Conditions of Contract for EPC/Tumkey Projects （Extracts）
4.1 Contractor’s General Obligations
The contractor shall design, execute and complete，the works in accordance with the contract, and shall remedy any defects in the works. When completed, the works shall be fit for the purpose for which the works are intended as defined in the contract.
The contractor shall provide the plant and contractor’s documents specified in the contract，and all the contractor's personnel, goods，consumables and other goods and services, whether of a temporary nature, required in and for this design, execution, completion and remedying of defects.
The works shall include any work which is necessary to satisfy the Employer’s requirements, or is implied by the contract, and all works which （although not mentioned in the contract） are necessary for stability or for the completion, or safe and proper operation , of the works.
The contractor shall be responsible for all the adequacy, stability and safety of all site operations, of all methods of construction and of all the works.
The contractor shall, whenever required by the employer, submit details of the arrangements and methods which the contractor proposes to adopt for the execution of the works. No significant alteration to these arrangements and methods shall be made without this having previously been notified to the Employer.
4.2 Performance Security
The contractor shall obtain (at his cost) a performance security for proper performance, in the amount and currencies stated in the particular conditions. If an amount is not stated in the particular conditions, this sub-clause shall not apply.
The contractor shall deliver the performance security to the employer within 28 days after both parties have signed the contract agreement. The performance security shall be issued by an entity and from within a country ( or other jurisdiction) approved by the employer, and shall be in the form annexed to the particular conditions or in another form approved by the employer.
The contractor shall ensure that the performance security is valid and enforceable until the contractor has executed and completed the works and remedied any defects. If the terms of the performance security specify its expiry date, and the contractor has not become entitled to receive the performance certificate by the date 28 days prior to the expiry date, the contractor shall extend the validity of the performance security until the works have been completed and any defects have been remedied.
The employer shall not make a claim under the performance security, except for amounts to which the employer is entitled under the contract in the event of:
(A) Failure by the contractor to extend the validity of the performance security as described in the preceding paragraph, in which event the employer may claim the full amount of the performance security,
(B) Failure by the contractor to pay the employer an amount due, as either agreed by the contractor or determined under sub-clause 2.5 [employer’s claims] or clause 20 [claims, disputes and arbitration] , within 42 days after this agreement or determination,
(C) Failure by the contractor to remedy a default within 42 days after receiving the employer’s notice requiring the default to be remedied，or
(D) Circumstances which entitle the employer to termination under sub-clauses 15. 2 [termination by employer], irrespective of whether notice of termination has been given.
The employer shall indemnify and hold the contractor harmless against and from all damages，losses and expenses ( including legal fees and expenses) resulting from a claim under the performance security to the extent to which the employer was not entitled to make the claim.
The employers shall return the performance security to the contractor within 21 days after the contractor has become entitled to receive the performance certificate.
4. 3 Contractor’s Representative
The contractor shall appoint the contractor representative, and awarded him with all the necessary rights that he needs to act on behalf of the contract.
Unless the contractor’s representative is named in the contract, the contractor shall, prior to the commencement date, submit to the employer for consent the name and particulars of the person the contractor proposes to appoint as contractor’s representative. If consent is withheld or subsequently revoked, or if the appointed person fails to act as contractor’s representative, the contractor shall similarly submit the name and particulars of another suitable person for such appointment.
The contractor shall not, without the prior consent of the employer, revoke the appointment of the contractor’s representative or appoint a replacement.
The contractor’s representative may delegate any powers, functions and authority to any competent person, and may at any time revoke the delegation. Any delegation or revocation shall not take effect until the employer has received prior notice signed by the contractor’s representative, naming the person and specifying the powers, functions and authority being delegated or revoked.
The contractor’s representative and all these personnel shall be fluent in the language for communication defined in sub-Clause 1.4 [Law and Language].
The contractor shall not subcontract the whole of the works.
The contractor shall be responsible for the acts or defaults of any subcontractor, his agents or employees, as if they were the acts or defaults of the contractor. Where specified in the particular conditions, the contractor shall give the employer not less than 28 days’ notice of：
(A) The intended appointment of the subcontractor, with detailed particulars which shall include his relevant experience,
(B) The intended commencement of the subcontractor’ s work, and
(C) The intended commencement of the subcontractor’ s work on the site.
4. 5 Nominated Subcontractors
In this sub-clause, the “nominated subcontractor” refers to the subcontractor whom the employer, under Clause 13 [ Variations and Adjustments] , instructs the contractor to employ as a subcontractor. The Contractor shall not be under any obligation to employ a nominated subcontractor against whom the contractor raises reasonable objection by notice to the employer as soon as practicable, with supporting particulars.
Contractor shall, as specified in the contract or as instructed by the employer, allow appropriate opportunities for carrying out work to：
(A) the employer ’ s personnel,
any other contractors employed by the employer, and
The personnel of any legally constituted public authorities, who may be employed in the execution on or near the site of any work not included in the contract.
Any such instruction shall constitute a variation if and to extent that it causes the contractor to incur cost in an amount which was not reasonably foreseeable by an experienced contractor by the date for submission of the tender. Services for these personnel and other contractors may include the use of contractor ’ s equipment temporary works or access arrangements which are the responsibility of the contractor.
The contractor shall be responsible for the construction activities in the field, and shall, co-ordinate his own activities with those of other contractors to the extent(if any) specified in the employer' s requirements.
If under the contract, employers are required to give to the contractor the possession of any foundation，structure, plant or means of access in accordance with contractor's documents, the contractor shall submit such documents to the employer in the time and manner stated in the employer’s requirements.
4.7 Setting Out
The contractor shall set out the works in relation to original points, lines and levels of reference specified in the contract. The contractor shall be responsible for the correct positioning of all parts of the works, and shall rectify any error in the positions, levels, dimensions or alignment of the works.
4.8 Safety Procedures
(A) Comply with all applicable safety rules；
(B) Take care of the safety of all persons entitled to be on the site；
Use reasonable efforts to keep the site and works clear of unnecessary obstruction so as to avoid danger to these persons
(D) Provide fencing, lighting, guarding and watching of the works until completion and taking over under Clause 10 [ Employer Receives] and,
(E) provide any temporary works ( including roadways, footways, guards and fences, etc. ) which may be necessary, because of the execution of the works, for the use and protection of the public and owners and occupiers of adjacent land .
4.9 Quality Assurance
The Contractor shall establish a quality assurance system to demonstrate compliance with contract requirements. The system should be in accordance with the detailed provisions of the contract. Employers shall be entitled to audit any aspect of the system.
Details of all procedures and compliance documents shall be submitted to the employer for information before each design arid execution stage is commenced. When any document of a technical nature is issued to the employer, evidence of the prior approval by the contractor himself shall be apparent on the document itself.
4.10 Site Data
The employer shall have made available to the contractor for his instruction, prior to the Base Date，all relevant data in the employer ’ s possession on subsurface and hydrological conditions at the site, including environment aspects. The Employer shall similarly make available to the contractor all such data which come into the employer ’ s possession after the base data.
The contractor shall be responsible for the verifying and interpreting all such data. The employer shall have no responsibility for the accuracy, sufficiency or completeness of such data, except as stated in sub-clause 5. 1 [General Design Responsibility].