thereafter, each within 7 days after the
last day of the month to which it relates.

Reporting shall continue until the Date of Completion of the Works or, if
outstanding work is listed in the Taking-Over Certificate, the date on which
such outstanding work is completed. Unless otherwise stated in the
Employer’s Requirements, each progress report shall include:

(a) charts, diagrams, and detailed descriptions of progress, including

each stage of design, Contractor’s Documents, procurement,
manufacture, delivery to Site, construction, (especially excavation
cycle times and components, ground support erection times and
activities, planned and unplanned cycle time delays, the physical
conditions and reactions of the ground encountered at the working
faces or excavation headings), erection, testing, commissioning and
trial operation;
(b) photographs and/or video recordings showing the status of
manufacture and of progress on and off the Site;
(c) for the manufacture and/or assembly of each main item of Plant,
Materials and Contractor’s Key Equipment (if any), 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) tests, and
(iv) shipment and arrival at the Site;
General Conditions © FIDIC & ITA 2019
39
 (d) the details described in Sub-Clause 6.10 [Contractor’s Records];
CONDITIONS

(e) copies of quality management documents, inspection reports,

GENERAL

test results, and compliance verification documentation (including

certificates of Materials);
(f) a list of Variations, and any Notices given (by either Party) under
Sub-Clause 20.2.1 [Notice of Claim];
(g) health and safety statistics, including details of any hazardous
incidents or pollution incidents or activities relating to environmental
GUIDANCE

aspects, damage to third party property, social disturbance and/or

public relations; and
(h) comparisons of actual and planned progress, with details of any events
or circumstances which may adversely affect the completion of the
Works in accordance with the Programme and the Time for Completion,
and the measures being (or to be) adopted to overcome delays.
FORMS

However, nothing stated in any progress report shall constitute a Notice

under a Sub-Clause of these Conditions.

4.21
Security of the Site The Contractor shall be responsible for the security of the Site, and:

(a) for keeping unauthorised persons off the Site; and

(b) authorised persons shall be limited to the Contractor’s Personnel,
the Employer’s Personnel, and to any other personnel identified as
authorised personnel (including the Employer’s other contractors
on the Site), by a Notice from the Employer or the Engineer to the
Contractor.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

4.22
Contractor’s Operations
on Site The Contractor shall confine the Contractor’s operations to the Site, and
to any additional areas which may be obtained by the Contractor and
acknowledged by the Engineer as 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.

At all times, the Contractor shall keep the Site free from all unnecessary
obstruction, and shall properly store or remove from the Site any Contractor’s
Equipment (subject to Sub-Clause 4.17 [Contractor’s Equipment]) and/or
surplus materials. The Contractor shall promptly clear away and remove
from the Site any wreckage, rubbish, hazardous waste and Temporary
Works which are no longer required.

Promptly after the issue of a Taking-Over Certificate, the Contractor shall

clear away and remove, from that part of the Site and Works to which the
Taking-Over Certificate refers, all Contractor’s Equipment, surplus material,
wreckage, rubbish, hazardous waste and Temporary Works. The Contractor
shall leave that part of the Site and the Works in a clean and safe condition.
However, the Contractor may retain at locations on the Site agreed with the
Engineer, during the DNP, such Goods as are required for the Contractor to
fulfil obligations under the Contract.

4.23
Archaeological and
Geological Findings All fossils, coins, articles of value or antiquity, and structures and other
remains or items of geological or archaeological interest found on the Site

40 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 shall be placed under the care and authority of the Employer. The Contractor

CONDITIONS
shall take all reasonable precautions to prevent Contractor’s Personnel or

GENERAL
other persons from removing or damaging any of these findings.

The Contractor shall, as soon as practicable after discovery of any such

finding, give a Notice to the Engineer in good time to give the Engineer
opportunity to promptly inspect and/or investigate the finding before it is
disturbed. This Notice shall describe the finding and the Engineer shall issue

GUIDANCE
instructions for dealing with it.

If the Contractor suffers delay and/or incurs Cost from complying with the
Engineer’s instructions, the Contractor shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such
Cost.

FORMS
4.24
Excavation and Lining Works The Contractor shall take whatever measures are necessary for the execution
of, and/or are necessary for the safety, stability and timely progress of, the
Excavation and Lining Works in accordance with the Contract. The Contractor
shall submit to the Engineer on a daily basis his/her interpretations of the
subsurface and surface monitoring results, if any.

The Contractor and the Engineer shall use all reasonable endeavours to
agree such necessary measures.

Any adjustment to the Contract Price arising from such necessary measures,
shall be in accordance with Sub-Clause 13.8.4 [Adjustment of the Contract
Price],or Sub-Clause 4.12.5 [Agreement or Determination of Delay and/or
Cost] as the case may be.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Any adjustment to the Time for Completion of the Works or a Section or a

Milestone arising from such necessary measures, shall be in accordance
with Sub-Clause 13.8.3 [Adjustment of Time for Completion],

4.25
Milestones The Contractor shall complete the part of the design and/or of Works
required to achieve each Milestone (including all work which is stated in
the Employer’s Requirements as being required for the Milestone to be
considered complete) within the Time for Completion of the Milestone, as
stated in the Completion Schedule, calculated from the Commencement
Date and subject to any Extension of Time under Sub-Clause 8.5 [Extension
of Time for Completion] and/or adjustment under Sub-Clause 13.8.3
[Adjustment of Time for Completion].

The Contractor may apply, by Notice to the Engineer, for a Milestone

Certificate not earlier than 14 days before the works of a Milestone will, in
the Contractor’s opinion, be complete. The Engineer shall, within 28 days
after receiving the Contractor’s Notice:

(a) issue the Milestone Certificate to the Contractor, stating the date on which
the Milestone was completed in accordance with the Contract, except for
any minor outstanding work and defects (as shall be listed in the Milestone
Certificate); or

(b) reject the application, giving reasons and specifying the work required to be
done and defects required to be remedied by the Contractor to enable the
Milestone Certificate to be issued.

General Conditions © FIDIC & ITA 2019

41
 The Contractor shall then complete the work referred to in sub-paragraph (b)
CONDITIONS

of this Sub-Clause before issuing a further Notice of application under this

GENERAL

Sub-Clause.

5.1
5
Design
GUIDANCE

General Design Obligations The Contractor shall carry out, and be responsible for, the design of the
Works to the extent specified in the Employer’s Requirements, and, where
applicable, in accordance with the Geotechnical Baseline Report.

Design shall be prepared by designers who:

(a) are engineers or other professionals, qualified, experienced and

FORMS

competent in the disciplines of the design for which they are

responsible;
(b) comply with the criteria (if any) stated in the Employer’s Requirements;
and
(c) are qualified and entitled under applicable Laws to design the Works.

Unless otherwise stated in the Employer’s Requirements, the Contractor shall

submit to the Engineer for consent the name, address, detailed particulars
and relevant experience of each proposed designer/design Subcontractor.

The Contractor warrants that the Contractor, the Contractor’s designers and
design Subcontractors have the experience, capability and competence
necessary for the design. The Contractor undertakes that the designers
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

and design Subcontractors shall be available to attend discussions with the

Engineer and/or the Employer at all reasonable times (on or off the Site), until
the issue of the Performance Certificate.

Promptly after receiving a Notice under Sub-Clause 8.1 [Commencement

of Works], the Contractor shall scrutinise the Employer’s Requirements
(including design criteria and calculations, if any) and the Geotechnical
Baseline Report. If the Contractor discovers any error, fault or other defect
in the Employer’s Requirements, Sub-Clause 1.9 [Errors in the Employer’s
Requirements] shall apply (unless it is an error in the items of reference
specified in the Employer’s Requirements, in which case Sub-Clause 4.7
[Setting Out] shall apply).

5.2
Contractor’s
Documents The Contractor’s Documents shall comprise the documents:

(a) specified in the Employer’s Requirements;

(b) required to satisfy all permits, permissions, licences and other
regulatory approvals which are the Contractor’s responsibility under
Sub-Clause 1.13 [Compliance with Laws]; and
(c) described in Sub-Clause 5.6 [As-Built Records] and Sub-Clause
5.7 [Operation and Maintenance Manuals] and Sub-Clause 1.16
[Contract Risk Register and Contract Risk Management Plan].

5.2.1 Preparation by Contractor

Unless otherwise stated in the Employer’s Requirements, the Contractor’s

42 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Documents shall be written in the language for communications defined in

CONDITIONS
Sub-Clause 1.4 [Law and Language].

GENERAL
The Contractor shall prepare all Contractor’s Documents, and any other
documents necessary to complete and implement the design during
execution of the Works and to instruct the Contractor’s Personnel. The
Employer’s Personnel shall have the right to inspect the preparation of
all these documents (including any investigation, modelling and testing),

GUIDANCE
wherever they are being prepared.

5.2.2 Review by Engineer

In this Sub-Clause 5.2.2:

- “Review Period” means the period not exceeding 21 days, or as

FORMS
otherwise stated in the Employer’s Requirements, calculated from the
date on which the Engineer receives a Contractor’s Document and a
Contractor’s Notice;
- “Contractor’s Document” excludes any of the Contractor’s Documents
which are not specified in the Employer’s Requirements or these
Conditions as being required to be submitted for Review, but includes
all documents on which a specified Contractor’s Document relies for
completeness; and
- “Contractor’s Notice” means the Notice which shall state that the
relevant Contractor’s Document is considered by the Contractor to
be ready for Review under this Sub-Clause 5.2.2 and for use, and that
it complies with the Employer’s Requirements and these Conditions,
or the extent to which it does not do so.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If the Employer’s Requirements or these Conditions specify that a

Contractor’s Document is to be submitted to the Engineer for Review, it shall
be submitted accordingly, together with a Contractor’s Notice.

The Engineer shall, within the Review Period, give a Notice to the Contractor:

(a) of No-objection (which may include comments concerning minor

matters which will not substantially affect the Works ); or
(b) that the Contractor’s Document fails (to the extent stated) to comply
with the Employer’s Requirements and/or the Contract, with reasons.

If the Engineer gives no Notice within the Review Period, the Engineer shall
be deemed to have given a Notice of No-objection to the Contractor’s
Document (provided that all other Contractor’s Documents on which that
Contractor’s Document relies (if any) have been given, or are deemed to
have been given, a Notice of No-objection).

If the Engineer instructs that further Contractor’s Documents are reasonably

required to demonstrate that the Contractor’s design complies with the
Contract, the Contractor shall prepare and submit them promptly to the
Engineer at the Contractor’s cost.

If the Engineer gives a Notice under sub-paragraph (b) above, the Contractor
shall:

(i) revise the Contractor’s Document;

(ii) resubmit it to the Engineer for Review in accordance with this
Sub-Clause 5.2.2, and the Review Period shall be calculated from the
date that the Engineer receives it; and

General Conditions © FIDIC & ITA 2019

43
 (iii) not be entitled to EOT for any delay caused by any such revision and
CONDITIONS

resubmission and/or by subsequent Review by the Engineer.

GENERAL

If the Employer incurs additional costs as a result of such resubmission and

subsequent Review, the Employer shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the
costs reasonably incurred.
GUIDANCE

5.2.3 Construction

Except for Contractor’s Documents under Sub-Clause 5.6 [As-Built Records]

and Sub-Clause 5.7 [Operation and Maintenance Manuals], for each part of
the Works requiring Contractor’s Documents to be submitted for Review:

(a) construction of such a part shall not commence until a Notice

FORMS

of No-objection is given (or is deemed to have been given) by the

Engineer for all the Contractor’s Documents which are relevant to its
design and execution;
(b) construction of such a part shall be in accordance with these
Contractor’s Documents; and
(c) the Contractor may modify any design or Contractor’s Documents
which have previously been submitted for Review, by giving a Notice
to the Engineer with reasons. If the Contractor has commenced
construction of the part of the Works to which such design or
Contractor’s Documents are relevant:
(i) work on this part shall be suspended;
(ii) the provisions of Sub-Clause 5.2.2 [Review by Engineer] shall apply
as if the Engineer had given a Notice in respect of the Contractor’s
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Documents under sub-paragraph (b) of Sub-Clause 5.2.2; and

(iii) work on this part shall not resume until a Notice of No-objection
is given (or is deemed to have been given) by the Engineer for the
revised documents.

5.3
Contractor’s
Undertaking The Contractor undertakes that the design, the Contractor’s Documents,
the execution of the Works and the completed Works will be in accordance
with:

(a) the Laws of the Country; and

(b) the documents forming the Contract, as altered or modified by
Variations.

5.4
Technical Standards
and Regulations The Contractor’s Documents, the execution of the Works and the completed
Works (including defects remedied by the Contractor) shall comply with the
Country’s technical standards, building, construction and environmental
Laws, Laws applicable to the product being produced from the Works, and
other standards specified in the Employer’s Requirements, applicable to the
Works, or defined by applicable Laws.

All these technical or other standards and Laws shall, in respect of the
Works, and each Section and Part, be those in force when the Works or
Section or Part are taken over under Clause 10 [Employer’s Taking Over].

44 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 References in the Contract to published standards shall be understood

CONDITIONS
to be references to the edition applicable on the Base Date, unless stated

GENERAL
otherwise. If changed or new applicable standards come into force in the
Country after the Base Date, the Contractor shall promptly give a Notice
to the Engineer and (if appropriate or requested by the Engineer) submit
proposals for compliance. To the extent that:

(a) the Engineer considers that compliance is required and such

GUIDANCE
compliance requires change(s) to the execution of the Works; and
(b) the Contractor’s proposals for compliance constitute a Variation;

then the Engineer shall initiate a Variation in accordance with Clause 13

[Variations and Adjustments].

5.5

FORMS
Training The Contractor shall carry out training of employees of the Employer (and/or
other personnel identified in the Employer’s Requirements) in the operation
and maintenance of the Works, and any other aspect of the Works, to the
extent specified in the Employer’s Requirements.

If the Employer’s Requirements specify training which is to be carried out

before taking over, the Works shall not be considered to be completed for
the purposes of taking over under Sub-Clause 10.1 [Taking Over the Works
and Sections] until this training has been completed in accordance with the
Employer’s Requirements.

The timing of the training shall be as stated in the Employer’s Requirements

(if not stated, as acceptable to the Employer). The Contractor shall provide
qualified and experienced training staff, training facilities and all training
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

materials as necessary and/or as stated in the Employer’s Requirements.

5.6
As-Built Records The Contractor shall prepare, and keep up-to-date, a complete set of
“as-built” records of the execution of the Works, showing the exact as-built
locations, sizes and details of the work as executed by the Contractor.
The format, referencing system, system of electronic storage and other
relevant details of the as-built records shall be as stated in the Employer’s
Requirements (if not stated, as acceptable to the Engineer). These records
shall be kept on the Site and shall be used exclusively for the purposes of
this Sub-Clause.

The Contractor shall submit to the Engineer under Sub-Clause 5.2.2 [Review
by Engineer]:

(a) the as-built records for the Works or Section (as the case may be)
before the commencement of the Tests on Completion; and
(b) updated as-built records to the extent that any work is executed by
the Contractor:
(i) during and/or after the Tests on Completion, before the issue of
any Taking-Over Certificate under Sub-Clause 10.1 [Taking Over
the Works and Sections]; and
(ii) after taking over under Sub-Clause 10.1 [Taking Over the Works
and Sections], before the issue of the Performance Certificate.

The number of copies of as-built records to be submitted by the Contractor

under this Sub-Clause shall be as required under Sub-Clause 1.8 [Care and
Supply of Documents].

General Conditions © FIDIC & ITA 2019

45
 5.7
Operation and
CONDITIONS
GENERAL

Maintenance Manuals The Contractor shall prepare, and keep up-to-date, a complete set of
operation and maintenance manuals for the Works (the “O&M Manuals” in
these Conditions).

The format and other relevant details of the O&M Manuals shall be as stated
in the Employer’s Requirements and, in any case, these manuals shall:
GUIDANCE

(a) be in sufficient detail for the Employer to:

(i) operate, maintain and adjust the Works to ensure that the
performance of the Works, Section and/or Plant (as the case may
be) continues to comply with the performance criteria specified in
the Employer’s Requirements and the Schedule of Performance
Guarantees; and
FORMS

(ii) operate, maintain, dismantle, reassemble, adjust and repair the

Plant; and
(b) include an inventory of spare parts required for the Employer’s future
operation and maintenance of the Plant.

Before commencement of the Tests on Completion, the Contractor shall

submit provisional O&M Manuals for the Works or Section (as the case may
be) to the Engineer under Sub-Clause 5.2.2 [Review by Engineer].

If during the Tests on Completion any error or defect is found in the provisional
O&M Manuals, the Contractor shall promptly rectify the error or defect at the
Contractor’s risk and cost.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Before the issue of any Taking-Over Certificate under Sub-Clause 10.1

[Taking Over the Works and Sections], the final O&M Manuals shall be
submitted to the Engineer under Sub-Clause 5.2.2 [Review by Engineer].

5.8
Design Error If errors, omissions, ambiguities, inconsistencies, inadequacies or other defects
are found in the Contractor’s design and/or the Contractor’s Documents, they
and the Works shall be corrected in accordance with Sub-Clause 7.5 [Defects
and Rejection]. If such Contractor’s Documents were previously the subject of
a Notice of No-objection given (or deemed to be given) by the Engineer under
Sub-Clause 5.2.2 [Review by Engineer], the provisions of Sub-Clause 5.2.2
shall apply as if the Engineer had given a Notice in respect of the Contractor’s
Documents under sub-paragraph (b) of Sub-Clause 5.2.2.

All corrections and resubmissions under this Sub-Clause shall be at the

Contractor’s risk and cost.

6.1
6
Staff and Labour
Engagement of
Staff and Labour Except as otherwise stated in the Employer’s Requirements, the Contractor
shall make arrangements for the engagement of all Contractor’s Personnel,
and for their payment, accommodation, feeding, transport and welfare.

46 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 6.2

CONDITIONS
Rates of Wages and

GENERAL
Conditions of Labour The Contractor shall pay rates of wages, and observe conditions of labour,
which comply with all applicable Laws and are not lower than those
established for the trade or industry where the work is carried out.

If no established rates or conditions are applicable, the Contractor shall pay

rates of wages and observe conditions which are not lower than the general

GUIDANCE
level of wages and conditions observed locally by employers whose trade or
industry is similar to that of the Contractor.

6.3
Recruitment of Persons The Contractor shall not recruit, or attempt to recruit, staff and labour from
amongst the Employer’s Personnel.

FORMS
Neither the Employer nor the Engineer shall recruit, or attempt to recruit, staff
and labour from amongst the Contractor’s Personnel.

6.4
Labour Laws The Contractor shall comply with all the relevant labour Laws applicable
to the Contractor’s Personnel, including Laws relating to their employment
(including wages and working hours), health, safety, welfare, immigration
and emigration, and shall allow them all their legal rights.

The Contractor shall require the Contractor’s Personnel to obey all applicable
Laws, including those concerning health and safety at work.

6.5
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Working Hours No work shall be carried out on the Site on locally recognised days of rest,
or outside the normal working hours stated in the Contract Data, unless:

(a) otherwise stated in the Contract;

(b) the Engineer gives consent; or
(c) the work is unavoidable or necessary for the protection of life or
property or for the safety of the Works, in which case the Contractor
shall immediately give a Notice to the Engineer with reasons and
describing the work required.

6.6
Facilities for
Staff and Labour Except as otherwise stated in the Employer’s Requirements, the Contractor
shall provide and maintain all necessary accommodation and welfare facilities
for the Contractor’s Personnel.

If such accommodation and facilities are to be located on the Site, except

where the Employer has given the Contractor prior permission, they shall
be located within the areas identified in the Employer’s Requirements. If any
such accommodation or facilities are found elsewhere within the Site, the
Contractor shall immediately remove them at the Contractor’s risk and cost.
The Contractor shall also provide facilities for the Employer’s Personnel as
stated in the Employer’s Requirements.

6.7
Health and Safety
of Personnel In addition to the requirements of Sub-Clause 4.8 [Health and Safety
Obligations], the Contractor shall at all times take all necessary precautions to

General Conditions © FIDIC & ITA 2019

47
 maintain the health and safety of the Contractor’s Personnel. In collaboration
CONDITIONS

with local health authorities, the Contractor shall ensure that:

GENERAL

(a) medical staff, first aid facilities, sick bay, ambulance services and
any other medical services stated in the Employer’s Requirements
are available at all times at the Site and at any accommodation for
Contractor’s and Employer’s Personnel; and
(b) suitable arrangements are made for all necessary welfare and hygiene
GUIDANCE

requirements and for the prevention of epidemics.

The Contractor shall appoint a health and safety officer at the Site, responsible
for maintaining health, safety and protection against accidents. This officer shall:

(i) be qualified, experienced and competent for this responsibility; and

(ii) have the authority to issue directives for the purpose of maintaining
FORMS

the health and safety of all personnel authorised to enter and/or work
on the Site and to take protective measures to prevent accidents.

Throughout the execution of the Works, the Contractor shall provide whatever
is required by this person to exercise this responsibility and authority.

6.8
Contractor’s
Superintendence From the Commencement Date until the issue of the Performance Certificate,
the Contractor shall provide all necessary superintendence to plan, arrange,
direct, manage, inspect, test and monitor the execution of the Works.

Superintendence shall be given by a sufficient number of persons:

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(a) who are fluent in or have adequate knowledge of the language for
communications (defined in Sub-Clause 1.4 [Law and Language]); and
(b) who have adequate knowledge of the operations to be carried out
(including the methods and techniques required, the hazards likely to
be encountered and methods of preventing accidents),

for the satisfactory and safe execution of the Works.

6.9
Contractor’s Personnel The Contractor’s Personnel (including Key Personnel, if any) shall be
appropriately qualified, skilled, experienced and competent in their respective
trades or occupations.

The Engineer may require the Contractor to remove (or cause to be removed)
any person employed on the Site or Works, including the Contractor’s
Representative and Key Personnel (if any), who:

(a) persists in any misconduct or lack of care;

(b) carries out duties incompetently or negligently;
(c) fails to comply with any provision of the Contract;
(d) persists in any conduct which is prejudicial to safety, health, or the
protection of the environment;
(e) is found, based on reasonable evidence, to have engaged in corrupt,
fraudulent, collusive or coercive practice; or
(f) has been recruited from the Employer’s Personnel in breach of
Sub-Clause 6.3 [Recruitment of Persons].

48 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 If appropriate, the Contractor shall then promptly appoint (or cause to be

CONDITIONS
appointed) a suitable replacement. In the case of the replacement of the

GENERAL
Contractor’s Representative, Sub-Clause 4.3 [Contractor’s Representative]
shall apply. In the case of the replacement of Key Personnel (if any),
Sub-Clause 6.12 [Key Personnel] shall apply.

6.10
Contractor’s Records Unless otherwise proposed by the Contractor and agreed by the Engineer,

GUIDANCE
in each progress report under Sub-Clause 4.20 [Progress Reports], the
Contractor shall include records of:

(a) occupations and actual working hours of each class of Contractor’s

Personnel;
(b) the type and actual working hours of each of the Contractor’s
Equipment;

FORMS
(c) the types of Temporary Works used;
(d) the types of Plant installed in the Permanent Works; and
(e) the quantities and types of Materials used
for each work activity shown in the Programme, at each work location and
for each day of work.

6.11
Disorderly Conduct The Contractor shall at all times take all necessary precautions to prevent
any unlawful, riotous or disorderly conduct by or amongst the Contractor’s
Personnel, and to preserve peace and protection of persons and property
on and near the Site.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

6.12
Key Personnel If no Key Personnel are specified in the Employer’s Requirements this
Sub-Clause shall not apply.

The Contractor shall appoint the natural persons named in the Tender to the
positions of Key Personnel. If not so named, or if an appointed person fails
to act in the relevant position of Key Personnel, the Contractor shall submit
to the Engineer for consent the name and particulars of another person the
Contractor proposes to appoint to such position. If consent is withheld or
subsequently revoked, the Contractor shall similarly submit the name and
particulars of a suitable replacement for such position.

If the Engineer does not respond within 14 days after receiving any such
submission, by giving a Notice stating his/her objection to the appointment
of such person (or replacement) with reasons, the Engineer shall be deemed
to have given his/her consent.

The Contractor shall not, without the Engineer’s prior consent, revoke the
appointment of any of the Key Personnel or appoint a replacement (unless
the person is unable to act as a result of death, illness, disability or resignation,
in which case the appointment shall be deemed to have been revoked with
immediate effect and the appointment of a replacement shall be treated as
a temporary appointment until the Engineer gives his/her consent to this
replacement, or another replacement is appointed, under this Sub-Clause).

All Key Personnel shall be based at the Site (or, where Works are being
executed off the Site, at the location of the Works) for the whole time that the
Works are being executed. If any of the Key Personnel is to be temporarily
absent during execution of the Works, a suitable replacement shall be
temporarily appointed, subject to the Engineer’s prior consent.

General Conditions © FIDIC & ITA 2019

49
 All Key Personnel shall be fluent in the language for communications defined
CONDITIONS

in Sub-Clause 1.4 [Law and Language].

GENERAL

7.1
7
Plant, Materials and Workmanship
GUIDANCE

Manner
of Execution The Contractor shall carry out the manufacture, supply, installation, testing
and commissioning and/or repair of Plant, the production, manufacture,
supply and testing of Materials, and all other operations and activities during
the execution of the Works:

(a) in the manner (if any) specified in the Contract;

FORMS

(b) in a proper workmanlike and careful manner, in accordance with

recognised good practice; and
(c) with properly equipped facilities and non-hazardous Materials, except
as otherwise specified in the Contract.

7.2
Samples The Contractor shall submit the following samples of Materials, and relevant
information, to the Engineer for consent prior to using the Materials in or for
the Works:

(a) manufacturer’s standard samples of Materials and samples specified

in the Contract, all at the Contractor’s cost; and
(b) additional samples instructed by the Engineer as a Variation.
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Each sample shall be labelled as to origin and intended use in the Works.

7.3
Inspection The Employer’s Personnel shall, during all the normal working hours stated
in the Contract Data and at all other reasonable times:

(a) have full access to all parts of the Site and to all places from which
natural Materials are being obtained;
(b) during production, manufacture and construction (at the Site and
elsewhere), be entitled to:
(i) examine, inspect, measure and test (to the extent stated in the
Employer’s Requirements) the Materials, Plant and workmanship,
(ii) check the progress of manufacture of Plant and production and
manufacture of Materials, and
(iii) make records (including photographs and/or video recordings);
and
(c) carry out other duties and inspections, as specified in these Conditions
and the Employer’s Requirements.

The Contractor shall give the Employer’s Personnel full opportunity to carry
out these activities, including providing safe access, facilities, permissions
and safety equipment.

The Contractor shall give a Notice to the Engineer whenever any Materials,
Plant or work is ready for inspection, and before it is to be covered up, put
out of sight, or packaged for storage or transport. The Employer’s Personnel
shall then either carry out the examination, inspection, measurement or

50 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 testing without unreasonable delay, or the Engineer shall promptly give a

CONDITIONS
Notice to the Contractor that the Employer’s Personnel do not require to do

GENERAL
so. If the Engineer gives no such Notice and/or the Employer’s Personnel do
not attend at the time stated in the Contractor’s Notice (or such time as may
be agreed with the Contractor), the Contractor may proceed with covering
up, putting out of sight or packaging for storage or transport.

If the Contractor fails to give a Notice in accordance with this Sub-Clause,

GUIDANCE
the Contractor shall, if and when required by the Engineer, uncover the work
and thereafter reinstate and make good, all at the Contractor’s risk and cost.

7.4
Testing by the Contractor This Sub-Clause shall apply to all tests specified in the Contract, other than
the Tests after Completion (if any).

FORMS
The Contractor shall provide all apparatus, assistance, documents and
other information, temporary supplies of electricity and water, equipment,
fuel, consumables, instruments, labour, materials, and suitably qualified,
experienced and competent staff, as are necessary to carry out the specified
tests efficiently and properly. All apparatus, equipment and instruments shall
be calibrated in accordance with the standards specified in the Employer’s
Requirements or defined by applicable Laws and, if requested by the
Engineer, the Contractor shall submit calibration certificates before carrying
out testing.

The Contractor shall give a Notice to the Engineer, stating the time and place
for the specified testing of any Plant, Materials and other parts of the Works.
This Notice shall be given in reasonable time, having regard to the location
of the testing, for the Employer’s Personnel to attend.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

The Engineer may, under Clause 13 [Variations and Adjustments], vary the
location or timing or details of specified tests, or instruct the Contractor
to carry out additional tests. If these varied or additional tests show that
the tested Plant, Materials or workmanship is not in accordance with the
Contract, the Cost and any delay incurred in carrying out this Variation shall
be borne by the Contractor.

The Engineer shall give a Notice to the Contractor of not less than 72 hours
of his/her intention to attend the tests. If the Engineer does not attend at
the time and place stated in the Contractor’s Notice under this Sub-Clause,
the Contractor may proceed with the tests, unless otherwise instructed
by the Engineer, which tests shall then be deemed to have been made in
the Engineer’s presence. If the Contractor suffers delay and/or incurs Cost
from complying with any such instruction or as a result of a delay for which
the Employer is responsible, the Contractor shall be entitled subject to
Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment
of Cost Plus Profit.

If the Contractor causes any delay to specified tests (including varied or

additional tests) and such delay causes the Employer to incur costs, the
Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or EOT] to payment of these costs by the Contractor.

The Contractor shall promptly forward to the Engineer duly certified reports
of the tests. When the specified tests have been passed, the Engineer shall
endorse the Contractor’s test certificate, or issue a test certificate to the
Contractor, to that effect. If the Engineer has not attended the tests, he/she
shall be deemed to have accepted the readings as accurate.

General Conditions © FIDIC & ITA 2019

51
 Sub-Clause 7.5 [Defects and Rejection] shall apply in the event that any
CONDITIONS

Plant, Materials and other parts of the Works fails to pass a specified test.
GENERAL

7.5
Defects and Rejection If, as a result of an examination, inspection, measurement or testing, any
Plant, Materials, design or workmanship is found to be defective or otherwise
not in accordance with the Contract, the Engineer shall give a Notice to the
Contractor describing the item of Plant, Materials, design or workmanship
GUIDANCE

that has been found to be defective. The Contractor shall then promptly
prepare and submit a proposal for necessary remedial work.

The Engineer may Review this proposal, and may give a Notice to the
Contractor stating the extent to which the proposed work, if carried out,
would not result in the Plant, Materials, design or workmanship complying
with the Contract. After receiving such a Notice the Contractor shall
FORMS

promptly submit a revised proposal to the Engineer. If the Engineer gives

no such Notice within 14 days after receiving the Contractor’s proposal (or
revised proposal), the Engineer shall be deemed to have given a Notice of
No-objection.

If the Contractor fails to promptly submit a proposal (or revised proposal) for
remedial work, or fails to carry out the proposed remedial work to which the
Engineer has given (or is deemed to have given) a Notice of No-objection,
the Engineer may:

(a) instruct the Contractor under sub-paragraph (a) and/or (b) of

Sub-Clause 7.6 [Remedial Work]; or
(b) reject the design, Plant, Materials or workmanship by giving a Notice
to the Contractor, with reasons, in which case sub-paragraph (a) of
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Sub-Clause 11.4 [Failure to Remedy Defects] shall apply.

After remedying defects in any Plant, Materials, design or workmanship,

if the Engineer requires any such items to be retested, the tests shall be
repeated in accordance with Sub-Clause 7.4 [Testing by the Contractor]
at the Contractor’s risk and cost. If the rejection and retesting cause the
Employer to incur additional costs, the Employer shall be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these
costs by the Contractor.

7.6
Remedial Work In addition to any previous examination, inspection, measurement or testing,
or test certificate or Notice of No-objection by the Engineer, at any time
before the issue of the Taking-Over Certificate for the Works the Engineer
may instruct the Contractor to:

(a) repair or remedy (if necessary, off the Site), or remove from the Site
and replace any Plant or Materials which are not in accordance with
the Contract;
(b) repair or remedy, or remove and re-execute, any other work which is
not in accordance with the Contract; and
(c) carry out any remedial work which is urgently required for the safety
of the Works, whether because of an accident, unforeseeable event
or otherwise.

The Contractor shall comply with the instruction as soon as practicable and
not later than the time (if any) specified in the instruction, or immediately if
urgency is specified under sub-paragraph (c) above.

52 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The Contractor shall bear the cost of all remedial work required under this

CONDITIONS
Sub-Clause, except to the extent that any work under sub-paragraph (c)

GENERAL
above is attributable to:

(i) any act by the Employer or the Employer’s Personnel. If the Contractor
suffers delay and/or incurs Cost in carrying out such work, the Contractor
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EOT] to EOT and/or payment of such Cost Plus Profit; or

GUIDANCE
(ii) an Exceptional Event, in which case Sub-Clause 18.4 [Consequences
of an Exceptional Event] shall apply.

If the Contractor fails to comply with the Engineer’s instruction, the Employer
may (at the Employer’s sole discretion) employ and pay other persons to
carry out the work. Except to the extent that the Contractor would have
been entitled to payment for work under this Sub-Clause, the Employer

FORMS
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EOT] to payment by the Contractor of all costs arising from this failure. This
entitlement shall be without prejudice to any other rights the Employer may
have, under the Contract or otherwise.

7.7
Ownership of Plant
and Materials Each item of Plant and Materials shall, to the extent consistent with the
mandatory requirements of the Laws of the Country, become the property of
the Employer at whichever is the earlier of the following times, free from liens
and other encumbrances:

(a) when it is delivered to the Site;

(b) when the Contractor is paid the value of the Plant and Materials under
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Sub-Clause 8.11 [Payment for Plant and Materials after Employer’s

Suspension]; or
(c) when the Contractor is paid the amount determined for the Plant and
Materials under Sub-Clause 14.5 [Plant and Materials intended for the
Works].

7.8
Royalties Unless otherwise stated in the Employer’s Requirements, the Contractor
shall pay all royalties, rents and other payments for:

(a) natural Materials obtained from outside the Site; and

(b) the disposal of material from demolitions and excavations and of other
surplus material (whether natural or man-made), except to the extent
that disposal areas within the Site are specified in the Employer’s
Requirements.

8.1
8
Commencement, Delays and Suspension

Commencement of Works The Engineer shall give a Notice to the Contractor stating the Commencement
Date, not less than 14 days before the Commencement Date. Unless
otherwise stated in the Particular Conditions, the Commencement Date shall
be within 42 days after the Contractor receives the Letter of Acceptance.

The Contractor shall commence the execution of the Works on, or as soon
as is reasonably practicable after, the Commencement Date and shall then
proceed with the Works with due expedition and without delay.

General Conditions © FIDIC & ITA 2019

53
 8.2
Time for Completion
CONDITIONS

The Contractor shall complete the whole of the Works, each Section (if any),
GENERAL

and each Milestone, within the applicable Time for Completion for the Works,
Section and Milestone (as the case may be), including completion of all work
which is stated in the Contract as being required for the Works or Sections to be
considered to be completed for the purposes of taking over under Sub-Clause
10.1 [Taking Over the Works and Sections]. The Time for Completion shall be
subject to adjustments according to Sub-Clause 13.8.3 [Adjustment of Time for
GUIDANCE

Completion], if any.

8.2.1 The Completion Schedule

The Completion Schedule shall demonstrate the Time for Completion of the
Milestones, based on the sequential logical links between the Milestones with
Times for Completion that are based on and consistent with the production
FORMS

rates provided by the Contractor in the Baseline Schedule for the Excavation
and Lining Works, and with the Times for Completion of the other Works.

8.2.2 The Schedule of Baselines

The Schedule of Baselines sets out the anticipated activities or items of work for
the Excavation and Lining Works and their corresponding quantities consistent
with the conditions described in the GBR, corresponding to each drive and/
or other area of work within the Sections and/or Milestones in the Completion
Schedule.

The production rates or durations entered by the Contractor against each

activity or item of work are deemed to allow for the time the Contractor requires
to complete that activity or item of work, taking into account without limitation,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

economies of scale, learning curve, availability and deployment of resources,

safety requirements, working space, accessibility, and working time.

The quantities shall be measured in accordance with Sub-Clause 13.8.1

[Responsibility for Measurement] and the Time for Completion of the relevant
Milestone shall be adjusted accordingly.

8.3
Programme The Contractor shall submit an initial programme for the execution of the
Works to the Engineer within 28 days after receiving the Notice under
Sub-Clause 8.1 [Commencement of Works]. This initial programme
shall be consistent with the Completion Schedule and with the activities,
quantities and production rates stated in the Schedule of Baselines. This
programme shall be prepared to include the level of detail and using the
programming software stated in the Employer’s Requirements (if not stated,
the programming software acceptable to the Engineer). The Contractor
shall also submit a revised programme which accurately reflects the actual
progress of the Works, whenever any programme ceases to reflect actual
progress or is otherwise inconsistent with the Contractor’s obligations.

The initial programme and each revised programme shall be submitted to

the Engineer in one paper copy, one electronic copy and additional paper
copies (if any) as stated in the Contract Data, and shall include the level of
detail stated in the Employer’s Requirements and:

(a) the Commencement Date and the Time for Completion of the Works,
of each Section (if any) and any other Milestone;
(b) the date right of access to and possession of (each part of) the Site
is to be given to the Contractor in accordance with the time (or times)

54 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 stated in the Contract Data. If not so stated, the dates the Contractor

CONDITIONS
requires the Employer to give right of access to and possession of

GENERAL
(each part of) the Site;
(c) the order in which the Contractor intends to carry out the Works,
including the anticipated timing of each stage of design, preparation
and submission of Contractor’s Documents, procurement, manufacture,
inspection, delivery to Site, construction, erection, installation, work to be
undertaken by any nominated Subcontractor (as defined in Clause 4.5

GUIDANCE
[Nominated Subcontractors]), testing, commissioning and trial operation;
(d) the Review periods under Sub-Clause 5.2.2 [Review by Engineer],
and periods for Review for any other submissions specified in the
Employer’s Requirements or required under these Conditions;
(e) the sequence and timing of inspections and tests specified in, or
required by, the Contract;

FORMS
(f) for a revised programme: the sequence and timing of the remedial
work (if any) to which the Engineer has given a Notice of No-objection
under Sub-Clause 7.5 [Defects and Rejection] and/or the remedial
work (if any) instructed under Sub-Clause 7.6 [Remedial Work];
(g) all activities (to the level of detail specified in the Employer’s
Requirements), logically linked and showing the earliest and latest
start and finish dates for each activity, the float (if any), and the critical
path(s);
(h) the dates of all locally recognised days of rest and holiday periods (if
any);
(i) all key delivery dates of Plant and Materials;
(j) for a revised programme and for each activity: the actual progress
to date, any delay to such progress and the effects of such delay on
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other activities (if any); and

(k) a supporting report which includes:
(i) a description of all the major stages of the execution of the
Works;
(ii) a general description of the methods which the Contractor
intends to adopt in the execution of the Works;
(iii) details showing the Contractor’s reasonable estimate of the
number of each class of Contractor’s Personnel, and of each
type of Contractor’s Equipment, required on the Site, for each
major stage of the execution of the Works;
(iv) if a revised programme, identification of any significant change(s)
to the previous programme submitted by the Contractor; and
(v) the Contractor’s proposals to overcome the effects of any delay(s)
on the progress of the Works.

The Engineer shall Review the initial programme and each revised programme
submitted by the Contractor and may give a Notice to the Contractor stating
the extent to which it does not comply with the Contract or ceases to reflect
actual progress or is otherwise inconsistent with the Contractor’s obligations.
If the Engineer gives no such Notice:

- within 21 days after receiving the initial programme; or

- within 14 days after receiving a revised programme,
the Engineer shall be deemed to have given a Notice of No-objection and
the initial programme or revised programme (as the case may be) shall be
the Programme.

After the Engineer has (or is deemed to have) given a Notice of No-Objection
to the Contractor’s initial programme, the Programme shall be taken to
General Conditions © FIDIC & ITA 2019
55
 have superseded the Completion Schedule and every reference in these
CONDITIONS

conditions to “the Completion Schedule” shall be read as a reference to “the

GENERAL

Programme”.

The Contractor shall proceed in accordance with the Programme, subject to the
Contractor’s other obligations under the Contract. The Employer’s Personnel
shall be entitled to rely on the Programme when planning their activities.
GUIDANCE

Nothing in any programme, the Programme or any supporting report shall be

taken as, or relieve the Contractor from any obligation to give, a Notice under
the Contract.

If, at any time, the Engineer gives a Notice to the Contractor that the
Programme fails (to the extent stated) to comply with the Contract or ceases
to reflect actual progress or is otherwise inconsistent with the Contractor’s
FORMS

obligations, the Contractor shall within 14 days after receiving this Notice
submit a revised programme to the Engineer in accordance with this
Sub-Clause.

8.4
Advance Warning Each Party shall advise the other and the Engineer, and the Engineer shall
advise the Parties, in advance of any known or probable future events or
circumstances which may:

(a) adversely affect the work of the Contractor’s Personnel;

(b) adversely affect the performance of the Works when completed;
(c) increase the Contract Price; and/or
(d) delay the execution of the Works or a Section or any Milestone.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

The Engineer may request the Contractor to submit a proposal under

Sub-Clause 13.3.2 [Variation by Request for Proposal] to avoid or minimise
the effects of such event(s) or circumstance(s).

8.5
Extension of Time
for Completion The Contractor shall be entitled subject to Sub-Clause 20.2 [Claims
For Payment and/or EOT] to Extension of Time if and to the extent that
completion for the purposes of Sub-Clause 10.1 [Taking Over the Works and
Sections] is or will be delayed by any of the following causes:

(a) a Variation (except that there shall be no requirement to comply with

Sub-Clause 20.2 [Claims For Payment and/or EOT]);
(b) a cause of delay giving an entitlement to EOT under a Sub-Clause of
these Conditions;
(c) exceptionally adverse climatic conditions, which for the purpose
of these Conditions shall mean adverse climatic conditions at the
Site which are Unforeseeable having regard to climatic data made
available by the Employer under Sub-Clause 2.5 [Site Data and Items
of Reference] and/or climatic data published in the Country for the
geographical location of the Site;
(d) Unforeseeable shortages in the availability of personnel or Goods
(or Employer-Supplied Materials, if any) caused by epidemic or
governmental actions; or
(e) any delay, impediment or prevention caused by or attributable to
the Employer, the Employer’s Personnel, or the Employer’s other
contractors on the Site.

56 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 When determining each EOT under Sub-Clause 20.2 [Claims For Payment

CONDITIONS
and/or EOT], the Engineer shall review previous determinations under

GENERAL
Sub-Clause 3.7 [Agreement or Determination] and may increase, but shall
not decrease, the total EOT.

If a delay caused by a matter which is the Employer’s responsibility

is concurrent with a delay caused by a matter which is the Contractor’s
responsibility, the Contractor’s entitlement to EOT shall be assessed in

GUIDANCE
accordance with the rules and procedures stated in the Special Provisions (if
not stated, as appropriate taking due regard of all relevant circumstances).

Notwithstanding the foregoing provisions of this Sub-Clause, any adjustment
to the Time for Completion arising out of the measurement of Excavation
and Lining Works shall be determined pursuant to Sub-Clause 13.8
[Measurement of Excavation and Lining Works and Adjustment of Time for

FORMS
Completion and Contract Price] only.

8.6
Delays Caused
by Authorities If:

(a) the Contractor has diligently followed the procedures laid down by the
relevant legally constituted public authorities or private utility entities in
the Country;
(b) these authorities or entities delay or disrupt the Contractor’s work;
and
(c) the delay or disruption was Unforeseeable,
then this delay or disruption will be considered as a cause of delay under
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

sub-paragraph (b) of Sub-Clause 8.5 [Extension of Time for Completion].

8.7
Rate of Progress If, at any time:

(a) actual progress is too slow to complete the Works, a Section, and/or
any Milestone within the relevant Time for Completion; and/or
(b) progress has fallen (or will fall) behind the Programme (or the initial
programme if it has not yet become the Programme) under Sub-Clause
8.3 [Programme],
other than as a result of a cause listed in Sub-Clause 8.5 [Extension of Time
for Completion], then the Engineer may instruct the Contractor to submit,
under Sub-Clause 8.3 [Programme], a revised programme describing
the revised methods which the Contractor proposes to adopt in order to
expedite progress and complete the Works, a Section and/or any Milestone
within the relevant Time for Completion.

Unless the Engineer gives a Notice to the Contractor stating otherwise, the
Contractor shall adopt these revised methods, which may require increases
in the working hours and/or in the numbers of Contractor’s Personnel and/or
the Goods, at the Contractor’s risk and cost. If these revised methods cause
the Employer to incur additional costs, the Employer shall be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these
costs by the Contractor, in addition to Delay Damages (if any).

Sub-Clause 13.3.1 [Variation by Instruction] shall apply to revised methods,

including acceleration measures, instructed by the Engineer to reduce
delays resulting from causes listed under Sub-Clause 8.5 [Extension of Time
for Completion].

General Conditions © FIDIC & ITA 2019

57
 8.8
Delay Damages
CONDITIONS

If the Contractor fails to comply with Sub-Clause 8.2 [Time for Completion],
GENERAL

the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For

Payment and/or EOT] to payment of Delay Damages by the Contractor for
this default. Delay Damages shall be the amount stated in the Contract Data,
which shall be paid for every day which shall elapse between the relevant
Time for Completion and the relevant Date of Completion of the Works or
Section or any Milestone. The total amount due under this Sub-Clause shall
GUIDANCE

not exceed the maximum amount of Delay Damages (if any) stated in the
Contract Data.

These Delay Damages shall be the only damages due from the Contractor for
the Contractor’s failure to comply with Sub-Clause 8.2 [Time for Completion],
other than in the event of termination under Sub-Clause 15.2 [Termination for
Contractor’s Default] before completion of the Works. These Delay Damages
FORMS

shall not relieve the Contractor from the obligation to complete the Works,
or from any other duties, obligations or responsibilities which the Contractor
may have under or in connection with the Contract.

This Sub-Clause shall not limit the Contractor’s liability for Delay Damages
in any case of fraud, gross negligence, deliberate default or reckless
misconduct by the Contractor.

8.9
Employer’s Suspension The Engineer may at any time instruct the Contractor to suspend progress
of part or all of the Works, which instruction shall state the date and cause
of the suspension.

During such suspension, the Contractor shall protect, store and secure such part
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

or all of the Works and the Contractor’s Key Equipment against any deterioration,
loss or damage.

To the extent that the cause of such suspension is the responsibility of the
Contractor, Sub-Clauses 8.10 [Consequences of Employer’s Suspension],
8.11 [Payment for Plant and Materials after Employer’s Suspension] and
8.12 [Prolonged Suspension] shall not apply.

8.10
Consequences of
Employer’s Suspension If the Contractor suffers delay and/or incurs Cost from complying with an
Engineer’s instruction under Sub-Clause 8.9 [Employer’s Suspension] and/
or from resuming the work under Sub-Clause 8.13 [Resumption of Work],
the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit.

The Contractor shall not be entitled to EOT, or to payment of the Cost

incurred, in making good:

(a) the consequences of the Contractor’s faulty or defective design,

workmanship, Plant or Materials; and/or
(b) any deterioration, loss or damage caused by the Contractor’s failure
to protect, store or secure in accordance with Sub-Clause 8.9
[Employer’s Suspension].

58 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 8.11

CONDITIONS
Payment for Plant and Materials

GENERAL
after Employer’s Suspension The Contractor shall be entitled to payment of the value (as at the date of
suspension instructed under Sub-Clause 8.9 [Employer’s Suspension]) of
Plant and/or 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 28 days and

GUIDANCE
(i) the Plant and/or Materials were scheduled, in accordance with
the Programme, to have been completed and ready for delivery
to the Site during the suspension period; and
(ii) the Contractor provides the Engineer with reasonable evidence
that the Plant and/or Materials comply with the Contract; and
(b) the Contractor has marked the Plant and/or Materials as the
Employer’s property in accordance with the Engineer’s instructions.

FORMS
8.12
Prolonged Suspension If the suspension under Sub-Clause 8.9 [Employer’s Suspension] has
continued for more than 84 days, the Contractor may give a Notice to the
Engineer requesting permission to proceed.

If the Engineer does not give a Notice under Sub-Clause 8.13 [Resumption
of Work] within 28 days after receiving the Contractor’s Notice under this
Sub-Clause, the Contractor may either:

(a) agree to a further suspension, in which case the Parties may agree
the EOT and/or Cost Plus Profit (if the Contractor incurs Cost), and/or
payment for suspended Plant and/or Materials, arising from the total
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

period of suspension;
or (and if the Parties fail to reach agreement under this sub-paragraph (a))

(b) after giving a (second) Notice to the Engineer, treat the suspension
as an omission of the affected part of the Works (as if it had been
instructed under Sub-Clause 13.3.1 [Variation by Instruction])
with immediate effect including release from any further obligation
to protect, store and secure under Sub-Clause 8.9 [Employer’s
Suspension]. If the suspension affects the whole of the Works, the
Contractor may give a Notice of termination under Sub-Clause 16.2
[Termination by Contractor].

8.13
Resumption of Work The Contractor shall resume work as soon as practicable after receiving a
Notice from the Engineer to proceed with the suspended work.

At the time stated in this Notice (if not stated, immediately after the Contractor
receives this Notice), the Contractor and the Engineer shall jointly examine
the Works and the Plant and Materials affected by the suspension. The
Engineer shall record any deterioration, loss, damage or defect in the Works
or Plant or Materials which has occurred during the suspension and shall
provide this record to the Contractor. The Contractor shall promptly make
good all such deterioration, loss, damage or defect so that the Works, when
completed, shall comply with the Contract.

General Conditions © FIDIC & ITA 2019

59
 9
CONDITIONS

Tests on Completion
GENERAL

9.1
Contractor’s Obligations The Contractor shall carry out the Tests on Completion in accordance with
this Clause and Sub-Clause 7.4 [Testing by the Contractor], after submitting
the documents under Sub-Clause 5.6 [As-Built Records] and Sub-Clause
5.7 [Operation and Maintenance Manuals].
GUIDANCE

The Contractor shall submit to the Engineer, not less than 42 days before
the date the Contractor intends to commence the Tests on Completion,
a detailed test programme showing the intended timing and resources
required for these tests.

The Engineer may Review the proposed test programme and may give a Notice
FORMS

to the Contractor stating the extent to which it does not comply with the Contract.
Within 14 days after receiving this Notice, the Contractor shall revise the test
programme to rectify such non-compliance. If the Engineer gives no such Notice
within 14 days after receiving the test programme (or revised test programme), the
Engineer shall be deemed to have given a Notice of No-objection. The Contractor
shall not commence the Tests on Completion until a Notice of No-objection is
given (or is deemed to have been given) by the Engineer.

In addition to any date(s) shown in the test programme, the Contractor shall
give a Notice to the Engineer, of not less than 21 days, of the date after which
the Contractor will be ready to carry out each of the Tests on Completion.
The Contractor shall commence the Tests on Completion within 14 days
after this date, or on such day or days as the Engineer shall instruct, and
shall proceed in accordance with the Contractor’s test programme to which
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Engineer has given (or is deemed to have given) a Notice of No-objection.

Unless otherwise stated in the Employer’s Requirements, the Tests on

Completion shall be carried out in stages in the following sequence:

(a) pre-commissioning tests (on or off the Site, as appropriate), which shall
include the appropriate inspections and (“dry” or “cold”) functional
tests to demonstrate that each item of the Works or Section can
safely undertake the next stage under sub-paragraph (b) below;
(b) commissioning tests, which shall include the operational tests
specified in the Employer’s Requirements to demonstrate that the
Works or Section can be operated safely and as specified in the
Employer’s Requirements, under all available operating conditions;
and
(c) trial operation (to the extent possible under available operating
conditions), which shall demonstrate that the Works or Section
perform reliably and in accordance with the Contract.

The tests of each stage described in sub-paragraphs (b) and (c) above shall not
be commenced until the Works or Section have passed the previous stage.

During trial operation, when the Works or Section (as the case may be) are
operating under stable conditions, the Contractor shall give a Notice to the
Engineer that they are ready for any other Tests on Completion, including
performance tests. Performance tests shall be carried out to demonstrate
whether the Works or Section comply with the performance criteria specified in
the Employer’s Requirements and with the Schedule of Performance Guarantees.

Trial operation, including performance testing, shall not constitute a taking

over under Clause 10 [Employer’s Taking Over].

60 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Any product produced by, and any revenue or other benefit resulting from,

CONDITIONS
trial operation under this Sub-Clause shall be the property of the Employer.

GENERAL
As soon as the Works or Section have, in the Contractor’s opinion, passed
each stage of the Tests on Completion described in sub-paragraphs (a) to
(c) above, the Contractor shall submit a certified report of the results of these
tests to the Engineer. The Engineer shall Review each such report and may
give a Notice to the Contractor stating the extent to which the results of the

GUIDANCE
tests do not comply with the Contract. If the Engineer does not give such
a Notice within 14 days after receiving the results of the tests, the Engineer
shall be deemed to have given a Notice of No-objection.

In considering the results of the Tests on Completion, the Engineer shall

make allowances for the effect of any use of (any part of) the Works by the
Employer on the performance or other characteristics of the Works.

FORMS
9.2
Delayed Tests If the Contractor has given a Notice under Sub-Clause 9.1 [Contractor’s
Obligations] that the Works or Section (as the case may be) are ready for
Tests on Completion, and these tests are unduly delayed by the Employer’s
Personnel or by a cause for which the Employer is responsible, Sub-Clause
10.3 [Interference with Tests on Completion] shall apply.

If the Tests on Completion are unduly delayed by the Contractor, the Engineer
may by giving a Notice to the Contractor require the Contractor to carry
out the tests within 21 days after receiving the Notice. The Contractor shall
carry out the tests on such day or days within this period of 21 days as the
Contractor may fix, for which the Contractor shall give a prior Notice to the
Engineer of not less than 7 days.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If the Contractor fails to carry out the Tests on Completion within this period
of 21 days:

(a) after a second Notice is given by the Engineer to the Contractor, the
Employer’s Personnel may proceed with the tests;
(b) the Contractor may attend and witness these tests;
(c) within 28 days of these tests being completed, the Engineer shall
send a copy of the test results to the Contractor; and
(d) if the Employer incurs additional costs as a result of such testing,
the Employer shall be entitled subject to Sub-Clause 20.2 [Claims
For Payment and/or EOT] to payment by the Contractor of the costs
reasonably incurred.

Whether or not the Contractor attends, these Tests on Completion shall be

deemed to have been carried out in the presence of the Contractor and the
results of these tests shall be accepted as accurate.

9.3
Retesting If the Works, or a Section, fail to pass the Tests on Completion, Sub-Clause
7.5 [Defects and Rejection] shall apply. The Engineer or the Contractor may
require these failed tests, and the Tests on Completion on any related work,
to be repeated under the same terms and conditions. Such repeated tests
shall be treated as Tests on Completion for the purposes of this Clause.

9.4
Failure to Pass Tests
on Completion If the Works, or a Section, fail to pass the Tests on Completion repeated
under Sub-Clause 9.3 [Retesting], the Engineer shall be entitled to:
General Conditions © FIDIC & ITA 2019
61
 (a) order further repetition of Tests on Completion under Sub-Clause 9.3
CONDITIONS

[Retesting];
GENERAL

(b) reject the Works if the effect of the failure is to deprive the Employer
of substantially the whole benefit of the Works, in which event
the Employer shall have the same remedies as are provided in
sub-paragraph (d) of Sub-Clause 11.4 [Failure to Remedy Defects];
(c) reject the Section if the effect of the failure is that the Section cannot
be used for its intended purpose(s) under the Contract, in which
GUIDANCE

event the Employer shall have the same remedy as is provided in

sub-paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects]; or
(d) issue a Taking-Over Certificate, if the Employer so requests.

In the event of sub-paragraph (d) above, the Contractor shall then proceed in
accordance with all other obligations under the Contract, and the Employer
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
FORMS

EOT] to payment by the Contractor or a reduction in the Contract Price as

described under sub-paragraphs (b)(i) or (b)(ii) of Sub-Clause 11.4 [Failure to
Remedy Defects], respectively. This entitlement shall be without prejudice to
any other rights the Employer may have, under the Contract or otherwise.

10.1
10
Employer’s Taking Over

Taking Over the

Works and Sections Except as stated in Sub-Clause 9.4 [Failure to Pass Tests on Completion],
Sub-Clause 10.2 [Taking Over Parts] and Sub-Clause 10.3 [Interference with
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Tests on Completion], the Works shall be taken over by the Employer when:

(a) the Works have been completed in accordance with the Contract,
including the passing of the Tests on Completion and except as
allowed in sub-paragraph (i) below;
(b) the Engineer has given (or is deemed to have given) a Notice of
No-objection to the as-built records submitted under sub-paragraph
(a) of Sub-Clause 5.6 [As-Built Records];
(c) the Engineer has given (or is deemed to have given) a Notice of
No-objection to the provisional O&M Manuals for the Works submitted
under Sub-Clause 5.7 [Operation and Maintenance Manuals];
(d) the Contractor has carried out the training (if any) as described under
Sub-Clause 5.5 [Training]; and
(e) a Taking-Over Certificate for the Works has been issued, or is deemed
to have been issued in accordance with this Sub-Clause.

The Contractor may apply for a Taking-Over Certificate by giving a Notice to

the Engineer not more than 14 days before the Works will, in the Contractor’s
opinion, be complete and ready for taking over. If the Works are divided into
Sections, the Contractor may similarly apply for a Taking-Over Certificate for
each Section.

If any Part of the Works is taken over under Sub-Clause 10.2 [Taking Over
Parts], the remaining Works or Section shall not be taken over until the
conditions described in sub-paragraphs (a) to (e) above have been fulfilled.

The Engineer shall, within 28 days after receiving the Contractor’s Notice, either:

(i) issue the Taking-Over Certificate to the Contractor, stating the date
on which the Works or Section were completed in accordance with

62 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 the Contract, except for any minor outstanding work and defects (as

CONDITIONS
listed in the Taking-Over Certificate) which will not substantially affect

GENERAL
the safe use of the Works or Section for their intended purpose (either
until or whilst this work is completed and these defects are remedied);
or
(ii) reject the application by giving a Notice to the Contractor, with
reasons. This Notice shall specify the work required to be done, the
defects required to be remedied and/or the documents required to

GUIDANCE
be submitted by the Contractor to enable the Taking-Over Certificate
to be issued. The Contractor shall then complete this work, remedy
such defects and/or submit such documents before giving a further
Notice under this Sub-Clause.

