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TENDER DOCUMENTS

For the Procurement of

ROAD REHABILITATION VI PROJECT, LOT E, CONTRACT 6R14

VOLUME II - THE CONTRACT

March 2009

GOVERNMENT OF ROMANIA

Romanian National Company of Motorways and National Roads

Volume II – The Contract 1

THE TENDER DOCUMENTS

VOLUME I

Section I Invitation to Tender

Section II Instructions to Tenderers

Section III Tender Data

Section IV Letter of Tender, Letter of Discount, Appendix to Tender, Tender Security, Tender Submission Forms

VOLUME II

Section V Draft Contract Agreement General Conditions of Contract

Section VI Particular Conditions of Contract

Section VII Form of Agreement, Forms of Performance Security, Advance Payment Guarantee, Retention Money Guarantee

VOLUME III

Section VIII Employer’s Requirements

Section IX Annexes to the Employer’s Requirement

VOLUME IV

Section X Drawings

VOLUME V

Section XI Schedules

VOLUME VI

Section XII Informatory Data


VOLUME II -TABLE OF CONTENTS

THE TENDER DOCUMENTS ....................................................................................................................................... 1 VOLUME II -TABLE OF CONTENTS......................................................................................................................... 2 CONTRACT AGREEMENT .......................................................................................................................................... 3 SECTION V: GENERAL CONDITIONS OF CONTRACT........................................................................................ 5

INTRODUCTION ............................................................................................................................................................... 5 GENERAL CONDITIONS OF CONTRACT ............................................................................................................................ 5

SECTION VI: PARTICULAR CONDITIONS OF CONTRACT ............................................................................... 6 1. GENERAL PROVISIONS............................................................................................................................................ 6 2. THE EMPLOYER...................................................................................................................................................... 8 3. THE ENGINEER ....................................................................................................................................................... 8 4. THE CONTRACTOR ................................................................................................................................................. 9 5. DESIGN................................................................................................................................................................. 12 6. STAFF AND LABOUR ............................................................................................................................................. 13 8. COMMENCEMENT, DELAYS AND SUSPENSION ...................................................................................................... 14 13. VARIATIONS AND ADJUSTMENTS ..................................................................................................................... 15 14. CONTRACT PRICE AND PAYMENT .................................................................................................................... 18 15. TERMINATION BY THE EMPLOYER ................................................................................................................... 20 16 SUSPENSION AND TERMINATION BY CONTRACTOR.......................................................................................... 22 18 INSURANCE ...................................................................................................................................................... 22

SECTION VII: FORMS................................................................................................................................................. 23 FORM OF PERFORMANCE SECURITY - DEMAND GUARANTEE..................................................................... 23 FORM OF ADVANCE PAYMENT GUARANTEE ................................................................................................... 24 FORM OF RETENTION MONEY GUARANTEE ..................................................................................................... 25


DRAFT CONTRACT AGREEMENT 6R14, DN15A REGHIN-SARATEL and DN15 TARGU MURES-

REGHIN This Agreement made the ……………………. day of ……………………. between the Romanian National

Company of Motorways and National Roads of 38, Dinicu Golescu, Bucharest, Romania, (hereinafter called

“the Employer”) of the one part, and …………………. of …………………. (hereinafter called the

“Contractor”) of the other part.

Whereas the Employer desires that the Works known as ROAD REHABILITATION VI PROJECT, LOT E,

CONTRACT 6R14 should be designed and executed by the Contractor, and has accepted a Tender by the

Contractor for the design, execution and completion of these Works and the remedying of any defects

therein,

The Employer and the Contractor agree:

1. In this Agreement words and expressions shall have the same meanings as are respectively assigned to

them in the Conditions of the Contract hereinafter referred to.

2. The following documents shall be deemed to form and be read and construed as part of this

Agreement:

a - the Contract Agreement

b - the Letter of Acknowledgement

c - Memorandum of Contract Clarifications

d - the Letter of Award

e - the Letter of Tender and Appendix to Tender

f - the Addenda means Clarification Letters and Circular Letters

g - the Particular Conditions of Contract

h - the General Conditions of Contract

i - the Employer’s Requirements;

j - the Completed Schedules, and

k - the Contractor’s Proposal.

l - In consideration of the payments to be made by the Employer to the Contractor as hereinafter

mentioned, the Contractor hereby covenants with the Employer to design, execute and complete the

Works and remedy any defects therein, in conformity with the provisions of the Contract.


m - The Employer hereby covenants to pay the Contractor, in consideration of the design and execution

and completion of the Works and the remedying of defects therein, at the times and in the manner

prescribed by the Contract, the Accepted Contract amount of:

…………………………………………….…………………………….… (excluding VAT) or such

other sum as may be determined in accordance with the Contract.

In Witness whereof the parties hereto have caused this Agreement to be executed the day and year first

before written in accordance with their respective laws.

SIGNED by: SIGNED by:

Name: Name:

For and on behalf of the Employer in the presence of:

For and on behalf of the Contractor in the presence of:

Witness: Witness:

Name: Name:

Address: Address:

Date: Date:

SIGNED by:

Name:

For and on behalf of the Employer

SIGNED by:

Name:


SIGNED by:

Name:



SECTION V: GENERAL CONDITIONS OF CONTRACT

Introduction

The Conditions of Contract comprise the “General Conditions”, which form part of the “Conditions of Contract for Plant and Design-Build” First Edition 1999 published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC), and the “Particular Conditions" which include amendments and additions to such General Conditions.

