The FIDIC Forms of Contract
In 1999 FIDIC introduced a new 'Red Book' for international civil
engineering and large building projects, together with new Yellow,
Silver and Green forms of contract for other types of project. However,
the previous edition of the Red Book (the fourth edition) continues to
be widely used and it seems likely that the 1999 edition will not
replace it in the medium term, at least in certain parts of the world.
This important work therefore continues to be based on the fourth
edition of the Red Book and considers the many developments affecting
the fourth edition that have taken place since 1997, when the second
edition of this book was published, and relates them to key contracting
issues. It also includes an important new section considering the 1999
Red, Yellow, Silver and Green forms and how they interact with the
previous form.
Table of Contents: Part I Background and Concepts of the Red Book; Chapter 1 Background of the Red Book1.1 The ACE Form1.2 The First Edition of the Red Book1.3 The Second and Third Editions of the Red Book1.4 The Fourth Edition of the Red Book1.5 The 1996 Supplement to the Red Book1.6 Concepts of the Red Book1.7 The New Suite of FIDIC ContractsChapter 2 The Red Book is based on a domestic contract2.1 Introduction2.2 Diversity of legal systems2.3 The applicable law in international construction2.4 The applicable law of the contract2.5 Law governing procedure2.6 Law governing enforcement of awards2.7 Grouping of the contemporary legal systems2.8 The Romano-Germanic group2.8.1 Sources of law in the Romano-Germanic group2.8.2 Legal authoritative writing2.8.3 Areas of the law affecting construction in the Romano-Germanic group2.9 The common law group2.9.1 Sources of law in the common law group2.9.2 Areas of the law affecting construction in the common law group2.10 The law in Islamic countries2.10.1 Sources of Islamic lawChapter 3 Legal concepts based on the common law system3.1 The law applicable to the contract3.2 Conflict3.3 Some specific concepts under the common law3.3.1 Substantive law and procedural law3.3.2 Legislation, common law and equity 3.4 Tort3.5 Contract - general principles3.5.1 Prerequisites of a contract3.5.2 Limitation periods3.6 Privity of contract3.7 Performance of a contract3.8 The contents of a contract3.9 Remedies for breach of contract3.10 Exclusion clauses3.11 The responsibility to completeChapter 4 Drafting principlesChapter 5 The concept of a trusted independent engineer5.1 Introduction5.1.1 FIDIC's Statutes and By-Laws and the independent engineer5.1.2 FIDIC's Code of Ethics5.1.3 FIDIC's Quality-Based Selection, 'QBS'5.2 Other suppliers of consulting services5.3 Services provided by the consulting engineer5.3.1 Counselling services5.3.2 Pre-investment studies5.3.3 Design, preparation of documents and supervision5.3.4 Specialised design and development services5.3.5 Project management5.3.6 Programme manager5.4 IndependenceChapter 6 A traditional re-measurement contract6.1 Factors governing choice of contract6.2 The allocation of essential functions6.2.1 The allocation of the function relating to finance6.2.2 The allocation of the functions of design and construction6.2.3 The allocation of risk, quality control and the method of pricing and payment6.3 Re-measurement contracts6.3.1 The Red Book is a re-measure contract6.3.2 Contracts with a bill of quantities6.3.3 Contracts with a schedule of rates6.4 Cost-reimbursable contracts6.5 Lump sum contracts6.5.1 The Supplement to the Fourth Edition of the Red Book, Section B6.5.2 Main Features of FIDIC's Form for Payment on a lump sum basisChapter 7 Sharing of risks 7.1 Introduction7.2 The definition of 'risk'7.3 Measurement of risk7.4 Risk management7.5 Allocation of risk and their management7.6 Allocation of Risks in the Red Book7.7 Responsibility and Liability7.8 Indemnity and InsuranceChapter 8 The concepts in practice8.1 The Red Book in use8.2 Areas of conflict8.2.1 A relationship of trust8.2.2 The role of the engineer8.2.3 Avoidance of risk8.2.4 The design function8.2.5 Absence of a legal system8.2.6 Distrust of changes8.2.7 Legal questions8.3 EIC/FIDIC survey of 19968.4 A brief summary of Part IPart II The Fourth Edition: A CommentaryChapter 9 The revisions - purposes and consequences9.1 Introduction9.2 Clause 19.2.1 Definition of 'Engineer' under group (a)9.2.2 Definition of 'tests on completion'9.2.3 Definitions under group (e)9.2.4 Definitions under group (f)9.2.5 Definitions under group (g)9.2.6 Definition of 'approved'9.3 Clause 29.3.1 Requirement for consultation9.3.2 Responsibility for delegation9.3.3 Requirement for writing9.3.4 Express requirement for impartiality9.4 Sub-clause 5.29.5 Sub-clauses 6.1, 6.4 and 659.6 Clause 79.7 Clause 89.8 Clause 109.9 Sub-clause 12.29.10 Clause 139.11 Sub-clauses 14.1 and 14.39.12 Clause 159.13 Clause 19 9.14 Clause 209.15 Clause 219.16 Clause 239.17 Clause 259.18 Clause 279.19 Clause 289.20 Clause 309.21 Clause 34 and 359.22 Sub-clause 36.59.23 Clause 379.24 Clause 409.25 Clause 419.26 Sub-clause 42.39.27 Clause 449.28 Clause 469.29 Clause 519.30 Sub-clause 52.39.31 Clause 53 and 549.32 Sub-clause 57.29.33 Clause 609.34 Sub-clauses 65.4 and 66.19.35 Clause 679.36 Clause 699.37 Other changes made in the 1992 Reprint9.38 Concluding remarksPart III The Fourth Edition in PracticeChapter 10 Role of the engineer10.1 Introduction10.2 The engineer as a designer10.3 