Professional Documents
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Anlage 3-Präsentation FIDIC-Verträge
Anlage 3-Präsentation FIDIC-Verträge
Anlage 3-Präsentation FIDIC-Verträge
2018
The new FIDIC Rainbow
Auslandsausschuss Sitzung
Braunschweig
Juni 2018
FIDIC Services
1
12.06.2018
Short Version
2
12.06.2018
RED BOOK
Conditions of Contract for
Construction for Building
and Engineering Works
Designed by the Employer
‐ launched: December 2017
3
12.06.2018
Underlying philosophies of the
update of the FIDIC Rainbow Suite
• The fundamental principles which underlie all FIDIC contracts
are:
• 1) FIDIC contracts are drafted by engineers experienced in
design and construction,
• 2) FIDIC contracts embody a balanced risk allocation between
the Parties, and
• 3) The role of ‘the Engineer’ under FIDIC Contracts is critical.
• The core aim of the majority of the changes in FIDIC’s 2017
contract updates is increased clarity and certainty, to reduce
the risk of disagreements regarding the interpretation of
contract terms and, as a result, increase the probability of
successful projects.
Underlying philosophies of the
update of the FIDIC Rainbow Suite
• Consistent with the above, FIDIC has improved the contract
provisions by making them more prescriptive and introducing step‐
by‐step project management and procedural mechanisms, by
setting out exactly what is expected from the Employer, the
Contractor and the Engineer during the performance of the
Contract.
• In updating the three forms of contract, FIDIC has also attempted
to use simple language since ’ the mother‐tongue of many users is
not English. This approach is also intended to facilitate the
translation of the documents into other languages.
• FIDIC Red, Yellow and Silver Books, second edition 2017: a Review
of the updated General Conditions of Contract
– Disributed by FIDIC to IBC users´conference speakers, November
2017
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12.06.2018
Underlying philosophies of the
update of the FIDIC Rainbow Suite
• The 2nd Edition of the FIDIC Red Book continues FIDIC’s
fundamental principles of balanced risk sharing while
seeking to build on the substantial experience gained
from its use over the past 18 years. For example, the
new edition provides:
1.greater detail and clarity on the requirements for
notices and other communications;
2.provisions to address Employers’ and Contractors’
claims treated equally and separated from disputes;
3.mechanisms for dispute avoidance and
4.detailed provisions for quality management, and
verification of Contractor’s contractual compliance.
Content
• Clauses 1 to 21. . . . . . . . . . . . . . . . . . . 1
• Appendix: General Conditions of Dispute
Avoidance/Adjudication Agreement. . . 107
• Annex: DAAB Procedural Rules . . . . . 117
• Index of Sub-Clauses. . . . . . . . . . . . . 124
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12.06.2018
Content
• Guidance for the Preparation of Particular Conditions
• Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
• Introductory Guidance Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
• Particular Conditions Part A – Contract Data . . . . . . . . . . . . . . . . . . . . . . . 3
• Particular Conditions Part B – Special Provisions. . . . . . . . . . . . . . . . . . . . 8
• Notes on the Preparation of Tender Documents. . . . . . . . . . . . . . . . . . . . .10
• Notes on the Preparation of Special Provisions . . . . . . . . . . . . . . . . . . . . .13
• Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 14
• Advisory Notes to Users of FIDIC Contracts
Where the Project is to Include
Building Information Modelling Systems. . . . . . . . . . . . . . . . . . . . . . . . . . 53
• Annexes: Forms of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Content
• Forms of Letter of Tender, Letter of Acceptance,
Contract Agreement and Dispute
Adjudication/Avoidance Agreement
• Letter of Tender. . . . . . . . . . . . . . . . . . . . . . . . . . . . i
• Letter of Acceptance. . . . . . . . . . . . . . . . . . . . . . . ii
• Contract Agreement. . . . . . . . . . . . . . . . . . . . . . . iii
• Dispute Avoidance/Adjudication Agreement. . . iv
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12.06.2018
Contract Taking‐Over
Date Certificate
28
Days
Pre Design &
DNP
Contract Build
+ 28 DAAB
Site Visit
in place
13
© RA Dr. Hök
Contract Taking‐Over
Date Certificate
28
Days
to the
Time for Completion Contractor
Tender Period
Reme‐
of detects
diation
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12.06.2018
Perspective of Consultant Engineers
• Contract Administration Services [Time]:
[Procurement] Contract Date /
Commencement Date Taking‐Over DNP
Performance Certficate [Risk: Extensions]
• Contract Administration Services [Content]:
„Normal course“ or „terminated contract“ or
reduction of Contract Price
• Additional Risk: Claims and Disputes,
Engineer´s duties to give Notices …
Long Version
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12.06.2018
Differences or Changes
• No fundamental • Editorial changes
changes in policies • Fundamental Changes
• Still balanced risk • Increase of words +
allocation more definitions
• Different procurement • Procedural aspects
routes retained become much more
• But important
The Updates
• After roughly 18 years of experience with FIDIC
1999 it was time to look forward
• The new suite of Contracts will provide users with
– Editorial changes & clarifications
– Fundamental and substantial changes
– Improved approach as to risk & insurance & force
majeure
– Very structured and complex claims´ & disputes´
machinery
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12.06.2018
Highlights
• FIDIC "strongly supports best practice", but
users must be committed to comply with it
• FIDIC outlined a new claims´ procedure that
includes traditional and a significant number
of new elements
• FIDIC promises “better results", though this
promise offers little in the way of specifics.
