PROPOSAL FOR A COUNCIL DECISION ADOPTING THE GENERAL REGULATIONS, GENERAL CONDITIONS AND PROCEDURAL RULES ON CONCILIATION AND ARBITRATION FOR WORKS, SUPPLY AND SERVICE CONTRACTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND ( EDF ) CONCERNING THEIR APPLICATION IN THE ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES WITH THE EUROPEAN ECONOMIC COMMUNITY
Date: 1991-07-31
Institutions: European Commission
Subjects: European Development Fund, association agreement (EU), overseas countries and territories, services contract, supplies contract, works contract

COMMISSION OF THE EUROPEAN  COMMUNITIES 

C0M(91) 151 final 

Brussels,  31 July 1991 

Proposal  for a 

COUNCIL  DECISION 

adopting  the General  Regulations, General  Conditions and 

Procedural  Rules on Conciliation and Arbitration for 

Works, Supply and Service Contracts  financed by the 

European  Development  Fund  (EDF) concerning  their 

application  in the association of the overseas 

countries and territories with the 

European  Economic  Community 

(presented by the Commission) 

m 

iES 

S tA 

-  2 -

Œ M U N I C A T I ON FRCM THE COMMISSION TO THE COUNCIL 

Draft  Commission  proposal  concerning  draft  for  a  Council  Decision 
adopting  the General  Regulations, General  Conditions  and  Procedural 
Rules  on Conciliation  and Arbitration  for Works,  Supply  and  Service 
contracts  financed  from  the  resources  of  the  EDF  concerning  their 
application  in  the  association  of  the  Overseas  Countries  and 
Territories with  the European Economic Community. 

Articles  211  to  213  of  the  proposal  for  a  Council  Decision  on  the 
association  of  the  Overseas  Countries  and  Territories  (OCT)  with  the 
European  Economic  Corrmunity  (  OCM  (90)  387  )  which  relate  to  the 
application  of  rules  on  competition  and  preferences,  provide  that  the 
Commission  shall  submit  a  proposal  for  General  Regulations,  General 
Conditions  and Arbitration Regulation  concerning Works,  Supply  and  Service 
contracts  financed  from the EDF in the OCT. 

The  objective  of  the  General  Regulations,  General  Conditions  and 
Arbitration  Regulation  is to maintain  a certain uniformity  in the field  of 
award  and  execution of contracts financed  by the EDF. 

Following Articles  305  to 307 of Lome  IV,  the ACP-EEC Council  of Ministers 
in 1990 has adopted  rules and  regulations  for EDF financed  contracts  in the 
ACP  States.  Indeed,  the  present  proposal  is  based  on  the  same  General 
Regulations,  General  Conditions  and  Arbitration  Regulation  as will  apply 
for  the ACP States.  However, some modifications have had  to take place  in 
view of  the  special  nature  of  the OCT  compared  to  the ACP  States.  These 
modifications are detailed  in the enclosed  "Explanatory Note". 

- 3 -

Proposal  for a 

COUNCIL  DECISION 

adopting  the General  Regulations, General  Conditions and 

Procedural  Rules on Conciliation and Arbitration for 

Works, Supply and Service Contracts  financed  by  the 

European Development  Fund  (EDF) concerning  their 

application  in the association of  the overseas 

countries and  territories with  the 

European  Economic Community 

THE COUNCIL OF THE EUROPEAN  COMMUNITIES, 

Having  regard  to  the  Treaty  establishing  the  European  Economic  Community, 

and  in particular Article  136 thereof» 

Having  regard  to  the Council  Decision  of 

1991  on  the  association  of  the 

Overseas Countries and Territories with  the European Economic Community,  and 

in particular Articles 211, 212 and 213 thereof, 

Having  regard  to the proposal  of  the Commission, 

Whereas  it  is  necessary  to  adopt  the  General  Regulations  and  General 

Conditions  governing  works,  supply  and  service  contracts  financed  from  the 

resources  of  the  European  Development  Fund  (EDF),  administered  by  the 

Commission; 

Whereas  it  is  necessary  to  adopt  Procedural  Rules  on  Conciliation  and 

Arbitration of Contracts  financed  from  the resources of  the EDF; 

Whereas  the Council, by adopting  this Decision has paid particular  regard  to 

the  similar  documents  adopted  for  the use of  funds  from  the  EDF  in the ACP 

States, 

HAS DECIDED AS  FOLLOWS 

-  4 -

Article 1 

The  General  Regulations  for  Works, Supply  and  Service  Contracts  financed  by 

the  European  Development  Fund  (EDF)  in  the  Overseas  Countries  and 

Territories,  appearing  in Annex  I, shall  apply  to  the  preparation  and  award 

of  contracts  financed  from  the  resources of  the  EDF. 

The  performance  of  contracts  financed  from  the  resources  of  the  EDF  shall, 

except  as otherwise  provided  in Article  212  (b) of  the  Council  Decision  [of 

1991],  be governed  by: 

the  General  Conditions  for  Works  Contracts  financed  by  the  EDF, 

appearing  in Annex  II; 

the  General  Conditions  for  Supply  Contracts  financed  by  the  EDF, 

appearing  in Annex  III; 

the  General  Conditions  for  Service  Contracts  financed  by  the  EDF, 

appearing  in Annex  IV. 

Disputes  relating  to  a  contract  financed  from  the  resources  of  the  EDF 

which,  pursuant  to  the  General  Conditions  and  the  Special  Conditions 

applicable  to  the  contract,  are  to  be  settled  by  conciliation  or 

arbitration,  shall  be  settled  In  accordance  with  the  Procedural  Rules  on 

Conciliation  and  Arbitration  of  Contracts  financed  by  the  EDF,  appearing  in 

Annex  V. 

-  5 -

Article  2 

This Decision  shall  apply  to all  public  contracts  financed  by  the  EDF  in the 

Overseas  Countries  and  Territories,  and  concluded  as  from  1 June  1991. 

Article  3 

This  Decision  shall  be  published  in  the  Official  Journal  of  the  European 

Commun i t i es. 

Done  at  Brussels, 

For  the Council 

The  President 

- 6 -

DRAFT 

GENERAL REGULATIONS 

GENERAL  CONDITIONS 

AND 

ARBITRATION REGULATION 

APPLICABLE IN 

THE OCT 

- 7 -

EXPLANATORY MEMORANDUM 

Subject: 

General  Regulations,  General  Conditions  and  Arbitration 
Regulation applicable in the OCT 

1. 

The  General  Regulations,  the General  Conditions  and  the Arbitration 
Regulation  -  in  the  following  collectively  referred  to as  the GCC -
consist of five documents: 

the  General  Regulations  for  W)rks,  Supply  and  Service 
Contracts financed by the EDF, 

the General Conditions for Works Contracts, 

the General Conditions for Supply Contracts, 

the General Conditions for Service Contracts, and 

the  Procedural  Rules  on  Conciliation  and  Arbitration  of 
Contracts. 

2. 

3. 

The documents are based on the GOC already agreed with the ACP States. 
However, modifications  have  had  to  be made  taking  into  account  the 
draft Council Decision (OCM (90) 387) as well  as some of the specific 
features applicable to the ACP States which do not concern the OCT. 

Compared with  the GCC applicable  to the ACP States, the draft for the 
GCC  applicable  to  the  OCT  has  the  following  amendments  and 
modifications: 

General Regulations 

Wiere  apropriate  the  term  "ACP  States" has  been  replaced  either  by 
"OCT" or by "country or territory". 

Article 1 : 

Reference to the 7th EDF has been deleted. 

Article 3.1  :  Definitions of "OCT" and "Council Decision" have been 

added. 

Definition of "Companies or Firms" has been amended in 
accordance with the Draft Decision. 

Article 4.1  :  The  origin  of  the  supplies  has  been  modified  in 

accordance with the Draft Decision. 

- 8 -

Article  5 (a) : Modified  to  ensure  publication  in  EBC  and  OCT 
concerned  as  well  as  other  appropriate  information 
media  in the region. 

Article 7.5 and 7.9  :  "ACP State" replaced by "Contracting 

Authority". 

Article 7.11  :  "National  Authorizing  Officer"  replaced  by  "Local 

Authorizing Officer". 

Article 22.1  :  "temporary associations" replaced by "joint ventures". 

Article 22.2  :  Modified  in accordance with  the Draft Decision. 

Article 24.4 and 24.5  :  Contents has been rearranged, however, pre 

serving  the  contractor's  right  to  be  paid  in Foreign 
Currency at a fixed  exchange rate. 

Article 26.1  :  The minimum for  tender guarantees has been deleted. 

Article 33.3  :  "and with  the Convention" has been deleted. 

Article 36.2  :  The  last  two  indents have  been deleted  since  they are 

already part  of the main body of the article. 

Article 41.2  :  Has been deleted  in view of the change  in Article  1. 

General Conditions  for Aftforks Contracts 

Article  1.1  :  Definitions  of  "OCT" and  "Council Decision" have  been 

added. 

Definitions of "ACP States" and "Convention" have been 
deleted. 

"ACP State" has been replaced by "OCT". 

Article 68.5  :  "Convention" has been replaced by "Council Decision". 

(b)(i) has  been deleted  giving  full  effect  to  the new 
EDF  Arbitration  Regulation  for  all  transnational 
contracts. 

General Conditions  for Supply Contracts 

The  same modifications  as for Works. 

General Conditions  for Service Contracts 

The  same modifications as for Works. 

- 9 -

Procedural Rules on Conciliation  and Arbitration of Contracts 

"Where appropriate  the term "ACP States" has been replaced  by "OCT". 

Article 2  : 

Definitions  of  "ACP  State",  "Convention"  and  "Council 
of Ministers" deleted. 

Definitions  of "OCT" and "Council Decision" added. 

Article 5.3  :  Nationality  status modified. 

Article  6  : 

Nationality  status modified. 

Article  34.1  :  Nationality  status modified. 

Article 34.2  :  Reference  to "the Secretary General  of  the ACP General 

Secretariat" deleted. 

- 10 -

ANNEX I 

GENERAL REGULATIONS 
FORWDRKS,  SUPPLY, AND  SERVICE 
CONTRACTS FINANCED BY THE 
EUROPEAN DEVELOPMENT  FUND 

IN THE OCT 

-  11 

-

TABLE  OF  ODNIENTS 

INTRODUCTION 

Article  1 -Conditions 
Article  2 - National Law 

DEFINITIONS AND PRINCIPLES 

Article  3 -Definitions 
Article  4 - Eligibility 
Article  5 - Equality of Participation 
Article  6 - Derogation 
Article  7 -Competition 
Article  8 - Design Competition 
Article  9 - Preference 
Article 10 - Types of Contract 
Article 11 - Technical Specifications and Standards 
Article 12 - Notices and "Written Communications 

INVITATION TO TENDER 

Article 13 - Notice of Invitation to Tender 
Article 14 - Pre-selection of Tenderers 
Article 15 - Direct Agreement Contracts 

TENDER DOSSIER 

Article 16 - Contents of Tender Dossier 
Article 17 - Clarification of Tender Information 
Article 18 - Amendments to Tender Dossier 

INSTRUCTIONS TO TOCERERS 

Article 19 - Language 
Article 20 - Contents of the Tender 
Article 21 - Lots 
Article 22 - Co-operation with Third Parties 
Article 23 - Independence of Tenderers 
Article 24 - Pricing of Tenders 
Article 25 - Period of Validity 
Article 26 - Tender Guarantee 

Page 

13 
14 

14 
17 
19 
20 
20 
23 
24 
25 
26 
26 

26 
28 
29 

29 
31 
31 

32 
32 
33 
34 
35 
35 
36 
37 

-  12 -

Article  27 - Variant  Solutions 
Article 28 - Pre-tender Visit 
Article 29 - Signing of Tenders 

SUBMISSION OF TENDERS 

Article 30 - Time Limit 
Article  31  - Sealing and Marking  of Envelopes 
Article 32 -Withdrawals  and Amendments 

EXAMINATION OF TENDERS 

Article 33 - Opening  of Tenders 
Article 34 - Evaluation of Tenders 
Article  35 - Annulment  of the Tender Procedure 

JSfMSDOP CONTRACT 

Article  36 - Selection 
Article 37 - Notification of Award 
Article  38 - Preparation of Contract Document 
Article  39 - Signing of the Contract 
Article 40 - Performance Guarantee 

GENERAL AND FINAL PROVISIONS 

Article 41  - General  and Final Provisions 

Page 

38 
39 
39 

40 
41 
41 

42 
43 
45 

46 
47 
48 
48 
49 

49 

- 13 -

INIHODUCTICN 

ARTICLE 1 

Conditions 

1.1 

The  award  of W)rks,  Supply  and  Service  contracts  financed  from  the 
resources  of the European Development  Fund  (EDF) shall be governed by 
these General Regulations. 

1.2  The performance  of W>rks, Supply and Service Contracts  financed  from 

the  resources  of  the  European Development  Fund  (EDF)  shall  be  gov 
erned by:-

a) the General Conditions  applicable  to each category of contract fi 

nanced by the EDF, or 

b) in the case of co-financed projects  and programmes,  or where dero 
gation to third parties has been granted, or  in accelerated proce 
dures or  in other appropriate  cases, such other General Conditions 
as may be agreed by the country or territory concerned  and  the Eu 
ropean Economic Comrunity (EEC),  i.e:-

i) 

the General  Conditions  prescribed  by  the  national  legisla 
tion  of  the  country  or  territory  concerned  or  its  estab 
lished practices  regarding  international  contracts, or 

ii)  any  other  international  General  Conditions  for  contracts, 

and 

c) the Special Conditions. 

1.3 

These General  Regulations  comprise  the principles  and  conditions  for 
participation  in contracts,  instructions  to  tenderers,  and  the prin 
ciples and conditions  for  the award of contracts. 

1.4  The  General  Conditions  governing  a  particular  category  of  contract 
comprise  contractual  clauses  of  an  administrative,  financial,  legal 
and  technical nature  relating  to the performance  of contracts. 

1.5  The Special Conditions  applicable  to each contract  comprise:-

a) amendments  to the General Conditions; 

b) special  contractual  clauses; 

c) technical  specifications; and 

d) any other matter  related  to the contract. 

- 14 -

ARTICLE 2 

National Law 

In all matters which are not  covered by  these General Regulations, 
the national law of the State of the Contracting Authority shall ap 
ply. 

DEFINITIONS AND PRINCIPLES 

ARTICLE 3 

Definitions 

3.1  The definitions which  shall apply  to these General Regulations are 

the following: 

EEC: the European Economic Conminity. 

ECF: the European Development Fund. 

Council Decision: the Council Decision ../.../EEC of 

on the 

association  of  the Overseas Countries  and Territories with 
the EBC. 

OCT: the countries and terrritories associated with the EBC by the 

Council Decision. 

ACP States: the African, Caribbean and Pacific States which are sig 

natories to the Convention. 

Comnission: the Conmission of the European Comnunities. 

Delegate: the representative of the Conmission in the OCT. 

Member States: the Member States of the European Economic Community. 

Convention: the relevant Convention between the ACP States and the 

EBC. 

Contracting Authority: the State or the legal person governed by pub 

lic or private law which concludes the contract or on behalf 
of which the contract is concluded. 

The State of the Contracting Authority:  the OCT on whose territory 

theW>rks, Supply or Service contract is to be executed 

Tenderer: any natural or legal person or group of such persons sub 

mitting a tender, with a view to concluding a contract. 

15 -

Successful Tenderer: the Tenderer  selected after an invitation to 

tender  procedure  or,  in  the  case  of  direct  agreement  con 
tracts, the Tenderer who  signs the contract. 

Supervisor: the government department, legal person governed by pub 

lic  law,  or  the  natural  or  legal  person  designated  by  the 
Contracting Authority  in accordance with  the law of the State 
of  the Contracting Authority, who  is responsible  for direct 
ing and/or monitoring  the performance  of the contract, and to 
Whom  the  Contracting  Authority  may  delegate  rights  and/or 
powers under  the contract. 

Supervisor's Representative: any natural or legal person, designated 

by the Supervisor as such under  the contract and empowered to 
represent  the Supervisor  in the performance  of his functions, 
and  in exercising  such rights and/or powers as have been del 
egated  to  him. Accordingly, Where  functions,  rights  and/or 
powers  of  the  Supervisor  are  delegated  to  the  Supervisor's 
Representative,  references  to  the  Supervisor  include  the 
Supervisor's Representative. 

W)rks:  the temporary and permanent works  to be carried out under  the 

contract. 

Supplies: all  items Which the Supplier  is required  to provide  to the 
Contracting  Authority,  including, where  necessary,  services 
such  as  installation,  testing,  conmissioning,  provision  of 
expertise,  supervision,  maintenance,  repair,  training  and 
other  such  obligations  connected with  the  items  to  be  pro 
vided under  the contract. 

Services: tasks to be performed by the Consultant under a service 

contract  such as studies, designs, provision of technical as 
sistance and  training. 

Plant: machinery, apparatus, components and all  items to be provided 

or incorporated under  the contract. 

Equipment: appliances and other machinery, and where  applicable under 
the  law  and/or  practice  of  the  State  of  the  Contracting 
Authority,  the  temporary  structures  on  the work  site,  re 
quired  for  carrying  out  the  contract  but  excluding  plant  or 
other  items required  to form part of permanent Works. 

Bill of Quantities: the document  containing an itemised breakdown of 
the  tasks  to be  carried  out  in a unit  price  contract,  indi 
cating  a  quantity  for  each  item  and  the  corresponding  unit 
price. 

Price Schedule: the completed  schedule of prices, including  the 

breakdown  of  the  overall  price,  submitted  by  the  Tenderer 
with his  tender, modified  as necessary, and forming a part of 
the unit price contract. 

-  16 -

Breakdown of the Overall Price: the itemised  list of rates and prices 
showing  the  build-up  of  the  price  in  a  lump  sum  contract, 
but which does not form part of the contract. 

Tender Price: the sum stated by the Tenderer  in his  tender for carry 

ing out the contract. 

Contract Price: the sum stated  in the contract  representing  the init 

ial estimate payable for carrying out theTAbrks, Supplies or 
Services, or such other  sum as ascertained  at the end of the 
contract as due under  the contract. 

Drawings: drawings provided by the Contracting Authority and/or by 

the Tenderer  in connection with the tender. 

Day: 

calendar day. 

Time Limits: those periods  in the contract which shall begin to run 

from the day following  the act or event which  serves  as  the 
starting  point  for  those  periods.  Should  the  last  day  of 
the period fall upon a non-working day, the period  shall ex 
pire  at  the end of  the first working day following  the  last 
day of the period. 

Writing: any handwritten, typewritten or printed  comnunication, in 
cluding  telex, cable and facsimile  transmission. 

Comnunications:  certificates, notices, orders and  instructions is 

sued under  the contract. 

National Currency: the currency of the State of the Contracting 

Authority. 

BOU: 

European Currency Unit. 

Foreign Currency: any permissible currency within the meaning of 

these General Regulations which  is not  the National Curren 
cy, and which has been indicated  in the tender. 

Terms of Reference: the statement  issued by the Contracting Authority 
giving  the definition of his  requirements  and/or  objectives 
of  the  Services,  including, where  applicable,  the  methods 
and means  to be used and/or  results  to be achieved. 

-  17 -

Companies  or Firms: companies  or firms constituted under  civil or 

conmercial  law,  including  public  or  other  companies,  co 
operative  societies  and  any other  legal  persons  or  associa 
tions  governed  by  public  or  private  law,  save  for  those 
which  are  non-profit making,  formed  in  accordance with  the 
law of  a Member  States  or  an OCT  and whose  registered  of 
fice,  central  administration  or principal  place  of  business 
is  in a Member  State  or  that OCT; however  a company  or  firm 
having  only  its  registered  office  in  a Member  State  or  an 
OCT must  be  engaged  in an activity which has  an  actual  and 
continuous  link with  the economy of  that Member  State or OCT 
concerned. 

3.2  The  headings  and  titles  in  these  General  Regulations  shall  not  be 
taken as part  thereof or be taken  into consideration  in the interpre 
tation of these Regulations. 

3.3  Wkere  the  context  so  permits words  importing  the  singular  shall  be 
deemed  to  include  the plural  and vice  versa  and words  importing  the 
masculine  shall be deemed  to include  the feminine and vice versa. 

3.4  Words  importing  persons  or parties  shall  include  firms  and  companies 

and any organization having  legal  capacity. 

ARTICLE 4 

Eligibility 

4.1 

Save where a derogation  is granted  in accordance with  the Council De 
cision and/or Article  6:-

a) participation  in  the  invitations  to  tender  and  in  award  of  con 

tracts financed  by the EDF shall be open on equal  terms to:-

i) 

natural persons, companies  or firms or public or semi-public 
agencies of  the OCT, the ACP States and  the EBC; 

ii)  cooperative  societies  and  other  legal  persons  governed  by 

public  or private  law,  save  for  those which  are non-profit-
making, of the EBC, the OCT and/or  the ACP States; 

iii)  joint ventures or groupings of OCT, ACP and/or EBC companies 

or firms. 

b) Supplies must  originate  in the EBC, the OCT and/or  the ACP States. 

4.2  Natural  persons,  companies  or  firms  shall  not  be  eligible  for  the 

award  of contracts where:-

a) they are bankrupt; 

-  18 -

b) payments  to  them have  been  suspended  in accordance with  the  judg 
ment  of a court other  than a judgment declaring bankruptcy and re 
sulting,  in accordance with  their  national  laws,  in  the  total  or 
partial  loss of the right  to administer  and dispose  of  their prop 
erty; 

c) legal  proceedings  have  been  instituted  against  them  involving  an 
order  suspending payments  and which may  result,  in accordance with 
their  national  laws,  in  a  declaration  of  bankruptcy  or  in  any 
other  situation  entailing  the  total  or  partial  loss  of  the  right 
to administer  and dispose of their property; 

d) they have been convicted, by a final  judgment, of any crime or of 

fence concerning  their professional  conduct; 

e) they are guilty of serious misrepresentation with regard  to infor 
mation  required for participation  in an invitation  to tender; 

f) they  are  in  breach  of  contract  on  another  contract  with  the 

Contracting Authority. 

4.3  To  be  eligible  for  participation  in  invitations  to  tender  and  the 
award  of  contracts, Tenderers  shall  provide  evidence  satisfactory  to 
the Contracting Authority of their  eligibility under Article 4, proof 
of  compliance with  the necessary  legal,  technical  and  financial  re 
quirements and of their capability and adequacy of resources  to carry 
out  the contract  effectively. To  this end all  tenders  submitted  shall 
include  the following  information:-

a) a document, dated  less than 90 days previously, drawn up  in accor 

dance  with  the  Tenderer's  national  law  or  practice  certifying 
that:-

he meets  the conditions  laid down  in Article 4.1; 

none of the situations  referred  to in Article 4.2 applies to 
him; 

b) copies  of original  documents  defining  the  constitution  and/or  le 

gal  status,  and  establishing  the  place  of  registration  and/or 
statutory  seat  and,  if  it  is different,  the place  of  central  ad 
ministration  of  the  company,  firm  or  partnership  or,  if  a  joint 
venture, of each party thereto constituting  the Tenderer; 

c) details of the experience and past performance  of the Tenderer  (or 
of each party to a joint venture) on contracts  of a similar nature 
within  the past  five years, and details  of other  contracts  in hand 
including  details  of  the  actual  and  effective  participation  in 
each such contract; 

d) where  applicable,  the major  items of Equipment  proposed  for use in 

carrying out  the contract; 

- 19 -

e) the  qualifications  and  experience  of  key  personnel  proposed  for 
administration  and  execution  of  the  contract,  both  at  and  away 
from the place of execution of the contract; 

f) proposals  relating  to  the  nature,  conditions  and  modalities  of 
sub-contracting wherever  the  sub-contracting  of  any  elements  of 
the contract  amounting  to more  than 10% of the Tender Price  is en 
visaged; 

g) reports  on  the  accounting  and  financial  standing  of  the Tenderer 
(or  of  each  party  to  a  joint  venture)  such  as  profit  and  loss 
statements, balance  sheets and auditor's  reports for  the past five 
years,  an  estimated  financial  projection  for  the next  two years, 
and  an  authority  from  the Tenderer  (or  authorised  representative 
of  a  joint  venture)  to  seek  references  from  the Tenderer's  bank 
ers; and 

h) information regarding any current  legal or arbitration proceedings 
or dispute  in Which  the Tenderer  is involved.  The  information re 
ferred  to  shall  be  confined  to matters  of direct  interest  to the 
award or performance  of the contract. 

ARTICLE 5 

Equality of Participation 

The OCT and  the Conmission  shall  take  the necessary measures  to en 
sure  the widest  possible participation  on equal  terms  in  invitations 
to  tender for Works, Supply and Service  contracts, including, as ap 
propriate, measures to:-

a) ensure publication  of  invitations  to  tender  in the Official  Jour 

nal  of  the EBC, the Official  Journal  of  the OCT concerned  and  any 
other  appropriate  information media,  in particular  in the OCT and 
ACP States  in the region; 

b) eliminate  discriminatory  practices  or  technical  specifications 
which might  stand  in the way  of widespread  participation  on equal 
terms ; 

c) encourage  co-operation  between  companies  and  firms  of  the Member 

States, the OCT and  the ACP States, for  example, by means  of pre-
qualification  of  joint  ventures  and  consortia  between  companies 
and firms of the Member States, the OCT and  the ACP States; 

d) ensure that all the selection criteria are specified  in the tender 

dossier; and 

e) ensure  that  the  tender  selected  conforms  to  the  requirements  of 
the  tender  dossier  and  meets  the  selection  criteria  stated 
therein. 

- 20 -

ARTICLE 6 

Derogation 

6.1  In order to ensure the optimum cost-effectiveness of the system, nat 
ural  or  legal  persons  from  non-ACP  developing  countries  may  be 
authorised to participate in contracts financed by the EBC at the re 
quest of the OCT concerned. 

6.2  The OCT concerned shall, on each occasion, provide the Delegate with 
the  information needed  for  the EBC  to decide  on  such derogations, 
particular attention being given to:-

a) the geographical location of the OCT concerned; 

b) the competitiveness of contractors, suppliers and consultants from 

the EBC, the OCT and the ACP States; 

c) the need  to avoid excessive  increases in the cost of performance 

of contracts; 

d) transport difficulties  or delays due  to delivery  times  or other 

similar problems; 

e) technology that is the most appropriate and best  suited  to local 

conditions. 

6.3  Participation by third countries, Which are not parties  to the Con 

vention, in contracts financed by the EBC may also be authorised:-

a) where the EBC participates in the financing of regional or inter 

regional schemes involving such countries; 

b) in the case of co-financed projects and programmes; 

c) in case of emergency assistance. 

6.4  In  exceptional  cases  and  in  agreement  with  the  Conmission, 
consultancy firms or experts which are nationals of third countries 
referred to in Article 6.3 may participate in Service contracts. 

ARTICLE 7 

Competition 

7.1  Save as otherwise provided  in Article 7, Wbrks and Supply contracts 
financed from the EDF shall be concluded following an open invitation 
to tender  and Service  contracts  shall be concluded  following  a re 
stricted invitation to tender. 

-  21 -

7.2  The  OCT may,  in  accordance with  the  provisions  in Article  7.3,  7.4 

and 7.7, and  in agreement with  the Conmission:-

a) place  contracts  after  restricted  invitations  to  tender  following, 

Where  applicable, a call for pre-qualification; 

b) conclude  contracts by direct  agreement; 

c) perform contracts  through public  or semi-public departments  of the 

OCT. 

7.3 

Restricted  invitation  to tender may be used:-

a) where  the urgency of the situation  is established  or where  the na 

ture,  or  certain  particular  characteristics  of  the  contracts  so 
warrant; 

b) for projects  or programmes  of a highly specialised nature; 

c) for  large-scale  contracts  after pre-qualification. 

7.4  Direct  agreement  contracts may be awarded  in the following  cases:-

a) small-scale  operations,  or  in  urgent  situations  or  short-term 

technical  cooperation schemes; 

b) emergency assistance; 

c) operations  assigned  to individual  experts; 

d) operations which are complementary  to or necessary for  the comple 

tion of others already  in hand; 

e) where  the  execution  of  the  contract  is  exclusively  reserved  for 
holders  of  patents  or  licences  to use, process  or  import  the ar 
ticles  concerned; 

f) following an unsuccessful  invitation to tender. 

7.5 

The following procedure  shall apply to restricted  invitations  to ten 
der and direct  agreement  contracts:-

a) in  the  case  of Wbrks  and  Supply  contracts,  a  short-list  of  pro 

spective Tenderers  shall  be drawn up by  the Contracting  Authority 
in agreement with  the Delegate  following, where applicable, a call 
for pre-qualification of tenders; 

b) in  the  case  of  Service  contracts,  the  short-list  of  prospective 
Tenderers  shall  be  drawn  up  by  the  Contracting  Authority,  in 
agreement  with  the Conmission,  on  the  basis  of  the  proposals  of 
the Contracting Authority  and  the proposals  submitted  by  the Com 
mission; 

- 22 -

c) in direct agreement contracts, the Contracting Authority shall en 

ter freely  into  such discussions  as  it may  consider  appropriate 
with the prospective Tenderers whom it has short-listed  in accor 
dance with Article 7.5 (a) and (b) and award the contract  to the 
Tenderer whom it has selected. 

7.6  For Service Contracts, due account shall be taken of the availability 

of suitable candidates residing in the OCT concerned. 

Direct Labour 

7.7  Contracts shall be performed by direct labour through public or semi-
public agencies or departments of the OCT concerned, where the State 
has  the qualified management  staff available  in its departments, in 
cases of emergency assistance, service contracts and all other opera 
tions the estimated cost of which is less than ECU 5 million. 

7.8  The Comnunity  shall  contribute  to  the  costs  of  the department  in 
volved  by  providing  the  equipment  and/or materials  that  it  lacks 
and/or resources to allow it to acquire additional  staff required in 
the form of experts from within the OCT concerned or other OCT or ACP 
States.  The  participation  of  the Comnunity  shall  cover  only costs 
incurred by supplementary measures and temporary expenditure relating 
to execution strictly confined to the requirements of the project in 
question. 

Emergency Assistance Contracts 

7.9  Contracts under  emergency assistance  shall be undertaken  in such a 
way as to reflect the urgency of the situation.  To this end, for all 
operations  relating  to  emergency  assistance,  the  Contracting 
Authority may, in agreement with the Delegate, authorize:-

a) the conclusion of contracts by direct agreement; 

b) the performance of contracts by direct labour; 

c) implementation through specialized agencies; 

d) direct implementation by the Commission. 

- 23 -

Accelerated Procedure 

7.10  With  the aim of ensuring  the rapid  and  effective  implementation of 
projects and programmes, an accelerated tendering procedure shall be 
used  except  as otherwise  indicated by the OCT concerned, or by the 
Commission by way  of a proposal  for  the agreement  of  the OCT con 
cerned.  The accelerated procedure for issuing invitations to tender 
shall involve shorter Time Limits for tendering and the call for ten 
der is confined to the OCT concerned and the neighbouring OCT or ACP 
States, in accordance with the rules in force in the OCT concerned. 
The accelerated procedure shall apply in the following cases:-

a) Works Contracts: the estimated  cost of Which  is less  than ECU 5 

mi 11i on; 

b) Emergency assistance: irrespective of the value of the contract. 

7.11  Byway of derogation, the OCT Authorising Officer, in agreement with 
the  Delegate, may  procure  Supplies  and/or  Services  of  a  limited 
amount Where they are available in the OCT concerned or neighbouring 
OCT or ACP States. 

7.12  In order to speed up the procedure, the OCT may request the Commis 
sion to negotiate, draw up and  conclude Service  contracts  on their 
behalf directly or through its relevant agency. 

ARTICLE 8 

Design Competition 

8.1  Wfciere the Contracting Authority, for  technical, aesthetic or finan 

cial  reasons, considers  it appropriate, an invitation to tender may 
be issued for participation in a design competition.  The design com 
petition  shall  take place  on  the basis  of  a  schedule  and criteria 
drawn up by the Contracting Authority.  Further, the following shall 
apply:-

a) The schedule may make provision for prizes to be awarded for the 
best proposals. Such prizes shall be specified by the schedule and 
awarded  to  the  originators  of  the  said  proposals  in accordance 
with  the  order  established  by  the  Contracting  Authority.  The 
Contracting Authority may withhold prizes if the proposals are not 
judged satisfactory. 

b) Unless otherwise stated in the invitation to tender, copyright in 
the proposals submitted shall belong to the competitors.  However, 
the Contracting Authority may, with the agreement of the competi 
tors, use the proposals for further development. 

8.2  The Contracting Authority may  invite  tenders for further investiga 

tion, study and design as may be necessary for further development of 
the project. 

-  24 -

8.3 

Subject  to Article  8.1  (b) and 8.2, the Contracting Authority may in 
vite  tenders  for  detailed  development  of  a  competitor's  design  and 
the preparation of documents  to the stage Where  tenders for  supply or 
construction may be  invited. 

8.4  The  Contracting  Authority  may  invite  tenders  for  design  and  build 
proposals  on a  turnkey basis.  Such  tenders  shall  be of  the  lump  sum 
type.  Tenders  shall  be assessed  according  to their  aesthetic, prac 
tical, technical  and economic merits.  No prizes  shall be offered. 

ARTICLE 9 

Preference 

9.1  Measures  shall  be  taken  to encourage  the widest  participation  of the 
natural  and  legal  persons  of  the OCT  in the performance  of  contracts 
financed by the EDF  in order  to permit  the optimization of the physi 
cal  and human  resources  of  those  countries  and  territories.  To  this 
end : -

a) For  W>rks  contracts  of  value  less  than ECU 5 million,  Tenderers 
of  the  OCT,  provided  that  at  least  one  quarter  of  the  capital 
stock and management  staff originates  from one  or more OCT, shall 
be  accorded  10% price  preference  Where  tenders  of  an  equivalent 
economic and  technical quality are  compared; 

b) For Supply contracts, irrespective of the value of these Supplies, 

Tenderers  of  the OCT Who  offer  supplies  of  at  least  50% in  con 
tract  value  of  OCT  origin  shall  be  accorded  a  15% price  prefe 
rence where  tenders  of  equivalent  economic  and  technical  quality 
are  compared; 

c) In  respect  of  Service  contracts,  given  the  required  competence, 
preference  shall  be given  to experts,  institutions  or  consultancy 
companies  or firms  from the OCT, where  tenders  of  equivalent  eco 
nomic and  technical quality are  compared; 

d) Where  sub-contracting  is  envisaged,  preference  shall  be  given  by 
the Successful Tenderer  to natural persons, companies  and firms of 
the  OCT  capable  of  performing  the  contract  required  on  similar 
terms. 

9.2 

The  threshold  and  the percentages  referred  to  in  Article  9.1 may be 
altered  on the basis of the relevant Council Decision. 

- 25 -

ARTICLE 10 

Types of Contract 

10.1  Contracts may be one of the following:-

a) lump sum contracts, where  an all-in price  shall  cover  the whole of 
the Works, Supplies  and Services which are the subject  of  the con 
tract; 

b) unit-price  contracts, ^where theW>rks, Supplies  and Services  shall 
be broken down on the basis of the Bill  of Quantities  and  the pro 
posed unit prices  shall be  indicated; 

c) cost-plus  contracts, where  the Wbrks,  Supplies  and  Services  shall 
be  priced  on  the  basis  of  actual  costs  with  an  addition  for 
overheads and profit; 

d) composite  contracts, where  the prices  shall  be  fixed  on  the basis 

of at  least  two of the methods  laid down  in Article 10.1; 

e) provisional  price  contracts, Where  in  the  exceptional  cases  pro 

vided  in Article  10.2, contracts  are awarded without  prices  being 
predetermined  after  consultation and agreement  between Contracting 
Authority and  the Tenderer, and paid for  in the manner  agreed. 

10.2  The  award  of a provisional price  contract, may only be made:-

a) Where  the  contract  is  of  a  complex  nature  or  involves  new  tech 
niques presenting  considerable  technical hazards which necessitate 
commencement  before all conditions  of execution  can be determined; 

b) in the  event  of  exceptional  and unforeseeable  circumstances,  such 
as where  the  contract  is urgent  or  the nature  and means  of execu 
tion are difficult  to determine. 

10.3  Except  for provisional  price  contracts, contracts  shall be awarded on 
the basis  of predetermined  prices.  These  prices may  be  lump-sums  or 
unit prices. 

10.4  The  instructions  to Tenderers  shall:-

a) state  the type of contract; 

b) for  cost-plus  contracts,  state  the  rules  for  calculating  the 

costs, overheads  and profit; 

c) for  composite  contracts,  state  the methods which  are  to  be  used 

for calculating  amounts  to be paid under  the contract. 

- 26 -

ARTICLE 11 

Technical Specifications  and Standards 

11.1  The  technical  specifications and methods of testing, checking, accep 

tance  and  calculation  in  each  contract, may  be  defined  in  order  of 
precedence,  by  reference  to  the  common  standards  accepted  by  the EBC 
and  the OCT  concened,  or  the  standards  of  the OCT  concerned  or  of a 
Member  State,  or  any  other  standard,  including  international  stan 
dards. 

11.2  Unless  it can be  justified  by the  subject  of  the  contract,  technical 
specifications Which mention  products  of  a  specific make  or  source, 
or a particular process, and which  therefore favour or eliminate cer 
tain  products,  shall  be  prohibited.  Such  prohibition  shall  cover 
trade marks,  patents  or  types,  or  a  specific  origin  or  production. 
However,  where  products  or  processes  cannot  be  specified  in  terms 
which  are  sufficiently  precise  and  intelligible,  they may  be  named, 
provided  that  the words  "or equivalent" are added. 

ARTICLE 12 

Notices and VJrit ten Comnuni cat ions 

12.1  Unless  otherwise  specified  in  the  Special Conditions, Communications 
between  the  Contracting  Authority  and/or  the  Supervisor  on  the  one 
hand,  and  Tenderers  or  the  Successful  Tenderer  on  the  other  hand, 
shall  be  sent  by post,  cable,  telex,  facsimile  transmission  or per 
sonal delivery,  to the appropriate  addresses designated  by these par 
ties for the purpose. 

12.2  If  the  sender  requires  evidence  of  receipt, he  shall  state  such re 
quirement  in his Communication  and  shall demand  such  evidence  of re 
ceipt whenever  there  is  a deadline  for  the  receipt  of  the  Communi 
cation.  In any  event,  the  sender  shall  take  all  the necessary mea 
sures  to ensure receipt  of his Communication. 

INVITATION TO  TOEER 

ARTICLE 13 

Notice of  Invitation to Tender 

13.1  A Contracting Authority wishing  to award  a contract  by open  tendering 
procedure  or  by  restricted  tendering  procedure  with  pre-selection 
shall make known  its  intention  by means  of a notice  published  by the 
Commission  in  the Official  Journal  of  the  EBC,  the Official  Journal 
of  the OCT  concerned  and  any other  appropriate  information media,  in 
particular  in the OCT and  the ACP States  in the region. 

- 27 -

13.2  The Contracting Authority  shall  submit  before  issuing  invitations  to 

tender  the invitation  to tender dossier  to the Delegate. 

13.3  The Delegate  shall:-

a) for  accelerated  procedures,  direct  agreement  contracts,  and  con 

tracts  for  emergency  assistance,  approve,  before  the  Contracting 
Authority  issues  them,  the  invitation  to  tender  dossier within  30 
days of  its submission  to him by the Contracting Authority; 

b) for  all  cases  other  than  those  mentioned  in  Article  13.3  (a) 
above, transmit  the invitation  to tender dossier  to the Commission 
for  approval  within  30  days  of  its  submission  to  him  by  the 
Contracting Authority. 

13.4  In  an  open  tendering  procedure,  the  notice  of  invitation  to  tender 

shall state:-

a) the  subject,  purpose  and  extent  of  the  contract;  if  the  contract 
is  subdivided  into  several  lots,  the  order  of magnitude  of  the 
different  lots  and  the possibility  of  tendering  for  one,  several 
or  all  of  the  lots;  the  possibility  of  submitting  variant  solu 
tions where  authorised;  if  the  notice  concerns  an  invitation  to 
tender for a design-and-build competition,  the design  criteria and 
other  requirements  necessary  for  Tenderers  to  understand  the 
scope of the contract  and to tender  accordingly; 

b) eligibility  criteria  and  any  important  or  unusual  tender  evalua 

tion criteria  (e.g. margin of preference); 

c) the  location  of  the project,  the  source  of  financing,  the  period 
of  performance,  and  in  the  case  of  Supplies  contracts,  the  place 
of delivery and/or  installation; 

d) the Contracting Authority,  and  the name and address of the depart 

ment  awarding  the contract; 

e) the method  of tendering,  the place where  the tender dossier may be 

inspected  and  the terms on which  it may be acquired; 

f) the period,  reckoned  from the final date fixed  for receipt  of ten 
ders, during which Tenderers  shall  remain bound by their tenders; 

g) the  final date  and  time fixed  for  receipt  of  tenders,  the  address 
to Which  they must  be  sent,  the number  of copies  required  and  the 
language  in which  they mist  be drawn up; 

h) Where  appropriate, the place, date and  time for  the opening  of the 

tenders; 

- 28 -

i) the various guarantees which  the Contracting Authority requires, 
the  amount  of  each guarantee, where  appropriate  expressed  as a 
percentage of the tender, and the time when such guarantees are to 
be presented; 

j) the address of the departments from which tenderers may obtain any 

further information. 

13.5  In a  restricted  tendering  procedure with  pre-selection,  the notice 

shall state in particular:-

a) the method of tendering and the information referred to in Article 

13.4(a), (b), (c), (d) and (g); 

b) the terms on which the tender dossier may be acquired; 

c) where appropriate, the final date for the issue of invitations to 

tender by the Contracting Authority; 

d) the information to be given in the request to participate, in the 
form of statements and documents concerning the applicant's stand 
ing and ability Which the Contracting Authority requires in accor 
dance with Article 4 together with the economic and technical con 
ditions each applicant must fulfil  if he wishes  to be considered 
for selection. 

ARTICLE 14 

Pre-selection of Tenderers 

14.1  In a restricted  tender with pre-selection, a short-list  of prospec 
tive Tenderers shall be drawn up in accordance with Article 14.2 fol 
lowing, where  applicable,  a  call  for  pre-qualification  after pub 
lication of the notice referred to in Article 13.1. 

14.2  The short-list shall be drawn up, inter alia, in accordance with the 
provisions of Article 7.5 and the necessary qualifications to perform 
the intended project, in particular the provisions of Article 4. 

14.3  The Contracting Authority  shall  select  the prospective Tenderers on 
the  basis  of  the  information  given  by  them  in  the  request made 
pursuant  to Article  13.5  (d). The  prospective  Tenderers  selected 
shall  receive  an  invitation  to  tender  stating  in  particular  the 
following:-

a) the information given in Article 13.4 (e), (f) (g), (h), (i), and 

b) a reference to the notice mentioned in Article 13.5; 

c) any amendments, as referred to in Article 18. 

- 29 -

ARTICLE IS 

Direct Agreement Contracts 

15.1  For  direct  agreement  contracts,  the  W)rks,  Supplies  or  Services 
which  are to be the subject of the contract  shall be defined after 
negotiations between the Contracting Authority and the Tenderer. 

15.2  \Miere  the  procedure  by direct  agreement  is  applied,  the  candidate 
shall be  chosen by  the OCT concerned  on the basis  of a  short list 
drawn up in accordance with Articles 4.4 and 7.5. 

15.3  On  completion  of  the negotiations, the Contracting Authority  shall 
draw  up  and  notify  the  text  of  the  contract  in  accordance with 
Article 38. 

15.4  The  Contracting  Authority  and  the Tenderer  shall  agree  on  a date 
Which  shall be deemed  to be the date of the conclusion of the con 
tract.  This date shall be set out in the text of the contract. 

TQEER DOSSIER 

ARTICLE 16 

Contenta of Tender Dossier 

16.1  The invitation to tender dossier shall contain details of the way in 
which  tenders are to be presented and the criteria for selection of 
the successful  tender. In addition to the invitation to tender, the 
tender dossier may contain any or all of the following:-

a) the instructions to Tenderers; 

b) the General Conditions  applicable  to  the particular  category of 

contract; 

c) the Special Conditions for the specific contract; 

d) the technical specifications and/or Terms of Reference; 

e) the form for  the Breakdown of  the Overall  Price  in the  case of 
lump  sum  contracts,  or  the  form  for  the  unit  Price  Schedules 
and/or the Bill of Quantities in the case of unit price contracts; 

f) the schedule of requirements or additional information; 

g) the Drawings; 

h) the tender form; 

- 30 -

i) the tender guarantee  form; 

j) the contract  form; 

k) the performance  guarantee form; and 

l) a description  of  the  tender  evaluation  system giving  the  criteria 
for  evaluation and the weight  attached  to the individual  criteria. 

16.2  In addition,  and depending  on the nature  of  the contract,  the  tender 
dossier  shall be accompanied  by a "Note of General  Information". This 
Note will  be  prepared  by  the Delegate  in  consultation with  the  OCT 
concened  and  subject  to  the  approval  by  the  latter.  It will  be pro 
vided  for  information  only  and  shall  not  form part  of  the  contract. 
It shall  include all or part  of the following:-

a) geographical  notes  on  the region  in which  the  place  of  execution 

of the contract  is located  including notes on the climate; 

b) location  of  the place  of execution of  the  contract,  access  routes 
and  other  infrastructures which may  be used  in  the performance  of 
the contract; 

c) information  concerning  customs,  tax  and  price  laws  and  regula 

tions; 

d) wage  scales and  legal or contractual  charges payable by employers, 
including  an indication of minimum or normal wage  levels  laid down 
by  the  law of  the State  of  the Contracting Authority  or  customary 
in the place where  the contract  is to be performed,  corresponding 
to the main  local  categories of labour  required  for  the contract; 

e) information  on  the  exchange  control  laws  and  regulations  and  the 
monetary  and  banking  system  of  the  State  of  the  Contracting  Au 
thority; 

f) any other  information  relating  to the  laws  and  regulations  of  the 
State of  the Contracting Authority Which govern  the performance of 
contracts, including details as to the departments  to which appli 
cation  should  be made  to obtain  copies  of  those  laws  and  regula 
tions. 

16.3  The Terms of Reference  for Service  contracts  shall  contain  in partic-

ular:-

a) a description, which  shall  be  as detailed  as possible, of  the ob 

ject of the contract; 

b) factual details, such as data  in the possession of the Contracting 
Authority,  restrictions  that  are  binding  upon  the  Contracting 
Authority  in  observance  of  certain  technical  or  other  rules,  and 
obligations  laid down by the Contracting Authority; 

-  31 -

c) depending on the nature of the contract, preliminary draft  studies 
or implementation schemes, and a draft contract, if available; 

d) general documentation comprising, in particular, the laws and reg 

ulations  relating  to the technical  field  covered  by  the contract, 
or  any  other  reference  enabling  access  to  such  laws  and  regula-
t i ons. 

16.4  The  Tenderer  shall  carefully  examine  all  instructions,  conditions, 
forms,  terms, specifications and Drawings  in the  tender dossier. The 
Tenderer  shall be solely responsible for the responses he provides to 
the requirements  in the tender dossier and for any amission or errors 
in his  responses. Failure  to furnish all  information  required  by the 
tender  dossier  or  submission  of  a  tender which  is not  responsive  to 
the  tender  dossier  in  every  respect, will  be  at  the Tenderer's  own 
risk and may result  in rejection of his tender. 

ARTICLE 17 

Clarification of Tender  Information 

Wiere,  in response  to a Tenderer's queries  or otherwise,  information 
regarding  the contract  to be performed  or other  information which may 
affect  the pricing  of  the  tender  is supplied  to a Tenderer, such in 
formation  shall  also  be  issued  in  writing  by  the  Contracting 
Authority  to  the  other Tenderers,  insofar  as  these  are  known,  pro 
vided  that information of a commercial nature relating  to the accept 
ability  of  variant  solutions  shall  not  be  issued  to  the  other 
Tenderers.  The Contracting Authority will  respond only to those que 
ries or requests for clarification which  it receives at least 30 days 
prior  to the deadline for  the submission of tenders. 

ARTICLE 18 

Amendments  to Tender Dossier 

Any change made  to the tender dossier during  the tender period by the 
Contracting Authority  shall  be  communicated  forthwith  in writing  to 
all prospective Tenderers -who have been provided with  the tender doc 
uments,  together with  notice  of  any  extension  of  the  tender  period 
which  the  Contracting  Authority  may  consider  necessary  to  enable 
Tenderers  to take account of such a change. 

- 32 -

INSTRUCTIONS TO TENDERERS 

ARTICLE 19 

Language 

The  tender, contract documents and all correspondence  and documents 
relating to them shall be in the language stated in the instructions 
to Tenderers. 

ARTICLE 20 

Contents of the Tender 

20.1  The tender to be prepared and submitted by the Tenderer shall, in ac 
cordance with  the  requirements  stated  in  the  tender  dossier, com-
prise:-

a) the completed tender form and appendix thereto; 

b) the tender guarantee; 

c) the Breakdown of the Overall Price  in the case of lump sum con 
tracts, or the unit Price Schedule and/or  the Bill of Quantities 
in the case of unit price contracts; 

d) schedules of supplementary information; 

e) the documents providing proof of the standing and ability of the 
Tenderer  referred  to  in Article  4,  save  in  the  event  of  a re 
stricted tendering procedure with pre-selection; 

f) the authorised variant solutions, and any other elements required 
to be submitted  in accordance with  the instructions  to Tenderers 
embodied in the tender dossier; 

g) all information necessary to assess the tenders; 

h) if the instructions to Tenderers specify that an after-sales ser 
vice  is  required,  a  note  indicating  the means with Which  the 
Tenderer shall meet the obligations to  provide such a service; 

i) Where appropriate, additional guarantees proposed by the Tenderer 
concerning, inter alia, the period of performance and the scope of 
work; 

j) all information on any sub-contracting envisaged; and 

k) the tender price and the method and the currencies of payment. 

- 33 

20.2  After-sales service shall be required for Supply contracts unless the 
nature  of  the  Supplies  do  not  justify  such  service.  Wiere  the 
Contracting Authority requires an after-sales service:-

a) the Special Conditions shall specify the conditions and modalities 

of this service and its duration; 

b) the Successful Tenderer  shall, unless the nature of  the Supplies 
or  relevant  conditions  do not  so  justify,  establish within  the 
State of the Contracting Authority  the required after-sales ser 
vice. 

ARTICLE 21 

Lots 

21.1  In considering  how a project may  be  carried  out, account  shall be 

taken of the advantage, for economic and technical reasons, of divid 
ing the project into homogeneous lots which are as large as possible. 

21.2  Wiere  a  project  has  been  divided  into  lots,  the  instructions  to 

Tenderers shall state:-

a) the number of lots; 

b) the nature, location and size of each lot; and 

c) Where  appropriate,  the minimum  and maximum  number  of  lots  for 

which a Tenderer may tender. 

21.3  The procedure for submitting a tender shall be as follows:-

a) a Tenderer may submit a tender for each lot; 

b) unless the instructions to Tenderers provide otherwise, a Tenderer 
may include in his tender the overall rebate he would grant in the 
event of amalgamation of some or all of the lots for which he has 
submitted individual tenders; 

c) unless  the instructions  to Tenderers  state that  lots apportioned 
to the same Tenderer shall form a single contract, each lot shall 
form a separate contract; 

d) where lots are to be apportioned to different Tenderers, the invi 
tation to tender dossier or the instructions to Tenderers may pro 
vide that the Tenderer for a particular lot shall ensure the coor 
dination of the execution of all the lots. 

