FIDIC 设计采购施工合同条件 （银皮书第11-13条中英文） FIDIC CONTRACT OF DESIGN, PURCHASE AND CONSTRUCTION （EPC）交钥匙项目合同条件 11 Defects Liability 缺陷责任 11.1 Completion of Outstanding Work and Remedying Defects 完成扫尾工作和修补缺FIDIC 设计采购施工合同条件（银皮书第11-13条 中英文）
FIDIC CONTRACT OF DESIGN, PURCHASE AND CONSTRUCTION
11 Defects Liability缺陷责任
11.1 Completion of Outstanding Work and Remedying Defects
n order that the Works and Contractor’s Documents, and each Section ,shall be in the condition required by the Contract (fair wear and tear excepted) by the expiry date of the relevant Defects Notification Period or as soon as practicable thereafter, the Contractor shall:
(a) complete any work which is outstanding on the date stated in a Taking-Over Certificate, within such reasonable time as is instructed by the Employer, and
(b) execute all work required to remedy defects or damage, as may be notified by the Employer on or before the expiry date of the Defects Notification Period for the Works or Section (as the case may be)
If a defect appears or damage occurs, the Employer shall notify the Contractor accordingly.
11.2 Cost of Remedying Defects修补缺陷的费用
All work referred to in sub-paragraph (b) of Sub-Clause 11.1[Completion of Outstanding Work and Remedying Defects] shall be executed at the risk and cost of the Contractor, if and to the extent that the work is attributable to:
(a) the design of the Works,
(b) Plant, Materials or workmanship not being in accordance with the Contract,
(c) improper operation or maintenance which was attributable to matters for which the Contractor is responsible (under Sub-Clause 5.5 to 5.7 or otherwise), or
(d) failure by the Contractor to comply with any other obligation.
If and to the extent that such work is attributable to any other cause, the Employer shall give notice to the Contractor accordingly, and Sub-Clause 13.3 [Variation Procedure] shall apply.
11.3 Extension of Defects Notification Period缺陷通知期的延长
The Employer shall be entitled subject to Sub-Clause 2.5[Employer’s Claims] to an extension of the Defects Notification Period for the Works or a Section if and to the extent that the Works, Section or a major item of Plant (as the case may be, and after taking over) cannot be used for the purposes for which they are intended by reason of a defect or damage. However, a Defects Notification Period shall not be extended by more than two years.
If delivery and/or erection of Plant and/or Materials was suspended under Sub-Clause 8.8[Suspension of Work] or Sub-Clause 16.1[Contractor’s Entitlement to Suspend Work], the Contractor’s obligations under this Clause shall not apply to any defects or damage occurring more than two years after the Defects Notification Period for the Plant and/or Materials would otherwise have expired.
11.4 Failure to Remedy Defects未能修补的缺陷
If the Contractor fails to remedy any defect or damage within a reasonable time, a date may be fixed by (or on behalf of) the Employer, on or by which the defect or damages is to be remedied. The Contractor shall be given reasonable notice of this date.
If the Contractor fail to remedy the defect or damage by this notified date and this remedial work was to be executed at the cost of the Contractor under Sub-Clause 11.2[Cost of Remedying Defects], the Employer may (at his option):
(a) carry out the work himself or by others, in a reasonable manner and at the Contractor’s cost, but the Contractor shall have no responsibility for this work; and the Contractor shall subject to Sub-Clause 2.5 [Employer’s Claims] pay to the Employer the costs reasonably incurred by the Employer in remedying the defect or damage;
(b) agree or determine a reasonable reduction in the Contract Price in accordance with Sub-Clause 3.5 [Determinations]; or
(c) if the defect or damage deprives the Employer of substantially the whole benefit of the Works or any major part of the Works, terminate the Contract as a whole, or in respect of such major part which cannot be put to the intended use. Without prejudice to any other rights, under the Contract or otherwise, the Employer shall then be entitled to recover all sums paid for the Works or for such part (as the case may be), plus financing costs and the cost of dismantling the same, clearing the Site and returning Plant and Materials to the Contractor.
11.5 Removal of Defective Work移出有缺陷的工程
If the defect or damage cannot be remedied expeditiously on the Site and the Employer gives consent, the Contractor may remove from the Site for the purposes of repair such items of Plant as are defective of damaged. This consent may require the Contractor to increase the amount of the Performance Security by the full replacement cost of these items, or to provide other appropriate security.
