FIDIC an overview: the latest
developments, comparisons, claims and
a look into the future
Introduction
The purpose of this paper is threefold. First to provide a brief overview of1.
the history and development of the FIDIC form; and second to discuss the
different ways the Employer and Contractor are treated when it comes to
making claims. This second section includes a discussion on the use of the
condition precedent within the FIDIC Form as well as a brief discussion
about the different approaches under the civil codes and common law
jurisdiction. Finally, we look to the future and review the latest addition
to the FIDIC suite of contracts.
Accordingly this paper is set out in the following sections:2.
The FIDIC form: a brief history;(i)
The new FIDIC form 1999;(ii)
The MDB version of the New Red Book May 2006;(iii)
Making a claim under the FIDIC form - the employer;(iv)
Making a claim under the FIDIC form ­ the contractor;(v)
Looking to the future: the new FIDIC DBO contract.(vi)
The FIDIC form: a brief history
The Fédération Internationale des Ingénieurs-Conseils ("FIDIC")3.
organisation was founded in 1913 by France, Belgium and Switzerland.
The UK did not join until 1949. The first edition of the Conditions of
Contract (International) for Works of Civil Engineering Construction was
published in August 1957 having been prepared on behalf of FIDIC and the
Fédération Internationale des Bâtiment et des Travaux Publics (FIBTP).1
The form of the early FIDIC contracts followed closely the fourth edition4.
of the ICE Conditions of contract. In fact so closely did the FIDIC form
mirror its English counterpart that Ian Duncan Wallace said:
"as a general comment, it is difficult to escape the conclusion that
at least one primary object in preparing the present international
contract was to depart as little as humanly possible from the
English conditions."2
One difficulty with the first FIDIC contracts was that they were based on5.
the detailed design being provided to the Contractor by the Employer or
his Engineer. It was therefore best suited for civil engineering and
infrastructure projects such as roads, bridges, dams, tunnels and water
and sewage facilities. It was not so suited for contracts where major
items of plant were manufactured away from site. This led to the first
edition of the "Yellow Book" (the traditional contract becoming known as
the "Red Book") being produced in 1963 by FIDIC for mechanical and
electrical works. This had an emphasis on testing and commissioning and
1. Gradually further sponsors were added including
the International Federation of Asian and West Pacific
Contractors Associations the Associated General
Contractors of America, and the Inter-American
Federation of the Construction Industry.
2. I.N. Duncan Wallace QC, The International Civil
Engineering Contract, 1974.
www.fenwickelliott.co.uk
Jeremy Glover
page 2FIDIC and overview: the latest developments, comparisons, claims and a look into the future
was more suitable for the manufacture and installation of plant. The
second edition was published in 1980.
Both the Red and Yellow Books were revised by FIDIC and new editions6.
published in 1987. A key feature of the 4th edition of the Red Book (or
"Old Red Book")was the introduction of an express term which required
the Engineer to act impartially when giving a decision or taking any action
which might affect the rights and obligations of the parties, whereas the
previous editions had assumed this implicitly. Although this talk
concentrates on the new FIDIC forms, it should be remembered that the
Old Red Book remains the contract of choice throughout much of the
Middle East, particularly the UAE.3
In 1995 a further contract was published (known as the "Orange Book").7.
This was for use on projects procured on a design and build or turnkey
basis, dispensing with the Engineer entirely and providing for an
"Employer's Representative" who, when determining value, costs or
extensions of times had to:
"determine the matter fairly, reasonably and in accordance with
the Contract".
Consequently the need to submit matters to the Engineer for his8.
"Decision" prior to an ability to pursue a dispute, was eliminated. In its
place an Independent Dispute Adjudication Board was introduced
consisting of either one or three members appointed jointly by the
Employer and the Contractor at the commencement of the Contract, with
the cost being shared by the parties. This provision mirrored a World Bank
amendment to the FIDIC Red Book.
A Supplement to the Red and Yellow Books was published in November9.
1996 which provided all users with the ability to incorporate alternative
arrangements comprising an option for a Dispute Adjudication Board to go
with modelled terms of appointment and procedural rules, and an option
for payment on a lump sum basis rather than by reference to bills of
quantities.
The new FIDIC forms 1999
In 1994 FIDIC established a task force to update both the Red and the10.
Yellow Books in the light of developments in the international construction
industry, including the development of the Orange Book. The key
considerations included:
The role of the Engineer and, in particular, the requirement to act(i)
impartially in the circumstances of being employed and paid by the
Employer;
The desirability for standardisation within the FIDIC forms;(ii)
The simplification of the FIDIC forms in light of the fact that the(iii)
FIDIC conditions were issued in English but in very many instances
were being utilised by those whose language background was other
than in English; and
That the new books would be suitable for use in both common law(iv)
and civil law jurisdictions.
This led to the publication of four new contracts in 1999:11.
Conditions of Contract for Construction for Building and Engineering(i)
Works Designed by the Employer: The Construction Contract (the3. Although this is changing ­ see paragraph 126 below.
www.fenwickelliott.co.uk
page 3FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
new Red Book);
Conditions of Contract for Plant and Design-Build for Electrical and(ii)
Mechanical Plant and for Building and Engineering Works, Designed
by the Contractor The Plant and Design/Build Contract (the new
Yellow Book);
Conditions of Contract for EPC/Turnkey Projects: the EPC Turnkey(iii)
Contract (the Silver Book);
A short form of contract (the "Green Book").(iv)
In September 2007, a new draft Contract was published, the Conditions of12.
Contract for Design, Build and Operate Projects (the "Gold Book").
In keeping with the desire for standardisation, each of the new books13.
includes General Conditions, together with guidance for the preparation
of the Particular Conditions, and a Letter of Tender, Contract Agreement
and Dispute Adjudication Agreements. Whilst the Red Book refers to
works designed by the Employer, it is appropriate for use where the works
include some contractor-designed works whether civil, mechanical,
electrical or construction work.
The content of the new FIDIC forms
The new FIDIC form has 20 clauses which are perhaps best viewed as14.
chapters covering the key project topics. I propose to consider some of
the more important ones.
Clause 2 addresses the role of the employer. There are two particularly15.
interesting sub-clauses. First sub-clause 2.4 requires the Employer
following request from the Contractor to submit:
"reasonable evidence that financial arrangements have been made
and are being maintained which will enable the Employer to pay the
contract price punctually"; and
"Before the Employer makes any material change to his financial
arrangements, the Employer shall give notice to the Contractor with
detailed particulars."
If the Employer fails to provide this evidence, the Contractor can suspend16.
work, "or reduce the rate of work", unless or until the Contractor
actually receives the reasonable evidence. This was an entirely new
provision to the 1999 FIDIC form and provides a mechanism whereby the
Contractor can obtain confirmation that sufficient funding arrangements
are in place to enable him to be paid, including if there is a significant
change in the size of the project during construction.
Second, as will be discussed later on, in another new development,17.
sub-clause 2.5 requires the Employer to give notice and particulars to a
Contractor:
"if the Employer considers himself to be entitled to any payment
under any clause of these conditions or otherwise in connection with
the Contract."
Clause 3 deals with the position of the Engineer. There was one significant18.
change from the 1987 edition. The express reference in the 1987 edition
to the Engineer's impartiality has gone. Unless otherwise stated:
"Whenever carrying out duties or exercising authority, specified in
or implied by the Contract, the Engineer shall be deemed to act for
page 4FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
4. Obviously, the reference to design changes throughout
the various FIDIC forms.
