Sample Letters for Contractor Under Orange Book of FIDIC(Drafted by Mr[1]. Peter Gregory)

Draft Letters For FIDIC Design, Build and Turnkey No.

Chart No.

Clause

Subject

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

3 3; 4 3 3 3 3; 9 10 10 13 13

4.5 4.11 4.16 4.24 4.24 8.3 8.8 8.10 10.1 10.1 10.2(b) 13.3 13.10 13.11 13.11 13.12 13.16 16.1 16.1 16.2 19.3 19.6 20.1

Proposal for use of Sub-contractor Unforeseen Conditions Removal of equipment Fossil, coins, etc. – discovery Fossil, coins, etc – delay and disruption Instruction to apply for Extension of Time Consequence of Suspension Prolonged Suspension (Over 84 days) Apply for Taking-Over Certificate Taking-Over Certificate where works in use Interim Application for Payment Specimen Application (4 pages) Statement at Completion Draft Final Statement Final Statement Discharge Change in Legislation

11 11 11 11 11 14 14 14 14 14 15

Delayed payment – suspend work/Reduce rate

Delayed payment – extra time and costs Employer’s Default – Notice of Termination Notice of Force Majeure Force Majeure – Notice of termination Notice of Intention to Claim extra payment

Draft No.1 Clause 4.5 Subcontract To Employer’s Representative ….(Item of Works)… As required by Clause 4.5 of the Conditions of Contract we would advise you that we propose to employ …(name of sub-contractor)… to execute … (item of work)… and hereby request your consent to this appointment. Subject to such consent, we would notify you that the sub-contracted works will commence on …(date – not less than 28 days of tar this letter)… Yours faithfully

Draft No.2 Clause 4.11 Unforeseen Conditions To Employer’s Representative ….(Title)… We have to advise that during the course of the Works we have encountered …(description of conditions)… on …(date)… These conditions were not foreseeable and we therefore hereby give notice thereof as required by Clause 4.11 of the Conditions of Contract. The effect of these conditions will be delay the Works and cause us to incur additional costs we therefore give you notice of our intention to seek an extension of time and additional payment pursuant to Clause 8.3 and 20.1 of the Conditions of Contract. Yours faithfully Draft No.3 Clause 4.16 Removal of Equipment To Employer’s Representative Removal of ….(Item of Equipment)… We propose to remove … (item of equipment)… from the Site on …(date)… following completion of … (work upon which equipment was engaged)…

As required by Clause 4.16 of the Conditions of Contract we would be pleased to receive your consent to this action. Yours faithfully

Draft No.4 Clause 4.24 Fossils, coins, etc. To Employer’s Representative …(Part of the Works)… During …(activity)… in …(location or part of Works) … on (date)… we discovered … (article)… Unless instructed to the contrary we shall dispose of …(article)… by …(proposed means of disposal) …on (date for disposal)…

Yours faithfully

Draft No.5 Clause 4.24 Fossils, coins, etc. Delay & Disruption To Employer’s Representative …(Part of the Works)… Following discovery of …(article)… and your instructions dated … (date) … in connection therewith we incurred a delay to the progress of the Works and additional costs. In accordance with the provisions of Clause 4.24 of the Conditions of Contract we hereby give notice of our intention to seek an extension of time and additional payment pursuant to Clause 8.3 and 20.1 respectively. Yours faithfully

Draft No.6 Clause 8.3 Intent to Claim EOT To Employer’s Representative Extension of Time We hereby give notice of an intention to apply for an Extension of Time on account of …(brief description of event)… This notice is given under the provisions of Clause 8.3 of the Conditions of Contract. We shall maintain contemporary records and submit full supporting details of our application as required thereby.

Yours faithfully

Draft No.7 Clause 8.8 Consequence of Suspension To Employer’s Representative cc Employer Suspension of … (as described in Employer’s Representative’s instruction)… We hereby give notice pursuant to Clause 8.8 of the Conditions of Contract that on account of following instructions given by the Employer’s Representative in respect of the above we have suffered delay and/or incurred Cost. Therefore we give you notice that we intend to apply for an extension of time and seek additional payment pursuant to Clause 8.3 and 20.1 of the Conditions of Contract.

