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Mandatory Particular Conditions for FIDIC Red Book 1999


Legend:
M
Mandatory - required by the Romanian legislation in force
M*
Mandatory required by the Romanian legislation on public finances
M** Mandatory - required by the Romanian procurement act.

Clause

Legend

Provisions

Clause 1 - General Provisions


Sub-Clause 1.1 - Definitions
Sub-Clause 1.1.1 - The Contract
- Sub-Clause 1.1.1.1

M**

Delete Sub-Clause 1.1.1.1 and substitute:


Contract means the Contract Agreement, the Letter of Tender,
these Conditions, the Specification, the Drawings, the Schedules,
and the further documents (if any) which are listed in the Contract
Agreement.

- Sub-Clause 1.1.1.3

M**

Delete Sub-Clause 1.1.1.3

Sub-Clause 1.1.2 - Parties and Persons


Sub-Clause 1.1.3 - Dates, Tests, Periods and Completion
- New Sub-clause
1.1.3.10 - Taking-Over
Minutes upon
Completion

M
(see GD
273/1994)

Add new Sub-Clause 1.1.3.10:

- New Sub-clause
1.1.3.11 - Final TakingOver Minutes

M
(see GD
273/1994)

Add new Sub-Clause 1.1.3.11:

Taking-Over Minutes upon Completion of Works means the


minutes issued and signed in accordance with the Applicable
Laws by a taking-over commission appointed by the Employer, at
the Engineers request, recommending or not the taking-over of
the Works, Section or part (as the case may be) by the Employer
under Clause 10.

Final Taking-Over Minutes means the minutes issued and


signed in accordance with the Applicable Laws by a final takingover commission appointed by the Employer, at the Engineers
request, recommending or not the final taking-over of the Works,
Section or part (as the case may be) by the Employer under SubClause 11.9.

Sub-Clause 1.5 - Priority of Documents


M**
(see
article
95(2) of
GD
925/2006)

Delete Sub-Clause 1.5 and substitute:


The documents forming the Contract are to be taken as mutually
explanatory of one another. For the purposes of interpretation,
the priority of the documents shall be in accordance with the
following sequence:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)

the Contract Agreement,


the Letter of Tender,
the Particular Conditions,
these General Conditions,
the Specification,
the Drawings,
the Schedules, and
any other documents forming part of the Contract.

Addenda and memoranda shall have the order of precedence of


the documents they are modifying.
If an ambiguity or discrepancy is found, the Engineer has
authority to issue any instruction which he considers necessary to
resolve an ambiguity or discrepancy.
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Page 2 of 7

Clause

Legend

Provisions
If during the performance of the Contract certain items of the
Contractors technical offer turn out to be non-compliant with the
requirements provided in the Specifications, the requirements
provided in the Specifications shall prevail.

Sub-Clause 1.6 - Contract Agreement


M**
(see GO
34/2006)

Delete first sentence of Sub-Clause 1.6.

Clause 3 - The Engineer


Sub-Clause 3.1 - Engineer's Duties and Authority
M
see Law
10/1995
and Law
500/2002)

Insert at the end of Sub-Clause 3.1:


The Engineer shall obtain the specific approval of the
Employer before taking action under the following Sub-Clauses
of these Conditions:
(a) Sub-Clause 10.1: Specific approval of the Employer is
required before issuing any Taking-Over Certificate;
(b) Sub-Clause 11.9: Specific approval of the Employer is
required before issuing the Performance Certificate;
(c)

Sub-Clause 13.1: Specific approval of the Employer is


required before instructing or approving any Variation that
would cause the Contract Price to exceed the Accepted
Contract Amount or any contract amount subsequently
agreed upon by the Employer and the Contractor in
addenda to the Contract.

