Article 32 GENERAL ALLOCATION OF RESPONSIBILITY OF THE PARTIES FOR THE DESIGN

32.1 The basic principle to be followed in this Contract is that the Employer specifies the desired final Works and provides the information and cooperation required by the Contractor, and the Contractor develops the Design and implements the methods intended to complete the Works to specification and within the time allowed under the Contract.

32.2 The Employer is responsible for the Employer’s Requirements, all Design, materials or Plant that it specifies or requires, or for which there is no practical alternative; and the Contractor is responsible for the Tender, and all Design, goods, materials, Plant and Equipment it supplies and uses.

32.3 Without limiting the generality of Article 32.2, each Party shall be responsible for the correctness of the data and information provided by (or on behalf of) that Party, including, without limitation:

  1. definitions of intended purposes of the Works or any Section of them;
  2. parameters for the testing and performance of the Works;
  3. measurements, data and information that cannot be reasonably verified by the other Party, having regard to Costs and time; and
  4. any Design supplied by any Sub-contractor of the Party or by the Party itself.

32.4 As a general rule and unless otherwise agreed or reasonable in the circumstances, the Contractor shall carry out, and in accordance with the Contract be responsible for, the development of the Design. The Employer shall have the right to be informed of the Design development, but shall not have the right to determine methods of working, the style or kind of Temporary Works, or other matters that are central to the notion of a turnkey contract.

32.5 The Contractor holds itself, its designers and design Sub-contractors as having the experience and capability necessary for the Design. The Contractor undertakes that the designers shall be available to attend discussions with the Employer at all reasonable times during the Contract.

32.6 Without limiting the generality of Articles 32.1 through 32.5, final Design responsibility may be shared between the Parties, where for example and without limitation to the generality of the foregoing, the Employer specifies a performance requirement, and the Contractor proposes a method of meeting that requirement, or where the Employer specifies a material or proprietary substance or method and the Contractor agrees it is suitable for the particular purpose for which it is intended.

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Article 33 THE DESIGN REVIEW PROCESS

33.1 The purpose of these Design elaboration and review provisions is to ensure that Design development is orderly and that the Parties’ rights and responsibilities are clearly set out. The Employer has an interest in seeing the Works performed at the initially agreed Contract Price, and the Contractor has an interest in performing the Works in an efficient fashion at a budget within the range originally intended. The following provisions are to be interpreted with these objectives in mind. They will apply unless it has been expressly stated in the Contract or otherwise agreed that they are not to apply.

DOCUMENTS THAT THE CONTRACTOR IS TO PREPARE

33.2 The Contractor shall prepare all Contractor’s Documents. Unless otherwise stated in the Contract or allowed on a case-by-case basis, the Contractor’s Documents shall be written in the ruling language. The Contractor’s Documents shall comprise the technical documents specified in the Contract, documents required to satisfy all regulatory approvals, and the documents described below in the Articles relating to as-built documents and operation and maintenance manuals.

33.3 The Contractor shall also prepare any other documents necessary to instruct the Contractor’s Personnel.

SUBMISSION OF SPECIFIED DESIGN DOCUMENTS

33.4 If the Contract describes the Contractor’s Documents that are to be submitted to the Employer for review, they shall be submitted accordingly. The Contractor is required to submit only those Documents that are specified as requiring review.

REVIEW PERIOD

33.5 Unless otherwise stated in the Contract, each review period shall not exceed 21 Days, calculated from the Date on which the Employer receives Contractor’s Documents stated to be ready for review in accordance with this Article 33. If the Contractor is not notified of the review status of a Contractor’s Document within the review period, such document is deemed to have been reviewed by the Employer and approved.

EMPLOYER NOTICES IN RESPECT OF ALLEGED NON-COMPLIANT DESIGN

33.6 If the Contractor’s Documents are acceptable to the Employer, they will be returned marked “Reviewed by the Employer” with the Date noted. The Employer may, within the review period, give notice to the Contractor that a Contractor’s Document fails (to the extent stated and as exactly identified) to comply with the Contract. If the Contractor receives such notice and the Contractor’s Document does in fact fail to comply with the Contract, it shall be rectified and resubmitted for review in accordance with this Article 33.

