1 08 section 8 apr08 one envelope (rev 24sep08)

Section - Particular Conditions of Contract 8-1 Section - Particular Conditions of Contract The following Particular Conditions of Contract (PCC) shall supplement the General Conditions of Contract (GCC) Whenever there is a conflict, the provisions herein shall prevail over those in the GCC Part A - Contract Data Conditions Employer’s name and address Ref GCC 1.1.2.2 & 1.3 Data Vietnam Expressway Corporation Tang 5, Xom 2, Phuong Linh Nam, Quan Hoang Mai, Vietnam Expressway Corporation Xom – Phuong Linh Nam, Quan Hoang Mai, Hanoi, Viet Nam Hanoi, Vietnam Engineer’s name and address 1.1.2.4 & 1.3 To be notified Bank’s name 1.1.2.11 Asian Development Bank (ADB) Borrower’s name 1.1.2.12 Socialist Republic of Viet Nam Time for Completion 1.1.3.3 40 months1281 days Defects Notification Period 1.1.3.7 730730 days Sections 1.1.5.6 Not applicable Electronic transmission systems 1.3 Not applicable Governing Law 1.4 The law of the Socialist Republic of Viet Nam Ruling language 1.4 English Language for communications 1.4 English Time for access to the Site 2.1 30 days after Commencement Date Engineer’s Duties and Authority 3.1(b)(ii) Variations resulting in an increase of the Accepted Contract Amount shall require approval of the EmployerVariations resulting in an increase of the Accepted Contract Amount shall require approval of the Employer.Employer’s approval is required for the issue of: Any single Variation resulting in an increase in excess of 0.1% of the Accepted Contract Amount Any Variation issued after the aggregate of such Variations has reached 2% of the Accepted Contract Amount Performance Security 4.2 The performance security will be in the form of an unconditional bank guarantee in the amount(s) of 10 percent of the Contract Price Normal working hours 6.5 am – pm Monday to Saturday Delay damages for the Works 8.7 & 14.15(b) 0.005 % of the final Contract Price per day, in the currencies and proportions in which the Contract Price is payable Maximum amount of delay damages 8.7 10 % of the final Contract Price Provisional Sums 13.5.(b)(ii).(b) (ii) To perform and get payment for the provisional Sums, the Contractor must prepare a proposal to submit to the Consultant and the Employer for approval.Sum for overhead charges and profit 10 %Refer to clause 13.5 in Section – General Conditions of Contract ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-2 Adjustments for Changes in Cost; Table(s) of Adjustment Data 13.8 Period “n” applicable to the adjustment multiplier “Pn”: one (1) month Total advance payment 14.2 10 % Percentage of the Accepted Contract Amount payable in the currencies and proportions in which the Accepted Contract Amount is payable Repayment amortization of advance payment 14.2(b) 20 % of amount of Interim Payment Certificates Percentage of Retention 14.3 % of the Accepted Contract Amount10 % Limit of Retention Money 14.3 % of the Accepted Contract Amount Plant and Materials 14.5(b)(i) Not applicable 14.5(c)(i) Plant and Materials for payment when delivered to Site: Cement Bitumen Reinforcement Steel Processed Aggregates complying with the relevant specifications Pre-cast units and bridge beams Minimum Amount of Interim Payment Certificates 14.6 0.5 %VND 105,000,000,000.00 (510 billion Vietnam Dong) equivalent of the Accepted Contract Amount Maximum total liability of the Contractor to the Employer 17.6 The product of one (1) times the Accepted Contract Amount Periods for submission of insurance: 18.1 a Within 28 days after date of receiving the notice to commence Works b Within 28 days after date of receiving the notice to commence Works a evidence of insurance b relevant policies Maximum amount of deductibles for 18.2(d) insurance of the Employer's risks -Insurance for natural Disaster and faulty design, VND 50.000.000 (50 million Vietnam Dong) per damage or loss; - Insurance for other damage or loss: - VND 10.000.000 (10 million VND) per damage or loss Minimum amount of third party 18.3 - VND 20.000.000.000 (20 billion Vietnam Dong) per damage or loss (but no limit to the number of damages or losses)VND 30 billion Date by which the DAB shall be appointed 20.2 2842 days after the Commencement Date The DAB shall be comprised of 20.2 Three Members List of potential DB sole members 20.2 None Appointment (if not agreed) to be 20.3 Chairman of Vietnam Construction Association 20.6 Arbitration shall be carried out in Vietnam under the Rrules of Arbitration of theconciliation and arbitration prepared by the International Chamber of Commerce insurance made by Location and rules of arbitration Summary of Sections of the Works Section Name/Description (Sub-Clause 1.1.5.6) ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Time for Completion (Sub-Clause 1.1.3.3) Procurement of Works Damages for Delay (Sub-Clause 8.7) Single-Stage: Two-Envelope Section - Particular Conditions of Contract ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 8-3 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-4 Part B - Specific Provisions 1.4 Law and Language Add new final paragraph: The English language and the metric system of weights and measures shall be used in all correspondence and matters relating to the Contract For the convenience of the Employer, all