General Conditions of Contract

The General Conditions are not reproduced in this document but may be obtained from their publisher, FIDIC.

Contact details for FIDIC are:

International Federation of Consulting Engineers (Federation Internationale des Ingénieurs-Conseils) Box 311, CH-1215, Geneva 15, Switzerland

Phone: +41-22-799 49 00 Fax +41-22-799 49 01

[email protected] www.fidic.org

mailto:[email protected]

http://www.fidic.org/


SECTION VI: PARTICULAR CONDITIONS OF CONTRACT

These Particular Conditions are set out hereunder. The Clauses shall be read in conjunction with FIDIC "Conditions of Contract for Plant and Design-Build” First Edition 1999. The clause numbers in these Particular Conditions correspond to, or are in addition to, those used in the General Conditions. These Particular Conditions supplement, make explicit, amend or derogate the contract conditions set out in the General Conditions.

1. General Provisions

1.1 Definitions

1.1.1.3 Letter of Acceptance

Delete all of Sub-Clause 1.1.1.3 and replace:

“1.1.1.3 a) “Letter of Award” means the letter signed and issued by the Employer that advises the Employer’s intention to accept the Letter of Tender, including any annexed memoranda comprising agreements between and signed by both parties.

b) “Letter of Acknowledgement” means the letter signed and issued by the Employer that provides the draft Contract Agreement to the successful tenderer c) The expression “Letter of Acceptance” means the Contract Agreement which includes any annexed memoranda comprising agreements between and signed by both Parties, and the date of issuing or receiving the Letter of Acceptance means the date of signing the Contract Agreement.”

1.1.2 Parties and Persons

Add to the end of Sub-Clause 1.1.2:

“1.1.2.11 “Bank” means the European Investment Bank.”

1.1.5 Works and Goods


“1.1.5.9 “Utility” means overhead, surface or sub-surface apparatus for the distribution of services such as oil, gas, water, electricity, sewage, telephone, etc., that may be either publicly or privately owned.”

1.1.6 Other Definitions


“1.1.6.10 “Authorisation for Construction” means the legal approval to commence Permanent Works on Site in accordance with Romanian legislation and known in Romanian as “Autorizatia de Construire”, to be obtained by the Contractor on behalf


of and in the name of the Employer.

1.5 Priority of Documents

Delete items (b), (c), (d), (e), (f), (g), (h) of Sub-Clause 1.5 and substitute:

a) the Contract Agreement

b) the Letter of Acknowledgement

c) Memorandum of Contract Clarifications

d) the Letter of Award

e) the Letter of Tender and Appendix to Tender

f) the Addenda means Clarification Letters and Circular Letters

g) the Particular Conditions of Contract

h) the General Conditions of Contract

i) the Employer’s Requirements;

j) the Completed Schedules, and

k) the Contractor’s Proposal.

and any other documents forming part of the Contract “

Sub-Clause 1.12 Confidential Details

Add to the end of Sub-Clause 1.12:

“The Contractor shall not publish, permit to be published, or disclose any particulars of the Works in any trade or technical paper or elsewhere without the previous consent in writing of the Employer. However, the Contractor shall be permitted to disclose any publicly available information, or information otherwise required to establish his qualifications to compete for other projects.

If any dispute arises as to the necessity of any publication or disclosure for the purpose of the Contract the same shall be referred to the decision of the Employer whose decision shall be final.”

1.13 Compliance with Laws

Add to the first paragraph of Sub-Clause 1.13 :

“(c) the Contractor shall undertake all activities and prepare all documentation necessary to enable the Employer to acquire the Authorisation for Construction and all associated approvals and permissions necessary to commence and proceed with the construction of the Works.”

1.14 Joint Several Liability

Add to the end of Sub-Clause 1.14 :


“The leader shall be authorised by these persons to receive instructions and payment for and on behalf of each and all of them.”

2. The Employer

2.1 Right of Access to the Site

Delete the second sentence of the first paragraph of Sub-Clause 2.1 and replace:

“The right and possession shall not be exclusive to the Contractor. The Contractor shall maintain vehicular and pedestrian traffic flow for the public, owners and occupiers of adjacent property, and Utility owners and operators throughout the construction of the Works.” The transfer of such land shall comply with the Romanian Legislation.”


“The Contractor shall not acquire any land or any rights in respect of any land required for the Works without the prior written consent of the Employer. The ownership of any land, other than that acquired under Sub-Clause 4.27 [Land Acquisition], together with any rights in respect of any land acquired by the Contractor through his choice and which has subsequently been included in the Permanent Works shall, upon request by the Employer, be transferred to the Employer free of charge and without encumbrances. On completion of such a transfer the Employer shall give the Contractor right of access to this land in accordance with the provisions of this Sub-Clause 2.1.”