- 34 -

ARTICLE 22 

Co-operation with Third Parties 

22.1  In  order  to  enhance  the OCT's  capacity  to  build  up  their  technical 
skills and  to improve  the know-how of their consultants, co-operation 
partnership  arrangements  shall  be  encouraged  between  consultancy 
firms, consulting  engineers, experts  and  institutions  of  the EBC and 
those of  the OCT. To  this end, the Commission  and  the OCT shall make 
every effort to:-

a) encourage  by means  of  joint ventures,  sub-contracting  or  the use 
of  experts  who  are  nationals  of  the  OCT  in  teams  employed  by 
consultancy  firms,  consulting  engineers  or  institutions  in  the 
EBC; 

b) inform Tenderers  in  the  tender  dossier  of  the  selection  criteria 

and preferences provided for  in these General Regulations, partic 
ularly those relating  to the encouragement  of the use of OCT human 
resources. 

22.2  The Contracting Authority may,  in the  invitation  to tender  or during 
the  negotiation  of  a  contract, propose  to prospective  Tenderers  the 
assistance of other OCT or ACP companies or firms or national  experts 
or  consultants  selected  by mutual  agreement.  This  co-operation  may 
take  the  form either  of  a  joint venture, or  of  a  sub-contract  or of 
on-the-job  training of trainees. 

22.3  When  the co-operation  takes the form of:-

a) a joint venture, Article 4.3  (b) shall apply; 

b) a sub-contract, Article 4.3  (f) shall apply; 

c) on-the-job  training  of  trainees,  the  trainees  proposed  by  the 
Contracting  Authority  mist  have  basic  skills  consistent  with 
effective  participation  in the on-the-job  training  tasks  involved 
in the performance  of the contract. The maximum number of trainees 
shall  be  stipulated  in the Special Conditions.  In the  calculation 
of  remuneration  or Tender  Prices, account  shall  be  taken  of  any 
cost borne by the Tenderer as a result of the provision of on-the-
job  training  for  trainees.  On-the-job  training  of  trainees  shall 
not under  any  circumstances  limit  the obligations  of  the Success 
ful Tenderer with whom the contract  is concluded, nor  shall  it im 
pose  any  liability whatsoever on the Contracting Authority  or  the 
Supervisor. 

22.4  The parties  involved  shall undertake  to co-operate mitually and shall 
agree  on  the  procedure  for  such  co-operation  and  in  particular  the 
responsibilities  arising from it. 

- 35 -

ARTICLE 23 

Independence of Tenderers 

23.1  If  a Tenderer  in  the  case  of  Service  contracts, has  entered  into a 

legal  relationship with  natural  or  legal  persons who might  partici 
pate  in  the  carrying  out  of W>rks,  or  the  provision  of  Supplies, 
which  the services are  intended  to define or prepare, or  if he other 
wise maintains with  them special  relations  likely  to  compromise  his 
independence,  he  shall  inform  the  Contracting  Authority  thereof  in 
his  tender,  or  at  the  time  of  negotiation  of  the  contract,  or 
whenever  such circumstances arise before  the award of the contract. 

23.2  If,  notwithstanding  such  information,  a  contract  is  concluded  with 
the  said Tenderer,  the Contracting Authority  shall  reserve  the  right 
to exclude  the natural  or  legal persons  concerned  from participating 
in carrying out such Works or providing  such Supplies. 

ARTICLE 24 

Pricing of Tenders 

24.1  The  Tenderer  shall  provide  the  information  required  by  the  tender 

dossier  for  the  pricing, make  the  necessary  arithmetical  calcula 
tions, sign the form of tender and attach  it to his tender. 

24.2  The  total  amount  of  the  tender  shall  be written  in  figures  and  in 
words.  In  all  cases where  there  is  a  discrepancy  between  a  price 
stated  in figures  and also  in words, the price  stated  in words  shall 
prevail. Wiere  the  instructions  to Tenderers  so require, the follow 
ing shall also be written in figures and  inwords:-

a) the  Breakdown  of  the Overall  Price  in  the  case  of  lump  sum con 

tracts; 

b) the unit prices for each item in the Bill of Quantities  and/or the 

unit Price Schedule  in the case of unit price contracts; 

c) in the case of a composite  contract, the Breakdown  of  the Overall 
Price  part  as well  as  the  Bill  of  Quantities  and/or  the  Price 
Schedule for the unit price part. 

24.3  Prices must  correspond  to the relative value of each item in relation 
to  the  total  amount  of  the  tender.  Prices  should  not  be  of  such  a 
nature  as  to  distort  the  comparison  of  tenders  or  to  result  in 
interim payments which  are disproportionate  to the value  of  the work 
done. 

- 36 -

24.4  Tenders shall be expressed  in the National Currency of the State of 

the Contracting Authority. 

24.5  A Tenderer may request in his tender that a justified part, expressed 
as  a  percentage  of  the  tender  price, be  paid  directly  to him in 
Foreign Currency.  The  justification  required  shall  be  assessed  in 
the light of the verifiable facts as regards the real origin of the 
Wbrks,  Supplies  or  Service  to be performed  and  the  expenditure  to 
which  they  give  rise.  The  conversion  rate  to  be  applied  for  the 
foreign currency payment shall be that in force 30 days prior to the 
latest date fixed for the submission of tenders. 

24.6  The price  offered  by  the Tenderer  shall  take  into account  the tax 

arrangements applicable as set out in the Convention. 

ARTICLE 25 

Period of Validity 

25.1  Tenderers  shall  remain bound  by  their  tenders  for  the period  pre 
scribed  by  the Contracting Authority, pursuant  to Article  13.  Any 
tender valid for a shorter period may be rejected by the Contracting 
Authority.  The  period  fixed  by  the Contracting Authority  shall be 
sufficient  to permit  evaluation and  comparison of  tenders, for ob 
taining all necessary clearances and approvals, and for the notifi 
cation of the award of contract.  The validity period should normally 
not exceed 120 days from the final date fixed for the submission of 
tenders but it may vary depending on the nature and complexity of the 
contract. 

25.2  In  exceptional  circumstances, prior  to  the  expiry  of  the  original 
tender  validity  period,  the Contracting  Authority may  request  the 
Tenderer  for  a  specified  extension  in  the  period  of  validity. 
Tenderers agreeing to the request will neither be required nor per 
mitted  to modify  their  tenders, but will  be required  to extend the 
validity of their  tender guarantees  correspondingly. The provisions 
of Article 26 regarding discharge and forfeiture of the tender guar 
antee  shall continue  to apply during  the extended period  of tender 
validity. 

25.3  The  Successful  Tenderer  shall  remain  bound  by  his  tender  for  a 
further period of 60 days following the receipt of the communication 
notifying him of his selection. 

- 37 -

ARTICLE 26 

Tender Guarantee 

26.1  Unless otherwise provided  in the instructions  to Tenderers, Tenderers 

for Works  and  Supplies  contracts  shall, as  an  earnest  of  their  ten 
ders,  provide  a  guarantee.  The  tender  dossier  shall  specify  the 
amount  of  this  guarantee  which  shall  in  no  case  exceed  2%  of  the 
amount of the tender. 

26.2  The  tender guarantee  shall  be provided  in the form of a bank guaran 
tee, a banker's draft, a certified  cheque, a bond provided  by an in 
surance or bonding  company, an irrevocable  letter of credit or a cash 
deposit made with  the Contracting Authority.  If the tender guarantee 
is  to  be  established  in  the  form  of  a  bank  guarantee  , a  banker's 
draft,  a  certified  cheque  or  a  bond,  it  shall  be  issued  by  a bank, 
insurance  or  bonding  company,  approved  by  the Contracting  Authority 
and established  in the OCT, an ACP or a Member State.  The bank guar 
antee or the bond  shall be in strict conformity with  the tender guar 
antee  form  included  in  the  tender  dossier  or,  in  the  case  of direct 
agreement  contract,  in  the  Special  Conditions.  Whatever  form  it 
takes, the guarantee  shall be independent  and payable on first demand 
and valid for at least 60 days beyond  the tender validity period. 

26.3  Any  tender  not  accompanied  by  an  acceptable  tender  guarantee may  be 

rejected by the Contracting Authority. 

26.4  The  tender guarantees of Tenderers who have not been selected will be 
released  not  later  than  60 days  after  the  expiration  of  the  tender 
validity  period,  as  extended  where  appropriate  in  accordance  with 
Article  25.2, or  upon  the  award  of  the  contract, Whichever  is  ear 
lier. 

26.5  The  tender  guarantee  of  the  Successful  Tenderer  shall  be  discharged 
when  the Tenderer  has  signed  the contract  and  furnished  the  required 
performance  guarantee,  to  the  satisfaction  of  the  Contracting 
Authority. 

26.6  The  tender guarantee may be called up without notice:-

a) if a Tenderer withdraws his  tender during  the period of tender va 

lidity of his tender; 

b) in  the  case  of  the  Successful  Tenderer,  if  he  fails within  the 
specified Time Limit  to sign  the contract  or furnish  the  required 
performance guarantee. 

- 30 -

ARTICLE 27 

Variant  Solutions 

27.1  Unless  otherwise  stated  in  the  instructions  to Tenderers, Tenderers 
may  submit a tender based on a variant  solution.  The  instructions to 
Tenderers  mist  specify  any  limitations,  design  criteria  and  other 
requirements  applicable  to a variant  solution.  Unless  stated  other 
wise  in  the  instructions  to  Tenderers,  the  submission  of  a  tender 
based  on  a variant  solution  is conditional  upon  the  submission  of a 
tender based on the conforming  solution. 

27.2  Variant  solutions  may  not  derogate  from  the  requirements  of  these 
General  Regulations.  Tenders  based  on  the  tender  dossier  and  those 
for variant  solutions  shall be evaluated  simultaneously. 

27.3  The  instructions  to Tenderers must  state whether  the Tenderer submit 

ting  a variant  solution  is  to be  responsible  for  the design  of  the 
variant  solution, and  if  this  is  the  case, must  specify procedures, 
in particular for checking, revision and approval. 

27.4  The  submission of any variant  solution shall comprise: 

a) an individual  tender for the variant  solution; 

b) a  demonstration  of  the  benefit  of  the variant  solution  over  the 
conforming  solution,  including  quantifiable  justification  of  any 
economic advantage; 

c) a  draft  of  the  amendments  to  the  technical  provisions  of  the 

Special Conditions necessitated  by the variant  solution; 

d) the Drawings and specifications provided for  in the conforming so 

lution, but not affected by the variant  solution; 

e) the Drawings and specifications affected by the variant  solution; 

f) a  technical  note  on  the  conception  of  the  variant  solution  and 

where appropriate, Drawings and  the calculations; 

g) for lump sum contracts, an itemised Breakdown of the Overall Price 

as modified by the variant solution; 

h) for  unit-price  contracts,  a  Bill  of  Quantities  and/or  a  Price 

Schedule as modified by the variant  solution. 

-  39 -

ARTICLE 28 

Pre-tender Visit 

28.1  The Tenderer  is advised  to visit and  inspect  the place where  the con 

tract  is to be  executed  and  its surroundings  and obtain for himself, 
on his  own responsibility, all  information  that may  be necessary for 
preparing  the  tender  and  entering  into a contract.  The  costs  of vi 
siting  the place Where  the contract  is to be executed  shall be borne 
by the Tenderer. 

28.2  The  Tenderer  and  any  of his  personnel  or  agents will,  so  far  as  is 
practicable,  be  granted  permission  by  the  Contracting  Authority  to 
enter  the place where  the contract  is to be executed  for  the purpose 
of  such  inspection,  provided  that  the  Tenderer,  his  personnel  or 
agents will  release  and  indemnify  the Contracting  Authority  and  its 
personnel  and  agents  from  and  against  all  liability  in  respect 
thereof.  Accordingly,  the Tenderer will  be  responsible  for  any per 
sonal  injury, whether  fatal  or  otherwise,  loss  or damage which, but 
for acting on such permission, would not have arisen. 

28.3  Without  prejudice  to  the  laws  and  regulations  on  immigration  of  the 
State  of  the Contracting Authority,  the OCT concerned  shall  grant  an 
entry permit  to any person who  substantiates his eligibility  in terms 
of  Article  4  as  a  participant  in  an  invitation  to  tender,  or  any 
agent of such person, for the purpose of carrying out visits  enabling 
him to prepare his  tender.  This permit  shall  expire on the day  fol 
lowing  the end of the tender validity period. 

ARTICLE 29 

Signing of Tenders 

29.1  The  tender  shall be signed by the Tenderer  or by his duly  authorised 
agent  as  required  by  the  instructions  to  Tenderers.  It  shall  be 
drawn up  in a single original  bearing  the word  "original".  The num 
ber  of  copies  to be  supplied  by  the Tenderer  shall  be  stated  in the 
instructions  to Tenderers.  Copies shall be signed  in the same way as 
the original and shall bear  the word  "copy". 

29.2  A  tender  submitted  by  an agent must  state  the name  of  the  principal 
on whose  behalf  he  is acting.  No  agent may  represent more  than one 
Tenderer.  Agents  shall  attach  to  the  tender  the  simple  contract  or 
notarial  act  or  deed  which  empowers  them  to  act  on  behalf  of 
Tenderers.  A  signature  to  a  deed  mist  be  certified  in  accordance 
with  the national  law of the State of the principal. 

- 40 -

29.3  If  a Tenderer  is  a  joint  venture  or  consortium  of  two  or more  per 
sons,  the  tender mist  be  single with  the object  of  securing  a single 
contract,  each  person  mist  sign  the  tender,  and  all  such  persons 
shall  be  jointly and  severally bound  by  the  tender  and  any  resulting 
contract  according  to  the  law  of  the  State  of  the  Contracting 
Authority,  and  shall  designate  one  of  such persons  to  act  as  leader 
with authority to bind  the joint venture  or consortium.  The  composi 
tion or constitution  of  the  joint venture  or  consortium shall  not  be 
altered  without  the  prior  consent  in  writing  of  the  Contracting 
Authority. 

29.4  The  tender may  be  signed  by  the  representative  of  the  joint  venture 
or  consortium only  if he has  been expressly  so authorised  in writing 
by  the  members  of  the  joint  venture  or  consortium,  and  the 
authorising  contract, notarial  act or deed  is attached  to the tender. 
All  signatures  to the authorizing  instrument must  be certified  in ac 
cordance with  the national  laws  and  regulations  of  each  of  the par 
ties comprising  the joint venture or the consortium together with  the 
Powers  of Attorney  establishing,  in writing,  that  the  signatories  to 
the  tender  are  empowered  to enter  into  commitments  on  behalf  of  the 
members  of  the  joint  venture  or  consortium.  Each  member  of  such 
joint  venture  or  consortium must  provide  the  proof  required  under 
Article 4 as if he, himself, were  the Tenderer. 

29.5  The  complete  tender  shall  be without  alterations,  interlineation  or 

erasures, except  those to accord with  instructions  issued by the Con 
tracting  Authority,  or  necessary  to  correct  errors  made  by  the 
Tenderer.  Alterations  and  corrections  shall  be  initialled  by  the 
person or persons  signing  the tender. 

29.6  Except  in  the  case  of  lots  pursuant  to Article  21  and variant  solu 
tions  pursuant  to Article  27,  only  one  tender may  be  submitted  by 
each Tenderer.  No Tenderer may participate  in  the  tender  of  another 
for  the same contract  in any capacity whatsoever. 

SUBMISSION OF TENDERS 

ARTICLE 30 

Time Limit 

30.1  Tenders mist  be  received  by  the Contracting Authority  at  the  address 
and  no  later  than  the  date  and  time  specified  in  accordance  with 
Article  13.  In determining  this date, the Contracting Authority must 
ensure  that adequate  time  is allowed,  taking  into account  the nature, 
size, complexity,  and  location of the intended project  and other rel 
evant  factors. Such period  shall  not, however,  be  less  than  90 days 
for an open invitation  to tender. 

- 41 -

30.2  The Contracting Authority may, at  its discretion, extend  the deadline 
referred  to in Article 30.1 for  the submission of tenders by amending 
the  tender  dossier  in accordance with Article  18, in which  case  all 
previous  rights and obligations of the Contracting Authority and Ten 
derers,  subject  to the previous deadline, will  thereafter  be  subject 
to  the  deadline  as  extended.  Should  a Tenderer  exercise  his  right 
ofwithdrawal  after  receiving  notice  of  the  extension,  his  tender 
shall  be  returned  to him and his  tender  guarantee  shall  be  released 
after  the tender opening session. 

30.3  Any  tenders  received  by  the Contracting Authority  after  the deadline 
for  receipt  of  tenders  prescribed  by  the Contracting  Authority,  in 
accordance with  Articles  13.4(g)  and  18  shall  be  rejected  and  re 
turned  to the Tenderer  after  the tender opening session. 

ARTICLE 31 

Sealing and Marking  of Envelopes 

31.1  The  tender, the annexes  thereto as  stipulated  in the  instructions  to 
Tenderers and the supporting documents  referred  to in Article 4 shall 
be placed  in a sealed non - identifiable  envelope, bearing only:-

a) the address designated  for  submission of  tenders  in the notice  of 

invitation to tender or in the invitation to tender; 

b) the  reference  to  the  notice  of  invitation  to  tender  in  reply  to 

which  the tender  is being  submitted; 

c) where  appropriate, the numbers of the lots tendered for; and 

d) the words  "not  to  be  opened  before  the  tender  opening  session" 

written  in the language of the tender dossier. 

31.2  The  instructions  to Tenderers  shall  specify  in each  case whether  the 
documents  relating  to  the  price  proposal  shall  be  placed  together 
with  the technical proposal  in one envelope or  in separate envelopes. 
In the  latter  case, the price proposal  shall be placed  in a  separate 
identifiable  envelope, bearing  the words  "Tender  Price", Which  shall 
be  sealed  and placed  together with  the  technical proposal  in the en 
velope  referred  to in Article 31.1. 

ARTICLE 32 

Withdrawals and Amendments 

32.1  Any  Tenderer may modify  or withdraw his  tender  before  the  deadline 
referred  to  in Article  30.3, provided  that written  notice  of  such 
modification  or withdrawal  is  received  by  the Contracting  Authority 
prior  to that deadline. 

- 42 -

32.2  The  Tenderer's modification  or withdrawal  notice  shall  be  prepared, 
sealed, marked  and  dispatched  in  accordance with  the  provisions  of 
Article  31.  A withdrawal  notice may  also be  sent  by personal  deliv 
ery  or  by  telex,  cable, or  facsimile  transmission  but  followed  by a 
signed  confirmation  copy, post marked not  later  than the deadline for 
submission  of  tenders.  Withdrawals will  be  unconditional  and  will 
end further participation  in the tendering procedure. 

32.3  No  tender may  be modified  subsequent  to  the deadline  referred  to  in 

Article  30.3, except  in accordance with Article 34.1. 

32.4  No  tender may  be withdrawn  in  the  interval  between  the deadline  re 

ferred  to  in Article  30.3  and  the  expiration  of  the period  of  tender 
validity.  Withdrawal  of  a  tender during  this  interval may  result  in 
forfeiture  of the tender guarantee. 

EXAMINATION OF TENDERS 

ARTICLE 33 

Opening of Tenders 

33.1  On  receipt  of  the  tenders,  the  envelopes  shall  be  entered  in a spe 

cial  register  in  the  order  in which  they  arrive.  The  registration 
number  and  the date  and  time of arrival  shall  be  recorded  on the en 
velope.  Envelopes  remain  sealed  and  be  kept  in  a  safe  place  until 
they  are  opened  under  the  conditions  set  out  in Articles  33.2  and 
33.3. 

33.2  At  a public  tender  opening,  the Tenderers' names,  the Tender Prices, 
written1  notifications  of  tender  modifications  and withdrawals,  the 
presence of the requisite  tender guarantee, and  such other details as 
the Contracting Authority may  consider  appropriate  shall,  if any, be 
announced.  In  the  case  of  a  "two-envelope"  system  as mentioned  in 
Article  31.2  the  announcement  shall  include  the  fact  that  no  price 
envelope has been opened. 

33.3  Opening  and examination of  tenders  shall  comply with  the rules of the 
OCT  concerned,  and  shall  be  for  the purpose  of  checking whether  the 
tenders are complete, whether  the requisite  tender guarantee has been 
furnished,  whether  the  documents  have  been  properly  signed  and 
whether  the tenders are generally  in order. 

33.4  The  envelopes which  bear  the words  "Tender Price"  in accordance with 
Article  31  shall not  be opened until  the work  of  evaluating  the  ten 
ders, other  than the prices, has been  completed. 

- 43 -

33.5  Only  the  tenders  contained  in  those  envelopes which  have  been  re 

ceived not  later  than the deadline  referred  to in Article  30.3 fixed 
for  the  receipt  of  tenders  shall  be  taken  into  consideration  in the 
evaluation. 

33.6  The Contracting Authority shall prepare, for  its own records, minutes 
of  the  tender  opening,  including  the  information  disclosed  to  those 
present  in accordance with Article 33.2. 

33.7  After  the public  opening  of  tenders, information  relating  to  the ex 
amination,  clarification,  evaluation  and  comparison  of  tenders  and 
recommendations  concerning  the  award  of  the  contract  shall  not  be 
disclosed  to Tenderers or other persons not officially concerned with 
such process. 

33.8  Any  attempt  by  a Tenderer  to  influence  the Contracting Authority  in 
the process  of  examination, clarification, evaluation  and  comparison 
of  tenders,  and  in decisions  concerning  the  award  of  the  contract, 
shall result  in the rejection of his tender. 

33.9  The Delegate  shall  be  present  at  the  opening  of  tenders, and  shall 

receive a copy of each tender. 

ARTICLE 34 

Evaluation of Tenders 

34.1  To  facilitate  the examination, evaluation and  comparison of  tenders, 
the  Contracting  Authority  may  ask  each  Tenderer  individually  for 
clarification  of  his  tender,  including  breakdowns  of  unit  prices. 
The  request  for  clarification  and  the  response  shall  be  in writing 
and  communicated  by  any  of  the means  referred  to  in Article  12, but 
no  change  in  the  price  or  substance  of  the  tender  shall  be  sought, 
offered  or permitted  except  as  required  to confirm the  correction of 
arithmetic  errors discovered  by  the Contracting Authority during  the 
evaluation of the tenders pursuant  to Article 34.7. 

34.2  Prior  to  the  detailed  evaluation  of  tenders,  the  Contracting 

Authority  shall  determine whether  each  tender  is  substantially  re 
sponsive  to the requirements of the tender dossier. 

34.3  For  the purpose  of Article 34, a responsive  tender  is one which con 

forms  to all  the  terms, conditions  and  specifications  of  the  tender 
dossier without material deviation or reservation.  A material devia 
tion  or  reservation  is one which  affects  the  scope, quality  or per 
formance of the contract, or which, in any substantial way,  is incon 
sistent with  the tender dossier or limits the Contracting Authority's 
rights  or  the Tenderer's  obligations under  the  contract, and  affects 
unfairly  the  competitive position  of Tenderers  presenting  responsive 
tenders. 

- 44 -

34.4  If a  tender  is not  responsive  to the  tender dossier,  it  shall  be re 
jected by the Contracting Authority,  and may not  subsequently be made 
responsive  by  correction  or  withdrawal  of  the  deviation  or  res 
ervation. 

34.5  Tenders  determined  to  be  responsive  shall  be  evaluated  technically 

for conformity with the invitation  to tender dossier  and  the pro- vi 
sions  of  Article  36,  and  then  ranked  on  the  basis  of  their  tech 
nical  qualities.  The  Special  Conditions  shall, where  appropriate, 
specify  the detailed  criteria for  technical  evaluation. 

34.6  Following  the  completion  of  the  technical  evaluation,  tenders which, 
on  the  basis  of  Article  34.5,  are  technically  responsive  shall  be 
evaluated  financially. Tenders  shall be compared  in the National Cur 
rency. 

34.7  Tenders determined  to be responsive  shall be checked by the Contract 

ing Authority for any arithmetic  errors  in computation  and  summation. 
Errors  shall be corrected by the Contracting Authority as follows:-

a) where  there  is  a discrepancy  between  amounts  in figures  and  also 

in words, the amount  in words  shall prevail; and 

b) except  for  lump-sum  contracts, where  there  is  a  discrepancy  be 
tween  the unit  price  and  the  total  amount  derived  from the multi 
plication of the unit price and quantity,  the unit price as quoted 
shall  prevail, unless  in the opinion  of  the Contracting  Authority 
there  is  an  obvious  error  in  the  unit  price,  in which  event  the 
total  amount  as quoted  shall  prevail  and  the unit  price  shall  be 
corrected  by the Contracting Authority. 

34.8  The  amount  stated  in  the  tender,  corrected  if necessary  by  the Con 
tracting Authority,  in accordance with Article  34.7, shall be consid 
ered  as  binding  upon  the Tenderer.  If  the Tenderer  does  not  accept 
the corrected  amount  of the tender, his  tender  shall be  rejected. 

34.9  After  tenders have been evaluated  fully in accordance with  the provi 

sions of Article  34, responsive  tenders  shall be grouped  into tenders 
offered  by  those  Tenderers  eligible  for  preference  under  Article  9 
and  tenders  offered  by  other  Tenderers. For  the  purposes  of  further 
evaluation  and  comparison  of  tenders  only,  the  tender  prices,  cor 
rected where  necessary,  of  the Tenderers  not  eligible  for  preference 
shall  be  increased  by  the  percentage margin  of  preference.  Further 
details  of  the procedures  to be used  in giving  effect  to  the margin 
of  preference  provisions  of Article  9  shall  be  as  laid  down  by  the 
Contracting Authority  in the tender dossier. 

34.10 The  evaluation  proceedings  shall  be  recorded  in properly  signed min 

utes which  shall not  be made  public  or  communicated  to any Tenderer. 
A  copy of these minutes will  be sent  to the Delegate. 

- 45 -

ARTICLE 35 

Annulment  of the Tender Procedure 

35.1  The  Contracting  Authority  may,  prior  to  awarding  the  contract, 

without  thereby  incurring  any  liability  to  the  Tenderers,  and  not 
withstanding  the  stage  reached  in the procedures  leading  to the con 
clusion of the contract:-

a) either  decide  to  annul  the  tender  procedure  in  accordance  with 
Article  35.2, or order  that  the procedure be  recommenced,  if nec 
essary, using another method; or 

b) where  the project  is divided  into  lots, award  only certain of  the 
lots and possibly decide  that  the others  are  to be  the subject  of 
another  tender  or  other  tenders,  if  necessary,  using  another 
method. 

35.2  The  annulment  by  the Contracting Authority  of a  tender procedure may 

take place  in the following cases:-

a) if no  tender  is responsive  to the tender dossier; 

b) if no  tender  satisfies  the criteria  for  the award  of  the  contract 

as set out  in Article 36; 

c) if  the  economic  or  technical  data  of  the  project  have  been  al 

tered; 

d) if exceptional  circumstances  render normal performance  of the con 

tract  impossible; 

e) if every tender  received exceeds  the financial  resources  earmarked 

for the contract; 

f) if  the  tenders  received  contain  serious  irregularities  resulting 

in interference with  the normal play of market  forces; or 

g) if there has been no competition. 

35.3  In the event  of annulment  of any  tender procedure, Tenderers who  are 
still  bound  by  their  tenders  shall  be  notified  thereof  by  the 
Contracting  Authority.  Such  Tenderers  shall  not  be  entitled  to 
compensation;  they  shall be entitled  to the  immediate  release  of  the 
tender guarantee. 

35.4  When  the annulment of the tender procedure  is caused by circumstances 
which  do  not  necessitate  the  opening  of  tenders,  the  unopened  and 
sealed  envelopes  containing  the  price  proposals, where  appropriate, 
and, in any event, the other elements of the tender  shall be returned 
to the Tenderers at the Tenderers' cost. 

- 46 -

iS&ftRD OF ODNIRACT 

ARTICLE 36 

Selection 

36.1  The Contracting Authority shall award  the contract  to the Tenderer:-

a) whose  tender  is found  to be responsive  to the tender dossier; and 

b) for Wbrks  and Supply contracts, who has  offered  the most  advanta 

geous  tender as assessed  inter alia on the basis of:-

i) 

the price, the operating and maintenance costs; 

ii)  the  qualifications  of,  and  the  guarantees  offered  by  the 
Tenderers, as well  as the technical qualities of the tender, 
including  the  offer  of  an  after-sales  service  in  the  OCT 
concerned; 

iii)  the nature  of,  the  conditions  and  the  time  limits  for per 
forming  the  contract, and  the  adaptation  to  local  conditi 
ons; 

c) for  Service  contracts, who  offers  the most  advantageous  tender 
taking  into account, inter alia, the price, the technical value of 
the  tender, the organization  and  the methodology  proposed  for  the 
provision of the Services, as well  as the competence, independence 
and availability of the personnel proposed. 

36.2  Wiere  two  tenders  are  acknowledged  to be  equivalent  on  the  basis  of 

the criteria stated above, preference  shall be given to:-

a) the tenderer of the OCT or an ACP State; or 

b) if no  such  tender  is forthcoming,  to  the  tenderer Who  permits  the 

best possible use of the physical  and human resources of the OCT. 

36.3  The Contracting Authority shall:-

a) complete  the  evaluation  of  tenders within  the  tender validity pe 
riod taking  into consideration the period  required for the approv 
al of contracts; 

b) transmit  the  result  of  the  examination  of  the  tenders  and  a pro 

posal for placing  the contract  to the Delegate. 

- 47 -

36.4  The Delegate  shall:-

a) approve, within  30  days  the Contracting  Authority's  proposal  for 

the placing  of the contract  for all:-

i) 

direct  agreement  contracts; 

ii)  service contracts; 

iii)  contracts  relating  to emergency assistance; and 

iv)  contracts  by  accelerated  procedures,  for  \*forks  contracts 
worth  less  than  BCD  5 million  and  Supply  contracts  worth 
less  than ECU 1 million; 

b) approve within  30  days  the  Contracting  Authority's  proposal  for 
the  placing  of  the  contract  not  covered  by  Article  36.4  (a) 
wherever  the  following  conditions  are  fulfilled:  the  tender  se 
lected  is  the  lowest  of  those  conforming  to  the  requirements  of 
the  tender  dossier, meets  the  selection  criteria  stated  therein 
and does not  exceed  the sum earmarked  for  the contract; 

c) where  the  conditions  set  out  in Article  36.4  (b)  are  not  ful 

filled,  forward  the  proposal  for  the  placing  of  the  contract  to 
the  Commission which  shall  decide  thereon within  60  days  of  the 
receipt  by  the Delegate.  Wiere  the  price  of  the  selected  tender 
exceeds  the  sum earmarked  for  the contract,  the Commission  shall, 
upon  giving  approval  to  the  award, make  the  necessary  financial 
commi tment. 

ARTICLE 37 

Notification of Award 

37.1  Prior  to  the  expiration  of  the  period  of  tender  validity,  the  Con 
tracting  Authority  shall  notify  the  Successful  Tenderer  in writing 
that his  tender has been accepted. 

37.2  Unless  otherwise provided  in the tender dossier,  in the case of W)rks 
and  Supply  contracts,  once  the  Successful  Tenderer  has  furnished  a 
performance  guarantee  in  accordance  with  the  provisions  of  Article 
40,  the  Contracting  Authority  shall  promptly  notify  the  other 
Tenderers  that  their  tenders have been unsuccessful, and  return their 
tender guarantees. 

37.3  The  Contracting  Authority  shall  not  be  obliged  to  state  the  reasons 
for  its  choice  nor  enter  into  any discussion  or  correspondence with 
Tenderers  on the results of the invitation  to tender. 

- 48 -

37.4  The results of public  invitations  to tender  shall be published  in the 
Official  Journal  of  the EBC and,  subject  to  the practice  in  the OCT 
concerned,  in the Official  Journal  of  the State  and/or  any other ap 
propriate  information media. 

ARTICLE 38 

Preparation of Contract Document 

38.1  After  communication  of  the  result  of  the  tender  in  accordance  with 
Article  37,  the  contract  shall  be  prepared  by  the  Contracting 
Authority  for  submission  to  the  Successful  Tenderer  for  signature. 
This document  shall  include at least  the following:-

a) a  list  of documents  comprising  the  contract  specifying  the  order 

of precedence of the documents; 

b) any agreed additions  to and derogations from these documents; 

c) the Contract Price; 

d) any  decisions  taken  by  the  Contracting  Authority  pursuant  to 

Article 34.7. 

e) the  names  of  the  Supervisor  and  the  Supervisor's  Representative, 

if these are not  included  in the Special Conditions. 

38.2  The  contract  document  shall  be  submitted  to  the  Successful  Tenderer 

for signature. 

ARTICLE 39 

Signing of the Contract 

39.1  Unless  otherwise  provided  in  the  tender  dossier, within  30  days  of 
receipt  of  the contract document, the Successful Tenderer  shall  sign 
the  contract.  After  signature  by  the  Successful  Tenderer,  the  con 
tract document  shall be  returned  to the Contracting Authority  or his 
authorised  representative  or  the competent  authority of  the OCT con 
cerned for approval as necessary, and signature. 

39.2  The Contracting Authority  shall not, unless otherwise provided by the 
tender dossier, sign the contract until  the performance guarantee has 
been established  in accordance with Article 40. 

39.3  By  the  signature  of  the Contracting Authority,  the  contract  becomes 

binding  upon  both  parties  and  the  Successful  Tenderer  shall  be no 
tified of the fact of such signature. 

- 49 

39.4  Notwithstanding  the  provisions  of  Article  39.1  to  39.3,  the 
Contracting Authority may, depending on the nature of  the contract, 
decide  to conclude  the contract  on the basis of the letter  of con 
tract procedure whereby the notification of award of contract shall 
constitute  the conclusion of the contract.  In such case, the items 
listed in Article 38.1 shall be attached to the letter. 

39.5  In the event of withdrawal by the Successful Tenderer, the Contract 

ing Authority may call up his tender guarantee.  In addition, it may 
approach  the other Tenderers  according  to the order  in which their 
tenders are classified, or may initiate a fresh procedure for the in 
vitation of tenders. If necessary, a contract by direct agreement may 
be negotiated. 

ARTICLE 40 

Performance Guarantee 

40,Î  Unless  otherwise  provided  by  the  tender  dossier,the  Successful 

Tenderer for a W^rks or Supply contract shall, within 30 days of re 
ceipt  of  the notification  of  award  from the Contracting  Authority 
furnish  to the Contracting Authority a performance guarantee  in the 
form specified in the General Conditions. 

40.2  Failure of the Successful Tenderer to comply with the requirements of 
Article 40.1 shall constitute sufficient grounds for the annulment of 
the award and forfeiture of the tender guarantee, in which event the 
Contracting Authority may proceed in accordance with Article 39.5. 

GENERAL AND FINAL PROVISIONS 

ARTICLE 41 

General and Final Provisions 

41.1  All documents and proposals submitted by the Contracting Authority to 

the Commission  or  the Delegate  for agreement or approval  in accor 
dance with  these General Regulations  shall be approved or deemed to 
be approved within the time limits laid down by these General Regula 
tions, or where no time limit is stated herein, within 30 days. 

41.2  Claims accepted for delayed payments shall be borne by the OCT con 

cerned and by the Commission, each from its own resources, for that 
part of the delay for which it is responsible. 

- 50 -

ANNEX II 

GENERAL  CONDITIONS 
FOR "VWDRKS CONTRACTS 
FINANCED BY THE 
EUROPEAN DEVELOPMENT FUND 

IN THE OCT 

-  51 

-

TABLE  OF  CONTENTS 

PRELIMINARY  PROVISIONS 

Article  1  Definitions 
Article 2  Law and Language  of the Contract 
Article 3  Order  of Precedence  of Contract Documents 
Article 4  Notices  and Written Communications 
Article  5  Supervisor  and Supervisor's Representative 
Article  6  Assignment 
Article  7  Sub-Contracting 

OBLIGATIONS OP THE OONIRACITNG AUBCRITY 

Article  8  Supply of Documents 
Article 9  Access  to Site 
Article  10  Assistance with Local Regulations 
Article  11  Delayed payments  to the Contractor's  Staff 

OBLIGATIONS OF THE OONIRACICR 

Article  12  General Obligations 
Article  13  Superintendence  of the Wforks 
Article  14  Staff 
Article  15  Performance Guarantee 
Article  16  Insurance 
Article  17  Performance Programme 
Article  18  Detailed Breakdown of Prices 
Article  19  Contractor's Drawings 
Article  20  Sufficiency of Tender Prices 
Article  21  Exceptional Risks 
Article 22  Security of Sites 
Article 23  Safeguarding Adjacent  Properties 
Article  24  Interference with Traffic 
Article 25  Cables  and Conduits. 
Article  26  Setting-Out 
Article  27  Demolished Materials 
Article  28  Discoveries 
Article  29  Temporary "Wforks 
Article  30  Soil Studies 
Article  31  Overlapping Contracts 
Article 32  Patents and Licences 

OCKMENCENffNT AND DELAYS 

Article  33  Commencement  Orders 
Article  34  Period  of Performance 

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59 
60 
60 
61 

61 
62 
63 
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72 
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75 
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- 52 -

Article 35  Extension of Period of Performance 
Article 36  Delays in Performance 
Article 37  Variations 
Article 38  Suspension 

MATERIALS ANDWKKNftNSHIP 

Article 39  "ttfork Register 
Article 40  Qiality of W>rks and Materials 
Article 41  Inspection and Testing 
Article 42  Rejection 
Article 43  Property in Plant and Materials 

PAYMENTS 

Article 44  General Provisions 
Article 45  Provisional Price Contracts 
Article 46  Advances 
Article 47  Retention Sum 
Article 48  Revision of Prices 
Article 49  Measurement 
Article 50  Interim Payments 
Article 51  Final Statement of Account 
Article 52  Direct Payments to Sub-Contractors 
Article 53  Delayed Payments 
Article 54  Payments to Third Parties 
Article 55  Claims for Additional Payment 
Article 56  Payments in Foreign Currency 

ACCEPTANCE AND MAINTENANCE 

Article 57  General Clauses 
Article 58  Tests on Completion 
Article 59  Partial Acceptance 
Article 60  Provisional Acceptance 
Article 61  Maintenance Obligations 
Article 62  Final Acceptance 

BREACH OF CONTRACT AND TERMINATION 

Article 63  Breach of Contract 
Article 64  Termination by the Contracting Authority 
Article 65  Termination by the Contractor 
Article 66  Force Majeure 
Article 67  Decease 

Article 68  Settlement of Disputes 

SETIUBMENT OF DISFUIES 

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- 53 

PRELIMINARY PROVISIONS 

ARTICLE 1 

Definitions 

1.1 

The  following  definitions  apply  to  these  General  Conditions  and  to 
the Contract. 

EBC: the European Economic Community. 

OCT:  the association of the Overseas Countries  and Territories with 

the EBC. 

Contract:  the signed agreement  entered  into by the parties for the 

execution  of  the Works  including  all  attachments  thereto  and 
all documents  incorporated  therein. 

Contractor:  the party with whom the Contracting Authority  concludes 

the Contract. 

Contracting Authority:  the State or the legal person governed by pub 

lic or private  law which concludes  the Contract, or on behalf 
of which  the Contract  is concluded, with  the Contractor. 

The State of the Contracting Authority:  the OCT on Whose  territory 

the Works Contract  is to be executed. 

Supervisor:  the government department, legal person governed by pub 

lic  law,  or  the  natural  or  legal  person  designated  by  the 
Contracting Authority  in accordance with  the law of the State 
of  the Contracting Authority, who  is responsible  for direct 
ing  and/or monitoring  the  execution  of  the Works  Contract, 
and  to whom  the  Contracting  Authority  may  delegate  rights 
and/or powers under  the Contract. 

Supervisor's Representative: any natural or legal person, designated 

by  the  Supervisor  as  such under  the Contract,  and  empowered 
to  represent  the  Supervisor  in  the performance  of  his  func 
tions,  and  in  exercising  such  rights  and/or  powers  as  have 
been delegated  to him.  Accordingly, where  functions, rights 
and/or  powers  of  the  Supervisor  have  been  delegated  to  the 
Supervisor's Representative, references  to the Supervisor in 
clude  the Supervisor's Representative. 

Works:  the  temporary 

and permanent Works  to be carried out under the 

Contract. 

Plant:  machinery, apparatus, components and all  items  to be provided 

under  the Contract  for  incorporation  in the Works. 

-  54 -

Equipment: appliances and other machinery, and, where  applicable 

under  the  law and/or  practice  of  the  State  of  a Contracting 
Authority,  the  temporary  structures  on  the Site  required  for 
carrying out  the Works but excluding plant  or other  items re 
quired  to form part of the permanent works. 

Bill of Quantities: the document  containing an itemised breakdown of 
the Works  to be  carried  out  in a unit  price Contract,  indi 
cating  a  quantity  for  each  item  and  the  corresponding  unit 
price. 

Price Schedule: the completed  schedule of prices, including the 

breakdown  of  the  overall  price,  submitted  by  the  Contractor 
with his  tender, modified  as necessary  and  forming  a part of 
the unit price Contract. 

Breakdown of the Overall Price: the  itemised  list of rates and prices 
showing  the build-up of the price  in a lump sum Contract, but 
not forming part of the Contract. 

Contract Price: the sum stated  in the Contract  representing  the init 

ial  estimate  payable  for  the  execution  of  the Works  or  such 
other  sum as ascertained by the final statement  of account as 
due to the Contractor under  the Contract. 

Provisional Sum: a sum included  in the Contract and so designated for 
the  execution  of  work  or  the  supply  of  goods, materials, 
Plant  or  services,  or  for  contingencies, which  sum may  be 
used  in whole or in part, or not at all, as instructed by the 
Supervisor. 

Drawings: drawings provided by the Contracting Authority and/or the 

Supervisor,  and/or  drawings  provided  by  the  Contractor  and 
approved  by  the  Supervisor,  for  the  carrying  out  of  the 
Vforks. 

Site: 

the places provided by the Contracting Authority where  the 
Works  are  to be  carried  out, and  other  places  stated  in the 
Contract  as forming part of the Site. 

Maintenance Period:  the period  stated  in the Contract  immediately 

following  the  date  of  provisional  acceptance,  during  which 
the Contractor  is required  to complete  the Works  and  to rem 
edy defects or faults as instructed  by the Supervisor. 

Final Acceptance Certificate: certificate(s) issued by the Supervisor 
to  the Contractor  at  the end  of  the Maintenance  Period  stat 
ing that  the Contractor has completed his obligations  to con 
struct, complete and maintain  the Works  concerned. 

Day: 

calendar day. 

-  55 -

Time Limits: those periods  in the Contract which  shall begin to run 

from  the day  following  the  act  or  event which  serves  as  the 
starting point for those periods.  Should  the last day of the 
period  fall  upon  a non-working  day,  the  period  shall  expire 
at the end of the first working day following  the last day of 
the period. 

Writing: any handwritten, typewritten or printed  communication, in 
cluding  telex, cable and facsimile  transmission. 

Communications: certificates, notices, orders and  instructions  issued 

under  the Contract. 

Administrative Order: any instruction or order  issued by the Super 

visor  to the Contractor  in writing  regarding  the execution of 
the Works. 

National Currency: the currency of the State of the Contracting 

Authority. 

Foreign Currency: any permissible  currency which  is not  the National 

Currency, and which is indicated  in the Contract. 

General Damages: the sum, not  stated beforehand  in the Contract, 

which  is  awarded  by  a  court  or  arbitration  tribunal,  or 
agreed between the parties, as compensation payable  to an in 
jured party for a breach of the Contract by the other party. 

Liquidated Damages: the sum stated  in the Contract  as compensation 

payable  by  the  Contractor  to  the  Contracting  Authority  for 
failure  to complete  the Works  or part  thereof within  the pe 
riods  under  the Contract,  or  as  payable  by  either  party  to 
the  other  for  any  other  specific  breach  identified  in  the 
Contract. 

Special Conditions: the Special Conditions  issued by the Contracting 

Authority  as  part  of  the  invitation  to  tender,  as  amended 
where necessary, and  incorporated  into the Contract, consist 
ing of: 

a) 

b) 

c) 

d) 

amendments  to these General Conditions; 

special  contractual clauses; 

technical  specifications; and 

any other matter  related  to the Contract. 

1.2  The  headings  and  titles  in  these  General  Conditions  shall  not  be 

taken as part  thereof or be taken into consideration  in the interpre 
tation of the Contract. 

-  56 -

1.3  TOiere  the  context  so  permits words  importing  the  singular  shall  be 
deemed  to  include  the plural  and vice versa  and words  importing  the 
masculine  shall be deemed  to include  the feminine and vice versa. 

1.4  Words  importing  persons  or parties  shall  include  firms  and  companies 

and any organization having  legal capacity. 

ARTICLE 2 

Law and Language of the Contract 

2.1 

The  law of  the Contract  shall  be  the  law of  the  State  of  the Con 
tracting Authority unless otherwise  stated  in the Special Conditions. 

2.2 

In all matters which are not covered by these General Conditions, the 
law of the Contract  shall apply. 

2.3 

The  language  of  the Contract  and  of  all  communications  between  the 
Contractor, Contracting Authority and Supervisor or their representa 
tives shall be as stated  in the Special Conditions. 

ARTICLE 3 

Order of precedence of Contract Documents 

Unless  otherwise  stipulated  in the Contract, the order  of  precedence 
of  the Contract  documents  shall  be  as  stated  in  the  Special  Condi-
t i ons. 

ARTICLE 4 

Notices and Written Communications 

4.1 

4.2 

Unless  otherwise  specified  in the Special Conditions, Communications 
between  the Contracting  Authority  and/or  the  Supervisor  on  the  one 
hand,  and  the Contractor  on  the  other  hand,  shall  be  sent  by post, 
cable,  telex,  facsimile  transmission,  or  personal  delivery,  to  the 
appropriate addresses designated by these parties for  that purpose. 

If  the  sender  requires  evidence  of  receipt, he  shall  state  such re 
quirement  in his  communication  and  shall demand  such  evidence  of re 
ceipt whenever  there  is a deadline  for  the receipt  of  the Communica 
tion.  In any event, the sender  shall  take all  the necessary measures 
to ensure receipt of his Communication. 

-  57 -

4.3  \toierever in the Contract provision  is made  for  the giving or  issue of 

any notice, consent, approval, certificate or decision, unless other 
wise  specified  such  notice,  consent,  approval,  certificate  or  deci 
sion  shall  be  in writing  and  the words  "notify",  "certify",  "ap 
prove" or "decide" shall be construed accordingly.  Any  such consent, 
approval,  certificate  or decision  shall not unreasonably  be withheld 
or delayed. 

ARTICLE 5 

Supervisor  and Supervisor's Representative 

5.1 

5.2 

The  Supervisor  shall  carry out  the duties  specified  in the Contract. 
Except  as  expressly  stated  in the Contract, the Supervisor  shall not 
have  authority  to  relieve  the Contractor  of  any  of  his  obligations 
under  the Contract. 

The  Supervisor may,  from  time  to  time, while  retaining  ultimate  re 
sponsibility, delegate  to the Supervisor's Representative  any of  the 
duties  and  authority vested  in the Supervisor  and he may  at any  time 
revoke  such delegation or replace  the representative.  Any such dele 
gation,  revocation  or  replacement  shall  be  in writing  and  shall  not 
take  effect  until  a copy  thereof  has  been delivered  to  the Contrac 
tor. 

5.3  Any  communication  given  by  the  Supervisor's  Representative  to  the 
Contractor  in accordance with  the terms of such delegation  shall have 
the  same  effect  as  though  it had  been given by  the  Supervisor, pro 
vided that:-

a) any failure on the part of the Supervisor's Representative  to dis 
approve  any work, materials  or  plant  shall  not  prejudice  the au 
thority  of  the  Supervisor  to  disapprove  such work, materials  or 
plant  and  to give  the instructions necessary for  the rectification 
thereof; 

b) the Supervisor  shall be at liberty to reverse or vary the contents 

of such Communication. 

5.4 

Instructions  and/or  orders  issued  by  the  Supervisor  shall  be  by way 
of Administrative  Orders.  Such  orders  shall  be  dated, numbered  and 
entered by the Supervisor  in a register, and copies  thereof delivered 
by hand, where  appropriate, to the Contractor's  representative. 

ARTICLE 6 

Assignment 

6.1  An  assignment  shall  be  valid  only  if  it  is  a written  agreement  by 
which  the  Contractor  transfers  his  Contract  or  part  thereof  to  a 
third party. 

- 58 -

6.2  The Contractor  shall not, without  the prior written  consent  of the 
Contracting Authority, assign  the Contract  or any part  thereof, or 
any benefit or interest thereunder, except in the following cases:-

a) a charge, in favour of the Contractor's bankers, of any monies due 

or to become due under the Contract; or 

b) assignment to the Contractor's  insurers of the Contractor's right 
to obtain  relief  against  any other person  liable  in cases where 
the insurers have discharged the Contractor's loss or liability. 

6.3  For the purpose of Article 6.2, the approval of an assignment by the 

Contracting Authority shall not relieve the Contractor of his obliga 
tions for the part of the Contract already performed or the part not 
assigned 

6.4  If  the Contractor has  assigned his Contract without  authorization, 
the Contracting Authority may, without giving formal notice thereof, 
apply as of right the sanctions for breach of Contract provided for 
in Articles 63 and 64. 

6.5  Assignees must  satisfy the eligibility  criteria  applicable  for the 

award of the Contract. 

ARTICLE 7 

Sub-Contracting 

7.1  A  sub-contract  shall be valid only if it is a written agreement by 
which  the Contractor  entrusts performance of a part of his Contract 
to a third party. 

7.2  The Contractor  shall not sub-contract without  the prior written au 
thorization  of  the  Contracting  Authority.  The  work  to  be  sub 
contracted and the identity of the sub-contractors shall be notified 
to  the Contracting Authority. The Contracting Authority  shall with 
due  regard  to the provisions of Article 4.3, within 30 days of re 
ceipt  of  the notification, notify  the Contractor  of his decision, 
stating reasons should he withhold such authorization. 

7.3  In the selection of sub-contractors, preference shall be given by the 
Contractor to natural persons, companies or firms of the State of the 
Contracting Authority capable of performing the work required on sim 
ilar terms. 

7.4  Sub-contractors must  satisfy the eligibility criteria applicable for 

the award of the Contract. 

7.5  Subject  to Article 52, the Contracting Authority shall have no con 

tractual relations with the sub-contractors. 

-  59 -

7.6 

7.7 

The  Contractor  shall  be  responsible  for  the  acts,  defaults  and ne 
gligence  of his  sub-contractors  and  their  agents  or  employees, as if 
they were  the  acts,  defaults  or  negligence  of  the  Contractor,  his 
agents  or  employees.  The  approval  by  the  Contracting  Authority  of 
the  sub-contracting  of  any  part  of  the  Contract  or  of  the  sub 
contractor  to  perform  any  part  of  the Works  shall  not  relieve  the 
Contractor  of any of his obligations under  the Contract. 

If a  sub-contractor  has undertaken  any continuing  obligation  extend 
ing  for  a period  exceeding  that  of  the Maintenance  Period  under  the 
Contract  towards  the Contractor  in  respect  of  the work  executed  or 
the goods, materials, Plant  or  services  supplied  by  the  sub-contrac 
tor,  the Contractor  shall, at  any  time  after  the  expiration  of  the 
Maintenance  Period,  transfer  immediately  to  the  Contracting 
Authority, at the Contracting Authority's  request and cost, the bene 
fit of such obligation for the unexpired duration thereof. 

7.8 

If  the Contractor  enters  into  a  sub-contract without  approval,  the 
Contracting  Authority may  apply,  as  of  right without  giving  formal 
notice  thereof, the  sanctions  for breach of Contract  provided  for  in 
Articles 63 and 64. 

OBLIGATIONS OF THE CCNERACriNS AUnCRITY 

ARTICLE 8 

Supply of Documents 

8.1  Within 30 days of the establishment  of the performance guarantee pro 
vided for  in Article  15, the Supervisor  shall provide  to the Contrac 
tor, free of charge, a copy of  the Drawings prepared  for  the perfor 
mance  of the Contract  as well  as two copies of the specifications and 
other  Contract  documents.  The  Contractor  may  purchase  additional 
copies of these Drawings, specifications and other documents, insofar 
as  they  are  available.  Upon  the  issue  of  the maintenance  certifi 
cate,  or  upon  final  acceptance,  the Contractor  shall  return  to  the 
Supervisor  all Drawings, specifications and other Contract documents. 