如果缺陷或损害在现场无法迅速修复,承包商可经雇主同意,将此类有缺陷或损害的各项生产设备移出现场进行修复。雇主此项同意可要求承包商按该项设备的全部重置成本, 增加履约担保的金额, 或提供其他适宜的担保。
11.6 Further Tests进一步试验
If the work of remedying of any defect or damage may affect the performance of the Works, the Employer may require the repetition of any of the tests described in the Contract, including Tests on Completion and/or Tests after Completion. The requirement shall be made by notice within 28 days after the defect or damage is remedied.
These tests shall be carried out in accordance with the terms applicable to the previous tests, except that they shall be carried out at the risk and cost of the Party liable, under Sub-Clause 11.2 [Cost of Remedying Defect], for the cost of the remedial work.
11.7 Right of Access进入权
Until the performance Certificate has been issued, the Contractor shall have the right of access to all parts of the Works and to records of the operation and performance of the Works, except as may be inconsistent with the Employer’s reasonable security restrictions.
11.8 Contractor to Search承包商调查
The Contractor shall, if required by the Employer, search for the cause of any defect, under the direction of the Employer. Unless the defect is to be remedied at the cost of the Contractor under Sub-Clause 11.2 [Cost of Remedying Defects], the Cost of the search plus reasonable profit shall be agreed or determined in accordance with Sub-Clause 3.5 [Determinations] and shall be added to the Contract Price.
11.9 Performance Certificate履约证书
Performance of the Contractor’s obligations shall not be considered to have been completed until the Employer has issued the Performance Certificate to the Contractor, stating the date on which the Contractor completed his obligations under the Contract.
The Employer shall issue the Performance Certificate within 28 days after the latest of the expiry dates of the Defects Notification Periods, or as soon thereafter as the Contractor has supplied all the Contractor’s Documents and completed and tested all the Works, including remedying any defects. If the Employer fails to issue the Performance Certificate accordingly:
(a) the Performance Certificate shall be deemed to have been issued on the date 28 days after the date on which it should have been issued, as required by this Sub-Clause, and
(b) Sub-Clause 11.11 [Clearance of Site] and sub-paragraph (a) of Sub-Clause 14.14 [Cessation of Employer’s Liability] shall be inapplicable.
Only the Performance Certificate shall be deemed to constitute acceptance of the Works.
11.10 Unfulfilled Obligations未履行的义务
After the Performance Certificate has been issued, each Party shall remain liable for the fulfillment of any obligation which remains unperformed at that time. For the purposes of determining the nature and extent of unperformed obligations, the Contract shall be deemed to remain in force.
11.11 Clearance of Site现场清理
Upon receiving the Performance Certificate, the Contractor shall remove any remaining Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works form the Site.
If all these items have not been removed within 28 days after the Employer issues the Performance Certificate, the Employer may sell or otherwise dispose of any remaining items. The Employer shall be entitled to be paid the costs incurred in connection with, or attributable to , such sale or disposal and restoring the Site.
Any balance of the moneys from the sale shall be paid to the Contractor. If these moneys are less than the Employer’s costs, the Contractor shall pay the outstanding balance to the Employer.
12 Tests after Completion竣工后试验
12.1 Procedure for Tests after Completion竣工后试验的程序
If Tests after Completion are specified in the Contract, this Clause shall apply. Unless otherwise stated in the Particular Conditions:
(a) the Employer shall provide all electricity, fuel and materials, and make the Employer’s Personnel and Plant available;
(b) the Contract shall provide any other plant, equipment and suitably qualified and experienced staff, as are necessary to carry out the Tests after Completion efficiently; and
(c) the Contractor shall carry out the Tests after Completion in the presence of such Employer’s and/or Contractor’s Personnel as either Party may reasonably request.
The tests after Completion shall be carried out as soon as is reasonably practicable after the Works or Section have been taken over by the Employer. The Employer shall give to the Contractor 21 days’ notice of the date after which the Tests after Completion will be carried out. Unless otherwise agreed, these Tests shall be carried out within 14 days after this date, on the day or days determined by the Employer.
