Special Conditions of the Contrac1

8/11/2019 Special Conditions of the Contrac1

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SPECIAL CONDITIONS OF THE CONTRACT

Clause Contractors Proposal Provisions CFR Response

Clause 1 eneral Provisions

Su!"Clause 1#1 " De$initionsSu!"Clause 1#1#1 T%e A&ree'ent

Su!"Clause1#1#1#1

Sub-Clause1.1.1.1 shall be deleted and it shall be replaced with thefollowing:(Contract means Contractual Agreement, Letter of Offer with anneto the Offer, Contractual Conditions, !ender "oo#$Specifications, Listsof %uantities, &roposal of the Contractor and other documents 'if an()which are included in the Contract.

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Su!"Clause1#1#1#)

!he tet in Sub-Clause 1.1.1.+ shall be replaced with: AcceptanceLetter means Contractual Agreement

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Su!"Clause 1#1#* Parties an+ Persons

Su!"Clause1#1#*#* ,ene$iciar-

Sub-Clause 1.1.. shall be deleted and it shall be replaced with thefollowing:(,ene$iciar-. means the beneficiar( of the wor#s performed underthe contract and stipulated in the Anne to the Offer and thesuccessor in rights thereof.

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Su!"Clause1#1#*#/ C#A#D#

CA means a person or three persons named as such in theContract, or other person's) appointed according to the pro/isions ofSub-Clause 0. Appointment of the Commission for Ad2udication ofisputes3 or Sub-Clause 0.+ 4ailure of Appointment of theCommission for Ad2udication of isputes3.

Comments:No reference is made within GEO 34/2006 to any interdiction of disputes

settlement through conciliation or amicaly!

"rt!2#6 from GEO 34/2006 repulished$ regarding dispute settlement$

pro%ides only - (1) The lawsuits and requests regarding granting of

indemnities for remediation of the prejudices caused within assignment

procedure, as well as those regarding execution, invalidity, cancellation,

rescission, termination or unilateral denunciation of the public procurement

contracts are settled in first instance by the commercial section of the court

within the jurisdiction of which the contracting authoritys headquarter is

located!

&urthermore$ the 'arties are free to estalish through the clauses of the

5e disagree with dispute settlement through CA becausethe conditions from tender documentation.

The CFR initial version is maintained


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contract a procedure of amialy dispute settlement (procedure that is not

compulsory etween parties only if these agree this)$ ut only that the

legislator intended the e*clusion of the preliminary procedure incumency! +n

case this conciliation is not concluded with a positi%e result$ through a

potential litigation should e a%oided$ they are directed to the competentcourts!

,oreo%er$ if the ordinance does not pro%ide the contrary$ the common law in

matter is applied$ according to "rt! 2-. of GEO! To the extent that this

emergency ordinance does not provide otherwise, dispositions of common law

are applicable!

Proposal:

e propose to reintroduce the mechanism of dispute settlement through 1"

or +11 in order to ha%e pro%ided in the contract an intermediary phase of

dispute conciliation efore these should e sumitted to the competent court!

e consider useful this phase (due to the celerity of litigation settlement$ aswell as to the comple*ity of contract oect that reuests thorough technical

5nowledge) and eneficial to oth 'arties in order to assure the proect

de%elopment in the est conditions!

Su!"Clause 1#1#) " Data0 tests0 perio+s an+ co'pletion

Su!"Clause1#1#)# Protocol o$AcceptanceuponCo'pletion o$2or3s

Sub-Clause 1.1.+.6 shall be deleted and it shall be replaced with thefollowing:(Protocol o$ Acceptance upon Co'pletion o$ 2or3s. means theprotocol drawn up and signed, according to the laws in force, b( theacceptance commission appointed b( the "eneficiar(, on demand ofthe 7ngineer, recommending or not the acceptance of the 5or#s, ofthe Sector or of one part of !he 5or# 'as applicable) b( the"eneficiar(, according to the pro/isions of Clause 10.

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Su!"Clause1#1#)#4 Protocol o$FinalAcceptance

Sub-Clause 1.1.+.8 shall be deleted and it shall be replaced with thefollowing:(Protocol o$ Final Acceptance. means the protocol drawn up andsigned according to the Laws in force b( the final acceptancecommission appointed b( the "eneficiar(, on demand of the7ngineer, recommending or not the final acceptance of the 5or#s, ofthe Sector or of one part of the 5or# 'as applicable) b( the"eneficiar(, according to the pro/isions of Sub-Clause 11.9.

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Ne5 Su!"Clause 1#1#)#167Certi$icate o$Acceptance

uponCo'pletion o$2or3s

A new Sub-Clause 1.1.+.10 shall be added:

(Certificate of Acceptance upon Completion of Works. means thecertificate issued b( the 7ngineer, based on the Protocol ofAcceptance upon Completion of Works0according to the pro/isions ofClause 10, specif(ing the date when the wor#s or the Sectors werecompleted according to the pro/isions of the contract, ecept someminor wor#s remained uneecuted and of the defects which shall notaffect significantl( the use of the 5or#s, of the Sector or of one partof the 5or# 'as applicable) to the destined aim.

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Ne5 Su!"Clause 1#1#)#117Certi$icate o$FinalAcceptance

A new Sub-Clause 1.1.+.11 shall be added:

(Certificate of Final Acceptance.means the certificate issued b( the7ngineer, based on the Protocol of Final Acceptance0according to thepro/isions of clause 11.9, which specifies the date when theContractor ended its obligations pro/ided in the contract.

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Su!"Clause

1#1#8#1172it%%el+A'ounts

!he Sub-Clause 1.1..11 shall be deleted and it shall be replaced with

the followings:;2it%%el+ A'ounts means the letter of ban# guarantee forwithholding issued b( the Contractor in fa/or of the "eneficiar(, withthe /alue pro/ided in the Anne to the Offer, and that is releasedaccording to the Sub-Clause 1.9 &a(ment of the 5ithheld

Amounts3.

Comment:

Estalishing of the ithheld "mounts through letter of an5 guarantee is afle*ile modality that assures protection of rights and interests of othparties the 1ontractor can recei%e the totality of in%oiced sums$ ut$ in thesame time$ the 7eneficiary has all times the possiility to collect the amountscorresponding to the withholding percent! &rom 7eneficiary8s perspecti%e$issuing of a letter of an5 guarantee is eui%alent with actual withholding ofthe money amounts in the corresponding percent pro%ided in the "nne* tothe Offer!