The engineer as the employer's agent10.3.1 Authority and duties of the engineer10.4 The engineer's proactive duties and authority10.5 The engineer's reactive duties and authority10.6 The engineer's passive duties and authorities10.7 The engineer as a supervisor10.8 The engineer as certifier10.9 The engineer as adjudicator or quasi-arbitrator10.10 Concluding remarksChapter 11 Responsibility and liability of the engineer11.1 Introduction11.2 Responsibility of the engineer towards the employer11.3 Responsibility of the engineer towards the contractor11.3.1 In the common law countries11.3.2 In the Romano-Germanic system11.4 The responsibility of the engineer towards third parties (other than the contractor)11.5 The responsibility of the engineer towards society; employees; and the engineer himself11.6 Liability in construction11.7 Levels of LiabilityChapter 12 The employer's obligations12.1 Introduction12.2 Identification of specific elements of the project12.3 Appointment of engineer12.4 Possession of site12.5 To provide instructions as and when they are required12.6 The employer is to refrain from taking any action which would impede or interfere with the progress of the works12.7 The employer if to supply materials and carry out works if these form part of the work as defined in the contract12.8 The employer is to nominate specialist sub-contractors and suppliers as and when they are required12.9 To permit the contractor to carry out the whole of the works12.10 To make payments and to make them on time12.11 Additional obligations for the employer under the Fourth Edition of the Red BookChapter 13 The contractor's obligations13.1 Introduction13.2 The contractor's obligations during the tendering stage13.3 The contractor's obligations following the letter of acceptance and during the construction stage up to substantial completion13.3.1 Finalising documentation required prior to commencement of the works13.3.2 Construction and completion of the works with due diligence and within the time for completion13.3.3 Use of materials, plant and workmanship13.3.4 Provision of securities, indemnities and insurances13.3.5 Supply of information, notices or alerts13.3.6 Performance of certain administrative functions13.4 Contractor's obligations after substantial completion of the worksChapter 14 Risks, liabilities, indemnities and insurances14.1 Introduction14.2 The Red Book provisions relating to risk, responsibility, liability, indemnity and insurance14.3 Clause 20 of the Red Book - '20.1: care of the works'; '20.2: responsibility to rectify loss or damage'; '20.3: loss or damage due to employer's risks'; and '20.4: employer's risks'14.3.1 Sub-clause 20.1: care of works14.3.2 Sub-clause 20.2: responsibility to rectify loss or damage; and sub-clause 20.3: loss or damage due to employer's risks14.3.3 Sub-clause 20.4: the employer's risks14.4 Clause 65 of the Red Book (sub-clauses 65.1 to 65.8) - special risks14.5 Clause 21 of the Red Book - insurance14.5.1 Importance of adequacy of cover14.5.2 Period of insurance and extent of cover14.5.3 Joint names14.5.4 Scope of insurance cover14.5.5 Provisions for payment in foreign currency14.5.6 Provision for deductibles14.6 Clause 22 of the Red Book - indemnity for damage to persons and property other than the works14.7 Clause 23 of the Red Book - third party insurance14.8 Clause 24 of the Red Book - injury to workmen and insurance14.9 Clause 25 of the Red Book - general insurance requirements14.10 Part II of the Red Book - insurance arranged by the employer14.11 DefinitionsChapter 15 Performance and other securities15.1 Introduction15.2 The spectrum of securities15.3 Types of securities15.4 Characteristics of performance bonds and guarantees15.4.1 Payment guarantees15.4.2 Performance bonds15.4.3 Demand guarantees15.5 The ICC Uniform Rules for Demand Guarantees15.6 Uniform Rules for Contract Bonds15.7 Insurance against unfair calling15.8 Performance securities under the Red Book15.9 Examples of securities provided15.10 Other securities associated with a construction contract15.10.1 Bid bonds or guarantees15.10.2 Advance payment guarantees15.10.3 Retention money bonds15.10.4 Maintenance or defects liability bonds15.10.5 Company suretyship15.11 Concluding remarksChapter 16 Claims and counterclaims16.1 Introduction16.2 Definition and legal basis of claims and counterclaims16.3 Claim based on grounds of breach of contract16.3.1 Variations16.3.2 Measurement changes16.3.3 Adverse physical obstructions or conditions16.3.4 Employer's risks16.3.5 Compliance with statutes, regulations, price fluctuations, currency and other economic causes16.3.6 Defects and unfulfilled obligations16.3.7 Failure to commence, delays, suspension of work, release from performance, default and termination16.3.8 Other miscellaneous specified events16.4 Claim based on grounds of breach of contract16.5 Procedure for claims for additional payment - clause 5316.5.1 Procedural steps16.5.2 Records16.6 The presentation of claims16.7 Quantum16.7.1 Heads of claim16.7.2 The global approach16.8 Failure to follow the claims procedure16.9 Concluding remarksChapter 17 Delay in completion and claims for extension of time17.1 Time is of fundamental importance17.2 Clauses 43, 44, 46, 47 and 48 of the Red Book17.3 Relevant clauses of the Fourth Edition of the Red Book to an extension of time under Clause 4417.4 Programming17.5 Concurrent delays17.6 