2.4 Employer’s Financial Arrangements Delete “28” in the first line of the Sub-Clause 2.4 and substitute:

“120”

3. The Engineer

3.1 Engineer’s Duties and Authority


“The Engineer shall obtain the approval of the Employer before taking action under the following Sub-Clauses of these Conditions:

(a) Sub-Clause 8.4 [Extension of Time for Completion] (and any other Sub-Clause of these Conditions giving entitlement to extension of time): agreeing or determining an extension of time;

(b) Sub-Clause 8.8 [Suspension of Work]: suspending the progress of all or part of the Works;

(c) Clause 10 [Employer’s Taking Over]: issuing any Taking Over Certificate;


(d) Sub-Clause 11.9 [Performance Certificate]: issuing the Performance Certificate;

(e) Sub-Clause 13.1 [Right to Vary]: instructing a Variation or determining prices in respect of variations, except in case of an emergency;

(f) Sub-Clause 20.1 [Contractor’s Claims]: agreeing or determining additional payments to the Contractor including any costs associated with an extension of the Time for Completion.

(g) The Engineer shall act as and carry out the obligations of the design verifier (verificator de proiecte) in accordance with the provisions of Romanian Law.

(h) The Engineer shall advise the Employer within 5 days of any occurrence relating to the application of Sub-Clause 2.5 or where there is potential for additional costs to be incurred by the Employer, as contained within the following sub-clauses:

4.2, 4.19, 4.20, 4.21, 4.23, 4.25, 6.5, 7.5, 7.6, 8.3, 8.6, 8.7, 9.4, 11.3, 11.4, 12.3, 13.2, 14.4 15.4, 16.2, 18.1, 18.2.

Notwithstanding the obligations, as set out above to obtain approval, if, in the opinion of the Engineer, an emergency occurs affecting the safety of life or of the Works or of adjoining property, he may, without relieving the Contractor of any of his duties and responsibility under the Contract, instruct the Contractor to execute all such work or to do all such things as may, in the opinion of the Engineer, be necessary to abate or reduce the risk. The Contractor shall forthwith comply, despite the absence of approval of the Employer, with any such instruction of the Engineer. The Engineer shall determine an addition to the Contract Price, in respect of such instruction, in accordance with Clause 13 [Variations and Adjustments] and shall notify the Contractor accordingly, with a copy to the Employer.”

4. The Contractor 4.1 Contractor’s General Obligations Add the following paragraph at the end of Sub-Clause 4.1:

Within 48 days from the signing of the Contract, the Contractor shall submit to the Employer, two originals of the Romanian legal translation of the following documents:


a) the Contract Agreement

b) the Letter of Acknowledgement

c) Memorandum of Contract Clarifications

d) the Letter of Award

e) the Letter of Tender and Appendix to Tender

f) the Addenda means Clarification Letters and Circular Letters

g) the Particular Conditions of Contract

h) the General Conditions of Contract

i) the Employer’s Requirements;

j) the Completed Schedules, and

k) the Contractor’s Proposal.

and any other documents forming part of the Contract “

4.2 Performance Security

Delete from the second line of the second paragraph of Sub-Clause 4.2 “Letter of Acceptance” and substitute:

“Letter of Acknowledgement”

Add to end of second paragraph of Sub-Clause 4.2:

“The Performance Security shall be in the form of a bank guarantee and shall be issued either (a) by a bank located in the Country, or (b) directly by a foreign bank acceptable to the Employer.”

4.3 Contractor’s Representative


“If the Contractor’s Representative is not, in the opinion of the Engineer, fluent in English, the Contractor shall have available on Site at all times a competent interpreter to ensure the proper transmission of instructions and information”

The Contractor’s Representative shall attend monthly progress meetings with the Engineer to review progress and the arrangements for future work. The Contractor’s Representative shall make a presentation of the monthly progress report prepared in accordance with Sub-Clause 4.21 (Progress Reports) at the monthly progress meeting.”

4.4 Subcontractors


“The Contractor shall not subcontract work with an aggregate value in excess of that


stated in the Appendix to Tender.

The Prior consent of the Engineer shall not be required if the value of a proposed Subcontract is less than two percent (2%) of the Accepted Contract Amount.”

4.21 Progress Reports


“(i) a forecast of future cash flow based upon the programme of work submitted in

accordance with Sub-Clause 8.3 [Programme], showing the Contractor’s estimate of all future applications for payment.

If the Contractor fails to submit any progress report within the time stated in the Contract, or fails to submit the progress report in the form indicated, or fails to submit a complete progress report acceptable to the Engineer, a penalty equal to that indicated Appendix to Tender shall be applied from the date on which the compliant documents should have been submitted until the date when a satisfactory progress report is submitted.”

4.23 Contractor’s Operations on Site

Add the following paragraph to the end of Sub-Clause 4.23:

“If the Contractor fails to comply with the provisions of this Sub-Clause or those relating to “Clean-Up During Construction” as detailed in the Employer’s Requirements, a penalty equal to that indicated in the Appendix to Tender shall be applied from the date on which the Engineer served notice to clean the Site until the date when the related obligations are fulfilled by the Contractor.”

4.24 Fossils

Add after the first sentence of the first paragraph of Sub-Clause 4.24:

“In accordance with Romanian Law any items found are the property of Romania. The Contractor shall hand over any such items to the Romanian authorities as instructed by the Engineer.”

“ The Contractor should engage the services of an expert archaeological company for the performance of all necessary investigation of archaeological sites including the preparation of special reports, obtaining licences, authorisations, design certificates, etc., and the supervision of the construction works within archaeological sites. “

4.25 Traffic Management

Add new Sub-Clause 4.25:

“4.25 Traffic Management

Within 28 days of the Commencement Date or in any case prior to commencement of the Works on any section of the Site, the Contractor shall submit to the Engineer for his agreement a “Traffic Management Plan” that comprehensively describes the Contractor’s proposed traffic management measures. The Contractor shall submit the Traffic Management Plan for the approval of all of the relevant authorities including RNCMNR (Road Safety Office), the relevant Regional Directorate of the


RNCMNR, and the police prior to commencing work in any section of the Site.