9his change does not represent in any manner a deformation of thecompetition within procedure$ ut a simplification of the accountingprocedures and of fund drawingdown$ mainly ecause the withholdingsfrom partial discounts shall e under the minimum drawingdown thresholdand from this reason$ potential conflicting positions could arise!


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Date o$ Si&nin&Agreement. 5hene/er it is referred to the acceptance letter theconsidered date is =the date of signing.

Su!"Clause 1#* Construction

!he following shall be added at the end of Sub-Clause 1.:=*nder these conditions the pro/isions which include the epressionCost plus a reasonable profit mean that this profit should be ofmaimum two tenth '6 per cent) of the respecti/e cost.Comment:

1hange of this clause$ as it was formulated y the 1ontractor$ is considered

to e necessary ecause the clause in its initial form represented an

unustified interference in the 1ontractor8s commercial usiness!

Proposal:

+n order to eliminate any dout in construction$ we propose that the word

ma*imum should e deleted from the ao%e wording$ mainly ecause the

price lists ha%e clearly specified the percentage uantum of the profit of each

tenderer!

!he change is not accepted, because this matter has asconse%uence changing of the financial conditions from theAnne to the Offer.


Su!"Clause 1#) Co''unication

!he following shall be added at the end of sub-clause 1.+Communication:=!he specific 4ormats for >odifications,


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has the authorit( to issue the pro/isions which it deems to benecessar( for sol/ing the ambiguit( or the discrepancies.


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Sub-Clause 1.F Assignment shall be deleted and it shall be replacedwith the following:@either of the &arties shall assign one part or the entire Contract, thebenefit or an( other right within or o/er the Contract.

"( eception, the Contractor ma( assign, onl( with the appro/al of the"eneficiar(, under the form of guarantee, in fa/or of a ban# or of afinancial institution, the right to an( amounts to be cashed or whichshall become cashable during the carr(ing on of the Contract.

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Ne5 Su!"Clause 1#1 Con$i+entialit-

A new Sub-Clause 1.16 Confidentialit( shall be added: =!heContractor shall treat the details of the Contract as being pri/ate andconfidential, ecepting the situations necessar( for the fulfillment of theobligations pro/ided b( the Laws in force. !he Contractor shall notpublish, shall not allow the publication and shall not disclose an(confidential information about the 5or#s in an( commercial ortechnical publication or elsewhere without the pre/ious writtenagreement of the "eneficiar(.

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Clause * ,ene$iciar-

Su!"Clause *#1 Ri&%t o$ Access on t%e Site

!he following paragraph shall be introduced at the end of Sub-Clause.1:;


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Su!"Clause *# Re=uests o$ t%e ,ene$iciar-

!he last paragraph shall be replaced with the following:

=!his amount ma( be deduced from the &rice of the Contract and fromthe &a(ment Certificates. !he "eneficiar( shall be entitled tocompensate or to operate a deduction from an amount confirmed in a&a(ment Certificate, or to claim this amount from the Contractor in an(other form 'penalt( in/oice go/erned b( Sub-Clause . lett. b pa(ablewithin da(s as of the date on this amount is agreed b( theContractor, established according to the pro/isions of this Sub-Clause.6 e%uests of the "eneficiar(3 or Clause 0 Claims andisputes3).

Comments:

9he change only correlates the contractual pro%isions$ y estalishing of the

necessity of determination of this amount y the Engineer according to ?u

1lauses 2!@ and 3!4! 9hese ?u1lauses 2!@ and 3!4 from G11 suffered no

changes regarding the principle of determination y Engineer of the

7eneficiary8s claims! 1onseuently$ the 7eneficiary cannot reuest the

payment of an in%oice if the amount found y the in%oice is not preliminary

accepted/determined y the Engineer!

9he oligation of 'erformance 7ond reinstatement is e*cessi%e in relation to

its %alue$ nature and purpose! 9his oligation must e remo%ed ecause the

7eneficiary has pro%ided other contractual mechanisms in order to protect its

interests in case the none*ecution e*ceeds the %alue of the 'erformance

7ond!

"lso$ from procedural point of %iew$ the performance ond reinstatement can

e made only to the amount remained to e e*ecuted from the 1ontract$

ecause any issuing an5 shall reffer to the contractual documents and it shall

correlate the uantum to e issued with the amount remained to e cashed

from the 1ontract!

- 5e disagree with the condition of pa(ment ma#ing onl( ifthis is agreed b( the Contractor

- 5e maintain our position regarding reinstatement of the&erformance "ond amount to the amount stipulated in theAnne to the Offer, because the financial conditions fromtender documentation are changed b( its change.

The CFR initial text is maintained

Clause ) En&ineer

Su!"Clause )#1 Responsi!ilities an+ Aut%orit- o$ t%e En&ineer

*nder those stipulated in the second phrase of the third paragraph ofthis clause, the 7ngineer must obtain the pre/ious agreement of the"eneficiar( for the following:

a. !he epress agreement of the Contracting Authorit('"eneficiar() is necessar( before the issuing of the Acceptance

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Certificate upon Completion of 5or#s 'Sub-Clause 10.1- 4odification which would ma#e the&rice of the Contract eceed the Accepted Contract Haluesubse%uentl( agreed b( the "eneficiar( and the Contractor withincertain addenda to the Contract 'Sub-Clause 1+.1 4


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representati/es of the "eneficiar( and other persons about which the"eneficiar( shall inform the Contractor and the 7ngineer shall also bein/ited. !he management meetings ma( also be con/ened b( the"eneficiar(.

!he agenda for such meetings shall be prepared b( the 7ngineerand it shall include a re/iew of the progress of the wor#s, of the wor#schedule and the plans for the future acti/ities, situation of thepersonnel, engineering, safet(, e%uipment, procurement of materials,pa(ments, ris#s identification and setting out of measures fora/oiding the occurrence thereof or diminishing the effects thereof,current and future difficulties, interaction with other contractors,demands, as well as other issues which shall be deemed as rele/ant.!ime and place of such meetings must be mutuall( set out ta#ing intoaccount the theme of the discussion.

!he 7ngineer shall pro/ide for the participants to the meeting copiesof the agenda and of the rele/ant documents regarding the issues

which are going to be discussed.!he 7ngineer shall draw up the &rotocol for each meeting and shallsent a cop( thereof to each participant within two business da(s afterthe meeting, as well as to the "eneficiar(, at the address and contactdata communicated b( the "eneficiar(. >entions in the &rotocolregarding the responsibilities for an( acti/ities which shall be carriedout shall be according to the pro/isions of the Contract.

