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164

Appendices

Appendix J Model Letters for Use by the Employer


Letter to the Contractor c.c.: Engineer EMP. 1.8

Sub-Clause 1.8 Care and Supply of Documents

(Although this sub-clause requires the mployer to supply the Contractor !ith documents including Specifications and Dra!ings" in practice the mployer may delegate this tas# to the ngineer.$ (%uote$ &n accordance !ith the pro'isions of Sub-Clause 1.8" Care and Supply of Documents" !e here!ith pro'ide you !ith t!o copies of the follo!ing documents( (1$ ()$ (+$ (*ro'ide full listing$

(,nquote$

Letter to the Contractor

c.c.: Engineer

EMP. 1.13

Sub-Clause 1.1+ Compliance !ith Statutory -egulations and .a!s

(%uote$ /e ad'ise you that !e ha'e obtained (typically$ a construction permit enabling !or# to commence. (,nquote$

Appendix J

An Employers and Engineers Guide to the FIDIC Conditions of Contract" 0irst dition. 1ichael D. -obinson. 2 )31+ 4ohn /iley 5 Sons" .td. *ublished )31+ by 4ohn /iley 5 Sons" .td.

Appendix J

165

Letter to the Contractor

c.c.: Engineer

EMP. 2.1

Sub-Clause ).1 -ight of Access to the Site First Letter (%uote$ 6n (Date$" at 7 hours" !e intend to gi'e you access to the Site and to hand o'er to you the !hole of the Site (or hand o'er the follo!ing parts of the Site$( (*ro'ide details of the parts$

(And" if not already pro'ided$ *lease ensure that the *erformance Security is pro'ided and that all required &nsurances are in force prior to the date of the hand-o'er. (,nquote$

Second Letter (in follow up (%uote$ /e confirm that follo!ing a site inspection" the Site (and access thereto$ !as pro'ided to you for the e8ecution of the /or#s at ... hours" on 7 (date$. or /e confirm that the follo!ing parts of the Site (and access thereto$ !ere pro'ided to you for the e8ecution of the /or#s at 7 hours" on 7 (date$( (1$ ()$ 6ptions( 1. ). Consider if it !ould be useful to attach a dra!ing or s#etch to define the physical limits of the hand-o'er. 8ceptions 9he follo!ing minor areas:buildings are presently e8cluded from the hando'er and !ill be handed o'er as follo!s(

(,nquote$ Counter-signature for acceptance .................................................... Contractor;s -epresentati'e

Appendix J

(1$ ()$

(Description$ a'ailable by (date$ (Description$ a'ailable by (date$

166

Appendices

Letter to the Public Authorities and others

c.c.: Engineer and Contractor

EMP. 2.2

Sub-Clause ).) *ermits" .icences or Appro'als

&t is not possible here to define all the 'arious types of letters !hich the mployer may need to pro'ide under the pro'isions of this sub-clause. A topic frequently encountered is a need for the mployer to pro'ide letters to <o'ernment departments in support of the Contractor;s actions. 9ypically this !ould include letters to the customs authorities enabling the Contractor efficiently to import his <oods and 1aterials into the country and letters of support or e8planation to local authorities !ho may be affected by the Contractor;s acti'ities.

Letter to the Contractor

c.c.: Engineer

EMP. 2.4

Sub-Clause ).= mployer;s 0inancial Arrangements

9he tender documents !ill in'ariably pro'ide basic information of the mployer;s financial arrangements. %ueries are most li#ely to arise !hen the Contractor is required to perform additional !or#s at a stage of the Contract !hen the stated source of financing is already e8hausted. A simple response to a request from the Contractor for clarification could be( (%uote$ &n response to your letter reference:data" you are ad'ised that funding for the remaining:additional !or#s is to be pro'ided by .......... (,nquote$

Appendix J

Appendix J

167

Letter to the Engineer

c.c.: Contractor

EMP. 2.5

Sub-Clause ).> mployer;s Claims

!ote(

A full listing of matters !hich entitle the mployer to claim payment from the Contractor is pro'ided in Appendi8 D.