Updating the ‘Rainbow’ 1999 ‐ sources
• Contract Users’ feedback
• More Contract User’s feedback!
• FIDIC Conditions of Contract for Design, Build and Operate Projects, 1st Edition
2008 (‘the Gold Book’)
• FIDIC Conditions of Contract for Construction Multilateral Development Banks
(MDB) Harmonised Edition [2010]
• FIDIC CC’s Special Advisors’ proposed update items
– Dr. N. Bunni, Axel Jaeger, M.M Hawkins, Chris Wade
• Latest international construction trends and good‐practices
• Feedback (not project‐specific) from the ICC (International Chamber of
Commerce)
• Court judgments (where relevant)
• Friendly reviewers’ feedback update of Yellow Book, Red Book & Silver Book
• >50 eminent professionals from around the world representing many
stakeholders: Employers, Contractors, Engineers, construction lawyers,
funding institutions, professional organisations, governmental agencies,
equipment suppliers …
10
12.06.2018
YB Update 2017
• Editorial changes
• Definitions in an alphabetical order
• Abbreviations used [e.g. IPC, NOD, DNP, FPC, etc.]
• Clauses subdivided in Sub‐Sub‐Clauses, e.g. S‐C 3.7.1 …,
4.12, 20.1 etc.
• Extension to 21 Clauses
• Now: 172 Sub‐Clauses plus Sub‐Sub‐Clauses
• Renaming of Clauses [e.g. FM = Exceptional Risks]
• Former S‐C 4.10 divided in S‐C 2.5 [Site Data] and S‐C 4.10
[Use of Site Data]
• Restructuring of Clauses [Insurance now Clause 19,
Employer´s Claims now Clause 20, Dispute Resolution now
Clause 21]
YB 2017
New Definitions New Definitions (cont´d)
• Contract Data [S‐C 1.1.11] • No‐objection [S‐C 1.1.55]
• CV System [S‐C 1.1.7] • Notice [S‐C 1.1.56]
• Dispute [S‐C 1.1.29] • NOD [S‐C 1.1.57]
• Exceptional Event (formerly • Performance Damages [S‐C
FM) [S‐C 1.1.37] 1.1.63]
• Fully detailed Claim [20.2.4] • QM System [S‐C 1.1.69]
• Key Personnel [S‐C 1.1.48] • Review [S‐C 1.1.71]
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12.06.2018
YB Update 2017
• Fundamental Changes
– Errors in the ER (YB)
• YB S‐C 5.1: ~ wording YB 1999, now combined with
• S‐C 1.9: Variation approach (formerly Cost plus profit)
– Financial Arrangements [S‐C 2.4]: (1) Arrangements
as per Contract Data (2) entitlement to evidence
only if particular conditions are met
– Engineer to act „neutrally“ [S‐C 3.7]
• More specific: The Engineer shall make a fair
determination of the matter or Claim, in accordance with
the Contract, taking due regard of all relevant
circumstances (S‐C 3.7.2]
YB Update 2017
• Fundamental Changes
– Engineer to proceed within time limits [S‐C 3.7.3]
– Effects of Engineer´s actions clearly stated [S‐C 3.7.4]
– Requirement to give NOD in respect of Engineer´s
determinations (including requirement to motivate
NOD) [S‐C 3.7.5]
– Wording proposes that „Determination“ and „NOD“
are a condition precedent for adjudication [S‐C
3.7.5]
– Management Meetings [S‐C 3.8]; formerly a mere
option in Guidance Notes
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12.06.2018
YB Update 2017
• Fundamental Changes (cont´d)
– Extended Health & Safety requirements [S‐C 4.8]
– Extended Quality Management requirements [S‐C 4.9]
• Quality Management System [S‐C 4.9.1]
• Compliance Verification System [S‐C 4.9.1]
– Protection of the Environment [S‐C 4.18]
– Programming –> much more detailed [S‐C 8.3]
– Advance warning now owed reciprocally [S‐C 8.4]
– Enhanced wording on EOT, concurrency [S‐C 8.5]
– Extended wording regarding „Delays caused by Authorities“, e.g.
private utility entities [S‐C 8.6]
– Amended wording regarding TOC [S‐C 10.1 (a) to (e)]
– Amended wording regarding post contractual liability for plant
and equipment [S‐C 11.10]
YB Update 2017
• Fundamental Changes (cont´d)
– Amended wording regarding Value Engineering [S‐C 13.2 (ii)]: Eng.