8.2  Unless  it  is necessary  for  the  purposes  of  the Contract,  the Draw 
ings,  specifications and  other documents  provided  by  the Contracting 
Authority  shall  not  be used  or  communicated  to a  third  party by  the 
Contractor without  the prior consent of the Supervisor. 

8.3  The Supervisor  shall have authority  to issue to the Contractor Admin 
istrative Orders  incorporating  such  supplementary  documents  and  in 
structions  as  shall  be necessary  for  the proper  and  adequate  execu 
tion of the Works  and  the remedying of any defects  therein. 

- 60 -

ARTICLE 9 

Access to Site 

9.1  The Contracting Authority shall, in due time and in conformity with 
the progress of the Works, place the Site and access thereto at the 
disposal of the Contractor  in accordance with  the programme of per 
formance  referred  to  in  these General  Conditions.  The  Contractor 
shall afford all reasonable opportunities to other persons concerned 
for carrying out their work as set out in the Special Conditions or 
as required by Administrative Orders. 

9.2  Any  land  procured  for  the Contractor  by  the Contracting Authority 
shall not be used by the Contractor for purposes other than the per 
formance of the Contract. 

9.3  The Contractor shall preserve any premises placed at his disposal in 
a good state while he is in occupation and shall, if so required by 
the Contracting Authority or  the Supervisor, restore  them to their 
original  state  on  completion  of  the Contract,  taking  into  account 
normal wear and tear. 

9.4  The Contractor shall not be entitled to any payment for improvements 

resulting from work carried out on his own initiative. 

ARTICLE 10 

Assistance with Local Regulations 

10.1  The Contractor may request the assistance of the Contracting Author 

ity in obtaining copies of laws, regulations and information on local 
customs, orders or bye laws of the country where  the Works  are lo 
cated, which may affect the Contractor  in the performance of his ob 
ligations under  the Contract. The Contracting Authority may provide 
the assistance requested to the Contractor at the Contractor's cost. 

10.2  Subject  to  the  provisions  of  the  laws  and  regulations  on  foreign 
labour  of  the State  in which  the Works  are  to be  carried  out, the 
Contracting Authority shall make all efforts necessary to facilitate 
the procurement by the Contractor of all required visas and permits, 
including work  and  residence permits, for  the personnel whose ser 
vices the Contractor and the Contracting Authority consider necessary 
as well as residence permits for their families. 

- 61 -

ARTICLE 11 

Delayed Payments  to the Contractor's  Staff 

Wnere  there  is  a delay  in the payment  to  the Contractor's  employees 
of wages  and  salaries  owing  and  of  the  allowances  and  contributions 
laid down by the law of the State  in which  the Works  are  located, the 
Contracting Authority may  give  notice  to  the Contractor  that within 
15 days of  the notice he  intends  to pay  such wages, salaries, allow 
ances  and  contributions  direct.  Should  the Contractor  contest  that 
such payments are due, he shall make  representations  to the Contract 
ing Authority with  reasons, within  the  15  day  period.  If  the Con 
tracting Authority, having  considered  such representations, is of the 
opinion that payment of the wages and salaries  should be made, it may 
pay such wages, salaries, allowances and contributions  out of amounts 
due  to  the Contractor.  Failing  this,  he may  obtain  a  contribution 
under any of the guarantees provided for  in these General Conditions. 
Any  action  taken  by  the  Contracting  Authority  under  this  Article, 
shall not  relieve  the Contractor  of his obligations  to his employees, 
except  to the extent  that any obligation may be satisfied by this ac 
tion.  The  Contracting  Authority  shall  not  assume  any  responsibi 
lity towards the Contractor's  employees by this action. 

OBLIGATIONS OF THE CONTRACTOR 

ARTICLE 12 

General Obligations 

12.1  The Contractor  shall, with due  care and diligence, and  in accordance 
with  the provisions  of  the Contract, design  the Works  to  the  extent 
stated  in the Contract, and execute, complete and  remedy any defects 
in the Works.  The Contractor  shall provide all superintendence, per 
sonnel, materials, Plant, Equipment  and all other  items, whether  of a 
temporary or permanent nature required  in and for such design, execu 
tion,  completion  and  remedying  of  any defects,  insofar  as  specified 
in, or can be reasonably  inferred  from, the Contract. 

12.2  The Contractor  shall  take full  responsibility  for  the  adequacy, sta 

bility and safety of all operations and methods of construction under 
the Contract. 

12.3  The Contractor  shall  comply with Administrative  Orders  given  by  the 
Supervisor.  Wnere  the Contractor  considers  that  the  requirements  of 
an Administrative Order  go beyond  the authority of  the Supervisor  or 
of  the  scope of  the Contract he  shall, on pain of being  time-barred, 
give notice, with  reasons, to the Supervisor within 30 days after re 
ceipt  thereof.  Execution  of  the  Administrative  Order  shall  not  be 
suspended because of this notice. 

- 62 -

12.4  The Contractor  shall  respect and abide by all  laws and regulations  in 
force  in the State of the Contracting Authority and shall ensure that 
his personnel, their dependents, and his local employees also respect 
and  abide by all  such laws and  regulations. The Contractor  shall  in 
demnify  the Contracting Authority  against  any claims  and  proceedings 
arising  from  any  infringement  by  the Contractor,  his  employees  and 
their dependents of such laws and regulations. 

12.5  If  the Contractor  or  any  of his  sub-contractors, agents  or  servants 
offers  to give or agrees  to offer or  to give or gives  to any person, 
any  bribe,  gift, gratuity  or  commission  as  an  inducement  or  reward 
for doing  or forbearing  to do any act  in relation  to the Contract  or 
any  other  Contract  with  the  Contracting  Authority;  or  for  showing 
favour  or disfavour  to any person  in relation  to the Contract  or any 
other  Contract with  the Contracting Authority,  then  the  Contracting 
Authority  may, without  prejudice  to  any  accrued  rights  of  the Con 
tractor under  the Contract, terminate  the Contract  in which  case  the 
provisions of Articles 63 and 64 hereof  shall apply. 

12.6  The Contractor  shall  treat  all documents  and  information  received  in 
connection with  the Contract  as private  and  confidential,  and  shall 
not, save insofar as may be necessary for the purposes  of the execu 
tion  thereof,  publish  or  disclose  any  particulars  of  the  Contract 
without  the prior  consent  in writing  of  the Contracting Authority  or 
the Supervisor after consultation with  the Contracting Authority.  If 
any  disagreement  arises  as  to  the  necessity  for  any  publication  or 
disclosure  for  the purpose  of  the Contract, the decision of  the Con 
tracting Authority shall be final. 

12.7  If  the  Contractor  is  a  joint  venture  or  consortium  of  two  or more 
persons,  all  such  persons  shall  be  jointly  and  severally  bound  to 
fulfil  the terms of the Contract according  to the law of the State of 
the Contracting Authority  and  shall, at  the request  of  the Contract 
ing Authority,  designate  one  of  such persons  to  act  as  leader with 
authority  to bind  the  joint venture  or  consortium.  The  composition 
or  the  constitution  of  the  joint venture  or  consortium  shall  not  be 
altered without  the prior consent of the Contracting Authority. 

ARTICLE 13 

Superintendence of the Works 

13.1  The Contractor  shall himself  superintend  the Works  or shall appoint a 
representative  to do  so. Such  appointment  shall  be  submitted  to  the 
Supervisor  for  approval. The  approval may  at  any  time  be withdrawn. 
Should  the Supervisor  refuse  to approve, or withdraw approval  of  the 
appointment, he  shall  set  out  the  grounds  on which  his  decision  is 
based,  and  the  Contractor  shall  submit  an  alternative  appointment 
without delay. 

- 63 -

13.2  If  the  Supervisor withdraws  his  approval  of  the Contractor's  repre 
sentative, the Contractor  shall, as soon as is practicable, after re 
ceiving notice of such withdrawal, remove the representative  from the 
Works  and replace him with another  representative approved by the Su 
pervisor. 

13.3  The Contractor's  representative  shall have full authority to make any 
decision  necessary  for  the  execution  of  the Works,  to  receive  and 
carry out Administrative Orders  and  to countersign  the work  register 
referred  to  in Article  39  or  attachment, where  appropriate.  In any 
event,  the  Contractor  shall  be  responsible  for  ensuring  that  the 
Works  are  carried  out  satisfactorily  including  ensuring  that  the 
specifications  and Administrative  Orders  are  adhered  to  by  his  own 
employees and by his  sub-contractors  and  their employees. 

ARTICLE 14 

Staff 

14.1  The  persons  employed  by  the Contractor must  be  sufficient  in number, 
and  permit  the  optimum use  of  the  human  resources  of  the  State  in 
which  the Works  are located.  Such employees must have  the skills and 
experience  necessary  to  ensure  due  progress  and  satisfactory  execu 
tion of  the Works.  The Contractor  shall  immediately  replace  all  em 
ployees  indicated  by  the Supervisor  as  likely  to  jeopardise  the  sat 
isfactory execution of the Works. 

14.2  The  rates of remuneration and the general working  conditions, as laid 
down  by  the  law  of  the  State  of  the  Contracting  Authority,  shall 
apply as a minimum to employees on the Site. 

ARTICLE IS 

Performance Guarantee 

15.1  The Contractor  shall, within  30 days  of  receipt  of  the  notification 
of  the  award  of  Contract,  furnish  to  the  Contracting  Authority  a 
guarantee  for  the  full  and  proper  performance  of  the Contract.  The 
amount  of  the guarantee  shall  be  as  specified  in  the  Special Condi 
tions  and  shall  not  exceed  109b of  the  amount  of  the Contract  Price 
including  any  amounts  stipulated  in  riders  to  the  Contract,  save 
where  the  Special  Conditions  provide  otherwise.  However,  it may  in 
no case exceed 2 0% of such price. 

15.2  The  performance  guarantee  shall  be held  against  payment  to  the Con 
tracting Authority for any loss resulting from the Contractor's  fail 
ure  to fully and properly perform his obligations under  the Contract. 

- 64 -

15.3  The performance guarantee  shall be  in the format  given  in the Special 
Conditions,  and may  be  provided  in  the  form  of  a  bank  guarantee,  a 
banker's  draft,  a  certified  cheque,  a  bond  provided  by  an  insurance 
and/or bonding company, an irrevocable  letter of credit  or a cash de 
posit made with  the Contracting Authority.  If the performance guaran 
tee  is  to  be  provided  in  the  form  of  a  bank  guarantee,  a  banker's 
draft,  a certified  cheque  or a bond,  it shall  be  issued  by a bank or 
bonding  and/or  insurance  company  approved  by  the  Contracting 
Authority  in accordance with  the  eligibility  criteria  applicable  for 
the award  of the Contract. 

15.4  Unless  stated  otherwise  in  the  Special  Conditions,  the  performance 
guarantee  shall  be  denominated  in  the  types  and  proportions  of  cur 
rencies  in which  the original Contract  is payable. 

15.5  No  payments  shall  be made  in favour  of  the Contractor  prior  to  the 
provision  of  the  guarantee.  The  guarantee  shall  continue  to  remain 
valid until  the Contract has been fully and properly performed. 

15.6  During  the performance  of  the Contract,  if the natural  or  legal per 

son providing  the guarantee  is not  able  to abide  by his  commitments, 
the  guarantee  shall  cease  to  be  valid.  The  Contracting  Authority 
shall give formal notice  to the Contractor  to provide  a new guarantee 
on the same terms as the previous one.  Should  the Contractor  fail to 
provide  a new guarantee,  the Contracting Authority may  terminate  the 
Contract. 

15.7  The Contracting Authority  shall demand  payment  from the guarantee  of 
all  sums for which  the guarantor  is liable under  the guarantee due to 
the Contractor's  default  under  the Contract,  in  accordance with  the 
terms  of  the  guarantee  and  up  to  the  value  thereof.  The  guarantor 
shall, without  delay, pay those sums upon demand  from the Contracting 
Authority  and may not  raise  any objection  for  any  reason whatsoever. 
Prior  to making  any  claim under  the performance  guarantee,  the Con 
tracting Authority  shall notify  the Contractor  stating  the nature  of 
the default  in respect  of which  the claim is to be made. 

15.8  Unless  the  Contract  provides  otherwise  the  performance  guarantee 
shall  be  released within  30  days  of  the  issue  of  the  signed  final 
statement  of account  referred  to in Article 51. 

- 65 -

ARTICLE 16 

Insurance 

16.1  The Contractor  shall  insure  in the joint names of the Contracting Au 
thority and himself against  loss or damage for Which he  is liable un 
der  the  Contract.  Such  insurance  shall, unless  the  Special  Condi 
tions provide otherwise, cover:-

a) the Works,  together  with  materials  and  Plant  for  incorporation 
therein,  to  the  full  replacement  cost  against  all  loss  or  damage 
from whatever  cause arising other  than from force majeure  or risks 

*  attributable under  the Contract  to the Contracting Authority; 

b) an  additional  sum of  15% of  such  replacement  cost,  or  as may  be 
specified  in the Special Conditions, to cover any additional  costs 
of and  incidental  to the rectification of loss or damage  including 
professional  fees  and  the  cost  of  demolishing  and  removing  any 
part of the Works  and of removing debris of whatever nature; 

c) the Contractor's  Equipment  and other  things brought  onto  the Site 

by  the Contractor, for a sum sufficient  to provide  their replace 
ment  at the Site. 

16.2  The Contractor may  substitute  the  insurance  provided  for  in Article 
16.1  by  a  global  policy  of  insurance which  covers,  inter  alia,  the 
elements  of  Article  16.1(a),  (b)  and  (c). In  such  case,  the  Con 
tractor  shall  notify  the  insurer  of  the Contracting  Authority's  in 
terest. 

16.3  The Contractor  shall  take  out  insurance  covering  his  liability with 
regard  to  industrial  accidents  and  civil  liabilities  to  any  person 
employed  by  him  on  the Works,  to  the Contracting  Authority  and  any 
employee  of  that authority, arising  from the execution  of  the Works. 
Such liability shall be  unlimited  in the case of personal  injuries. 

16.4  The Contractor  shall  take  out  insurance  covering  liability with  re 

gard  to  risks  and  civil  liability  resulting  from an  act  or  omission 
attributed  to him, to his  legal  successors or agents.  Such  insurance 
shall  be  for  at  least  the  amount  stated  in  the  Special Conditions. 
Furthermore, he  shall  ensure  that all his  sub-Contractors  have  taken 
out a similar  insurance. 

16.5  All  the  insurance  referred  to  in  this  Article  shall  be  taken  out 
within 30 days of  the notification  of  the award  of  the Contract, and 
shall  be  subject  to approval  by  the Contracting Authority.  Such in 
surance  shall  take  effect  from  the  commencement  of  the Works  and 
remain  in force until  final  acceptance  of  the Works.  The Contractor 
shall  produce  to  the Contracting Authority  the  insurance  policy  and 
shall  furnish  proof  of  regular  payment  of  premiums  without  delay 
whenever  he  is required  to do  so by  the Contracting Authority  or  the 
Supervisor. 

- 66 -

16.6  Notwithstanding the obligations of the Contractor to insure in accor 
dance with Article  16,  the Contractor  shall  be  solely  liable  and 
shall  indemnify the Contracting Authority and the Supervisor against 
any claims by third parties for damage to property or personal inju 
ries arising from the execution of the Works by the Contractor, his 
sub-contractors and employees in connection with the Works. 

ARTICLE 17 

Performance Programme 

17.1  The Contractor shall draw up, and submit for the approval of the Su 
pervisor, a programme of performance of the Contract, in accordance 
with the Special Conditions. The programme shall contain at least the 
following:-

a) the order in which the Contractor proposes to carry out the Works; 

b) the Time Limits within which submission and approval of the Draw 

ings are required; 

c) a general description of the methods which the Contractor proposes 

to adopt for carrying out the Works, and 

d) such further details and information as the Supervisor may reason 

ably require. 

17.2  The approval of the programme by the Supervisor shall not relieve the 

Contractor from any of his obligations under the Contract. 

17.3  No material alteration to the programme shall be made without the ap 

proval  of  the  Supervisor.  If, however,  the  progress  of  the Works 
does not  conform to the programme, the Supervisor may  instruct  the 
Contractor  to revise the programme and submit  the revised programme 
to him for approval. 

ARTICLE 18 

Detailed Breakdown of Prices 

18.1  Wnere appropriate and within a period of not more  than 20 days fol 
lowing  the Supervisor's  reasoned  request, the Contractor  shall pro 
vide a detailed breakdown of his rates and prices, where such break 
down is required for any purpose under the Contract. 

- 67 -

18.2  After  the  notification  of  award,  the  Contractor  shall, within  the 

Time Limit  stated  in the Special Conditions, provide  to  the Supervi 
sor for his  information only, a detailed  cash flow estimate, in quar 
terly  periods,  of  all  payments which may  be  due  to  the  Contractor 
under  the Contract. The Contractor  shall  subsequently  supply  revised 
cash flow estimates at quarterly  intervals, if so required by the Su 
pervisor.  The  Communication  shall  not  impose  any  liability whatso 
ever on the Contracting Authority or the Supervisor. 

ARTICLE 19 

Contractor's Drawings 

19.1  The Contractor  shall  submit  to the Supervisor  for approval:-

a) such drawings, documents,  samples  and/or models  as may  be  speci 

fied  in  the Contract within  the Time Limits  laid  down  therein or 
in the programme of performance; 

b) such  drawings  as  the  Supervisor  may  reasonably  require  for  the 

performance of the Contract. 

19.2  If  the  Supervisor  fails  to notify his  decision  of  approval  referred 
to  in Article  19.1 within  the Time Limits  referred  to  in Contract  or 
•  the  approved  programme  of  performance,  such  drawings,  documents, 
samples  or models  shall  be  deemed  to be  approved  at  the  end  of  the 
Time Limits  specified.  If no Time Limit  is specified,  they  shall be 
deemed  to be approved 30 days after receipt. 

19.3  Approved  Drawings, documents, samples  and models  shall  be  signed  or 
otherwise  identified by the Supervisor and shall not be departed  from 
except  as  otherwise  instructed  by  the  Supervisor. Any  Contractor's 
drawings, documents, samples  or models which  the Supervisor  fails  to 
approve,  shall  be forthwith modified  to meet  the  requirements  of  the 
Supervisor  and resubmitted by the Contractor  for approval. 

19.4  The Contractor  shall  supply additional  copies of approved Drawings  in 

the form and numbers  stated  in the Contract  or  in subsequent Adminis 
trative Orders. 

19.5  The  approval  of  the  Drawings,  documents,  samples  or models  by  the 

Supervisor  shall  not  relieve  the Contractor  from any  of his  obliga 
tions under  the Contract. 

19.6  The  Supervisor  shall  have  the  right  at  all  reasonable  times  to  in 
spect all Contract Drawings, documents, samples or models at the Con 
tractor's premises. 

- 68 -

19.7  Before provisional  acceptance of the Works,  the Contractor  shall sup 
ply  operation  and maintenance manuals  together with  drawings, Which 
shall  be  in  such detail  as will  enable  the Contracting Authority  to 
operate, maintain,  adjust  and  repair  all  parts  of  the Works. Unless 
otherwise  stated  in the Special Conditions, the  manuals and drawings 
shall  be  in  the  language  of  the Contract  and  in such forms  and num 
bers as stated  in the Contract.  The Works  shall not be considered  to 
be  completed  for  the  purpose  of  provisional  acceptance  until  such 
manuals and drawings have been supplied  to the Contracting Authority. 

ARTICLE 20 

Sufficiency of Tender Prices 

20.1  The  Contractor  shall  be  deemed  to  have  inspected  and  examined  the 

Site  and  its  surroundings  and  to have  satisfied  himself  before  sub 
mitting his  tender, as  to the nature of  the ground  and  sub-soil, and 
to have  taken  into account  the form and nature  of  the Site, the ex 
tent  and nature  of  the work  and materials  necessary  for  the comple 
tion of  the Works, the means  of communication with  and  access  to the 
Site,  the  accommodation  he may  require  and  in  general  to  have  ob 
tained  for himself  all necessary  information  as  to risks, contingen 
cies and all other circumstances  influencing  or affecting his tender. 

20.2  The Contractor  shall  be deemed  to have  satisfied  himself  before  sub 
mitting his  tender as to the correctness  and  sufficiency of  the ten 
der  and  of  the  rates  and prices  stated  in  the Bill  of Quantities  or 
Price Schedule which  shall, except  in so far as  it  is otherwise  pro 
vided  in the Contract, cover all his obligations under  the Contract. 

20.3  Since  the Contractor  is deemed  to have determined  his  prices  on  the 
basis  of  his  own  calculations,  operations  and  estimates,  he  shall 
carry out without  additional  charge any work which  is the  subject  of 
any  item whatsoever  in his  tender  for which  he  neither  indicates  a 
unit price nor a firm sum. 

ARTICLE 21 

Exceptional Risks 

21.1  If during  the execution of  the Works  the Contractor  encounters  arti 

ficial obstructions or physical  conditions which could not  reasonably 
have  been foreseen by an experienced Contractor, and  if  the Contrac 
tor  is  of  the  opinion  that  additional  costs will  be  incurred  and/or 
an  extension  of  the  period  of  performance  of  the  Contract will  be 
necessary as a result of this, he shall give notice  to the Supervisor 
in  accordance  with  Articles  35  and/or  55.  The  Contractor  shall 
specify  in  such  notice  the  artificial  obstructions  and/or  physical 
conditions,  giving  details  of  the  anticipated  effects  thereof,  the 
measures he  is taking  or  intends  to take and  the extent  of  the anti 
cipated delay in or  interference with  the execution of the Works. 

- 69 -

21.2  Following receipt of the notice, the Supervisor may inter alia:-

a) require the Contractor  to provide an estimate of the cost of the 

measures he is taking or intends to take; 

b) approve measures referred  to in Article 21.2 (a) with or without 

modification; 

c) give written instructions as to how the artificial obstructions or 

physical conditions are to be dealt with; 

d) order a variation, a suspension, or termination of the Contract. 

21.3  To the extent that the Supervisor shall decide that the whole or part 
of the said artificial obstructions or physical conditions could not 
reasonably have been foreseen by an experienced Contractor, the Su 
pervisor shall:-

a) take into account any delay suffered by the Contractor as a result 
of such obstructions or conditions in determining any extension of 
the period of performance to Which the Contractor  is entitled un 
der Article 35; and/or 

b) in case  of  artificial  obstructions  or physical  conditions  other 
than weather conditions, determine additional payments due to the 
Contractor in accordance with Article 55. 

21.4  Weather  conditions  shall not entitle the Contractor  to claims under 

Article 55. 

21.5  If the Supervisor decides that the artificial obstructions or physi 
cal conditions could, in whole or in part, have been reasonably fore 
seen by an experienced Contractor, he shall so inform the Contractor 
as soon as practicable. 

ARTICLE 22 

Security of Sites 

22.1  The Contractor  shall have the right to forbid access to the site to 
any person not involved in the performance of the Contract, with the 
exception of persons authorised by the Supervisor. 

22.2  The Contractor  shall  ensure  the security of  sites during  the whole 
period of execution and shall be responsible for taking the necessary 
steps, in the interests of his employees, agents of the Contracting 
Authority  and  third parties, to prevent  any loss or accident which 
may result from carrying out the Works. 

70 -

22.3  The Contractor  shall  take  all  essential  steps, on his  own  responsi 
bility and at his expense, to ensure  that existing  structures and in 
stallations are protected, preserved  and maintained.  He  shall be re 
sponsible for providing and maintaining  at his own expense all light 
ing,  protection,  fencing  and  security  equipment which  proves neces 
sary for  the proper performance  of  the Works  or Which may  reasonably 
be required by the Supervisor. 

22.4  If, during  the performance  of  the Contract, urgent measures  are nec 
essary  to obviate  any  risk of  accident  or damage  or  to ensure  secu 
rity following  any accident or damage, the Supervisor  shall give for 
mal  notice  to  the Contractor  to do what  is necessary.  If  the Con 
tractor  is unwilling  or unable  to undertake  the necessary measures, 
the Supervisor may  carry out  the work  at  the expense  of  the Contrac 
tor to the extent  that  the Contractor  is liable. 

ARTICLE 23 

Safeguarding Adjacent  Properties 

23.1  On  his  own  responsibility  and  at  his  expense,  the Contractor  shall 
take  all  the precautions  required  by good  construction  practice  and 
by  the prevailing  circumstances  to safeguard  adjacent  properties  and 
avoid  causing any abnormal disturbance  therein. 

23.2  The Contractor  shall  indemnify  the Contracting Authority  against  the 
financial  consequences  of  all  claims  by  neighbouring  landowners  or 
residents  to the extent  that  the Contractor  is liable and  to the ex 
tent  that  the  damage  to  adjacent  properties  is not  the  result  of  a 
hazard  created  through  the design  or method  of  construction  imposed 
by the Contracting Authority or the Supervisor upon the Contractor. 

ARTICLE 24 

Interference with Traffic 

24.1  The Contractor  shall  ensure  that  the Works  and  installations  do not 
cause damage  to, or obstruct  traffic  on, communication  links  such as 
roads,  railways, waterways  and  aerodromes,  save  as  permitted  under 
the  Special  Conditions.  He  shall,  in  particular,  take  account  of 
weight  restrictions when selecting  routes and vehicles. 

24.2  Any  special  measures  which  the  Contractor  considers  necessary  or 
which  are  specified  in  the  Special Conditions  or which  are  required 
by  the Contracting Authority  in order  to protect  or  strengthen  sec 
tions  of  roads,  tracks  or  bridges,  shall  be  at  the  expense  of  the 
Contractor, whether  or  not  they  are  carried  out  by  the  Contractor. 
The Contractor  shall  inform the Supervisor of any special measures he 
intends  to  take  before  carrying  them out.  The  repair  of  any damage 
caused  to  roads,  tracks  or  bridges  by  the  transport  of materials, 
Plant or Equipment  shall be at the expense of the Contractor. 

- 71 -

ARTICLE 25 

Cables and Conduits 

25.1  Where,  in  the  course  of  carrying  out  the Works,  the Contractor  en 

counters  bench-marks  indicating  the  course  of  underground  cables, 
conduits  and  installations, he  shall  keep  such  bench-marks  in posi 
tion or replace  them, should execution of the Works have necessitated 
their  temporary  removal.  Such  related  operations  require  the autho 
rization of the Supervisor. 

25.2  The Contractor  shall be responsible for  the preservation, removal and 

replacement, as  the case may  be, of  the cables, conduits  and  instal 
lations  specified  by  the Contracting  Authority  in  the Contract  and 
for  the cost thereof. 

25.3  Wnere  the presence  of cables, conduits and  installations has not been 

specified  in  the Contract  but  is  revealed  by  bench-marks  and  refer 
ences, the Contractor  shall be under a general duty of care and simi 
lar  obligations  regarding  preservation,  removal  and  replacement  to 
those  set  out  above.  In  this  case, the Contracting Authority  shall 
compensate him for expenditure, to the extent  that  such work  is nec 
essary for  the execution of the Contract. 

25.4  However,  the  obligations  to  remove  and  replace  cables, conduits  and 
installations  and  the  expenditure  resulting  therefrom  shall  not  be 
the responsibility of the Contractor  if the Contracting Authority de 
cides to accept  that responsibility.  The same shall apply where  this 
obligation  and  the  expenditure  resulting  therefrom  devolve  upon 
another  specialist administration or an agent. 

25.5  When  any work  on  the Site  is likely  to cause disturbances  in or dam 
age to a public utility service, the Contractor  shall  immediately in 
form the Supervisor  in writing, giving  a reasonable  period  of notice 
so that  suitable measures  can be  taken  in time  to allow work  to con 
tinue normally. 

ARTICLE 26 

Setting-Out 

26.1  The Contractor  shall be responsible for: 

a) the  accurate  setting-out  of  the Works  in  relation  to  original 

marks, lines and  levels of reference given by the Supervisor; 

b) the correctness, of the position, levels, dimensions  and alignment 

of all parts of the Works, and 

c) the provision  of all necessary  instruments, appliances  and  labour 

in connection with  the foregoing  responsibilities. 

- 72 

26.2  If, at any  time during  the execution of  the Works, any error  appears 
in  the position,  levels, dimensions  or  alignment  of  any part  of  the 
Works,  the Contractor,  shall,  if  the  Supervisor  so  requires, at  the 
Contractor's  cost,  rectify  such  error  to  the  satisfaction  of  the 
Supervisor, unless  such error  is based  on  incorrect  data  supplied  by 
the Supervisor,  in which  case  the Contracting Authority  shall  be re 
sponsible for the cost of rectification. 

26.3  The checking of any setting-out  or of any line or level by the Super 
visor  shall not  in anyway  relieve  the Contractor  of his responsibil 
ity for  the accuracy  thereof  and  the Contractor  shall  carefully pro 
tect  and preserve  all bench-marks, sight-rails, pegs  and  other  items 
used  in setting-out  the Works. 

ARTICLE 27 

Demolished Materials 

27.1  Wnere  the Contract  includes  demolition work, materials  and  articles 
obtained  therefrom  shall, unless  the  Special  Conditions  and/or  the 
law of  the  State  of  the Contracting Authority  otherwise  provide  and 
subject  to the provisions  of Article  28, be  the property of  the Con 
tractor. 

27.2  Should  the  Special  Conditions  reserve  to  the  Contracting  Authority 
the  right  of  ownership  of materials  or  all  or  part  of  the  articles 
obtained  from the demolition work,  the Contractor  shall  take all  the 
necessary  precautions  to  ensure  that  these  are  preserved.  He  shall 
be liable for any destruction of, or damage  to, such materials  or ar 
ticles caused by him or his agents. 

27.3  Irrespective of the use  to which  the Contracting Authority  intends to 
put  the materials  or  articles,  in  respect  of which  he  reserves  the 
right  of  ownership,  all  costs  incurred  in  transporting  and  storing 
them and all warehouse  charges at the place  indicated by the Supervi 
sor  shall  be  borne  by  the Contractor  for  any  carriage  not  exceeding 
100 metres. 

27.4  Save where  the  Special  Conditions  provide  otherwise,  the  Contractor 

shall, at his  expense, progressively  remove  rubble  and  other demoli 
tion materials, rubbish and debris from the site. 

ARTICLE 28 

Discoveries 

28.1  Discoveries  of any interest whatsoever made during  excavation or dem 
olition work  shall be brought  immediately to the attention of the Su 
pervisor.  The Supervisor  shall decide how such discoveries  are  to be 
dealt with,  taking  due  account  of  the  law of  the  State  of  the Con 
tracting Authority. 

- 73 -

28.2  The Contracting Authority  reserves  the  right  of  ownership  of materi 

als  found  during  the  excavation  and  demolition work  carried  out  on 
land belonging  to him,  subject  to compensating  the Contractor  for any 
special efforts. 

28.3  Artifacts,  antiquities  and  natural,  numismatic,  or  other  objects 
which  are  of  scientific  interest,  and  also  rare  objects  or  objects 
made  of  precious metals  found  during  excavation  or  demolition  work 
shall be the property of the Contracting Authority. 

28.4  In  the  event  of disagreements,  the Contracting  Authority  shall  have 
sole authority  to decide as to the qualifications  set out  in Articles 
28.1  and 28.3. 

ARTICLES 29 

Temporary Wbrks 

29.1  The Contractor  shall  carry out at his expense  all  the temporary works 

to enable  the Works  to be carried out.  He  shall  submit  to the Super 
visor  the drawings  for  temporary works which he  intends  to use,  such 
as  cofferdams,  scaffolding,  trusses  and  shuttering.  He  shall  take 
into account  any observations made  to him by the Supervisor while as 
suming  responsibility for these drawings. 

29.2  Wiere  the  design  of  particular  temporary works  is  specified  in  the 

Special  Conditions  to  be  the  responsibility  of  the  Contracting  Au 
thority,  the  Supervisor  shall  provide  the Contractor with  all  Draw 
ings necessary  in reasonable  time  to enable  the Contractor  to under 
take  the  temporary works  in accordance with  his  programme.  In  such 
cases,  the Contracting Authority  shall  be  solely  responsible  for  the 
safety and  adequacy  of  the design.  However,  the Contractor  shall be 
responsible  for  the proper  construction. 

ARTICLE 30 

Soil Studies 

Subject  to  the  Special  Conditions  and  to  the  technical  specifica 
tions,  the  Contractor  shall  make  available  to  the  Supervisor,  the 
personnel  and  Equipment  necessary  for  carrying  out  any  soil  survey 
which  the Supervisor  considers  reasonably necessary.  The  Contractor 
shall  be  compensated  for  the  actual  cost  of  the manpower  and  Equip 
ment  used  or made  available  in such work,  if not  already provided for 
in the Contract. 

- 74 -

ARTICLE 31 

Overlapping Contracts 

31.1  The Contractor  shall, in accordance with the requirements of the Su 
pervisor, afford all reasonable opportunities for carrying out their 
work  to any other contractors employed by the Contracting Authority 
and their workmen, to the workmen of the Contracting Authority and of 
any other public authorities who may be employed on or near the Site 
in the execution of any work not included in the Contract, or of any 
Contract which the Contracting Authority may enter into in connection 
with, or ancillary to, the Works. 

31.2  If, however, the Contractor, on the written request of the Supervi 

sor, makes available to any such contractor, or public authority, or 
to the Contracting Authority, any roads or ways for the maintenance 
of which  the Contractor  is responsible, or permits  the use  by any 
such other persons of the Contractor's  temporary works, scaffolding 
or  other  Equipment  on  the  Site, or  provides  any  other  service of 
whatsoever  nature, which was not provided  for  in the Contract, the 
Contracting Authority shall pay to the Contractor in respect of such 
use  or  service, such  sums and/or  grant  such extension of  time, as 
shall, in the opinion of the Supervisor, be reasonable. 

31.3  The Contractor  shall not by reason of Article 31 be relieved of any 
of his obligations under the Contract nor shall he be entitled to any 
claims other than those provided for in Article 31.2. 

ARTICLE 32 

Patents and Licences 

Save where otherwise provided in the Special Conditions, the Contrac 
tor  shall  indemnify  the  Contracting  Authority  and  the  Supervisor 
against any claim resulting from the use as specified in the Contract 
of patents, licences, Drawings, designs, models, or brand  or  trade 
marks,  except where  such  infringement  results  from compliance with 
the  design  or  specification provided  by  the Contracting  Authority 
and/or the Supervisor. 

- 75 -

(IMvCNCEMENT AND DELAYS 

ARTICLE 33 

Commencement Orders 

33.1  The Contracting Authority shall fix the date on which performance of 
the Contract is to commence, and advise the Contractor either in the 
notification of award of Contract or by Administrative Order  issued 
by the Supervisor. 

33.2  The date for commencing performance shall be not later than 180 days 
following notification of award of Contract unless agreed otherwise 
by the parties. 

ARTICLE 34 

Period of Performance 

The period of performance shall commence on the date fixed in accor 
dance with Article 33.1 and shall be as stated in the Contract, with 
out prejudice to extensions of the period which may be granted under 
Article 35. 

ARTICLE 35 

Extension of Period of Performance 

35.1  The Contractor may request an extension to the period of performance 
if he is or will be delayed in completing the Contract by any of the 
following causes:-

a) exceptional weather conditions in the State of the Contracting Au 

thority; 

b) artificial  obstructions  or  physical  conditions which  could  not 

reasonably have been foreseen by an experienced contractor; 

c) Administrative Orders affecting the date of completion other than 

those arising from the Contractor's default; 

d) failure of the Contracting Authority to fulfil his obligations un 

der the Contract; 

e) any suspension of the Works which  is not due  to the Contractor's 

default; 

- 76 -

f) force majeure; 

g) any other causes referred to in these General Conditions Which are 

not due to the Contractor's default. 

35.2  The Contractor shall, within 30 days of becoming aware that delay may 
occur, notify the Supervisor of his intention to make a request for 
extension of the period of performance to which he may consider him 
self entitled, and shall, as soon thereafter as is reasonable in the 
circumstances, deliver  to the Supervisor  full and detailed particu 
lars of the request, in order that such request may be investigated 
at the time. 

35.3  The Supervisor  shall, by written notice  to the Contractor after due 
consultation with  the Contracting Authority  and, where appropriate, 
the Contractor, grant such extension of the period of performance as 
may be justified, either prospectively or retrospectively, or inform 
the Contractor that he is not entitled to an extension. 

ARTICLE 36 

Delays in Performance 

36.1  If  the Contractor  fails  to complete  the Works within  the  time pe-
riod(s) specified  in the Contract, the Contracting Authority shall, 
without formal notice and without prejudice to his other remedies un 
der the Contract be entitled  to Liquidated Damages for every day or 
part thereof which shall elapse between the end of the period speci 
fied for performance or extended period of performance under Article 
35 and the actual date of completion, at the rate and up to the maxi 
mum  amount  specified  in the Special Conditions.  If  the Works have 
been the subject of partial acceptance in accordance with Article 59, 
the Liquidated Damages specified in the Special Conditions may be re 
duced in the proportion which the value of the accepted part bears to 
the value of the whole of the Works. 

36.2  If the Contracting Authority has become entitled to the maximum claim 
under Article 36.1 he may, after giving notice to the Contractor:-

a) seize the performance guarantee; and/or 

b) terminate the Contract; and 

c) enter into a contract with a third party at the Contractor's cost 

for the provision of the balance of the Works 

- 77 -

ARTICLE 37 

Variations 

37.1  The Supervisor  shall have power  to order any variation  to any part of 
the Works  necessary  for  the proper  completion  and/or  functioning  of 
the Works.  Such variations may  include additions, omissions, substi 
tutions,  changes  in quality, quantity,  form,  character, kind,  posi 
tion, dimension, level or line and changes  in the specified  sequence, 
method  or timing of execution of the Works.  No order for a variation 
shall have  the effect of  invalidating  the Contract, but  the financial 
effect,  if any, of all  such variations  shall  be valued  in accordance 
with Articles 37.5 and 37.7. 

37.2  No  variation  shall  be made  except  by Administrative Order,  provided 

that:-

a) if for any reason, the Supervisor  shall  find  it necessary  to give 
an  order  orally, he  shall  as  soon  as possible  thereafter  confirm 
the order by an Administrative Order; 

b) if the Contractor  shall confirm in writing  an oral order given for 
the purpose  of Article  37.2 (a) and  the confirmation  shall not be 
contradicted  in writing  forthwith  by  the  Supervisor,  an Adminis 
trative Order  shall  be deemed  to have  been  issued  for  the varia 
tion; 

c) an Administrative  Order  for  variation  shall  not  be  required  for 

increase  or  decrease  in  the  quantity  of  any work where  such  in 
crease  or  decrease  is  the  result  of  the  quantity  exceeding  or 
being  less  than  that  stated  in  the  Bill  of  Quantities  or  Price 
Schedule. 

37.3  Save  as provided  by Article  37.2, prior  to  any Administrative  Order 
for  variation,  the  Supervisor  shall  notify  the  Contractor  of  the 
nature  and  form of  such variation.  As  soon  as  possible,  after  re 
ceiving  such notice, the Contractor  shall  submit  to  the Supervisor  a 
proposal  containing:-

a) a description  of  the  tasks, if  any,  to be  performed  or  the mea 

sures to be taken and a programme for execution; and 

b) any necessary modifications  to the programme  of performance  or  to 

any of the Contractor's  obligations under  the Contract; and 

c) any adjustment  to the Contract  Price  in accordance with  the  rules 

as set out  in Article 37. 

- 78 -

37.4  Following  the  receipt  of  the Contractor's  submission  referred  to  in 
Article  37.3,  the  Supervisor  shall,  after  due  consultation with  the 
Contracting Authority  and, where  appropriate,  the Contractor,  decide 
as  soon  as  possible whether  or  not  the  variation  shall  be  carried 
out.  If  the  Supervisor  decides  that  the variation  shall  be  carried 
out  he  shall  issue  the Administrative Order  stating  that  the varia 
tion  shall  be  carried  out  at  the  prices  and  under  the  conditions 
given  in  the Contractor's  submission  referred  to  in Article  37.3  or 
as modified  by the Supervisor  in accordance with Article 37.5. 

37.5  The prices for all variations  ordered  by the Supervisor  in accordance 
with Articles  37.2 and 37.4 shall be ascertained  by the Supervisor  in 
accordance with  the following principles:-

a) where work  is of similar  character  and executed under  similar con 

ditions  to work priced  in the Bill  of Quantities  or Price  Schedule 
it shall be valued  at  such rates and prices  contained  therein; 

b) where work  is not  of a similar  character  or  is not  executed  under 
similar  conditions,  the  rates  and prices  in the Contract  shall be 
used  as  the  basis  for valuation  so far  as  is  reasonable,  failing 
Which,  a fair valuation shall be made by the Supervisor; 

c) if the nature  or amount  of any variation  relative  to the nature or 
amount  of  the whole  of  the Contract  or  to any part  thereof  shall 
be  such  that  in  the  opinion  of  the  Supervisor  any  rate  or  price 
contained  in  the  Contract  for  any  item  of work  is  by  reason  of 
such  variation  rendered  unreasonable,  then  the  Supervisor  shall 
fix such rate or price as  in the circumstances he  shall  think rea 
sonable and proper; 

d) where  a variation  is necessitated  by default  or breach of Contract 
by the Contractor, any additional  cost attributable  to such varia 
tion shall be borne by the Contractor. 

37.6  On  receipt  of  the Administrative  Order  requesting  the variation,  the 
Contractor  shall  proceed  to  carry  out  the variation  and  be  bound  by 
these General Conditions  in so doing as  if such variation were  stated 
in the Contract.  The Works  shall not be delayed pending  the granting 
of any extension of time for completion or adjustment  to the Contract 
Price.  Where  the  order  for  a variation  precedes  the  adjustment  to 
the Contract  Price, the Contractor  shall keep records of the costs of 
undertaking  the variation and of time expended  thereon.  Such records 
shall  be  open  to  inspection  by  the  Supervisor  at  all  reasonable 
times. 

- 79 -

37.7  Wiere  on provisional  acceptance, an  increase  or  reduction  in  the to 

tal  value  of  the Works  resulting  from  an Administrative  Order,  or 
from some  other  circumstance which  is not  caused  by  the Contractor's 
default,  exceeds  15% of  the  Contract  price,  the  Supervisor  shall, 
after  consultation with  the Contracting Authority  and  the Contractor 
determine  any additions  to or  reduction  from the Contract  Price  as a 
consequence  of  the  application  of Article  37.5.  The  sum  so  deter 
mined  shall  be based  on the amount  by which  the  increase  or  decrease 
in value  of  the Works  exceeds  15%.  The  sum shall  be notified  by  the 
Supervisor  to  the  Contracting  Authority  and  the  Contractor  and  the 
Contract  Price adjusted  accordingly. 

ARTICLE 38 

Suspension 

38.1  The  Contractor  shall,  on  the  order  of  the  Supervisor,  suspend  the 
progress  of  the Works  or any part  thereof  for  such  time or  times and 
in such manner  as the Supervisor may  consider  necessary. 

38.2  During  the period  of  suspension,  the Contractor  shall  take  such pro 

tective measures  as may  be necessary  to  safeguard  the Works,  Plant, 
Equipment  and  Site  against  any deterioration,  loss  or damage.  Addi 
tional  expenses  incurred  in connection with  such protective measures 
shall be added  to the Contract  Price, unless  such suspension is:-

a) otherwise provided  for  in the Contract; or 

b) necessary by reason of some default  of the Contractor; or 

c) necessary by reason of normal  climatic  conditions  on Site; or 

d) necessary  for  the  safety  or  the proper  execution  of  the Works  or 
any part  thereof  insofar as such necessity does not  arise from any 
act  or default  by  the  Supervisor  or  the Contracting Authority  or 
from any of the exceptional  risks  referred  to in Article 21. 

38.3  The  Contractor  shall  not  be  entitled  to  such  additions  to  the Con 
tract  Price  unless  he  notifies  the  Supervisor, within  30 days  after 
receipt  of  the order  to suspend  the Works, of his  intention  to make a 
claim for  them. 

38.4  The Supervisor, after  consultation with  the Contracting Authority and 
the Contractor,  shall  determine  such  extra  payment  and/or  extension 
of  the period  of performance  to be made  to the Contractor  in respect 
of such claim as shall, in the opinion of the Supervisor, be fair and 
reasonable. 

38.5  If  the  period  of  suspension  exceeds  180 days  and  the  suspension  is 
not due  to the Contractor's default,  the Contractor may,  by notice to 
the Supervisor,  request  permission  to proceed within  30 days  or ter 
minate  the Contract. 

- 80 -

MATERIALS ATO WORKMANSHIP 

ARTICLE 39 

Work Register 

39.1  A work register shall, unless otherwise provided by the Special Con 

ditions, be kept on the Site by the Supervisor, who shall enter in it 
at least the following information:-

a) the weather  conditions, interruptions  of work owing  to inclement 
weather, hours of work, number and type of workmen employed on the 
Site, materials supplied, equipment in use, equipment not in work 
ing order, tests carried out in situ, samples dispatched, unfore 
seen circumstances, as well as orders given to the Contractor; 

b) detailed  statements of all the quantitative and qualitative ele 
ments of the work done and the supplies delivered and used, capa 
ble of being checked on the Site and relevant in calculating pay 
ments to be made to the Contractor. 

39.2  The statements shall form an integral part of the work register but 

may, where appropriate, be recorded in separate documents.  The tech 
nical rules for drawing up the statements shall be as set out in the 
Special Conditions. 

39.3  The Contractor  shall  ensure  that  statements  are drawn up,  in good 
time  and  in accordance with  the Special Conditions, in  respect of 
work, services and supplies which cannot be measured or verified sub 
sequently; failing this, he shall accept the decisions of the Super 
visor unless, at his own expense, he provides  evidence  to the con 
trary. 

39.4  Entries made in the work register as work progresses shall be signed 

by the Supervisor and countersigned  by the Contractor or his repre 
sentative.  If the Contractor objects, he shall communicate his views 
to the Supervisor within 15 days following the date on which the en 
try or  the statements objected  to are  recorded.  Should he  fail to 
countersign  or  to  submit his views within  the period  allowed, the 
Contractor shall be deemed to agree with the notes shown in the reg 
ister.  The Contractor may examine the work register at any time and 
may, without removing the document, make or receive a copy of entries 
which he considers necessary for his own information. 

39.5  The Contractor shall, on request, provide the Supervisor with the in 

formation needed to keep the work register in good order. 

- 81 -

ARTICLE 40 

Quality of Works and Materials 

40.1  The Works,  components  and materials  shall  conform  to  the  specifica 
tions,  Drawings,  surveys, models,  samples,  patterns  and  other  re 
quirements  in the Contract which  shall be held at the disposal  of the 
Contracting Authority or the Supervisor for the purposes of identifi 
cation throughout  the period of performance. 

40.2  Any preliminary  technical acceptance  stipulated  in the Special Condi 

tions shall be the subject of a request  sent by the Contractor  to the 
Supervisor.  The  request  shall  indicate  the  reference  to  the  Con 
tract, the  lot number  and  the place where  such acceptance  is to take 
place, as appropriate.  The components and materials  specified  in the 
request must  be  certified  by  the Supervisor  as meeting  the  require 
ments for such acceptance prior  to their  incorporation  in the Works. 

40.3  Even  if materials  or  items  to be  incorporated  in the Works  or  in the 
manufacture  of components have been technically accepted  in this way, 
they may  still  be  rejected  and must  be  replaced  immediately  by  the 
Contractor  if  a  further  examination  reveals  defects  or  faults.  The 
Contractor may be given the opportunity to repair and make good mate 
rials  and  items which  have  been  rejected,  but  such materials  and 
items will  be  accepted  for  incorporation  in  the Works  only  if  they 
have  been repaired  and made  good  to the satisfaction of  the Supervi 
sor. 

ARTICLE 41 

Inspection and Testing 

41.1  The Contractor  shall ensure  that  the components and materials  are de 

livered  to  the Site  in  time  to allow the Supervisor  to proceed with 
acceptance  of  the components  and materials. The Contractor  is deemed 
to have  fully  appreciated  the difficulties which  he might  encounter 
in this respect, and he shall not be permitted  to advance any grounds 
for delay  in fulfilling his obligations. 

41.2  The  Supervisor  shall be  entitled, either by himself  or his  agent, to 
inspect,  examine,  measure  and  test  the  components,  materials  and 
workmanship,  and  check  the  progress  of  preparation,  fabrication  or 
manufacture  of  anything  being  prepared,  fabricated  or  manufactured 
for  delivery  under  the  Contract  in  order  to  establish whether  the 
components, materials  and workmanship  are  of  the  requisite  quality 
and quantity. This  shall  take place at the place of manufacture, fab 
rication, preparation  or  on  the Site  or  at  such other  places  as may 
be specified  in the Contract. 

82 -

41.3  For  the  purposes  of  such  tests  and  inspections,  the  Contractor 

shall:-

a) provide  to  the  Supervisor,  temporarily  and  free  of  charge,  such 

assistance,  test  samples, parts, machines, equipment,  tools or ma 
terials  and  labour  as  are  normally  required  for  inspection  and 
testing; 

b) agree, with  the Supervisor, on the time and place for tests; 

c) provide  access  for  the  Supervisor  at  all  reasonable  times  to  the 

place where  the tests are  to be carried out. 

41.4  If  the  Supervisor  is not  present  on  the  date  agreed  for  tests,  the 

Contractor may,  unless  otherwise  instructed  by  the  Supervisor,  pro 
ceed with  the  tests, which  shall  be deemed  to have  been made  in the 
Supervisor's  presence.  The  Contractor  shall  forthwith  forward  duly 
certified  copies of  the test  results  to the Supervisor, who  shall, if 
he has not  attended  the test, be bound by the test results. 

41.5  Wnen  components  and materials  have  passed  the  tests  referred  to  in 
Article 41, the Supervisor  shall notify  the Contractor  or endorse the 
Contractor's  certificate  to that  effect. 

41.6  If  the  Supervisor  and  the Contractor  disagree  on  the  test  results, 
each  shall  give  a statement  of his views  to the other within  15 days 
after  such disagreement  arises.  The Supervisor  or the Contractor may 
require  such  tests  to  be  repeated  on  the  same  terms  and  conditions 
or,  if  either  party  so  requests,  by  an  expert  to  be  selected  by 
common  consent. All  test  reports  shall be submitted  to the Supervisor 
who  shall  communicate  the results of these  tests without  delay to the 
Contractor.  The  results  of  the  retesting  shall  be  conclusive.  The 
cost  of  the  retesting  shall  be  borne  by  the  party whose  views  are 
proved wrong  by the  retesting. 

41.7  In  the performance  of his duties,  the Supervisor  and  all  persons  au 
thorized by him shall disclose only to those persons who  are entitled 
to know of  it  information which he has  obtained  by  reason of his  in 
spection  and  testing  of  the methods  of manufacture  and  operation  of 
the undertaking. 

- 83 -

ARTICLE 42 

Rejection 

42.1  Components and materials which are not of the specified quality shall 

be  rejected.  A  special mark may be applied  to the  rejected compo 
nents or materials.  This shall not be such as to alter them or af 
fect their commercial value.  Rejected components and materials shall 
be removed by the Contractor from the Site within a period which the 
Supervisor shall specify, failing which they shall be removed by the 
Supervisor  as of  right  at  the  expense  and  risk of  the Contractor. 
Any work incorporating rejected components or materials shall be re 
jected. 

42.2  The Supervisor shall, during the progress of the Works and before the 

Works are taken over have the power to order or decide:-

a) the removal from the Site, within such Time Limits as may be spec 

ified in the order, of any components or materials which, in the 
opinion  of  the  Supervisor, are not  in accordance with  the Con 
tract; 

b) the  substitution of proper and  suitable components or materials; 

or 

c) the demolition  and  proper  re-execution, or  satisfactory  repair, 
notwithstanding  any  previous  test  thereof  or  interim  payment 
therefor, of any work which, in respect of components, materials, 
workmanship or design by the Contractor for which he is responsi 
ble, is not, in the opinion of the Supervisor, in accordance with 
the Contract. 