!hese &rotocols, e/en if the( are signed b( the &arties, cannotmodif( the pro/isions of the Contract.

Clause 8 " Contractor

Su!"Clause 8#* Per$or'ance ,on+

!he first sentence of the second paragraph of Sub-Clause . shall bedeleted and it shall be replaced with the following:=!he Contractor shall pro/ide for the "eneficiar( the &erformance"ond within 8 da(s as of the date of signing of the Contractual

Agreement and it shall also send a cop( thereof to the 7ngineer.!he last paragraph of Sub-Clause .. shall be deleted and it shall bereplaced with the following:

!he "eneficiar( shall issue$gi/e bac# to the Contractor the&erformance "ond, as follows:i. F0 per cent of the /alue of the &erformance "ond, within 1 da(s asof the date of drawing up of the Acceptance &rotocol upon Completion

of the 5or#s, if the "eneficiar( did not formulate up to this date an(claim of eecution of the &erformance "ond and pro/ided that the

5e disagree with remo/al of the pro/ision regarding the&erformance "ond reinstatement, because thus the financialconditions from tender documentation are changed.



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Acceptance &rotocol upon Completion of the 5or#s is issued?ii. +0 per cent of the /alue of the &erformance "ond, upon issuing ofthe 4inal Acceptance &rotocol, if the "eneficiar( did not formulate upto this date an( claim of eecution of the &erformance "ond.

Comment:

9he uantum of the performance ond$ as it is regulated y the legal

pro%isions$ is =0> from the accepted %alue of the contract (contract price$

according to the legal pro%isions)! 9he purpose of legal pro%isions is that to

put to the 7eneficiary8s disposition an instrument y which it should e ale

to directly e*ecute ma*imum =0> from the contract %alue$ in addition to

other contractual mechanisms for protection of its interests in case the non

e*ecution e*ceeds the amount of the performance ond! 9his goal cannot e

circum%ented y introducing a reinstatement oligation$ which would ma5e

the performance ond unlimited (and not limited to =0> from the contract

amount$ according to the legal pro%isions)!

"lso$ the reasoning is %alid in re%erse$ whereas decreasing of the performance

ond amount is e*pressly regulated y the legal pro%isions$ so as the

1ontractor cannot reuest the decreasing of this amount to other terms and in

other conditions different y those pro%ided y law! &inally$ the oligation of

reinstatement of the performance ond is contrary to the usual practice of

issuing of these letters y an5ing institutions!

&urthermore$ from procedural point of %iew$ the reinstatement can e possile

only to the %alue remained to e e*ecuted from the 1ontract$ ecause the

issuer correlates the uantum to the amount to e e*ecuted all times!

1onseuently$ the contractor considers that the oligation of the 'erformance

7ond reinstatement is e*cessi%e in relation to its %alue$ nature and purpose!9herefore$ the remo%al of this oligation is proposed$ it eing an unustified

urden for the 1ontractor$ e%en more as the 7eneficiary has pro%ided other

contractual mechanisms in order to protect its interests in case the preudice

caused y nonperformance e*ceeds the amount of the performance ond!

Su!"Clause 8#) Representative o$ t%e Contractor

!he following shall be added at the end of the fourth paragraph ofSub-Clause .+:

=!he representati/e of the Contractor shall ta#e o/er its duties on the

Site no later than the ate of Start of the 5or#s.!he following is added at the end of Sub-Clause .+:

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=


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!he following shall be added at the end of sub-paragraph 'b) of Sub-Clause .1:

='c) !raffic of trains and related s(stems?

'd) *tilities, acti/ities and ser/ices of other authorities on the Site,including but not limited to: oil pipes, networ#s of electric power,water, sewerage, gas, telephon( and buried cables.

!he Contractor shall pa( indemnifications to the "eneficiar(,eempting the "eneficiar( of and damages, losses and epenses'including duties and legal fees) caused b( an( useless orunmoti/ated trouble.

!he last paragraph shall be deleted.

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Su!"Clause 8#1/ Electric Po5er0 2ater an+ as

!he words =and the details and prices thereof are mentioned inSpecifications shall be deleted in the second paragraph of this Sub-Clause .19.

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Su!"Clause 8#*1 Reports re&ar+in& t%e Pro&ress o$ 2or3s E:ecution

!he words &rotocol of Acceptance upon Completion of 5or#s shallbe deleted in the second paragraph of this Sub-Clause .1 and the(shall be replaced with =Certificate of Acceptance upon Completion of5or#s.!he following tet shall be added:!he Contractor shall report from time to time the modalit( of sol/ing ofthe conditions imposed in the 7n/ironmental Agreement.

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Su!"Clause 8#** Securit- o$ t%e Site

!he following tet shall be added at the end of Sub-Clause .:

*nder this Sub-Clause, the users of the roads and railwa(s whichare crossing the site and the ri/erside residents shall not be deemedas being unauthoriGed persons when the( use the road $ railwa( orwhen the( want to pass on the ri/erside properties. Such a use andaccess shall be introduced as part of the plan of the Contractor forthe management of the traffic.

5ithin 1 da(s as of the ate of Start of the 5or#s, the Contractorshall transmit to the 7ngineer for appro/al the traffic managementplan.

!he traffic management plan shall indicate the measures which shallbe implemented for the safe management of the traffic during theeecution of the wor#s. !he preparing wor#s and the phases ofimplementation of construction wor#s prepared b( the designer shallbe included in the !raffic >anagement &lan. !his plan must

- 5e disagree with the construction gi/en b( the Contractorin order to impose some limitati/e terms for response,regardless the re%uested appro/al t(pes. 5e consider that,through this condition, the Contractor wishes to eliminatethe 7ngineer from the decisional circuit, who has a wellestablished role according to the Sub-clause 1.9 fromeneral Conditions.

- 5e cannot accept introduction of other limits of indemnit(then those from the tender documentation and Anne to theOffer, because the financial conditions of the Offersubmitted b( the contractor are changed b( this.

!his Sub-clause shall be changed within the >emorandumof Clarification.