The results of the Tests after Completion shall be compiled and evaluated by the Contractor, who shall prepare a detailed report. Appropriate account shall be taken of the effect of the Employer’s prior use of the Works.
12.2 Delayed Tests延误的试验
If the Contractor incurs Cost as a results of any unreasonable delay by the Employer to the Tests after Completion, the Contractor shall (ⅰ) give notice to the Employer and (ⅱ) be entitled subject to Sub-Clause 20.1[Contractor’s Claims] to payment of any such Cost plus reasonable profit, which shall be added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine this Cost and profit.
If, for reasons not attributable to the Contractor, a Test after Completion on the Works or any Section cannot be completed during the Defects Notification Period (or any other period agreed upon by both Parties), then the Works or Section shall be deemed to have passed this Test after Completion.
If the Works, or a Section, fail to pass the Tests after Completion:
(a) sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying of Defects] shall apply, and
(b) either Party may then require the failed Tests, and the Tests after Completion on any related work, to be repeated under the same terms and conditions.
If and to the extent that this failure and retesting are attributable to any of the matters listed in sub-paragraphs (a) to (d) of Sub-Clause 11.2 [Cost of Remedying Defects] and cause the Employer to incur additional costs, the Contractor shall subject to Sub-Clause 2.5 [Employer’s Claims] pay these costs to Employer.
12.4 Failure to Pass Tests after Completion未能通过的竣工后试验
If the following conditions apply, namely:
(a) the Works, or a Section, fail to pass any or all of the Tests after Completion,
(b) the relevant sum payable as non-performance damages for this failure is stated (or its method of calculation is defined) in the Contract, and
(c) the Contractor pays this relevant sum to the Employer during the Defects Notification Period,
then the Works or Section shall be deemed to have passed these Tests after Completion.
If the Works, or a Section, fail to pass a Test after Completion and the Contractor proposes to make adjustments or modifications to the Works or such Section, the Contractor may be instructed by (or on behalf of) the Employer that right of access to the Works or Section cannot be given until a time that is convenient to the Employer. The Contractor shall then remain liable to carry out the adjustments or modifications and to satisfy this Test, within a reasonable period of receiving notice by (or on behalf of) the Employer of the time that is convenient to the Employer. However, if the Contractor does not receive this notice during the relevant Defects Notification Period, the Contractor shall be received of this obligation and the Works or Section (as the case may be) shall be deemed to have passed this Test after Completion.
If the Contractor incurs additional Cost as a result of any unreasonable delay by the Employer in permitting access to the Works or Plant by the Contractor, either to investigate the causes of a failure to pass a Test after Completion or to carry out any adjustments or modifications, the Contractor shall (ⅰ) give notice to the Employer and (ⅱ) be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to payment of any such Cost plus reasonable profit, which shall be added to Contract Price.
After receiving this notice, the Employer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine this Cost and profit.
13 Variations and Adjustments变更和调整
13.1 Right to Vary变更权
Variations may be initiated by the Employer at any time prior to issuing the Taking-Over Certificate for the Works, either by an instruction or by a request for the Contractor to submit a proposal. A Variation shall not comprise the omission of any work which is to be carried out by others.
The Contractor shall execute and be bound by each Variation, unless the Contractor promptly gives notice to the Employer stating (with supporting particulars) that (ⅰ) the Contractor cannot readily obtain the Goods required for the variation,(ⅱ) it will reduce the safety or suitability of the Works, or (ⅲ) it will have an adverse impact on the achievement of Performance Guarantees. Upon receiving this notice, the Employer shall cancel, confirm or vary the instruction.
13.2 Value Engineering价值工程
The Contractor may, at any time, submit to the Employer a written proposal which (in the Contractor’s opinion) will, if adopted, (ⅰ) accelerate completion, (ⅱ) reduce the cost to the Employer of executing, maintaining or operating the Works, (ⅲ) improve the efficiency or value to the Employer of the completed Works, or (ⅳ) otherwise be of benefit to the Employer.
The proposal shall be prepared at the cost of the Contractor and shall include the items listed in Sub-Clause 13.3 [Variation Procedure].