shall consider the sharing of benefits, costs and/or delay
– Amended wording regarding Variation procedure [S‐C 13.3.1]
• Notice requirement [S‐C 3.5]
• Variation by instruction & Variation by Request for Proposal
• Evaluation of Variations
– Special Advance Payment Certificate [S‐C 14.2.2]
– Additional assessment rule [sanction] in respect of IPCs [S‐C 14.6.2
(c)]
– Correction procedure regarding Payment Certificates [S‐C 14.6.3]
– FPC procedure [S‐C 14.13]
– Revised wording in respect of Employer´s claims in connection with
termination for cause [S‐C 15.4]
• Rectifying previous shortcomings
– Revised consequence of termination for convenience [S‐C 15.6 (b)]:
„entitlement to loss of profit or other losses and damages …“
13
12.06.2018
YB Update 2017
• Fundamental Changes (YB)
– Re‐re‐formatted risk allocation wording
• Gold Book approach abondoned
– Extension of Contractors´s liability for failure to achieve fitness for
purpose [S‐C 17.4]: express duty to indemnify and hold harmless
against all errors in the Contractor´s design of the Works and
other professional services which result in the Works not being fit
for purpose
– New mitigation wording [S‐C 17.6]
– New requirement to provide insurance against the Contractor´s
breach of professional duties [S‐C 19.2.3] for period as specified in
Contract Data
• PI insurance required
– Amicable Settlement before arbitration now reduced to 28 days
YB Update 2017
• Fundamental Changes
– Revised Claims´ procedures‐
• Unified Approach Employer´s & Contractor´s Claims
• Straightforward claims´ corridor similar as under FIDIC
Gold Book, 2008, but much more sophisticated
– New claim related features like, „initial notice“,
„NOD“, new time bars also for Engineer´s duties
– Revised and separate Dispute Resolution Clause
21
– New name: DAB DAAB
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12.06.2018
YB Update 2017 Procedural Aspects
• Claim
– 1.1.5 “Claim” means a request by either Party for an entitlement (which may include
any matter of entitlement, not limited to payment and/or extension of time) under
these Conditions, or in connection with or arising out of the Contract, and to which
Sub‐Clause 20.1 [Claims] applies.
• Dispute
– 1.1.29 “Dispute” means a situation where: …
• Claim as defined – or other matter to be determined by the Engineer
– Rejection … not acquiese …
• Possible Conclusion: If there is no Claim there is no Dispute,
– but need to read Clauses 20 and S‐C 3.7
• DAB Decision
– Do DAABs still have jurisdiction?
• to decide on legal or technical questions without reference to „a request … for an entitlement“?
– Thesis: Yes, if there is a „matter which requires a determination by Engineer“
• to decide on clarifications or instructions?
• to decide on bad quality without discussing Employer´s claims?
– What happens if a condition under Sub‐Clause 1.1.29 is not met?
Programme
• 1.1.67 “Programme” • S‐C 8.3
means a detailed time • Programme to be
programme prepared submitted + 28 days
and submitted by the • Programming software
Contractor to which the to be used
Engineer has given (or is
deemed to have given)
a Notice of No‐
objection under Sub‐
Clause 8.3
[Programme].
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12.06.2018
Programming Content
• (a) the Commencement Date and the Time for • (e) the sequence and timing of inspections and
Completion, of the Works and of each Section (if tests specified in, or required by, the Contract;
any); • (f) for a revised programme: the sequence and
• (b) the date right of access to and possession of timing of the remedial work (if any) to which the
(each part of) the Site is to be given to the Engineer has given a Notice of No‐objection
Contractor in accordance with the time (or times) under Sub‐Clause 7.5 [Defects and Rejection]
stated in the Contract Data. If not so stated, the and/or the remedial work (if any) instructed
dates the Contractor requires the Employer to under Sub‐Clause 7.6 [Remedial Work];
give right of access to and possession of (each • (g) all activities (to the level of detail specified in
part of) the Site; the Employer’s Requirements), logically linked
• (c) the order in which the Contractor intends to and showing the earliest and latest start and
carry out the Works, including the anticipated finish dates for each activity, the float (if any), and
timing of each stage of design, preparation and the critical path(s);
submission of Contractor’s Documents, • (h) the dates of all locally recognised days of rest
procurement, manufacture, inspection, delivery and holiday periods (if any);
to Site, construction, erection, installation, work • (i) all key delivery dates of Plant and Materials;
to be undertaken by any nominated
Subcontractor (as defined in Clause 4.5 • (j) for a revised programme and for each activity:
[Nominated Subcontractors]), testing, the actual progress to date, any delay to such
commissioning and trial operation; progress and the effects of such delay on other
activities (if any); and
• (d) the Review periods under Sub‐Clause 5.2.2
[Review by Engineer], and periods for Review for • (k) a supporting report which includes:
any other submissions specified in the Employer’s – …
Requirements or required under these
Conditions;
Programming Content
Commencement Sequence of work
Access to the Site
Date activities
Commencement
Review Periods Tests & Inspections
Date
Key Delivery days of
Remedial work Local Rests & holidays
supplies
Resources
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12.06.2018
1.1.88 “Variation” means any change to the Works, which is
instructed as a variation under Clause 13.
• S‐C 3.5 • 13.3.1 The Engineer may instruct a Variation
• If an instruction states that it constitutes a by giving a Notice (describing the required
Variation, Sub‐Clause 13.3.1 [Variation by change and stating any requirements for the
Instruction] shall apply. recording of Costs) to the Contractor in
• If not so stated, and the Contractor considers accordance with Sub‐Clause 3.5 [Engineer’s
that the instruction: Instructions].