Claims for both extension of time & money17.6.1 Prolongation17.6.2 Disruption17.7 Liquidated damages17.7.1 Liquidated damages and penalties17.8 The Society of Construction Law 'Delay and Disruption Protocol'Chapter 18 Certificates and payments18.1 Introduction18.2 Interim payment certificates18.3 Taking-over certificate18.4 Defects liability certificate18.5 Final payment certificate18.6 The engineer is to certify a valuation at date of termination18.7 Common requirements18.8 Late certificationChapter 19 Disputes settlement by arbitration19.1 Introduction and background19.2 Advantages of arbitration19.3 What is a dispute?19.4 What is arbitration?19.5 The arbitration agreement19.6 Sources of law in arbitration19.6.1 General19.6.2 The arbitration agreement as a source of law19.6.3 Practice and custom19.7 The arbitrator19.8 The arbitration agreement under clause 67 of the Red Book19.8.1 Procedure under clause 6719.9 The 1996 supplement to the Fourth Edition of the Red Book19.10 The ICC Rules of Arbitration19.10.1 The ICC Rules19.10.2 The advantages of the ICC Rules19.10.3 Some constructive criticism 19.11 Why does arbitration in construction disputes continue to lose favour?19.12 Concluding remarksChapter 20 Amicable settlement using alternative dispute resolution20.1 Introduction20.2 Methods of dispute settlement20.3 Direct negotiation20.3.1 Negotiators20.3.2 Distinguishing features of direct negotiation20.3.3 When should negotiation be used and what are the steps?20.4 Mediation20.5 Conciliation20.5.1 What is conciliation?20.5.2 Why conciliation?20.5.3 When should conciliation be used?20.5.4 Who should be a conciliator?20.5.5 Who should attend the conciliation?20.5.6 The conciliation process20.6 Mini-trial procedure20.7 Dispute board, dispute review board and dispute adjudication board20.8 Adjudication20.9 The ICC Rules for amicable dispute resolution20.9.1 The rules20.9.2 Fees and costs20.9.3 General provisions20.10 Pre-arbitral referee procedure20.11 The ICC Rules for expertise20.11.1 The Rules for expertise20.11.2 Functions of the ICC Centre for Expertise20.12 Concluding remarksPart IV Other Documents Related to the Red BookChapter 21 FIDIC's other forms of contract21.1 Introduction21.2 The Yellow Book, third edition21.2.1 Background21.2.2 Differences in the nature of civil engineering and E & M engineering projects21.2.3 Essential features of the Yellow Book21.3 The Orange Book, first edition21.3.1 Background21.3.2 Differences in the nature of the Red and Yellow Books on the one hand and the Orange Book on the other21.4 The conditions of subcontract for works of civil engineering construction21.4.1 Format21.4.2 Clause 1, definitions and interpretation21.4.3 Clause 4, 'main contract'21.4.4 Clause 13 and 15, 'indemnities; insurances'21.4.5 Clause 16, 'payment'21.4.6 Clause 19, 'settlement of disputes'21.5 Other publications of FIDICPart V The 1999 Red Book; The 1999 Yellow Book; The 1999 Silver Book; The 1999 Green Book; Dispute BoardsChapter 22 The 1999 FIDIC suite of contracts22.1 Introduction22.2 Differences in format22.3 Differences in concept22.4 The 1999 Green BookChapter 23 The 1999 Red Book23.1 Introduction23.2 The 1999 Red Book: concepts and content23.3 The 1999 Red Book: new concepts23.3.1 Sub-clause 1.12: confidential details23.3.2 Sub-clause 2.4: employer's financial arrangements23.3.3 Sub-clause 2.5: employer's claims23.3.4 Clause 3: the engineer23.3.5 Sub-clause 4.1(c): fitness for purpose23.3.6 Sub-clause 4.2: performance security23.3.7 Sub-clause 4.12: unforeseeable physical conditions23.3.8 Sub-clause 4.21: Progress reports23.3.9 Sub-clause 13.2: value engineering23.3.10 Sub-clause 14.7: payment23.3.11 Sub-clause 14.8: delayed payment23.3.12 Sub-clause 15.5: employer's entitlement to termination23.3.13 Clause 17: risk and responsibility23.3.14 Sub-clause 17.6: limitation of liability23.3.15 Clause 18: insurance23.3.16 Clause 19: force majeure23.3.17 Clause 20: claims23.3.18 Clause 20:Sub-clauses 20.2 to 20.4 - Appointment of the dispute adjudication board; failure to agree dispute adjudication board; and obtaining dispute adjudication Board's decision23.4 Some highlights of the 1999 Red Book23.4.1 Sub-clause 1.1.4.3: cost23.4.2 Clause 2: the employer23.4.3 Clause 4: the contractor23.4.4 Clause 6: Staff & Labour23.4.5 Clause 7: Plant, Materials and workmanship23.4.6 Clause 8: commencement, delays and suspension23.4.7 Clause 9: tests on completion23.4.8 Clause 10: employer's taking over23.4.9 Clause 11: defects liability23.4.10 Clause 12: measurement and evaluation23.4.11 Clause 13: variations and adjustments23.4.12 Clause 14: contract price and payment23.4.13 Clause 15: Termination by employer23.4.14 Clause 16: Suspension and termination by contractor23.4.15 Clause 20: sub-clauses 20.7 - Failure to comply with dispute adjudication board's decision23.4.16 Guidance for the preparation of particular conditionsChapter 24 The 1999 Yellow Book24.1 Introduction24.2 Tendering under, and using, the 1999 Yellow Book24.3 The 1999 Yellow Book: The employer's requirements24.3.1 Sub-clause 1.1.3.4 'tests on completion'24.3.2 Sub-clause 1.1.3.6 'tests after completion'24.3.3 Sub-clause 1.1.6.7 'site'24.3.4 Sub-clause 1.1.6.9: definitions - 'valuation'24.3.5 Sub-clause 1.5: general provisions - 'priority of documents'24.3.6 Sub-clause 1.8: 'care and supply of documents'24.3.7 Sub-clause 1.9: General provisions - 'errors in