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VARIATIONS TO COMPLIANT DESIGN

33.7 The Employer may instruct material changes to the Contractor’s Documents even if the Contractor’s Document complies with the Contract. If the Contractor considers the change to be a Variation, the Contractor shall notify the Employer and the Variation provisions of Article 35 shall apply.

WORK BEFORE REVIEW

33.8 In principle, and unless otherwise agreed between the Parties or instructed by the Employer, no work should commence before the end of the relevant review period for each and every Contractor’s Document to which the work applies. If the Contractor chooses to commence work in respect of matters described in Contractor’s Documents without review, or prior to the end of the review period, such work is done at the Contractor’s own risk.

CONTRACTOR CHANGES TO DESIGN

33.9 If the Contractor wishes to modify any Contractor’s Document that has previously been submitted for review, the Contractor shall immediately give notice to the Employer. Thereafter, the Contractor shall submit revised Contractor’s Documents to the Employer in accordance with the review procedure pursuant to this Article 33.

DESIGN ERRORS

33.10 If errors, omissions, ambiguities, inconsistencies, inadequacies or other Defects are found in the Contractor’s Documents at any time by any party, they and the Works shall be corrected by the Contractor at the Contractor’s expense, notwithstanding any review under this Article 33.

SAMPLES

33.11 If agreed between the Parties or instructed by the Employer as a Variation, the Contractor shall submit samples and relevant information to the Employer for preconstruction review. Each sample should be labelled with its origin and intended use in the Works.

AS-BUILT DRAWINGS

33.12 The Contractor shall prepare, and keep up-to-date, a complete set of records of the execution of the Works, showing the exact as-built locations, sizes and details of the Works as executed. A preliminary copy shall be supplied to the Employer before Taking-Over.

33.13 In addition, the Contractor shall supply to the Employer on a Date as set out in the Schedule of Contractual Amendments (or to be agreed between the Parties) the final as-built drawings of the Works, if they are different from the documents described in Article 33.12, showing all Works as executed.

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TRAINING AND OPERATION AND MAINTENANCE MANUALS

33.14 The Contractor shall carry out the training of Employer’s Personnel in the operation and maintenance of the Works to the extent specified in the Contract.

33.15 Any training in addition to training specified in the Contract shall be considered to be a Variation.

33.16 At least three months prior to Taking-Over, unless otherwise agreed, the Contractor shall supply to the Employer preliminary operation and maintenance manuals. Contractor shall further, before Taking-Over, provide preliminary operating and maintenance manuals in sufficient detail for the Employer to operate and maintain the Works.

33.17 Final operation and maintenance manuals will be handed over on a Date to be agreed between the Parties.

Article 34 INTELLECTUAL PROPERTY RIGHTS

34.1 As between the Parties, the Contractor shall retain the copyright and other intellectual property rights in the Contractor’s Documents and other Design documents made by (or on behalf of) the Contractor.

34.2 Subject to the confidentiality obligations of Article 59, the Contractor shall be deemed (by signing the Contract) to give to the Employer a non-terminable, transferable, non-exclusive and royalty-free right to copy, use and communicate the Contractor’s Documents for the operation, maintenance and repair of the Works, but not for any other purpose. The value of the fee for this right is included in the Contract Price.

34.3 The right shall:

  1. apply throughout the actual or intended working life (whichever is longer) of the relevant parts of the Works;
  2. entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the Contractor’s Documents for the purposes of completing, operating, maintaining, adjusting, repairing or demolishing the Works; and
  3. in the case of Contractor’s Documents that are in the form of computer programs and other software, permit their use in object code on any computer on the Site and other places as envisaged by the Contract, up to the maximum number of computers stated in the Contract, including replacements of any computers. The Employer is entitled to make one copy of such software for back-up purposes.

34.4 The Contractor’s Documents and other Design documents made by (or on behalf of) the Contractor shall not, without the Contractor’s consent, be used, copied or communicated to a third party by (or on behalf of) the Employer for purposes other than those permitted under this Article 34.

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34.5 The Works may contain freeware, shareware or open source software for the use of which no licence fee is charged to Employer. Regarding such portions of software, the Employer hereby accepts the specific licence conditions either being part of the software documentation or accompanying the hardware. Upon request of the Employer, the Contractor is prepared to provide a copy of the source code of the open source software, if required by the specific licence conditions. To the extent there is a conflict between this Contract and the specific licence conditions, the terms of the specific licence conditions shall prevail over the terms and conditions of this Contract with regard to the open source software.