If the Engineer does not issue the Taking-Over Certificate or reject the
Contractor’s application within this period of 28 days, and if the conditions

FORMS
described in sub-paragraphs (a) to (d) above have been fulfilled, the Works
or Section shall be deemed to have been completed in accordance with the
Contract on the fourteenth day after the Engineer receives the Contractor’s
Notice of application and the Taking-Over Certificate shall be deemed to
have been issued.

10.2
Taking Over Parts The Engineer may, at the sole discretion of the Employer, issue a Taking-Over
Certificate for any part of the Permanent Works.

The Employer shall not use any part of the Works (other than as a temporary
measure, which is either specified in the Employer’s Requirements or with the
prior agreement of the Contractor) unless and until the Engineer has issued a
Taking-Over Certificate for this part. However, if the Employer does use any
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

part of the Works before the Taking-Over Certificate is issued the Contractor
shall give a Notice to the Engineer identifying such part and describing such
use, and:

(a) that Part shall be deemed to have been taken over by the Employer
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) the Engineer shall immediately issue a Taking-Over Certificate for this
Part, and any outstanding work to be completed (including Tests
on Completion) and/or defects to be remedied shall be listed in this
certificate.

After the Engineer has issued a Taking-Over Certificate for a Part, the
Contractor shall be given the earliest opportunity to take such steps as
may be necessary to carry out the outstanding work (including Tests on
Completion) and/or remedial work for any defects listed in the certificate.
The Contractor shall carry out these works as soon as practicable and, in
any case, before the expiry date of the relevant DNP.

If the Contractor incurs Cost as a result of the Employer taking over and/
or using a Part, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to payment of such Cost Plus Profit.

If the Engineer issues a Taking-Over Certificate for any part of the Works, or
if the Employer is deemed to have taken over a Part under sub-paragraph (a)
above, for any period of delay after the date under sub-paragraph (a) above,
the Delay Damages for completion of the remainder of the Works shall be
reduced. Similarly, the Delay Damages for the remainder of the Section (if

General Conditions © FIDIC & ITA 2019

63
 any) in which this Part is included shall also be reduced. This reduction
CONDITIONS

shall be calculated as the proportion which the value of the Part (except
GENERAL

the value of any outstanding works and/or defects to be remedied) bears

to the value of the Works or Section (as the case may be) as a whole. The
Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination]
to agree or determine this reduction (and, for the purpose of Sub-Clause
3.7.3 [Time limits], the date the Engineer receives the Contractor’s Notice
under this Sub-Clause shall be the date of commencement of the time limit
GUIDANCE

for agreement under Sub-Clause 3.7.3). The provisions of this paragraph

shall only apply to the daily rate of Delay Damages, and shall not affect the
maximum amount of these damages.

10.3
Interference with
Tests on Completion If the Contractor is prevented, for more than 14 days (either a continuous
FORMS

period, or multiple periods which total more than 14 days), from carrying
out the Tests on Completion by the Employer’s Personnel or by a cause for
which the Employer is responsible (including any performance test that is not
possible due to available operating conditions during trial operation):

(a) the Contractor shall give a Notice to the Engineer describing such
prevention;
(b) 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; and
(c) the Engineer shall immediately issue a Taking-Over Certificate for the
Works or Section (as the case may be).
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

After the Engineer has issued this Taking-Over Certificate, the Contractor
shall carry out the Tests on Completion as soon as practicable and, in any
case, before the expiry date of the DNP. The Engineer shall give a Notice to
the Contractor, of not less than 14 days, of the date after which the Contractor
may carry out each of the Tests on Completion. Thereafter, Sub-Clause 9.1
[Contractor’s Obligations] shall apply.

If the Contractor suffers delay and/or incurs Cost as a result of being

prevented from carrying out the Tests on Completion, the Contractor shall
be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to
EOT and/or payment of such Cost Plus Profit.

10.4
Surfaces Requiring
Reinstatement Except as otherwise stated in the Taking-Over Certificate, a certificate for a
Section or Part of the Works shall not be deemed to certify completion of
any ground or other surfaces requiring reinstatement.

11.1
11
Defects after Taking Over

Completion of Outstanding Work

and Remedying Defects In order that the Works and Contractor’s Documents, and each Section and/
or Part, shall be in the condition required by the Contract (fair wear and tear
excepted) by the expiry date of the relevant Defects Notification Period or as
soon as practicable thereafter, the Contractor shall:

64 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (a) complete any work which is outstanding on the relevant Date of

CONDITIONS
Completion, within the time(s) stated in the Taking-Over Certificate or

GENERAL
such other reasonable time as is instructed by the Engineer; and
(b) execute all work required to remedy defects or damage, of which a
Notice is given to the Contractor by (or on behalf of) the Employer on
or before the expiry date of the DNP for the Works or Section or Part
(as the case may be).

GUIDANCE
If a defect appears or damage occurs during the relevant DNP, a Notice shall
be given to the Contractor accordingly, by (or on behalf of) the Employer.
Promptly thereafter:

(i) the Contractor and the Employer’s Personnel shall jointly inspect the
defect or damage;
(ii) the Contractor shall then prepare and submit a proposal for necessary

FORMS
remedial work; and
(iii) the second, third and fourth paragraphs of Sub-Clause 7.5 [Defects
and Rejection] shall apply.

11.2
Cost of Remedying
Defects All work under sub-paragraph (b) of Sub-Clause 11.1 [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:

(a) the design of the Works, other than a part of the design for which the
Employer is responsible (if any);
(b) Plant, Materials or workmanship not being in accordance with the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Contract;
(c) improper operation or maintenance which was attributable to matters
for which the Contractor is responsible (under Sub-Clause 5.5
[Training], Sub-Clause 5.6 [As-Built Records] and/or Sub-Clause 5.7
[Operation and Maintenance Manuals] or otherwise); or
(d) failure by the Contractor to comply with any other obligation under the
Contract.

If the Contractor considers that the work is attributable to any other cause,
the Contractor shall promptly give a Notice to the Engineer and the Engineer
shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree
or determine the cause (and, for the purpose of Sub-Clause 3.7.3 [Time
limits], the date of this Notice shall be the date of commencement of the time
limit for agreement under Sub-Clause 3.7.3). If it is agreed or determined
that the work is attributable to a cause other than those listed above,
Sub-Clause 13.3.1 [Variation by Instruction] shall apply as if such work had
been instructed by the Engineer.

11.3
Extension of Defects
Notification Period The Employer shall be entitled to an extension of the DNP for the Works, or
a Section or a Part:

(a) if and to the extent that the Works, Section, Part or a major item of
Plant (as the case may be, and after taking over) cannot be used for
the intended purpose(s) by reason of a defect or damage which is
attributable to any of the matters under sub-paragraphs (a) to (d) of
Sub-Clause 11.2 [Cost of Remedying Defects]; and

General Conditions © FIDIC & ITA 2019

65
 (b) subject to Sub-Clause 20.2 [Claims For Payment and/or EOT].
CONDITIONS
GENERAL

However, a DNP shall not be extended by more than a period of two years
after the expiry of the DNP stated in the Contract Data.

If delivery and/or erection of Plant and/or Materials was suspended under

Sub-Clause 8.9 [Employer’s Suspension] (other than where the cause of such
suspension is the responsibility of the Contractor) or Sub-Clause 16.1 [Suspension
GUIDANCE

by Contractor], the Contractor’s obligations under this Clause shall not apply to any
defects or damage occurring more than two years after the DNP for the Works, of
which the Plant and/or Materials form part, would otherwise have expired.

11.4
Failure to Remedy Defects If the remedying of any defect or damage under Sub-Clause 11.1 [Completion
of Outstanding Works and Remedying Defects] is unduly delayed by the
FORMS

Contractor, a date may be fixed by (or on behalf of) the Employer, on or by

which the defect or damage is to be remedied. A Notice of this fixed date
shall be given to the Contractor by (or on behalf of) the Employer, which
Notice shall allow the Contractor reasonable time (taking due regard of all
relevant circumstances) to remedy the defect or damage.

If the Contractor fails to remedy the defect or damage by the date stated
in this Notice and this remedial work was to be executed at the cost of
the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the
Employer may (at the Employer’s sole discretion):

(a) carry out the work or have the work carried out by others (including
any retesting), in the manner required under the Contract and at the
Contractor’s cost, but the Contractor shall have no responsibility for
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

this work. The Employer shall be entitled subject to Sub-Clause 20.2

[Claims For Payment and/or EOT] to payment by the Contractor of the
costs reasonably incurred by the Employer in remedying the defect or
damage;
(b) accept the damaged or defective work, in which case the Employer
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or EOT] to:
(i) payment of Performance Damages by the Contractor in full
satisfaction of this failure; or
(ii) if there is no Schedule of Performance Guarantees under the
Contract, or no applicable Performance Damages, a reduction
in the Contract Price. The reduction shall be in full satisfaction of
this failure only and shall be in the amount as shall be appropriate
to cover the reduced value to the Employer as a result of this
failure;
(c) require the Engineer to treat any part of the Works which cannot be
used for its intended purpose(s) under the Contract by reason of this
failure as an omission, as if such omission had been instructed under
Sub-Clause 13.3.1 [Variation by Instruction]; or
(d) terminate the Contract as a whole with immediate effect (and
Sub-Clause 15.2 [Termination for Contractor’s Default] shall not apply)
if the defect or damage deprives the Employer of substantially the
whole benefit of the Works. The Employer shall then be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to recover from
the Contractor all sums paid for the Works, plus financing charges
and any costs incurred in dismantling the same, clearing the Site and
returning Plant and Materials to the Contractor.

66 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The exercise of discretion by the Employer under sub-paragraph (c) or (d)

CONDITIONS
above shall be without prejudice to any other rights the Employer may have,

GENERAL
under the Contract or otherwise.

11.5
Remedying of Defective
Work off Site If, during the DNP, the Contractor considers that any defect or damage in
any Plant cannot be remedied expeditiously on the Site the Contractor shall

GUIDANCE
give a Notice, with reasons, to the Employer requesting consent to remove
the defective or damaged Plant off the Site for the purposes of repair. This
Notice shall clearly identify each item of defective or damaged Plant, and
shall give details of:

(a) the defect or damage to be repaired;

(b) the place to which defective or damaged Plant is to be taken for

FORMS
repair;
(c) the transportation to be used (and insurance cover for such
transportation);
(d) the proposed inspections and testing off the Site;
(e) the planned duration required before the repaired Plant shall be
returned to the Site; and
(f) the planned duration for reinstallation and retesting of the repaired
Plant (under Sub-Clause 7.4 [Testing by the Contractor] and/or
Clause 9 [Tests on Completion] if applicable).

The Contractor shall also provide any further details that the Employer may
reasonably require.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

When the Employer gives consent (which consent shall not relieve the
Contractor from any obligation or responsibility under this Clause), the
Contractor may remove from the Site such items of Plant as are defective
or damaged. As a condition of this consent, the Employer may require the
Contractor to increase the amount of the Performance Security by the full
replacement cost of the defective or damaged Plant.

11.6
Further Tests after
Remedying Defects Within 7 days of completion of the work of remedying of any defect or
damage, the Contractor shall give a Notice to the Engineer describing the
remedied Works, Section, Part and/or Plant and the proposed repeated tests
(under Clause 9 [Tests on Completion] or Clause 12 [Tests after Completion],
as applicable).

Within 7 days after receiving this Contractor’s Notice, the Engineer shall give
a Notice to the Contractor either:

(a) agreeing with such proposed testing; or

(b) instructing the repeated tests that are necessary to demonstrate
that the remedied Works, Section, Part and/or Plant comply with the
Contract.

If the Contractor fails to give such a Notice within the 7 days, the Engineer
may give a Notice to the Contractor, within 14 days after the defect or
damage is remedied, instructing the repeated tests that are necessary to
demonstrate that the remedied Works, Section, Part and/or Plant comply
with the Contract.

General Conditions © FIDIC & ITA 2019

67
 All repeated tests under this Sub-Clause shall be carried out in accordance
CONDITIONS

with the terms applicable to the previous tests, except that they shall be
GENERAL

carried out at the risk and cost of the Party liable, under Sub-Clause 11.2
[Cost of Remedying Defects], for the cost of the remedial work.

11.7
Right of Access
after Taking Over Until the date 28 days after issue of the Performance Certificate, the
GUIDANCE

Contractor shall have the right of access to all parts of the Works and to
records of the operation, maintenance and performance of the Works,
except as may be inconsistent with the Employer’s reasonable security
restrictions.

Whenever the Contractor intends to access any part of the Works or such
records during the relevant DNP:
FORMS

(a) the Contractor shall request access by giving a Notice to the Employer,
describing the parts of the Works and/or records to be accessed,
the reasons for such access, and the Contractor’s preferred date
for access. This Notice shall be given in reasonable time in advance
of the preferred date for access, taking due regard of all relevant
circumstances including the Employer’s security restrictions; and
(b) within 7 days after receiving the Contractor’s Notice, the Employer
shall give a Notice to the Contractor either:
(i) stating the Employer’s consent to the Contractor’s request; or
(ii) proposing reasonable alternative date(s), with reasons. If the
Employer fails to give this Notice within the 7 days, the Employer
shall be deemed to have given consent to the Contractor’s
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

access on the preferred date stated in the Contractor’s Notice.

If the Contractor incurs additional Cost as a result of any unreasonable delay

by the Employer in permitting access to the Works or such records by the
Contractor, the Contractor shall be entitled subject to Sub-Clause 20.2
[Claims For Payment and/or EOT] to payment of any such Cost Plus Profit.

11.8
Contractor to Search The Contractor shall, if instructed by the Engineer, search for the cause of
any defect, under the direction of the Engineer. The Contractor shall carry
out the search on the date(s) stated in the Engineer’s instruction or other
date(s) agreed with the Engineer.

Unless the defect is to be remedied at the cost of the Contractor under

Sub-Clause 11.2 [Cost of Remedying Defects], the Contractor shall be
entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to
payment of the Cost Plus Profit of the search.

If the Contractor fails to carry out the search in accordance with this
Sub-Clause, the search may be carried out by the Employer’s Personnel.
The Contractor shall be given a Notice of the date when such a search will
be carried out and the Contractor may attend at the Contractor’s own cost. If
the defect is to be remedied at the cost of the Contractor under Sub-Clause
11.2 [Cost of Remedying Defects], the Employer shall be entitled subject
to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the
Contractor of the costs of the search reasonably incurred by the Employer.

68 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 11.9

CONDITIONS
Performance Certificate Performance of the Contractor’s obligations under the Contract shall not

GENERAL
be considered to have been completed until the Engineer has issued the
Performance Certificate to the Contractor, stating the date on which the
Contractor fulfilled the Contractor’s obligations under the Contract.

The Engineer shall issue the Performance Certificate to the Contractor (with
a copy to the Employer and to the DAAB) within 28 days after the latest of

GUIDANCE
the expiry dates of the Defects Notification Periods, or as soon thereafter as
the Contractor has:

(a) supplied all the Contractor’s Documents, and the Engineer has
given (or is deemed to have given) a Notice of No-objection to the
as-built records under sub-paragraph (b) of Sub-Clause 5.6 [As-Built
Records]; and

FORMS
(b) completed and tested all the Works (including remedying any defects)
in accordance with the Contract.

If the Engineer fails to issue the Performance Certificate within this period of
28 days, the Performance Certificate shall be deemed to have been issued
on the date 28 days after the date on which it should have been issued, as
required by this Sub-Clause.

Only the Performance Certificate shall be deemed to constitute acceptance

of the Works.

11.10
Unfulfilled Obligations After the issue of the Performance Certificate, each Party shall remain liable
for the fulfilment of any obligation which remains unperformed at that time.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

For the purposes of determining the nature and extent of unperformed

obligations, the Contract shall be deemed to remain in force.

However in relation to Plant, the Contractor shall not be liable for any defects
or damage occurring more than two years after expiry of the DNP for the
Plant except if prohibited by law or in any case of fraud, gross negligence,
deliberate default or reckless misconduct.

11.11
Clearance of Site Promptly after the issue of the Performance Certificate, the Contractor shall:

(a) remove any remaining Contractor’s Equipment, surplus material,

wreckage, rubbish and Temporary Works from the Site;
(b) reinstate all parts of the Site which were affected by the Contractor’s
activities during the execution of the Works and are not occupied by
the Permanent Works; and
(c) leave the Site and the Works in the condition stated in the Employer’s
Requirements (if not stated, in a clean and safe condition).

If the Contractor fails to comply with sub-paragraphs (a), (b) and/or (c) above
within 28 days after the issue of the Performance Certificate, the Employer
may sell (to the extent permitted by applicable Laws) or otherwise dispose
of any remaining items and/or may reinstate and clean the Site (as may be
necessary) at the Contractor’s cost.

The Employer shall be entitled subject to Sub-Clause 20.2 [Claims For

Payment and/or EOT] to payment by the Contractor of the costs reasonably
incurred in connection with, or attributable to, such sale or disposal and
reinstating and/or cleaning the Site, less an amount equal to the moneys
from the sale (if any).
General Conditions © FIDIC & ITA 2019
69
 12
CONDITIONS

Tests after Completion

GENERAL

12.1
Procedure for Tests
after Completion If Tests after Completion are specified in the Employer’s Requirements, this
Clause shall apply.
GUIDANCE

The Employer shall:

(a) provide all electricity, water, sewage (if applicable), equipment, fuel,
consumables, instruments, labour, materials, and suitably qualified,
experienced and competent staff, as are necessary to carry out the
Tests after Completion efficiently and properly; and
(b) carry out the Tests after Completion in accordance with:
FORMS

(i) the Employer’s Requirements,

(ii) the O&M Manuals to which the Engineer has given (or is deemed
to have given) a Notice of No-objection, under Sub-Clause 5.7
[Operation and Maintenance Manuals], and
(iii) such guidance as the Contractor may be required to give during
the course of these tests; and
in the presence of such Contractor’s Personnel as either Party may
reasonably request.

The timing of the Tests after Completion shall be as stated in the Employer’s
Requirements (if not stated, as soon as is reasonably practicable) after
the Works or Section (as the case may be) have been taken over under
Clause 10 [Employer’s Taking Over]. The Engineer shall give a Notice to the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Contractor, of not less than 21 days, of the date on which and place at which
the Tests after Completion will be carried out. This Notice shall also include a
test programme showing the estimated timing for each of such tests. Unless
otherwise agreed with the Contractor, these tests shall be carried out on this
date.

If the Contractor does not attend at the time and place stated in the Engineer’s
Notice (or otherwise agreed with the Contractor), the Employer may proceed
with the Tests after Completion, which shall be deemed to have been made
in the Contractor’s presence, and the Contractor shall be deemed to have
accepted the readings as accurate.

The results of the Tests after Completion shall be compiled and evaluated
by both Parties. Appropriate account shall be taken of the effect of the
Employer’s prior use of the Works.

12.2
Delayed Tests If the Contractor incurs Cost as a result of any unreasonable delay by the
Employer in carrying out the Tests after Completion, the Contractor shall be
entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to
payment of such Cost Plus Profit.

If, for reasons not attributable to the Contractor, a Test after Completion on
the Works or any Section cannot be completed during the DNP (or any other
period agreed by both Parties), then the Works or Section shall be deemed
to have passed this Test after Completion.

70 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 12.3

CONDITIONS
Retesting Subject to Sub-Clause 12.4 [Failure to Pass Tests after Completion], if the

GENERAL
Works, or a Section, fail to pass the Tests after Completion:

(a) sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding

Work and Remedying Defects] shall apply; and
(b) after remedying any defect or damage, Sub-Clause 11.6 [Further
Tests after Remedying Defects] shall apply.

GUIDANCE
If and to the extent that this failure and retesting are attributable to any of
the matters listed in sub-paragraphs (a) to (d) of Sub-Clause 11.2 [Cost of
Remedying Defects] and cause the Employer to incur additional costs, the
Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or EOT] to payment of these costs by the Contractor.

FORMS
12.4
Failure to Pass Tests
after Completion If:

(a) the Works, or a Section, fail to pass any or all of the Tests after
Completion; and
(b) applicable Performance Damages are set out in the Schedule of
Performance Guarantees
the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or EOT] to payment of these Performance Damages by the
Contractor in full satisfaction of this failure. If the Contractor pays these
Performance Damages to the Employer during the DNP, then the Works or
Section shall be deemed to have passed these Tests after Completion.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If the Works, or a Section, fail to pass a Test after Completion and, by giving
a Notice to the Employer, the Contractor proposes to make adjustments or
modifications to the Works or such Section (including an item of Plant):

(i) the Contractor may be instructed by a Notice given by the Employer

that right of access to the Works or Section cannot be given until a time
that is convenient to the Employer, which time shall be reasonable;
(ii) the Contractor shall remain liable to carry out the adjustments or
modifications and to satisfy this Test, within a reasonable period of
receiving the Notice under sub-paragraph (i) above; and
(iii) if the Contractor does not receive a Notice under sub-paragraph (i)
above during the relevant DNP, the Contractor shall be relieved of the
obligation to make such adjustments or modifications and the Works
or Section (as the case may be) shall be deemed to have passed this
Test after Completion.

If the Contractor incurs additional Cost as a result of any unreasonable

delay by the Employer in permitting access to the Works or Section by the
Contractor, either to investigate the causes of a failure to pass a Test after
Completion or to carry out any adjustments or modifications, the Contractor
shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EOT] to payment of any such Cost Plus Profit.

General Conditions © FIDIC & ITA 2019

71
 13
Variations and Adjustments
CONDITIONS
GENERAL

13.1
Right to Vary Variations may be initiated by the Engineer under Sub-Clause 13.3 [Variation
Procedure] at any time before the issue of the Taking-Over Certificate for the
Works.
GUIDANCE

Other than as stated under Sub-Clause 11.4 [Failure to Remedy Defects], a

Variation shall not comprise the omission of any work which is to be carried
out by the Employer or by others unless otherwise agreed by the Parties.

The Contractor shall be bound by each Variation instructed under Sub-Clause

13.3.1 [Variation by Instruction], and shall execute the Variation with due
expedition and without delay, unless the Contractor promptly gives a Notice
FORMS

to the Engineer stating (with detailed supporting particulars) that:

(a) the varied work was Unforeseeable having regard to the scope and
nature of the Works described in the Employer’s Requirements;
(b) the Contractor cannot readily obtain the Goods required for the
Variation;
(c) it will adversely affect the Contractor’s ability to comply with
Sub-Clause 4.8 [Health and Safety Obligations] and/or Sub-Clause
4.18 [Protection of the Environment];
(d) it will have an adverse impact on the achievement of the Schedule of
Performance Guarantees; or
(e) it may adversely affect the Contractor’s obligation to complete the
Works so that they shall be fit for the purpose(s) for which they are
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

intended under Sub-Clause 4.1 [Contractor’s General Obligations].

Promptly after receiving this Notice, the Engineer shall respond by giving a
Notice to the Contractor cancelling, confirming or varying the instruction.
Any instruction so confirmed or varied shall be taken as an instruction under
Sub-Clause 13.3.1 [Variation by instruction].

13.2
Value Engineering The Contractor may, at any time, submit to the Engineer a written proposal
which (in the Contractor’s opinion) will, if adopted:

(a) accelerate completion;

(b) reduce the cost to the Employer of executing, maintaining or operating
the Works;
(c) improve the efficiency or value to the Employer of the completed
Works; or
(d) otherwise be of benefit to the Employer.

The proposal shall be prepared at the cost of the Contractor and shall
include the details as stated in sub-paragraphs (a) to (c) of Sub-Clause
13.3.1 [Variation by Instruction].

The Engineer shall, as soon as practicable after receiving such a proposal,

respond by giving a Notice to the Contractor stating his/her consent or
otherwise. The Engineer’s consent or otherwise shall be at the sole discretion
of the Employer. The Contractor shall not delay any work while awaiting a
response.

72 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 If the Engineer gives his/her consent to the proposal, with or without

CONDITIONS
comments, the Engineer shall then instruct a Variation. Thereafter:

GENERAL
(i) the Contractor shall submit any further particulars that the Engineer
may reasonably require; and
(ii) then the third paragraph of Sub-Clause 13.3.1 [Variation by Instruction]
shall apply, which shall include consideration by the Engineer of the
sharing (if any) of the benefit, costs and/or delay between the Parties

GUIDANCE
stated in the Particular Conditions.

13.3
Variation Procedure Subject to Sub-Clause 13.1 [Right to Vary], Variations shall be initiated by the
Engineer in accordance with either of the following procedures:

13.3.1 Variation by Instruction

FORMS
The Engineer may instruct a Variation by giving a Notice (describing the
required change and stating any requirements for the recording of Costs) to
the Contractor in accordance with Sub-Clause 3.5 [Engineer’s Instructions].

The Contractor shall proceed with execution of the Variation and shall, within
28 days (or other period proposed by the Contractor and agreed by the
Engineer) of receiving the Engineer’s instruction, submit to the Engineer
detailed particulars including:

a description of the varied work performed or to be performed,

(a)
including details of the resources and methods adopted or to be
adopted by the Contractor;
(b) a programme for its execution and the Contractor’s proposal for
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

any necessary modifications (if any) to the Programme according to

Sub-Clause 8.3 [Programme] and to the Time for Completion; and
(c) the Contractor’s proposal for adjustment to the Contract Price, with
supporting particulars. Whenever the omission of any work forms part
(or all) of a Variation, and if:
• the Contractor has incurred or will incur cost which, if the work
had not been omitted, would have been deemed to be covered
by a sum forming part of the Accepted Contract Amount; and
• the omission of the work has resulted or will result in this sum not
forming part of the Contract Price
this cost may be included in the Contractor’s proposal (and, if so, shall
be clearly identified). If the Parties have agreed to the omission of any
work which is to be carried out by others, the Contractor’s proposal
may also include the amount of any loss of profit and other losses and
damages suffered (or to be suffered) by the Contractor as a result of
the omission.
Thereafter, the Contractor shall submit any further particulars that the
Engineer may reasonably require.

The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or

Determination] to agree or determine:

(i) EOT, if any; and/or

(ii) the adjustments to the Contract Price and the Schedule of Payments,
if any
(and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer
receives the Contractor’s submission under this Sub-Clause (including any

General Conditions © FIDIC & ITA 2019

73
 requested further particulars) shall be the date of commencement of the
CONDITIONS

time limit for agreement under Sub-Clause 3.7.3). The Contractor shall be
GENERAL

entitled to such EOT and/or adjustments to the Contract Price, without any
requirement to comply with Sub-Clause 20.2 [Claims For Payment and/or
EOT].

The following provisions of this Sub-Clause 13.3.1 shall apply to the

adjustments under sub-paragraph (ii) above.
GUIDANCE

For each item of work forming part (or all) of a Variation, the appropriate rate
or price for the item shall be the rate or price specified for such item in the
Schedule of Rates and Prices or, if there is no such item, the rate or price
specified for similar work. However, a new rate or price shall be appropriate
for an item of work if no rate or price for this item is specified in the Schedule
of Rates and Prices and no specified rate or price is appropriate because
FORMS

the item of work is not of similar character, or is not executed under similar
conditions, as any item in the Contract.

Each new rate or price shall be derived from any relevant rates or prices
in the Schedule of Rates and Prices, with reasonable adjustments taking
account of all relevant circumstances. If no rates or prices are relevant for the
derivation of a new rate or price, it shall be derived from the Cost Plus Profit
of executing the work.

Until such time as the adjustments under sub-paragraph (ii) above are
agreed or determined, the Engineer shall assess a provisional rate or price
for the purposes of Interim Payment Certificates.

13.3.2 Variation by Request for Proposal

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

The Engineer may request a proposal, before instructing a Variation, by

giving a Notice (describing the proposed change) to the Contractor.

The Contractor shall respond to this Notice as soon as practicable, by either:

(a) submitting a proposal, which shall include the matters as described

in sub-paragraphs (a) to (c) of Sub-Clause 13.3.1 [Variation by
Instruction]; or
(b) giving reasons why the Contractor cannot comply (if this is the case),
by reference to the matters described in sub-paragraphs (a) to (e) of
Sub-Clause 13.1 [Right to Vary].

If the Contractor submits a proposal, the Engineer shall, as soon as

practicable after receiving it, respond by giving a Notice to the Contractor
stating his/her consent or otherwise. The Contractor shall not delay any
work whilst awaiting a response.

If the Engineer gives consent to the proposal, with or without comments,

the Engineer shall then instruct the Variation. Thereafter, the Contractor shall
submit any further particulars that the Engineer may reasonably require and
the third paragraph of Sub-Clause 13.3.1 [Variation by Instruction] shall
apply.

If the Engineer does not give consent to the proposal, with or without
comments, and if the Contractor has incurred Cost as a result of submitting
it, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For
Payment and/or EOT] to payment of such Cost.

74 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 13.4

CONDITIONS
Provisional Sums Each Provisional Sum shall only be used, in whole or in part, in accordance

GENERAL
with the Engineer’s instructions, and the Contract Price shall be adjusted
accordingly. The total sum paid to the Contractor shall include only such
amounts for the work, supplies or services to which the Provisional Sum
relates, as the Engineer shall have instructed.

For each Provisional Sum, the Engineer may instruct:

GUIDANCE
(a) work to be executed (including Plant, Materials or services to be
supplied) by the Contractor, and for which adjustments to the
Contract Price and the Schedule of Payments (if any) shall be agreed
or determined under Sub-Clause 13.3.1 [Variation by Instruction];
and/or
(b) Plant, Materials, works or services to be purchased by the Contractor,

FORMS
from a nominated Subcontractor (as defined in Sub-Clause 4.5
[Nominated Subcontractors]) or otherwise, and for which there shall
be included in the Contract Price:
(i) the actual amounts paid (or due to be paid) by the Contractor;
and
(ii) a sum for overhead charges and profit, calculated as a percentage
of these actual amounts by applying the relevant percentage rate
(if any) stated in the applicable Schedule. If there is no such rate,
the percentage rate stated in the Contract Data shall be applied.

If the Engineer instructs the Contractor under sub-paragraph (a) and/or

(b) above, this instruction may include a requirement for the Contractor to
submit quotations from the Contractor’s suppliers and/or subcontractors for
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

all (or some) of the items of the work to be executed or Plant, Materials,
works or services to be purchased. Thereafter, the Engineer may respond
by giving a Notice either instructing the Contractor to accept one of these
quotations (but such an instruction shall not be taken as an instruction under
Sub-Clause 4.5 [Nominated Subcontractors]) or revoking the instruction. If
the Engineer does not so respond within 7 days of receiving the quotations,
the Contractor shall be entitled to accept any of these quotations at the
Contractor’s discretion.

Each Statement that includes a Provisional Sum shall also include all
applicable invoices, vouchers and accounts or receipts in substantiation of
the Provisional Sum.

13.5
Daywork If a Daywork Schedule is not included in the Contract, this Sub-Clause shall
not apply.

For work of a minor or incidental nature, the Engineer may instruct that a
Variation shall be executed on a daywork basis. The work shall then be valued
in accordance with the Daywork Schedule, and the following procedure shall
apply.

Before ordering Goods for such work (other than any Goods priced in the
Daywork Schedule), the Contractor shall submit one or more quotations from
the Contractor’s suppliers and/or subcontractors to the Engineer. Thereafter,
the Engineer may instruct the Contractor to accept one of these quotations
(but such an instruction shall not be taken as an instruction under Sub-Clause
4.5 [Nominated Subcontractors]). If the Engineer does not so instruct the
Contractor within 7 days of receiving the quotations, the Contractor shall be
entitled to accept any of these quotations at the Contractor’s discretion.

General Conditions © FIDIC & ITA 2019

75
 Except for any items for which the Daywork Schedule specifies that payment
CONDITIONS

is not due, the Contractor shall deliver each day to the Engineer accurate
GENERAL

statements in duplicate (and one electronic copy), which shall include

records (as described under Sub-Clause 6.10 [Contractor’s Records]) of the
resources used in executing the previous day’s work.

One copy of each statement shall, if correct and agreed, be signed by the
Engineer and promptly returned to the Contractor. If not correct or agreed, the
GUIDANCE

Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination]

to agree or determine the resources (and, for the purpose of Sub-Clause
3.7.3 [Time limits], the date the works which are the subject of the Variation
under this Sub-Clause are completed by the Contractor shall be the date of
commencement of the time limit for agreement under Sub-Clause 3.7.3).

In the next Statement, the Contractor shall then submit priced statements
FORMS

of the agreed or determined resources to the Engineer, together with all

applicable invoices, vouchers and accounts or receipts in substantiation of
any Goods used in the daywork (other than Goods priced in the Daywork
Schedule).

Unless otherwise stated in the Daywork Schedule, the rates and prices in
the Daywork Schedule shall be deemed to include taxes, overheads and
profit.

13.6
Adjustments for
Changes in Laws Subject to the following provisions of this Sub-Clause, the Contract Price
shall be adjusted to take account of any increase or decrease in Cost
resulting from a change in:
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(a) the Laws of the Country (including the introduction of new Laws and
the repeal or modification of existing Laws);
(b) the judicial or official governmental interpretation or implementation of
the Laws referred to in sub-paragraph (a) above;
(c) any permit, permission, license or approval obtained by the Employer
or the Contractor under sub-paragraph (a) or (b), respectively, of
Sub-Clause 1.13 [Compliance with Laws]; or
(d) the requirements for any permit, permission, licence and/or approval
to be obtained by the Contractor under sub-paragraph (b) of
Sub-Clause 1.13 [Compliance with Laws],
made and/or officially published after the Base Date, which affect the
Contractor in the performance of obligations under the Contract. In
this Sub-Clause “change in Laws” means any of the changes under
sub-paragraphs (a), (b), (c) and/or (d) above.

If the Contractor suffers delay and/or incurs an increase in Cost as a result of

any change in Laws, the Contractor shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost.

If there is a decrease in Cost as a result of any change in Laws, the Employer

shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or
EOT] to a reduction in the Contract Price.

If any adjustment to the execution of the Works becomes necessary as a

result of any change in Laws:

76 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (i) the Contractor shall promptly give a Notice to the Engineer, or

CONDITIONS
(ii) the Engineer shall promptly give a Notice to the Contractor

GENERAL
(with detailed supporting particulars).

Thereafter, the Engineer shall either instruct a Variation under Sub-Clause

13.3.1 [Variation by Instruction] or request a proposal under Sub-Clause
13.3.2 [Variation by Request for Proposal].

GUIDANCE
13.7
Adjustments for
Changes in Cost If Schedule(s) of cost indexation are not included in the Contract, this
Sub-Clause shall not apply.

The amounts payable to the Contractor shall be adjusted for rises or falls in

FORMS
the cost of labour, Goods and other inputs to the Works, by the addition or
deduction of the amounts calculated in accordance with the Schedule(s) of
cost indexation.

To the extent that full compensation for any rise or fall in Costs is not covered
by this Sub-Clause or other Clauses of these Conditions, the Accepted
Contract Amount shall be deemed to have included amounts to cover the
contingency of other rises and falls in costs.

The adjustment to be applied to the amount otherwise payable to the

Contractor, as certified in Payment Certificates, shall be calculated for each
of the currencies in which the Contract Price is payable. No adjustment shall
be applied to work valued on the basis of Cost or current prices.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Until such time as each current cost index is available, the Engineer shall use a
provisional index for the issue of Interim Payment Certificates. When a current
cost index is available, the adjustment shall be recalculated accordingly.

If the Contractor fails to complete the Works within the Time for Completion,
adjustment of prices thereafter shall be made using either:

(a) each index or price applicable on the date 49 days before the expiry
of the Time for Completion of the Works; or
(b) the current index or price
whichever is more favourable to the Employer.

13.8
Measurement of Excavation and
Lining Works and Adjustment of
Time for Completion and
Contract Price Unless otherwise stated in the Contract, only the Excavation and Lining Works
shall be subject to measurement, and the Accepted Contract Amount shall
be deemed to cover all other Underground Works and all things necessary
for the proper execution and completion thereof in accordance with the
Contract.

The Contract Price and Time for Completion shall be adjusted following
such measurement, and the Parties shall be entitled to such adjustments
without the need to submit a Statement or any formal Notice (including any
requirement to comply with Sub-Clause 20.2 [Claims For Payment and/or
Extension of Time]).

General Conditions © FIDIC & ITA 2019

77
 If and to the extent that the Contractor suffers delay and/or incurs Cost
CONDITIONS

as a result of subsurface physical conditions actually encountered that are

GENERAL

outside the limits described in the GBR, Sub-Clause 4.12 [Unforeseeable

Physical Conditions] shall apply.

13.8.1 Responsibility for Measurement

Except as otherwise agreed, the Contractor shall be responsible for the

GUIDANCE

measurement and shall submit relevant measurements with full supporting

records to the Engineer at the intervals stated in the Contract Data (if not
stated then at monthly intervals).

The method of measurement for the Schedule of Baselines and for the Bill of
Quantities shall be as stated in the Contract Data.
FORMS

After receiving the measurement records, the Engineer shall proceed under
Sub-Clause 3.7 [Agreement or Determination] to agree or determine the
measurement, and, for the purpose of Sub-Clause 3.7.3 [Time limit], the
date when the Engineer receives the measurement records shall be the date
of commencement of the time limit under Sub-Clause 3.7.3 [Time limit].

13.8.2 Bill of Quantities for Excavation and Lining Works

The Bill of Quantities sets out the quantities, units of measurement and
applicable unit rates and prices for all Excavation and Lining Works.

Unless provided otherwise in the Employer’s Requirements,

(a) initial quantities shall be determined by the Employer, consistent with

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Employer’s reference design, the Geotechnical Baseline Report

and the Schedule of Baselines, at a level of detail sufficient to enable
the Contractor to establish unit rates or prices for each activity or, if
agreed, group of activities, and
(b) the Bill of Quantities shall be completed by the Contractor with his
tendered unit rates and prices.
For the purposes of this Sub-Clause:

- a “fixed-rate item” or “fixed charge” or similar term used in the Bill of

Quantities shall be taken to refer to a rate or price which is not subject
to adjustment for any change in quantity;
- a “time-related item” shall be taken to refer to a rate or price for an item
of work which is proportional to the length of time taken to execute
the work not the quantity of that (or other items of) work;
- a “quantity-related item” shall be a rate or price for a unit quantity
of the item of work; and
- a “value-related item” or “value-related charge” shall refer to a rate or
price considered proportional to the value of the item of work.
The Bill of Quantities for the Excavation and Lining Works shall include fixed
rate items, time-related rate items and quantity-related rate items for the
Excavation and Lining Works, as follows:

(a) Fixed rate items for, as appropriate, the provision of Contractor’s

Equipment, facilities, and supervision, facilities and services required
by the Employer’s Personnel, fees for relevant Contractor’s overhead
charges, and the maintenance of such provisions for the relevant
section of the Excavation and Lining Works for the period necessary
according to the Completion Schedule.

78 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (b) Time-related rate items for, as appropriate, the extended or reduced

CONDITIONS
availability and maintenance of the fixed rate items in sub-paragraph

GENERAL
(a) above, all expressed, unless otherwise specified, in units for an
extension or reduction for a calendar day.
(c) Quantity-related rate items for the Excavation and Lining Works, and
Plant supply and installation for the relevant portion of the Works.
(d) Unless provided otherwise in the Particular Conditions, value-related
charges for compliance with contractual provisions such as, without

GUIDANCE
limitation, insurance, securities, permits and levies for the relevant
portion of the Excavation and Lining Works, shall be included as
percentage additions in the rates described in (a), (b) and/or (c) above.
The unit rates and prices referred to in this Sub-Clause 13.8.2 [Bill of
Quantities for Excavation and Lining Works] shall not vary with changes in
measured quantities and shall be deemed to cover the entire remuneration

FORMS
of the Contractor for such Excavation and Lining Works.

13.8.3 Adjustment of Time for Completion

The time allowed in the Completion Schedule and/or the Programme, as

the case may be (as amended as a result of any previous adjustments
under this Sub-Clause, or any Extension of Time granted to the Contractor)
for the completion of the Works, Sections and/or Milestones comprising
the Underground Works, shall be re-assessed (reduced or extended) by
the Engineer by applying the production rates provided by the Contractor
to the measured quantity of each item of work or activity in the Schedule
of Baselines necessarily carried out (as agreed and/or confirmed by the
Engineer pursuant to Sub-Clause 3.2.2 [Engineer’s Specific Duties and
Authority for Excavation and Lining Works]).
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Based on this reassessment, and if and to the extent that the Time for
Completion of the Works, Section or other Milestone is or will be impacted,
an adjustment (reduction or extension) shall be calculated for such Time
for Completion based only on the logical sequential links provided in the
Completion Schedule and/or the Programme, as the case may be.

13.8.4 Adjustment of the Contract Price

The Contract Price shall be adjusted by the Engineer:

(a) by valuing each item of the Excavation and Lining Works by applying the
measurement agreed or determined in accordance with Sub-Clause
13.8.1 [Responsibility for Measurement], and the appropriate rate or
price for the item in the Bill of Quantities; and
(b) by applying the rates for time-related rate items in the Bill of Quantities
to the adjusted Time for Completion under Sub-Clause 13.8.3
[Adjustment of Time for Completion].

14.1
The Contract Price
14
Contract Price and Payment

Unless otherwise stated in the Particular Conditions:

(a) the Contract Price shall be the Accepted Contract Amount and be
subject to adjustments, additions (including Cost or Cost Plus Profit
to which the Contractor is entitled under these Conditions) and/or
deductions in accordance with the Contract;

General Conditions © FIDIC & ITA 2019

79
 (b) the Contractor shall pay all taxes, duties and fees required to be paid
CONDITIONS

by the Contractor under the Contract, and the Contract Price shall not
GENERAL

be adjusted for any of these costs, except as stated in Sub-Clause

13.6 [Adjustments for Changes in Laws];
(c) any quantities which may be set out in the Bill of Quantities or in
the Schedule of Baselines or in any other Schedule are estimated
quantities and are not to be taken as the actual and correct quantities
of the Works which the Contractor is required to execute; and
GUIDANCE

(d) any quantities or production rates or price data which may be set out
in the Bill of Quantities or in the Schedule of Baselines or in any other
Schedule shall be used for the purposes stated in the Schedule and
may be inapplicable for other purposes.

For the part of Works to be paid according to quantity supplied or work

done, the provisions for measurement and valuation shall be as stated
FORMS

in Sub-Clause 13.8 [Measurement of Excavation and Lining Works and

Adjustment of Time for Completion and Contract Price] or in the Particular
Conditions. The Contract Price shall be valued accordingly, subject to
adjustments in accordance with the Contract.

14.2
Advance Payment If no amount of advance payment is stated in the Contract Data, this
Sub-Clause shall not apply.

After receiving the Advance Payment Certificate, the Employer shall make an
advance payment, as an interest-free loan for mobilisation and design. The
amount of the advance payment and the currencies in which it is to be paid
shall be as stated in the Contract Data.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

14.2.1 Advance Payment Guarantee

The Contractor shall obtain (at the Contractor’s cost) an Advance Payment
Guarantee in amounts and currencies equal to the advance payment, and
shall submit it to the Employer with a copy to the Engineer. This guarantee
shall be issued by an entity and from within a country (or other jurisdiction)
to which the Employer gives consent, and shall be in the form annexed to
the Particular Conditions or on another form agreed by the Employer (but
such consent and/or agreement shall not relieve the Contractor from any
obligation under this Sub-Clause).

The Contractor shall ensure that the Advance Payment Guarantee is valid
and enforceable until the advance payment has been repaid, but its amount
may be progressively reduced by the amount repaid by the Contractor as
stated in the Payment Certificates.

If the terms of the Advance Payment Guarantee specify its expiry date, and
the advance payment has not been repaid by the date 28 days before the
expiry date:

(a) the Contractor shall extend the validity of this guarantee until the
advance payment has been repaid;
(b) the Contractor shall immediately submit evidence of this extension to
the Employer, with a copy to the Engineer; and
(c) if the Employer does not receive this evidence 7 days before the
expiry date of this guarantee, the Employer shall be entitled to claim
under the guarantee the amount of advance payment which has not
been repaid.

80 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 When submitting the Advance Payment Guarantee, the Contractor shall

CONDITIONS
include an application (in the form of a Statement) for the advance payment.

GENERAL
14.2.2 Advance Payment Certificate

The Engineer shall issue an Advance Payment Certificate for the advance
payment within 14 days after:

GUIDANCE
(a) the Employer has received both the Performance Security and the
Advance Payment Guarantee, in the form and issued by an entity
in accordance with Sub-Clause 4.2.1 [Contractor’s Obligations] and
Sub-Clause 14.2.1 [Advance Payment Guarantee] respectively; and
(b) the Engineer has received a copy of the Contractor’s application for
the advance payment under Sub-Clause 14.2.1 [Advance Payment
Guarantee].

FORMS
14.2.3 Repayment of Advance Payment

The advance payment shall be repaid through percentage deductions in

Payment Certificates. Unless other percentages are stated in the Contract
Data:

(a) deductions shall commence in the IPC in which the total of all certified
interim payments in the same currency as the advance payment
(excluding the advance payment and deductions and release of
retention moneys) exceeds ten percent (10%) of the portion of the
Accepted Contract Amount payable in that currency less Provisional
Sums; and
(b) deductions shall be made at the amortisation rate of one quarter
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(25%) of the amount of each IPC (excluding the advance payment

and deductions and release of retention moneys) in the currencies
and proportions of the advance payment, until such time as the
advance payment has been repaid.

If the advance payment has not been repaid before the issue of the
Taking-Over Certificate for the Works, or before termination under Clause
15 [Termination by Employer], Clause 16 [Suspension and Termination by
Contractor] or Clause 18 [Exceptional Events] (as the case may be), the
whole of the balance then outstanding shall immediately become due and
payable by the Contractor to the Employer.

14.3
Application for
Interim Payment The Contractor shall submit a Statement to the Engineer after the end of the
period of payment stated in the Contract Data (if not stated, after the end of
each month). Each Statement shall:

(a) be in a form acceptable to the Engineer;

(b) be submitted in one paper-original, one electronic copy and additional
paper copies (if any) as stated in the Contract Data; and
(c) show in detail the amounts to which the Contractor considers that the
Contractor is entitled, with supporting documents which shall include
sufficient detail for the Engineer to investigate these amounts together
with the relevant report on progress in accordance with Sub-Clause
4.20 [Progress Reports].

The Statement shall include the following items, as applicable, which shall be
expressed in the various currencies in which the Contract Price is payable, in
the sequence listed:
General Conditions © FIDIC & ITA 2019
81
 (i) the estimated contract value of the Works executed, and the
CONDITIONS

Contractor’s Documents produced, up to the end of the period of

GENERAL

payment (including Variations but excluding items described in

sub-paragraphs (ii) to (x) below);
(ii) the amounts valued as measured quantities under Sub-Clause 13.8.3
[Adjustment of Time for Completion], Sub-Clause 13.8.4 [Adjustment
of the Contract Price],
(iii) any amounts to be added and/or deducted for changes in Laws under
GUIDANCE

Sub-Clause 13.6 [Adjustments for Changes in Laws], and for changes

in Cost under Sub-Clause 13.7 [Adjustments for Changes in Cost];
(iv) any amount to be deducted for retention, calculated by applying the
percentage of retention stated in the Contract Data to the total of the
amounts under sub-paragraphs (i), (ii) and (vi) of this Sub-Clause, until
the amount so retained by the Employer reaches the limit of Retention
Money (if any) stated in the Contract Data;
FORMS

(v) any amounts to be added and/or deducted for the advance payment
and repayments under Sub-Clause 14.2 [Advance Payment];
(vi) any amounts to be added and/or deducted for Plant and Materials
under Sub-Clause 14.5 [Plant and Materials intended for the Works];
(vii) any other additions and/or deductions which have become due under
the Contract or otherwise, including those under Sub-Clause 3.7
[Agreement or Determination];
(viii) any amounts to be added for Provisional Sums under Sub-Clause
13.4 [Provisional Sums];
(ix) any amount to be added for release of Retention Money under
Sub-Clause 14.9 [Release of Retention Money];
(x) any amount to be deducted for the Contractor’s use of utilities provided
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

by the Employer under Sub-Clause 4.19 [Temporary Utilities]; and

(xi) the deduction of amounts certified in all previous Payment Certificates.

14.4
Schedule of Payments If the Contract includes a Schedule of Payments specifying the instalments
in which the Contract Price will be paid then, unless otherwise stated in this
Schedule:

(a) the instalments quoted in the Schedule of Payments shall be treated

as the estimated contract values for the purposes of sub-paragraph
(i) of Sub-Clause 14.3 [Application for Interim Payment];
(b) Sub-Clause 14.5 [Plant and Materials intended for the Works] shall
not apply; and
(c) if:
(i) these instalments are not defined by reference to the actual
progress achieved in the execution of the Works; and
(ii) actual progress is found by the Engineer to differ from that on
which the Schedule of Payments was based,
then the Engineer may proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determine revised instalments (and, for the
purpose of Sub-Clause 3.7.3 [Time limits], the date when the difference
under sub-paragraph (ii) above was found by the Engineer shall be the date
of commencement of the time limit for agreement under Sub-Clause 3.7.3).
Such revised instalments shall take account of the extent to which progress
differs from that on which the Schedule of Payments was based.

The Schedule of Payments shall include, as applicable, payments due
on completion of Milestones and other payments consistent with the
corresponding data in the Schedule of Rates and Prices, the Schedule of
82 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 Baselines, the Completion Schedule and/or the Programme, and in the

CONDITIONS
method of measurement pursuant to Sub-Clause 13.8.2 [Bill of Quantities

GENERAL
for Excavation and Lining Works].

If the Contract does not include a Schedule of Payments, the Contractor

shall submit non-binding estimates of the payments which the Contractor
expects to become due during each period of 3 months. The first estimate
shall be submitted within 42 days after the Commencement Date. Revised

GUIDANCE
estimates shall be submitted at intervals of 3 months, until the issue of the
Taking-Over Certificate for the Works.

14.5
Plant and Materials
intended for the Works If no Plant and/or Materials are listed in the Contract Data for payment when
shipped and/or payment when delivered, this Sub-Clause shall not apply.

FORMS
The Contractor shall include, under sub-paragraph (v) of Sub-Clause 14.3
[Application for Interim Payment]:

- an amount to be added for Plant and Materials which have been

shipped or delivered (as the case may be) to the Site for incorporation
in the Permanent Works; and
- an amount to be deducted when the contract value of such Plant
and Materials is included as part of the Permanent Works under
sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim
Payment].
The Engineer shall proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determine each amount to be added for Plant
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

and Materials if the following conditions are fulfilled (and, for the purpose of
Sub-Clause 3.7.3 [Time limits], the date these conditions are fulfilled shall be
the date of commencement of the time limit for agreement under Sub-Clause
3.7.3):

(a) the Contractor has:

(i) kept satisfactory records (including the orders, receipts, Costs
and use of Plant and Materials) which are available for inspection
by the Engineer;
(ii) submitted evidence demonstrating that the Plant and Materials
comply with the Contract (which may include test certificates
under Sub-Clause 7.4 [Testing by the Contractor] and/or
compliance verification documentation under Sub-Clause 4.9.2
[Compliance Verification System]) to the Engineer; and
(iii) submitted a statement of the Cost of acquiring and shipping or
delivering (as the case may be) the Plant and Materials to the
Site, supported by satisfactory evidence;
and either:

(b)
the relevant Plant and Materials:
(i) are those listed in the Contract Data for payment when shipped;
(ii) have been shipped to the Country, en route to the Site, in
accordance with the Contract; and
(iii) are described in a clean shipped bill of lading or other evidence
of shipment, which has been submitted to the Engineer together
with:
• evidence of payment of freight and insurance;
• any other documents reasonably required by the Engineer;
and
General Conditions © FIDIC & ITA 2019
83
 • a written undertaking by the Contractor that the Contractor
CONDITIONS

will deliver to the Employer (prior to submitting the next

GENERAL

Statement) a bank guarantee in a form and issued by an

entity to which the Employer gives consent (but such consent
shall not relieve the Contractor from any obligation in the
following provisions of this sub-paragraph), in amounts and
currencies equal to the amount due under this Sub-Clause.
This guarantee shall be in a similar form to the form described
GUIDANCE

in Sub-Clause 14.2.1 [Advance Payment Guarantee] and

shall be valid until the Plant and Materials are properly stored
on Site and protected against loss, damage or deterioration;
or

(c) the relevant Plant and Materials:

(i) are those listed in the Contract Data for payment when delivered
FORMS

to the Site, and

(ii) have been delivered to and are properly stored on the Site, are
protected against loss, damage or deterioration, and appear to
be in accordance with the Contract.

The amount so agreed or determined shall take account of the evidence

and documents required under this Sub-Clause and of the contract value
of the Plant and Materials. If sub-paragraph (b) above applies, the Engineer
shall have no obligation to certify any payment under this Sub-Clause
until the Employer has received the bank guarantee in accordance with
sub-paragraph (b)(iii) above. The sum to be certified by the Engineer in an IPC
shall be the equivalent of eighty percent (80%) of this agreed or determined
amount. The currencies for this certified sum shall be the same as those in
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

which payment will become due when the contract value is included under
sub-paragraph (i) of Sub-Clause 14.3 [Application for Interim Payment]. At
that time, the Payment Certificate shall include the applicable amount to
be deducted which shall be equivalent to, and in the same currencies and
proportions as, this additional amount for the relevant Plant and Materials.

14.6
Issue of IPC No amount will be certified or paid to the Contractor until:

(a) the Employer has received the Performance Security in the form, and
issued by an entity, in accordance with Sub-Clause 4.2.1[Contractor’s
obligations]; and
(b) the Contractor has appointed the Contractor’s Representative in
accordance with Sub-Clause 4.3 [Contractor’s Representative].

14.6.1 The IPC

The Engineer shall, within 28 days after receiving a Statement and supporting
documents, issue an IPC to the Employer, with a copy to the Contractor:

(a) stating the amount which the Engineer fairly considers to be due; and
(b) including any additions and/or deductions which have become due
under Sub-Clause 3.7 [Agreement or Determination] or under the
Contract or otherwise,
with detailed supporting particulars (which shall identify any difference
between a certified amount and the corresponding amount in the Statement
and give the reasons for such difference).

84 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 14.6.2 Withholding (amounts in) an IPC

CONDITIONS
GENERAL
Before the issue of the Taking-Over Certificate for the Works, the Engineer
may withhold an IPC in an amount which would (after retention and other
deductions) be less than the minimum amount of IPC (if any) stated in the
Contract Data. In this event, the Engineer shall promptly give a Notice to the
Contractor accordingly.

GUIDANCE
An IPC shall not be withheld for any other reason, although:

(a) if any thing supplied or work done by the Contractor is not in

accordance with the Contract, the estimated cost of rectification or
replacement may be withheld until rectification or replacement has
been completed;
(b) if the Contractor was or is failing to perform any work, service or

FORMS
obligation in accordance with the Contract, the value of this work
or obligation may be withheld until the work or obligation has been
performed. In this event, the Engineer shall promptly give a Notice
to the Contractor describing the failure and with detailed supporting
particulars of the value withheld; and/or
(c) if the Engineer finds any significant error or discrepancy in the
Statement or supporting documents, the amount of the IPC may take
account of the extent to which this error or discrepancy has prevented
or prejudiced proper investigation of the amounts in the Statement until
such error or discrepancy is corrected in a subsequent Statement.

For each amount so withheld, in the supporting particulars for the IPC the
Engineer shall detail his/her calculation of the amount and state the reasons
for it being withheld.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

14.6.3 Correction or modification

The Engineer may in any Payment Certificate make any correction or

modification that should properly be made to any previous Payment
Certificate. A Payment Certificate shall not be deemed to indicate the
Engineer’s acceptance, approval, consent or Notice of No-objection to any
Contractor’s Document or to (any part of) the Works.

If the Contractor considers that an IPC does not include any amounts to
which the Contractor is entitled, these amounts shall be identified in the next
Statement (the “identified amounts” in this paragraph). The Engineer shall
then make any correction or modification that should properly be made in
the next Payment Certificate. Thereafter, to the extent that:

(a) the Contractor is not satisfied that this next Payment Certificate
includes the identified amounts; and
(b) the identified amounts do not concern a matter for which the
Engineer is already carrying out his/her duties under Sub-Clause 3.7
[Agreement or Determination]
the Contractor may, by giving a Notice, refer this matter to the Engineer
and Sub-Clause 3.7 [Agreement or Determination] shall apply (and, for the
purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives this
Notice shall be the date of commencement of the time limit for agreement
under Sub-Clause 3.7.3).

General Conditions © FIDIC & ITA 2019

85
 14.7
Payment
CONDITIONS

The Employer shall pay to the Contractor:

GENERAL

(a) the amount certified in each Advance Payment Certificate within the
period stated in the Contract Data (if not stated, 21 days) after the
Employer receives the Advance Payment Certificate;
(b) the amount certified in each IPC issued under:
(i) Sub-Clause 14.6 [Issue of IPC], within the period stated in the
GUIDANCE

Contract Data (if not stated, 56 days) after the Engineer receives
the Statement and supporting documents; or
(ii) Sub-Clause 14.13 [Issue of FPC], within the period stated in the
Contract Data (if not stated, 28 days) after the Employer receives
the IPC; and
(c) the amount certified in the FPC within the period stated in the Contract
Data (if not stated, 56 days) after the Employer receives the FPC.
FORMS

Payment of the amount due in each currency shall be made into the bank
account, nominated by the Contractor, in the payment country (for this
currency) specified in the Contract.

14.8
Delayed Payment If the Contractor does not receive payment in accordance with Sub-Clause
14.7 [Payment], the Contractor shall be entitled to receive financing charges
compounded monthly on the amount unpaid during the period of delay.
This period shall be deemed to commence on the expiry of the time for
payment specified in Sub-Clause 14.7 [Payment], irrespective (in the case
of sub-paragraph (b) of Sub-Clause 14.7) of the date on which any IPC is
issued.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Unless otherwise stated in the Contract Data, these financing charges shall
be calculated at the annual rate of three percent (3%) above:

(a) the average bank short-term lending rate to prime borrowers prevailing
for the currency of payment at the place for payment, or
(b) where no such rate exists at that place, the same rate in the country
of the currency of payment, or
(c) in the absence of such a rate at either place, the appropriate rate fixed
by the law of the country of the currency of payment.