the employer's requirements'24.3.8 Sub-clause 1.11: general provisions - 'contractor's use of employer's documents'24.3.9 Sub-clause 1.13: general provisions - 'compliance with laws'24.3.10 Sub-clause 2.1: the employer - 'right to access to the site'24.3.11 Sub-clause 4.1: the contractor - 'contractor's general obligations'24.3.12 Sub-clause 4.6: The contractor - 'co-operation'24.3.13 Sub-clause 4.7 'setting out'24.3.14 Sub-clause4.18: the contractor - 'protection of the environment'24.3.15 Sub-clause 4.19: the contractor - 'electricity, water and gas'24.3.16 Sub-clause 4.20: the contractor - 'employer's equipment and free-issue material'24.3.17 Sub-clause 5.1: design - 'general design obligations'24.3.18 Sub-clause 5.2: Design - 'Contractor's Documents'24.3.19 Sub-clause 5.4: Design - 'Technical Standards and Regulations'24.3.20 Sub-clause 5.5: Design - 'Training'24.3.21 Sub-clause 5.6: Design - 'As-Built Documents"24.3.22 Sub-clause 5.7: Design - 'Operation and Maintenance Manuals'24.3.23 Sub-clause 6.1: Staff and Labour - 'Engagement of Staff and Labour'24.3.24 Sub-clause 6.6: Staff and Labour - 'Facilities for Staff and Labour'24.3.25 Sub-Clause 7.4 'Testing'24.3.26 Sub-clause 7.8: Plant, Materials and Workmanship - 'Royalties'24.3.27 Sub-clause 8.2 'Time for Completion'24.3.28 Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'24.3.29 Sub-clause 9.1: Tests on Completion - 'Contractor's Obligations'24.3.30 Sub-clause 10.2 'Taking Over of Parts of the Works'24.3.31 Sub-clause 11.1 'Completion of Outstanding Works and Remedying Defects'24.3.32 Sub-clause 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'24.4 Comparison between the 1999 Yellow Book and the 1999 Red Book 24.4.1 Clause 1: General Provisions24.4.2 Clause 3: The Engineer24.4.3 Sub-clause 4.1: The Contractor - 'Contractor's General Obligations' 24.4.4 Sub-clause 4.4 'Subcontractors', sub-clause 4.5 'Nominated Subcontractors' and sub-clause 4.6 'Co-operation' 24.4.5 Clause 5: Design 24.4.6 Sub-clause 7.5: Plant, Materials and Workmanship - 'Rejection'24.4.7 Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'24.4.8 Sub-clause 9.1: Tests on Completion - 'Contractor's Obligations'24.4.9 Sub-clauses 11.2 and 11.6: Defects Liability - 'Cost of Remedying Defects and Further Tests' and 'Further Tests'24.4.10 Clause 12: Tests after Completion24.4.11 Sub-clauses 13.1; 13.2; and 13.3: Variations and Adjustments - 'Right to Vary', 'Value Engineering', and 'Variation Procedure'24.4.12 Sub-clauses 14.1; 14.3; and 14.9: Contract Price and Payment - 'The Contract Price'; 'Application for Interim Payment Certificates' and 14.9 'Payment of Retention Money'24.4.13 Sub-clause: 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'24.4.14 Clause 20.2: Claims, Disputes and Arbitration - 'Appointment of the Dispute Adjudication Board'Chapter 25 The 1999 Silver Book25.1 Introduction25.2 The 1999 Silver Book: The Shifted Risks25.2.1 Sub-clause 3.1: The Employer's Administration - 'The Employer's Representative"25.2.2 Sub-clause 3.5: The Employer's Administration - 'Determinations'25.2.3 Sub-clause 4.7: The Contractor - 'Setting Out'25.2.4 Sub-clause 4.12: The Contractor - 'Unforeseeable Difficulties'25.2.5 Sub-clause 5.1: Design - 'General Design Obligations'25.2.6 Sub-clause 5.8: Design - 'Design Error'25.2.7 Sub-clause 8.4: Commencement, Delay and Suspension - 'Extension of Time for Completion'25.2.8 Sub-clause 17.3: Risk and Responsibility - 'Employer's Risks'25.2.9 Sub-clause 20.1: Claims, Disputes and Arbitration - 'Contractor's Claims'25.3 The 1999 Silver Book: Concepts and Content25.3.1 Clause 1: General Provisions25.3.2 Clause 3: the Employer's Administration25.3.3 Clause 4: The Contractor25.3.4 Clause 5: Design25.3.5 Clause 6: Staff and Labour25.3.6 Clause 7: Plant, Materials and Workmanship25.3.7 Clause 8: Commencement, Delays and Suspension25.3.8 Clause 9: Tests on Completion25.3.9 Clause 10: Employer's Taking Over 25.3.10 Clause 11: Defects Liability25.3.11 Clause 12: Tests after Completion25.3.12 Clause 13: Variations and Adjustments25.3.13 Clause 14: Contract Price and Payment25.3.14 Clause 15: Termination by Employer25.3.15 Clause 16: Suspension and Termination by ContractorChapter 26 Dispute Boards26.1 Introduction26.2 Main advantages of the Dispute Board26.3 Background & evolution26.4 Types of Dispute Boards26.4.1 Dispute review board26.4.2 Dispute Adjudication Board26.4.3 Combined Dispute Board26.5 Varieties of Dispute Boards26.6 Dispute Adjudication Boards under the FIDIC Contracts 26.7 The role of the Dispute Adjudication Board26.8 Establishment of the Dispute Adjudication Board26.9 Obligations of the Parties and the Members of the Dispute Adjudication Board26.10 Powers of the Dispute Adjudication Board26.11 Procedures relating to site visits & meetings26.12 Procedures relating to referral of a matter to the Board for its opinion26.13 Procedures relating to referral of a dispute to the Board for its decision26.14 Remuneration of the members of the Dispute Adjudication Board26.15 Cost of maintaining the members of the Dispute Adjudication Board26.16 The decision of the Dispute Adjudication BoardPart VI Comparison between the text of the three 1999 Major Books: Red, Yellow and Silver Books.Chapter 27 A precise record of the Alterations, Omissions and Additions in the 1999 Yellow & Silver Books as compared with the 1999 Red BookReferences.Table of cases.Index.