Clause 4 - The Contractor


Sub-Clause 4.2 - Performance Security
M**
(see
article
87(b) of
GD
925/2006)

Delete the first sentence of the second paragraph of Sub-Clause 4.2


and substitute:

M**
(see
article
92(4) of
GD
925/2006)

Delete the last paragraph of Sub-Clause 4.2 and substitute:

The Contractor shall deliver the Performance Security to the


Employer within 15 days after the signature of the Contract
Agreement and shall send a copy to the Engineer.

The Employer shall release/return the Performance Security to


the Contractor as follows:
i.

70% of the amount of the Performance Security within 14


days after the date of the Taking-Over Minutes upon
Completion of Works provided that no claim under the
Performance Security has been made by the Employer until
such date and subject to the issuance of the Taking-Over
Certificate;

ii.

30% of the amount of the Performance Security, upon the


issuance of the Performance Certificate provided that no
claim under the Performance Security has been made by
the Employer until such date.

Sub-Clause 4.4 - Subcontractors


M**
(see
article
96(1) of
GD
925/2006)

Add the following paragraphs after the first paragraph of Sub-Clause


4.4:
If parts of the Works are to be performed by one or more
Subcontractors, the Contractor shall, at the signature of the
Contract Agreement, provide the Employer with the subcontracts

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Page 3 of 7

Clause

Legend

Provisions
signed by the Contractor with the Subcontractors designated in
the Tender. Such subcontracts shall comply with the terms of the
Tender and shall constitute Schedules to the Contract.
The Contractor shall not be entitled to replace any of the
Subcontractors designated in the Tender without the prior
consent of the Engineer.

Clause 8 - Commencement, Delays and Suspension


Sub-Clause 8.1 - Commencement of Work
M**

In the second sentence of the first paragraph of Sub-Clause 8.1 delete


Letter of Acceptance and substitute Contract Agreement.

Clause 10 - Employer's Taking Over


Sub-Clause 10.1 - Taking-Over Certificate
M

Add at the end of the second paragraph of Sub-Clause 10.1:

(see Law
10/1995
and GD
273/1994)
M

The Engineer shall request the Employer to nominate a takingover commission that acting in accordance with the Applicable
Laws shall issue and sign the Taking-Over Minutes upon
Completion of Works.
Delete first sentence of third paragraph and substitute:
Subject to the Employers decision based on the
recommendation provided in the Taking-Over Minutes upon
Completion of the Works, the Engineer shall, within 56 days after
receiving the Contractors application:

Delete last paragraph of sub-clause 10.1.

Sub-Clause 10.2 - Taking-Over of Parts of the Works


M

Delete first paragraph of Sub-Clause 10.2 and substitute:

(see Law
10/1995
and GD
273/1994)

The Engineer may, at the sole discretion of the Employer, issue


a Taking-Over Certificate for any part of the Permanent Works,
provided that such part is physically and functionally
independent.
Delete second paragraph of Sub-Clause 10.2 and substitute:
The Employer shall not use any part of the Works (other than as
a temporary measure which is either specified in the Contract or
agreed by both Parties) unless and until the Engineer has issued
a Taking-Over Certificate for this part. However, if the Employer
does use any part of the Works before the Taking-Over
Certificate is issued, the Contractor shall cease to be liable for the
care of such part as from this date, when responsibility shall pass
to the Employer.

Clause 11 - Defects Liability


Sub-Clause 11.1 Completion of Outstanding Work and Remedying Defects
M

Delete sub-paragraph (b) of Sub-Clause 11.1 (b) and substitute:

(see Law
10/1995
and GD
273/1994)

"(b) execute all work required to remedy any defects, either


apparent or latent, or damage, as may be notified by (or on
behalf of the Employer) on or before the expiry date of the
Defects Notification Period for the Works or Section (as the
case may be).

Sub-Clause 11.9 - Performance Certificate


M

Delete second paragraph of Sub-Clause 11.9 and substitute:

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Page 4 of 7

Clause

Legend

Provisions

(see Law
10/1995
and GD
273/1994)

Subject to the Employers decision based on the


recommendation provided in the Final Taking-Over Minutes, the
Engineer 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 Contractors Documents and completed and tested all the
Works, including remedying any defects. A copy of the
Performance Certificate shall be issued to the Employer.