The Contractor shall by request be entitled to payment of these financing

charges by the Employer without:

(i) the need for the Contractor to submit a Statement or any formal
Notice (including any requirement to comply with Sub-Clause 20.2
[Claims For Payment and/or EOT]) or certification; and
(ii) prejudice to any other right or remedy.

14.9
Release of
Retention Money After the issue of the Taking-Over Certificate for:

(a) the Works, the Contractor shall include the first half of the Retention
Money in a Statement; or
(b) for a Section, the Contractor shall include the relevant percentage of
the first half of the Retention Money in a Statement.

86 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 After the latest of the expiry dates of the Defects Notification Periods,

CONDITIONS
the Contractor shall include the second half of the Retention Money in a

GENERAL
Statement promptly after such latest date. If a Taking-Over Certificate was
(or was deemed to have been) issued for a Section, the Contractor shall
include the relevant percentage of the second half of the Retention Money in
a Statement promptly after the expiry date of the DNP for the Section.

In the next IPC after the Engineer receives any such Statement, the Engineer

GUIDANCE
shall certify the release of the corresponding amount of Retention Money.
However, when certifying any release of Retention Money under Sub-Clause
14.6 [Issue of IPC], if any work remains to be executed under Clause
11 [Defects after Taking Over] or Clause 12 [Tests after Completion], the
Engineer shall be entitled to withhold certification of the estimated cost of
this work until it has been executed.

FORMS
The relevant percentage for each Section shall be the percentage value of the
Section as stated in the Contract Data. If the percentage value of a Section is
not stated in the Contract Data, no percentage of either half of the Retention
Money shall be released under this Sub-Clause in respect of such Section.

14.10
Statement at Completion Within 84 days after the Date of Completion of the Works, the Contractor
shall submit to the Engineer a Statement at completion with supporting
documents, in accordance with Sub-Clause 14.3 [Application for Interim
Payment], showing:

(a) the value of all work done in accordance with the Contract up to the
Date of Completion of the Works;
b) any further sums which the Contractor considers to be due at the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Date of Completion of the Works; and

(c) an estimate of any other amounts which the Contractor considers
have or will become due after the Date of Completion of the Works,
under the Contract or otherwise. These estimated amounts shall be
shown separately (to those of sub-paragraphs (a) and (b) above) and
shall include estimated amounts for:
(i) Claims for which the Contractor has submitted a Notice under
Sub-Clause 20.2 [Claims For Payment and/or EOT];
(ii) any matter referred to the DAAB under Sub-Clause 21.4
[Obtaining DAAB’s Decision]; and
(iii) any matter for which a NOD has been given under Sub-Clause
21.4 [Obtaining DAAB’s Decision].

The Engineer shall then issue an IPC in accordance with Sub-Clause 14.6
[Issue of IPC].

14.11
Final Statement Submission by the Contractor of any Statement under the following
provisions of this Sub-Clause shall not be delayed by reason of any referral
under Sub-Clause 21.4 [Obtaining DAAB’s Decision] or any arbitration under
Sub-Clause 21.6 [Arbitration].

14.11.1 Draft Final Statement

Within 56 days after the issue of the Performance Certificate the Contractor
shall submit to the Engineer a draft final Statement.

General Conditions © FIDIC & ITA 2019

87
 This Statement shall:
CONDITIONS

(a) be in the same form as Statements previously submitted under

GENERAL

Sub-Clause 14.3 [Application for Interim Payment];

(b) be submitted in one paper-original, one electronic copy and additional
paper copies (if any) as stated in the Contract Data; and
(c) show in detail, with supporting documents:
(i) the value of all work done in accordance with the Contract;
GUIDANCE

(ii) any further sums which the Contractor considers to be due at

the date of the issue of the Performance Certificate, under the
Contract or otherwise; and
(iii) an estimate of any other amounts which the Contractor considers
have or will become due after the issue of the Performance
Certificate, under the Contract or otherwise, including estimated
FORMS

amounts by reference to the matters described in sub-paragraphs

(c) (i) to (iii) of Sub-Clause 14.10 [Statement at Completion].
These estimated amounts shall be shown separately (to those of
sub-paragraphs (i) and (ii) above).

Except for any amount under sub-paragraph (iii) above, if the Engineer
disagrees with or cannot verify any part of the draft final Statement, the
Engineer shall promptly give a Notice to the Contractor. The Contractor shall
then submit such further information as the Engineer may reasonably require
within the time stated in this Notice, and shall make such changes in the
draft as may be agreed between them.

14.11.2 Agreed Final Statement

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If there are no amounts under sub-paragraph (iii) of Sub-Clause 14.11.1

[Draft Final Statement], the Contractor shall then prepare and submit to
the Engineer the final Statement as agreed (the “Final Statement” in these
Conditions).

However, if:

(a) there are amounts under sub-paragraph (iii) of Sub-Clause 14.11.1

[Draft Final Statement]; and/or
(b) following discussions between the Engineer and the Contractor, it
becomes evident that they cannot agree any amount(s) in the draft
final Statement,
the Contractor shall then prepare and submit to the Engineer a Statement
identifying separately: the agreed amounts, the estimated amounts and
the disagreed amount(s) (the “Partially Agreed Final Statement” in these
Conditions).

14.12
Discharge When submitting the Final Statement or the Partially Agreed Final Statement
(as the case may be), the Contractor shall submit a discharge which confirms
that the total of such Statement represents full and final settlement of all
moneys due to the Contractor under or in connection with the Contract.
This discharge may state that the total of the Statement is subject to any
payment that may become due in respect of any Dispute for which a
DAAB proceeding or arbitration is in progress under Clause 21 [Disputes
and Arbitration] and/or that it becomes effective after the Contractor has
received:

88 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (a) full payment of the amount certified in the FPC; and

CONDITIONS
(b) the Performance Security.

GENERAL
If the Contractor fails to submit this discharge, the discharge shall be deemed
to have been submitted and to have become effective when the conditions
of sub-paragraphs (a) and (b) have been fulfilled.

A discharge under this Sub-Clause shall not affect either Party’s liability

GUIDANCE
or entitlement in respect of any Dispute for which a DAAB proceeding or
arbitration is in progress under Clause 21 [Disputes and Arbitration].

14.13
Issue of FPC Within 28 days after receiving the Final Statement or the Partially Agreed
Final Statement (as the case may be), and the discharge under Sub-Clause
14.12 [Discharge], the Engineer shall issue to the Employer (with a copy to

FORMS
the Contractor), the Final Payment Certificate which shall state:

(a) the amount which the Engineer fairly considers is finally due, including
any additions and/or deductions which have become due under
Sub-Clause 3.7 [Agreement or Determination] or under the Contract
or otherwise; and
(b) after giving credit to the Employer for all amounts previously paid by
the Employer and for all sums to which the Employer is entitled, and
after giving credit to the Contractor for all amounts (if any) previously
paid by the Contractor and/or received by the Employer under the
Performance Security, the balance (if any) due from the Employer to
the Contractor or from the Contractor to the Employer, as the case
may be.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If the Contractor has not submitted a draft final Statement within the time
specified under Sub-Clause 14.11.1 [Draft Final Statement], the Engineer
shall request the Contractor to do so. Thereafter, if the Contractor fails to
submit a draft final Statement within a period of 28 days, the Engineer shall
issue the FPC for such an amount as the Engineer fairly considers to be due.

If:

(i) the Contractor has submitted a Partially Agreed Final Statement

under Sub-Clause 14.11.2 [Agreed Final Statement]; or
(ii) no Partially Agreed Final Statement has been submitted by
the Contractor but, to the extent that a draft final Statement
submitted by the Contractor is deemed by the Engineer to be a
Partially Agreed Final Statement
the Engineer shall proceed in accordance with Sub-Clause 14.6 [Issue of
IPC] to issue an IPC.

14.14
Cessation of
Employer’s Liability The Employer shall not be liable to the Contractor for any matter or thing
under or in connection with the Contract or execution of the Works, except
to the extent that the Contractor shall have included an amount expressly for
it in:

(a) the Final Statement or Partially Agreed Final Statement; and

(b) (except for matters or things arising after the issue of the Taking-Over
Certificate for the Works) the Statement under Sub-Clause 14.10
[Statement at Completion].

General Conditions © FIDIC & ITA 2019

89
 Unless the Contractor makes or has made a Claim under Sub-Clause 20.2
CONDITIONS

[Claims For Payment and/or EOT] in respect of an amount or amounts under

GENERAL

the FPC within 56 days of receiving a copy of the FPC, the Contractor shall
be deemed to have accepted the amounts so certified. The Employer shall
then have no further liability to the Contractor, other than to pay the amount
due under the FPC and return the Performance Security to the Contractor.

However, this Sub-Clause shall not limit the Employer’s liability under the
GUIDANCE

Employer’s indemnification obligations, or the Employer’s liability in any case

of fraud, gross negligence, deliberate default or reckless misconduct by the
Employer.

14.15
Currencies of Payment The Contract Price shall be paid in the currency or currencies named in the
Contract Data. If more than one currency is so named, payments shall be
FORMS

made as follows:

(a) if the Accepted Contract Amount was expressed in Local Currency

only or in Foreign Currency only:
(i) the proportions or amounts of the Local and Foreign Currencies,
and the fixed rates of exchange to be used for calculating the
payments, shall be as stated in the Contract Data, except as
otherwise agreed by both Parties;
(ii) payments and deductions under Sub-Clause 13.4 [Provisional
Sums] and Sub-Clause 13.6 [Adjustments for Changes in Laws]
shall be made in the applicable currencies and proportions; and
(iii) other payments and deductions under sub-paragraphs (i) to (iv) of
Sub-Clause 14.3 [Application for Interim Payment] shall be made
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

in the currencies and proportions specified in sub-paragraph (a)

(i) above;
(b) whenever an adjustment is agreed or determined under Sub-Clause
13.2 [Value Engineering] or Sub-Clause 13.3 [Variation Procedure],
the amount payable in each of the applicable currencies shall be
specified. For this purpose, reference shall be made to the actual or
expected currency proportions of the Cost of the varied work, and to
the proportions of various currencies specified in sub-paragraph (a)(i)
above;
(c) payment of Delay Damages shall be made in the currencies and
proportions specified in the Contract Data;
(d) payment of Performance Damages shall be made in the currencies
and proportions specified in the Schedule of Performance Guarantees;
(e) other payments to the Employer by the Contractor shall be made in
the currency in which the sum was expended by the Employer, or in
such currency as may be agreed by both Parties;
(f) if any amount payable by the Contractor to the Employer in a
particular currency exceeds the sum payable by the Employer to the
Contractor in that currency, the Employer may recover the balance
of this amount from the sums otherwise payable to the Contractor in
other currencies; and
(g) if no rates of exchange are stated in the Contract Data, they shall be
those prevailing on the Base Date and published by the central bank
of the Country.

90 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 15

CONDITIONS
Termination by Employer

GENERAL
15.1
Notice to Correct If the Contractor fails to carry out any obligation under the Contract the
Engineer may, by giving a Notice to the Contractor, require the Contractor
to make good the failure and to remedy it within a specified time (“Notice to
Correct” in these Conditions).

GUIDANCE
The Notice to Correct shall:

(a) describe the Contractor’s failure;

(b) state the Sub-Clause and/or provisions of the Contract under which
the Contractor has the obligation; and
(c) specify the time within which the Contractor shall remedy the failure,

FORMS
which shall be reasonable, taking due regard of the nature of the
failure and the work and/or other action required to remedy it.

After receiving a Notice to Correct the Contractor shall immediately respond

by giving a Notice to the Engineer describing the measures the Contractor
will take to remedy the failure, and stating the date on which such measures
will be commenced in order to comply with the time specified in the Notice
to Correct.

The time specified in the Notice to Correct shall not imply any extension of
the Time for Completion.

15.2
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Termination for
Contractor’s Default Termination of the Contract under this Clause shall not prejudice any other
rights of the Employer under the Contract or otherwise.

15.2.1 Notice

The Employer shall be entitled to give a Notice (which shall state that it is
given under this Sub-Clause 15.2.1) to the Contractor of the Employer’s
intention to terminate the Contract or, in the case of sub-paragraph (f), (g) or
(h) below a Notice of termination, if the Contractor:

(a) fails to comply with:

(i) a Notice to Correct;
(ii) a binding agreement, or final and binding determination, under
Sub-Clause 3.7 [Agreement or Determination]; or
(iii) a decision of the DAAB under 21.4 [Obtaining DAAB’s Decision]
(whether binding or final and binding)
and such failure constitutes a material breach of the Contractor’s
obligations under the Contract;
(b) abandons the Works or otherwise plainly demonstrates an intention
not to continue performance of the Contractor’s obligations under the
Contract;
(c) without reasonable excuse fails to proceed with the Works in
accordance with Clause 8 [Commencement, Delays and Suspension]
or, if there is a maximum amount of Delay Damages stated in the
Contract Data, the Contractor’s failure to comply with Sub-Clause 8.2
[Time for Completion] is such that the Employer would be entitled to
Delay Damages that exceed this maximum amount;

General Conditions © FIDIC & ITA 2019

91
 (d) without reasonable excuse fails to comply with a Notice of rejection
CONDITIONS

given by the Engineer under Sub-Clause 7.5 [Defects and Rejection]

GENERAL

or an Engineer’s instruction under Sub-Clause 7.6 [Remedial Work],

within 28 days after receiving it;
(e) fails to comply with Sub-Clause 4.2 [Performance Security];
(f) subcontracts the whole, or any part of, the Works in breach of
Sub-Clause 4.4 [Subcontractors], or assigns the Contract without the
required agreement under Sub-Clause 1.7 [Assignment];
GUIDANCE

(g) becomes bankrupt or insolvent; goes into liquidation, administration,

reorganisation, winding-up or dissolution; becomes subject to
the appointment of a liquidator, receiver, administrator, manager
or trustee; enters into a composition or arrangement with the
Contractor’s creditors; or any act is done or any event occurs which
is analogous to or has a similar effect to any of these acts or events
under applicable Laws;
FORMS

or if the Contractor is a JV:

(i) any of these matters apply to a member of the JV, and
(ii) the other member(s) do not promptly confirm to the Employer
that, in accordance with Sub-Clause 1.14(a) [Joint and Several
Liability], such member’s obligations under the Contract shall be
fulfilled in accordance with the Contract; or
(h) is found, based on reasonable evidence, to have engaged in corrupt,
fraudulent, collusive or coercive practice at any time in relation to the
Works or to the Contract.

15.2.2 Termination
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Unless the Contractor remedies the matter described in a Notice given

under Sub-Clause 15.2.1 [Notice] within 14 days of receiving the Notice,
the Employer may by giving a second Notice to the Contractor immediately
terminate the Contract. The date of termination shall be the date the
Contractor receives this second Notice.

However, in the case of sub-paragraph (f), (g) or (h) of Sub-Clause 15.2.1

[Notice], the Employer may by giving a Notice under Sub-Clause 15.2.1
immediately terminate the Contract and the date of termination shall be the
date the Contractor receives this Notice.

15.2.3 After termination

After termination of the Contract under Sub-Clause 15.2.2 [Termination], the

Contractor shall:

(a) comply immediately with any reasonable instructions included in a

Notice given by the Employer under this Sub-Clause:
(i) for the assignment of any subcontract; and
(ii) for the protection of life or property or for the safety of the Works;
(b) deliver to the Engineer:
(i) any Goods required by the Employer,
(ii) all Contractor’s Documents, and
(iii) all other design documents made by or for the Contractor; and
(c) leave the Site and, if the Contractor does not do so, the Employer
shall have the right to expel the Contractor from the Site.

92 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 15.2.4 Completion of the Works

CONDITIONS
GENERAL
After termination under this Sub-Clause, the Employer may complete the
Works and/or arrange for any other entities to do so. The Employer and/or
these entities may then use any Goods, Contractor’s Documents and other
design documents made by or on behalf of the Contractor to complete the
Works.

GUIDANCE
After such completion of the Works, the Employer shall give another Notice
to the Contractor that the Contractor’s Equipment and Temporary Works
will be released to the Contractor at or near the Site. The Contractor shall
then 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 (to the extent permitted by applicable
Laws) by the Employer in order to recover this payment. Any balance of the

FORMS
proceeds shall then be paid to the Contractor.

15.3
Valuation after Termination
for Contractor’s Default After termination of the Contract under Sub-Clause 15.2 [Termination
for Contractor’s Default], the Engineer shall proceed under Sub-Clause
3.7 [Agreement or Determination] to agree or determine the value of the
Permanent Works, Goods and Contractor’s Documents, and any other
sums due to the Contractor for work executed in accordance with the
Contract (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date
of termination shall be the date of commencement of the time limit for
agreement under Sub-Clause 3.7.3).

This valuation shall include any additions and/or deductions, and the balance
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

due (if any), by reference to the matters described in sub-paragraphs (a) and
(b) of Sub-Clause 14.13 [Issue of FPC].

This valuation shall not include the value of any Contractor’s Documents,
Materials, Plant and Permanent Works to the extent that they do not comply
with the Contract.

15.4
Payment after Termination
for Contractor’s Default The Employer may withhold payment to the Contractor of the amounts
agreed or determined under Sub-Clause 15.3 [Valuation after Termination for
Contractor’s Default] until all the costs, losses and damages (if any) described
in the following provisions of this Sub-Clause have been established.

After termination of the Contract under Sub-Clause 15.2 [Termination for

Contractor’s Default], the Employer shall be entitled subject to Sub-Clause
20.2 [Claims For Payment and/or EOT] to payment by the Contractor of:

(a) the additional costs of execution of the Works, and all other costs
reasonably incurred by the Employer (including costs incurred
in clearing, cleaning and reinstating the Site as described under
Sub-Clause 11.11 [Clearance of Site]), after allowing for any sum due
to the Contractor under Sub-Clause 15.3 [Valuation after Termination
for Contractor’s Default];
(b) any losses and damages suffered by the Employer in completing the
Works; and
(c) Delay Damages, if the Works or a Section have not been taken over
under Sub-Clause 10.1 [Taking Over the Works and Sections] and

General Conditions © FIDIC & ITA 2019

93
 if the date of termination under Sub-Clause 15.2 [Termination for
CONDITIONS

Contractor’s Default] occurs after the date corresponding to the Time

GENERAL

for Completion of the Works or Section (as the case may be). Such
Delay Damages shall be paid for every day that has elapsed between
these two dates.

15.5
Termination for
GUIDANCE

Employer’s Convenience The Employer shall be entitled to terminate the Contract at any time for the
Employer’s convenience, by giving a Notice of such termination to the Contractor
(which Notice shall state that it is given under this Sub-Clause 15.5).

After giving a Notice to terminate under this Sub-Clause, the Employer shall
immediately:
FORMS

(a) have no right to further use any of the Contractor’s Documents,

which shall be returned to the Contractor, except those for which the
Contractor has received payment or for which payment is due under
a Payment Certificate;
(b) if Sub-Clause 4.6 [Co-operation] applies, have no right to allow the
continued use (if any) of any Contractor’s Equipment, Temporary
Works, access arrangements and/or other of the Contractor’s facilities
or services; and
(c) make arrangements to return the Performance Security to the
Contractor.

Termination under this Sub-Clause shall take effect 28 days after the later
of the dates on which the Contractor receives this Notice or the Employer
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

returns the Performance Security. Unless and until the Contractor has
received payment of the amount due under Sub-Clause 15.6 [Valuation after
Termination for Employer’s Convenience], the Employer shall not execute
(any part of) the Works or arrange for (any part of) the Works to be executed
by any other entities.

After this termination, the Contractor shall proceed in accordance with

Sub-Clause 16.3 [Contractor’s Obligations After Termination].

15.6
Valuation after Termination
for Employer’s Convenience After termination under Sub-Clause 15.5 [Termination for Employer’s
Convenience] the Contractor shall, as soon as practicable, submit detailed
supporting particulars (as reasonably required by the Engineer) of:

(a) the value of work done, which shall include:

(i) the matters described in sub-paragraphs (a) to (e) of Sub-Clause
18.5 [Optional Termination], and
(ii) any additions and/or deductions, and the balance due (if any), by
reference to the matters described in sub-paragraphs (a) and (b)
of Sub-Clause 14.13 [Issue of FPC]; and
(b) the amount of any loss of profit or other losses and damages suffered
by the Contractor as a result of this termination.

The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or

Determination] to agree or determine the matters described in sub-paragraphs
(a) and (b) above (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the
date the Engineer receives the Contractor’s particulars under this Sub-Clause
shall be the date of commencement of the time limit for agreement under
Sub-Clause 3.7.3).
94 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 The Engineer shall issue a Payment Certificate for the amount so agreed or

CONDITIONS
determined, without the need for the Contractor to submit a Statement.

GENERAL
15.7
Payment after Termination
for Employer’s Convenience The Employer shall pay the Contractor the amount certified in the Payment
Certificate under Sub-Clause 15.6 [Valuation after Termination for Employer’s
Convenience] within 112 days after the Engineer receives the Contractor’s

GUIDANCE
submission under that Sub-Clause.

16.1
16
Suspension and Termination by Contractor

FORMS
Suspension by Contractor If:

(a) the Engineer fails to certify in accordance with Sub-Clause 14.6 [Issue
of IPC];
(b) the Employer fails to provide reasonable evidence in accordance with
Sub-Clause 2.4 [Employer’s Financial Arrangements];
(c) the Employer fails to comply with Sub-Clause 14.7 [Payment]; or
(d) the Employer fails to comply with:
(i) a binding agreement, or final and binding determination under
Sub-Clause 3.7 [Agreement or Determination]; or
(ii) a decision of the DAAB under 21.4 [Obtaining DAAB’s Decision]
(whether binding or final and binding)
and such failure constitutes a material breach of the Employer’s
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

obligations under the Contract,

the Contractor may, not less than 21 days after giving a Notice to the
Employer (which Notice shall state that it is given under this Sub-Clause
16.1), suspend work (or reduce the rate of work) unless and until the
Employer has remedied such a default.

This action shall not prejudice the Contractor’s entitlements to financing

charges under Sub-Clause 14.8 [Delayed Payment] and to termination
under Sub-Clause 16.2 [Termination by Contractor].

If the Employer subsequently remedies the default as described in the

above Notice before the Contractor gives a Notice of termination under
Sub-Clause 16.2 [Termination by Contractor], the Contractor shall resume
normal working as soon as is 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 Sub-Clause, the
Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment
and/or EOT] to EOT and/or payment of such Cost Plus Profit.

16.2
Termination by Contractor Termination of the Contract under this Clause shall not prejudice any other
rights of the Contractor, under the Contract or otherwise.

16.2.1 Notice

The Contractor shall be entitled to give a Notice (which shall state that it is
given under this Sub-Clause 16.2.1) to the Employer of the Contractor’s

General Conditions © FIDIC & ITA 2019

95
 intention to terminate the Contract or, in the case of sub-paragraph (g)(ii), (h),
CONDITIONS

(i) or (j) below, a Notice of termination, if:

GENERAL

(a) the Contractor does not receive the reasonable evidence within 42
days after giving a Notice under Sub-Clause 16.1 [Suspension by
Contractor] in respect of a failure to comply with Sub-Clause 2.4
[Employer’s Financial Arrangements];
(b) the Engineer fails, within 56 days after receiving a Statement and
GUIDANCE

supporting documents, to issue the relevant Payment Certificate;

(c) the Contractor does not receive the amount due under any Payment
Certificate within 42 days after the expiry of the time stated in
Sub-Clause 14.7 [Payment];
(d) the Employer fails to comply with:
(i) a binding agreement, or final and binding determination under
Sub-Clause 3.7 [Agreement or Determination]; or
FORMS

(ii) a decision of the DAAB under 21.4 [Obtaining DAAB’s Decision]

(whether binding or final and binding)
and such failure constitutes a material breach of the Employer’s
obligations under the Contract;
(e) the Employer substantially fails to perform, and such failure constitutes
a material breach of, the Employer’s obligations under the Contract;
(f) the Contractor does not receive a Notice of the Commencement Date
under Sub-Clause 8.1 [Commencement of Works] within 84 days
after receiving the Letter of Acceptance;
(g) the Employer:
(i) fails to comply with Sub-Clause 1.6 [Contract Agreement], or
(ii) assigns the Contract without the required agreement under
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Sub-Clause 1.7 [Assignment];

(h) a prolonged suspension affects the whole of the Works as described
in sub-paragraph (b) of Sub-Clause 8.12 [Prolonged Suspension];
(i) the Employer becomes bankrupt or insolvent; goes into liquidation,
administration, reorganisation, winding-up or dissolution; becomes
subject to the appointment of a liquidator, receiver, administrator,
manager or trustee; enters into a composition or arrangement with
the Employer’s creditors; or any act is done or any event occurs which
is analogous to or has a similar effect to any of these acts or events
under applicable Laws; or
(j) the Employer is found, based on reasonable evidence, to have
engaged in corrupt, fraudulent, collusive or coercive practice at any
time in relation to the Works or to the Contract.

16.2.2 Termination

Unless the Employer remedies the matter described in a Notice given

under Sub-Clause 16.2.1 [Notice] within 14 days of receiving the Notice,
the Contractor may by giving a second Notice to the Employer immediately
terminate the Contract. The date of termination shall then be the date the
Employer receives this second Notice.

However, in the case of sub-paragraph (g)(ii), (h), (i) or (j) of Sub-Clause

16.2.1 [Notice], by giving a Notice under Sub-Clause 16.2.1 the Contractor
may terminate the Contract immediately and the date of termination shall be
the date the Employer receives this Notice.

96 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 If the Contractor suffers delay and/or incurs Cost during the above period of

CONDITIONS
14 days, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims

GENERAL
For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit.

16.3
Contractor’s Obligations
After Termination After termination of the Contract under Sub-Clause 15.5 [Termination for
Employer’s Convenience], Sub-Clause 16.2 [Termination by Contractor] or

GUIDANCE
Sub-Clause 18.5 [Optional Termination], the Contractor shall promptly:

(a) cease all further work, except for such work as may have been
instructed by the Engineer for the protection of life or property or for
the safety of the Works. If the Contractor incurs Cost as a result of
carrying out such instructed work the Contractor shall be entitled
subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to be

FORMS
paid such Cost Plus Profit;
(b) deliver to the Engineer all Contractor’s Documents, Plant, Materials
and other work for which the Contractor has received payment; and
(c) remove all other Goods from the Site, except as necessary for safety,
and leave the Site.

16.4
Payment after
Termination by Contractor After termination under Sub-Clause 16.2 [Termination by Contractor], the
Employer shall promptly:

(a) pay the Contractor in accordance with Sub-Clause 18.5 [Optional

Termination]; and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(b) subject to the Contractor’s compliance with Sub-Clause 20.2 [Claims

For Payment and/or EOT], pay the Contractor the amount of any loss
of profit or other losses and damages suffered by the Contractor as a
result of this termination.

17.1
Responsibility for
17
Care of the Works and Indemnities

Care of the Works Unless the Contract is terminated in accordance with these Conditions or
otherwise, subject to Sub-Clause 17.2 [Liability for Care of the Works] the
Contractor shall take full responsibility for the care of the Works, Goods and
Contractor’s Documents from the Commencement Date until the issue of
the Taking-Over Certificate 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 deemed to be issued) for any Section or Part, responsibility for the care
of the Section or Part shall then pass to the Employer.

If the Contract is terminated in accordance with these Conditions or

otherwise, the Contractor shall cease to be responsible for the care of the
Works from the date of termination.

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 of Completion, until this outstanding work has been completed.

If any loss or damage occurs to the Works, Goods or Contractor’s Documents,

during the period when the Contractor is responsible for their care, from any
General Conditions © FIDIC & ITA 2019
97
 cause whatsoever except as stated in Sub-Clause 17.2 [Liability for Care of
CONDITIONS

the Works], the Contractor shall rectify the loss or damage at the Contractor’s
GENERAL

risk and cost, so that the Works, Goods, or Contractor’s Documents (as the
case may be) comply with the Contract.

17.2
Liability for
Care of the Works The Contractor shall be liable for any loss or damage caused by the
GUIDANCE

Contractor to the Works, Goods or Contractor’s Documents after the issue

of a Taking-Over Certificate. The Contractor shall also be liable for any loss or
damage, which occurs after the issue of a Taking-Over Certificate and which
arose from an event which occurred before the issue of this Taking-Over
Certificate, for which the Contractor was liable.

The Contractor shall have no liability whatsoever, whether by way of indemnity

FORMS

or otherwise, for loss or damage to the Works, Goods or Contractor’s

Documents caused by any of the following events (except to the extent
that such Works, Goods or Contractor’s Documents have been rejected
by the Engineer under Sub-Clause 7.5 [Defects and Rejection] before the
occurrence of any of the following events):

(a) interference, whether temporary or permanent, with any right of way,

light, air, water or other easement (other than that resulting from the
Contractor’s method of construction) which is the unavoidable result
of the execution of the Works in accordance with the Contract;
(b) use or occupation by the Employer of any part of the Permanent
Works, except as may be specified in the Contract;
(c) fault, error, defect or omission in any element of the design of the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Works by the Employer or which may be contained in the Employer’s

Requirements (and which an experienced contractor exercising
due care would not have discovered when examining the Site and
the Employer’s Requirements before submitting the Tender), other
than design carried out by the Contractor in accordance with the
Contractor’s obligations under the Contract;
(d) any operation of the forces of nature (other than those allocated to the
Contractor in the Contract Data) which is Unforeseeable or against
which an experienced contractor could not reasonably have been
expected to have taken adequate preventative precautions;
(e) any of the events or circumstances listed under sub-paragraphs (a) to
(f) of Sub-Clause 18.1 [Exceptional Events]; and/or
(f) any act or default of the Employer’s Personnel or the Employer’s other
contractors.

Subject to Sub-Clause 18.4 [Consequences of an Exceptional Event], if any

of the events described in sub-paragraphs (a) to (f) above occurs and results
in damage to the Works, Goods or Contractor’s Documents the Contractor
shall promptly give a Notice to the Engineer. Thereafter, the Contractor shall
rectify any such loss and/or damage that may arise to the extent instructed
by the Engineer. Such instruction shall be deemed to have been given under
Sub-Clause 13.3.1 [Variation by Instruction].

If the loss or damage to the Works or Goods or Contractor’s Documents

results from a combination of:

(i) any of the events described in sub-paragraphs (a) to (f) above, and
(ii) a cause for which the Contractor is liable,

98 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 and the Contractor suffers a delay and/or incurs Cost from rectifying the loss

CONDITIONS
and/or damage, the Contractor shall subject to Sub-Clause 20.2 [Claims for

GENERAL
Payment and/or EOT] be entitled to a proportion of EOT and/or Cost Plus
Profit to the extent that any of the above events have contributed to such
delays and/or Cost.

17.3
Intellectual and Industrial

GUIDANCE
Property Rights In this Sub-Clause, “infringement” means an infringement (or alleged
infringement) of any patent, registered design, copyright, trademark, trade
name, trade secret or other intellectual or industrial property right relating to
the Works; and “claim” means a third party claim (or proceedings pursuing a
third party claim) alleging an infringement.

Whenever a Party receives a claim but fails to give Notice to the other Party

FORMS
of the claim within 28 days of receiving it, the first Party shall be deemed to
have waived any right to indemnity under this Sub-Clause.

The Employer shall indemnify and hold the Contractor harmless against and
from any claim (including legal fees and expenses) alleging an infringement
which is or was:

(a) an unavoidable result of the Contractor’s compliance with the

Employer’s Requirements and/or any Variation; or
(b) a result of any Works being used by the Employer:
(i) for a purpose other than that indicated by, or reasonably to be
inferred from, the Contract, or
(ii) in conjunction with any thing not supplied by the Contractor,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

unless such use was disclosed to the Contractor before the Base
Date or is stated in the Contract.

The Contractor shall indemnify and hold the Employer harmless against
and from any other claim (including legal fees and expenses) alleging an
infringement which arises out of or in relation to:

(i) the Contractor’s execution of the Works; or

(ii) the use of Contractor’s Equipment.

If a Party is entitled to be indemnified under this Sub-Clause, the indemnifying

Party may (at the indemnifying Party’s cost) assume overall responsibility for
negotiating the settlement of the claim, and/or 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 the
Contractor’s Personnel or the Employer’s Personnel, as the case may be)
shall not make any admission which might be prejudicial to the indemnifying
Party, unless the indemnifying Party failed to promptly assume overall
responsibility for the conduct of any negotiations, litigation or arbitration after
being requested to do so by the other Party.

17.4
Indemnities by Contractor The Contractor shall indemnify and hold harmless the Employer, the
Employer’s Personnel, and their respective agents, against and from all
third party 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 of the Works, unless attributable to any negligence, wilful

General Conditions © FIDIC & ITA 2019

99
 act or breach of the Contract by the Employer, the Employer’s
CONDITIONS

Personnel, or any of their respective agents; and

GENERAL

(b) damage to or loss of any property, real or personal (other than the
Works), to the extent that such damage or loss:
(i) arises out of or in the course of or by reason of the Contractor’s
execution of the Works, and
(ii) is attributable to any negligence, wilful act or breach of the
Contract by the Contractor, the Contractor’s Personnel, their
GUIDANCE

respective agents, or anyone directly or indirectly employed by

any of them.

The Contractor shall also indemnify and hold harmless the Employer against
all acts, errors or omissions by the Contractor in carrying out the Contractor’s
design obligations that result in the Works (or Section or Part or major item of
Plant, if any), when completed, not being fit for the purpose(s) for which they
FORMS

are intended under Sub-Clause 4.1 [Contractor’s General Obligations].

17.5
Indemnities by Employer The Employer shall indemnify and hold harmless the Contractor, the
Contractor’s Personnel, and their respective agents, against and from all
third party claims, damages, losses and expenses (including legal fees and
expenses) in respect of:

(a) bodily injury, sickness, disease or death, or loss of or damage to any

property other than the Works, which is attributable to any negligence,
wilful 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
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Works), to the extent that such damage or loss arises out of any event
described under sub-paragraphs (a) to (f) of Sub-Clause 17.2 [Liability
for Care of the Works].

17.6
Shared Indemnities The Contractor’s liability to indemnify the Employer, under Sub-Clause 17.4
[Indemnities by Contractor] and/or under Sub-Clause 17.3 [Intellectual and
Industrial Property Rights], shall be reduced proportionately to the extent
that any event described under sub-paragraphs (a) to (f) of Sub-Clause 17.2
[Liability for Care of the Works] may have contributed to the said damage,
loss or injury.

Similarly, the Employer’s liability to indemnify the Contractor, under

Sub-Clause 17.5 [Indemnities by Employer] and/or under Sub-Clause 17.3
[Intellectual and Industrial Property Rights], shall be reduced proportionately
to the extent that any event for which the Contractor is responsible under
Sub-Clause 17.1 [Responsibility for Care of the Works] may have contributed
to the said damage, loss or injury.

18.1
18
Exceptional Events

Exceptional Events “Exceptional Event” means an event or circumstance which:

(i) is beyond a Party’s control;

(ii) the Party could not reasonably have provided against before entering
into the Contract;

100 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 (iii) having arisen, such Party could not reasonably have avoided or

CONDITIONS
overcome; and

GENERAL
(iv) is not substantially attributable to the other Party.

An Exceptional Event may comprise but is not limited to any of the following
events or circumstances provided that conditions (i) to (iv) above are satisfied:

(a) war, hostilities (whether war be declared or not), invasion, act of

GUIDANCE
foreign enemies;
(b) rebellion, terrorism, revolution, insurrection, military or usurped power,
or civil war;
(c) riot, commotion or disorder by persons other than the Contractor’s
Personnel and other employees of the Contractor and Subcontractors;
(d) strike or lockout not solely involving the Contractor’s Personnel and
other employees of the Contractor and Subcontractors;

FORMS
(e) encountering munitions of war, explosive materials, ionising radiation
or contamination by radio-activity, except as may be attributable
to the Contractor’s use of such munitions, explosives, radiation or
radio-activity; or
(f) natural catastrophes such as earthquake, tsunami, volcanic activity,
hurricane or typhoon.

18.2
Notice of
an Exceptional Event If a Party is or will be prevented from performing any obligations under the
Contract due to an Exceptional Event (the “affected Party” in this Clause),
then the affected Party shall give a Notice to the other Party of such an
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Exceptional Event, and shall specify the obligations, the performance of

which is or will be prevented (the “prevented obligations” in this Clause).

This Notice shall be given within 14 days after the affected Party became
aware, or should have become aware, of the Exceptional Event, and
the affected Party shall then be excused performance of the prevented
obligations from the date such performance is prevented by the Exceptional
Event. If this Notice is received by the other Party after this period of 14
days, the affected Party shall be excused performance of the prevented
obligations only from the date on which this Notice is received by the other
Party.

Thereafter, the affected Party shall be excused performance of the prevented

obligations for so long as such Exceptional Event prevents the affected Party
from performing them. Other than performance of the prevented obligations,
the affected Party shall not be excused performance of all other obligations
under the Contract.

However, the obligations of either Party to make payments due to the other
Party under the Contract shall not be excused by an Exceptional Event.

18.3
Duty to Minimise Delay Each Party shall at all times use all reasonable endeavours to minimise any
delay in the performance of the Contract as a result of an Exceptional Event.

If the Exceptional Event has a continuing effect, the affected Party shall give
further Notices describing the effect every 28 days after giving the first Notice
under Sub-Clause 18.2 [Notice of an Exceptional Event].

General Conditions © FIDIC & ITA 2019

101
 The affected Party shall immediately give a Notice to the other Party when the
CONDITIONS

affected Party ceases to be affected by the Exceptional Event. If the affected

GENERAL

Party fails to do so, the other Party may give a Notice to the affected Party
stating that the other Party considers that the affected Party’s performance
is no longer prevented by the Exceptional Event, with reasons.

18.4
Consequences of
GUIDANCE

an Exceptional Event If the Contractor is the affected Party and suffers delay and/or incurs Cost
by reason of the Exceptional Event of which he/she gave a Notice under
Sub-Clause 18.2 [Notice of an Exceptional Event], the Contractor shall be
entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to:

(a) EOT; and/or

(b) if the Exceptional Event is of the kind described in sub-paragraphs
FORMS

(a) to (e) of Sub-Clause 18.1 [Exceptional Events] and, in the case of

sub-paragraphs (b) to (e) of that Sub-Clause, occurs in the Country,
payment of such Cost.

18.5
Optional Termination If the execution of substantially all the Works in progress is prevented for a
continuous period of 84 days by reason of an Exceptional Event of which
Notice has been given under Sub-Clause 18.2 [Notice of an Exceptional
Event], or for multiple periods which total more than 140 days due to the
same Exceptional Event, then either Party may give to the other Party a
Notice of termination of the Contract.

In this event, the date of termination shall be the date 7 days after the Notice is
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

received by the other Party, and the Contractor shall proceed in accordance
with Sub-Clause 16.3 [Contractor’s Obligations After Termination].

After the date of termination the Contractor shall, as soon as practicable,

submit detailed supporting particulars (as reasonably required by the
Engineer) of the value of the work done, 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) any other Cost or liability which in the circumstances was reasonably
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 place
of business in the Contractor’s country (or to any other destination(s)
at no greater cost); and
(e) the Cost of repatriation of the Contractor’s staff and labour employed
wholly in connection with the Works at the date of termination.

The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or

Determination] to agree or determine the value of work done (and, for the
purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives
the particulars under this Sub-Clause shall be the date of commencement
of the time limit for agreement under Sub-Clause 3.7.3).

102 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 The Engineer shall issue a Payment Certificate, under Sub-Clause 14.6

CONDITIONS
[Issue of IPC], for the amount so agreed or determined, without the need for

GENERAL
the Contractor to submit a Statement.

18.6
Release from Performance
under the Law In addition to any other provision of this Clause, if any event arises outside the
control of the Parties (including, but not limited to, an Exceptional Event) which:

GUIDANCE
(a) makes it impossible or unlawful for either Party or both Parties to fulfil
their contractual obligations; or
(b) under the law governing the Contract, entitles the Parties to be
released from further performance of the Contract,

and if the Parties are unable to agree on an amendment to the Contract that

FORMS
would permit the continued performance of the Contract, then after either
Party gives a Notice to the other Party of such event:

(i) the Parties shall be discharged from further performance, and without
prejudice to the rights of either Party in respect of any previous breach
of the Contract; and
(ii) the amount payable by the Employer to the Contractor shall be the
same as would have been payable under Sub-Clause 18.5 [Optional
Termination], and such amount shall be certified by the Engineer, as if
the Contract had been terminated under that Sub-Clause.

19
Insurance
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19.1
General Requirements Without limiting either Party’s obligations or responsibilities under the
Contract, the Contractor shall effect and maintain all insurances for which
the Contractor is responsible with insurers and in terms, both of which shall
be subject to consent by the Employer. These terms shall be consistent
with terms (if any) agreed by both Parties before the date of the Letter of
Acceptance.

The insurances required to be provided under this Clause are the minimum
required by the Employer, and the Contractor may, at the Contractor’s own
cost, add such other insurances that the Contractor may deem prudent.

Whenever required by the Employer, the Contractor shall produce the

insurance policies which the Contractor is required to effect under the
Contract. As each premium is paid, the Contractor shall promptly submit
either a copy of each receipt of payment to the Employer (with a copy to the
Engineer), or confirmation from the insurers that the premium has been paid.

If the Contractor fails to effect and keep in force any of the insurances
required under Sub-Clause 19.2 [Insurances to be provided by Contractor]
then, and in any such case, the Employer may effect and keep in force such
insurances and pay any premium as may be necessary and recover the
same from the Contractor from time to time by deducting the amount(s) so
paid from any moneys due to the Contractor or otherwise recover the same
as a debt from the Contractor. The provisions of Clause 20 [Employer’s and
Contractor’s Claims] shall not apply to this Sub-Clause.

If either the Contractor or the Employer fails to comply with any condition of
the insurances effected under the Contract, the Party so failing to comply
General Conditions © FIDIC & ITA 2019
103
 shall indemnify the other Party against all direct losses and claims (including
CONDITIONS

legal fees and expenses) arising from such failure.

GENERAL

The Contractor shall also be responsible for the following:

(a) notifying the insurers of any changes in the nature, extent or

programme for the execution of the Works; and
(b) the adequacy and validity of the insurances in accordance with the
GUIDANCE

Contract at all times during the performance of the Contract.

The permitted deductible limits allowed in any policy shall not exceed the
amounts stated in the Contract Data (if not stated, the amounts agreed with
the Employer).

Where there is a shared liability the loss shall be borne by each Party in
FORMS

proportion to each Party’s liability, provided the non-recovery from insurers

has not been caused by a breach of this Clause by the Contractor or the
Employer. In the event that non-recovery from insurers has been caused by
such a breach, the defaulting Party shall bear the loss suffered.

19.2
Insurance to be provided
by the Contractor The Contractor shall provide the following insurances:

19.2.1 The Works

The Contractor shall insure and keep insured in the joint names of the
Contractor and the Employer from the Commencement Date until the date
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

of the issue of the Taking-Over Certificate for the Works:

(a) the Works and Contractor’s Documents, together with Materials and
Plant for incorporation in the Works, for their full replacement value.
The insurance cover shall extend to include loss and damage of any
part of the Works as a consequence of failure of elements defectively
designed or constructed with defective material or workmanship; and
(b) an additional amount of fifteen percent (15%) of such replacement
value (or such other amount as may be specified in the Contract Data)
to cover any additional costs incidental to the rectification of loss or
damage, including professional fees and the cost of demolition and
removal of debris.

The insurance cover shall cover the Employer and the Contractor against all
loss or damage from whatever cause arising until the issue of the Taking-Over
Certificate for the Works. Thereafter, the insurance shall continue until the
date of the issue of the Performance Certificate in respect of any incomplete
work for loss or damage arising from any cause occurring before the date
of the issue of the Taking-Over Certificate for the Works, and for any loss or
damage occasioned by the Contractor in the course of any operation carried
out by the Contractor for the purpose of complying with the Contractor’s
obligations under Clause 11 [Defects after Taking Over] and Clause 12 [Tests
after Completion].

However, the insurance cover provided by the Contractor for the Works may
exclude any of the following:

(i) the cost of making good any part of the Works which is defective
(including defective material and workmanship) or otherwise does not
comply with the Contract, provided that it does not exclude the cost

104 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 of making good any loss or damage to any other part of the Works

CONDITIONS
attributable to such defect or non-compliance;

GENERAL
(ii) indirect or consequential loss or damage including any reductions in
the Contract Price for delay;
(iii) wear and tear, shortages and pilferages; and
(iv) unless otherwise stated in the Contract Data, the risks arising from
Exceptional Events.

GUIDANCE
19.2.2 Goods

The Contractor shall insure, in the joint names of the Contractor and the
Employer, the Goods and other things brought to Site by the Contractor
to the extent specified and/or amount stated in the Contract Data (if not
specified or stated, for their full replacement value including delivery to Site).

FORMS
The Contractor shall maintain this insurance from the time the Goods are
delivered to the Site until they are no longer required for the Works.

19.2.3 Liability for breach of professional duty

To the extent that the Contractor is responsible for the design of the
Permanent Works, and consistent with the indemnities specified in Clause
17 [Care of the Works and Indemnities]:

(a) the Contractor shall effect and maintain professional indemnity

insurance against liability arising out of any act, error or omission by
the Contractor in carrying out the Contractor’s design obligations in
an amount not less than that stated in the Contract Data (if not stated,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the amount agreed with the Employer); and

(b) if stated in the Contract Data, such professional indemnity insurance
shall also indemnify the Contractor against liability arising out of
any act, error or omission by the Contractor in carrying out the
Contractor’s design obligations under the Contract that results in
the Works (or Section or Part or major item of Plant, if any), when
completed, not being fit for the purpose(s) for which they are intended
under Sub-Clause 4.1 [Contractor’s General Obligations].

The Contractor shall maintain this insurance for the period specified in the
Contract Data.

19.2.4 Injury to persons and damage to property

The Contractor shall insure, in the joint names of the Contractor and the
Employer, against liabilities for death or injury to any person, or loss of or
damage to any property (other than the Works) arising out of the performance
of the Contract and occurring before the issue of the Performance Certificate,
other than loss or damage caused by an Exceptional Event.

The insurance policy shall include a cross liability clause such that the
insurance shall apply to the Contractor and the Employer as separate
insureds.

Such insurance shall be effected before the Contractor begins any work on
the Site and shall remain in force until the issue of the Performance Certificate
and shall be for not less than the amount stated in the Contract Data (if not
stated, the amount agreed with the Employer).

General Conditions © FIDIC & ITA 2019

105
 19.2.5 Injury to employees
CONDITIONS
GENERAL

The Contractor shall effect and maintain insurance against liability for claims,
damages, losses and expenses (including legal fees and expenses) arising
out of the execution of the Works in respect of injury, sickness, disease or
death of any person employed by the Contractor or any of the Contractor’s
other personnel.
GUIDANCE

The Employer and the Engineer shall also be indemnified under the policy
of insurance, except that this insurance may exclude losses and claims to
the extent that they arise from any act or neglect of the Employer or of the
Employer’s Personnel.

The insurance shall be maintained in full force and effect during the whole
time that the Contractor’s Personnel are assisting in the execution of the
FORMS

Works. For any person employed by a Subcontractor, the insurance may be

effected by the Subcontractor, but the Contractor shall be responsible for
the Subcontractor’s compliance with this Sub-Clause.

19.2.6 Other insurances required by Laws and by local practice

The Contractor shall provide all other insurances required by the Laws of
the countries where (any part of) the Works are being carried out, at the
Contractor’s own cost.

Other insurances required by local practice (if any) shall be detailed in

the Contract Data and the Contractor shall provide such insurances in
compliance with the details given, at the Contractor’s own cost.

20
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Employer’s and Contractor’s Claims

20.1
Claims A Claim may arise:

(a) if the Employer considers that the Employer is entitled to any additional
payment from the Contractor (or reduction in the Contract Price) and/
or to an extension of the DNP;
(b) if the Contractor considers that the Contractor is entitled to any
additional payment from the Employer and/or to EOT; or
(c) if either Party considers that he/she is entitled to another entitlement
or relief against the other Party. Such other entitlement or relief
may be of any kind whatsoever (including in connection with any
certificate, determination, instruction, Notice, opinion or valuation
of the Engineer) except to the extent that it involves any entitlement
referred to in sub-paragraphs (a) and/or (b) above.

In the case of a Claim under sub-paragraph (a) or (b) above, Sub-Clause

20.2 [Claims For Payment and/or EOT] shall apply.

In the case of a Claim under sub-paragraph (c) above, where the other Party
or the Engineer has disagreed with the requested entitlement or relief (or is
deemed to have disagreed if he/she does not respond within a reasonable
time), a Dispute shall not be deemed to have arisen but the claiming Party
may by giving a Notice refer the Claim to the Engineer and Sub-Clause 3.7
[Agreement or Determination] shall apply. This Notice shall be given as soon
as practicable after the claiming Party becomes aware of the disagreement

106 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 (or deemed disagreement) and shall include details of the claiming Party’s

CONDITIONS
case and the other Party’s or the Engineer’s disagreement (or deemed

GENERAL
disagreement).

20.2
Claims For Payment
and/or EOT If either Party considers that he/she is entitled to any additional payment by
the other Party (or, in the case of the Employer, a reduction in the Contract

GUIDANCE
Price) and/or to EOT (in the case of the Contractor) or an extension of the
DNP (in the case of the Employer) under any Clause of these Conditions or
otherwise in connection with the Contract, the following Claim procedure
shall apply:

20.2.1 Notice of Claim

FORMS
The claiming Party shall give a Notice to the Engineer, describing the event
or circumstance giving rise to the cost, loss, delay or extension of DNP for
which the Claim is made as soon as practicable, and no later than 28 days
after the claiming Party became aware, or should have become aware, of
the event or circumstance (the “Notice of Claim” in these Conditions).

If the claiming Party fails to give a Notice of Claim within this period of 28
days, the claiming Party shall not be entitled to any additional payment,
the Contract Price shall not be reduced (in the case of the Employer as the
claiming Party), the Time for Completion (in the case of the Contractor as
the claiming Party) or the DNP (in the case of the Employer as the claiming
Party) shall not be extended, and the other Party shall be discharged from
any liability in connection with the event or circumstance giving rise to the
Claim.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

20.2.2 Engineer’s initial response

If the Engineer considers that the claiming Party has failed to give the Notice
of Claim within the period of 28 days under Sub-Clause 20.2.1 [Notice of
Claim] the Engineer shall, within 14 days after receiving the Notice of Claim,
give a Notice to the claiming Party accordingly (with reasons).

If the Engineer does not give such a Notice within this period of 14 days,
the Notice of Claim shall be deemed to be a valid Notice. If the other Party
disagrees with such deemed valid Notice of Claim the other Party shall give
a Notice to the Engineer which shall include details of the disagreement.
Thereafter, the agreement or determination of the Claim under Sub-Clause
20.2.5 [Agreement or determination of the Claim] shall include a review by
the Engineer of such disagreement.

If the claiming Party receives a Notice from the Engineer under this Sub-Clause
and disagrees with the Engineer or considers there are circumstances which
justify late submission of the Notice of Claim, the claiming Party shall include
in its fully detailed Claim under Sub-Clause 20.2.4 [Fully detailed claim]
details of such disagreement or why such late submission is justified (as the
case may be).

20.2.3 Contemporary records

In this Sub-Clause 20.2, “contemporary records” means records that are

prepared or generated at the same time, or immediately after, the event or
circumstance giving rise to the Claim.

General Conditions © FIDIC & ITA 2019

107
 The claiming Party shall keep such contemporary records as may be
CONDITIONS

necessary to substantiate the Claim.

GENERAL

Without admitting the Employer’s liability, the Engineer may monitor the
Contractor’s contemporary records and/or instruct the Contractor to
keep additional contemporary records. The Contractor shall permit the
Engineer to inspect all these records during normal working hours (or at
other times agreed by the Contractor), and shall if instructed submit copies
GUIDANCE

to the Engineer. Such monitoring, inspection or instruction (if any) by the

Engineer shall not imply acceptance of the accuracy or completeness of the
Contractor’s contemporary records.

20.2.4 Fully detailed Claim

In this Sub-Clause 20.2, “fully detailed Claim” means a submission which

FORMS

includes:

(a) a detailed description of the event or circumstance giving rise to the

Claim;
(b) a statement of the contractual and/or other legal basis of the Claim;
(c) all contemporary records on which the claiming Party relies; and
(d) detailed supporting particulars of the amount of additional payment
claimed (or amount of reduction of the Contract Price in the case of
the Employer as the claiming Party), and/or EOT claimed (in the case
of the Contractor) or extension of the DNP claimed (in the case of the
Employer).

The Costs claimed under this Sub-Clause 20.2.4 and relating to Excavation
and Lining Works shall be calculated by reference to the rates and prices in
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Bill of Quantities, to the extent that the unit rates and the respective items
of work are comparable as stated under Sub-Clause 13.8 [Measurement of
Excavation and Lining Works and Adjustment of Time for Completion].

Within either:

(i) 84 days after the claiming Party became aware, or should have
become aware, of the event or circumstance giving rise to the Claim,
or
(ii) such other period (if any) as may be proposed by the claiming Party
and agreed by the Engineer
the claiming Party shall submit to the Engineer a fully detailed Claim.

If within this time limit the claiming Party fails to submit the statement under
sub-paragraph (b) above, the Notice of Claim shall be deemed to have
lapsed, it shall no longer be considered as a valid Notice, and the Engineer
shall, within 14 days after this time limit has expired, give a Notice to the
claiming Party accordingly.

If the Engineer does not give such a Notice within this period of 14 days,
the Notice of Claim shall be deemed to be a valid Notice. If the other Party
disagrees with such deemed valid Notice of Claim the other Party shall give
a Notice to the Engineer which shall include details of the disagreement.
Thereafter, the agreement or determination of the Claim under Sub-Clause
20.2.5 [Agreement or determination of the Claim] shall include a review by
the Engineer of such disagreement.

If the claiming Party receives a Notice from the Engineer under this Sub-Clause
20.2.4 and if the claiming Party disagrees with such Notice or considers

108 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 there are circumstances which justify late submission of the statement under

CONDITIONS
sub-paragraph (b) above, the fully detailed claim shall include details of the

GENERAL
claiming Party’s disagreement or why such late submission is justified (as the
case may be).

If the event or circumstance giving rise to the Claim has a continuing effect,
Sub-Clause 20.2.6 [Claims of continuing effect] shall apply.

GUIDANCE
20.2.5 Agreement or determination of the Claim

After receiving a fully detailed Claim under Sub-Clause 20.2.4 [Fully detailed
Claim], or an interim or final fully detailed Claim (as the case may be) under
Sub-Clause 20.2.6 [Claims of continuing effect], the Engineer shall proceed
under Sub-Clause 3.7 [Agreement or Determination] to agree or determine:

FORMS
(a) the additional payment (if any) to which the claiming Party is entitled
or the reduction of the Contract Price (in the case of the Employer as
the claiming Party); and/or
(b) the extension (if any) of the Time for Completion (before or after its
expiry) under Sub-Clause 8.5 [Extension of Time for Completion] (in
the case of the Contractor as the claiming Party), or the extension (if
any) of the DNP (before its expiry) under Sub-Clause 11.3 [Extension
of Defects Notification Period] (in the case of the Employer as the
claiming Party),

to which the claiming Party is entitled under the Contract.

If the Engineer has given a Notice under Sub-Clause 20.2.2 [Engineer’s

initial response] and/or under Sub-Clause 20.2.4 [Fully detailed Claim],
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Claim shall nevertheless be agreed or determined in accordance with

this Sub-Clause 20.2.5. The agreement or determination of the Claim shall
include whether or not the Notice of Claim shall be treated as a valid Notice
taking account of the details (if any) included in the fully detailed claim of the
claiming Party’s disagreement with such Notice(s) or why late submission is
justified (as the case may be). The circumstances which may be taken into
account (but shall not be binding) may include:

- whether or to what extent the other Party would be prejudiced by

acceptance of the late submission;
- in the case of the time limit under Sub-Clause 20.2.1 [Notice of
Claim], any evidence of the other Party’s prior knowledge of the event
or circumstance giving rise to the Claim, which the claiming Party may
include in its supporting particulars; and/or
- in the case of the time limit under Sub-Clause 20.2.4 [Fully detailed
Claim], any evidence of the other Party’s prior knowledge of the
contractual and/or other legal basis of the Claim, which the claiming
Party may include in its supporting particulars.
If, having received the fully detailed Claim under Sub-Clause 20.2.4 [Fully
detailed Claim], or in the case of a Claim under Sub-Clause 20.2.6 [Claims
of continuing effect] an interim or final fully detailed Claim (as the case may
be), the Engineer requires necessary additional particulars:

(i) he/she shall promptly give a Notice to the claiming Party, describing
the additional particulars and the reasons for requiring them;
(ii) he/she shall nevertheless give his/her response on the contractual or
other legal basis of the Claim, by giving a Notice to the claiming Party,
within the time limit for agreement under Sub-Clause 3.7.3 [Time
limits];

General Conditions © FIDIC & ITA 2019

109
 (iii) as soon as practicable after receiving the Notice under sub-paragraph
CONDITIONS

(i) above, the claiming Party shall submit the additional particulars;
GENERAL

and
(iv) the Engineer shall then proceed under Sub-Clause 3.7 [Agreement or
Determination] to agree or determine the matters under sub-paragraphs
(a) and/or (b) above (and, for the purpose of Sub-Clause 3.7.3 [Time
limits], the date the Engineer receives the additional particulars from
the claiming Party shall be the date of commencement of the time
GUIDANCE

limit for agreement under Sub-Clause 3.7.3).

