A Contractor's Guide to the FIDIC Conditions of Contract

Michael D. Robinson

• Publisher: Wiley
• Year: 2011
• ISBN:
  9781119993407
• Edition: 1
• Topic: Jura
• Subtopic: Baurecht

This guide will help the contractor's staff overcome some of the difficulties encountered on a typical international contract using FIDIC forms.

The majority of FIDIC-based contracts use the Red Book (Conditions of Contract for Construction), so this book concentrates on the use of those particular forms. Supplementary comments are included in Appendix C for the Yellow Book (Plant & Design-Build) recommended for use where the contractor has a design responsibility.
The Contractor is represented on site by the Contractor's Representative who carries the overall responsibility for all the Contractor's on-site activities. In order to provide guidance to the Contractor's Representative and his staff, this book is divided into five sections:

• A summarized general review of the Red Book from the Contractor's perspective.
• A review of the activities and duties of the Contractor's Representative in the same clause sequencing as they appear in the Red Book.
• A summary of these activities and duties but arranged in order of their likely time sequence on site. This has the added intention of providing the Contractor's Representative with a means of ensuring that documents are not only properly provided to the Employer and Engineer, but most importantly that they are provided within the time limits specified in the Contract.
• A selection of model letters is provided which make reference to the various clauses of the contract requiring the Contractor to make submissions to the Employer or Engineer.
• Various appendices.

The guide is not intended to be a review of the legal aspects of FIDIC- based contracts; legal advice should be obtained as and when necessary, particularly if the Contractor has little or no knowledge of the local law.

Armed on site with a copy of The Contractor and the FIDIC Contract, the Contractor's Representative will be more able to avoid contractual problems rather than spend considerable time and energy resolving those problems once they have arisen.

Chapter 1

Review of the FIDIC Conditions of Contract for Construction (CONS) – ‘The Red Book’

Clause 1 General Provisions

1.1 Definitions

This sub-clause provides definitions of approximately 65 words and expressions that are used in the Conditions of Contract. With the exception of the words ‘day’ and ‘year’, these defined words and expressions are identifiable by the use of capital initial letters.

Consequently, in any submission or correspondence it is important to use the capitalised form of the words and expressions if that is what is precisely intended by the writer.

The FIDIC Contract Guide (p. 339–346) provides a glossary (dictionary) of words and phrases that are in common use in the fields of building consultancy, engineering and associated activities. This glossary is not intended to amplify or replace the definitions given in this Sub-Clause 1.1, but the use of the provided definitions is useful to ensure clarity on a given topic.

Nonetheless, there are a number of words and expressions used in these FIDIC Conditions of Contract that are neither defined in this sub-clause nor yet explained in the glossary. These words and expressions include ‘claim’, ‘event’, ‘circumstance’. It is logical that these words and expressions have the meanings attached to them from any recognised standard dictionary of the English language (e.g. Oxford, Webster’s).

The Parties should take every care to avoid incorporating additional words and expressions of significance into the contract documents without providing a corresponding definition. To illustrate this point, the author has experience of a Red Book contract which required the Contractor to produce ‘working drawings’. No definition of ‘working drawings’ was provided in the contract documents. The Contractor took a broad view that ‘working drawings’ related to drawings required for his own construction purposes. The Employer sought to extend the responsibility of the Contractor to include correction of elements of a faulty Employer-provided design. A lengthy dispute ensued. The Contractor amended the design under protest. The end result was that the completion was delayed and additional payment eventually became due to the Contractor.

1.2 Interpretation

This sub-clause contains legal statements confirming (except where the context requires otherwise)

(a) words indicating one gender – includes all genders

(b) words indicating the singular also include the plural and vice-versa

(c) ‘Agreements’ have to be recorded in writing. As a consequence the Parties are required to ensure that any verbal agreements are formalised in writing. Too often important instructions and decisions are not formally recorded by the Parties.

(d) where something is stated to be ‘written’ or ‘in writing’ this shall result in a permanent record. This requirement may have consequences in respect of the authorised means of communication identified in Sub-Clause 1.3.