5. The FIDIC contract documents include a number of
sample forms of security.
6. See Lord Denning in Edward Owen Engineering Ltd v
Barclays Bank International Ltd and Umma Bank (1978)
QB 159.
7. Under some jurisdictions, a declaration made in bad
faith may be capable of challenge.
8. Uniform Rules for Demand Guarantees (URDG, No.
458); Uniform Rules for Contract Bonds (URCB No. 524).
9. Great Eastern Hotel Co Ltd v John Laing Construction
Ltd 99 Con LR 45
the Employer."
Now, the conditions provide that the Engineer shall proceed in accordance19.
with sub-clause 3.5 to agree or determine any matter:
"...the Engineer shall consult with each Party in an endeavour to
reach agreement. If agreement is not achieved, the Engineer shall
make a fair determination in accordance with the Contract, taking
due regard of all relevant circumstances."
Clause 4 is by far the longest section and covers the Contractor's general20.
obligations including the requirement that in respect of Contractordesigned
works:4
"it shall, when the works are completed, be fit for such purposes
for which the part is intended as are specified in the Contract."
This is an absolute duty.21.
Sub-clause 4.2 specifies that the Contractor shall provide a Performance22.
Security5
where the amount has been specified in the Appendix to Tender,
and the sub-clause continues with provisions for extending the security.
Some protection is afforded to the Contractor as the sub-clause requires
the Employer to provide an indemnity to the Contractor against damage,
loss and expense resulting from a claim under the performance security:
"to the extent to which the Employer was not entitled to make the
claim".
An Employer should decide upon the form of the performance security23.
during the finalisation of tender documentation. Whilst the Old Red Book
favoured Bonds which were in conditional terms, payable upon default,
there has been a general trend towards the use of first or on-demand
bonds.6
This is reflected in the 1999 form where the performance
guarantees are in an on-demand guarantee form, which are payable upon
the submission of identified documentation by the beneficiary. It is still
necessary to state in what respect the Contractor is in breach of his
obligations.7
In keeping with the intentions of FIDIC to achieve a degree
of uniformity and hence clarity, the securities derive from the Uniform
Rules of the International Chamber of Commerce.8
Sub-clause 4.21 provides details of the information required to be inserted24.
by the Contractor in the Progress Reports. The provision of this report is a
condition of payment. Under clause 14.3, payment will only be made
within 28 days of receipt of the application for payment and the
supporting documents, one of which is the Progress Report.
Whilst the importance of ensuring that the progress reports are accurate25.
might seem obvious, His Honour Judge Wilcox, in a recent case9
involving
a construction manager, highlighted some of the potential difficulties
where that reporting is not accurate.
Under the terms of the particular contract, the construction manager was26.
described as being the only person on the project with access to all of the
information and the various programmes. He was the only available
person who could make an accurate report to the Client at any one time,
of both the current status of the Project and the likely effects both on
timing and on costs. He was at "the centre of the information hub" of the
Project.
It is only with knowledge of the exact status of the Project on a regular27.
basis that the construction manager can deal with problems that have
page 5FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
10 Although in the UK, section 109 of the 1998 Housing
Grants Construction & Regeneration Act now gives most
contractors the right to payment by instalments.
11 King Hammurabi ruled the kingdom of Babylon from
1792 to 1750 BC.
arisen, and therefore anticipate potential problems that may arise, and
make provisions to deal with these work fronts. That is not dissimilar
from the status of the Contractor under FIDIC conditions.
An Employer will need accurate information of the likely completion date,28.
and the costs, because this would affect his pre-commencement
preparation and financing costs. Any change to the likely completion date
would give an Employer the chance to adjust its operational dates. Judge
Wilcox concluded:
"Where a completion date was subject to change the competent
Construction Manager had a clear obligation to accurately report
any change from the original Projected completion date, and the
effect on costs."
Sub-clause 4.21(h) confirms that the Contractor has a similar obligation29.
here
Clauses 6 and 7 deal with personnel, plant, materials and workmanship.30.
Clause 6 has particular importance in relation to staff. The Contractor
must not only engage labour and staff, but must also make appropriate
welfare arrangements for them.
Clause 8 deals with Commencement, Delay and Suspension. Sub-clause 8.331.
sets out the manner in which the Contractor should provide programmes
showing how he proposes to execute the works. For example the
programme must be supported by a report describing the methods which
the Contractor is to adopt. The extension of time provisions are clear. By
sub-clause 8.4:
"the Contractor shall be entitled ... to an extension of the Time for
Completion if and to the extent that completion ... is or will be
delayed by any of the following causes"
Sub-clause 8.7 deals with delay or liquidated damages. To be able to levy32.
such damages, the Employer must make an application (in effect a claim)
in accordance with sub-clause 2.5.
Measurement is a central feature of Clause 12 and is the basis ultimately33.
upon which payment to the Contractor is calculated. Sometimes called a
"measure and value" type of contract, the arrangements in place in the
FIDIC form proceed on the basis that the Works are to be measured by the
Engineer, and those quantities and measured amounts of work are then to
be paid for alternatively at the rates and prices in the Contract, or else on
the basis of adjusted rates, or entirely new rates (if there is no basis for
using or altering Contract rates for the work).
Clause 13 addresses variations and incorporates adjustments for changes34.
in legislation and in costs. However, provided the Contractor notifies an
inability to obtain the required goods, a variation is not binding. Equally
it is not binding in the case of contractor design if the proposed variation
would have an adverse impact on safety, suitability or the achievement of
performance criteria as specified.
The amount the Contractor is going to be paid, and the timing of that35.
payment, is of fundamental importance to both Contractor and Employer
alike. The manner in which the payment is made is traditionally
dependent on the precise wording of the contract.10
Under the code of
Hammurabi11
the rule was as follows:
"If a builder build a house for some one and complete it, he shall
page 6FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
12 A Contractor's View on FIDIC Conditions of Contract
for EPC Turnkey Projects - ICLR (1999) Vol 16.
13 The banks involved were the African Development
Bank, Asian Development Bank, Black Sea Trade and
Development Bank, Caribbean Development Bank,
European Bank for Reconstruction and Development,
Inter-American Development Bank, International Bank
for Reconstruction and Development (the World Bank),
Islamic Bank for Development, Nordic Development
Fund.
14 There is a useful supplement prepared by FIDIC
to the MDB version which acts as a user's guide. This
includes a section on Changes to the Construction
Contract General Conditions.
give him a fee of two shekels in money for each sar of surface."
Thus the amount to be paid was clear and, given that the punishment for36.
violating most of the provisions of the code was death, it might be
presumed that most builders were paid, provided the house was
constructed properly. However, unlike the FIDIC form, the rule does not
say when the payment has to be made.
Clauses 15 and 16 deal with termination by the Employer and suspension37.
and termination by the Contractor, whilst clause 17 deals with risk and
responsibility. This includes at sub-clause 17.6 the exclusion of the
liability of both Contractor and Employer:
"for loss of use of any works, loss of profit, loss of any contract or
for any indirect or consequential loss or damage which may be
suffered by the other party in connection with the contract".
Clause 17 includes a cap on the liability of the Contractor to the Employer,38.
something which was again new to the 1999 FIDIC form.
Clause 19 deals with force majeure. As is discussed below, whilst most39.
civil codes make provision for force majeure, at common law, force
majeure is not a term of art and no provision will be implied in the
absence of specific contractual provisions.
Finally clause 20 deals with claims, and again this is something I deal with40.
below.
One of the key aims of the FIDIC organisation has been to achieve a41.
degree of balance between the interests of the contractor and employer.