official correspondence between the Contractor and Employer should have a Vietnamese translation attached The Contractor's representative(s) should be able to speak and understand English sufficiently well to be able to clearly make themselves understood by the Engineer, and in turn be able to clearly understand him 2.2 Permits, Licenses or Approvals Add new final paragraph: 3.1 Engineer’s Duties and Authority Add new paragraphs after the final paragraphs: The Contractor including his appointed agent shall, however, be solely responsible for obtaining and completion of clearance through the Customs of the Contractor's Equipment, materials and other things required for the Works, and for obtaining of the Government's consent to and for completion of the re-export of the Contractor's Equipment Neither the Engineer, nor his agents or servants, is liable to the parties or either of them or to any third party or stranger for anything done or omitted by him under this Agreement The parties release and indemnify the Engineer, and his agents or servants, from and against any claims, including (without limitation) negligence (but excluding actual fraud), in the course of discharging his obligations under the Contract No officer of the Employer or the Engineer or the Engineer’s Representative or any of their respective staff or employees shall be in any way personally bound or liable for the acts or obligations of the Employer under the Contract or answerable for any default or omission or performance of any acts, matters or things which are herein contained 4.1 Contractor’s General Obligations Add new fifth paragraph: 4.3 Contractor’s Representative Add new final paragraph: 4.4 Subcontracting The Contractor shall promptly notify the Employer and the Engineer of any error, omission, fault or other defect in the design of or Specification for the Works which he discovers when reviewing the Contract or executing the Works The Contractor’s authorised representative shall have the authority to make decisions and negotiate on behalf of the Contractor An appropriate notarized power of attorney or other form of appointment acceptable to the Engineer shall be provided upon appointment of the Contractor’s authorised representative Add new paragraphs after the final paragraph: In the event of approved subcontracting, the Contractor shall ensure that the total subcontracted amount shall be less than fifty percent ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-5 (50%) of the total Contract Price, and that it is not allowed for the Subcontractors to further sub-let their subcontracts Except where otherwise provided by the Contract the Contractor shall not subcontract any part of the Works without the prior approval of the Employer and such approval if given shall not relieve the Contractor from any liability or obligation under the Contract, particularly in respect of the provision of superintendence in accordance with Sub-Clause 6.8[Contractor’s Superintendence] The Contractor shall be responsible for keeping a log including the following information of all Subcontractors engaged in the Works: (a) (b) (c) (d) (e) (f) (g) (h) Name and address; Date of subcontract; Scope of work covered in the subcontract; Commencement date of the work(s) subcontracted; Completion date of the work(s) subcontracted; Value of the subcontract; Terms and conditions of payments; Details of labor, temporary works and Subcontractor's equipment; and (i) Progress of the work(s) subcontracted The Contractor shall furnish a copy of the above log to the Engineer and the Employer on monthly basis” The Contractor shall, when seeking consent to subcontract part of the Works provide the Engineer with the following: (a) details of the value of the subcontract; (b) evidence to confirm that the proposed Subcontractor: (i) is experienced and competent in the relevant work proposed to be subcontracted; and (ii) is properly registered or licensed to undertake the work; and (c) such other information as the Engineer may reasonably require 4.7 Setting Out Add new final paragraphs: The drawings, lines, levels and profiles in the Bidding Documents shall be treated as baseline information and the Contractor shall, without any additional cost and time, be responsible for verifications, surveys, preparation of revised drawings and obtaining approval of the Engineer before he starts any works The Contractor shall also be responsible for the verification of the survey control points, benchmarks and such other information provided to him, and any errors or delays in the Works caused by the Contractor's failure to verify the accuracy for such data will not be an acceptable cause for extension of time and additional cost to the Employer If at any time during the execution of the Works, the position or level of any point of reference as established and provided by the Employer is disturbed, the Contractor shall at his own cost restore the point to its original state This work shall be carried out by a surveyor approved by ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-6 the Engineer 4.8 Safety Procedure Add sub paragraph (f) below the paragraph (e); (f) The contractor shall use explosives only when the nature of the work to be done so requires them In such case, in