– (a) constitutes a Variation (or involves work • 13.3.2 The Engineer may request a proposal,
that is already part of an existing Variation); before instructing a Variation, by giving a
or Notice (describing the proposed change) to
– (b) does not comply with applicable Laws or the Contractor
will reduce the safety of the Works or is
technically impossible
• the Contractor shall immediately, and before
commencing any work related to the
instruction, give a Notice to the Engineer
with reasons. If the Engineer does not
respond within 7 days after receiving this
Notice, by giving a Notice confirming,
reversing or varying the instruction, the
Engineer shall be deemed to have revoked
the instruction. Otherwise the Contractor
shall comply with and be bound by the terms
of the Engineer’s response.
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12.06.2018
Claims ‐ New Clause 20
• Employer´s & Contractor´s claims are dealt with likewise [S‐C 20.1]
• Claim Notice with time bar + sanction [S‐C 20.2.1] [28 days]
• Engineer´s Initial Response, with reasons [S‐C 20.2.2] [14 days]
• Record keeping imposed on both Parties + sanction [S‐C 20.2.3]
• Fully detailed claim with time bar + sanction [S‐C 20.2.4] [84
days],
– including details regarding dissatisfaction with Engineer´s Initial
Response
• Engineer to give a Notice in respect of delayed submission of
particulars [S‐C 20.2.4]
• Agreement if not Determination
– Reference to S‐C 3.7 [S‐C 20.2.5] – Determination by fully neutral
Engineer
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12.06.2018
• Delays will be treated
– at determination level Excused Excused
delay delay
Claim Notice
Too late
Particulars (b) too late claim notice except
no claim deemed to have lapsed
(b) a statement of the contractual
and/or other legal basis of the Claim;
Engineer has given such Notice and the other Parties
(c) all contemporary records on which disagrees with the as deemed as „valid notice“
the claiming Party relies; and determination on failure
(d) detailed supporting particulars of the amount of additional payment claimed (or
amount of reduction of the Contract Price in the case of the Employer as the claiming
Party), and/or EOT claimed (in the case of the Contractor) or extension of the DNP
claimed (in the case of the Employer).
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12.06.2018
1st delay 2nd delay
S‐C 20.2.1 S‐C 20.2.3 S‐C 20.2.4 S‐C 20.2.5 S‐C 3.7.3 S‐C 3.7.3
+28 +14 (42) +42 +42
No
Deemed No DAB
Determina‐ No NOD Decision
rejected Referral
tion
Determi‐ NOD
Deemed
nation = deemed to S‐C 21.4.1
rejected
final have lapsed
20
12.06.2018
Determination of Matters
• 1.9 (YB) [errors in ER]
• 4.7.3 [errors in items of reference]
• 10.2 [reduction DD]
• 11.2 [determination of Cause]
• 13.3.1/2 [adjustment of Contract
Price]
• 13.5 [resources]
• 13.7 [Changes in Law]
• 14.4 [revised instalments]
• 14.6 [IPCs]
• 14.5 [amounts for shipped materials]
• 15.3 [Valuation of Perma‐nent
Works]
• 15.6 [Valuation of „work done“]
• 18.5 [Valuation of „work done“]
• 20 [Claims]
Claims, Other Matters, Determination
Undefined
{Route 1} claim
{Route 2} {Route 3?}
entitlement under any Clause of these Conditions or
or otherwise, in connection with, or arising out
of, the Contract or the execution of the
relief Works
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12.06.2018
Dispute Resolution ‐ New Clause 21
– Change to the policy pay now argue later [S‐C
21.4.3 (b)]
– Amendments regarding NODs (reasons for
dissatisfaction must be given)
– New avoidance of disputes clause [S‐21.3]
– Modifications regarding the enforcement of DAB
decisions [S‐C 21.7]
– No payment certificate required any more, [S‐C
21.4.3]
Reasonable
grounds
Request
Referral for Security Decision NOD
Requirement to with
provide appropriate
security reasons
Issue:
What happens, if no
reasons will be given?
Will the decision become
final & binding
22
12.06.2018
Request
Referral for Decision NOD
Security
require anyway
security
S‐C 21.4.3
(b) the DAB may, at Submit
the request of a
Party and as part of
invoice
the decision, require
the payee to provide
an appropriate
security in respect of
such payment
Payment
GH1
GH2 Dispute Avoidance 1st option
1st delay 2nd delay
S‐C 20.2.1 S‐C 20.2.3 S‐C 20.2.4 S‐C 20.2.5 S‐C 3.7.3 S‐C 3.7.3
+28 +56 (84) +42 +42
23
Folie 46
GH1 S-C 21.3 provides: Such joint request may be made at any time, except during the period that the
Engineer is carrying out his/her duties under Sub-Clause 3.7 [Agreement or Determination] on the
matter at issue or in disagreement unless the Parties agree otherwise.
Götz-Sebastian Hök; 03.01.2018
GH2 What does this mean? Do the dutie sof the Enginer start on when he has received a fully detailed
claim or already when he starts monitoring record keeping?
Götz-Sebastian Hök; 03.01.2018
12.06.2018
the date right of
Commencement Order of work Activity Activity
access to and
Date activities 1 2 …
possession of the SIte
In respect of each activity the actual progress
to date, any delay to such progress and the
effects of such delay on other activities (if any)
showing the earliest and latest start and finish dates for each activity, the float (if any), and
the critical path(s
Extension of Time
• Extension of Time for Completion – Sub‐Clause 8.5:
• Sub‐paragraph (c) “exceptionally adverse climatic conditions”
– i.e. “climatic conditions at the Site which are Unforeseeable having regard to climatic
data made available by the Employer under Sub‐Clause 2.5 [Site Data and Items of
Reference] and/or climatic data published in the Country for the geographical
location of the Site”.