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Table of Contents: Part I Background and Concepts of the Red Book; Chapter 1 Background of the Red Book1.1 The ACE Form1.2 The First Edition of the Red Book1.3 The Second and Third Editions of the Red Book1.4 The Fourth Edition of the Red Book1.5 The 1996 Supplement to the Red Book1.6 Concepts of the Red Book1.7 The New Suite of FIDIC ContractsChapter 2 The Red Book is based on a domestic contract2.1 Introduction2.2 Diversity of legal systems2.3 The applicable law in international construction2.4 The applicable law of the contract2.5 Law governing procedure2.6 Law governing enforcement of awards2.7 Grouping of the contemporary legal systems2.8 The Romano-Germanic group2.8.1 Sources of law in the Romano-Germanic group2.8.2 Legal authoritative writing2.8.3 Areas of the law affecting construction in the Romano-Germanic group2.9 The common law group2.9.1 Sources of law in the common law group2.9.2 Areas of the law affecting construction in the common law group2.10 The law in Islamic countries2.10.1 Sources of Islamic lawChapter 3 Legal concepts based on the common law system3.1 The law applicable to the contract3.2 Conflict3.3 Some specific concepts under the common law3.3.1 Substantive law and procedural law3.3.2 Legislation, common law and equity 3.4 Tort3.5 Contract - general principles3.5.1 Prerequisites of a contract3.5.2 Limitation periods3.6 Privity of contract3.7 Performance of a contract3.8 The contents of a contract3.9 Remedies for breach of contract3.10 Exclusion clauses3.11 The responsibility to completeChapter 4 Drafting principlesChapter 5 The concept of a trusted independent engineer5.1 Introduction5.1.1 FIDIC's Statutes and By-Laws and the independent engineer5.1.2 FIDIC's Code of Ethics5.1.3 FIDIC's Quality-Based Selection, 'QBS'5.2 Other suppliers of consulting services5.3 Services provided by the consulting engineer5.3.1 Counselling services5.3.2 Pre-investment studies5.3.3 Design, preparation of documents and supervision5.3.4 Specialised design and development services5.3.5 Project management5.3.6 Programme manager5.4 IndependenceChapter 6 A traditional re-measurement contract6.1 Factors governing choice of contract6.2 The allocation of essential functions6.2.1 The allocation of the function relating to finance6.2.2 The allocation of the functions of design and construction6.2.3 The allocation of risk, quality control and the method of pricing and payment6.3 Re-measurement contracts6.3.1 The Red Book is a re-measure contract6.3.2 Contracts with a bill of quantities6.3.3 Contracts with a schedule of rates6.4 Cost-reimbursable contracts6.5 Lump sum contracts6.5.1 The Supplement to the Fourth Edition of the Red Book, Section B6.5.2 Main Features of FIDIC's Form for Payment on a lump sum basisChapter 7 Sharing of risks 7.1 Introduction7.2 The definition of 'risk'7.3 Measurement of risk7.4 Risk management7.5 Allocation of risk and their management7.6 Allocation of Risks in the Red Book7.7 Responsibility and Liability7.8 Indemnity and InsuranceChapter 8 The concepts in practice8.1 The Red Book in use8.2 Areas of conflict8.2.1 A relationship of trust8.2.2 The role of the engineer8.2.3 Avoidance of risk8.2.4 The design function8.2.5 Absence of a legal system8.2.6 Distrust of changes8.2.7 Legal questions8.3 EIC/FIDIC survey of 19968.4 A brief summary of Part IPart II The Fourth Edition: A CommentaryChapter 9 The revisions - purposes and consequences9.1 Introduction9.2 Clause 19.2.1 Definition of 'Engineer' under group (a)9.2.2 Definition of 'tests on completion'9.2.3 Definitions under group (e)9.2.4 Definitions under group (f)9.2.5 Definitions under group (g)9.2.6 Definition of 'approved'9.3 Clause 29.3.1 Requirement for consultation9.3.2 Responsibility for delegation9.3.3 Requirement for writing9.3.4 Express requirement for impartiality9.4 Sub-clause 5.29.5 Sub-clauses 6.1, 6.4 and 659.6 Clause 79.7 Clause 89.8 Clause 109.9 Sub-clause 12.29.10 Clause 139.11 Sub-clauses 14.1 and 14.39.12 Clause 159.13 Clause 19 9.14 Clause 209.15 Clause 219.16 Clause 239.17 Clause 259.18 Clause 279.19 Clause 289.20 Clause 309.21 Clause 34 and 359.22 Sub-clause 36.59.23 Clause 379.24 Clause 409.25 Clause 419.26 Sub-clause 42.39.27 Clause 449.28 Clause 469.29 Clause 519.30 Sub-clause 52.39.31 Clause 53 and 549.32 Sub-clause 57.29.33 Clause 609.34 Sub-clauses 65.4 and 66.19.35 Clause 679.36 Clause 699.37 Other changes made in the 1992 Reprint9.38 Concluding remarksPart III The Fourth Edition in PracticeChapter 10 Role of the engineer10.1 Introduction10.2 The engineer as a designer10.3 The engineer as the employer's agent10.3.1 Authority and duties of the engineer10.4 The engineer's proactive duties and authority10.5 The engineer's reactive duties and authority10.6 The engineer's passive duties and authorities10.7 The engineer as a supervisor10.8 The engineer as certifier10.9 The engineer as adjudicator or quasi-arbitrator10.10 Concluding remarksChapter 11 Responsibility and liability of the engineer11.1 Introduction11.2 Responsibility of the engineer towards the employer11.3 Responsibility of the engineer towards the contractor11.3.1 In the common law countries11.3.2 In the Romano-Germanic system11.4 The responsibility of the engineer towards third parties (other than the contractor)11.5 The responsibility of the engineer towards society; employees; and the