addition to complying with the legal requirements attending the purchase, transport, storage and handling of explosives the Contractor shall, when engaged in blasting operations: (i) post sufficient warning flagmen to the satisfaction of the Engineer, and (ii) maintain full liaison with and inform well in advance and obtain such permission as is required from all Government authorities, public bodies and private parties whatsoever concerned or affected by the blasting operations, and (iii) take all reasonable steps to prevent damage to adjacent property The Contractor shall pay all license fees and charges of whatsoever kind relating to the use of explosives 4.10 Site Data Insert following after the first paragraph: Data made available by the Employer in accordance with the preceding paragraph shall be deemed to include data listed elsewhere in the contract as open for inspection at the address stipulated in the Contract The Employer does not warrant, guarantee or make any representation about the accuracy, adequacy or completeness of such information or data made available to the Contractor Insert the following after fourth paragraph The Contractor acknowledges that such information or data does not form part of the Contract; and to the extent permitted by law, the Employer will not be liable upon any Claim by the Contractor arising out of or in connection with that information or data or its completeness Insert the following after final paragraph: The Contractor: (a) warrants that he did not in any way rely upon: (i) any information, data, representation, statement or document made by or provided to the Contractor by the Employer; or (ii) the accuracy, adequacy or completeness of such information, data, representation, statement or document, for the purpose of entering into the Contract; (b) warrants that he enters into this Contract based on his own investigations, interpretations, deductions, information and ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-7 determinations including everything referred to in Sub-Clause 4.10; and (c) acknowledges that he is aware that the Employer has entered into the Contract relying upon the warranties in this Sub-Clause 4.10 4.11 Sufficiency of the Accepted Contract Amount Add new paragraphs after the final paragraph: Work and materials of a minor nature not expressly mentioned in the Contract but which are necessary for the satisfactory completion and performance of the Works: (a) shall be supplied and executed by the Contractor without adjustment to the Contract Price; (b) shall not constitute a variation; and (c) shall not entitle the Contractor to make a Claim ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 4.12 Unforeseeable Physical Conditions 8-8 Add new paragraphs after the final paragraph: The Contractor shall, within fourteen (14) days of becoming aware of the obstruction or condition, give notice thereof to the Engineer, with a copy to the Employer, together with details of: (a) the physical conditions encountered and in what respects they differ materially from those which a competent and experienced contractor should reasonably have expected if he had done those things which the Contractor is deemed to have done under the Contract; (b) the additional work and additional resources which the Contractor estimates to be necessary to deal with the physical conditions; (c) the time the Contractor anticipates will be required to deal with the physical conditions and the expected delay in achieving completion of the Works; and (d) the Contractor's estimate of the cost of measures necessary to deal with the physical conditions The Contractor shall take all reasonable measures necessary to mitigate the consequences and effects of the obstructions or conditions including compliance with all instructions issued by the Engineer relating to the obstructions or conditions 4.18 Protection of the Environment Add new paragraphs after the final paragraph: The Contractor shall comply with all applicable national, provincial and local environmental laws and regulations The Contractor shall (a) establish an operational system for managing environmental impacts, (b) carry out all of the monitoring and mitigation measures set forth in the Environmental Impact Assessment and the Environmental Management Action Plan attached hereto as Appendix A, and (c) allocate the budget required to ensure that such measures are carried out The Contractor shall submit quarterly reports on the carrying out of such measures to the Employer If the Contractor fails to comply with the above requirements in a reasonable manner, the Engineer shall order a third party to rectify the shortcomings and shall recover the cost of such works from the Contractor If the Contractor fails to comply with the above requirements, within a reasonable time, a date may be fixed by (or on behalf of) the Employer, for which the shortcomings are to be rectified The Contractor shall be given reasonable notice of this date If the Contractor fails to comply with the above requirements in a reasonable manner, the Engineer shall order a third party to rectify the shortcomings and shall recover the cost of such works from the Contractor 4.21 Progress Reports ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Add