• Last paragraph ‐ concurrent delay:
– “If a delay caused by a matter which is the Employer’s responsibility is concurrent with
a delay caused by a matter which is the Contractor’s responsibility, the Contractor’s
entitlement to EOT shall be assessed in accordance with the rules and procedures
stated in the Particular Conditions (if not stated, as appropriate taking due regard of
all relevant circumstances).”
• Delays Caused by Authorities (& Private Utilities …) – Sub‐Clause 8.6:
– ‐ addition of delay caused by “private utility entities”
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12.06.2018
– Notice of No‐objection (actual or deemed) to as‐built records & O&M manuals
– Completion of training, if any.
• If Engineer does not issue Taking‐Over Certificate (ToC) or give Notice of rejection < 28
days but conditions have been fulfilled:
– the Works / Section deemed to have been completed on 14th day after Contractor’s application for
ToC,
– and ToC deemed to have been issued.
• Clarification
– “If any Part of the Works is taken over under Sub‐Clause 10.2 [Taking Over Parts], the remaining
Works or Section shall not be taken over until the conditions described in sub‐paragraphs (a) to (e)
above have been fulfilled.”
Taking‐Over of Parts
• Taking Over Parts – Sub‐Clause 10.2:
– Contractor to give Notice to Engineer if Employer
uses any part of the Works
• identifying the part & describing the use
– Engineer shall “immediately” issue a ToC for that
part
– Reduction of Delay Damages: after deemed taking
over (not after TOC – as YB1999)
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12.06.2018
Interference
• Interference with Tests on Completion – Sub‐
Clause 10.3:
• Contractor prevented > 14 days: “either a continuous
period, or multiple periods which total more than 14
days)”
– Contractor to give Notice to Engineer – describing
the prevention
– Engineer shall “immediately” issue a ToC for the
Works / Section
Changes in Cost
• Adjustments for Changes in Cost – Sub‐Clause
13.7:
– Formula in YB1999 replaced: “schedule(s) of cost
indexation”
– No schedule in the Particular Conditions “this Sub‐
Clause shall not apply”.
26
12.06.2018
Contract Price / Payment
• “Cost Plus Profit” – “Cost plus the applicable percentage for profit stated in the
Contract Data (if not stated, five percent (5%))
– … only be added to the Contract Price, where the Contractor is entitled under a Sub‐Clause of these
Conditions”.
• Provisional Sums – Sub‐Clause 13.4:
• ‐ the Engineer’s instruction “may include a requirement for the Contractor to submit
one or more quotations from his suppliers and/or subcontractors”
• Engineer´s: instruct Contractor to accept particular quotation(s) or revoke instruction
• No Engineer’s response < 7 days: “at the Contractor’s discretion”
• Adjustments for Changes in Laws – Sub‐Clause 13.6:
• Added: • change in “any permit obtained by the Employer” under s‐c 1.13
• change in “the requirements for any permit, permission, licence and/or
approval to be obtained by the Contractor” under s‐c 1.13
• Decrease in Cost: “the Employer shall be entitled subject to Sub‐Clause 20.2 [Claims
For Payment and/or EOT] to a reduction in the Contract Price”
• Change in execution of the Works: Notice to/from the Contractor from/to the
Engineer and Engineer to instruct a Variation or request proposal for Variation
Payments
• Advance Payment – Sub‐Clause 14.2:
– 14.2.1: Advance Payment Guarantee
– 14.2.2: Advance Payment Certificate
– 14.2.3: Repayment of Advance Payment
• Application for Interim Payment – Sub‐Clause 14.3:
– new items to be included in the Statement:
– amounts for Provisional Sums,
– amounts for release of retention money
– deductions for utilities provided by Employer.
• Schedule of Payments – Sub‐Clause 14.4:
– if revised instalments, Engineer to proceed under s‐c 3.7 [Agreement or
Determination]
27
12.06.2018
Payments
• Plant and Materials intended for the Works – Sub‐Clause 14.5:
• Amount: Engineer to proceed under s‐c 3.7 [Agreement or Determination]
• Sum to be certified for payment = 80% of the amount agreed/determined.
• Issue of IPC – Sub‐Clause 14.6:
• S‐C 14.6.1: The IPC amount: “the Engineer fairly considers to be due”
– including additions/deductions due: under s‐c 3.7 or under the Contract or
otherwise
• S‐C 14.6.2: Withholding (amounts in) an IPC
• Engineer to give Notice “with supporting particulars of the value withheld”
• If Engineer finds “any significant error or discrepancy” in Statement:
– “the amount of the IPC may take account of the extent to which this error or
discrepancy has prevented or prejudiced proper investigation of the amounts in
the Statement until such error or discrepancy is corrected in a subsequent
Statement”
– but: “… the Engineer shall detail his calculation of the amount and state the
reasons for it being withheld”
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12.06.2018
Final Payment
• Final Statement – Sub‐Clause 14.11:
– 14.11.1: Draft Final Statement: including estimates for claims, matters referred
to DAB, matters for which NOD given to DAB’s decision
– 14.11.2: Agreed Final Statement
• if no estimated amounts under 14.11.1 ‘Final Statement’
• if estimated amounts under 14.11.1 Engineer/Contractor discussions
• ‘Partially Agreed Final Statement’ with disagreed amounts shown
separately.