20.2.6 Claims of continuing effect

If the event or circumstance giving rise to a Claim under this Sub-Clause

20.2 has a continuing effect:
FORMS

(a) the fully detailed Claim submitted under Sub-Clause 20.2.4 [Fully
detailed Claim] shall be considered as interim;
(b) in respect of this first interim fully detailed Claim, the Engineer shall
give his/her response on the contractual or other legal basis of the
Claim, by giving a Notice to the claiming Party, within the time limit for
agreement under Sub-Clause 3.7.3 [Time limits];
(c) after submitting the first interim fully detailed Claim the claiming Party
shall submit further interim fully detailed Claims at monthly intervals,
giving the accumulated amount of additional payment claimed (or the
reduction of the Contract Price, in the case of the Employer as the
claiming Party), and/or extension of time claimed (in the case of the
Contractor as the claiming Party) or extension of the DNP (in the case
of the Employer as the claiming Party); and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(d) the claiming Party shall submit a final fully detailed Claim within 28 days
after the end of the effects resulting from the event or circumstance,
or within such other period as may be proposed by the claiming Party
and agreed by the Engineer. This final fully detailed claim shall give
the total amount of additional payment claimed (or the reduction of
the Contract Price, in the case of the Employer as the claiming Party)
and/or extension of time claimed (in the case of the Contractor as the
claiming Party) or extension of the DNP (in the case of the Employer
as the claiming Party).

20.2.7 General requirements

After receiving the Notice of Claim, and until the Claim is agreed or determined
under Sub-Clause 20.2.5 [Agreement or determination of the Claim], in each
Payment Certificate the Engineer shall include such amounts for any Claim
as have been reasonably substantiated as due to the claiming Party under
the relevant provision of the Contract.

The Employer shall only be entitled to claim any payment from the Contractor
and/or to extend the DNP, or set off against or make any deduction from any
amount due to the Contractor, by complying with this Sub-Clause 20.2.

The requirements of this Sub-Clause 20.2 are in addition to those of any

other Sub-Clause which may apply to the Claim. If the claiming Party fails
to comply with this or any other Sub-Clause in relation to the Claim, any
additional payment and/or any EOT (in the case of the Contractor as the
claiming Party) or extension of the DNP (in the case of the Employer as
the claiming Party), shall take account of the extent (if any) to which the
failure has prevented or prejudiced proper investigation of the Claim by the
Engineer.

110 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 21

CONDITIONS
Disputes and Arbitration

GENERAL
21.1
Constitution of the DAAB Disputes shall be decided by a DAAB in accordance with Sub-Clause 21.4
[Obtaining DAAB’s Decision]. The Parties shall jointly appoint the member(s)
of the DAAB within the time stated in the Contract Data (if not stated, 28
days) after the date the Contractor receives the Letter of Acceptance.

GUIDANCE
The DAAB shall comprise, as stated in the Contract Data, either one suitably
qualified member (the “sole member”) or three suitably qualified members
(the “members”). If the number is not so stated, and the Parties do not agree
otherwise, the DAAB shall comprise three members.

The sole member or three members (as the case may be) shall be selected

FORMS
from those named in the list in the Contract Data, other than anyone who is
unable or unwilling to accept appointment to the DAAB.

If the DAAB is to comprise three members, each Party shall select one
member for the agreement of the other Party. The Parties shall consult both
these members and shall agree the third member, who shall be appointed to
act as chairperson.

The DAAB shall be deemed to be constituted on the date that the Parties
and the sole member or the three members (as the case may be) of the
DAAB have all signed a DAAB Agreement.

The terms of the remuneration of either the sole member or each of the
three members, including the remuneration of any expert whom the DAAB
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

consults, shall be mutually agreed by the Parties when agreeing the terms of
the DAAB Agreement. Each Party shall be responsible for paying one-half of
this remuneration.

If at any time the Parties so agree, they may appoint a suitably qualified
person or persons to replace any one or more members of the DAAB.
Unless the Parties agree otherwise, a replacement DAAB member shall be
appointed if a member declines to act or is unable to act as a result of death,
illness, disability, resignation or termination of appointment. The replacement
member shall be appointed in the same manner as the replaced member was
required to have been selected or agreed, as described in this Sub-Clause.

The appointment of any member may be terminated by mutual agreement

of both Parties, but not by the Employer or the Contractor acting alone.

Unless otherwise agreed by both Parties, the term of the DAAB (including
the appointment of each member) shall expire either:

(a) on the date the discharge shall have become, or deemed to have
become, effective under Sub-Clause 14.12 [Discharge]; or
(b) 28 days after the DAAB has given its decision on all Disputes, referred
to it under Sub-Clause 21.4 [Obtaining DAAB’s Decision] before such
discharge has become effective,

whichever is later.

However, if the Contract is terminated under any Sub-Clause of these

Conditions or otherwise, the term of the DAAB (including the appointment of
each member) shall expire 28 days after:

General Conditions © FIDIC & ITA 2019

111
 (i) the DAAB has given its decision on all Disputes, which were referred
CONDITIONS

to it (under Sub-Clause 21.4 [Obtaining DAAB’s Decision]) within 224

GENERAL

days after the date of termination; or

(ii) the date that the Parties reach a final agreement on all matters
(including payment) in connection with the termination

whichever is earlier.
GUIDANCE

21.2
Failure to Appoint
DAAB Member(s) If any of the following conditions apply, namely:

(a) if the DAAB is to comprise a sole member, the Parties fail to agree the
appointment of this member by the date stated in the first paragraph
of Sub-Clause 21.1 [Constitution of the DAAB]; or
FORMS

(b) if the DAAB is to comprise three persons, and if by the date stated in
the first paragraph of Sub-Clause 21.1 [Constitution of the DAAB]:
(i) either Party fails to select a member (for agreement by the other
Party);
(ii) either Party fails to agree a member selected by the other Party;
and/or
(iii) the Parties fail to agree the appointment of the third member (to
act as chairperson) of the DAAB;

(c) the Parties fail to agree the appointment of a replacement within 42

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,
illness, disability, resignation, or termination of appointment; or
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(d) if, after the Parties have agreed the appointment of the member(s)
or replacement, such appointment cannot be effected because
one Party refuses or fails to sign a DAAB Agreement with any such
member or replacement (as the case may be) within 14 days of the
other Party’s request to do so,
then the appointing entity or official named in the Contract Data shall, at the
request of either or both Parties and after due consultation with both Parties,
appoint the member(s) of the DAAB (who, in the case of sub-paragraph (d)
above, shall be the agreed member(s) or replacement). This appointment
shall be final and conclusive.

Thereafter, the Parties and the member(s) so appointed shall be deemed to

have signed and be bound by a DAAB Agreement under which:

(i) the monthly services fee and daily fee shall be as stated in the terms
of the appointment; and
(ii) the law governing the DAAB Agreement shall be the governing law of
the Contract defined in Sub-Clause 1.4 [Law and Language].

Each Party shall be responsible for paying one-half of the remuneration of

the appointing entity or official. If the Contractor pays the remuneration in full,
the Contractor shall include one-half of the amount of such remuneration in
a Statement and the Employer shall then pay the Contractor in accordance
with the Contract. If the Employer pays the remuneration in full, the Engineer
shall include one-half of the amount of such remuneration as a deduction
under sub-paragraph (b) of Sub-Clause 14.6.1 [The IPC]

112 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 21.3

CONDITIONS
Avoidance of Disputes If the Parties so agree, they may jointly request (in writing, with a copy to

GENERAL
the Engineer) the DAAB to provide assistance and/or informally discuss and
attempt to resolve any issue or disagreement that may have arisen between
them during the performance of the Contract. If the DAAB becomes aware
of an issue or disagreement, it may invite the Parties to make such a joint
request.

GUIDANCE
Such joint request may be made at any time, except during the period that
the Engineer is carrying out his/her duties under Sub-Clause 3.7 [Agreement
or Determination] on the matter at issue or in disagreement unless the Parties
agree otherwise.

Such informal assistance may take place during any meeting, Site visit or
otherwise. However, unless the Parties agree otherwise, both Parties shall

FORMS
be present at such discussions. The Parties are not bound to act on any
advice given during such informal meetings, and the DAAB shall not be
bound in any future Dispute resolution process or decision by any views or
advice given during the informal assistance process, whether provided orally
or in writing.

21.4
Obtaining DAAB’s Decision If a Dispute arises between the Parties then either Party may refer the Dispute
to the DAAB for its decision (whether or not any informal discussions have
been held under Sub-Clause 21.3 [Avoidance of Disputes]) and the following
provisions shall apply.

21.4.1 Reference of a Dispute to the DAAB

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

The reference of a Dispute to the DAAB (the “reference” in this Sub-Clause

21.4) shall:

(a) if Sub-Clause 3.7 [Agreement or Determination] applied to the subject

matter of the Dispute, be made within 42 days of giving or receiving
(as the case may be) a NOD under Sub-Clause 3.7.5 [Dissatisfaction
with Engineer’s determination]. If the Dispute is not referred to the
DAAB within this period of 42 days, such NOD shall be deemed to
have lapsed and no longer be valid;
(b) state that it is given under this Sub-Clause;
(c) set out the referring Party’s case relating to the Dispute;
(d) be in writing, with copies to the other Party and the Engineer; and
(e) for a DAAB of three persons, be deemed to have been received by
the DAAB on the date it is received by the chairperson of the DAAB.

The reference of a Dispute to the DAAB under this Sub-Clause shall, unless
prohibited by law, be deemed to interrupt the running of any applicable
statute of limitation or prescription period.

21.4.2 The Parties’ obligations after the reference

Both Parties shall promptly make available to the DAAB all information,
access to the Site, and appropriate facilities, as the DAAB may require for
the purposes of making a decision on the Dispute.

Unless the Contract has already been abandoned or terminated, the Parties
shall continue to perform their obligations in accordance with the Contract.

General Conditions © FIDIC & ITA 2019

113
 21.4.3 The DAAB’s decision
CONDITIONS

The DAAB shall complete and give its decision within:

GENERAL

(a) 84 days after receiving the reference; or

(b) such period as may be proposed by the DAAB and agreed by both
Parties.

However, if at the end of this period, the due date(s) for payment of any
GUIDANCE

DAAB member’s invoice(s) has passed but such invoice(s) remains unpaid,
the DAAB shall not be obliged to give its decision until such outstanding
invoice(s) have been paid in full, in which case the DAAB shall give its
decision as soon as practicable after payment has been received.

The decision shall be given in writing to both Parties with a copy to the
Engineer, shall be reasoned, and shall state that it is given under this
FORMS

Sub-Clause.

The decision shall be binding on both Parties, who shall promptly comply
with it whether or not a Party gives a NOD with respect to such decision
under this Sub-Clause. The Employer shall be responsible for the Engineer’s
compliance with the DAAB decision.

If the decision of the DAAB requires a payment of an amount by one Party to

the other Party

(i) subject to sub-paragraph (ii) below, this amount shall be immediately

due and payable without any certification or Notice; and
(ii) the DAAB may (as part of the decision), at the request of a Party
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

but only if there are reasonable grounds for the DAAB to believe that
the payee will be unable to repay such amount in the event that the
decision is reversed under Sub-Clause 21.6 [Arbitration], require
the payee to provide an appropriate security (at the DAAB’s sole
discretion) in respect of such amount.

The DAAB proceeding shall not be deemed to be an arbitration and the

DAAB shall not act as arbitrator(s).

21.4.4 Dissatisfaction with DAAB’s decision

If either Party is dissatisfied with the DAAB’s decision:

(a) such Party may give a NOD to the other Party, with a copy to the
DAAB and to the Engineer;
(b) this NOD shall state that it is a “Notice of Dissatisfaction with the
DAAB’s Decision” and shall set out the matter in Dispute and the
reason(s) for dissatisfaction; and
(c) this NOD shall be given within 28 days after receiving the DAAB’s
decision.

If the DAAB fails to give its decision within the period stated in Sub-Clause
21.4.3 [The DAAB’s decision], then either Party may, within 28 days after
this period has expired, give a NOD to the other Party in accordance with
sub-paragraphs (a) and (b) above.

Except as stated in the last paragraph of Sub-Clause 3.7.5 [Dissatisfaction

with Engineer’s determination], in Sub-Clause 21.7 [Failure to Comply with
DAAB’s Decision] and in Sub-Clause 21.8 [No DAAB In Place], neither Party

114 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 shall be entitled to commence arbitration of a Dispute unless a NOD in

CONDITIONS
respect of that Dispute has been given in accordance with this Sub-Clause

GENERAL
21.4.4.

If the DAAB has given its decision as to a matter in Dispute to both Parties,
and no NOD under this Sub-Clause 21.4.4 has been given by either Party
within 28 days after receiving the DAAB’s decision, then the decision shall
become final and binding on both Parties.

GUIDANCE
If the dissatisfied Party is dissatisfied with only part(s) of the DAAB’s decision:

(i) this part(s) shall be clearly identified in the NOD;

(ii) this part(s), and any other parts of the decision that are affected by
such part(s) or rely on such part(s) for completeness, shall be deemed
to be severable from the remainder of the decision; and

FORMS
(iii) the remainder of the decision shall become final and binding on both
Parties as if the NOD had not been given.

21.5
Amicable Settlement Where a NOD has been given under Sub-Clause 21.4 [Obtaining DAAB’s
Decision], both Parties shall attempt to settle the Dispute amicably before
the commencement of arbitration. However, unless both Parties agree
otherwise, arbitration may be commenced on or after the twenty-eighth
(28th) day after the day on which this NOD was given, even if no attempt at
amicable settlement has been made.

21.6
Arbitration Unless settled amicably, and subject to Sub-Clause 3.7.5 [Dissatisfaction
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with Engineer’s determination], Sub-Clause 21.4.4 [Dissatisfaction with

DAAB’s decision], Sub-Clause 21.7 [Failure to Comply with DAAB’s Decision]
and Sub-Clause 21.8 [No DAAB In Place], any Dispute in respect of which
the DAAB’s decision (if any) has not become final and binding shall be finally
settled by international arbitration. Unless otherwise agreed by both Parties:

(a) the Dispute shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce;
(b) the Dispute shall be settled by one or three arbitrators appointed in
accordance with these Rules; and
(c) the arbitration shall be conducted in the ruling language defined in
Sub-Clause 1.4 [Law and Language].

The arbitrator(s) shall have full power to open up, review and revise any
certificate, determination (other than a final and binding determination),
instruction, opinion or valuation of the Engineer, and any decision of the DAAB
(other than a final and binding decision) relevant to the Dispute. Nothing shall
disqualify the Engineer from being called as a witness and giving evidence
before the arbitrator(s) on any matter whatsoever relevant to the Dispute.

In any award dealing with costs of the arbitration, the arbitrator(s) may take
account of the extent (if any) to which a Party failed to cooperate with the
other Party in constituting a DAAB under Sub-Clause 21.1 [Constitution of
the DAAB] and/or Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)].

Neither Party shall be limited in the proceedings before the arbitrator(s) to

the evidence or arguments previously put before the DAAB to obtain its
decision, or to the reasons for dissatisfaction given in the Party’s NOD under
Sub-Clause 21.4 [Obtaining DAAB’s Decision]. Any decision of the DAAB
shall be admissible in evidence in the arbitration.

General Conditions © FIDIC & ITA 2019

115
 Arbitration may be commenced before or after completion of the Works. The
CONDITIONS

obligations of the Parties, the Engineer and the DAAB shall not be altered by
GENERAL

reason of any arbitration being conducted during the progress of the Works.

If an award requires a payment of an amount by one Party to the other

Party, this amount shall be immediately due and payable without any further
certification or Notice.
GUIDANCE

21.7
Failure to Comply
with DAAB’s Decision In the event that a Party fails to comply with any decision of the DAAB, whether
binding or final and binding, then the other Party may, without prejudice to
any other rights it may have, refer the failure itself directly to arbitration under
Sub-Clause 21.6 [Arbitration] in which case Sub-Clause 21.4 [Obtaining
DAAB’s Decision] and Sub-Clause 21.5 [Amicable Settlement] shall not
FORMS

apply to this reference. The arbitral tribunal (constituted under Sub-Clause

21.6 [Arbitration]) shall have the power, by way of summary or other
expedited procedure, to order, whether by an interim or provisional measure
or an award (as may be appropriate under applicable law or otherwise), the
enforcement of that decision.

In the case of a binding but not final decision of the DAAB, such interim or
provisional measure or award shall be subject to the express reservation that
the rights of the Parties as to the merits of the Dispute are reserved until they
are resolved by an award.

Any interim or provisional measure or award enforcing a decision of the

DAAB which has not been complied with, whether such decision is binding
or final and binding, may also include an order or award of damages or other
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

relief.

21.8
No DAAB In Place 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 DAAB in place
(or no DAAB is being constituted), whether by reason of the expiry of the
DAAB’s appointment or otherwise:

(a) Sub-Clause 21.4 [Obtaining DAAB’s Decision] and Sub-Clause 21.5

[Amicable Settlement] shall not apply; and
(b) the Dispute may be referred by either Party directly to arbitration under
Sub-Clause 21.6 [Arbitration] without prejudice to any other rights the
Party may have.

116 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 APPENDIX

CONDITIONS
GENERAL
General Conditions of DAAB Agreement

1
Definitions 1.1 “General Conditions of Dispute Avoidance/Adjudication Agreement”

GUIDANCE
or “GCs” means this document entitled “General Conditions of Dispute
Avoidance/Adjudication Agreement”, as published by FIDIC.

1.2 In the DAAB Agreement (as defined below) and in the GCs, words and
expressions which are not otherwise defined shall have the meanings
assigned to them in the Contract (as defined in the DAAB Agreement).

FORMS
1.3 “DAAB Agreement” is as defined under the Contract and is a tripartite
agreement by and between:

(a) the Employer;

(b) the Contractor; and
(c) the DAAB Member who is defined in the DAAB Agreement as being
either:
(i) the sole member of the DAAB, or
(ii) one of the three members (or the chairperson) of the DAAB.

1.3 “DAAB’s Activities” means the activities carried out by the DAAB in
accordance with the Contract and the GCs, including all Informal Assistance,
meetings (including meetings and/or discussions between the DAAB
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

members in the case of a three-member DAAB), Site visits, hearings and

decisions.

1.4 “DAAB Rules” means the document entitled “DAAB Procedural Rules”
published by FIDIC which are annexed to, and form part of, the GCs.

1.5 “Informal Assistance” means the informal assistance given by the DAAB
to the Parties when requested jointly by the Parties under Sub-Clause 21.3
[Avoidance of Disputes] of the Conditions of Contract.

1.6 “Term of the DAAB” means the period starting on the Effective Date (as
defined in Sub-Clause 2.1 below) and finishing on the date that the term of
the DAAB expires in accordance with Sub-Clause 21.1 [Constitution of the
DAAB] of the Conditions of Contract.

1.7 “Notification” means a notice in writing given under the GCs, which shall
be:

(a) (i) a paper-original signed by the DAAB Member or the authorised

representative of the Contractor or of the Employer (as the case
may be); or
(ii) an electronic original generated from the system of electronic
transmission agreed between the Parties and the DAAB, which
electronic original is transmitted by the electronic address
uniquely assigned to the DAAB Member or each such authorised
representative (as the case may be);
(b) delivered by hand (against receipt), or sent by mail or courier (against
receipt), or transmitted using the system of electronic transmission
under sub-paragraph (a)(ii) above; and

General Conditions © FIDIC & ITA 2019

117
 (c) delivered, sent or transmitted to the address for the recipient’s
CONDITIONS

communications as stated in the DAAB Agreement. However, if the

GENERAL

recipient gives a Notification of another address, all Notifications shall

be delivered accordingly after the sender receives such Notification.

2
General Provisions 2.1 The DAAB Agreement shall take effect:
GUIDANCE

(a) in the case of a sole-member DAAB, on the date when the Employer,
the Contractor and the DAAB Member have each signed (or, under
the Contract, are deemed to have signed) the DAAB Agreement; or
(b) in the case of a three-member DAAB, on the date when the Employer,
the Contractor, the DAAB Member and the Other Members have each
signed (or under the Contract are deemed to have signed) a DAAB
Agreement.
FORMS

(the “Effective Date” in the GCs).

2.2 Immediately after the Effective Date, either or both Parties shall give a
Notification to the DAAB Member that the DAAB Agreement has come into
effect. If the DAAB Member does not receive such a notice within 182 days
after entering into the DAAB Agreement, it shall be void and ineffective.

2.3 The employment of the DAAB Member is a personal appointment. No

assignment of, or subcontracting or delegation of the DAAB Member’s rights
and/or obligations under the DAAB Agreement is permitted.

3
Warranties 3.1 The DAAB Member warrants and agrees that he/she is, and will remain at
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

all times during the Term of the DAAB, impartial and independent of the
Employer, the Contractor, the Employer’s Personnel and the Contractor’s
Personnel (including in accordance with Sub-Clause 4.1 below).

3.2 If, after signing the DAAB Agreement (or after he/she is deemed to have
signed the DAAB Agreement under the Contract), the DAAB Member
becomes aware of any fact or circumstance which might:

(a) call into question his/her independence or impartiality; and/or

(b) be, or appear to be, inconsistent with his/her warranty and agreement
under Sub-Clause 3.1 above
the DAAB Member warrants and agrees that he/she shall immediately
disclose this in writing to the Parties and the Other Members (if any).

3.3 When appointing the DAAB Member, each Party relies on the DAAB
Member’s representations that he/she is:

(a) experienced and/or knowledgeable in the type of work which the

Contractor is to carry out under the Contract;
(b) experienced in the interpretation of construction and/or engineering
contract documentation; and
(c) fluent in the language for communications stated in the Contract Data
(or the language as agreed between the Parties and the DAAB).

4
Independence and
Impartiality 4.1 Further to Sub-Clauses 3.1 and 3.2 above, the DAAB Member shall:

118 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 (a) have no financial interest in the Contract, or in the project of which the

CONDITIONS
Works are part, except for payment under the DAAB Agreement;

GENERAL
(b) have no interest whatsoever (financial or otherwise) in the Employer, the
Contractor, the Employer’s Personnel or the Contractor’s Personnel;
(c) in the ten years before signing the DAAB Agreement, not have
been employed as a consultant or otherwise by the Employer, the
Contractor, the Employer’s Personnel or the Contractor’s Personnel;

GUIDANCE
(d) not previously have acted, and shall not act, in any judicial or arbitral
capacity in relation to the Contract;
(e) have disclosed in writing to the Employer, the Contractor and the
Other Members (if any), before signing the DAAB Agreement (or
before he/she is deemed to have signed the DAAB Agreement under
the Contract) and to his/her best knowledge and recollection, any:
(i) existing and/or past professional or personal relationships with

FORMS
any director, officer or employee of the Employer, the Contractor,
the Employer’s Personnel or the Contractor’s Personnel (including
as a dispute resolution practitioner on another project),
(ii) facts or circumstances which might call into question his/her
independence or impartiality, and
(iii) previous involvement in the project of which the Contract forms
part;
(f) not, while a DAAB Member and for the Term of the DAAB:
(i) be employed as a consultant or otherwise by, and/or
(ii) enter into discussions or make any agreement regarding future
employment with
the Employer, the Contractor, the Employer’s Personnel or the
Contractor’s Personnel, except as may be agreed by the Employer,
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Contractor and the Other Members (if any); and/or

(g) not solicit, accept or receive (directly or indirectly) any gift, gratuity,
commission or other thing of value from the Employer, the Contractor,
the Employer’s Personnel or the Contractor’s Personnel, except for
payment under the DAAB Agreement.

5
General Obligations
of the DAAB Member 5.1 The DAAB Member shall:

(a) comply with the GCs, the DAAB Rules and the Conditions of Contract
that are relevant to the DAAB’s Activities;
(b) not give advice to the Employer, the Contractor, the Employer’s
Personnel or the Contractor’s Personnel concerning the conduct of
the Contract, except as required to carry out the DAAB’s Activities;
(c) ensure his/her availability during the Term of the DAAB (except in
exceptional circumstances, in which case the DAAB Member shall
give a Notification without delay to the Parties and the Other Members
(if any) detailing the exceptional circumstances) for all meetings, Site
visits, hearings and as is necessary to comply with sub-paragraph (a)
above;
(d) become, and shall remain for the duration of the Term of the DAAB,
knowledgeable about the Contract and informed about:
(i) the Parties’ performance of the Contract;
(ii) the Site and its surroundings; and
(iii) the progress of the Works (and of any other parts of the project
of which the Contract forms part)

General Conditions © FIDIC & ITA 2019

119
 including by visiting the Site, meeting with the Parties and by studying
CONDITIONS

all documents received from either Party under Rule 4.3 of the DAAB
GENERAL

Rules (which shall be maintained in a current working file, in hard-copy

or electronic format at the DAAB Member’s discretion); and
(e) be available to give Informal Assistance when requested jointly by the
Parties.

6
GUIDANCE

General Obligations
of the Parties 6.1 Each Party shall comply with the GCs, the DAAB Rules and the Conditions
of Contract that are relevant to the DAAB’s Activities. The Employer and the
Contractor shall be responsible for compliance with this provision by the
Employer’s Personnel and the Contractor’s Personnel, respectively.

6.2 Each Party shall cooperate with the other Party in constituting the DAAB,
FORMS

under Sub-Clause 21.1 [Constitution of the DAAB] and/or Sub-Clause 21.2

[Failure to Appoint DAAB Member(s)] of the Conditions of Contract, without
delay.

6.3 In connection with the DAAB’s Activities, each Party shall:

(a) cooperate in good faith with the DAAB; and

(b) fulfil its duties, and exercise any right or entitlement, under the
Contract, the GCs and the DAAB Rules and/or otherwise
in the manner necessary to achieve the objectives under Rule 1 of the DAAB
Rules.

6.4 The Parties, the Employer’s Personnel and the Contractor’s Personnel shall
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

not request advice from or consultation with the DAAB Member regarding
the Contract, except as required for the DAAB Member to carry out the
DAAB’s Activities.

6.5 At all times when interacting with the DAAB, each Party shall not compromise
the DAAB’s warranty of independence and impartiality under Sub-Clause
3.1 above.

6.6 In addition to providing documents under Rule 4.3 of the DAAB Rules, each
Party shall ensure that the DAAB Member remains informed as is necessary
to enable him/her to comply with sub-paragraph (d) of Sub-Clause 5.1
above.

7
Confidentiality 7.1 Subject to Sub-Clause 7.4 below, the DAAB Member shall treat the details
of the Contract, all the DAAB’s Activities and the documents provided under
Rule 4.3 of the DAAB Rules as private and confidential, and shall not publish
or disclose them without the prior written consent of the Parties and the
Other Members (if any).

7.2 Subject to Sub-Clause 7.4 below, the Employer, the Contractor, the
Employer’s Personnel and the Contractor’s Personnel shall treat the details
of all the DAAB’s Activities as private and confidential.

7.3 Each person’s obligation of confidentiality under Sub-Clause 7.1 or

Sub-Clause 7.2 above (as the case may be) shall not apply where the
information:

(a) was already in that person’s possession without an obligation of

confidentiality before receipt under the DAAB Agreement;

120 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 (b) becomes generally available to the public through no breach of the

CONDITIONS
GCs; or

GENERAL
(c) is lawfully obtained by the person from a third party which is not
bound by an obligation of confidentiality.

7.4 If a DAAB Member is replaced under the Contract, the Parties and/or the
Other Members (if any) shall disclose details of the Contract, the documents
provided under Rule 4.3 of the DAAB Rules and previous DAAB’s Activities

GUIDANCE
(including decisions, if any) to the replacement DAAB Member as is necessary
in order to:

(a) enable the replacement DAAB Member to comply with sub-paragraph

(d) of Sub-Clause 5.1 above; and
(b) ensure consistency in the manner in which the DAAB’s Activities are
conducted following such replacement.

FORMS
8
The Parties’ undertaking
and indemnity 8.1 The Employer and the Contractor undertake to each other and to the DAAB
Member that the DAAB Member shall not:

(a) be appointed as an arbitrator in any arbitration under the Contract;

(b) be called as a witness to give evidence concerning any Dispute in any
arbitration under the Contract; or
(c) be liable for any claims for anything done or omitted in the discharge
or purported discharge of the DAAB Member’s functions, except in
any case of fraud, gross negligence, deliberate default or reckless
misconduct by him/her.
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8.2 The Employer and the Contractor hereby jointly and severally indemnify and
hold the DAAB Member harmless against and from all damages, losses and
expenses (including legal fees and expenses) resulting from any claim from
which he/she is relieved from liability under Sub-Clause 8.1 above.

9
Fees and Expenses 9.1 The DAAB Member shall be paid as follows, in the currency named in the
DAAB Agreement:

(a) a monthly fee, which shall be a fixed fee as payment in full for:
(i) being available on 28-days’ notice for all meetings, Site visits and
hearings under the DAAB Rules (and, in the event of a request
under Rule 3.6 of the DAAB Rules, being available for an urgent
meeting or Site visit);
(ii) becoming and remaining knowledgeable about the Contract,
informed about the progress of the Works and maintaining
a current working file of documents, in accordance with
sub-paragraph (d) of Clause 5.1 above;
(iii) all office and overhead expenses including secretarial services,
photocopying and office supplies incurred in connection with his/
her duties; and
(iv) all services performed hereunder except those referred to in
sub-paragraphs (b) and (c) of this Clause.

This fee shall be paid monthly with effect from the last day of the month
in which the Effective Date occurs until the end of the month in which
the Term of the DAAB expires, or the DAAB Member declines to act
or is unable to act as a result of death, illness, disability, resignation or
termination of his/her DAAB Agreement.
General Conditions © FIDIC & ITA 2019
121
 If no monthly fee is stated in the DAAB Agreement, the matters
CONDITIONS

described in sub-paragraphs (i) to (iv) above shall be deemed to be

GENERAL

covered by the daily fee under sub-paragraph (b) below;

(b) a daily fee, which shall be considered as payment in full for each day:
(i) or part of a day, up to a maximum of two days’ travel time in each
direction, for the journey between the DAAB Member’s home
and the Site, or another location of a meeting with the Parties
and/or the Other Members (if any);
GUIDANCE

(ii) spent on attending meetings and making Site visits in accordance

with Rule 3 of the DAAB Rules, and writing reports in accordance
with Rule 3.10 of the DAAB Rules;
(iii) spent on giving Informal Assistance;
(iv) spent on attending hearings (and, in case of a three-member
DAAB, attending meeting(s) between the DAAB Members in
FORMS

accordance with sub-paragraph (a) of Rule 8.2 of the DAAB

Rules, and communicating with the Other Members), and
preparing decisions; and
(v) spent in preparation for a hearing, and studying written
documentation and arguments from the Parties submitted in
accordance with sub-paragraph (c) of Rule 7.1 of the DAAB
Rules;
(c) all reasonable expenses, including necessary travel expenses (air
fare in business class or equivalent, hotel and subsistence and other
direct travel expenses, including visa charges) incurred in connection
with the DAAB Member’s duties, as well as the cost of telephone
calls (and video conference calls, if any, and internet access), courier
charges and faxes. The DAAB Member shall provide the Parties with
a receipt for each item of expenses;
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(d) any taxes properly levied in the Country on payments made to the
DAAB Member (unless a national or permanent resident of the
Country) under this Sub-Clause 9.1.

9.2 Subject to Sub-Clause 9.3 below, the amounts of the DAAB Member’s
monthly fee and daily fee, under Sub-Clause 9.1 above, shall be as specified
in the DAAB Agreement signed (or, under the Contract, deemed to have
been signed) by the Parties and the DAAB Member.

9.3 If the Parties and the DAAB Member have agreed all other terms of the DAAB
Agreement but fail to jointly agree the amount of the monthly fee or the daily
fee in the DAAB Agreement (the “non-agreed fee” in this Sub-Clause):

(a) the DAAB Agreement shall nevertheless be deemed to have been

signed by the Parties and the DAAB Member, except that the fee
proposed by the DAAB Member shall only temporarily apply;
(b) either Party or the DAAB Member may apply to the appointing
entity or official named in the Contract Data to set the amount of the
non-agreed fee;
(c) the appointing entity or official shall, as soon as practicable and in
any case within 28 days after receiving any such application, set the
amount of the non-agreed fee, which amount shall be reasonable
taking due regard of the complexity of the Works, the experience
and qualifications of the DAAB Member, and all other relevant
circumstances;
(d) once the appointing entity or official has set the amount of the
non-agreed fee, this amount shall be final and conclusive, shall
replace the fee under sub-paragraph (a) above, and shall be deemed
to have applied from the Effective Date; and

122 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 (e) thereafter, after giving credit to the Parties for all amounts previously

CONDITIONS
paid in respect of the non-agreed fee, the balance (if any) due from

GENERAL
the DAAB Member to the Parties or from the Parties to the DAAB
Member, as the case may be, shall be paid.

9.4 The DAAB Member shall submit invoices for payment of the monthly fee
and air fares quarterly in advance. Invoices for other expenses and for daily
fees shall be submitted following the conclusion of a meeting, Site visit or

GUIDANCE
hearing; and following the giving of a decision or an informal written note
(under Rule 2.1 of the DAAB Rules). All invoices shall be accompanied by
a brief description of the DAAB’s Activities performed during the relevant
period and shall be addressed to the Contractor.

9.5 The Contractor shall pay each of the DAAB Member’s invoices in full within
28 days after receiving each invoice. Thereafter, the Contractor shall apply

FORMS
to the Employer (in the Statements under the Contract) for reimbursement of
one-half of the amounts of these invoices. The Employer shall then pay the
Contractor in accordance with the Contract.

9.6 If the Contractor fails to pay to the DAAB Member the amount to which
he/she is entitled under the DAAB Agreement within the period of 28
days stated at Sub-Clause 9.5 above, the DAAB Member shall inform the
Employer who shall promptly pay the amount due to the DAAB Member
and any other amount which may be required to maintain the function of
the DAAB. Thereafter the Employer shall, by written request, be entitled to
payment from the Contractor of:

(a) all sums paid in excess of one-half of these amounts;

(b) the reasonable costs of recovering these amounts from the Contractor;
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and
(b) financing charges calculated at the rate specified in Sub-Clause 14.9
[Delayed Payment] of the Conditions of Contract.

The Employer shall be entitled to such payment from the Contractor without
any requirement to comply with Sub-Clause 20.2 [Claims For Payment and/
or EOT] of the Conditions of Contract, and without prejudice to any other
right or remedy.

9.7 If the DAAB Member does not receive payment of the amount due within 56
days after submitting a valid invoice, the DAAB Member may:

(a) not less than 7 days after giving a Notification to the Parties and the
Other Members (if any), suspend his/her services until the payment is
received; and/or
(b) resign his/her appointment by giving a Notification under Sub-Clause
10.1 below.

10
Resignation
and Termination 10.1 The DAAB Member may resign at any time for any reason, by giving a
Notification of not less than 28 days (or other period as may be agreed by the
Parties) to the Parties and to the Other Members (if any). During this period the
Parties shall take the necessary steps to appoint, without delay, a replacement
DAAB Member in accordance with Sub-Clause 21.1 [Constitution of the
DAAB] of the Conditions of Contract (and, if applicable, Sub-Clause 21.2
[Failure to Appoint DAAB Member(s)] of the Conditions of Contract).

General Conditions © FIDIC & ITA 2019

123
 10.2 On expiry of the period stated in Sub-Clause 10.1 above, the resigning
CONDITIONS

DAAB Member’s DAAB Agreement shall terminate with immediate effect.

GENERAL

However (except if the DAAB Member is unable to act as a result of illness

or disability) if, on the date of the DAAB Member’s notice under Sub-Clause
10.1 above, the DAAB is dealing with any Dispute under Sub-Clause 21.4
[Obtaining DAAB’s Decision] of the Conditions of Contract, the DAAB
Member’s resignation shall not take effect and his/her DAAB Agreement shall
not terminate until after the DAAB has given all the corresponding decisions
GUIDANCE

in accordance with the Contract.

10.3 At any time the Parties may jointly terminate the DAAB Agreement by giving
a Notification of not less than 42 days to the DAAB Member.

10.4 If the DAAB Member fails, without justifiable excuse, to comply with
Sub-Clause 5.1 above, the Parties may, without prejudice to their other
FORMS

rights or remedies, jointly terminate his/her DAAB Agreement by giving a

Notification (by recorded delivery) to the DAAB Member. This notice shall
take effect when it is received by the DAAB Member.

10.5 If either Party fails, without justifiable excuse, to comply with Clause 6 above,
the DAAB Member may, without prejudice to his/her other rights or remedies,
terminate the DAAB Agreement by giving a Notification to the Parties. This
notice shall take effect when received by both Parties.

10.6 Any resignation or termination under this Clause shall be final and binding
on the Parties and the DAAB Member. However, a notice given under
Sub-Clause 10.3 or 10.4 above by either the Employer or the Contractor,
but not by both, shall be of no effect.
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10.7 Subject to sub-paragraph (b) of Sub-Clause 11.5 below, in the event

of resignation or termination under this Clause the DAAB Member shall
nevertheless be entitled to payment of any fees and/or expenses under his/
her DAAB Agreement that remain outstanding as of the date of termination
of his/her DAAB Agreement.

10.8 After resignation by the DAAB Member or termination of his/her DAAB

Agreement under this Clause, the DAAB Member shall:

(a) remain bound by his/her obligation of confidentiality under Sub-Clause

7.1 above; and
(b) return the original of any document in his/her possession to the
Party who submitted such document in connection with the DAAB’s
Activities, at that Party’s written request and cost.

10.9 Subject to any mandatory requirements under the governing law of the DAAB
Agreement, termination of the DAAB Agreement under this Clause shall
require no action of whatsoever kind by the Parties or the DAAB Member (as
the case may be) other than as stated in this Clause.

11
Challenge 11.1 The Parties shall not object against the DAAB Member, except that either
Party, or in the case of a three-member DAAB the Other Members jointly,
shall be entitled to do so for an alleged lack of independence or impartiality or
otherwise in which case Rule 10 Objection Procedure and Rule 11 Challenge
Procedure of the DAAB Rules shall apply.

11.2 The decision issued under Rule 11 of the DAAB Rules (the “Decision on the
Challenge” in the GCs) shall be final and conclusive.

124 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 11.3 At any time before the Decision on the Challenge is issued, the challenged

CONDITIONS
DAAB Member may resign under Sub-Clause 10.1 above and, in such case,

GENERAL
the challenging Party shall inform the International Chamber of Commerce
(ICC). However, Sub-Clause 10.2 shall not apply to such resignation and the
resigning DAAB Member’s DAAB Agreement shall terminate with immediate
effect.

11.4 Unless the challenged DAAB Member has resigned, or his/her DAAB

GUIDANCE
Agreement has been terminated under Sub-Clause 10.3 above, the DAAB
Member and the Other Members (if any) shall continue with the DAAB’s
Activities until the Decision on the Challenge is issued.

11.5. If the Decision on the Challenge is that the challenge is successful:

(a) the challenged DAAB Member’s appointment, and his/her DAAB

FORMS
Agreement, shall be deemed to have been terminated with immediate
effect on the date of the notification of the Decision on the Challenge by
ICC;
(b) the challenged DAAB Member shall not be entitled to any fees or
expenses under his/her DAAB Agreement from the date of the
notification of the Decision on the Challenge by ICC;
(c) any decision under Sub-Clause 21.4.3 [The DAAB’s decision] of the
Conditions of Contract, given by the DAAB:
(i) after the challenge was referred under Rule 11 of the DAAB
Rules; and
(ii) before the resignation (if any) of the challenged DAAB Member
under Sub-Clause 11.3 above, or his/her DAAB Agreement is
terminated under sub-paragraph (a) above or under Sub-Clause
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10.3 above
shall become void and ineffective. In the case of a sole-member
DAAB, all other DAAB’s Activities during this period shall also become
void and ineffective. In the case of a three-member DAAB, all other
DAAB’s Activities during this period shall remain unaffected by the
Decision on the Challenge except if there has been a challenge to all
three members of the DAAB and such challenge is successful;
(d) the successfully challenged DAAB Member shall be removed from the
DAAB; and
(e) the Parties shall, without delay, appoint a replacement DAAB Member
in accordance with Sub-Clause 21.1 [Constitution of the DAAB] of the
Conditions of Contract.

12
Disputes under
the DAAB Agreement Any dispute arising out of or in connection with the DAAB Agreement, or the
breach, termination or invalidity thereof, shall be finally settled by arbitration
under the Rules of Arbitration of the International Chamber of Commerce
2017 by one arbitrator appointed in accordance with these Rules of
Arbitration, and Article 30 and the Expedited Procedure Rules at Appendix
VI of these Rules of Arbitration shall apply.

General Conditions © FIDIC & ITA 2019

125
 Annex DAAB PROCEDURAL RULES
CONDITIONS
GENERAL

Rule 1
Objectives 1.1 The objectives of these Rules are:

(a) to facilitate the avoidance of Disputes that might otherwise arise

between the Parties; and
GUIDANCE

(b) to achieve the expeditious, efficient and cost effective resolution of

any Dispute that arises between the Parties.
1.2 These Rules shall be interpreted, the DAAB’s Activities shall be conducted
and the DAAB shall use its powers under the Contract and these Rules, in
the manner necessary to achieve the above objectives.

Rule 2
FORMS

Avoidance of Disputes 2.1 Where Sub-Clause 21.3 [Avoidance of Disputes] of the Conditions of Contract
applies, the DAAB (in the case of a three-member DAAB, all three DAAB
Members acting together) may give Informal Assistance during discussions
at any meeting with the Parties (whether face-to-face or by telephone or by
video conference) or at any Site visit or by an informal written note to the
Parties.

Rule 3
Meetings and Site Visits 3.1 The purpose of meetings with the Parties and Site visits by the DAAB is to
enable the DAAB to:

(a) become and remain informed about the matters described in

sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs;
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(b) become aware of, and remain informed about, any actual or potential
issue or disagreement between the Parties; and
(c) give Informal Assistance if and when jointly requested by the Parties.

3.2 As soon as practicable after the DAAB is appointed, the DAAB shall convene
a face-to-face meeting with the Parties. At this meeting, the DAAB shall
establish a schedule of planned meetings and Site visits in consultation with
the Parties, which schedule shall reflect the requirements of Rule 3.3 below
and shall be subject to adjustment by the DAAB in consultation with the
Parties.

3.3 The DAAB shall hold face-to-face meetings with the Parties, and/or visit the
Site, at regular intervals and/or at the written request of either Party. The
frequency of such meetings and/or Site visits shall be:

(a) sufficient to achieve the purpose under Rule 3.1 above;

(b) at intervals of not more than 140 days unless otherwise agreed jointly
by the Parties and the DAAB; and
(c) at intervals of not less than 70 days, subject to Rules 3.5 and 3.6
below and except as required to conduct a hearing as described
under Rule 7 below, unless otherwise agreed jointly by the Parties
and the DAAB.

3.4 In addition to the face-to-face meetings referred to in Rules 3.2 and 3.3
above, the DAAB may also hold meetings with the Parties by telephone or
video conference as agreed with the Parties (in which case each Party bears
the risk of interrupted or faulty telephone or video conference transmission
and reception).

126 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 3.5 At times of critical construction events (which may include suspension of

CONDITIONS
the Works or termination of the Contract), the DAAB shall visit the Site at

GENERAL
the written request of either Party. This request shall describe the critical
construction event. If the DAAB becomes aware of an upcoming critical
construction event, it may invite the Parties to make such a request.

3.6 Either Party may request an urgent meeting or Site visit by the DAAB. This
shall be a written request and shall give reasons for the urgency of the

GUIDANCE
meeting or Site visit. If the DAAB agrees that such a meeting or Site visit is
urgent, the DAAB Members shall use all reasonable endeavours to:

(a) hold a meeting with the Parties by telephone or video conference

(as agreed with the Parties under Rule 3.4 above) within 3 days after
receiving the request; and
(b) if requested and (having given the other Party opportunity at this meeting

FORMS
to respond to or oppose this request) the DAAB agrees that a Site visit is
necessary, visit the Site within 14 days after the date of this meeting.

3.7 The time of, and agenda for, each meeting and Site visit shall be set by the
DAAB in consultation with the Parties.

3.8 Each meeting and Site visit shall be attended by the Employer, the Contractor
and the Engineer.

3.9 Each meeting and Site visit shall be co-ordinated by the Contractor in
co-operation with the Employer and the Engineer. The Contractor shall
ensure the provision of appropriate:

(a) personal safety equipment, security controls (if necessary) and site
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

transport for each Site visit;

(b) meeting room/conference facilities and secretarial and copying
services for each face-to-face meeting; and
(c) telephone conference or video conference facilities for each meeting
by telephone or video conference.

3.10 At the conclusion of each meeting and Site visit and, if possible before
leaving the venue of the face-to-face meeting or the Site (as the case may
be) but in any event within 7 days, the DAAB shall prepare a report on its
activities during the meeting or Site visit and shall send copies of this report
to the Parties and the Engineer.

Rule 4
Communications
and Documentation 4.1 The language to be used:

(a) in all communications to and from the DAAB and the Parties (and, in
the case of a three-member DAAB, between the DAAB Members);
(b) in all reports and decisions issued by the DAAB; and
(c) during all Site visits, meetings and hearings relating to the DAAB’s
Activities

shall be the language for communications defined in Sub-Clause 1.4 [Law

and Language] of the Conditions of Contract, unless otherwise agreed jointly
by the Parties and the DAAB.

4.2 All communications and/or documents sent between the DAAB and a
Party shall simultaneously be copied to the other Party. In the case of a

General Conditions © FIDIC & ITA 2019

127
 three-member DAAB, the sending Party shall send all communications and/
CONDITIONS

or documents to the chairperson of the DAAB and simultaneously send

GENERAL

copies of these communications and/or documents to the Other Members.

4.3 The Parties shall provide the DAAB with a copy of all documents which the
DAAB may request, including:

(a) the documents forming the Contract;

GUIDANCE

(b) progress reports under Sub-Clause 4.20 [Progress Reports] of the

Conditions of Contract;
(c) the initial programme and each revised programme under Sub-Clause
8.3 [Programme] of the Conditions of Contract;
(d) relevant instructions given by the Engineer, and Variations under
Clause 13.3 [Variation Procedure] of the Conditions of Contract;
(e) Statements submitted by the Contractor, and all certificates issued by
FORMS

the Engineer under the Contract;

(f) relevant Notices;
(g) relevant communications between the Parties and between either
Party and the Engineer

and any other document relevant to the performance of the Contract and/
or necessary to enable the DAAB to become and remain informed about the
matters described in sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs.

Rule 5
Powers of the DAAB 5.1 In addition to the powers granted to the DAAB under the Conditions of
Contract, the General Conditions of the DAAB Agreement and elsewhere in
these Rules, the Parties empower the DAAB to:
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(a) establish the procedure to be applied in making Site visits and/or

giving Informal Assistance;
(b) establish the procedure to be applied in giving decisions under the
Conditions of Contract;
(c) decide on the DAAB’s own jurisdiction, and the scope of any Dispute
referred to the DAAB;
(d) appoint one or more experts (including legal and technical expert(s)),
with the agreement of the Parties;
(e) decide whether or not there shall be a hearing (or more than one
hearing, if necessary) in respect of any Dispute referred to the DAAB;
(f) conduct any meeting with the Parties and/or any hearing as the DAAB
thinks fit, not being bound by any rules or procedures for the hearing
other than those contained in the Contract and in these Rules;
(g) take the initiative in ascertaining the facts and matters required for a
DAAB decision;
(h) make use of a DAAB Member’s own specialist knowledge, if any;
(i) decide on the payment of financing charges in accordance with
the Contract;
(j) decide on any provisional relief such as interim or conservatory
measures;
(k) open up, review and revise any certificate, decision, determination,
instruction, opinion or valuation of (or acceptance, agreement,
approval, consent, disapproval, No-objection, permission, or similar
act by) the Engineer that is relevant to the Dispute; and
(l) proceed with the DAAB’s Activities in the absence of a Party who,
after receiving a Notification from the DAAB, fails to comply with
Sub-Clause 6.3 of the GCs.
128 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 5.2 The DAAB shall have discretion to decide whether and to what extent any

CONDITIONS
powers granted to the DAAB, under the Conditions of Contract, the GCs

GENERAL
and these Rules, may be exercised.

Rule 6
Disputes 6.1 If any Dispute is referred to the DAAB in accordance with Sub-Clause
21.4.1 [Reference of a Dispute to the DAAB] of the Conditions of Contract,
the DAAB shall proceed in accordance with Sub-Clause 21.4 [Obtaining

GUIDANCE
DAAB’s Decision] of the Conditions of Contract and these DAAB Rules, or
as otherwise agreed by the Parties in writing.

6.2 The DAAB shall act fairly and impartially between the Parties and, taking due
regard of the period under Sub-Clause 21.4.3 [The DAAB’s decision] of the
Conditions of Contract and other relevant circumstances, the DAAB shall:

FORMS
(a) give each Party a reasonable opportunity (consistent with the
expedited nature of the DAAB proceeding) of putting forward its case
and responding to the other Party’s case; and
(b) adopt a procedure in coming to its decision that is suitable to the
Dispute, avoiding unnecessary delay and/or expense.

Rule 7
Hearings 7.1 In addition to the powers under Rule 5.1 above, and except as otherwise
agreed in writing by the Parties, the DAAB shall have power to:

(a) decide on the date and place for any hearing, in consultation with the
Parties;
(b) decide on the duration of any hearing;
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(c) request that written documentation and arguments from the Parties
be submitted to it prior to the hearing;
(d) adopt an inquisitorial procedure during any hearing:
(e) request the production of documents, and/or oral submissions by
the Parties, at any hearing that the DAAB considers may assist in
exercising the DAAB’s power under sub-paragraph (g) of Rule 5.1
above;
(f) request the attendance of persons at any hearing that the DAAB
considers may assist in exercising the DAAB’s power under
sub-paragraph (g) of Rule 5.1 above;
(g) refuse admission to any hearing, or audience at any hearing, to any
persons other than representatives of the Employer, the Contractor
and the Engineer;
(h) proceed in the absence of any party who the DAAB is satisfied
received timely notice of the hearing;
(i) adjourn any hearing as and when the DAAB considers further
investigation by one Party or both Parties would benefit resolution
of the Dispute, for such time as the investigation is carried out, and
resume the hearing promptly thereafter.

7.2 The DAAB shall not express any opinions during any hearing concerning the
merits of any arguments advanced by either Party in respect of the Dispute.

7.3 The DAAB shall not give any Informal Assistance during a hearing, but if the
Parties request Informal Assistance during any hearing:

(a) the hearing shall be adjourned for such time as the DAAB is giving
Informal Assistance;

General Conditions © FIDIC & ITA 2019

129
 (b) if the hearing is so adjourned for longer than 2 days, the period
CONDITIONS

under Sub-Clause 21.4.3 [The DAAB’s decision] of the Conditions

GENERAL

of Contract shall be temporarily suspended until the date that the

hearing is resumed; and
(c) the hearing shall be resumed promptly after the DAAB has given such
Informal Assistance.

Rule 8
GUIDANCE

The DAAB’s Decision 8.1 The DAAB shall make and give its decision within the time allowed under
Sub-Clause 21.4 [Obtaining DAAB’s Decision] of the Conditions of Contract,
or other time as may be proposed by the DAAB and agreed by the Parties in
writing.

8.2 In the case of a three-member DAAB:

FORMS

(a) it shall meet in private (after the hearing, if any) in order to have
discussions and to start preparation of its decision;
(b) the DAAB Members shall use all reasonable endeavours to reach a
unanimous decision;
(c) if it is not possible for the DAAB Members to reach a unanimous
decision, the applicable decision shall be made by a majority of
the DAAB Members, who may require the minority DAAB Member
to prepare a separate written report (with reasons and supporting
particulars) which shall be issued to the Parties; and
(d) if a DAAB Member fails to:
(i) attend a hearing (if any) or a DAAB Members’ meeting; or
(ii) fulfil any required function (other than agreeing to a unanimous
decision)
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Other Members shall nevertheless proceed to make a decision, unless:

- such failure has been caused by exceptional circumstances, of which

the Other Members and the Parties have received a Notification from
the DAAB Member;
- the DAAB Member has suspended his services under sub-paragraph
(a) of Sub-Clause 9.7 of the GCs; or
- otherwise agreed by the Parties in writing.
8.3 If, after giving a decision, the DAAB finds (and, in the case of a three-member
DAAB, they agree unanimously or by majority) that the decision contained
any error:

(a) of a typographical or clerical nature; or

(b) of an arithmetical nature
the chairperson of the DAAB or the sole DAAB Member (as the case may be)
shall, within 14 days after giving this decision, advise the Parties of the error
and issue an addendum to its original decision in writing to the Parties.

8.4 If, within 14 days of receiving a decision from the DAAB, either Party finds
a typographical, clerical or arithmetical error in the decision, that Party may
request the DAAB to correct such error. This shall be a written request and
shall clearly identify the error.

8.5 If, within 14 days of receiving a decision from the DAAB, either Party believes
that such decision contains an ambiguity, that Party may request clarification
from the DAAB. This shall be a written request and shall clearly identify the
ambiguity.

130 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 8.6 The DAAB shall respond to a request under Rule 8.4 or Rule 8.5 above within

CONDITIONS
14 days of receiving the request. The DAAB may decline (at its sole discretion

GENERAL
and with no requirement to give reasons) any request for clarification under
Rule 8.5. If the DAAB agrees (in the case of a three-member DAAB they
agree unanimously or by majority) that the decision did contain the error or
ambiguity as described in the request, it may correct its decision by issuing
an addendum to its original decision in writing to the Parties, in which case
this addendum shall be issued together with the DAAB’s response under this

GUIDANCE
Rule.

8.7 If the DAAB issues an addendum to its original decision under Rule 8.3
or 8.6 above, such an addendum shall form part of the decision and the
period stated in sub-paragraph (c) of Sub-Clause 21.4.4 [Dissatisfaction
with DAAB’s decision] of the Conditions of Contract shall be calculated from
the date the Parties receive this addendum.

FORMS
Rule 9
In the event of
Termination of
DAAB Agreement 9.1 If, on the date of termination of a DAAB Member’s DAAB Agreement arising
from resignation or termination under Clause 10 of the GCs, the DAAB
is dealing with any Dispute under Sub-Clause 21.4 [Obtaining DAAB’s
Decision] of the Conditions of Contract:

(a) the period under Sub-Clause 21.4.3 [The DAAB’s decision] of the
Conditions of Contract shall be temporarily suspended; and
(b) when a replacement DAAB Member is appointed in accordance
with Sub-Clause 21.1 [Constitution of the DAAB] of the Conditions
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

of Contract, the full period under Sub-Clause 21.4.3 [The DAAB’s

decision] of the Conditions of Contract shall apply from the date of
this replacement DAAB Member’s appointment.
9.2 In the case of a three-member DAAB and if one DAAB Member’s DAAB
Agreement is terminated as a result of resignation or termination under
Clause 10 of the GCs, the Other Members shall continue as members of the
DAAB except that they shall not conduct any hearing or make any decision
prior to the replacement of the DAAB Member unless otherwise agreed
jointly by the Parties and the Other Members.

Rule 10
Objection Procedure 10.1 The following procedure shall apply to any objection against a DAAB
Member:

(a) the objecting Party shall, within 7 days of becoming aware of the facts
and/or events giving rise to the objection, give a Notification to the
DAAB Member of its objection. This Notification shall:
(i) state that it is given under this Rule;
(ii) state the reason(s) for the objection;
(iii) substantiate the objection by setting out the facts, and describing
the events, on which the objection is based, with supporting
particulars; and
(iv) be simultaneously copied to the other Party and the Other
Members;
(b) within 7 days after receiving a notice under sub-paragraph (a) above,
the objected DAAB Member shall respond to the objecting Party.
This response shall be simultaneously copied to the other Party and
the Other Members. If no response is given by the DAAB Member

General Conditions © FIDIC & ITA 2019

131
 within this period of 7 days, the DAAB Member shall be deemed to
CONDITIONS

have given a response denying the matters on which the objection is

GENERAL

based;
(c) within 7 days after receiving the objected DAAB Member’s response
under sub-paragraph (b) above (or, if there is no such response, after
expiry of the period of 7 days stated in sub-paragraph (b) above) the
objecting Party may formally challenge a DAAB member in accordance
with Rule 11 below;
GUIDANCE

(d) if the challenge is not referred within the period of 7 days stated in
sub-paragraph (c) above, the objecting Party shall be deemed to have
agreed to the DAAB Member remaining on the DAAB and shall not
be entitled to object and/or challenge him/her thereafter on the basis
of any of the facts and/or evidence stated in the notice given under
sub-paragraph (a) above;
Rule 11
FORMS

Challenge Procedure 11.1 If and when the objecting Party challenges a DAAB Member, within 21 days
of learning of the facts upon which the challenge is based, the provisions
of this Rule shall apply. Any challenge is to be decided by the International
Chamber of Commerce (ICC) and administered by the ICC International
Centre for ADR.

