FIDIC Forms of Contract

Name: FIDIC Forms of Contract
Price: 156.38 USD
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ISBN: 9781405120319

ISBN-10: 1405120312

ISBN-13: 9781405120319

Edition: 3rd 2005 (Revised)

Authors: Nael G. Bunni

List price: $240.00

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Description:

In September 1999, FIDIC introduced its new Suite of Contracts, which included a "new" Red, Yellow, Silver and Green forms of contract. The "new" Red Book was intended to replace the 1992 fourth edition of the Red Book, with the ambition that its use would cease with time. This ambition has not materialised and is unlikely to do so in the future. Despite the importance of the 1999 Forms, there has been very little published on the new concepts adopted in them and how they interact with the previous forms. This important work considers these aspects together with the many developments affecting the fourth edition of the Red Book that have taken place since 1997, when the second edition of…

Book details

List price: $240.00
Edition: 3rd
Copyright year: 2005
Publisher: John Wiley & Sons, Incorporated
Publication date: 6/17/2005
Binding: Hardcover
Pages: 872
Size: 7.25" wide x 10.25" long x 1.75" tall
Weight: 4.092
Language: English




Background and Concepts of the Red Book;



Background of the Red Book



The ACE Form



The First Edition of the Red Book



The Second and Third Editions of the Red Book



The Fourth Edition of the Red Book



The 1996 Supplement to the Red Book



Concepts of the Red Book



The New Suite of FIDIC Contracts



The Red Book is based on a domestic contract



Introduction



Diversity of legal systems



The applicable law in international construction



The applicable law of the contract



Law governing procedure



Law governing enforcement of awards



Grouping of the contemporary legal systems



The Romano-Germanic group



Sources of law in the Romano-Germanic group



Legal authoritative writing



Areas of the law affecting construction in the Romano-Germanic group



The common law group



Sources of law in the common law group



Areas of the law affecting construction in the common law group



The law in Islamic countries



Sources of Islamic law



Legal concepts based on the common law system



The law applicable to the contract



Conflict



Some specific concepts under the common law



Substantive law and procedural law



Legislation, common law and equity



Tort



Contract ï¿½ general principles



Prerequisites of a contract



Limitation periods



Privity of contract



Performance of a contract



The contents of a contract



Remedies for breach of contract



Exclusion clauses



The responsibility to complete



Drafting principles



The concept of a trusted independent engineer



Introduction



FIDIC's Statutes and By-Laws and the independent engineer



FIDIC's Code of Ethics



FIDIC's Quality-Based Selection, 'QBS'



Other suppliers of consulting services



Services provided by the consulting engineer



Counselling services



Pre-investment studies



Design, preparation of documents and supervision



Specialised design and development services



Project management



Programme manager



Independence



A traditional re-measurement contract



Factors governing choice of contract



The allocation of essential functions



The allocation of the function relating to finance



The allocation of the functions of design and construction



The allocation of risk, quality control and the method of pricing and payment



Re-measurement contracts



The Red Book is a re-measure contract



Contracts with a bill of quantities



Contracts with a schedule of rates



Cost-reimbursable contracts



Lump sum contracts



The Supplement to the Fourth Edition of the Red Book, Section B



Main Features of FIDIC's Form for Payment on a lump sum basis



Sharing of risks



Introduction



The definition of 'risk'



Measurement of risk



Risk management



Allocation of risk and their management



Allocation of Risks in the Red Book



Responsibility and Liability



Indemnity and Insurance



The concepts in practice



The Red Book in use



Areas of conflict



A relationship of trust



The role of the engineer



Avoidance of risk



The design function



Absence of a legal system



Distrust of changes



Legal questions



EIC/FIDIC survey of 1996



A brief summary of Part I



The Fourth Edition: A Commentary



The revisions - purposes and consequences



Introduction



Clause 1



Definition of 'Engineer' under group (a



Definition of 'tests on completion'



Definitions under group (e



Definitions under group (f



Definitions under group (g



Definition of 'approved'



Clause 2



Requirement for consultation



Responsibility for delegation



Requirement for writing



Express requirement for impartiality



Sub-clause 5.2



Sub-clauses 6.1, 6.4 and 65



Clause 7



Clause 8



Clause 10



Sub-clause 12.2



Clause 13



Sub-clauses 14.1 and 14.3



Clause 15



Clause 19



Clause 20



Clause 21



Clause 23



Clause 25



Clause 27



Clause 28



Clause 30



Clause 34 and 35



Sub-clause 36.5



Clause 37



Clause 40



Clause 41



Sub-clause 42.3



Clause 44



Clause 46



Clause 51



Sub-clause 52.3



Clause 53 and 54



Sub-clause 57.2



Clause 60



Sub-clauses 65.4 and 66.1



Clause 67



Clause 69



Other changes made in the 1992 Reprint



Concluding remarks



The Fourth Edition in Practice



Role of the engineer



Introduction



The engineer as a designer



The engineer as the employer's agent



Authority and duties of the engineer



The engineer's proactive duties and authority



The engineer's reactive duties and authority



The engineer's passive duties and authorities



The engineer as a supervisor



The engineer as certifier



The engineer as adjudicator or quasi-arbitrator



Concluding remarks



Responsibility and liability of the engineer



Introduction



Responsibility of the engineer towards the employer



Responsibility of the engineer towards the contractor



In the common law countries



In the Romano-Germanic system



The responsibility of the engineer towards third parties (other than the contractor