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describe, under the form of some s#etches accompanied b(descripti/e details, the succession of the signaling elements,de/iations, lighting, enclosure, etc., which must be applied on eachsection, in order to pro/ide all conditions of safet( according to the

regulations in force.7ecution of 5or#s shall not start before the appro/al of the trafficmanagement plan b( the 7ngineer. !he appro/al shall be gi/en onl(after obtaining the appro/al from the specialiGed ser/ices of the"eneficiar(. !he "eneficiar($7ngineer has obligation to respond tothe ContractorDs re%uest regarding the issuance of an appro/al within103 wor#ing da(s from recei/ing of the re%uest.


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appro%al that can preudice oth oser%ance of the wor5s schedule and the1ontractor8s acti%ity and therefore could affect the optimum performance ofthe 1ontract!

Su!"Clause 8#*) Activities o$ t%e Contractor on t%e Site

!he words =of the Acceptance &rotocol upon Completion of 5or#sand =the Acceptance &rotocol upon Completion of 5or#s shall bedeleted in the first phrase of the third paragraph of this Sub-Clause.+ and the( shall be replaced with =of the Acceptance Certificateupon Completion of 5or#s and respecti/e =the Acceptance &rotocolupon Completion of 5or#s.

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Su!"Clause 8#*8 @esti&es

!he last paragraph of Sub-Clause . shall be deleted and it shall bereplaced with the following:

=All the /estiges, coins 'numismatic items), artifacts, an( other /aluableob2ects or anti%uities, as well as an( other items deemed, based on theenforceable regulations, to represent mobile or immobile cultural goods,ruins, but also an( other items of geologic or archeological interestdisco/ered on the Site shall be handed o/er b( the Contractor under thecare and authorit( of the "eneficiar(, according to the orders of the7ngineer. According to the pro/isions of the law, an( such items are thepropert( of the omanian o/ernment. !he Contractor shall emplo( anepert for the sur/eillance of all the aspects related to the acti/it( ofarcheological discharge, according to the legislation in force. !heContractor shall ta#e all the reasonable precautions in order to pre/ent theembeGGlement or pre2udicing of these items b( the &ersonnel of theContractor or b( other persons.

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Ne5 Su!"Clause 8#* Site Lo&

A new Sub-Clause .6 shall be introduced, with the following content:

=!he Contractor shall draw up the dail( Site Log for registering of thecurrent information, in a format agreed with the 7ngineer. !he Log ofthe 5or#s shall be #ept on the Site, and the Contractor shall ma#edail( records regarding the following information 'at least):

>eteorological conditions, including the temperatures chart, the%uantities of precipitations, the periods of time lost because of theunfa/orable meteorological conditions, the business hours, numberand training of the personnel present on the site, the %uantities ofdeli/ered materials, the %uantities of placed materials, non-operating

e%uipment of the Contractor, carried out tests, samples drawn for

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testing, and an( unforeseen e/ents.

Anne with detailed data regarding all the elements /erified on thesite and used in order to calculate the pa(ments due to theContractor, for eample completed wor#s, actual %uantities and

materials deli/eries accepted in order to be placed and incorporatedin the wor#. All these annees are, in fact, integral part of the 5or#segister, but the( can be signed, if needed, as separate documents.

List of an( bottoming, obstacles and difficulties encountered b( theContractor in the eecution of the wor#s, during the period ofreporting.

!he information registered in the Site egister and in the anneesthereof shall be signed b( the Contractor and counter-signed b( the7ngineer or b( the authoriGed representati/e of the 7ngineer, onl( toconfirm the truthfulness of the information included in thesedocuments. !he egister shall be drawn up in two copies. !heContractor shall #eep one single cop(, the other cop( being #ept b(

the 7ngineer.


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deemed as satisfactor( b( the 7ngineer, and obser/ing the periodsmade a/ailable for the completion of such wor#s.

!he Contractor is obliged to obtain all the appro/als necessar( forthe eecuted technical pro2ects and to subcontract the eecution of

the wor#s of relocation of the utilities identified in the period ofdesigning 'according to the list attached to the related !echnicalocumentation) or unidentified.

!he Contractor is obliged to carr( out all the necessar( procedureswhich impl( the local authorities and the owners, for the temporar(remo/al and then reconstruction of the utilities networ#s, accordingto the guidelines of the 7ngineer or as it was agreed with the7ngineer. !he costs associated to the utilities i+enti$ie+ in t%eassi&n'ent +ocu'entationare deemed as being included in the

Accepted Contract Halue.


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Clause ; Personnel an+ >anpo5er

Su!"Clause ;#1 E'plo-'ent o$ Personnel an+ >anpo5er

!he following tet shall be added at the end of Sub-Clause E.1:!he Contractor shall emplo( #e( personnel according to the proposalin the Offer included in the Contract and it shall #eep them during theentire /alidit( period of the contract. An( replacement of the #e(personnel shall be made with personnel ha/ing training andeperience at least e%ui/alent to those of the replaced personnel.!he epresentati/e of the Contractor and the #e( personnel shall be#ept during the entire period of the eecution of the 5or#s, ecept thecase when the 7ngineer re%uests the replacement moti/ated withsolid grounds or when the replacement is necessar( from othergrounds that are not under the control of the Contractor 'for eample:resignation, sic#ness, decease, etc.). !he new personnel appointedunder the conditions of this sub-clause is sub2ect to the appro/al of the7ngineer.

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Su!"Clause ;# 2or3in& Hours

!he following shall be added at the end Sub-Clause E.6:

=!he Contractor shall not be un2ustified refused to obtain theagreement of the 7ngineer for the additional wor#ing hours 'o/er thenormal wor#ing hours), pro/ided that the concluded insurance policiesshould also co/er the respecti/e periods.

!hose acti/ities which necessitate the permanent presence on thesite, such as guard and sur/eillance of the site, traffic managementand others ali#e, shall be carried on as long as necessar(, withoutrestrictions regarding the wor#ing hours.

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Su!"Clause ;#4 Surveillance Provi+e+ !- t%e Contractor

!he following shall be added at the end of the second paragraph ofSub-Clause E.8:

=


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translation which should not generate ambiguities.

Su!"Clause ;#16 Reports re&ar+in& t%e Personnel an+ t%e >ac%ineries o$ t%e

Contractor

!he words =Acceptance &rotocol upon Completion of 5or#s shall bedeleted in the last sentence of this Sub-Clause E.10 and the( shall bereplaced b( the words =Acceptance Certificate upon Completion of5or#s.