the following as subparagraph to Sub-Clause 6.44.21: Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-9 “(i) monitoring of the obligations in Sub-Clauses 4.18, 6.4, 6.7, and 6.21” Add new final paragraph: In addition to monthly reporting, the Contractor shall supply, in a form agreed with the Engineer, all records that may be required by the Engineer relating to dates and details of all engineering operations, rainfall, temperature and other weather conditions, river levels, and a daily return showing in detail by trades the staff, the number of men employed, the work on which they are engaged, the plant on site, the hours worked and any other particulars in relation thereto that the Engineer may additionally require 4.25 Site Conditions Add new Sub-Clause 4.25: The Contractor shall take the Site in the condition in which it is handed over The Contractor shall be entirely responsible for the removal, and disposal, as necessary of all buildings, materials, debris etc from the site Unless otherwise specified in the Contract and subject to the provisions of Sub-Clause 4.24 of these Conditions, all materials, plant, equipment, fixtures and other things salvaged from the site or from the Works shall become the property of the Contractor.” 6.4 Labour Laws Add the following as subparagraphs to Sub-Clause 6.4: The Contractor shall not make employment decisions based on personal characteristics unrelated to job requirements The Contractor shall base the employment relationship upon equal opportunity and fair treatment, and shall not discriminate with respect to aspects of the employment relationship, including recruitment, hiring, compensation (including wages and benefits), working conditions and terms of employment or retirement, and discipline The Contractor shall (a) provide equal wages and benefits to men and women for work of equal value or type; (b) provide safe working conditions, and water and separate sanitation facilities for male and female workers; (c) provide equal wages to male and female workers for work of equal value; and (d) provide day care services for female construction workers 6.5 Working Hours Add new final paragraphs: The Contractor is at liberty to propose the carrying out of works during the night and on locally recognised days off rest and the Engineer will not withhold permission provided that he is satisfied with the Contractor's arrangements for compliance with Clause 4.18 of these Conditions and other relevant requirements of the Contract Documents All work at night shall be carried out without unreasonable noise and disturbance The Contractor shall indemnify the Employer from and against any liability for damages on account of noise or other disturbance created while or in carrying out the work and from and against all claims, ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-10 demands, proceedings, costs, charges and expenses whatsoever in regard or in relation to such liability If the Engineer gives permission for night, day of rest, or official holiday works under the conditions prescribed above then the Contractor shall be liable for all related additional supervision costs incurred by the Employer or the Engineer 6.7 Health and Safety Add the following as subparagraph to Sub-Clause 6.7: The Contractor shall conduct health and safety programs for workers employed on the project, and shall carry out the HIV, Illicit Drugs, and Human Trafficking Prevention Program in the construction campsites with such Program being held in coordination with Viet Nam’s programs and other initiatives Add new final paragraph: The Contractor shall report in writing to the Engineer, within 24 hours, the details of any accident whether on-site or off-site in which the Contractor, his personnel or Construction plant, or those of his Subcontractors are directly or indirectly involved In the case of injury, fatality or serious accident, the Contractor shall immediately verbally notify the Engineer verbally and in addition notify the appropriate authorities Such initial notification shall be followed by a written comprehensive report within 24 hours of the accident 6.21 Prohibition of Harmful Child Labor Delete Sub-Clause 6.21 and replace with the following Sub-Clause 6.21: The Contractor shall not employ any child to perform any wordk “Child” means a child below the statutory minimum age of 15 Plant, Material and Workmanship 7.1 Manner of Execution 7.4 Testing Add the following subparagraph at the end of Sub-Clause 7.1 The Contractor is encouraged to use Goods from sources within the Country, to the extent practicable and reasonable Add new final paragraphs: Unless otherwise specified or approved, all testing under this Contract shall be carried out in a laboratory which is registered with an authority approved by the Engineer for the sampling and testing required The materials or work being tested will not be accepted by the Engineer as having passed the tests until the results of all tests relating to that material or work are satisfactory The Contractor acknowledges that: (a) in conducting or arranging for inspection and testing, the Engineer is under no obligation or duty to assist the Contractor to identify all or any errors, omissions or defects in the materials or Plant; ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-11 (b) any acceptance, rejection, instruction or comment by the Engineer in relation to the inspection or testing carried out shall not relieve the Contractor of any of his obligations under the Contract” ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-12 Commencement, Delays and Suspension 8.4 Extension of Time for Completion Add new final paragraphs: It is a condition precedent of the Contractor's entitlement to an extension that the Contractor must: (i) (ii) (iii) (iv) 10 have given the notices required by Sub-Clause 20.1; not have caused, or contributed to the delay; have taken and continue to take all steps necessary both to preclude the cause of the delay and to avoid or minimise the consequences of the delay; have been actually delayed, or be likely to be delayed in reaching substantial completion of the Works or any Section or any part thereof Employer’s Taking Over 10.1 Taking Over of the Works and Sections Add the following after first paragraph of Sub-Clause 10.1 In no circumstance will any part of the Permanent Works be considered substantially complete until at least the following components, if provided in the Contract, are complete to the satisfaction of the Engineer: (i) (ii) (iii) (iv) (v) (vi) (vii) Bituminous surfacing Road shoulders Side drains Culverts & Bridges Retaining walls & Masonry work Grassing & slope protection Safety measures After second paragraph, add additional paragraph as follows: Before the Works are taken over in accordance with this Clause 10, the Contractor shall supply all drawings as appropriate of the work as-built Unless otherwise agreed, the Work shall not be considered to be completed for the purpose of Taking Over until such drawings have been supplied to the Employer 13 Variations and Adjustments 13.1 Right to Vary Add new paragraph after the final paragraphs of the Sub-Clause 13.1: All orders for variations of the work shall be effected by means of a written Change Order signed by both the Engineer and the Contractor and approved by the Employer which shall establish the basis of payment and any time adjustment required for the execution of the work affected by the variation Either the Contractor or the Engineer may propose variations, but in all cases, the formal Change Order will be issued by the Engineer following negotiation with the Contractor and agreement by the Employer 13.4 Payment in Applicable Currencies ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Replace Sub-Clause 13.4 with the following: All payments to the Contractor shall be made in the Dong currency of the Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-13 Socialist Replic of Vietnam (hereinafter called local currency) and US Dollars (hereinafter called foreign currency), and if not otherwised provided for in the Contract, in the same proportions of the local and foreign currency components of the various Unit Prices and Rates as have been established in the Contract Agreement 13.4 Payment in Applicable Currencies 13.8 Payment in Adjustments for Changes in Costpplicable Currencies Replace Sub-Clause 13.4 with the following: All payments to the Contractor shall be made in the Dong currency of the Socialist Republic of Vietnam (hereinafter called local currency) and US Dollar (hereinafter called foreign currency), and if not otherwise provided for in the Contract, in the same proportions of the local and foreign currency components of the various Unit Prices and Rates as have been established in the Contract Agreement From the third paragraph of Sub-clause 13.8, delete the Sub-paragraph, “The formulae shall be of the following general type:…………… “Lo”, “Eo’, “Mo”, … are the base cost indices or reference price, expressed in the relevant currency of payment, each of which is applicable to the relevant tabulated cost elevant on the Base Date” The above paragraph shall be deleted and replaced with the following And replace it with the following paragraphs: Price Adjustment Method The price adjustment shall be applied to the first and subsequent progress payments to the contractor for the works performed throughout the contract period and whatever extended period approved by the Employer The amounts payable to the Contractor and valued at base rates and prices pursuant to Clause 13 and 14 shall be adjusted in respect of the rise or fall in the cost of labor, Contractor’s equipment, materials and other inputs to the Works, by the addition or subtraction of the amounts determined by the formulae prescribed below Adjustment Formula Pn  A  b Ln En Blo B 2o B3o Qn d  el  e2  e3  f Lo Eo B ln B 2n B3n Qo Where: - “Pn” is the adjustment (increase or decrease) to be applied to the pay items under considerationestimated value of the work carried out in month “n”, Value after adjustment = Pn * non-adjustment completed work value (determined following contract price and certificated quantity) – Weightings Aa, b, c, d, e1, and e2, e3 and f and f: ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-14 - aA is a coefficient, as shown clearly in the table below, showing fixed weighting, that can not be adjusted in payment of Contractspecified in the Bid Documents; - b is a coefficient, showing estimated ratio of price for local labour factor; - d is a