The responsibility of the engineer towards society; employees; and the engineer himself



Liability in construction



Levels of Liability



The employer's obligations



Introduction



Identification of specific elements of the project



Appointment of engineer



Possession of site



To provide instructions as and when they are required



The employer is to refrain from taking any action which would impede or interfere with the progress of the works



The employer if to supply materials and carry out works if these form part of the work as defined in the contract



The employer is to nominate specialist sub-contractors and suppliers as and when they are required



To permit the contractor to carry out the whole of the works



To make payments and to make them on time



Additional obligations for the employer under the Fourth Edition of the Red Book



The contractor's obligations



Introduction



The contractor's obligations during the tendering stage



The contractor's obligations following the letter of acceptance and during the construction stage up to substantial completion



Finalising documentation required prior to commencement of the works



Construction and completion of the works with due diligence and within the time for completion



Use of materials, plant and workmanship



Provision of securities, indemnities and insurances



Supply of information, notices or alerts



Performance of certain administrative functions



Contractorï¿½s obligations after substantial completion of the works



Risks, liabilities, indemnities and insurances



Introduction



The Red Book provisions relating to risk, responsibility, liability, indemnity and insurance



Clause 20 of the Red Book ï¿½ '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'



Sub-clause 20.1: care of works



Sub-clause 20.2: responsibility to rectify loss or damage; and sub-clause 20.3: loss or damage due to employer's risks



Sub-clause 20.4: the employer's risks



Clause 65 of the Red Book (sub-clauses 65.1 to 65.8) ï¿½ special risks



Clause 21 of the Red Book ï¿½ insurance



Importance of adequacy of cover



Period of insurance and extent of cover



Joint names



Scope of insurance cover



Provisions for payment in foreign currency



Provision for deductibles



Clause 22 of the Red Book ï¿½ indemnity for damage to persons and property other than the works



Clause 23 of the Red Book ï¿½ third party insurance



Clause 24 of the Red Book ï¿½ injury to workmen and insurance



Clause 25 of the Red Book ï¿½ general insurance requirements



Part II of the Red Book ï¿½ insurance arranged by the employer



Definitions



Performance and other securities



Introduction



The spectrum of securities



Types of securities



Characteristics of performance bonds and guarantees



Payment guarantees



Performance bonds



Demand guarantees



The ICC Uniform Rules for Demand Guarantees



Uniform Rules for Contract Bonds



Insurance against unfair calling



Performance securities under the Red Book



Examples of securities provided



Other securities associated with a construction contract



Bid bonds or guarantees



Advance payment guarantees



Retention money bonds



Maintenance or defects liability bonds



Company suretyship



Concluding remarks



Claims and counterclaims



Introduction



Definition and legal basis of claims and counterclaims



Claim based on grounds of breach of contract



Variations



Measurement changes



Adverse physical obstructions or conditions



Employer's risks



Compliance with statutes, regulations, price fluctuations, currency and other economic causes



Defects and unfulfilled obligations



Failure to commence, delays, suspension of work, release from performance, default and termination



Other miscellaneous specified events



Claim based on grounds of breach of contract



Procedure for claims for additional payment ï¿½ clause 53



Procedural steps



Records



The presentation of claims



Quantum



Heads of claim



The global approach



Failure to follow the claims procedure



Concluding remarks



Delay in completion and claims for extension of time



Time is of fundamental importance



Clauses 43, 44, 46, 47 and 48 of the Red Book



Relevant clauses of the Fourth Edition of the Red Book to an extension of time under Clause 44



Programming



Concurrent delays



Claims for both extension of time & money



Prolongation



Disruption



Liquidated damages



Liquidated damages and penalties



The Society of Construction Law 'Delay and Disruption Protocol'



Certificates and payments



Introduction



Interim payment certificates



Taking-over certificate



Defects liability certificate



Final payment certificate



The engineer is to certify a valuation at date of termination



Common requirements



Late certification



Disputes settlement by arbitration



Introduction and background



Advantages of arbitration



What is a dispute?



What is arbitration?