42.3  The Supervisor shall, as soon as reasonably practicable, give to the 
Contractor notice  in writing of his decision specifying particulars 
of the alleged defects. 

42.4  The Contractor shall with all speed and at his  expense make good the 
defects  so specified.  If the Contractor  does not  comply with  such 
order, the Contracting Authority  shall  be  entitled  to employ other 
persons to carry out the same and all expenses consequent  thereon or 
incidental thereto may be deducted by the Contracting Authority from 
any monies due or which may become due to the Contractor. 

42.5  The provisions of Article 42 shall not affect the right of the Con 

tracting Authority to claim under Articles 36 and 63. 

- 84 -

ARTICLE 43 

Property in Plant and Materials 

43.1  All  Equipment,  temporary works, Plant  and materials  provided  by  the 

Contractor  shall, when  brought  on  the  Site,  be  deemed  to  be  ex 
clusively  intended  for  the execution of  the Works  and  the Contractor 
shall not  remove the same or any part  thereof, except for the purpose 
of moving  it from one part  of  the Site  to another, without  the con 
sent of the Supervisor.  Such consent  shall, however, not be required 
for  vehicles  engaged  in  transporting  any  staff,  labour,  Equipment, 
temporary works, Plant or materials  to or from the Site. 

43.2  The  Special  Conditions  may  provide  that  all  Equipment,  temporary 
works, Plant  and materials  on Site owned by  the Contractor  or by any 
company  in which  the Contractor has a controlling  interest  shall, for 
the duration of the execution of the Works, be:-

a) vested  in the Contracting Authority; or 

b) made  subject  to a lien in favour of the Contracting Authority; or 

c) made  subject  to any other  arrangement  regarding  priority  interest 

or security. 

43.3  In  the  event  of  termination  of  the  Contract  in  accordance  with 
Article  63  due  to  the  Contractor's  breach  of  Contract,  the 
Contracting Authority  shall  be entitled  to use  the Equipment, tempo 
rary works,  Plant  and materials  on  Site  in  order  to  complete  the 
Works. 

43.4  Any  agreement  for  the hire by the Contractor  of Equipment,  temporary 

works, Plant or materials brought onto the Site, shall contain a pro 
vision  that  on  request  in writing made  by  the Contracting  Authority 
within  7 days  after  the date  on which  the  termination under Article 
64 becomes effective, and on the Contracting Authority undertaking  to 
pay  all  hire  charges  in  respect  thereof  from  such  date,  the  owner 
thereof will hire such Equipment, temporary works, Plant or materials 
to  the Contracting Authority  on the same  terms as  they were hired  by 
the Contractor, save that the Contracting Authority  shall be entitled 
to permit  the use  thereof by any other contractor  employed by him for 
completing  the Works under  the provisions of Article 64.3 

43.5  Upon  termination  of  the Contract  before  completion of  the Works, the 

Contractor  shall deliver  to the Contracting Authority any Plant, tem 
porary works, Equipment  or materials  the property  in which has vested 
in the Contracting Authority or been made  subject  to a lien by virtue 
of Article 43.2.  If he fails to do so, the Contracting Authority may 
take  such appropriate  action as  it deems  fit  in order  to obtain pos 
session of  such Plant, temporary works, Equipment, and materials  and 
recover  the cost of so doing from the Contractor. 

-85 -

PAMANTS 

ARTICLE 44 

General Provisions 

44.1  Payments shall be made  in the National Currency except as otherwise 

stipulated in the Contract. 

44.2  The  administrative or  technical  conditions  to which  the payment of 
advances,  interim  and/or  final  payments  made  in  accordance  with 
Articles 45 to 56 are subject, shall be as stated in the Special Con 
ditions. 

ARTICLE 45 

Provisional Price Contracts 

45.1  In  exceptional  cases, where  a provisional  price  contract  has  been 
awarded, the amounts payable under  the Contract  shall be calculated 
as follows:-

a) as for cost-plus Contracts in Article 49.1 (c);  or 

b) initially on the basis of provisional prices and, after the condi 
tions for performing the Contract are known, as for lump-sum Con 
tracts or unit price Contracts in Article 49.1 (a) and (b) respec 
tively, or as in a composite contract. 

45.2  The  Contractor  shall  supply  such  information  as  the  Contracting 
Authority or the Supervisor may reasonably require in respect of any 
matter  relating  to the Contract  for the purpose of the calculation. 
Wnere agreement cannot be reached on the valuation of the Works, the 
amounts payable shall be determined by the Supervisor. 

ARTICLE 46 

Advances 

46.1  If  the Special Conditions  so provide, advances  shall  be granted to 

the Contractor, at his request, for operations connected with the ex 
ecution of the Works, in the cases listed hereinafter:-

a) as a lump-sum advance enabling him to meet  expenditure  resulting 

from the commencement of the Contract; 

- 86 -

b) if he  affords  proof  of  the  conclusion  of  a Contract  for  the pur 
chase or order of materials, Plant, Equipment, machines  and tools, 
necessary for  the execution of the Contract, and of any other sub 
stantial  prior  expenses  such  as  the  acquisition  of  patents  or 
study costs. 

46.2  The  Special  Conditions  shall  state  the  amount  of  the  advances which 
shall not  exceed  10% of the original Contract  Price  in respect  of the 
lump-sum  advance  in Article  46.1(a) and  20%  of  such prices  for  all 
other advances  in Article  46.1(b). 

46.3  No advance  shall be granted until:-

a) the conclusion of the Contract; 

b) provision  to  the Contracting  Authority  by  the Contractor  of  the 

performance  guarantee  in accordance with Article  15; and 

c) provision  to the Contracting Authority by the Contractor  of a sep 

arate directly  liable guarantee for  the full amount  of the advance 
by  the  institutions  referred  to  in Article  15.3, which  shall  re 
main  effective until  the advance has been completely  repaid by the 
Contractor  out of  interim payments under  the Contract. 

46.4  The Contractor  shall use  the advance  exclusively  for  operations  con 

nected with  the execution of the Works.  Should  the Contractor misuse 
any portion of the advance,  it shall become due and repayable  immedi 
ately and no further  advance payments will  be made  to him. 

46.5  Should  the  advance  guarantee  cease  to  be  valid  and  the  Contractor 
fail  to re-validate  it, either a deduction equal  to the amount  of the 
advance may be made by the Contracting Authority from future payments 
due  to  the  Contractor  under  the  Contract,  or  the  Contracting 
Authority may  apply the provisions of Article 15.6. 

46.6  If  the Contract  is  terminated  for  any  reason whatsoever,  the guaran 

tees securing  the advances may be  invoked  forthwith  in order  to repay 
the  balance  of  the  advances  still  owed  by  the  Contractor,  and  the 
guarantor  shall  not  delay  payment  or  raise  objection  for  any  reason 
whatever. 

46.7  The advance guarantee provided  for  in Article 46 shall be released as 

and when advances  are  repaid. 

46.8  Further  conditions  and procedures  for  granting  and  repaying  advances 

shall be as laid down  in the Special Conditions. 

- 87 -

ARTICLE 47 

Retention Sum 

47.1  The sum which shall be retained from interim payments byway of guar 
antee to meet the Contractor's obligations during the Maintenance Pe 
riod, and the detailed rules governing that guarantee, shall be stip 
ulated in the Special Conditions, provided that it shall, in no case, 
exceed 10% of the Contract Price. 

47.2  Subject to the approval of the Contracting Authority, the Contractor 
may, if he so wishes, substitute, not  later than the date fixed for 
the commencement  of the Works, these  retention  sums by a retention 
guarantee issued in accordance with Article 15.3. 

47.3  The sum retained or the retention guarantee shall be released within 

90 days of the date of final acceptance of the Works. 

ARTICLE 48 

Revision of Prices 

48.1  Unless otherwise stipulated  in the Special Conditions, and except as 
provided in Article 48.4, the Contract shall be at fixed prices which 
shall not be revised. 

48.2  Wiere prices may be revised under  the Contract, such revision shall 
take  into account variations  in the prices of  significant  local or 
external elements which served as a basis for the calculation of the 
tender price, such as manpower, services, materials and supplies, as 
well as charges laid down by law or regulation.  The detailed rules 
for the revision shall be as laid down in the Special Conditions. 

48.3  Prices contained in the Contractor's tender shall be deemed:-

a) to have been arrived at on the basis of the conditions in force 30 
days prior to the latest date fixed for submission of tenders; or 
in the case of direct agreement Contracts, on the date  the Con 
tract; 

b) to have taken account of the legislation and the relevant tax ar 
rangements applicable at the reference date fixed in Article 48.3 
(a). 

48.4  In the event of changes to, or introduction of, any national or State 
statute, ordinance, decree or other law, or any regulation or bye-law 
of any local or other public authority, after the date stated in Ar 
ticle 48.3 which causes a change in the contractual relationship be 
tween the parties to the Contract, the Contracting Authority and the 
Contractor  shall  consult  on how best  to proceed  further  under  the 
Contract, and may as a result of such consultation decide:-

- 88 -

a) to modify  the Contract; or 

b) on  payment  of  compensation  for  the  resulting  imbalance  by  one 

party to the other; or 

c) to terminate  the Contract  by mutual  agreement. 

48.5  In  the  event  of  a delay  in the  execution  of  the Works  for which  the 
Contractor  is responsible, or at  the end of the period  of performance 
revised  as necessary  in accordance with  the Contract,  there  shall  be 
no  further  revision  of  prices within  the  30 days  before  provisional 
acceptance,  except  for  the  application  of  new price  indexation,  if 
this  is to the benefit  of the Contracting Authority. 

ARTICLE 49 

Measurement 

49.1  The  following  methods  shall  apply  to  the  valuation  of Works  Con 

tracts: 

a) For  lump-sum contracts, the amount due under  the Contract  shall be 
determined  on  the  basis  of  the  breakdown  of  the  overall  Contract 
Price, or on the basis of a breakdown expressed  as a percentage of 
the Contract  Price  corresponding  to completed  stages of  the Works. 
Wnere  items  are  accompanied  by  quantities,  these  shall  be  firm 
quantities  for  which  the  Contractor  has  submitted  his  all-in 
price,  and  shall  be  paid  for  irrespective  of  the  quantities  of 
work actually carried out. 

b) For unit price contracts:-

i)  the  amount  due under  the Contract  shall  be  calculated  by ap 

plying  the unit  rates  to the quantities  actually executed for 
the respective  items, in accordance with  the Contract; 

ii)  the quantities  set out  in the Bill  of Quantities  shall be the 
estimated  quantities  of  the Works, which  shall  not  be  taken 
as  the actual  and correct  quantities  of  the Works  to be exe 
cuted by the Contractor  in fulfillment  of his obligations un 
der  the Contract; 

iii) the  Supervisor  shall  determine  by  measurement  the  actual 
quantities  of the Works  executed  by the Contractor, and  these 
shall  be  paid  for  in  accordance  with  Article  50.  Unless 
otherwise  provided  in  the  Special  Conditions  no  additions 
shall  be made  to  the  items  in  the Bill  of Quantities  except 
as  a  result  of  a variation  in accordance with Article  37 or 
other  provision  of  the Contract  entitling  the Contractor  to 
additional payment; 

- 89 -

iv)  the Supervisor  shall, when he requires any parts of the Works 
to  be measured,  give  reasonable  notice  to  the Contractor  to 
attend,  or  to  send  a qualified  agent  to  represent  him.  The 
Contractor  or his agent shall assist  the Supervisor  in making 
such measurements  and  shall  furnish  all  particulars  required 
by the Supervisor.  Should  the Contractor not attend, or omit 
to send such agent, the measurement made by the Supervisor or 
approved by him shall be binding on the Contractor; 

v) 

the Works  shall  be measured  net, notwithstanding  any  general 
or  local  custom,  except where  otherwise  provided  for  in  the 
Contract. 

c) For  cost-plus  contracts, the  amount  due  under  the Contract  shall 
be determined  on the basis of actual costs with an agreed  addition 
for  overheads  and  profit. The  Special  Conditions  shall  stipulate 
the  information which  the Contractor  is required  to  submit  to the 
Supervisor  for  the  purpose  of Article  49.1(c) and  the manner  in 
which  it should be submitted. 

49.2  Wnere  an  item in the Contract  is indicated  as "provisional" the Pro 
visional Sum set aside for  it shall not be taken into account  in cal 
culating  the percentages  referred  to in Article 37. 

ARTICLE 50 

Interim Payments 

50.1  Unless  otherwise  specified  in the Special Conditions, the Contractor 
shall  submit  an application  for  interim payment  to  the Supervisor  at 
the end of each period  referred  to in Article 50.7 in a form approved 
by  the  Supervisor.  The  application  shall  include  the  following 
items, as applicable:-

a) the  estimated  Contract  value  of  the permanent Works  executed  up 

to the end of the period  in question; 

b) an  amount  reflecting  any  revision  of  prices  pursuant  to Article 

48; 

c) an amount  to be withheld  as retention sum under of Article 47; 

d) any  credit  and/or  debit  for  the period  in question  in  respect  of 
Plant and materials  on Site  intended  for, but not yet  incorporated 
in, the permanent Works  in the amount and under  the conditions set 
out  in Article 50.2; 

e) an amount  to be deducted  on account of the advance  repayment under 

the provisions of Article 46; and 

f) any  other  sum  to which  the Contractor may  be  entitled  under  the 

Contract. 

- 90 -

50.2  The Contractor  shall  be  entitled  to  such  sums  as  the  Supervisor  may 
consider  proper  in  respect  of  Plant  and materials  intended  for, but 
not yet  incorporated  in, the permanent Works provided  that:-

a) the  Plant  and materials  conform with  the  specifications  for  the 
permanent Works  and  are  set  out  in batches  in a way  that  they may 
be recognised  by the Supervisor; 

b) such Plant  and materials have  been delivered  to  the Site, and  are 

properly stored and protected  against  loss or damage or deteriora 
tion to the satisfaction of the Supervisor; 

c) the Contractor's  record  of  requirements,  orders,  receipts  and use 
of  Plant  and  materials  under  the  Contract  are  kept  in  a  form 
approved  by  the Supervisor  and  such records  are  available  for  in 
spection by the Supervisor; 

d) the Contractor  submits with his  statement,  the  estimated  value of 
the  Plant  and materials  on  Site  together with  such  documents  as 
may  be  required  by  the Supervisor  for  the purpose  of valuation of 
the  Plant  and materials  and  providing  evidence  of  ownership  and 
payment  therefor; and 

e) where  the  Special  Conditions  so  provide,  ownership  of  the  Plant 
and  materials  referred  to  in Article  43  shall  be  deemed  to  be 
vested  in the Contracting Authority. 

50.3  Approval  by the Supervisor  of any interim payment  certified by him in 
respect  of  Plant  and  materials  pursuant  to  Article  50  shall  be 
without  prejudice  to the exercise  of any power  of  the Supervisor  un 
der  the Contract  to  reject  any  Plant  or materials which  are  not  in 
accordance with  the provisions  of the Contract. 

50.4  The  Contractor  shall  be  responsible  for  any  loss  or  damage  to,  and 
for  the cost  of  storing  and handling  of, such Plant  and materials  on 
Site  and  shall  effect  such  additional  insurance  as may  be  necessary 
to cover  the risk of such loss or damage from any cause. 

50.5  Within  30  days  of  receipt  of  the  said  application  for  interim pay 
ment,  it shall be approved  or amended  in such manner  that, in the Su 
pervisor's  opinion,  the  application  reflects  the  amount  due  to  the 
Contractor  in accordance with  the Contract.  In cases where  there  is 
a difference  of opinion as  to  the value  of an  item,  the  Supervisor's 
view shall  prevail.  On  determination  of  the  amount  due  to  the Con 
tractor,  the Supervisor  shall  issue  to  the Contracting Authority  and 
the Contractor  an  interim payment  certificate  for  the  amount  due  to 
the Contractor  and  shall  inform the Contractor  of the Works  for which 
payment  is being made. 

- 91 -

50.6  The  Supervisor may, by an  interim payment  certificate, make  any cor 

rections  or modifications  to  any previous  certificate  issued  by  him 
and  shall  have  power  to modify  the  valuation  in,  or withhold  the 
issue  of, any  interim payment  certificate  if  the Works  or  any  part 
thereof are not being carried out  to his satisfaction. 

50.7  Unless  the Special Conditions  provide  otherwise, the frequency  shall 

be one  interim payment per month. 

ARTICLE 51 

Final Statement  of Account 

51.1  Not  later  than 90 days  after  the  issue  of  the Final Acceptance  cer 

tificate  referred  to  in Article  62, the Contractor  shall  submit  to 
the  Supervisor  a  draft  final  statement  of  account  with  supporting 
documents  showing  in detail  the value  of  the work done  in accordance 
with  the Contract, together with  all  further  sums which  the Contrac 
tor considers  to be due  to him under  the Contract  in order  to enable 
the  Supervisor  to prepare  the  final  statement  of  account.  The  Spe 
cial Conditions may, however,  in accordance with Article  51.6, state 
that  the draft final  statement of account and further proceedings re 
lated  thereto, be dealt with  before  the  issue of  the provisional  ac 
ceptance certificate. 

51.2  Within  90 days  after  receipt  of  the draft  final  statement  of  account 
and  of all  information  reasonably  required  for  its verification, the 
Supervisor  shall prepare  the final  statement of account, which deter 
mines :-

a) the amount which  in his opinion is finally due under  the Contract; 

and 

b) after  establishing  the amounts previously paid  by  the Contracting 
Authority  and  all  sums  to which  the Contracting Authority  is en 
titled  under  the  Contract,  the  balance,  if  any,  due  from  the 
Contracting Authority  to the Contractor, or from the Contractor  to 
the Contracting Authority, as the case may be. 

51.3  The  Supervisor  shall  issue  to  the  Contracting  Authority  or  to  its 
duly  authorised  representative,  and  to  the  Contractor,  the  final 
statement of account  showing  the final amount  to which  the Contractor 
is  entitled  under  the  Contract.  The  Contracting  Authority  or  its 
duly authorised  representative  and  the Contractor  shall  sign  the fi 
nal  statement  of account  as an acknowledgement  of  the full  and  final 
value  of  the work  performed  under  the  Contract  and  shall  promptly 
submit a signed copy to the Supervisor.  However, the final  statement 
of account  shall not  include amounts  in dispute which are the subject 
of negotiations, conciliation, arbitration or litigation. 

- 92 -

51.4  The final  statement of account  signed by the Contractor  shall consti 

tute a written discharge of the Contracting Authority confirming that 
the total  in the final  statement of account  represents full and final 
settlement  of  all monies  due  to  the Contractor  under  the Contract, 
other  than  those  amounts which  are  the  subject  of  amicable  settle 
ment,  arbitration  or  litigation.  However,  such  discharge  shall 
become  effective  only  after  any  payment  due  in  accordance with  the 
final  statement  of account has been made  and  the performance  guaran 
tee referred  to in Article 15 has been returned  to the Contractor. 

51.5  The Contracting Authority  shall  not  be  liable  to  the Contractor  for 
any matter  or thing whatsoever  arising out of, or  in connection with, 
the Contract  or  execution  of  the Works, unless  the Contractor  shall 
have  included a claim in respect  thereof  in his draft  final  statement 
of account. 

51.6  The  provisions  of Article 51 may be varied by  the Special Conditions 
having  regard  to  the  practices  in  the  State  of  the Contracting Au 
thority. 

ARTICLE 52 

Direct Payments to Sub-Contractors 

52.1  Wnen  the  Supervisor  receives  a  claim from a  sub-contractor  duly ap 

proved under Article  7  to the effect  that  the Contractor has not met 
his  financial  obligations  so far as  the  sub-contractor  is  concerned, 
the Supervisor  shall give notice  to the Contractor  either  to pay  the 
sub-contractor  or to inform him of the reasons why payment  should not 
be made.  Should  such  payment  not  be made,  or  reasons  not  be  given 
within  the  period  of  notice,  the  Supervisor  may,  after  satisfying 
himself  that  the  work  has  been  carried  out,  certify,  and  the 
Contracting  Authority  shall  meet  the  debt  claimed  by  the  sub 
contractor out of the sums remaining due to the Contractor.  The Con 
tractor  shall  remain entirely responsible  for  the work  in respect  of 
which direct payment has been made. 

52.2  If  the Contractor  gives adequate  reasons for  refusing  to meet  all or 
part  of  the  debt  claimed  by  the  sub-contractor,  the  Contracting 
Authority  shall  only pay  to  the  sub-contractor  such  sums  as  are not 
in dispute.  Sums  claimed  by  the  sub-contractor  in  respect  of which 
the  Contractor  has  given  adequate  reasons  for  his  refusal  to  pay 
shall  be  paid  by  the  Contracting  Authority  only  after  the  parties 
have  come  to an amicable  settlement, or after  the decision of an ar 
bitrating  authority or after  a judgment  of a court has been duly no 
tified  to the Supervisor. 

52.3  Direct payments  to sub-contractors  shall not exceed  the value at Con 

tract  prices  of  the  services  performed  by  the  sub-contractors  for 
which  they  request  payment;  the  value  at  Contract  prices  shall  be 
calculated  or  assessed  on  the  basis  of  the  Bill  of Quantities,  the 
Price Schedule or the breakdown of the lump sum price. 

- 93 -

52.4  Direct  payments  to sub-contractors  shall be made  entirely  in the Na 

tional Currency of the country in which  the Contract  is performed, or 
partly  in  such national  currency  and  partly  in Foreign Currency,  in 
accordance with  the Contract. 

52.5  Wnere  direct  payments  to  sub-contractors  are made  in  Foreign  Cur 

rency,  they shall  be  calculated  in accordance with Article  56.  They 
shall not  result  in any increase  in the total  amount payable  in For 
eign Currency, as stipulated  in the Contract. 

52.6  The provisions  of Article 52 shall  apply  subject  to  the  requirements 
of the law applicable by virtue of Article 54 concerning  the right to 
payment of creditors who are beneficiaries of an assignment  of credit 
or of a collateral  security. 

ARTICLE 53 

Delayed Payments 

53.1  Payment  to  the Contractor  of  the  amounts  due  under  each  of  the  in 

terim payment  certificates  and  the final  statement  of  account  issued 
by  the  Supervisor  shall  be made  by  the Contracting Authority within 
90 days of  such certificate  or  statement  being delivered  to  the Con 
tracting Authority.  If the period  laid down for payment has been ex 
ceeded, the Contractor  shall qualify for  interest  calculated pro rata 
on the basis of the number of days delay at the rate specified  in the 
Special  Conditions,  subject  to  a  maximum  period,  also  specified 
therein.  The  Contractor  shall  be  entitled  to  such  payment  without 
prejudice  to  any  other  right  or  remedy  under  the  Contract.  In  the 
case  of  the final  statement  of account, the  interest  for  the delayed 
payment  shall be calculated on a daily basis at the rate specified  in 
the Special Conditions. 

53.2  Any  default  in payment  of more  than 120 days  from the  expiry  of  the 
period  laid down  in Article  53.1  shall  entitle  the Contractor  either 
not  to perform the Contract or to terminate it. 

ARTICLE 54 

Payments  to Third Parties 

54.1  All  orders for payments  to third parties may  be  carried  out only af 
ter an assignment made  in accordance with Article  6.  The  assignment 
shall be notified  to the Contracting Authority. 

54.2  Notification of beneficiaries of the assignment  shall be the sole re 

sponsibility of the Contractor. 

- 94 -

54.3  In  the  event  of  a  legally binding  attachment  of  the property  of  the 
Contractor  affecting  payments due  to him under  the Contract, without 
prejudice  to the Time Limit  laid down  in Article  53, the Contracting 
Authority  shall have 30 days,  starting  from the day when  it  receives 
notification of the definitive  lifting of the obstacle  to payment, to 
resume payments  to the Contractor. 

ARTICLE 55 

Claims for Additional  Payment 

55.1  If  under  the Contract  there  are  circumstances which  the  Contractor 

considers entitle him to additional payment, the Contractor  shall:-

a) if he  intends  to make  any  claim for  additional  payment, give  to 
the  Supervisor  notice  of his  intention  or make  such  claim within 
15 days  after  the  said  circumstances  become known  to the Contrac 
tor, stating  the reason for his claim; and 

b) as soon as is reasonably practicable after  the date of such notice 
but  not  later  than  60  days  after  such  notice,  unless  otherwise 
agreed  by  the  Supervisor,  submit  to  the  Supervisor  full  and  de 
tailed  particulars  of  his  claim.  In  any  event,  such  particulars 
shall  be  submitted  no  later  than  the  date  of  submission  of  the 
draft  final  statement  of account. The Contractor  shall  thereafter 
promptly  submit  such  further  particulars  as  the  Supervisor  may 
reasonably require  to assess the validity of the claim. 

55.2  Wnen  the Supervisor has received  the full and detailed particulars of 
the Contractor's  claim that he  requires, he  shall, without  prejudice 
to  Article  21.4,  after  due  consultation  with  the  Contracting 
Authority  and, where  appropriate,  the Contractor,  determine whether 
the Contractor  is entitled  to additional  payment  and notify  the par 
ties accordingly. 

55.3  The Supervisor may  reject any claim for additional payment which does 

not comply with  the requirements of Article 55. 

ARTICLE 56 

Payments  in Foreign Currency 

Wnere  under  the Contract  the Contractor  is  entitled  to  payments  in 
Foreign Currency,  the  rates of exchange  for  calculating  the payments 
shall  be  those prevailing, as determined  by  the Central  Bank  of  the 
State  of  the Contracting Authority, 30 days prior  to the  latest date 
fixed  for  the submission of  tenders  for  the Contract.  Such  rates of 
exchange  shall not be varied. 

- 95 -

ACCEPTANCE AND MAINTENANCE 

ARTICLE 57 

General Clauses 

57.1  Verification  of  the Works  by  the  Supervisor with  a  view  to provi 

sional  or  final  acceptance  shall  take  place  in  the  presence  of  the 
Contractor.  The absence of the Contractor  shall not be a bar  to ver 
ification  on  condition  that  the Contractor  has  been  summoned  in due 
form at least 30 days prior  to the date of verification. 

57.2  Should  exceptional  circumstances make  it  impossible  to ascertain  the 
state of the Works  or otherwise proceed with  their acceptance during 
the  period  fixed  for  provisional  or  final  acceptance,  a  statement 
certifying  such  impossibility  shall  be  drawn  up  by  the  Supervisor 
after consultation, where possible, with  the Contractor.  The verifi 
cation  shall  take  place  and  a  statement  of  acceptance  or  rejection 
shall be drawn up by the Supervisor within 30 days following  the date 
on which  such  impossibility  ceases  to  exist.  The  Contractor  shall 
not  invoke  these  circumstances  in  order  to  avoid  his  obligation  to 
present  the Works  in a state suitable for acceptance. 

ARTICLE 58 

Tests on Completion 

58.1  The Works  shall  not  be  accepted  until  the  prescribed  verifications 
and  tests  have  been  carried  out  at  the  expense  of  the  Contractor. 
The Contractor  shall notify the Supervisor  of  the date  on which  such 
verification and  tests may commence. 

58.2  Works which do not  satisfy  the  terms and  conditions  of  the Contract, 
or  in the absence of such terms and conditions, which are not  carried 
out  in accordance with  trade practices  in  the State where  the Works 
are  located,  shall,  if  required,  be  demolished  and  rebuilt  by  the 
Contractor  or  repaired  to the satisfaction  of  the Supervisor, other 
wise  this  shall  be done  as of  right  after  due notice  at  the  expense 
of  the Contractor,  by  order  of  the  Supervisor.  The  Supervisor  may 
also  require  the demolition  and  reconstruction  by  the Contractor, or 
repair  to  the  satisfaction  of  the  Supervisor, under  the  same condi 
tions  of wotfk,  in which  unacceptable  materials  have  been  used,  or 
carried out  in the periods of suspension provided  for  in Article 38. 

- 96 -

ARTICLE 59 

Partial Acceptance 

59.1  The  Contracting  Authority  may  make  use  of  the  various  structures, 
parts of structures or sections of the Works  forming part of the Con 
tract  as and when  they are completed.  Any' taking  over  of  the struc 
tures, parts  of  structures  or  sections  of  the Works  by  the Contract 
ing Authority  shall  be preceded  by  their  partial  provisional  accep 
tance.  However, Works may  in cases of urgency be taken over prior to 
acceptance  provided  an  inventory  of  outstanding work  is drawn up  by 
the Supervisor  and agreed  to by the Contractor  and the Supervisor be 
forehand.  Once  the Contracting Authority  has  taken possession  of  a 
structure,  a  part  thereof  or  section  of  the Works,  the  Contractor 
shall no  longer be  required  to make  good  any damage  resulting  other 
wise  than from faulty construction or workmanship. 

59.2  The  Supervisor may,  at  the  request  of  the Contractor  and  if  the na 
ture  of  the Works  so  permits, proceed with  partial  provisional  ac 
ceptance, provided  that  the  structures, parts  of  structures  or  sec 
tions  of  the Works  are  completed  and  suited  to  the use  as  described 
in the Contract. 

59.3  In the cases of partial provisional  acceptance  referred  to in Article 
59.1  and  59.2  the  maintenance  period  provided  for  in  Article  62 
shall, unless  the  Special Conditions  provide  otherwise,  run  as  from 
the date of such partial provisional  acceptance. 

ARTICLE 60 

Provisional Acceptance 

60.1  The Works  shall be  taken over by the Contracting Authority when  they 
have  satisfactorily passed  the tests on completion and a  certificate 
of  provisional  acceptance  has  been  issued  or  is deemed  to have  been 
issued. 

60.2  The Contractor may apply, by notice  to the Supervisor, for a certifi 

cate  of  provisional  acceptance  not  earlier  than  15  days  before  the 
Works,  in the Contractor's  opinion, are complete and ready for provi 
sional  acceptance. The Supervisor  shall within 30 days  after  the re 
ceipt of the Contractor's  application either:-

a) issue  the certificate  of provisional  acceptance  to  the Contractor 
with  a copy  to the Contracting Authority  stating, where  appropri 
ate, his  reservations, and, inter alia, the date on which,  in his 
opinion, the Works were  completed  in accordance with  the Contract 
and  ready for provisional  acceptance; or 

b) reject  the  application  giving  his  reasons  and  specifying  the ac 

tion which,  in his opinion, is required  of  the Contractor  for  the 
certificate  to be  issued. 

- 97 -

60.3  If  the Supervisor  fails  either  to  issue  the  certificate  of provi 
sional  acceptance  or  to reject  the Contractor's  application within 
the period of 30 days, he shall be deemed to have issued the certifi 
cate on the last day of that period.  The certificate of provisional 
acceptance shall not be deemed to be an admission that the Wbrks have 
been  completed  in every  respect.  If  the Works  are divided  by the 
Contract into sections, the Contractor shall be entitled to apply for 
separate certificates for each of the sections. 

60.4  Upon provisional  acceptance of the Works, the Contractor  shall dis 

mantle and remove temporary structures as well as materials no longer 
required for use in connection with the performance of the Contract. 
He shall also remove any litter or obstruction and redress any change 
in the condition of the Site as required by the Contract. 

60.5  Immediately  after provisional  acceptance, the Contracting Authority 

may make use of all the Works as completed. 

ARTICLE 61 

Maintenance Obligations 

61.1  The Contractor shall be responsible for making good any defect in, or 
damage to, any part of the Works which may appear or occur during the 
Maintenance Period or within 30 days after its expiration and which 
arises either from:-

a) the use of defective Plant or materials or faulty workmanship or 

design of the Contractor; and/or 

b) any act or omission of the Contractor during the Maintenance Pe 

riod. 

61.2  The Contractor shall at his own cost make good the defect or damage 

as  soon  as practicable.  The Maintenance  Period  for  all  items re 
placed or renewed shall recommence from the date when the replacement 
or  renewal was made  to the satisfaction of  the Supervisor.  If the 
Contract  provides  for  partial  acceptance,  the Maintenance  Period 
shall be extended only for the part of the Works affected by the re 
placement or renewal. 

61.3  If any such defect appears or such damage occurs, during the period 

referred to in Article 61.1, the Contracting Authority or the Super 
visor shall notify the Contractor. If the Contractor fails to remedy 
a defect or damage within the Time Limit stipulated in the notifica 
tion, the Contracting Authority may:-

- 98 -

a) carry  out  the Works  himself,  or  employ  someone  else  to  carry out 
the Works,  at  the Contractor's  risk  and  cost,  in which  case  the 
costs  incurred by the Contracting Authority  shall be deducted  from 
monies  due  to or from guarantees held  against,  the Contractor, or 
from both; or 

b) terminate  the Contract. 

61.4  If  the  defect  or  damage  is  such  that  the Contracting  Authority  has 
been deprived  substantially  of  the whole  or a part  of  the benefit  of 
the Works,  the Contracting Authority  shall, without  prejudice  to any 
other  remedy, be  entitled  to recover  all  sums paid  in respect  of  the 
parts  of  the Works  concerned  together with  the  cost  of  dismantling 
such parts and clearing  the Site. 

61.5  In case  of  emergency, where  the Contractor  cannot  be  reached  immedi 
ately  or,  having  been  reached,  is  unable  to  take  the measures  re 
quired,  the Contracting Authority or the Supervisor may have  the work 
carried  out  at  the  expense  of  the Contractor.  The  Contracting  Au 
thority  or  the  Supervisor  shall  as  soon  as  practicable  inform  the 
Contractor  of the action taken. 

61.6  Wnere  the Special Conditions  stipulate  that  the maintenance work, ne 
cessitated  by normal wear  and  tear,  shall  be  carried  out  by  the Con 
tractor,  such work  shall  be paid  for  from a Provisional  Sum.  Deter 
ioration  resulting  from the circumstances  provided  for  in Article  21 
or from abnormal use  shall be excluded  from this obligation unless it 
reveals a fault  or defect  justifying  the request  for repair or repla 
cement under Article 61. 

61.7  The maintenance  obligations  shall  be  stipulated  in  the  Special  Con 
ditions  and  technical  specifications.  If  the  duration  of  the Main 
tenance  Period  is not  specified,  it  shall  be  365 days.  The Mainte 
nance Period  shall  commence  on the date of provisional  acceptance. 

61.8  After provisional  acceptance  and without prejudice  to the maintenance 
obligations  referred  to in Article 61, the Contractor  shall no  longer 
be  responsible  for  risks which may  affect  the Works  and which  result 
from  causes  not  attributable  to him.  However,  the Contractor  shall 
be  responsible  as  from  the  date  of  provisional  acceptance  for  the 
soundness of the construction, as laid down  in the Special Conditions 
or  in the law of the State of the Contracting Authority. 

- 99 -

ARTICLE 62 

Final acceptance 

62.1  Upon the expiration of the Maintenance Period, or where there is more 
than one such period, upon the expiration of the latest period, and 
when all defects or damage have been rectified, the Supervisor shall 
issue  to  the Contractor  a Final Acceptance Certificate  and  a copy 
thereof  to the Contracting Authority  stating  the date on which the 
Contractor completed his obligations under the Contract to the Super 
visor's  satisfaction.  The  Final  Acceptance  Certificate  shall  be 
given by the Supervisor within 30 days after  the expiration of the 
above  stated  period,  or  as  soon  thereafter  as  any Works  as  in 
structed, pursuant  to Article 61, have been completed  to the satis 
faction of the Supervisor. 

62.2  The Works  shall not be considered as completed until a Final Accep 
tance Certificate shall have been signed by the Supervisor and deliv 
ered to the Contracting Authority, with a copy to the Contractor. 

62.3  Notwithstanding  the  issue of  the Final Acceptance Certificate, the 
Contractor and the Contracting Authority shall remain liable for the 
fulfillment  of any obligation  incurred under  the Contract  prior to 
the  issue  of  the  Final  Acceptance  Certificate,  which  remains 
unperformed at the time such Final Acceptance Certificate is issued. 
The nature and extent of any such obligation shall be determined by 
reference to the provisions of the Contract. 

BREACH OF CONTRACT ArO TESMINATICN 

ARTICLE 63 

Breach of Contract 

63.1  Either party commits a breach of Contract where he fails to discharge 

any of his obligations under the Contract. 

63.2  "Where a breach of Contract  occurs, the party  injured by the breach 

shall be entitled to the following remedies:-

a) damages; and/or 

b) termination of the Contract. 

63.3  Damages may be either:-

a) General Damages; or 

b) Liquidated Damages. 

-  100 -

63.4  In any  case where  the Contracting Authority  is  entitled  to damages, 
he may  deduct  such  damages  from  any  sums  due  to  the Contractor  or 
from the appropriate guarantee. 

ARTICLE 64 

Termination by the Contracting Authority 

64.1  The Contracting Authority may, at any time and with  immediate effect, 

terminate  the Contract, except as provided  for under Article 64.2. 

64.2  Except  as  otherwise  provided  in  these  General  Conditions,  the Con 

tracting Authority may, after giving 7 days notice  to the Contractor, 
terminate  the Contract  and  expel  the Contractor  from the Site  in any 
of the cases where:-

a) the Contractor  fails  to  carry  out  the Works  substantially  in ac 

cordance with the provis the Contract; 

b) the Contractor  fails to comply within a reasonable  time with a no 
tice  given  by  the  Supervisor  requiring  him  to make  good  any ne 
glect  or  failure  to  perform  his  obligations  under  the  Contract 
which  seriously  affects  the proper  and  timely  performance  of  the 
Works; 

c) the Contractor  refuses or neglects  to carry out Administrative Or 

ders given by the Supervisor; 

d) the Contractor  assigns  the Contract  or  sub-contracts without  the 

authorization of the Contracting Authority; 

e) the Contractor  becomes  bankrupt  or  insolvent, or  has  a  receiving 

order made  against  him,  or  compounds with  his  creditors, or  car 
ries on business under a receiver, trustee or manager  for the ben 
efit of his creditors, or goes  into liquidation; 

f) any  adverse  final  judgment  is made  in  respect  of  an  offence  re 

lating  to the professional  conduct of the Contractor; 

g) any  other  legal  disability  hindering  performance  of  the Contract 

occurs; 

h) any  organizational modification  occurs  involving  a  change  in  the 
legal  personality,  nature  or  control  of  the  Contractor,  unless 
such modification is recorded  in an endorsement  to the Contract; 

i) the Contractor  fails  to provide  the  required  guarantee  or  insur 
ance,  or  if  the person providing  the  earlier  guarantee  or  insur 
ance  is not able  to abide by his commitments; 

101 -

64.3  Termination  shall  be without  prejudice  to any other  rights  or powers 
under  the Contract  of  the Contracting Authority  and  the Contractor. 
The Contracting Authority may,  thereafter, complete  the Works himself 
or  conclude  any other Contract with  a third party for  the account  of 
the Contractor.  The  Contractor's  liability  for  delay  in  completion 
shall  immediately  cease when  the  Contracting  Authority  expels  him 
from the Site without  prejudice  to any  liability  thereunder  that may 
have already  occurred. 

64.4  The  Supervisor  shall, upon  the  issue of  the notice  of  termination of 
the  Contract,  instruct  the  Contractor  to  take  immediate  steps  to 
bring  the Works  to a close  in a prompt  and  orderly manner  and  to re 
duce expenditure  to a minimum. 

64.5  The  Supervisor  shall, as soon as  is possible  after  termination,  cer 

tify  the value  of  the Works  and all  sums due  to  the Contractor  as at 
the date of  termination. 

64.6  In the event  of  termination:-

a) a report  of work performed  by  the Contractor  shall  be drawn up by 
the Supervisor  as  soon as possible  after  inspection  of  the Works, 
and  inventory  taken of  temporary  structures, materials, Plant  and 
Equipment.  The Contractor  shall  be  summoned  to be present  during 
the  inspection  and  the  taking  of  the  inventory.  The  Supervisor 
shall also draw up statements of emoluments  still owed by the Con 
tractor  to workers  employed  by him in relation  to the Contract  and 
of sums owed by the Contractor  to the Contracting Authority; 

b) the  Contracting  Authority  shall  have  the  option  of  acquiring  in 
whole  or  in part  temporary  structures which have  been approved  by 
the Supervisor, Plant  and materials  specifically supplied  or manu 
factured  in  connection with  the  execution  of work  under  the Con 
tract; 

c) the  purchase  price  of  the  temporary  structures, Equipment,  Plant 
and materials  referred  to  above  shall  not  exceed  the unpaid  por 
tion  of  the  expenditure  incurred  by  the Contractor,  such  expen 
diture  being  limited  to  that  required  for  the  performance  of  the 
Contract under normal  conditions; 

d) the Contracting Authority may purchase, at market  prices,  the ma 

terials  and  items  supplied  or  ordered  by  the  Contractor  and  not 
already  paid  for  by  the Contracting Authority  on  such  conditions 
as the Supervisor  considers appropriate. 

64.7  The  Contracting  Authority  shall  not  be  obliged  to make  any  further 
payments  to  the Contractor  until  the Works  are  completed,  whereupon 
the Contracting Authority  shall  be entitled  to recover  from the Con 
tractor  the extra  costs, if any, of  completing  the Works, or pay any 
balance  due  to  the Contractor  prior  to  the  termination  of  the Con 
tract. 

-  102 -

64.8  If the Contracting Authority  terminates  the Contract, it shall be en 

titled  to recover  from the Contractor  any loss  it has  suffered up to 
the maximum  amount  stated  in  the Contract.  If no maximum amount  is 
stated,  the Contracting  Authority  shall  not  be  entitled  to  recover 
more  than  the part  of  the Contract  Price  corresponding  to  the value 
of that part of the Works which cannot, by reason of the Contractor's 
failure, be put  to the intended use. 

64.9  Wnere  the  termination  is not  due  to  an  act  or  omission  of  the Con 

tractor,  the  latter  shall  be  entitled  to  claim  in  addition  to  sums 
owing  to him for work  already performed, an  indemnity  for  loss  suf 
fered. 

ARTICLE 65 

Termination by the Contractor 

65.1  The  Contractor  may,  after  giving  14 days  notice  to  the  Contracting 
Authority, terminate  the Contract  if the Contracting Authority:-

a) fails  to pay  the Contractor  the amounts due under  any  certificate 
issued by the Supervisor after  the expiry of the Time Limit  stated 
in Article 53.2; or 

b) consistently  fails  to meet  his  obligations  after  repeated  remind 

ers; or 

c) suspends  the  progress  of  the Works  or  any  part  thereof  for more 
than  180 days,  for  reasons not  specified  in  the Contract, or not 
due to the Contractor's default. 

65.2  Such  termination  shall  be without  prejudice  to  any  other  rights  of 
the Contracting Authority  or  the Contractor  under  the Contract. Upon 
such  termination,  the  Contractor  shall,  subject  to  the  law  of  the 
State of the Contracting Authority, be entitled  to immediately remove 
his Equipment from the Site. 

65.3  In the event of such termination, the Contracting Authority  shall pay 

the Contractor  for  any  loss  or  damage  the Contractor may  have  suf 
fered. Such additional payment  shall not  exceed  a limit which has  to 
be specified  in the Contract. 

ARTICLE 66 

Force Majeure 

66.1  Neither  party  shall  be  considered  to  be  in default  or  in breach  of 

his obligations under  the Contract  if the performance  of such obliga 
tions  is prevented by any circumstances of force majeure which arises 
after  the date of notification of award or the date when  the Contract 
becomes effective, whichever  is the earlier. 

-  103 -

66.2  The  term  "force majeure",  as  used  herein  shall  mean  acts  of  God, 

strikes, lock-outs  or other  industrial disturbances, acts of the pub 
lic enemy, wars whether declared  or not, blockades, insurrection, ri 
ots,  epidemics,  landslides,  earthquakes,  storms,  lightning,  floods, 
washouts,  civil  disturbances,  explosions,  and  any  other  similar  un 
foreseeable  events, not within  the control  of either party and which 
by the exercise of due diligence neither party is able  to overcome. 

66.3  Notwithstanding  the provisions  of Articles  36 and  64, the Contractor 
shall not  be  liable  to forfeiture  of his performance  guarantee,  liq 
uidated  damages  or  termination  for  default  if,  and  to  the  extent 
that, his delay  in performance  or other  failure  to perform his obli 
gations  under  the  Contract  is  the  result  of  an  event  of  force 
majeure.  The  Contracting  Authority  shall  similarly  not  be  liable, 
notwithstanding  the provisions  of Articles  53  and  65,  to payment  of 
interest  on delayed  payments, for non-performance  or  for  termination 
by  the  Contractor  for  default,  if,  and  to  the  extent  that,  the 
Contracting Authority's delay or other failure  to perform its obliga 
tions  is the result  of force majeure. 

66.4  If  either  party  considers  that  any  circumstances  of  force  majeure 
have  occurred  which  may  affect  performance  of  his  obligations,  he 
shall promptly notify  the other party and  the Supervisor, giving de 
tails  of  the nature,  the probable  duration  and  the  likely  effect  of 
the  circumstances.  Unless  otherwise  directed  by  the  Supervisor  in 
writing,  the Contractor  shall  continue  to perform his obligations un 
der  the Contract  as far  as  is reasonably practicable, and  shall  seek 
all  reasonable  alternative means  for  performance  of his  obligations 
which  are  not  prevented  by  the  force majeure  event. The  Contractor 
shall  not  put  into  effect  such  alternative means  unless  directed  so 
to do by the Supervisor. 

66.5  If  the Contractor  incurs  additional  costs  in  complying with  the Su 
pervisor's  directions  or using  alternative means  under Article 66.4, 
the amount  thereof  shall be certified  by the Supervisor. 

66.6  If  circumstances  of  force majeure  have  occurred  and  continue  for  a 
period  of  180 days  then, notwithstanding  any  extension  of  time  for 
completion  of  the Works  that  the  Contractor  may  by  reason  thereof 
have  been  granted,  either  party  shall  be  entitled  to  serve  upon  the 
other  30 days' notice  to  terminate  the Contract.  If,  at  the  expiry 
of  the  period  of  30  days,  force majeure  still  continues,  the  Con 
tract  shall  terminate  and,  in consequence  thereof under  the  law gov 
erning  the Contract,  the parties  shall  be  released  from further per 
formance of the Contract. 

- 104 -

ARTICLE 67 

Decease 

67.1  Wnere the Contractor is a natural person, the Contract shall be auto 
matically  terminated  if that person dies.  However, the Contracting 
Authority shall examine any proposal made by the heirs or beneficia 
ries if they have notified their wish to continue the Contract.  The 
decision of the Contracting Authority shall be notified to those con 
cerned within 30 days of receipt of such proposal. 

67.2  Wnere  the Contractor  consists of natural persons and one or more of 
them  die,  a  report  shall  be  agreed  between  the  parties  on  the 
progress  of  the Works  and  the Contracting  Authority  shall  decide 
whether  to terminate or continue the Contract  in accordance with the 
undertaking given by the survivors and by the heirs or beneficiaries, 
as the case may be. 

67.3  In the cases provided for in Article 67.1 and 67.2, persons offering 

to continue to perform the Contract shall notify the Contracting Au 
thority thereof within 15 days of the date of decease. 

67.4  Such persons shall be jointly and severally liable, or as otherwise 
stated  in the Special Conditions, for the proper performance of the 
Contract to the same extent as the deceased Contractor.  Continuation 
of the Contract shall be subject to the rules relating to establish 
ment of the guarantee provided for in Article 15. 

SETILBdENTOF DISFUIES 

ARTICLE 68 

Settlement of disputes 

68.1  The Contracting Authority and the Contractor shall make every effort 
to amicably settle disputes relating to the Contract which may arise 
between them, or between the Supervisor and the Contractor. 

68.2  The Special Conditions shall prescribe:-

a) the procedure for the amicable settlement of disputes; 

b) the Time Limits within which the amicable settlement procedure may 
be  invoked  after notification of  the dispute  to the other party 
and  the maximum Time Limit within which  such  settlement may be 
reached, which may not  exceed  120 days from the commencement of 
the adopted procedure; 

-  105 -

c) the Time Limits  for  responding  in writing  to a request  for  amica 

ble settlement  or to other requests permitted during  the course of 
that procedure  and the consequence  of failure  to comply with  those 
Time Limits. 

68.3  The  parties may  agree  to  the  settlement  of  the dispute  by  concilia 

tion within a specific Time Limit by a third party after  the amicable 
settlement procedure  adopted has failed. 

68.4  The  amicable  settlement  or  conciliation  procedure  adopted  shall  in 
all  cases  involve  a procedure  in which  complaints  and  responses  are 
notified  to the other party. 

68.5  In  the  absence  of  an  amicable  settlement  or  settlement  by  concilia 

tion within  the maximum Time Limits  specified,  the dispute  shall:-

a) in  the case of a national  contract,  be  settled  in accordance with 
the  national  legislation  of  the  State  of  the  Contracting 
Authority; and 

b) in the case of a transnational Contract, be settled by arbitration 
in  accordance  with  the  procedural  rules  adopted  by  the  EBC 
Council. 

-  106 -

ANNEX  III 

GENERAL  CONDITIONS 
FOR SUPPLY CONTRACTS 
FINANCED BY THE 
EUROPEAN DEVELOPMENT FUND 

IN THE OCT 

-  107  -

TABLE  OF OONTOHS 

PRELIMINARY  PROVISIONS 

Article 1  Definitions 
Article 2  Law and Language of the Contract 
Article 3  Order of Precedence of Contract documents 
Article 4  Notices and VWritten Communications 
Article 5  Supervisor and Supervisor's Representative 
Article 6  Assignment 
Article 7  Sub-Contracting 

OBLIGATIONS OP THE CONTRACTING AUnCRITY 

Article 8  Supply of Documents 
Article 9  Assistance with Local Regulations 

OBLIGATIONS OP THE SUPPLIER 

Article 10  General Obligations 
Article 11  Performance Guarantee 
Article 12  Insurance 
Article 13  Performance Programme 
Article 14  Detailed Breakdown of Prices 
Article 15  Supplier's Drawings 
Article 16  Sufficiency of Tender Prices 
Article 17  Patents and Licenses 

gaMErCR/en* AND DELAYS 

Article 18  Commencement Orders 
Article 19  Period of Performance 
Article 20  Extension of Period of Performance 
Article 21  Delays in Performance 
Article 22  Variations 
Article 23  Suspension 

MATERIALS ATOTORKMWSHIP 

Article 24  Quality of Supplies 
Article 25  Inspection and Testing 
Article 26  Property in the Supplies 

Page 

109 
112 
112 
112 
113 
113 
114 

115 
116 

116 
117 
119 
119 
120 
120 
121 
122 

122 
123 
123 
124 
124 
126 

128 
128 
129 

- 108 -

PAYMENTS 

Page 

Article 27  General Provisions 
Article 28  Provisional Price Contracts 
Article 29  Advances 
Article 30  Retention Sums 
Article 31  Revision of Prices 
Article 32  Interim Payments 
Article 33  Final Statement of Account 
Article 34  Payments to Third Parties 
Article 35  Delayed Payments 
Article 36  Payment in Foreign Currency 

Aa^FIANŒ AND MAINTENANCE 

Article 37  Delivery 
Article 38  Verification Operations 
Article 39  Provisional Acceptance. 
Article 40  \forranty Obligations 
Article 41  After Sales Service 
Article 42  Final Acceptance 

BREACHES AND TERMINATION 

Article 43  Breach of Contract 
Article 44  Termination by the Contracting Authority 
Article 45  Termination by the Supplier 
Article 46  Force Majeure. 
Article 47  Decease 

Article 48  Settlement of Disputes 

SETILBdENT OF DISHJIES 

130 
130 
131 
132 
132 
133 
135 
136 
137 
137 

137 
139 
140 
141 
142 
143 

143 
144 
146 
146 
148 

148 

- 109-

PRELIMINARY PROVISIONS 

ARTICLE 1 

Definitions 

1.1  The  following definitions  apply  to these General Conditions  and to 

the Contract. 

EBC: the European Economic Community. 

OCT: the association of Overseas Countries and Territories with 

the EBC. 

Contract: the signed agreement entered into by the parties for the 

Supplies, including all attachments thereto and all documents 
incorporated therein. 

Supplier: the party with whom the Contracting Authority concludes the 

Contract. 