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Clause 4 Startin&0 Dela- an+ Suspension o$ t%e 2or3s

Su!"Clause 4#1 Startin& o$ 2or3s

!he words =etter of &cceptance@ shall be deleted in the secondsentence of the first paragraph of Sub-Clause 8.1 and the( shall bereplaced b( =Contractual &greement.

!he second sentence of the first paragraph shall be deleted and itshall be replaced with the following:=!his notification ma( be issued for wor#s as a whole or successi/el(for certain sectors or t(pes of wor#s.!he following paragraph shall be added to the end of this Sub-Clause:;!he ate of 5or#s Starting shall be conditioned b( the fulfillment ofthe following conditions: 'i) recei/ing of the &a(ment Ad/ance b( theContractor in the amount specified in the Anne to the Offer, 'ii) receiptb( the Contractor of the proof regarding the price pa(ment assuranceaccording to the Sub-Clause ., 'iii) the access on the Site granted tothe Contractor, free of an( obstruction, 'i/) the "eneficiar( ma#ea/ailable to the Contractor of the technical pro2ect, eecution details,construction permit and en/ironmental permit, '/) communication to

the Contractor of the 7ngineerDs identit( and its tas#s and '/i)establishing of the location of first landmar#.

Comment:

+n order to inter%ene the ate of or5s ?tarting$ that mar5s the actually

starting of the wor5s$ the fulfillment of all specified conditions is reuested!

9he completion is natural and reasonale$ whereas$ in the asence of the

fulfillment y the 7eneficiary of the main oligations that it has$ the

1ontractor cannot e oliged to e*ecute its main oligations y which it is

held in connection with wor5s e*ecution!

5e disagree because the conditions in the tenderdocumentation are changed b( this.!his Sub-clause shall re%uest an eplanation within the>emorandum of Clarification $@egotiation.


Su!"Clause 4#) E:ecution Pro&ra'


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!he following shall be added at the end of Sub-Clause 8.+:

!he updated program shall be transmitted within the term specifiedb( the 7ngineer.

*nchanged

Su!"Clause 4#8 E:tension o$ t%e E:ecution DurationLetter 'e) from the first paragraph of Sub-Clause 8. in the eneralConditions of the Contract shall be remo/ed and replaced as follows:An( dela(, impediment or obstacle that eceeds to the ContractorDsguilt, including but not limited to those caused b(, or attributable to the"eneficiar(, "eneficiar(Ds &ersonnel, or other "eneficiar(Ds contractors,found on the Site 'ecepting the ContractorDs Subcontractors).

Comment:

9he amendment aims to specifically clarify the principle according to which

the e*ternal e%ents$ independent of 1ontractor8s guilt$ cannot ha%e as effect

depri%ing the 1ontractor8s right to reuest the e*tension of the E*ecution

uration!

5e disagree because the conditions in the tenderdocumentation are changed b( this.


Su!"Clause 4#< Dela- Penalties

!he words =Acceptance &rotocol upon Completion of 5or#s shall bedeleted in the first sentence of this Sub-Clause 8.F and the( shall bereplaced b( =Acceptance Certificate upon Completion of 5or#s.

!he following shall be added:=


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or5s at the term agreed y the 'arties!

9herefore$ the delay penalties estalished for the intermediate phases act as a

pressure tool on the 1ontractor in order to meet the deadline! 9hese ecome

certain when the deadline is not met$ and the amount of the penalties ta5esinto account the %alue of the wor5s remained to e e*ecuted$ and not that of

the fulfilled oligations!

Clause / Tests upon Co'pletion

Su!"Clause /#8 Non"Con$or' Results o$ t%e Tests upon Co'pletion

!he words =Acceptance &rotocol upon Completion shall be deleted insubparagraph 'c) of the first paragraph of this Sub-Clause 9. andthe( shall be replaced b( =Acceptance Certificate upon Completion of5or#s.

*nchanged

Clause 16 2or3s Acceptance !- t%e ,ene$iciar-

Su!"Clause 16#1 Acceptance o$ 2or3s an+ Sectors

Sub-clause 10.1 shall be deleted and it shall be replaced with thefollowing:=Acceptance &rotocol upon Completion of 5or#s shall be issuedaccording to this contract and to the omanian legislation. Sa/e thosepro/ided in Sub-Clause 9. *on-conform Aesults of the Tests uponCompletion3, the "eneficiar( shall accept the 5or#s in case 'i) whenthe 5or#s were completed according to the pro/isions of the Contract,including the conditions described in Sub-Clause 8. ,uration of6ecution3, 'ii) when an Acceptance &rotocol upon Completion of5or#s was issued b( means of which the admission of the

acceptance is recommended, and 'iii) when the 7ngineer issued anAcceptance Certificate upon Completion of 5or#s. emorandumof Clarification.

T%e ne5 te:t o$ t%e Su!"clause 16#17

Sub-clause 1?.1 shall be deleted and it shall be replacedwith the following:&cceptance 4rotocol upon Completion of !orks shall be

issued according to this contract and to the Aomanianlegislation. Sa"e those pro"ided in Sub-Clause B. 8*on-conform Aesults of the Tests upon Completion9# the0eneficiary shall accept the !orks in case +i% when the!orks were completed according to the pro"isions of theContract# including the conditions described in Sub-Clause.; 8,uration of 6ecution9# +ii% when an &cceptance4rotocol upon Completion of !orks was issued by meansof which the admission of the acceptance is recommended#and +iii% when the 6ngineer issued an &cceptanceCertificate upon Completion of !orks. f the 0eneficiaryfails to fulfill its obligations regarding the organi=ation of the

acceptance and the transmission of its decision regardingthe admittance with or without ob3ections# delay or re3ection


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Commission which upon completion of the 5or#s shall draw up andsign the Acceptance &rotocol upon Completion of 5or#s according tothe legislation in force.On condition of recei/ing the decision of the "eneficiar( based on the

recommendations included in the Acceptance &rotocol uponCompletion of 5or#s, within 8 da(s as of the date of reception of there%uest from the Contractor, the 7ngineer:'a) Shall issue for the Contractor the Acceptance Certificate uponCompletion of 5or#s? or'b) Shall re2ect the re%uest, submitting the moti/ation and specif(ingthe wor#s which the Contractor should carr( out in order to ma#epossible the appro/al of the acceptance. !he Contractor shallcomplete the wor#s, before transmitting a new notification accordingto the pro/isions of this Sub-Clause.