13.3 Variation Procedure变更程序
If the Employer requests a proposal, prior to instructing a Variation, the Contractor shall respond in writing as soon as practicable, either by giving reasons why he cannot comply (if this is the case) or by submitting:
(a) a description of the proposed design and/or work to be performed and a programme for its execution,
(b) the Contractor’s proposal for any necessary modifications to the programme according to Sub-Clause 8.3 [Programme] and to the Time for Completion, and
(c) the Contractor’s proposal for adjustment to the Contract Price.
The Employer shall, as soon as practicable after receiving such proposal (under Sub-Clause 13.2 [Value Engineering] or otherwise), respond with approval, disapproval or comments. The Contractor shall not delay any work whilst awaiting a response.
Each instruction to execute a Variation to execute a Variation, with any requirements for the recording of Costs, shall be issued by the Employer to the Contractor, who shall acknowledge receipt.
Upon instructing or approving a Variation, the Employer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine adjustments to the Contract Price and the Schedule of Payments. These adjustments shall include reasonable profit, and shall take account of the Contractor’s submissions under Sub-Clause 13.2 [Value Engineering] if applicable.
13.4 Payment in Applicable Currencies以适用货币支付
If the Contract provides for payment of the Contract Price in more than one currency, then whenever an adjustment is agreed, approved or determined as stated above, the amount payable in each of the applicable currencies shall be specified. For this purpose, reference shall be made to the actual or expected currency proportions of the Cost of the varied work, and to the proportions of various currencies specified for payment of the Contract Price.
Each Provisional Sum shall only be used, in whole or in part, in accordance with the Employer’s instructions, and the Contract Price shall be adjusted accordingly. The total sum paid to the Contractor shall include only such amounts, for the work, supplies or services to which the Provisional Sum relates, as the Employer shall have instructed. For each provisional Sum, the Employer may instruct:
(a) work to be executed (including Plant, Materials or services to be supplied) by the Contractor and valued under Sub-Clause 13.3 [Variation Procedure]; and/or
(b) Plant, Materials or services to be purchased by the Contractor, for which there shall be added to the Contract Price less the original Provisional Sums:
(i) the actual amounts paid (or due to be paid) by the Contractor, and
(ii) a sum for overhead charges and profit, calculated as a percentage of these actual amounts by applying the relevant percentage rate (if any) stated in the Contract.
The Contractor shall, when required by the Employer, produce quotations, invoices, vouchers and accounts or receipts in substantiation.
For work of a minor or incidental nature, the employer may instruct that a Variation shall be executed on a daywork basis. The work shall then be valued in accordance with the daywork schedule included in the Contract, and the following procedure shall apply. If a daywork schedule is not included in the Contract, this Sub-Clause shall not apply.
Before ordering Goods for the work, the Contractor shall submit quotations to the Employer. When applying for payment, the contractor shall submit invoices, vouchers and accounts or receipts for any Goods.
Except for any items for which the daywork schedule specifies that payment is not due, the Contractor shall deliver each day to the Employer accurate statements in duplicate which shall include the following details of the resources used in executing the previous day’s work:
(a) the names, occupations and time of Contractor’s Personnel,
(b) the identification, type and time of Contractor’s Equipment and Temporary Works, and
(c) the quantities and types of Plant and Materials used.
One copy of each statement will, if correct, or when agreed, be signed by the Employer and returned to the Contractor. The Contractor shall then submit priced statements of these resources to the Employer, prior to their inclusion in the next Statement under Sub-Clause 14.3 [Application for Interim Payments].
13.7 Adjustments for Changes in Legislation因法律改变的调整
The Contract Price shall be adjusted to take account of any increase or decrease in Cost resulting from a change in the Laws of the Country (including the introduction of new Laws and the repeal or modification of existing Laws) or in the judicial or official governmental interpretation of such Laws, made after the Base Date, which affect the Contractor in the performance of obligations under the Contract.
If the Contractor suffers (or will suffer)delay and/or incurs (or will incur) additional Cost as a result of these changes in the Laws or in such interpretations, made after the Base Date, the Contractor shall give notice to the Employer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost, which shall be added to the Contract Price.
After receiving this notice, he Employer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters.
13.8 Adjustments for Changes in Cost因成本改变的调整
If the Contract Price is to be adjusted for rises or falls in the cost of labour, Goods and other inputs to the Works, the adjustments shall be calculated in accordance with the provisions in the Particular Conditions.