Many felt that this had been achieved. For example, A. Sandberg, then
head of Legal Services at Skanska, said of the 1999 Rainbow Suite that:
"The great benefits of the present Red and Yellow Books are that
the balance of risks and responsibilities as well as allocation of
duties and authorities between the parties generally is accepted by
both employers and contractors. The FIDIC Conditions have
therefore become the baseline conditions for a fair international
construction contract."12
Note that he said this in 1999.42.
The MDB version of the new Red Book
The MDB version of the FIDIC Red Book evolved out of the fact that the43.
world's banking community tended to adopt the FIDIC Conditions as part
of their standard bidding documents. However when doing this, the banks
also introduced their own amendments. There were inevitable differences
between these amendments and the banks realised there would be a
benefit in having their own uniform conditions. This has resulted in a
"harmonised edition" which was the product of preparation by the FIDIC
Contracts Committee and by a group of participating banks.13
The first
harmonised edition of the 1999 Conditions was published in May 2005, only
to be amended in March 2006.14
The clear aim is that all MDB-funded
contracts will incorporate these amendments.
There are a number of differences between the FIDIC form and the MDB44.
version. Perhaps the most notable (or indeed controversial) changes are
those to be found in clause 3. These include the following additional
clause:
"The Engineer shall obtain the specific approval of the Employer
page 7FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
before taking action under the following sub-clauses of these
conditions:
Sub-clause 4.12: Agreeing or determining an extension of time and/(a)
or additional costs.
Sub-clause 13.1: Instructing a Variation; except: (i) in an(b)
emergency; or (ii) if such a variation would increase the Accepted
Contract Amount by less than the percentage specified in the
Contract Data.
Sub-clause 13.3: Approving a proposal for variation submitted by(c)
the contractor in accordance with Sub-clauses 13.1 or 13.2.
Sub-clause 13.4: Specifying the amount payable in each of the(d)
applicable currencies."
Further, under the 1999 edition:45.
"The Employer undertakes not to impose further constraints on the
Engineer's Authority, except as agreed with the Contractor."
Whilst under the MDB version, this is replaced with:
"The Employer shall promptly inform the Contractor of any change
to the authority attributed to the Engineer."
Perhaps the first of these changes is the most controversial. Under the46.
1999 edition, the Employer actually undertook not to change the basis of
the Engineer's authority without the agreement of the Contractor. This has
been changed to give the Employer the right to make whatever changes it
likes to the basis of the Engineer's authority. The only restriction is that it
must inform the Contractor of these changes. There is no longer any
requirement that the Contractor agrees to these changes.
The view of contractors is that this is a retrograde step permitting47.
unilateral alteration of the engineer's authority, and thus potentially
impacting upon the balance of risk.15
There are a number of other features of note within the MDB version.48. 16
These include apparently simple changes such as that from "reasonable
profit" to "profit". The reason for this is that by sub-clause 1.2(e) that
profit is fixed at 5% unless otherwise agreed.
In sub-clause 2.4, the four circumstances under which an Employer is49.
entitled to make a call under the performance security have been
deleted. There is no equivalent replacement and now the Employer is able
to make a call in respect of amounts to which it is entitled under
contract. Arguably, this represents an extension of the Employer's rights,
although it might be felt that the reference to the ICC Uniform Rules
provides an adequate safeguard for the employer, the financing
institutions and the Contractor.
The amendments to sub-clause 4.12 also proved to be controversial.50.
Sub-clause 4.12 provides that a Contractor may be entitled to an
extension of time in respect of unforeseeable physical conditions. Under
the May 2005 version of the MDB harmonised edition, sub-clause 1.1.6.8
defined unforeseeable as meaning:
"Not reasonably foreseeable and against which adequate
preventative precautions could not be taken by an experienced
contractor by the date for the submission of the Tender."
15 Richard Appuhn and Eric Eggink, The Contractor's
View on the MDB Harmonised Version of the new Red
Book (2006) ICLR 4.
16 Not all the differences are set out in this paper.
page 8FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
The European International Contractors (EIC) group criticised the addition,51.
as underlined in the above extract, referring to it as a "twist of Catch-22
proportions",17
and the editors of the International Construction Law
Review indicated that the change calls for "rational justification and
explanation of its practical application".18
It could be argued that the addition to the clause serves to add clarity to52.
the original definition, no more. For example, in demonstrating that the
physical conditions would have been unforeseeable to an experienced
contractor, the Contractor would already have to show that there were no
adequate precautions which could have reasonably been taken. However,
the EIC raised three questions over the amendment:
Is it the intention that contractors should make allowances for(i)
precautionary steps for unforeseeable events and circumstances?
Is it the intention of the MDB harmonised edition to shift the balance(ii)
of risk under the contract for unforeseeable events to the
contractor?
How can you take reasonable precautions against an event which is(iii)
not reasonably foreseeable?
The answer to the first question does appear to be yes, which may well53.
have had an impact on the tender returns. If the answer to the second
question is yes then this would suggest that the contract drafters are
moving towards the risk profile adopted under the Silver Book. A simple
comparison between the two forms of wording seems to make it clear that
this is not the intention behind the new clause.
It was the third question that demonstrated the real difficulty with the54.
new wording and this may have been one factor that led to the revision
being dropped. However, as there have been two versions, care should be
taken to check which definition has been adopted.
The 10 particular locality sub-clauses, 6.12 - 6.22, form part of the MDB55.
contract. These are likely to be reflected in local labour and health and
safety legislation.
Under sub-clause 8.1, the project cannot commence until the Contract56.
Agreement has been signed by both parties, the Contractor has reasonable
proof that the Employer can fund the works and the Contractor has
received any advanced payments it was entitled to.
However, the changes to sub-clause 12.3 are pro-Employer. Sub-clause57.
12.3 sets out circumstances when the Contractor can claim enhanced
rates. In the MDB version, the rates shown in sub-paragraphs (a)(i) and (ii)
(which can trigger the use of rates other than those specified in the
Contract) have been increased from 10% and 0.01% to 25% and 0.25%
respectively. This seems to be a pro-Employer change as the increase in
the threshold amount is of no benefit to the Contractor.
Conversely, the threshold as to when any repayment of the advance58.
payment (if any) must be made has been increased from 10% of the
Accepted Contract Amount to 30%, a more Contractor-friendly change.
Some clauses in the MDB version are entirely new. One such is 15.6 which59.
deals with corrupt or fraudulent practice. Sub-clause 15.6 states that:
"If the Employer determines that the Contractor has engaged in
corrupt, fraudulent, collusive or coercive practices, in competing
for or in executing the Contract, then the Employer may, after
17 Richard Appuhn and Eric Eggink The Contractor's
View on the MDB Harmonised Version of the New Red
Book [2006] ICLR 4
18 Introduction to Volume 23 of the ICLR, January
2006
page 9FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
giving 14 days notice to the Contractor, terminate the Contractor's
employment under the Contract and expel him from the Site, and
the provisions of Clause 15 shall apply as if such expulsion had been
made under Sub-Clause 15.2 [Termination by Employer].
Should any employee of the Contractor be determined to have
engaged in corrupt, fraudulent or coercive practice during the
execution of the work then that employee shall be removed in
accordance with Sub-Clause 6.9 [Contractor's Personnel].
For the purposes of this Sub-Clause:
See Notes for definitions of corrupt, fraudulent, collusive or
coercive practices for each Participating Bank."
