HG 1/2018,
beyond the clauses.

a) Contract Agreement: the document so named signed by both Parties;

b) Contractor: the person named as contractor in the Contract Agreement and that person's legal successors;

c) Employer: the person named as employer in the Contract Agreement and that person's legal successors;

d) Goods: the Contractor's Equipment, Materials, Plant and Temporary Works, or any of them as appropriate;

e) Payment Certificate: a certificate issued by the Supervisor under Subclause 50.3 [Payment Certificate] or 51.2 [Final Payment Certificate], as appropriate;

f) Final Payment Certificate: a certificate issued by the Supervisor under Subclause 51.2 [Final Payment Certificate];

g) Conditions of Contract: the Special Conditions, if any, together with the General Conditions;

h) General Conditions: the document so named included in the Contract;

i) Special Conditions: the document so named, if any, included in the Contract, prepared by the Employer and containing provisions only concerning the subclauses and only the subjects specified in the General Conditions;

j) Conflict of Interest: a situation described in Subclause 12b.1 which may compromise the proper and objective performance of the Contract;

k) Contract: the Contract Agreement together with all the documents specified in Subclause 3.1;

l) Cost(s): all expenditure reasonably incurred, or to be incurred, by the Contractor to fulfil the obligations of the Contract or in connection with the Contract;

m) Commencement Date: the date notified under Subclause 33.1;

n) Base Date: the date 30 days before the deadline for submission of Tenders. If there was no such deadline, for example where a contract was awarded following a negotiated procedure without publication of a contract notice, the Base Date shall be the date of signing the Contract;

o) Decision (of the Supervisor)/Decide/Decided: a decision issued by the Supervisor under Clause 69c [Supervisor's Decision]/the process specified in Clause 69c [Supervisor's Decision] resulting in a Decision/a matter on which the Supervisor issues a Decision under Clause 69c [Supervisor's Decision];

p) Contractor's Documents: designs, drawings, calculations, programmes, manuals, models and other technical documents, if any, supplied by the Contractor under the Contract;

q) Employer's Documents: designs, drawings, calculations, programmes, manuals, models and other technical documents, if any, prepared by or on behalf of the Employer under the Contract;

r) Time for Completion: the time for completing the Works or a Section of the Works, as appropriate, under Clause 34 [Time for Completion], as specified in the Contract Agreement, including any extension under Clause 35 [Extension of Time for Completion], calculated from the Commencement Date;

s) Plant: the apparatus, machinery and vehicles which are or will be incorporated into the Permanent Works;

t) Tender Form: the document so named, completed by the Contractor as part of its tender and included in the Contract;

u) Performance Security: the security provided under Clause 15 [Performance Security];

v) Site Diary: the record of the works under Clause 39 [Site Diary];

w) Law: all legislation in force issued by any body constitutionally competent to enact legislation;

x) Bill of Quantities: the document so named forming part of the technical specifications in the procurement documents and included in the Contract. This document also includes the description of prices, if any;

y) Permanent Works: the permanent works to be executed by the Contractor under the Contract, including Plant and Contractor's Documents;

z) Temporary Works: all temporary works of every kind, other than the Contractor's Equipment, required for the execution and completion of the Permanent Works and remedying any defects;

aa) Works: the Permanent Works and/or Temporary Works;

bb) Materials: products of every kind, other than Plant, which are or will be incorporated into the Permanent Works under the Contract;

cc) Variation: any change to the Contract approved under Clause 37 [Variations] and/or by an addendum to the Contract;

dd) Tender (of the Contractor): the legal act by which the Contractor expressed its intention to be legally bound by the Contract, together with the related documents submitted by the Contractor and included in the Contract. The Tender includes the technical tender (proposal) and financial tender (proposal);

ee) Administrative Order: a document issued by the Supervisor under Clause 5 [Supervisor and Supervisor's Representative];

ff) Commencement Administrative Order: an Administrative Order issued by the Supervisor under Clause 33 [Commencement];

gg) Variation Administrative Order: an Administrative Order issued by the Supervisor under Clause 37 [Variations];

hh) Party/Parties: the Employer and/or Contractor, as the context requires;

ii) Warranty Period: the period beginning on approval of Taking-Over at Completion of the Works, or the Section, during which the Contractor is responsible for remedying defects in and damage to the Works under Clause 61 [Warranty Period], and which may be extended under that clause;

jj) Contractor's Personnel: the Contractor's Representative and all other staff, labour and other employees of the Contractor and all Subcontractors, and any other personnel assisting the Contractor in executing the Works;

kk) Employer's Personnel: the Supervisor, its representatives and all other staff, labour and other employees of the Supervisor or Employer, and any other personnel notified to the Contractor by the Employer or Supervisor as Employer's Personnel;

ll) Drawings: the drawings for the Works forming part of the technical specifications in the procurement documents and included in the Contract, together with any further or amended drawings issued by or on behalf of the Employer under the Contract;

mm) Contract Price: the price specified in the Contract Agreement for executing and completing the Works and remedying all defects, including any change made after signing the Contract by addendum, excluding VAT;

nn) Programme: the document prepared by the Contractor under Clause 17 [Programme];

oo) Baseline Programme: a Programme accepted by the Supervisor under Subclause 17.8 and/or Subclause 17.12 [Revision of the Programme];

pp) Final Acceptance: acceptance of the Works under Clause 62 [Final Acceptance];

qq) Taking-Over at Completion of the Works: acceptance of the Works, a part of the Works or a Section under Clause 60 [Taking-Over at Completion of the Works];

rr) Contractor's Representative: the person appointed by the Contractor, in the Contract or under Subclause 13.2, who acts on the Contractor's behalf;

ss) Claim: a claim issued by the Contractor under Clause 69a [Contractor's Claims] or by the Employer under Clause 69b [Employer's Claims];

tt) Contractor's Risks: the events or circumstances listed in Subclause 68.5 [Contractor's Risks];

uu) Employer's Risks: the events or circumstances listed in Subclause 68.1 [Employer's Risks];

vv) Site: the places where the Permanent Works will be executed and where Plant and Materials will be delivered, and any other places specified in the Contract as forming part of the Site;

ww) Section (of the Works): a part of the Works defined as a Section in the Contract Agreement;

xx) Statement of Works: the statement submitted by the Contractor under Subclause 50.1 [Statement of Works] and/or 51.1 [Final Statement of Works];

yy) Specifications: the document entitled “Specifications”, forming part of the technical specifications prepared by the Employer and included in the Contract, and any amendments or additions to the Specifications under the Contract. This document specifies the intended purpose and scope of the Works and/or any related technical requirements and criteria;

zz) Subcontractor: any third party to whom the Contractor entrusts execution of part of the Contract under Clause 7 [Subcontracting];

aaa) Provisional Sum: a sum specified in the Contract as a Provisional Sum, used and paid under Subclause 49.3 [Provisional Sums]. Provisional Sums are implementation reserves within the meaning of the Law;

bbb) Retention Money: the accumulated sums retained and paid by the Employer under Clause 47 [Retention Money];

ccc) Supervisor: an economic operator or a team within the Employer, appointed by the Employer. The Supervisor has the technical, financial and contractual duties specified in the Conditions of Contract. The Supervisor is named in the Contract Agreement or notified to the Contractor under Clause 5 [Supervisor and Supervisor's Representative]. The Supervisor's team includes site inspectors authorised under the Law and any other persons needed to fulfil its role;

ddd) Tests on Completion: tests carried out under Clause 58 [Tests on Completion] before the Works or a Section of the Works, as appropriate, are taken over at completion by the Employer;

eee) Contractor's Equipment: all apparatus, machinery, vehicles and similar items needed to perform the Contract, excluding Plant, Materials and Temporary Works;

fff) Contract Value: the value defined in Clause 45 [Contract Value], which includes adjustments, variations and revisions made under the Contract and represents the sum of payments made and estimated future payments until all contractual obligations have been fulfilled.

(i) the Contract Agreement;

(ii) the completed and, where applicable, corrected Tender Form;

(iii) the Special Conditions;

(iv) the General Conditions;

(v) the Specifications;

(vi) the Drawings;

(vii) the Bill of Quantities and related documents;

(viii) the Contractor's Tender and any other documents forming part of the Contract, including, without limitation:

1) the Contractor's financial tender, after arithmetic corrections;

2) the Contractor's technical tender, including clarifications during tender evaluation;

3) the firm undertaking of each supporting third party, if applicable;

4) the joint venture agreement, where the Contractor is a joint venture, consortium or other grouping of two or more persons;

5) the subcontract entered into with each Subcontractor, if applicable;

6) any other documents forming part of the Contract.

Variations and addenda, if any, shall have the precedence of the documents they amend. The order of precedence is the order of priority of the documents. In the event of discrepancies between documents, the provisions of the higher-ranking document shall prevail. In the event of ambiguity in the documents, the Supervisor shall issue the necessary clarifications or instructions.

Unless otherwise specified in the Special Conditions, the Supervisor has the following principal duties:

(a) issue Administrative Orders to the Contractor;

(b) issue the Commencement Administrative Order;

(c) check, accept or reject the Contractor's Programme, including the physical existence of the resources needed to fulfil the submitted programme;

(d) check the rate of progress of the Works;

(e) check compliance with the quality requirements for Plant and Materials and the methods of incorporating them;

(f) reject Plant, Materials or Works found not to comply with the Contract;

(g) participate in tests and inspections of works at critical stages;

(h) measure the quantities of works actually executed and value them under the Contract;

(i) give consent to the Contractor's Documents or reject them with reasons;

(j) ensure the accuracy of data and details in the Site Diary;

(k) issue Variations under the Contract;

(l) issue Payment Certificates under the Contract;

(m) issue Decisions under the Contract;

(n) examine the Contractor's and Employer's Claims;

(o) assist the Employer in Taking-Over at Completion of the Works and Final Acceptance;

(p) perform the Supervisor's other duties under the Contract.

(a) the representative's failure to reject any work, Material or Plant shall not affect the Supervisor's authority to reject it and give the necessary instructions for rectification;

(b) the Supervisor shall be free to change or amend the communication within 5 days. A communication not amended or cancelled within 5 days remains final.

Verbal instructions and/or Orders shall be confirmed by the Supervisor or its representative within 24 hours. If not confirmed, they are deemed cancelled and the Contractor has no obligation to implement them.