Whenever the previous Traffic Management Plan is inconsistent with the traffic management measures that the Contractor proposes the Contractor shall agree revised traffic management proposals with the Engineer and the relevant authorities and submit a revised, approved Traffic Management Plan to the Engineer prior to commencement of the Works on that section of the Site.

If the Contractor fails to submit an acceptable Traffic Management Plan within the time prescribed in the Contract or fails at any time to comply with the provisions of the approved Traffic Management Plan the amount stated in the Appendix to Tender shall be withheld from payments due to the Contractor and shall remain withheld until such time as compliance is demonstrated”

4.26 Right to Audit


“4.26 Right to Audit

The Contractor shall permit, without condition, the Bank to inspect their accounts and records and other documents relating to the tender submission and Contract performance and to have them audited by auditors appointed by the Bank.”

4.27 Land Acquisition


“4.27 Land Acquisition

“The Contractor shall carry out and be responsible for all necessary actions, on behalf of the Employer, to complete the expropriation of the land required for the Works as indicated on the Land Plans provided in Section X: Drawings, and in accordance with the provisions of the Law on Land expropriation in force (No. 198/2004, Government Emergency Ordinance no. 75/2007, Law No. 184/2008 etc.) and the Employer’s Requirements. Where necessary the Contractor shall obtain the approval of prospective sellers of land scheduled for expropriation where such approval is required for the Authorisation for Construction.

The Contractor’s actions on behalf of the Employer shall also include the provision of legal consulting services, legal assistance, and representations before legal courts and other authorities necessary for the acquisition of land or resolution of disputes arising from acquisition procedures.

The Contractor shall act for the Employer, so far as is legally possible, in respect of the Employer obtaining the decision of the Government (known in Romanian as “Hotarare de Guvern”) for the expropriations, and in facilitating payment to landowners.

When programming the Works, the Contractor shall allow for and take account of the completion of the Land Acquisition procedures. In addition the Contractor shall allow in his programming a period of at least 90 days between the submission of all necessary documentation and the publication of the decision of the Government.”

5. Design

5.1 General Design Obligations

Add to the end of the first sentence of the first paragraph of Sub-Clause 5.1:


“whether or not he adopts aspects of the illustrative design.”


“The Contractor shall act as and carry out the obligations of the designer (proiectant) in accordance with the provisions of Romanian Law.”

5.2 Contractor’s Documents

Delete the first sentence in the third paragraph of Sub-Clause 5.2 and substitute:

“If the Employer’s Requirements describe the Contractor’s Documents which are to be submitted to the Engineer for review and/or for approval, they shall be submitted accordingly. Once approved by the Engineer the Contractor’s Documents shall be submitted by the Contractor to the Technical and Economic Committee (TEC) of the Romanian National Company of Motorways and National Roads (RNCMNR) for its approval. Notices as described below shall accompany both submissions. In the following provisions of this Sub-Clause (i) “review period” means the period required by the Engineer and the period required by the TEC for the review and (if specified) for approval, and (ii) “Contractor’s Documents” exclude any documents which are not specified as being required to be submitted for review and/or for approval.”

Delete from the first sentence of the fourth paragraph of Sub-Clause 5.2 “21 days” and substitute:

“30 days,”

5.3 Contractor’s Undertaking


“The Contractor shall be responsible for ensuring that all necessary aspects of the design for the Works are to a standard that can be verified by the Engineer, acting as the design verifier (verificator de projecte).”

“In addition the Contractor shall be responsible for insuring that all necessary aspects of the Design for the Works shall meet the approval of the TEC of RNCMNR.”

6. Staff and Labour 6.4 Labour Laws Add to the second line of the first paragraph of Sub-Clause 6.4 after “employment”:

“working hours”

6.5 Working Hours


“Through the provisions of Sub-Clause 8.3 [Programme] the Contractor will advise


the Engineer of the Contractor’s scheduled working hours for each week and each month of the Contract such that the Engineer may be able to plan and ensure the continuity of the supervision of the Works at all stages of the Contract. The Engineer shall provide copies of the scheduled working hours of the supervision staff to both the Contractor and the Employer.”

6.10 Records of Contractor’s Personnel and Equipment

In the second sentence of Sub-Clause 6.10 replace “calendar month” with “week”.

7. Plant, Materials and Workmanship

7.2 Samples

Add to Sub-Clause 7.2:

“(c) all certification of materials and processes as agreed by the relevant approving authorities, such as “agreement certification etc.”