The sub-clause will be slightly different for each Participating Bank as60.
each has its own definition of corrupt, fraudulent, collusive or coercive
practice. The sub-clause has some similarities with sub-paragraph (f) of
sub-clause 15.6; however, unlike sub-clause 15.1(f), here 14 days' notice
must be given. This new sub-clause is also more widely drawn, for
example making it clear that the tendering process must be fair as it
refers to both "competing for" and "executing" the Works. In the case of
Cameroon Airlines v Trasnet Ltd,19
an arbitration tribunal ruled that
Trasnet had to repay commission monies it had added to its tender sum the
commission monies being money paid as bribes to officials.
This extension to clause 15 is entirely in keeping with the global trend in61.
seeking to clamp down on this type of behaviour. For example, in the UK,
the Anti-Terrorism, Crime and Security Act 200120
provides that a UK
citizen can be guilty of an offence in the UK if he is involved in offering or
receiving bribes abroad, provided that what he has done would amount to
an offence in the UK.
Under sub-clause 17.6, the sub-clause has been extended to make it62.
absolutely clear that certain items, for example delay damages, are not
covered by the limitation of liability provisions.
Making a claim under the FIDIC Form - the Employer
The ability to make claims under any contract is always an area that63.
requires careful consideration. Under the FIDIC form, it is noticeable that
the Employer and Contractor are treated very differently.
Introduction - the claims mechanism
Sub-clause 2.5 of the FIDIC Conditions of Contract for Construction64. 21
provides that:
If the Employer considers himself to be entitled to any payment
under any Clause of these Conditions or otherwise in connection
with the Contract, and/or to any extension of the Defects
Notification Period, the Employer or the Engineer shall give notice
and particulars to the contractor. However, notice is not required
for payments due under Sub-Clause 4.19 [Electricity, Water and
Gas], under Sub-Clause 4.20 [Employer's Equipment and Free-Issue
Material], or for other services requested by the Contractor.
The notice shall be given as soon as practicable after the Employer
became aware of the event or circumstances giving rise to the
claim. A notice relating to any extension of the Defects Notification
Period shall be given before the expiry of such period.
19 [2004] EWHC 1829.
20 Thereby adopting the 1999 Organisation for
Economic Co-operation and Development Convention
on Combating Bribery of Foreign Public Officials in
International Business Transactions.
21 The same wording is used for the Plant and DesignBuild
Conditions.
page 10FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
The particulars shall specify the Clause or other basis of the claim,
and shall include substantiation of the amount and/or extension to
which the Employer considers himself to be entitled in connection
with the Contract. The Engineer shall then proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine (i) the
amount (if any) which the Employer is entitled to be paid by the
Contractor, and/or (ii) the extension (if any) of the Defects
Notification Period in accordance with Sub-Clause 11.3 [Extension of
Defects Notification Period].
This amount may be included as a deduction in the Contract Price
and Payment Certificates. The Employer shall only be entitled to
set off against or make any deduction from an amount certified in a
Payment Certificate, or to otherwise claim against the Contractor,
in accordance with this Sub-Clause.
The final paragraph of the conditions for EPC/Turnkey projects reads65.
slightly differently as follows:
The Employer may deduct this amount from any moneys due, or to
become due, to the Contractor. The Employer shall only be entitled to
set-off against or make any deduction from an amount due to the
Contractor, or to otherwise claim against the Contractor, in accordance
with this Sub-Clause or with sub-paragraph (a) and/or (b) or Sub-Clause
14.6 [interim payments].
The key features of this sub-clause are:66.
If the Employer considers himself entitled to either any payment orˇ
an extension of the Defects Notification period under the Contract,
the Employer or Engineer shall give notice and particulars to the
Contractor.
The notice relating to payment should be given as soon asˇ
practicable after the Employer has become aware of the event or
circumstance which gives rise to the claim.
Any notice relating to the extension of the Defects Notificationˇ
Period should be given before the expiry of that period.
The Employer must also provide substantiation including the basis ofˇ
the claim and details of the relief sought.
Once notice has been given, the Engineer shall make aˇ
determination in accordance with sub-clause 3.5.
Any amount payable under sub-clause 2.5 may be included as aˇ
deduction in the Contract Price and Payment Certificates.
The Employer cannot make any deduction by way of set-off or anyˇ
other claim unless it is in accordance with the Engineer's
determination.
Notice is not required for payments due to the Employer for servicesˇ
under sub-clause 14.19 or equipment under sub-clause 4.20.
Sub-clause 2.5 is a new "Contractor-friendly" clause. I say this because it67.
is designed to prevent an Employer from summarily withholding payment
or unilaterally extending the Defects Notification Period. One particularly
important feature can be found in the final paragraph which specifically
confirms that the Employer no longer has a general right of set-off. The
Employer can only set-off sums once the Engineer has agreed or certified
page 11FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
any amount owing to the Contractor following a claim.
The Employer should remember that in accordance with sub-cause 14.7,68.
he must pay any amount certified, even if he disagrees with the Engineer's
decision. By sub-clause 14.8, were the Dispute Adjudication Board to
decide that the Employer had not paid the amount due, the Contractor
would be entitled to finance charges.
Sub-clause 2.5 imposes a specific notice procedure on any Employer who69.
considers that it has any claims against the Contractor. Unless the
Employer follows the procedure laid down by this sub-clause, he cannot
withhold or otherwise deduct any sums due for payment to the Contractor.
The notice must be in writing and delivered in accordance with the
requirements of sub-clause 1.3. It is unclear as to whether the particulars
are required to be provided at the same time as the notice is served. The
sub-clause does not require that the particulars are provided at the same
time as no time limit or frame is imposed on either.
The Employer must give notice "as soon as practicable" after becoming70.
aware of a situation which might entitle him to payment. Therefore unlike
sub-clause 20.1, where a Contractor has 28 days to give notice, there is no
strict time limit within which an Employer must make a claim, although
any notice relating to the extension of the Defects Notification Period
must of course be made before the current end of that period. In addition
it is possible that the Applicable Law might just impose some kind of limit.
It might have been thought that one option would have been to suggest71.
that the Employer should be bound by the same 28-day limit as the
Contractor. Instead, sub-clause 2.5 provides a simpler claims mechanism
with no time bar. However, the rationale for the difference in treatment is
presumably that in the majority of, if not all, situations, the Contractor
will be (or should be) in a better position to know what is happening on
site and so will be much better placed than an Employer to know if a
claims situation is likely to arise.
The particulars that the Employer must provide are details of the clause72.
(or basis) under which the claim is made, together with details of the
relief sought. Details of any notices served by the Employer are also
required by sub-clause 4.21(f) to form part of the regular progress reports.
Under sub-clause 3.5 of the Construction and Design-Build Conditions, the73.
Engineer must first try and agree the claim. Under the EPC/Turnkey
Conditions, the primary onus to agree or determine any claims lies with
the Employer. If either party is not satisfied with the determination made
by the Engineer under sub-clause 3.5, then the resulting dispute could be
referred to the Dispute Adjudication Board under clause 20. An Employer
would therefore be advised not to deduct the amount to which he believes
he is entitled, before any such determination of the Dispute Adjudication
Board, as to do so would leave the Employer liable to a claim from the
Contractor.
What does sub-clause 2.5 cover?
There are a number of different clauses throughout the Contract which74.
provide the Employer with a right to claim payment from the Contractor.