Contracting Authority: the State or the legal person governed by pub 
lic or private lawwhich concludes the Contract, or on behalf 
of which the Contract is concluded, with the Supplier. 

The State of the Contracting Authority: the OCT on whose territory 

the Supply Contract is to be executed. 

Supervisor: the government department, legal person governed by pub 

lic  law, or  the natural  or  legal person designated  by the 
Contracting Authority in accordance with the law of the State 
of the Contracting Authority, who is responsible for direct 
ing and/or monitoring  the execution of the Supply Contract, 
or  to Whom  the  Contracting  Authority may  delegate  rights 
and/or powers, under the Contract. 

Supervisor's Representative: any natural or legal person, designated 

by the Supervisor as such under  the Contract, and empowered 
to represent  the Supervisor  in the performance  of his func 
tions, and  in exercising  such  rights and/or powers  as have 
been delegated  to him.  Accordingly, where functions, rights 
and/or powers  of  the Supervisor have  been delegated  to the 
Supervisor's Representative, references to the Supervisor in 
clude the Supervisor's Representative. 

Supplies: all items which the Supplier is required to supply to the 
Contracting  Authority,  including  Where  necessary,  service 
such  as  installation,  testing,  commissioning, provision  of 
expertise,  supervision, maintenance,  repair,  training  and 
other  such obligations  connected with  the  items  to be pro 
vided under the Contract. 

-  110 -

Bill of Quantities: the document  containing  an itemised breakdown of 
the  Supplies  to be  provided  in a unit  price  contract,  indi 
cating  a  quantity  for  each  item and  the  corresponding  unit 
price. 

Price Schedule: the completed  schedule of prices  including  the break 

down of  the overall price  submitted  by  the Supplier with his 
tender modified  as  necessary,  and  forming  part  of  the  unit 
price Contract. 

Breakdown of the Overall Price: the itemised  list of rates and prices 
showing  the build-up of the price  in a lump sum Contract, but 
not forming part of the Contract 

Contract Price: the sum stated  in the Contract  representing  the init 

ial  estimate  payable  for  the  provision  of  the  Supplies  or 
such other  sum as  ascertained  by  the  final  statement  of ac 
count as due to the Supplier under  the Contract. 

Drawings: drawings provided by the Contracting Authority and/or the 

Supervisor, and/or drawings provided  by  the Supplier  and ap 
proved by the Supervisor, for the provision of the Supplies. 

Communications: certificates, notices, orders and  instructions  issued 

under  the Contract. 

Writing: any handwritten, typewritten or printed  communication, in 
cluding  telex, cable and facsimile  transmission. 

'TOirranty Period:  the period  stated  in the Contract  immediately fol 

lowing  the  date  of  provisional  acceptance, during which  the 
Supplier  is  required  to  complete  the Contract  and  to  remedy 
defects or faults as instructed by the Supervisor. 

Final Acceptance Certificate: certificate(s) issued by the Supervisor 
to  the  Supplier  at  the  end  of  the "Warranty  Period  stating 
that  the  Supplier  has  completed  his  obligations  under  the 
Contract. 

Day: 

calendar day. 

Time Limits: those periods  in the Contract Which  shall begin to run 

from the day  following  the  act  or  event which  serves  as  the 
starting point for those periods.  Should  the last day of the 
period  fall  upon  a non-working  day,  the  period  shall  expire 
at the end of the first working day following  the last day of 
the period. 

Administrative Order: any instruction or order  issued by the Super 

visor  to  the  Supplier  in writing  regarding  the  provision  of 
the Supplies. 

-  111 -

National Currency:  the currency of the State of the Contracting 

Authority. 

Foreign Currency: any permissible  currency Which  is not  the National 

Currency and which  is indicated  in the Contract. 

Provisional Sum: a sum included  in the Contract  and so designated for 
the  supply  of  goods, materials,  plant  or  services,  or  for 
contingencies, which  sum may be used  in whole  or  in part, or 
not at all, as instructed by the Supervisor. 

Liquidated Damages: the sum stated  in the Contract as compensation 

payable  by  the  Supplier  to  the  Contracting  Authority  for 
failure  to  complete  the Contract  or part  thereof within  the 
periods under  the Contract, or as payable  by either party  to 
the  other  for  any  other  specific  breach  identified  in  the 
Contract. 

General Damages: the sum, not  stated beforehand  in the Contract, 

Which  is  awarded  by  a  court  or  an  arbitration  tribunal, or 
agreed between the parties, as compensation payable  to an in 
jured party for a breach of the Contract by the other party. 

Special Conditions: the Special Conditions  issued by the Contracting 

Authority  as  part  of  the  invitation  to  tender,  as  amended 
where necessary, and  incorporated  into the Contract, consist 
ing of: 

a) 

b) 

c) 

d) 

amendments  to these General Conditions; 

special contractual clauses; 

technical  specifications; and 

any other matter  related  to the Contract. 

1.2  The  headings  and  titles  in  these  General  Conditions  shall  not  be 

taken as part  thereof or be taken into consideration  in the interpre 
tation of the Contract. 

1.3  Where  the  context  so permits, words  importing  the  singular  shall  be 
deemed  to  include  the plural  and vice versa  and words  importing  the 
masculine  shall be deemed  to include the feminine and vice versa. 

1.4  "ttfords importing persons  or parties  shall  include  firms  and  companies 

and any organisation having  legal  capacity. 

-  112 -

ARTICLE 2 

Law and Language of the Contract 

2.1 

The  law of  the Contract  shall  be  the  law of  the  State  of  the Con 
tracting Authority unless otherwise  stated  in the Special Conditions. 

2.2 

In all matters which are not covered by these General Conditions, the 
law of the Contract  shall apply. 

2.3 

The  language  of  the Contract  and  of  all  communications  between  the 
Supplier, Contracting  Authority  and  Supervisor  or  their  representa 
tives shall be as stated  in the Special Conditions. 

ARTICLE 3 

Order of precedence of Contract Documents 

Unless  otherwise  stipulated  in the Contract, the order  of  precedence 
of  the Contract  documents  shall  be  as  stated  in  the  Special Condi 
tions. 

ARTICLE 4 

Notices and Written Communications 

4.1  Unless  otherwise  specified  in the Special Conditions, Communications 
between  the Contracting Authority  and/or  the Supervisor,  on  the  one 
hand,  and  the  Supplier  on  the  other  hand,  shall  be  sent  by  post, 
cable,  telex,  facsimile  transmission,  or  personal  delivery,  to  the 
appropriate addresses designated by these parties for that purpose. 

4.2 

If  the  sender  requires  evidence  of  receipt, he  shall  state  such re 
quirement  in the Communication  and  shall demand  such  evidence  of re 
ceipt whenever  there  is a deadline  for  the receipt  of  the Communica 
tion.  In any event, the sender  shall  take all  the necessary measures 
to ensure receipt of his Communication. 

4.3  Wherever  in the Contract provision  is made  for  the giving or  issue of 

any notice, consent, approval, certificate or decision, unless other 
wise  specified  such notice,  consent, approval,  certificate  or  deci 
sion shall be in writing and the words  "notify", "certify", "approve" 
or "decide" shall be construed  accordingly.  Any  such consent, appro 
val,  certificate  or  decision  shall  not  unreasonably  be withheld  or 
delayed. 

-  113 -

ARTICLE 5 

Supervisor and Supervisor's Representative 

5.1 

The  Supervisor  shall  carry out  the duties  specified  in the Contract. 
Except  as  expressly  stated  in the Contract, the Supervisor  shall not 
have  authority  to  relieve  the  Supplier  of  any  of  his  obligations 
under  the Contract. 

5.2  The  Supervisor may,  from  time  to  time, while  retaining  ultimate  re 

sponsibility, delegate  to the Supervisor's Representative  any of  the 
duties  and authority vested  in the Supervisor  and he may  at any time 
revoke  such delegation  or  replace  the  representative.  Any  such de 
legation, revocation or replacement  shall be  in writing  and shall not 
take effect until  a copy thereof has been delivered  to the Supplier. 

5.3  Any  communication  given  by  the  Supervisor's  Representative  to  the 
Supplier  in accordance with  the  terms  of  such delegation  shall  have 
the  same  effect  as  though  it had  been given by  the Supervisor, pro 
vided that:-

a) any failure on the part of the Supervisor's Representative  to dis 

approve  any  Supplies  shall  not  prejudice  the  authority  of  the 
Supervisor  to  disapprove  such  Supplies  and  to  give  the  instruc 
tions necessary for the rectification thereof; 

b) the Supervisor  shall  be at  liberty  to reverse  or vary  the  content 

of such Communication. 

5.4 

Instructions  and/or  orders  issued  by  the Supervisor  shall  be  by way 
of  Administrative  Orders.  Where  applicable,  such  orders  shall  be 
dated, numbered  and  entered  in a  register  and  copies  thereof  deliv 
ered by hand, where appropriate, to the Supplier's  representative. 

ARTICLE 6 

Assignment 

6.1  An  assignment  shall  be  valid  only  if  it  is  a written  agreement  by 
Which  the Supplier  transfers his Contract  or part  thereof  to a third 
party. 

6.2 

The Supplier  shall not, without  the prior written consent of the Con 
tracting Authority,  assign  the Contract  or  any part  thereof, or  any 
benefit or  interest  thereunder, except  in the following  cases:-

a) a  charge,  in favour  of  the Supplier's  bankers, of  any monies  due 

or to become due under  the Contract; or 

b) assignment  to  the Supplier's  insurers, of  the Supplier's  right  to 
obtain  relief  against  any  other  person  liable  in  cases Where  the 
insurers have discharged  the Supplier's  loss or liability. 

-  114 -

6.3 

6.4 

For  the purpose  of Article  6.2,  the approval  of an assignment  by the 
Contracting  authority  shall  not  relieve  the  Supplier  of  his  obliga 
tions for  the part  of  the Contract  already performed  or  the part not 
assigned. 

If  the Supplier has  assigned his Contract without  authorisation, the 
Contracting Authority may, without  giving  formal motice  thereof, ap 
ply as of  right  the sanctions  for breach of Contract  provided  for  in 
Articles 43 and 44. 

6.5  Assignees  must  satisfy  the  eligibility  criteria  applicable  for  the 

award of the Contract. 

ARTICLE 7 

Sub-contracting 

7.1 

A  sub-contract  shall  be valid  only  if  it  is  a written  agreement  by 
which  the Supplier  entrusts performance  of a part  of his Contract  to 
a  third party. 

7.2  The  Supplier  shall not  sub-contract without  the prior written  autho 

rization  of  the Contracting Authority. The  elements  of  the Contract 
to be sub-contracted  and the identity of the sub-contractors  shall be 
notified  to  the  Contracting  Authority.  The  Contracting  Authority 
shall, with  due  regard  to  the  provisions  of Article  4.3, within  30 
days of receipt of the notification, notify the Supplier of his deci 
sion, stating  reasons should he withhold  such authorization. 

7.3 

In the  selection of  sub-contractors  preference  shall be given by the 
Supplier  to natural  persons, companies  or  firms  of  the  State  of  the 
Contracting  Authority  capable  of  providing  the  Supplies  required  on 
similar terms. 

7.4 

Sub-contractors must  satisfy  the  eligibility  criteria  applicable  for 
the award of the Contract. 

7.5 

The  Contracting  Authority  shall  have  no  contractual  relations  with 
the sub-contractors. 

7.6 

The  Supplier  shall  be  responsible  for  the  acts, defaults  and negli 
gence  of  his  sub-contractors  and  their  agents  or  employees,  as  if 
they  were  the  acts,  defaults  or  negligence  of  the  Supplier,  his 
agents  or  employees.  The  approval  by  the  Contracting  Authority  of 
the  sub-contracting  of  any  part  of  the  Contract  or  of  the  sub 
contractor  shall  not  relieve  the Supplier  of  any  of his  obligations 
under  the Contract. 

-  115 -

7.7 

If a sub-contractor  has undertaken  any  continuing  obligation  extend 
ing for a period  exceeding  that of the Warranty period under  the Con 
tract  towards  the Supplier  in respect  of the Supplies provided  by the 
sub-contractor,  the Supplier  shall, at any time after  the  expiration 
of  the Warranty  Period,  transfer  immediately  to  the Contracting  Au 
thority, at  the Contracting Authority's  request  and cost, the benefit 
of such obligation for the unexpired duration  thereof. 

7.8 

If the Supplier  enters  into a sub-contract without  approval, the Con 
tracting Authority may, without  giving  formal  notice  thereof,  apply 
as  of  right  the  sanctions  for  breach  of  Contract  provided  for  in 
Articles 43 and 44. 

OBLIGATIONS OP THE CONTRACTING AUTTCRITY 

ARTICLE 8 

Supply of Documents 

8.1  Within 30 days of the establishment  of the performance guarantee pro 
vided  for  in Article  11, the Supervisor  shall provide  to  the Suppli 
er,  free  of  charge, a  copy  of  the Drawings  prepared  for  the perfor 
mance  of the Contract  as well  as two copies of the specifications and 
other Contract  documents.  The  Supplier may  purchase  additional  cop 
ies of these Drawings, specifications and other documents, insofar as 
they  are  available.  Upon  the  issue  of  the warranty  certificate  or 
upon  final  acceptance,  the  Supplier  shall  return  to  the  Supervisor 
all Drawings, specifications and other Contract documents. 

8.2  Unless  it  is necessary  for  the  purposes  of  the Contract,  the  Draw 
ings,  specifications and  other documents  provided  by  the Contracting 
Authority  shall  not  be used  or  communicated  to a  third  party  by  the 
Supplier without  the prior  consent  of the Supervisor. 

8.3 

The Supervisor  shall have authority  to issue  to the Supplier, Admini 
strative  Orders  incorporating  such  supplementary  Drawings  and  in 
structions  as  shall  be necessary  for  the  proper  and  adequate  execu 
tion of the Contract  and  the remedying  of any defects  therein. 

- 116 -

ARTICLE 9 

Assistance with Local Regulations 

9.1 

9.2 

9.3 

9.4 

The  Supplier may  request  the assistance  of  the Contracting Authority 
in  obtaining  copies  of  laws,  regulations,  and  information  on  local 
customs, orders or bye  laws of  the country  to which  the Supplies  are 
to be delivered, Which may  affect  the Supplier  in the performance  of 
his  obligations  under  the  Contract.  The  Contracting  Authority  may 
provide  the  assistance  requested  to  the  Supplier  at  the  Supplier's 
cost. 

The  Supplier  shall  submit  to  the Contracting Authority  in good  time 
such details of the Supplies as will  enable  the Contracting Authority 
to obtain all necessary  import permits or licenses. 

The Contracting Authority  shall obtain all  import permits or  licenses 
required  for  the  Supplies, or  any  part  thereof,  in  reasonable  time 
having  regard  to the time for delivery of the Supplies and  completion 
of the Contract. 

Subject  to  the  provisions  of  the  laws  and  regulations  on  foreign 
labour  of  the  State  in Which  the  Supplies  are  to be  delivered,  the 
Contracting Authority shall make all efforts necessary, to facilitate 
the  procurement  by  the  Supplier  of  all  required  visas  and  permits, 
including work and residence permits, for the personnel whose  service 
the Supplier and  the Contracting Authority consider necessary as well 
as residence permits for their families. 

OBLIGATIONS OP THE SUPPLIER 

ARTICLE 10 

General Obligations 

10.1  The  Supplier  shall  perform  the Contract with  due  care  and  diligence 
including,  where  specified,  the  design,  manufacture,  delivery  to 
site, erecting, testing  and  commissioning  of  the Supplies  and  carry 
ing out any other work  including  the remedying  of any defects  in the 
Supplies.  The  Supplier  shall  also  provide  all  necessary  equipment, 
superintendence,  labour  and  facilities  required  for  the  performance 
of the Contract. 

10.2  The  Supplier  shall  comply with  Administrative  Orders  given  by  the 
Supervisor.  Where  the Supplier considers  that the requirements of an 
Administrative Order go beyond  the authority of the Supervisor or the 
scope  of  the Contract  he  shall, on  pain  of  being  time-barred,  give 
notice, with  reasons, to the Supervisor within 30 days  after  receipt 
thereof.  Execution of the Administrative Order  shall not be suspend 
ed because of this notice. 

- 117 -

10.3  The Supplier  shall respect and abide by all laws and regulations in 
force in the State of the Contracting Authority and shall ensure that 
his personnel, their dependents, and his local employees also respect 
and abide by all such laws and regulations.  The Supplier  shall in 
demnify the Contracting Authority against any claims and proceedings 
arising  from  any  infringement  by  the  Supplier,  his  employees  and 
their dependents of such laws and regulations. 

10.4  If the Supplier or any of his sub-contractors, agents or servants of 

fers  to give or agrees to offer or to give or gives  to any person, 
any bribe, gift, gratuity or commission as an  inducement  or reward 
for doing or forbearing to do any act in relation to the Contract or 
any  other Contract with  the Contracting Authority,  or  for  showing 
favour or disfavour to any person in relation to the Contract or any 
other Contract with  the Contracting Authority, then the Contracting 
Authority may, without prejudice to any accrued rights of the Suppli 
er under the Contract, terminate the Contract in which case the pro 
visions of Articles 43 and 44 hereof shall apply. 

10.5  The  Supplier  shall  treat  all documents  and  information  received  in 
connection with  the Contract as private and confidential, and shall 
not, save insofar as may be necessary for the purposes of the execu 
tion  thereof, publish  or  disclose  any particulars  of  the Contract 
without  the prior consent in writing of the Contracting Authority or 
the Supervisor after consultation with the Contracting Authority.  If 
any disagreement  arises as  to the necessity for any publication or 
disclosure for the purpose of the Contract, the decision of the Con 
tracting Authority shall be final. 

10.6  If the Supplier is a joint venture or consortium of two or more per 
sons, all such persons shall be jointly and severally bound to fulfil 
the terms of the Contract according  to the law of  the State of the 
Contracting Authority  and  shall, at  the  request  of  the Contracting 
Authority, designate  one of such persons  to act as  leader with au 
thority to bind the joint venture or consortium.  The composition or 
the constitution of the joint venture or consortium shall not be al 
tered without the prior consent of the Contracting Authority. 

ARTICLE 11 

Performance Guarantee 

11.1  The Supplier shall, within 30 days after the receipt of the notifica 

tion of the award of Contract, furnish to the Contracting Authority a 
guarantee for  the full and proper performance of the Contract.  The 
amount of the guarantee shall be as specified  in the Special Condi 
tions and  shall not  exceed  109b of  the Contract Price  including any 
amounts stipulated  in riders to the Contract, save Where  the Special 
Conditions provide otherwise; however, it may  in no case exceed 20% 
of such price. 

-  118 -

11.2  The  performance  guarantee  shall  be held  against  payment  to  the Con 

tracting Authority for any loss resulting  from the Supplier's  failure 
to fully and properly perform his obligations under  the Contract. 

11.3  The performance guarantee  shall be  in the format  given  in the Special 
Conditions  and may  be  provided  in  the  form  of  a  bank  guarantee,  a 
banker's  draft,  a  certified  cheque,  a bond  provided  by  an  insurance 
and/or bonding  company, an irrevocable  letter of credit  or a cash de 
posit made with  the Contracting Authority.  If  the performance  guar 
antee  is  to be provided  in the form of  a bank guarantee,  a banker's 
draft,  a certified  cheque  or a bond,  it shall  be  issued  by a bank or 
bonding  and/or  insurance  company  approved  by  the  Contracting 
Authority  in accordance with  the  eligibility  criteria  applicable  for 
the award of  the Contract. 

11.4  Unless  stated  otherwise  in  the  Special  Conditions,  the  performance 
guarantee  shall  be  denominated  in  the  types  and  proportions  of  cur 
rencies  in which the Contract  is payable. 

11.5  No payments  shall be made  in favour of the Supplier prior  to the pro 

vision  of  the  guarantee.  The  guarantee  shall  continue  to  remain 
valid until  the Contract has been fully and properly performed. 

11.6  During  the performance  of  the Contract,  if the natural  or  legal per 

son providing  the guarantee  is not  able  to abide by his  commitments, 
the  guarantee  shall  cease  to  be  valid.  The  Contracting  Authority 
shall  give  formal  notice  to  the Supplier  to provide  a new guarantee 
on  the  same  terms  as  the previous  one.  Should  the  Supplier  fail  to 
provide  a new guarantee,  the Contracting Authority may  terminate  the 
Contract. 

11.7  The Contracting Authority  shall demand payment  from the guarantee  of 
all  sums for which  the guarantor  is liable under  the guarantee due to 
the  Supplier's  default  under  the  Contract,  in  accordance  with  the 
terms  of  the  guarantee  and  up  to  the  value  thereof.  The  guarantor 
shall, without delay, pay those sums upon demand  from the Contracting 
Authority  and may not  raise any objection  for  any  reason Whatsoever. 
Prior  to  making  any  claim  under  the  performance  guarantee,  the 
Contracting Authority  shall notify the Supplier  stating  the nature of 
the default  in respect of which  the claim is to be made. 

11.8  Except  for  such part  as may be specified  in the Special Conditions  in 
respect  of  after-sales  service,  the  performance  guarantee  shall  be 
released within 30 days of the issue of the signed final  statement of 
account  referred  to in Article 33. 

- 119 

ARTICLE 12 

Insurance 

12.1  Without  prejudice  to Article 37 the Special Conditions may  require 
that the carriage of Supplies shall be covered by an insurance policy 
the terms of which may be laid down therein.  The Special Conditions 
may also make provision for other types of insurance to be borne by 
the Supplier. 

12.2  Notwithstanding the obligations of the Supplier  to insure  in accor 
dance with Article  12.1, the  Supplier  shall  be  solely  liable  and 
shall indemnify the Contracting Authority and the Supervisor against 
any claims by third parties for damage to property or personal inju 
ries arising from the execution of the Contract by the Supplier, his 
sub-contractors and employees in connection with the Contract. 

ARTICLE 13 

Performance Programme 

13.1  If the Special Conditions  so require, the Supplier  shall submit for 

the approval of the Supervisor a programme of performance of the Con 
tract.  The programme shall contain at least the following :-

a) the order  in Which  the Supplier proposes  to execute  the Contract 
including  design, manufacture, delivery  to place  of acceptance, 
installation, testing and commissioning; 

b) the Time Limits within Which submission and approval of the Draw 

ings are required; 

c) a general description of the methods Which  the Supplier proposes 

to adopt for executing the Contract; and 

d) such further details and information as the Supervisor may reason 

ably require. 

13.2  The approval of the programme by the Supervisor shall not relieve the 

Supplier from any of his obligations under the Contract. 

13.3  No material alteration to the programme shall be made without the ap 
proval of the Supervisor.  If, however, the progress of the perfor 
mance of the Contract does not conform to the programme, the Super 
visor may  instruct  the Supplier  to revise  the programme  and submit 
the revised programme to him for approval. 

- 120 -

ARTICLE 14 

Detailed Breakdown of Prices 

14.1  Where appropriate and within a period of not more  than 20 days fol 

lowing the Supervisor's reasoned request, the Supplier shall provide 
a detailed breakdown of his rates and prices, where such breakdown is 
required for any purpose under the Contract. 

14.2  After  the  notification  of  award  of  Contract,  the  Supplier  shall, 
Where  appropriate  and within  the Time Limits  stated  in the Special 
Conditions, provide to the Supervisor for his information only, a de 
tailed  cash  flow  estimate,  in quarterly  periods,  of  all  payments 
which may  be due  to the Supplier under  the Contract.  The Supplier 
shall  subsequently  supply  revised  cash flow estimates  at quarterly 
intervals, if so required by the Supervisor. The Communication shall 
not  impose any liability whatsoever  on the Contracting Authority or 
the Supervisor 

ARTICLE 15 

Supplier's Drawings 

15.1  If the Special Conditions  so provide, the Supplier  shall  submit to 

the Supervisor for approval:-

a) such drawings, documents, samples, and/or models as may be speci 

fied  in the Contract within the Time Limits laid down therein or 
in the programme of performance; 

b) such drawings  as  the  Supervisor may  reasonably  require  for  the 

performance of the Contract. 

15.2  If the Supervisor fails to notify his decision of approval referred 
to in Article 15.1 within the Time Limits required by the Contract or 
the approved programme of performance, such drawings, documents, sam 
ples or models shall be deemed to be approved at the end of the Time 
Limit specified.  If no Time Limit is specified they shall be deemed 
to be approved 30 days after receipt. 

15.3  Approved Drawings, documents, samples and models  shall be signed or 
otherwise identified by the Supervisor and shall not be departed from 
except  as  otherwise  instructed  by  the  Supervisor.  Any  Supplier's 
drawings, documents, samples or models Which the Supervisor fails to 
approve, shall be forthwith modified to meet the requirements of the 
Supervisor and resubmitted by the Supplier for approval. 

15.4  The Supplier  shall supply additional copies of approved Drawings in 

the form and numbers stated in the Contract or in subsequent Admini 
strative Orders. 

-  121 -

15.5  The  approval  of  the Drawings, documents, samples  or models  shall not 

relieve  the Supplier from any of his obligations under  the Contract. 

15.6  The  Supervisor  shall  have  the  right  at  all  reasonable  times  to  in 
spect all Contract Drawings, documents, samples or models at the Sup 
plier's premises. 

15.7  Before  provisional  acceptance  of  the  Supplies,  the  Supplier  shall 
supply  operation  and  maintenance  manuals  together  with  drawings, 
which  shall be in such detail  as will  enable the Contracting Authori 
ty to operate, maintain, adjust and repair all parts of the Supplies. 
Unless  otherwise  stated  in  the  Special  Conditions,  the manuals  and 
drawings  shall  be  in the  language  of  the Contract  and  in such  forms 
and  numbers  as  stated  in  the  Contract.  The  Supplies  shall  not  be 
considered  to be  completed  for  the purpose  of provisional  acceptance 
until  such manuals and drawings have been supplied  to the Contracting 
Authority. 

ARTICLE 16 

Sufficiency of Tender Prices 

16.1  Subject  to  any  additional  provisions which may  be  laid  down  in  the 
Special  Conditions,  the  Supplier  shall  be  deemed  to  have  satisfied 
himself before submitting his tender as to the correctness and suffi 
ciency  of  the  tender  and  to have  taken  account  of  all  that  is re 
quired  for  the  full  and  proper  performance  of  the Contract  and  to 
have  included  in his  rates  and prices  all  costs  related  to  the Sup 
plies, in particular:-

a) the costs of transport; 

b) the  costs  of handling, packing,  loading, unloading,  transit, de 

livery,  unpacking,  checking,  insurance,  and  other  administrative 
costs  in connection with the Supplies.  The packaging  shall be the 
property  of  the  Contracting  Authority  unless  the  Special  Condi 
tions provide otherwise; 

c) the  cost  of  documents  relating  to  the  Supplies Where  such  docu 

ments are required by the Contracting Authority; 

d) performance and  supervision of on-site assembly and/or  start up of 

the delivered Supplies; 

e) furnishing  of  tools  required  for  assembly  and/or  maintenance  of 

the delivered Supplies; 

f) furnishing  of  detailed  operation  and maintenance manual  for  each 

unit of the delivered Supplies, as specified  in the Contract; 

- 122 -

g) supervision  or maintenance  and/or  repair  of  the Supplies, for a 
period of time stated in the Contract, provided that this service 
shall not  relieve the Supplier of any warranty obligations under 
the Contract; and 

h) training of the Contracting Authority's personnel, at the Suppli 

er's factory and/or elsewhere as specified in the Contract. 

16.2  Since the Supplier is deemed to have determined his prices on the ba 
sis of his own calculations, operations and estimates, he shall carry 
out without  additional  charge any work which  is the subject of any 
item Whatsoever  in his tender for Which he neither  indicates a unit 
price nor a firm sum. 

ARTICLE 17 

Patents and Licenses 

Save Where otherwise provided in the Special Conditions, the Supplier 
shall indemnify the Contracting Authority and the Supervisor against 
any claim resulting  from the use, as  specified  in the Contract, of 
patents,  licences, Drawings,  designs, models,  or  brand  or  trade 
marks,  except Where  such  infringement  results  from compliance with 
the design or  specifications provided  by  the Contracting Authority 
and/or the Supervisor. 

Œ M d E N C M Nr AND DELAYS 

ARTICLE 18 

Commencement Orders 

18.1  The Contracting Authority shall fix the date on Which performance of 
the Contract  is to commence, and advise  the Supplier  either  in the 
notification of award of Contract or by Administrative Order  issued 
by the Supervisor. 

18.2  The date for commencing performance shall be no later  than 180 days 
following notification of award of Contract unless agreed otherwise 
by the parties. 

- 123 -

ARTICLE 19 

Period of Performance 

19.1  The period of performance shall commence on the date fixed in accor 
dance with Article 18.1 and shall be as stated in the Contract, with 
out prejudice to extensions of the period Which may be granted under 
Article 20. 

19.2  If provision is made for separate periods of performance for supply 
in separate lots, such periods shall not be aggregated in cases where 
one Supplier is allocated more than one lot. 

ARTICLE 20 

Extension of Period of Performance 

20.1  The Supplier may request an extension to the period of performance if 
he  is or will  be delayed  in completing  the Contract  by any of the 
following causes:-

a) extra or additional Supplies ordered by the Contracting Authority. 

b) exceptional weather conditions in the State of the Contracting Au 

thority which may affect installation or erection of the Supplies; 

c) physical  obstructions or conditions Which may affect delivery of 
the Supplies, Which could not reasonably have been foreseen by a 
competent Supplier; 

d) Administrative Orders affecting the date of completion other than 

those arising from the Supplier's default; 

e) failure  of  the Contracting Authority  to  fulfil  his  obligations 

under the Contract; 

f) any suspension of the delivery and/or installation of the Supplies 

which is not due to the Supplier's default; 

g) force majeure; 

h) any other causes referred to in these General Conditions which are 

not due to the Supplier's default. 

20.2  The Supplier shall, within 15 days of becoming aware that delay may 
occur, notify the Supervisor of his intention to make a request for 
extension of the period of performance to which he considers himself 
entitled, and shall within 60 days thereafter, except where otherwise 
agreed between the Supplier and the Supervisor, deliver to the Super 
visor  full  and detailed  particulars  of  the  request,  in order  that 
such request may be investigated at the time. 

-  124 -

20.3  The  Supervisor  shall,  by written  notice  to  the  Supplier  after  due 
consultation with  the Contracting Authority and where approriate, the 
Supplier, grant  such extension of the period of performance  as may be 
justified,  either  prospectively  or  retrospectively  or,  inform  the 
Supplier  that he  is not entitled  to an extension. 

ARTICLE 21 

Delays  in Performance 

21.1  If  the Supplier  fails  to deliver  any or  all  of  the goods  or  perform 
the services within  the time period(s) specified  in the Contract, the 
Contracting Authority shall, without  formal notice and without preju 
dice  to his other  remedies under  the Contract, be  entitled  to Liqui 
dated  Damages  for  every  day  or  part  thereof which  shall  elapse  be 
tween  the  end  of  the  period  specified  for  performance,  or  extended 
performance  under Article  20, and  the  actual  date  of  completion, at 
the  rate  and up  to  the maximum amount  specified  in  the Special Con 
ditions. 

21.2  If the Contracting Authority has become entitled  to the maximum claim 
under Article 21.1 he may, after giving notice  to the Supplier:-

a) seize  the performance guarantee; and/or 

b) terminate the Contract; and 

c) enter  into  a  contract with  a  third  party  at  the  Supplier's  cost 

for the provision of the balance of the Supplies. 

ARTICLES 22 

Variations 

22.1  The Supervisor  shall have power  to order any variation  to any part of 
the  Supplies  necessary for  the  proper  completion  and/or  functioning 
of  the  Supplies.  Such variations may  include  additions, omissions, 
substitutions, changes  in quality, quantity, form, character, kind,as 
well  as Drawings, designs or specifications where  the Supplies are to 
be specifically manufactured  for the Contracting Authority, method of 
shipment  or  packing,  place  of  delivery,  and  in  the  specified  se 
quence, method  or  timing of execution of  the Supplies.  No  order  for 
a  variation  shall  have  the  effect  of  invalidating  the Contract, but 
the financial  effect, if any, of all  such variations  shall  be valued 
in accordance with Article 22.5 and 22.7. 

- 125 -

22.2  No  variation  shall  be made  except  by Administrative  Order,  provided 

that:-

a) if for  any reason,  the Supervisor  shall  find  it necessary  to give 
an  order  orally,  he  shall  as  soon  as possible  thereafter  confirm 
the order by an Administrative Order; 

b) if  the  Supplier  shall  confirm  in writing  an  oral  order  given  for 
the purpose  of Article  22.2  (a) and  the confirmation  shall not  be 
contradicted  in writing  forthwith  by  the  Supervisor,  an Admini 
strative Order  shall  be deemed  to have  been  issued  for  the varia 
tion. 

c) an Administrative  Order  for  variation  shall  not  be  required  for 
increase  or  decrease  in  the  quantity  of  any work Where  such  in 
crease  or  decrease  is  the  result  of  the  quantity  exceeding  or 
being  less  than  that  stated  in  the  Bill  of  Quantities  or  Price 
Schedule. 

22.3  Save  as  provided  by Article  22.2, prior  to  any Administrative  Order 
for variation,  the Supervisor  shall notify  the Supplier  of the nature 
and  form  of  such  variation.  As  soon  as  possible,  after  receiving 
such notice,  the  Supplier  shall  submit  to  the  Supervisor  a proposal 
containing:-

a) a description  of  the  tasks,  if  any,  to  be  performed  or  the mea 

sures  to be taken and a programme  for execution; and 

b) any necessary modifications  to the programme  of performance  or to 

any of the Supplier's obligations under  the Contract; and 

c) any adjustment  to the Contract  Price  in accordance with  the  rules 

as set out  in Article 22. 

22.4  Following  the  receipt  of  the  Supplier's  submission  referred  to  in 
Article  22.3,  the  Supervisor  shall,  after  due  consultation with  the 
Contracting Authority and, where appropriate, the Supplier, decide as 
soon  as possible whether  or not  the variation  shall  be  carried  out. 
If  the Supervisor  decides  that  the variation  shall  be  carried  out he 
shall  issue  the Administrative Order  stating  that  the variation shall 
be  carried  out  at  the  prices  and  under  the  conditions  given  in  the 
Supplier's  submission  referred  to  in Article  22.3  or  as modified  by 
the Supervisor  in accordance with Article 22.5. 

22.5  The  prices  for  all  variations  ordered  by  the  Supervisor  in  accor 
dance with Articles  22.2 and 22.4 shall  be ascertained  by  the Super 
visor  in accordance with  the following principles:-

a) Where  the  task  is of  similar  character  and  executed  under  similar 
conditions  to  an  item priced  in  the  Bill  of Quantities  or  Price 
Schedule  it  shall  be  valued  at  such  rates  and  prices  contained 
therein; 

-  126 -

b) Where  the  task  is not  of  a  similar  character  or  is not  executed 
under  similar  conditions,  the  rates  and  prices  in  the  Contract 
shall  be used  as  the basis  for valuation  so far  as  is  reasonable, 
failing which, a fair valuation  shall be made  by the Supervisor; 

c) if the nature or amount  of any variation relative  to the nature or 
amount  of  the Whole  of  the Contract  or  to  any part  thereof  shall 
be  such  that  in  the  opinion  of  the  Supervisor  any  rate  or  price 
contained  in  the  Contract  for  any  item  of work  is  by  reason  of 
such  variation  rendered  unreasonable,  then  the  Supervisor  shall 
fix such rate or price as  in the circumstances he  shall  think rea 
sonable and proper; 

d) Where  a variation  is necessitated  by default  or breach of Contract 
by  the  Supplier,  any  additional  cost  attributable  to  such varia 
tion shall be borne by the Supplier. 

22.6  On  receipt  of  the Administrative Order  requesting  the variation,  the 
Supplier  shall  proceed  to  carry  out  the  variation  and  be  bound  by 
these General Conditions  in so doing as  if such variation were  stated 
in  the  Contract.  The  Supplies  shall  not  be  delayed  pending  the 
granting  of any extension of time for completion  or adjustment  to the 
Contract  Price.  Where  the order for a variation precedes  the adjust 
ment  to  the Contract  Price,  the  Supplier  shall  keep  records  of  the 
costs  of  undertaking  the  variation  and  of  time  expended  thereon. 
Such  records  shall  be  open  to  inspection  by  the  Supervisor  at  all 
reasonable times. 

22.7  Where  on  provisional  acceptance,  an  increase  or  reduction  in  the 
total value of supplies  required under  the Contract  resulting  from an 
Administrative  Order,  or  from  some  other  circumstance Which  is  not 
caused  by  the Supplier's  default,  exceeds  15% of  the Contract  price, 
the Supervisor  shall, after consultation with  the Contracting Author 
ity and  the Supplier determine  any additions  to or reduction from the 
Contract  Price  as  a  consequence  of  the  application  of Article  22.5. 
The  sum  so determined  shall  be based  on  the  amount  by which  the  in 
crease  or  decrease  in  value  of  the  Supplies  exceeds  15%.  The  sum 
shall  be notified  by  the Supervisor  to the Contracting Authority  and 
the Supplier  and  the Contract  Price adjusted  accordingly. 

ARTICLE 23 

Suspension 

23.1  The  Supervisor  may,  by Administrative  Order,  at  any  time,  instruct 

the Supplier  to suspend:-

a) progress of the manufacture  of the Supplies; or 

b) delivery of Supplies  to the place  of acceptance  at  the time speci 

fied  for  delivery  in  the performance  programme  or,  if no  time  is 
specified, at  the time appropriate  for  it to be delivered; or 

- 127 

c) the  installation  of  the Supplies which have  been delivered  to the 

place of acceptance. 

23.2  The  Supplier  shall,  during  suspension,  protect  and  secure  the  Sup 

plies  affected  at  the Supplier's warehouse  or  elsewhere, against  any 
deterioration,  loss or damage  to the extent possible  and as  instruct 
ed by the Supervisor, even if the Supplies have been delivered  to the 
place of acceptance  in accordance with  the Contract  but Whose  instal 
lation has been suspended by the Supervisor. 

23.3  Additional  expenses  incurred  in connection with  such protective mea 

sure  shall be added  to the Contract Price.  The Supplier  shall not be 
entitled  to be paid any additional  expenses  if the suspension is:-

a) otherwise provided  for  in the Contract; or 

b) necessary  by  reason of normal  climatic  conditions  at  the place of 

acceptance; or 

c) necessary by reason of some default  of the Supplier; or 

d) necessary  for  the  safety  or  the proper  execution  of  the Contract 
or  any part  thereof  insofar  as  such necessity does not  arise  from 
any act or default  by the Supervisor  or the Contracting Authority. 

23.4  The  Supplier  shall not  be  entitled  to such additions  to  the Contract 
Price unless he notifies  the Supervisor, within 30 days after  receipt 
of the order  to suspend progress or delivery.of his  intention  to make 
a claim for  them. 

23.5  The Supervisor, after  consultation with  the Contracting Authority and 
the Supplier,  shall  determine  such extra payment  and/or  extension of 
the  period  of  performance  to  be made  to  the  Supplier  in  respect  of 
such  claim  as  shall,  in  the  opinion  of  the  Supervisor,  be  fair  and 
reasonable. 

23.6  If  the  period  of  suspension  exceeds  180 days,  and  the  suspension  is 
not due  to the Supplier's default,  the Supplier may,  by notice  to the 
Supervisor,  request  permission  to proceed with  the Supplies within 30 
days, or terminate  the Contract. 

-  128 -

MATERIALS AT© WORKMANSHIP 

ARTICLE 24 

Quality of Supplies 

24.1  The  Supplies must  in  all  respects  satisfy  the  technical  specifica 

tions laid down in the Special Conditions and conform in all  respects 
with  the Drawings, surveys, models, samples, patterns, and  other re 
quirements  in the Contract which  shall be held at the disposal of the 
Contracting  Authority  or  the  Supervisor  for  the  purposes  of  iden 
tification throughout  the period of performance. 

24.2  Any preliminary  technical acceptance  stipulated  in the Special Condi 

tions  shall  be  the  subject  of a request  sent  by  the Supplier  to the 
Supervisor.  The  request  shall  indicate  the  specification of  the ma 
terials, items and samples submitted for such acceptance according to 
the  Contract,  the  lot  number  and  the  place Where  acceptance  is  to 
take place, as appropriate.  The materials, items and  samples speci 
fied  in  the  request must  be  certified  by  the  Supervisor  as meeting 
the  requirements  for  such acceptance prior  to their  incorporation  in 
the Supplies. 

24.3  Even  if materials  or  items  to be  incorporated  in  the Supplies  or  in 
the manufacture  of  components  to  be  supplied  have  been  technically 
accepted  in this way, they may  still be rejected and must be replaced 
immediately  by  the Supplier  if a further  examination  reveals  defects 
or  faults.  The  Supplier may  be  given  the  opportunity  to  repair  and 
make  good materials  and  items Which have been rejected, but  such ma 
terials  and  items will  be accepted  for  incorporation  in the Supplies 
only  if they have been repaired  and made  good  to the  satisfaction of 
the Supervisor. 

ARTICLE 25 

Inspection and Testing 

25.1  The  Supplier  shall  ensure  that  the  Supplies  are  delivered  to  the 
place  of  acceptance  in time  to allow the Supervisor  to proceed with 
acceptance of the Supplies.  The Supplier  is deemed  to have fully ap 
preciated  the difficulties Which he might  encounter  in this  respect, 
and  he  shall  not  be  permitted  to  advance  any  grounds  for  delay  in 
fulfilling his obligations. 

25.2  The Supervisor  shall be entitled either by himself  or his agent, from 
time  to  time,  to  inspect, examine, measure  and  test  the  components, 
materials  and  workmanship,  and  check  the  progress  of  preparation, 
fabrication  or manufacture  of anything  being prepared, fabricated  or 
manufactured  for  delivery  under  the Contract  in  order  to  establish 

- 129 -

whether  the  components, materials  and workmanship  are  of  the  requi 
site quality and quantity. This shall take place at the place of man 
ufacture, fabrication or preparation or at the place of acceptance or 
at such other places as may be specified  in the Contract. 

25.3  For  the purposes of such tests and  inspections, the Supplier  shall:-

•-—•-a) provide  to  the  Supervisor,  temporarily  and  free  of  charge,  such 
assistance,  test  samples  or  parts, machines,  equipment,  tools, 
labour, materials, Drawings  and  production  data  as  are  normally 
required for  inspection and testing; 

b) agree, with  the Supervisor, on the time and place for tests; 

c) provide  access  for  the  Supervisor  at  all  reasonable  times  to  the 

place where  the tests are to be carried out. 

25.4  If  the  Supervisor  is not  present  on  the  date  agreed  for  tests, the 
Supplier may, unless  otherwise  instructed  by  the Supervisor, proceed 
with  the tests, Which  shall be deemed  to have been made  in the Super 
visor's  presence.  The  Supplier  shall  forthwith  forward  duly  certi 
fied  copies  of  the  test  results  to  the Supervisor, Who  shall, if he 
has not attended  the test, be bound by the test results. 

25.5  When  components  and materials  have  passed  the  tests  referred  to  in 
Article  25, the Supervisor  shall  notify  the Supplier  or  endorse  the 
Supplier's  certificate  to that effect. 

25.6  If the Supervisor and the Supplier disagree on the test results, each 
shall give a statement of his views  to the other within  15 days after 
such disagreement  arises.  The Supervisor  or the Supplier may  require 
such  tests  to  be  repeated  on  the  same  terms  and  conditions  or,  if 
either party  so requests, by an expert  to be  selected  by common con 
sent.  All  test  reports  shall  be  submitted  to  the  Supervisor  who 
shall  communicate  the  results  of  these  tests without  delay  to  the 
Supplier.  The  results  of  the  retesting  shall  be  conclusive.  The 
cost  of  retesting  shall  be borne by  the party Whose views  are proved 
wrong by the retesting. 

25.7  In the performance  of his duties, the Supervisor  and all persons au 
thorized by him shall disclose only to those persons Who are entitled 
to know of  it  information Which he has obtained  by  reason of his in 
spection  and  testing  of  the methods  of manufacture  and  operation  of 
the undertaking. 

ARTICLE 26 

Property in the Supplies 

26.1  The Special Conditions may provide  that  the Supplier, for the purpose 
of  securing  payment  under Article  32  in  respect  of  any  part  of  the 
Supplies before delivery to the place of acceptance, shall:-

-  130 -

a) vest  that part of the Supplies  in the Contracting Authority; or 

b) make  that part  of  the Supplies  subject  to a  lien  in favour  of the 

Contracting Authority; or 

c) make  that  part  of  the  Supplies  subject  to  any  other  arrangement 

regarding priority interest or security. 

26.2  Upon  termination  of  the  Contract  before  completion,  the  Supplier 
shall  deliver  to  the Contracting Authority  any part  of  the  Supplies 
the property  in Which has vested  in the Contracting Authority or been 
made  subject  to a  lien by virtue  of Article  26.1. If he  fails  to do 
so  the Contracting Authority may  take  such  appropriate  action  as  it 
deems fit  in order  to obtain possession of such Supplies, and  recover 
the cost of so doing from the Supplier. 

PAYMENTS 

ARTICLE 27 

General  Provisions 

27.1  Payments  shall  be made  in  the National  Currency  except  as  otherwise 

stipulated  in the Contract. 

27.2  The  administrative  or  technical  conditions  to Which  the  payment  of 
advances,  interim  and/or  final  payments  made  in  accordance  with 
Articles 28 to 36 are subject, shall be as stated  in the Special Con 
ditions. 

ARTICLE 28 

Provisional Price Contracts 

28.1  In exceptional  cases, where all the prices cannot be predetermined, a 
provisional  price  contract  may  be  awarded  after  consultation  and 
agreement  between  the  Contracting  Authority  and  the  Supplier.  The 
amount  of  the Contract  shall  be determined  initially  on  the  basisof 
provisional  prices  and, after  the  conditions  for  performance  of  the 
Contract  are  known,  by  the  procedure  specified  in  the  Special 
Conditions. 

28.2  The Supplier  shall  supply such information as the Contracting Author 

ity or the Supervisor may  reasonably require  in respect of any matter 
relating  to  the Contract  for  the purpose  of  the  calculation.  Where 
agreement  cannot  be  reached  on  the  valuation  of  the  Supplies,  the 
amounts payable  shall be determined by the Supervisor. 

-  131 -

ARTICLE 29 

Advances 

29.1  Unless  otherwise  provided  in  the  Special  Conditions,  advances  shall 
be granted  to the Supplier, at his  request, for  operations  connected 
with  the provision of the Supplies as a lump-sum advance. 

29.2  Subject  to the provisions of the Special Conditions, the total amount 

of the advances  shall not exceed 6 0% of the Contract Price. 

29.3  No advance  shall be granted until:-

a) the conclusion of the Contract; 

b) provision to the Contracting Authority by the Supplier of the per 

formance guarantee  in accordance with Article 11; and 

c) provision  to the Contracting Authority by  the Supplier  of a sepa 

rate directly liable  guarantee for the full amount of the advance 
by  the  institutions  referred  to  in Article  11.3, Which  shall  re 
main  effective  for  at  least  60 days  after  provisional  acceptance 
of the Supplies. 

29.4  The  Supplier  shall  use  the  advance  exclusively  for  operations  con 

nected with  the provision of the Supplies. Should  the Supplier misuse 
any portion of the advance, it shall become due and repayable immedi 
ately and no further advance payment  shall be made  to him. 

29.5  Should  the advance guarantee  cease  to be valid  and  the Supplier  fail 

to re-validate  it, either  a deduction equal  to the amount  of  the ad 
vance may  be made  by  the Contracting Authority  from future  payments 
due  to  the Supplier under  the Contract, or  the Contracting Authority 
may apply the provisions of Article 11.6 

29.6  If  the Contract  is terminated  for any reason Whatsoever,  the guaran 

tees securing  the advances may be  invoked forthwith  in order  to repay 
the balance of the advances  still owed by the Supplier, and the guar 
antor  shall  not  delay  payment  or  raise  objection  for  any  reason 
whatever. 

29.7  The  advance  guarantee  provided  for  in Article  29  shall  not  be  re 
leased before provisional  acceptance of the Supplies but shall be re 
leased within 60 days thereafter. 

29.8  Further  conditions  and procedures  for  granting  and  repaying  advances 

shall be as laid down  in the Special Conditions. 

- 132 -

ARTICLE 30 

Retention Sums 

30.1  The sum which shall be retained from interim payments byway of guar 

antee to meet  the Supplier's obligations during the Warranty Period, 
and the detailed  rules governing  that guarantee, shall be as stipu 
lated  in the Special Conditions, provided  that it shall, in no case 
exceed 10% of the Contract Price. 

30.2  Subject  to the approval  of  the Contracting Authority,  the Supplier 

may, if he so wishes, substitute, not later than the provisional ac 
ceptance of the Supplies, these retention sums by a retention guaran 
tee issued in accordance with Article 11.3. 

30.3  The sum retained or the retention guarantee shall be released within 

90 days of the date of final acceptance of the Supplies. 

ARTICLE 31 

Revision of Prices 

31.1  Unless otherwise stipulated  in the Special Conditions, and except as 
provided  in Article 31.4, Contracts  shall be at fixed prices which 
shall not be revised. 

31.2  Where prices may be revised under  the Contract, such revision shall 
take  into account variations  in the prices of  significant  local or 
external elements which served as a basis for the calculation of the 
tender price, such as manpower, services, materials and supplies, as 
well  as charges laid down by law or regulation.  The detailed rules 
for the revision shall be as laid down in the Special Conditions. 

31.3  Prices contained in the Supplier's tender shall be deemed:-

a) to have been arrived at on the basis of the conditions in force 30 
days prior to the latest date fixed for submission of tenders or, 
in the case of direct agreement Contracts, on  the date  the Con 
tract. 

b) to have taken account of the legislation and the relevant tax ar 
rangements applicable at the reference date fixed  in Article 31.3 
(a). 

-  133 -

31.4  In the event of changes  to, or  introduction of, any national or State 
statute, ordinance, decree or other  law, or any regulation or bye-law 
of  any  local  or  other  public  authority,  after  the  date  stated  in 
Article  31.3 which  causes  a  change  in  the  contractual  relationship 
between  parties  to  the Contract,  the Contracting  Authority  and  the 
Supplier  shall  consult  on how best  to proceed  further under  the Con 
tract, and may as a result of such consultation decide:-

a) to modify  the Contract; or 

b) on  payment  of  compensation  for  the  resulting  imbalance  by  one 

party to the other; or 

c) to terminate  the Contract by mutual  agreement. 

31.5  In  the  event  of  a delay  in  the  execution  of  the Contract  for which 

the  Supplier  is  responsible  or  at  the  end  of  the  period  of  perfor 
mance  revised  as  necessary  in  accordance with  the  Contract,  there 
shall be no further  revision of prices within  the 30 days before pro 
visional  acceptance  except  for  the  application  of  new  price  index 
ation, if this  is to the benefit of the Contracting Authority. 

ARTICLE 32 

Interim Payments 

32.1  Unless  otherwise  specified  in  the  Special  Conditions,  the  Supplier 
shall  submit  an application for  interim payment  to  the Supervisor  at 
the end of each period  referred  to in Article 32.7 in a form approved 
by  the  Supervisor.  The  application  shall  include  the  following 
items, as applicable:-

a) the  estimated  Contract  value  of  the  Supplies  delivered  up  to  the 

end of the period  in question; 

b) an  amount  reflecting  any  revision  of  prices  pursuant  to Article 

31; 

c) an amount  to be withheld  as retention sum under Article 30; 

d) any  credit  and/or  debit  for  the period  in question  in  respect  of 
Supplies  delivered  under  the Contract,  but  not  yet  installed  or 
commissioned  in  the  amount  and  under  the  conditions  set  out  in 
Article 32.2; 

e) any other  sum to which  the Supplier may be entitled under  the Con 

tract. 