engineer himself11.6 Liability in construction11.7 Levels of LiabilityChapter 12 The employer's obligations12.1 Introduction12.2 Identification of specific elements of the project12.3 Appointment of engineer12.4 Possession of site12.5 To provide instructions as and when they are required12.6 The employer is to refrain from taking any action which would impede or interfere with the progress of the works12.7 The employer if to supply materials and carry out works if these form part of the work as defined in the contract12.8 The employer is to nominate specialist sub-contractors and suppliers as and when they are required12.9 To permit the contractor to carry out the whole of the works12.10 To make payments and to make them on time12.11 Additional obligations for the employer under the Fourth Edition of the Red BookChapter 13 The contractor's obligations13.1 Introduction13.2 The contractor's obligations during the tendering stage13.3 The contractor's obligations following the letter of acceptance and during the construction stage up to substantial completion13.3.1 Finalising documentation required prior to commencement of the works13.3.2 Construction and completion of the works with due diligence and within the time for completion13.3.3 Use of materials, plant and workmanship13.3.4 Provision of securities, indemnities and insurances13.3.5 Supply of information, notices or alerts13.3.6 Performance of certain administrative functions13.4 Contractor's obligations after substantial completion of the worksChapter 14 Risks, liabilities, indemnities and insurances14.1 Introduction14.2 The Red Book provisions relating to risk, responsibility, liability, indemnity and insurance14.3 Clause 20 of the Red Book - '20.1: care of the works'; '20.2: responsibility to rectify loss or damage'; '20.3: loss or damage due to employer's risks'; and '20.4: employer's risks'14.3.1 Sub-clause 20.1: care of works14.3.2 Sub-clause 20.2: responsibility to rectify loss or damage; and sub-clause 20.3: loss or damage due to employer's risks14.3.3 Sub-clause 20.4: the employer's risks14.4 Clause 65 of the Red Book (sub-clauses 65.1 to 65.8) - special risks14.5 Clause 21 of the Red Book - insurance14.5.1 Importance of adequacy of cover14.5.2 Period of insurance and extent of cover14.5.3 Joint names14.5.4 Scope of insurance cover14.5.5 Provisions for payment in foreign currency14.5.6 Provision for deductibles14.6 Clause 22 of the Red Book - indemnity for damage to persons and property other than the works14.7 Clause 23 of the Red Book - third party insurance14.8 Clause 24 of the Red Book - injury to workmen and insurance14.9 Clause 25 of the Red Book - general insurance requirements14.10 Part II of the Red Book - insurance arranged by the employer14.11 DefinitionsChapter 15 Performance and other securities15.1 Introduction15.2 The spectrum of securities15.3 Types of securities15.4 Characteristics of performance bonds and guarantees15.4.1 Payment guarantees15.4.2 Performance bonds15.4.3 Demand guarantees15.5 The ICC Uniform Rules for Demand Guarantees15.6 Uniform Rules for Contract Bonds15.7 Insurance against unfair calling15.8 Performance securities under the Red Book15.9 Examples of securities provided15.10 Other securities associated with a construction contract15.10.1 Bid bonds or guarantees15.10.2 Advance payment guarantees15.10.3 Retention money bonds15.10.4 Maintenance or defects liability bonds15.10.5 Company suretyship15.11 Concluding remarksChapter 16 Claims and counterclaims16.1 Introduction16.2 Definition and legal basis of claims and counterclaims16.3 Claim based on grounds of breach of contract16.3.1 Variations16.3.2 Measurement changes16.3.3 Adverse physical obstructions or conditions16.3.4 Employer's risks16.3.5 Compliance with statutes, regulations, price fluctuations, currency and other economic causes16.3.6 Defects and unfulfilled obligations16.3.7 Failure to commence, delays, suspension of work, release from performance, default and termination16.3.8 Other miscellaneous specified events16.4 Claim based on grounds of breach of contract16.5 Procedure for claims for additional payment - clause 5316.5.1 Procedural steps16.5.2 Records16.6 The presentation of claims16.7 Quantum16.7.1 Heads of claim16.7.2 The global approach16.8 Failure to follow the claims procedure16.9 Concluding remarksChapter 17 Delay in completion and claims for extension of time17.1 Time is of fundamental importance17.2 Clauses 43, 44, 46, 47 and 48 of the Red Book17.3 Relevant clauses of the Fourth Edition of the Red Book to an extension of time under Clause 4417.4 Programming17.5 Concurrent delays17.6 Claims for both extension of time & money17.6.1 Prolongation17.6.2 Disruption17.7 Liquidated damages17.7.1 Liquidated damages and penalties17.8 The Society of Construction Law 'Delay and Disruption Protocol'Chapter 18 Certificates and payments18.1 Introduction18.2 Interim payment certificates18.3 Taking-over certificate18.4 Defects liability certificate18.5 Final payment certificate18.6 The engineer is to certify a valuation at date of termination18.7 Common requirements18.8 Late certificationChapter 19 Disputes settlement by arbitration19.1 Introduction and background19.2 Advantages of arbitration19.3 What is a dispute?19.4 What is arbitration?19.5 The arbitration agreement19.6 Sources of law in arbitration19.6.1 General19.6.2 The arbitration agreement