11.2 The procedure for such challenge and information on associated charges to
be paid are set out at http://fidic.org and http://iccwbo.org.
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132 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 INDEX OF SUB-CLAUSES

CONDITIONS
Sub-Clause Page

GENERAL
Accepted Contract Amount, Sufficiency of the 4.11 35
Access after Taking Over, Right of 11.7 68
Access Route 4.15 37
Access to the Site, Right of 2.1 17

GUIDANCE
Adjustments for Changes in Cost 13.7 77
Adjustments for Changes in Laws 13.6 76
Advance Payment 14.2 80
Advance Warning 8.4 56
Agreement, Contract 1.6 11
Agreement or Determination 3.7 22

FORMS
Amicable Settlement 21.5 115
Arbitration 21.6 115
Archaeological and Geological Findings 4.23 40
As-Built Records 5.6 45
Assignment 1.7 11
Assistance 2.2 17
Authorities, Delays Caused by 8.6 57
Avoidance of Interference 4.14 37

Care of the Works, Responsibility for 17.1 97

Care of the Works, Liability for 17.2 98
Certificate, Performance 11.9 69
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Claims 20.1 106

Claims For Payment and/or EOT 20.2 107
Clearance of Site 11.11 69
Commencement of Works 8.1 53
Completion of Outstanding Work and Remedying Defects 11.1 64
Completion, Statement at 14.10 87
Completion, Time for 8.2 54
Conditions, Unforeseeable Physical 4.12 35
Confidentiality 1.12 14
Contract Risk Register and Contract Risk Management Plan 1.16 16
Contract Termination 1.17 16
Contract Price, The 14.1 79
Contractor to Search 11.8 68
Contractor’s Claims 20.1 106
Contractor’s Documents 5.2 42
Contractor’s Documents, Employer’s Use of 1.10 13
Contractor’s Equipment 4.17 38
Contractor’s General Obligations 4.1 25
Contractor’s Obligations After Termination 16.3 97
Contractor’s Obligations: Tests on Completion 9.1 60
Contractor’s Operations on Site 4.22 40
Contractor’s Personnel 6.9 48
Contractor’s Records 6.10 49
Contractor’s Representative 4.3 27
Contractor’s Superintendence 6.8 48

General Conditions © FIDIC & ITA 2019

133
 Contractor’s Undertaking 5.3 44
CONDITIONS

Co-operation 4.6 30
GENERAL

Cost, Adjustments for Changes in 13.7 77

Currencies of Payment 14.15 90

DAAB - see Dispute Avoidance / Adjudication Board

Daywork 13.5 75
GUIDANCE

Defective Work off Site, Remedying of 11.5 67

Defects, Failure to Remedy 11.4 66
Defects and Rejection 7.5 52
Defects Notification Period, Extension of 11.3 65
Defects, Remedying of 11.1 64
Definitions 1.1 1
FORMS

Delay Damages 8.8 58

Delays Caused by Authorities 8.6 57
Design Error 5.8 46
Design Obligations, General 5.1 42
Discharge 14.12 88
Disorderly Conduct 6.11 49
Dispute Avoidance/Adjudication Board, Constitution of the 21.1 111
Dispute Avoidance/Adjudication Board’s Decision,
Failure to Comply with 21.7 116
Dispute Avoidance/Adjudication Board’s Decision, Obtaining 21.4 113
Dispute Avoidance/Adjudication Board, No DAAB In Place 21.8 116
Dispute Avoidance/Adjudication Board Member(s),
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Failure to Appoint 21.2 112

Disputes, Avoidance of 21.3 113
Documents, Care and Supply of 1.8 12
Documents, Contractor’s 5.2 42
Documents, Contractor’s Use of Employer’s 1.11 14
Documents, Employer’s Use of Contractor’s 1.10 13
Documents, Priority of 1.5 11
Duty to Minimise Delay 18.3 101

Employer-Supplied Materials and Employer’s Equipment 2.6 19

Employer’s Claims: Currencies of Payment 14.15 90
Employer’s Documents, Contractor’s Use of 1.11 14
Employer’s Financial Arrangements 2.4 18
Employer’s Liability, Cessation of 14.14 89
Employer’s Personnel and Other Contractors 2.3 17
Employer’s Requirements and/or in the Geotechnical
Baseline Report, Errors in 1.9 12
Engineer, The 3.1 19
Engineer, Delegation by the 3.4 21
Engineer, Replacement of 3.6 22
Engineer’s Duties and Authority 3.2 19
Engineer’s Instructions 3.5 21
Engineer’s Representative, The 3.3 20
Environment, Protection of the 4.18 38
Excavation and Lining Works 4.24 41
Exceptional Event 18.1 100

134 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 Exceptional Event, Notice of an 18.2 101

CONDITIONS
Exceptional Event, Consequences of an 18.4 102

GENERAL
Extension of Defects Notification Period 11.3 65
Extension of Time of Completion 8.5 56

Failure to Pass Tests after Completion 12.4 71

Failure to Pass Tests on Completion 9.4 61

GUIDANCE
FPC, Issue of 14.13 89

Goods, Transport of 4.16 38

Health and Safety Obligations 4.8 32

Health and Safety of Personnel 6.7 47

FORMS
Indemnities by Contractor 17.4 99
Indemnities by Employer 17.5 100
Indemnities, Shared 17.6 100
Inspection 7.3 50
Instructions, Engineer’s 3.5 21
Insurance to be provided by the Contractor 19.2 104
Insurance: General Requirements 19.1 103
Intellectual and Industrial Property Rights 17.3 99
Interference, Avoidance of 4.14 37
Interference with Tests on Completion 10.3 64
Interim Payment, Application for 14.3 81
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Interpretation 1.2 9
Issue of FPC 14.13 89
Issue of IPC 14.6 84

Joint and Several Liability 1.14 15

Labour, Engagement of Staff and 6.1 46

Labour, Facilities for Staff and 6.6 47
Law and Language 1.4 10
Laws, Adjustments for Changes in 13.6 76
Laws, Compliance with 1.13 14
Laws, Labour 6.4 47
Liability, Cessation of Employer’s 14.14 89
Liability, Joint and Several 1.14 15
Liability, Limitation of 1.15 15

Manner of Execution 7.1 50

Manuals, Operation and Maintenance 5.7 46
Measurement of Excavation and Lining Works and Adjustment
of Time for Completion and Contract Price 13.8 77
Meetings 3.8 25
Milestones 4.25 41

Nominated Subcontractors 4.5 29

Notice to Correct 15.1 91
Notices and Other Communications 1.3 10

General Conditions © FIDIC & ITA 2019

135
 Obligations, Unfulfilled 11.10 69
CONDITIONS

Obligations, Contractor’s General 4.1 25

GENERAL

Operation and Maintenance Manuals 5.7 46

Payment 14.7 86
Payment after Termination by the Contractor 16.4 97
Payment, Currencies of 14.15 90
GUIDANCE

Payment, Delayed 14.8 86

Payments, Schedule of 14.4 82
Performance Certificate 11.9 69
Performance Security 4.2 26
Personnel, Key 6.12 49
Personnel, Contractor’s 6.9 48
FORMS

Personnel and other Contractors, Employer’s 2.3 17

Persons, Recruitment of 6.3 47
Plant and Materials intended for the Works 14.5 83
Plant and Materials, Ownership of 7.7 53
Priority of Documents 1.5 11
Programme 8.3 54
Progress, Rate of 8.7 57
Progress Reports 4.20 39
Provisional Sums 13.4 75

Quality Management and Compliance Verification Systems 4.9 33

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Records, Contractor’s 6.10 49

Regulations, Technical Standards and 5.4 44
Release from Performance under the Law 18.6 103
Remedial Work 7.6 52
Remedy Defects, Failure to 11.4 66
Remedying Defects 11.1 64
Remedying Defects, Cost of 11.2 65
Replacement of the Engineer 3.6 22
Representative, Contractor’s 4.3 27
Representative, The Engineer’s 3.3 20
Responsibility for Care of the Works 17.1 97
Resumption of Work 8.13 59
Retention Money, Release of 14.9 86
Retesting after Failure of Tests after Completion 12.3 71
Retesting after Failure of Tests on Completion 9.3 61
Right to Vary 13.1 72
Rights of Way and Facilities 4.13 37
Royalties 7.8 53

Samples 7.2 50
Schedule of Payments 14.4 82
Search, Contractor to 11.8 68
Security of the Site 4.21 40
Security, Performance 4.2 26
Setting Out 4.7 31

136 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 Site, Clearance of 11.11 69

CONDITIONS
Site, Contractor’s Operations on 4.22 40

GENERAL
Site Data, Use of 4.10 34
Site Data and Items of Reference 2.5 18
Site, Right of Access to the 2.1 17
Site, Security of the 4.21 40
Staff and Labour, Engagement of 6.1 46

GUIDANCE
Staff and Labour, Facilities for 6.6 47
Standards and Regulations, Technical 5.4 44
Statement at Completion 14.10 87
Statement, Final 14.11 87
Subcontractors 4.4 28
Subcontractors, nominated 4.5 29

FORMS
Superintendence, Contractor’s 6.8 48
Surfaces Requiring Reinstatement 10.4 64
Suspension, Consequences of Employer’s 8.10 58
Suspension by Contractor 16.1 95
Suspension, Employer’s 8.9 58
Suspension, Payment for Plant and Materials after Employer’s 8.11 59
Suspension, Prolonged 8.12 59

Taking Over Parts 10.2 63

Taking Over the Works and Sections 10.1 62
Taking Over: Surfaces Requiring Reinstatement 10.4 64
Technical Standards and Regulations 5.4 44
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Temporary Utilities 4.19 39

Termination, Optional 18.5 102
Termination by Contractor 16.2 95
Termination by Contractor, Payment after 16.4 97
Termination for Contractor’s Default 15.2 91
Termination for Contractor’s Default, Valuation after 15.3 93
Termination for Contractor’s Default, Payment after 15.4 93
Termination for Employer’s Convenience 15.5 94
Termination for Employer’s Convenience, Valuation after 15.6 94
Termination for Employer’s Convenience, Payment after 15.7 95
Termination, Contractor’s Obligations After 16.3 97
Testing by the Contractor 7.4 51
Tests after Completion, Procedure for 12.1 70
Tests after Completion, Delayed 12.2 70
Tests after Completion, Failure to Pass 12.4 71
Tests after Completion, Retesting 12.3 71
Tests after Remedying Defects, Further 11.6 67
Tests on Completion, Contractor’s Obligations 9.1 60
Tests on Completion, Delayed 9.2 61
Tests on Completion, Failure to Pass 9.4 61
Tests on Completion, Interference with 10.3 64
Time for Completion 8.2 54
Time for Completion, Extension of 8.5 56
Training 5.5 45
Transport of Goods 4.16 38

General Conditions © FIDIC & ITA 2019

137
 Unforeseeable Physical Conditions 4.12 35
CONDITIONS

Unfulfilled Obligations 11.10 69

GENERAL

Value Engineering 13.2 72

Variation Procedure 13.3 73

Wages and Conditions of Labour, Rates of 6.2 47

GUIDANCE

Working Hours 6.5 47

FORMS
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138 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 GENERAL CONDITIONS

FIDIC® Conditions of Contract for

GUIDANCE FOR THE
UNDERGROUND WORKS PREPARATION OF
PARTICULAR CONDITIONS
AND ANNEXES: EXAMPLE
DESIGNED BY THE CONTRACTOR FORMS OF SECURITIES

ACCORDING TO THE REFERENCE

DESIGN BY THE EMPLOYER AND THE
GEOTECHNICAL BASELINE REPORT

Guidance for The Preparation of

Particular Conditions
GUIDANCE FOR THE
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PREPARATION OF
TENDER DOCUMENTS
AND ANNEXES: TABLE
OF CONTENTS OF
THE GEOTECHNICAL
BASELINE REPORT,
EXAMPLE FORMS
OF SCHEDULE OF
BASELINES, COMPLETION
SCHEDULE, SCHEDULE
OF CONTRACTOR’S KEY
EQUIPMENT

FORMS OF LETTER OF
TENDER, LETTER OF
ACCEPTANCE, CONTRACT
AGREEMENT AND
DISPUTE ADJUDICATION/
AVOIDANCE AGREEMENT
In collaboration with

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES
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 Guidance

CONDITIONS
GENERAL
for the Preparation of Particular Conditions
CONTENTS
INTRODUCTORY GUIDANCE NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GUIDANCE
CONTRACT DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

NOTES ON THE PREPARATION OF SPECIAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . 12

FORMS
1 General Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2 The Employer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3 The Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4 The Contractor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

5 Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

6 Staff and Labour. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

7 Plant, Materials and Workmanship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

8 Commencement, Delays and Suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

9 Tests on Completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

10 Employer’s Taking Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

11 Defects after Taking Over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

12 Tests after Completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

13 Variations and Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

14 Contract Price and Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

15 Termination by Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

16 Suspension and Termination by Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

17 Care of the Works and Indemnities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

18 Exceptional Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

19 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

20 Employer’s and Contractor’s Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

21 Disputes and Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

ADVISORY NOTES TO USERS OF FIDIC CONTRACTS WHERE THE PROJECT USES

BUILDING INFORMATION MODELLING SYSTEMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

ANNEXES EXAMPLE FORMS OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . 60

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 Particular Conditions Part A – Contract Data
CONDITIONS
GENERAL

INTRODUCTORY GUIDANCE NOTES

These Introductory Guidance Notes are for use in completing the Contract Data and shall not form
GUIDANCE

part of the Contract Data.

Certain Sub-Clauses in the General Conditions require that specific information is provided in the
Contract Data.

The Employer should amend as appropriate and complete all data and should insert “Not Applicable”
in the space next to any Sub-Clause which the Employer does not wish to use.
FORMS

The Employer should insert “Tenderer to Complete” in the space next to any Sub-Clause which
the Employer wishes Contract Data to be completed by the tenderers. Except where indicated
“Tenderer to Complete” tenderers shall not amend the Contract Data as provided by the Employer.

All italicised text and any enclosing square brackets are for use in preparing the Contract Data and
should be deleted from the final version of the Contract Data.

Failure by the Employer to provide the information and details required in the Contract Data could
mean either that the documents forming the Contract are incomplete with vital information missing,
or that the fall-back provisions to be found in some of the Sub-Clauses in the General Conditions
will automatically take effect.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

2 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 CONTRACT DATA

CONDITIONS
GENERAL
Sub-Clause Data to be given Data

1.1.8 Completion Schedule document reference no................ ___________________

1.1.26.......... where the Contract allows for Cost Plus Profit,

GUIDANCE
percentage profit to be added to the Cost:..................... ________ %

1.1.33.......... Defects Notification Period (DNP):.................................. ________ days

1.1.36.......... Employer’s name and address:....................................... ___________________

___________________
___________________

FORMS
1.1.41.......... Engineer’s name and address:........................................ ___________________
___________________
___________________

1.1.84 Schedule of Baselines document reference no............... ___________________

1.1.99.......... Time for Completion:...................................................... ________ days

1.3 (a)(ii)........ agreed methods of electronic transmission: ................... ___________________

___________________
___________________
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1.3(d)............ address of Employer for communications: ..................... ___________________

___________________
___________________

1.3(d)............ address of Engineer for communications:....................... ___________________

___________________
___________________

1.3(d)............ address of Contractor for communications:.................... ___________________

___________________
___________________

1.4............... Contract shall be governed by the law of: ___________________

1.4............... ruling language:.............................................................. ___________________

1.4............... language for communications:........................................ ___________________

1.8............... number of additional paper copies of Contractor’s

Documents..................................................................... ________

1.9............... period for notification of errors, faults or other defects in

the Employer’s Requirements......................................... ________ days

1.15............. total liability of the Contractor to the Employer under or in

connection with the Contract:......................................... ________ (sum)

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 Sub-Clause Data to be given Data
CONDITIONS
GENERAL

2.1............... after receiving the Letter of Acceptance, the Contractor

shall be given right of access to all or part of the Site
within: ............................................................................ ________ days

2.4............... Employer’s financial arrangements:................................. ___________________

___________________
GUIDANCE

___________________

4.2............... Performance Security (as percentages of the Accepted

Contract Amount in Currencies):
percent:................................................................ ________ %
currency:.............................................................. ___________________
FORMS

percent:................................................................ ________ %
currency:.............................................................. ___________________

4.4(a)............ maximum allowable accumulated value of work

subcontracted (as a percentage of the Accepted
Contract Amount):.......................................................... _______ %

4.4(b)............ parts of the Works for which subcontracting is not

permitted:....................................................................... ___________________
___________________
___________________
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4.7.2............ period for notification of errors in the items of reference.. ________ days

4.19............. period of payment for temporary utilities......................... ________ days

4.20............. number of additional paper copies of progress reports... ________

6.5............... normal working hours on the Site................................... ___________________

8.3............... number of additional paper copies of programmes......... ________

8.8............... Delay Damages payable for each day of delay................ ________

8.8............... maximum amount of Delay Damages............................. ________

13.4(b)(ii)....... percentage rate to be applied to Provisional Sums for

overhead charges and profit........................................... ________ %

13.8.1.......... Intervals for measurement............................................... ________ Months

13.8.1.......... Method of measurement for the Schedule of Baselines

document reference no................................................... ________

13.8.1.......... Method of measurement for the Bill of Quantities

document reference no................................................... ________

14.2............. Total amount of Advance Payment (as a percentage of

Accepted Contract Amount)........................................... ________ %

4 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Sub-Clause Data to be given Data

CONDITIONS
GENERAL
14.2............. Currency or currencies of Advance Payment.................. ___________________
___________________
14.2.3.......... percentage deductions for the repayment of the Advance
Payment......................................................................... ________ %

14.3............. period of payment.......................................................... ___________________

GUIDANCE
14.3(b).......... number of additional paper copies of Statements........... ________

14.3(iv)......... percentage of retention................................................... ________ %

14.3(iv)......... limit of Retention Money (as a percentage of Accepted

FORMS
Contract Amount)........................................................... ________ %

14.5(b)(i)....... Plant and Materials for payment when shipped............... ___________________

___________________

14.5(c)(i)........ Plant and Materials for payment when delivered to the

Site ............................................................................ ___________________
___________________

14.6.2.......... minimum amount of Interim Payment Certificate (IPC)..... ___________________

14.7(a).......... period for payment of Advance Payment to the

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Contractor...................................................................... ________ days

14.7(b)(i)....... period for the Employer to make interim payments to the

Contractor under Sub-Clause 14.6 [Interim Payment]..... ________ days

14.7(b)(ii)....... period for the Employer to make interim payments to the

Contractor under Sub-Clause 14.13 [Final Payment]...... ________ days

14.7(c).......... period for the Employer to make final payment to the

Contractor...................................................................... ________ days

14.8............. financing charges for delayed payment (percentage

points above the average bank short–term lending rate
as referred to under sub-paragraph (a))........................... ________ %

14.11.1(b)..... number of additional paper copies of draft Final

Statement....................................................................... ________

14.15........... currencies for payment of Contract Price: ___________________

___________________
___________________

14.15(a)(i)...... proportions or amounts of Local and Foreign Currencies

are:
Local.................................................................... ___________________
Foreign................................................................. ___________________

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 Sub-Clause Data to be given Data
CONDITIONS
GENERAL

14.15(c)........ currencies and proportions for payment of Delay

Damages........................................................................ ___________________
___________________
___________________

14.15(g)........ rates of exchange........................................................... ___________________

GUIDANCE

17.2(d).......... forces of nature, the risks of which are allocated to the

Contractor...................................................................... ___________________
___________________
___________________
19.1............. permitted deductible limits:
FORMS

insurance required for the Works.......................... ___________________

insurance required for Goods............................... ___________________
insurance required for liability for breach of
professional duty.................................................. ___________________
insurance required against liability for fitness for
purpose (if any is required).................................... ___________________
insurance required for injury to persons and
damage to property.............................................. ___________________
insurance required for injury to employees............ ___________________

other insurances required by Laws and by local practice:

___________________ ___________________
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

___________________ ___________________
___________________ ___________________

19.2(1)(b)...... additional amount to be insured (as a percentage of the

replacement value, if less or more than 15%).................. ________ %

19.2(1)(iv)...... list of Exceptional Risks which shall not be excluded from

the insurance cover for the Works.................................. ___________________
___________________
___________________

19.2.2.......... extent of insurance required for Goods........................... ___________________

amount of insurance required for Goods......................... ___________________

19.2.3(a)....... amount of insurance required for liability for breach of

professional duty............................................................ ___________________

19.2.3(b)....... insurance required against liability for fitness for purpose. yes / no
(delete as appropriate)

19.2.3.......... period of insurance required for liability for breach of

professional duty............................................................ ___________________

19.2.4.......... amount of insurance required for injury to persons and

damage to property........................................................ ___________________

6 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Sub-Clause Data to be given Data

CONDITIONS
GENERAL
19.2.6.......... other insurances required by Laws and by local practice
(give details).................................................................... ___________________

21.1............. time for appointment of DAAB........................................ ___________________

21.1............. the DAAB shall comprise................................................ ________ members

GUIDANCE
21.1............. list of proposed members of DAAB
- proposed by Employer................................................. 1.__________________
2.__________________
3.__________________

FORMS
- proposed by Contractor............................................... 1.__________________
2.__________________
3.__________________

21.2............. Appointing entity (official) for DAAB members................. ___________________

(Unless otherwise
stated here, it shall be
the President of FIDIC
or a person appointed
by the President)

Definition of Sections (if any):

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Description of parts of Value: Percentage* of Time for Completion Delay Damages

the Works that shall be Accepted Contract (Sub-Clause 1.1.99) (Sub-Clause 8.8)
designated a Section Amount
for the purposes of the (Sub-Clause 14.9)
Contract
(Sub-Clause 1.1.89)

* These percentages shall also be applied to each half of the Retention Money under Sub-Clause 14.9.

Definition of Milestones:
Description of the event that does not correspond Time for Completion Delay Damages
with the whole of the Works or with any Section and (Calculated from the (Sub-Clause 8.8)
is designated a Milestone for the purposes of the Commencement Date)
Contract (Sub-Clause1.1.99)

Maximum amount of delay damages for Milestones (percent of final Contract Price) ….. ____ %

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 Particular Conditions Part B – Special Provisions
CONDITIONS
GENERAL

INTRODUCTION
The terms of the Conditions of Contract for Underground Works have been prepared by the
Fédération Internationale des Ingénieurs-Conseils (FIDIC) in collaboration with the International
GUIDANCE

Tunnelling and Underground Space Association (ITA-AITES) and are recommended for general use
for the execution of Underground Works, where tenders are invited on an international basis.

Modifications to the General Conditions may well be required to account for local legal requirements,
particularly if they are to be used on domestic contracts.

Under the usual arrangements for these types of contract, the Contractor is responsible for the
FORMS

execution (design and construction) of underground works, in accordance with the requirements
of the Employer. These Conditions are based on the premise that the Employer shall include a
Geotechnical Baseline Report together with a Schedule of Baselines and a Completion Schedule, a
Bill of Quantities, Employer’s Requirements and an outline reference design for the Works, but they
are not intended for use where the Contractor is to construct the Works in accordance with a detailed
design provided by the Employer. In this latter case, it is recommended that the Employer consider
using FIDIC’s Conditions of Contract for Construction, Second Edition 2017; with appropriate
Particular Conditions of Contract which are specific to Underground Works which may be based on
the provision of these General Conditions of Contract including in particular a Geotechnical Baseline
Report, a Schedule of Baselines and a Completion Schedule.

The guidance hereafter is intended to assist drafters of the Special Provisions (Particular Conditions
– Part B) by giving options for various sub-clauses where appropriate. In some cases example
wording is included between lines, while in other instances only an aide-memoire is given.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

FIDIC strongly recommends that the Employer, the Contractor and all drafters of the
Special Provisions take all due regard of the five FIDIC Golden Principles:

GP1: The duties, rights, obligations, roles and responsibilities of all the Contract
Participants must be generally as implied in the General Conditions, and
appropriate to the requirements of the project.

GP2: The Particular Conditions must be drafted clearly and unambiguously.

GP3: The Particular Conditions must not change the balance of risk/reward allocation
provided for in the General Conditions.

GP4: All time periods specified in the Contract for Contract Participants to perform
their obligations must be of reasonable duration.

GP5: Unless there is a conflict with the governing law of the Contract, all formal
disputes must be referred to a Dispute Avoidance/Adjudication Board (or a
Dispute Adjudication Board, if applicable) for a provisionally binding decision as a
condition precedent to arbitration.

These FIDIC golden principles are described and explained in the publication FIDIC’s
Golden Principles (http://http://fidic.org/bookshop †), and are necessary to ensure that
modifications to the General Conditions:
- are limited to those necessary for the particular features of the Site and the
project, and necessary to comply with the applicable law;

- do not change the essential fair and balanced character of a FIDIC contract; and

- the Contract remains recognisable as a FIDIC contract.

8 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Before incorporating any new or changed sub-clauses, the wording must be carefully checked to

CONDITIONS
ensure that it is wholly suitable for the particular circumstances. Unless it is considered suitable,

GENERAL
example wording should be amended before use.

Where any amendments or additions are made to the General Conditions, great care must be
taken to ensure that the wording does not unintentionally alter the meaning of other clauses in the
Conditions of Contract, does not inadvertently change the obligations assigned to the Parties or the
balance of risks shared between them and/or does not create any ambiguity or misunderstanding in

GUIDANCE
the rest of the Contract documents. In particular, FIDIC and ITA strongly recommend that the drafter
should refrain from modifying any Sub-Clause specifically referring to Underground Works.

Each time period stated in the General Conditions is what FIDIC believes is reasonable, realistic and
achievable in the context of the obligation to which it refers, and reflects the appropriate balance
between the interests of the Party required to perform the obligation, and the interests of the other
Party whose rights are dependent on the performance of that obligation. If consideration is given

FORMS
to changing any such stated time period in the Special Provisions (Particular Conditions – Part B),
care should be taken to ensure that the amended time period remains reasonable, realistic and
achievable in the particular circumstances.

There are a number of Sub-Clauses in the General Conditions which require data to be provided by
the Employer and/or the Contractor and inserted into the Contract Data (Particular Conditions – Part
A). However, there are no Sub-Clauses in the General Conditions which require data or information
to be included in the Special Provisions (Particular Conditions – Part B).

Provisions found in the Contract documents under Special Provisions (Particular Conditions – Part B)
indicate that the General Conditions have been amended or supplemented.

In describing the Conditions of Contract in the tender documents, the following text can be used:
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

“The Conditions of Contract comprise the “General Conditions”, which form part of the
“Conditions of Contract for Underground Works” First Edition 2019 published by the
Fédération Internationale des Ingénieurs-Conseils (FIDIC) in joint endeavour with the
International Tunnelling and Underground Space Association (ITA-AITES), the Contract
Data (Particular Conditions – Part A), and the following “Special Provisions” (Particular
Conditions – Part B) which include amendments and additions to such General
Conditions.”

The provisions of the Special Provisions (Particular Conditions – Part B) will always over-rule and
supersede the equivalent provisions in the General Conditions, and it is important that the changes are
easily identifiable by using the same clause numbers and titles as appear in the General Conditions.
Furthermore, it is necessary to add a statement in the tender documents for a contract that:

“The provisions to be found in the Special Provisions (Particular Conditions – Part B) take
precedence over the equivalent provisions found under the same Sub-Clause number(s)
in the General Conditions, and the provisions of the Contract Data (Particular Conditions
– Part A) take precedence over the Special Provisions (Particular Conditions – Part B).”

†
Please Note: all web links referred to in these guidance notes are up-to-date as of the date of this
publication but it is recommended that users of these guidance notes check online, at the time that
they wish to reference the relevant document, for the most up-to-date version of the document.

As with all FIDIC standard conditions, some Sub-Clauses may require modifications due to local
legal requirements or project specific considerations. Many of the guidance notes provided for the
drafting of the Particular Conditions for various Sub-Clauses for the Conditions of Contract for Plant
and Design Build are applicable for the Particular Conditions for Underground Works. FIDIC and
ITA recommend to avoid modifying the specific Sub-Clauses that FIDIC and ITA have adapted for
Underground Works. The modified Sub-Clauses are the result of extensive deliberation and analysis
by a group of international experts on the subject. Partial modification of the Sub-Clauses could
result in unintended consequences or could make the proposed Contract framework ineffective.

© FIDIC & ITA 2019

9
 In particular, FIDIC and ITA recommend to avoid modifying, particularly in light of 1.9 Errors in the
CONDITIONS

Employer’s Documents, any of the following Sub-Clauses:

GENERAL

1.1 Definitions
1.1.5 Bill of Quantities
1.1.8 Completion Schedule
1.1.11 Contract
GUIDANCE

1.1.15 Contract Risk Management Plan

1.1.16 Contract Risk Register
1.1.20 Contractor’s Key Equipment
1.1.23 Contractor’s Proposal
1.1.43 Excavation
FORMS

1.1.50 General Conditions

1.1.51 Geotechnical Baseline Report
1.1.52 Geotechnical Data Report
1.1.58 Letter of Acceptance
1.1.60 Lining
1.1.63 Milestone
1.1.64 Milestone Certificate
1.1.78 Programme
1.1.83 Schedules
1.1.84 Schedule of Baselines
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1.1.85 Schedule of Contractor’s Key Equipment

1.1.88 Schedule of Rates and Prices
1.1.99 Time for Completion
1.1.100 Underground Works
1.1.101 Unforeseeable

Other Sub-Clauses :

1.2 Interpretation
1.5 Priority of Documents
1.9 Errors in the Employer’s Requirements and/or in the Geotechnical Baseline Report
1.16 Contract Risk Register and Contract Risk Management Plan
2.5 Site Data and Items of Reference
3.2 Engineer’s Duties and Authority, Sub-Clauses 3.2.1 and 3.2.2
3.7 Agreement or Determination
4.10 Use of Site Data, of the Geotechnical Baseline Report and of the Geotechnical Data
Report
4.10.1 Use of Site Data
4.10.2 Use of the Geotechnical Baseline Report
4.10.3 Use of the Geotechnical Data Report
4.11 Sufficiency of the Accepted Contract Amount

10 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 4.12 Unforeseeable Physical Conditions,

CONDITIONS
4.12.1 Contractors’ Notice,

GENERAL
4.12.2 Engineer’s inspection and investigation
4.12.5 Agreement or Determination of Delay and/or Cost
4.16 Transport of Goods
4.17 Contractor’s Equipment

GUIDANCE
4.20 Progress Reports
4.24 Excavation and Lining Works
4.25 Milestones
5.1 General Design Obligations
5.2 Contractor’s Documents

FORMS
6.12 Contractor’s Key Personnel
7.1 Manner of Execution
7.7 Ownership of Plant and Materials
8.2 Time for Completion
8.2.1 The Completion Schedule
8.2.2 The Schedule of Baselines
8.3 Programme
8.4 Advance Warning
8.5 Extension of Time for Completion
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8.7 Rate of Progress

8.8 Delay Damages
8.9 Employer’s Suspension
8.13 Resumption of Work
11.11 Clearance of Site
13.8 Measurement of Excavation and Lining Works and Adjustment of Time for
Completion and Contract Price
13.8.1 Responsibility for Measurement
13.8.2 Bill of Quantities for Excavation and Lining Works
13.8.3 Adjustment of Time for Completion
13.8.4 Adjustment of the Contract Price
14.1 The Contract Price
14.3 Application for Interim Payment
14.4 Schedule of Payments
15.2 Termination for Contractor’s Default
20.2 Employer’s and Contractor’s Claims

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 NOTES ON THE PREPARATION OF SPECIAL PROVISIONS
CONDITIONS
GENERAL

It is very important that Employers (and all drafters of the Special Provisions) work with their
professional advisers to review specific terminology in the General Conditions for compliance and
consistency with accepted practice in the legal jurisdiction they are operating in.

For example:
GUIDANCE

• under a number of legal systems (notably in some common law jurisdictions) the term
“gross negligence” has no clear definition and, as such, is often avoided in legal documents;
and

• under English law, the term “indemnity” or “indemnify” has a specific meaning, entitling
the indemnified party to recover certain losses that may not otherwise be recoverable at
law. For example, a Contractor’s indemnity may be construed to permit the Employer to
recover losses or damages that might otherwise be considered indirect or consequential,
FORMS

whereas for some events which may arise both Parties’ losses or damages are intended
to be limited by Sub-Clause 1.15 [Limitation of Liability] to direct damages only.

The following references and examples show some of the Sub-Clauses in the General Conditions
which may need amending to suit the needs of the project or the requirements of the Employer. The
selected Sub-Clauses and the example wording are included as examples only. They also include,
as an aide-memoire, references to other documents such as the Employer’s Requirements and the
Contract Data, where particular issues may need to be addressed.

The selected Sub-Clauses do not necessarily require changing and the example wording may not
suit the needs of a particular project or Employer. It is the responsibility of the drafter of the Special
Provisions to ensure that the selection of the Sub-Clauses and the choice of wording is appropriate
to the project concerned.
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Furthermore, there may be other Sub-Clauses, not mentioned below, which need to be amended.
Great care must be taken when amending the wording of Sub-Clauses from the General Conditions,
or adding new provisions, to ensure that the balance of obligations and rights of the Parties are not
unintentionally compromised.

12 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The following Sub-Clauses make express reference to matters to be included in the Employer’s

CONDITIONS
Requirements. However, it may also be necessary under other Sub-Clauses for the Employer to give

GENERAL
specific information in the Employer’s Requirements (for example, under Sub-Clause 7.2 [Samples]).
1.8 Care and Supply of Documents

1.13 Compliance with Laws

2.1 Right of Access to the Site

GUIDANCE
2.5 Site Data and Items of Reference

2.6 Employer-Supplied Materials and Employer’s Equipment

4.1 Contractor’s General Obligations

4.5 Nominated Subcontractors

FORMS
4.6 Co-operation

4.8 Health and Safety Obligations

4.9 Quality Management and Compliance Verification Systems

4.16 Transport of Goods

4.18 Protection of the Environment

4.19 Temporary Utilities

4.20 Progress Reports

5.1 General Design Obligations

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5.2 Contractor’s Documents

5.4 Technical Standards and Regulations

5.5 Training

5.6 As-Built Records

5.7 Operation and Maintenance Manuals

6.1 Engagement of Staff and Labour

6.6 Facilities for Staff and Labour

6.7 Health and Safety of Personnel

6.12 Key Personnel

7.3 Inspection

7.4 Testing by the Contractor

7.8 Royalties

8.3 Programme

9.1 Contractor’s Obligations

10.2 Taking Over Parts

11.11 Clearance of Site

12.1 Procedure for Tests after Completion.

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13
 Many Sub-Clauses in the General Conditions make reference to data being contained in the Contract
CONDITIONS

Data (Particular Conditions – Part A). This data must be provided in the tender documents, and
GENERAL

these Conditions of Contract assume that all such data will be provided by the Employer, except as
expressly noted in the example form of Contract Data included in this publication. If the Employer
requires tenderers to provide any of the other information required in the Contract Data, the tender
documents must make this clear.

If the Employer requires tenderers to provide additional data or information, a convenient way of
GUIDANCE

doing this is to provide a suitably worded questionnaire with the tender documents.

The Instructions to Tenderers may need to specify any constraints on the completion of the Contract
Data and/or Schedules, and/or specify the extent of other information which each tenderer is to
include with his/her Tender. If each tenderer is to produce a tender security and/or a parent company
guarantee, these requirements should be included in the Instructions to Tenderers: example forms
are included at the end of this publication.
FORMS

The Instructions to Tenderers may require the tenderer to provide information on the matters referred
to in some or all of the following Sub-Clauses:
4.3 Contractor’s Representative

6.12 Key Personnel

19 Insurance

It is important for the Parties to understand which of the documents included in the tender dossier,
and which of the documents submitted by tenderers, will form part of the Contract and therefore
have continuing effect. For example, the Instructions to Tenderers are not, by definition, a part of
the Contract. They are simply instructions and information on the preparation and submission of the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

tender, and they should not contain anything of a binding or contractual nature.

If the design-build contract is to include fixtures, fittings equipment, and other similar items, the
scope of such work must be defined in the Employer’s Requirements. Full consideration should
be given to detailed requirements for these items, such as the extent to which the Works are to be
fully equipped, ready for operation, with spare parts and consumables provided for operation (for
a specified period), typically by the Employer. If the Contractor is required to operate the Works,
either for a few months’ trial operation under sub-paragraph (c) of Sub-Clause 9.1 [Contractor’s
Obligations] or for some years’ operation, this must also be specified and detailed in the Employer’s
Requirements.

If tenderers are required to carry out any preliminary design or study for their proposals, the Employer
should bear in mind that tenderers are understandably often reluctant to incur great expense in the
preparation of tender designs. Therefore, when preparing the Instructions to Tenderers, thought
should be given as to the extent of detail which tenderers can realistically be expected to prepare
and include in their proposals. The extent of detail required should be clearly described in the
Instructions to Tenderers (it should be noted that there can be no description in the documents
which will later constitute the Contract, which only comes into full force and effect when a tenderer’s
proposal is accepted). Employers should also consider remunerating tenderers if, in order to provide
a responsive Tender, they have to undertake studies or carry out preliminary design work.

Finally, when planning the overall programme for the project, Employers must remember to allow a
realistic time for:
- tenderers to prepare and submit a responsive Tender (avoiding time that is either too short
which can reduce competition and result in inadequate submittals, or too long which can
be wasteful to all parties involved); and

- the review and evaluation of tenders and the award of the Contract to the successful
tenderer. This will be the minimum time which tenderers should be asked to hold their
tenders valid and open to acceptance.

14 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Clause 1 General Provisions

CONDITIONS
Sub-Clause 1.1 Definitions

GENERAL
The opening words of Sub-Clause 1.1 mean that the definitions apply, not only to the Conditions
of Contract, but to all the documents of the Contract. Therefore, the Employer should take
care (particularly when drafting the Employer’s Requirements) and the Contractor should take
care (particularly when drafting the Contractor’s Proposal) to use terms in accordance with
those as defined in the definitions.

GUIDANCE
Regarding the “Base Date” under Sub-Clause 1.1.4, if the Employer makes significant data/
information available to tenderers 28 days or less before the due date for submission of
tenders, then it is recommended that the Employer consider extending that date so that such
information is provided before the Base Date for the purposes of the Contract conditions
(including, Sub-Clause 2.5 [Site Data and Items of Reference] and Sub-Clause 4.12

FORMS
[Unforeseeable Physical Conditions]).

The defined term “Site”, under Sub-Clause 1.1.90, is used for a number of different purposes
in the General Conditions (for example: insurances and security) and so, if it is anticipated that
any item(s) of equipment, Plant, Materials and Temporary Works are to be located or stored
in places other than where the Permanent Works are to be executed, it is recommended
that consideration be given to specifying such places in the Contract (by the Employer in the
Employer’s Requirements and/or by the Contractor in the Contractor’s Proposal).

In general, changes should not be made to the definitions as this could have serious
consequences on the interpretation of the documents of the Contract, particularly the
Conditions of Contract.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

FIDIC and ITA recommend that none of the definitions that refer specifically to Underground
Works be amended.

However, there are limited circumstances where it may be desirable to amend some of the
definitions. For example:
1.1.4 the Base Date could be defined as a particular calendar date with time
zone hour
1.1.42 one particular Foreign Currency may be required
1.1.52 a different currency may be required to be the contract Local Currency

Also, some of the defined terms in the General Conditions may not be appropriate and may
need changing or developing.

For example, if the extent of the Site crosses the border between two countries, it is
recommended that consideration be given to the following changes:

EXAMPLE 1.1.27 (delete and replace definition)

“ “Country” means either xxxxx or yyyyy depending on the location

to which the reference will apply.

EXAMPLE 1.1.61 (delete and replace definition with the following:)

“ “Local Currency” means the currency of (insert name of Country)

or (insert name of Country).”

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 If it is necessary to introduce new terminology into the text of the Special Provisions, each
CONDITIONS

term should be carefully and properly defined, using a clear Sub-Clause numbering system for
GENERAL

the new / additional defined terms. It is recommended that the numbering of new definitions
does not interfere with the numbering as originally included in the General Conditions. For
example:

EXAMPLE New definition B 1.1.x

GUIDANCE

“ “Safety Regulations” means the Employer’s safety regulations

existing on the Site which the Contractor is required to follow.”

In some jurisdictions, it may be advisable to add additional definitions to clarify certain terms/
expressions which appear in the General Conditons but are not defined. A typical example
might be:
FORMS

EXAMPLE New definition B 1.1.’n’

“ “Gross Negligence” means any act or omission of a party

which is contrary to the most elementary rules of diligence which
a conscientious Employer or Contractor would have observed
in similar circumstances, and/or which show serious reckless
disregard for the consequences of such act or omission. It involves
materially more want of care than mere inadvertence or simple
negligence.”

Sub-Clause 1.2 Interpretation

In relation to the meaning of “consent” under sub-paragraph (g), it should be noted that
this does not mean “approve” or “approval” which, under some legal jurisdictions, may be
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interpreted as accepting or acceptance that the requested matter is wholly satisfactory -

following which the requesting party may no longer have any responsibility or liability for it.

Sub-Clause 1.3 Notices and Other Communications

If Notices are only to be given in paper format by post, then consideration may be given to
increasing the particular timescales for Notices in the Conditions of Contract to allow extra
days for the Notice to be delivered to the recipient.

Sub-Clause 1.5 Priority of Documents

An order of precedence is usually necessary, in case a conflict is subsequently found between

the documents of the Contract.

FIDIC and ITA recommend the order of priority of the documents in the General Conditions
remain unaltered.

If the Employer’s Requirements are to comprise a number of documents, it may be useful to

amend sub-paragraph (g) of this Sub-Clause 1.5 by adding an order of precedence between
the documents of the Employer’s Requirements.

Sub-Clause 1.6 Contract Agreement

The form of the Contract Agreement should be included in the tender documents as an annex
to the Special Provisions: an example form is included at the end of this publication (in the
section “Forms”).

16 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 If lengthy tender negotiations were necessary, it is recommended that consideration be given

CONDITIONS
to recording in the Contract Agreement: the Accepted Contract Amount, the Base Date and/

GENERAL
or the Commencement Date.

Entry into a formal Contract Agreement may be mandatory under the applicable law. In such
a case, the words “unless they agree otherwise” should be deleted from the text.

Sub-Clause 1.10 Employer’s Use of Contractor’s Documents

GUIDANCE
Additional provisions may be required if all rights to particular items of computer software (for
example) are to be assigned to the Employer. These provisions should take account of the
applicable law.

Sub-Clause 1.13 Compliance with Laws

FORMS
For Underground Works involving the supply and installation of Plant, alternative arrangements
may be appropriate:

EXAMPLE Insert after sub-paragraph (d) of Sub-Clause 1.13:

“The Contractor shall submit, in good time, the details of Goods to

the Employer, who shall then promptly obtain all import permits or
licences required for these Goods.
The Employer shall also obtain or grant all consents including
permits-to-work, rights-of-way and approvals required for the
Works.”

In respect of sub-paragraphs (b) and (c) of this Sub-Clause, if (in addition to the provisions of
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Sub-Clause 4.18 [Protection of the Environment]) the applicable law requires the Contractor
to apply for and/or comply with particular environmental permits, these permits should be
clearly described in detail in the Employer’s Requirements together with the Contractor’s
obligations associated with each permit.

Sub-Clause 1.14 Joint and Several Liability

If it is likely that one or more of the tenderers will be a Joint Venture, detailed requirements for
the JV may need to be specified in addition to those listed in the definition of “JV Undertaking”
under Sub-Clause 1.1.56. For example, it may be desirable for each member of the JV
to produce a parent company guarantee: an example form is included at the end of this
publication (in the section “Forms”).

These requirements should be included in the Instructions to Tenderers. Normally the

Employer will wish the leader of the JV to be appointed at an early stage, providing a single
point of contact thereafter, and will not wish to be involved in a dispute between the members
of a JV.

The Employer should scrutinise the JV Undertaking carefully and, where relevant, check if the
project’s financing institution(s) has/have to give consent.

Sub-Clause 1.15 Limitation of Liability

If it is required that the limitation of each Party’s liability to the other Party is to include certain
“indirect or consequential loss or damage” and is also to take into account liabilities which
are to be insured under Clause 19 [Insurance], the Contract Data and this Sub-Clause may
be varied:

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17
 EXAMPLE In the Contract Data, add the following:
CONDITIONS

“ 1.15 Amount of Sum A: _____

GENERAL

Amount of Sum B: _____

Amount of Sum C: _____ “

Delete Sub-Clause 1.15 and substitute:

“Except as stated in this Sub-Clause, neither Party shall be liable
to the other Party for loss of use of any Works, loss of profit, loss
GUIDANCE

of any contract or for any indirect or consequential loss or damage

which may be suffered by the other Party in connection with the
Contract.

The Contractor’s liability to the Employer under or in connection

with the Contract shall be limited as follows:
(a) for failure to comply with Sub-Clause 8.2 [Time for
FORMS

Completion], the limit shall be the maximum amount of

Delay Damages stated in the Contract Data;
(b) for loss of profit, loss of any contract or loss of use of any
part of the Permanent Works (after taking over under the
Contract), caused by:
(i) defects attributable to the Contractor, the limit shall
be the sum A stated in the Contract Data;
(ii) damage to the Works caused by the Contractor, the
limit shall be the sum B stated in the Contract Data;
(iii) damage caused by the Contractor to the Employer’s
property other than the Works, the limit shall be fifty
percent (50%) of the sum B stated in the Contract
Data; and
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(iv) any other matter attributable to the Contractor, the

limit shall be fifty percent (50%) of the sum A stated in
the Contract Data;
(c) for damage caused by the Contractor to the Works, the limit
shall be the required value of cover of the insurance under
Sub-Clause 19.2.1 [The Works];
(d) for damage caused by the Contractor to the Employer’s
property other than the Works, the limit shall be the required
value of cover of the insurance under Sub-Clause 19.2.4
[Injury to persons and damage to property];
(e) for death or injury to the Employer’s personnel or the
Engineer’s personnel by a cause attributable to the
Contractor, the limit shall be the required value of cover of the
insurance under Sub-Clause 19.2.5 [Injury to employees];
(f) for the Contractor’s indemnity to the Employer for third
party claims under the first paragraph of Sub-Clause 17.4
[Indemnities by Contractor], there shall be no limit; and
(g) for the Contractor’s indemnity to the Employer under the
second paragraph of Sub-Clause 17.4 [Indemnities by
Contractor], the limit shall be the required value of cover of
the insurance under Sub-Clause 19.2.3 [Liability for breach
of professional duty];
(h) for all matters other than those described in sub-paragraphs
(b) to (g) above and other than those under Sub-Clause 17.3
[Intellectual and Industrial Property Rights], the limit shall be
the sum C stated in the Contract Data.
The Employer’s liability to the Contractor under or in connection
with the Contract shall be limited as follows:

18 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 (i) for loss of profit, loss of any contract or any other

CONDITIONS
direct loss caused by termination of the Contract

GENERAL
under Sub-Clause 15.5 [Termination for Employer’s
Convenience] and Sub-Clause 16.2 [Termination by
Contractor], the limit shall be twenty percent (20%) of
the Accepted Contract Amount;
(ii) for damage caused by the Employer or Employer’s
Personnel to the Temporary Works or Plant and

GUIDANCE
Materials not included in the Permanent Works, the
limit shall be thirty percent (30%) of the required value
of cover of the insurance under Sub-Clause 19.2.1
[The Works];
(iii) for damage caused by the Employer or Employer’s
Personnel to the Contractor’s Equipment, Materials,
Plant and/or Temporary Works, the limit shall be

FORMS
the required value of cover of the insurance under
Sub-Clause 19.2.2 [Goods];
(iv) for death or injury to the Contractor’s Personnel by a
cause attributable to the Employer the limit shall be
the required value of cover of the insurance under
Sub-Clause 19.2.5 [Injury to employees];
(v) for the Employer’s indemnity to the Contractor for
third party claims under Sub-Clause 17.5 [Indemnities
by Employer], there shall be no limit; and
(vi) for all matters other than those described in
sub-paragraph (i) to (v) above and other than under
Sub-Clause 17.3 [Intellectual and Industrial Property
Rights], the limit shall be in accordance with Sub-Clause
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14.14 [Cessation of Employer’s Liability] as may be

amended under Sub-Clause 21.4 [Obtaining DAAB’s
Decision], Sub-Clause 21.5 [Amicable Settlement] or
Sub-Clause 21.6 [Arbitration].
This Sub-Clause shall not limit liability in any case of fraud, gross
negligence, deliberate default or reckless misconduct by the
defaulting Party.”

Clause 2 The Employer

Sub-Clause 2.1 Right of Access to the Site

It is typically necessary for the Contractor to have early access to the Site for the purposes
of survey and subsurface investigations. The details of such early right of access should be
stated in the Contract Data, including any restrictions on such access and whether or not it
shall be exclusive to the Contractor.

If right of access to, and possession of, the Site cannot be granted by the Employer in the normal
way, details should be given in the Employer’s Requirements and appropriate amendments
made to the first paragraph of this Sub-Clause and, if necessary, to the second paragraph.

Sub-Clause 2.3 Employer’s Personnel and Other Contractors

The provisions concerning co-operation between contractors should be reflected in the

Employer’s contracts with any other contractors working on or near the Site.

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 Sub-Clause 2.6 Employer-Supplied Materials and Employer’s Equipment
CONDITIONS
GENERAL

If Employer-Supplied Materials are listed in the Employer’s Requirements for the Contractor’s
use in the execution of the Works, the following provisions may be added:

EXAMPLE After the last paragraph of Sub-Clause 2.6, add:

“The Employer shall supply to the Contractor the Employer-Sup-

GUIDANCE

plied Materials listed in the Employer’s Requirements, at the time(s)

stated in the Employer’s Requirements (if not stated, within the
times that shall be required to enable the Contractor to proceed
with execution of the Works in accordance with the Programme).
When made available by the Employer, the Contractor shall visually
inspect the Employer-Supplied Materials and shall promptly give a
Notice to the Engineer of any shortage, defect or default in them.
FORMS

Thereafter, the Contractor shall rectify such shortage, defect or

default to the extent instructed by the Engineer. Such instruction
shall be deemed to have been given under Sub-Clause 13.3.1
[Variation by Instruction].

After this visual inspection, the Employer-Supplied 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.”

In the last paragraph of Sub-Clause 17.1 [Responsibility for Care

of the Works] after the two instances of “Goods” add:
“, Employer-Supplied Materials,”.
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If Employer’s Equipment is listed in the Employer’s Requirements for the Contractor’s use in
the execution of the Works, the following provisions may be added:

EXAMPLE After the last paragraph of Sub-Clause 2.6, add:

“The Employer shall make the Employer’s Equipment listed in the

Employer’s Requirements available to the Contractor at the time(s)
stated in the Employer’s Requirements (if not stated, within the
times that shall be required to enable the Contractor to proceed
with execution of the Works in accordance with the Programme).

Unless expressly stated otherwise in the Employer’s Requirements,

the Employer’s Equipment shall be provided for the exclusive use
of the Contractor.

When made available by the Employer, the Contractor shall

visually inspect the Employer’s Equipment and shall promptly give
a Notice to the Engineer of any shortage, defect or default in them.
Thereafter, the Contractor shall rectify such shortage, defect or
default to the extent instructed by the Engineer. Such instruction
shall be deemed to have been given under Sub-Clause 13.3.1
[Variation by Instruction].

The Contractor shall be responsible for the Employer’s Equipment

while it is under the Contractor’s control and/or any of the
Contractor’s Personnel is operating it, driving it, directing it, using
it, or in control of it.
The Contractor shall not remove from the Site any items of the
Employer’s Equipment without the consent of the Employer.
20 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 However, consent shall not be required for vehicles transporting

CONDITIONS
Goods or Contractor’s Personnel to or from the Site.”

GENERAL
In the last paragraph of Sub-Clause 17.1 [Responsibility for Care of
the Works] after the two instances of “Goods” add:
“, Employer’s Equipment”,

Clause 3 The Engineer

GUIDANCE
Sub-Clause 3.1 The Engineer

In the appointment of the Engineer, it is recommended that the Employer and the Engineer
use the form of agreement FIDIC Clients/Consultants Model Services Agreement fifth Edition,
2017 (http://fidic.org/books/clientconsultant-model-services-agreement-5th-ed-2017-white-
book).

FORMS
Sub-Clause 3.2 Engineer’s Duties and Authority

In performing the Engineer’s duties and in exercising his/her authority under the Contract, the
Engineer should take due regard of:
a) FIDIC’s Code of Ethics for consulting engineers: http://fidic.org/about-fidic/fidic-policies/
fidic-code-ethics†;
and
b) the duty to prevent corruption and bribery as described in the publications:
- FIDIC Guidelines for Integrity Management (FIM) in the consulting
industry, Part 1- Policies and principles first edition, 2011 (http://fidic.
org/books/integrity-management-system-fims-guidelines-1st-ed-
2011-part1† ) and
- FIDIC Guidelines for Integrity Management System in the Consulting
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Industry 1st Ed (2015) Part 2, FIMS Procedures (http://fidic.org/books/

guidelines-integrity-management-system-consulting-industry-1st-ed-
2015-part-2† ).
If there are any requirements for Employer’s consent, this Sub-Clause requires that these
should be set out in the Special Provisions and so the following provisions should be added
to this Sub-Clause:

EXAMPLE “The Engineer shall obtain the consent of the Employer before
taking action under the following Sub-Clauses of these Conditions:

(a) Sub-Clause ______________ *

(b) Sub-Clause _____________ * “

* [Insert Sub-Clause number (not Sub-Clause 3.7 [Agreement

or Determination] – please see below) and describe the specific
procedure to be followed by the Engineer, where appropriate]

This list should be extended or reduced as necessary. If the obligation to obtain the Employer’s
consent only applies beyond certain limits, financial or otherwise, the example wording should
be varied accordingly.
It should be noted that any such requirement shall not be applied to any action by the Engineer
under Sub-Clause 3.7 [Agreement or Determination], as stated in Sub-Clause 3.2 [Engineer’s
Duties and Authority] of the General Conditions.

Sub-Clause 3.2.2 Engineer’s Specific Duties and Authority for Excavation and
Lining Works

FIDIC and ITA recommend that Sub-Clause 3.2.2 [Engineer’s Specific Duties and Authority for
Excavation and Lining Works] remain unchanged. These duties are essential to the Contract.
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21
 Sub-Clause 3.4 Delegation by the Engineer
CONDITIONS
GENERAL

The Engineer’s assistants may include: design engineers, other construction professionals,
technicians, inspectors and/or specialist independent engineers and/or inspectors appointed
to monitor and review the execution of the Works (including inspecting and/or testing items
of Plant and/or Materials).
If it is anticipated that the Engineer’s assistants may not all be fluent in the language for
communications defined in Sub-Clause 1.4 [Law and Language], consideration should be
GUIDANCE

given to amending this Sub-Clause:

EXAMPLE In the second paragraph of Sub-Clause 3.4, after “Sub-Clause 1.4

[Law and Language]” add the following:

“If any assistants are not fluent in this language the Engineer shall
make competent interpreters available during all working hours, in
FORMS

a number sufficient for those assistants to properly perform their

assigned duties and/or exercise their delegated authority.”

Sub-Clause 3.5 Engineer’s Instructions

If the applicable law prevents the Contractor from complying with any Engineer’s instruction
that may have an adverse effect on the health and safety of the Contractor’s Personnel,
sub-paragraph (b) of this Sub-Clause may be amended:

EXAMPLE At the end of sub-paragraph (b) of Sub-Clause 3.5, add the

following:

“or will adversely affect the health and safety of the Contractor’s
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Personnel”.

If the Conditions of Contract are to allow for the giving of oral instructions by the Engineer, this
Sub-Clause may be amended:

EXAMPLE At the end of Sub-Clause 3.5, add the following:

“If the Engineer or a delegated assistant:

(a) gives an oral instruction;
(b) receives a written confirmation of the instruction, from the
Contractor, within two working days after giving the oral
instruction; and
(c) does not reply by issuing a written rejection and/or instruction
within two working days after receiving the confirmation
then the Contractor’s confirmation shall constitute the written
instruction of the Engineer or delegated assistant (as the case may
be).”

Sub-Clause 3.7 Agreement or Determination

The Engineer shall not delegate any of his/her duties under this Sub-Clause to the Engineer’s
Representative (if appointed) or to any assistant, as stated under Sub-Clause 3.4 [Delegation
by the Engineer].
The opening words of this Sub-Clause state that the Engineer “shall act neutrally between the
Parties” when carrying out his/her duties under this Sub-Clause and “shall not be deemed
to act for the Employer”. By these statements it is intended that, although the Engineer is
appointed by the Employer and acts for the Employer in most other respects under the

22 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Contract, when acting under this Sub-Clause the Engineer treats both Parties even-handedly,

CONDITIONS
in a fair-minded and unbiased manner.

GENERAL
Sub-Clause 3.8 Meetings

It may be useful to give information in the Employer’s Requirements of a planned timetable of

meetings such as management meetings, site meetings, technical meetings, risk management
meetings and progress meetings.

GUIDANCE
Clause 4 The Contractor
Sub-Clause 4.1 Contractor’s General Obligations

FIDIC strongly recommends that the Employer ensures that the Employer’s Requirements
contain a clearly identified, defined and described specific purpose or purposes for which the

FORMS
facility will be used when complete, in order that the Contractor can comply with the obligation
to provide Works which are “fit for the purpose(s) for which they are intended” as stated in
this Sub-Clause.

Sub-Clause 4.2 Performance Security

The acceptable form(s) of Performance Security should be included in the tender documents.
Example forms are included at the end of this publication (in the section “Forms”). They
incorporate two sets of Uniform Rules published by the International Chamber of Commerce
(the “ICC”, which is based at 33-43 Avenue du Président Wilson, 75116 Paris, France), which
also publishes guides to these Uniform Rules.

These example forms and the wording of the Sub-Clause may have to be amended to comply
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

with applicable law.

EXAMPLE At the end of the first paragraph of Sub-Clause 4.2.1 [Contractor’s

Obligations], insert:

“If the Performance Security is in the form of a bank guarantee,

it shall be issued either (i) by a bank located in the Country, or (ii)
directly by a foreign bank to which the Employer gives consent. If
the Performance Security is not in the form of a bank guarantee,
it shall be issued by a financial entity registered, or licensed to do
business, in the Country.”

The example forms of Performance Security that are included at the end of this publication (in
the section “Forms”) provide for the option to reduce the amount of the Performance Security
following issue of the Taking-Over Certificate for the whole of the Works under Clause 10. If
neither of the example forms is to be used, consideration should be given to adding provisions
for this option to Sub-Clause 4.2.1.

Sub-clause 4.3 Contractor’s Representative

If the Contractor’s Representative is known at the time of submission of the tender, the tenderer
may propose that person in his/her tender. The tenderer may wish to propose alternatives,
especially if the contract award seems likely to be delayed.
The “main engineering discipline applicable to the Works” in which the Contractor’s
Representative is required to be qualified, experienced and competent should be the
engineering discipline of the Works which is of highest value proportionate to the value of the
Works. If it is necessary to stipulate that the Contractor’s Representative shall be qualified,
experienced and competent in a particular engineering discipline in relation to the Works, the
following amendment will need to be made to this Sub-Clause:
© FIDIC & ITA 2019
23
 EXAMPLE In the second paragraph of Sub-Clause 4.3 delete “the main
CONDITIONS

engineering discipline applicable to the Works” and replace with:

GENERAL

[Insert description of engineering discipline],

If it is necessary that the Contractor’s Representative shall also be fluent in a particular

language other than the language for communications defined in Sub-Clause 1.4 [Law and
GUIDANCE

Language], the following amendment may be made:

EXAMPLE At the end of the second paragraph of Sub-Clause 4.3, add:

“The Contractor’s Representative shall also be fluent in

____________________(insert name of language)”
FORMS

If it is permissible that the Contractor’s Representative is not fluent in the language for
communications defined in Sub-Clause 1.4 [Law and Language], consideration should be
given to amending this Sub-Clause:

EXAMPLE Insert at the end of the second paragraph of Sub-Clause 4.3:

“If the Contractor’s Representative is not fluent in this language the

Contractor shall make competent interpreter(s) available during
all working hours, sufficient for the Contractor’s Representative
to properly perform his/her duties and exercise his/her authority
under the Contract.”
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If it is permissible that the Contractor’s Representative’s delegates are not all fluent in the
language for communications defined in Sub-Clause 1.4 [Law and Language], consideration
should be given to amending this Sub-Clause:

EXAMPLE Insert at the end of the last paragraph of Sub-Clause 4.3:

“If any of these persons is not fluent in this language the Contractor
shall make competent interpreters available during all working
hours, in a number sufficient for those persons to properly perform
their delegated powers, functions and/or authority.”

