Supplies of spare parts and services after construction
(Правовое руководство по составлению строительных контрактов)
After construction is completed and the works has been taken over by the purchaser, the purchaser will have to obtain spare parts to replace those which are worn out or damaged, and to maintain, repair, and operate the works. He may wish to obtain from the contractor the spare parts and the repair, maintenance and operation services which he may need. The degree of assistance from the contractor needed by the purchaser in regard to the supply of spare parts and services after construction will depend on the technology and skilled personnel possessed by or available to the purchaser (paragraphs 1 to 3).
It is advantageous for a purchaser from a developing country to acquire or to have available locally the spare parts and the technology and skills necessary to maintain, repair and operate the works. To this end, he may seek in his contract with the contractor to obtain a transfer of the technology and skills required for the manufacture of spare parts and the carrying out of the services. The transfer of technology and skills to the personnel of the purchaser may be effected under training obligations undertaken by the contractor. Such a transfer may be of value to the developing country itself as it may promote its industrialization process (paragraphs 4 and 5).
The planning of the parties with regard to the supply of spare parts and services after construction would be greatly facilitated if the parties were to anticipate and provide in the works contract for the needs of the purchaser in that regard. Other approaches will have to be adopted if this is not possible (paragraphs 7 to 9). The continued availability of spare parts for the operational lifetime of the works is of considerable importance to the purchaser (paragraphs 10 and 11).
A person offering to construct the works may be required to indicate the spare parts which will be needed over a specified period of operation, and the prices at which and the period of time during which he can supply them (paragraphs 12 and 13). The continued availability of spare parts is of crucial importance to a purchaser from a developing country and, accordingly, it may be necessary for him to take steps, through appropriate contractual provisions, to secure a supply of these either from the contractor or from the suppliers of them (paragraph 14). If spare parts are manufactured not by the contractor but for the contractor by suppliers, the purchaser may prefer to enter into contracts with those suppliers rather than obtain them from the contractor or, alternatively, he may wish to have the contractor procure them as his agent (paragraphs 15 and 16).
The parties in their contract may address issues connected with the ordering and delivery of spare parts. The contract may describe the specifications of the spare parts to be supplied, and provide for a quality guarantee in respect of them (paragraphs 18 to 20).
A prospective contractor may be required to indicate the maintenance services he is prepared to supply and the duration for which he is prepared to supply them. The contractor may be required to submit a maintenance programme designed to ensure the proper operation of the works over its lifetime, and the maintenance obligations of the contractor may be defined on the basis of that programme (paragraphs 22 to 24).
The standards to be observed by the contractor when performing maintenance work may be specified in the contract. The contractor may be required to furnish a report on each maintenance operation. The contract may describe how the price for the provision of the maintenance services is to be determined and the payment conditions applicable (paragraphs 25 to 28).
The contract should clearly define the extent of the contractor's repair obligations. It is in the purchaser's interest to enter into contractual arrangements that will ensure that the works will be repaired expeditiously in the event of a breakdown (paragraphs 29 and 30). To ensure that repairs may be undertaken speedily, the procedure for notifying the contractor of the need for repairs and for the contractor to advise the purchaser of any further necessary repairs should be agreed upon in the contract. The contractor may be required to furnish the purchaser with a report of the repairs carried out. The contractor may also be required to give a guarantee under which he assumes responsibility for defects in repairs (paragraphs 31 to 35).
It is advisable for the contract to define carefully the scope of any obligations imposed on the contractor with regard to the technical operation of the works. This may be done on the basis of an organizational chart which shows the functions to be allotted to the personnel of the contractor in carrying out such a technical operation. The division of control between the purchaser and contractor during the operation of the works should be clearly described (paragraphs 37 and 38). The contract may provide how the price for such services is to be determined and the payment conditions applicable (paragraph 39).
The contract may require the purchaser to facilitate the maintenance, repair and operation of the works by the contractor. The purchaser may wish to consider supplying locally available equipment and materials needed for maintenance and repairs (paragraph 40).
The contract should specify when the contractor's obligations regarding the supply of spare parts, maintenance, repair and operation are to commence and may also determine the duration for which they are undertaken by the contractor or establish some mechanism for determining the duration at some later time. Where the contract imposes obligations on the contractor over a long duration, it may be desirable to include mechanisms for the modification of the obligations imposed on the contractor, in particular, as to the scope of those obligations and the price payable by the purchaser. Where the duration of the obligations is short, the agreement may be made to renew automatically (paragraphs 41 and 44).
The parties may wish to deal in the contract with the termination of the obligations as to the supply of spare parts, maintenance, repair and operation. The contract may entitle the purchaser to terminate upon giving notice of a specified period (paragraph 45). The parties may also wish to provide for a system of remedies other than termination for the failure by a party to perform his contractual obligations with respect to the supply of spare parts, maintenance, repair and operation (paragraph 46).