(a) either Party may assign, as security in favour of a bank or other financial institution, its entitlement to any sums due or to become due under the Contract, by prior notice to the other Party;

(b) the Employer shall make direct payments to Subcontractors who have opted for them, under Clause 52 [Direct Payments to Subcontractors] and Clause 50 [Payments];

(c) if the Employer terminates the Contract under Clause 64 [Termination by the Employer], the Contractor shall assign any subcontract to the Employer immediately upon receiving the Employer's notice to that effect;

(d) the Contractor is replaced by a new contractor where, following universal succession or succession by universal title in a reorganisation, including merger or division, the Contractor's rights and obligations are taken over by a new contractor meeting the qualification and selection criteria originally established, provided that this change entails no other substantial modifications to the Contract and is not intended to circumvent the procurement procedures required by public procurement Law.

Within 30 days of receiving the request, the Employer shall notify the Contractor of its decision, giving reasons for any refusal. If the Employer does not notify its decision within that period, the request is deemed approved on expiry of the period. Within 5 days of approval of any new Subcontractor, the Contractor shall send the Employer a signed copy of the relevant subcontract, which shall become an appendix to the Contract. The Subcontractor shall not begin performing its part of the Contract before the subcontract has been sent to the Employer.

A Subcontractor declared in the Tender shall be replaced under this subclause, provided that replacement is not a substantial modification within the meaning of public procurement Law.

If a Subcontractor terminates or otherwise abandons a subcontract, the Contractor shall notify the Employer within 5 days and state how it intends to continue executing that part of the Contract.

If the Contractor suffers delay and/or incurs additional costs because the Supervisor fails to supply the notified drawings or instructions within a reasonable time specified with supporting details in the notice, the Contractor shall, subject to compliance with Clause 69a [Contractor's Claims], be entitled to:

(a) an extension of the Time for Completion for the delay under Clause 35 [Extension of Time for Completion], if completion of the Works is or will be delayed; and

(b) payment of additional Costs under Clause 55 [Additional Costs], plus profit of 2% of those Costs, or the profit rate expressly stated by the Contractor in the Tender if lower than 2%.

If and to the extent that the Supervisor's failure to supply drawings or instructions was caused by an error or delay by the Contractor, including an error in or late submission of any Contractor's Documents, the Contractor shall not be entitled to that extension of the Time for Completion or those additional Costs or profit.

(a) an extension of the Time for Completion for the delay under Clause 35 [Extension of Time for Completion], if completion of the Works is or will be delayed; and

(b) payment of additional Costs under Clause 55 [Additional Costs], plus profit of 2% of those Costs, or the profit rate expressly stated by the Contractor in the Tender if lower than 2%.

If and to the extent that the failure to grant access or possession was caused by an error or delay by the Contractor, including an error in or late submission of any Contractor's Documents, the Contractor shall not be entitled to that extension of the Time for Completion or those additional Costs or profit.

(a) the Employer has obtained or shall obtain the building permit, other similar permits for the Permanent Works and any other approvals described in the Specifications as already obtained or being obtained by the Employer. Without affecting Subclause 10.2, the Employer shall indemnify and hold the Contractor harmless against the consequences of failure to obtain and/or extend these permits or approvals;

(b) the Contractor shall give all notices, pay all taxes, levies and fees, and obtain all permits, licences and approvals required by the Laws in force for execution and completion of the Works and remedying any defects, except those mentioned in (a). The Contractor shall obtain permits for the Temporary Works. The Contractor shall indemnify and hold the Employer harmless against the consequences of failure to fulfil these obligations; and

(c) in the case specified in Subclause 37.11, the Contractor shall exercise the necessary diligence for the Employer to obtain and, where appropriate, extend the building permit required for the relevant part of the Permanent Works. In that case the Contractor shall also obtain, on the Employer's behalf, all related approvals and consents needed to commence and execute that part of the Works.

Provisions of the joint venture agreement included in the Contract which are not governed by the Conditions of Contract shall not be enforceable against the Employer.

The supporting third party shall indemnify the Employer for any damage, loss and expenditure incurred by the Employer if that third party fails to comply with, or improperly performs, the obligations assumed under the firm undertaking.

References in the Contract to published standards shall mean the edition applicable at the Base Date unless otherwise specified.

If amended or new applicable standards come into force after the Base Date and (i) the Supervisor, with the Employer's prior approval, considers their application necessary or appropriate and (ii) that application does not entail a substantial modification within the meaning of public procurement Law, the Supervisor shall initiate a Variation under Clause 37 [Variations].

This subclause shall apply correspondingly where a new technical regulation relevant to the design of the Works is adopted and published after the Base Date for these Works designed by the Employer.

The Employer reserves the right to check whether these measures are appropriate and may require additional measures where necessary. The Contractor shall ensure that its decision-making personnel are not placed in a situation that could create a conflict of interest. Without affecting its contractual obligation, the Contractor shall immediately replace any decision-making member of its Personnel exposed to such a situation, at no cost to the Employer.

If the Representative or assistants are not fluent in the language of the Contract, the Contractor shall make all arrangements needed for effective communication in that language.

Compliance with the quality assurance system shall not release the Contractor from any duty, obligation or responsibility under the Contract.

The Contractor shall ensure that emissions, surface discharges and waste resulting from its activities do not exceed the values specified in the Specifications or those established by Law.

For any replacement of key personnel, the Contractor shall submit to the Employer all documents needed to verify compliance with the established qualification/selection criteria and/or calculate the score under the evaluation factors.

The Contractor shall provide the Performance Security within 5 working days of signing the Contract.

Within 3 days after expiry of the period for providing it, the Contractor shall deliver the original Performance Security to the Employer's premises specified in the Contract and a copy to the Supervisor.

Performance Security shall be provided in one of the following ways:

a) by a guarantee instrument lawfully issued by a bank or insurance company, which becomes an appendix to the Contract. The issuer shall be a bank or insurance company authorised to issue such guarantees in the European Union or, for other companies, rated at least BBB-/Baa3 or equivalent; the Contractor shall supply evidence of this. The Performance Security shall be irrevocable and provide for unconditional payment on the Employer's first demand, based on its declaration concerning the Contractor's fault under Subclause 15.3. Security for a joint venture or consortium shall be issued in its name;

b) if the parties agree, through successive deductions from amounts due under Payment Certificates, provided that the procurement documents allowed this possibility. Within 5 working days of signing the Contract, the Contractor shall open an account at the Employer's disposal with a credit institution agreed by both parties or with the State Treasury within the competent fiscal authority. The initial deposit shall be no less than 0.5% of the Contract Price and shall be paid within 5 working days of signing. Within 3 days after expiry of the deposit deadline, the Contractor shall deliver to the Employer's contractual premises the original evidence of the guarantee account blocked in the Employer's favour and evidence of the initial deposit. During performance, the Employer shall fund this account through successive deductions from amounts due and payable to the Contractor under each Payment Certificate until the amount fixed as Performance Security in the public procurement contract is reached. The Employer shall instruct the credit institution or State Treasury to notify the Contractor of each deposit and its purpose. Interest on the account accrues to the Contractor. The Employer shall ensure that the full Performance Security is retained no later than issue of the Payment Certificate at Taking-Over at Completion of the Works.

Amendment note: Subclause 15.1 was amended on 03-03-2022 by Point 1, Article I of Government Decision 297 of 2 March 2022, published in Official Gazette 211 of 3 March 2022.

Where security is provided under Subclause 15.1(a), if its terms specify an expiry date and the Contractor is not entitled to obtain approval of Final Acceptance 30 days before that expiry, the Contractor shall extend its validity until the Works are completed and all defects remedied. If the issuer loses authorisation to issue such guarantees in the European Union or ceases to hold a rating of at least BBB-/Baa3 or equivalent, the Performance Security is deemed no longer valid and the Contractor shall provide new security under this clause.

Amendment note: Subclause 15.2 was amended on 03-03-2022 by Point 2, Article I of Government Decision 297 of 2 March 2022, published in Official Gazette 211 of 3 March 2022.

The Employer shall make no claim on the Performance Security except in the following cases and up to the amounts to which it is entitled under the Contract:

(a) the Contractor fails to extend validity as described in Subclause 15.2, in which case the Employer may claim the full amount;

(b) the Contractor fails within 30 days to pay the Employer an amount due, agreed by the Contractor or Decided by the Supervisor under Clause 69c [Supervisor's Decision];

(c) the Contractor fails to remedy a failure to fulfil its obligations within 30 days after receiving the Employer's notice of that failure; or

(d) the Employer terminates the Contract under Clause 64 [Termination by the Employer].

Amendment note: Subclause 15.3 was amended on 03-03-2022 by Point 3, Article I of Government Decision 297 of 2 March 2022, published in Official Gazette 211 of 3 March 2022.

Whenever security is called following an Employer demand under Subclause 15.3(b) or (c), the Contractor shall restore its amount within 15 days after payment of the sums claimed by the Employer.

(a) the percentage specified in the Contract Agreement, or 70% if no percentage is specified, within 14 days after approval of Taking-Over at Completion of the Works, provided the Employer has made no claims on the security by that date;

(b) the balance on approval of Final Acceptance, except amounts claimed by the Employer by that date which the Contractor has not replenished.

The Employer shall notify the Contractor to provide a new guarantee on the same terms as the previous one. If the Contractor fails to provide it within 30 days of notification, the Employer may terminate under Clause 64 [Termination by the Employer].

Amendment note: Subclause 15.7 was amended on 03-03-2022 by Point 4, Article I of Government Decision 297 of 2 March 2022, published in Official Gazette 211 of 3 March 2022.

a) Responsibility for damage to the Works

Without affecting Clause 59 [Use of the Works before Taking-Over at Completion], Clause 61 [Warranty Period] and Clause 66 [Force Majeure and Unilateral Termination], the Contractor shall assume (i) full responsibility for maintaining the integrity of the Works and (ii) the risk of loss and damage, whatever the cause, until approval of Taking-Over at Completion under Clause 60 [Taking-Over at Completion of the Works].

Compensation for damage to the Works for which the Contractor is liable shall be limited to the Contract Price.

This limit shall not apply to compensation for loss or damage caused by fraud or gross negligence of the Contractor or its Personnel, including Subcontractors and anyone for whom it is responsible.

After approval of Taking-Over at Completion under Clause 60, the Contractor remains responsible for any failure to comply with its contractual obligations for the period specified by Law.

b) Contractor's liability to the Employer

The Contractor shall at all times be responsible for and indemnify the Employer against damage caused to the Employer during performance of the Contract by the Contractor or its Personnel, including Subcontractors and anyone for whom it is responsible.

Compensation for damage to the Employer, other than damage to the Works, for which the Contractor is liable shall be limited to the Contract Price.