Sub-clause 4.4 Subcontractors

It may be appropriate and/or desirable, taking account of the circumstances and locality of
the project, to encourage the Contractor to employ local contractors in the execution of the
Works:

EXAMPLE At the end of the second paragraph of Sub-Clause 4.4, add:

“The Contractor shall give reasonable opportunity to contractors

from the Country to tender for subcontracts for the Works, and
shall use reasonable endeavours to employ such contractors as
Subcontractors.”

If no consent by the Engineer to Subcontractors is required, the last three paragraphs of this
Sub-Clause may be deleted. If less consent by the Engineer to Subcontractors is preferable,
this Sub-Clause may be amended:

24 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 EXAMPLE
After sub-paragraph (ii) of Sub-Clause 4.4, add:

CONDITIONS
“or

GENERAL
(iii) a Subcontractor where the value of his/her subcontract is less
than one percent (1%) of the Accepted Contract Amount.”

If the Engineer’s consent is required to the suppliers of certain Materials, this Sub-Clause may

GUIDANCE
be amended:

EXAMPLE At the end of the third paragraph of Sub-Clause 4.4, add:

“However, the Engineer’s prior consent shall be required for the

suppliers of the following Materials:
____________________________

FORMS
____________________________”
(insert details: for example, specific manufactured or prefabricated
items of Materials)

If the Employer requires that all the Contractor’s subcontracts should provide for assignment of
the subcontract to the Employer in the event that Sub-Clause 15.2 [Termination for Contractor’s
Default] applies, the following amendment will need to be made to this Sub-Clause:

EXAMPLE Insert at the end of the last paragraph of Sub-Clause 4.4:

“All subcontracts relating to the Works shall include provisions which

entitle the Employer to require the subcontract to be assigned to
the Employer under sub-paragraph (a) of Sub-Clause 15.2.3 [After
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Termination].”

If the Employer requires that the Contractor assigns the benefit of the relevant subcontract in
the event that a Subcontractor’s obligations continue after expiry of the DNP relating to that
Subcontractor’s work, the following amendment will need to be made to this Sub-Clause:

EXAMPLE Insert at the end of the last paragraph of Sub-Clause 4.4:

“If a Subcontractor’s obligations to the Contractor extend

beyond the expiry date of the DNP which is applicable to the
Subcontractor’s work and if the Contractor receives an instruction
from the Engineer to do so not less than 7 days before this expiry
date, the Contractor shall assign the benefit of such obligations
to the Employer. Unless otherwise stated in the assignment, the
Contractor shall have no liability to the Employer for work carried
out by the Subcontractor after the assignment takes effect.”

Sub-Clause 4.5 Nominated Subcontractors

Normally the Contractor will select and employ Subcontractor(s), (subject to any constraints
stated in the Contract), but this Sub-Clause provides for the situation where the Employer may
wish to select a particular Subcontractor or Subcontractors to be employed by the Contractor
in the execution of the Works.
If this is the case, it is recommended that the Employer names the particular Subcontractor(s)
in the Employer’s Requirements so that tenderers are aware of this requirement before
submitting their tenders - although this Sub-Clause also makes provision for the Engineer
to instruct the Contractor to employ a Subcontractor or Subcontractors selected by the
Employer after contract award.
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25
 It should be noted that:
CONDITIONS

a) once the Contractor has employed a Subcontractor who has been nominated by the
GENERAL

Employer, the second paragraph of Sub-Clause 4.4 [Subcontractors] applies; and

b) sub-paragraph (b) of Sub-Clause 13.4 [Provisional Sums] should provide for payment
to the Contractor for works or services to be purchased by the Contractor from a
nominated Subcontractor.
GUIDANCE

If the Employer anticipates that a Subcontractor is to be instructed under Sub-Clause 13.3

[Variation Procedure] but is not to be a nominated Subcontractor this Sub-Clause should be
amended, describing the particular circumstances.

Sub-Clause 4.8 Health and Safety Obligations

If the Contractor is sharing occupation of the Site with others, it may not be appropriate for
him/her to provide some of the listed items. In these circumstances:
FORMS

- this Sub-Clause should be amended to specify exactly what health and safety
obligations are the Contractor’s under the Contract, and

- the health and safety obligations which are to be fulfilled by the Employer and/or
others should be specified in the Employer’s Requirements

so that it is clear which Party is responsible for what in respect of the health and safety
obligations for the Site and for the Works.

Sub-Clause 4.9.1 Quality Management System

In the performance of the Contractor’s obligations under this Sub-Clause, it is recommended

that the Contractor and the Engineer take due regard of the FIDIC publication Improving the
Quality of Construction - a guide for actions, 2004 (http://http://fidic.org/books/improving-
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

quality-construction-2004†).

If the Employer requires the Contractor to have a Quality Manager employed on the Site, such
position should be specified in the Employer’s Requirements as one of the positions of Key
Personnel.

If the Employer requires the Contractor to interface with others and/or with the Employer, the
Employer’s Requirements should clearly describe all such interfaces and should specify the
extent in which the Contractor shall allow for such interfaces in the QM System.

Sub-Clause 4.10 Use of Site Data and Geotechnical Baseline Report

FIDIC and ITA recommend that the wording of Clause 4.10 [Use of Site Data and Geotechnical
Baseline Report and Geotechnical Data Report] remain unchanged.

Sub-Clause 4.12 Unforeseeable Physical Conditions

FIDIC and ITA recommend that the wording of Clause 4.12 [Unforeseeable Physical
Conditions] remain unchanged.

Sub-Clause 4.16 Transport of Goods

In some cases, the Contractor may be required to get permission prior to delivery of Goods
to the Site. In such cases those Goods for which permission is required should be stated in
the Employer’s Requirements, and the following wording may be added to this Sub-Clause:

EXAMPLE Insert at the end of Sub-Clause 4.16:

“The Contractor shall obtain the Engineer’s permission prior to

delivering to the Site any item of Goods which is identified in the
26 © FIDIC & ITA 2019 Conditions of Contract for Underground Works
 Employer’s Requirements as requiring such permission. No such

CONDITIONS
Goods shall be delivered without this permission, which shall not

GENERAL
relieve the Contractor from any duty, obligation or responsibility
under or in connection with the Contract.”

Sub-Clause 4.17 Contractor’s Equipment

If the Contractor is not to provide all the Contractor’s Equipment necessary to execute

GUIDANCE
the Works, the Employer’s obligations should be specified: please see Sub-Clause 2.6
[Employer-Supplied Materials and Employer’s Equipment] and the guidance notes for
Sub-Clause 2.6 above.

If vesting of Contractor’s Equipment to the Employer is required, and such vesting is consistent
with the Laws of the Country, further paragraphs may be added to this Sub-Clause:

FORMS
EXAMPLE At the end of Sub-Clause 4.17, add the following paragraphs:

“Each item of Contractor’s Equipment shall become the property

of the Employer (free from liens and other encumbrances) when it
arrives on the Site.
This vesting of property from the Contractor to the Employer shall not:
(a) affect the responsibility or liability of the Employer under the
Contract;
(b prejudice the Contractor’s right to exclusive use of all items of
Contractor’s Equipment for the purpose of the Works; and/or
(c) relieve the Contractor from any duty, obligation or
responsibility to operate and maintain all items of Contractor’s
Equipment.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

The property in each item of Contractor’s Equipment shall be

deemed to re-vest in the Contractor (free from liens and other
encumbrances) when he/she is entitled to remove it from the Site
or to receive the Taking-Over Certificate for the Works, whichever
is the earlier.”

Sub-Clause 4.18 Protection of the Environment

If the applicable environmental law requires the Contractor to prepare project-specific

environmental management plans, for review by the Engineer and/or the Employer and approval
by regulatory authorities, these plans should be clearly described in detail in the Employer’s
Requirements together with the review/approval process associated with each plan.

Sub-Clause 4.19 Temporary Utilities

If services are to be available on the Site for the Contractor to use, details of such services
should be set out in the Employer’s Requirements, including a description of each utility, the
capacity of each utility that is available for the Contractor’s use, its location and the price per
unit of consumption.

Sub-Clause 4.21 Security of the Site

If the Contractor is sharing occupation of the Site with others, it may not be appropriate for the
Contractor to be responsible for its security. In these circumstances, it is recommended that:
a) this Sub-Clause should be amended to specify exactly what security obligations are
the Contractor’s under the Contract,

and

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27
 b) the security obligations which are to be fulfilled by the Employer and/or others should
CONDITIONS

be specified in the Employer’s Requirements

GENERAL

so that it is clear which Party is responsible for what in respect of the security of the Site.

Sub-Clause 4.22 Contractor’s Operations on Site

If the Contractor is sharing occupation of the Site with others, it is recommended that this
Sub-Clause is amended by identifying and allocating responsibility for clearance and removal
GUIDANCE

from the Site of any wreckage, rubbish, hazardous waste, temporary works and surplus material.

Sub-Clause 4.24 Milestones

In respect of any of the Milestones that do not correspond with the whole of the Works or
with any Section and if Delay Damages are to apply for the Contractor’s failure to comply with
Sub-Clause 8.2 [Delay Damages] in respect of those Milestones, the Contract Data should
FORMS

include the following:

EXAMPLE PROVISIONS FOR MILESTONES

Description of the event that does not correspond Time for Completion Delay Damages
with the whole of the Works or with any Section and (calculated from the (as a percentage of
is designated a Milestone for the purposes of the Commencement final Contract Price
Contract Date) per day of delay)
_____ days __ %
_____ days __ %
_____ days __ %
_____ days __ %
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Maximum amount of delay damages for Milestones (percent of final Contract Price) ___ %. “

Clause 5 Design
Sub-Clause 5.1 General Design Obligations

It is recommended that the Instructions to Tenderers require tenderers to include the name,
address, detailed particulars and relevant experience of each proposed designer/design
Subcontractor so that the Employer can assess whether and to what extent each tenderer’s
proposed designers/design Subcontractors comply with the three conditions set out in
sub-paragraphs (a) to (c) of this Sub-Clause.

The Contractor commences by scrutinizing the Employer’s Requirements, which include an

Employer’s reference design and the Geotechnical Baseline Report.

Tenderers should be advised of the extent to which the Employer’s reference design is a
suggestion or a requirement.

Sub-Clause 5.2 Contractor’s Documents

It is important that the Employer’s Requirements should clearly specify which Contractor’s
Documents the Employer requires the Contractor to prepare, which may not necessarily
include (for example) all the technical documents which the Contractor’s Personnel will need
in order to execute the Works.

28 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 For example, it may be appropriate for the Employer’s Requirements for a plant contract to

CONDITIONS
specify that the Contractor’s Documents shall include drawings showing how the Plant is to

GENERAL
be installed and any other information required for:
• preparing suitable foundations or other means of support,

• providing suitable access on the Site, for the Plant and any necessary equipment, to
the place where the Plant is to be erected, and/or

GUIDANCE
• making necessary connections to the Plant.

Sub-Clause 5.2.2 Review by Engineer

The “Contractor’s Documents” under this Sub-Clause 5.2.2 are the documents that the
Contractor must submit to the Engineer for Review, as specified in the Employer’s Requirements
or as stated in the Conditions of Contract (namely, as-built records under Sub-Clause 5.6
[As-Built Records] and O&M Manuals under Sub-Clause 5.7 [Operation and Maintenance

FORMS
Manuals]). It is important, therefore, that the Employer’s Requirements clearly identify which of
the Contractor’s Documents the Employer requires the Contractor to submit to the Engineer
for Review.

If a different Review Period than that stated under this Sub-Clause 5.2.2 is considered
necessary, or different Review Periods are considered necessary for different (types of)
Contractor’s Documents, taking account of the time required to review the different types
of Contractor’s Documents and/or of the possibility of substantial submissions at particular
stages of the design-build process, such different Review Period(s) should be clearly stated in
the Employer’s Requirements.

In some jurisdictions there may be a requirement under the applicable law for the mandatory
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

review/checking of certain elements of design (by an authorised professional or other legally

recognised individual) and/or verification that such design is in accordance with the applicable
law, before such design can be implemented in the Works. If this is the case, it is essential that
it is drawn to tenderers’ attention in the Instruction to Tenderers and necessary amendments
will need to be made to this Sub-Clause – taking due care and attention that the following is
clear and unambiguous:

a) the mandatory review/checking and/or verification process(es) required by the

applicable law, and details of the submission procedure(s) associated with such
process(es);

b) which element(s) of design, and which type(s) of Contractor’s Documents associated

with such element(s), shall be subject to the mandatory review/checking and/or
verification process(es);

c) whether, and to what extent, the mandatory review/checking and/or verification

process(es) of an element of design (and the Contractor’s Documents associated
with such element) shall replace the Engineer’s review under this Sub-Clause;

d) a statement that any Notice of No-objection (or deemed Notice of No-objection)

from the Engineer with respect to any Contractor’s Document shall not replace the
mandatory review/checking and/or verification of the design (or a revised design).

It is strongly recommended that the Employer is advised by legal and engineering professionals
with extensive experience in the mandatory review/checking and/or verification process(es)
required by the applicable law when preparing the revised wording of this Sub-clause.

Sub-Clause 5.5 Training

If the Works include Plant that comprises (in whole or in part) new or innovative technology in
the Country or at the Employer’s location, it is recommended that the Parties consider including
© FIDIC & ITA 2019
29
 in the Contract provision for training (by the Employer in the Employer’s Requirements and/
CONDITIONS

or by the Contractor in the Contractor’s Proposal) of the Employer’s Personnel at the location
GENERAL

of another plant facility, or at a number of other plant facilities, that are similar in nature to the
Works.

Sub-Clause 5.7 Operation and Maintenance Manuals

If the Contractor is required to supply spare parts under the Contract, these should be
GUIDANCE

detailed in the Employer’s Requirements, which should also specify the required guarantee
period for these spare parts.

Clause 6 Staff and Labour

Sub-Clause 6.3 Recruitment of Persons
FORMS

It may be necessary to review and revise this Sub-Clause (or delete it in its entirety) if
the relevant labour Laws applicable to the Contractor’s Personnel and/or the Employer’s
Personnel do not permit any restriction on the right of any worker to seek other positions.

Sub-Clause 6.6 Facilities for Staff and Labour

If the Employer plans to make any facilities and/or accommodation (for example, office
accommodation) available for the Contractor’s occupation and/or use, the Employer’s
obligations to do so and details of such facilities and/or accommodation should be specified
in the Employer’s Requirements. See also the guidance under Clause 17 [Care of the Works
and Indemnities] below for the suggested additional sub-clause in respect of responsibility for
care of such facilities and/or accommodation.

Sub-Clause 6.8 Contractor’s Superintendence

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If it is permissible that the Contractor’s superintending staff are not all fluent in the language
for communications defined in Sub-Clause 1.4 [Law and Language], then consideration
should be given to amending this Sub-Clause:

EXAMPLE Insert at the end of sub-paragraph (a) of Sub-Clause 6.8:

“or, if not, the Contractor shall make competent interpreters

available during all working hours, in a number sufficient for those
persons to properly perform their superintendence duties.”

If it is necessary to stipulate that the Contractor’s superintending staff shall be fluent in a

particular language, the following sentence should be added.

EXAMPLE Insert at the end of Sub-Clause 6.8:

A reasonable proportion of the Contractor’s superintending staff

shall have a working knowledge of
[Insert name of language],
or the Contractor shall make interpreters available on Site during
all working hours in a number deemed sufficient by the Engineer.”

Sub-Clause 6.12 Key Personnel

If it is permissible that all Key Personnel are not fluent in the language for communications
defined in Sub-Clause 1.4 [Law and Language], then consideration should be given to
amending this Sub-Clause:

30 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 EXAMPLE Insert at the end of the last paragraph of Sub-Clause 6.12:

CONDITIONS
“If any of the Key Personnel are not fluent in this language the

GENERAL
Contractor shall make competent interpreter(s) available during all
working hours, sufficient for that person to properly perform his/her
duties under the Contract.”

Additional Sub-Clauses

GUIDANCE
It may be necessary, appropriate and/or desirable to include additional sub-clauses to take
account of the circumstances and locality of the Site:

EXAMPLE SUB-CLAUSE FOR FOREIGN PERSONNEL

“The Contractor may bring into the Country any foreign personnel who

FORMS
are necessary for the execution of the Works to the extent allowed
by the applicable Laws. The Contractor shall ensure that these
personnel are provided with the required residence visas and work
permits. The Employer shall, if requested by the Contractor, use all
reasonable endeavours in a timely and expeditious manner to assist
the Contractor in obtaining any local, state, national, or government
permission required for bringing in the Contractor’s personnel.

The Contractor shall be responsible for the return of these personnel

to the place where they were recruited or to their domicile. In
the event of the death in the Country of any of these personnel
or members of their families, the Contractor shall similarly be
responsible for making the appropriate arrangements for their
return or burial.”
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

EXAMPLE SUB-CLAUSE FOR SUPPLY OF FOODSTUFFS

“The Contractor shall arrange for the provision of a sufficient supply

of suitable food as may be stated in the Employer’s Requirements at
reasonable prices for the Contractor’s Personnel for the purposes
of or in connection with the Contract.”

EXAMPLE SUB-CLAUSE FOR SUPPLY OF WATER

“The Contractor shall, having regard to local conditions, provide on

the Site an adequate supply of drinking and other water for the use
of the Contractor’s Personnel.”

EXAMPLE SUB-CLAUSE FOR MEASURES AGAINST INSECT AND PEST NUISANCE

“The Contractor shall at all times take the necessary precautions

to protect the Contractor’s Personnel employed on the Site from
insect and pest nuisance, and to reduce the danger to their health.
The Contractor shall comply with all the regulations of the local
health authorities, including use of appropriate insecticide.”

EXAMPLE SUB-CLAUSE FOR ALCOHOLIC LIQUOR OR DRUGS

“The Contractor shall not, other than in accordance with the Laws
of the Country, import, sell, give, barter or otherwise dispose of any
alcoholic liquor or drugs, or permit or allow importation, sale, gift,
barter or disposal thereto by the Contractor’s Personnel.”

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31
 EXAMPLE SUB-CLAUSE FOR ARMS AND AMMUNITION
CONDITIONS

“The Contractor shall not give, barter, or otherwise dispose of,

GENERAL

to any person, any arms or ammunition of any kind, or allow the

Contractor’s Personnel to do so.”

EXAMPLE SUB-CLAUSE FOR FESTIVALS AND RELIGIOUS CUSTOMS

GUIDANCE

“The Contractor shall respect the Country’s recognised festivals,

days of rest and religious or other customs.”

EXAMPLE SUB-CLAUSE FOR FUNERAL ARRANGEMENTS

“The Contractor shall be responsible, to the extent required by

local regulations, for making any funeral arrangements for any
of the Contractor’s local employees who may die while engaged
FORMS

upon the Works.”

EXAMPLE SUB-CLAUSE FOR FORCED LABOUR

“The Contractor shall not employ forced labour, which consists of

any work or service, not voluntarily performed, that is exacted from
an individual under threat of force or penalty, and includes any kind
of involuntary or compulsory labour, such as indentured labour,
bonded labour or similar labour-contracting arrangements.”

EXAMPLE SUB-CLAUSE FOR CHILD LABOUR

“The Contractor shall not employ children (any natural persons

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under the age of eighteen years) in a manner that is economically

exploitative, or is likely to be hazardous, or to interfere with the
child’s education, or to be harmful to the child’s health or physical,
mental, spiritual, moral, or social development. Where the relevant
labour Laws of the Country have provisions for employment of
minors, the Contractor shall follow those Laws applicable to the
Contractor.”

EXAMPLE SUB-CLAUSE FOR EMPLOYMENT RECORDS OF WORKERS

“The Contractor shall keep complete and accurate records of

the employment of labour at the Site. The records shall include
the names, ages, genders, hours worked and wages paid to all
workers. These records shall be summarised on a monthly basis
and submitted to the Engineer. These records shall be included in
the details to be submitted by the Contractor under Sub-Clause
6.10 [Contractor’s Records].”

EXAMPLE SUB-CLAUSE FOR WORKERS’ ORGANISATIONS

“In countries where the relevant labour Laws recognise workers’

rights to form and to join workers’ organisations of their choosing
without interference and to bargain collectively, the Contractor
shall comply with such Laws. Where the relevant labour Laws
substantially restrict workers’ organisations, the Contractor
shall enable alternative means for the Contractor’s Personnel to
express their grievances and protect their rights regarding working
conditions and terms of employment. In either case described
above, and where the relevant labour Laws are silent, the
Contractor shall not discourage the Contractor’s Personnel from

32 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 forming or joining workers’ organisations of their choosing or from

CONDITIONS
bargaining collectively, and shall not discriminate or retaliate against

GENERAL
the Contractor’s Personnel who participate, or seek to participate,
in such organisations and bargain collectively. The Contractor shall
engage with such workers’ representatives. Workers’ organisations
are expected to fairly represent the workers in the workforce.”

EXAMPLE SUB-CLAUSE FOR NON-DISCRIMINATION AND EQUAL OPPORTUNITY

GUIDANCE
“The Contractor shall not make employment decisions on the basis
of personal characteristics unrelated to inherent job requirements.
The Contractor shall base the employment relationship on the
principle of equal opportunity and fair treatment, and shall not
discriminate with respect to aspects of the employment relationship,
including recruitment and hiring, compensation (including wages

FORMS
and benefits), working conditions and terms of employment,
access to training, promotion, termination of employment or
retirement, and discipline. In countries where the relevant labour
Laws provide for non-discrimination in employment, the Contractor
shall comply with such Laws. When the relevant labour Laws are
silent on non-discrimination in employment, the Contractor shall
meet the requirements under this Sub-Clause. Special measures of
protection or assistance to remedy past discrimination or selection
for a particular job based on the inherent requirements of the job
shall not be deemed discrimination.”

Clause 7 Plant, Materials and Workmanship

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Sub-Clause 7.7 Ownership of Plant and Materials

If the Contractor is to provide high-value items of Plant and/or Materials under the Contract,
consideration may be given to amending this Sub-Clause:

EXAMPLE Insert at the end of Sub-Clause 7.7:

“No Plant and/or Materials that is the property of the Employer shall
be removed from the Site. If it becomes necessary to:

(i) remove any item of such Plant from the Site for the purposes
of repair, the Contractor shall give a Notice, with reasons, to
the Engineer requesting consent to remove the defective or
damaged item off the Site. This Notice shall clearly identify
the item of defective or damaged Plant, and shall give details
of: the defect or damage to be repaired; the place to which
defective or damaged item of Plant is to be taken for repair;
the transportation to be used (and insurance cover for such
transportation); the proposed inspections and testing off the
Site; and the planned duration required before the repaired
item of Plant shall be returned to the Site. The Contractor
shall also provide any further details that the Employer may
reasonably require; or
(ii). replace any item(s) of such Plant and/or Materials, the
Contractor shall give a Notice, with reasons, to the Engineer
clearly identifying the item(s) of Plant and/or Materials to be
replaced, and giving details of the due date of delivery to the
Site of the replacement item(s).

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33
 Where any item of Plant and/or Materials has become the property
CONDITIONS

of the Employer under this Sub-Clause before it has been delivered

GENERAL

to the Site, the Contractor shall ensure that such an item is not
moved except for its delivery to the Site.

The Contractor shall indemnify and hold the Employer harmless

against and from the consequences of any defect in title or
encumbrance or charge (except any reasonable restriction
GUIDANCE

arising from the intellectual property rights of the manufacturer or

producer) on any item of Plant and/or Materials that has become
the property of the Employer under this Sub-Clause.”

Additional Sub-Clause

If the Contract is being financed by an institution whose rules or policies require a restriction
FORMS

on the use of its funds, a further sub-clause may be added:

EXAMPLE SUB-CLAUSE FOR GOODS FROM ELIGIBLE SOURCE COUNTRIES

“All Goods shall have their origin in eligible source countries as

defined in
[Insert name of published guidelines for procurement].

Goods shall be transported by carriers from these eligible source

countries, unless exempted by the Employer in writing on the
basis of potential excessive costs or delays. Surety, insurance and
banking services shall be provided by insurers and bankers from
the eligible source countries.”
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Clause 8 Commencement, Delays and Suspension

Sub-Clause 8.2 Time for Completion

If the Works are to be completed and taken over in stages it is important that each stage is
defined as a Section, and the Time for Completion of each Section is stated, in the Contract
Data (please also see the guidance below under Sub-Clause 10.1 [Taking Over the Works
and Sections].

Sub-Clause 8.3 Programme

It is strongly recommended that the programming software that is preferable to the Engineer
(in his/her monitoring of the Contractor’s progress in executing the Works) be clearly identified
in the Employer’s Requirements, and that such software is drawn to the attention of tenderers
in the Instructions to Tender.

For less complex projects, the Employer may consider simplifying the requirements for the
Contractor’s programme as listed in sub-paragraphs (a) to (k) in this Sub-Clause (for example,
by replacing sub-paragraphs (a) to (k) in this Sub-Clause with sub-paragraphs (a) to (d) as
they appear under Sub-Clause 8.3 [Programme] of FIDIC’s Conditions of Contract for Plant
and Design-Build First Edition 1999).

Sub-Clause 8.5 Extension of Time for Completion

Sub-paragraph (c) of this Sub-Clause entitles the Contractor to an extension of the Time
for Completion for “exceptionally adverse climatic conditions”. It may be preferable to set
out in the Employer’s Requirements what constitutes an “exceptionally adverse” event -
for example, by reference to available weather statistics and return periods. It may also be

34 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 appropriate to compare the adverse climatic conditions that have been encountered with

CONDITIONS
the frequency with which events of similar adversity have previously occurred at or near the

GENERAL
Site. For example, an exceptional degree of adversity might be regarded as one which has a
probability of occurrence of once every four or five times the Time for Completion of the Works
(for example, once every eight to ten years for a two-year contract).

The final paragraph of this Sub-Clause provides that the rules and procedures for assessing the

GUIDANCE
Contractor’s entitlement to an EOT where there is concurrency between delays attributable to
both Parties shall be stated in the Special Provisions. This provision has been drafted by FIDIC
in this manner because there is no one standard set of rules/procedures in use internationally
(though, for example the approach given in the Delay and Disruption Protocol published by
the Society of Construction Law (UK):
https://www.scl.org.uk/sites/default/files/SCL_Delay_Protocol_2nd_Edition_Final.pdf† is
increasingly being adopted internationally and different rules/procedures may apply in different

FORMS
legal jurisdictions.)

In preparing the Special Provisions, therefore, it is strongly recommended that the Employer
be advised by a professional with extensive experience in construction programming, analysis
of delays and assessment of extension and reduction of time in the context of the governing
law of the Contract.

Sub-Clause 8.8 Delay Damages

Under the laws of many countries or other jurisdictions, the amount of these pre-defined
damages must be a reasonable estimate of the anticipated or actual loss caused to the
Employer by the delay. Therefore if the Delay Damages are fixed at an unreasonably large
amount, they may be unenforceable in common law jurisdictions or subject to downward
adjustment in civil law jurisdictions.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

If the Accepted Contract Amount is to be quoted as the sum of figures in more than one
currency, it may be preferable to define these damages (per day) as a percentage to be
applied to each of these figures. If the Accepted Contract Amount is expressed in the Local
Currency, the damages per day may either be defined as a percentage or be defined as a
figure in Local Currency: see Sub-Clause 14.15(c).

Additional Sub-Clause

Incentives for early completion may be included (in addition to sub-paragraph (a) of Sub-Clause
13.2 [Value Engineering] which refers to accelerated completion):

EXAMPLE SUB-CLAUSE FOR INCENTIVES FOR EARLY COMPLETION

“The Contractor shall be entitled to a bonus payment if the

Works and/or each Section is completed earlier than the Time for
Completion for the Works or Section (as the case may be). The
amount of bonus for early completion of the Works and/or each
Section is stated in the Employer’s Requirements.

For the purposes of calculating any bonus payment, the applicable

Time for Completion stated in the Contract Data is fixed and no
adjustments of this time by reason of granting an EOT will be allowed.”

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35
 Clause 9 Tests on Completion
CONDITIONS

Sub-Clause 9.1 Contractor’s Obligations

GENERAL

The Employer’s Requirements should describe the tests which the Contractor is to carry
out before being entitled to a Taking-Over Certificate. It may also be appropriate for the
Contractor’s Proposal to include detailed arrangements, instrumentation, etc.
GUIDANCE

If the Works are to be tested and taken over in Sections, it is strongly recommended that
consideration be given to testing requirements in the Employer’s Requirements that take due
account of the effect of other parts of the Works being incomplete.

The Employer may wish the Employer’s permanent operating and maintenance personnel
to witness the operational tests and/or trial operation (including during the training of the
FORMS

Employer’s Personnel under Sub-Clause 5.5 [Training]), in which case, this should be clearly
stated in the Employer’s Requirements.

The wording in sub-paragraphs (a) to (c) of this Sub-Clause includes the conditions which are
typically applicable for a plant contract, but otherwise may require amendment. In particular,
sub-paragraph (c) refers to trial operation, during which any product produced by the Works
becomes the property of the Employer. As such, the Employer becomes responsible for
disposing of such product, and entitled to retain the proceeds if the product is sold. If the
product is to be retained by the Contractor, this Sub-Clause should be amended accordingly.

For less complex projects, the Employer may consider simplifying the testing requirements
under this Sub-Clause.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Clause 10 Employer’s Taking Over

Sub-Clause 10.1 Taking Over the Works and Sections

If the Works are to be completed and taken over in stages it is important that each stage is
defined as a Section in the Contract Data. Precise geographical definitions are advisable, and
the Contract Data should include a table to also define for each Section:
• the relevant percentage for release of Retention Money,

• the Time for Completion, and

• the applicable Delay Damages.

An example form of such a table is shown in the example form of Contract Data included in
this publication.

Clause 11 Defects after Taking Over

Sub-Clause 11.3 Extension of Defects Notification Period

Depending on the complexity of the project and the nature of the Works, the Employer may
consider amending the period of “two years” stated at the end of the first paragraph of this
Sub-Clause to be a longer or a shorter period.

Sub-Clause 11.10 Unfulfilled Obligations

It may be necessary to review the effect of this Sub-Clause in relation to the period of liability
imposed by the applicable law.

36 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 In particular, the second paragraph of this Sub-Clause may require amending to take account

CONDITIONS
of the applicable law.

GENERAL
Additional Sub-Clause

If the Works include the Plant that comprises (in whole or in part) new or innovative technology
in the Country or at the Employer’s location, consideration may be given to including in the
Employer’s Requirements a requirement for the Contractor to provide supervisory assistance

GUIDANCE
to the Employer’s permanent operating personnel in the operation and maintenance of the
Plant during the DNP of the Works.

EXAMPLE SUB-CLAUSE FOR SUPERVISORY ASSISTANCE DURING DNP

“The Contractor shall provide supervisory assistance to the Employer

during the DNP for the Works. Such supervisory assistance shall

FORMS
be as described in the Employer’s Requirements for the purpose
of supporting the Employer’s operation and maintenance of the
Plant for the period of [insert number of months] after the Date of
Completion.”

Clause 12 Tests after Completion

Sub-Clause 12.1 Procedure for Tests after Completion

The Employer’s Requirements should describe the tests the Employer will carry out, after
taking-over, to verify that the Works fulfil the Employer’s performance requirements. For some
types of Works, these Tests may be the most difficult to specify well, although they are critical
to a successful outcome. It may be appropriate for the Instructions to Tenderers to require
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Contractor’s Proposal to include detailed arrangements, and/or to define and allow for
the provision of any instrumentation or other items required in addition to that included in the
Plant, to demonstrate compliance with the Employer’s performance requirements.

With many types of Works, it is essential to specify, in the Schedule of Performance

Guarantees, the performance criteria which the Plant will be required to achieve. In such
cases, the Instructions to Tenderers should include information on the base physical input
conditions (such as raw water quality for a water treatment Plant) the Contractor can rely on
to design and construct the facility to achieve such performance criteria.

The provisions in the General Conditions are based on the Tests after Completion being
carried out by the Employer and the Employer’s operating personnel, with guidance from
the Contractor’s staff. If other arrangements are envisaged, they should be specified in
the Employer’s Requirements, and this Sub-Clause should be amended accordingly. For
example, if the Employer wishes the Contractor to carry out the Tests after Completion
(with the Employer providing all electricity, water, sewage (if applicable), fuel, consumables,
materials for the tests and making personnel and the Plant available), it is recommended that
consideration be given to the provisions of Sub-Clause 12.1 in FIDIC’s Conditions of Contract
for EPC/Turnkey Projects, Second Edition 2017.

If the works of a Section are to be tested under this Sub-Clause, it is strongly recommended
that consideration be given to testing requirements in the Employer’s Requirements that take
due account of the effect of other parts of the Works being incomplete.

The Tests after Completion may comprise:

(a) performance tests – to be carried out shortly after taking-over (the exact timing of
such tests should be specified in the Employer’s Requirements or as otherwise stated

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37
 in the O&M Manuals referred to under sub-paragraph (b)(ii) of this Sub-Clause), to
CONDITIONS

measure the performance of the Works or Section against the performance criteria
GENERAL

specified under the Contract; and

(b) availability tests – to be carried out during an initial period of the DNP (which period
should be specified in the Employer’s Requirements), to measure the availability of
the Works or Section during that period.

In some jurisdictions there may be a requirement under the applicable law for mandatory
GUIDANCE

testing of the Works after taking-over and before operation. If this is the case, it is essential
that it is drawn to tenderers’ attention in the Instruction to Tenderers, giving details of such
mandatory testing.

Sub-Clause 12.4 Failure to Pass Tests after Completion

If the first paragraph of this Sub-Clause is to apply, the method of calculating the Performance
FORMS

Damages (based on the extent of the failure) should be defined in the Schedule of Performance
Guarantees, which should also clearly specify the minimum acceptable performance criteria.

Clause 13 Variations and Adjustments

Variations can be initiated by any of three ways:
a) the Contractor may initiate his own proposals under Sub-Clause 13.2 [Value
Engineering], which are intended to benefit both Parties;

b) the Engineer may instruct Variations under Sub-Clause 13.3.1 [Variation by

Instruction]; or

c) the Engineer may request a proposal from the Contractor under Sub-Clause 13.3.2
[Variation by Request for Proposal].
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Sub-Clause 13.4 Provisional Sums

Provisional Sums may be required for parts of the Works which are not required to be priced at
the risk of the Contractor. For example, a Provisional Sum may be necessary to cover goods
or services which the Employer wishes to select after award of the Contract, or to deal with a
major uncertainty regarding subsurface conditions. It is essential to define the scope of each
Provisional Sum (it is recommended that this be included in the Schedule of Rates and Prices
prepared by the Employer), since the amount of each Provisional Sum corresponding to the
defined scope will then be excluded from the other elements of the Accepted Contract Amount.

Sub-Clause 13.7 Adjustments for Changes in Cost

The provision for adjustments under this Sub-Clause may be required if it would be
unreasonable for the Contractor to bear the risk of escalating costs due to inflation.

If the amounts payable to the Contractor are to be adjusted for rises or falls in the cost of
labour, Goods and other inputs to the Works, for this Sub-Clause to apply it is important that
a Schedule (or Schedules) of cost indexation is (are) included in the Contract and that such
Schedule(s) include a formula or formulae for calculation of the applicable adjustment under
this Sub-Clause.

For a plant contract, it may be preferable to adopt a formula or formulae which is/are more
directly related to the timing of the costs incurred by manufacturers.

It is recommended that the Employer be advised by a professional with experience in

construction costs and the inflationary effect on construction costs when preparing the
contents of the Schedule(s) of cost indexation.

38 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 SCHEDULE OF COST INDEXATION: EXAMPLE FORMULA FOR ADJUSTMENT FOR

CONDITIONS
CHANGE IN COST

GENERAL
Pn = a+b Ln +c En +d Mn +......
Lo Eo Mo

where:
“Pn” is the adjustment multiplier to be applied to the estimated

GUIDANCE
contract value in the relevant currency of the work carried out in
period “n”, this period being a month;

“a” is a fixed coefficient, representing the non-adjustable portion in

contractual payments;

“b”, “c”, “d”, … are coefficients representing the estimated

proportion of each cost element related to the execution of the

FORMS
Works, such tabulated cost elements may be indicative of resources
such as labour, equipment and materials;

(particular care should be taken in the calculation of the weightings/

coefficients (“a”, “b”, “c”,...,) the total of which must not exceed
unity)

“Ln”, “En”, “Mn”, … are the current cost indices or reference prices
(stated in the Schedule of cost indexation) for period “n”, expressed
in the relevant currency of payment, each of which is applicable to
the relevant tabulated cost element on the date 49 days prior to the
last day of the period (to which the particular Payment Certificate
relates); and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

“Lo”, “Eo”, “Mo”, … are the base cost indices or reference prices,
expressed in the relevant currency of payment, each of which is
applicable to the relevant tabulated cost element on the Base Date.

The weightings (coefficients) for each of the factors of cost stated

in the following table(s) of adjustment data shall only be adjusted if
they have been rendered unreasonable, unbalanced or inapplicable,
as a result of Variations.

Table(s) of adjustment data for payments each month/[YEAR]

(delete as appropriate) in …………. (currency)

Coefficient; Country of Source of Value on stated

scope of index origin; index; date(s)*
currency of Title/definition Value........ Date
index

a= 0.10 Fixed

b= ____Labour
c=
d=
e=

* These values and dates confirm the definition of each index, but
do not define Base Date indices

© FIDIC & ITA 2019

39
 Sub-Clause 13.8 Measurement of Excavation and Lining Works and
CONDITIONS

Adjustment of Time for Completion and Contract Price

GENERAL

FIDIC and ITA recommend that no amendment is made to the provisions of Sub-Clause 13.8
[Measurement of Excavation and Lining Works and Adjustment of Time for Completion and
Contract Price] and/or to any of the Sub-Clauses 13.8.1 to 13.8.4.

Clause 14 Contract Price and Payment

GUIDANCE

The procedures and timing for making payments under this Clause 14 should be checked
to ensure that they are acceptable to both the Employer and any financing institution the
Employer may be using to fund the project.

Sub-Clause 14.1 The Contract Price

FORMS

When writing the Special Provisions, consideration should be given to the amount and timing
of payment(s) to the Contractor. A positive cash flow is clearly of benefit to the Contractor,
and tenderers will take account of the interim payment procedures when preparing their
tenders.

Normally, a plant and/or design-build contract is based on a lump sum price, with little or
no measurement. The Contractor thus takes the risk of changes in cost arising from the
Contractor’s design. The lump sum price may consist of two or more amounts, quoted in the
currencies of payment (which may, but need not, include the Local Currency).

In order to value Variations, tenderers may be required to include in their Tenders detailed price
break-downs, including quantities, unit rates and other pricing information. This information
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

can also be useful for the assessment of interim payments, but may not have been priced
competitively. When the tender documents are being prepared, the Employer must therefore
decide whether he/she will accept being bound by the tenderer’s price break-downs. If not,
the Employer should ensure that the Engineer has the necessary expertise to value any
Variations which may be required.

Additional Sub-Clauses may be required to cover any exceptions to the provisions set out in
Sub-Clause 14.1, and any other matters relating to payment.

If Sub-Clause 14.1(a) is not to apply, the method of determining the Contract Price should
be defined in additional Sub-Clauses, as envisaged in the last sentence of Sub-Clause 14.1.
If payment for any part of the Works is to be made on the basis of measurement, that part
must be defined in the Contract, and the following wording may be considered for one of the
additional Sub-Clauses:

EXAMPLE SUB-CLAUSE FOR MEASUREMENT

“Any part of the Works which is to be measured shall be specified

in the Contract.

The Engineer shall agree or determine the value of those parts of the
Works which are to be measured, in accordance with Sub-Clause
3.7 [Agreement or Determination]. Measurement shall be made
of the net actual quantities of those parts, notwithstanding local
practice.

Whenever the Engineer requires any part of the Works to be

measured on Site he/she shall give a Notice to the Contractor of not

40 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 less than 7 days, of the part to be measured and the date on which

CONDITIONS
and place on Site at which the measurement will be made. Unless

GENERAL
otherwise agreed with the Contractor, the measurement on Site shall
be made on this date and the Contractor’s Representative shall:
(a) either attend or send another qualified representative to
assist the Engineer and to endeavour to reach agreement of
the measurement, and
(b) supply any particulars requested by the Engineer.

GUIDANCE
If the Contractor fails to attend or send a representative at the time
and place stated in the Engineer’s Notice (or otherwise agreed with
the Contractor), the measurement made by (or on behalf of) the
Engineer shall be deemed to have been made in the Contractor’s
presence and the Contractor shall be deemed to have accepted
the measurement as accurate.

FORMS
Any part of the Permanent Works that is to be measured from
records shall be identified in the Employer’s Requirements and,
except as otherwise stated in the Contract, such records shall be
prepared by the Engineer. Whenever the Engineer has prepared the
records for such a part, he/she shall give a Notice to the Contractor
of not less than 7 days, stating the date on which and place at
which the Contractor’s Representative shall attend to examine
and agree the records with the Engineer. If the Contractor fails to
attend or send a representative at the time and place stated in
the Engineer’s Notice (or otherwise agreed with the Contractor),
the Contractor shall be deemed to have accepted the records as
accurate.

If, for any part of the Works, the Contractor attends the measurement
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on Site or examines the measurement records (as the case may

be) but the Engineer and the Contractor are unable to agree
the measurement, then the Contractor shall give a Notice to the
Engineer setting out the reasons why the Contractor considers the
measurement on Site or records are inaccurate. If the Contractor
does not give such a Notice to the Engineer within 14 days after
attending the measurement on Site or examining the measurement
records, the Contractor shall be deemed to have accepted the
measurement as accurate.

After receiving a Contractor’s Notice under this Sub-Clause,

unless at that time such measurement is already subject to the
third paragraph of Sub-Clause 13.3.1 [Variation by Instruction], the
Engineer shall:

- proceed under Sub-Clause 3.7 [Agreement or Determination]

to agree or determine the measurement; and
- for the purpose of Sub-Clause 3.7.3 [Time limits], the date on
which the Engineer receives the Contractor’s Notice shall be
the date of commencement of the time limit for agreement
under Sub-Clause 3.7.3.
Until such time as the measurement is agreed or determined, the
Engineer shall assess a provisional measurement for the purposes
of Interim Payment Certificates.”

If the Contractor is not required to pay import duties on Goods imported by the Contractor into
the Country, an additional Sub-Clause should be added and sub-paragraph (b) of Sub-Clause
14.1 [The Contract Price] of the General Conditions should be amended accordingly:

© FIDIC & ITA 2019

41
 EXAMPLE SUB-CLAUSE FOR EXEMPTION FROM DUTIES
CONDITIONS

“All Goods imported by the Contractor into the Country shall be

GENERAL

exempt from customs and other import duties, if the Employer’s prior
written approval is obtained for import. The Employer shall endorse
the necessary exemption documents prepared by the Contractor
for presentation in order to clear the Goods through Customs, and
shall also provide the following exemption documents:
(describe the necessary documents, which the Contractor will be
GUIDANCE

unable to prepare)
If exemption is not then granted, the customs duties payable and
paid shall be reimbursed by the Employer.
All imported Goods, which are not incorporated in or expended in
connection with the Works, shall be exported on completion of the
Contract.
FORMS

If not exported, the Goods will be assessed for duties as applicable

to the Goods involved in accordance with the Laws of the Country.

However, exemption may not be available for:

(a) Goods which are similar to those locally produced, unless

they are not available in sufficient quantities or are of a
different standard to that which is necessary for the Works;
and
(b) any element of duty or tax inherent in the price of goods or
services procured in the Country, which shall be deemed to
be included in the Accepted Contract Amount.
Port dues, quay dues and, except as set out above, any element
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

of tax or duty inherent in the price of goods or services shall be

deemed to be included in the Accepted Contract Amount.”

If expatriate staff are exempted from paying local income tax, a suitable Sub-Clause should
be added and sub-paragraph (b) of Sub-Clause 14.1 [The Contract Price] of the General
Conditions should be amended accordingly. However, advice should be sought from a
qualified tax expert before drafting any such additional Sub-Clause.

EXAMPLE SUB-CLAUSE FOR EXEMPTION FROM TAXES

“Expatriate (foreign) personnel shall not be liable for income tax

levied in the Country on earnings paid in any foreign currency, or
for income tax levied on subsistence, rentals and similar services
directly furnished by the Contractor to Contractor’s Personnel, or
for allowances in lieu. If any Contractor’s Personnel have part of
their earnings paid in the Country in a foreign currency, they may
export (after the conclusion of their term of service on the Works)
any balance remaining of their earnings paid in foreign currencies.

The Employer shall seek exemption for the purposes of this

Sub-Clause. If it is not granted, the relevant taxes paid shall be
reimbursed by the Employer.”

Sub-Clause 14.2 Advance Payment

When writing the Particular Conditions, consideration should be given to the benefits of the
Employer making an advance payment to the Contractor. Unless this Sub-Clause is not to
apply, the advance payment and the currencies in which it is to be paid must be specified in

42 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 the Contract Data. The rate of deduction for the repayments should be checked to ensure that

CONDITIONS
repayment is achieved before the Contractor’s completion of the Works. The typical figures

GENERAL
in sub-paragraphs (a) and (b) of Sub-Clause 14.2.3 [Repayment of Advance Payment] of the
General Conditions are based on the assumption that the advance payment is less than 22%
of the Accepted Contract Amount.

The acceptable form of Advance Payment Guarantee should be included in the tender

GUIDANCE
documents, annexed to the Particular Conditions: an example form is included at the end of
this publication (in the section “Forms”).

If the Employer wishes to provide the advance payment in instalments, the Contract Data and
this Sub-Clause will need to be amended.

EXAMPLE The Contract Data:

FORMS
- delete the words “14.2 ………. Amount of Advance Payment (percent
of Accepted Contract Amount): ……….” and replace with:
“14.2 ………….Total Advance Payment ___% of the Accepted
Contract Amount
14.2 ………….Number and timing of instalments: ________________”.

- delete the words “14.2 ………. Currencies of payment if different to

the currencies quoted in the Contract ………” and replace with:

“14.2 ………Currencies and proportions ….. ___% in ____________

___% in _________”.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Delete the second sentence of the second paragraph of Sub-Clause 14.2

and replace with:

“The total amount of the advance payment, the number and timing
of instalments, and the applicable currencies and proportions shall
be as stated in the Contract Data.”.

_Sub-Clause 14.2.1 [Advance Payment Guarantee]:

- delete the words “equal to the advance payment” from the first sentence
and replace with: “equal to the total amount of the advance payment”.
- in the second paragraph before “the advance payment has been
repaid” add the words: “the total amount of”.
- in the third paragraph before “the advance payment has not been
repaid” add the words: “the total amount of”.
- in sub-paragraph (a) before “the advance payment has been repaid”
add the words: “the total amount of”.
- in the last sentence, before “the advance payment” add the words:
“the first instalment of”

Sub-Clause 14.2.2 [Advance Payment Certificate]:

- in the first sentence before “the advance payment” add the words:
“the first instalment of”.
- delete sub-paragraph (b) replace with: “(b) the Engineer has received
a copy of the Contractor’s application for the first instalment of the
advance payment.”
- at the end of this Sub-Clause add the following wording: “Thereafter,

© FIDIC & ITA 2019

43
 the Engineer shall issue an Advance Payment Certificate for each
CONDITIONS

subsequent instalment of the advance payment, which the Contractor

GENERAL

is entitled to under the Contract, within 14 days after the Engineer has
received the Contractor’s application (in the form of a Statement) for
that instalment of advance payment.”

Sub-Clause 14.2.3 [Repayment of Advance Payment]:

- in the last sentence before “the advance payment has not been
GUIDANCE

repaid” add the words: “the total amount of”.

Sub-Clause 14.4 Schedule of Payments

The General Conditions contains provisions for interim payments to the Contractor, which may
be based on a Schedule of Payments. This Schedule of Payments should be consistent with
the Completion Schedule. If another basis is to be used for determining interim valuations,
FORMS

details should be added in the Special Provisions.

If payments are to be specified in a Schedule of Payments, the “minimum amount of interim

certificates” may be omitted from the Contract Data, and consideration may be given to the
Schedule of Payments being in one of the following forms:

a) an amount, or percentage of the estimated final Contract Price, for each month
(or other period) during the Time for Completion (but this can prove unreasonable
if the Contractor’s progress differs significantly from the expectation on which the
Schedule was based); or

b) amounts based on the actual progress achieved by the Contractor in executing

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

the Works, which necessitates careful definition of the payment milestones (but
disagreements may arise when the work required for a payment milestone is nearly
achieved but the balance of the work, albeit minor, cannot be completed until some
months later).

The figures inserted by a tenderer in the Schedule of Payments may be compared with his/
her tender Completion Schedule and detail programme (if any), in order to assess whether
they are reasonably consistent with each other.

Alternatively, if the Works consist of only a few different types of operations, a simple
measurement approach for interim valuations may be appropriate.

For the avoidance of doubt, these instructions do not apply to Excavation and Lining Works, for
which payments shall be based upon measurement according to Sub-Clause 13.8 [Measurement
of Underground Works and Adjustment of Time for Completion and Contract Price].

Sub-Clause 14.7 Payment

Periods for payment should be long enough for the Employer to meet, but not so long as to
prejudice the Contractor’s positive cash-flow.

If the country or countries of payment need to be specified, details may be included in a

Schedule.

Sub-Clause 14.8 Delayed Payment

As an alternative to the second paragraph of this Sub-Clause, consideration may be given

to the payment of the Contractor’s actual financing Costs, taking account of local financing
arrangements.

44 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Sub-Clause 14.9 Release of Retention Money

CONDITIONS
GENERAL
If part of the Retention Money is to be released and substituted by an appropriate guarantee,
an additional Sub-Clause may be added. The acceptable form(s) of guarantee should be
included in the tender documents, annexed to the Particular Conditions: an example form is
included at the end of this publication (in the section “Forms”). Also, a limit of Retention Money
should be stated in the Contract Data.

GUIDANCE
EXAMPLE SUB-CLAUSE FOR RELEASE OF RETENTION

When the Retention Money has reached three-fifths (60%) of

the limit of Retention Money stated in the Contract Data, after
the Employer has received the guarantee referred to below the
Engineer shall certify and the Employer shall make payment of half
(50%) of the limit of Retention Money to the Contractor.

FORMS
The Contractor shall obtain (at the Contractor’s cost) a guarantee in
amounts and currencies equal to half (50%) of the limit of Retention
Money stated in the Contract Data, and shall submit it to the
Employer with a copy to the Engineer. This guarantee shall be issued
by an entity and from within a country (or other jurisdiction) to which
the Employer gives consent, and shall be based on the sample form
included in the tender documents or on another form agreed by the
Employer (but such consent and/or agreement shall not relieve the
Contractor from any obligation under this Sub-Clause).

The Contractor shall ensure that the guarantee is valid and

enforceable until the Contractor has executed the Works, as
specified for the Performance Security in Sub-Clause 4.2.1. If the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

terms of the guarantee specify an expiry date, and the Contractor

has not so executed the Works by the date 28 days before the
expiry date, the Contractor shall extend the validity of the guarantee.

The release of Retention Money under this Sub-Clause shall be in

lieu of the release of the second half of the Retention Money under
the second paragraph of Sub-Clause 14.9 [Release of Retention
Money].

Sub-Clause 14.15 Currencies of Payment

If all payments are to be made in Local Currency, this currency must be named in the Letter
of Tender, and this Sub-Clause may be replaced:

EXAMPLE SUB-CLAUSE FOR A SINGLE CURRENCY CONTRACT

All payments made in accordance with the Contract shall be in Local

Currency. The Local Currency payments shall be fully convertible,
except those for local costs. The percentage attributed to local
costs shall be as stated in the Contract Data.

Financing Arrangements

For major contracts in some markets, there may be a need to secure finance from entities such
as aid agencies, development banks, export credit agencies, or other international financing
institutions. If financing is to be procured from any of these sources, the Special Provisions
may need to incorporate the financing institution’s special requirements. The exact wording
will depend on the relevant institution, so reference will need to be made to the institution to
ascertain its requirements, and to seek approval of the draft tender documents.

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45
 These requirements may include tendering procedures which need to be adopted in order to
CONDITIONS

render the eventual contract eligible for financing, and/or additional Sub-Clauses which may
GENERAL

need to be incorporated into the Special Provisions. The following examples indicate some of
the topics which the institution’s requirements may cover:

- prohibition from discrimination against the shipping companies of any one country;

- ensuring that the Contract is subject to a widely-accepted neutral law;

GUIDANCE

- provision for arbitration under recognised international rules and at a neutral location;

- giving the Contractor the right to suspend/terminate in the event of default under the
financing arrangements;

- restricting the right to reject Plant;

FORMS

- specifying the payments due in the event of termination;

- specifying that the Contract does not become effective until certain conditions
precedent have been satisfied, including pre-disbursement conditions for the
financing arrangements; and

- obliging the Employer to make payments from his own resources if, for any reason,
the funds under the financing arrangements are insufficient to meet the payments
due to the Contractor, whether due to a default under the financing arrangements or
otherwise.

The financing institution may wish the Contract to include references to the financing
arrangements, especially if funding from more than one source is to be arranged to finance
different elements of supply. It is not unusual for the Special Provisions to include particular
provisions identifying different categories of Works and specifying the documents to be
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presented to the relevant financing institution to obtain payment. If the financing institution’s
requirements are not met, it may be difficult (or even impossible) to secure suitable financing
for the project, and/or the institution may decline to provide finance for part or all of the
Contract.

Where the financing is not tied to the export of goods and services from any particular country
but is simply provided by commercial banks lending to the Employer, those banks may need
that the Contractor’s rights are very restricted. These banks may prefer the Contract to be
based upon FIDIC’s Conditions of Contract for EPC/Turnkey Projects, Second Edition 2017
(albeit that this may lead to higher tender prices for the Works).

Alternatively, the Contractor may be prepared to initiate financing arrangements for the
Contract and retain responsibility for them, although the Contractor would probably be unable
or unwilling to provide finance from the Contractor’s own resources. The Contractor’s financing
bank’s requirements are then likely to affect the Contractor during contract negotiations. For
example, the financing bank may require the Employer to make interim payments, although
a large proportion of the Contract Price might be withheld until the Works are complete.
Since the Contractor would then have to arrange financing to cover the shortfall between
the payments and the Contractor’s outgoings, the Contractor (and the financing bank) would
probably require some form of security from the Employer, guaranteeing payment when due.

It may be appropriate for the Employer, when preparing the tender documents, to anticipate
the latter requirement by undertaking to provide a guarantee for the element of payment
which the Contractor is to receive when the Works are complete. The acceptable form(s) of
guarantee should be included in the tender documents, annexed to the Particular Conditions:
an example form is included at the end of this publication (in the section “Forms”). The
following Sub-Clause may be added.

46 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 EXAMPLE SUB-CLAUSE FOR CONTRACTOR FINANCE

CONDITIONS
“The Employer shall obtain (at the Employer’s cost) a payment

GENERAL
guarantee in the amount and currencies, and provided by an
entity, as stated in the Contract Data. The Employer shall deliver
the guarantee to the Contractor within 28 days after both Parties
have entered into the Contract Agreement. The guarantee shall
be in the form annexed to these Special Provisions, or in another

GUIDANCE
form acceptable to the Contractor. Unless and until the Contractor
receives the guarantee, the Engineer shall not give the notice under
Sub-Clause 8.1 [Commencement of Works].

The guarantee shall be returned to the Employer at the earliest of

the following dates:

(a) when the Contractor has been paid the Accepted Contract

FORMS
Amount;
(b) when obligations under the guarantee expire or have been
discharged; or
(c) when the Employer has performed all obligations under the
Contract.”

Clause 15 Termination by Employer

Sub-Clause 15.2 Termination for Contractor’s Default

Before inviting tenders, the Employer should verify that the wording of this Sub-Clause, and
each anticipated ground for termination, is consistent with the law governing the Contract.
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Sub-Clause 15.2.1 Notice

Sub-paragraph (h) in this Sub-Clause is intended to include situations, where the Contractor
or any of the Contractor’s employees, agents, Subcontractors or Contractor’s Personnel gives
or offers to give (directly or indirectly) to any person any bribe, gift, gratuity, commission or
other thing of value, as an inducement or reward for showing or forbearing to show favour or
disfavour to any person in relation to the Contract. However, this is not intended to include
lawful inducements and rewards by the Contractor to the Contractor’s Personnel.

Sub-Clause 15.2.3 After termination

If the Employer has made available any Employer-Supplied Materials and/or Employer’s
Equipment in accordance with Sub-Clause 2.6, consideration should be given to an additional
sub-paragraph under this Sub-Clause:

EXAMPLE Insert the following new sub-paragraph at the end of sub-paragraph

(b) of Sub-Clause 15.2.3:

“(iv) all Employer-Supplied Materials and/or Employer’s

Equipment made available to the Contractor in accordance
with Sub-Clause 2.6 [Employer-Supplied Materials and
Employer’s Equipment], and”.

Sub-Clause 15.5 Termination for Employer’s Convenience

In many jurisdictions under the applicable law it may not be permissible for the Employer to
terminate the Contract for convenience (termination of the Contract only being permitted
in the event of default on the part of the Contractor and, thereafter, arranging an equitable,
non-discriminatory and transparent procurement process to select a replacement contractor).