1.3 Communications

This sub-clause identifies the authorised methods of communications between the Parties. Importantly Sub-Clause 1.3(a) provides for the ‘use of any agreed systems of electronic transmission between the Parties as stated in the Appendix to Tender’. If this is not so stated in the Appendix to Tender and the Parties are agreeable to the use of e-mails, then a supplementary agreement between the Employer and Contractor will be required. The difficulty with the use of e-mails is that the sender may not be able to evidence directly if the required recipient did in fact receive the e-mail – this in contrast to telefax messages wherein the recipient’s telefax machine does respond. Many e-mail operating systems do provide for electronic receipt of incoming e-mails but this relies on the cooperation of the recipient. In all cases where electronic transmissions are acceptable, it is advisable for confirmatory hard copies of all e-mails to be sent to the recipient at prescribed intervals. In all cases the use of a formal mail transmission book is highly recommended.

Both Parties should ensure that only authorised staff members formally communicate, particularly by e-mail, and that the other Party is informed in writing of the limitations of any delegated authority.

1.4 Law and Language

Both the applicable law and the language of communication are to be defined in the contract documents.

Invariably the applicable law is that of the country where the contract is to be executed. This more so, if the Employer is also resident in that country. Even if the applicable law is not that of the country of execution, it may happen that the local courts will claim jurisdiction regardless of the wording of the contract. Legal advice should be sought should such a situation arise.

Frequently the Employer may require that correspondence addressed to him be written in his own language. Given the vagaries of site translations, it is recommended that correspondence to the Employer and other public bodies be provided simultaneously in both the language of the contract and the local language.

1.5 Priority of Documents

The basic priority listing of the documents forming the contract is given in this sub-clause. Frequently additional documents will be added to the given listing by the Employer prior to tender date.

Preferred tenderers are often invited by the Employer to a post-tender meeting to finalise outstanding issues arising from the Contractor’s tender. As a consequence a document entitled ‘Minutes of Post-Tender Meeting(s)’ or similar is drawn up and is usually accorded highest priority, even above the Conditions of Contract. Both Parties should ensure that the quality of such minute-keeping is of the highest order and that the contents are formally agreed before inclusion in the final Contract Document. Occasionally the Employer may wish to include the Contractor’s tender offer in the final Contract Document. Care should be taken to ensure that the Contractor’s tender offer, if included, is given the appropriate priority and does not inappropriately contradict the intended priorities of other documents that also form part of the Contract. Sub-Clause 1.1.19 defines ‘Appendix to Tender’. There are more than thirty references contained in the Conditions of Contract to the Appendix to Tender. The Appendix to Tender contains specific data qualifying the general data that is provided in the Conditions of Contract. The Appendix to Tender is not shown in the documents listed in this sub-clause. However, most Employers do include the Appendix to Tender as a separate document that is stated to be of higher priority than the Particular Conditions of Contract. It is important that the Contractor carefully checks the data given in the Appendix to Tender to ensure that any impact on his Tender is correctly evaluated. If in the Contractor’s opinion the data is incorrect or otherwise not conforming to the General Conditions, then clarification should be sought from the Engineer in the pre-tender period.

The author has experience of a contract where the Percentage for Adjustment of Provisional Sums, (refer to Sub-Clause 13.5 (b)), was left blank by the Employer. Despite the protestations of the Contractor it was later judged that he had accepted a nil percentage and that he was not entitled to any payment under this heading.

1.6 Contract Agreement

The FIDIC 1999 Conditions of Contract envisage that the Employer will provide the Contractor with a Letter of Acceptance as described in Sub-Clause 1.1.1.3, which the Contractor should acknowledge with the date of receipt noted. From the date of receipt of the Letter of Acceptance a binding contractual relationship exists between the Parties. Within 28 days from the date of receipt of the Letter of Acceptance by the Contractor, the Parties are required to enter into a Contract Agreement based on a standard form annexed to the Particular Conditions of Contract. Should there be no Letter of Acceptance, then a Contract Agreement is necessary.

In many jurisdictions it is required that the full Contract documentation, including the Contract Agreement and those documents described in Sub-Clause 1.5, are all brought together in one comprehensive document and signed by the Parties. Only then does the Contract come into force.