This limit shall not apply to compensation for bodily injury, including death, or to damage of any kind to the Employer caused by fraud or gross negligence of the Contractor or its Personnel, including Subcontractors and anyone for whom it is responsible.

c) Contractor's liability to third parties

The Contractor shall indemnify, protect and defend the Employer, including its Personnel, against all actions, claims, losses or damage, direct or indirect and of any kind, hereafter a “claim”, arising from an act or omission of the Contractor or its Personnel, including Subcontractors and/or anyone for whom it is responsible, in fulfilling contractual obligations, except where:

(i) the claim arises from the Employer's right to execute the Permanent Works on, over, under, in or through any land and occupy that land for the Permanent Works; or

(ii) the loss or damage is an inevitable result of the Contractor's obligation to execute the Works and remedy defects.

The Employer shall inform the Contractor of any third-party claim as soon as possible after becoming aware of it.

If the Employer elects to contest or defend the claim, the Contractor shall cover the reasonable contest or defence costs incurred by the Employer and its Personnel.

For the purposes of this paragraph (c), the Employer's agents and employees, the Supervisor and its employees and subcontractors, and the Contractor's Personnel, Subcontractors and anyone for whom the Contractor is responsible are considered third parties.

The Contractor shall handle all claims in close cooperation with the Employer. Any arrangement or agreement with third parties to settle a claim requires the express prior consent of both Employer and Contractor.

a) General insurance matters

From the Commencement Date or earlier, and throughout performance of the Contract, the Contractor shall ensure that it and its Personnel, including Subcontractors and anyone for whom it is responsible, are adequately insured with insurers recognised on the European insurance market.

At the Commencement Date, the Contractor shall send the Employer and Supervisor copies of all insurance certificates showing compliance with its insurance obligations, together with the policies. During performance, it shall promptly provide updated certificates after payment of each premium and whenever requested by the Supervisor.

The Contractor shall obtain insurers' undertakings to inform the Employer and Supervisor personally and directly of any event that may reduce, cancel or otherwise alter the insurance. Insurers shall give this information as soon as possible and in any case at least 30 days before reduction, cancellation or alteration. The Employer reserves the right to pay the insurer if the Contractor fails to pay a premium, without affecting the Employer's right to recover the amount paid and subsequently claim compensation for any resulting damage.

As far as possible, the Contractor shall ensure that its policies include insurers' waiver of recourse against the Employer and Supervisor and their agents and employees.

Obtaining and maintaining adequate insurance does not release the Contractor from statutory and/or contractual responsibilities. As a minimum, the insurance listed in this subclause shall provide cover up to the minimum contractual liability under Subclause 16.1 [Responsibilities] or the minimum liability under the Law in force, whichever is higher.

The Contractor shall bear all consequences of total or partial absence of insurance, fully releasing the Employer and Supervisor from liability in this respect.

The Contractor shall ensure that its Personnel, including Subcontractors and anyone for whom it is responsible, comply with the same insurance requirements imposed on it by this Contract. Where such personnel or persons are uninsured or inadequately insured, the Contractor shall indemnify the Employer and Supervisor against all resulting consequences.

Under its own responsibility, and without affecting the duty to obtain all insurance covering its obligations under this Contract, the Contractor shall ensure that all compulsory insurance is obtained in accordance with the Law in force and that all applicable statutory insurance obligations are fulfilled.

The Employer and Supervisor shall bear no responsibility for assessing whether the Contractor's policies comply with its contractual and/or statutory obligations.

If an insurer becomes unable to honour its commitments during performance, the relevant insurance ceases to be valid. The Employer shall notify the Contractor to obtain new insurance under the Contract. If the Contractor fails to supply a copy of the new certificate and policy within 30 days of notification, the Employer may terminate under Clause 64 [Termination by the Employer].

b) Specific insurance matters

1. Insurance for damage to third parties

The Contractor shall obtain civil liability insurance covering bodily injury and property damage which may be caused to third parties through performance of the Contract, including during the Warranty Period. The policy shall treat the Employer's Personnel, including the Supervisor's personnel, and personnel of other contractors and third parties present on or near the Site or at any other place used by the Contractor as third parties. Unless otherwise specified in the Contract Agreement, cover limits shall be no lower than those applicable to compulsory motor third-party liability insurance under European Union rules.

2. Insurance of the Works

The Contractor shall obtain contractors' all-risks construction and erection insurance for its benefit individually and jointly with its Subcontractors, the Employer and Supervisor.

This insurance shall cover all damage to the Works included in the Contract, including damage arising from errors in the Contractor's Documents, construction materials or workmanship for which the Contractor is responsible under the Contract, and damage caused by natural events. It shall also cover damage to the existing goods and property of the Employer and Supervisor.

The Contractor shall also insure Contractor's Equipment and Temporary Works for at least their full replacement/reconstruction value.

3. Motor insurance

The Contractor shall obtain, or ensure the existence of, motor third-party liability insurance for all vehicles used by it or its Subcontractors in connection with the Contract, whether or not owned by them.

4. Occupational accident insurance

The Contractor shall obtain insurance policies covering itself and its Personnel, including Subcontractors and anyone for whom it is responsible, against accidents at work or while travelling to and from work. It shall ensure that its Subcontractors do the same. The Contractor shall indemnify the Employer against any related claims by its Personnel, including its employees or those of its Subcontractors.

5. Liability insurance for quality of the Works

The Contractor shall obtain insurance covering its entire liability for the quality of the Works, including after Final Acceptance, as required by Law.

(a) It shall comprise the activities needed to perform the Contract in accordance with the Specifications, Drawings and Bill of Quantities, structured to identify:

1. the principal phases of Contract performance, including procurement, construction, inspections, testing and acceptance;

2. the construction objects making up the Works;

3. the work categories or physical stages making up the Works;

4. the work sections or locations where construction activities will be performed;

5. the Subcontractors, where parts of the Contract are subcontracted.

(b) Activities shall be allocated:

1. resources: principal Materials to be incorporated, labour numbers and trades, and Contractor's Equipment, consistent with requirements and availability;

2. quantities in accordance with the Bill of Quantities;

3. estimated costs consistent with the Tender;

4. estimated productivity rates.

(c) Activity durations shall be expressed in days, taking account of:

1. the quantity of work;

2. the size of the workfront;

3. the number of human resources and items of Contractor's Equipment;

4. resource productivity.

(d) Activities shall be detailed sufficiently that their duration does not exceed 30 calendar days.

(e) Activity sequencing shall take account of the Contractor's proposed methodology, construction technologies in the Specifications, if any, and organisational constraints. Dependencies shall be start-to-start, finish-to-start and finish-to-finish.

(f) The network shall contain only one activity without a predecessor and one without a successor, except milestones or activities for which a dependency cannot be established, as justified in the narrative report.

(g) The critical path shall be highlighted and correspond to the sequence of activities whose maximum duration is the Time for Completion.

(a) The Contractor shall prepare and submit to the Supervisor a narrative detailing and explaining the work plan in the Programme.

(b) It shall include:

1. a general description of how the Contractor will execute the Works;

2. a description of critical activities and how the necessary resources will be secured;

3. the number and composition of work teams used for the activities;

4. a list of human resources, with worker numbers and trades, distributed by month;

5. a list of Contractor's Equipment, by type, number and capacity, to be available and the periods of use;

6. the Subcontractors involved and their human resources and Contractor's Equipment;

7. the physical and financial progress S-curve and cash-flow chart.

Monthly, within 10 days of the beginning of each month until all Works are completed, the Contractor shall submit an updated Programme comprising an updated Gantt schedule and narrative report.

The content shall comply with Subclauses 17.2 and 17.3. Each updated document shall be compared with its counterpart in the Baseline Programme, highlighting differences, the events and causes giving rise to them and, in case of delay, measures the Contractor will take to meet the Time for Completion.

Within 5 days of submission, the Supervisor shall review and accept or reject the updated Programme. If it does not respond by the deadline, the Programme is deemed accepted.

Subclauses 17.5 to 17.7 apply correspondingly to review, acceptance or rejection of the updated Programme and their consequences.

If unforeseen events, including events within the Employer's Risks, affect the duration of critical activities, the Contractor shall submit a revised Programme to the Supervisor.

It shall also submit a revision whenever it finds that it cannot complete the Works within the Time for Completion.

Subclauses 17.2 to 17.7 apply correspondingly to preparation, review, acceptance or rejection of the revised Programme and their consequences.

The revised Programme accepted by the Supervisor becomes the new Baseline Programme.

Acceptance by the Supervisor of a Programme showing a works duration longer than the Time for Completion does not grant an extension of that Time. Any extension shall be granted only under Clause 35 [Extension of Time for Completion] and subject to Clause 69a [Contractor's Claims].

Before executing the Works, the Contractor shall submit the execution details to the Supervisor for consent. These include, without limitation, details of Temporary Works prepared in accordance with the Law, technical documents relating to the Contractor's execution methodology, and associated drawings and calculations. They shall strictly implement the design prepared by the Employer and shall not result in any Variation.

The details shall be submitted 30 days before the relevant activities begin. Within 15 days the Supervisor shall give consent or reject them with reasons. If it gives neither consent nor a reasoned rejection, the submitted details are deemed accepted.

No consent shall relieve the Contractor of responsibility for the details and selected execution methods. They shall not be changed without the Supervisor's consent.

The Works shall not be considered complete for taking-over under Clause 60 [Taking-Over at Completion of the Works] until the Contractor has submitted to the Supervisor all documents required to compile Chapter B of the construction technical record within the meaning of the Law and, where appropriate, documents needed to complete Chapters A and D.

(a) request the Contractor to provide an estimate of the cost of the measures it will take or intends to take;

(b) approve the measures referred to in subclause 21.1, with or without modification;

(c) issue written instructions on how to deal with the conditions or obstructions referred to in subclause 21.1.

(a) Decide whether, or to what extent, the conditions or obstructions notified by the Contractor could reasonably have been foreseen by a diligent contractor at the date of submission of the Tender;

(b) assess whether resolving the issue and continuing execution of the Works requires a Variation and whether that Variation would be non-substantial within the meaning of public procurement Law; and

(c) communicate the Decision and assessment to the Employer and the Contractor.

(a) an extension of the Time for Completion for the delay under clause 35 [Extension of Time for Completion], if completion of the Works is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

(a) adjoining owners or occupiers where access to their properties is through the Site; and

(b) users of the construction, where and to the extent that the Contract provides for the Works to be executed while use continues (including traffic).