Sub-Clause 11.10 - Unfulfilled Obligations


M

Add new paragraph:


The issuing of the Performance Certificate by the Engineer shall
be without prejudice to the Contractors liability for the latent
defects of the Works during the periods of liability imposed by the
Applicable Laws.

Clause 13 - Variations and Adjustments


Sub-Clause 13.5 - Provisional Sums
M**

Add at the end of Sub-Clause 13.5:


When purchasing Plant, Materials or services pursuant to subparagraph (b) other than from a nominated Subcontractor (as
defined in Clause 5 [Nominated Subcontractors], the Contractor
shall comply with public procurement regulations under the
Applicable Laws.

Clause 14 - Contract Price and Payment


Sub-Clause 14.1 - The Contract Price
M

Add at the end of Sub-Clause 14.1:


The Engineer shall notify the Employer and the Contractor
whenever he acknowledges that the Contract Price exceeds the
Accepted Contract Amount or any contract amount subsequently
agreed upon by the Employer and the Contractor in addenda to
the Contract.

Sub-Clause 14.2 - Advance Payment


M*
(see
article 52
of Law
500/2002
and GD
264/2003,
subject to
the
provisions
of Article 8
thereof)

Delete Sub-Clause 14.2 and substitute:


The Employer shall make interest-free advance payments in
view of the execution of the Works, when the Contractor submits
guarantees in accordance with this Sub-Clause. The total of each
advance payment, the number and timing of instalments (if more
than one) and the applicable currencies and proportions, shall be
stated in the Appendix to Tender.
Unless and until the Employer receives the relevant guarantees,
or if the total of each advance payment is not stated in the
Appendix to Tender, this Sub-Clause shall not apply.
The Engineer shall issue an Interim Payment Certificate for the
first instalment of each advance payment after receiving a
Statement (under Sub-Clause 14.3 [Application for Interim
Payment Certificates]) and after the Employer receives (i) the
Performance Security in accordance with Sub-Clause 4.2
[Performance Security] and (ii) a guarantee in amounts and
currencies equal to the advance payment. This guarantee shall
be issued by a bank and from within a country (or other
jurisdiction) approved by the Employer, and shall be in the form
annexed to the Particular Conditions or in another form approved
by the Employer.

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Clause

Legend

Provisions
The Contractor shall ensure that each relevant guarantee is valid
and enforceable until the advance payment has been repaid, but
its amount may be progressively reduced by the amount repaid
by the Contractor as indicated in the Payment Certificates. If the
terms of a guarantee specify its expiry date, and the advance
payment has not been repaid by the date 28 days prior to the
expiry date, the Contractor shall extend the validity of such
guarantee until the advance payment has been repaid.
Each advance payment shall be repaid through deductions from
the Payment Certificates until the end of the relevant year.
Deductions shall be made in such amounts as the Contractor
may from time to time notify to the Engineer provided that each
advance payment shall be repaid in full until the end of the
relevant year.
If an advance payment has not been repaid until the end of the
relevant year, the whole of the balance then outstanding shall
immediately become due and payable by the Contractor to the
Employer. The Employer shall also be entitled to penalties related
to such balance at the rate provided for budgetary debts under
the Applicable Laws and calculated over the period between the
receipt and the repayment of the relevant advance payment by
the Contractor.
If the advance payment has not been repaid prior to the issue of
the Taking-Over Certificate for the Works or prior to termination
under Clause 15 [Termination by Employer], Clause 16
[Suspension and Termination by Contractor] or Clause 19 [Force
Majeure] (as the case may be), the whole of the balance then
outstanding shall immediately become due and payable by the
Contractor to the Employer.