These include:
Sub-clause 4.19 Electricity, water and gas
Sub-clause 4.20 Employer's equipment and free-issue material
page 12FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
Sub-clause 7.5 Rejection
Sub-clause 7.6 Remedial work
Sub-clause 8.1 Commencement of works
Sub-clause 8.6 Rate of progress
Sub-clause 8.7 Delay damages
Sub-clause 9.4 Failure to pass tests on completion
Sub-clause 10.2 Taking over of parts of the works
Sub-clause 11.3 Extension of defects notification period
Sub-clause 11.4 Failure to remedy defects
Sub-clause 13.7 Adjustments for changes in legislation
Sub-clause 15.3 Valuation at date of termination
Sub-clause 15.4 Payment after termination
Sub-clause 17.1 Indemnities
Sub-clause 18.1 General requirements for insurances
Sub-clause 18.2 Insurance for works and contractor's equipment
MDB harmonised edition
There are, of course, two different versions of sub-clause 2.5. There are75.
some slight differences between the FIDIC Standard Form and the version
produced by the Multilateral Development Banks known as the MDB
harmonised edition. Some of these differences are minor. For example,
the reference to Free-Issue Material has been changed to Free-Issue
Materials.
However, a more significant change has been introduced to the sentence76.
which details when the Employer must give notice. It now reads as
follows:
"The notice shall be given as soon as practicable and no longer than
28 days after the Employer became aware, or should have become
aware, of the event or circumstances giving rise to the claim. A
notice relating to any extension of the Defects Notification Period
shall be given before the expiry of such period."
The first impression given by the addition of the underlined words is that77.
they serve to tighten up the period in which the Employer must notify any
claim an impression reinforced by the apparent 28-day time limit.
However, the new words introduce an additional subjective
reasonableness test. Whereas before, all that mattered was when the
Employer actually became aware of the circumstances giving rise to a
claim, now some consideration needs to be given to when the Employer
should have realised that a claims situation had arisen.
However, in reality, save for extreme cases, little has changed. There is78.
still no time limit to serve as a condition precedent to deprive the
Employer of the opportunity to make a claim.
page 13FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
Making a claim under the FIDIC form - the contractor
Introduction - the claims mechanism
For the Contractor, it is a different story. Sub-clause 20.179. 22
states that:
"If the Contractor considers himself to be entitled to any extension
to the Time for Completion and/or any additional payment, under
any Clause of these Conditions or otherwise in connection with the
Contract, the Contractor shall give notice to the Engineer,
describing the event or circumstance giving rise to the claim. The
notice shall be given as soon as practicable, and not later than 28
days after the Contractor became aware, or should have become
aware, of the event or circumstance.
"If the Contractor fails to give notice of a claim within such period
of 28 days, the Time for Completion shall not be extended, the
Contractor shall not be entitled to additional payment, and the
Employer shall be discharged from all liability in connection with
the claim. Otherwise, the following provisions of this Sub-Clause
shall apply."
The NEC3 contains similar provisions:80.
"The Contractor notifies the Project Manager of an event which has
happened or which he expects to happen as a compensation event if
The Contractor believes that the event is a compensation event and
The Project Manager has not notified the event to the Contractor.
If the Contractor does not notify of a compensation event within
eight weeks of becoming aware of the event, he is not entitled to a
change in the Prices, the Completion Date or a Key Date unless the
Project Manager should have notified the event to the Contractor
but did not."
That said, the regime is very different between FIDIC and NEC. Under81.
FIDIC, the duty is to notify of an entitlement to additional time or money;
under NEC3 there is a duty to notify of an event.
The key features of sub-clause 20.1 are that:82.
The Contractor must give notice to the Engineer of time or moneyˇ
claims, as soon as practicable and not later than 28 days after the
date on which the Contractor became aware, or should have become
aware, of the relevant event or circumstance.
Any claim to time or money will be lost if there is no notice withinˇ
the specified time limit.
Supporting particulars should be served by the Contractor and theˇ
Contractor should also maintain such contemporary records as may
be needed to substantiate claims.
The Contractor should submit a fully particularised claim after 42ˇ
days.
The Engineer is to respond, in principle at least, within 42 days.ˇ
The claim shall be an interim claim. Further interim updated claimsˇ
are to be submitted monthly. A final claim is to be submitted, unless
agreed otherwise, within 28 days of the end of the claim event.
22 Clause 20.1 is identical in the Red, Yellow and Silver
Books, except that in the Silver Book, the Employer
performs the role of the Engineer.
page 14FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
Payment Certificates should reflect any sums acknowledged inˇ
respect of substantiated claims.
Contrary to the old FIDIC Books,ˇ 23
the notice to be served under
sub-clause 20.1 relates to claims for an extension of time as well as
claims for additional payment.
The 28-day deadline does not necessarily start on the date of the claim83.
event itself but on the date the Contractor objectively should have
become aware of the event. Whilst it is relatively easy to identify the
claim event in the case of a single event such as the issuing of engineers'
instructions or the receipt of borehole tests indicating unforeseen ground
conditions, when, however, the claim event is a continuous event, such as
unforeseeable weather over a certain period of time, it can become
extremely difficult to pinpoint the exact start of the 28-day period. The
Contractor also needs to remember that where the effects of a particular
event are ongoing then, rather unusually, the Contractor is specifically
required to continue submitting notices at monthly intervals.
As outlined above, it can immediately be seen that a different set of rules84.
apply to the Contractor than to the Employer.
Is sub-clause 20.1 a condition precedent?
Yes. Sub-clause 20.1 is a condition precedent and potentially provides the85.
Employer with a complete defence to any claim for time or money by the
Contractor not started within the required time frame.
Generally, in England and Wales, the courts will take the view that86.
timescales in construction contracts are directory rather than mandatory,
so that the Contractor should not lose its right to bring its claim if such
claim is not brought within the stipulated timescale.24
In the case of
Bremer Handelgesellschaft mbH v Vanden Avenne Izegem nv,25
however,
the House of Lords held that a notice provision should be construed as a
condition precedent, if:
it states the precise time within which the notice is to be served,(i)
and
it makes plain by express language that unless the notice is served(ii)
within that time the party making the claim will lose its rights under
the clause.
Sub-clause 20.1 plainly fulfils both these conditions as:87.
the notice of claim must be served "as soon as practicable, and not(i)
later than 28 days after the Contractor became aware, or should
have become aware, of the event or circumstance", and
"If the Contractor fails to give notice of a claim within such period(ii)
of 28 days, the Time for Completion shall not be extended, the
Contractor shall not be entitled to additional payment, and the
Employer shall be discharged from all liability in connection with the
claim."
Sub-clause 20.1 was thus clearly drafted as a condition precedent.88.
However, there is always a possibility that a court/arbitral tribunal might
decline to construe it as a condition precedent, having regard to the
particular circumstances of the matter before it and the impact of the
applicable law.
23 In the Orange Book (1995), sub-clause 20.1 only
sets a notification deadline in respect of claims for
additional payment. However, similar provisions in
respect of time-related claims can be found at subclause
8.6.
24 Temloc v Errill Properties (1987) 39 BLR 30, (CA)
per Croom-Johnson LJ.
25 [1978] 2 Lloyd's Rep. 113, (HL) per Lord Salmon.
page 15FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
Are there any ways round sub-clause 20.1?
Quite possibly not, at least in England and Wales.89.
Prevention
The concept of preventive acts is based on the universally accepted90.
provision that one is not entitled to benefit from one's own wrongs. It thus
operates to defeat claims by employers for liquidated damages if, by its
own acts or omissions, the Employer has prevented the main Contractor
from completing its work by the date for completion, and thus rendered
"time at large".