The Contractor shall take safety measures for its Personnel appropriate to the potential physical danger. The Contractor shall be responsible for monitoring the level of physical risk to which its Personnel are exposed and informing the Employer of the situation. If the Employer or Contractor becomes aware of an imminent threat to the life or health of a member of the Contractor's Personnel, the Contractor shall act urgently to ensure the safety of those involved. Where the Contractor takes such action, it shall immediately inform the Supervisor.

If occupational accidents, events or dangerous incidents occur in the Contractor's activities, the Contractor shall report and investigate the occupational accident or event in accordance with legal provisions and register it with the Territorial Labour Inspectorate in whose area the event occurred.

However, the obligation to protect, relocate or replace cables, pipes and other utilities and the associated expense shall not be the Contractor's responsibility where the Employer assumes that responsibility. The same provision applies where that obligation and resulting expense fall to another specialist authority or agent.

This subclause does not affect the Contractor's rights and obligations under the Contract, including those under clause 20 [Sufficiency of the Contract Price] and clause 21 [Exceptional Risks].

(a) accurately setting out the Works in relation to the original reference points and reference systems provided in the Contract or communicated by the Supervisor;

(b) the correctness of the position, levels, dimensions and alignment of all parts of the Works; and

(c) mobilising, during performance of the Contract, all instruments, equipment and labour necessary in connection with these responsibilities.

(a) an extension of the Time for Completion for the delay under clause 35 [Extension of Time for Completion], if completion of the Works is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

Regardless of the Employer's intended use of the materials or items for which it reserves ownership and responsibility, the Contractor shall bear all costs of transport and storage and all disposal fees at the places provided in the Contract. If such places are not provided in the Contract, they shall be specified by the Supervisor, subject to clause 37 [Variations].

(a) an extension of the Time for Completion for the delay under clause 35 [Extension of Time for Completion], if completion of the Works is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

To the extent that the Contractor's provision of these conditions is not provided for in the Contract, and the Contractor suffers delay and/or incurs additional costs as a result of complying with the Supervisor's instructions under this subclause, the Contractor shall be entitled, subject to compliance with clause 69a [Contractor's Claims], to:

(a) an extension of the Time for Completion for the delay under clause 35 [Extension of Time for Completion], if completion of the Works is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

PERFORMANCE OF THE CONTRACT AND DELAYS

(a) passing the Tests on Completion; and

(b) completing all works and fulfilling the obligations under the Contract so that the Works or Sections may be considered complete for the purposes of Taking-Over at Completion of the Works.

(i) exceptionally adverse weather conditions. Adverse weather shall be regarded as exceptional if its probability of occurrence is less than once in a period defined as the Time for Completion at Contract signing multiplied by 5, taking into account the nature of the works, the Site location and the time of year when the conditions occurred;

(ii) public authorities, their personnel or agents delaying the Contractor's activities for reasons not attributable to the Contractor and in a manner that a diligent contractor could not have foreseen at Tender submission or reasonably prevented;

(iii) Administrative Orders affecting the completion date of the Works and not attributable to the Contractor, including Variations (unless otherwise agreed as part of the Variation);

(iv) failure by the Employer or Employer's Personnel to fulfil their obligations under the Contract;

(v) any suspension of the Works not attributable to the Contractor or to a risk for which the Contractor is responsible;

(vi) force majeure;

(vii) any event or situation which, under the Contractual Conditions, entitles the Contractor to an extension of the Time for Completion and is not attributable to the Contractor.

For the avoidance of doubt, if the Contractor fails to comply with clause 69a [Contractor's Claims] or, in the relevant cases, subclause 69c.5 [Notice of Dissatisfaction], the Contractor shall forfeit its right to an extension of the Time for Completion.

If an unsatisfactory rate of progress attributable to the Contractor is identified, the Supervisor shall notify the Contractor. Within 10 days of receiving the notification, the Contractor shall update the Programme under subclause 17.11 [Updating the Programme]. The updated Programme shall include a plan of measures to recover the delays. The Contractor shall comply with this plan, including any additional mobilisation of resources.

If a Section or part of the Works has undergone Taking-Over at Completion, the daily penalty shall equal the Contract Price at signing less the price of that Section or part at signing, divided by the Time for Completion at signing expressed in days. The maximum delay penalties shall likewise be 15% of the Contract Price at signing less the price of that Section or part at signing.

The Contractor shall not alter the Permanent Works or Temporary Works designed by the Employer before the relevant Variation is approved.

The procedure for preparing and approving the Variation Administrative Order shall comply with this clause.

(a) a description of the activities to be implemented or measures to be taken and the associated programme;

(b) any necessary adjustment to the Time for Completion or to any Contractor obligations under the Contract; and

(c) any adjustment to the Contract Value, under the rules in this clause.

(a) where the work is similar and executed under conditions similar to work priced in the Bill of Quantities, it shall be valued at the prices therein, with appropriate adjustments, plus the profit margin expressly declared by the Contractor in its Tender;

Amendment note: item (a) of subclause 37.7 was amended on 22 March 2022 by point 1, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022. Under Article IV(6) of that Decision, Article III points 1–6 and 12–17 apply to public procurement contracts, sectoral contracts and framework agreements in progress on its entry into force only in respect of legal situations arising after that entry into force.

(b) where the work is not similar or is not executed under similar conditions, the new price shall be assessed against the reasonable cost of execution and relevant market prices, if any, plus the profit margin expressly declared by the Contractor in its Tender.

Amendment note: item (b) of subclause 37.7 was amended on 22 March 2022 by point 1, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022. Under Article IV(6) of that Decision, Article III points 1–6 and 12–17 apply to public procurement contracts, sectoral contracts and framework agreements in progress on its entry into force only in respect of legal situations arising after that entry into force.

(c) where the nature or quantities of a Variation make valuation under item (a) unreasonable, item (b) shall apply.

The Supervisor shall consult the Employer on the proposed Variation and its classification as non-substantial under public procurement Law. The Supervisor shall also consult the Employer on its effect on the building permit.

(a) any relevant amendment to the Specifications, Drawings or Bills of Quantities;

(b) any relevant amendment to the Programme;

(c) the Supervisor's Decision under subclause 69c.2 [Supervisor's Decision] on any adjustment, by extension or reduction, to the Time for Completion arising from the Variation;

(d) the Supervisor's Decision under subclause 69c.2 on any adjustment to the Contract Value arising from the Variation.

The Contractor may at any time submit a written proposal which, in its opinion, would, if approved: (i) accelerate completion; (ii) reduce the cost of executing, maintaining and operating the Works; (iii) improve the efficiency or value of the completed works; or (iv) otherwise benefit the Employer.

The proposal shall be prepared at the Contractor's expense and include the items listed in subclause 37.6 and, without necessarily being limited to, the following:

(a) the extent to which it complies or does not comply with the Contract;

(b) the extent to which it complies or does not comply with the environmental regulatory approval;

(c) the extent to which it complies or does not comply with the building permit, if any.

Any document issued by the Contractor otherwise than as a result of (1) an approved Variation or (2) a Supervisor's instruction or Decision, which would, if implemented, result in a Variation from the Contract, shall be treated as a proposal under this subclause. Any proposal constituting a substantial Variation within the meaning of public procurement Law shall be rejected.

The Contractor shall be fully responsible for any proposal under this subclause, including the periods needed to prepare, review and/or approve it and, where applicable, obtain a new or revised environmental regulatory approval and building permit. The Contractor shall not be entitled to an extension of the Time for Completion or payment of additional costs.

If a proposal approved by the Supervisor includes a design change to part of the Works designed by the Employer, and unless the Parties agree otherwise:

(a) the Contractor shall be responsible for the design of that part of the Works through its designer;

(b) subclause 19.1 [Method of Execution and Design of Temporary Works] concerning the Supervisor's review and consent shall apply accordingly.

A proposal under this subclause shall be approved by a Variation Administrative Order, and subclauses 37.7 to 37.10 shall apply accordingly.

If the emergency results from a risk listed in subclause 68.1 [Employer's Risks] and the Contractor suffers delay and/or incurs additional costs from complying with these instructions, it shall be entitled, subject to clause 69a [Contractor's Claims], to:

(a) an extension of the Time for Completion under clause 35 [Extension of Time for Completion], if completion is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

On receiving a suspension Administrative Order, the Contractor shall suspend execution of the Works or part of them for the periods and in the manner specified in the notice. The Order shall state the cause of suspension and the responsible Party under the Contract. Suspension takes effect when the Contractor receives the Order or at a later date if so specified. If the resumption date is not specified, the Supervisor shall issue a new Administrative Order to resume as soon as, in its opinion, the cause has ceased or been reasonably remedied. The Contractor shall resume on the specified resumption date or as soon as reasonably possible and, unless the Parties agree otherwise, no later than 10 days after receipt of a resumption Order. Applying subclause 10.1, the Parties shall ensure that building permits remain valid.

If the Supervisor fails to fulfil its obligations under subclause 50.3 [Payment Certificate], or a payment due from the Employer under the Contract is delayed by at least 45 days beyond the deadline in subclause 50.4 [Payment], the Contractor shall notify the Employer and shall be entitled, after 30 days from the notice, to suspend execution or reduce its rate of progress as stated in the notice until it receives the Payment Certificate or payment, as applicable, and in accordance with that notice.

This action shall not affect the Contractor's entitlement to late-payment interest under clause 53 [Delayed Payments] or termination under clause 65 [Termination by the Contractor]. If the Contractor receives the Certificate or payment before sending a termination notice under clause 65, it shall resume normal activity as soon as reasonably possible and, unless the Parties agree otherwise, no later than 10 days after receipt of the Certificate or payment.

(a) an extension of the Time for Completion under clause 35 [Extension of Time for Completion], if completion is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

After consulting the Employer, the Supervisor shall inform the Contractor of the resumption date as soon as possible and no later than 10 days after receiving the notice.

MATERIALS AND WORKMANSHIP

(a) weather conditions and work stoppages caused by adverse weather;

(b) hours worked;

(c) the number and qualifications of workers present on the Site;

(d) Materials purchased, delivered and stored on the Site and elsewhere, and Materials incorporated into the Works;

(e) Contractor's Equipment used on the Site and elsewhere, and non-operational or out-of-service Equipment;

(f) tests performed and samples taken;

(g) work executed;

(h) the various obstructions or other difficulties encountered in execution that day;

(i) incidents and/or accidents;

(j) Administrative Orders received.

If the Supervisor records disagreement with an entry, the Contractor shall communicate its comments in writing within 10 days of the Supervisor recording the disagreement in the Diary. If it fails to comment within that period, the Contractor shall be considered to accept the Supervisor's position.