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Su!"Clause 16#* Acceptance o$ so'e Parts o$ t%e 2or3s

!he firs paragraph of Sub-Clause 10. shall be deleted and it shall bereplaced with the following:=!he 7ngineer ma(, at the eclusi/e discretion of the "eneficiar(,

issue an Acceptance Certificate upon Completion of 5or#s for an(part of the &ermanent 5or#s, pro/ided that this part should beph(sicall( and operationall( independent and based on theAcceptance Protocol upon Co'pletion o$ 2or3s related to therespecti/e part.

!he second paragraph of Sub-Clause 10. shall be deleted and it shallbe replaced with the following:=!he "eneficiar( shall use no part of the 5or#s 'otherwise then asmeasure specified in the Contract, or agreed b( both &arties) until the7ngineer issues, if it issues, an Acceptance Certificate uponCompletion of 5or#s for this part. emorandum ofClarification.

T%e ne5 te:t o$ t%e su!"clause 16#)7


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The first paragraph of this Sub-Clause 1?.7 shall be deletedand it shall be replaced with the following:f the Contractor is pre"ented more than 1 days to carryout the Tests upon Completion due to a cause which is the

responsibility of the 0eneficiary# the Contractor shall notifythe 6ngineer regarding this aspect. The notification shallinclude details which should specify the reason for whichthe Tests upon Completion could not be carried out# as wellas details regarding the nature and duration of the delaysor interruptions which may occur because of this reason.mmediately after reception of this notification from theContractor# the 6ngineer shall notify the 0eneficiaryconse$uently# mentioning the causes which# in its opinion#caused the delay. n case it is demonstrated that the delaysare due to certain causes which are eclusi"ely theresponsibility of the 0eneficiary# it shall participate to the

performance of the testsin no more than 1 days fromthe date of notification of the 6ngineer by the 0eneficiaryaccording to this specific clause. The 0eneficiary shall takeall the necessary measures which depend on it in order toa"oid delays on tests carrying out from reasons due to the0eneficiary.@

The second paragraph of this Sub-Clause 1?.7 shall bedeleted.

Su!"Clause 16#8 Restoration o$ t%e Lan+ Sur$aces

!he words =of the Acceptance &rotocol upon Completion of 5or#sand =protocol shall be deleted in this Sub-Clause 10. and the( shallbe replaced b( =of the Acceptance Certificate upon Completion of

5or#s, respecti/el( =certificate.

*nchanged

Clause 11 2arrant- Perio+

Su!"Clause 11#1 Co'pletion o$ ne:ecute+ 2or3s an+ Re'e+iation o$ De$ects

!he words =of the Acceptance &rotocol upon Completion of 5or#sshall be deleted in the subparagraph 'a) of this Sub-Clause 11.1 andthe( shall be replaced b( =of the Acceptance Certificate uponCompletion of 5or#s.Sub-paragraph 'b) of Sub-Clause 11.1 shall be deleted and it shall bereplaced with the following sub-paragraph:'b) Shall eecute all the wor#s necessar( for remediate the defects,being these apparent or hidden, or of the degradations, according to

the re%uests of the "eneficiar( 'or on behalf of the "eneficiar(), withina term as short as possible as of the date of notification of the

*nchanged


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defects$degradations b( the 7ngineer and$or "eneficiar( 'the date ofnotification being deemed as the date of the first notification,irrespecti/e of the entit( which ma#es it K the 7ngineer of the"eneficiar(), but without eceeding da(s or the date of epir( of

the &eriod of @otification of the efects for 5or#s or Sectors of5or#s 'as the case ma( be).

Su!"Clause 11#< T%e Access Ri&%t

!he words =of the 4inal Acceptance &rotocol shall be deleted in thisSub-Clause 11.F and the( shall be replaced b( =of the 4inal

Acceptance Certificate.

*nchanged

Su!"Clause 11#/ Final Acceptance Protocol

!his Sub-Clause 11.9 shall be deleted and it shall be replaced with anew Sub-Clause (Final Acceptance Certi$icate.ha/ing the followingcontent:=4ulfillment of the obligations of the Contractor is not deemed as being

completed until the 7ngineer issued for the Contractor the 4inalAcceptance Certificate, specif(ing the date when the Contractorcompleted its obligations pro/ided in the Contract.On condition of recei/ing of the "eneficiar(Ds decision based on therecommendations made in the 4inal Acceptance &rotocol, the7ngineer shall issue the 4inal Acceptance Certificate within 8 da(s asof the epir( of the last &eriod of @otification of the efects, or as soonas possible after this term, pro/ided that the Contractor should ha/efurnish all the ocuments of the Contractor and should ha/ecompleted and tested all the 5or#s, including the remed(ing of an(defects. A cop( of the 4inal Acceptance Certificate shall be sent to the"eneficiar(.

!he 4inal Acceptance Certificate shall be the onl( document deemedto certif( the acceptance of the 5or#s.


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harm the responsibilit( of the Contractor for the hidden /ices of the5or#s, during the duration of the terms imposed b( the laws in force.

Su!"Clause 11#11 Site Evacuation

!he words =of the 4inal Acceptance &rotocol shall be deleted in the

first paragraph of this Sub-Clause 11.11 and the( shall be replacedwith =of the 4inal Acceptance Certificate.!he words =of the 4inal Acceptance &rotocol shall be deleted in thesecond paragraph of this Sub-Clause 11.11 and the( shall be replacedwith =of the 4inal Acceptance Certificate.

*nchanged

Clause 1) >o+i$ications an+ p+atin&

Su!"Clause 1)#1 Ri&%t to >o+i$-

!he following shall be added at the beginning of this sub-clause:=An( >odification must be pre/iousl( appro/ed b( the "eneficiar(.Onl( once appro/ed b( the "eneficiar( and the 7ngineer it ma( beincluded in the net o+i$ications o$ t%e La5s!he following shall be added after the first paragraph of this sub-clause:=!he 5or#s shall be carried out according to the norms andstandards in force before the reference date. An( modification,updating, correction or impro/ement of the norms$standards after thereference date shall not automaticall( lead to the right of theContractor according to the Contract to in/o#e Sub-clause 0.1 inorder to notif( its intention to claim according to this subKclause,ecepting the case when such a modification, updating, correction orimpro/ement of the norms$standards which could occur after thereference date, full( 2ustified b( the Contractor and confirmed b( the

7ngineer, would lead to a critical dela( and$or to additional significantcosts of a nature to affect the fulfillment of the contractual obligations

!he terms critical dela( and significant cost were initiall(defined within the clarification documents.