To protect its right to claim liquidated damages and to avoid the time for91.
completion to be declared "at large", the employer will therefore insert
provisions into the contract enabling the Contractor to seek an extension
of the time for completion in case the Employer is responsible for the
delay incurred by the Contractor.
The issue with conditions precedent to the Contractor's right to claim for92.
an extension of time, such as sub-clause 20.1, is that if the Contractor
fails to comply with such conditions, then its right to claim for additional
time will be forfeit, and thus the question arises as to whether the
employer will then still be able to claim liquidated damages (and arguably
rely on its own wrong).
This issue was considered in 1999 in the case of93. Gaymark Investments Pty
Ltd v Walter Construction Group Ltd in the Northern Territory of
Australia,26
where the court found that the "prevention principle" took
precedence over the notification provisions, notwithstanding the fact that
such provisions had clearly been drafted as a condition precedent. The
Employer was accordingly not allowed to claim for liquidated damages and
the Contractor not deprived of its right to claim for an extension of time
in spite of its failure to serve a valid notice.
This judgment gave rise to a long debate as to whether the same94.
principles should be applied in England and Wales and other common law
jurisdiction. Whilst some commentators argued that a similar approach
might be adopted,27
others strongly rejected the reasoning of the court in
Gaymark.28
One author submitted that the better approach for resolving the tension95.
between "time bar" clauses and the "prevention principle" would be to
accept first that the "prevention principle" is a rule of construction (as
opposed to a rule of law) and can therefore be excluded by contractual
provisions such as sub-clause 20.1, and second that the "prevention
principle" does not apply because the major cause for the Contractor's
loss in the above circumstances is the contractor's failure to operate the
contractual machinery.29
This second option was clearly accepted in 2001 by the Inner House of the96.
Court of Session of Scotland in the case of City Inns Ltd v Shepherd's
Construction,30
in which Lord MacFadyen found that there was a causal
connection between the Contractor's failure to comply with the
notification provisions of the contract and its liability to pay a sum of
money which bears no relation to the loss resulting to the Employer from
that breach of contract. Lord MacFadyen thus held that the liquidated
damages remained payable by the Contractor:
"on the basis that it is a genuine pre-estimate of the loss suffered
by the employer as a result of the delay in completion, and is not
26 (1999) 18 BCL 449, (2005) 21 Construction Law
Journal 71.
27 Keating on Building Contracts (8th edition 2006) at
paragraph 9-025.
28 Professor Ian Duncan-Wallace "Prevention and Liquidated
Damages: a Theory Too Far" (2002) 18 Building
and Construction Law, 82.
29 Hamish Lal, "The Rise and Rise of `Time-Bar'
Clauses: The `Real Issue' for Construction Arbitrators"
(2007) ICLR 118.
30 Outer House, Court of Session, CA101/00.
page 16FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
converted, by the fact that the contractor might have avoided that
liability by taking certain steps which the contract obliged him to
take, but failed to do so, into a penalty for failing to take those
steps. The fact that the contractor is laid under an obligation to
comply with clause 13.8.1 [obligation to notify], rather than merely
given an option to do so, does not in my opinion deprive compliance
with clause 13.8.1 of the character of a condition precedent to
entitlement to an extension of time. Non-compliance with a
condition precedent may in many situations result in a party to a
contract losing a benefit which he would otherwise have gained or
incurring a liability which he would otherwise have avoided. The
benefit lost or the liability incurred may not be in any way
commensurate with any loss inflicted on the other party by the
failure to comply with the condition. But the law does not, on that
account, regard the loss or liability as a penalty for the failure to
comply with the condition (The `Vainqueur José', per Mocatta J at
578, col. 2)."
The crucial fact in this case was that, under the terms of the contract,97.
but for its failure to serve a valid notice on time, the contractor would
have been in a position to claim an extension of time and therefore
defend the employer's claim for liquidated damages. The fact that it
failed to comply with this simple requirement may lead to very harsh
consequences such as the employer being able to claim liquidated
damages despite being responsible for the delay incurred by the
contractor. However, the contractor only had itself to blame for losing the
right to claim additional time.
Six years after Lord MacFadyen's decision in98. City Inns Ltd v Shepherd's
Construction, the position of the English courts with regard to the effect
of the "prevention principle" on notification clauses was also finally
clarified in the judgment of the TCC in Multiplex Construction v
Honeywell Control Systems,31
where Mr Justice Jackson held that:
"Whatever may be the law of the Northern Territory of Australia, I
have considerable doubt that Gaymark represents the law of
England... If Gaymark is good law, then a contractor could disregard
with impunity any provision making proper notice a condition
precedent. At his option the contractor could set time at large."32
The debate as to whether the decision of the court in Gaymark should also99.
be followed by the courts in England and Wales is therefore now over.
Equally importantly, Mr Justice Jackson said this about the rationale of the
condition precedent:
"Contractual terms requiring a contractor to give prompt notice of
delay serve a valuable purpose; such notice enables matters to be
investigated while they are still current. Furthermore, such notice
sometimes gives the employer the opportunity to withdraw
instructions when the financial consequences become apparent."
Judge Jackson's words were endorsed by HHJ Davies QC in the case of100.
Steria Ltd v Sigma Wireless Communications Ltd33
who said that:
"In my judgment an extension of time provision confers benefits on
both parties; in particular it enables a contractor to recover
reasonable extensions of time whilst still maintaining the
contractually agreed structure of a specified time for completion
(together, in the majority of cases, with the contractual certainty
of agreed liquidated damages, as opposed to uncertain unliquidated
31 [2007] EWHC 447 (TCC)
32 [2007] EWHC 447 (TCC) at para. 103.
33 [2008] CILL 2544
page 17FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
damages). So far as the application of the contra proferentum rule
is concerned, it seems to me that the correct question to ask is not
whether the clause was put forward originally by Steria or by
Sigma; the principle which applies here is that if there is genuine
ambiguity as to whether or not notification is a condition
precedent, then the notification should not be construed as being a
condition precedent, since such a provision operates for the benefit
of only one party..."
The condition precedent did not render time at large. A condition101.
precedent which bars a right to an extension of time if not complied with
is valid.
Are there any ways round the condition precedent?
Is there the possibility that a court/arbitral tribunal might decline to102.
construe the time bar as a condition precedent, having regard to the
particular circumstances of the matter before it and the impact of the
applicable law? The Scottish case of City Inn Ltd v Shepherd Construction
Ltd suggests there may be. The dispute related to the construction of a
hotel under a contract incorporating the JCT Standard Form (Private
Edition with Quantities) 1980 as amended. The core element of the
dispute was whether or not the contractor was entitled to an extension of
time of 11 weeks and consequently whether or not the employer was
entitled to deduct LADs. Clause 13.8 contained a time bar clause,
requiring the contractor to provide details of the estimated effect of an
instruction within ten days. Lord Drummond Young characterised the
clause thus:
"I am of opinion that the pursuers' right to invoke clause 13.8 is
properly characterized as an immunity; the defenders have a power
to use that clause to claim an extension of time, and the pursuers
have an immunity against that power if the defendants do not fulfil
the requirements of the clause."
However, the Judge also felt that an immunity can be the subject of103.
waiver. The architect and employer have the power, at least under the
JCT Standard Forms, to waive or otherwise dispense with any procedural
requirements. This was what happened here. Whilst the employer (in
discussions with the contractor) and the architect (by issuing delay
notices) both made it clear that the contractor was not getting an
extension of time, neither gave the failure to operate the condition
precedent at clause 13.8 as a reason. The purpose of clause 13.8 is to
ensure that any potential delay or cost consequences arising from an
instruction are dealt with immediately.