(a) provide the Supervisor and Employer's Personnel, where applicable, temporarily and free of charge, with assistance, samples or test pieces, machines, equipment, instruments, skilled labour, materials, charts and production data normally required and/or specified for inspection and testing, including protective equipment;

(b) agree the time and place of tests with the Supervisor;

(c) provide access to all inspection and testing locations.

If the Supervisor issues an Administrative Order scheduling tests later than agreed, the Contractor shall be entitled, subject to clause 69a [Contractor's Claims], to:

(a) an extension of the Time for Completion under clause 35 [Extension of Time for Completion], if completion is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

Issuing this certificate, including deemed issue, shall not relieve the Contractor of responsibility for the quality of the Works.

(a) removal from the Site, within the period stated in the Order, of Materials or Plant which, in the Supervisor's reasoned opinion, do not comply with the Contract, and replacement with compliant Materials or Plant; or

(b) demolition and proper reconstruction or satisfactory repair, regardless of any previous test or payment, of work which, in respect of Materials, Plant or workmanship, does not, in the Supervisor's reasoned opinion, comply with the Contract.

PAYMENTS

If the Contractor fails to pay within that period, the Employer shall be entitled, without any formality other than sending the relevant invoice, to late-payment interest at the rate and on the conditions in clause 53 [Delayed Payments].

The guarantee shall be issued by a bank or insurance company authorised to issue such guarantees in the European Union or, for other issuers, rated at least BBB-/Baa3 or equivalent; the Contractor shall provide supporting documents. It shall be irrevocable and provide for unconditional payment on the Employer's first demand based on its statement of the Contractor's default. A joint venture or consortium's guarantee shall be issued in its name.

The Contractor shall ensure that the guarantee remains valid and effective until the advance is justified or repaid. Its amount may progressively reduce by the amounts justified by the Contractor, as shown in Payment Certificates. If the advance has not been fully justified or repaid 30 days before expiry, the Contractor shall extend the guarantee until full justification or repayment.

If the guarantee expires without extension, the amounts of the advance remaining unjustified shall, without further formality, be considered due under subclause 44.4 and recovered by the Employer by debit note or deduction from future payments under the Contract.

The Employer shall release the guarantee to the Contractor when the advance is fully justified or repaid.

Each advance shall be justified by full deductions (100%) from each Statement of Works and Payment Certificate. No actual payments are permitted until the advance has been deducted in full.

A new instalment shall be granted only after the previous advance has been fully justified or repaid.

If any advance remains unjustified at the end of the calendar year, the Employer shall, subject to subclause 69b [Employer's Claims], be entitled to repayment, including by calling the guarantee, and to delay penalties applying the National Bank of Romania reference interest rate to the misused amounts from payment to recovery, to the extent that the Contractor's delay is not caused by an event or risk for which the Employer is responsible.

The Contractor shall provide an appropriate guarantee for each instalment under subclause 46.3. Unless the Agreement specifies other amounts, numbers and/or dates within statutory limits, a single instalment of 15% of the Contract Price plus VAT shall be requested in a Statement of Works issued immediately after the Commencement Date and paid under clause 50 [Payments].

Each advance shall be justified by percentage deductions from Payment Certificates of 25% of the total amounts under items (a), (b) and (c) of subclause 50.1 [Statement of Works], unless another percentage is specified in the Agreement, until fully justified.

At the end of each budget year, the Contractor shall submit to the Employer a statement substantiating the expenditure incurred and confirming the extent to which the advance has been used for its contractual purpose.

(a) bank transfer;

(b) a guarantee instrument issued in accordance with the Law by a credit institution or insurance company;

(c) a combination of two or more of the methods in items (a) and (b).

Amendment note: subclause 47.1 was amended on 17 October 2023 by point 1, Article I of Government Decision No 965 of 12 October 2023, published in Official Gazette No 937 of 17 October 2023.

Unless the Agreement specifies other values, 5% of the total amounts under items (a) and (b) of subclause 50.1 [Statement of Works] shall be withheld from each Payment Certificate until Retention Money totals 5% of the Contract Price at signing. Half shall be included in the first Payment Certificate after approval of Taking-Over at Completion and paid by the Employer. The balance shall be included in the first Payment Certificate after approval of Final Acceptance and paid by the Employer.

Amendment note: subclause 47.2 was amended on 17 October 2023 by point 2, Article I of Government Decision No 965 of 12 October 2023, published in Official Gazette No 937 of 17 October 2023.

Note: Article II of Government Decision No 965 of 12 October 2023, published in Official Gazette No 937 of 17 October 2023, provides:

Article II

(1) This Decision applies to award procedures initiated after its entry into force and to ongoing procedures for which no tenders or requests to participate had been submitted by that date. An ongoing award procedure means one whose contract notice, simplified contract notice or, as applicable, invitation to participate was published or sent before entry into force and for which no tenders or requests to participate had been submitted by that date.

(2) This Decision applies both to contracts concluded after its entry into force and to ongoing contracts in which Taking-Over at Completion has not occurred, only for legal situations arising in those contracts after entry into force. For ongoing contracts, where the Performance Security, however constituted, combined with the Retention Money guarantee has exceeded 10% of the Contract Price, no further amounts under clause 47 shall be withheld. Amounts above that threshold shall be adjusted in future Payment Certificates for use in contract performance in accordance with the Employer's instructions, including payment for services/works performed by subcontractors; payment of material and raw-material suppliers; purchase of materials and raw materials; staff and labour payments and similar purposes; or returned under subclause 47.2 of Annex 1 or Annex 2 to Government Decision No 1/2018, as subsequently amended and supplemented.

At subsequent intervals, its amount shall increase progressively until the Retention Money limit is reached. The Contractor shall ensure that it remains valid and effective until approval of Final Acceptance. At any time before approval of Taking-Over at Completion, its amount shall be at least the cumulative Retention Money. Between approval of Taking-Over at Completion and approval of Final Acceptance, it shall be at least the remaining Retention Money balance.

If the Contractor fails at any time to provide a compliant guarantee, Retention Money shall be deducted from Payment Certificates and retained by the Employer.

The Employer shall return the guarantee in correspondence with payments of Retention Money under subclause 47.2.

Amendment note: subclause 47.3 was amended on 17 October 2023 by point 3, Article I of Government Decision No 965 of 12 October 2023, published in Official Gazette No 937 of 17 October 2023.

Where the Performance Security was initially constituted by successive deductions under subclause 15.1(b) and later changed to a guarantee instrument under subclause 15.1(a) in the amount originally established by the Contract, subclause 47.1 shall apply accordingly.

Amendment note: subclause 47.4 was amended on 17 October 2023 by point 4, Article I of Government Decision No 965 of 12 October 2023, published in Official Gazette No 937 of 17 October 2023.

Amendment note: subclause 47.5 was repealed on 17 October 2023 by point 5, Article I of Government Decision No 965 of 12 October 2023, published in Official Gazette No 937 of 17 October 2023.

(a) to have been established on the basis described and applicable under this clause;

(b) to comply with the relevant Law applicable at the Base Date.

The Parties are deemed satisfied with the provisions applicable under this and other clauses of the Contractual Conditions concerning price adjustment, including where they do not fully compensate for increases or decreases in the prices of components of the Tender.

An = av + m × Mn/Mo + f × Fn/Fo + e × En/Eo

where:

“An” is the adjustment coefficient to be applied to the estimated contract value of work performed in month “n”, namely amounts under subclause 50.1(a) [Statement of Works], excluding work valued at Cost or current prices;

“av” is a fixed coefficient representing the advance payment as a percentage of the Contract Price;

“m”, “f” and “e” are coefficients representing the estimated share of each relevant cost component in execution. Cost components are relevant resources such as labour, equipment and materials;

“Fn”, “En” and “Mn” are the current price/cost indices or reference prices for month “n”, expressed in the Contract currency, applicable 60 days before the last day of month “n”. They relate to the relevant cost components;

“Lo”, “Eo” and “Mo” are the base price/cost indices or reference prices, expressed in the Contract currency, applicable at the Base Date.

The Employer shall establish the indices and/or reference prices, their sources and all information necessary to identify them with certainty, and their weightings, in the adjustment data table in the Agreement. The equation av + m + f + e = 1 shall be verified.

If a current index or reference price for the month is unavailable or not final, the latest available index or price shall be used, and adjustment recalculated when the index or price becomes available or final.

An = av + (1 − av) × In/Io

where:

“An” is the adjustment coefficient to be applied to the estimated contract value of work performed in month “n”, namely amounts under subclause 50.1(a) [Statement of Works], excluding work valued at Cost or current prices;

“av” is the advance payment as a percentage of the Contract Price;

“In” is the total construction cost index published by the National Institute of Statistics in table 15 of the Statistical Price Bulletin, applicable 60 days before the last day of month “n”. Its applicable value for January 2017 is 113.8;

“Io” is the total construction cost index applicable at the Base Date.

(a) the updating coefficient (Pn) calculated from price/cost indices or reference prices 60 days before the last day of the Time for Completion; or

(b) the updating coefficient (Pn) calculated from current indices or reference prices,

whichever is more favourable to the Employer.

If the Contractor suffers delay and/or incurs additional costs as a result, it shall be entitled, subject to clause 69a [Contractor's Claims], to:

(a) an extension of the Time for Completion under clause 35 [Extension of Time for Completion], if completion is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

If the change in Law reduces the Contractor's Cost, the Employer shall, subject to clause 69b [Employer's Claims], be entitled to a corresponding reduction in the Contract Value.

This subclause shall not apply where the increase or decrease resulting from the change in Law is already taken into account through movement of the relevant applicable price/cost indices or reference prices established under this clause.

(a) the amount due under the Contract shall be calculated by applying the unit prices to the quantities actually executed for those items in accordance with the Contract;

(b) quantities in the Bill of Quantities are estimates and shall not be considered the actual and correct quantities of the Works the Contractor must execute to fulfil its contractual obligations;

(c) the Supervisor shall establish by measurement the actual quantities executed, which shall be paid under clause 50 [Payments]. If actual quantities for an item exceed the Bill of Quantities without amendment of that item's Specifications or Drawings, the additional quantities shall be paid under clause 50 and the difference shall not be considered a Variation under clause 37 [Variations];

(d) when requesting measurement of parts of the Works, the Supervisor shall give reasonable notice for the Contractor to attend or send a qualified representative. The Contractor or representative shall assist with measurement and provide all requested data. If neither attends, the Contractor shall accept the measurement made or approved by the Supervisor as correct;

(e) unless otherwise provided in the Contractual Conditions, Specifications or Bill of Quantities, measurement shall be of the actual net quantities of each Permanent Works item.