The arbitration agreement



Sources of law in arbitration



General



The arbitration agreement as a source of law



Practice and custom



The arbitrator



The arbitration agreement under clause 67 of the Red Book



Procedure under clause 67



The 1996 supplement to the Fourth Edition of the Red Book



The ICC Rules of Arbitration



The ICC Rules



The advantages of the ICC Rules



Some constructive criticism



Why does arbitration in construction disputes continue to lose favour?



Concluding remarks



Amicable settlement using alternative dispute resolution



Introduction



Methods of dispute settlement



Direct negotiation



Negotiators



Distinguishing features of direct negotiation



When should negotiation be used and what are the steps?



Mediation



Conciliation



What is conciliation?



Why conciliation?



When should conciliation be used?



Who should be a conciliator?



Who should attend the conciliation?



The conciliation process



Mini-trial procedure



Dispute board, dispute review board and dispute adjudication board



Adjudication



The ICC Rules for amicable dispute resolution



The rules



Fees and costs



General provisions



Pre-arbitral referee procedure



The ICC Rules for expertise



The Rules for expertise



Functions of the ICC Centre for Expertise



Concluding remarks



Other Documents Related to the Red Book



FIDICï¿½s other forms of contract



Introduction



The Yellow Book, third edition



Background



Differences in the nature of civil engineering and E & M engineering projects



Essential features of the Yellow Book



The Orange Book, first edition



Background



Differences in the nature of the Red and Yellow Books on the one hand and the Orange Book on the other



The conditions of subcontract for works of civil engineering construction



Format



Clause 1, definitions and interpretation



Clause 4, 'main contract'



Clause 13 and 15, 'indemnities; insurances'



Clause 16, 'payment'



Clause 19, 'settlement of disputes'



Other publications of FIDIC



The 1999 Red Book; The 1999 Yellow Book; The 1999 Silver Book; The 1999 Green Book; Dispute Boards



The 1999 FIDIC suite of contracts



Introduction



Differences in format



Differences in concept



The 1999 Green Book



The 1999 Red Book



Introduction



The 1999 Red Book: concepts and content



The 1999 Red Book: new concepts



Sub-clause 1.12: confidential details



Sub-clause 2.4: employer's financial arrangements



Sub-clause 2.5: employer's claims



Clause 3: the engineer



Sub-clause 4.1(c): fitness for purpose



Sub-clause 4.2: performance security



Sub-clause 4.12: unforeseeable physical conditions



Sub-clause 4.21: Progress reports



Sub-clause 13.2: value engineering



Sub-clause 14.7: payment



Sub-clause 14.8: delayed payment



Sub-clause 15.5: employer's entitlement to termination



Clause 17: risk and responsibility



Sub-clause 17.6: limitation of liability



Clause 18: insurance



Clause 19: force majeure



Clause 20: claims



Clause 20:Sub-clauses 20.2 to 20.4 ï¿½ Appointment of the dispute adjudication board; failure to agree dispute adjudication board; and obtaining dispute adjudication Board's decision



Some highlights of the 1999 Red Book



Sub-clause 1.1.4.3: cost



Clause 2: the employer



Clause 4: the contractor



Clause 6: Staff & Labour



Clause 7: Plant, Materials and workmanship



Clause 8: commencement, delays and suspension



Clause 9: tests on completion



Clause 10: employer's taking over



Clause 11: defects liability



Clause 12: measurement and evaluation



Clause 13: variations and adjustments



Clause 14: contract price and payment



Clause 15: Termination by employer



Clause 16: Suspension and termination by contractor



Clause 20: sub-clauses 20.7 ï¿½ Failure to comply with dispute adjudication board's decision



Guidance for the preparation of particular conditions



The 1999 Yellow Book



Introduction



Tendering under, and using, the 1999 Yellow Book



The 1999 Yellow Book: The employer's requirements



Sub-clause 1.1.3.4 'tests on completion'



Sub-clause 1.1.3.6 'tests after completion'



Sub-clause 1.1.6.7 'site'



Sub-clause 1.1.6.9: definitions ï¿½ 'valuation'



Sub-clause 1.5: general provisions ï¿½ 'priority of documents'



Sub-clause 1.8: 'care and supply of documents'



Sub-clause 1.9: General provisions ï¿½ 'errors in the employer's requirements'



Sub-clause 1.11: general provisions ï¿½ 'contractor's use of employer's documents'



Sub-clause 1.13: general provisions ï¿½ 'compliance with laws'



Sub-clause 2.1: the employer ï¿½ 'right to access to the site'



Sub-clause 4.1: the contractor ï¿½ 'contractorï¿½s general obligations'



Sub-clause 4.6: The contractor ï¿½ 'co-operation'



Sub-clause 4.7 'setting out'



Sub-clause4.18: the contractor ï¿½ 'protection of the environment'



Sub-clause 4.19: the contractor ï¿½ 'electricity, water and gas'