The point made by the Judge is that whilst clause 13.8 provides immunity,104.
that immunity must be invoked or referred to. At a meeting between
contractor and employer, the EOT claim was discussed at length. Given
the importance of clause 13.8, the Judge felt that it would be surprising if
no mention was made of the clause unless the employer, or architect, had
decided not to invoke it. Significantly, the Judge held that both employer
and architect should be aware of all of the terms of the contract.
Employers and certifiers alike will need to pay close attention to their
conduct in administering contracts in order to avoid the potential
consequences of this decision.
Good faith
Unlike England, many jurisdictions are governed by their own civil codes.105.
Whilst these codes recognise contract autonomy and allow the parties to
page 18FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
determine the terms and conditions of their contract, they will also insist
that these conditions do not contravene any mandatory provision of the
law or public policy. One such example is the concept of good faith. Many
civil codes provide that a contract must be performed in accordance with
its contents, and in a manner consistent with the requirements of good
faith. It is not always that easy to define what good faith might mean.
The English courts have said this:
"It is a principle of fundamental justice that if a promisor is himself
the cause of the failure of performance, either of an obligation due
to him or of a condition upon which his own liability depends, he
cannot take advantage of the failure."34
It is possible that the concept of good faith can help defeat the harsh106.
consequences of clause 20.1. However, the concept of time bars is also
accepted and upheld by the courts in several civil law jurisdictions,
provided they appear to be reasonable under the circumstances. As you
would expect, everything would depend on the circumstances of the case
and the conduct of both parties.
In France there is the concept of107. "abus de droit" (misuse of a right).
Under the Egyptian Civil Code, for example, the exercise of a right is
considered unlawful in the following cases:
If the sole aim thereof is to harm another person;ˇ
If the benefit it is desired to realize is out of proportion to the harmˇ
caused thereby to another person;
If the benefit it is desired to realize is unlawful."ˇ 35
Article 148 of the Egyptian Code further provides that108. "a contract must be
performed in accordance with its contents and in compliance with the
requirements of good faith".
Further, in France, where contractual time bars have been given effect by109.
the Courts provided they appear to be reasonable under the
circumstances.36
Similarly, before Egyptian courts, an agreement to a
contractual forfeiture of a right for the non-accomplishment of a certain
action within a determined period of time might still be valid and
binding.37
In practice, much will therefore depend on the circumstances of the case110.
and the conduct of both parties. The contractual obligation to deliver
timely notice of one's intention to claim additional time or money will
normally be upheld, unless the particular circumstances of the case show
that such conclusion would lead to a misuse of a right or a breach of the
parties' good faith obligations.
If therefore a Contractor is only a few days late in submitting its sub-111.
clause 20.1 notice in respect of very substantial claims and the forfeiture
of its contractual rights would result in serious financial difficulties, then
one might reasonably be entitled to argue that it would be an abus de
droit for the Employer to rely on clause 20.1. Similarly, if the Employer
has actual knowledge of the "event or circumstance giving rise to the
claim", and/or suffers no substantial harm as a result of not receiving the
Contractor's notice on time, then, having regard to its implied obligation
of good faith, the Employer may not be able to rely on sub-clause 20.1 to
defeat the Contractor's claims.
34 CIA Borcad & Panona SA v George Wimpey & Co
[1980] 1 Lloyd Rep 598
35 Article 5 of the Egyptian Civil Code. The prime
author of the Egyptian civil code, Prof. Abdel-Razzak
Al-Sanhuri had studied law in Lyon, France between
1921 and 1927, which might explain the influence of
some of the concepts of the French Civil Code such as
"abus de droit" on the Egyptian civil.
36 FIDIC, An Analysis of International Construction
Contracts, edited by Robert Knutson (2005), p.84
37 See for example Article 750 of the Egyptian Civil
Code on insurance contracts.
page 19FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
Conclusion
Therefore, as a Contractor, unless you are able to come to an agreement112.
with the Employer,38
whatever the jurisdiction it is better to serve the
notice in time. Compliance with the notice provisions is intended to be a
condition precedent to recovery of time and/or money and, without
notices, the Employer has no liability to the Contractor. Certainly parties
should treat the sub-clause in this way.
Whilst there are fundamental differences in the approach adopted by113.
common law and civil law systems in analysing time bar clauses and in
deciding whether such clauses should be given effect, the contractor will
always face a difficult battle in order to convince a judge or arbitral
tribunal not to apply the clear words of the contract. Irrespective of the
law applicable to that contract, the contractor will need to justify its
failure to serve a timely notice and/or demonstrate that given the
particular circumstances of the case, it would be unfair, inequitable or
against mandatory principles of the law for its right to claim additional
time and/or money to be forfeit.
To avoid having to put forward complex legal arguments, the prudent114.
Contractor should never assume that conflicts can be resolved informally,
and instead always take care to comply with the timescales set out in
sub-clause 20.1 and submit the required notice within the prescribed
period of 28 days.
The rationale for the difference in treatment between the Employer and115.
Contractor is that presumably in the majority of, if not all, situations, the
Contractor will be (or should be) in a better position to know what is
happening on site and so will be much better placed to know if a claims
situation is likely to arise than an Employer. Nevertheless, sub-clause 2.5
is a clear step forward for the Contractor from the 1987 Old Red Book
edition as one reason for the introduction of the clause was, as noted
above, to prevent an employer from unilaterally withholding payment.
There is still a real danger that a Contractor cannot claim for an extension116.
of time or loss and expense simply because it has forgotten to issue an
appropriate contractual notice within the time specified in the contract.
Accordingly, contractors and sub-contractors should carefully check their
contracts when entering into them in order to see whether there are any
time bars. On the other hand, of course, employers may seek to include
time bars more frequently. It gives them the greater confidence in the
outturn costs as there would then be an obligation on the contractor to
put an Employer on notice, such that the employer would then have the
option to withdraw an instruction or attempt to mitigate the costs and
delays.
Construction contracts like the NEC3 and FIDIC forms contain clauses that117.
bar Contractors' claims that are not made on time. Sometimes a claim is
on time but challenged because it was not made in the specified form or
with the required information. A recent shipping case Waterfront Shipping
Company Ltd v Trafigura AG39
confirms the courts' willingness to strike
down otherwise valid claims if time bar provisions are not complied with.
Delays occurred and the contract required the Charterer to compensate
the Owner for such delays if the Owner made a claim within 90 days after
completion of discharge. However, the Owner's claim failed because:
The contract expressly required the claim to be accompanied by the(i)
vessel's pumping records signed by one of its officers and a
representative of the terminal or the Charterer. The records were
38 There is anecdotal evidence on certain NEC3
projects of 30 or 40 notices being served in one day
and it is clearly in the interests of any project that
the parties concentrate on getting the project finished
rather than dealing with claims. However it is only in
the interests of the Contractor if he has an agreed on
how he is to proceed with claims.
39 AG [2007] EWHC 2484 (Comm)
page 20FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
important because the Charterer was only liable for the discharge
delay if the Owner's vessel had pumps that met the required
pressure. It was not disputed that they did, but the records that the
Owner provided were unsigned;
This non-compliance was not so minor as to be irrelevant given the(ii)
clear requirement for signatures. The court held that the signatures
were important to confirm the accuracy, authenticity and
provenance of the pumping records; and
It did not matter that the Charterer had received pumping records(iii)
from its own representative within the 90 day period. A key purpose
of the time bar provisions was that the Charterer was presented with
documentation by the Owner that was sufficient in itself for the
Charterer to evaluate the claim without needing to consider other
documents.