(a) the amount due for a lump-sum item shall be that price when the item is complete and compliant with the Contract;

(b) for interim payments, the Supervisor shall assess the amount due using the method in the Specifications or Bill of Quantities. If none is specified, it shall assess the amount by dividing the lump-sum price according to completed stages of the item. It may consider the Contractor's breakdown under subclause 18.2 but is not bound by it;

(c) the Contractor shall not be entitled to an increase in a lump-sum price because the work or service required more work or cost more than initially anticipated. Nor shall the Employer be entitled to a reduction on the opposite grounds.

Each Provisional Sum shall be used wholly or partly only as instructed by the Supervisor. For each, the Contractor shall, following the procurement procedures established by the Employer, purchase Plant, Materials, Works or services as instructed by the Supervisor and for the intended purpose. Their value shall be included in the Contract Value and comprise:

(a) the amounts actually paid or payable by the Contractor; and

(b) an amount for overheads and profit equal to 5% of those amounts, or another percentage provided in the Agreement.

At the Supervisor's request, the Contractor shall provide supporting documents, invoices, vouchers and receipts.

For the avoidance of doubt, where the Employer establishes Provisional Sums, it is responsible for their sufficiency for the intended purpose.

After the Commencement Date, the Contractor shall submit to the Supervisor each month, in four copies, a Statement of Works detailing the amounts it considers due, with supporting documents.

The Statement shall include:

(a) the estimated contractual value of all Works executed up to month-end, including Variations, Provisional Sums and/or Contractor's Documents prepared, less the corresponding value included in the preceding Statement;

(b) additions or deductions for price adjustment under clause 48 [Price Adjustment];

(c) additions or deductions for Retention Money under clause 47 [Retention Money];

(c^1) deductions from sums due and payable to the Contractor up to the Performance Security amount, where that security is constituted under subclause 15.1(b);

Amendment note: subclause 50.1 was supplemented on 3 March 2022 by point 5, Article I of Government Decision No 297 of 2 March 2022, published in Official Gazette No 211 of 3 March 2022.

(d) additions or deductions for advance payment and its justification under clause 46 [Advance Payment];

(e) additions or deductions for Plant and Materials under subclause 50.2;

(f) any other additions or deductions due under the Contract or otherwise, including under clauses 69 [Claims and Decisions] and 70 [Disputes and Arbitration].

The Statement shall include a breakdown by Subcontractor in accordance with the direct-payment annexes attached to the Contract.

Every Statement under this subclause shall be signed by the Contractor's Representative; otherwise it is null and without effect.

The Contractor shall not claim, and the Supervisor shall not certify, amounts for which the Contractor has not provided all necessary supporting documents in final form, as reasonably determined by the Supervisor.

(a) they are listed in the relevant list in the Agreement and delivered in quantities reasonable in relation to the Contract;

(b) they comply with the Permanent Works Specifications and are arranged in identifiable lots;

(c) they are properly stored and protected against loss, damage or deterioration;

(d) they are owned by the Employer under clause 43 [Ownership of Materials and Plant];

(e) the Contractor keeps adequate records of ordering, delivery, invoices, payment, storage, testing and use in performing the Contract, in a form accepted by and available for review by the Supervisor;

(f) payment shall equal 80% of the cost determined by the Supervisor, excluding transport, delivery and VAT, taking into account the records under item (e) and the contractual value of the Plant and Materials.

Amounts paid under this subclause shall be deducted from the Statement: (i) when the Plant and Materials are incorporated and their contractual value is included under subclause 50.1(a); (ii) if the above conditions cease to be met; and (iii) in case of deterioration, damage or loss, including process losses.

Where the Performance Security is constituted by successive deductions under subclause 15.1(b), the Employer shall fund the account opened by the Contractor at the Employer's disposal through deductions from amounts due and payable for each Certificate until the security amount established in the public procurement contract is reached.

The Supervisor shall not certify amounts without all necessary supporting documents in final form, as reasonably determined by it.

In any Certificate, the Supervisor may make justified amendments and corrections to previous Certificates.

If the Contractor has failed or fails to execute work or meet an obligation after notification by the Supervisor, the Supervisor may withhold its value until completion or compliance. When valuing an unfulfilled obligation, it shall use any values in the Agreement as a reference, adapting them as appropriate.

Without prejudice to any other right of the Contractor under the Contract or otherwise, the Supervisor may not issue a Certificate causing cumulative approved payments to exceed the Contract Price as revised by addendum.

Amendment note: subclause 50.3 was amended on 3 March 2022 by point 6, Article I of Government Decision No 297 of 2 March 2022, published in Official Gazette No 211 of 3 March 2022.

The Employer shall pay certified sums within 30 days of receiving the Certificate, subject to the following:

(a) without delaying payment, it may correct arithmetic errors and shall immediately notify the Contractor of corrections to the Certificate's value. Clause 69b [Employer's Claims] does not apply to those corrections;

(b) from the 15th day after issue of the Certificate, the Contractor shall invoice the Employer for the certified amount as corrected above. The invoice shall include the Subcontractor breakdown under the direct-payment annexes. For the avoidance of doubt, no payment is due without an appropriate invoice.

If the Employer disagrees with the Certificate or part of it, it may, subject to clause 69b [Employer's Claims], deduct sums paid but not due from amounts payable to the Contractor or obtain repayment within 30 days of sending a debit note.

Within 45 days of approval of Final Acceptance, the Contractor shall submit the Final Statement of Works to the Supervisor in four copies with supporting documents. It shall include:

(a) the final contractual value of all Works executed, including Variations, Provisional Sums and/or Contractor's Documents prepared, less the corresponding value of work previously paid;

(b) final additions or deductions for price adjustment under clause 48 [Price Adjustment];

(c) final additions or deductions for Retention Money under clause 47 [Retention Money];

(d) final additions or deductions for advance payment and its justification under clause 46 [Advance Payment];

(e) final additions or deductions for Plant and Materials under subclause 50.2;

(f) any other amounts the Contractor considers due under the Contract or otherwise, including under clauses 69 [Claims and Decisions] and 70 [Disputes and Arbitration].

It shall include a breakdown by Subcontractor under the direct-payment annexes attached to the Contract.

The Employer shall have no further obligation to the Contractor in any way or for any matter connected with or under the Contract or execution of the Works unless the Contractor expressly included amounts for it in item (f) of the Final Statement.

If the Contractor does not issue the Final Statement in time, the Supervisor shall issue a Final Payment Certificate under subclause 51.2 [Final Payment Certificate].

Within 30 days of submission of the Final Statement or the date on which it should have been issued, the Supervisor shall issue a Final Payment Certificate to the Employer, copied to the Contractor. Its structure shall match the Statements, including the Subcontractor breakdown where applicable, except that item (f) shall read:

(f) additions or deductions for the final value, agreed by the Parties or Decided by the Supervisor, of all amounts relating to Claims under clause 69 [Claims and Decisions].

If the Employer and/or Contractor disagrees, either Party shall give notice of dissatisfaction under subclause 69c.5 [Notice of Dissatisfaction], within its stated time and conditions.

Even where such notice is given, the agreed parts shall be paid under subclause 50.4 [Payment].

Where the Parties agree and no notice of dissatisfaction is issued in time, the Final Certificate's value constitutes closure of all financial obligations under the Contract. The Employer shall have no further obligation to the Contractor in any way or for any matter connected with or under the Contract or execution of the Works, and the Contractor shall forfeit any right to further payment.

This subclause shall not limit the Employer's liability to compensate for fraud, deliberate error or misconduct.

The Employer shall pay certified sums within 30 days of receiving the Final Certificate, provided there are no disputes over it, subject to:

(a) without delaying payment, the Employer may correct arithmetic errors without further formality and shall immediately notify the Contractor of corrections to the Final Certificate's value;

(b) from the 15th day after the Supervisor issues the Final Certificate, the Contractor shall invoice the Employer for the specified amount as corrected above, with the Subcontractor breakdown under the direct-payment annexes. For the avoidance of doubt, final payment is not due without an appropriate invoice.

When a dispute over the Final Certificate is finally resolved under clause 70 [Disputes and Arbitration], the Employer shall pay amounts due without delay.

For the avoidance of doubt, the Contractor's inclusion under item (a) of a Statement of an amount for work executed by a Subcontractor is confirmation by the Contractor of that Subcontractor's proper performance.

Subject to the preceding paragraph and until the Subcontractor is replaced, if applicable, the Employer shall observe the Contractor–Subcontractor agreement and pay the Subcontractor directly. Applying direct payment is the Employer's sole obligation in respect of the subcontract. Except where the Employer fails in that obligation, the Contractor and each Subcontractor shall indemnify and hold harmless the Employer, its Personnel and agents against any claim, damage, loss or expense arising from or connected with the subcontract.

Where a Supervisor's amendment or correction of previously certified amounts requires recovery from a Subcontractor of a sum paid directly by the Employer, and that sum is not deducted from amounts payable to the Subcontractor, it shall be repaid by the Subcontractor within 30 days of the Employer sending an invoice. If it fails to repay in time, the Employer shall recover the amount from the Contractor.

Interest shall be calculated using the following annual rate:

(a) the National Bank of Romania reference interest rate where payment is in Romanian lei; or

(b) the European Central Bank reference interest rate where payment is in euro; or

(c) the equivalent rate of the relevant state's central bank or equivalent institution for other currencies,

to which 8 (eight) percentage points shall be added.

Interest is due from expiry of the payment period until the date the Employer's account is debited.

(a) Administrative Orders not attributable to the Contractor, including Variations unless otherwise agreed in the Variation, but excluding Variations under subclause 37.11;

(b) failure by the Employer or its Personnel to fulfil their contractual obligations;

(c) any suspension not attributable to the Contractor or a risk for which it is responsible;

(d) force majeure;

(e) any event or situation which, under the Contractual Conditions, entitles the Contractor to additional Costs from the Employer, including as compensation, and is not attributable to the Contractor.

For the avoidance of doubt, failure to comply with clause 69a or, where relevant, subclause 69c.5 causes forfeiture of the right to additional Costs.

For the avoidance of doubt, events or situations under items (i) and (ii) of subclause 35.1 do not entitle the Contractor to additional Costs.