Sub-Clause ).> does not pro'ide a specific period in !hich the mployer is obligated to gi'e notice of his intention to ma#e a claim against the Contractor and states only that ?"he notice shall #e gi$en as soon as practica#le after the Employer #ecame aware of the e$ent or circumstances gi$ing rise to the claim;. A typical letter !ould be( (%uote$ &n compliance !ith the pro'isions gi'en in Sub-Clause ).> of the <eneral Conditions of Contract the mployer hereby gi'es notice that he considers himself entitled to payment from the Contractor in respect of 7 (pro'ide claim heading$ in accordance !ith Sub-Clause 7 (refer to Appendi8 D$. (,nquote$ 9he abo'e letter records only the mployer;s entitlement. A follo!-up letter should follo! detailing !ith precision the amount claimed by the mployer for e'aluation by the ngineer in accordance !ith the pro'isions of Sub-Clause +.>" Determinations.

!ote(

@ecause of its importance" a separate draft model letter ( 1*. 8.A$ on the topic of Delay Damages is included

Appendix J

168

Appendices

Letter to the Contractor

c.c.: Contractor

EMP. 3.1

Sub-Clause +.1 ngineer;s Duties and Authority

/hene'er possible" the mployer !ill ha'e named the ngineer in the tender documents. Bo!e'er" circumstances may arise !hich oblige the mployer to name the ngineer after the @ase Date. 9he follo!ing letter is appropriate( (%uote$ &n accordance !ith Sub-Clause +.1" ngineer;s Duties and Authority" (name of ngineer$ has been appointed as ngineer. Details of the ngineer are as follo!s( Came( -epresented by( Address( Address for Correspondence (if different$( -mail( 9elephone( 0acsimile( (,nquote$

!ote(

&t is the duty of the ngineer to ad'ise the Contractor of any delegation of his authority in accordance !ith Sub-Clause +.).

Appendix J

Appendix J

169

Letter to the Contractor

c.c.: Engineer

EMP. 3.4

Sub-Clause +.= -eplacement of the

ngineer

(%uote$ /e ad'ise you that the current ngineer (name$ !ill be replaced !ith effect from (date$ by (name$. Details of the replacement ngineer are as follo!s( Came( -epresented by( Address( Address for Correspondence (if different$( -mail( 9elephone( 0acsimile( (,nquote$

Appendix J

170

Appendices

Letter to the Contractor

c.c.: Engineer

EMP. 4.2

Sub-Clause =.) *erformance Security

(%uote$ 9he *erformance Security (number$ pro'ided by (*ro'ider$ and sent to us under co'er of your letter (reference$ has been e'aluated and found to be in accordance !ith the requirements of the contract. (,nquote$

!ote(

Should the submitted *erformance Security not be acceptable" then a similar letter" but one of reDection" is to be sent" preferably identifying the reasons for the reDection.

Letter to the Contractor

c.c.: Engineer

EMP. 4.10

Sub-Clause =.13 Site Data

!ote(

9he mployer is required to ha'e made a'ailable to the Contractor" as part of the tender documents" all rele'ant data in his possession prior to the @ase Data.

&t is a further requirement that the mployer shall ma#e a'ailable to the Contractor all other rele'ant data that may come into the mployer;s possession after @ase Date. A typical letter !ould be( (%uote$ &n accordance !ith Sub-Clause =.13 !e here!ith pro'ide you !ith the follo!ing additional data(

Appendix J

(1$ ()$ (+$ 9he Contractor is responsible for interpreting this data. (,nquote$

Appendix J

171

Letter to the Engineer

c.c.: Contractor

EMP. 8.

Sub-Clause 8.A Delay Damages

(%uote$ 9he Contractor has failed to complete the /or#s (or part of the /or#s$ by (date$ (9ime for Completion$. &n accordance !ith the pro'isions of Sub-Clause 8.A" Delay Damages" the mployer gi'es notice that he considers himself entitled to payment of delay damages by the Contractor in respect of his failure. 9his notice complies !ith the requirements of Sub-Clause ).>. (,nquote$ !ote( ,nless the final period is #no!n !ith e8actitude" it is suggested that quantum of the claim could be delayed until the period of delay is final.