Yours faithfully

Draft No.8 Clause 8.10 Prolonged Suspension To Employer’s Representative Suspension of … (as described in original instruction)… The above suspension having continued for more than 84 days we hereby give notice pursuant to Clause 8.0 of the Conditions of Contract requiring permission to proceed within 28 days. If permission is not granted within that period we shall ...(treat the suspension as an omission under Clause 14/Terminate our employment under Clause 16.2)*… Yours faithfully * as appropriate

Draft No.9 Clause 10.1 Taking Over Certificate To Employer’s Representative … (Section …/The Works)* --- Taking Over Certificate We are of the opinion that … (Section…/The Works)*… will be complete and ready for taking over on …(date)… Accordingly, ad provided for by Clause 10.1 of the Conditions of Contract we hereby apply for a Taking Over Certificate for … (that Section/The Works)…

Yours faithfully * delete as appropriate.

Draft No.10 Clause 10.1 Taking Over Certificate Re-application To Employer’s Representative … (Section …/The Works)* --- Taking Over Certificate We advise that we have completed the work specified to be required to enable you to issue a

Taking – Over Certificate for …(Section…/the Works)* … as detailed in … (letter minutes of meeting, etc.)… Accordingly, as provided for by Clause 10.1 of the Conditions of Contract we hereby re-apply for a Taking-Over Certificate for … (that Section/The Works)…

Yours faithfully * delete as appropriate.

Draft No.11 Clause 10.2(b) Taking Over Certificate To Employer’s Representative … (the part) --- Taking Over Certificate Pursuant to Clause 10.2 (b) of the Conditions of Contract we request that you issue a TakingOver Certificate for … (the part of the Works)… which the Employer look into use on …(date) …

Yours faithfully

Draft No.12 Clause 13.3 Interim Payment Application To Employer’s Representative Application for Interim Payment No. … Pursuant to Clause 13.3 of the Conditions of Contract we are pleased to enclose … (No.)… copies of our statement showing the amounts to which we are now entitled together with supporting documents. The detailed report on progress required by Clause 4.15 of the Conditions of Contract has been submitted under separate cover. We look forward to receipt of a copy of your Interim Payment Certificate. Yours faithfully

Application for Interim Payment No. ….

Period ……

a) Estimated Contract Value from Page No.2 b) Changes in Legislation Sub-total – Contract Price c) Deduct Retention @ 10% of Contract Price (Maximum: 5% of Contract Price, Tk. 70,826,515) Sub-total d) Plant and Materials for Permanent Works (80% of cost) e) Claims Sub-total f) Advance Payment Tk. ……… Deduct repayment – 25% of a, b, d, &e ……….. Sub – total g) Deduct Amounts Previously Certified Amount Now Due

Tk. …………. ………… ………… …………

Signed …………….

Date ………..

………… ………… ………… ………… ………… ………… ………… ………..

.Page 1. Application for Interim Payment No. … Estimated Contract Value Section 1. Section 1 of the Works Completion & approval of design Embankment Protection Filling Dredging Total of Section 1 2. Section 2 of the Works 3. Section 3 of the Works Dredging Embankment Protection Filling Fencing Total of Section 3 Total for the Works Add Variation as Schedule Page 3 Total carried to Page 1

Period …

Contract Price

% Complete

Price to date

…………. …………. …………. ………….

……….. ……….. ……….. ………..

…………. …………. …………. ………….

………….

………..

………….

…………. …………. …………. …………. …………. ………….

……….. ……….. ……….. ……….. ……….. ………..

…………. …………. …………. …………. …………. …………. …………

.Page 2.

Application for Interim Payment No. …….

Period ………

Variations Variation No….

(Description) ……

Value……….

___________________ Total to Page 2

___________________ .Page 3.

Application for Interim Payment No. …….

Period ………

Claims Claim No….

(Description) ……

Value……….

___________________ Total to Page 1

___________________ .Page 4.

Draft No.13 Clause 13.10 Statement at Completion (Within 84 days of Taking Over Certificate) To Employer’s Representative Statement at Completion Pursuant to Clause 13.10 of the Conditions of Contract we are pleased to submit … (No.) …. Copies of our statement at completion together with supporting documents. Our Statement shows: a) final value of works done up to date of Taking-Over Certificate b) further sums which we consider to be due c) estimate of amounts which will become due under the Contract We look forward to receipt of a copy of your Interim Payment Certificate.