(a) the Costs have been or will reasonably be incurred. For the avoidance of doubt: (i) Cost cannot include the Contractor's profit; (ii) a mere risk of expense is not a Cost; (iii) loss of profit is not a Cost;

(b) the additional Costs are clearly attributable to the cause relied on and would not have arisen without it;

(c) they are substantiated by the Contractor's records, which must include financial, accounting and similar data relating to costs incurred or to be incurred.

ACCEPTANCE AND WARRANTY PERIOD

(a) an extension of the Time for Completion under clause 35 [Extension of Time for Completion], if completion is or will be delayed; and

(b) payment of the additional Costs under clause 55 [Additional Costs].

(a) the Works or Section have been completed in accordance with the Contract;

(b) they have passed the Tests on Completion under clause 58 [Tests on Completion];

(c) the Contractor has fulfilled the contractual obligations necessary for them to be considered complete for taking-over, including, without limitation, subclauses 9.4 and 19.2.

If taking-over is suspended or rejected, the Employer shall include in its notice, if not already in the minutes, the reasons and the work and obligations the Contractor must complete to permit acceptance under the Contract. The Contractor shall remedy and/or complete the work and fulfil the obligations before issuing a new notice under subclause 60.3.

If taking-over is approved, the Employer shall record in its notice, if not already in the minutes: (i) the date the Works or Section were completed in accordance with the Contract; (ii) outstanding minor works and their deadlines; (iii) defects, nonconformities and other discrepancies with remedy deadlines; and (iv) Employer's Claims, subject to subclause 69b [Employer's Claims], for penalties, reductions in value and similar matters.

(a) result from defective Plant or Materials, errors in Contractor's Documents or defective workmanship; and/or

(b) result from any act or omission of the Contractor during the Warranty Period.

The Supervisor or Employer shall notify the Contractor of such defects or deterioration, stating why the Contractor is responsible.

During the Warranty Period, the Contractor is not responsible for normal wear of each part from the date the Employer begins using it under clause 59 [Use before Taking-Over at Completion], or, if there is no such date, from approval of Taking-Over at Completion. Nor is it responsible for wear or deterioration caused by improper use.

Where repair cannot be carried out on the Site during the Warranty Period, the Contractor may remove the relevant components for repair, subject to a guarantee for their replacement value and the Supervisor's prior acceptance.

If the Contractor considers it is not responsible under subclause 61.1, it shall nevertheless remedy as notified, but shall, subject to clause 69a [Contractor's Claims], be entitled to additional Costs under clause 55 [Additional Costs].

(a) perform the remedial work itself or through a third party at the Contractor's risk and, subject to clause 69b [Employer's Claims], cost; or

(b) terminate under clause 64 [Termination by the Employer].

– 5 years for constructions in importance categories A and B under the Law;

– 3 years for importance category C;

– 1 year for importance category D.

For the Works, each separately accepted part or Section, the period shall start on the date approval is given to Taking-Over at Completion of the Works, part or Section, as applicable.

In case of suspension or rejection, without prejudice to its right to terminate under clause 64 [Termination by the Employer], the Employer shall state in the notice, unless already in the minutes, the reasons and the works and obligations to be completed to permit acceptance. The Contractor shall remedy and/or complete the work and fulfil its obligations.

If Final Acceptance is approved, the Employer shall record in the notice, unless already in the minutes, the date when the Contractor completed its contractual obligations, or dates where parts or Sections were separately accepted at completion, without prejudice to clause 56 [Cessation of the Parties' Responsibilities].

BREACH OF CONTRACT AND TERMINATION

(a) for breach by the Contractor, an Employer's notice specifying the unfulfilled obligation with particular reference to the Contract, setting a reasonable remedy period and stating that it is issued under this subclause;

(b) specific contractual measures, including those under subclauses 36.2 and 36.3, clause 38 [Suspension], subclause 44.5, clause 53 [Delayed Payments] or subclause 50.3 [Payment Certificate];

(c) contractual remedies and compensation, subject to clause 69 [Claims and Decisions] and/or, as appropriate, clause 70 [Disputes and Arbitration]; and/or

(d) termination, subject to clause 64 [Termination by the Employer] or 65 [Termination by the Contractor].

(a) the Contractor breaches the Contract; for this clause, breach occurs when it fails to comply with a notice under subclause 63.2(a) within the reasonable period specified;

Amendment note: item (a) was amended on 22 March 2022 by point 2, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022. Under Article IV(6), Article III points 1–6 and 12–17 apply to public procurement contracts, sectoral contracts and framework agreements in progress on entry into force only for legal situations arising afterwards.

(b) the Contractor assigns the Contract contrary to clause 6 [Assignment] or subcontracts without the Employer's express or implied consent;

(c) the Contractor becomes bankrupt, enters liquidation or an event occurs having a similar effect under the Law;

(d) the Contractor fails to provide or maintain the Performance Security or insurance under clause 16 [Responsibilities and Insurance], or a security issuer or relevant insurer cannot fulfil its commitments and the Contractor fails to provide a replacement security or insurance certificate in time;

(e) at award, the Contractor was in one of the following situations and should therefore have been excluded, or falls into one afterwards: within the last 5 years, conviction by final court judgment for participation in a criminal organisation, corruption, fraud, terrorist offences or offences related to terrorist activities, money laundering or terrorist financing, and/or child labour exploitation or other forms of trafficking in human beings;

(f) failure to fulfil any obligation under subclause 12.8, clause 12a [Code of Conduct] or clause 12b [Conflict of Interest];

(g) a supporting third party under subclause 12.9 fails to honour its binding commitment;

(h) the Employer becomes entitled to the maximum delay penalties under subclause 36.4;

(i) the Contractor fails to fulfil obligations under subclause 61.3.

Cases (c), (e) and (f) may concern members of the Contractor's administrative, management or supervisory bodies and/or persons with powers of representation, decision or control. Cases (a), (c), (e) and (f) also concern persons jointly and severally responsible for performance. Case (f) may concern Subcontractors.

In any such situation, unless the Employer revokes its termination notice within 15 days of receipt by the Contractor, the Contract shall automatically cease on the 16th day after receipt, without summons, formal notice of default, court judgment, arbitral award or other formalities.

Amendment note: on 24 May 2024, point 3, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022, which introduced subclause 64.1^1, was repealed by point 3, Article X of Emergency Ordinance No 52 of 23 May 2024, published in Official Gazette No 483 of 24 May 2024.

(a) accrued or due contractual rights and obligations up to termination, including the Employer's right to recover damages;

(b) rights and obligations stated to survive termination or necessary to give effect to termination or its consequences.

Amendment note: subclause 64.8 was amended on 22 March 2022 by point 4, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022. Under Article IV(6), Article III points 1–6 and 12–17 apply to public procurement contracts, sectoral contracts and framework agreements in progress on entry into force only for legal situations arising afterwards.

Amendment note: subclause 64.9 was amended on 22 March 2022 by point 5, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022. Under Article IV(6), Article III points 1–6 and 12–17 apply to public procurement contracts, sectoral contracts and framework agreements in progress on entry into force only for legal situations arising afterwards.

(a) it does not receive a payment due in full within 120 days after expiry of the period in subclause 50.4 [Payment] or 51.3 [Final Payment];

(b) the Employer and/or its Personnel fail to fulfil contractual obligations after three notices from the Contractor, each allowing at least 30 days to remedy. A termination notice failing to comply with this requirement is void by operation of law and without effect;

Amendment note: item (b) was amended on 22 March 2022 by point 6, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022. Under Article IV(6), Article III points 1–6 and 12–17 apply to public procurement contracts, sectoral contracts and framework agreements in progress on entry into force only for legal situations arising afterwards.

(c) execution of all Works is suspended for more than 210 days, not because of the Contractor's breach or a risk for which it is responsible;

(d) the Employer becomes bankrupt, enters liquidation or an event occurs having a similar effect under the Law.

Unless the Contractor revokes its notice within 15 days of receipt by the Employer, the Contract shall automatically cease on the 16th day after receipt, without summons, formal notice of default, court judgment, arbitral award or other formalities.

Termination does not affect other rights or remedies under the Contract or Law. The Employer may complete the Works itself or through a new contract with a third party. The Contractor's obligation to execute and liability for delayed completion cease immediately at termination. Termination shall not affect:

(a) accrued or due contractual rights and obligations up to termination, including the Contractor's right to recover damages;

(b) rights and obligations stated to survive termination or necessary to give effect to termination or its consequences.

(a) return the Performance Security;

(b) pay the Contractor:

a. amounts due for all Works executed, including Retention Money;

b. amounts due for Employer-owned Materials, Plant and other Goods procured, manufactured or produced by the Contractor;

c. additional Costs claimed under the Contract up to termination, less amounts due from the Contractor for Employer's Claims made under the Contract up to termination;

(c) pay any other Costs incurred after or in connection with termination and losses or damage suffered by the Contractor, up to a cumulative maximum of 10% of the Contract Price.

Cessation does not affect other contractual or statutory rights or remedies. The Employer may complete the Works itself or through another contract with a third party. The Contractor's obligation to execute and liability for delayed completion cease immediately. Cessation does not affect:

(a) rights and obligations accrued or due up to cessation;

(b) rights and obligations stated to survive or necessary to give effect to cessation or its consequences.

After cessation for force majeure or unilateral termination, the Employer shall promptly:

(a) return the Performance Security;

(b) pay the Contractor:

a. amounts due for all Works executed, including Retention Money;

b. amounts due for Employer-owned Materials, Plant and other Goods procured, manufactured or produced by the Contractor;

c. additional Costs claimed under the Contract up to termination, less amounts due from the Contractor for Employer's Claims made under the Contract up to termination;

(c) pay other Costs incurred after or in connection with termination or unilateral termination, up to a maximum of 10% of the Contract Price.

(a) the Contract has undergone or is undergoing a modification, substantial or otherwise, requiring a new award procedure under the Law;

(b) the Contract should not have been awarded to the Contractor because of a serious infringement of obligations under the Treaties and European public procurement directives, declared by the Court of Justice of the European Union in proceedings under Article 258 of the Treaty on the Functioning of the European Union; or

(c) events or circumstances beyond the Parties' control, including but not limited to force majeure, make performance impossible or unlawful for one or both Parties, or entitle the Parties under the Law to release from further performance,

then, following notice by either Party to the other of those events or circumstances:

(a) the Parties shall be released from further performance without prejudice to rights concerning earlier breaches; and

(b) the amount payable by the Employer shall be the same as under subclause 66.8 if the Contract had been terminated for force majeure.