• Discharge – Sub‐Clause 14.11:
– no discharge submitted deemed to have been issued when conditions (a)&(b)
met
• discharge “shall not affect either Party’s liability or entitlement in respect of any Dispute
for which arbitration is in progress under Sub‐Clause 21.6 [Arbitration]”.
• Issue of FPC – Sub‐Clause 14.13:
– amount “the Engineer fairly considers to be due”
• including additions/deductions due under S‐C 3.7 or the Contract or otherwise
• giving credit to the Contractor for: amounts paid by the Contractor and
• received by the Employer under the Performance Security
– Then: Engineer to issue an IPC for Partially Agreed Final Statement
29
12.06.2018
Claims ‐ News
Rainbow Edition 1999 YB Update
• No definition of claim • Definition of „Claim“ [S‐C 1.1.5]
• No definition of Notice • Definition of „Notice“ [S‐C
• No definition of Dispute 1.1.56]
• Definition of „Dispute“ [S‐C
Rationale GB 1.1.29]
• Establish an operational pipeline • Defintion of „NOD“ [S‐C 1.1.57]
from an event [intake] to a decision
of a dispute [outlet] • Definition of „Fully Detailed
• In order to avoid shortcomings and Claim“ [S‐C 20.2.4]
gaps in the treatment of „matters“
the intake must be broad enough..
Claims´ Procedure
• Both Parties shall • Engineer shall
proceed in accordance – If Notice was given too late
with Sub‐Clause 20.2 give initial response [S‐C
– Become aware of the 20.2.2]
event or circumstance If
not
– Give Notice [not later than – give exceptionally his/her
28 days after having response on the contractual
become aware or should or other basis under [S‐C
have become aware of the 20.2.5, 20.2.6]
event or circumstance] If
– Keep contemporary not – If details are too late give
records preliminary response [S‐C
– Submit full details 20.2.4]
Otherwise
– proceed in acc. with S‐C 3.7
• Consult with both Parties &
make a determination
30
12.06.2018
Within Within
within within further further
start 28 days 84 days 42 days 42 days
Event
the Party the Party shall the Party shall the Engineer the Engineer
the became or give notice and send a „fully shall consult make a
event should have particulars detailed with both deter-
occurs become describing the claim“ which Parties in mination in
aware of the event giving includes full the accordance
event rise to the supporting endeavour with Sub-
as soon as practicable
claim latest particulars of to reach Clause 3.7
and agreement
considers within 28 days the basis of cut-off
the claim cut-off
himself to period
cut-off period period
be entitled deemed to
cut-off period deemed to be rejected
be rejected
84
28 days +56 days +42 days +42 days +28 days
E N P D NOD
Particulars Response Determi
Event Notice NOD
[Fully Detailed] on basis of claim nation
+14 +14(optional)
IN IN
1 2
Consultation
Excuse Excuse
Approval – Disapproval‐
Consultation‐ must be IN‐initial Response,
20.2.2 / 20.2.4
carefully surveyed
31
12.06.2018
•
Duty to Substantiate
It is settled case law that representations of a party are appropriately substantiated if they
include facts which in connection with a legal theory are suitable to support the view that
the claimant is entitled to the remedy sought for.
• German Constitutional Court WM 2012, at page 492 § 16
• In cases where the abstract representation (the assertion) of the discrete elements of the
cause of action does not suffice in itself, the one who owes the duty to substantiate must
substantiate its assertions. The extent of the duty to substantiate varies upon the
representations of the respondent, meaning that if a party submits very detailed facts the
submission of the other party must be as detailed.
• Whether and to which extent the party who does not bear the burden of proof must
substantiate the facts can only be determined based on the interplay of assertion and
objection, the amendment and substantiation being, in case of appropriate objection by the
opponent, at charge of the party bearing the burden of proof.
• German Federal Supreme Court, 25.03.2014, ref: VI ZR 271/13, MDR 2014, 674‐675
• It is not necessary that the Claimant represents all facts, like the place and date when things
happened, if the Respondent does not object the general assertion.
• German Federal Supreme Court, NJW 2002, 1488
• If it is the Claimant´s case that a specific Contract was executed the Respondent is not
required to explain in detail why no contract was executed. Rather he may object the fact
that a contract was executed resulting in the Claimant now being responsible to represent
the discrete facts which in his view support the view that a contract was made. Regarding
these facts the Respondent shall rebut as detailed.