-  134 -

32.2  The  Supplier  shall  be  entitled  to  such  sums  as  the  Supervisor  may 
consider  proper  in respect  of Supplies  delivered  under  the Contract, 
but not yet  installed  or commissioned,  provided  that:-

a) the Supplies  conform to  the  specification of  the Contract  and  are 
set  out  in  batches  in  a way  that  they may  be  recognised  by  the 
Supervisor; 

b) such Supplies  have  been delivered  to the place  of  acceptance, and 

are properly stored  and protected  against  loss, damage  or deterio 
ration to the satisfaction of the Supervisor; 

c) the Supplier's  record of requirements, orders, receipts and use of 
goods and materials under  the Contract  are kept  in a form approved 
by the Supervisor  and  such records are available  for  inspection by 
the Supervisor; 

d) the  Supplier  submits with  his  statement,  the  estimated  value  of 
the Supplies  at  the place  of acceptance,  together with  such docu 
ments  as may be required  by the Supervisor  for  the purpose  of val 
uation  of  the  Supplies  and  providing  evidence  of  ownership  and 
payment  therefor; and 

e) where  the Special Conditions  so provide, ownership of the Supplies 

shall be deemed  to be vested  in the Contracting Authority; 

32.3  Approval  by the Supervisor  of any interim payment  certified by him in 

respect  of goods  and materials  pursuant  to Article  32  shall  be with 
out  prejudice  to  the  exercise  of  any  power  of  the  Supervisor  under 
the Contract  to  reject  any  goods  and materials which  are not  in ac 
cordance with  the provisions of the Contract.  Where  the Special Con 
ditions  so provide, upon  any  such  rejection  the property  in  the  re 
jected goods and materials  shall  immediately  revert  to the Supplier. 

32.4  The  Supplier  shall  be  responsible  for  any  loss  or damage  to and  for 

the  cost  of  storing, handling  of  and  removing  from  the place  of  ac 
ceptance, such goods and materials which have been rejected  and shall 
effect  such  additional  insurance  as may  be  necessary  to  cover  the 
risk of such loss or damage from any cause. 

32.5  Within  30  days  of  receipt  of  the  said  application  for  interim pay 

ment,  it  shall  be  approved  or  amended  in  such manner  that,  in  the 
Supervisor's  opinion,  it  reflects  the  amount  due  to  the  Supplier  in 
accordance with  the Contract.  In cases where  there  is a difference of 
opinion as  to the value  of an  item,  the Supervisor's view shall pre 
vail.  On determination of the amount due  to the Supplier,  the Super 
visor  shall  issue  to  the Contracting Authority  and  the  Supplier,  an 
interim  payment  certificate  for  the  amount  due  to  the  Supplier  and 
shall  inform the Supplier  of  the Supplies  for which payment  is being 
made. 

- 135 -

32.6  The  Supervisor may, by an  interim payment  certificate, make  any cor 

rections  or modifications  to  any previous  certificate  issued  by  him 
and shall have power  to modify  the valuation  in or withhold  the issu 
ing  of  any  interim payment  certificate  if  the Contract, or  any part 
thereof, has not been executed  to his satisfaction. 

32.7  The  frequency  of  interim payments  shall  be  laid down  in  the  Special 

Conditions  in accordance with  the characteristics  of the Supplies. 

32.8  The  Special  Conditions  may  require  certain  interim  payments  to  be 

fully secured by a guarantee approved  in accordance with Article 11. 

ARTICLE 33 

Final Statement  of Account 

33.1  Not  later  than 60 days  after  the  issue  of  the Final Acceptance  cer 

tificate  referred  to  in Article 41, the Supplier  shall  submit  to the 
Supervisor  a draft  final  statement  of  account with  supporting  docu 
ments  showing  in detail  the value  of  the Supplies provided  in accor 
dance with  the  Contract,  together with  all  further  sums which  the 
Supplier  considers  to  be  due  to him under  the Contract  in  order  to 
enable  the Supervisor  to prepare  the final  statement  of account.  The 
Special  Conditions  may,  however,  in  accordance  with  Article  33.6, 
state  that  the draft  final  statement  of account  and  further  proceed 
ings  related  thereto, be  dealt with  before  the  issue  of  the provi 
sional acceptance certificate. 

33.2  Within 60 days after  receipt of this draft final  statement  of account 
and  of  all  information  reasonably  required  for  its verification, the 
Supervisor  shall  prepare  the  final  statement  of  account, which  de 
termines :-

a) the amount which  in his opinion is finally due under  the Contract; 

and 

b) after  establishing  the amounts previously paid  by  the Contracting 

Authority and all sums to which  the Contracting Authority is enti 
tled  under  the Contract,  the  balance,  if  any, due  from  the Con 
tracting  Authority  to  the  Supplier,  or  from  the  Supplier  to  the 
Contracting Authority, as the case may be. 

33.3  The  Supervisor  shall  issue  to  the Contracting Authority  or  its duly 
authorised  representative,  and  to  the  Supplier,  the  final  statement 
of account  showing  the final amount  to which the Supplier  is entitled 
under  the Contract.  The Contracting Authority or  its duly authorised 
representative  and the Supplier  shall  sign the final  statement of ac 
count  as  an acknowledgement  of  the full  and  final value  of  the Sup 
plies  provided  under  the  Contract  and  shall  promptly  submit  the 
signed  copy  to  the  Supervisor.  However,  the  final  statement  of ac 
count  shall  not  include  amounts  in dispute which  are  the  subject  of 
negotiations, conciliation, arbitration or litigation. 

-  136 -

33.4  The  final  statement  of  account  signed  by  the  Supplier  shall  consti 

tute a written discharge of the Contracting Authority confirming  that 
the total of the final  statement of account  represents full and final 
settlement  of all monies due to the Supplier underthe Contract, other 
than  those  amounts which  are  the  subject  of  amicable  settlement, ar 
bitration or litigation.  However, such discharge  shall become effec 
tive  only  after  any payment  due  in accordance with  the  final  state 
ment  of account has been made  and  the performance  guarantee  referred 
to in Article 11, has been returned  to the Supplier. 

33.5  The 

e Contracting Authority shall not be liable to the Supplier for any 
ma 
tter or thing whatsoever  arising out of, or in connection with, the 
Contract or provision of the Supplies, unless  the Supplier  shall have 
included  a  claim  in  respect  thereof  in his draft  final  statement  of 
account. 

33.6  The provisions  of Article  33 may  be varied  by  the Special  Conditions 

having  regard  to  the  practices  in  the  State  of  the Contracting Au 
thority. 

ARTICLE 34 

Payment  to Third Parties 

34.1  All orders for payment  to third parties may be carried out only after 
an  assignment  made  in  accordance  with  Article  6.  The  assignment 
shall be notified  to the Contracting Authority. 

34.2  Notification of beneficiaries of the assignment  shall be the sole re 

sponsibility of the Supplier. 

34.3  In  the  event  of  a  legally binding  attachment  of  the property  of  the 

Supplier  affecting  payments due  to him under  the Contract, and with 
out  prejudice  to  the Time  Limit  laid  down  in Article  35,  the Con 
tracting Authority  shall have 30 days,  starting  from the day when  it 
receives  notification  of  the  definitive  lifting  of  the  obstacle  to 
payment, to resume payments  to the Supplier. 

- 137 -

ARTICLE 35 

Delayed Payments 

35.1  Payment to the Supplier of the amounts due under each of the interim 
payment certificates and the final statement of account issued by the 
Supervisor shall be made by the Contracting Authority within 90 days 
of such certificate or statement being delivered  to the Contracting 
Authority.  If the period laid down for payment has been exceeded,the 
Supplier shall qualify for interest calculated pro rata on the basis 
of the number of days delay at the rate specified in the Special Con 
ditions  subject  to  a maximum period,  also  specified  therein.  The 
Supplier  shall be entitled  to such payment without prejudice  to any 
other right or remedy under the Contract.  In the case of the final 
statement of account, the interest for the delayed payment  shall be 
calculated on a daily basis at the rate specified in the Special Con 
ditions. 

35.2  Any default  in payment of more than 120 days from the expiry of the 
period  laid down  in Article 35.1  shall  entitle  the Supplier  either 
not to perform the Contract or to terminate it. 

ARTICLE 36 

Payments in Foreign Currency 

Where under the Contract the Supplier is entitled to payments in For 
eign Currency,  the  rates  of  exchange  for  calculating  the  payments 
shall be those prevailing, as determined by the Central Bank of the 
State of the Contracting Authority, 30 days prior to the latest date 
fixed for the submission of tenders for the Contract.  Such rates of 
exchange shall not be varied. 

ACCEPTANCE AND MMNIENANCE 

ARTICLE 37 

Delivery 

37.1  The Supplier shall deliver the Supplies in accordance with the terms 
specified  in the Contract and the Supplies shall remain at the risk 
of the Supplier until provisional acceptance. 

-  138 -

37.2  The  Supplier  shall  provide  such packaging  of  the  Supplies  as  is re 

quired  to prevent  their  damage  or  deterioration  in  transit  to  their 
final  destination  as  indicated  in  the Contract.  The  packaging  shall 
be  sufficient  to withstand, without  limitation,  rough handling, expo 
sure  to  extreme  temperatures,  salt  and  precipitation  during  transit 
and  open  storage.  Package  size  and weights  shall  take  into  consid 
eration, Where  appropriate,  the  remoteness  of  the  final  destination 
of  the  Supplies,  and  the possible  absence  of heavy  handling  facili 
ties at all points  in transit. 

37.3  The packaging, marking  and documentation within and outside  the pack 
ages  shall  comply  with  such  special  requirements  as  shall  be  ex 
pressly provided  for  in the Contract,  subject  to any variations  sub 
sequently ordered by the Supervisor. 

37.4  No  Supplies  shall be  shipped  or delivered  to the place  of  acceptance 
until  a  confirmation  in writing  has  been  obtained  by  the  Supplier 
from the Supervisor  that  the Supplies may be delivered.  The Supplier 
shall  be  responsible  for  the delivery  at  the place  of  acceptance  of 
all Supplies and Supplier's  equipment  required  for  the purpose of the 
Contract. 

37.5  Each delivery must  be accompanied  by a statement  drawn up by the Sup 

plier.  This  statement,  the  form of which  shall  be  as prescribed  by 
the Special Conditions, shall  contain,  in particular:-

- the date of delivery; 

- the reference number  of the Contract; 

- the identification of the Supplier; 

- particulars  of  the  goods  supplied  and, where  appropriate,  details 

of how they were divided  for packing. 

37.6  Each package must  be clearly marked with  its order number  as shown on 
the  statement  referred  to  in Article  37.5;  in the absence  of  indica 
tions  to  the  contrary,  this  statement  shall  contain  a  list  of  its 
contents. 

37.7  Delivery  shall be deemed  to have been made when  there  is written evi 

dence  available  to  both  parties  that  delivery  of  the  Supplies  has 
taken place  in accordance with  the  terms of  the Contract  and  the in-
voice(s) and all  such other documentation  as specified  in the Special 
Conditions, have  been  submitted  to  the Contracting Authority.  Where 
the Supplies  are delivered  to an establishment  of the Contracting Au 
thority,  the  latter  shall  bear  the  responsibility  of  bailee,  in ac 
cordance with  the requirements  of the law of the Contract, during  the 
time which  elapses between delivery for  storage and acceptance. 

-  139 -

37.8  All materials  and  goods  supplied  under  the Contract  shall  be  fully 
insured, with  the Contracting Authority  as beneficiary, against  loss 
or  damage  incidental  to manufacture  or  acquisition,  transportation, 
storage  and  delivery  in  the manner  specified  in  the  Special  Condi 
tions. 

ARTICLE 38 

Verification Operations 

38.1  The Supplies  shall not be accepted until  the prescribed verifications 
and  tests have been carried  out at  the expense  of  the Supplier.  The 
inspections  and  tests  may  be  conducted  at  the  point  of  delivery 
and/or at the final destination of the goods. 

38.2  The Supervisor  shall, during  the progress of the delivery of the Sup 

plies and before  the Supplies are taken over, have  the power  to order 
or decide:-

a) the  removal  from  the  place  of  acceptance, within  such  time  or 
times as may  be  specified  in the order, of any Supplies which,  in 
the opinion of the Supervisor, are not  in accordance with  the Con 
tract; 

b) the substitution by proper and suitable Supplies; 

c) the removal and proper  re-installation, notwithstanding any previ 

ous  test  thereof  or  interim payment  therefor, of  any  installation 
which  in  respect  of materials, workmanship  or  design  by  the Sup 
plier  for which he  is responsible,  is not,  in  the  opinion  of  the 
Supervisor, in accordance with  the Contract; 

d) that any work done or goods supplied or materials used by the Sup 

plier  is or  are not  in accordance with  the Contract, or  that  the 
Supplies  or any portion  thereof do not  fulfil  the  requirements  of 
the Contract. 

38.3  The  Supplier  shall, with  all  speed  and at his own expense, make  good 
the defects so specified.  In case of default on the part of the Sup 
plier  in carrying  out  such order, the Contracting Authority  shall be 
entitled  to employ other persons  to carry out  the orders  and all ex 
penses  consequent  thereon or  incidental  thereto  shall  be  recoverable 
from the Supplier by the Contracting Authority, or may be deducted by 
the Contracting Authority from any monies due or Which may become due 
to the Supplier. 

-  140 -

38.4  Supplies which  are not of  the required quality  shall  be  rejected.  A 
special mark may be applied  to the rejected Supplies.  This  shall not 
be  such as  to alter  them or affect  their  commercial  value.  Rejected 
Supplies  shall  be  removed  by  the  Supplier  from  the  place  of  accep 
tance,  if  the  Supervisor  so  requires, within  a  period  which  the 
Supervisor  shall  specify,  failing which  they  shall  be  removed  as of 
right  at  the expense  and  risk of  the Supplier.  Any work  incorporat 
ing rejected materials  shall be rejected. 

38.5  The  provisions  of Article  38  shall not  affect  the  right  of  the Con 

tracting Authority to claim under Article 21, nor  shall  it in anyway 
release the Supplier from any warranty or other obligations under the 
Contract. 

ARTICLE 39 

Provisional Acceptance 

39.1  The  Supplies  shall  be  taken  over  by  the Contracting  Authority when 

they have been delivered  in accordance with  the Contract, have satis 
factorily  passed  the  required  tests, or  have  been  commissioned,  as 
the case may be, and a certificate of provisional  acceptance has been 
issued or is deemed  to have been issued. 

39.2  The  Supplier may  apply, by notice  to  the Supervisor, for  a certifi 

cate  of  provisional  acceptance  not  earlier  than  15  days  before  the 
Supplies,  in the Supplier's  opinion, are complete  and  ready for pro 
visional  acceptance.  The  Supervisor  shall within  30 days  after  the 
receipt of the Supplier's application either: 

a) issue  the  certificate  of  provisional  acceptance  to  the  Supplier 
with  a copy  to the Contracting Authority  stating, where  appropri 
ate, his  reservations  and,  inter-alia,  the date  on which,  in his 
opinion,  the  Supplies were  completed  in accordance with  the Con 
tract and ready for provisional  acceptance; or 

b) reject  the  application  giving  his  reasons  and  specifying  the ac 

tion which,  in his  opinion, are  required  of  the  Supplier  for  the 
certificate  to be  issued. 

39.3  Should  exceptional  circumstances make  it  impossible  to proceed with 

the  acceptance  of  the  Supplies  during  the  period  fixed  for  provi 
sional or final acceptance, a statement  certifying  such impossibility 
shall  be drawn up by  the Supervisor  after  consultation, where possi 
ble, with  the  Supplier.  The  certificate  of  acceptance  or  rejection 
shall be drawn up within 30 days following  the date on which such im 
possibility  ceases  to  exist.  The  Supplier  shall  not  invoke  these 
circumstances  in order  to avoid  the obligation of presenting  the Sup 
plies  in a state suitable for acceptance. 

- 141 -

39.4  If  the Supervisor  fails  either  to  issue  the  certificate  of provi 

sional acceptance or to reject the Supplies within the period of 30 
days, he shall be deemed to have issued the certificate on the last 
day of that period.  The certificate of provisional acceptance shall 
not be deemed to be an admission that the Supplies have been deliv 
ered  in every respect.  If the Supplies are divided by the Contract 
into lots, the Supplier shall be entitled to apply for separate cer 
tificates for each of the lots. 

39.5  Upon provisional acceptance of the Supplies, the Supplier shall dis 

mantle and remove temporary structures as well as materials no longer 
required for use in connection with the performance of the Contract. 
He shall also remove any litter or obstruction and redress any change 
in the condition of the place of acceptance as required by the Con 
tract. 

ARTICLE 40 

Warranty Obligations 

40.1  The Supplier shall warrant that the Supplies are new, unused, of the 
most recent  models and incorporate all recent improvements in design 
and materials, unless otherwise provided  in the Contract.  The Sup 
plier  shall  further warrant  that all Supplies  shall have no defect 
arising from design, materials or workmanship, except insofar as the 
design or materials are required by the specifications, or from any 
act or omission of the Contracting Authority, that may develop under 
use of the Supplies in the conditions obtaining  in the State of the 
Contracting Authority. 

40.2  Unless  otherwise  specified  in the Special Conditions, this warranty 
shall  remain valid  for 360 days  after  the Supplies  or  any portion 
thereof, as the case may be, have been delivered and commissioned at 
the  final  destination  indicated  in  the Contract,  or  for  540 days 
after the date of shipment from the port of loading in the country of 
origin, whichever  period  ends  earlier.  The  obligation  to maintain 
the Supplies shall be subject to any stipulations in the Special Con 
ditions and specifications which shall determine the period and con 
ditions thereof. 

40.3  The Supplier  shall be responsible for making  good any defect  in or 
damage  to any part of the Supplies which may appear or occur during 
the Warranty Period, or within 30 days after its expiration and which 
arise either:-

a) from the use of defective materials, faulty workmanship or design 

of the Supplier; or 

b) from any act or omission of the Supplier during the Warranty Pe 

riod; or 

-  142 -

c) in the course  of an  inspection made  by, or on behalf  of, the Con 

tracting Authority. 

40.4  The  Supplier  shall  at his own cost make  good  the defect  or damage as 
soon  as  practicable.  The Warranty  Period  for  all  items  replaced  or 
repaired  shall  recommence  from  the date when  the  replacement  or re 
pair was made  to the satisfaction of the Supervisor.  If the Contract 
provides  for  partial  acceptance,  the Warranty  Period  shall  be  ex 
tended  only  for  the  part  of  the  Supplies  affected  by  the  replace 
ment  or repair. 

40.5  If  any  such  defects  appear  or  such  damage  occurs  during  the  period 

referred  to  in Article 40.3, the Contracting Authority  or  the Super 
visor  shall  notify  the  Supplier.  If  the Supplier  fails  to  remedy a 
defect  or  damage within  the Time  Limit  stipulated  in  the  notifica 
tion, the Contracting Authority may:-

a) remedy  the defect  or  the damage  itself, or employ someone  else to 
carry out  the work  at  the Supplier's  risk and  cost, in Which  case 
the costs  incurred  by  the Contracting Authority  shall  be deducted 
from monies due to or from guarantees held against  the Supplier or 
from both; or 

b) terminate  the Contract. 

40.6  In case of emergency, where  the Supplier cannot be reached immediate 

ly or, having  been reached,  is unable  to take  the measures  required, 
the Contracting Authority or the Supervisor may have  the work  carried 
out at the expense of the Supplier.  The Contracting Authority or the 
Supervisor  shall  as  soon  as  practicable  inform  the  Supplier  of  the 
action taken. 

ARTICLE 41 

After Sales Service 

An after sales service, if required by the Contract, shall be provid 
ed  in  accordance with  the  details  stipulated  in  the  Special  Condi 
tions. The Supplier  shall undertake  to carry out  or have  carried  out 
the maintenance  and  repair of Supplies  and  to provide  a rapid  supply 
of spare parts.  The Special Conditions may  specify that  the Supplier 
shall  be  required  to provide  any or  all  of  the  following materials, 
notifications and documents pertaining  to spare parts manufactured  or 
distributed by the Supplier:-

a) such  spare  parts  as  the Contracting  Authority may  elect  to pur 
chase from the Supplier, provided  that this election  shall not re 
lieve the Supplier of any warranty obligations under  the Contract; 
and 

-  143 -

b) in  the  event  of  termination  of production  of  the  spare  parts  ad 
vance notification  to the Contracting Authority  to procure  needed 
requirements;  and  following  such  termination,  furnishing  at  no 
cost  to  the  Contracting  Authority,  the  blueprints, Drawings  and 
specifications of the spare parts, if and when  requested. 

ARTICLE 42 

Final Acceptance 

42.1  Upon  the  expiration  of  the Warranty  Period  or Where  there  is more 
than  one  such  period,  upon  the  expiration  of  the  latest  period  and 
when  all defects  or damage have been  rectified,  the Supervisor  shall 
issue  to  the  Supplier  a  Final  Acceptance  Certificate  and  a 
copythereof  to  the Contracting  Authority  stating  the  date  on which 
the  Supplier  completed  his  obligations  under  the  Contract  to  the 
Supervisor's  satisfaction.  The Final Acceptance Certificate  shall be 
given  by  the  Supervisor within  30 days  after  the  expiration  of  the 
Warranty  Period,  or  as  soon  thereafter  as  any  rectifications  in 
structed, pursuant  to Article  40, have  been  completed  to  the satis 
faction of the Supervisor. 

42.2  The Contract  shall  not  be  considered  to be  fully  executed  until  the 
Final  Acceptance  Certificate  has  been  signed  by  the  Supervisor  and 
delivered  to  the Contracting Authority, with  a  copy  to  the Contrac 
tor. 

42.3  Notwithstanding  the  issue  of  the  Final  Acceptance  Certificate,  the 
Supplier  and  the Contracting  Authority  shall  remain  liable  for  the 
fulfillment  of  any  obligation  incurred  under  the Contract  prior  to 
the  issue  of  the  Final  Acceptance  Certificate,  Which  remains 
unperformed  at  the  time  such Final Acceptance Certificate  is  issued. 
The  nature  and  extent  of  any  such obligation  shall  be  determined  by 
reference  to the provisions of the Contract. 

BREACH OP OONTRACr AND TERMINATION 

ARTICLE 43 

Breach of Contract 

43.1  Either party commits a breach of Contract where he fails  to discharge 

any of his obligations under  the Contract. 

- 144 -

43.2  Where  a breach of Contract  occurs, the party  injured by the breach 

shall be entitled to the following remedies :-

a) damages; and/or. 

b) termination of the Contract. 

43.3  Damages may be:-

a) General Damages; or 

b) Liquidated Damages. 

43.4  In any case where  the Contracting Authority  is entitled  to damages, 
it may deduct such damages from any sums due to the Supplier or from 
the appropriate guarantee. 

ARTICLE 44 

Termination by the Contracting Authority 

44.1  The Contracting Authority may, at any time and with immediate effect, 
terminate the Contract, except as provided for in Article 44.2. 

44.2  Except  as otherwise provided  in these General Conditions, the Con 

tracting Authority may, after giving 7 days notice to the Supplier, 
terminate the Contract in any of the following cases where:-

a) the Supplier  fails  to provide  the Supplies  in strict  accordance 

with the provisions of the Contract; 

b) the Supplier fails to comply within a reasonable time with a no 

tice  given  by  the  Supervisor  requiring  him  to make  good  any 
neglect  or failure to perform his obligations under  the Contract 
Which  seriously affect  the proper  and  timely performance  of the 
Contract; 

c) the Supplier  refuses or neglects  to carry out Administrative Or 

ders given by the Supervisor; 

d) the  Supplier  assigns  the Contract  or  sub-contracts without  the 

authorisation of the Contracting Authority; 

e) the Supplier becomes bankrupt or insolvent, or has a receiving or 

der made against him, or compounds with his creditors, or carries 
on business under a receiver, trustee or manager for the benefit 
of his creditors, or goes into liquidation; 

f) any adverse final  judgment  is made  in respect  of an offence re 

lating to the professional conduct of the Supplier; 

-  145 -

g) any  other  legal  disability  hindering  performance  of  the  Contract 

occurs; 

h) any  organizational  modification  occurs  involving  a  change  in  the 
legal personality,  nature  or  control  of  the Supplier, unless  such 
modification  is recorded  in an endorsement  to the Contract; 

i) the Supplier  fails  to provide  the required guarantee  or  insurance, 
or  if  the  person  providing  the  earlier  guarantee  or  insurance  is 
not  able  to abide by his  commitments. 

44.3  Termination  shall  be without  prejudice  to any other  rights  or powers 
under  the  Contract  of  the  Contracting  Authority  and  the  Supplier. 
The  Contracting  Authority may,  thereafter,  conclude  any  other  con 
tract with  a  third  party  for  the  account  of  the  Supplier.  The  Sup 
plier's  liability  for  delay  in  completion  shall  immediately  cease 
upon  termination without  prejudice  to  any  liability  thereunder  that 
may have already  occurred. 

44.4  The  Supervisor  shall, upon  the  issue of  the notice  of  termination of 
the Contract,  instruct  the Supplier  to take  immediate  steps  to bring 
the execution of  the Supplies  to a close  in a prompt  and orderly man 
ner  and  to reduce expenditure  to a minimum. 

44.5  The  Supervisor  shall, as  soon as possible  after  termination,  certify 
the value  of  the Supplies  and all  sums due  to the Supplier  as at  the 
date of  termination. 

44.6  In the event  of  termination:-

a) the  Supplier  or  his  representatives  being  present  or  duly  sum 

moned,  a report  of Supplies delivered  and  the work performed  shall 
be drawn up by the Supervisor  as soon as possible, and  inventories 
taken  of  the  materials  supplied  and  unused.  A  statement  shall 
also  be drawn up  of  sums  owed  by  the  Supplier  to  the Contracting 
Authority; 

b) the Contracting Authority may purchase, at market  prices,  the ma 
terials  and  items  supplied  or ordered  by  the Supplier  and not al 
ready paid  for by  the Contracting Authority on  such  conditions as 
the Supervisor  considers appropriate. 

44.7  The  Contracting  Authority  shall  not  be  obliged  to make  any  further 
payments  to  the Supplier until  the Supplies  are  completed, whereupon 
the Contracting Authority  shall  be  entitled  to recover  from the Sup 
plier  the  extra  costs,  if  any,  of  providing  the  Supplies,  or  shall 
pay any balance due  to  the Supplier  prior  to  termination  of  the Con 
tract. 

- 146 

44.8  If the Contracting Authority  terminates  the Contract, it shall be en 

titled  to  recover  from  the  Supplier  any  loss  it has  suffered  up  to 
the maximum amount  stated  in  the Contract.  If no maximum amount  is 
stated,  the Contracting  Authority  shall  not  be  entitled  to  recover 
more  than  the part  of  the Contract  Price  corresponding  to  the value 
of  that part  of  the Supplies which  cannot, by  reason of  the Suppli 
er's failure, be put  to the intended use. 

44.9  Where  the termination  is not due to an act or omission of the Suppli 

er, the  latter  shall be  entitled  to claim,  in addition  to sums owing 
to him for work already performed, an indemnity for loss suffered. 

ARTICLE 45 

Termination by the Supplier 

45.1  The Supplier may, giving 14 days notice  to the Contracting Authority, 

terminate  the Contract  if the Contracting Authority:-

a) fails  to  pay  the  Supplier  the  amounts  due  under  any  certificate 
issued by the Supervisor after  the expiry of the Time Limit  stated 
in Article 35.2; 

b) consistently  fails  to meet  his  obligations  after  repeated  remind 

ers; or 

c) suspends  the progress of the delivery of the Supplies, or any part 
thereof, for more  than 180 days, for  reasons not  specified  in the 
Contract, or not due  to the Supplier's default; 

45.2  Such  termination  shall  be without  prejudice  to  any  other  rights  of 

the  Contracting  Authority  or  the  Supplier  acquired  under  the  Con 
tract. 

45.3  In the event of such termination, the Contracting Authority  shall pay 
the  Supplier  for  any  loss  or damage  the Supplier may  have  suffered. 
Such  additional  payment  shall  not  exceed  a  limit  which  has  to  be 
specified  in the Contract. 

ARTICLE 46 

Force Majeure 

46.1  Neither  party  shall  be  considered  to  be  in default  or  in  breach  of 

his obligations under  the Contract  if the performance  of such obliga 
tions  is prevented by any circumstances of force majeure which arises 
after  the date of notification of award or the date when  the Contract 
becomes effective, whichever  is the earlier. 

-  147 -

46.2  The  term  "force  majeure",  as  used  herein  shall  mean  acts  of  God, 
strikes, lock-outs  or other  industrial disturbances, acts of the pub 
lic enemy, wars whether declared or not, blockades, insurrection, ri 
ots,  epidemics,  landslides,  earthquakes,  storms,  lightning,  floods, 
washouts,  civil  disturbances,  explosions,  and  any  other  similar  un 
foreseeable  events, not within  the  control  of  either  party  and which 
by the exercise of due diligence neither party is able to overcome. 

46.3  Notwithstanding  the  provisions  of Articles  21  and  44,  the  Supplier 
shall  not  be  liable  to forfeiture  of his  performance  guarantee,  liq 
uidated  damages  or  termination  for  default  if,  and  to  the  extent 
that, his delay  in performance  or other  failure  to perform his obli 
gations  under  the  Contract  is  the  result  of  an  event  of  force 
majeure.  The  Contracting  Authority  shall  similarly  not  be  liable, 
notwithstanding  the  provisions  of Articles  35  and  45,  to payment  of 
interest  on delayed  payments,  for non-performance  or  for  termination 
by  the  Supplier  for  default,  if,  and  to  the  extent  that,  the  Con 
tracting  Authority's  delay  or  other  failure  to  perform  its  obliga 
tions  is the result  of force majeure. 

46.4  If  either  party  considers  that  any  circumstances  of  force  majeure 
have  occurred  which  may  affect  performance  of  his  obligations,  he 
shall  promptly  notify  the other party and  the Supervisor,  giving de 
tails  of  the  nature,  the  probable  duration  and  the  likely  effect 
ofthe circumstances.  Unless  otherwise directed  by the Supervisor  in 
writing,  the Supplier  shall  continue  to perform his obligations under 
the Contract  as far as  is reasonably practicable,  and  shall  seek all 
reasonable alternative means  for performance  of his obligations which 
are not  prevented  by  the force majeure  event. The  Supplier  shall not 
put  into  effect  such  alternative means  unless  directed  so  to  do  by 
the Supervisor. 

46.5  If  the Supplier  incurs  additional  costs  in complying with  the Super 
visor's directions  or using  alternative means under Article 46.4, the 
amount  thereof  shall be certified by the Supervisor. 

46.6  If  circumstances  of  force majeure  have  occurred  and  continue  for  a 
period  of  180  days  then,  notwithstanding  any  extension  of  time  for 
completion  of  the Contract  that  the  Supplier may  by  reason  thereof 
have  been  granted,  either  party  shall  be  entitled  to  serve  upon  the 
other 30 days' notice  to terminate  the Contract.  If at  the expiry of 
the  period  of  30 days,  force majeure  still  continues,  the  Contract 
shall  terminate  and,  in  consequence  thereof  under  the  law governing 
the Contract,  the parties  shall  be  released  from further  performance 
of the Contract. 

- 148 -

ARTICLE 47 

Decease 

47.1  Where  the Supplier  is a natural person, the Contract  shall be auto 
matically  terminated  if that person dies.  However, the Contracting 
Authority shall examine any proposal made by the heirs or beneficia 
ries if they have notified their wish to continue the Contract.  The 
decision of the Contracting Authority shall be notified to those con 
cerned within 30 days of receipt of such proposal. 

47.2  Where  the Supplier  consists  of natural  persons  and  one or more of 
them  die,  a  report  shall  be  agreed  between  the  parties  on  the 
progress of the Contract and the Contracting Authority  shall decide 
whether to terminate or continue the Contract in accordance with the 
undertaking given by the survivors and by the heirs or beneficiaries, 
as the case may be. 

47.3  In the cases provided for in Articles 47.1 and 47.2, persons offering 

to continue to perform the Contract shall notify the Contracting Au 
thority thereof within 15 days of the date of decease. 

47.4  Such persons shall be jointly and severally liable, or as otherwise 
stated  in the Special Conditions  for  the proper  performance  of the 
Contract to the same extent as the original Supplier. Continuation of 
the Contract shall be subject to the rules relating to establishment 
of the guarantee provided for in Article 11. 

SETTLEMENT OP DISPUTES 

ARTICLE 48 

Settlement of disputes 

48.1  The Contracting Authority and the Supplier shall make every effort to 
amicably settle any dispute relating to the Contract which may arise 
between them, or between the Supervisor and the Supplier. 

48.2  The Special Conditions shall prescribe:-

a) the procedure for the amicable settlement of disputes; 

b) the Time Limits within which the amicable settlement procedure may 
be  invoked  after  the  time  that  the dispute  is notified  to the 
other party and the maximum Time Limit within which such settle 
ment may be reached, Which may not exceed 120 days from the com 
mencement of the adopted procedure; 

-  149 -

c) the Time Limits  for  responding  in writing  to a  request  for  amica 

ble  settlement  or  to other  requests permitted  during  the course of 
that procedure  and  the consequence  of failure  to comply with  those 
Time Limits. 

48.3  The  parties may  agree  to  the  settlement  of  the  dispute  by  concilia 

tion within  a specific Time Limit  by a third party after  the amicable 
settlement  procedure  adopted has  failed. 

48.4  The  amicable  settlement  or  conciliation  procedure  adopted  shall  in 
all  cases  involve  a procedure  in which  complaints  and  responses  are 
notified  to the other party. 

48.5  In  the  absence  of  an  amicable  settlement  or  settlement  by  concilia 

tion within  the maximum Time Limits  specified,  the dispute  shall:-

a) in  the  case  of a national  contract,  be  settled  in accordance with 
the  national  legislation  of  the  State  of  the  Contracting 
Authority;  and 

b) in the case of a transnational Contract, be settled  by arbitration 
in  accordance  with  the  procedural  rules  adopted  by  the  EBC 
Council. 

- 150 -

ANNEX IV 

GENERAL  CONDITIONS 
FOR SERVICE  CONTRACTS 
FINANCED BY 
THE EUROPEAN DEVELOPMENT  FUND 

IN THE OCT 

TABLE  OF  ŒNTEOTS 

PRELIMINARY  PROVISIONS 

% 

Article  1  Definitions 
Article 2  Law and Language of the Contract 
Article 3  Order of Precedence of Contract Documents 
Article 4  Notices and "Writ ten Comnuni cat ions 
Article  5  Supervisor and Supervisor's Representative 
Article 6  Assignment 
Article 7  Sub-contracting 

OBLIGATIONS OF THE CONTRACTING ALTOERTTY 

Article  8  Supply of  Information 
Article  9  Assistance with Local Regulations 

OBLIGATIONS OF THE CONSULTANT 

Article  10  General Obligations 
Article  11  Code of Conduct 
Article  12  Independence 
Article  13  Specifications and Designs 
Article  14  Indemnification.... 
Article  15  Medical  and  Insurance Arrangements 
Article  16  Proprietary Rights  in Reports  and Documents 

NATURE OF THE SERVICES 

Article  17  The Scope of the Services 
Article  18  Provision of Personnel 
Article  19  Staff and Equipment 
Article  20  Trainees 

PERFORMANCE OF THE ŒNTRACT 

Article 21  Commencement  Orders 
Article 22  Period  of Performance 
Article 23  Extension of Period  of Performance 
Article  24  Delays  in Performance 
Article 25  Suspension 

Page 

153 
155 
156 
156 
156 
157 
158 

159 
159 

160 
161 
162 
162 
163 
164 
165 

165 
167 
168 
169 

169 
170 
170 
171 
172 

- 152 -

Article 26  Variations 
Article 27  W>rking Hours 
Article 28  Leave Entitlement. 
Article 29  Information 
Article 30  Records 
Article 31  Submission of Reports 
Article 32  Approval of Reports and Documents 

PAYMENTS 

Article 33  General Provisions 
Article 34  Advances 
Article 35  Payment Procedure 
Article 36  Travel and Transport 
Article 37  Revision of Prices 
Article 38  Delayed Payments 
Article 39  Payment to Third Parties 

BREACH OF CONTRACT AND TERMINATION 

Article 40  Breach of Contract 
Article 41  Termination by the Contracting Authority 
Article 42  Termination by the Consultant 
Article 43  Force Majeure 
Article 44  Decease 

SETILMOT OF DISPUTES 

Article 45  Settlement of Disputes 

Page 
172 
174 
174 
175 
175 
175 
176 

176 
177 
178 
179 
180 
181 
181 

182 
182 
184 
185 
186 

186 

-  153 -

PRELIMINARY PROVISIONS 

ARTICLE 1 

Definitions 

1.1 

The  following  definitions  apply  to  these  General  Conditions  and  to 
the Contract. 

EBC: the European Economic Community. 

OCT:  the association of the Overseas Countries and Territories with 

the EBC. 

Contract: the signed agreement  entered  into by the parties for the 

performance  of  the  Services,  including  all  attachments 
thereto and all documents  incorporated  therein. 

Consultant:  the party with whom the Contracting Authority  concludes 

the Contract. 

Contracting Authority:  the State or the legal person governed by pub 

lic or private law which concludes the Contract, or on behalf 
of which the Contract  is concluded, with  the Consultant. 

The State of the Contracting Authority:  the OCT on whose  territory 

the Service Contract  is to be executed. 

Supervisor: the government department, legal person governed by pub 

lic  law  or  the  natural  or  legal  person  designated  by  the 
Contracting Authority in accordance with  the law of the State 
of  the Contracting Authority, who  is responsible  for direct 
ing and/or monitoring  the execution  of  the Service Contract, 
or  to  whom  the  Contracting  Authority  may  delegate  rights 
and/or powers under  the Contract. 

Supervisor's Representative: any natural or legal person, designated 

by  the  Supervisor  as  such under  the Contract,  and  empowered 
to represent  the Supervisor  in the  performance  of his func 
tions,  and  in  exercising  such  rights  and/or  powers  as  have 
been delegated  to him.  Accordingly, where  functions, rights 
and/or  powers  of  the  Supervisor  have  been  delegated  to  the 
Supervisor's Representative, references  to the Supervisor in 
clude the Supervisor's Representative. 

Services: tasks to be performed  by the Consultant under  the contract 
such  as  studies, designs, provision  of  technical  assistance 
and  training. 

- 154 -

Terms of Reference: the statement  issued by the Contracting Authority 

giving  the definition  of  his  requirements  and/or  the  objec 
tives  of  the  Services,  including,  where  applicable,  the 
methods and means  to be used by the Consultant  and/or  the re 
sults to be achieved by him. 

Day: 

calendar day. 

Time Limits: those periods  in the Contract Which  shall begin to run 

from  the day  following  the act  or  event which  serves  as  the 
starting point for those periods.  Should  the last day of the 
period  fall  upon  a non-working  day,  the  period  shall  expire 
at the end of the first working day following  the last day of 
the period. 

Contract Price: the sum stated  in the Contract  representing  the init 

ial  estimate  payable  for  the  provision  of  the  Services  or 
such  other  sum as  ascertained  at  the  end  of  the Contract  as 
due  to the Consultant under  the Contract. 

Project: the project  in relation to which  the Services are to be pro 

vided under  the Contract. 

Price Schedule: the completed  schedule of prices, including  the 

breakdown  of  the  overall  price  submitted  by  the  Consultant 
with his tender, modified  as necessary, and forming a part of 
the unit price Contract. 

Breakdown of the Overall Price: the itemised  list of rates and prices 
showing  the build-up of the price  in a lump sum Contract, but 
not forming part of the Contract. 

Drawings: drawings provided by the Contracting Authority and/or the 

Supervisor,  and/or  drawings  provided  by  the  Consultant  and 
approved  by  the Supervisor, for  the performance  of  the Ser 
vices. 

Writing: any handwritten, typewritten or printed  communication, in 
cluding  telex, cable and facsimile  transmission. 

Administrative Order: any instruction or order  issued by the Super 

visor  to the Consultant  in writing  regarding  the  performance 
of the Services. 

Communications:  certificates, notices, orders and  instructions  issued 

under  the Contract. 

National Currency:  the currency of the State of the Contracting 

Authority. 

Foreign Currency: any permissible  currency which  is not  the National 

Currency and which  is indicated  in the Contract. 

- 155 -

General Damages: the sum, not stated beforehand in the Contract, 

which  is  awarded  by  a  court  or  arbitration  tribunal, or 
agreed between the parties, as compensation payable to an in 
jured party for a breach of the Contract by the other party. 

Liquidated Damages: the sum stated in the Contract as compensation 

payable  by  the Consultant  to  the Contracting Authority for 
failure  to perform the Contract  or part  thereof within  the 
periods under the Contract, or as payable by either party to 
the  other  for  any  other  specific  breach  identified  in the 
Contract. 

Special Conditions: the Special Conditions issued by the Contracting 

Authority  as part  of  the  invitation  to  tender, as  amended 
where necessary, and incorporated into the Contract, consist 
ing of: 

a) 

b) 

c) 

d) 

amendments to these General Conditions; 

special contractual clauses; 

technical specifications; and 

any other matter related to the Contract. 

1.2  The  headings  and  titles  in  these General  Conditions  shall  not  be 

taken as part thereof or be taken into consideration in the interpre 
tation of the Contract. 

1.3  "Where the context  so permits words  importing  the  singular  shall be 
deemed  to include the plural and vice versa and words  importing the 
masculine shall be deemed to include the feminine and vice versa. 

1.4  Vfords importing persons or parties shall include firms and companies 

and any organization having legal capacity. 

ARTICLE 2 

Law and Language of the Contract 

2.1  The  law  of  the  Contract  shall  be  the  law  of  the  State  of  the 

Contracting Authority unless otherwise  stated  in the Special Condi 
tions. 

2.2  In all matters which are not covered by these General Conditions, the 

law of the Contract shall apply. 

-  156 -

2.3  The  language  of  the Contract  and  of  all Ccmmuni cat ions  between  the 

Consultant, Contracting Authority and Supervisor  or their representa 
tives shall be as stated  in the Special Conditions. All  reports, rec 
ommendations  and  dossiers  prepared  by  the Consultant  under  the Con 
tract  shall also be  in the language  stated  in the Special Conditions. 

ARTICLE 3 

Order of Precedence of Contract Documents 

Unless  otherwise  stipulated  in the Contract, the order  of precedence 
of  the Contract  documents  shall  be  as  stated  in  the  Special Condi 
tions. 

ARTICLE 4 

Notices and Written Communications 

4.1 

4.2 

Unless  otherwise  specified  in the Special Conditions, Communicat ions 
between  the Contracting  Authority  and/or  the  Supervisor  on  the  one 
hand,  and  the Consultant  on  the  other  hand,  shall  be  sent  by post, 
cable, telex  facsimile  transmission or personal delivery, to the ap 
propriate addresses designated by these parties for that purpose. 

If  the  sender  requires  evidence  of  receipt, he  shall  state  such re 
quirement  in his Communication  and, Whenever  there  is a deadline  for 
the receipt of the Communication, he shall demand  evidence of receipt 
of  his  Communication.  In  any  event,  the  sender  shall  take  all  the 
necessary measures  to ensure receipt of the Communication. 

4.3  Wherever  in the Contract provision is made for the giving or issue of 
any notice, consent, approval, certificate or decision by any person, 
unless  otherwise  specified,  such notice, consent, approval, certifi 
cate  or  decision  shall  be  in  writing  and  the  words  "notify" 
"certify", "approve" or "decide" shall be construed  accordingly.  Any 
such  consent, approval, certificate  or  decision  shall  not  unreason 
ably be withheld  or delayed. 

ARTICLE 5 

Supervisor and Supervisor's Representative 

5.1 

The  Supervisor  shall  carry out  the duties  specified  in the Contract. 
Except  as expressly  stated  in the Contract, the Supervisor  shall not 
have  authority  to  relieve  the Consultant  of  any  of  his  obligations 
under  the Contract. 

-  157 -

5.2  The  Supervisor may,  from  time  to  time, while  retaining  ultimate  re 

sponsibility,  delegate  to  the Supervisor's  Representative  any of  the 
duties  and  authority vested  in the Supervisor  and he may  at any  time 
revoke  such delegation or replace  the representative.  Any such dele 
gation,  revocation  or  replacement  shall  be  in writing  and  shall  not 
take  effect  until  a  copy  thereof  has  been  delivered  to  the  Con 
sultant. 

5.3  Any  Communication  given  by  the  Supervisor's  Representative  to  the 
Consultant  in accordance with  the terms of such delegation  shall have 
the  same  effect  as  though  it  had  been  given  by  the  Supervisor 
himself, provided  that:-

a) any failure on the part  of  the Supervisor's Representative  to dis 

approve any report  or part  of the Services  shall not prejudice  the 
authority  of  the Supervisor  to disapprove  such  report  or  Services 
and  to  give  the  instructions  necessary  for  the  rectification 
thereof; 

b) the Supervisor  shall  be at  liberty  to reverse  or vary  the  content 

of such Communication. 

5.4 

Instructions  and/or  orders  issued  by  the  Supervisor  shall  be  by way 
of  Administrative  Orders.  Where  applicable,  such  orders  shall  be 
dated,  numbered  and  entered  in  a  register,  and  copies  thereof,  de 
livered  by hand, where  appropriate,  to  the Consultant's  representa 
tive. 

ARTICLE 6 

Assignment 

6.1  An  assignment  shall  be  valid  only  if  it  is  a written  agreement  by 
which  the Consultant  transfers his Contract,  or part  of  thereof  to a 
third party. 

6.2  The  Consultant, shall  not, without  the  prior written  consent  of  the 
Contracting  Authority,  assign  the Contract  or  any  part  thereof,  or 
any benefit  or  interest  thereunder, except  in the following  cases:-

a) by  a  charge  in  favour  of  the Consultant's  bankers  of  any monies 

due or to become due under  the Contract; or 

b) by  assignment  to  the  Consultant's  insurers  of  the  Consultant's 
right  to  obtain  relief  against  any  other  person  liable  in  cases 
where  the  insurers  have  discharged  the Consultant's  loss  or  lia 
bility. 

6.3 

For  the purpose  of Article  6.2,  the approval  of an assignment  by the 
Contracting Authority  shall not  relieve  the Consultant  of his obliga 
tions for  the part  of  the Contract  already performed  or  the part  not 
assigned. 

-  158 -

6.4 

If  the  Consultant  has  assigned  his  Contract  without  authorization, 
the Contracting Authority may, without  giving  formal notice  thereof, 
apply  as  of  right  the  sanctions  for breach  of Contract  provided  for 
in Articles 40 and 41. 

6.5  Assignees  must  satisfy  the  eligibility  criteria  applicable  for  the 

award of the Contract. 

ARTICLE 7 

Sub-contracting 

7.1  A  sub-contract  shall  be valid  only  if  it  is  a written  agreement  by 
which  the Consultant  entrusts  performance  of  a part  of his Contract 
to a third party. 

7.2 

The Consultant  shall not  sub-contract  to nor  engage  another  indepen 
dent consultant  to perform any part of the Services without  the prior 
written  authorization  of  the Contracting Authority.  The  services  to 
be  sub-contracted  and  the  identity  of  the  independent  consultant 
shall  be  notified  to  the  Contracting  Authority.  The  Contracting 
Authority  shall, with  due  regard  to  the  provisions  of Article  4.3, 
within 30 days of  receipt of  the notification, notify  the Consultant 
of his decision, stating  reasons, should he withhold  such authoriza 
tion. 

7.3 

In  the  selection  of  sub-contractors  and/or  other  independent  con 
sultants, preference  shall  be given  to natural  persons, companies  or 
firms  of  the State  of  the Contracting Authority  capable  of providing 
the services required on equivalent terms. 

7.4 

Sub-contractors  and/or  independent  consultants must  satisfy  the  eli 
gibility criteria applicable for the award of the Contract. 

7.5 

The  Contracting  Authority  shall  have  no  contractual  relations  with 
the sub-contractors  and/or  independent consultants. 

7.6 

The Consultant  shall be responsible for the acts, defaults and negli 
gence of his  sub-contractors and/or other  independent  consultants and 
their agents or employees, as if they were  the acts, defaults or neg 
ligence  of  the Consultant, his agents or  employees.  The  approval  by 
the Contracting Authority  of  the  sub-contracting  of  any part  of  the 
Contract  or of  the engagement  by  the Consultant  of other  independent 
consultants  or  sub-contractors  to  perform  any  part  of  the  Services 
shall not  relieve  the Consultant  of any of his  obligations under  the 
Contract. 

- 159 -

7.7  If  a  sub-contractor  or  independent  consultant  is  found  by  the 

Contracting Authority  or  the  Supervisor  to be  incompetent  in dis 
charging his duties, the Contracting Authority or the Supervisor may 
request  the Consultant  forthwith, either  to provide  an  independent 
consultant  or sub-contractor with qualifications  and  experience ac 
ceptable to the Contracting Authority as a replacement, or to resume 
the performance of the Services himself. 

7.8  If the Consultant enters into a sub-contract or engages another inde 
pendent Consultant without prior approval, the Contracting Authority 
may, without  giving  formal  notice  thereof, apply  as  of  right  the 
sanctions for breach of Contract provided for in Articles 40 and 41 

OBLIGATIONS OF THE CONTRACTING ALTHERITY 

ARTICLE 8 

Supply of Information 

8.1  The Contracting Authority shall supply the Consultant as soon as pos 
sible with any information and/or documentation at its disposal which 
may be relevant  to the performance of the Contract.  Such documents 
shall be returned  to the Contracting Authority at the completion of 
the Services. 

8.2  The Contracting Authority shall as far as possible provide the Con 

sultant with any assistance in obtaining information relevant to the 
Contract  that the latter may reasonably request  in order to perform 
the Contract. 

ARTICLE 9 

Assistance with Local Regulations 

9.1  The  Consultant  may  request  the  assistance  of  the  Contracting 
Authority  in obtaining copies of  laws, regulations, and  information 
on local customs, orders or bye laws of the country where  the Ser 
vices  are  to be performed, which may  affect  the Consultant  in the 
performance  of his obligations under  the Contract.  The Contracting 
Authority may provide  the assistance requested  to the Consultant at 
the Consultant's cost. 

9.2  Subject  to  the  provisions  of  the  laws  and  regulations  on  foreign 
labour of the State  in which  the Services are to be performed, the 
Contracting Authority shall make all efforts necessary, to facilitate 
the procurement by the Consultant of all required visas and permits, 
including work  and  residence permits, for  the personnel whose ser 
vices the Consultant and the Contracting Authority consider necessary 
as well as residence permits for their families. 

-  160 -

9.3 

The  Contracting  Authority  shall  issue  to  its  officials,  agents  and 
representatives  all  such  instructions  as may  be  necessary  or  appro 
priate  to  facilitate  the prompt  and  effective  implementation  of  the 
Services. 

OBLIGATIONS OF THE CONSULTANT 

ARTICLE 10 

General Obligations 

10.1  The Consultant  shall respect and abide by all  laws and regulations  in 
force  in the State of the Contracting Authority and shall ensure that 
his personnel, their dependents, and his local employees also respect 
and abide by all such laws and regulations.  The Consultant  shall in 
demnify  the Contracting Authority  against  any  claims  and  proceedings 
arising  from  any  infringement  by  the Consultant,  his  employees  and 
the dependents of such laws and regulations. 

10.2  The Consultant  shall  perform  the  Services with  due  care,  efficiency 
and diligence, in accordance with  the best professional practices and 
in  compliance with  these General  Conditions,  the Terms  of  Reference 
and the instructions of the Supervisor. 

10.3  The Consultant  shall  comply with Administrative  Orders  given  by  the 
Supervisor.  Where  the Consultant  considers  that  the  requirements  of 
an Administrative Order  go beyond  the authority of  the Supervisor  or 
of the scope of the Contract, he shall, on pain of being  time-barred, 
give notice, with reasons, to the Supervisor within 30 days after re 
ceipt  thereof.  Execution  of  the Administrative  Order  shall  not  be 
suspended because of  this notice. 