8. Commencement, Delays and Suspension

8.3 Programme

Delete from the first paragraph of Sub-Clause 8.3 the three sentences:

“The Contractor shall submit a detailed time programme to the Engineer within 28 days after receiving the notice under Sub-Clause 8.4 [Commencement of Works]. The Contractor shall also submit a revised programme whenever the previous programme is inconsistent with actual progress or with the Contractor’s Obligations. Each programme shall include:”

and replace with the following:

“The Contractor shall submit a detailed time programme to the Engineer within 28 days of the Commencement Date. This programme shall be updated with subsequent programmes on a monthly basis. The Contractor shall also submit a revised programme whenever the previous programme is inconsistent with actual progress or with the Contractor’s obligations. The Programme shall comply with the specifications contained in the Employer’s Requirements. The Contractor shall incorporate into the Programme the End Stage Milestones indicated in the Employers requirements”

Add the following to the first paragraph of Sub-Clause 8.3:

“(e) all dates, times and milestones specified in the Contract, in particular the Commencement Date and the Time for Completion,

(f) when the Contractor plans to complete the Works,

(g) the logical links and dependencies between activities,


(h) the critical path or paths,

(i) the dates by which the Contractor requires any information or anything else which the Employer is required to provide to the Contractor, including access dates for various sections of the Site,

All subsequent overall programmes shall show, in addition to the above:

(j) actual progress achieved on each activity and the effect that this has on all outstanding work, and

(k) any change to the Time for Completion resulting from an Extension of Time awarded by the Engineer.

Add before the last sentence of the second paragraph of Sub-Clause 8.3:

“The Contractor shall provide weekly updates of the programme to the Engineer confirming the time, place and nature of each activity to be undertaken on Site during the subsequent week.”

Add to the end of the last paragraph of Sub-Clause 8.3:

“within 7 days.”

Add the following paragraph to the end of Sub-Clause 8.3:

“If the Contractor fails to submit any programme within the time prescribed in the Contract a penalty equal to that stated in the Appendix to Tender shall be applied from the date on which the programme should have been submitted until such time as a satisfactory programme is submitted.”

8.4 Extension of Time for Completion Delete sub-paragraph (c) of Sub-Clause 8.4 and substitute:

“(c) exceptionally adverse climatic conditions having direct influence on the progress of the Works, occurring between the months of March and November, inclusive defined as temperatures, precipitation and/or wind conditions which are defined as climatic conditions more severe than the 10 year monthly average plus or minus twice the 10 year monthly standard deviation, measured by ANM (National Administration of Meteorology) at the nearest meteorogical station where climatic conditions are comparable to those at the Site. The assessment of the applicable time shall be restricted to the actual time in days derived from the statistical analysis and shall not include any additional days considered necessary for improvement of site conditions affected by the exceptionally adverse climatic conditions. Each of the three climatic conditions: temperature; precipitation; wind shall be considered separately and not jointly in assessing whether or not any day qualifies as one subject to exceptionally adverse climatic conditions.”

8.6 Rate of Progress Add after the final paragraph of Sub-Clause 8.6:


“The Contractor shall submit to the Engineer work schedules covering each week and month of the Contract execution. Shortfalls in any activities observed at the end of a scheduled weekly or monthly period shall be addressed in the subsequent schedule to the extent that full rectification of each shortfall is achieved in the subsequent period, or failing that the Contractor shall justify in writing to the Engineer the reasons why rectification cannot be achieved. When progress in any listed activity within a monthly period fails to achieve a minimum of 80% of the scheduled amount/quantity and the Contractor, following a written notice from the Engineer to provide justification for the shortfall, has in the opinion of the Engineer failed to provide just cause for the referenced shortfall, a penalty equal to that indicated in the Appendix to Tender shall be applied.”

10. Employer’s Taking Over 10.1 Taking Over of the Works and Sections Insert the following after the second paragraph of Sub-Clause 10.1:

“The procedures for taking over the Works and Sections shall complement that required by Romanian Legislation and in particular the requirements of Government Decision HG273/1994.”

Delete from the last paragraph of Sub-Clause 10.1 “on the last day of that period.” and substitute:

“five working days after the expiry of the 28 day period.” 10.2 Taking Over of Parts of the Works Add after the first paragraph of Sub-Clause 10.2:

“The procedures for Taking-over of Parts of the Works shall complement that required by Romanian Legislation and in particular the requirements of Government Decision HG273/1994.”

11. Defects Liability 11.1 Completion of Outstanding Work and Remedying Defects Add after the second paragraph of Sub-Clause 11.1:

“The completion of outstanding works, the remedying of defects and the final reception of the completed Works shall accord with the relevant Romanian Legislation and in particular the requirements of Government Decision HG273/1994.”

11.3 Extension of Defects Notification Period Add to the first paragraph of Sub-Clause 11.3 after “the Defects Notification Period for the Works”:


“a major portion of the works”

Add to the second paragraph of Sub-Clause 11.3:

“If the Contractor fails to remedy any defect or damage by the date notified under Sub-Clause 11.4 then the Defects Notification Period shall be extended from the date on which the notice to remedy was given under Sub-Clause 11.4 [Failure to Remedy Defects] until the date the remediation has been completed by the Employer. Where adjustments or modifications are required under Sub-Clause 12.4 [Failure to Pass Tests after Completion], the Defects Notification Period shall be extended from the date on which the adjustment or modification was identified until the date of completion of the works relating to the adjustment or modification, or where the adjustment or modification concerns a major portion of the Works to a date agreed by the Employer. Should the Contractor fail to agree any extension of the Defects Notification Period then a Determination of the extension shall be sought through Sub-Clause 3.5 [Determinations.]”

13. Variations and Adjustments 13.8 Adjustments for Changes in Cost

Delete from the fourth paragraph of Sub-Clause 13.8 “(quoted in the fourth and fifth columns respectively of the table)” and replace with “(quoted in the last two columns of the table)”.