Sub-Clause 14.5- Plant and Materials intended for the Works


M*
(see
article 52
of Law
500/2002)

Delete third paragraph of Sub-Clause 14.5 and substitute:


The Engineer shall determine and certify each addition if the
following conditions are satisfied:
(a)

the Contractor has:


(i)

kept satisfactory records (including the orders, receipts,


Costs and use of Plant and Materials) which are available
for inspection, and

(ii)

submitted a statement of the Cost of acquiring and


delivering the Plant and Materials to the Site, supported
by satisfactory evidence;

and
(b)

the relevant Plant and Materials:


(i)

are those listed in the Appendix to Tender for payment


when delivered to the Site, and

(ii)

have been delivered to and are properly stored on the


Site, are protected against loss, damage or
deterioration, and appear to be in accordance with the
Contract.

Sub-Clause 14.6 - Issue of Interim Payment Certificates


M

Add a new paragraph at the end of Sub-Clause 14.6:


Notwithstanding the provisions of Sub-Clause 2.5 [Employer's
Claims], the Employer shall be entitled to correct arithmetical
errors in any Payment Certificate.

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Clause

Legend

Provisions

M*

Add a new paragraph at the end of Sub-Clause 14.6:

(see Law
500/2002)

Without prejudice to any other rights of the Contractor under the


Contract or otherwise, the Engineer may not issue an Interim
Payment Certificate that would cause the aggregate amounts
certified for payment to exceed the Accepted Contract Amount or
any contract amount subsequently agreed upon by the Employer
and the Contractor in addenda to the Contract.

Sub-Clause 14.7 - Payment


M

Add before the first paragraph of Sub-Clause 14.7:


Within 7 days from the issuing of the Payment Certificate by the
Engineer, the Contractor shall issue an invoice to the Employer for
the amount specified in the corresponding Payment Certificate.

Delete sub-paragraph (a) of Sub-Clause 14.7.

Delete sub-paragraph (b) of Sub-Clause 14.7 and substitute:


"(b) the amount specified in each invoice corresponding to each
Interim Payment Certificate within 28 days after issuance by
the Contractor of such invoice.

Delete letter (c) of first paragraph of Sub-Clause 14.7 and substitute:


"(c) the amount specified in the invoice corresponding to the Final
Payment Certificate within 56 days after issuance by the
Contractor of such invoice.

Sub-Clause 14.8 - Delayed Payment


M

Delete the last paragraph of Sub-Clause 14.8 and substitute:


The Contractor shall be entitled to this payment, against
submission of an invoice, without any other formal notice or
certification, and without prejudice to any other right or remedy.

Sub Clause 14.13- Issue of Final Payment Certificate


M

Add a new paragraph at the end of Sub-Clause 14.13:


Without prejudice to any other rights of the Contractor under the
Contract or otherwise, the Engineer may not issue the Final
Payment Certificate if the aggregate amounts certified for payment
exceed the Accepted Contract Amount or any contract amount
subsequently agreed upon by the Employer and the Contractor in
addenda to the Contract.

Clause 15 - Termination by Employer


Sub-Clause 15.2 - Termination by Employer
M

Delete the last two sentences of last paragraph of Sub-Clause 15.2

Clause 16 - Suspension and Termination by Contractor


Sub-Clause 16.2 - Termination by Contractor
M

Delete sub-paragraph (e) of Sub-Clause 16.2 and substitute:


"(e) the Employer
[Assignment].

fails

to

comply

with

Sub-Clause

1.7

Clause 18 - Insurance
Sub-Clause 18.1 - General Requirements for Insurance
M

In the second sentence of the second paragraph of Sub-Clause 18.1


delete Letter of Acceptance and substitute Contract Agreement.

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Clause

Legend

Provisions

Clause 20 - Claims, Disputes and Arbitration


Sub-Clause 20.2 - Appointment of the Dispute Adjudication Board
M**

Delete Letter of Acceptance and substitute Contract Agreement.

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