10.4  If  the  Consultant  or  any  of  his  sub-contractors,  independent  con 

sultants, agents or  servants  offers  to give or agrees  to offer or to 
give  or gives  to any person, any bribe, gift, gratuity  or  commission 
as  an  inducement  or  reward  for doing  or  forbearing  to do  any  act  in 
relation  to  the Contract  or  any  other Contract with  the Contracting 
Authority, or for  showing  favour  or disfavour  to any person  in rela 
tion  to  the  Contract  or  any  other  Contract  with  the  Contracting 
Authority,  then  the Contracting  Authority may, without  prejudice  to 
any  accrued  rights  of  the Consultant  under  the Contract,  terminate 
the  Contract,  in which  case  the  provisions  of  Articles  40  and  41 
shall apply. 

- 161 -

10.5  The Consultant  shall  treat  all documents  and  information  received  in 
connection with  the Contract  as  private  and  confidential,  and  shall 
not,  save  in so far  as may  be necessary  for  the purposes  of  the per 
formance  thereof, publish or disclose  any particulars  of the Contract 
without  the prior  consent  in writing  of  the Contracting Authority  or 
the Supervisor  after  consultation with  the Contracting Authority.  If 
any  disagreement  arises  as  to  the  necessity  for  any  publication  or 
disclosure  for  the  purpose  of  the  Contract,  the  decision  of  the 
Contracting Authority  shall  be final. 

10.6  If  the  Consultant  is  a  joint  venture  or  consortium  of  two  or  more 
persons,  all  such  persons  shall  be  jointly  and  severally  bound  to 
fulfil  the  terms of the Contract  according  to the  law of the State of 
the  Contracting  Authority  and  shall,  at  the  request  of  the 
Contracting Authority, designate  one of such persons  to act  as leader 
with  authority  to bind  the  joint venture or consortium.  The  composi 
tion or  the constitution  of the  joint venture  or consortium shall not 
be  altered without  the  prior  consent  in writing  of  the  Contracting 
Authority. 

ARTICLE 11 

Code of Conduct 

11.1  The Consultant  shall  at  all  times  act  loyally and  impartially  and  as 
a  faithful  adviser  to  the Contracting  Authority  in  accordance  with 
the  rules  and/or  code  of  conduct  of  his  profession  as well  as with 
appropriate discretion.  He  shall, in particular,  refrain from making 
any public  statements  concerning  the Project  or  the Services without 
the prior approval  of  the Contracting Authority,  and from engaging  in 
any  activity  which  conflicts  with  his  obligations  towards  the 
Contracting  Authority  under  the  Contract.  He  shall  not  commit  the 
Contracting Authority in any way whatsoever without  its prior  consent 
in writing,  and  shall, where  appropriate, make  this  obligation  clear 
to third parties. 

11.2  For  the  duration  of  the  Contract,  the Consultant  and  his  employees 

shall  respect  the  political,  cultural  and  religious  practices  pre 
vailing  in the State of  the Contracting Authority. 

11.3  The  remuneration  of  the Consultant  under  the Contract  shall  consti 
tute  his  only  remuneration  in  connection  with  the  Contract  and 
neither  he  nor  his  personnel  shall  accept  any  commission,  discount, 
allowance,  indirect  payment  or  other  consideration  in  connection 
with,  or  in  relation  to,  or  in  discharge  of,  his  obligations  under 
the Contract. 

11.4  The Consultant  shall not have  the benefit, whether  directly  or  indi 

rectly, of any royalty or of any gratuity or commission  in respect  of 
any patented  or protected  article  or process used  in or  for  the pur 
poses  of  the  Contract  or  the  Project,  unless  it  is  agreed  by  the 
Contracting Authority  in writing  that he may. 

-  162 -

11.5  The Consultant  and his staff  shall maintain professional  secrecy, for 
the  duration  of  the Contract  and  after  completion  thereof.  In  this 
connection, except with  the prior written  consent  of  the Contracting 
Authority, neither  the Consultant  nor  the personnel  employed  or  en 
gaged  by him  shall  at  any  time  communicate  to  any person  or  entity 
any confidential  information disclosed  to them or discovered by them, 
or make  public  any  information  as  to  the  recommendations  formulated 
in  the  course  of  or  as  a  result  of  the  Services.  Furthermore,  they 
shall  not make  any use  prejudicial  to  the Contracting Authority, of 
information supplied  to them and of the results of studies, tests and 
research  carried  out  in the course  and for  the purpose  of performing 
the Contract. 

ARTICLE 12 

Independence 

12.1  The Consultant  shall  refrain  from any  relationship which would  com 

promise  his  independence  or  that  of  his  staff.  If  the  Consultant 
fails  to maintain  such  independence,  the Contracting  Authority may, 
without  prejudice  to  compensation  for  any  damage which  he may  have 
suffered  on  this  account,  terminate  the Contract  forthwith, without 
giving formal notice thereof. 

12.2  The Consultant  shall  after  the conclusion or  termination  of  the Con 

tract, limit his role  in connection with  the Project  to the provision 
of  the  Services.  Except  with  the  written  permission  of  the 
Contracting Authority,  the Consultant  and  any other  contractor, con 
sultant or supplier with whom the Consultant  is associated or affili 
ated  shall  be  disqualified  from the  execution  of works,  supplies  or 
other  services  for  the Project  in any  capacity,  including  tendering 
for any part of the Project. 

ARTICLE 13 

Specifications and Designs 

13.1  The Consultant  shall prepare all specifications and designs using ac 

cepted and generally recognized  systems acceptable  to the Contracting 
Authority and  taking  into account  the latest design criteria. 

13.2  The  Consultant  shall  ensure  that  the  specifications  and  designs  and 
all  documentation  relating  to procurement  of  goods  and  services  for 
the Project  are prepared  on an  impartial  basis  so as  to promote  com 
petitive  tendering. 

- 163 -

ARTICLE 14 

Indemnification 

14.1  The  Consultant  shall  indemnify,  protect  and  defend,  at  his  expense, 
the Contracting Authority,  its agents and employees, from and against 
all  actions,  claims,  losses  or damage  arising  from any  act  or omis 
sion by  the Consultant  in the performance  of  the Services,  including 
any violation of any legal provisions, or rights of  third parties, in 
respect  of patents, trade marks  and other  forms  of  intellectual  pro 
perty such as copyrights. 

14.2  The  Consultant  shall  indemnify,  protect  and  defend,  at  his  expense, 
the Contracting Authority,  its agents and employees, from and against 
all  actions,  claims,  losses  or  damages  arising  out  of  the  Consult 
ant's  failure  to  perform his  obligations  under  Article  10  provided 
that:-

a) the Consultant  is notified  of such actions, claims, losses or dam 
ages  not  later  than  30  days  after  the Contracting  Authority  be 
comes aware of  them; 

b) the  ceiling  on  the Consultant's  liability under Article  14  shall 
be  limited  to  the  amount  stated  in  the  Special  Conditions,  and 
that  such  ceiling  shall  not  apply  to  actions,  claims,  losses  or 
damages caused by the Consultant's wilful misconduct; 

c) the  Consultant's  liability  under  Article  14  shall  be  limited  to 
actions, claims, losses or damages directly caused by such failure 
to  perform his  obligations  under  the Contract  and  shall  not  in 
clude  liability  arising  from unforeseeable  occurrences  incidental 
or indirectly consequential  to such failure. 

14.3  The Consultant  shall, at his expense, upon request  of the Contracting 
Authority,  remedy  any  defect  in  the  performance  of  the  Services  in 
the event of the Consultant's  failure  to perform his obligation under 
the Contract. 

14.4  Notwithstanding any contrary provisions  in Article  14, the Consultant 
shall  have  no  liability whatsoever  for  actions,  claims,  losses  or 
damages occasioned  by:-

a) the Contracting Authority  omitting  to  act  on  any  recommendation, 

or  overriding  any  act,  decision  or  recommendation,  of  the  Con 
sultant,  or  requiring  the Consultant  to  implement  a  decision  or 
recommendation with which  the Consultant  disagrees  or on which he 
expresses a serious reservation; or 

b) the  improper  execution of the Consultant's  instructions  by agents, 
employees  or  independent  contractors of the Contracting Authority. 

-  164 -

14.5  The Consultant  shall  remain responsible for any breach of his obliga 

tions under  the Contract  for  such period  after  the  service have  been 
completed as may be determined by the law of the Contract. 

ARTICLE IS 

Medical and Insurance Arrangements 

15.1  The  engagement  by  the Contracting Authority  of  the Consultant  shall 
be  conditional  upon  the  provision  of  evidence  satisfactory  to  the 
Contracting Authority  that the Consultant and/or his personnel are in 
good health and are not subject  to any disability Which may  interfere 
with  the performance  of  the Services.  The Contracting Authority may 
request  the Consultant  and/or  his  personnel  performing  the  Services 
to undergo  a medical  examination by a qualified medical  practitioner 
before  leaving  his  or  their  usual  place  of  residence  and  shall  as 
soon  as  is  practicable  furnish  the  Contracting  Authority with  the 
medical  report resulting  therefrom. 

15.2  For  the duration of the Contract, the Consultant  shall obtain medical 
insurance  for  himself  and  other  persons  employed  by  him  under  the 
Contract.  Except  as  may  be  specified  in  the  Contract,  the 
Contracting Authority  shall  be under  no  liability  in  respect  of  the 
medical  expenses of the Consultant. 

15.3  The  Contracting  Authority  shall  undertake  no  responsibility  in re 

spect of any life, health, accident, travel and other  insurance Which 
may  be necessary  or desirable  for  the personnel  of  the Consultant  or 
of his  sub-contractors  or other  independent  consultants  for  the pur 
poses  of  the  Services, nor  for  any members  of  the  families  of  such 
persons. 

15.4  Within  20 days  of notification  of  approval  of  the Contract  the Con 

sultant shall  take out and maintain a full  indemnity insurance policy 
in a sum up  to the  limit  stated  in the Special Conditions  and cover 
ing, from the start of performance of the Contract  and  throughout  its 
duration, the following aspects:-

a) the  Consultant's  liability  in  respect  of  sickness  or  industrial 

accident  affecting  his  employees, including  the  cost  of  repatria 
tion on health grounds; 

b) loss of, or damage  to, the Contracting Authority's  equipment used 

to perform the Contract; 

c) civil  liability  in the event  of accidents  caused  to third parties 
or  to the Contracting Authority and any employee of that Authority 
arising out of the performance of the contract. 

d) accidental death or permanent disability resulting from bodily in 

jury incurred during  the Contract; and 

-  165 -

e) such other  insurance  as may be specified  in the Special  Conditions 
as required  by the laws of  the State  of  the Contracting  Authority. 

15.5  The  Special  Conditions  may  also  require  the  Consultant  to  insure 
against  loss  or  damage  to  the  personal  effects  of  his  employees  and 
their families  located  in the State of  the Contracting  Authority. 

15.6  The  Consultant  shall  furnish  proof  of  the  insurance  policy  and  of 
regular  payment  of premiums without  delay whenever  required  to do  so 
by  the Contracting Authority  or  the Supervisor. 

ARTICLE 16 

Proprietary Rights  in Reports and Documents 

16.1  All  reports  and  data  such  as maps,  diagrams,  Drawings,  specifica 
tions, plans,  statistics,  calculations  and  supporting  records  or ma 
terials  acquired,  compiled  or prepared  by  the Consultant  in the per 
formance  of  the Contract  shall be confidential  and  shall be  the abso 
lute  property  of  the  Contracting  Authority.  The  Consultant  shall, 
upon  completion  of  the Contract,  deliver  all  such documents  and  data 
to  the  Contracting  Authority.  The  Consultant  may  retain  copies  of 
such  documents  and  data,  but  shall  not  use  them  for  purposes  unre 
lated  to  his  Contract  without  prior  written  approval  of  the 
Contracting  Authority. 

16.2  The Consultant  shall not publish articles  relating  to the Services or 
refer  to  them when  carrying  out  any  services  for  others,  or  divulge 
information  obtained  front  the  Contracting  Authority,  without  the 
written  consent  of  the Contracting  Authority. 

NATURE OF THE SERVICES 

ARTICLE 17 

The Scope of the Services 

17.1  The  Consultant  shall  perform  the  Services  under  the Contract  in ac 

cordance with  the Terms  of Reference. 

17.2  The Contract may  consist  of one or more  of  the following missions:-

-  project  identification  and definition  study; 

-  economic  or market  study; 

-  pre-feasibility and/or feasibility  study; 

-  166 -

-  project  execution  study (preliminary or detailed design, and Where 

appropriate  final design for execution, preparation of tender dos 
sier); 

/ 

-  supervision of the Project; 

-  management  of the execution of the Project; 

-  provision of personnel; 

-  other forms of technical  assistance. 

17.3  The  Special  Conditions  shall  state  the  Terms  of  Reference,  which 

shall  include,  inter alia:-

a) the object  and  scope of the Contract; 

b) the degree  of accuracy  to be attained  and  the different  stages or 

parts of the Services; and 

c) the  type  and  content  of  reports, statements, plans,  calculations, 
measurements,  specifications,  estimates  and  any  other  document 
that  the Consultant  is  to draw up  on  completion  of  each phase  or 
part  of the study and on completion of the study itself. 

17.4  Where  the  Contract  is  for  technical  assistance  to  the  Contracting 

Authority  and/or  Supervisor,  the Consultant  is entrusted with  an ad 
visory  function  for  the benefit  of  the Contracting  Authority  and/or 
Supervisor  in  respect  of  all  the  technical  aspects  of  the  Project 
which may  arise  out  of  its execution.  The Consultant  shall not  have 
decision-making  responsibility. 

17.5  Where  the Contract  is for management  of the execution of the Project, 
the Consultant  shall assume, in accordance with  the laws of the State 
of  the  Contracting  Authority  and,  subject  to  the  Supervisor's  au 
thority, all  the duties of management  inherent  in supervising  the ex 
ecution of a Project. 

17.6  If under  the Special Conditions  the Consultant  is required  to prepare 
a  tender  dossier,  the  dossier  shall  contain  all  documents  necessary 
for consulting  suitable contractors, manufacturers  and  suppliers, and 
for  preparing  tenders with  a view to  carrying  out  the Wbrks  or pro 
viding  the  supplies  or  services  covered  by  an  invitation  to  tender. 
The  Contracting  Authority  shall  provide  the Consultant with  the  in 
formation  necessary  for  drawing  up  the  administrative  part  of  the 
tender dossier. 

17.7  Where  the Contract  is for  supervision of a Project,  the Consultant  is 

entrusted with  the direction of the execution  stage of the Project. 

-  167 -

17.8  Notwithstanding  Article  12.2,  the  Consultant  responsible  for  the 

study and/or design  stages  of  the Project may  be  entrusted with  fur 
ther  services  in  the management  and  supervision  of  the  Project  in 
cluding  the provision  of technical  assistants. 

ARTICLE 18 

Provision of Personnel 

18.1  Where  the Contract  is for  the provision  of personnel  for  the  execu 
tion  of  a  project,  the  Consultant  shall  provide  such  personnel  in 
specific  fields  relating  to the execution of  the Project,  in the form 
of  technical  assistance  in an advisory  and/or managerial  role.  Such 
personnel  shall be under  the direct  authority of the Supervisor. 

18.2  The  Services  shall  be  carried  out  by  the personnel  specified  in  the 
Contract  for  the  periods  of  time  indicated  therein.  The  Consultant 
may, with  the prior approval  of  the Contracting Authority, make minor 
adjustments  to such periods  as may be appropriate  to ensure  the effi 
cient  performance  of  the  Services,  provided  that  such  adjustments 
will  not  cause  payments made  under  the Contract  to  exceed  the  Con 
tract Price. 

18.3  The  Consultant  shall  be  responsible  for  the  quality  of  the  staff 

which he places at  the disposal  of the Contracting Authority. 

18.4  The  Consultant  shall  not make  changes  in  the  personnel  without  the 
prior approval  of the Contracting Authority.  However,  the Consultant 
shall  provide  a  replacement with  at  least  equivalent  qualifications 
and experience  and acceptable  to the Contracting Authority  if:-

a) on account  of sickness or accident, a member  of staff  is unable  to 

continue providing his services; 

b) any person  specified  in  the Contract  is found  by  the  Contracting 
Authority  to  be  incompetent  in discharging  or  unsuitable  for  the 
performance  of his duties under  the Contract; 

c) for any other  reasons beyond  the control  of the Consultant,  it be 

comes necessary  to replace any of his personnel. 

18.5  The  remuneration  to  be  paid  for  a  person  provided  as  a  replacement 
shall  not  exceed  the  remuneration which would  have  been  payable  to 
the person  replaced. 

-  168 -

18.6  Except  in  the  case  of  replacement  resulting  from death  or where  the 
Contracting Authority  requests  a replacement not provided  for by the 
Contract, the Consultant  shall  bear  all  the additional  costs  arising 
out  of  or  incidental  to  such  replacement.  Such  costs  shall  include 
the  cost  of  the  return  journey  of  the  replaced member  of  staff  and 
his  family  and,  if necessary,  the  expenses  arising  from  the need  to 
maintain  simultaneously  at  the place  of work  the member  of  staff  to 
be replaced and his replacement. 

ARTICLE 19 

Staff and Equipment 

19.1  The  staff which  the  Consultant  uses  for  the  implementation  of  the 
Contract  shall be approved by the Contracting Authority.  The Special 
Conditions  shall  specify  the minumum  level  of  training,  qualifica 
tions  and  experience  of  the Consultant's  personnel  and, Where appro 
priate, the specializations  required. 

19.2  References and/or curriculum vitae of each member  of the Consultant's 
staff  to  be  employed  under  the Contract  shall  be  submitted  to  the 
Contracting Authority  for  approval  either with  the Consultant's  ten 
der  in the case of a tender procedure  or, in other  cases, before  the 
conclusion of the Contract. 

19.3  The Contracting Authority  shall notify his approval or refusal within 
30 days of  the appointment  of  the Consultant  or  the  submission under 
Article 19.2, as the case may be. 

19.4  Staff  approved  by  the Contracting Authority  shall  commence  their du 
ties  on  the date  or within  the period  laid down  in  the Special Con 
ditions  or, failing  this, on the date or within  the periods notified 
to the Consultant  by the Contracting Authority. 

19.5  Save  as  otherwise  provided  in  the  Special  Conditions,  the  staff  of 
the Consultant  shall  reside close to their place of work.  Where part 
of  the  Services  is  to  be  performed  outside  the  State  of  the 
Contracting  Authority,  the Consultant  shall  keep  the  Supervisor  in 
formed of the names and qualifications of staff assigned  to that part 
of the Services and of the equipment used. 

19.6  The Consultant  shall:-

a) forward  to the Supervisor within 15 days  of  the award  of  the Con 
tract, the timetable proposed  for placement of the staff, specifi 
cation  of  their duties  and  a  list  of  the  equipment  he  intends  to 
use for the Services; 

b) inform  the  Supervisor  in  sufficient  time  of  the  date  of  arrival 

and departure of each member of staff; 

- 169 -

c) submit  to the Supervisor  for his approval  a timely request  for any 
change  of  staff  and  for any alteration  to  the  original  timetable 
or change of equipment. 

19.7  The Consultant  shall  adopt  all measures necessary  to provide  and con 

tinue to provide his staff with  the equipment  required  to enable  them 
to  carry  out  their  specified  duties  under  conditions which  are most 
conducive  to efficiency. 

ARTICLE 20 

Trainees 

20.1  The  Consultant  shall  provide  training  for  the  duration  of  the  Con 
tract for  trainees assigned  to him by the Contracting Authority under 
the terms of the Contract. 

20.2  Instruction  by  the Consultant  of  such  trainees  shall  not  confer  on 
them  the  status  of  employees  of  the Consultant.  However,  they must 
comply with  the Consultant's  instructions, and with  the provisions of 
Article  11,  as  if  they were  employees  of  the  Consultant.  The  Con 
sultant may  on  reasoned  request  in writing  obtain  the  replacement  of 
any trainee whose work or conduct  is unsatisfactory. 

20.3  Unless  otherwise  provided  in the Contract,  remuneration  for  trainees 
and  travel,  accommodation  and  all  other  expenses  incurred  by  the 
trainees, shall be borne by the Contracting Authority. 

20.4  The Consultant  shall  report  at quarterly  intervals  to the Contracting 

Authority  on  the  training  assignment.  Immediately  prior  to  the  com 
pletion of the Services, the Consultant  shall draw up a report  on the 
result  of  the  training  and  an  assessment  of  the  qualifications  ob 
tained  by  the  trainees with  a view to  their  future  employment.  The 
form of  such  reports  and  the procedure  for  presenting  them  shall  be 
as laid down  in the Special Conditions. 

PERFORMANCE OF THE CONTRACT 

ARTICLE 21 

Commencement  Orders 

21.1  The Contracting Authority  shall  fix  the date  on which performance  of 
the Contract  is to commence,  and  advise  the Consultant  either  in the 
notification  of  award  of Contract  or  by Administrative  Order  issued 
by the Supervisor. 

-  170 -

21.2  The date  for  commencing  performance  shall be not  later  than 180 days 

following  notification  of  award  of  the Contract unless  agreed  other 
wise by the parties. 

21.3  Where  provision  is made  for  Services  to  be  performed  outside  the 

State  of  the Contracting Authority,  the Contract  shall  commence, in 
sofar  as  such  Services  are  concerned,  on  the  actual  date  of  their 
performance,  which  shall  not  precede  the  date  fixed  by  the 
Contracting Authority. 

ARTICLE 22 

Period of Performance 

22.1  The  period  of performance  shall  commence  on  the date  fixed  in accor 
dance with Article  21.1 and  shall be as stated  in the Contract with 
out prejudice  to extensions  of  the period which may be granted under 
Article 23. 

22.2  If provision  is made  for separate periods of performance for separate 

lots,  such  periods  shall  not  be  aggregated  in  cases where  one Con 
sultant  is allocated more  than one lot. 

22.3  If  in  the  case  of  technical  co-operation  projects  covering  a number 

of years, the Special Conditions make  provision  for  several  contrac 
tual  periods,  the  period  of  performance  shall  be  fixed  taking  into 
consideration  the provisions  of Article  31  and  the parties  shall  be 
bound  only  for  the  first  period.  Save  Where  one  of  the  parties 
wishes  to terminate  the Contract  on the expiry of a Contract  period, 
the Contract  shall  be  renewed  by means  of  successive  riders  at  the 
end  of  each period,  specifying  the measures  to be  taken by  the Con 
sultant.  The  remuneration  for  the new period  shall  be  fixed  by  the 
principles  established  in the Contract. 

22.4  Any  intention not  to renew the Contract  for a further  contractual pe 

riod must be notified to the other party not  later  than 90 days prior 
to the expiry of the current contractual period. 

ARTICLE 23 

Extension of Period of Performance 

23.1  The Consultant may  request  an extension  to the period  of performance 
if he  is or will  be delayed  in completing  the Contract  by any of the 
following  causes:-

a) extra or additional Services ordered by the Supervisor; 

b) Administrative Orders  affecting  the date  of  completion  other  than 

those arising from the Consultant's default; 

- 171 -

c) failure  of  the Contracting Authority  to  fulfil  his  obligations 

under the Contract; 

d) any  suspension  of  the  Services which  is  not  due  to  the Con 

sultant's default; 

e) force majeure; 

f) any other causes of delay referred to in these General Conditions 

which are not due to the Consultant's default. 

23.2  The Consultant shall, within 15 days of becoming aware that delay may 
occur, notify the Supervisor of his intention to make a request for 
extension of the period of performance to which he considers himself 
entitled and shall within 60 days thereafter, except where otherwise 
agreed between the Consultant and Supervisor, deliver  to the Super 
visor  full  and detailed  particulars  of  the  request,  in order  that 
such request may be investigated at the time. 

23.3  The Supervisor  shall, by written notice  to the Consultant  after due 
consultation with  the Contracting Authority and, where appropriate, 
the Consultant, grant such an extension of the period of performance 
as may be justified, either prospectively or retrospectively or in 
form the Consultant that he is not entitled to an extension. 

ARTICLE 24 

Delays in Performance 

24.1  If the Consultant does not perform the Services within the period(s) 
of performance  specified  in the Contract, the Contracting Authority 
shall, without formal notice and without prejudice to his other reme 
dies under the Contract, be entitled to Liquidated Damages for every 
day, or part thereof, which shall elapse between the end of the pe 
riod  specified  for  performance  or  extended  period  of  performance 
under Article 23 and the actual date of completion, at the rate and 
up to the maximum amount specified in the Special Conditions. 

24.2  If the Contracting Authority has become entitled to the maximum claim 
under Article 24.1 he may after giving notice to the Consultant:-

a) terminate the Contract; and 

b) complete the Services at the Consultant's cost. 

-  172 -

ARTICLE 25 

Suspension 

25.1  The  Consultant  shall,  on  the  order  of  the  Supervisor,  suspend  the 
performance  of  the Services  or any part  thereof  for  such time and  in 
such manner  as the Supervisor may consider necessary. 

25.2  The Supervisor, after consultation with  the Contracting Authority and 
the Consultant, shall determine  such extension of  the period  of per 
formance  to  be made  to  the Consultant  in  respect  of  such  claim  as 
shall, in the opinion of the Supervisor, be fair and reasonable. 

25.3  If  the  period  of  suspension  exceeds  180 days  and  the  suspension  is 
not due to the Consultant's default, the Consultant may, by notice to 
the Supervisor, request permission  to resume performance  of  the Ser 
vices within 30 days or terminate  the Contract. 

ARTICLE 26 

Variations 

26.1  The Supervisor  shall have power, without  changing  the object or scope 
of  the Contract,  to order  any variation  to any part  of  the  Services 
necessary for  the proper completion of the Services.  Such variations 
may  include  additions, omissions, substitutions, changes  in quality, 
quantity  and  changes  in  the  specified  sequence, method  or  timing  of 
execution  of  the  Services.  No  order  for  a variation  shall  have  the 
effect  of  invalidating  the  Contract,  but  the  financial  effect,  if 
any,  of  all  such  variations  shall  be  valued  in  accordance  with 
Article 26.5 and 26.7. 

26.2  No  variation  shall  be made  except  by Administrative  Order, provided 

that : -

a) if for any reason, the Supervisor  shall find  it necessary  to give 
an  order  orally, he  shall  as  soon  as possible  thereafter  confirm 
the order by an Administrative Order; 

b) if the Consultant  shall confirm in writing an oral order given for 
the purpose  of Article  26.2(a) and  the  confirmation  shall  not  be 
contradicted  in writing  forthwith  by  the  Supervisor,  an  Admin 
istrative Order  shall be deemed  to have been issued for the varia 
tion. 

26.3  Save  as  provided  by Article  26.2, prior  to any Administrative Order 
for variation,  the Supervisor  shall notify  the Consultant  of  the na 
ture  and  form of  such variation.  As  soon as possible, after  receiv 
ing such notice, the Consultant  shall  submit  to the Supervisor a pro 
posal  containing:-

-  173 -

a) a description of the service  to be performed  or the measures  to be 

taken and a programme  for execution; and 

b) any necessary modifications  to  the programme  of performance  or to 

any of the Consultant's  obligations under  the Contract; and 

c) any  adjustment  to the Contract  Price  in accordance with  the  rules 

as set out  in Article 26. 

26.4  Following  the  receipt  of  the Consultant's  submission  referred  to  in 
Article  26.3,  the  Supervisor  shall,  after  due  consultation with  the 
Contracting  Authority,  and where  appropriate  the Consultant,  decide 
as  soon  as  possible whether  or  not  the  variation  shall  be  carried 
out.  If  the  Supervisor  decides  that  the variation  shall  be  carried 
out  he  shall  issue  the Administrative  Order  stating  that  the varia 
tion  shall  be  carried  out  at  the  prices  and  under  the  conditions 
given  in  the Consultant's  submission  referred  to  in Article  26.3  or 
as modified  by the Supervisor  in accordance with Article 26.5. 

26.5  The prices for all variations ordered by the Supervisor  in accordance 
with Articles 26.2 and 26.4 shall be ascertained  by the Supervisor  in 
accordance with  the following principles:-

a) where  the  task  is of  similar  character  and  executed  under  similar 
conditions  to  an  item priced  in  the  Price  Schedule  it  shall  be 
valued  at such rates and prices  contained  therein; 

b) where  the  task  is not  of  a  similar  character  or  is not  executed 
under  similar  conditions,  the  rates  and  prices  in  the  Contract 
shall  be used  as  the basis  for valuation  so far  as  is  reasonable, 
failing which, a fair valuation  shall be made  by the Supervisor; 

c) if the nature or amount  of any variation relative  to the nature or 
amount  of  the whole  of  the Contract  or  to any part  thereof  shall 
be  such  that  in  the  opinion  of  the  Supervisor  any  rate  or  price 
contained  in the Contract  for any task is by reason of such varia 
tion  rendered  unreasonable,  then  the  Supervisor  shall  fix  such 
rate  or  price  as  in  the  circumstances  he  shall  think  reasonable 
and proper; 

d) where  a variation  is necessitated  by default  or breach of Contract 
by the Consultant, any additional  cost  attributable  to such varia 
tion shall be borne by the Consultant. 

174 -

26.6  On  receipt  of  the Administrative Order  requesting  the variation, the 
Consultant  shall  proceed  to carry  out  the variation  and  be  bound  by 
these General Conditions  in so doing as if such variation were  stated 
in the Contract.  The Service shall not be delayed pending  the grant 
ing of any extension of time for completion or adjustment  to the Con 
tract Price.  Where  the order for a variation precedes  the adjustment 
to the Contract Price, the Consultant  shall keep records of the costs 
of  undertaking  the  variation  and  of  time  expended  thereon.  Such 
records  shall  be open  to  inspection by  the Supervisor  at  all reason 
able times. 

26.7  Where  on  provisional  acceptance,  an  increase  or  reduction  in  the 
total  value  of  the  Services  required  under  the  Contract  resulting 
from an Administrative Order, or  from some  other  circumstance Which 
is not  caused  by  the Consultant's  default,  exceeds  15% of  the Con 
tract  Price,  the  Supervisor  shall,  after  consultation  with  the 
Contracting  Authority  and  the Consultant  determine  any  additions  to 
or  reduction  from  the Contract  Price  as  a  consequence  of  the appli 
cation of Article 26.5.  The  sum so determined  shall be based  on the 
amount  by which  the  increase  or decrease  in value  of  the Service ex 
ceeds  15%.  The  sum  shall  be  notified  by  the  Supervisor  to  the 
Contracting  Authority  and  the  Consultant  and  the  Contract  Price 
adjusted  accordingly. 

ARTICLE 27 

Wforking Hours 

The  days  and  hours  of work  of  the  Consultant  in  the  State  of  the 
Contracting Authority  shall be fixed  on  the basis of  the  laws, regu 
lations and customs of the State of the Contracting Authority and the 
requirements of the Services. 

ARTICLE 28 

Leave Entitlement 

28.1  Where  the Contract  provides  for  annual  leave,  the Consultant  shall, 
during  the period of performance of the Contract, be entitled  to take 
annual  leave on the terms laid out  in Article 28. 

28.2  Entitlement  to  annual  leave  shall  accrue  at  the  rate  stated  in  the 
Contract.  Such leave shall be allowable for every full period of six 
months and any part of a month thereafter during Which  the Consultant 
is performing  the  Services.  Annual  leave  shall  be  taken during  the 
period  of  performance  of  the  Contract  at  a  time  approved  by  the 
Supervisor. 

-  175 -

28.3  Entitlement  to  annual  leave  shall  not  be  commuted  into  cash, unless 
in the opinion of the Supervisor  the requirements  of  the Services are 
such  that  annual  leave  cannot  be  taken during  the  period  of  perfor 
mance  of the Contract. 

28.4  The Consultant  shall  not  be  entitled  to  either  sick  or  casual  leave 
provided,  however,  that  the  Supervisor  may,  at  his  sole  discretion 
Whether  for compassionate  reasons or otherwise, permit  the Consultant 
to  take  unpaid  leave  during  the  period  of  performance  of  the  Con 
tract. 

ARTICLE 29 

Information 

The Consultant  shall  furnish  the Supervisor with  such  information re 
lating  to  the Services  and  the Project  as  the  Supervisor may  at  any 
time  request.  In this  respect, periodic  reports, whose  subject mat 
ter  and  frequency  shall  be  as  laid  down  in  the  Special  Conditions, 
shall  be drawn up  by  the Consultant.  Implementation difficulties  or 
technical  omissions  in the Terms  of Reference  shall  form the  subject 
of special reports. 

ARTICLE 30 

Records 

30.1  The  Consultant  shall  keep  accurate  and  systematic  records  and  ac 
counts  in respect  of  the Services  in such form and detail  as  is cus 
tomary  in the profession  and  as  shall  be  sufficient  to  establish ac 
curately  that  the  costs  and  expenditures which  are  referred  to  in 
Article  35 have  been  duly  incurred  for  the  performance  of  the  Ser 
vices. 

30.2  The Consultant  shall permit  the Supervisor  to inspect, at any reason 

able  time,  the  records  and  accounts  relating  to  the  Services  and  to 
make  copies  thereof  and  shall permit  the Supervisor  or any person au 
thorized  by  the  Supervisor,  at  any  reasonable  time,  to  audit  such 
records and accounts both during and after provision of  the Services. 

ARTICLE 31 

Submission of Reports 

31.1  Immediately  prior  to  the  completion  of  the  Services  the  Consultant 

shall draw up a confidential  general  report  together, where appropri 
ate, with a financial  analysis of  the Project  and a critical  study of 
any major  problems which may  have  arisen  during  the  performance  of 
the Project. 

-  176 -

31.2  The  report  referred  to  in Article  31.1  shall  be  forwarded  to  the 
Supervisor  in the number  of copies  stated  in the Special Conditions, 
not  later  than  60 days  after  the  completion  of  the  Services  by  the 
Consultant.  Such report shall not bind the Contracting Authority. 

31.3  Where  the  Contract  is  performed  in  phases,  the  execution  of  each 

phase  shall  give  rise  to  the  preparation  of  a  report  by  the  Con 
sultant, save as otherwise provided  in the Special Conditions. 

31.4  The  persons  other  than  the Supervisor  to Whom  copies  of  the  reports 
and  documents  referred  to  in Articles  29  and  31  are  to  be  sent  and 
the Time Limits within which  the Consultant  shall  forward  them shall 
be stated  in the Special Conditions.  Such Time Limits  shall  take ac 
count  of  periods  specified  in  the  Special  Conditions  for  examining 
and  approving  or  rejecting  reports  and  documents  by  the Contracting 
Authority. 

ARTICLE 32 

Approval  of Reports and Documents 

32.1  The  approval  by  the Contracting  Authority  of  reports  and  documents 

drawn up and forwarded by the Consultant  shall certify that they com 
ply with  the terms of the Contract. 

32.2  The Contracting Authority  shall, within  the Time Limits  laid down  in 

the  Special  Conditions, notify  the Consultant  of  his  decision  con 
cerning  the  documents  or  reports  forwarded  to  him,  giving  reasons 
should he reject  the reports or documents, or request amendments. 

32.3  Where  a  report  or document  is approved  by  the Contracting  Authority 
subject  to amendments  to be made  by  the Consultant,  the Contracting 
Authority  shall,  prescribe  a  period  for making  the  amendments  re 
quested. 

32.4  Where  the  Contract  is  performed  in  phases,  the  execution  of  each 
phase  shall be subject  to the approval, by the Contracting Authority, 
of  the preceding  phase  except where  the phases  are  carried  out  con 
currently. 

PAYMENTS 

ARTICLE 33 

General Provisions 

33.1  The currency or currencies of payments  shall be as stated  in the Con 

tract. 

-  177 -

33.2  The  administrative  and  technical  conditions  to which  the  payment  of 

advances,  interim payments  or payment  of balance  are  subject, in ac 
cordance with Articles  34  to  39,  shall  be  as  stated  in  the  Special 
Conditions. 

ARTICLE 34 

Advances 

34.1  If  the  Special  Conditions  so provide,  advances  shall  be  granted  to 

the Consultant, at his request, for operations  connected with  the ex 
ecution  of  the  Services, as a  lump-sum advance  enabling  him  to meet 
expenditure  resulting from the commencement  of the Contract. 

34.2  Subject  to the provisions of the Special Conditions, the total amount 

of the advances  shall not exceed 20% of the original Contract Price. 

34.3  No advance  shall be granted until:-

a) the conclusion of the Contract; 

b) provision to the Contracting Authority by the Consultant  of a sep 
arate  directly  liable  guarantee  for  the  full  amount  of  the  ad 
vance,  established  in  the  form  of  a  bank  guarantee,  a  banker's 
draft, a certified  cheque, a bond provided  by an  insurance  and/or 
bonding  company,  an  irrevocable  letter  of  credit  or  a  cash  de 
posit.  If  the guarantee  is  to be provided  in  the  form of  a bank 
guarantee,  a  banker's  draft,  a  certified  cheque  or  a  bond,  it 
shall  be  issued  by a bank or bonding  and/or  insurance  company ap 
proved  by  the Contracting Authority  in accordance with  the eligi 
bility  criteria  applicable  for  the award  of  the Contract.  In any 
case,  the  guarantee  shall  be  valid  and  remain  effective  for  at 
least 60 days after acceptance of the final report. 

34.4  The Consultant  shall use  the advance  exclusively  for  operations con 

nected with  the  performance  of  the  Services.  Should  the  Consultant 
misuse  any portion of  the advance, it shall  become due  and  repayable 
immediately amd mo further advance payment  shall be made  to him. 

34.5  Should  the  advance  guarantee  cease  to  be  valid  and  the  Consultant 
fail  to re-validate  it, either a deduction equal  to the amount of the 
advance may be made by the Contracting Authority from future payments 
due  to the Consultant under  the Contract, or  if in the opinion of the 
is  impracticable,  the 
Contracting  Authority  such  deduction 
Contracting Authority may  terminate  the Contract. 

34.6  If  the Contract  is terminated  for any reason whatsoever,  the guaran 

tees securing  the advances may be  invoked forthwith  in order  to repay 
the  balance  of  the  advances  still  owed  by  the  Consultant,  and  the 
guarantor  shall  not  delay payment  or  raise  objection  for  any  reason 
whatever. 

-  178 -

34.7  The advance guarantee provided for  in Article 34 shall be released as 

and when advances are  reimbursed. 

34.8  Further  conditions  and  procedures  for  granting  and  reimbursing  ad 

vances  shall be as laid down in the Special Conditions. 

ARTICLE 35 

Payment  Procedure 

35.1  The Consultant  shall  be  entitled  to  interim payments  or  to  the pay 
ment  of  the  final  balance  in accordance with  the procedures, sched 
ules  and Time Limits  stipulated  in the Contract  as and when  the Ser 
vices are provided  and accepted. 

35.2  Remuneration  for  parts  of  a month  shall  be based  on a daily  rate of 
one  thirtieth  of  the  corresponding  monthly  unit  price.  Abatements 
for  any  incomplete  provision  of Services  shall  be made  on  the  basis 
of the prices  laid down in the Contract  in respect of the part of the 
Services which were not provided. 

35.3  For  the  part  of  the  Contract which  is  based  on  overall  and  fixed 
prices  or  on unit  prices, provision may  be made  for  the  payment  of 
interim  payments  only  in  respect  of  Services  rendered  and,  in  the 
case  of  the part  of  a Contract  based  on  the  reimbursement  of costs, 
on submission of the appropriate  supporting documents. 

35.4  The amount of an interim payment  shall not exceed 9 0% of the value of 
the  Services  to which  it  relates;  the  remaining  1 0% thus withheld 
shall be paid as a final balance. 

35.5  The  frequency  of  interim payments  shall  be  as  laid down  in  the  Spe 

cial  Conditions.  As  a  general  rule  they  shall  be  paid  either  on  a 
monthly basis or as and When  certain phases or parts of  the Services 
are completed. 

35.6  The conditions  to which payments relating  to other  services  entrusted 
to the Consultant  shall be subject, shall be as laid down in the Spe 
cial Conditions. 

35.7  For each payment, the Consultant  shall send  the Contracting Authority 
four  copies  of  a written  request  for  payment  together with  itemized 
statements, accompanied by receipts, invoices, vouchers and other ap 
propriate  supporting materials, of the amounts payable for each month 
or period. 

-  179 -

35.8  within  30  days  of  receipt  of  the  said  application  for  interim pay 

ment,  it  shall  be  approved  or  amended  in  such manner  that,  in  the 
Supervisor's  opinion, the application  reflects  the amount  due  to the 
Consultant  in accordance with  the Contract.  In cases where  there  is 
a difference  of opinion as  to the value  of an  item,  the  Supervisor's 
view shall  prevail.  On  determination  of  the  amount  due  to  the Con 
sultant,  the Supervisor  shall  issue  to  the Contracting Authority  and 
the Consultant  an  interim payment  certificate  for  the  amount  due  to 
the  Consultant  and  shall  inform  the  Consultant  of  the  Service  for 
which payment  is being made. 

35.9  The  Supervisor may, by an  interim payment  certificate, make  any cor 

rections  or modifications  to any previous  certificate  issued  by  him 
and shall have power  to modify the valuation  in or withhold  the issue 
of  any  interim  payment  certificate  if  the  Services  or  any  part 
thereof are not being carried out  to his satisfaction. 

35.10 Payment  of  the  final  balance  shall  be  subject  to performance  by  the 
Consultant  of  all  his  obligations  relating  to  the  execution  of  all 
phases  or  parts  of  the  Services  and  to  the  approval  by  the 
Contracting  Authority  of  the  final  phase  or  part  of  the  Services. 
Final  payment  shall  be made  only after  the  final  report  and  a final 
statement, identified  as such, shall have been  submitted  by  the Con 
sultant  and  approved  as  satisfactory  by  the  Contracting  Authority. 
Any  amount which  the Contracting Authority has paid, or  caused  to be 
paid, in accordance with Article 35 in excess of the Consultant's en 
titlement  under  the Contract,  shall  be  reimbursed  by  the  Consultant 
to the Contracting Authority within 30 days after  receipt by the Con 
sultant of notice thereof. 

35.11  If  any  of  the  following  events  occurs  and  persists,  the Contracting 
Authority may, by written notice  to the Consultant,  suspend  in whole 
or in part, payments due  to the Consultant under  the Contract:-

a) the Consultant defaults  in the execution of the Contract; 

b) any other  condition for which  the Consultant  is responsible  under 
the  Contract  and  which,  in  the  opinion  of  the  Contracting 
Authority,  interferes,  or  threatens  to  interfere, with  the  suc 
cessful  completion of the Project or the Contract. 

ARTICLE 36 

Travel and Transport 

36.1  Unless  the Special Conditions  provide  otherwise, the  travel  expenses 

for  eligible  staff of  the Consultant  and of  their  spouses  and depen 
dent  children within  the meaning  of  the  law of  the  country  in which 
the Consultant  has his  registered  place  of  business, shall  be  borne 
by  the Contracting  Authority.  These  costs  shall  be  limited  to  the 
cost  of  the most  direct practicable  route between  the usual  place of 
residence and  the place where  the Contract  is to be performed. 

-  180 -

36.2  Air  travel  shall  be by  economy  class.  Journeys  necessitating  travel 
by  sea, rail  or  river  shall  be made  first  class.  The  cost  of trans 
porting  the luggage of eligible  staff between  the usual place of res 
idence  and  the place where  the Contract  is  to be performed  shall  be 
borne  by  the Contracting  Authority within  the weight  limits  stipu 
lated  in the Special Conditions. 

36.3  The  conditions under Which  transport  cost of documents, equipment  and 
materials  may  be  borne  by  the  Contracting  Authority,  shall  be  as 
stated  in the Special Conditions. 

36.4  In all  cases, reimbursement will  be subject  to submission of support 

ing documents. 

ARTICLE 37 

Revision of Prices 

37.1  Unless  otherwise  stipulated  in the Special Conditions, and  except  as 
provided  in Article  37.4, Contracts  shall  be  at  fixed  prices which 
shall not be  revised. 

37.2  Where  the  prices  may  be  revised  under  the  Contract,  such  revision 
shall  take  into account  variation  in the prices  of  significant  local 
or  external  elements which  served  as  a basis  for  the  calculation  of 
the  tender  price,  such as manpower  and  other  services.  The  detailed 
rules  for  the  revision  shall  be  as  laid  down  in  the  Special  Condi 
tions. 

37.3  Prices contained  in the Consultant's  tender  shall be deemed:-

a) to have been arrived  at on the basis of the conditions  in force 30 
days prior  to the latest date fixed for  the submission of tenders, 
or  in the  case  of direct  agreement  Contracts,  on  the date  of  the 
Contract; and 

b) to have  taken account  of  the  legislation  and  the relevant  tax ar 
rangements  applicable  at  the  reference  date  fixed  in  Article 
37.3(a). 

37.4  In  the  event  of  changes  to or  introduction  of  any national  or  State 

statute,  ordinance, decree,  or  other  law,  or  any  regulation  or bye-
law of any  local  or other public  authority,  after  the date  stated  in 
Article  37.3 which  causes  a  change  in  the  contractual  relationship 
between  parties  to  the Contract,  the Contracting  Authority  and  the 
Consultant  shall  consult  on  how  best  to  proceed  further  under  the 
Contract, and may as a result of such consultation decide:-

a) to modify  the Contract; 

- 181 -

b) on  payment  of  compensation  for  the  resulting  imbalance  by  one 

party to the other; or 

c) to terminate  the Contract by nu tua 1 agreement. 

37.5  In the event  of a delay  in the performance  of  the Services  for which 

the Consultant  is responsible  or at  the end of  the period  of perfor 
mance,  revised  as  necessary  in  accordance with  the  Contract,  there 
shall be no further  revision of prices within  the 30 days before com 
pletion  of  the Services  except  for  the  application  of new price  in 
dexation, if this is to the benefit of the Contracting Authority. 

ARTICLE 38 

Delayed Payments 

38.1  Payment  to the Consultant  of the amounts due under  each of  the inter 
im payment  certificates,  and  the  certificate  for  the  final  balance 
issued  by  the Supervisor  shall  be made  by  the Contracting  Authority 
within 90 days of such certificate being delivered  to the Contracting 
Authority.  If  the  period  laid  down  for  payment  has  been  exceeded, 
the Consultant  shall qualify for  interest  calculated pro  rata  on the 
basis  of  the number  of days delay at  the  rate  specified  in the  Spe 
cial Conditions, subject  to a maximum period  also  specified  therein. 
The Consultant  shall  be  entitled  to  such payment without  formal no 
tice  and without  prejudice  to  any  other  right  or  remedy  under  the 
Contract.  In the case of  the final  statement  of  account, the  inter 
est  for  the delayed  payment  shall  be  calculated  on  a daily basis  at 
the rate specified  in the Special Conditions. 

38.2  Any  default  in payment  of more  than 120 days  from the  expiry  of  the 
period  laid down  in Article 38.1  shall  entitle  the Consultant  either 
not  to perform the Contract or to terminate it. 

ARTICLE 39 

Payment  to Third Parties 

39.1  All  orders  for  payments  to  third  parties  may  be  carried  out  only 

after  an  assignment made  in accordance with Article  6.  The  assign 
ment  shall be notified  to the Contracting Authority. 

39.2  Notification of beneficiaries of assignment  shall be the sole respon 

sibility of the Consultant. 

39.3  In  the  event  of  a  legally binding  attachment  of  the property  of  the 
Consultant  affecting  payments  due  to  him  under  the  Contract  and 
without  prejudice  to  the  Time  Limit  laid  down  in Article  38,  the 
Contracting Authority  shall have 30 days,  starting  from the day when 
it receives notification of the definitive  lifting of the obstacle to 
payment, to resume payments  to the Consultant. 

182 -

BREACH OF OQNIRACT AM) TERMINATION 

ARTICLE 40 

Breach of Contract 

40.1  Either party commits a breach of Contract where he fails to discharge 

any of his obligations under the Contract. 

40.2  Where  a breach of Contract  occurs, the party  injured by  the breach 

shall be entitled to the following remedies:-

a) damages; and/or 

b) termination of the Contract. 

40.3  Damages may be:-

a) General Damages; or 

b) Liquidated Damages. 

40.4  In any case where  the Contracting Authority  is entitled  to damages, 
it may deduct  such damages  from any sums due  to the Consultant or 
from the appropriate guarantee. 

40.5  Subject  to  the  law of  the State  of  the Contracting Authority, the 

Contracting Authority shall be entitled to compensation for any dam 
age which comes to light after the contract is completed. 

ARTICLE 41 

Termination by the Contracting Authority 

41.1  The Contracting Authority may, at any time and with immediate effect, 
terminate the Contract, except as provided for in Article 41.2. 

41.2  Except  as otherwise provided  in these General Conditions, the Con 

tracting Authority may, after giving 7 days notice to the Consultant, 
terminate the Contract in any of the following cases where:-

a) the Consultant  fails  to carry out  the Services  substantially  in 

accordance with the Contract; 

b) the Consultant continues to default for a period of 14 days after 
the Contracting Authority has given notice to him of suspension of 
payments under Article 35.11; 

-  183 -

c) the Consultant  fails  to  comply within  a  reasonable  time with  the 

notice  given by  the Supervisor  requiring him to make  good  the ne 
glect  or  failure  to  perform  his  obligations  under  the  Contract 
Which  seriously  affects  the proper  and  timely  performance  of  the 
Services; 

d) the Consultant  refuses or neglects  to carry out Administrative Or 

ders given by the Supervisor; 

e) the Consultant  assigns  the Contract  or  sub-contracts without  the 

authorization of the Contracting Authority; 

f) the Consultant  becomes  bankrupt  or  insolvent,  or  has  a  receiving 

order made  against  him,  or  compounds with  his  creditors,  or  car 
ries on business under  a receiver,  trustee or manager  for  the ben 
efit  of his creditors, or goes  into  liquidation; 

g) any  adverse  final  judgment  is made  in  respect  of  an  offence  af 

fecting  the professional  conduct  of the Consultant; 

h) any  other  legal  disability  hindering  performance  of  the  Contract 

occurs; 

i) any  organizational  modification  occurs  involving  a  change  in  the 
legal  personality,  nature  or  control  of  the  Consultant,  unless 
such modification  is recorded  in an endorsement  to the Contract; 

j) the  Consultant  fails  to maintain  his  independence  in  accordance 

with Article 12.1; 

k) the Consultant  fails  to provide  the  required  guarantees  or  insur 
ance,  or  if  the person  providing  the  earlier  guarantee  or  insur 
ance  is not  able  to abide by his  commitments. 

41.3  Termination  shall  be without  prejudice  to any other  rights  or powers 
under  the Contract  of  the Contracting  Authority  and  the  Consultant. 
The  Contracting  Authority  may,  thereafter,  complete  the  Services 
itself,  or  conclude  any  other  Contract with  a  third  party,  for  the 
account  of  the  Consultant.  The  Consultant's  liability  for  delay  in 
completion  shall  immediately  cease  When  the  Contracting  Authority 
terminates  the  Contracts  without  prejudice  to  any  liability  there 
under  that may have already been  incurred. 

41.4  Upon  termination  of  the  Contract  or  when  he  has  received  notice 
thereof,  the Consultant  shall  take  immediate  steps  to bring  the Ser 
vices  to a close  in a prompt  and  orderly manner  and  to reduce  expen 
diture  to a minimum. 

41.5  The  Supervisor  shall, as  soon as  is possible  after  termination,  cer 

tify  the value  of  the Services  and all  sums due  to the Consultant  as 
at  the date of  termination. 

- 184 -

41.6  The  Contracting  Authority  shall  not  be  obliged  to make  any  further 

payments  to  the Consultant  until  the  Services  are  completed, where 
upon  the Contracting Authority  shall  be entitled  to recover  from the 
Consultant  the  extra  costs,  if  any,  of  completing  the  Services, or 
shall pay any balance due to the Consultant. 

41.7  If the Contracting Authority terminates the Contract, it shall be en 

titled  to recover  from the Consultant  any loss  it has  suffered up  to 
the maximum  amount  stated  in  the Contract.  If no maximum  amount  is 
stated,  the  Contracting  Authority  shall, without  prejudice  to  its 
other  remedies under  the Contract, be entitled  to recover  that partof 
the  Contract  Price which  is  attributable  to  that  part  of  the  Ser 
vices which has not, by reason of the Consultant's  failure, been sat 
isfactorily  completed. 