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47
 Therefore, before inviting tenders the Employer should verify that the wording of this
CONDITIONS

Sub-Clause is consistent with the law governing the Contract.

GENERAL

Clause 16 Suspension and Termination by Contractor

Sub-Clause 16.2 Termination by Contractor
GUIDANCE

Before inviting tenders, the Employer should verify that the wording of this Sub-Clause is
consistent with the law governing the Contract.

Sub-Clause 16.2.1 Notice

Sub-paragraph (j) in this Sub-Clause is intended to include situations, where the Employer
or any of the Employer’s employees, agents or Employer’s Personnel gives or offers to give
(directly or indirectly) to any person any bribe, gift, gratuity, commission or other thing of
FORMS

value, as an inducement or reward for showing or forbearing to show favour or disfavour

to any person in relation to the Contract. However, this is not intended to include lawful
inducements and rewards by the Employer to the Employer’s Personnel.

Sub-Clause 16.3 Contractor’s Obligations After termination

If the Employer has made available any Employer-Supplied Materials and/or Employer’s
Equipment in accordance with Sub-Clause 2.6, consideration should be given to amending
this Sub-Clause:

EXAMPLE Delete sub-paragraph (c) in Sub-Clause 16.3 and replace with:

“(c) deliver to the Engineer all Employer-Supplied Materials and/

or Employer’s Equipment made available to the Contractor in
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accordance with Sub-Clause 2.6 [Employer-Supplied Materials

and Employer’s Equipment]; and

(d) remove all other Goods from the Site, except as necessary for
safety, and leave the Site.”

Clause 17 Care of the Works and Indemnities

Sub-Clause 17.4 Indemnities by Contractor

In respect of the Contractor’s obligation to indemnify under the second paragraph of this
Sub-Clause, it should be noted that:
a) as this liability is not excluded under the first paragraph of Sub-Clause 1.15 [Limitation
of Liability], the Contractor has no liability for any indirect or consequential loss or
damage suffered by the Employer as a result of any negligence by the Contractor in
designing the Works to be fit for purpose;

b) as this liability is not excluded under the second paragraph of Sub-Clause 1.15
[Limitation of Liability], it falls within the Contractor’s limitation of liability under
Sub-Clause 1.15; and

c) this liability may be covered by the insurance to be taken out by the Contractor
under Sub-Clause 19.2.3 [Liability for breach of professional duty], in which case a
statement to this effect should be included in the Contract Data.

48 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Additional Sub-Clause

CONDITIONS
GENERAL
If the Contractor is to be allowed to use and/or occupy any of the Employer’s facilities and/
or accommodation temporarily during the Contract, it is recommended that an additional
sub-clause be added to Clause 17 to cover the responsibility for care of such facilities and/
or accommodation:

EXAMPLE SUB-CLAUSE FOR CONTRACTOR’S USE OF EMPLOYER’S FACILITIES/

GUIDANCE
ACCOMMODATION

“The Contractor shall take full responsibility for the care of the items
of the Employer’s facilities and/or accommodation listed below,
from the date of use and/or occupation by the Contractor until
the date on which such use and/or occupation is re-vested in the
Employer.

FORMS
[List of items and details]

If any loss or damage happens to any of the above items during a

time when the Contractor is responsible for its care, arising from
any cause other than a cause for which the Employer is responsible
or liable, the Contractor shall promptly rectify the loss or damage at
the Contractor’s risk and cost.”

Clause 18 Exceptional Events

Sub-Clause 18.1 Exceptional Events
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In respect of sub-paragraph (f) of this Sub-Clause, it should be noted that any event of
“exceptionally adverse climatic conditions” is excluded from the definition of what constitutes
an Exceptional Event. While this means that there is no right for either Party to suspend the
Works in the case of an event of “exceptionally adverse climatic conditions”, if this type of
event has the effect of delaying completion and taking-over of the Works or Section the
Contractor shall be entitled to EOT under sub-paragraph (c) of Sub-Clause 8.5 [Extension of
Time].

Clause 19 Insurance
If the Employer wishes to change the insurance provisions of this Clause – for example
by providing some of the insurance cover under the Employer’s own policy(ies) – it will be
necessary to review and revise the relevant Sub-Clause(s) under this Clause 19.

If this is the case, it is strongly recommended that:

a) the tender documents include details of such insurances as an annex to the Special
Provisions so that tenderers can estimate what other insurances they may wish to
have for their own protection. The details should include the conditions of insurance,
limits, exceptions and deductibles; preferably in the form of a copy of each insurance
policy; and

b) the Employer is advised by a professional with extensive experience in construction

insurance and liability in the preparation of the wording of the revised sub-clauses. If
the insurance provisions are changed without due care and attention, there is a risk
that the Employer will inadvertently carry liabilities for which the Employer is neither
prepared nor covered by insurance.

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49
 Clause 20 Employer’s and Contractor’s Claims
CONDITIONS

Sub-Clause 20.1 Claims

GENERAL

In respect of any Claim under sub-paragraph (c) of this Sub-Clause, it should be noted that
“another entitlement or relief …or the execution of the Works” may include such matters as:

- interpretation of a provision of the Contract,

GUIDANCE

- rectification of an ambiguity or discrepancy found in the Contract documents,

- a declaration in favour of the claiming Party,

- access to the Site or to places where the Works are being (or to be) carried out, and/
or
FORMS

- any other matter of entitlement under the Conditions of Contract or in connection

with, or arising out of, the Contract that does not involve payment by one Party to
the other Party and/or EOT and/or extension of the DNP.

Consideration may be given to replacing the words “within a reasonable time” in the last
paragraph of this Sub-Clause by a specified time period.

Clause 21 Disputes and Arbitration

Sub-Clause 21.1 Constitution of the DAAB

It is generally accepted that construction projects depend for their success on the avoidance
of Disputes between the Employer and the Contractor and, if Disputes do arise, the timely
resolution of such Disputes.
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Therefore, the Contract should include the provisions under Clause 21 which, while not
discouraging the Parties from reaching their own agreement on Disputes as the Works
proceed, allow them to bring contentious matters to an independent and impartial dispute
avoidance/adjudication board (“DAAB”) for resolution.

The provisions of this Sub-Clause are intended to provide for the appointment of the DAAB,
and FIDIC strongly recommends that the DAAB be appointed, as a ‘standing DAAB’
– that is, a DAAB that is appointed at the start of the Contract who visits the Site on a regular
basis and remains in place for the duration of the Contract to assist the Parties:
a) in the avoidance of Disputes,

and

b) in the ‘real-time’ resolution of Disputes if and when they arise

to achieve a successful project.

It is for this reason that, under the first paragraph of this Sub-Clause, the Parties are under
a joint obligation to appoint the member(s) of the DAAB within 28 days after the Contractor
receives the Letter of Acceptance if no other time is stated in the Contract Data. That said, it
is preferable that the member(s) of the DAAB are appointed before the Letter of Acceptance
is issued.

At an early stage in the Employer’s planning of the project, consideration should be given
as to whether a sole-member DAAB or a three-member DAAB is preferable for a particular
project, taking account of its size, duration and the fields of expertise which will be involved.

50 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 This Sub-Clause provides for two alternative arrangements for the DAAB:

CONDITIONS
- a sole-member DAAB of one natural person, who has entered into a tripartite

GENERAL
agreement with both Parties;

or

- a three-member DAAB of three natural persons, each of whom has entered into a
tripartite agreement with both Parties.

GUIDANCE
The tripartite agreement above is referred to as the DAAB Agreement under the Conditions
of Contract. It is recommended that the form of this agreement be one of the two alternative
example forms included at the end of this publication (in the section “Forms”), as appropriate
to the arrangement adopted.

It should be noted that both forms of the DAAB Agreement incorporate (by reference) the General

FORMS
Conditions of Dispute Avoidance/Adjudication Agreement with its Annex DAAB Procedural
Rules, which are included as the Appendix to the General Conditions in this publication.

Under either of these alternative forms of DAAB Agreement, each natural person of the DAAB
is referred to as a DAAB Member.

A very important factor in the success of the dispute avoidance/adjudication procedure is

the Parties’ confidence in the agreed individual(s) who will serve on the DAAB. Therefore, it is
essential that candidates for this position are not imposed by either Party on the other Party.
The appointment of the DAAB is facilitated by the provision in the Contract Data for each Party
to name potential DAAB Members. It is important that the Employer and the Contractor each
avail himself/herself, of the opportunity at the tender stage of the Contract to name potential
DAAB members in the Contract Data.
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The Contract Data includes two lists for potential DAAB Members to be named: one for the
Employer to list three names, the other for the Contractor to list three names. This ensures
that both Parties have equal opportunity to put forward (the same number of) names for
potential DAAB Members, and so avoid any question that DAAB Member(s) may be imposed
on one Party by the other Party.

This provides a total of six potential DAAB Members from which the sole member or three
members (as the case may be) can be selected by the Parties. If it is considered necessary to
have a wider selection of DAAB Member(s) to choose from, then provision may be made for
longer lists in the Contract Data for both the Contractor and the Employer to name (the same
number of) additional DAAB Members.

If the Parties cannot agree on any DAAB member, Sub-Clause 21.2 [Failure to Appoint DAAB
Member(s)] applies and the selection and appointment of the DAAB member(s) should be
made by a wholly impartial entity with an understanding of the nature and purpose of a DAAB.
The President of FIDIC is prepared to perform this role if this authority has been delegated in
accordance with the example wording in the Contract Data. FIDIC maintains a list of approved
and experienced adjudicators for this specific purpose: The FIDIC President’s List of Approved
Dispute Adjudicators (http://fidic.org/president-list†).

If no potential DAAB members’ names are given in the Contract Data, consideration should
be given to stating a time period in the Contract Data that is greater than the default period of
28 days stated in the first paragraph of this Sub-Clause.

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51
 The period of 224 days stated in sub-paragraph (i) of this Sub-Clause has been arrived at by
CONDITIONS

taking account of certain time allowances, as follows:

GENERAL

date of termination + 28 days to give a Notice of Claim under Sub-Clause 20.2.1 [Notice
of Claim]

+ 84 days to submit detailed particulars for the Claim under Sub-Clause 20.2.4 [Fully
detailed Claim]
GUIDANCE

+ 84 days for the Engineer’s agreement/determination of the Claim under Sub-Clause 3.7
[Agreement or Determination]

+ 28 days for a NOD under Sub-Clause 3.7 [Agreement or Determination]

= 224 days after the date of termination.

FORMS

As noted above, FIDIC strongly recommends that the DAAB be appointed at the start of the
Contract and remain in place for the duration of the Contract. However, as an alternative to the
‘standing DAAB’ envisaged under this Sub-Clause, the Parties may prefer the dispute board
to be appointed on an ‘ad-hoc’ basis. In such case, the dispute board would be appointed
when a Dispute arises, its appointment would be limited to resolution of the Dispute, it would
have no role to play in the avoidance of Disputes between the Parties, and its appointment
would cease when it had given its decision on that Dispute. Should a new Dispute arise, a
new ad-hoc DAAB would be appointed. Given that such a dispute board would have no
role in dispute avoidance, it is more correctly referred to as a “Dispute Adjudication Board”
or “DAB”, If the Parties wish to provide for an ‘ad-hoc DAB’, rather than the recommended
‘standing DAAB’, then the following amendments will be needed:

EXAMPLE Delete the definitions under Sub-Clause 1.1.22 and 1.1.23 and
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replace with:

““Dispute Adjudication Board” or “DAB” means the person or

three persons (as the case may be) so named in the Contract, or
appointed under Clause 21.”

and replace all references in the Conditions of Contract to “DAAB”

with “DAB”.

Sub-Clause 21.1, plus the Appendix General Conditions of

Dispute Avoidance/Adjudication Agreement with its Annex DAAB
Procedural Rules, should be amended to comply with the wording
contained in the corresponding provisions of FIDIC’s Conditions of
Contract for Plant and Design-Build, First Edition 1999.

Delete Sub-Clause 21.3 [Avoidance of Disputes];

in the first paragraph of Sub-Clause 21.4 [Obtaining DAAB’s

Decision]:
• after the words “If a Dispute arises between the Parties
then, ” add:
“after a DAB has been appointed”;
• delete the words “(whether or not any informal discussions
have been held under Sub-Clause 21.3 [Avoidance of
Disputes])”; and
delete sub-paragraph (a) of Sub-Clause 21.4.1 [Reference of a
Dispute to the DAAB].

52 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 To facilitate the appointment of the member(s) of an ‘ad-hoc DAB’, it is important that the

CONDITIONS
Employer and the Contractor each avail themselves of the opportunity at the tender stage of

GENERAL
the Contract to name three potential members in the Contract Data.

Sub-Clause 21.5 Amicable Settlement

In circumstances where the DAAB has given its decision but one or both Parties is/are
dissatisfied with the decision, the provisions of this Sub-Clause are intended to encourage the

GUIDANCE
Parties to settle a Dispute amicably, without the need for arbitration.

Rather than considering the 28 day period stated in this Sub-Clause as a ‘cooling-off period’,
FIDIC recommends that the Parties avail themselves of this opportunity to actively engage
with each other with a view to settling their Dispute.

FORMS
Such active engagement may be by, for example:
• direct negotiation by senior executives from each of the Parties;

• mediation (please see below);

• expert determination (using, for example, the Expert Rules published by the
International Chamber of Commerce (the “ICC”, which is based at 33-43 Avenue
du Président Wilson, 75116 Paris, France) https://iccwbo.org/publication/icc-expert-
rules-english-version/ †);

• or other form of alternative dispute resolution that is not as formal, time-consuming

and costly as arbitration.

In this regard, it is recommended that consideration be given by the Parties to agree to a

longer time period than the period of 28 days stated in this Sub-Clause in an effort to arrive at
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an amicable settlement procedure chosen by the Parties.

Amicable settlement procedures typically depend for their success on the consensual
involvement of both Parties, on confidentiality and on both Parties’ acceptance of the particular
procedure. Therefore, while it is recommended that both Parties engage actively to settle the
Dispute amicably, neither Party should seek to impose the procedure on the other Party.

If the Parties wish to adopt a mediation procedure in their attempt to settle the Dispute
amicably, then consideration may be given to the Mediation Rules, 2017 published by the
International Chamber of Commerce (the “ICC”, which is based at 33-43 Avenue du Président
Wilson, 75116 Paris, France) https://iccwbo.org/dispute-resolution-services/mediation/
mediation-rules/ †

or, alternatively, to the following mediation rules:

EXAMPLE MEDIATION RULES

Appointment of Mediator

If the Parties are unable to agree on the choice of an independent

and impartial mediator, or if the chosen mediator is unable or
unwilling to act, then either Party may immediately apply to the
appointing entity or official named in the Contract Data to appoint
a mediator.

Once the mediator has been appointed, the Dispute shall immediately
be referred to the mediator by the Parties or by either Party.

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53
 Obligations of the Parties
CONDITIONS

In addition to the Parties’ obligations as set out in the provisions

GENERAL

that follow below, during the mediation process the Parties shall
engage with the mediator and with each other in co-operation, in
a timely manner and in good faith.

Agreement of the Mediation Timetable

The mediator shall, within 7 days of his/her appointment, or
GUIDANCE

other period as may be proposed by the mediator and agreed

by both Parties, consult with the Parties to agree a timetable for
the exchange of any relevant information, the date/time/venue of
the mediation meeting, and the procedure to be adopted for the
negotiations. The agreement of the timetable shall have regard to
the period stated under Sub-Clause 21.5 [Amicable Settlement]
of the Conditions of Contract or as may be amended by the
FORMS

agreement of the Parties.

Confidentiality

The Parties’ negotiations facilitated by the mediator shall be

conducted on a strictly private and confidential basis. Neither
Party shall disclose to any third party any detail of the mediation
process, including but not limited to: the fact of the mediation,
the identity of the mediator, any matter discussed during the
mediation process, any information or document exchanged with
the mediator, any negotiations during the mediation meeting and/
or the outcome of the mediation.

The mediation, and/or any negotiations taking place during the

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mediation meeting, shall not be referred to by either Party in any

concurrent or subsequent proceedings, unless such negotiations
conclude with a written legally binding agreement.

Written Agreement to be Binding

If the Parties accept the mediator’s recommendations, or

otherwise reach agreement on the settlement of the Dispute, such
agreement shall be recorded in writing and, once signed by the
designated representative(s) of both Parties, shall be binding on
the Parties.

Mediator’s Opinion

If no agreement is reached by the Parties after negotiations

have been facilitated by the mediator, either Party may invite the
mediator to provide to both Parties a non-binding opinion in writing.
Such opinion shall not be used in evidence in any concurrent or
subsequent proceedings.

Costs of Mediation

The Parties will bear their own costs of participating in the

mediation, including but not limited to the costs of preparing and
submitting evidence to the mediator and attending the mediation
meeting.

Each Party shall be responsible for paying one-half of the

remuneration of the mediator (and, if the mediator has been
appointed by the appointing entity or official named in the Contract
Data, the remuneration of such appointing entity or official).

54 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 However, if the mediator finds that a Party has initiated the mediation,

CONDITIONS
or has engaged in the mediation, in a frivolous or vexatious manner,

GENERAL
then the mediator shall have the power to order that Party to pay
the reasonable costs of the other Party for preparing for and
attending the mediation meeting. If these costs cannot be agreed,
they will be assessed by the mediator, whose assessment shall be
binding on the Parties.

GUIDANCE
Sub-Clause 21.6 Arbitration

The Contract should include provisions for the resolution by international arbitration of any
Dispute which is not settled amicably by the Parties. In international contracts, international
commercial arbitration has numerous advantages over litigation in national courts and is likely
to be more acceptable to the Parties.

FORMS
Careful consideration should be given to ensuring that the international arbitration rules that
are chosen are compatible with the provisions of Clause 21 and with the other elements to
be set out in the Contract Data. The Arbitration Rules published by the International Chamber
of Commerce (the “ICC”, which is based at 33-43 Avenue du Président Wilson, 75116 Paris,
France) https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/† are
frequently incorporated by reference in international contracts.

It is important that the Parties agree on the number of arbitrators and the language of
arbitration. In the absence of specific stipulations as to the number of arbitrators and the
place of arbitration in the Contract, the International Court of Arbitration of the ICC will decide
these matters.
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If the arbitration rules published by the United Nations Commission on International Trade Law
(“UNCITRAL” which is based at the Vienna International Centre, A-1400 Vienna, Austria) http://
www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.
pdf† or other non-ICC arbitration rules are preferred, it may be necessary to designate, in
the Contract Data, an institution to appoint the arbitrators or to administer the arbitration,
unless the institution is named (and their role specified) in the arbitration rules. It may also
be necessary to ensure, before so designating an institution in the Contract Data, that the
institution is prepared to appoint or administer.

For major projects tendered internationally, it is desirable that the place of arbitration be
situated in a country other than that of the Employer or Contractor. This country should have a
modern and liberal arbitration law and should have ratified a bilateral or multilateral convention
(such as the 1958 New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards), or both, that would facilitate the enforcement of an arbitral award in the
states of the Parties.

It may be considered desirable in some cases for other Parties to be joined into any
arbitration between the Parties or for two or more pending arbitrations to be consolidated,
thereby creating a multi-party arbitration. While the ICC Arbitration Rules address multi-party
arbitration, such arbitration may in some cases be feasible only if the parties have included
multi-party arbitration clauses in their contracts. Such clauses require skilful drafting, and
usually need to be prepared on a case-by-case basis

It is not unusual that the arbitration of a complex dispute is concluded sometime after
performance of the Contractor’s obligations under the Contract have been completed, in
which case it may not be fair and reasonable in the circumstances for any arbitral award which
requires the payment of an amount by one Party to the other Party to be in the currencies

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55
 of payment and in the proportions provided for under Sub-Clause 14.15 [Currencies of
CONDITIONS

Payment]. For example, the Contractor may no longer have any need for local currency after
GENERAL

completion of the Works; or the local currency may have declined in value in the interim or
be a ‘blocked currency’ that, consequently, cannot be removed from the country concerned.
GUIDANCE
FORMS
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56 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Advisory Notes to Users of FIDIC Contracts Where the Project

CONDITIONS
Uses Building Information Modelling Systems

GENERAL
Building Information Modelling (BIM), is a process which is changing many elements of the
design profession, the construction industry and, possibly, even the operation and maintenance
of a facility.

GUIDANCE
BIM is one of the digital data technologies used in all aspects of project planning, investigation,
design, construction and operation. Digital data technologies include systems for: data
acquisition; document management; design and process management; estimating, planning,
and scheduling; contract management; performance management; and building information
modelling.

FORMS
BIM has varying degrees of complexity ranging from rather isolated use of computer aided
design tools to full sharing of models and information by the entire project team. Currently,
BIM is more often used and better understood in developed countries, many of which are
encouraging or even mandating its use to improve quality, accuracy and delivery times for
projects as well as to provide cost savings. BIM has the potential to dramatically improve
productivity in the construction industry and reduce operational costs of facilities as well.

BIM is not a set of contract conditions; it is a mechanism to provide an environment where

all parties have access to information relevant to their role in the design and construction of a
project. Wherever possible, a combined (sometimes called federated or collaborative) model
is developed for all parties to share, even if, as is often the case, various designers have used
different computer aided design programs to develop their respective designs. Drawings and
specifications are held in a common database accessible to everyone. These can be used
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for clash detection, coordination of designs, communication of changes, and construction

sequencing.

Coordination of goals and effort is essential and is generally achieved by a BIM Protocol and a
BIM Execution Plan, both key documents to access and understand work in this environment.
A designer needs to understand and work to the Levels of Design (or Detail) (LOD) that will be
spelled out in these documents to ensure that there is sufficient detail at each level to allow all
designs to progress efficiently and avoid unnecessary changes.

BIM is founded on a team approach and successful projects utilising BIM encourage
collaboration. FIDIC contracts are designed to be fair to all parties and are considered suitable
for use with projects featuring the use of BIM - providing that the parties recognise the difference
in approach and use the contract appropriately. This starts with proper planning and, unless
an employer has appropriate expertise in house, they are well advised to retain an engineer
who is appropriately qualified to assist them in the solicitation of interest, proposals, selection
and negotiation of contracts with the selected project team. Legal advice is also necessary, of
course, especially during the latter steps. The request for proposal (RFP) must clearly outline
what the client’s (employer’s) expectations of the consultant are. The expectations should
focus on the specific BIM goals and benefits desired. If properly developed, the RFP will
help the proposers be responsive and the employer select the consultant (or in the case of a
design build project, the project team) best qualified to deliver the desired BIM outcome. This
process will in turn help all parties develop appropriate contract terms and conditions. Ideally
the selection process would use FIDIC’s Quality Based Selection (QBS) guideline.

It should be noted that the improved quality of information in projects utilising BIM can result
in a significant reduction in variations. It is worth thinking about how the traditional roles of
contractor and employer fit into this structure. In general, BIM is well suited for integrated

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57
 project delivery, including Design Build and especially Design Build Operate projects where
CONDITIONS

early proactive involvement of the design engineer, contractor and employer are essential. If
GENERAL

advanced levels of BIM are anticipated for the project, the possibility of adding operation and
maintenance elements of the constructed facility might be considered.

For advanced levels of BIM where fully open sharing of information is required, a qualified
individual needs to be assigned the duty of managing the combined model. This should be
separate from the project manager’s role to ensure clear delineation of project responsibilities.
GUIDANCE

This may require special outsourcing, if such skills are not available from the employer or
engineer. Managing the BIM elements of a project may also involve risks that are beyond the
normal coverage of professional indemnity (PI) insurance policies. Specialist advice should be
sought from PI insurers if there is any doubt on coverage for this role. The competence and
responsibilities of this position need to be understood and should include experience in data
back-up and integrity, continuity planning and cyber security.
FORMS

All parties involved in a project utilising BIM should take special care in checking their assigned
scope and contract to ensure that they are aware of their BIM related responsibilities. The
risks that FIDIC has identified in working in a BIM environment arise from these key features:

- misunderstanding of scope of services

- use of data for an inappropriate purpose and reliance on inappropriate data

- ineffective information, document or data management

- cyber security and responsibility for “holding” the models or data

- definition of deliverables, approval, and delivery

© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

To manage these and other digital technology related risks, consultants are encouraged to
clearly define adequately their proposed services, addressing such issues as:
- the systems and versions or releases they propose and the management processes
they will adopt

- access rights and limitations of the client, other consultants and contractors

- reliance other parties in the project may place on data in the digital environment

- limitations in terms of uptime and access and potential exclusion of liability for
down-time

- potential exclusion of liability in the event of cyber attack

- potential exclusion or limitations on professional liability in respect of the actions of

others

- access to the current and previous issues of the combined model and to the
complete audit trail of changes to the model

At the completion of the project the model may need to be brought up to as-built status.
This involves not only the drawing elements but also the embedded data. Experience shows
that this is a significant effort, so responsibilities for completing this task should be clear and
appropriate allowances provided.

The process for the delivery of contractual notices should be checked to determine if this will
be through the common data environment or by more traditional means.

If sub-contractors are to be utilised, they should be bound by the BIM Protocol and Execution
Plan.

58 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The dispute resolution processes in the agreement should be appropriate, considering the

CONDITIONS
collaborative nature of the BIM process. Professionals with engineering, construction and

GENERAL
legal expertise should be consulted in this regard.

Legal counsel should review the contract to ensure that it does not create an unintended joint
venture which may be a risk in some jurisdictions.

GUIDANCE
If there is a fitness for purpose clause, make sure that it is clear who is responsible for
ensuring compliance and how responsibility for rectification is spread between participants.
Make sure that audit trails for modifications to the composite or federated model are controlled
by a process which can generate an audit trail that is preserved during and after completion.
The audit trail should be accessible by appropriate parties during and after project completion.
Given that there will be many parties involved in the design and construction effort, ensure

FORMS
that there are appropriate limits of liability in place for each participant and for the project as
a whole.
For subsurface projects involving BIM, in addition to considering the general principles as
introduced above, the following (non-exhaustive) list of Sub-Clauses of the General Conditions
of Contract Underground Works [©FIDIC 2019 First Edition] should be thoroughly reviewed
when drafting the Particular Conditions:

Sub-Clause No. Sub-Clause Title

1.1 Definitions
1.3 Notices and Other Communications
1.5 Priority of Documents
1.10 Employer’s Use of Contractor’s Documents
1.11 Contractor’s Use of Employer’s Documents
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1.15 Limitation of Liability

2.3 Employer’s Personnel and Other Contractors
2.5 Site Data and Items of Reference
3.2 Engineer’s Duties and Authority
4.1 Contractor’s General Obligations
4.6 Co-operation
4.7 Setting Out
4.9 Quality Management and Compliance Verification Systems
4.20 Progress Reports
5.1 General Design Obligations
5.2 Contractor’s Documents
5.6 As-Built Records
5.7 Operation and Maintenance Manuals
5.8 Design Error
6.8 Contractor’s Superintendence
6.10 Contractor’s Records
8.3 Programme
9.1 Contractor’s Obligations (Tests on Completion)
13.3 Variation Procedure
17.3 Intellectual and Industrial Property Rights
17.4 Indemnities by Contractor
17.5 Indemnities by Employer
17.6 Shared Indemnities
19.2.6 Other insurances required by Laws and by local practice

FIDIC intends to publish a “Technology Guideline” and a “Definition of Scope Guideline

Specific to BIM” with the aim of providing further detailed support. These documents are
under preparation and expected to be released shortly after the publication of the updates of
the 1999 suite of FIDIC contract forms.

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59
 Annexes EXAMPLE FORMS OF SECURITIES
CONDITIONS
GENERAL

Acceptable form(s) of security should be included in the tender documents: for Annex A and/or
B, in the Instructions to Tenderers; and for Annexes C to G, annexed to the Particular Conditions.
The following example forms, which (except for Annex A) incorporate Uniform Rules published by
the International Chamber of Commerce (the “ICC”, which is based at 33-43 Avenue du Président
GUIDANCE

Wilson, 75116 Paris, France, www.iccwbo.org), need to be carefully reviewed against, and may have
to be amended to comply with, applicable law. Although the ICC publishes guides to these Uniform
Rules, legal advice should be taken before the securities are written. Note that the guaranteed
amounts should be quoted in all the currencies, as specified in the Contract, in which the guarantor
pays the beneficiary.
FORMS
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60 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Annex A EXAMPLE FORM OF PARENT COMPANY

CONDITIONS
GUARANTEE

GENERAL
Name of Contract/Contract No.:_________________________________________________________
Name and address of Employer:_________________________________________________________
__________________________________________________ (together with successors and assigns).

GUIDANCE
We have been informed that ____________________________________ (hereinafter called the
“Contractor”) is submitting an offer for such Contract in response to your invitation, and that the
conditions of your invitation require his/her offer to be supported by a parent company guarantee.
In consideration of you, the Employer, awarding the Contract to the Contractor, we (name of
parent company) irrevocably and unconditionally guarantee to you, as a primary obligation, the
due performance of all the Contractor’s obligations and liabilities under the Contract, including the

FORMS
Contractor’s compliance with all its terms and conditions according to their true intent and meaning.
If the Contractor fails to so perform his/her obligations and liabilities and comply with the Contract,
we will indemnify the Employer against and from all damages, losses and expenses (including
legal fees and expenses) which arise from any such failure for which the Contractor is liable to the
Employer under the Contract.
This guarantee shall come into full force and effect when the Contract comes into full force and effect.
If the Contract does not come into full force and effect within a year of the date of this guarantee,
or if you demonstrate that you do not intend to enter into the Contract with the Contractor, this
guarantee shall be void and ineffective. This guarantee shall continue in full force and effect until
all the Contractor’s obligations and liabilities under the Contract have been discharged, when this
guarantee shall expire and shall be returned to us, and our liability hereunder shall be discharged
absolutely.
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This guarantee shall apply and be supplemental to the Contract as amended or varied by the Employer
and the Contractor from time to time. We hereby authorise them to agree any such amendment or
variation, the due performance of which and compliance with which by the Contractor are likewise
guaranteed hereunder. Our obligations and liabilities under this guarantee shall not be discharged
by any allowance of time or other indulgence whatsoever by the Employer to the Contractor, or by
any variation or suspension of the works to be executed under the Contract, or by any amendments
to the Contract or to the constitution of the Contractor or the Employer, or by any other matters,
whether with or without our knowledge or consent.
This guarantee shall be governed by the law of the same country (or other jurisdiction) as that which
governs the Contract and any dispute under this guarantee shall be finally settled under the Rules
of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in
accordance with such Rules. We confirm that the benefit of this guarantee may be assigned subject
only to the provisions for assignment of the Contract.

SIGNED by:______________________________ SIGNED by(1):_____________________________

(signature) (signature)
________________________________________ ________________________________________
(name) (name)
________________________________________ ________________________________________
(position in the company) (position in the company)
Date:

Whether one or more signatories for the parent company are required will depend on the parent
(1)

company and/or applicable law.

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61
 Annex B EXAMPLE FORM OF TENDER SECURITY
CONDITIONS
GENERAL

Guarantee No.: __________________________ [insert guarantee reference number]

The Guarantor:_______________________________________________________________________
[insert name and address of place of issue, unless indicated in the letterhead]

Name of Contract/Contract No.:___________________[insert reference number or other information

GUIDANCE

identifying the contract with regard to which the tender is submitted]

The Beneficiary (the “Employer”):__________________ [insert name and address of the Beneficiary]
We have been informed that ____________________________________________________ [insert
name and address of the Tenderer] (hereinafter called the “Applicant”) is submitting an offer for such
Contract in response to your invitation, and that the conditions of your invitation (the “Conditions of
Invitation”, which are set out in a document entitled Instructions to Tenderers) require his/her offer to
FORMS

be supported by a tender security.

At the request of the Applicant, we _________________________________________ [insert name
of Guarantor] hereby irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums
not exceeding in total the amount of ___________________________ [insert in figures and words
the maximum amount payable and the currency in which it is payable] upon receipt by us of your
demand in writing and your written statement (in the demand) that:
(a) the Applicant has, without your agreement, withdrawn his/her offer after the latest
time specified for its submission and before the expiry of its period of validity, or

(b) the Applicant has refused to accept the correction of errors in his/her offer in
accordance with such Conditions of Invitation, or

(c) you awarded the Contract to the Applicant and he/she has failed to comply with
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Sub-Clause 1.6 of the Conditions of Contract, or

(d) you awarded the Contract to the Applicant and he/she has failed to comply with
Sub-Clause 4.2.1 of the Conditions of Contract.
Any demand for payment must contain your signature(s) which must be authenticated by your
bankers or by a notary public. The authenticated demand and statement must be received by us
at the following office [insert address of office] on or before ________________________ [insert the
date 35 days after the expiry of the validity of the Letter of Tender], when this guarantee shall expire.

The party liable for the payment of any charges: ___________________________________________

_______________________________________ [insert the name of the party].
This guarantee shall be governed by the laws of _________________________ [insert the law
governing the guarantee], and shall be subject to the Uniform Rules for Demand Guarantees (URDG)
2010 Revision, ICC Publication No. 758.

SIGNED by:______________________________ SIGNED by(1):_____________________________

(signature) (signature)
________________________________________ ________________________________________
(name) (name)

Date:___________________________________

Whether one or more signatories for the bank are required will depend on the bank and/or
(1)

applicable law.

62 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Annex C EXAMPLE FORM OF PERFORMANCE SECURITY

CONDITIONS
- DEMAND GUARANTEE

GENERAL
Guarantee No.:__________________________ [insert guarantee reference number]
The Guarantor:_______________________________________________________________________
[insert name and address of place of issue, unless indicated in the letterhead]

GUIDANCE
Name of Contract/Contract No.: __________________________________________________[insert
reference number or other information identifying the contract between the Applicant and the
Beneficiary on which the guarantee is based]

The Beneficiary (the “Employer”): ________________________________________________________

______________________________________________ [insert name and address of the Beneficiary]

FORMS
We have been informed that ____________________________________________________ [insert
name and address of the Contractor] (hereinafter called the “Applicant”) is your Contractor under
such Contract, which requires him/her to obtain a Performance Security.
At the request of the Applicant, we __________________________________________ [insert name
of Guarantor] hereby irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums
not exceeding in total the amount of __________________________________ [insert in figures and
words the maximum amount payable and the currency in which it is payable] (the “Guaranteed
Amount”) upon receipt by us of your demand in writing and your written statement indicating in what
respect the Applicant is in breach of its obligations under the Contract.
[Following receipt by us of an authenticated copy of the Taking-Over Certificate for the whole of the
Works under Clause 10 of the Conditions of Contract, the Guaranteed Amount shall be reduced by
________________ % and we shall promptly notify you that we have received such certificate and
have reduced the Guaranteed Amount accordingly.] (1)
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Following receipt by us of an authenticated copy of a statement issued by_____________________

____________________________________________________________________________________
[insert name and address of the Engineer under the Contract] that, pursuant to Sub-Clause 4.2.1 of
the Conditions of Contract, variations or adjustments under Clause 13 of the Conditions of Contract
have resulted in an accumulative increase or decrease of the Contract Price by more than twenty
percent (20%) of the Accepted Contract Amount, and that therefore the Guaranteed Amount should
be adjusted by the percentage specified in the statement equal to the accumulative increase or
decrease, respectively, we shall promptly inform you that we have received such statement and
have adjusted the Guaranteed Amount accordingly. In the case of a request for a decrease of the
amount of the Performance Security, the above statement shall be accompanied by your written
consent to such decrease.
Any demand for payment must contain your signature(s) which must be authenticated by your
bankers or by a notary public. The authenticated demand and statement must be received by us
at the following office [insert address of office] on or before _______________________ (insert the
date 70 days after the expected expiry of the Defects Notification Period for the Works) (the “Expiry
Date”), when this guarantee shall expire.
The party liable for the payment of any charges: [insert the name of the party].
This guarantee shall be governed by the laws of _________________________ [insert the law
governing the guarantee], and shall be subject to the Uniform Rules for Demand Guarantees,
(URDG) 2010 Revision, ICC Publication No. 758.

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63
 SIGNED by:______________________________ SIGNED by(2):_____________________________
CONDITIONS

(signature) (signature)
GENERAL

________________________________________ ________________________________________
(name) (name)
Date:___________________________________
GUIDANCE

(1)
When drafting the tender documents, the writer should ascertain whether to include the optional
text, shown in parentheses [ ]
(2)
Whether one or more signatories for the bank are required will depend on the bank and/or
applicable law
FORMS
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

64 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Annex D EXAMPLE FORM OF PERFORMANCE SECURITY

CONDITIONS
- SURETY BOND

GENERAL
Name of Contract/Contract No.: ________________________________________________________
Name and address of Beneficiary (the “Employer”): _________________________________________
____________________________________________________________________________________

GUIDANCE
We have been informed that ____________________________________________________ [insert
name of the Contractor] (hereinafter called the “Principal”) is your contractor under such Contract,
which require him/her to obtain a Performance Security.
By this Bond, ________________________________________________________________________
_________________________________________________ [insert name and address of contractor]

(who is your Contractor under such Contract) as Principal and: ______________________________

FORMS
_________________________________________________________________________ [insert name
and address of Guarantor] as Guarantor are irrevocably held and firmly bound to the Beneficiary in
the total amount of _______________________ [insert in figures and words the maximum amount
payable and the currency in which it is payable] (the “Bond Amount”) for the due performance of all
such Principal’s obligations and liabilities under the above named Contract.
[Such Bond Amount shall be reduced by ________________ % upon the issue of the Taking-Over
Certificate for the whole of the Works under Clause 10 of the Conditions of Contract.](1)
This Bond shall become effective on the Commencement Date defined in the Contract.
Upon Default by the Principal to perform any contractual obligation, or upon the occurrence of
any of the events and circumstances listed in Sub-Clause 15.2.1 of the Conditions of Contract,
the Guarantor shall satisfy and discharge the damages sustained by the Beneficiary due to such
Default, event or circumstances.(2) However, the total liability of the Guarantor shall not exceed the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Bond Amount.
The obligations and liabilities of the Guarantor shall not be discharged by any allowance of time or
other indulgence whatsoever by the Beneficiary to the Principal, or by any variation or suspension
of the Works to be executed under the Contract, or by any amendments to the Contract or to the
constitution of the Principal or the Beneficiary, or by any other matters, whether with or without the
knowledge or consent of the Guarantor.
Any claim under this Bond must be received by the Guarantor on or before ____________________
[insert the date six months after the expected expiry of the Defects Notification Period for the Works]
(the “Expiry Date”), when this Bond shall expire and shall be returned to the Guarantor.
The benefit of this Bond may be assigned subject to the provisions for assignment of the Contract,
and subject to the receipt by the Guarantor of evidence of full compliance with such provisions.
This Bond shall be governed by the law of _________________________________ [insert the law
governing the bond] being the same country (or other jurisdiction) as that which governs the
Contract. This Bond incorporates and shall be subject to the Uniform Rules for Contract Bonds,
published as number 524 by the International Chamber of Commerce, and words used in this Bond
shall bear the meanings set out in such Rules.
Whereas this Bond has been issued by the Principal and the Guarantor on ________________ [date]

Signatures for and on behalf of the Principal(3):

________________________________________ ________________________________________
(signature) (signature)
________________________________________ ________________________________________
(name) (name)

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65
 Signatures for and on behalf of the Guarantor(4):
CONDITIONS

________________________________________ ________________________________________
GENERAL

(signature) (signature)
________________________________________ ________________________________________
(name) (name)
GUIDANCE

When writing the tender documents, the writer should ascertain whether to include the optional
(1)

text, shown in parentheses [ ]

Insert: [and shall not be entitled to perform the Principal’s obligations under the Contract.]
(2)
FORMS

Or: [or at the option of the Guarantor (to be exercised in writing within 42 days of receiving the claim
specifying such Default) perform the Principal’s obligations under the Contract.]

Whether one or more signatories for the Principal are required will depend on the Principal and/or
(3)

applicable law.

Whether one or more signatories for the Guarantor are required will depend on the Guarantor and/
(4)

or applicable law.
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66 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Annex E EXAMPLE FORM OF ADVANCE PAYMENT

CONDITIONS
GUARANTEE

GENERAL
Guarantee No.: ________________________________________ [insert guarantee reference number]

The Guarantor: _______________________________________________________________________

________________________________________ [insert name and address of place of issue, unless

GUIDANCE
indicated in the letterhead]

Name of Contract/Contract No.: ________________________________________________________

______________________________________________[insert reference number or other information
identifying the contract between the Applicant and the Beneficiary on which the guarantee is based]

The Beneficiary (the “Employer”): ________________________________________________________

FORMS
______________________________________________ [insert name and address of the Beneficiary]

We have been informed that ____________________________________________________________

______________________________________________ [insert name of the Contractor and address]
(hereinafter called the “Applicant”) is your Contractor under such Contract and wishes to receive an
advance payment, for which the Contract requires him/her to obtain a guarantee.
At the request of the Applicant, we _____________________ [insert name of Guarantor] hereby
irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums not exceeding in total
the amount of ______________ [insert in figures and words the maximum amount payable and the
currency in which it is payable] (the “Guaranteed Amount”) upon receipt by us of your demand in
writing and your written statement that:
(a) the Applicant has failed to repay the advance payment in accordance with the
Conditions of Contract, and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(b) the amount of the advance payment which the Applicant has failed to repay.
This guarantee shall become effective upon receipt [of the first instalment] of the advance payment
by the Applicant. The Guaranteed Amount shall be reduced by the amounts of the advance payment
repaid to you, as evidenced by interim payment certificates issued under Sub-Clause 14.6 of the
Conditions of Contract. Following receipt of a copy of each interim payment certificate, we shall
promptly notify you of the revised Guaranteed Amount accordingly.
Any demand for payment must contain your signature(s) which must be authenticated by your
bankers or by a notary public. The authenticated demand and statement must be received by us
at the following office [insert address of office] on or before ________________________ [insert the
date 70 days after the expected expiry of the Time for Completion] (the “Expiry Date”), when this
guarantee shall expire.

The party liable for the payment of any charges: __________________ [insert the name of the party].
This guarantee shall be governed by the laws of ___________________________[insert the law
governing the guarantee], and shall be subject to the Uniform Rules for Demand Guarantees (URDG)
2010 Revision, ICC Publication No. 758.

Signed by:_______________________________ Signed by(1):______________________________

(signature) (signature)
________________________________________ ________________________________________
(name) (name)

Date:___________________________________

Whether one or more signatories for the bank are required will depend on the bank and/or
(1)

applicable law.

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67
 Annex F EXAMPLE FORM OF RETENTION MONEY
CONDITIONS

GUARANTEE
GENERAL

Guarantee No.: ________________________________________ [insert guarantee reference number]

The Guarantor: _______________________________________________________________________
________________________________________ [insert name and address of place of issue, unless
indicated in the letterhead]
GUIDANCE

Name of Contract/Contract No.: ________________________________________________________

______________________________________________________________ [insert reference number
or other information identifying the contract between the Applicant and the Beneficiary on which the
guarantee is based]

The Beneficiary (the “Employer”): ________________________________________________________

FORMS

_______________________________________ [insert name and address of the Beneficiary]

We have been informed that ____________________________________________________________

__________________________________________________________ [insert name of the Contractor
and address] (hereinafter called the “Applicant”) is your Contractor under such Contract and wishes
to receive an early payment of [part of] the retention money, for which the Contract requires him/her
to obtain a guarantee.
At the request of the Applicant, we _____________________ [insert name of Guarantor] hereby
irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums not exceeding in total
the amount of ______________ [insert in figures and words the maximum amount payable and the
currency in which it is payable] (the “Guaranteed Amount”) upon receipt by us of your demand in writing
and your written statement that the Applicant has failed to carry out his/her obligation(s) to rectify the
following defect(s) for which he/she is responsible under the Contract [state the nature of the defect(s)].
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At any time, our liability under this guarantee shall not exceed the total amount of retention money
released to the Applicant by you, as evidenced by interim payment certificates issued under
Sub-Clause 14.6 of the Conditions of Contract with a copy being submitted to us.
Any demand for payment must contain your signature(s) which must be authenticated by your
bankers or by a notary public. The authenticated demand and statement must be received by us
at the following office [insert address of office] on or before ______________________ [insert the
date 70 days after the expected expiry of the Defects Notification Period for the Works], (the “Expiry
Date”), when this guarantee shall expire.
We have been informed that the Beneficiary may require the Applicant to extend this guarantee if the
Performance Certificate under the Contract has not been issued by the date 28 days prior to such Expiry
Date. We undertake to pay you the Guaranteed Amount upon receipt by us, within such period of 28
days, of your demand in writing and your written statement that the Performance Certificate has not been
issued, for reasons attributable to the Applicant, and that this guarantee has not been extended.

The party liable for the payment of any charges: __________________ [insert the name of the party].
This guarantee shall be governed by the laws of _________________________ [insert the law
governing the guarantee] and shall be subject to the Uniform Rules for Demand Guarantees (URDG)
2010 Revision, ICC Publication No. 758.

Signed by:_______________________________ Signed by(1):______________________________

(signature) (signature)
________________________________________ ________________________________________
(name) (name)
Date:___________________________________

Whether one or more signatories for the bank are required will depend on the bank and/or
(1)

applicable law.

68 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Annex G EXAMPLE FORM OF PAYMENT GUARANTEE BY

CONDITIONS
EMPLOYER

GENERAL
Guarantee No.: ________________________________________ [insert guarantee reference number]
The Guarantor: _______________________________________________________________________
________________________________________ [insert name and address of place of issue, unless
indicated in the letterhead]

GUIDANCE
Name of Contract/Contract No.: ________________________________________________________
_____________________________________________ [insert reference number or other information
identifying the contract between the Applicant and the Beneficiary on which the guarantee is based]

The Beneficiary (the “Contractor”): _______________________________________________________

_______________________________________ [insert name and address of the Beneficiary]

FORMS
We have been informed that ____________________________________________________________
_______________________________________________ [insert name and address of the Employer]
(hereinafter called the “Applicant”) is required to obtain a bank guarantee.

At the request of the Applicant, we _____________________ [insert name of Guarantor] hereby

irrevocably undertake to pay you, the Beneficiary/Contractor, any sum or sums not exceeding in
total the amount of ______________ [insert in figures and words the maximum amount payable and
the currency in which it is payable] upon receipt by us of your demand in writing and your written
statement that:
(a) in respect of a payment due under the Contract, the Applicant has failed to make
payment in full by the date fourteen days after the expiry of the period specified in
the Contract as that within which such payment should have been made, and
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(b) the amount(s) which the Applicant has failed to pay.

Any demand for payment must be accompanied by a copy of __________________________ [insert
list of documents evidencing entitlement to payment and the language in which these documents
are to be submitted], in respect of which the Principal has failed to make payment in full.
Any demand for payment must contain your signature(s) which must be authenticated by your
bankers or by a notary public. The authenticated demand and statement must be received by
us at the following office [address of office] on or before _____________________ [insert the date
six months after the expected expiry of the Defects Notification Period for the Works] when this
guarantee shall expire.

The party liable for the payment of any charges: __________________ [insert the name of the party].
This guarantee shall be governed by the laws of _________________ [insert the law governing
the guarantee] and shall be subject to the Uniform Rules for Demand Guarantees (URDG) 2010
Revision, ICC Publication No. 758.

Signed by:_______________________________ Signed by(1):______________________________

(signature) (signature)
________________________________________ ________________________________________
(name) (name)
Date:___________________________________

Whether one or more signatories for the bank are required will depend on the bank and/or
(1)

applicable law.

© FIDIC & ITA 2019

69
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE
 GENERAL CONDITIONS

FIDIC® Conditions of Contract for

GUIDANCE FOR THE
UNDERGROUND WORKS PREPARATION OF
PARTICULAR CONDITIONS
AND ANNEXES: EXAMPLE
DESIGNED BY THE CONTRACTOR FORMS OF SECURITIES

ACCORDING TO THE REFERENCE

DESIGN BY THE EMPLOYER AND THE
GEOTECHNICAL BASELINE REPORT

Guidance for the Preparation of Tender Documents

and Annexes
GUIDANCE FOR THE
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

PREPARATION OF
TENDER DOCUMENTS
AND ANNEXES: TABLE
OF CONTENTS OF
THE GEOTECHNICAL
BASELINE REPORT,
EXAMPLE FORMS
OF SCHEDULE OF
BASELINES, COMPLETION
SCHEDULE, SCHEDULE
OF CONTRACTOR’S KEY
EQUIPMENT

FORMS OF LETTER OF
TENDER, LETTER OF
ACCEPTANCE, CONTRACT
AGREEMENT AND
DISPUTE ADJUDICATION/
AVOIDANCE AGREEMENT
In collaboration with

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE
 Guidance for the Preparation of Tender Documents

CONDITIONS
1 General Aspects

GENERAL
When preparing the tender documents and planning the tender process, Employers should consult
the publication FIDIC Procurement Procedures Guide 1st edition 2011 (http://fidic.org/books/
fidic-procurement-procedures-guide-1st-ed-2011) which presents a systematic approach to the
procurement of engineering and building works for projects of all sizes and complexity, and gives
invaluable help and advice on the contents of the tender documents, and the procedures for receiving

GUIDANCE
and evaluating tenders. This publication provides internationally acceptable, comprehensive, best
practice procedures designed to increase the probability of receiving responsive clear and competitive
tenders using FIDIC forms of contract. FIDIC intends to update the FIDIC Procurement Procedures
Guide (planned for publication at a later date) to make specific reference to these Conditions of
Contract for Underground Works, First Edition 2019.
The tender documents issued by the Employer should be prepared by suitably qualified engineers

FORMS
who are familiar with the technical aspects of the required works and the particular requirements and
contractual provisions of a design-build project for Underground Works. Furthermore, a review by
suitably qualified lawyers is advisable.
The tender documents issued to tenderers should normally include the following:
- a letter of invitation to tender
- the Instructions to Tenderers (including advice on any matters which the Employer wishes
tenderers to include in their tenders but which do not form part of the Employer’s Requirements)
and the various base documents forming the Contract in order of priority:
(a) the required forms of agreement (see Sample Contract Agreement);
(b) the Form of Letter of Tender (see Sample Letter of Tender) and required appendices (if
any);
Particular Conditions of Contract:
(c) Particular Conditions Part A - Contract Data and
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i) the Completion Schedule and

ii) the Schedule of Baselines;
(d) Particular Condtions Part B - Special Provisions.
(e) the Geotechnical Baseline Report – GBR (See Appendix A);
(f) express reference to the “Conditions of Contract for Underground Works”, First Edition
2019 published by FIDIC and ITA to ensure that it is clear that these are to be the
General Conditions of the proposed contract;
(g) The Employer’s Requirements including drawings and technical details of the reference
design from the Employer;
(h) other Schedules, including the Schedule of Payments (if any), Schedule of Contractor’s
Key Equipment, and the Schedule of Rates and Prices (in which the Bill of Quantities
for Excavation and Lining Works is included), and the Schedule of Performance
Guarantees;
(i) the form of the JV undertaking and any detailed requirements for the JV that the
Employer wishes to specify; and
(j) other documents forming part of the Contract, including but not limited to the
Geotechnical Data Report, the Contract Risk Management Plan and the Contract Risk
Register.
The publication FIDIC Procurement Procedures Guide referred to above provides useful guidance
as to the content and format of many of the above documents, and further guidance is given below.
All the documents above should be issued with the Instructions to Tenderers to allow the tenderers
sufficient time to study them and make their own assessment of the associated potential risks in the
Contract by the Base Date.
In addition, each of the tenderers should receive the data referred to in Sub-Clause 2.5 [Site Data
and Items of Reference].

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 The Instructions to tenderers
CONDITIONS

The Instructions to Tenderers may need to specify any constraints on the completion of the Contract
GENERAL

Data and/or Schedules, and/or specify the extent of other information which each tenderer is to
include with the tender. If each tenderer is to produce a tender security and/or a parent company
guarantee, these requirements should be stated in the Instructions to Tenderers: example forms are
included at the end of this publication.
It is important for the Parties to understand which of the documents included in the tender dossier,
and which of the documents submitted by tenderers, will form part of the Contract and therefore
GUIDANCE

have continuing effect (for example, the Instructions to Tenderers are not, by definition, a part of the
Contract. They are simply instructions and information on the preparation and submission of the
tender).
If tenderers are required to carry out any preliminary design or study for their proposals, the Employer
should bear in mind that tenderers are understandably often reluctant to incur great expense in the
preparation of tender designs. Therefore, when preparing the Instructions to Tenderers, thought
FORMS

should be given as to the extent of detail which tenderers can realistically be expected to prepare
and include in their proposals. The extent of detail required should be clearly described in the
Instructions to Tenderers (it should be noted that there can be no description in the documents
which will later constitute the Contract, which only comes into full force and effect when a tenderer’s
proposal is accepted). Employers should also consider remunerating tenderers if, in order to provide
a responsive tender, they have to undertake studies or carry out preliminary design work.
The procedure for award of Contract should be stated clearly in the Instructions to Tenderers.
It is in the interest of the Employer for tenderers to prepare and submit a responsive tender.
Accordingly, the Employer should avoid setting a tender period which is either too short and which
can reduce competition and result in inadequate submittals or too long which can be wasteful to all
parties involved.
The review and evaluation of tenders and the award of the Contract requires time. This will be the
minimum time which tenderers should be asked to hold their tenders valid and open to acceptance.
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The lnstructions to Tenderers should also:

- advise of any matters which the Employer wishes tenderers to include in their tenders but
which do not form part of the Employer’s Requirements,
- clearly state which information is to be completed in the Schedules, and the format thereof,
- be explicit on the scope of what will be the Contractor’s design obligations, and
- expressly reference all the documents, technical information and data (including the data
referred to in Sub-Clause 2.5 [Site Data and Items of Reference] of the General Conditions)
that are being provided by the Employer in the tender dossier.
If the Employer requires tenderers to provide additional data or information, a convenient way of
doing this is to provide a suitably worded questionnaire with the tender documents.
The Instructions to Tenderers may require the tenderer to provide information on the matters referred
to in some or all of the following Sub-Clauses:
1.16 Contract Risk Register and Contract Risk Management Plan
4.3 Contractor’s Representative
4.17 Contractor’s Equipment
4.24 Excavation and Lining Works
4.25 Milestones
6.12 Key Personnel
8.3 Programme
13.5 Daywork
13.8 Measurement of Underground Works and Adjustment of Time for
Completion and Contract Price
14.4 Schedule of Payments
19 Insurances
The form of Letter of Tender should be prepared by the Employer: an example form is included
at the end of this publication.

74 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 When the Employer accepts the Letter of Tender, the Contract (which then comes into full force and

CONDITIONS
effect) includes the Contractor’s Proposal and completed Schedules.

GENERAL
It should be noted that certain documents may need to be amended during the negotiation process,
where permitted by applicable Law, in particular:
- the Geotechnical Baseline Report;
- the Schedule of Baselines;
- the Completion Schedule; and

GUIDANCE
- the Contract Risk Register and associated Schedules
to be consistent with any adoption of a Contractor’s Proposal which differs in detail from the
Employer’s reference design.
Particular Conditions Part A - Contract Data
Many Sub-Clauses in the General Conditions make reference to data being contained in the Contract
Data (Particular Conditions – Part A). This data must be provided in the tender documents, and

FORMS
these Conditions of Contract assume that all such data will be provided by the Employer, except
as expressly noted in the form of Contract Data included in the Guidance for the Preparation of
Particular Conditions before this Guidance.
If the Employer requires tenderers to provide any of the other information required in the Contract
Data, the tender documents must make this clear.
Particular Conditions Part A – Completion Schedule
Please see paragraph 4.2.1 below for guidance on the preparation of the Completion Schedule.
Particular Conditions Part A – Schedule of Baselines
Please see paragraph 2.3 below for guidance on the preparation of the Schedule of Baselines.
Particular Conditions Part B - Special Provisions
Please see the separate section entitled “Guidance for the Preparation of Special Provisions” in this
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

publication above.
The Geotechnical Baseline Report
Each of the tenderers should receive the data referred to in Sub-Clause 2.5 [Site Data and Items of
Reference], including but not limited to the Geotechnical Baseline Report,
Please see paragraph 2.3 and Appendix A below for guidance on the preparation of the GBR.
The General Conditions of Contract
The following Sub-Clauses make express reference to matters to be included in the Employer’s
Requirements:
1.8 Care and Supply of Documents
1.9 Errors in the Employer’s Requirements and/or in the Geotechnical Baseline Report
1.11 Contractor’s Use of Employer’s Documents
1.13 Compliance with Laws
1.16 Contract Risk Register and Contract Risk Management Plan
2.1 Right of Access to the Site
2.5 Site Data and Items of Reference
2.6 Employer-Supplied Materials and Employer’s Equipment
4.1 Contractor’s General Obligations
4.5 Nominated Subcontractors
4.6 Co-operation
4.7 Setting Out
4.8 Health and Safety Obligations
4.9 Quality Management and Compliance Verification Systems
4.10 Use of Site Data, of the Geotechnical Baseline Report and of the Geotechnical Data
Report
4.17 Contractor’s Equipment
4.18 Protection of the Environment

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 4.19 Temporary Utilities
CONDITIONS

4.20 Progress Reports

GENERAL

4.24 Excavation and Lining Works

4.25 Milestones
5.1 General Design Obligations
5.2 Contractor’s Documents
5.4 Technical Standards and Regulations
GUIDANCE

5.5 Training
5.6 As-Built Records
5.7 Operation and Maintenance Manuals
6.1 Engagement of Staff and Labour
6.6 Facilities for Staff and Labour
6.7 Health and Safety of Personnel
6.12 Contractor’s Key Personnel
FORMS

7.3 Inspection
7.4 Testing by the Contractor
7.8 Royalties
8.3 Programme
9.1 Contractor’s Obligations
10.2 Taking Over Parts
11.11 Clearance of Site
12.1 Procedure for Tests after Completion.
13.1 Right to Vary
However, it may also be necessary under other Sub-Clauses for the Employer to give specific
information in the Employer’s Requirements (for example, under Sub-Clause 7.2 [Samples])
The Employer’s Requirements
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The Employer’s Requirements should specify the particular requirements for the completed Works,
including functional requirements, quality and scope. If the Contractor is required to supply certain
items, such as consumables, these should be listed in a Schedule.
Drafters of the Employer’s Requirements must remember that if any matters are not referred to or
covered, the Contractor may well be relieved of any responsibility in respect of such matters.
If the Works are to include fixtures, fittings equipment, (for example, separated ventilation or utility
ducts, running surfaces, drainage within the Lining Works, and suchlike) and other similar items, the
scope of such work must be defined in the Employer’s Requirements. Full consideration should be
given to detailed requirements for these items, such as the extent to which the Works are to be
fully equipped, ready for operation, with spare parts and consumables provided for operation (for a
specified period), typically by the Employer. If the Contractor is required to operate the Works, either
for a few months’ trial operation under sub-paragraph (c) of Sub-Clause 9.1 [Contractor’s Obligations]
or for some years’ operation, this must also be specified and detailed in the Employer’s Requirements.
Other Schedules
For this type of contract where the Works, except the Excavation and Lining Works, are normally
valued on a lump sum basis, the Schedules may include a Schedule of Payments (as referred to
under Sub-Clause 14.4 [Schedule of Payments] in the General Conditions).
In respect of the Excavation and the Lining Works, which are to be valued by measurement, the Bill
of Quantities in the Schedule of Rates and Prices will be the most important Schedule.
A Daywork Schedule may also be necessary, to cover minor works to be executed at cost.
The Schedule of Contractor’s Key Equipment forms part of the “other Schedules”.
Many Sub-Clauses in the General Conditions make reference to data being contained in such other
Schedules. This data must be provided in the tender documents, and these Conditions of Contract
assume that if such data is not provided by the Employer, then it is provided by the tenderer. Where
the Employer requires tenderers to provide any information in a Schedule, the tender documents
must make this clear by identifying the Schedule and the specific information that the tenderer is to
provide.