34.6 As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Employer’s Requirements and other documents made by (or on behalf of) the Employer. The Contractor may, at its expense, copy, use, and obtain communication of these documents for the purposes of the Contract. They shall not, without the Employer’s consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract.

INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY BY THE PARTIES

34.7 The Contractor shall indemnify the Employer against all claims of infringement of any patent, registered design, copyright, trade mark or trade name, or other intellectual property right, if the right was protected at the Reference Date in the Country and if the claim or proceedings arose out of the Design, construction, manufacture or use of the Works, unless the infringement (or allegation of infringement):

  1. was the result of part (or all) of the Works being used for a purpose other than that indicated by, or reasonably to be inferred from, the Contract;
  2. was the result of part (or all) of the Works being used in association or combination with any thing not supplied by the Contractor; and/or
  3. was the direct result of the Contractor’s compliance with the Design or Instructions of the Employer.

34.8 Where a claim of infringement of intellectual property rights as referred to in Article 34.7 is made against either Party and the Contractor is not liable to indemnify the Employer under that Article, then the Employer shall indemnify the Contractor against such claim and the provisions of Article 34.11 shall apply with the necessary changes being made.

34.9 The obligation to indemnify set out in Articles 34.7 and 34.8 shall be subject to the indemnifying Party’s right to mitigate the potential loss by acquiring directly or indirectly the right to use the relevant intellectual property rights, or by modifying the Works so that they no longer infringe such rights or otherwise.

34.10 The Parties’ remedies under this Article 34 shall be in place of and to the exclusion of any other remedies in relation to any infringement of any intellectual property rights as described in this Article.

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NOTIFICATION AND HANDLING OF CLAIMS FOR INFRINGEMENT

34.11 Each Party shall promptly notify the other Party of any Contract-related claim of infringement of intellectual property rights made against itself or the other Party by a third party. The indemnifying Party may, at its expense, conduct negotiations for the settlement of such claim, and any litigation or arbitration that may arise from it. The other Party or its representatives shall not make any admission that might be prejudicial to the indemnifying Party, unless the indemnifying Party has failed to take over the conduct of the negotiations, litigation or arbitration within a reasonable time after having been requested so to do.

Article 35 VARIATIONS AND CHANGES TO THE WORKS

VARIATIONS – GENERAL PRINCIPLES

35.1 The purpose of these Variations provisions is to ensure that the Contractor is paid a reasonable price and profit for any changes in the Works and that the Employer preserves its right, within the framework of this Contract, to change the Works and maintain its right to Delay Damages as the Works progress. Variations may be instructed by the Employer or proposed by the Contractor.

35.2 Except to the extent that the Variation was necessitated by the Contractor’s default, the fair and reasonable Cost plus profit of all Variations shall be taken into account in ascertaining the Contract Price. Variations that arise from the defaults of the Contractor are to be paid for by the Contractor.

35.3 The Contractor has no obligation to make a change that is not instructed as a Variation. Irrespective of how a change comes about, the Contractor is entitled to treat it as a Variation. Each Variation, and the combined effect of all Variations, shall be taken into consideration in the assessment of the Time to Taking-Over.

EMPLOYER’S RIGHT TO VARY THE WORKS

35.4 The Employer shall have the right to request and subsequently order Variations to the Works from time to time during the performance of the Contract until the complete Works have been taken over, or if the Variation is agreed by the Contractor, until the end of the last Defect Correction Period.

35.5 Variations may not, without the agreement of the Contractor, consist of the omission of any part of the Works in order to have that work executed by parties other than the Contractor. Where there is a Variation resulting in an omission of a part of the Works, the value of the Variation will include compensation for underrecovered overheads and profit of the Contractor.

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CONTRACTOR’S RIGHT TO REFUSE A VARIATION

35.6 The Contractor may refuse to carry out any Variation that:

  1. is unrelated to the Works;
  2. is not technically practicable;
  3. has in the reasonable opinion of the Contractor not been the subject of adequate assurances under Article 13.5;
  4. adversely affects in a material way the Contractor’s ability to fulfil any Contract obligation, including performance guarantees, warranties or Defect obligations; or
  5. will reduce the safety or suitability of the Works.