A change of these conditions cannot be accepted because itcould change the financial conditions from the tenderdocumentation.



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of the Contractor. According to this paragraph, significant additionalcosts mean more then 1J from the Contract &rice without contingentamounts, and critical dela( means an( dela( that could result ineceeding of the 7ecution uration of the &ro2ect.

Comment:

9he terms Bcritical delayC and Bsignificant costsC must e defined in order to

not gi%e rise to some suseuent misunderstandings etween 'arties$ ut in

the same time their definition must not hinder the application of this clause!

Su!"Clause 1)#4 p+atin& enerate+ !- >o+i$ications o$ Prices

Sub-Clause 1+.8 shall be deleted. *nchanged

Clause 18 Price o$ Contract an+ Pa-'ents

Su!"Clause 18#1 Price o$ Contract

!he following shall be added at the end of Sub-Clause 1.1:

=!he 7ngineer shall notif( the "eneficiar( and the Contractorwhene/er it becomes aware of the fact that the &rice of the Contracteceeds the 7pected Contract Halue or an( contract /aluesubse%uentl( agreed b( the "eneficiar( and the Contractor withincertain addenda to the Contract.

*nchanged

Su!"Clause 18#* A+vance Pa-'ent

Sub-Clause 1. shall be deleted and it shall be replaced with thefollowing:

=!he "eneficiar( shall ma#e an ad/ance pa(ment, without an(interest, in order to eecute the 5or#s, after the Contractor transmitsan acceptable guarantee according to the pro/isions of this Sub-Clause. !he total /alue of the ad/ance pa(ment, number and date ofinstallments 'if more than one) and the pa(ment currencies and theirratio shall be specified in the Anne to the Offer.

*ntil the "eneficiar( recei/es, if it recei/es, the ade%uate guarantee,or if the total /alue of the ad/ance pa(ment is not specified in the

Anne to the Offer, the pro/isions of this Sub-Clause shall not beapplied.

!he 7ngineer shall issue an


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ad/ance pa(ment after recei/ing b( the "eneficiar( 'i) of the&erformance "ond according to the pro/isions of Sub-Clause .84erformance 0ond9 and 'ii) of a guarantee in the amount andcurrenc( set out for the ad/ance pa(ment. !his guarantee shall be

issued b( a ban# and from a countr( 'or another 2urisdiction) appro/edb( the "eneficiar(, and it shall ha/e the form attached to the SpecialConditions or another form appro/ed b( the "eneficiar(.!he Contractor shall assure that each guarantee shall remain /alidand in force up to the return of the ad/ance, but the /alue of theguarantee ma( be decreased progressi/el( with the amountsreimbursed b( the Contractor, such as the( are indicated in the&a(ment Certificates.


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!he words =of the Acceptance &rotocol upon Completion of 5or#sshall be deleted in the last sentence of the second paragraph of thisSub-Clause 1. and the( shall be replaced b( =of the AcceptanceCertificate upon Completion of 5or#s.

*nchanged

Su!"Clause 18#; Issuin& o$ Interi' Pa-'ent Certi$icates!he words =of the Acceptance &rotocol upon Completion of 5or#sshall be deleted in the second paragraph of this Sub-Clause 1.E andthe( shall be replaced b( =of the Acceptance Certificate uponCompletion of 5or#s.

A new paragraph shall be added at the end of Sub-Clause 1.E:=5ithout ta#ing into account the pro/isions of Sub-Clause .680eneficiary>s Claims9, the "eneficiar( is entitled to correct thearithmetical errors in an( &a(ment Certificate.

A new paragraph shall be added at the end of Sub-Clause 1.E:=5ithout pre2udicing an( other right of the Contractor which resultsfrom the Contract or in another wa(, the 7ngineer cannot issue an


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supporting documents, the in/oice as well as an( document whichthe "eneficiar( re%uests in order to ma#e the pa(ment, in a completeand correct form.=

Su!"Clause 18#4 Dela-s in >a3in& t%e Pa-'ents

!he tet part =+ percent points shall be replaced in the secondparagraph of Sub-Clause 1.8 b( =1.6 per cent points.!he last paragraph of Sub-Clause 1.8 shall be deleted and it shall bereplaced with the following:=!he Contractor shall be entitled to this pa(ment based on issuing ofan in/oice, based on an


30/38


!he words =Acceptance &rotocol upon Completion of 5or#s shall bedeleted in sub-paragraph 'a) of the first paragraph of this Sub-Clause1.10 and the( shall be replaced with =Acceptance Certificate uponCompletion of 5or#s.

Su!"Clause 18#11 Presentation o$ Final 2or3s State'ents

!he words =of the 4inal Acceptance &rotocol shall be deleted in thelast paragraph of this Sub-Clause 1.11 and the( shall be replacedwith =of the 4inal Acceptance Certificate.!he last phrase of the Sub-Clause 1.11 shall be deleted and it shallbe replaced with the following:=


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Su!"Clause 1#* Ter'ination o$ t%e Contract !- t%e ,ene$iciar-

!he second paragraph of Sub-Clause 16. shall be deleted and itshall be replaced with the following:

=


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Sub-paragraph 'e) of Sub-Clause 1E. shall be deleted and it shall bereplaced with the following:

'e) =!he "eneficiar( fails to obser/e the pro/isions of Sub-Clause 1.F &ssignment3.

Sub-paragraph 'g) of Sub-Clause 1E. shall be deleted and it shall bereplaced with the following:

'g) incidents are the pro/isions of art. 1869 from omanian Ci/ilCode.