as a source of law19.6.3 Practice and custom19.7 The arbitrator19.8 The arbitration agreement under clause 67 of the Red Book19.8.1 Procedure under clause 6719.9 The 1996 supplement to the Fourth Edition of the Red Book19.10 The ICC Rules of Arbitration19.10.1 The ICC Rules19.10.2 The advantages of the ICC Rules19.10.3 Some constructive criticism 19.11 Why does arbitration in construction disputes continue to lose favour?19.12 Concluding remarksChapter 20 Amicable settlement using alternative dispute resolution20.1 Introduction20.2 Methods of dispute settlement20.3 Direct negotiation20.3.1 Negotiators20.3.2 Distinguishing features of direct negotiation20.3.3 When should negotiation be used and what are the steps?20.4 Mediation20.5 Conciliation20.5.1 What is conciliation?20.5.2 Why conciliation?20.5.3 When should conciliation be used?20.5.4 Who should be a conciliator?20.5.5 Who should attend the conciliation?20.5.6 The conciliation process20.6 Mini-trial procedure20.7 Dispute board, dispute review board and dispute adjudication board20.8 Adjudication20.9 The ICC Rules for amicable dispute resolution20.9.1 The rules20.9.2 Fees and costs20.9.3 General provisions20.10 Pre-arbitral referee procedure20.11 The ICC Rules for expertise20.11.1 The Rules for expertise20.11.2 Functions of the ICC Centre for Expertise20.12 Concluding remarksPart IV Other Documents Related to the Red BookChapter 21 FIDIC's other forms of contract21.1 Introduction21.2 The Yellow Book, third edition21.2.1 Background21.2.2 Differences in the nature of civil engineering and E & M engineering projects21.2.3 Essential features of the Yellow Book21.3 The Orange Book, first edition21.3.1 Background21.3.2 Differences in the nature of the Red and Yellow Books on the one hand and the Orange Book on the other21.4 The conditions of subcontract for works of civil engineering construction21.4.1 Format21.4.2 Clause 1, definitions and interpretation21.4.3 Clause 4, 'main contract'21.4.4 Clause 13 and 15, 'indemnities; insurances'21.4.5 Clause 16, 'payment'21.4.6 Clause 19, 'settlement of disputes'21.5 Other publications of FIDICPart V The 1999 Red Book; The 1999 Yellow Book; The 1999 Silver Book; The 1999 Green Book; Dispute BoardsChapter 22 The 1999 FIDIC suite of contracts22.1 Introduction22.2 Differences in format22.3 Differences in concept22.4 The 1999 Green BookChapter 23 The 1999 Red Book23.1 Introduction23.2 The 1999 Red Book: concepts and content23.3 The 1999 Red Book: new concepts23.3.1 Sub-clause 1.12: confidential details23.3.2 Sub-clause 2.4: employer's financial arrangements23.3.3 Sub-clause 2.5: employer's claims23.3.4 Clause 3: the engineer23.3.5 Sub-clause 4.1(c): fitness for purpose23.3.6 Sub-clause 4.2: performance security23.3.7 Sub-clause 4.12: unforeseeable physical conditions23.3.8 Sub-clause 4.21: Progress reports23.3.9 Sub-clause 13.2: value engineering23.3.10 Sub-clause 14.7: payment23.3.11 Sub-clause 14.8: delayed payment23.3.12 Sub-clause 15.5: employer's entitlement to termination23.3.13 Clause 17: risk and responsibility23.3.14 Sub-clause 17.6: limitation of liability23.3.15 Clause 18: insurance23.3.16 Clause 19: force majeure23.3.17 Clause 20: claims23.3.18 Clause 20:Sub-clauses 20.2 to 20.4 - Appointment of the dispute adjudication board; failure to agree dispute adjudication board; and obtaining dispute adjudication Board's decision23.4 Some highlights of the 1999 Red Book23.4.1 Sub-clause 1.1.4.3: cost23.4.2 Clause 2: the employer23.4.3 Clause 4: the contractor23.4.4 Clause 6: Staff & Labour23.4.5 Clause 7: Plant, Materials and workmanship23.4.6 Clause 8: commencement, delays and suspension23.4.7 Clause 9: tests on completion23.4.8 Clause 10: employer's taking over23.4.9 Clause 11: defects liability23.4.10 Clause 12: measurement and evaluation23.4.11 Clause 13: variations and adjustments23.4.12 Clause 14: contract price and payment23.4.13 Clause 15: Termination by employer23.4.14 Clause 16: Suspension and termination by contractor23.4.15 Clause 20: sub-clauses 20.7 - Failure to comply with dispute adjudication board's decision23.4.16 Guidance for the preparation of particular conditionsChapter 24 The 1999 Yellow Book24.1 Introduction24.2 Tendering under, and using, the 1999 Yellow Book24.3 The 1999 Yellow Book: The employer's requirements24.3.1 Sub-clause 1.1.3.4 'tests on completion'24.3.2 Sub-clause 1.1.3.6 'tests after completion'24.3.3 Sub-clause 1.1.6.7 'site'24.3.4 Sub-clause 1.1.6.9: definitions - 'valuation'24.3.5 Sub-clause 1.5: general provisions - 'priority of documents'24.3.6 Sub-clause 1.8: 'care and supply of documents'24.3.7 Sub-clause 1.9: General provisions - 'errors in the employer's requirements'24.3.8 Sub-clause 1.11: general provisions - 'contractor's use of employer's documents'24.3.9 Sub-clause 1.13: general provisions - 'compliance with laws'24.3.10 Sub-clause 2.1: the employer - 'right to access to the site'24.3.11 Sub-clause 4.1: the contractor - 'contractor's general obligations'24.3.12 Sub-clause 4.6: The contractor - 'co-operation'24.3.13 Sub-clause 4.7 'setting out'24.3.14 Sub-clause4.18: the contractor - 'protection of the environment'24.3.15 Sub-clause 4.19: the contractor - 'electricity, water and gas'24.3.16 Sub-clause 4.20: the contractor - 'employer's equipment and free-issue material'24.3.17 Sub-clause 5.1: design - 'general design obligations'24.3.18 Sub-clause 5.2: Design - 'Contractor's Documents'24.3.19 Sub-clause 5.4: Design - 'Technical Standards and Regulations'24.3.20 Sub-clause 5.5: Design - 'Training'24.3.21 Sub-clause 5.6: Design - 'As-Built Documents"24.3.22 Sub-clause 5.7: Design - 'Operation and Maintenance Manuals'24.3.23 Sub-clause 6.1: Staff and Labour - 'Engagement of Staff and Labour'24.3.24 Sub-clause 6.6: Staff and Labour - 'Facilities for Staff and Labour'24.3.25 Sub-Clause 7.4 'Testing'24.3.26 Sub-clause 7.8: Plant, Materials and Workmanship - 'Royalties'24.3.27 Sub-clause 8.2 'Time for Completion'24.3.28 Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'24.3.29 Sub-clause 9.1: Tests on Completion - 'Contractor's Obligations'24.3.30 Sub-clause 10.2 'Taking Over of Parts of the Works'24.3.31 Sub-clause 11.1 'Completion of Outstanding Works and Remedying Defects'24.3.32 Sub-clause 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'24.4 Comparison between the 1999 Yellow Book and the 1999 Red Book 24.4.1 Clause 1: General Provisions24.4.2 Clause 3: The Engineer24.4.3 Sub-clause 4.1: The Contractor - 'Contractor's General Obligations' 24.4.4 Sub-clause 4.4 'Subcontractors', sub-clause 4.5 'Nominated Subcontractors' and sub-clause 4.6 'Co-operation' 24.4.5 Clause 5: Design 24.4.6 Sub-clause 7.5: Plant, Materials and Workmanship - 'Rejection'24.4.7 Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'24.4.8 Sub-clause 9.1: Tests on Completion - 'Contractor's Obligations'24.4.9 Sub-clauses 11.2 and 11.6: Defects Liability - 'Cost of Remedying Defects and Further Tests' and 'Further Tests'24.4.10 Clause 12: Tests after Completion24.4.11 Sub-clauses 13.1; 13.2; and 13.3: Variations and Adjustments - 'Right to Vary', 'Value Engineering', and 'Variation Procedure'24.4.12 Sub-clauses 14.1; 14.3; and 14.9: Contract Price and Payment - 'The Contract Price'; 'Application for Interim Payment Certificates' and 14.9 'Payment of Retention Money'24.4.13 Sub-clause: 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'24.4.14 Clause 20.2: Claims, Disputes and Arbitration - 'Appointment of the Dispute Adjudication Board'Chapter 25 The 1999 Silver Book25.1 Introduction25.2 The 1999 Silver Book: The Shifted Risks25.2.1 Sub-clause 3.1: The Employer's Administration - 'The Employer's Representative"25.2.2 Sub-clause 3.5: The Employer's Administration - 'Determinations'25.2.3 Sub-clause 4.7: The Contractor - 'Setting Out'25.2.4 Sub-clause 4.12: The Contractor - 'Unforeseeable Difficulties'25.2.5 Sub-clause 5.1: Design - 'General Design Obligations'25.2.6 Sub-clause 5.8: Design - 'Design Error'25.2.7 Sub-clause 8.4: Commencement, Delay and Suspension - 'Extension of Time for Completion'25.2.8 Sub-clause 17.3: Risk and Responsibility - 'Employer's Risks'25.2.9 Sub-clause 20.1: Claims, Disputes and Arbitration - 'Contractor's Claims'25.3 The 1999 Silver Book: Concepts and Content25.3.1 Clause 1: General Provisions25.3.2 Clause 3: the Employer's Administration25.3.3 Clause 4: The Contractor25.3.4 Clause 5: Design25.3.5 Clause 6: Staff and Labour25.3.6 Clause 7: Plant, Materials and Workmanship25.3.7 Clause 8: Commencement, Delays and Suspension25.3.8 Clause 9: Tests on Completion25.3.9 Clause 10: Employer's Taking Over 25.3.10 Clause 11: Defects Liability25.3.11 Clause 12: Tests after Completion25.3.12 Clause 13: Variations and Adjustments25.3.13 Clause 14: Contract Price and Payment25.3.14 Clause 15: Termination by Employer25.3.15 Clause 16: Suspension and Termination by ContractorChapter 26 Dispute Boards26.1 Introduction26.2 Main advantages of the Dispute Board26.3 Background & evolution26.4 Types of Dispute Boards26.4.1 Dispute review board26.4.2 Dispute Adjudication Board26.4.3 Combined Dispute Board26.5 Varieties of Dispute Boards26.6 Dispute Adjudication Boards under the FIDIC Contracts 26.7 The role of the Dispute Adjudication Board26.8 Establishment of the Dispute Adjudication Board26.9 Obligations of the Parties and the Members of the Dispute Adjudication Board26.10 Powers of the Dispute Adjudication Board26.11 Procedures relating to site visits & meetings26.12 Procedures relating to referral of a matter to the Board for its opinion26.13 Procedures relating to referral of a dispute to the Board for its decision26.14 Remuneration of the members of the Dispute Adjudication Board26.15 Cost of maintaining the members of the Dispute Adjudication Board26.16 The decision of the Dispute Adjudication BoardPart VI Comparison between the text of the three 1999 Major Books: Red, Yellow and Silver Books.Chapter 27 A precise record of the Alterations, Omissions and Additions in the 1999 Yellow & Silver Books as compared with the 1999 Red BookReferences.Table of cases.Index.
Review of The FIDIC Forms of Contract
"The great merit of this book is that [it] assimilates the complexities of the form and focuses upon the practicalities.' Arbitration 'One of the great virtues of the book is that it is almost a work on construction law and practice in the international sphere....It is quite common for books to be described as indispensable but that is an apt description of what looks to be a classic text. It is also remarkably good value for money.' Judge Humphrey Lloyd QC, International Construction Law Review
Product Specifications
| Author: | Nael G Bunni |
| Publisher: | Blackwell Publishing |
| Pages: | 872 |
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Benfield ATT