76 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 The JV Undertaking and any JV requirements

CONDITIONS
Please see the guidance given under Sub-Clause 1.14 [Joint and Several Liability] in the separate

GENERAL
section entitled “Guidance for the Preparation of Special Provisions” in this publication above.
Other documents forming part of the Contract
These will include (but not limited to) the Geotechnical Data Report or GDR, the Contract Risk
Management Plan and the Contract Risk Register.
Please see paragraph 3.1.3 below for guidance on the preparation of the Geotechnical Data Report.

GUIDANCE
Please see paragraph 1 of Appendix A below for guidance on the preparation of the Contract Risk
Register and the Contract Risk Management Plan.

2 Central Principles, Underground Works

2.1 Risk Allocation Particulars in Tender Documents for Underground Works
Further to the five features referred to in the Notes at the front of this publication, it is important

FORMS
for Employers to note that the tender documents for Underground Works should include detailed
information about the anticipated subsurface physical conditions, including expected ground and
ground water risks identified by the Employer and the design considerations relating to these risks
that the Employer has taken into consideration when formulating the Employer’s reference design.
While the Employer will suggest preferred method(s) of construction based on the anticipated
subsurface physical conditions and the risks associated therewith, the Employer should allow
tenderers to propose alternative construction methods in line with their proposals for design and
construction of the Works.
Sufficient investigation of the subsurface physical conditions, of the access limitations to the Site and
of the potential influence of the Works on the surrounding ground, ground water table and on the
surface should be carried out by the Employer and the results provided to tenderers in the tender
documents.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Also, the preparation of the tender documents requires a dedicated time frame, independent of the
time allocated by the Employer to any previous design stages.

2.2 Typical risks and their allocation in Underground Works

The issues that most distinguish Underground Works from others is the limited knowledge regarding
the subsurface physical conditions and the reaction of the surrounding ground mass to the excavation
and support of the cavities. In the interest of economy, the related risks should be allocated to the
Party that is best prepared to control them:
a) the risk of the subsurface physical conditions not corresponding to the expectations before
tenders are submitted should be allocated to the Employer; the Employer is the Party who
had the possibility of assessing those risks during the preparation of tender documents.
b) the risk of the production rates and relevant cost not corresponding to the expectations
within a given set of parameters of subsurface physical conditions should be allocated to
the Contractor; the Contractor is the Party who has the experience in the detail design and
construction for such conditions, including the avoidance and/or limitation of impact on third
parties.
It is inherent to such risk allocation that either Party shall:
a) with respect to the risk with which the Party has been entrusted, bear the loss resulting from
the encountered conditions that are more onerous than the expected conditions and shall
on the other hand
b) enjoy the benefit resulting from the encountered conditions that are less onerous than the
expected conditions.
This principle shall be clearly communicated in the tender documents.

2.3 The Geotechnical Baseline Report GBR and the Schedule of Baselines (Sub-Clauses
2.5, 4.10.2 and 8.2.2)
The reaction of the surrounding ground to the underground excavation and support processes
depends not only on the geotechnical parameters of the ground mass but also on the design
concept proposed by the Employer and the methods of construction for excavation and support.

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77
 The Employer’s tender documents shall consequently contain the Employer’s proposal for a feasible
CONDITIONS

method of Excavation and Lining Works for the purposes of measurement.

GENERAL

This information (range of geotechnical parameters plus method of construction for excavation and
support with relevant ground classification system) shall be described in the Geotechnical Baseline
Report (GBR) as the single source of allocation of risks due to subsurface physical conditions.
The anticipated quantities of Excavation and Lining Works included in the GBR shall be itemized in
the Schedule of Baselines. The tenderer shall then enter the corresponding production rate against
each different item of work.
GUIDANCE

The Schedule of Baselines and the GBR shall have high priority amongst the Contract documents.
Due to the overriding issue of Time for Completion, the Schedule of Baselines, which provides the
time link to the Completion Schedule, takes precedence over the GBR.

2.4 Adjustment of Time for Completion (Sub-Clause 13.8.3)

The evaluation of the time for excavation and support depends on the expected subsurface physical
FORMS

conditions and on the production rates submitted by the tenderer. As the subsurface physical
conditions are within the risk sphere of the Employer and the production rates are within the risk
sphere of the Contractor, the time available to the Contractor for the Underground Excavation and
Lining Works shall be measured and adjusted against the difference between the subsurface physical
conditions expected (as described in the GBR and as quantified in the Schedule of Baselines) and
the subsurface physical conditions actually encountered.
The adjustment mechanism shall be clearly stated in the tender documents.
No adjustment shall be provided for any difference between the production rates stated in the
Contractor’s Proposal and the performance rates actually achieved for the specified set of subsurface
physical conditions in the Schedule of Baselines.
The Milestones that are relevant to the Employer shall be clearly stated in the Completion Schedule
which shall be compatible with and based on the quantities itemized in the Schedule of Baselines.
Time adjustments and Extensions of Time, if any, shall be calculated and determined by reference
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only to the Schedule of Baselines and the Completion Schedule.

Unlike events leading to an Extension of Time (i.e. Unforeseeable Physical Conditions and/or
Variations), time adjustments may also lead to a reduction in the Time for Completion.

2.5 Contractor’s Key Equipment (Sub-Clause 4.17)

It is recommended that a Schedule of Contractor’s Key Equipment be prepared, including those
items of the Contractor’s Equipment that need to be made specifically available for the execution of
the Works and are deemed to be essential as opposed to other Contractor’s Equipment that can
be easily replaced.

2.6 Measurement of Excavation and Lining Works and Adjustment of Time for
Completion and Contract Price (Sub-Clause 13.8)
A major portion of the costs incurred by the Contractor is related to time rather than to the quantities
produced (in particular, technical, commercial and administrative overheads, depreciation and
maintenance of Contractor’s Equipment, leasing costs etc.).
The Bill of Quantities shall consequently provide for time-related rate items which allow for the
corresponding adjustments in the Contract Price according to the adjustments in Time for Completion.

3 Pre-Contract Actions by the Employer

3.1 Site Investigations (Sub-Clause 2.5)
Site Investigations should provide a sufficient range of information commensurate with the size,
nature and complexities of the project and cover at least the following subjects:
3.1.1 Adjacent Property and Relations with Third Parties (Sub-Clause 2.1)
Third parties impacted by the execution of the Works should be informed and, wherever necessary,
involved in due time, according to the legal requirements and the cultural environment. Preliminary
condition assessments of property that are potentially sensitive to the effects of the execution of the
Works (i.e. vibrations, ground subsidence, potential changes in ground water flows and groundwater

78 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 table, traffic hindrances, noise, dust, air pollution etc.), including the extension of the impact zone,

CONDITIONS
should be undertaken.

GENERAL
3.1.2 Access to the Site and Working Areas (Sub-Clauses 2.1, 4.13, 4.14 & 4.15)
Permission for and physical access to the Site as well as the availability of the working areas on- and
off- Site should be investigated prior to issuing the tender documents. Sufficient time, should be
allocated for the related permanent or temporary expropriation and/or possession of the requisite
areas if required.

GUIDANCE
3.1.3 Geology, Hydrogeology, Hydrology and Geotechnics (Sub-Clause 4.10)
The relevant data for the realization of the Works should be collected, analyzed and, if applicable,
monitored. Investigation may include, amongst others, extensive study of available literature and
data, geophysical surveys, destructive and non-destructive probe drilling, down-the-hole testing,
surface testing and laboratory testing, as well as related digital modelling.
Particular attention should be given to investigation and testing with long lead times (deep drilling,
time consuming laboratory tests and long-term monitoring of ground water levels etc.).

FORMS
The data, so collected, shall be identified and described in the Geotechnical Data Report GDR.

3.2 Employer’s Reference Design (Sub-Clauses 1.1.40, 4.10 & 5.1)

The Employer’s reference design should:
a) be compatible with the Employer’s Requirements, and the Employer’s preferred assessment
of acceptable physical risks;
b) be based on and consistent with the conclusions of the preliminary investigations in the
GDR;
c) cover the Permanent Works and the excavation and support procedure for the Underground
Excavation and Lining Works; and
d) be consistent with the GBR and the various relevant Schedules.
The Employer’s reference design should be produced by a qualified and experienced designer and
peer reviewed prior to issue.
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3.3 Disposal of Excavated and Waste Materials (Sub-Clause 7.1 & 7.8)
Disposal of excavated Material is crucial to the success of the project because of the large volumes
involved.
Suitable treatment and disposal facilities of Materials to be re-used or removed from the Underground
Works should be explored and secured for the:
a) Material to be excavated and/or re-cycled, including chemical alterations caused by the
excavation and support processes, based on the expected quality of excavation Material;
and
b) typical waste Material removed from the Works during construction including those subjected
to varying degrees of contamination and/or hazardous slurries and water.
3.4 Materials Testing (Sub-Clause 7.2 + 7.4)
Critical parts of Underground Works may be difficult to access after construction. Their durability is
therefore essential. If no long-term performance data is available for the Materials and systems to
be provided for any such part of the Works, either accelerated testing of such Materials should be
undertaken, or access be ensured by particular arrangements. Such situations should be identified
at an early stage in the initial risk assessment of the project.
4 Employer’s Tender Documents
Apart from the mandatory contractual information, the tender documents shall include the following
documents, without limitation, in the following order of priority :

4.1 The Particular Conditions

4.1.1 The Particular Conditions Part A – Contract Data
4.1.1.1 The Completion Schedule (Sub-Clause 1.1.8), to be completed by the tenderer
The Completion Schedule is a simplified programme reflecting the Sections, Milestones, drives and
consequent stages of execution of the Works selected by the Employer and completed by the

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 tenderer showing the selected stages and sequence of activities for design, procurement, testing
CONDITIONS

and construction, the times computed in the Schedule of Baselines and the times for construction
GENERAL

of all other items of work specified in the Contract to be executed and completed by the tenderer.
The Completion Schedule shall be based on and compatible with the Schedule of Baselines and
shall include the Employer defined Milestones (Sub-Clause 1.1.63) and drives of the project.
The Programme (Sub-Clause 1.1.78) submitted by the Contractor shall be based on the agreed
Completion Schedule and on the key dates specified in the Contract Data.
GUIDANCE

4.1.1.2 The Schedule of Baselines (Sub-Clause 1.1.84), to be completed by the tenderer

The Schedule of Baselines shall be completed by the tenderer based upon, but not limited to,
his own estimate of his production rates. The production rates submitted by the Tenderer and
the resulting times for construction of the various Sections or Parts, if any, of the Works, are the
sole responsibility of the tenderer, irrespective of the submittal of the production cycle analyses
and related information. The relevant analyses of the production cycles shall be submitted in the
Contractor’s Proposal. The rates of production entered by the tenderer in the Schedule of Baselines
FORMS

shall be consistent with the GBR, the characteristics of the proposed Contractor’s Key Equipment
and the experience of the Contractor’s Key Personnel all as described in the relevant Schedules.
The Schedule of Baselines shall be based on the GBR and on the Employer’s reference design.
The Schedule of Baselines shall contain all the activities and their anticipated quantities for the
underground Excavation (Sub-Clause 1.1.43) and Lining (Sub-Clause 1.1.60) Works, typically
allocated by Sections and drives.
The Schedule of Baseliness shall include, if applicable and without limitation, the following information
and/or measures relating to:
a) location, dimensions, nature and characteristics of expected utilities and underground
structures;
b) excavation and support classes as described in the GBR and the Employer’s reference
design;
c) probe drilling and other investigations related to assessing subsurface physical conditions;
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d) complementary support;
e) advanced ground treatment, such as poor or contaminated ground;
f) consolidation and waterproofing grouting;
g) seepage, water ingress treatment and related hindrances;
h) treatment of geological overbreak and related hindrances;
i) waterproofing;
j) construction of the final Lining;
k) interruptions due to changes in the method of construction for Excavation and Lining Works;
l) interruptions due to Unforeseeable subsurface physical conditions, i.e. those not included
in the GBR (see example Appendix A); and
m) anticipated interruptions and hindrances anticipated due to the Employer or Authorities.
The Schedule of Baselines shall also include other relevant conditions for the Works specified in the
Contract, such as working time per shift/per day/per week, number of shifts per week, number of
working days per week, compulsory holidays etc.
The Schedule of Baselines shall be divided into units (typically individual drives and/or methods
of construction per zone) that reflect a Section or Part of the Works, if applicable, to enable the
computation of the time available to the Contractor for the specific corresponding production times
for the Underground Excavation and Lining of the same.
The corresponding total time available for each unit shall be the sum of all the individual production
times for the realization of the individual items of work itemized in the relevant Schedule of Baselines.
The time for the realization of an individual item of work shall be calculated by dividing the quantity
specified by the Employer by the corresponding production rate submitted by the Contractor taking
into any time for learning curves into account.
4.1.2 The Particular Conditions Part B - Special Provisions (Sub-Clause 1.1.70)
The Special Provisions shall include information and/or instructions about and without limitation on:
a) the decision process affecting the excavation and support measures;

80 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 b) interfaces (other contractors or third parties on, access to, possession or sharing the Site);

CONDITIONS
sharing and co-operation instructions; provision of permits; temporary rights of way and

GENERAL
conditions for preparing the Sections or Parts for the Taking-Over Certificate);
c) the removal or temporary storage of excavated material, waste treatment and disposal,
including ownership and instructions on recycling (if any);
d) utility requirements (water supply, effluent treatment and disposal, normal and emergency
power supply, telecommunications);
e) facilities and services to be provided for the Employer’s Personnel and/or Contractor’s

GUIDANCE
Personnel; and
f) instructions and/or constraints on logistics to and from Site and inspections off Site (e.g.
factory acceptance tests for Contractor’s Key Equipment, Materials and Plant, etc.).
4.2 The Geotechnical Baseline Report GBR (Sub-Clause 1.1.51 + 4.10.2)
(see also: Appendix A to this Guidance)
The GBR contains the only contractual definition of what is assumed to be encountered in defining

FORMS
the contractual allocation of the risks for subsurface physical conditions between the Parties. The
risk allocation in the GBR depends on the Employer’s preferred risk acceptance. The design concept
chosen by the Employer and the GBR is thus an interpretation of the expected subsurface physical
conditions, adapted to the preferred risk allocation by the Employer. This implies that the GBR may
deviate from factual geological data contained in the GDR (Sub-Clause 1.1.52).
GBR interpretations can also be based on experience and other sources of relevant information on
the subsurface physical conditions. The GBR shall include parameters that focus on the behaviour of
the ground and groundwater caused by or having impact on the method of excavation and support
rather than on pure scientific data.
The GBR shall include instructions on acceptable impacts due to construction on adjacent facilities,
the subsurface and on the surface alike (i.e. permissible settlements, impact on groundwater, etc.).
The assumed subsurface physical conditions stated in the GBR shall include the Employer’s
proposal for the method of construction for each zone for excavation and support, together with the
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Employer’s reference design illustrated in detail explanatory drawings.

The GBR shall define and implement a contractual ground classification system that properly reflects
the effort of excavation and support of the cavity. For this purpose, the definition of an excavation
and support class system is convenient, including preliminary ground treatment, seepage treatment
and ancillary measures. Parameters such as maximum settlement on affected structures and the
associated monitoring activities shall also be defined.
The expected reaction of the ground to excavation and the measures to control this reaction will have
determinant influence on the definition of such a contractual ground classification system.
The GBR shall also include information about other anticipated and known geotechnical and/or
man-made sources of potential difficulty or hazards that could impact the construction process, such
as boulders, abandoned piles, buried utilities and structures, buried debris and other obstructions,
high or low top of bedrock, mixed face conditions, geological discontinuities, gas, anticipated water
pressure, quality and in-flow, contaminated ground, ordnance etc.
All the subsurface physical conditions described in the GBR should be addressed in the Schedule
of Baselines.
For further information see Appendix A “ The Geotechnical Baseline Report GBR ”

4.3 The General Conditions of Contract for Underground Works

A copy of the General Conditions of Contract for Underground Works shall be provided or shall be
referred to with the tender documents provided by the Employer without amendments. Amendments
required shall be stated in the Special Provisions.
The following definitions have been added or amended from the definitions that are stated in the
Yellow and Red Books Edition 2017:
1.1.5 Bill of Quantities
1.1.8 Completion Schedule
1.1.11 Contract
1.1.15 Contract Risk Management Plan

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 1.1.16 Contract Risk Register
CONDITIONS

1.1.20 Contractor’s Key Equipment

GENERAL

1.1.21 Contractor’s Key Personnel

1.1.30 Date of Completion
1.1.39 Employer’s Requirements
1.1.43 Excavation
1.1.50 General Conditions
GUIDANCE

1.1.51 Geotechnical Baseline Report

1.1.52 Geotechnical Data Report
1.1.60 Lining
1.1.63 Milestone
1.1.64 Milestone Certificate
1.1.83 Schedules
1.1.84 Schedule of Baselines
FORMS

1.1.85 Schedule of Contractor’s Key Equipment

1.1.88 Schedule of Rates and Prices
1.1.99 Time for Completion
1.1.100 Underground Works
1.1.101 Unforeseeable
4.4 Employer’s Requirements (Sub-Clause 1.1.39)
The Employer’s Requirements shall include information about and without limitation on:
a) design and construction management requirements (data exchange, special calculus,
design, programming and/or monitoring software, formatting etc.);
b) design requirements (life cycle expectancy, compliance with the Employer’s reference design
and with other designs agreed in the Letter of Acceptance, compliance with performance or
Materials and workmanship specifications, if any, etc.);
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

c) investigation and testing of Goods with long lead times;

d) quality requirements and quality testing instructions;
e) survey and monitoring instructions (subsurface and above surface, interfaces, information
and alarm systems, etc.);
f) the Contractor’s Key Equipment, (Sub-Clause 1.1.20); and
g) expected utilities and treatment thereof.
The Employer’s Requirements shall also include the Employer’s reference design and corresponding
drawings, based on the preliminary investigations and the analyses of the relevant data consistent
with the GBR.

4.5 Other Schedules (Sub-Clause 1.1.83)

The subsurface items of work shall be remunerated through re-measurement. The Schedules should
include a Bill of Quantities (BoQ) structured as follows:
a) fixed rate items: lump sums or unit prices for i.e. access and ancillary works, Site establishment
installation and dismantling; rental or lease of Key Equipment and Site management and
superintendency, provision of services to the Employer based on the estimated duration of
the works, consistent with the Schedule of Baselines and with the Completion Schedule;
b) time-related rate items: daily rates for rental or lease of the Contractor’s Key Equipment,
site management and superintendency, provision of services to the Employer for time
adjustment according to differences between expected and encountered subsurface
physical conditions, and for Extensions of Time due to i.e. Unforeseeable physical conditions;
c) quantity-related rate items: unit prices for preliminary ground treatment, excavation, support
and final lining items, lump sums for other items;
d) value-related charges: rates or prices considered proportional to the value of the item of
work, such as insurance, securities, permits and levies; and
e) Daywork rates: differentiated between surface and subsurface items of work, exclusive of
rental or lease costs for all Contractor’s Equipment, available or required on Site.
Value-related charges shall normally be included as percentage rates in the prices of the above

82 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 items for i.e. insurance fees, duties, levies and taxes.

CONDITIONS
The BoQ shall be based on and consistent with the Employer’s reference design.

GENERAL
4.6 Contractor’s Proposal (Sub-Clause 1.1.23)
4.6.1 Compliant Proposal
The Contractor shall submit a compliant proposal with the tender documents issued by the Employer.
4.6.1.1 Completion of the Completion Schedule

GUIDANCE
The Tenderer shall complete the Completion Schedule based on and consistent with
a) the Schedule of Baselines, including the tendered production rates;
b) the Milestones that are independent of the criteria set out in the Schedule of Baselines; and
c) the details of the production rates defined in the Contractor’s Proposal.
The Completion Schedule shall include the logical links between all Sections and Milestones and the
distinct activities comprising the required items of work linked to the Sections and Milestones.

FORMS
4.6.1.2 Method statements
The Contractor’s Proposal shall be structured and describe the manner of execution in the form of
method statements including, but not limited to, detailed information on the:
a) Contractor’s Personnel organization and associated resources;
b) provisions for the Employer’s Personnel on and off Site (if any);
c) software systems intended to be employed for planning, design, records and reporting;
d) execution of the Permanent Works according to Sections as specified in the GBR;
e) execution of the Temporary Works including Site establishment;
f) storage of material and in particular those involving waste and hazardous materials;
g) interface requirements for utility connections at various locations on and around the Site;
h) operation of borrow pits, disposal areas and transport within, or to and from, the Site;
i) Contractor’s Key Equipment and arrangements of installations;
j) management of Health, Safety and Environmental and of Security issues;
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

k) facilities for on the job and continuous professional development training;

l) proposed methods of design, procurement, testing, construction and maintenance;
m) analyses of production cycles; and
n) additional issues as stated in the Employer’s Requirements.
4.6.2 Alternative Proposals
If the Employer wishes the tenderers to submit alternative proposals, then the criteria for submission
and/or acceptance for evaluation and adjudication shall be clearly defined in the tender documents
as follows:
a) the tenderer shall also submit a compliant Tender;
b) the acceptance or refusal of the alternative proposal shall be at the sole discretion of the
Employer;
c) any alternative proposals shall contain a fully developed set of supporting tender documents,
including in particular a GBR, a Schedule of Baselines and a Completion Schedule that are
applicable to the proposal;
d) the tenderer shall provide supporting documentation to the level of detail stated for a
compliant tender and in particular details of the proposed alternatives for:
i. the preliminary design and
ii. the alternate methods of construction for excavation and support; and
e) all relevant supporting Schedules to enable the Employer to evaluate the Tender and in
particular any changes in the risk allocation between the Parties.
Prior to the selection of the alternative proposal by the Employer, if any, all the above tenderer’s
documents shall be agreed.
4.7 JV Undertaking (Sub-Clause 1.1.56 and 1.14)
If there is a JV, then at least the majority of the partners should be suitably qualified for the type of
work envisaged.

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 4.8 Other documents forming part of the Contract
CONDITIONS

The Employer shall include all available relevant information in the tender documents as follows,
GENERAL

without limitation:
a) the Contract Risk Register and the Contract Risk Management Plan, to be completed by
the Contractor;
b) the results of the preliminary investigations (i.e. borehole log information and core drillings) and
other factual geological, hydrogeological and geotechnical information in the Geotechnical
GUIDANCE

Data Report GDR, (Sub-Clause 1.1.52); and

c) interpreted information of data employed for the purposes of preparing the reference design
in the Geotechnical Baseline Report (GBR), if any.
FORMS
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84 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Appendix A: The Geotechnical Baseline Report

CONDITIONS
GENERAL
The Geotechnical Baseline Report (GBR)
Introduction

GUIDANCE
1 The Contractual Purpose of the Geotechnical Baseline Report GBR
2 Administration and Reference for Measurement during Contract
3 GBR Content Recommendations
4 The Purpose of the Geotechnical Data Report GDR
5 Example Table of Contents of a GBR

FORMS
Introduction
The Geotechnical Baseline Report describes the subsurface physical conditions to serve as a basis
for the execution of the Excavation and Lining Works, including design and construction methods,
and the reaction of the ground to such methods. The GBR sets out the allocation of the risk between
the Parties for such subsurface physical conditions.

1 The Contractual Purpose of the Geotechnical Baseline Report GBR

The Geotechnical Baseline Report (GBR) is the single source contractual document that describes
the anticipated subsurface conditions to be encountered in the execution of the Works. The GBR
contains descriptions, data, information, and warnings of anticipated physical and behavioral
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

conditions. The GBR is used to design the work, plan and equip the excavation process, and help
adjudicate disputes associated with unforeseen subsurface physical conditions.

The GBR allocates the subsurface condition risks between the Employer and the Contractor for the
elements of work as set out in the Schedule of Baselines.

Consequently, it is to be the only contractual definition of the foreseeable subsurface physical

conditions for the Underground Works and serves as the basis for the preparation of the Tender
and execution of the Works. The risk allocation in the GBR depends on the Employer’s preferred
level of risk acceptance and is thus an interpretation of the expected subsurface ground and
groundwater conditions, adapted to the preferred risk allocation by the Employer. The procedure for
the management of these risks shall be described in the Contract Risk Management Plan.

The design concept selected by the Employer and the interpretations stated in the GBR collectively
represent the Employer’s preferred risk allocation for the subsurface physical conditions. This shall
apply to the Employer’s reference design and any alternative design and method of construction
submitted in the Contractor’s Proposal by a tenderer. The GBR statements may also be based
on previous construction experience or exploration data from other sources of relevant information
on the physical and behavioral conditions of the ground. Because the GBR statements reflect
information beyond the data, they may deviate from the factual geological, hydrogeological and/or
geotechnical data contained in the Geotechnical Data Report or (GDR).

The GBR also serves to convey and highlight the key project constraints and requirements, as well
as latitudes, to enable the tenderers to grasp the key project issues.
The GBR shall include parameters that help to describe the physical characteristics of the ground
and ground water conditions, as well as the most likely ground behaviours to be expected during the

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 Excavation and Lining activities. Because ground behavior is influenced by the excavation means
CONDITIONS

and methods utilized, descriptions of anticipated ground behaviour will be presented within the
GENERAL

context of those specific excavation means and methods.

Physical and behavioural statements in the GBR shall be described using quantitative terms (with
limits where appropriate e.g water inflow, rate of deformation) to the extent practicable. As far as
possible the selected baseline parameters shall have the ability to be confirmed by the physical or
behavioural conditions encountered quantitively in the field, to reduce ambiguity in the scope of
GUIDANCE

work, avoid delays and potential for disputes, and improve time and cost certainty.

The GBR shall also, where possible, present examples of relevant, local construction projects that
experienced physical conditions similar to those anticipated to be encountered for the proposed
Works.
FORMS

The FIDIC General Conditions of Contract for Underground Works are based on the principles of
fairness and therefore of balanced risk allocation to the Contractor and the Employer. Each risk of
foreseeable subsurface physical conditions shall be allocated in the Geotechnical Baseline Report to
the Party that is best positioned to control it, which leads to more effective risk control. Transparent
and equitable allocation of ground related risks leads to more competitive Tenders and lower outturn
cost of the Works. The Employer should avoid establishing an overly conservative GBR, as this will
render it less effective. Instead, the Employer is advised to provide realistic statements in the GBR
to give the tenderers confidence in the fairness of the Schedule of Baselines as the basis for the
Tender.

The location of the ground for the construction of the Underground Works is selected and made
available by the Employer. Consequently, the Employer’s GBR and reference design need to be
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

compatible with the other Employer’s Requirements as these form the basis for the assumptions in
the Tenders. The Contractor’s Proposal of design methodology, the detailed means and measures
including methods of construction for Excavation and Lining and the associated production rates
for any given set of circumstances, must be then selected by the tenderer and submitted in the
completed Schedule of Baselines consistent with the Employer’s reference design and/or alternative
design (if any).

2 Administration and reference for measurement during Contract

If the encountered subsurface physical conditions vary within the limits stated in the GBR, there will
be an influence on time and cost for the Excavation and Lining Works.

This difference in the time and cost for Excavation Works is due to the dependency of the means and
measures necessary to excavate and ensure the long term stability of the underground openings
created by the excavation process, taking into consideration everything contained in the ground
such as water, gas, and natural or man-made obstacles.

The time available to the Contractor for Excavation (including all necessary support) and Lining Works
shall be adjusted accordingly based on the variations of the physical and behavioural conditions of
the ground encountered within those stated in the GBR.

Any subsurface physical conditions that are outside the limits stated in the GBR shall be considered
Unforeseeable physical conditions, and accordingly the corresponding Sub-Clause 4.12
[Unforeseeable Physical Conditions] of the General Conditions of Contract shall apply.

The Contractor, when making any claim based on Unforeseeable subsurface physical conditions,
must be able to demonstrate that:

86 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 i) the Contractor relied on the information in the GBR in the quantification of his tender; and

CONDITIONS
ii) the impact of any changes in scope, time, risk allocation or cost was caused by the difference

GENERAL
of the encountered subsurface physical conditions against the limits stated in the GBR.
Purely numerical differences in the physical conditions encountered do not provide sufficient
basis for an adjustment in compensation or Time for Completion (e.g. a permeability outside
the range specified in the GBR is not sufficient, unless the water seepage is higher than the
limit specified in the GBR).
3 GBR Content Recommendations

GUIDANCE
The subsurface conditions stated in the GBR shall be described, and later monitored, measured and
recorded, in terms of the means and measures required for the Excavation and Lining which ensures
the stability of the space created by the Excavation, and the effect on the surrounds including
adjacent property affected by the Excavation. The data should generally be allocated to the different
variations and combinations of homogeneous and heterogeneous zones along the length of the
different drives.

FORMS
Baseline conditions shall be described in terms of the:
i) anticipated methods of construction; and
ii) logistics determining access to the working faces and ensuring suitable working conditions
The parameters contained in the GBR shall focus on ground behaviour and/or ground response
rather than geologically oriented parameters. For example, rather than to establish permeability
parameters for the ground, seepage estimations and grouting requirements should be stated to
the maximum extent possible, using quantitative terms that can be measured and verified during
construction.

The GBR should use a contractual ground classification system that properly reflects the effort
(time and cost) of excavating and supporting the cavity in the expected ground conditions. For this
purpose, the definition of a ground classification system, together with the associated quantitative
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

criteria for the application on Site, is convenient.

The ground classes should be first established in accordance with:

i) the type of Excavation Works (e.g. open cut, shafts, portals, conventional or shielded tunnel
excavation, caverns with top headings and benches, etc.);
ii) the associated anticipated methods of construction, e.g. tunnelling or mining techniques, drill
and blast or mechanical excavation; full face or partial excavation including pre-treatment (if
any), pressurized face tunneling including pre-treatment (if any); and
iii) the method of support (including where stability, ground movement, squeezing etc. should
be considered).
The ground classification system should then consider:
i) the behaviour of the ground when excavated;
ii) the support measures required for stabilization of the surrounds;
iii) the installation of one-pass linings that provide both initial and final support (such as, i.e.,
one-pass segmental lining or one-pass final shotcrete lining); and
iv) conditions/impacts generated by unique geologic features such as faults, shear zones, or
boulders.
The description of the contractual ground classification system for Excavation and Lining Works
should include:
i) the quality and structure of the soil and/or rock in relationship to the excavation process,
influence of water on the excavation process, methods of Excavation, average types and
quantities of support, different ground classes, installation sequence, expected/allowable
deformations, and ancillary methods of construction (i.e. grouting, soil improvement, freezing
etc., if any);
ii) a percentage distribution of ground classification classes based on the foreseeable
subsurface physical conditions and represented spatially in information associated to the
Excavation profile and location within specific Sections of the Works; and

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 iii) drawings showing the ground classes for different working conditions and methods of
CONDITIONS

construction in soils, rock and/or mixed ground for each drive.

GENERAL

The nature of the foreseeable subsurface physical conditions and the measures to control them,
will have significant impact on how to define the contractual ground classification system. The use
of geomechanical classification systems as a contractual ground classification system may have to
be integrated with the selected design and construction methodology in order to serve the purpose
of the GBR.
GUIDANCE

The contractual ground classification system should typically include:

- opening size and shape;
- ground behaviour;
- geological hazard scenarios;
- stand up time, if applicable;
- ground excavation and support sequence;
FORMS

- support type;
- grouting methods and sequences;
- groundwater management methods and sequences;
- expected deformations for the ground type and the means to control the deformations;
- expected ranges of ground mass parameters and behaviours that could affect the
productivity and cost of the methods of construction for each type of Excavation and
potential situation during the drive (e.g. abrasivity, bit & cutter wear, drillability, cuttability,
groutability, squeezing, cutterhead jamming, and spalling);
- geotechnical “Hold Points” (i.e. locations where the procedure needs to be reviewed in
particular detail due to lack of information, high risk zones, or where further investigation or
analysis is required) with attention and alert values related to reference values established in
the Employer’s reference design and/or in the Contract Risk Management Plan; and
- required monitoring.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

In addition to the above contractual ground classification system, the GBR should:
- present the general description of the geology, hydrogeology, and ground stress regime of
the Works;
- include a thorough discussion on anticipated ground water levels, seasonal and/or tidal
(if any) variations, estimated inflows, estimated pumping volumes and rates, anticipated
ground water chemistry and temperature;
- provide referenced baseline statements on:
i) acceptable construction impacts on adjacent property and facilities;
ii) parameters such as maximum/differential settlement, rate and tendency of deformation
etc., on affected property (e.g. structures and buried utilities);
iii) and other known natural geotechnical, hydrogeological, hydrological and/or man-made
sources of potential difficulty or hazard that could impact the construction process
such as:
- natural hazards:
- boulders, cavities and other obstructions, high or low top of bedrock, mixed face physical
conditions, geological contact zones, highly stressed or permeable physical conditions, gas,
coal seams or oil deposits, high temperatures and hot water inflows, intrusions, isolated
aquifers, seismic conditions, etc.;
- man-made hazards:
- other obstructions such as: identified or unidentified deep foundations and/or abandoned
piles, exploratory shafts, pits, wells, boreholes, buried utilities, buried debris, unexploded
ordnance, engineered and/or reclaimed ground, waste tips, contaminated ground and
ground water within the impact zone of the proposed Works alignment etc.;
- items of value and/or Interest according to governing laws; and
- any anticipated items of value or interest described under Sub-Clause 4.23 [Archaeological
and Geological Findings].

88 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 These physical conditions should be considered, quantified and referenced in the Schedule of

CONDITIONS
Baselines.

GENERAL
Design parameters may be included in the GBR, or alternatively, excluded from the GBR and included
in the Employer’s Requirements.

All subsurface physical conditions that are not explicitly included in the scope of the GBR are

GUIDANCE
considered as Unforeseeable physical conditions, see Sub-Clause 1.1.101 [Unforeseeable]

4 The purpose of the Geotechnical Data Report or GDR

The GDR is one of the “any other documents forming part of the Contract” (Sub-Clause 1.5, para (l)),
and as such has the lowest priority of Contract documents.

FORMS
The GDR should be issued to the tenderers as part of the Invitation to Tender to enable tenderers to
make their own interpretations and assessment of the risks associated with the referenced baseline
statements in the GBR. The GDR will collate all geotechnical and related data as described under
Sub-Clause 2.5 [Site Data and Items of Reference].

Should the GBR be silent on a particular physical or behavioural condition, or if the Contractor
requires additional basis for a design-related parameter or assumption, information in the GDR may
provide a supplemental basis for interpretation. Such interpretation by the Contractor shall have to be
agreed by the Engineer in order to become contractual. Reference to investigations and assessment
of foundation methods, structural integrity and status etc., which have been analysed and reported
elsewhere should be summarized in the GDR.
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

5 Example Table of Contents of a Geotechnical Baseline Report

Part A: General Information
1 Introduction
2 General Project Information
2.1 General project layout
2.2 Excavation and lining works subdivision
2.2.1 Overview
2.2.2 Drive 01
2.2.3 ...
2.3 Construction methodology
2.3.1 Drive 01
2.3.2 ...
3 Geological and hydrogeological context
3.1 Geology in the project area
3.2 Hydrogeology in the project area
3.3 ...
4 Risk scenarios and mitigation measures for Excavation and Lining Works
4.1 Risks related to geological formations
4.2 Risks related to groundwater
4.3 Risks related to man-made obstacles
4.4 Risks related to third parties
4.5 ...

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 Part B: Contractual geotechnical baselines
CONDITIONS

5 Agreed subsurface physical and behavioural conditions, excavation and support

GENERAL

classes
5.1 Drive D01
5.1.1 Subsurface physical conditions
5.1.1.1 Ground types and relevant geotechnical properties
GUIDANCE

5.1.1.2 Ground water, permeability

5.1.1.3 (Other physical conditions according to local situation)
5.1.1.4 Obstacles
5.1.1.5 ...
5.1.2 Relevant risk scenarios and adverse behaviours (i.e.: wedging, squeezing,
flowing, slabbing, settlement, seepage, gas, etc.)
FORMS

5.1.3 Excavation and support classes, ancillary and control measures

5.1.3.1 Excavation and support class D01-1
5.1.3.2 Excavation and support class D01-2
5.1.3.3 ...
5.2 Drive D02
5.3 ...
5.4 Cavern C1
5.5 ...
5.6 Shaft S1
5.7 …
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

5.8 Shaft S2
5.9 …
5.10 Cross Passage CP1
5.11 …
Appendices to Part A: Project layout, geological map and longitudinal profile, ...
Appendices to Part B:
Appendix B1: Geotechnical-methodological longitudinal sections
Appendix B2: Excavation and support classes, typical cross sections and profiles
Appendix B3: Criteria for attribution of excavation and support class

90 © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Annexes EXAMPLE FORMS OF SCHEDULE OF

CONDITIONS
BASELINES, COMPLETION SCHEDULE,

GENERAL
SCHEDULE OF CONTRACTOR’S KEY
EQUIPMENT

GUIDANCE
FORMS
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91
 Example Schedule of Baselines - EXCAVATION
Normal script = quantity estimated by the Employer WD = Working Days
Underlined = contractually agreed - initially proposed by Contractor
CONDITIONS

Bold script: calculated

GENERAL

Italics = measurement
Baseline Schedule EBT 01
WBS: Emerald Book Tunnel 1 Example Annual production time in WD 313
(EXAMPLE)
Working Phase: Excavation Interruptions to production time
Working time: Shift/WD (EXAMPLE) 2 Winter Break per year in WD 12
GUIDANCE

(EXAMPLE)
hours/shift (EXAMPLE) 9 Summer Break per year in WD 12
(EXAMPLE)
WD/week (EXAMPLE) 6 Other interruptions per year in WD 12
(EXAMPLE)
Work Category (EXAMPLE) Unitit Production rate, Estimation Calculus Valuation
(EXAMPLE) Unit per WD
(EXAMPLE) Quantity Time WD Measured Adjusted
(EXAMPLE) (EXAMPLE) Quantity time
FORMS

Tunnel Cross Section

Excavation section 1 (see GBR drawing XX) m 10.00 500.00 50.00

Excavation section 2 (see GBR drawing YY) m 1.00 500.00 500.00

E
m
Total 1.82 1000.00 550.00
Total PL 550.00
Hindrances due to (EXAMPLES):
- Excavation of niches in Tunnel 1 (see piece 0.50 5.00 10.00
GBR drawing ZZ)
m 8.00 20.00 2.50
- Reduction of round length, instructed by
the Engineer
AM

Reduction from 4m to 3m in SS 1 m 8.00 20.00 2.50

Reduction from 2m to 1m in SS 2 m 4.00 20.00 5.00
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

- Geological overbreaks
Mucking of geological overbreak m3 500.00 50.00 0.10
Filling with Shotcrete m3 180.00 50.00 0.28
- Other hindrances (SPECIFY) [production rate] [quantity] [WD]
Interruptions for (EXAMPLES):
EX

- Drilling probe holes at face, SS1 m 100.00 0 0

- Drilling probe holes at face, SS2 m 50.00 0 0
- Other interruptions (SPECIFY) [unit] [production rate] [quantity] [WD]
- Interruptions due to Employer or outside Team hours 20.00 1.11
GBR conditions
Hindrances resulting from water seepage in
face area L1
Reduction factor Reduction factor Team hours
(EXAMPLE) (EXAMPLE)
5 - 10 l/s 1 h 100.00 5.56
10.1 - 30 l/s 1 h 50.00 2.78
other quantity h [quantity] [WD]
(SPECIFY)
Total Interruptions and hindrances during production time 29.82
Interruptions to production time:
- Winter Break WD 12 24
- Summer Break WD 12 24
- Other interruptions WD 4 8
Total Interruptions to production time (WD): 56.0
Total Interruptions (WD): 85.8
Total Working phase (WD): 635.8
Total Working phase on the critical path (Calendar days): 741.5
Duration excavation time month 24.4
week 105.9
year 2.0
Difference between construction time for valuation purposes and planned time WD
week
Milestones (EXAMPLES): Start date, Excavation Tunnel 1: 5/1/2019
92 Completion date, Excavation Tunnel 1: 5/11/2021

© FIDIC & ITA 2019 Conditions of Contract for Underground Works

 Example Schedule of Baselines - LINING
Normal script = quantity estimated by the Employer WD = Working Days
Underlined = contractually agreed - initially proposed by Contractor

CONDITIONS
Bold script: calculated

GENERAL
Italics = measurement
Baseline Schedule EBT 011
WBS: Emerald Book Tunnel 1 Example Annual production time in WD 365
(EXAMPLE)
Working Phase: Lining Interruptions to production time
Working time: Shift/WD (EXAMPLE) 3 Winter Break per year in WD 12

GUIDANCE
(EXAMPLE)
hours/shift (EXAMPLE) 8 Summer Break per year in WD 12
(EXAMPLE)
WD/week (EXAMPLE) 7 Other interruptions per year in WD 18
(EXAMPLE)
Work Category (EXAMPLE) Unitit Production rate, Estimation Calculus Valuation
(EXAMPLE) Unit per WD
(EXAMPLE) Quantity Time WD Measured Adjusted
(EXAMPLE) (EXAMPLE) Quantity time

FORMS
Tunnel Cross Section
Lining section 1 (see GBR drawing XX) m 12.00 500.00 41.67

Lining section 2 (see GBR drawing YY) m 6.00 500.00 83.33

E
m
Total 8.00 1000.00 125.00
Total PL 125.00
Hindrances due to (EXAMPLES):
- Lining of niches in Tunnel 1 (see GBR piece 0.25 5.00 20.00
drawing ZZ)
- Other hindrances (SPECIFY) [unit] [production rate] [quantity] [WD]
Interruptions for (EXAMPLES):
- Survey by Employer day 1.00 5.00 0
AM

- Other interruptions (SPECIFY) [unit] [production rate] [quantity] [WD]

- Interruptions due to Employer or outside Team hours 20.00 0.83
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

GBR conditions
Total Interruptions and hindrances during production time 25.83
Interruptions to production time:
- Winter Break WD 12 0
- Summer Break WD 12 12
EX

- Other interruptions WD 18 9
Total Interruptions to production time (WD): 21.0
Total Interruptions (WD): 46.8
Total Working phase (WD): 171.8
Total Working phase on the critical path (Calendar days): 171.8
Duration lining time month 5.6
week 24.5
year 0.5
Difference between construction time for valuation purposes and planned time WD
week
Milestones (EXAMPLES): Start date, Lining Tunnel 1: 5/12/2021
Completion date, Lining Tunnel 1: 10/30/2021

93
© FIDIC & ITA 2019
 Example Completion Schedule
Bold script = Requested by Employer WD = Working Days
Underlined = contractually agreed - initially proposed by Contractor
CONDITIONS
GENERAL

Completion Schedule
Baseline Predecessor
WBS No.
Milestone (EXAMPLE) Schedule
(EXAMPLE) Baseline
(EXAMPLE) Date WBS No. Date Activity [d] Float [d]
Schedule
(EXAMPLE) (EXAMPLE) (EXAMPLE) (EXAMPLE) (EXAMPLE)
(EXAMPLE)
GUIDANCE

E
1.01 Commencement Date 1/1/2019 - - - - -

1.11 Start Excavation EBT 01 EBT01 1.01 - 1/1/2019

PL
1.12 End Excavation EBT 01 EBT01 5/11/2021 1.11 EBT01

1.21 Start Lining EBT 01 EBT011 5/12/2021 1.12 EBT01 5/11/2021 1 -

FORMS

1.22 End Lining EBT01 EBT011 10/30/2021 1.21 EBT011 5/12/2021 172 -

1.31
Start Electromechanical
Equipment
AM - 7/11/2021 1.21 EBT011 5/12/2021 60 -
End Electromechanical
1.32 - 5/30/2022 1.22 EBT011 10/30/2021 211 -
Equipment
1.32 - 5/30/2022 1.31 - 7/11/2021 211 112*
End, Dismantling Site
1.41 - 7/29/2022 1.32 - 5/30/2022 60 -
EX

Installation
Completion Date proposed by Contractor
1.02 7/29/2022 1.41 - 7/29/2022 - -
and agreed
Completion Date requested
1.02 30/09/20221) 63**
by Employer 1)
1)
Superseded by agreed Completion Date
* Contractor’s Float
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

** Employer’s Float

94
© FIDIC & ITA 2019 Conditions of Contract for Underground Works
 © FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Bold script = Requested by Employer or proposed by Contractor WD = Working Days

Underlined = contractually agreed - initially proposed by Contractor

Equipment Item
Power Energy Departure
Caracteristic Arrival on site Availabilty REMARKS
source from site (EXAMPLE:
BoQ Item No. (Weight,
Year of Number Used for Asset Value
EXAMPLE Brand Model Diameter, electricity/
Type (EXAMPLE) Commissioning [kW] of items WBS Nos. (New/Used)
(EXAMPLE) (EXAMPLE) Bucket diesel/
(EXAMPLE) (EXAMPLE) (EXAMPLE) (EXAMPLE) [date] [weeks] [date] of Equipment)
capacity etc) gasoline/
(EXAMPLE) (EXAMPLE) (EXAMPLE) (EXAMPLE)
other (what)

© FIDIC & ITA 2019

(EXAMPLE)
1.11, 1.12,
261.191 Wheel Loader X a-bcd 2015 150 2 cum D 2.0 2/1/2019 125 6*25/2021
1.31-1.33
271.235 Hydraulic caterpillar backhoe 1 cum D 1.0

351.101 Air compressor 15 cum E

E 2.0

373.221 Ventilator 12cum/sec E 2.0

L
561.332 Dump truck 25 cumP D 4.0
3-arm electro-hydraulic drill 5 m drill
647.233 E 2.0
rig length
851.111 Concrete spraying robot M 10 cum/hr D 2.0

861.001 Grouting equipment E 1.0

X A
Example Schedule of Contractor’s Key Equipment

95
FORMS GUIDANCE GENERAL
CONDITIONS
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE
 GENERAL CONDITIONS

FIDIC® Conditions of Contract for

GUIDANCE FOR THE
UNDERGROUND WORKS PREPARATION OF
PARTICULAR CONDITIONS
AND ANNEXES: EXAMPLE
DESIGNED BY THE CONTRACTOR FORMS OF SECURITIES

ACCORDING TO THE REFERENCE

DESIGN BY THE EMPLOYER AND THE
GEOTECHNICAL BASELINE REPORT

Forms of Letter of Tender, Contract Agreement and

Dispute Adjudication Agreement
GUIDANCE FOR THE
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

PREPARATION OF
TENDER DOCUMENTS
AND ANNEXES: TABLE
OF CONTENTS OF
THE GEOTECHNICAL
BASELINE REPORT,
EXAMPLE FORMS
OF SCHEDULE OF
BASELINES, COMPLETION
SCHEDULE, SCHEDULE
OF CONTRACTOR’S KEY
EQUIPMENT

FORMS OF LETTER OF
TENDER, LETTER OF
ACCEPTANCE, CONTRACT
AGREEMENT AND
DISPUTE ADJUDICATION/
AVOIDANCE AGREEMENT
In collaboration with

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSULTORES
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE
 LETTER OF TENDER

CONDITIONS
GENERAL
NAME OF CONTRACT:

TO:

We have examined the Particular Conditions Part A – Contract Data, the Completion Schedule,
the Schedule of Baselines, the Particular Conditions Part B – Special Provisions, the Geotechnical

GUIDANCE
Baseline Report, the General Conditions, the Employer’s Requirements, the other Schedules, the
Geotechnical Data Report, the Contract Risk Management Plan, the Contract Risk Register and
the Addenda Nos ________________________ for the above-named Contract and the words and
expressions used herein shall have the meanings assigned to them in the Conditions of Contract. We
have examined, understood and checked these documents and have ascertained that they contain
no errors or other defects. We accordingly offer to design, execute and complete the Works and
remedy any defects therein, in conformity with this Tender which includes all these documents and

FORMS
the enclosed Proposal, for the sum of

___________________________________________________________________________
[currency and amount in figures]

___________________________________________________________________________
[currency and amount in words]

or such other amount as may be determined in accordance with the Contract.

We agree to abide by this Tender until ___________________ [date] and it shall remain binding upon
us and may be accepted at any time before that date.

If this offer is accepted, we will provide the specified Performance Security, commence the Works
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

as soon as is reasonably practicable after the Commencement Date, and complete the Works in
accordance with the above-named documents within the Time for Completion. We guarantee that
the Works will then conform with the Schedule of Performance Guarantees.

Unless and until a Contract Agreement is prepared and executed this Letter of Tender, together with
your written acceptance thereof, shall constitute a binding contract between us.

We understand that you are not bound to accept the lowest or any tender you may receive.

Signature _____________________________________________________________ in the capacity of

_______________________________

duly authorised to sign tenders for and on behalf of ________________________________________

Address:___________________________________

Date: ________________________________

i
 LETTER OF ACCEPTANCE •
CONDITIONS
GENERAL

NAME OF CONTRACT:______________________

CONTRACT NUMBER:_______________________

TO:_______________________________________
GUIDANCE

Date:______________________________________

Your Reference:_____________________________

Our Reference:_____________________________
FORMS

We thank you for your Tender dated _____________________________________ for the design,
execution and completion of the Works comprising the above-named Contract and remedying of
defects therein so that they are fit for the purposes defined in the Contract, all in conformity with the
terms and conditions contained in the Contract.

We have pleasure in accepting your Tender for the Accepted Contract Amount of:

__________________________________________
[currency and amount in figures]

__________________________________________
[currency and amount in words]

In consideration of you properly and truly performing the Contract, we agree to pay you the Accepted
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Contract Amount or such other sums to which you may become entitled under the terms of the
Contract, at such times and as prescribed by the Contract.

We acknowledge that this Letter of Acceptance creates a binding Contract between us, and
we undertake to fulfil all our obligations and duties in accordance with the terms of this Contract.

Signed by:_________________________________ (signature)

For and behalf of:___________________________

Date:______________________________________

__________________________________________
•
Memoranda (if any) to be annexed [see Sub-Clause 1.1.50]

ii © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 CONTRACT AGREEMENT

CONDITIONS
GENERAL
This Agreement made the_________________ day of____________________ __________________
Between____________ of__________________ (hereinafter called “the Employer”) of the one part,
and________________ of__________________ (hereinafter called “the Contractor”) of the other part

Whereas the Employer desires that the Works known as _______________________________ [name

GUIDANCE
and number of the Contract] should be executed by the Contractor, and has accepted a Tender by
the Contractor for the execution and completion of these Works and the remedying of any defects
therein,

The Employer and the Contractor agree as follows:

1. In this Agreement words and expressions shall have the same meanings as are respectively
assigned to them in the Conditions of Contract hereinafter referred to.

FORMS
2. The following documents shall be deemed to form and be read and construed as part of this
Agreement:
(a) the Letter of Acceptance dated ________________;
(b) the Letter of Tender dated _________________;
(c) the Addenda Nos ___________________;
(d) the Particular Conditions Part A – Contract Data, the Completion Schedule and the
Schedule of Baselines;
(e) the Particular Conditions Part B – Special Provisions;
(f) the Geotechnical Baseline Report;
(g) the General Conditions;
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

(h) the Employer’s Requirements;

(i) the other Schedules;
(j) the Contractor’s Proposal;
(k) the JV Undertaking*; and
(l) the Geotechnical Data Report, the Contract Risk Management Plan and the Contract
Risk Register.
* [if the Contractor constitutes an unincorporated JV, otherwise delete]

3. In consideration of the payments to be made by the Employer to the Contractor as hereinafter

mentioned, the Contractor hereby covenants with the Employer to design, execute and
complete the Works and remedy any defects therein, in conformity with the provisions of the
Contract.

4. The Employer hereby covenants to pay the Contractor, in consideration of the design,
execution and completion of the Works and the remedying of defects therein, the Contract
Price at the times and in the manner prescribed by the Contract.

In Witness whereof the parties hereto have caused this Agreement to be executed the day and year
first before written in accordance with their respective laws.

iii
 SIGNED by:______________________________ SIGNED by:______________________________
CONDITIONS

for and on behalf of the Employer in the for and on behalf of the Contractor in the
GENERAL

presence of presence of
Witness:_________________________________ Witness:_________________________________
Name:___________________________________ Name:___________________________________
Address:_________________________________ Address:_________________________________
GUIDANCE

Date:____________________________________ Date:____________________________________
FORMS
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

iv © FIDIC & ITA 2019 Conditions of Contract for Underground Works

 DISPUTE AVOIDANCE/ADJUDICATION AGREEMENT

CONDITIONS
GENERAL
[All italicised text and any text within square brackets (except Sub-Clause headings) in this form of
agreement is for use in preparing the form and should be deleted from the final product].

Name and details of the Contract _______________________________________________________

____________________________________________________________________________________

GUIDANCE
This Agreement made the ______day of ______ [month], _____ [year], between

Name and contact details of the Employer __________________________________________ (name)

________________________________________ (address)
______________________________________ (telephone)
_______________________(email / other contact details);

FORMS
Name and contact details of the Contractor_________________________________________ (name)
________________________________________ (address)
______________________________________ (telephone)
_______________________(email / other contact details);

and

Name and contact details of the DAAB Member_____________________________________ (name)

________________________________________ (address)
______________________________________ (telephone)
_______________________(email / other contact details);
(“DAAB Agreement”)
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

Whereas:
A. the Employer and the Contractor have entered (or intend to enter) into the Contract;

B. under the Contract, the “DAAB” or “Dispute Avoidance/Adjudication Board” means the
sole member or three members (as stated in the Contract Data of the Contract) so named in
the Contract, or appointed under Sub-Clause 21.1 [Constitution of the DAAB] or Sub-Clause
21.2 [Failure to Appoint DAAB Members] of the Conditions of Contract;

C. the Employer and the Contractor desire jointly to appoint the above-named DAAB Member
to act on the DAAB as:
(a) the sole member of the DAAB, and where this is the case, all references to the “Other
Members” do not apply; or
(b) one of three members / chairperson [delete the one which is not applicable] of the
DAAB and, where this is the case, the other two persons are:

_________________________________ (name) _________________________________ (name)

_______________________________ (address) _______________________________ (address)
______________________________(telephone) ______________________________(telephone)
_________________________________ (email / _________________________________ (email /
other contact details) other contact details)

the “Other Members”; and

D. the DAAB Member accepts this appointment.

v
 The Employer, Contractor and DAAB Member jointly agree as follows:
CONDITIONS
GENERAL

1. The conditions of this DAAB Agreement comprise:

(a) Clause 21 [Disputes and Arbitration] of the Conditions of Contract, and any other
provisions of the Contract that are applicable to the DAAB’s Activities; and
(b) the “General Conditions of Dispute Avoidance/Adjudication Agreement”, which is
appended to the General Conditions of the “Conditions of Contract for Construction”
GUIDANCE

Second Edition 2017 published by FIDIC (“GCs”), as amended and/or added to by the
following provisions.

2. [Details of amendments to the GCs, if any. For example:

In the procedural rules annexed to the GCs, Rule _ is deleted and replaced by: “ … “]

3. The DAAB Member shall be paid in accordance with Clause 9 of the GCs. The currency of
FORMS

payment shall be ________.

In respect of Sub-Clauses 9.1 and 9.2 of the GCs, the amounts of the DAAB Member’s
monthly fee and daily fee shall be:
monthly fee___________________ per month, and
daily fee of____________________ per day
(or as otherwise set under Sub-Clause 9.3 of the GCs).

4. In consideration of the above fees, and other payments to be made to the DAAB Member
in accordance with the GCs, the DAAB Member undertakes to act as DAAB Member in
accordance with the terms of this DAAB Agreement.

5. The Employer and the Contractor shall be jointly and severally liable for the DAAB Member’s
© FIDIC 2019 - DISCUSSION PAPER ONLY - NOT FOR CONTRACT USE

fees and other payments to be made to the DAAB Member in accordance with the GCs.

6. This DAAB Agreement shall be governed by the law of _____________ (if not stated, the law
that governs the Contract under Sub-Clause 1.4 of the Conditions of Contract).

SIGNED by:________________ SIGNED by:________________ SIGNED by:________________

Print name:_________________ Print name:_________________ the DAAB Member

Title:______________________ Title:______________________ Title:______________________
for and on behalf of the for and on behalf of the
Employer Contractor
in the presence of in the presence of in the presence of
Witness:___________________ Witness:___________________ Witness:___________________
Name:_____________________ Name:_____________________ Name:_____________________
Address:___________________ Address:___________________ Address:___________________
__________________________ __________________________ __________________________

Date:______________________ Date:______________________ Date:______________________

vi © FIDIC & ITA 2019 Conditions of Contract for Underground Works