• German Federal Supreme, Court 25.03.2014, ref: VI ZR 271/13, MDR 2014, 674‐675
32
12.06.2018
Determination Procedure
• Engineer to act „neutrally“ [S‐C 3.7]
• Response & Consultation
– Optional: Engineer to give his “response on the contractual or other basis of
the Claim” [S‐C 20.2.5] – no longer the rule; rather the exception
– Mandatory: Engineer to proceed with consultation in the endavour to reach
agreement [S‐C 3.7.1]
– Subsequently: Engineer to proceed making a determination [S‐C 3.7.2]
• FIDIC 1999 no fixed delay for consultation + making determinations
• Updates introduce two delays [S‐C 3.7.3]:
– Notification of Settlement Agreement
• 42 days after having received … or a „fully detailed“ Claim …
– Determination
• 42 days after “the date corresponding to his obligation to proceed under the last
paragraph of Sub‐Clause 3.7.1
– Sanction: Failure to comply with timelines deemed to have given a
determination rejecting the Claim
IPA ‐ IPC
Application for an interim payment
IPC
14.6: Contractor considers that an IPC
Full satisfaction Dissatisfaction =
does not include any amounts to which
the Contractor is entitled
Contractor considers that IPC fails to
include amounts
Application to correct
Engineer Engineers fails
corrects to correct
33
12.06.2018
IPA/IPC Determination procedure
Engineer receives Engineer to proceed
the Notice under Sub‐Clause 3.7
Failure to reach
Reach agreement
such agreement
Engineer proceeds making
a determination
Condition precedent to DAAB procedure
Statement at Completion / Certificate
• Procedure
– Date of Completion
– Application for Interim Payment
– Engineer to proceed under Sub‐Clause 14.6 [IPC]
to issue the IPC
• Questions:
• What happens if not?
• What happens if the Contractor is dissatisfied?
34
12.06.2018
Sub‐Clause 14.11
• Application for Final Payment [14.11]
• Engineer to proceed to issue the FPC or IPC
[14.13]
Final Statement / FPC
Performance Contractor to submit draft
Certificate final statement [14.11.1]
(the “Partially Agreed
FPC [14.13]
Submission of
Statement
= Final Statement” in these
Conditions)
on the agreed IPC [14.13 +
amounts, 14.6]
the estimated
amounts and
the disagreed
amount(s)
35
12.06.2018
Contractor´s Claims
17.2 1.9
• 1.1.20 Cost • 8.12
1.13
Plus Profit • 10.2
• 1.9
16.3 2.1
• 10.3
16.2 4.6
• 1.13 • 11.7
• 2.1 • 11.8
• 4.6
16.1 4.7
•
1.1.20
Cost Plus
Profit 16.1
11.8 7.4
• 4.7 • 16.2
• 7.4 • 16.3
11.7 7.6
• 7.6 • 17.2
10.3 8.10
• 8.10
10.2 8.12
Contractor´s Claims
• 1.1.19 Cost
4.7 • 4.7
18.4 4.12.4 • 4.12.4
• 4.15 [Access Routes]
1.1.20 • 4.23 [Archaelogical &
Cost Geological Findings]
13.6 4.15
• 13.3.2 Proposal Cost
• 13.6 Changes in Law
13.3.2 4.23
• 18.4 Exceptional Event
36
12.06.2018
Contractor´s Claims
18.4
1.9
• •
1.13
17.2 2.1
1.1.38 EOT 8.5
16.2.2 4.6
• 1.9 • 8.6
• 1.13 • 8.10
16.1 4.7
• 2.1 • 8.12
• 4.6 • 10.3
• •
13.6 4.12.4
1.1.38
EOT 4.7 13.3
13.3 4.15
• 4.12.4 • 13.6
• 4.15 • 16.1
10.3 4.23
• 4.23 • 16.2.2
8.12 7.4 • 7.4 • 17.2
8.10
8.6 8.5
7.6
• 7.6 • 18.4
Employer´s Claims
• 1.13 Entitlement to • 11.4 Entitlement to
„costs“ „costs“ & reduction
• 7.4 Entitlement to of Contract Price
„costs“ for delayed • 11.8 Entitlement to
tests „costs“
• 7.6 Entitlement to • 11.9 Entitlement to
„costs“ „costs“
• 8.7 Entitlement to • 13.6 Entitlement to
„costs“ reduction of
• 8.8 Delay Damages Contract Price
• 9.2 Entitlement to • 15.4 Entitlement to
„costs“ (a) additional costs
• 9.4 Reduction of for execution of the
Contract Price, Works, (b) any
subject to TO losses and damages
though Works have (c) Delay Damages
failed to pass Tests
on Completion
37
12.06.2018
DAAB
• Disputes
• as in YB 1999: Dispute ad hoc DAB Arbitration
• … but (in the future)
standing DAAB Dispute DAAB Arbitration
• separate Clause 21
• New definitions
– “Dispute” ‐ where:
• (a) one Party makes a claim against the other Party (which may be a Claim, as defined in these Conditions,
or a matter to be determined by the Engineer under these Conditions, or otherwise), or a matter to be
determined by the Engineer under these Conditions, or otherwise)
• (b) the other Party (or the Engineer under S‐C 3.7.2) rejects the claim in whole or part
• and
• (c) the first Party “does not acquiesce” (by giving a NOD under S‐C 3.7.5 or otherwise)
– “provided however that a failure by the other Party to oppose or respond to the claim, in whole or in part, may
constitute a rejection if, in the circumstances, the DAB or the arbitrator(s), as the case may be, deem it reasonable for
it to do so”.