In the third sentence of the third paragraph after “ The formulae shall be of the following general type:” add on a new line: “Payments in RON:”

Replace the forth indented sub-paragraph of the third paragraph of Sub-clause 13.8 starting “ “Ln”, “En”, “Mn”, ….. are the current cost indices” with the following: “Ln”, “En”, “Mn”, ….. are the current cost indices or reference prices for period “n”, expressed in the relevant currency of payment , each of which is applicable to the relevant tabulated cost element “within the National Institute for Statistics Monthly Bulletin table for the month” ( to which the particular Payment Certificate relates ) ” After the fifth indented sub-paragraph of the third paragraph of Sub-clause 13.8 starting “ “Lo”, “Eo”, “Mo”, ….. are the base cost indices” add the following: “Payments in EURO:

Pn = a + b(HICPn/HICPo) Where: “Pn” is a price adjustment factor to be applied to the amount in EURO for the payment of the work carried out in the subject month n. “a” = 0.10, a constant representing the non adjustable portion in contractual payments “b” = 0.90, a constant representing the adjustable portion in contractual payments


“HICPn” is the current cost index, measured by the Harmonized European Index of Consumer Price (HICP) for month “n” determined pursuant to the table of adjustment data and prevailing on the day 49 days prior to the last day of the period to which a particular Interim Payment Certificate is related; and “HICPo” is the base cost index corresponding to the above cost index at the date specified in the table of adjustment data Adjustment formulae shall not be applied to Provisional Sums.”

14. Contract Price and Payment

14.2 Advance Payment

Delete the first sentence in the first paragraph of Sub-Clause 14.2, and replace:

“The Employer shall make advance payments for mobilisation and design when the Contractor submits a guarantee in accordance with this Sub-Clause, 14.2”

Add after the last sentence of the first paragraph of Sub-Clause 14.2:

“The Contractor shall pay value added tax (VAT) on the advance payments in accordance with Sub-Clause 14.16 [VAT].”

Add before the first sentence of the third paragraph of Sub-Clause 14.2:

“The Contractor shall make an application for interim payment through the issue of a Statement (under Sub-Clause 14.3 [Application for Interim Payment Certificates]) showing details of the amount of advance payment to which the Contractor considers himself entitled.”

14.3 Application for Interim Payment Certificates

Delete in the first line of Sub-Clause 14.3 “six copies to the Engineer” and replace with “four copies to the Engineer.”

Delete the text in sub-paragraph (c) of Sub-Clause 14.3 and replace with “not used”.


“Prior to submission of the first Statement the Contractor shall obtain (at his cost) a Retention Security in an amount equal to the retention for the forthcoming six-month period. The projected cash-flow prepared by the Contractor and submitted to the Engineer in accordance with Sub-Clause 4.21(Progress Reports) shall be used to determine the amount of the Retention Security. At appropriate intervals thereafter the amount of the Retention Security shall be progressively increased until the limit of retention stated in the Appendix to Tender is reached. The amount of the Retention Security shall always exceed the amount of retention money.

The Retention Security shall be issued by an entity and from within a country approved by the Employer, and shall be in the form annexed to these Particular Conditions or in another form approved by the Employer. The Contractor shall ensure that the Retention Security is valid and enforceable until the Contractor has executed


and completed the Works and remedied any defects, as specified for the Performance Security in Sub-Clause 4.2 (Performance Security).

If the Contractor fails to provide an acceptable Retention Security the amount to be deducted for retention shall be withheld and placed in a controlled account in accordance with the applicable Romanian legislation.

The Employer shall return the Retention Security to the Contractor within 21 days after receiving a copy of the Performance Certificate.”

14.4 Schedule of Payment

Delete the last paragraph of Sub-Clause 14.4 and replace:

“Prior to commencing construction of the Permanent Works, the Contractor shall submit a bill of principal quantities of the Permanent Works (the “BPQPW), together with any supporting information and calculations reasonably required by the Engineer. The BPQPW shall include the anticipated final quantities of the principal items of Permanent Works, which shall have been priced using all-in rates such that the total amount equals the Contract Price. The BPQPW shall not contain priced items for Temporary Works. The value of each element of this work, and other work elements not described in the BPQPW shall each be included in the rates for the Permanent Works which are to be constructed after the element is carried out.

The BPQPW shall be subject to the approval of the Engineer, which may at any time be withdrawn, and shall be without prejudice to the final amount due under the Contract. The BPQPW shall be revised and reissued by the Contractor if it appears at any time before Taking Over that it will not fully represent the Permanent Works when complete.”

14.6 Issue of Interim Payment Certificates

Delete in the first paragraph the second sentence of Sub-Clause 14.6 and substitute:

“Thereafter, the Engineer shall, within 21 days after receiving a Statement and supporting documents, issue to the Employer a draft Interim Payment Certificate which shall state the amount which the Engineer fairly considers to be due to the Contractor, with supporting particulars. Within 10 days of the issue of the draft Interim Payment Certificate and following the receipt of any comments from the Employer the Engineer shall issue the Interim Payment Certificate together with a indication that the Contractor should issue an invoice to the Employer for the amount stated in the Interim Payment Certificate. The invoice provided by the Contractor shall be made in compliance with Romanian legislation.”