In a construction context:
Parties should take care when concluding contracts to check any(i)
time bar clauses governing claims they might make;
Parties should appreciate the risks they then run of not making a(ii)
claim (even if to maintain goodwill) unless the other party agrees to
relax the requirements or clearly waives them. Of course, time bar
clauses, if cautiously operated, may generate a proliferation of
claims, which may test the partnering ethos of forms such as the
NEC3;
The courts see the benefits of time bar provisions and support their(iii)
operation. A tribunal might bar an entire claim for what seems like
a technical reason (by which time it will usually be too late to make
a new, compliant, claim); and
It may be that non-compliance with a specific requirement (e.g. that(iv)
a notice should be "communicated separately from other
communications", as per the NEC3 form) would not be so minor that
it might be ignored. Nor should claimants necessarily rely upon the
other party already having the information they are required to
provide.
The Future - the new FIDIC Form
On 13 September 2007 in Singapore, FIDIC launched a new form of118.
contract for Design Build and Operate ("DBO") projects. FIDIC intend to
publish a formal First Edition towards the end of 2008. The publication of
the new contract, being as it is the first major standard form for DBO
projects, is of considerable interest of itself. However, examination of
the new clauses bears a wider interest as it may reveal the direction FIDIC
is looking to move towards in respect of its suite of contracts as a whole.
The new draft contract retains the standard FIDIC 20 Clause format and is119.
intended to supplement the existing forms of contract. The new DBO form
will be known as the "Gold Book". This is probably because many of the
provisions in the contract have been adapted from the existing Yellow
Book. Indeed, the need for the DBO form arose out of recognition by
FIDIC that for concession contracts in the transport and water/waste
sectors, the market typically used the existing FIDIC Yellow Book with
operations and maintenance obligations tagged on. FIDIC recognised that
this was unsatisfactory and prepared the new form in order to achieve a
degree of uniformity, and therefore it is hoped, a higher degree of
page 21FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
certainty.
Under the DBO form, the Contractor (who, given the size of these120.
projects, will typically be in the form of joint venture or consortium) will
be responsible for:
designing and constructing the works during the design-build period;(i)
and
operating and maintaining the facilities for a 20 year period once the(ii)
facility has been handed over with the issue of the Commissioning
Certificate.
However, the Contractor will have no responsibility for the financing and121.
ultimate commercial success of the project.
Dispute resolution, time bars and early warning notices
Given FIDIC's stated desire for conformity, the changes to the dispute122.
resolution provisions to be found at clause 20 are of particular interest as
it is entirely possible that they will lead to amendments to the other
existing FIDIC forms. In this regard, it is important to note that the
difference in the way in which Employer and Contractor claims are
treated remains. Clause 20 refers to Contractor claims, whereas claims
made by the employer are dealt with by clause 2.5. Therefore, the
contractor remains bound by the condition precedent to be found in
clause 20.1 whereby it must give notice of any event or circumstance
giving rise to a claim "not later than 28 days after the Contractor became
aware, or should have become aware, of the event or circumstance"
giving rise to a right to claim. As we have discussed, in contrast, where
the Employer has a claim, it must give notice "as soon as practicable"
after it becomes aware of the event or circumstance giving rise to that
claim.
On the other hand, the obligation set out by clause 8.4 is on both parties.123.
The clause introduces, for the first time in a FIDIC contract,40
a
requirement that both Employer and Contractor "endeavour to" advise
the other of any circumstances of which they are aware which may
adversely affect the project, e.g. increase the Contract Price or cause
delay.
Therefore contractors will be interested by the new words, included in124.
clause 20.1(a), which represent a softening of the condition precedent.
Clause 20.1(a) now enables a Contractor to submit to the dispute board,
the details of any circumstances which may justify the late submission of
a claim. The clause provides that if the dispute board considers that the
circumstances are such that the late submission was "acceptable", the
dispute board may override the condition precedent. Some may feel that
in proposing this charge FIDIC are merely reflecting the reality of the
majority of DAB decisions. No definition of "acceptable" has been given,
so a contractor is still best advised to operate as if the 28-day limit
strictly applies. However, there is now some degree of latitude.
In addition, a further new clause, 20.4 headed "Avoidance of Disputes",125.
has been introduced. This clause states as follows:
"If at any time the Parties so agree, they may jointly refer a matter
to the DAB in writing with a request to provide assistance and/or
informally discuss and attempt to resolve any disagreement that
may have arisen between the Parties during the performance of the
Contract. Such informal assistance may take place during any40 It is of course familiar in the NEC3 form.
page 22FIDIC an overview: the latest developments, comparisons, claims and a look into the future
www.fenwickelliott.co.uk
meeting, site visit or otherwise. However, unless the Parties agree
otherwise, both Parties must be present at such discussions. The
Parties are not bound to act upon any advice given during such
informal meetings, and the DAB shall not be bound in any future
Dispute Resolution process and decision by any views given during
the informal assistance process, whether provided orally or in
writing.
If a dispute of any kind whatsoever arises between the Parties,
whether or not any informal discussions have been held under this
Sub-clause, either Party may refer the dispute in writing to the DAB
according to the provisions of Sub-Clause 20.5..."
Therefore, it can be seen that FIDIC is following the worldwide trend to126.
encourage dispute avoidance. This is a trend to be found in Abu Dhabi
where the Emirate has finally introduced a form of the 1999 Red and
Yellow Books.41
Thus for the first time the Middle East, having for many
years resisted such a change in favour of the 1987 Old Red Book FIDIC 4th
Edition, has recognised and adopted the Dispute Board concept. And
whilst clause 20 does not go as far as the Gold Book, the standard
amicable settlement clause to be found at clause 20.5 has been expanded
to include the right, at any time, for either party to refer a dispute to
independent management review, those senior managers then being
required to endeavour to reach a settlement.
Clauses 17-19: risk and insurance
There have also been a number of changes made to clauses 17-19. The127.
insurance clause has been moved to 19, whilst clause 17 (formerly risk and
responsibility) has been renamed "risk allocation". The "force majeure"
clause that was previously clause 19 has been dropped and replaced with
a new clause 18 headed "exceptional risks". The main change in this
revised approach to the way in which risks and insurance are treated has
been to set out in a much more detailed and precise way, the risks which
the Employer and Contractor are to bear. That said, the definition of
"exceptional risk" is very similar to the definition of force majeure
previously to be found in clause 19 of the 1999 forms. Now, clause 17
details risks borne by each party and takes care to differentiate between
the risks during the two project periods. If risks occur which are either
exceptional or the responsibility of the Employer, the Contractor is
entitled to an extension of time and payment of costs during the designbuild
period. However, as the operation service period cannot be
extended, naturally enough, the contractor will only receive costs if these
risks occurred during that time.
Conclusions
At the time of writing, the new FIDIC Gold Book has not yet been formally128.
issued, so it may be that some of these changes outlined above, will not
actually be used in the final version. However if they are, the apparent
movement away from the strict condition precedent requirement and the
introduction of a form of conciliation seem to represent an
acknowledgement by the FIDIC of the potential advantages to be gained
by adopting a collaborative approach to dispute resolution.
Jeremy Glover
September 200841 The 2007 Abu Dhabi Executive Affairs Authority
General Conditions of Contract which has been
introduced for construction projects undertaken in Abu
Dhabi on behalf of public entities.