!he second sub-paragraph of Sub-Clause 1E. shall be deleted and itshall be replaced with the following:

=


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!he first sentence of the first paragraph of this Sub-Clause 1F. shallbe deleted and it shall be replaced with the following:=!he Contractor shall assume the entire responsibilit( for the ta#ingcare of the 5or#s and oods as of the ate of Start up to the date of

issue of the Acceptance Certificate upon Completion of 5or#s or untilthe acceptance is deemed as admitted b( the "eneficiar( under thelaw, date when responsibilit( for ta#ing care of the 5or#s shall betransferred to the "eneficiar(.!he words =Acceptance &rotocol upon Completion of 5or#s shall bedeleted in the second sentence of the first paragraph of this Sub-Clause 1F. and the( shall be replaced with =Acceptance Certificateupon Completion of 5or#s.!he words =Acceptance &rotocol upon Completion of 5or#s shall bedeleted in the second paragraph of this Sub-Clause 1F. and the(shall be replaced with =Acceptance Certificate upon Completion of5or#s.!he words =of the Acceptance &rotocol upon Completion of 5or#sshall be deleted in the first sentence of the last paragraph of this Sub-Clause 1F. and the( shall be replaced with =of the AcceptanceCertificate upon Completion of 5or#s.!he words =Acceptance &rotocol upon Completion of 5or#s shall bedeleted in the last sentence of the last paragraph of this Sub-Clause1F. and the( shall be replaced with =Acceptance Certificate uponCompletion of 5or#s and are replaced with ;Acceptance Certificateupon Completion of 5or#s.

*nchanged

Su!"Clause 1


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;@o &art( shall be responsible to the other &art( for incapacit( to usean( of the 5or#s, profits loss, loss of a contract or an indirect loss orconse%uential loss or damage that ma( be suffered b( the other &art(in connection with the Contract, other then those pro/ided in Sub-

Clause 1E. &a(ment after !ermination b( Contractor3.

!he second paragraph of Sub-Clause 1F.E shall be deleted and it shallbe replaced with the following:

;!he total liabilit( of the Contractor towards "eneficiar( under theContract should not eceed +0J from the Contract &rice.

Comment:

9he change is according to the practice in the sector$ the limitation of the

1ontractor8s total liaility to a certain percent from 1ontract 'rice$ e%en

lower then 30>$ eing usual!

"sence of the e*istence of an amount of the total liaility entails the

1ontract ualification towards any financier$ auditor!

clause 1F.E eneral Conditions.


Clause 14 " Insurances

Su!"Clause 14#1 eneral Re=uire'ents $or Insurances

etter of &cceptance@ from the second phrase of the secondparagraph of Sub-Clause 18.1 shall be deleted and it shall be replacedwith Contractual &greement@.

*nchanged

Su!"Clause 14#* Insurance o$ 2or3s an+ >ac%ineries o$ t%e Contractor

Su! !he words =of the Acceptance &rotocol upon Completion of 5or#s

shall be deleted in the first paragraph of this Sub-Clause 18. and the(shall be replaced with =of the Acceptance Certificate upon Completionof 5or#s.!he words =of the 4inal Acceptance &rotocol and =of the Acceptance&rotocol upon Completion of 5or#s shall be deleted in the secondparagraph of this Sub-Clause 18. and the( shall be replaced with=4inal Acceptance Certificate and respecti/el( =of the AcceptanceCertificate upon Completion of 5or#s.

*nchanged

Su!"Clause 14#) Insurance a&ainst Persons InBuries an+ Propert- Da'a&es

!he words =of the 4inal Acceptance &rotocol shall be deleted in thefirst paragraph of this Sub-Clause 18.+ and the( shall be replaced with=of the 4inal Acceptance Certificate.

*nchanged

Su!"Clause 1/#* Noti$ication o$ Force >aBeure


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!he following shall be added at the end of the first paragraph of Sub-Clause 19.:

=@otification shall be accompanied b( the corresponding supportingdocumentation, which should moti/ate the issuing of the notification.

*nchanged

Clause *6 Clai's0 Disputes an+ Ar!itra&e


36/38


intermediar( phase of dispute conciliation before the( should besubmitted to the competent court. 5e consider useful this phase 'dueto the celerit( of litigation settlement, as well as to the compleit( ofcontract ob2ect that re%uests thorough technical #nowledge) and

beneficial to both &arties in order to assure the pro2ect de/elopment inthe best conditions.

Su!"Clause *6#) Failure o$ Appoint'ent o$ t%e Co''ission $or A+Bu+ication o$Disputes

!he Sub-Clause 0.+ shall be deleted and shall be replaced with thefollowing:

=


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obtain a decision, or to the reasons presented in the claim note. An(decision ta#en b( CA shall be accepted as proof before courts.

!he trial can begin before or after the completion of 5or#s. !hecontractual obligations of the &arties and of the 7ngineer shall not be

modified$affected in an( wa( due to the carr(ing on of a 2udgmentprocedure during the eecution of the 5or#s.

A ne5 Clause *1 s%all !e a++e+ @eri$ications an+ Au+its Carrie+ Out !- t%eRo'anian an+ Co''unit- Aut%orities

=!he Contractor shall allow to the omanian Audit Authorit(, theomania Anti-4raud Office, the 7uropean Commission, the 7uropean

Anti-4raud Office and to the 7uropean Auditors Court to /erif(, b(eamination of the documents or b( means of on spot /erifications, theimplementation of the pro2ect and to carr( on a complete audit, ifapplicable, based on the supporting documents for the accounts,accounting documents and an( other documents rele/ant for thefinancing of the pro2ect. !hese inspections ma( ta#e place for up to F(ears after ma#ing the final pa(ment.>oreo/er, the Contractor shall allow the omanian and 7uropean Anti-4raud Offices to carr( on inspections and on spot /erificationsaccording to the pro/isions of the legislation of the 7uropeanCommunit( in order to protect the financial interests of the 7uropeanCommunit( against fraud or other infringements of the law.!he Contractor underta#es, for this purpose, to pro/ide the ade%uateaccess of its personnel or of the agents of the authorities mentioned inthe first paragraph of this Clause to the sites and locations were theContract is carried on, including to the information s(stems, as well asto all documents or data bases regarding the technical and financialmanagement of the pro2ect and to ta#e all the necessar( measures inorder to facilitate their acti/it(. !he access right granted to the agentsof the abo/e-mentioned authorities shall be granted based on theprinciple of confidentialit( against third parties, without pre2udicing theobligations specified b( the public law to which the( are sub2ect to. !hedocuments must be easil( accessible and archi/ed so that to facilitatethe eamination and the Contractor must notif( the "eneficiar(regarding their precise location.!he Contractor guarantees that the rights of the authorities mentionedin the first paragraph of this Clause to carr( on audits, inspections and/erifications shall go/ern in the same wa(, under the same conditionsand according with the same rules pro/ided b( this Clause, an( sub-contractor or an( other part( which benefits from funds granted b( the7uropean Commission.

*nchanged


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Documents

Special Conditions of the Contrac1