14.9 Payment of Retention Money

Add in the first paragraph of Sub-Clause 14.9 after “the first half of the Retention Money shall be certified by the Engineer for payment to the Contractor”:

“or if the Contractor has provided a Retention Security, the Contractor may reduce the value of the Retention Security by one half”.


Add in the second paragraph of Sub-Clause 14.9 after “the outstanding balance of the Retention Money shall be certified by the Engineer for payment to the Contractor”:

“or if the Contractor has provided a Retention Security, the Retention Security shall be returned to the Contractor in accordance with Sub-Clause 14.3” [Issue of Final Payment Certificate].”.

Add in the third paragraph after “withhold certification of the estimated cost of this work”:

“or require the Contractor to provide a Retention Security equal to the estimated cost of this work”.

14.11 Application for Final Payment Certificate

Delete in the second line of Sub-Clause 14.11 “six copies” and replace with “four copies.”

14.16 VAT


“14.16 VAT

The Contractor shall pay value added tax (VAT) to the relevant Romanian Government agencies in accordance with the applicable law. A foreign Contractor shall designate a fiscal representative in Romania who shall perform the Contractor’s obligations related to the payment of VAT.

The amounts paid by the Contractor for VAT shall be reimbursed by the Employer.

Each VAT invoice submitted by the Contractor shall be priced in Lei (RON).”

15. Termination by the Employer

15.2 Termination by Employer

At the end of the first paragraph:

“(g) fails to comply with the requirements of Clause 18 [Insurance];”

15.5 Employer’s Entitlement to Termination

Delete the final sentence of the first paragraph.

15.6 Corrupt or Fraudulent Practices

Add new Sub-Clause 15.6

“15.6 Corrupt or Fraud-ulent Practices

If the Contractor has engaged in corrupt, fraudulent, collusive, coercive or obstructive practices, in competing for or in executing the Contract, then the Employer may, after giving 14 days notice to the Contractor, terminate the Contract and expel the Contractor from the Site. The provisions of Clause 15 shall apply as if such termination had been made under Sub-Clause 15.2 [Termination by Employer].

For the purposes of this Sub-Clause:

(a) “Corrupt Practice” means the offering, giving, soliciting or promising, directly or


indirectly of any improper advantage or anything of value to influence improperly the action of a public official, or the threatening of injury to his person, employment, property, rights or reputation, in connection with any procurement process on in execution of any contract in order that any person may obtain or retain business improperly or obtain other improper advantage in the conduct of business.

(b) “Fraudulent Practice” means any dishonest statement, any act of concealment or any act of omission of facts which is intended to, or tends to, influence improperly the procurement process or the execution of a contract, including a misrepresentation, to the detriment of the Employer, or is designed to establish tender prices at non-competitive levels and to deprive the Employer of the benefits of fair and open competition, and includes collusive practices (whether before or after application or tender submission) among applicants or tenderers or between a tenderer and a consultant or a representative of the Employer or practice that knowingly or recklessly misleads, or attempt to mislead, a party to obtain a financial or other benefit or to avoid an obligation.

(c) “collusive practice” means a scheme or arrangement between two or more tenderers, with or without the knowledge of the Borrower, designed to establish tender prices at artificial, non-competitive levels. Tenderers are urged to keep the details of their tender submissions confidential. Where two or more tender submissions bear substantial similarity or where plagiarism on the part of one or more tenderers has clearly occurred the Employer shall regard this as collusive practice and the subject tenders may be rejected, and;

(d) “Coercive Practice” means impairing or harming, or threatening to impair or harm, directly or indirectly, persons or their property to influence their participation in the procurement process or affect the execution of a contract;

(e) “Obstructive Practice” means: deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making false statements to investigators in order to materially impede an investigation by the Bank, Borrower or Employer into allegations of a corrupt, fraudulent, coercive or collusive practice; and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation; or acts intended to materially impede the exercise of inspection by the Bank, Borrower or Employer and audit rights provided for under this Sub-Clause.”


16 Suspension and Termination by Contractor

16.2 Termination by Contractor

Delete from sub-paragraph (b) of Sub-Clause 16.2 “56 days” and substitute:

“59 days”


“If the Employer disputes the termination notified under Sub-Clause 16.2(a) above then the Employer may, within 14 days after receipt of the notice of termination from the Contractor, give notice in writing to that effect to the Contractor and the Employer shall within the same time period of 14 days refer the dispute in writing to the DAB as provided under Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision]. Thereafter the Contract shall not be terminated on account of the provisions of Sub-Clause 16.2.(a) above until such time as the dispute has been resolved through the provisions of Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] or subsequent to or failing that the provisions of Clause 20.6 [Arbitration].”

18 Insurance

18.1 General Requirements for Insurances

Add to the sixth paragraph after “(calculated from the Commencement Date),”:

“and in any case prior to the commencement of the Works on Site”

Add to the end of the sixth paragraph:

“(c) copies of policies for the insurances described in Sub-Clause 18.5 [ Insurance for Design].”

Add after the seventh paragraph:

“The Contractor shall submit evidence of payment of insurance premiums on a monthly basis. If the Contractor fails to submit such evidence a penalty equal to that indicated in the Appendix to Tender shall be applied from the date on which the evidence of payment should have been submitted until such time as satisfactory evidence is submitted.”

18.5 Insurance for Design


“18.5 Insurance for Design

The Contractor shall effect professional indemnity insurance, which shall cover the risk of professional negligence in the design of the Works. This shall be for a limit of not less than the amount stated in the Appendix to the Tender.