41.8  Where  the  termination  is mot  due  to am  act  or  omission  of  the Con 

sultant,  the  Consultant  shall  be  entitled  to  claim  in  addition  to 
sums  owing  to him for work  already performed,  an  indemnity  for  loss 
suffered. 

ARTICLE 42 

Termination by the Consultant 

42.1  The  Consultant may,  after  giving  14 days  notice  to  the  Contracting 
Authority, terminate  the Contract  if the Contracting Authority:-

a) fails  to pay  the Consultant  the amounts due under  any  certificate 
of  the  Supervisor  after  the  expiry  of  the Time  Limit  stated  in 
Article 38.2; or 

b) consistently  fails  to  meet  his  obligations  after  repeated  re 

minders; or 

c) suspends  the progress of the Services or any part  thereof for more 
than  180 days  for  reasons  not  specified  in  the Contract,  or  not 
due  to the Consultant's default. 

42.2  Such  termination  shall  be without  prejudice  to  any  other  rights  of 

the Contracting Authority  or  the Consultant  acquired  under  the Con 
tract. 

42.3  In the event of such termination, the Contracting Authority  shall pay 

the Consultant  for  any  loss  or  injury  the Consultant may  have  suf 
fered.  Such  additional  payment may  not  exceed  a  limit which  has  to 
be specified  in the Contract. 

- 185 -

ARTICLE 43 

Force Majeure 

43.1  Neither  party  shall  be  considered  to be  in default  or  in breach  of 

his obligations under  the Contract  if the performance  of such obliga 
tions  is prevented  by any circumstances  of force majeure which  arise 
after the date of notification of the award or the date when  the Con 
tract becomes effective, whichever  is the earlier. 

43.2  The  term  "force  majeure",  as  used  herein  shall  mean  acts  of  God, 

strikes, lock-outs or other  industrial disturbances, acts of the pub 
lic  enemy, wars, whether  declared  or  not,  blockades,  insurrection, 
riots,  epidemics,  landslides,  earthquakes,  storms,  lightning, 
floods «washouts,  civil  disturbances,  explosions,  and  any  other 
similar unforeseeable  events, not within  the control  of  either  party 
and Which  by  the  exercise  of due diligence  neither  party  is able  to 
overcome. 

43.3  Notwithstanding  the provisions  of Articles  24 and 41, the Consultant 
shall not be liable for Liquidated Damages or termination for default 
if, and  to the extent  that, his delay in performance  or other failure 
to  perform  his  obligations  under  the  Contract  is  the  result  of  an 
event  of  force majeure.  The  Contracting  Authority  shall  similarly 
not  be  liable, notwithstanding  the provisions  of Articles  38 and 42, 
to  payment  of  interest  on  delayed  payments,  for  non-performance  or 
for  termination by the Consultant  for default, if, and  to  the  extent 
that,  the Contracting Authority's  delay  or  other  failure  to  perform 
its obligations  is the result of force majeure. 

43.4  If  either  party  considers  that  any  circumstances  of  force  majeure 
have  occurred  which  may  affect  performance  of  his  obligations  he 
shall  promptly notify  the  other  party  and  the  Supervisor  giving de 
tails  of  the nature, the probable  duration  and  likely  effect  of  the 
circumstances.  Unless  otherwise  directed  by  the Supervisor  in writ 
ing,  the Consultant  shall  continue  to perform his  obligations  under 
the Contract  as far as  is reasonably practicable, and  shall  seek all 
reasonable alternative means for performance  of his obligations which 
are  not  prevented  by  the  force majeure  event.  The Consultant  shall 
not  put  into  effect  such alternative means  unless  directed  so  to do 
by the Supervisor. 

43.5  If  the  Consultant  incurs  additional  costs  in  complying  with  the 
Supervisor's directions or using alternative means under Article 43.4 
the amount  thereof  shall be certified by the Supervisor. 

43.6  If circumstances of force majeure have occurred and persist for a pe 

riod of 180 days  then, notwithstanding any extension of the period of 
performance  that  the  Consultant  may  by  reason  thereof  have  been 
granted,  either  party  shall  be  entitled  to  serve  upon  the  other  30 
days' notice  to terminate  the Contract.  If at  the  expiry of  the pe 
riod of 30 days the situation of force majeure persists, the Contract 
shall  terminate  and  in consequence  thereof, the parties  shall  be re 
leased from further performance of the Contract. 

- 186 -

ARTICLE 44 

Decease 

44.1  Where  the Consultant  is a natural person, the Contract  shall be auto 

matically  terminated  if  that  person  dies.  However,  the  Contracting 
Authority  shall  examine  any  proposal  made  by  the  heirs  or  bene 
ficiaries  if  they have notified  their wish  to continue  the Contract. 
The decision of  the Contracting Authority  shall  be notified  to those 
concerned within 30 days of receipt of such proposal. 

44.2  Where  the Consultant  consists  of natural  persons  and  one  or more  of 
them  die,  a  report  shall  be  agreed  between  the  parties  on  the 
progress  of  the  Services  and  the Contracting Authority  shall  decide 
whether  to  terminate  or continue  the Contract  in accordance with  the 
undertaking given by the survivors and by the heirs or beneficiaries, 
as the case may be. 

44.3  In the cases provided  for  in Article 44.1  and 44.2, persons  offering 
to  continue  to  perform  the  Contract  shall  notify  the  Contracting 
Authority  thereof within 15 days of the date of decease. 

44.4  Such  persons  shall  be  jointly  and  severally  liable, or  as  otherwise 
stated  in  the  Special Conditions, for  the proper  performance  of  the 
Contract  to  the  same  extent  as  the Consultant.  Continuation  of  the 
Contract  shall  be  subject  to  the  rules  relating  to  establishment  of 
any guarantee provided for  in these Conditions. 

SETTLBdENT OF DISPUTES 

ARTICLE 45 

Settlement  of Disputes 

45.1  The Contracting Authority  and  the Consultant  shall make  every  effort 
to  amicably  settle  any  dispute  relating  to  the  Contract  which  may 
arise between them, or between the Supervisor  and the Consultant. 

45.2  The Special Conditions  shall prescribe:-

a) the procedure for  the amicable settlement of disputes; 

b) the Time Limits within which  the amicable  settlement procedure may 
be  invoked  after  the  time  that  the  dispute  is  notified  to  the 
other  party  and  the maximum Time Limit within which  such  settle 
ment may  be  reached, provided  that  the Time Limit  prescribed  for 
reaching  such  settlement  does  not  exceed  120 days  from  the  com 
mencement  of the adopted procedure; 

-  187 -

c) the Time Limits  for  responding  in writing  to a request  for amica 

ble  settlement  or  to other  requests permitted  during  the course of 
that procedure  and  the consequence  of failure  to comply with  those 
Time Limits. 

45.3  The  parties may  agree  to  the  settlement  of  the  dispute  by  concilia 

tion within a specific Time Limit  by a third party after  the amicable 
settlement  procedure  adopted has  failed. 

45.4  The  amicable  settlement  or  conciliation  procedure  adopted  shall  in 
all  cases  involve  a procedure  in which  complaints  and  responses  are 
notified  to the other party. 

45.5  In  the  absence  of  an  amicable  settlement  or  settlement  by  concilia 

tion within  the maximum Time Limits  specified,  the dispute  shall :-

a) in  the  case  of  a national  contract,  be  settled  in accordance with 
the  national  legislation  of  the  State  of  the  Contracting 
Authority; and 

b) in the case of a transnational Contract, be settled by arbitration 
in  accordance  with  the  procedural  rules  adopted  by  the  EBC 
Counc i1. 

- 188 -

ANNEX V 

PROCEDURAL RULES ON CONCILIATION 
AND ARBITRATION OF CONTRACTS 
FINANCED BY THE 
EUROPEAN DEVELOPMENT FUND 

IN THE OCT 

-  189  -

TABLE  OF  CONTENTS 

I  -  INIWDDUCTICN 

Article  1 
Article  2 
Article  3 
Article  4 
Article  5 

Scope of application 
Definitions 
Notice  and Calculation of Time 
Exhaustion of  Internal Administrative  Procedures 
Conciliation 

II - THE TRIBUNAL 

Article  6 
Article  7 
Article  8 
Article  9 
Article  10 
Article  11 
Article  12 

Nationality of Arbitrators. 
Number  of Arbitrators 
Appointment  of Sole Arbitrator 
Appointment  of Three Arbitrators 
Appointments  by the Appointing Authority 
Challenge  of Arbitrators 
Replacement  of Arbitrator 

III - THE ARBITRATION PROCEEDINGS 

Article  13 
Article  14 
Article  15 
Article  16 
Article  17 
Article  18 
Article  19 
Article  20 
Article 21 
Article 22 
Article 23 
Article 24 
Article 25 
Article 26 
Article 27 
Article 28 
Article  29 
Article 30 
Article  31 

General Provisions 
Applicable Law and Procedural Rules 
Language  of the Proceedings 
Venue  of the Proceedings 
Representation  and Assistance 
Commencement  of Arbitration Proceedings 
Statement  of Claim 
Statement  of Defence 
Amendments  to the Claim or Defence 
Pleas  to the Jurisdiction of the Tribunal 
Further "Written Statements 
Time Limits 
Evidence 
Oral Proceedings 
Interim Measures  of Protection 
Experts 
Default 
Closure  of Hearings 
\teiver of Rules 

Page 

191 
191 
192 
192 
193 

194 
194 
194 
195 
196 
197 
198 

198 
199 
200 
200 
200 
201 
202 
202 
203 
203 
203 
204 
204 
204 
205 
205 
206 
206 
207 

-  190  -

IV  -  THE ./TORD 

Article  32 
Article  33 
Article  34 
Article  35 
Article  36 
Article  37 
Article  38 
Article  39 
Article 40 
Article 41 

Decisions 
Time, Scope, Form and Effect  of the Avard 
Enforcement  of the Award 
Settlement  or Other Grounds  for Termination 
Interpretation of  the Award 
Correction  of the Award 
Additional Avard 
Fees 
Costs 
Deposit  of Costs 

Page 

20? 
207 
208 
20£ 
209 
209 
21C 
210 
211 
212 

-  191  -

I  -  INIRCOUCIORY RULES 

ARTICLE  1 

Scope of Application 

Disputes  relating  to a contract  financed  by  the European Development 
Fund  (FDF) which, pursuant  to the provisions  of  the General Conditi 
ons and the Special Conditions governing  the contract, may be settled 
by conciliation or by arbitration  shall be settled  in accordance with 
these Procedural Rules. 

ARTICLE 2 

Definitions 

In these Rules, unless  the context  otherwise  requires, the  following 
words  and expressions  shall have  the meaning here assigned  to them:-

OCT: 

the Overseas Countries and Territories who  through  the Coun 
cil Decision have  been associated with  the European Economic 
Gxrmunity  (EBC). 

Council Decision: Decision  - - / — / E BC  of 

by the Council  of the 
European Communities  on the association of the overseas coun 
tries and territories with  the EBC. 

Member State: a Member State of the EBC. 

Administrative Agency:  the Agency  in the OCT concerned  given the 

function of settling by administrative methods disputes  aris 
ing  under  or  in  connection  with  Contracts  to  which  the 
Contracting Authority  is a party. 

The Tribunal: the Arbitral Tribunal. 

Appointing Authority:  the authority agreed by the Parties  to an 

arbitration, or  in the absence  of  such agreement,  identified 
by these Rules, as the authority  to appoint  an Arbitrator. 

Contracting Authority:  the State or the legal person governed  by pub 

lic or private  law which  concludes  the contract  or  on behalf 
of Which  the contract  is concluded. 

The Contract: an EDF Contract  for works, supplies or services. 

Claimant:  the Party which commences arbitration proceedings  by giving 
notice  to the other Party requesting  the arbitration and sub 
mitting claims. 

192 -

Respondent: the Party to the arbitration against whom claims are 

made. 

Party:  when used  in connection with an arbitration, the Claimant or 

Respondent  in the arbitration. 

ARTICLE 3 

Notice and Calculation of Time 

3.1  Any notice provided by these Rules  shall be served by registered  let 

ter  or  physically  delivered  with  a  request  for  a  dated 
acknowledgement  of  receipt  in either  case.  A  notice  shall  be deemed 
to have been received on the day it is so delivered. 

3.2 

For  the purposes  of  calculating  a period  of  time under  these Rules, 
such  period  shall  begin  to  run  on  the day  following  the  day When  a 
notice,  communication  or  proposal,  is  received.  If  the  last  day  of 
such period  is am  official  holiday  or  a non-working  day,  at  the ad 
dress mentioned  in the notice, communication  or proposal, the period 
shall  be  extended  until  the  first working  day which  follows.  How 
ever, official holidays or non-working days occurring during  the run 
ning  of  the period  of  time  shall  be  included  in calculating  the pe 
riod. 

ARTICLE 4 

Exhaustion of Internal Administrative  Procedures 

4.1  A  dispute  shall not be  referred  to arbitration under  these Rules un 
less all  internal  administrative procedures provided  by  the OCT con 
cerned  for  settlement  of  such  disputes  have  been  or  are  deemed  to 
have  been,  exhausted.  Recourse  to  administrative  proceedings  shall 
be deemed  to have been exhausted  if no final decision has been issued 
by  the Administrative  Agency within  120 days  of  the  receipt  of  the 
initial application for settlement  by it. 

4.2 

In cases where  recourse  to administrative procedures  by an  applicant 
is,  due  to  the  absence  of  such procedures  in  the OCT  concerned, not 
possible, a dispute may be  referred  to arbitration under  these Rules 
only  after  the  applicant  has  given  notice  of  his  complaint  to  the 
other  party,  and  no meaningful  steps  have  been  taken  by  that  other 
party  to  remedy  or  correct  the  cause  of  complaint within  120  days 
after  the receipt of the notice. 

- 193 -

ARTICLE 5 

Conciliation 

5.1  At any time before a request for arbitration, a person with the right 
to request  the arbitration may request  the amicable  intervention of 
the agency financing the contract or the settlement of the dispute by 
conciliation in accordance with these Rules. 

5.2  If the parties  to the dispute agree, the conciliation shall be con 
ducted  by a sole Conciliator, otherwise  it shall  be  conducted  by a 
Committee of three Conciliators. 

5.3  To qualify for appointment as Conciliator, the person must be a na 

tional of either the OCT or a Member State. 

5.4  Wiere the conciliation is to be conducted by a sole Conciliator, the 
parties  to  the dispute  shall  agree  on  the Conciliator.  Wiere  the 
Conciliation  is to be conducted by a Conciliation Committee, each of 
the parties  to the dispute  shall nominate one of the members of the 
Committee.  The third member of the Committee who shall be Chairman, 
and who shall be of a nationality other than that of the parties in 
volved, shall be chosen by the other members of the Committee. 

5.5  The party making  a request  for conciliation  shall notify  the other 

party of the request. 

The request shall consist of a statement of the case of the applicant 
and shall be accompanied by copies of relevant papers and documents. 
The  request  shall  also  contain  the name  and  address  of  the person 
proposed or nominated as a Conciliator. 

5.6  Within  60 days  of  receipt  of  the notice  of  the  request, the other 
party shall notify the applicant whether he is prepared to accept an 
attempt at conciliation, and in that event to submit to the applicant 
a  reply  to the applicant's  case.  The  reply shall  also  contain the 
name  and  address  of  the person proposed  or nominated  by  the other 
party as a Conciliator. 

5.7  Within 30 days of the receipt of the reply, the members of the Con 
ciliation  Comnittee  selected  by  the  parties  shall  nominate  the 
Chairman. 

5.8  The proceedings of the Conciliator or Conciliation Committee shall be 

as informal  and expeditious as is compatible with a just and objec 
tive settlement of the dispute and shall be based on a fair hearing 
of each party. 

Each  of  the parties may  appear  in person  or  be  represented  by an 
agent of his choice. 

5.9  After  examining  the case, the Conciliator  or Conciliation Committee 

shall submit terms of settlement to the parties. 

- 194 -

5.10  Should  a settlement  result, the Conciliator  or Conciliation Committee 
shall  draw up and  sign a record  of  the settlement.  The  record  shall 
be  signed  by  the  parties  to  signify  their  acceptance  thereof.  The 
record  of  the  settlement  so  signed  by  the parties  shall  be  binding 
upon them. 

5.11  Copies  of  the  record  of  settlement  so  signed  shall  be  given  to  the 

parties. 

5.12  Should  a  settlement  not  result,  the  parties  shall  be  at  liberty  to 
refer  their dispute  to arbitration under  these Rules, in which case, 
nothing  that has  transpired  in connection with  the proceedings before 
the Conciliator  or Conciliation Committee  shall  in anyway affect the 
legal  rights of any of the parties at the arbitration. 

5.13  No  person having  sat  as  a Conciliator  or  a member  of  a Conciliation 
Committee  for the settlement  of a dispute may be appointed Arbitrator 
for  the same matter. 

II  - T HE 

T R I B U N AL 

ARTICLE  6 

Nationality of Arbitrators 

To  qualify  for  appointment  as  an Arbitrator,  a person must  be  a na 
tional of either  the OCT or a Member State. 

ARTICLE 7 

Number  of Arbitrators 

If  the Parties  agree, the Tribunal  shall  be  constituted  by one Arbi 
trator only.  Such agreement must  be reached by the Parties within 15 
days after receipt by the Respondent  of the notice  commencing  the ar 
bitration proceedings  as provided  for  in Article  18.  If  the Parties 
fail  to agree  to arbitration by one Arbitrator within  the time speci 
fied,  or  if  they  otherwise  agree,  the Tribunal  shall  be  constituted 
by three Arbitrators. 

ARTICLE 8 

Appointment of Sole Arbitrator 

8.1 

If  a  sole Arbitrator  is  to be  appointed,  the Parties  shall  agree  on 
that Arbitrator  or upon  the Appointing Authority  for making  the ap 
pointment  thereof within 60 days  after  the  commencement  of  the arbi 
tration proceedings as laid down in Article 18. 

- 195 -

8.2  Where:-

a) the Parties  are unable  to agree either on the  Arbitrator  or on 

the Appointing Authority within the specified 60 days, or 

b) the Appointing Authority agreed by the Parties refuses to act, or 
fails to appoint the Arbitrator, within 60 days of receipt of the 
Parties' request therefore, 

either  Party may  request  the most  senior  in rank from amongst  the 
judges of the International Court of Justice at the Hague who are na 
tionals of the OCT and  the Member States  to exercise  the powers of 
the Appointing Authority. 

ARTICLE 9 

Appointment of Three Arbitrators 

9.1  If  three Arbitrators  are  to be appointed, each Party  shall appoint 
one Arbitrator.  The two Arbitrators thus appointed shall choose the 
third Arbitrator who shall be the presiding Arbitrator of the Tribu 
nal. 

9.2  The appointment by each Party of an Arbitrator  shall be made within 
60 days from the date of the agreement between the Parties that the 
Tribunal  be constituted  by three Arbitrators, or  the date when the 
constitution of  the Tribunal  by a sole Arbitrator was, in terms of 
Article 7.1, excluded. 

9.3  If:-

a) within 30 days after the appointment by each Party of his Arbitra 
tor, the two appointed Arbitrators have not chosen the third Arbi 
trator, or 

b) within 30 days after  the receipt of  the notification of  the ap 

pointment  by one Party of an Arbitrator  the other Party has not 
notified the first Party of the Arbitrator he has appointed, 

the  required Arbitrator  shall upon request by either Party, be ap 
pointed by the Appointing Authority. 

9.4  The Appointing Authority  shall  be  agreed  by  the Parties not  later 
than 60 days  after  the particular  failure which gives  rise  to the 
need  to invoke that authority.  If after the expiration of that pe 
riod  an Appointing Authority  has  not  been  agreed  by  the Parties, 
either Party may  request  the most  senior  in rank from amongst  the 
judges of the International Court of Justice at the Hague who are na 
tionals of the OCT and  the Member States  to exercise  the powers of 
the Appointing Authority. 

- 196 -

ARTICLE 10 

Appointments  by the Appointing Authority 

10.1  When  an Appointing Authority  is  requested  to  appoint  an Arbitrator, 
the  Party  which  makes  the  request  shall  send  to  the  Appointing 
Authority  a  copy  of  the  notice  of  arbitration  specified  in Article 
18.1 and a copy of the Contract under or  in connection with which the 
dispute has arisen.  The Appointing Authority may  require from either 
Party such information as he deems necessary  to fulfil his function. 

10.2  Either Party may propose names of persons  suitable for appointment as 
Arbitrators  to  the  Appointing  Authority.  Where  such  proposal  is 
made,  the full names, addresses and nationalities  of  the persons pro 
posed  shall be given, together with a description of their qualifica 
tions. 

10.3  The Appointing Authority  shall  appoint  the Arbitrator  or Arbitrators 
as  promptly  as  possible.  In making  the  appointment,  the Appointing 
Authority shall:-

a) have regard  to such considerations  as are likely to secure  the ap 
pointment  of an  independent  and  impartial Arbitrator  of  a nation 
ality  other  than  the  nationalities  of  the  Parties,  and  of  high 
moral  standing,  who  has  a  recognised  competence  in  the 
field  of  law,  technical  knowledge  or  finance  applicable  to  the 
matters  in dispute; and 

b) unless  both  Parties  agree  otherwise,  or  the Appointing  Authority 
decides  in his  discretion  that  the  procedure  is  not  appropriate 
for the particular  case, use  the following  list-procedure:-

i)  the Appointing Authority shall communicate  to both Parties an 
identical  list  containing  at  least  three  names  of  persons 
qualified  for appointment  as arbitrators  in terms of Articles 
6.1  and  10.3(a); 

ii)  within 30 days after  the receipt of this list, each Party may 
return  the  list  to  the Appointing  Authority  after  deleting 
the name  or names  to which he  objects, and numbering  the re 
maining names on the list  in the order of his preference.  If 
the  list  is  not  returned  or  no  alteration  is made  in  the 
order  in which  the  names  appear  in  the  original  list,  the 
names  on  that  list  shall  be deemed  to have  been  approved  by 
the Party concerned  in the order  in which  they appear; 

iii) upon  receipt  of  the  list  returned  by  both parties, or  after 
the expiration of the time limit for the return, whichever  is 
the  earlier,  the Appointing  Authority  shall within  30  days 
appoint  the  Arbitrator  from  among  the  names  approved  or 
deemed  to be approved, on the list and  in accordance with  the 
order of preference  indicated by the Parties; 

- 197 -

iv)  if for any reason the appointment cannot be made according to 

this procedure, the Appointing Authority may appoint a suit 
able Arbitrator, having  due  regard  to  the  interest  of  the 
Parties, the nature of the dispute and, where applicable, the 
fact that one of the Parties is a State. 

ARTICLE 11 

Challenge of Arbitrators 

11.1  A prospective Arbitrator shall disclose to those who approach him in 
connection with his possible appointment  any facts or circumstances 
likely to give rise to justifiable doubts or suspicion as to his im 
partiality  or  independence.  A  person  appointed  Arbitrator  shall 
disclose such facts or circumstances to the Parties unless they have 
already been informed by him of these circumstances. 

11.2  Any Arbitrator may be challenged by a Party if facts or circumstances 
exist which give  rise  to justifiable doubts or  suspicion as  to his 
impartiality or competence.  However a Party may challenge an Arbi 
trator appointed by him, or in whose appointment he has participated, 
only for reasons of which he becomes aware after the appointment has 
been made. 

11.3  A Party who intends to challenge an Arbitrator shall send a notice of 

his challenge in writing, stating the reasons therefor to the Tribu 
nal, the challenged Arbitrator and the other Party.  The notice shall 
be sent within 15 days of the constitution of the Tribunal or of the 
appointment  of  the  challenged  Arbitrator, whichever  is  later, or 
within 15 days after the circumstances  justifying  the challenge be 
come known to the Party making the challenge. 

11.4  Where a challenge made by one Party is agreed by the other Party, or 
where the challenged Arbitrator withdraws from office, the authority 
of  that Arbitrator  in  the  arbitration  proceedings  shall  forthwith 
terminate. But neither the agreement of the Parties to the challenge, 
nor the withdrawal from office of the challenged Arbitrator, implies 
an acceptance of the validity of the grounds of the challenge issued. 

11.5  If the other Party does not agree to the challenge, or if the chal 
lenged Arbitrator  does  not withdraw,  a  decision  on  the  challenge 
shall be made as follows :-

a) where the appointment of the Arbitrator was made by an Appointing 

Authority, by that authority; 

b) where  the appointment  of  the Arbitrator was  not made  by an Ap 

pointing Authority, by the other members of the Tribunal, if there 
are such others; 

- 198 -

c) in all other cases, or in case of disagreement  between the other 
members of the Tribunal, by an Appointing Authority designated or 
to  be  designated  in  accordance with  the  procedure  provided  in 
Article 9.4. 

The decision of the authority specified herein shall be final. 

ARTICLE 12 

Replacement of Arbitrator 

12.1  In the following cases, a substitute Arbitrator shall be appointed in 
accordance with the procedure laid down in Articles 8, 9 and 10 Which 
is applicable  to the appointment of the particular Arbitrator being 
replaced:-

a) a  challenge  to  an Arbitrator  has  been  agreed  to  by  the  other 

Party; or 

b) a challenged Arbitrator has withdrawn from office; or 

c) notwithstanding the absence of agreement of the other Party, or a 
refusal by the challenged Arbitrator  to withdraw, a challenge to 
an Arbitrator is sustained; or 

d) an Arbitrator  dies during  the course of the arbitration proceed 

ings; or 

e) for any other reason, an Arbitrator fails to act or it becomes im 
possible de jure or de facto for him to perform his functions. 

12.2  If an Arbitrator is replaced, any hearing held previously may, at the 
discretion of  the Tribunal, be repeated, and any decision  or order 
made in the course of the proceedings may be set aside by the Tribu 
nal. 

Ill - T HE 

A R B I T R A T I ON 

P R O C E E D I N GS 

ARTICLE 13 

General Provisions 

13.1  Subject  to these Rules, the Tribunal may conduct  the arbitration in 

such manner as it considers appropriate. 

- 199 -

13.2  The Tribunal shall conduct the arbitration as expeditiously and with 
such due regard for the saving of costs as is consistent with doing 
justice  between  the  Parties.  The  Parties  shall  be  treated  with 
equality,  and  at  any  stage  of  the proceedings  each  of  them shall 
be given a full opportunity of presenting his case. 

13.3  If either Party so requests at any stage of the proceedings, the Tri 
bunal shall hold hearings for presentation of evidence by witnesses, 
including expert witnesses, or for oral argument.  In the absence of 
such a request, the Tribunal shall decide whether to hold such hear 
ings or whether  the proceedings  shall be conducted  on the basis of 
documents and other materials. 

13.4  All  documents  or  information  supplied  to the Tribunal  by one Party 
shall  at  the  same  time be  communicated  by  that Party  to  the other 
Party.  No such document or information may be used  in support of a 
Party's case unless there is proof that it has been communicated to 
the other Party. 

ARTICLE 14 

Applicable Law and Procedural Rules 

14.1  The  Tribunal  shall  apply  the  law of  the  State  of  the Contracting 
Authority  to the matters  in dispute, unless  otherwise  specified  in 
the Contract, in which case the Tribunal shall apply the law so spe 
cified.  In all cases, the Tribunal  shall decide  in accordance with 
the terms of the Contract, and may  take into account  the usages of 
the trade applicable to the transaction. 

14.2  Where  the applicable law is silent on any specific point, the Tribu 
nal shall apply the conflict of laws rules resulting from the law ap 
plicable  to the Contract.  The Tribunal may not decline  to make an 
award on the ground that the law is silent or obscure on the point. 

14.3  Notwithstanding the provisions of Articles 5.1 and 14.1, if the Par 
ties expressly so authorise the Tribunal  in the course of the arbi 
tration proceedings,  it  shall  decide  as Anicable Compositor  or  ex 
aequo et bono. 

14.4  The  entire arbitration proceedings  shall be conducted  in accordance 
with  these Rules.  In the absence of agreement between the Parties, 
any procedural matter which is not provided for in these Rules shall 
be decided by the Tribunal, which shall ensure in particular, in such 
a  case, that  the principle  of  equality between  the Parties  is ob 
served. 

- 200 -

ARTICLE 15 

Language of the Proceedings 

15.1  Arbitration proceedings  shall  be  conducted  and  the arbitration  award 
made  in the language of the Contract, the terms or execution of Which 
gave rise to the dispute. 

15.2  The Tribunal may order  that any documents annexed  to the statement of 

claim or statement of defence, and any other document or exhibit sub 
mitted  in  the  course  of  the proceedings, and which  are not  drawn up 
in the  language  of  the proceedings, shall be accompanied  by a certi 
fied  translation  into the language of the proceedings. 

ARTICLE 16 

Venue of the Proceedings 

16.1  Arbitration  proceedings  shall  be  conducted  in  the  OCT  concerned  in 
Which  the Contract was  awarded  or  performed.  However,  the  Tribunal 
may, with  the agreement  of  the Parties  and for good  cause, decide  to 
conduct  the  arbitration  in  some  other  place.  In  deciding  on  such 
other  place, the Tribunal  shall  have  regard  to  the  circumstances  of 
the  case,  including  the  costs  involved,  the  convenience  of  the Par 
ties, and  the potential  adverse  effect  of  the procedural  rules of an 
alternative venue on the Parties and the proceedings. 

16.2  Subject  to  Article  16.1,  the  Tribunal  may  hold  some  hearings  and 
meetings  at  any  place  it  deems  appropriate,  having  regard  to  the 
circumstances of the case. 

16.3  The Tribunal may meet  at  any place  it deems  appropriate  for  the in 
spection of  the works, goods, other  property  or documents.  The Par 
ties shall be given sufficient notice  to enable them to be present at 
such inspection. 

ARTICLE 17 

Representation and Assistance 

The  Parties may  be  represented  and/or  assisted  by  persons  of  their 
choice.  The names and addresses of such persons must be  communicated 
in writing  to  the  other  Party  and  to  the Tribunal.  Such  communica 
tion must  specify whether  the person named  is appointed  for  the pur 
pose of representation or assistance. 

- 201 -

ARTICLE 18 

Commencement of Arbitration Proceedings 

18.1  The Claimant  in an arbitration shall give to the Respondent a notice 
of arbitration.  Such notice shall be time-barred unless it is given 
not  later  than  90 days  after  the  receipt  of  the  decision  closing 
the final administrative proceedings taken in the OCT concerned, or, 
where no such administrative procedures are available, not later than 
90 days after the expiry of the 120 days provided for in Article 4.2 
for the remedy of a complaint notified to the other Party. 

18.2  Arbitration  proceedings  shall  be deemed  to commence  on  the date on 
which the notice of arbitration is received by the Respondent. 

18.3  The notice of arbitration shall include the following:-

a) a demand that the dispute be referred to arbitration; 

b) the names  and  addresses  of  the Parties  and  their nationality at 

the time of the notice; 

c) a  reference  to the Contract  out  of or  in relation  to which  the 
dispute arises, and the particular  clause or clauses  in the Con 
tract being invoked or challenged; 

d) the general nature of the claim and the amount involved, if any; 

e) the relief or remedy sought; 

f) a brief  statement, with dates, of any administrative proceedings 

or  of  the notice  given  of  complaints, and  the  outcome  of  such 
steps; 

g) a proposal as to the number of Arbitrators (i.e., one or three). 

18.4  The notice of arbitration may also include:-

a) the name of the person and/or the authority proposed for appoint 
ment as a sole Arbitrator and/or Appointing Authority referred to 
in Article 8.1; 

b) the notification  of  the appointment  by the Claimant  of an Arbi 

trator referred to in Article 9.1; 

c) the statement of claim referred to in Article 19. 

- 202 -

ARTICLE 19 

Statement of Claim 

19.1  Unless the statement of claim was contained in the notice of arbitra 
tion, within  a  time  limit  to  be  determined  by  the  Tribunal,  the 
Claimant  shall communicate his statement of claim in writing  to the 
Respondent  and  to each of  the Arbitrators.  A  copy of  the Contract 
shall be annexed thereto. 

19.2  The  statement of claim, signed and dated by the Claimant and/or his 

duly authorised  representative, shall include the following particu-
lars:-

a) the names and addresses of the Parties; 

b) a statement of the facts supporting the claim; 

c) the points at issue; 

d) the relief or remedy sought. 

The Claimant  shall either annex to his statement of claim all docu 
ments he deems relevant or add a reference to the documents or other 
evidence he will submit. 

ARTICLE 20 

Statement of Defence 

20.1  Wftthin a time limit to be determined by the Tribunal, the Respondent 
shall communicate his statement of defence in writing to the Claimant 
and to each of the Arbitrators. 

20.2  The statement of defence shall reply to the particulars of the state 
ment of claim given in compliance with Article 19.2(b), (c) and (d). 
The Respondent  shall either annex to his statement  the documents on 
which he relies for his defence or add a reference  to the documents 
or other evidence he will submit. 

20.3  In his statement of defence, or at a later stage  in the arbitration 

proceedings, if the Tribunal decides that the delay was justified un 
der the circumstances, the Respondent may make a counter-claim aris 
ing out of the same Contract, or rely on a claim arising out of the 
same Contract for the purpose of a set-off. 

20.4  The provisions of Article 19.2 shall apply to a counter-claim and a 

claim relied on for the purpose of a set-off. 

- 203 -

ARTICLE 21 

Amencknenta to the Claim or Defence 

During  the  course  of  the  arbitration  proceedings  either  Party may 
amend or supplement his claim or defence unless the Tribunal consid 
ers  it  inappropriate  to allow such  amendment  having  regard  to the 
delay in making it or the undue harm that it would cause to the other 
Party. 

ARTICLE 22 

Pleas to the Jurisdiction of the Tribunal 

22.1  The Tribunal shall have the power to rule on objections to its juris 

diction. 

22.2  The Tribunal  shall have the power  to determine  the existence or the 

validity of the Contract.  A  decision by the Tribunal  that  the Con 
tract is null and void shall not affect the validity of the arbitra 
tion clause in the Contract or the agreement to submit the dispute to 
arbitration, and therefore, shall not affect the application of these 
Rules. 

22.3  A  plea that the Tribunal does not have jurisdiction shall be raised 
not  later  than  in  the  statement  of defence  or, with  respect  to a 
counter-claim,  in  the  reply  to  the  counter-claim.  This  provision 
shall  also  apply  to new claims  and  counter-claims  admitted  in the 
course of the proceedings. 

22.4  In general, the Tribunal should rule on a plea concerning  its juris 
diction as a preliminary question.  However, the Tribunal may proceed 
with the arbitration and then rule on such a plea in its final award. 

ARTICLE 23 

Further Wfritten Statements 

The Tribunal  shall decide which further written statements, in addi 
tion to the statement of claim and the statement of defence, shall be 
required from the Parties or may be presented by them and, if so, the 
manner  in which they shall be presented, and shall fix the time lim 
its for communicating such statements. 

204 -

ARTICLE 24 

Time Limits 

The  time  limits fixed by  the Tribunal  for  the communication  of writ 
ten statements  (including  the statement of claim and statement of de 
fence) shall not, in each case, exceed 45 days.  However, the Tribu 
nal may  extend  the  time  limits  if  it  concludes  that  an  extension  is 
justified. 

ARTICLE 25 

Evidence 

25.1  Each  Party  shall  bear  the  burden  of  proving  the  facts  relied  on  to 

support his claim or defence. 

25.2  The Tribunal may, if it considers  it appropriate, require  the Parties 
to deliver  to  the Tribunal  and  to  the  other  Party, within  such  time 
limit  as  the Tribunal  shall  decide, a  summary  of  the  documents  and 
other  evidence which  that  Party  offers  to present  in  support  of  the 
facts  in issue  set out  in his  statement  of  claim or  statement  of de 
fence. 

25.3  At  any time during  the proceedings, the Tribunal may  require  the Par 

ties  to  produce  documents,  exhibits  or  other  evidence within  such 
time limit as the Tribunal  shall determine. 

ARTICLE 26 

Oral Proceedings 

26.1  In the event  of an oral hearing,  the Tribunal  shall give  the Parties 

adequate advance notice of the date, time and place thereof. 

26.2  If witnesses  are  to  be  heard,  each  Party  shall  commumicate  to  the 
Tribunal  and  to the other Party, at least 15 days before  the hearing, 
the names and addresses of the witnesses he  intends  to call, the sub 
jects  upon  and  the  languages  in  which  such  witnesses  will  give 
their  testimony. 

26.3  The  Tribunal  shall  make  arrangements  for  the  translation  of  oral 
statements made  at  a hearing  and  for  a  record  of  the hearing  if ei 
ther  is deemed  necessary  by  the Tribunal  under  the  circumstances  of 
the case, or  if the Parties have agreed  thereto and have  communicated 
such agreement  to the Tribunal  at least 15 days before  the hearing. 

- 205 -

26.4  Hearings shall be held in camera unless the Parties agree otherwise. 
The Tribunal may require the retirement of any witness or witnesses 
during the testimony of other witnesses.  The Tribunal is free to de 
termine the manner in which witnesses are examined, without prejudice 
to  the  right  of  each Party, at  its  request, to question witnesses 
presented by the other Party. 

26.5  Evidence  of witnesses may  also  be presented  in  the  form of  sworn 
written statements signed by them.  However, at the request of either 
Party and with the leave of the Tribunal, such witnesses may be heard 
at  a  hearing where  the  Parties  shall  have  the  opportunity  to be 
present and to question the witnesses. 

26.6  The Tribunal  shall  determine  the  admissibility,  relevance, materi 

ality and weight of the evidence offered. 

ARTICLE 27 

Interim Measures of Protection 

27.1  At  the  request  of  either Party, the Tribunal may  take  any  interim 
measures  it deems necessary in respect of the subject matter of the 
dispute,  including measures  for  the  conservation, preservation  or 
safe-custody of the goods forming the subject matter in dispute, such 
as ordering their deposit with a third person or the sale of perish 
able  goods.  The  Tribunal may  also  order  the deposit  of  a  sum of 
money or the provision of a security to guarantee  the whole  or any 
part of the amounts  in dispute.  In the event of failure  to do so, 
the  Tribunal  shall  be  entitled  to  draw  such  conclusions  as  may 
logically be imputed to such failure. 

27.2  Such  interim measures may be established  in the form of an interim 
award.  The Tribunal  shall be  entitled  to require  security for the 
costs of such measures. 

ARTICLE 28 

Experts 

28.1  The Tribunal may appoint one or more  independent  experts to examine 
and report to it, in writing, on specific issues to be determined by 
the Tribunal.  A Party shall have the right to object to an expert on 
the  ground  of  competence  and  partiality  and  if  such  objection  is 
sustained by the Tribunal that expert shall withdraw.  A  copy of the 
expert's  terms of  reference, established  by  the Tribunal, shall be 
communicated to the Parties. 

206 -

28.2  The Parties  shall give the expert any relevant  information or produce 

for  his  inspection  any  relevant  documents  or  goods  that  he may  re 
quire of them.  Any dispute between a Party and such expert as to the 
relevance of the required  information or production shall be referred 
to the Tribunal  for decision. 

28.3  Upon receipt of the expert's  report, the Tribunal  shall communicate a 
copy of  the report  to the Parties who  shall be given  the  opportunity 
to  express,  in writing,  their  opinion  on  the  report.  A  Party  shall 
be entitled  to examine any document  on which the expert has relied in 
his report. 

28.4  At  the request of either Party, the expert, after delivery of the re 
port, may be heard  at a hearing where  the Parties  shall have  the op 
portunity  to be present  and  to question him.  At  this hearing  either 
Party may  call  expert witnesses  in order  to testify on  the points at 
issue.  The provisions of Article 26 shall apply to such proceedings. 

ARTICLE 29 

Default 

29.1  If, within  the  time  limit  fixed  by  the  Tribunal,  the  Claimant  has 

failed  to  communicate  his  statement  of  claim without  showing  suffi 
cient  cause  for  such failure, the Tribunal  shall  issue  an  order  for 
the  termination  of  the proceedings.  If, within  the  time  limit  fixed 
by  the Tribunal, the Respondent  has  failed  to communicate  his  state 
ment  of  defence without  showing  sufficient  cause  for  such  failure, 
the Tribunal  shall, after allowing for the particular  constraints ap 
plying  to the Respondent, order  that the proceedings  continue and may 
make  an award even if a defence has by then not been submitted. 

29.2  If one of  the Parties, duly notified under  these Rules, fails  to ap 

pear at a hearing, without  shewing sufficient  cause for such failure, 
the Tribunal may proceed with  the arbitration. 

29.3  If one  of  the Parties, duly  invited  to produce  documentary  evidence, 
fails  to  do  so within  the  established  time  limit, without  showing 
sufficient  cause  for  such  failure,  the Tribunal may make  the  award 
on  the evidence  before  it, taking due  account  of  the failure  and  the 
bearing  it has on the case. 

ARTICLE 30 

Closure of Hearings 

30.1  The Tribunal may  inquire of the Parties  if they have any further  evi 

dence  to offer  or witnesses  to be heard  or  submissions  to make  and, 
if there are none, it may declare  the hearing  closed. 

- 207 -

30.2  The Tribunal may, if it considers  it necessary owing to exceptional 
circumstances, decide, on  its own motion  or upon  application  of a 
Party, to reopen the hearings at any time before the award is made. 

ARTICLE 31 

Wfciver of Rules 

A  Party who  refrains from promptly raising an objection to any non 
compliance with  the provisions of or requirements under  these Rules 
shall be deemed to have waived his right to object. 

IV - T H E S A RD 

ARTICLE 32 

Decisions 

32.1  When  there are three Arbitrators, an award or other decision of the 
Tribunal shall be made by a majority of the Arbitrators.  However, if 
there is no majority, the presiding Arbitrator  shall have a casting 
vote, but shall give reasons for exercising that vote. 

32.2  In the case of questions of procedure, when there is no majority or 
when the Tribunal so authorizes, the presiding Arbitrator may decide 
on his own, subject to review, if any, by the Tribunal. 

ARTICLE 33 

Time, Scope, Form and Effect of the Award 

33.1  The  arbitration  award  shall  be made  as  soon as possible  after  the 
hearing or receipt of evidence or the material which the Parties wish 
to put before the Tribunal. 

33.2  In addition to making a final award, the Tribunal  shall be entitled 

to make interim, interlocutory, or partial awards. 

33.3  The award shall be made in writing and shall be final and binding on 
the Parties.  The Parties  shall  carry out  the award without  delay. 
Each OCT or Member State shall recognise as binding every award made 
pursuant  to these Rules and shall ensure that it is enforced in its 
territory, as if it were a final judgment of one of its own courts or 
tribunals. 

33.4  The Tribunal  shall state the reasons upon which the award is based, 
unless the Parties have agreed that no reasons are to be given. 

- 208 -

33.5  An award  shall be signed and duly certified by the Arbitrators  and it 
shall  contain  the  date  on which  and  the  place where  the  award was 
made.  Where  there  are  three  Arbitrators  and  one  of  them  fails  to 
sign,  the  award  shall  state  the  reason  for  the  absence  of  the 
signature. 

33.6  The award may be made public only with  the consent of both Parties. 

33.7  Copies  of  the award  signed  and  certified  by  the Arbitrators  shall be 

communicated  to the Parties by the Tribunal. 

ARTICLE 34 

Enforcement  of the Award 

34.1  In  order  to  obtain  the  recognition  and  enforcement  of  the  award  in 
the  territory of  the OCT or a Member  State, the Party  concerned must 
present  a  certified  copy  of  the  award  to  the  authority which  that 
State  has  designated  for  the  purpose.  The  order  for  enforcement 
shall  be  appended  to  the  presented  copy  without  any  verification 
other than that of the authenticity of the copy. 

34.2  Each signatory State shall, within 180 days from the entry  into force 
of  these Rules,  inform the President  of  the Council  of Ministers  of 
the EBC of the authority Which  it has designated  for  this purpose and 
shall keep him informed of any changes.  The President of the Council 
of  Ministers  will  transmit  such  information  the  President  of  the 
Commission without delay. 

34.3  The  enforcement  of  the  award  shall  be  regulated  by  the  law relating 
to  the  enforcement  of  judgments which  is  in  force  in  the  State  in 
whose  territory the enforcement  is to be carried out. 

ARTICLE 35 

Settlement  or Other Grounds for Termination 

35.1  If, before  the  award  is made,  the  Parties  agree  on  a  settlement  of 
the dispute by other means, the Tribunal  shall  either  issue  an order 
for  the  termination of  the proceedings  or, if requested  by both Par 
ties  and accepted  by  the Tribunal, record  the  settlement  in the  form 
of am award on the agreed  terms.  The Tribunal  is not obliged  to give 
reasons for such an award. 

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35.2  If, before  the award  is made, the continuation of the proceedings be 
comes unnecessary  or  impossible  for  any  reason  other  than  settlement 
under Article 35.1, the Tribunal  shall  inform the Parties  that unless 
any objection  is received within 30 days, it will  issue an order ter 
minating  the proceedings.  Should  either Party object within  the said 
30  days,  the  Tribunal  shall  not  issue  such  an  order  until  it  has 
heard  the  Parties  and  determined  that  there  are  no  justifiable 
grounds for objection. 

35.3  Copies  of  the  order  for  termination  of  the  proceedings  or  of  the 

award on the agreed  terms, signed by the Arbitrators, shall be commu 
nicated by the Tribunal  to the Parties.  Where  an award on the agreed 
terms is made, the provisions  of Articles 33.3 and 33.5 to 33.7 shall 
apply. 

ARTICLE 36 

Interpretation of the Award 

36.1  Within  60  days  after  the  receipt  of  the  award,  either  Party, with 
notice  to  the other Party, may  request  that  the Tribunal  give  an in 
terpretation of the award.  Where  a new issue  is discovered  after the 
time  limit  provided has  expired,  the 60 days  shall  run from the date 
the new issue  is discovered, provided  that  the maximum time limit for 
a  request  based  on  the discovery of a new issue  shall not  exceed  120 
days from the date of the award. 

36.2  The  interpretation  shall  be  given  in writing  as  soon  as  possible 
after  the receipt  of the request.  The  interpretation  shall form part 
of the award and  the provisions  of Article 33.2 to 33.6 shall apply. 

ARTICLE 37 

Correction of the Award 

37.1  within  60  days  after  the  receipt  of  the  award,  either  Party,  with 
notice  to the other Party, may  request  the Tribunal  to correct  in the 
award  any  errors  in  computation,  any  clerical  or  typographical  er 
rors,  or any errors  of a similar nature.  The Tribunal may within  30 
days after  the communication  of  the award make  such corrections  on it 
own  initiative. 

37.2  Such  corrections  shall  be  in writing,  and  the provisions  of Article 

33.2 to 33.6 shall  apply. 

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ARTICLE 38 

Additional Award 

38.1  Within  60  days  after  the  receipt  of  the  award,  either  Party, with 

notice  to the other Party, may  request  the Tribunal  to make  an addi 
tional  award  as  to  claims  presented  in  the  proceedings  but  omitted 
from the award. 

38.2  If  the Tribunal  considers  the  request  for  an additional  award  to be 
justified  and  considers  that  the  omission  can  be  rectified  without 
any further hearings  or evidence, it shall  complete  its award within 
60 days after  the receipt of the request. 

38.3  When  the additional  award  is made, the provisions  of Article  33.2 to 

33.6 shall apply. 

ARTICLE 39 

Fees 

39.1  The  fees  of  the Tribunal  shall  be  reasonable  in amount,  taking  into 
account  the  complexity  of  the  subject matter,  the  time  spent  by  the 
Arbitrators  and any other relevant circumstances  of the case. 

39.2  If  an Appointing  Authority  has  been  agreed  upon  by  the  Parties  or 

designated  by  these Rules, and  if that authority has  issued  a sched 
ule  of  fees for Arbitrators  in international  cases which  it adminis 
ters,  the  Tribunal  in  fixing  its  fees  shall  take  that  schedule  of 
fees  into account  to the extent  that  it considers  appropriate  in the 
circumstances of the case. 

39.3  If  such Appointing Authority  has  not  issued  a  schedule  of  fees  for 
Arbitrators  in  international  cases, any Party may  at  any  time before 
the Tribunal  issues any award fixing  its costs request  the Appointing 
Authority  to  furnish  a  statement  setting  forth  the  basis  for  estab 
lishing  fees which  is customarily  followed  in  international  cases  in 
which  the  authority  appoints  Arbitrators.  If  the  Appointing 
Authority  consents  to provide  such a statement, the Tribunal  in fix 
ing  its  fees  shall  take  such  information  into  account  to  the  extent 
that  it considers appropriate  in the circumstances  of the case. 

39.4  In  the  cases  referred  to  in Articles  39.2 and  39.3, when  a Party  so 
requests  and  the Appointing Authority  consents  to draw up  a proposal 
for  fees,  the  Tribunal  shall  fix  its  fees  only  after  consultation 
with  the Appointing Authority which may make any comment  it deems ap 
propriate  to the Tribunal  concerning  the fees. 

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ARTICLE 40 

Costs 

40.1  The Tribunal  shall fix the costs of arbitration  in its award.  The 

term "costs" includes only:-

a) the fees of the Tribunal to be stated separately as to each Arbi 

trator and to be fixed by the Tribunal  itself  in accordance with 
Article 39; 

b) the travel and other expenses incurred by the Arbitrators; 

c) the costs of expert advice and of other assistance required by the 

Tribunal; 

d) the travel and other expenses of witnesses to the extent such ex 

penses are approved by the Tribunal; 

e) the costs for legal representation and assistance of the success 

ful Party if such costs were  claimed during the proceedings, and 
only to the extent that the Tribunal determines that the amount of 
such costs is reasonable; 

f) any fees and expenses of the Appointing Authority. 

40.2  Except as provided in Article 40.3, the costs of arbitration shall in 
principle be borne by the unsuccessful Party.  However, the Tribunal 
may apportion each of such costs between the Parties if it determines 
that  apportionment  is  reasonable,  taking  into  account  the  circum 
stances of the case. 

40.3  With respect to the costs of legal representation and assistance re 

ferred  to in Article 40.1(e), the Tribunal, taking into account the 
circumstances  of  the  case, shall  be  free  to determine which Party 
shall  bear  such  costs  or  may  apportion  such  costs  between  the 
Parties if it determines that apportionment is reasonable. 

40.4  When the Tribunal issues an order for the termination of the proceed 

ings or makes an award on the agreed terms, it shall fix the costs of 
arbitration referred to in Article 40.1 in the text of that order of 
award. 

40.5  No additional fees may be charged by a Tribunal for interpretation or 
correction or completion of its award under Articles 36 to 38. 

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ARTICLE 41 

Deposit of Costs 

41.1  The Tribunal, on its establishment, may request each Party to deposit 
an equal amount as an advance for the costs referred  to in Article 
40.1(a), (b) and (c). 

41.2  During  the course  of  the arbitration proceedings, the Tribunal may 

request supplementary deposits from the Parties for valid reasons. 

41.3  If an Appointing Authority has been agreed upon by  the Parties or 

designated by these Rules, and When a Party so requests and the Ap 
pointing Authority  consents  to perform  the  function,  the Tribunal 
shall fix the amounts of any deposits or supplementary deposits only 
after consultation with the Appointing Authority which may make com 
ments  to  the  Tribunal which  it  deems  appropriate  concerning  the 
amount of such deposits and supplementary deposits. 

41.4  If the required deposits are not paid  in full within 30 days after 

receipt of the request, the Tribunal shall inform the Parties in or 
der that one or other of them may make the required payment.  If such 
payment is not made, the Tribunal may nevertheless decide to continue 
with, or order the suspension or termination of, the proceedings. 

41.5  After  the award has been made, the Tribunal shall render an account 
to  the Parties  of  the deposits  received  and  return  any unexpended 
balance to the Parties. 

ISSN 0254-1475 

COM(91) 151  final 

DOCUMENTS 

EN 

11 

Catalogue number : CB-CO-91-360-EN-C 

ISBN 92-77-74999-7 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg