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 FIDIC4TH -

A PRACTICAL LEGAL GUIDE

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Published in 1991 by
Sweet and Maxwell Limited of
100 Avenue Road, London NW3 3PP-
'lyPcset by LBJ Enterprises Ltd, Chilcompton and Tadley
Printed by Athenreum Press Ltd, Gateshead, Tyne & Wear

Reprinted 1996, 1997, 1998 and 2000

British Library Cataloguing in Publication Data

A Catalogue record for this book is
available from the British Library
ISBN 0421453303
The conditions of Contract for Works of Civil
Engineering Construction, 4th Edition, Parts I and II
are subject to copyright and may not be reproduced
without written permission of FIDIC. Copies of the Conditions
may be obtained from the FIDIC Secretariat at P.O. Box 86,
CH-l000 Lausanne, 12Chailly, Switzerland.
FIDIC's own guide to the 4th Edition is entitled
The Red Book Guide, 1989.

All rights reserved.

No part of this pUblication may be reproduced
or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise,
.. or stored in any retrieval syitemof.any.nature, without the
written permission of the copyright holder and the publisher,
application for which shall be made to the publisher

c
Solicitors
I PriYJ CO\lGcil A,eats

MASONS
Head Office:
30 Aylesbury Street
London ECIR OER
Offices at:
~
Hong Kong
Manchester
Bristol
Leatherhead
," Associated offices at:
,~
Cairo Cayman
Beijing
1991

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For Jane and Genevieve

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~~ Australia

The Law Book Company

Sydney

Canada

The Carswell Company

Toronto, On~rio

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N.M. Tripathi (private) Ltd
Bombay

Eastern Law House (private) Ltd

Calcutta

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Bangalore

Universal Book Traders

Delhi

Israel

Steimatzky's Agency Ltd

Tel Aviv

Pakistan

Pakistan Law House

Karachi
 FIDIC4TH -
A PRACTICAL LEGAL GUIDE
A COMMENTARY ON THE
INTERNATIONAL CONSTRUCTION
CONTRACT

E.C. CORBETT,
a Partner of Masons , .
4
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SWEET AND MAXWELL

LONDON
1991

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 ACKNOWLEDGMENTS
I would like to thank Martin Harman and Professor Phillip Capper
for their support throughout this project. Also a big thank you to
Roisin McAleenan for her magnificent efforts in transcribing an
endless stream of tapes and amendments and for not quite reaching
the end of her tether. Thanks must also go to all those others who
commented on sections of the book in draft, namely Peter Taylor,
Graham Thompson, Angela Hook, Richard Davis, Andrea Craig,
Hilary Royston, Martine De Witt, Isabelle BrideI1e and Arun Singh.
Thanks also to Andrew Hibbert for his moral support and for nearly
getting -round to checking a section of the draft. I -am lridebted to
Humpnrey Lloyd Q.C. for an interesting discussion of some of the
issues raised by FIDIC 4th. I am also grateful to Sandi Rhys-Jones
and Robert Knutsen for their help. I am happy to acknowledge the
role of King's College, London whose excellent course in con-
struction law and arbitration provided the inspiration for this work.
Finally, words are inadequate to record my appreciation and grati-
tude for the patience and understanding of my wife who· coped
virtually as a single parent for the first six months of our daughter's
life.

VI

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 .,

PREFACE
Thlsbook is in~ended for anybody having dealings with~ FIDIC's
"Red Book",' the 4th Edition of the '~tions of -Contract for
Works of Civil Engineering Construction" published in 1987.
,Employers,engineers, contract()rs and their, respectiv~ildvisors
should"all find something in this 'work 'to help them to understand
. and make best use of these Conditions' of contract.

, ·For
'\ ~ . ':' ...

those not familiar with the contract, the commentary to each

, clause starts with a "plain English" paraphrase, to 'enable the reader
., ,

to' understand the-gist of the clause asq~cklyas possi&~ ..Except 4

» '! ,

where the meaning of the clause is en~lyobvious,each sub..clause

is' given a separate paragraph.
The volume' also includes a set of some 94 "sUggested-fo~"whiCh
may be found 'useful by engineers and contractors. These do not
attempt to anticipate particular situations but rather to use the
,
word.iniof the clause to produce a form of notice 'which would, it is
hoped, leave no room for doubt or debate as to whether a notice had
been given, under which clause it had been given or whether the
notice was in a form which complies with the terms of -the contract.
At the very least, the forms section will provide to the parties a
reference against which to check that the notice that they. are giving
has been given and copied to the correct parties. There can be few
types of disputes which are as fruitless and frustrating as disputes
over, whether the correct form of notice has been given in particular
circumstances. -Whilst there are often good reasons for requiring
noticeto be given, it is rare that justice is done when an arbitrator is
focced by the contract to rule uut a claim on the grounds that no or •
no adequate notice has been given. In short, it is in everybody's
interest that notices are given properly. ,If parties wished to do so,
they could agree at the outset that notices which confo~ to th()se set

Vll
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., PREFACE

out in this volume would not be open to challenge as to form

although they could of course be open to challenge in respect of their
timing, their appropriateness or indeed the manner in which the
blanks have been filled.

Although the masculine pronouns "he" and "him" have been used
from time to time as a shorthand for the Employer, the Contractor or
the Engineer, this is for convenience and is not based on any
assumption that the parties involved with civil engineering contracts
are necessarily male. The author is well aware that the contrary is
increasingly true. The usage is also consistent with the language of
the conditions.

Readers may find.it strange that references will be found in this work
to both the ICE's 5th and 6th Editions. The ICE 5th Edition is
referred to becau~ the draftsman of FIDIC's 4th Edition was plainly
heavily influenced by ICE's 5th Edition and the points of departure
are interesting in themselves as well as being useful of those readers
familiar with the ICE Conditions. References to ICE 6th· Edition are
included because of the history of the FIDIC form following. in the
footsteps of ICE's drafting: it is therefore interesting to see which of
the innovations introduced by FIDIC in their 4th Edition have been
adoped by the ICE in their 6th. KnOWledge of the ICE conditions is
by no means necessary for the user of this work, however.

As a user of commentaries of this sort, I am well aware that all too

often the particular practical problem which a reader experiences is
not covered by the commentary. As a writer, it is impossible to
imagine all problems that might occur even if time and the patience
of the publisher would permit all problems to be addressed. I should
add that even in cases where the problem experienced by a reader
appears to have been addressed and an answer suggested, the reader
should take great care and should avoid any assumption that their
particular circumstances were being addressed. Discussion and sub-
mission in the absence of particular facts is necessarily limited and
the reader is urged to give careful consideration and if necessary to
take independent advice in relation to their particular circumstances.

As this work is intended not only for lawyers but for the full
dramatis personae of a civil engineering project, it was decided that
.( footnotes would be avoided and references to legal cases given a

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m firmly subordinate role. Given the range of legal systems in which ~

the FIDIC conditions are used, very often with the local law as the ~
law of the contract, an over4epe~ce on Commonwealth case-law ,,~
would not necessarily be helpful. Recent decisions and decisions '
from jurisdictions other than England have been given priority. ..

)r It should be confessed at this early stage that the references to be

y found in Part II, the Conditions of Particular Application, to
:s dredging and reclamation have not been the subject of any comment.
.s Part II is however set out in full at the end of this work .
.f
For the protection of the innocent, I should make it clear that the
views and opinions expressed in the book are my own and not
necessarily shared by my partners.

Finally, the author wishes to thank FIDIC for peimittiog the

reproduction of the Red Book for the putposes of this work. 4.

ECe
London s'" ,
August, 1991

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 TABLE OF CONTENTS
Page
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\.f; Acknowledgment ..
VI
Preface Vll
Table of Cases xv

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INTRODUCTION

,• 1. Introduction 3
2. The role of the Engineer 8
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3. Commencement and the Final Stages 19
4. Extension of Time, Additional Payment and Notice 23

FIDIC 4TH PART I, WITH COMMENTARY

DEFINITIONS AND INTERPRETATION

Clause 1 3S

ENGINEER AND ENGINEER'S REPRESENTATIVE

Clause 2 S3

ASSIGNMENT AND SUBCONTRACTING

11-
Clauses 3 and 4 71

CONTRACT DOCUMENTS

Clauses S to 7 79
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GENERAL OBLIGATIONS

Clauses 8 to 33 99

LABOUR
Clauses 34 and 35 199

MATERIALS, PLANT AND WORKMANSHIP

Clauses 36 to 39 205

SUSPENSION

Clause 40 227

COMMENCEMENT AND DELAYS

Qauses 41 to 48 235

DEFECTS LIABILITY

Clause 49 and 50 283

ALTERATIONS, ADDITIONS AND OMISSIONS

Clauses 51 and 52 295

PROCEDURE FOR CLAIMS

Clause 53 317

CONTRACTOR'S EQUIPMENT, TEMPORARY WORKS AND

MATERIALS

Clause 54 327

MEASUREMENT

Clauses 55 to 57 337

PROVISIONAL SUMS

Clause 58 349

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~<:If CONTENTS
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NOMINATED SUBCONTRACTORS
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Clause 59 355
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CERTIFICATES AND PAYMENT

Clauses 60 to 62 369

REMEDIES

Clauses 63 and 64 397

SPECIAL RISKS
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Clause 65 421

RELEASE FROM PERFORMANCE

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SETTLEM.ENT OF DISPUTES

Clause 67 439
...
NOTICES

Clause 68 457 .

DEFAULT OF EMPLOYER

Clause 69 463

CHANGES IN COST AND LEGISLATION

Clause 70 479
CURRENCY AND RATES OF EXCHANGE

~ Clauses 71 and 72 485

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Optional Clause 73 489

;(
SUGGESTED FORMS 491

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COMPARISON OF FIDIC 4TH AND 3RD EDITIONS 519

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APPENDIX ';~
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FIDIC 4TH PART II "
665

FORM OF AGREEMENT 694

FORM OF TENDER 695
APPENDIX TO FORM OF TENDER 696

Index 697
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 TABLE OF CASES
Acsim (Southern) Ltd. v Dancon (1989) 47 Build.L.R. 55 ............ . 375
Arcos Industries Pty Ltd. 'D Electricity Commission of New South Wales

-' (1973) 2 N.S.W.L.R. 186; 12 Build.L.R. 65 ..................... .

Arnhold & Co. Ltd. v Attorney-General of Hong Kong (1989) 47
Build.L.R. 129; (1989) 5 Const.L.J. 263, High Ct of Hong Kong ....
Ashville Investments Ltd. 'D Elmer Contractors [1988] 3 W.L.R. 867;
302

272

(1989) 132 S.J. 1553, {1988] 2 All E.R. 577; (1987) 37 Build.L.R. 55;
(1987) 10 Con_LR. 72; (1987) 3 Const.L.J. 193, C.A ............... . 453
Attomey-Genera1 of Hong Kong 'D Ko Hon Mau (1988) 44 Build.L.R. 144 411
Blackhawk Heating & Plumbing, GSBCA No. 2432, 17-1 BCA 76--1 BCA
No. 11,649, 577 ........................ "..................... . 257
Bramall and Ogden Ltd. 'D Sheffield City Council (1983) 29 Build.L.R. 73,
D.C ......................................................... . 272
British Eagle International AirLines 'D Compagnie Nationale Air France
[1975] 1 W.L.R. 758; 119 S.J. 368; [1975] 2 All E.R. 390; [1975] 2
Lloyd's Rep. 43, H.L.; reversing in part [1974] "1 Lloyd's Rep. 429,
C.A.; affirming [1973] 1 Lloyd's Rep. 414 ........................ 415
Brown and Doherty 'D Whangarei County Council [1988] 1 N.Z.L.R. 33 411
Brunswick Construction v Nowlan (1974) 49 D.L.R. (3d) 93 ........... 102
Cable (1956) Ltd. v Hutcherson Bros. (1969) 43 A.L.J.R. 321 ......... 95
Central Provident Fund Board 'D Ho Bock Kee (t/a Ho Bok Kee General
Contractor) (1981) 17 Build.L.R. 21, C.A. Singapore. . .. . . . . . . . . . . . 459
Commerce International Company v United States 338 F. 2d 81, 90 (l964) 257
Commissioner for Main Roads v Reed & Stuart Pty Ltd. and Another
(1974) 12 Build.L.R. 55 ........................................ 300
Crosby G.) & Sons Ltd. 'D Portland U.D.C. (1%7) 5 Build.L.R. 121, D.C. 303
Croudace 'D Lambeth London Borough (1984)1 Const.L.J. 128; [1984]
C.I.L.L. 136 ................................ . ................ 41, 58
D. & F. Estates v Church Commissioners for England [1983] 3 W.L.R.
368; (1988) 132 S.J. 1092; [1988] 2 All E.R. 992; (1988) 41 B.L.R. 1;
(1988) 138 New L.J. 210; [1988] L.S.Gaz. September 14, 46, H.L.;
affinning [19871 1 FfLR 405; (1987) Const.L.J. 110; (1987) 36
Build.L.R. 72; (1988) 11 ConLR 12. C.A.; affirming in Part (1987) 7
ConLR 40 ............................ . ....................... 74
Davis Contractors v Fareham V.D.C. [1956J A.C. 696; [1956] 3 W.L.R.
37; 100 S.J. 378; [1956] 2 AU E.R. 145; 54 L.G.R. 289; ............ 433

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TABLE OF CASES

Deutsche Schachtbau-und-Tiefbohrgesellschaft mbH v The R'As Al

Khaimah National Oil Co. and Shell International Petroleum Co. [19881
, 3 W.L.R. 230; [1988] 2 All E.R. 833; [1988] 2 Lloyd's Rep. 293; [1988]
i L.S.Gaz. July 20, 45, H.L.; reversing [1987] 3 W.L.R. 1023; (1987)
131 S.J. 1486; [1987] 2 All E.R. 769; [1987] 1 FfLR 17; [1987 2
Lloyd's Rep. 246, C.A. ........................................ 80
Dillingham Construction v Downs [1972] 2 N.S.W.L.R. 49 ............ 113
Doug Rea Enterprises v Hymix Australia [1988] B. & c.L. 67 ......... 95
Dunlop Pneumatic Tyre Co. v New Garage & Motor Co. [1915] A.C. 79 268, 271
Dyer (E.R.) Ltd. v The Simon BuildlPeter Lind Partnership (1982)
Build.L.R. 23, D.C. ........................................... 408
Eckersley (T.) and others v Binnie and Partners, Edmund Nuttall Ltd.
and North West Water Authority [1988] C.I.L.L. 388 .............. 95
EDAC (Equitable Debentures) Assets Corporation v Moss (1984) 1
Const.L.J. 131 ................................................ 102
Glenlion Construction fJ Guiness Trust (1988) 39 B.L.R. 89; 11 ConLR
126; (1988) 4 Const.L.R. ....................................... 271
Greaves & Co. Contractors v Baynham Meikle & Partners [1975] 1 W.L.R.
1095; 119 S.J. 372; (1975) 3 All E.R. 99; [1975) 2 Lloyd's Rep. 325,
C.A.; affirming [1974)1 W.L.R. 1261; 118 S.J. 595; (1974) 3 All E.R.
666; [1975] 1 Lloyd's Rep. 31 ................................... 95
Hansen and Yuncken v Chadmex Plastics (1985) B.C.L.R. 52 .......... 301
Hill a.M.) & Sons Ltd. v London Bor9ugh of Camden (1980) 18
Build.L.R. 31, C.A. ........................................... 459
, Hoenig fJ Isaacs [1952] I.T.L.R. 1360; [1952) 2 All E.R. 176; .......... 275
, IBA v EMI and BICC (1980) 14 Build.L.R. 1 ........................ 95
ICC Case no. 4862 (1989) 6 I.C.L.R.44 ............................. 447
Investors in Industry Commercial Properties v South Bedfordshire District
Council; Ellison & Partners and Hamilton Associates (Third Parties)
[1986) Q.B. 1034; [1986)2 W.L.R. 937; [1986)1 All E.R. 787; (1985) 5
ConLR 1; (1986) 1 E.G.L.R. 252; (1986) 2 Const.L. 108; (1985) 32
Build.L.R. 1; (1986) 83 L.S.Gaz. 441; (1986) 136 New.L.J. 118; .... 102
Junior Books v Veitchi Co., The (1983) A.C. 520; [1982) 3 W.L.R. 477,
(1982) 126 S.J. 538; [1982) 3 All E.R. 201; [1982) Com.L.R. 221;
(1982) 79 L.S. Gaz. 1413; (1981) 21 Build.L.R. 66 H.L. ........... 76
Leon Engineering and Construction Co. Ltd. fJ Ka Duk Investment
Co.Ltd. (1989) 47 Build.L.R~ 139; [1989] 5 Const.L.J. 288. High Ct.
of Hong Kong ........ ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Lester Williams v Roffey Brothers (1989) 48 Build.L.R. 69 ............ 266
Loke Hong Kee Pte v United Overseas Land (1982) 23 Build.L.R. 35;
(1982) 126 S.J. 343 ............................................ 404
Lome Stewart v Sindall (William) and N.W. Thames Regional Health
Authority. See Stewart (Lome) v Sindall (William) and N.W. Thames
Regional Health Authority
Lubenham Fidelities and Investment Co. v South Pembrokeshire District
Council and Wigley Fox Partnership (1986) 33 Build.L.R. 39; (1986) 6
ConLR 85; (1986) 2 Const.L.J. 111, C.A; affirming [1985] C.I.L.L.
214 .......................................................... 58
McQuade v Solchek Pty Ltd. [1989] B. & C.L. 131 .................. 102
Mears Construction Ltd. v Samuel Williams (Dagenham Docks) Ltd.
(1977) 16 Build.L.R. 49 ........................................ 309

XVI
 fI TABLE OF CASES
II
II
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Merton London Borough 'V Leach (Stanley Hugh) Ltd. (1985) 32
I Build.L.R. 51; (1986) 2 Const.L.J. 189 .......................... 90,253,
385
Mid Glamorgan County Council 'V The Land Authority for Wales (1990) 49
Build.L.R. 61 ................................................ 447
Minter (F.G.) v W.H.T.S.O. (1980) 13 Build.L.R. 1, C.A.; reversing 11
Build.L.R. 1 ................................................. 387
Mitsui Construction Co. v Attorney-General of Hong Kong (1986) 33
Build.L.R. 1; (1986) 10 ConLR 1; (1986) 2 Const.L.J. 133, P.C; (1984)
26 Build.L.R. 113, C.A. of Hong Kong .......................... 302
Monrnouthshire County Council v Costelloe & Kemple Ltd. (1965) 5
Build.L.R. 83 ................................................ 442
Morrison-Knudsen Co. Inc. v British Columbia Hydro and Power Author-
ity (1978) 85 D.L.R. (3d)186; {1978] 4 WWR 193 ................ . 266
Morrison-Knudsen International Co. Inc. v Commonwealth of Australia

- (1972) 46 A.L.J.R. 265; 13 Build.L.R. 114 ..................... ..

Mvita Construction Co. Ltd. v Tanzania Harbours Authority (1988) 46
Build.L.R. 19 ............................................... .
114

401
N.R.H.A. v Derek Crouch Construction Co. Ltd. [1984) Q.B. 644; 26
Build.L.R. 104 .................... ;.......................... 449
National Coal Board v Neill (William) & Son [1985] Q.B. 300; [1984] 3
W.L.R. 1135; (1984) 128 S.J. 814; [1984] 1 All E.R. 555; (1984) 26
Build.L.R. 81; [1984] 81 L.S.Gaz. 2930; (1983) 133 New L.J. 938,
D.C. . ...................•............................ ~ . . . . . . 124
Neilsen (S.W.) (Canterbury) 'V PTCConstructions [1987] B & C.L. 387 76
Owen (Edward) Engineering v Bardays Bank International [1977] 3
W.L.R. 764; (1977) 121 S.J. 617; [1978] 1 All E.R. 976; [1978] 1
Lloyd's Rep. 166; (1977) 6 Build.L.R. 1, C.A. .................... 108
Pacific Associates Inc v Baxter [1989] 3 W.L.R. 1150; (1989) 133 S.}. 123;
[1989] 2 All E.R. 159; (1989) 44 Build.L.R. 33; (1989) New L.}. 41,
C.A.; affirming (1989) 13 ConLR 80 .............................. 57
Peak Construction (Liverpool) v McKinney Foundations (1971) 69 L.G.R.
1, C.A. . ..................................................... 248, 250
Perini Corporation v Commonwealth of Australia (1969) 12 Build.L.R. 82 58
Phillip & Anton Homes v Commonwealth of Australia (1988) 7 A.C.L.R.
39 ........................................................... 112
Philips (Hong Kong) v Attorney-General of Hong Kong (1990) 50
Build.L.R. 122 ............................................... 272
Queen v Walter Cabatt Construction (1975) 69 D.L.R.(3d) 542 ....... " 192, 241
Rapid Building Group v Eating Family Housing Assn. (1984) 29
Build.L.R. 5, C.A. ............................................ 242
Rees & Kirby v Swansea City Council (1985) 30 Build.L.R. 1; (1985) 129
jj S.}. 622; [1985] c.I.L.L. 188; (1985) 1 Const.L.J. 378; (1985) 5
ConLR 34; (1985) 82 L.S.Gaz. 2905, C.A.; reversing in part (1984) 128
H
I S.J. 46; (1984) 35 Build.L.R. 129 ............................... 387
~ Richardson v Buckinghamshire County Council, 115 S.}. 249; (1971) 69
L.G.R. 327; sub nom. Richardson v Buckinghamshire County Council,
Sydney Green (Civil Engineering), and Roads Reconstruction (Con-
tracting) [1971] 1 Lloyd's Rep. 533, C.A.; reversing (1970) 68 L.G:R.
662; (1971) 6 Build.L.R. 58 .................................... 165
Sharpe v San Paulo Railway Co. (1873) 8 Ch. App. 597; 39 L.T. 9, L.JJ. 124

xvu
'FA:.BLE OF CASES

Simaan General Contracting Co. v Pilkington Glass (No.2) [1988] Q.B.

758; [1988] 2 W.L.R. 761; (1988 132 S.l. 463; [1988] 1 All E.R. 791;
[1988] FfLR 469; (1988) 40 Build. L. R. 28; (1988) 138 New L.J. 53;
(1988) L.S.Gaz. March 16, 44, C.A. ............................. 76
Suisse Atlantique Societe D' Armement Maritime S.A. v N. V. Rotter-
damsche Kolen Centrale [1967] 1 A.C. 361; [1966] 2 W.L.R. 944; 110
S.l. 367; [1966] 2 All E.R. 61; [1966] 1 Lloyd's Rep. 529; affirming
[1965] 1 Lloyd's Rep. 533; [1965] C.L.Y. 3610, C.A.; affirming [1965]
1 Lloyd's Rep. 166 ............................................ 301
·Sun Ship Building Co. v United States 76 Ct. Cl. 154, 188 (1932) . . . . . . . 257
Suttliffe v Thackrah [1974] A.C. 727; [1974] 2 W.L.R. 295; 118 S.J. 148;
1[1974] 1 All E.R. 859; (1974] 1 Lloyd's Rep. 318, H.L.; reversing
[1973] 1 W.L.R 888; 117 S.J. 509; [1973] 2 All E.R. 1047; [1973] 2
. Lloyd's Rep. 115, C.A. . .......... ________________ . ____ .. _. __ . . 57
Tara Civil Engineering Ltd. v Moorfield Developments Ltd (1989) 46
Build.L.R. 72; (1989) 16 Const ..L.R. 46 ......... _. _.......... : . . . 411
Temloc Ltd. v . Errill Properties Ltd. (1987) 39 ·B.L.R. 30; (1988) 4
Const.L.J. 63, C.A. . ................ _... _.._. ______ .______ .. ______ ... 268
Tms Industrial Co.Ltd.·v Kono.lnsurance Ltd. (1987) 42 Build.L.R. 110;
(1988) 4 Const.L.J. 157, Hong Kong Ct. of Appeal................ 107
Transfield Ptyv Arlo International (1980) 30 A.L.R. 201; [1981] R.P.C.
i41, Aust. 'High .. Ct ............ ; :':~ ... ;; ... _.......... _........ 331
United States v United Engineering and Construction Co. 234 U.S. 236
(1913) ..................................................... ;. 257
University of Glasgow v William Whitfield and John Long (Construction)
Ltd. (1988) 42 Build.L.R. 66 ................................... 102
Wates v G.L.C. (1983) 25 Build.L.R. 1, C.A.; affirming The Times, March
25, 1982 ..................................................... 434
Wigan ' Metropolitan Borough CoUncil v Sharkey Bros. (1987) 43
Build.L.R. 115; (1988) 4 Const.L.J. 162 ....... _................. 447
Wong Lai Ying v Chlnachem Investment Co. Ltd. (1979) 13 Build.L.R.
81, P.C. .............................................•....... 434
Yorkshire Water Authority v Sir Alfred McAlpine & Son (Northern) Ltd.
(1985) 32 Build.L.R.114 ....................................... 130
Young & Marten v McManus Childs [1969] 1 A.C. 454; [1968] 3 W.L.R.
630; 112 S.l. 744; [1968] 2 All E.R. 1169; 67 L.G.R. 1, H.L.;
affirming sub nom. Prior v McManus Childs [1967] C.L.Y. 354 ...... 208

XVlll
 Introduction

1. Introduction

2. The role of the Engineer

3. Commencement and the Final Stages

4. Extension of Time, Additional Payment and Notice

1
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1. INTRODUCTION
Origins of FIDIC 4th Edition

FIDIC is the Federation Internationale Des Ingenieurs-Conseils and is

an association of national associations of Consulting Engineers. They
have been in existence since 1913 and have their headquarters and
secretariat in Lausanne in Switzerland.
FIDIC have produced standard forms of contract for civil engineer-
ing projects since 1957. The 2nd Edition was published in 1969 and
the 3rd in 1977. As the ,- obvious comparison' is be'tween these
conditions and those produced by the Institute of Civil Engineers in
the United Kingdom, known ,t hroughout this work as "ICE," it may
be helpful to record that the ICE 1st Edition was published in 1945
--
and the 4th Edition is 1955. The 5th Edition was published in 1973
and it was upon this Edition that the FIDIC 3rd Edition was closely
modelled. FIDIC took the initiative with their 4th Edition and it
may be thought that ICE 6th Edition published in January 1991
•
shows that FIDIC has repaid some part of its debt to the ICE. In
particular, FIDIC's ideas in relation to an express obligation upon
the Engineer to be impartial, the deemed obligation upon the
Employer to disclose all information concerning the ground condi-
tions on site and the introduction of conciliation into the disputes
procedure after the Engineer's decision and before arbitration, may
well have influenced ICE's 6th Edition. To avoid confusion with
FIDIC editions, the ICE conditions are referred to in the cOInmen-
tary as ICE 5th and ICE 6th.

Nature of the Conditions

For those who are unfamiliar with FIDIC's Standard Form, it may
assist if the basic characteristics are set out:

i - . It is a form very much in the traditional English mode with Bills

of Quantities and a named Engineer whose functions include
making certification and other determinations independently of
the Employer and indeed impartially as between the parties.

3
 INTRODUCTION

- It is a remeasurement contract with the quantitIes in the bill

treated as approximate and the Contract Price having little
relevance save as a means by which the competing tenders might
be judged.
- The Employer may nominate subcontractors and has the power
to make direct payment in the event that the Contractor fails to
i'
do so. The Employer is not made liable, as in some English
i forms, for delays by the nominated subcontractors.
I
J
It
- Risk is divided in line with the philosophy that the Employer is
best placed to take on those risks which experienced contractors
could not reasonably be expected to foresee, which are outside
the control of the parties and which> are not readily capable of
being covered by insurance. Unpredictable ground conditions are
at the risk of the' Employer ..

The earlier editions of the FIDIC Conditions have been extensively

used and the 4th Edition is rooted firmly in the tried and tested
formula. The changes are gener3Jlly sensible and conservative and the
4th Edition will no doubt do equally well.
The changes made from the 3rd Edition are referred to at the
beginning of the commentary under each clause. The principal
changes are as follows:-

- Clause 2.6 (Engineer to act impartially): .an express obligation

upon the Engineer to act impartially as between the parties.
- The Engineer is required to consult with the parties under some
25 clauses prior to granting extensions of time, fixing rates or
making an award of costs. This consultation obligation is dis-
cussed further below.
- Design by the Contractor or one of his subcontractors is catered
for in clause 7.2 (Permanent works designed by Contractor),
clause 8.1 (Contractor's general responsibility) and clause 59.3
(Design requirements to be expressly stated).
• - Clause 44.1 (Extension of time for completion) now provides for
an extension for delays and prevention by the Employer.
- The amount of variation required to trigger an adjustment has
been increased from to per cent. in clause 52.3 (Variations
exceeding 15 per cent.).

4
 INTRODUCTION
•
- A procedure for claims has been set out in new clause 53 ~ .
(Procedure for claims).
- Clause 60 (Payment) has now been drafted in full whereas -the 3rd
Edition left the matter entirely in the hands of the parties to deal
with in Part II.
- Under clause 67 (Settlement of disputes) an "amicable settle-
ment" procedure has been interposed between the Engineer's
decision and arbitration.
- If the Employer fails to pay on time, the Contractor is now given
the option of suspending work or reducing the rate of work as an
alternative to determination: clause 69.4 (Contractor'sentide-
ment to suspend work).

In addition, there are numerous other material amendment~ and

some changes of vocabulary. Only 4 out of l~S sub-clauses escaped
change altogether.

Amendment of FIDIC's 4th Edition •

•
It is the author's experience and impression, quite unsupported by .,
statistics, that the FIDIC Conditions are used jnan amended Wrm,
perhaps in a majority of cases. Certainly, many of the major
Employers in the Middle East adopt and refine their own standard
sets of amendments. These amendments are generally aimed ~t
adjusting the balance of risk in favour of the Employer rather than to
remedy any ambiguities, anomalies or discrepancies in the drafting.
Clauses which it is suggested require attention in order to renwve
ambiguities, anomalies and discrepanci~ and thereby to reduce the
scope for conflict are as set out below. For the detailed criticism,the
reader is referred to the commentary under the particular clause
referred to.

- Clause 2.1 (Engineer's duties and authority): inability to replace

Engineer.
- Clause 2.5 (Instructions in writing): anomaly as to date of
instruction.
- Clause 2.6 (Engineer to act impartially): breadth (If item Cd} and
need to restore the Engineer's role as -agent.

5
INTRODUCTION

- Clause 7.1 (Supplementary drawings and instructions), clause

13.1 (Work to be in accordance with Contract) and clause 5l.1
(Variations): clarify Engineer's power to instruct.
- Clause 14.1 (Programme to be submitted): add procedure for
refusal of consent.
- Clause 37.4 (Rejection), clause 39.1 (Removal of improper work,
materials or plant) and clause 63.1 (Default of Contractor) item
(c): remove inconsistencies.
- Clause 42.1 (Possession of site and access thereto): clarify refer-
ence to the clause 14 programme.
- Clause 44.1 (Extension of time for completion): extend item (a) to
cover changes; clarify item (b); and ensure that item (d) covers
the Engineer and the Employer's other servants and agents.
- Clause :46.1 (Rate of progress) and clause 63.1 (Default of
Contractor) item (b)(ii): resolve discrepancy.
- Clause 49.2 (Completion of outstanding work and remedying
defects): clarify Engineer's apparent discretion to instruct
remedial works.
-- Clause 51.2 (~nstructions for variations): establish finally that an
increase or decrease in quantities amounts to "varied work."
- Clause ·52.3 (Variations exceeding 15 per cent.): put beyond
doubt the calculation of the 15 pet cent'-
- Clause~3.1 (Notice of claims): resolve relationship with other
clauses with notice requirements.
- Clause 59.1 (Definition of "nominated Subcontractor"): this
definition appears to be excessively wide.
- Clause 60.3 (Payment of retention money): clarify position for
interim certificates issued after the Taking-Over Certificate.
- Sub-clauses 60.5 to 60.8: establish consistent policy in relation to
breach of contract.
- Sub-clauses 60.7 and 60.9 and clause 62.2 (Unfulfilled obliga-
tions): clarify relationship between these clauses.
- Clause 63.1 (Default of Contractor): resolve doubt as to the time
limits for the Engineer's certificate and the Employer's notice and
termination: improve and clarify grounds (a), (b)(ii) and (c).

6
 INTRODUCTION •
:. 1

- Clause 65.3 (Damage to Works by Special Risks): clarify the .

n

Contractor's apparent right to complete the works.

- Clause 67.1 (Engineer's decision): resolve relationship with clause
63.1 (Default of Contractor) and clause 69.1 (Default of
Employer).

This list represents the headline items but other amendments are
suggested in the text and either party to the contract may wish to
make further amendments in their own interest. There is a further
species of amendment which might be of benefit to both the parties
such as amending clause 44 (Extension of time) and clause 46.1 (Rate
of progress) to enable the Employer to order acceleration in lieu of
extension of time or in circumstances where the Contractor's entitle-
ment to extension of time is a matter of dispute.
Generally, great care is needed when amending any standard form of
contract. These FIDIC conditions are generally well-balanced and,
as with any contract, there are a great number of links and
relationships between different clauses, not all of which are express
or otherwise obvious. With any amencfn:lent, therefore, there is the
danger of upsetting the balance or of creating unintended consequen-
tial changes to related provisions. It is in the interests of all parties
that changes should be kept to a minimum.

,.

7
 2. THE ROLE OF THE ENGINEER
Clause 2.1 is entitled "Engineer's duties and authority" but it is
necessary to look right through the conditions to understand the full
scope of his role. In the absence of clause 2.6 (Engineer to act
impartially) it would be apparent that the Engineer has a number of
different roles which may be enumerated as follows:

1. Designer: clauses 6, 7 and 51

2. Quality Controller: clauses 7.2, 36-39, 49 and SO
3. Valuer and Certifier: especially under clauses 48, 52, 60 and 62
4. Adjudicator: clause 67.

From the above it is reasonably clear that the Engineer is intended to

act both as agent for the Employer in the process of obtaining for the
Employer the project required and as an independent person for the
administration of the contract and for the settlement of disputes. .
Clause 2.6 (Engineer to act impartially) creates doubt over this
dichotomy. The clause requires the Engineer when acting in an
independent role to be impartial. This raises the difficult question as
to when the Engineer is engaged in which role. The draftsman has
sought to address the question by the use of the general concept
"wherever ... the Engineer is required to exercise his discretion .
. . . " There is no other reference in the contract to the Engineer's
discretion. There follows a list of actions which the Engineer takes in
his independent capacity. These actions would not, it is submitted,
always be undertaken in an independent capacity: for example,
consenting to subcontractors under clause 4.1 or approving the
Contractor's design under clause 7.2 would normally be considered
to be functions undertaken as the Employer's agent.
As suggested under clause 2.6, the presumed intention of the
draftsman has, very arguably, not been achieved. It is difficult to
II find a function of the Engineer that does not involve discretion or
does not "affect the rights and obligations" of the parties. The notice
fi . to commence under clause 41.1 (Commencement of Works) is to be
I
. l'
i given by the Engineer. Normally there would be little doubt that the.
notice would be given when the Employer wished within the

8
 THE ROLE OF THE ENGINEER

Exactly the same provision is not recommended:)t . would;,., be

unwieldy if the Engineer was., obliged to obtain approval for every
agent action. It would be better ,to list in Partl! to clause 2.6 those
functions in respect of which the Engineer is not to act impartially.
Table 1 sets out the functions of the Engineer and should assist the
parties to decide which decisions are to be taken as agent and listed
in Part II. The table advances a view on whether any given function
should be considered for the agency list or whether it is intended by
the draftsman to be an independent function. The column indicating
where consultation is called for demonstrates that consultation forms
part of the Engineer's independent function although not all the
normal independent functions involve consultation.

Consultation by the Engineer

A new feature of the 4th Edition is the obligation upon the Engineer
to consult with the Employer and Contractor on some 2S occasions
within the contract prior to making decisions as to time and money.
The consequence, FIDIC indicated at the time of the launch of the
Conditions, was to make the Employer "more visible." FIDIC
indicated that the consultation obligation reflected existing practice.
It may be that some employers will welcome a procedure which
requires the Engineer to keep them more fully informed and some

9
 INTRODUCTION

contractors will be glad of any entitlement to discuss their views with

the Engineer. This innovation raises three questions:

(a) What does "due consultation" mean?

(b) How does this obligation relate to the Engineer's obligations

under clause 2.6 (Engineer to act impartially)?

(c) What is the result if the Engineer fails to comply with this
obligation?
Each of these issues is now addressed in turn:-
(a) The phrase "after due consultation ~ith the Employer _and the
Contractor";.recurs throughout the contract. No-assistance is given,
however as to the form that this consultation should take. In
particular, the question is raised as to what, is meant by "due." To
"consult" is, according to the Concise Oxford Dictionary, ~'to "take
counsel . . . seek information or advice from ~ . . ' take into consid-
eration." The concise Oxford Dictiopary defines '''due'' in the
present context as "rightful, proper, adequate." It must be probable
that it also means in accordance with any relevant law. This raises
the possibility · that · in those countries in which the law imposes
certain bureaucratic procedures which must be followed prior to the
authorisation of additional payment, for example,itis quite possible
to envisage the Engineer being drawn into a round of discussions
with a number of relevant ministries as part of his consultation with
a goveniment employer. This, it must be suspected, would be far
removed from the intention of the draftsman which was presumably
. to introduce an express element of openness and natural justice into
the Engineer's decision-making. It was not intended to introduce a
procedure which could cause long delays to important determina-
tions under the contract. Accordingly, the parties may wish either to
delete the term "due" or to setout in the contract a simple
procedure allowing each party a meeting with the Engineer to put his
case.
As determination is to take place after the consultation, the question
arises whether one party is able to delay or prevent the determination
by refusing to take part in the consultation process. Plainly, it would
.1 be absurd if a party could sabotage the contract in this way. In this
I context, the word "due" is helpful, conveying the idea of giving the
i '

10
 THE ROLE OF THE ENGINEER

parties a fair opportunity for consultation so that if one party did not
co-operate, the Engineer would be free to make his determination
even though consultation had not taken place. A failure to participate
in the consultation procedure by either party, bearing in mind that in
some clauses such as clause 46.1 (Rate of progress), the consultation
concerns a deduction from the Contractor and is thus not always a
procedure leading to some benefit for the Contractor, would proba-
bly amount to a breach of contract. If, as submitted, the Engineer is
entitled to proceed to make his determination regardless of such
refusal, it is unlikely that loss will arise other than from any delay
caused by such refusal.
Alternative wording to address these potential difficulties would be:
"after having given to the Employer and Contractor a reasonable
opportunity for consultation in accordance with the procedure set
out in Part II."
(b) Consultation is intended to be an outward and visible sign of the
Engineer's impartiality. Plainly it is no guarantee. As shown by
Table 1 below) consultation is firmIy associated with those functions
of the Engineer which he undertakes as an independent person
rather than as agent for the Employer. At the end of the day,
impartiality depends upon the ability of the Engineer to exclude
from that part of his mind which is making a determination under
the contract all considerations other than those required to achieve a
fair decision in accordance with the spirit of the contract.
(c) If the Engineer purported to issue a determination without having
consulted with the parties, the question arises as to the validity of
that determination. This is an important question given the uncer-
tainty surrounding the precise meaning of "due consultation." A
party wishing to disregard a certificate or determination could seek to
argue that the consultation undertaken by the Engineer was inade-
quate or otherwise not in accordance with the contract. The answer,
it is submitted, lies in clause 67. In the event of a dispute, the
Engineer is obliged to make a decision reopening the disputed
determination without the need for any consultation. Furthermore,
the Contractor is obliged to proceed with the works while a decision
is pending. The current question must therefore be considered
against the philosophy of the contract proceeding regardless of
dispute. It is submitted that the pragmatic answer, at least, is that
such determinations would be valid and binding but that the
Employer would be in breach of contract for failing to procure that
 INTRODUCTION

his Engineer conducted himself as required by the contract. There-

fore, if the Employer sought to withhold or delay payment on the
strength of a lack of consultation, the Contractor could claim as
damages any losses that flowed from the non-payment. This
approach is supported by the difficulty of interpreting the require-
ment as a condition precedent to the determination.
If the consultation was intended to precede a deduction by the
Employer from monies due to the Contractor,"for example, under
clause 64.1 (Urgent remedial work), the result, it is submitted, is the
same. To the extent that the Contractor can show any loss flowing
I:
: from the lack of consultation, that loss would be recoverable as
damages from the Employer.

, !
: (

i i!
; i
"r

U
II
I ~"

II
!/
II:1

12
 . ,THE ROLE OF THE ENGINEER

TABLE 1

ENGINEER'S ROLE-AGENT OR
INDEPENDENT?
I

. Qause Description Agent ' Indepen- Consul-

No. dent tation
2.2,.4 Appointment of ./
Representative, assistants '
4.1 Consent to subcontractors ./
S.2 ' Resolving discrepancies ./?
6.1 I Consent to disclosure ./
I
6.4 , Determination of time .; /
and cost
7.1 Drawings and instructions ./ I

7.2 Approval of Contractor's ./ I

drawings
I
12.2 Determination of time ./ ./
and cost
Instructions / I
13.1 Satisfaction /?
Instructions ./?
14.1 Consent to programme /
14.2,.3 Request for revised .;
programme or cashflow
estimate
IS.1 Approval of .; I

superintendence,
I Retention on site /
16.2 Objection/consent to .;
'employees

." 13

i
I
 INTRODUCTION , .
'

1 3
17.1 Request to rectify setting- /
out error
3
I
Determination of /
additional cost-Clause 52
18.1 ,Instructing boreholes /
' 19 . 1
1 I Requiring security / 3
I
i 2O . 2 I Satisfaction /?
20.3 Requiring rectification / I

Determination of costs-- /
Clause 52 'I

27.1 Instructions re fossils /

Determination of time / /
and cost
30.3 Determination of cost / /
payable by Contractor to
Employer
31.1 Requirements on other /
contractors
.. 31.2 Request ·for facilities
I

/ I
Determination of /
additional cost-Clause 52
33.1 Satisfaction /?
35.1 Requiring labour return /
36.1 Instructions and tests on / I I

materials ,

/?
1

36.4 Satisfaction I

36.5 Determination / /
37.2 Inspection and testing / I

,
I
37.4 Determination that /
materials defective I

I
Request for repeat test / ,

,Determination of / /
Employer's costs
37.5 Delegation /

14
 THE ROLE OF THE ENGINEER

38.1 Examination/approval of j
work to be covered up I

38.2 Instructing work to be j

I

opened up ,
I
Determining additional j j
cost
39.1 Instructing removal of j?
work etc, in his opinion,
,

non-~ompliant
I

39.2 Determining Employer's / / ,

costs
40.1 Instruction to suspend .
-
.
/
Opinion on necessity to . /
protect and secure work
40.2 Determination of time / /
and cost
I
40.3 I Permission to resume / I
I work
,
41.1 Notice to commence /
42.2 Determination of time / /
and cost
44.1,.2,.3 Determination of / /
extension of time I I
145.1 Consent to ~xtend /? I
I
working hours
,
46.1 Expedition notice/opinion I /?
1that work too slow I

Consent to extended /? I
working
Determination of j /
,Employer's costs
- I

48.1,.2 Instruction re outstanding I /?

work
Issue of Taking-Over j
Certificate
Satisfaction j?

15
 INTRODUCTION

1
48 . 3 Issue of Taking-Over /
Certificate
49.2 Sa tisfaction /?
Instructing remedial work /?

49.3 Opinion re cause of defect /

Determination of cost- /
Clause 52
49.4 Opinion re liability for /
defect -
Determination of co~t /
50.1 Instruction to search /
Determi~ation - of c~,st -:-. _'- /
51.1 Opinion as to necessity or /?
. : ', ! .':'" " ; - .- . ' ~

appropriateness of '
.

variation
Instruction of variation _. / '.
52. i Valuation of variations- /?
at rates and prices
Valuation of variations- /?
based on rates and prices
Opinion as to applicability /
Agreement of rates or /? ' /
pnces
. Fixing appropriate rates /
and prices
Determination of
provisional valuation
52.2 Opinion on
"inappropriate or
inapplicable"
Agreement of suitable /? /
ra tes or prices
Fixing appropriate rates /
and prices
Determination of /
provisional valuation /
Notice of intention to /?
vary rate or price
I
16
 •
THE ROLE OF THE ENGINEER

". .

' 52.3 Determination of / /

adjustment J
I

- 52.4 Opinion/instruction re /?
.~ I

daywork
I Approval of quotations /?
Signature/agreement of I?
.daywork schedule
Satisfaction that value
I
reasonable I?
53.2 Inspection of records I?
153.3 Requirement re intervals, /? I

copies
:,-'.'
53.4 Assessment of claim /
53.5 Satisfaction and . . _.. " '"
- .-
/ /
determinati()n I -.

· 54.1 Consent to removal of I? ,

equipment
,
.-
5u.l Measurement /?
57.2 Approval of breakdown /?
58.1,.2 Instructing provisional / I
I
sums
Determination of value""- /
Clause 52
59.1 Nomination, selection, /
I approval of NSC
59.4 Instructions I / I
Determination of /
entitlement-Clause 52
, I
59.5 Demanding proof of /
I
I payment

Satisfaction/proof/ /?
certifica tes
Deduction from certificate /?
60.1 Prescribing form of /
statement i,
;.

60.2 'I Interim certificate \ / I

17
 ~. : "': , :. :~ .

INTRODUCTION

60.3 Determination of I j
proportion
Certification/withholding j
of retention
60.4 Correction of certificate j :

(0.5 Approval of form of

. statement
j

Certification I j
60.6 Agreement of Final j?
I
Statement
60.8 Final Certificate I
62.1 I Defects Liability j?
Certificate
63.1 Certificate of default I j
' 63.2 Certificate of value I I
63.3 Certificates of Employer's· . I
costs and balance
. Opinion on need for and I)
1
64 . 1 v •
nature of urgent work
Determination of cost I I
65.3 Requirement for repairs j
I
I
Determination of cost-
Clause 52
65.5
-
Determination of cost j j
65.8 Determination of payment I I
67.1 Decision j I I
69.4 Determination of time I I j
I
and cost
I

70.2 Determination of cost j j

18
 . j

3. COMMENCEMENT AND THE

FINAL STAGES

Tables 2 and 3 illustrate the actIvItIes and time periods at the

beginning and end of the project. Table 2 demonstrates the signifi-
cance of the letter of acceptance as a trigger for time periods under
five clauses. The discrepancy between the Contractor's responsibility
for the works under clause 20.1 (Care of Works) and his obligation to
insure those works under clause 21.2 (Scope of cover) is also
demonstrated.
Table 3 illustrates the compleXity of the provisions governing the end
of the project and also the need to distinguish between the date of
issue of the Taking-Over Certificate which governs various matters
and the date stated . within the Certificate from which date the
Defects Liability Period runs . .

I 19
 c._c~~~~;;;;;,. ,- .• .•_ , " _ =- = :__ ~.~" ~ . .,'.£ = J...d- _ L..", ;'J,~_,.'.' .4 ,p i · .1 . . ·~r ~Q ::Ire
.7:;;·_· '.= _~ r' : _!-

TABLE 2 . .
-
Z
~

Key dates and periods of time at commencement "ooc:

q
28 .1 Deadline
Tend~r 1_.
Letter
of
~ 10.1 Performance Security
57.2 Breakdown of Lump Sums

~ 14.1, 14.3 Programme, Cash Flow

-z
o
70.2 Subsequent Legislation Acceptance
71.1 Currency Restrictions I ~ 41.1 Notice to Commence _
72.2 Currency Proportions 42.1 Possession gi-.ren by E
'.

t-.)
o
: h2
:. ':.1 43.1 · Start on site
Commenc?me~t . ••••• ~ 21.2 C to Insure work
Date. . "
KEY 1.1 (C~{i) " . _84 - 2-5-.1-P-ro-o-f-o-fI-ns-u-ra-n-c-e-----,I
(on receIpt by . 1. _ _.
___ -. No specified period C of Notice to
Commt:lnce) , App
•••••• ~ As soon as reasonably possible ~

App ~ PeriodstatedinAppendixtoTender
28 • 28 day period
20.1 43.1
C Contractor C responsible Time for
for works Completion
E Employer
" ...... ..... , .-...--~- ....- - .- ... , ~. ~ "W 5 XUiIIlknr",.,.,..),, · . " . "'Ii" ! ,!S b'~ 7 ".'. " ( .. ltll"'''',,·.. · " ..... N",.;"' . 'sllliin JI .
. !,'
" .

TABLE 3
From Substantial completion onwards
A: Taking Over and Defects Liability

c's Notice
48.1
~. Instructions
~1 (or TOC)
I 48.1
I... ~ Work
substantially
complete
21
~
~ I . TOC
48.1
84 Statement at
Completion
60.5
28
f-_ _ ~.I ce~~~~ate

5 but see •••• ~[33.1 C to clear SIte]

7.2
operation
1
J 8
~trl
20.1 Care of Works
manuals 21.2 Insurance

47.1 60.3 Release of half retention Z

(")
LAD cease
..-
t'-J
52.3 Adjustment for +/- 15%
tr:1
~
trl
Z
...,
~ ~ t ~ Com49.2
49.1 ' 62.1
KEY Expiry
Final
49.2
Inspeclion
• • 28
plelion [2'!.. Defecls >
Z
of of liabilily o
___ -. No specified period Defects remedial Certificate ...,
•••••• ~ As soon as reasonably possible I iabilily work ::t:
Period trl
App ~ Period stated in Appendix to Tender 6.1 :::J
~ 28 day period
60.3 C to z
Second relurn >
~
I C Contractor release drawings I
I I~
E Employer
of ...,
retention
~
tr:1
U')

... ." .. •
 _.- - -==--=--::::=--- ~ ...... ~ -- -" ":":"! ~==-

TABLE 3
- -~
From Substantial completion onwards ,0
B: After the Defects liability Period
o
62.1
Defects
14
I 10.2 Return of Performance Security 9oz
Liability
Certificate 56 60.6 60.6 14 .. 28 • 56 •
~ -+ r 10.2 60.8 60.10
Draft Final Final Return of Final Payment
Statement Statement Performance Certificate by E
Security . I

60.7
Discharge I'
N
N

'"
I Duration: expiry of DLP to payment of Final Certificate: approximately 6 months I r
I I

KEY
___ -. No specified period
•••••• ~ As soon as reasonably possible
I App ~ PeriodstatedlnAppendixtoTender
28
~ 28 day period I

if
C Contractor 'I
,.tI
E Employer
-
I

jj~~ti~~d~Hi11JtliW't.ttill,...tr'j.I.tTftlf17tr 'nallWln pm,.mmrU"IZ11 riillllO HIT' [me 'rtrr I' WC,*,j,w#tt • •_"I;tqi.,*r 1.=1' II' ' II
 4. EXTENSION OF TIME, ADDI- -
TIONAL PAYMENT AND NOTICE
Tables 4 and 5 are intended to assist in providing answers to the
following questions:

(i) Is there a discernable policy in the conditions as to which

clauses expressly require extension of time to be determined
by the Engineer? ..

(ii) Where there is no express right to extension of time, is the

Contractor entitled to an extension under clause 44.1 (Exten- ~
sion of time for completion)? .

(iii) What does clause 44.1 item (b) "any cause of delay referred to
in these Conditions" refer to?

(iv) How does clause 53.1 (Notice of claims) relate to notice

provisions contained in the clauses themselves?

(v) How does the Contractor recover his prolongation costs and
other loss and expense resulting from delays to the progress of
the works which were not his responsibility?

Each of the above questions is now taken in turn:

(i) Is there a discemable policy in the conditions as to which

clauses expressly require extension of time to be determined
by the Engineer?

If there is a policy, it is very difficult to ascertain. There are

occasions of consistency: for example, there is no express right to an

I
I~
extension of time at either clause 20.3 (Loss or damage due to
Employer's risks) or under clause 65.3 (Damage to Works by special
risks). However, it is very difficult to see why an extension of time
should be available under clause 36.5 (Tests not provided for), where
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