For a joint venture, consortium or other grouping, the plan shall explain how each member's joint and several responsibility under subclause 12.8 will be exercised. The Contractor may change or reallocate responsibilities within the joint-venture agreement without changing members or status, including, as an exception to subclause 12.8, changing the leader, without the Employer's prior consent and without those changes or reallocations being Variations under clause 37 [Variations].

The plan shall explain how each member's joint and several responsibility under subclause 12.8 will operate. The Contractor may change or reallocate responsibilities within the joint-venture agreement without changing members who have not become bankrupt or similar, or the grouping's status, including, as an exception to subclause 12.8, removing the bankrupt or equivalent member and/or changing the leader, without prior Employer consent and without these being Variations under clause 37.

DISPUTE RESOLUTION AND LAW

The Employer's Risks are:

(a) the Supervisor issuing an Administrative Order contrary to the Contract, including delayed issue;

(b) failure to comply with Site-availability provisions, including delay by the Employer;

(c) errors in original survey reference points or systems provided in the Contract or communicated by the Supervisor which a diligent contractor could not have identified so as to avoid delays or additional costs;

(d) errors, incompleteness and/or late availability of design prepared by or for the Employer;

(e) natural or artificial physical conditions, including unexploded ordnance, underground utilities, other physical obstructions or pollutants encountered during execution, which a diligent contractor could not reasonably have foreseen at Tender submission, excluding exceptionally adverse weather;

(f) archaeological or similar discoveries which a diligent contractor could not reasonably have foreseen at Tender submission;

(g) delayed testing of Materials, Plant or Works by the Employer or Supervisor during execution and/or Tests on Completion, or testing contrary to other contractual provisions;

(h) suspension by the Supervisor for reasons not attributable to the Contractor;

(i) use of parts before Taking-Over at Completion other than as provided in the Contract;

(j) increased quantities required for Employer-designed Works, except items paid on a lump-sum basis;

(k) omission of Works or parts from the Contract scope;

(l) changes in Law after the Base Date;

(m) force majeure.

If the Contractor suffers delay and/or additional costs because an Employer's Risk occurs, unless other Contractual Conditions provide otherwise, it shall, subject to subclause 69a [Contractor's Claims], be entitled to:

(a) an extension of the Time for Completion under clause 35 [Extension of Time for Completion], if completion is or will be delayed; and

(b) additional Costs under clause 55 [Additional Costs], plus profit of 2% of those Costs, or the profit rate expressly declared in the Tender if lower than 2%, in the cases expressly stated in the Contractual Conditions.

Without affecting other Contractual Conditions, the Employer shall indemnify the Contractor, including its Personnel, for bodily injury, death or illness arising from negligence or breach by the Employer, including its Personnel, except where attributable to the Contractor's negligence.

Unless expressly provided otherwise in the Contractual Conditions, the Employer shall not be liable to the Contractor for:

(a) loss of another contract; or

(b) any financial loss other than additional Costs.

Except for Employer's Risks and other situations expressly entitling it under the Contractual Conditions to an extension of time, additional Costs or other remedies and compensation, the Contractor shall have no such entitlement for other reasons, which constitute Contractor's Risks.

By signing, the Contractor expressly declares it enters the Contract taking account of all relevant performance circumstances and assumes all risks other than Employer's Risks and other situations expressly giving the above entitlements.

This heading introduces clauses 69a–69c below.

(ii) The 30-day period for particulars may be extended only at the Contractor's request and with the Supervisor's approval. Late particulars may be submitted only if the Contractor gives justified reasons why it could not submit within the period. Those reasons cannot concern events or situations within the Contractor's control or involving its fault. If the Supervisor: (a) does not approve the extension request; (b) disagrees with the reasons; or (c) does not respond within 5 days of the request, the Contractor may issue a notice of disagreement within 10 days under this Clause, in which case Clause 70 [Disputes and arbitration] applies. The contents of the notice are stated in Subclause 69c [Supervisor's Decision]. The Contractor may use Clause 70 to resolve the Claim. If no notice of disagreement is issued in that period, the Contractor forfeits entitlement to any extension of Time for Completion or financial compensation resulting from the event or situation concerned.

(iii) If the Contractor does not submit particulars within 30 days or the period approved by the Supervisor, it forfeits entitlement to any extension of Time for Completion or financial compensation resulting from the event or situation concerned.

(iv) If the event or situation is ongoing or continuous, the Contractor shall update the particulars every 30 days. If it fails to submit particulars within 30 days, paragraph 3 of this Subclause applies. The 30-day period for particulars may be extended only under paragraph (ii). When the continuous event or situation ends, final particulars shall be submitted within 30 days. If not, paragraph (iii) applies. The period for final particulars may be extended only under paragraph (ii).

(v) After submission of (final) particulars under this Subclause, Clause 69c [Supervisor's Decision] applies.

(ii) The 30-day period for particulars may be extended only at the Employer's request and with the Supervisor's approval. Late particulars may be submitted only if the Employer gives justified reasons why it could not submit within the period. The reasons cannot concern events or situations within its control or involving its fault. If the Supervisor: (a) does not approve the extension request; (b) disagrees with the reasons; or (c) does not respond within 5 days of the request, the Employer may issue a notice of disagreement within 10 days under this Clause, in which case Clause 70 [Disputes and arbitration] applies. The notice contents are set out in Subclause 69c.5 [Notice of disagreement]. The Employer may use Clause 70 to resolve the Claim. If no notice of disagreement is issued within that period, the Employer forfeits entitlement to any Warranty Period extension or financial compensation resulting from the event or situation concerned.

(iii) If particulars are not submitted within 30 days or the period approved by the Supervisor, the Employer forfeits the right to claim a Warranty Period extension or any financial compensation from the Contractor for the event or situation concerned.

(iv) If the event or situation is ongoing or continuous, the Employer shall update its particulars every 30 days. Failure to submit within 30 days triggers paragraph (iii). The period may be extended only under paragraph (ii). When the event or situation ends, final particulars shall be submitted within 30 days. Failure triggers paragraph (iii). The period for final particulars may be extended only under paragraph (ii).

(v) After submission of (final) particulars under this Subclause, Clause 69c [Supervisor's Decision] applies.

A dispute is considered to arise when a Party gives the other a notice of dissatisfaction under subclause 69c.5 [Notice of Dissatisfaction] or, for disputes for which the Contractual Conditions do not require such notice, when a Party notifies the other of a dispute.

For every dispute, both Parties shall attempt amicable settlement before commencing arbitration or court proceedings. They may agree to settle directly or through a mediator.

If either refuses mediation and direct settlement is not reached, either may refer the dispute to arbitration or court, but not earlier than 90 days after the Supervisor's Decision.

If mediation is pursued, either Party may refer the dispute to arbitration or court within 30 days of either Party notifying the other of its withdrawal from mediation, but not earlier than 90 days after the Supervisor's Decision.

Where no Supervisor's Decision was issued, the Parties must attempt amicable settlement directly or through mediation before arbitration or court proceedings. These may begin within 90 days after conclusion of mediation or direct negotiation.

Amendment note: subclause 70.2 was amended on 22 March 2022 by point 7, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022.

Amendment note: clause 70 was supplemented on 22 March 2022 by point 8, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022.

Except for disputes settled amicably under subclause 70.2, disputes arising from or connected with the Contract shall be resolved by arbitration under the procedural rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania. The applicable Law is that in clause 71 [Law].

For a Contractor's or Employer's Claim, either Party may refer a dispute to arbitration where:

(a) the Supervisor issued a Decision within the contractual period, timely notice of dissatisfaction was given and the applicable requirements of subclause 70.2 were met;

(b) the Supervisor failed to issue a Decision in time, a Party gave timely notice of dissatisfaction and the applicable requirements of subclause 70.2 were met;

(c) notice of dissatisfaction was given under subclause 69c.5 in accordance with the Contract and the applicable requirements of subclause 70.2 were met;

(d) a Party fails to comply with a final and binding Supervisor's Decision; either Party may refer only that refusal to arbitration without applying subclause 70.2;

(e) a Party fails to comply with binding provisions of a Decision under subclause 69c.3 [Implementation of the Supervisor's Decision on a Contractor's Claim] or 69c.4 [Implementation of the Supervisor's Decision on an Employer's Claim]; either may refer only that refusal to arbitration without applying subclause 70.2.

Disputes not concerning Contractor's or Employer's Claims shall be arbitrated subject to subclause 70.2.

The arbitrator or arbitrators shall have full power to access, review and revise any relevant certificate, Decision, instruction, opinion or assessment of the Supervisor. The Supervisor may not be prevented from being called as a witness and giving evidence on matters relevant to the dispute.

Neither Party shall be limited in its legal case before the arbitrators to evidence or arguments previously presented to the Supervisor or reasons in the notice of dissatisfaction. Any Supervisor's Decision shall be admissible in arbitration.

As an exception, where the Employer specified ordinary courts in the procurement documents, subclause 70.6 [Ordinary Courts] shall apply.

Amendment note: subclause 70.3 was supplemented on 22 March 2022 by point 9, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022.

Unless the Agreement states otherwise, disputes shall be resolved by three arbitrators. Appointment shall follow the procedural rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.

Unless the Agreement states otherwise, arbitration shall take place in Bucharest and be conducted in Romanian.

Except where disputes are settled amicably under subclause 70.2, and applying Article 53(1^1) of Law No 101/2016 on remedies and review procedures concerning public procurement, sectoral contracts, works and services concessions, and the organisation and operation of the National Council for Solving Complaints, as amended and supplemented, proceedings and applications arising from performance of administrative contracts and from termination, rescission, unilateral termination or early cessation of public procurement contracts shall be heard at first instance urgently and with priority by the civil division of the tribunal in whose jurisdiction the Contracting Authority has its registered office, if the Employer specified that method in the procurement documents.

Amendment note: clause 70 was supplemented on 22 March 2022 by point 10, Article III of Government Decision No 375 of 18 March 2022, published in Official Gazette No 277 of 22 March 2022.

CONTROL AND AUDIT

The Contractor shall allow unrestricted access by authorised representatives to the Site or its working locations, including its information systems, all project documents and the technical, financial and accounting management database, and take all measures necessary to facilitate their work. Access shall respect confidentiality towards third parties and shall not breach the Law. Documents shall be available to facilitate examination, and the Contractor shall inform the Employer of their location.

The Contractor guarantees that the inspection and control bodies' audit, control and verification rights apply equally, under the conditions and rules in this clause, to all Subcontractors and any persons who carry out, have carried out or will carry out activities directly or indirectly for the Contractor in connection with the Contract.