coefficient, showing estimated ratio of price for fuel factor (diezel); - e1 is a coefficient, showing estimated ratio of price for major material factor used for bridge construction – that is cement; - e2 is a coefficient, showing estimated ratio of price for major material factor used for bridge construction – that is steel; - e3 is a coefficient, showing estimated ratio of price for major material factor used for construction – that is bitumen; - f is a coefficient, showing estimated ratio of price for equipment factor used for construction Weighting of adjustment coefficient of the above price escalation formula is taken following the table below: wWeighti ng A b d e1 e2 e3 f Descriptions Ppercentage Non-adjusted price 20% weighting representing the 10% - 14% effect on local labour weighting representing the 10% - 20% effect on fuel weighting representing the 16% - 28% effect on cement weighting representing the 16% - 28% effect on steel materials weighting representing the effect on 16% - 28% bitumen materials weighting representing the effect on 8% - 10% construction equipment Totalf weighting representing the effect on construction 8% - 100% equipment Total 100% - b, c, d, e, f are weightings representing the local labor, equipment, ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-15 materials, bitumen, fuel in the Contract estimated cost; - Value of weightings a, b, c, d, e and f: + The total of the Bid weightings shall be equal to 1.00 + Value of each weightings following the table: Range of Weighting Bidder’s Description Proposed Weighting weighting representing the nona adjustable portion in contractual 0.20 payment b c d e f weighting representing the rate of 0.10 -:- 0.16 labour weighting representing the rate of 0.04 -:- 0.09 equipment weighting representing the rate of main materials (steel, cement, sand, rock) weighting representing the rate of 0.05 -:- 0.15 0.15 -:- 0.25 bitumen weighting representing the rate of fuel 0.25 -:- 0.35 Lo is the base price index of local labour; Ln is current price index of local labour; Eo is basic price index of Diezel; B10 is the basic price index of major material used for bridge and box culvert construction: cement material; B1n is the current price index of major material used for bridge and box culvert construction: cement material; B20 is the basic price index of major material used for bridge and boxculvert construction: Steel Material; B21n is the current price index of major material used for bridge and boxculvert construction: Steel Material; B30 is the basic price index of major material used for pavement construction: Bitumen Material; B3n is the current price index of major material used for pavement construction: Bitumen Material; Qo is index for major equipment; Qn is index for current equipment; ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-16 Basic price indices or basic price is current price indices, taken at the time of 28days before bid opening Current price indices or current prices are determined at the time of 28days before acceptance of completed quantity If the current indices is not issued by authorized agencies by that time, the Employer shall fix temporary indices for use until the current indices are available After the current indices are available, the Contractor’s payment amount shall be adjusted Index for local labour is taken following Vietnam General Statistics Office Price index for diezel fule shall be provided by General Statistical Office HanoiPetrolimex in the project area; With regard to price index for cement material, the Bidder shall obtain price issued by General Statistical Office HanoiVietnam Cement Corporation, which is located at Hanoi city; Regarding price index for steel material, the Bidder shall obtain price issued by quotation of General Statistical Office HanoiSteel Corporation, which is located in the project area; Price index for equipment shall follow regulations on equipment exported from G5 Industrial Countries (France, Germany, England, Japan, and America) to market of developing countries, in US Dollar and converted in Vietnam Dong with exchange rate at the time of calculation The regulations are issued twice a year by World Bank – Indices: Lo, Eo, Mo, Ro, Fo: are the reference prices corresponding to the life, equipment, major materials (steel, cement, sand, stone), bitumen, fuel to be announced at the date 28 days prior to the bid closing date Ln, En, Mn, Rn, Fn: are the reference prices corresponding to the life, equipment, major materials (steel, cement, sand, stone), bitumen, fuel to be announced at the date 28 days prior of adjustment - The reference prices to be determined following: + Lo, Eo, Fo, Ro, Mo to be announced by General Statistics Office Hanoi at the date 28 days prior to the bid closing date + Ln, En, Fn, Rn, Mn to be announced by General Statistics Office Hanoi at the date 28 days prior of adjustment - Mn/Mo to be determined following: Mn Vt.Lt Vx.Lx Vc.Lc Vd Ld b1  c1  d1  e1 Mo Vot.Lot Vox.Lox Voc.Loc Vod Lod ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-17 Where: - b1 is weighting representing the effect on steel = 0.1 -:- 0.35 - c1 is weighting representing the effect on cement = 0.05 -:- 0.25 - d1 is weighting representing the effect on sand = 0.1 -:- 0.35 - e1 is weighting representing the effect on stone = 0.2 -:- 0.4 + The total of the weightings (b1, c1, d1, e1) shall be equal to 1.00 - Vt.Lt, Vot.Lot, Vx.Lx, Vox.Lox, Vc.Lc, Voc.Loc, Vd.Ld, Vod.Lod are the reference prices corresponding to the steel, cement, sand, stone to be announced by the General Statistics Office Hanoi at the date 28 days prior to the bid closing date in the project area.Replace Sub-Clause 13.4 with the following: Where the Contract provides for the payment of the Contract Price in more than one currency, the amount payable in each of the applicable currencies shall be specified when the rates or prices are agreed, fixed or determined as stated above, it being understood that in specifying these amounts the Contractor and the Engineer (or, failing agreement, the Engineer) shall take into account the actual or expected currencies of cost of the inputs of the varied work without regard to the amounts of various currencies specified in the Appendix to Bid for payment of the Contract Price.All payments to the Contractor shall be made in the Dong currency of the Socialist Republic of Vietnam (hereinafter called local currency) and US Dollars (hereinafter called foreign currency), and if not otherwise provided for in the Contract, in the same proportions of the local and foreign currency components of the various Unit Prices and Rates as have been established in the Contract Agreement 14 Contract Price and Payment 14.7 14.7 Paymentt 18 Insurance 18.1 General Requirements for Insurances Delete the words “in the payment country (for this currency) specified in the Contract” of the last sentence of the Sub-Clause 14.7 Delete the wordks ‘’ Wherever “ of the begin sentence of the second paragraph of the Sub-Clause 18.1 as follows: The Contractor is the insuring Party, each insurance policy shall be carried out by Insurers coming from eligible countries and under legal operation in Vietnam, and being approved by the Employer each insurance shall be effected with insurers and in terms approved by the Employer Add new paragraphs after second paragraph of the Sub-Clause 18.1 as follows: The Employer may shall be able to engage an independent insurance consultantce company to act as the insurance consultant for both the Employer and the Contractor assisting on insurance matters of the whole Project In case the Contractor is insuring Party the insurance consultant ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-18 shall also assist the Contractor in insurance matters consultancy and the Contractor shall coordinate with the consultant in arranging the insurance program and selecting insurer appropriate to the Project The insurer for the Project shall has (i) full legal capacity according to the Law on Insurance Business, (ii) experience and capability to serve the insurance need of the Project, used to render insurance service for civil works in the same geographical regionhaving the same standard in Vietnam, (iii) insurance term and conditions satisfying the risks of the Project, and (iv) the reinsures having financial security rating in accordance with the Law on Insurance Business, and (v) The insurer for the Project shall come from eligible countries (as listed in Section – Eligible Countries) and has been granted with legal permit to operate in Vietnam The Employer shall make an overall insurance program for the whole project in order to control risks to the works The Contractor shall be responsible for complying with the project insurance program as prepared by the Employer Delete the Third paragraph of the Sub-Clause 18.1 Add new paragraphs after final paragraph of the Sub-Clause18.1 as follows: If and when such damage /or loss occurred, Employer shall have the full rights to participate in the entire process of investigation on the loss/damage and negotiation for payment base on agreed insurance policies and real level of damaged /loss If the Contractor can not finalize taking out insurance for the works within 40days after commencement of the package, the Employer shall nominate this insurance and the Contractor shall be responsible for paying the insurance cost 18.2 Insurance for Works and Contractor’s Equipment Insert following after the second paragraph of the Sub-Clause 18.2 : 18.3 Insurance against Injury to Persons and Damage to Property Delete the wordks ‘’ the insuring Party “ of the begin sentence of the first paragraph and insert the words “The Contractor” as follows: and Clause 12 [Test after Completion] The Contractor shall insure against each Party's liability for any loss, damage, death or bodily injury which may occur to any physical property (except things insured under Sub-Clause 18.2 [Insurance for Works and Contractor's Equipment]) or to any person (except persons insured under Sub-Clause 18.4 [Insurance for Contractor's Personnel]), which may arise out of the Contractor's performance of the Contract and occurring before the issue of the Performance Certificate 16.4 Payment on Termination Delete sub-paragraph (c) 20.1 Contractor’s Claims Add after the first paragraph: ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-19 A claim includes any claim: (a) under, arising out of, or in connection with, the Contract; (b) arising out of, or in connection with, the Works