To summarise, three possibilities exist for the establishment of a formal contractual relationship:

• the issue of a Letter of Acceptance or
• the signing of a Contract Agreement with or without a Letter of Acceptance or
• the signing of a formal comprehensive ‘Contract’ document which would include the Contract Agreement.

The precise method of formalising the Contract is important because it affects other matters under the Contract. For example, the Performance Security, Sub-Clause 4.2, shall be provided by the Contractor within 28 days after receipt of the Letter of Acceptance.

1.7 Assignment

‘Neither Party is permitted to assign or transfer the whole or any part of the Contract or any benefit or interest in or under the Contract without the agreement of the other Party.’ Exceptionally either Party may, as security, assign its right to any money due under the Contract to a bank or financial institution. Not infrequently a government may transfer responsibility for the Contract from one government department to another. Provided the Contract is between the government and the Contractor, this would not be regarded as an assignment. More and more responsibilities are being transferred by governments to government-owned parastatal companies as a prelude to denationalisation. Should this situation arise in mid-contract, then the Contractor should review the risk case by case and obtain legal advice where appropriate.

1.8 Care and Supply of Documents

The Employer is required to provide to the Contractor two copies of the Contract and subsequent drawings. The Contractor has to supply six copies of the Contractor’s Documents to the Engineer. The Contractor’s Documents would importantly include submittals requiring the Engineer’s Consent. The Contractor should seek clarification from the Engineer if a full submittal of all six copies is required at the submittal-for-approval stage. It may be that only a full submittal is required once the documents are approved. It may be mutually convenient if documentation, particularly drawings, can be passed electronically between the Parties. This should be discussed between the Parties at the earliest opportunity as this, for example, would facilitate the production of ‘as built’ drawings.

1.9 Delayed Drawings and Instructions

The Contractor is required to give notice to the Engineer whenever ‘the Works are likely to be delayed or disrupted’ by a delay in the issue of drawings or other instructions by the Employer and/or Engineer as the case may be. The Contractor is further required to provide details of ‘who, when and why’ the drawings or other instructions are needed. This has a direct relationship to the preparation of programmes (Sub-Clause 8.3 refers). This appears to be an unnecessarily complex procedure, since if the supply of the drawings or instructions is not the Contractor’s responsibility, then the responsibility for delay automatically belongs to the Employer. The date by which a drawing or instruction is required can be identified from the contract programme. Particularly on projects where, for example, materials are to be obtained by the Contractor from outside the country of execution, it is not unreasonable to advise the Engineer that all necessary drawings and instructions are required two months or more before the programmed date of execution. Such an agreement also helps the Engineer to plan his own activities, particularly if his own design office is to provide the drawings and instructions. Should the Contractor experience a delay or incur additional costs, he is entitled by reference to this clause and to Sub-Clause 20.1 to give notice of claim to the Engineer.

1.10 Employer’s Use of the Contractor’s Documents

Although the Contractor retains the copyright and other intellectual property rights in the Contractor’s Documents, the Employer has a free licence to use this information for the operation and maintenance of the relevant portion of the Works. It is of interest to note that such free licence does not specifically entitle the Employer to use the Contractor’s Documents for publicity or advertising purposes.

The same requirements will apply to the Contractor’s Subcontractors and appropriate provisions will have to be included in any Subcontractor’s Documents.

1.11 Contractor’s Use of Employer’s Documents

The Contractor is entitled to use the Employer’s Documents solely for the purpose of executing the Contract and for no other purpose without the written permission of the Employer.

1.12 Confidential Details

The Contractor is entitled to keep confidential anything considered a trade secret, but is required to provide sufficient information to verify compliance with the Contract and to comply with the laws of the country of execution.

1.13 Compliance with Statutes, Regulations and Laws

The Employer is required to obtain planning permissions for the Permanent Works and any other permissions where so stated in the Contract. If in doubt, clarification should be requested by the Contractor during the tender phase.

The Contractor is required to give notices, obtain all permits (assumed to inclu...