Letter to the Contractor

c.c.: Engineer

EMP. 14.2

Sub-Clause 1=.) Ad'ance *ayment

(%uote$ 9he guarantee pro'ided for the ad'ance payment (number$ pro'ided by (*ro'ider$ and sent to us under co'er of your letter (reference:date$ has been e'aluated and found to be in accordance !ith the requirements of the Contract. (,nquote$

()$

Appendix J

!otes(

(1$

9he mployer is required to pro'ide the Contractor !ith an ad'ance payment for mobilisation !ith the pro'iso that the Contractor pro'ides an acceptable guarantee. Should the submitted guarantee not be acceptable" then a similar letter" but one of reDection" is to be sent" preferably identifying the reasons for the reDection.

172

Appendices

Letter to the Contractor

c.c.: Engineer

EMP. 15.2

Sub-Clause 1>.) 9ermination by the (%uote$

ngineer

&n accordance !ith the pro'isions of Sub-Clause 1>.)" 9ermination by the mployer" you are gi'en 1= days notice that your contract (title:number$ is terminated. Eour contract is terminated for the follo!ing reasons( (Select from sub-items (a$ (f$ gi'en in Sub-Clause 1>.)$ (,nquote$ !otes( (1$ 9ermination of the Contract is a most serious matter and should be subDect to legal re'ie! before any notice of termination is issued to the Contractor. 0or defaults falling under Sub-Clauses 1>.) (e$" @an#ruptcy" and Sub-Clause 1>.) (f$" Corruption" the notice of termination can be immediate" but this has to be stated so in the letter of termination.

()$

Letter to the Engineer

EMP. 15.2

Sub-Clause 1>.) 9ermination by the (%uote$

mployer

Eou ha'e been notified by separate correspondence that Contract (name:number$ of 1essrs (name of Contractor$ has been terminated !ith effect from (date$. Eou are instructed to ma#e a 'aluation of the /or#s in accordance !ith the pro'isions of Sub-Clause 1>.+" Faluation at Date of 9ermination" ta#ing into account the further requirements of Sub-Clause +.>" Determinations. &n addition" you are required to ta#e deli'ery of any <oods" all Contract 1aterials and other design documents made for or by the Contract" to categorise the same and arrange for them to be deli'ered to the mployer in a manner and timing to be discussed. (,nquote$ !ote( 6ther specific matters" such as the ngineer;s accommodation" 'ehicles" ongoing site security could also be addressed in these instructions or addressed in a separate letter.

Appendix J

Appendix J

173

Letter to the Contractor !onl" i# re$uired%

c.c.: Engineer

EMP. 18.0

Clause 18.3 &nsurances

/ithin the Contract Documents the mployer !ill ha'e defined !hether he !ill himself pro'ide the required Contract insurances or !hether he required the Contractor to pro'ide the same. &n either case the ser'ices of insurance specialists !ill be required to ensure that the contractual obligations of the *arties are correctly addressed. 9here is no requirement for the mployer to appro'e insurance documents pro'ided by the Contractor;s insurers" since there is a ris# of inad'ertently affecting the ris# distribution bet!een the *arties. &t is appropriate that the mployer ad'ises the Contractor of any inadequacies of the Contractor pro'ided insurance policy and request that they be amended accordingly.

Appendix J

174

Appendices

Letter to the Contractor

c.c.: Engineer

EMP. 20.2

Sub-Clause )3.) Appointment of the Dispute AdDudication @oard

(%uote$ /e propose to appoint (name$ as a member of the Dispute AdDudication @oard. A copy of the curriculum 'itae of (name$ is attached for your e8amination. Eour consent is requested. (,nquote$ and (%uote$ /e consent to the appointment of (name Contractor;s member$ as a member of the Dispute AdDudication @oard. (,nquote$

Letter to the Contractor

c.c.: Engineer

EMP. 20.4

Sub-Clause )3.= 6btaining Dispute AdDudication @oard;s Decision

(%uote$ /e ha'e recei'ed the Dispute AdDudication @oard;s decision (number:title$. /e are dissatisfied !ith the decision of the @oard and required that the dispute be referred to arbitration in accordance !ith the procedures stated in Sub-Clauses )3.> and )3.G of the Conditions of Contract.

Appendix J

(,nquote$ !ote( 9his notice is to be gi'en !ithin )8 days of receipt of the DA@s decision. &t is not necessary to e8plain the reason for non-acceptance in this response. &f the non-acceptance is limited to one part of the decision" then the response should clarify matters.