Yours faithfully (NOTE: Statement will follow pattern of Interim Payment Application)

Draft No.14 Clause 13.11 Draft Final Statement (within 56 days of Performance Certificate) To Employer’s Representative Final Statement – Draft Following issue of the Performance Certificate and as required by Clause 13.11 of the Conditions of Contract we are pleased to submit … (No.) … copies of a draft final statement with supporting Documents. We look to your early agreement to enable us to issue our Final Statement

Yours faithfully (Note: Statement will follow pattern of Interim Payment Application)

Draft No.15 Clause 13.11 Final Statement To Employer’s Representative Final Statement Following delivery of our draft final statement and our subsequent discussions we have amended our draft as agreed and herewith submit our Final Statement We also enclose a written discharge as required by Clause 13.12 of the Conditions of Contract. We look forward to receipt of a copy of your Final Payment Certificate.

Yours faithfully (Note: Statement will follow pattern of draft) Draft No.16 Clause 13.12 Discharge (TITLE OF CONTRACT) DISCHAGE BY CONTRACTOR We agree that the total amount of Tk…(1)…as shown in the Final Statement represents full and final settlement of all monies due to us under the Contract. Total of Previous Payments Tk. …..(2)….. Amount still to be paid Tk. …..(3)…. This discharge statement shall not become effective unitl: a) the amount still to be paid has been received by us, and b) the Performance Security has been returned to us Signed …….. Contractor …… Date ………

Draft No.17 Clause 13.16 Change in Legislation To Employer’s Representative Change in Legislation As required by Clause 13.16 of the Conditions of Contract we hereby give notice of a change in legislation, namely …… (description) ….. We anticipate that we will suffer delay and/or incur additional cost as a result of this change and therefore we hereby give you notice that we intend to apply for an extension of time and claim additional payment pursuant to Clause 8.3 and 20.1 of the Conditions of Contract.

Yours faithfully

Draft No.18 Clause 16.1 Delayed Payment Suspend Work To Employer C/C Employer’s Representative

Certificate No. …. We note that …(not less than 21 ) days have expired since payment is to be made against the above certificate and that we are not in receipt of any explanation why we are not entitled to such amount. Accordingly we hereby give 7 days’ period notice of our intention to …suspend work/reduce the rate of work* … in accordance with the provisions of Clause 16.1 of the Conditions of Contract.

Yours faithfully * Delete as appropriate.

Draft No.19 Clause 16.1 Delayed Payment - Suspension Extra Costs To Employer’s Representative

Certificate No. …. Further to our letter to the Employer and copied to you reference … dated … and pursuant to Clause 16.1 of the Conditions of Contract we hereby give notice that the actions taken thereunder have caused us to suffer delay and incur additional cost. Therefore we hereby give notice that we intend to apply an extension of time and claim additional payment pursuant to Clauses 8.3 and 20.1 of the Conditions of Contract.

Yours faithfully

Draft No.20 Clause 16.2 Employer Default – Termination To Employer C/C Employer’s Representative …(Title or reason for termination)… Pursuant to Clause 16.2 of the Conditions of Contract we hereby give 14 days notice of termination our employment under the Contract as a result of : ….. (event or default)… Please return to us the performance security as required by Clause 16.4 and, as required hereby, pay such sum as may be calculated and certified in accordance with Clause 19.6 plus our losses, damages and loss of profit suffered in consequence of termination.

Yours faithfully

Draft No.21 Clause 19.3 Notice of Force Majeure To Employer’s Representative …(Title or reason for termination)… Pursuant to Clause 19.3 of the Conditions of Contract we hereby give notice of the undermentioned event of Force Majeure: ….. (brief description)… We propose that we should … (state mitigating proposals) … and we await your consent to enable us to put these into effect.

Yours faithfully

Draft No.22 Clause 19.6 Force Majeure - Termination To Employer C/C Employer’s Representative Contractor’s Claims – Force Majeure …(Title)… Further to our notice of the above event … (reference) … dated …., the effect of this event having continued for a period in excess of 182 days, we hereby give a notice of termination to take effect 28 days hereafter as provided for by Clause 19.6 of the Conditions of Contract. The payment provisions of this Clause shall apply thereafter

Yours faithfully

Draft No.23 Clause 20.1 Notice of intention to Claim To Employer’s Representative Contractor’s Claims …(Title)…

Pursuant to Clause 20.1 of the Conditions of Contract we hereby give notice that … (description of event or circumstance) … occurred/commenced *on … (dated within 28 days of this notice)… and we intend to claim additional payment as a consequence. As required by the Conditions of Contract we shall maintain contemporary records and send you an account giving detailed particulars of the amount and basis of the claim thus enabling you to act as required thereunder.

Yours faithfully *Delete as appropriate.