– “DAAB” or “Dispute Avoidance/Adjudication Board” ‐ sole member or three members
(selected/agreed) or appointed under either S‐C 21.1 or 21.2
– “DAAB Agreement” ‐ agreement entered into by both Parties and (each) DAB member
“incorporating by reference the “Dispute Avoidance/Adjudication Board (DAB) Rules” published by
FIDIC”
DAAB
• Dispute: ‐ Sub‐Clause 1.1.29 – in a nutshell “determination by Engineer” to the
dissatisfaction of either Party is a condition precedent
• Constitution of the DAAB – Sub‐Clause 21.1 ~ wording of S‐C 20.2 of YB 1999
– Partially significantly amended with some new provisions
• Selection of members from a list,
• Failure to Appoint DAAB Member(s) – Sub‐Clause 21.2 ~ wording S‐C 20.3 of YB
1999
– New conditions for appointment of DAAB member by appointing entity/FIDIC with
consequential DAAB Agreement
• New express wording on Avoidance of Disputes – S‐C 21.3
– New language: DAAB facilitates “assistance and/or informally discuss and attempt to
resolve any issue or disagreement that may have arisen”; DAAB may be proactive –
invitation to make a request
• Obtaining DAAB’s Decision – Sub‐Clause 21.4 ‐
– 21.4.1 Reference of a Dispute to the DAB
– 21.4.2 The Parties’ obligations after the reference
– 21.4.3 The DAB’s decision
– 21.4.4 Dissatisfaction with DAB’s decision
38
12.06.2018
DAAB
• The DAAB shall be deemed to be constituted on the date that the
Parties and the sole member or the three members (as the case
may be) of the DAAB have all signed a DAAB Agreement.
• “DAAB Agreement” means the agreement signed or deemed to
have been signed by both Parties and the sole member or each of
the three members (as the case may be) of the DAAB in accordance
with Sub‐Clause 21.1 [Constitution of the DAAB] or Sub‐Clause 21.2
[Failure to Appoint DAAB Member(s)], incorporating by reference
the General Conditions of Dispute Avoidance/Adjudication
Agreement contained in the Appendix to these General Conditions
with such amendments as are agreed.
• Complementary Rules in Sub‐Clause 9.3 General Conditions of DAA
Agreement. “DAA Agreement deemed to have been signed
special procedure on non agreed fees – temporarily fees as
proposed by member review by Appointing Body.
Arbitration
• Amicable Settlement – Sub‐Clause 21.5 ~ S‐C 20.5
of YB1999
– cooling down period (unchanged)
• Arbitration – Sub‐Clause 21.6 ~ S‐C 20.6 of
YB1999 with additional provision
– Unchanged Reference to ICC Rules of Arbitration
• Failure to Comply with DAB’s Decision – Sub‐
Clause 21.7 ~ S‐C 20.7 of YB1999
– amended with some new provisions
• No DAB in place – Sub‐Clause 21.8 ~ S‐C 20.8 of
YB1999
39
12.06.2018
White Book
Vertical
level 1
Client
Horizontal level
Vertical level 2
Model Joint Venture
Client/Consultant (Consortium)
Model Services Agreement 2nd Edition
Agreement (White (2017)
Book) 5th Ed, 2017
Sub‐Consultancy
Agreement 2nd Edition
(2017)
40
12.06.2018
Agreement Date
Give notice Price Adjustment
White Book Timeline, 5th Edition
Client/Consultant Agreement
White Book 5th Edition – 2017
Content
Form of Agreement
General Conditions of
Client/Consultant MODEL
Client/Consultant Model SERVICES AGREEMENT
Services Agreement
(White Book) 5th Ed, 2017
82
41
12.06.2018
Client/Consultant Agreement
White Book 5th Edition – 2017
• suitable for general use for most services provided
by consulting engineers [but also architects,
project managers, quantity surveyors], including
– pre‐investment and feasibility studies,
– detailed design,
– construction management and contract administration,
– supervision,
– project management, and
– quantity surveying
83
Documents
forming part of the Agreement [in practice]
84
42
12.06.2018
Client/Consultant Agreement
White Book 5th Edition - 2017
FIDIC White Book Services
DAB
Engineer
Contractor Employer
• Contractual relations
86
43
12.06.2018
Good to read: NH International (Caribbean) Ltd v National Insurance Property
Development Company Ltd (Trinidad and Tobago), [2015] UKPC 37
as soon as If 14 days
practi- necessary
Start cable
Event
Negotiation of Execution
Services
Appointment of Post
Negotiation Representatives & Performance
Lead Consultant of Services
44
12.06.2018
Power to represent
Power of
Attorney Member
JV Member Repre‐
sentative
Power of
JV Member Member
Attorney Project
Repre‐
Lead sentative
Director
Power of
Power of Attorney
Attorney Member
JV Member Repre‐
sentative
ProjectMana
‐ger
Steering
JV
Committee
Pre‐bid Bidding Acceptance Execution
JV‐Organigram
JV Lead
Represen
Member Clause
‐tative
1 7.2 Chair
Represen
JV ‐tative
Member Represen Steering
2 ‐tative Committee Clause
7.5
JV Project
Member Represen Director
3 ‐tative
45
12.06.2018
Claims – WB‐JW‐links
• WB Requirements • JV answers
• Claims under WB, i.e. 4.4.1 • The Leading Member shall take
substantial claim, 4.4.3 the lead in the management of
procedural rules the Joint Venture's affairs
– i.e. prompt notice • Project Director is
representative of the Joint
Venture for the purpose of
correspondence and discussions
… (S‐C 7.5)
• However, S‐C 7.6 requires a
decision by Steering Committee
Event
Notice
WB Steering
Committee
decision Success
Vielen Dank für Ihre Aufmerksamkeit
46