CONTRACTOR-PROPOSED VARIATIONS

35.7 The Contractor may at any time propose to the Employer any Variation, including any Variation that, in the Contractor’s opinion, will improve the Works, including, without limitation, the quality, efficiency or safety of the Works, or that should reduce the expense to the Employer of executing, maintaining or operating the Works. The Contractor shall outline the foreseen benefits of any proposed Variation, including the financial aspects. Any value of the benefits, unless otherwise agreed, will be shared equally.

PROCEDURE FOR VARIATIONS

35.8 If the Employer requests a Variation, whether or not the Variation was first suggested by the Contractor, the Employer shall send to the Contractor a notice describing the Variation. If the Employer so wishes, the Contractor shall first give an estimate of the Cost of preparing a Contractor’s Variation Proposal and the time required for its execution.

35.9 After receipt of the Employer’s request for a Variation and unless otherwise agreed, the Contractor shall within 28 Days prepare and submit a proposal (“Contractor’s Variation Proposal”) comprising:

  1. a description of the proposed Design and work to be executed;
  2. a program for the execution of the Variation;
  3. a proposal for any necessary modifications to the Time Schedule and the Time to Taking-Over;
  4. a lump-sum price for the Variation (including a breakdown of the elements it comprises, for informational purposes) or a price estimate comprising quantities and either a list of all-in unit prices or a list of prices per unit subject to the application of a mark-up for general overheads and profit; and
  5. other elements of the Contract likely to be affected by the Variation.

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If, however, the Contractor objects to the Variation with reference to its right to refuse under Article 35.6, the Contractor shall, within the same period, instead of a Contractor’s Variation Proposal, submit a notice to the Employer clearly describing the reasons for this refusal and, if possible, proposing an alternative.

35.10 The Employer shall make its decision on whether or not to proceed with the Variation within 28 Days from receipt of the Contractor’s Variation Proposal or notice under Article 35.9 and notify the Contractor of that decision forthwith. If the Employer instructs the Contractor to proceed with the Variation, but does not accept the Contractor’s Variation Proposal, the Employer shall state how the Contractor’s Variation Proposal shall be amended and the reasons for and Cost consequences of the changes to the Contractor’s Variation Proposal. The Contractor shall then be obliged to carry out the Variation, but may refer the dispute over its consequences to be settled in accordance with Chapter 13.

35.11 If the Employer decides not to implement the Variation or if it fails to order the Variation within 28 Days after receipt of the Contractor’s Variation Proposal, then, unless the Variation was suggested in writing by the Contractor, the Employer shall be obligated to pay the Contractor the Cost of preparing the Contractor’s Variation Proposal.

35.12 If the Contractor has objected to a Variation under Article 35.6, the Employer shall not have the right to instruct the Contractor to carry out the Variation, but may refer the dispute to be settled in accordance with Chapter 13.

DISPUTED VARIATIONS

35.13 If the Parties disagree as to whether certain work or delivery of supplies or materials, which the Employer requires or required to be performed, is already included in the Contractor’s obligations, and consequently whether such work or deliveries constitutes a Variation, then the following procedure shall be followed:

  1. The Employer shall in a notice to the Contractor describe the work or delivery in question and give the reasons why, in the Employer’s opinion, it is included in the Contractor’s obligations. Alternatively, the Contractor may produce a notice stating why the work or delivery in question is not within the scope of the Contract.
  2. Unless otherwise agreed, the Contractor shall then prepare a proposal containing the information specified in Article 35.9, and, if it has not already done so, shall give the reasons why, in the Contractor’s opinion, the requested work or supplies constitute a Variation.
  3. The Employer may then instruct the Contractor to perform the work or supplies in question. Such work or supply shall be regarded as a disputed Variation.
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  5. If the Contractor refuses to perform the work or supplies with reference to its right under Article 35.6, the Employer shall not be entitled to instruct the work or supplies to be performed, unless there has been a decision of the CDB to that effect.

35.14 Any and all claims to additional payment, however they may arise, will be dealt with under the provisions of Chapter 13.