The Contractor shall use his best endeavours to maintain the professional indemnity insurance in full force and effect until the time stated in the Appendix to the Tender. The Contractor undertakes to notify the Employer or the recipient promptly of any difficulty in extending, renewing or reinstating this insurance.


SECTION VII: FORMS

ANNEX: FORMS OF SECURITIES

FORM OF PERFORMANCE SECURITY - DEMAND GUARANTEE


Name and address of Beneficiary:

Romanian National Company of Motorways and National Roads of 38 Dinicu Golescu Boulevard, Bucharest, Romania, (whom the Contract defines as the Employer).

We have been informed that ________________________ (hereinafter called the “Principal”) is your contractor under such Contract, which requires him to obtain a performance security.

At the request of the Principal, we (name and address of the bank) ___________________ hereby irrevocably undertake to pay you, the Beneficiary, any sum or sums not exceeding in total the amount of _____________________ (the “guaranteed amount”, say: _______________________) upon receipt by us of your demand in writing and your written statement stating:

that the Principal is in breach of his obligation(s) under the Contract, and

the respect in which the Principal is in breach.

Any demand for payment must contain your Director’s signature which must be authenticated by your bankers or by a notary public. The authenticated demand and statement must be received by us at this office on or before the date 70 days after the expected expiry for the Defects Notification Period for the Works _________________ (the “expiry date”), when this guarantee shall expire and shall be returned to us.

We have been informed that the Beneficiary may require the Principal to extend this guarantee:

if the Time for Completion is extended in accordance with Sub-Clause 8.4, or

if the issue of the Taking Over Certificate for the whole of the Works is delayed, for reasons attributable to the Principal, or

if the Performance Certificate under the Contract has not been issued by the date 28 days prior to such expiry date, for reasons attributable to the Principal.

We undertake to pay you such guaranteed amount upon receipt by us, within such period of 28 days, of your demand in writing and your written statement that the performance certificate has not been issued, for any of the above reasons, and this guarantee has not been extended.

This guarantee shall be governed by the laws of Romania and shall be subject to the Uniform Rules for Demand Guarantees, published as number 458 by the International Chamber of Commerce, except as stated above.

Date ________________________ Signature(s) _________________________________


FORM OF ADVANCE PAYMENT GUARANTEE




We have been informed that ____________________________ (hereinafter called the “Principal”) is your contractor under such Contract, and wishes to receive an advance payment, for which the Contract requires him to obtain a guarantee.

At the request of the Principal, we (name and address of the bank) ___________________ hereby irrevocably undertake to pay you, the Beneficiary, any sum or sums not exceeding in total the amount of _____________________ (the “guaranteed amount”, say: __________________) upon receipt by us of your demand in writing and your written statement stating:

that the Principal has failed to repay the advance payment in accordance with the conditions of the Contract, and

the amount which the Principal has failed to repay

This guarantee shall become effective upon receipt of the advance payment by the Principal. Such guaranteed amount shall be reduced by the amounts of the advance payment repaid to you, as evidenced by your notices issued under Sub-Clause 14.6 of the conditions of the Contract. Following receipt (from the Principal) of a copy of each purported notice, we shall promptly notify you of the revised guaranteed amount accordingly.

Any demand for payment must contain your Director’s signature which must be authenticated by your bankers or by a notary public. The authenticated demand and statement must be received by us at this office on or before (the date 70 days after the expected expiry of the Time for Completion) _____________ (the “expiry date”), when this guarantee shall expire and shall be returned to us.

We have been informed that the Beneficiary may require the Principal to extend this guarantee if the advance payment has not been repaid by the date 28 days prior to such expiry date. We undertake to pay you such guaranteed amount upon receipt by us, within such period of 28 days, of your demand in writing and your written statement that the advance payment has not been repaid and that this guarantee has not been extended.


Date ________________________ Signature(s) _________________________________


FORM OF RETENTION MONEY GUARANTEE




We have been informed that ____________________________ (hereinafter called the “Principal”) is your contractor under such Contract, and wishes to receive early payment of (part of) the retention money, for which the Contract requires him to obtain a guarantee.

At the request of the Principal, we (name and address of the bank) ___________________ hereby irrevocably undertake to pay you, the Beneficiary, any sum or sums not exceeding in total, the amount of retention money released to the Principal, by you, the ‘guaranteed amount’ of ___________________ upon receipt by us of your demand in writing and a written statement stating :

that the Principal has failed to carry out his obligation(s) to rectify certain defect(s) for which he is responsible under the Contract, and

the nature of such defect(s).

Any demand for payment must contain your Director’s signature which must be authenticated by your Bankers or by a notary public. The authenticated demand and statement must be received by us at this office on or before ___________________ (the date 70 days after the expected expiry of the Defects Notification Period for the Works) (the expiry date), when this guarantee shall expire and shall be returned to us.

We have been informed that the Beneficiary may require the Principal to extend this guarantee if the Performance Certificate under the Contract has not been issued by the date 28 days prior to such expiry date, for reasons attributable to the Principal. We undertake to pay you such guaranteed amount upon receipt by us, within such period of 28 days, of your demand in writing and your written statement that the Performance Certificate has not been issued, for any of the above reasons, and this guarantee has not been extended.


Date ________________________ Signature(s) _________________________________