or either party’s conduct before the Contract; or (c) otherwise, at law or in equity including without limitation: (i) by statute; (ii) in tort for negligence or otherwise, including without limitation negligent misrepresentation; or (iii) for restitution including restitution based on unjust enrichment Amend fifth paragraph as follows: Within 42 days after the Contractor became aware (or should have become aware) of the event or circumstance giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor shall send to the Engineer a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed Such detailed particulars shall include: (i) all relevant details of the nature of the cause of the delay and the extent of the delay; (ii) reference to the critical activities of the program submitted to the Engineer under Sub-Clause 8.3 and clearly showing how the delay involves an activity which is critical to the maintenance of progress in the execution of the Works or a Section so as to achieve completion of the Works within the Time for Completion of the Works or the Section; and (iii) the steps which have been taken to alleviate and otherwise deal with the delay and its cause ADDITIONAL CLAUSES 21 Taxation 21.1 Foreign Taxation The priced bid by the Contractor shall include all taxes, duties and other charges imposed outside the Employer’s country on the production, manufacture, sale and transport of the Contractor’s Equipment, Plant, materials and supplies to be used on or furnished under the Contract, and on the services performed under the Contract 21.2 Local taxation The priced bid by the Contractor shall include all customs duties, import duties, business taxes, and income and other taxes that may be levied in accordance with the laws and regulations in being on the date 28 days prior to the latest date for submission of bids in Viet Nam on the Contractor’s equipment, plant, materials and supplies (permanent, temporary and ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope Section - Particular Conditions of Contract 8-20 consumable) acquired for the purpose of the Contract and on the services performed under the Contract Nothing in the Contract shall relieve the Contractor from his responsibility to pay any tax that may be levied in Viet Nam on profits made by him in respect of the Contract 21.13 Personal Income Taxes The Contractor’s staff, and labour will be liable to pay personal income taxes in Viet Nam in respect of their salaries and wages as are chargeable under the laws and regulations for the time being in force, and the Contractor shall perform such duties in regard to such deductions thereof as may be imposed on him by such laws and regulations 21.2 Tax Payment The Contractor shall propose to pay tax directly to Tax Department in Vietnam or shall have the tax paid by the Employer if the Contractor is not eligible enough to pay tax If the Employer pays the tax on behalf of the Contractor, the Contractor shall agree to deduct that tax portion from his payable amount in compliance with prevailing regulations of Vietnam 21.3424 Duties on Contractor’s Equipment All items imported by the Contractor into Viet Nam for the purpose of, or in connection with the Contract, shall be subject to the customs and other import duties in accordance with the current regulation in Viet Nam Notwithstanding the above, all the Contractor’s equipment including essential spare parts imported by the Contractor for the sole purpose of executing the Contract and which will be re-exported on the termination of the Contract or before shall be exempt from the payment of import duties and taxes upon initial importation, provided the Contractor shall post with the Customs authorities a the port of entry an approved export bond or bank guarantee, valid until the date of completion of the Contract plus eight months, in an amount equivalent to the full import duties and taxes which would be payable on the assessed imported value of such Contractor’s Equipment and spare parts, and callable in the event of non-export from the Employer’s country A copy of the bond or bank guarantee endorsed by the Customs Authorities shall be provided by the Contractor to the Employer upon export of any individual item of Contractor’s Equipment or spare parts At a time before six months after the completion of the Contract, the Contractor shall make and agree with the Customs Authorities an assessment of the residual value of the Contractor’s Equipment and spare parts not yet exported Import duties and taxes shall be due and payable to the Customs Authorities by the Contractor on the residual value of the Contractor’s Equipment and spare parts remaining in the Employer’s country six months after completion of the Contract Upon payment of such dues by the Contractor within 30 days of being invoiced the bond or bank guarantee shall be reduced or released accordingly, otherwise the security shall be called in the full amount of the balance remaining 22 Operations in Rivers Add new Sub-Clause 22: Navigation of ships and barges in waterways within the Site and adjacent areas will continue throughout the execution of the Contract ADB Standard Bidding Document Noi Bai – Lai Cai Highway Project 15 January20 April 2008 Procurement of Works Single-Stage: Two-Envelope