Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 49

Clause 2.4 contains important provisions relating to the Employer's financial arrangements. This clause is far more extensive, and gives the Contractor greater protection, than the corresponding clause 2.4 in the 1999 editions. It is particularly important for the Contractor to be confident, or as confident as possible, about the Employer's ability to sustain payments during the project and to comply with any other Employer's financial obligations since, although the Contractor may be able to obtain security against performance of the Employer's financial obligations, this is often not obtained or may be inadequate. The Employer's failure to provide the appropriate evidence of his financial arrangements, in accordance with clause 2.4, is one of the grounds for suspension and termination by the Contractor under clause 16.

Clause 2.4 of the 2017 editions provides that the Employer's arrangements for financing his obligations under the Contract are to be detailed in the Contract Data. If the Employer intends to make any material change to these arrangements, which are such that they might affect his ability to pay whatever balance of the Contract Price might be remaining, as estimated by the Engineer, or Employer if Silver Book, or if he has to do so because of changes in his financial situation, then the Employer must immediately give a notice to the Contractor with full supporting details.

Additional protection is provided where the original Contract works are substantially changed by variations under clause 13, or where there has been non‐payment or a material change in the Employer's financial arrangements of which the Contractor has not received any notice. Thus if the Contractor:

1 receives an instruction to execute a variation with a price greater than 10% of the Accepted Contract Amount (in the Red and Yellow Books) or the Contract Price stated in the Contract Agreement (in the Silver Book), or if the cumulative total of variations exceeds 30% of that Amount or Price; or

2 does not receive payment in accordance with clause 14.7; or

3 becomes aware of a material change in the Employer's financial arrangements of which he has not received a notice under clause 2.4,

then the Contractor may request and the Employer, within 28 days of receiving the request, must provide reasonable evidence that financial arrangements have been made and are being maintained to enable him to pay whatever part of the Contract Price remains to be paid at that time, as estimated by the Engineer (if the Red or Yellow Books) or the Employer (if the Silver Book).