Sub-clause 4.20: the contractor ï¿½ 'employer's equipment and free-issue material'



Sub-clause 5.1: design ï¿½ 'general design obligations'



Sub-clause 5.2: Design - 'Contractorï¿½s Documents'



Sub-clause 5.4: Design - 'Technical Standards and Regulations'



Sub-clause 5.5: Design - 'Training'



Sub-clause 5.6: Design - 'As-Built Documentsï¿½



Sub-clause 5.7: Design - 'Operation and Maintenance Manuals'



Sub-clause 6.1: Staff and Labour - 'Engagement of Staff and Labour'



Sub-clause 6.6: Staff and Labour - 'Facilities for Staff and Labour'



Sub-Clause 7.4 'Testing'



Sub-clause 7.8: Plant, Materials and Workmanship - 'Royalties'



Sub-clause 8.2 'Time for Completion'



Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'



Sub-clause 9.1: Tests on Completion - 'Contractorï¿½s Obligations'



Sub-clause 10.2 'Taking Over of Parts of the Works'



Sub-clause 11.1 'Completion of Outstanding Works and Remedying Defects'



Sub-clause 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'



Comparison between the 1999 Yellow Book and the 1999 Red Book



Clause 1: General Provisions



Clause 3: The Engineer



Sub-clause 4.1: The Contractor- 'Contractorï¿½s General Obligations'



Sub-clause 4.4 'Subcontractors', sub-clause 4.5 'Nominated Subcontractors' and sub-clause 4.6 'Co-operation'



Clause 5: Design



Sub-clause 7.5: Plant, Materials and Workmanship - 'Rejection'



Sub-clause 8.3: Commencement, Delays and Suspension - 'Programme'



Sub-clause 9.1: Tests on Completion ï¿½ 'Contractor's Obligations'



Sub-clauses 11.2 and 11.6: Defects Liability ï¿½ 'Cost of Remedying Defects and Further Tests' and 'Further Tests'



Clause 12: Tests after Completion



Sub-clauses 13.1; 13.2; and 13.3: Variations and Adjustments ï¿½ 'Right to Vary', 'Value Engineering', and 'Variation Procedure'



Sub-clauses 14.1; 14.3; and 14.9: Contract Price and Payment ï¿½ 'The Contract Price'; 'Application for Interim Payment Certificates' and 14.9 'Payment of Retention Money'



Sub-clause: 17.5: Risk and Responsibility - 'Intellectual and Industrial Property Rights'



Clause 20.2: Claims, Disputes and Arbitration ï¿½ 'Appointment of the Dispute Adjudication Board'



The 1999 Silver Book



Introduction



The 1999 Silver Book: The Shifted Risks



Sub-clause 3.1: The Employerï¿½s Administration ï¿½ 'The Employerï¿½s Representativeï¿½



Sub-clause 3.5: The Employer's Administration - 'Determinations'



Sub-clause 4.7: The Contractor ï¿½ 'Setting Out'



Sub-clause 4.12: The Contractor ï¿½ 'Unforeseeable Difficulties'



Sub-clause 5.1: Design ï¿½ 'General Design Obligations'



Sub-clause 5.8: Design ï¿½ 'Design Error'



Sub-clause 8.4: Commencement, Delay and Suspension ï¿½ 'Extension of Time for Completion'



Sub-clause 17.3: Risk and Responsibility ï¿½ 'Employerï¿½s Risks'



Sub-clause 20.1: Claims, Disputes and Arbitration ï¿½ 'Contractorï¿½s Claims'



The 1999 Silver Book: Concepts and Content



Clause 1: General Provisions



Clause 3: the Employer's Administration



Clause 4: The Contractor



Clause 5: Design



Clause 6: Staff and Labour



Clause 7: Plant, Materials and Workmanship



Clause 8: Commencement, Delays and Suspension



Clause 9: Tests on Completion



Clause 10: Employer's Taking Over



Clause 11: Defects Liability



Clause 12: Tests after Completion



Clause 13: Variations and Adjustments



Clause 14: Contract Price and Payment



Clause 15: Termination by Employer



Clause 16: Suspension and Termination by Contractor



Dispute Boards



Introduction



Main advantages of the Dispute Board



Background & evolution



Types of Dispute Boards



Dispute review board



Dispute Adjudication Board



Combined Dispute Board



Varieties of Dispute Boards



Dispute Adjudication Boards under the FIDIC Contracts



The role of the Dispute Adjudication Board



Establishment of the Dispute Adjudication Board



Obligations of the Parties and the Members of the Dispute Adjudication Board



Powers of the Dispute Adjudication Board



Procedures relating to site visits & meetings



Procedures relating to referral of a matter to the Board for its opinion



Procedures relating to referral of a dispute to the Board for its decision



Remuneration of the members of the Dispute Adjudication Board



Cost of maintaining the members of the Dispute Adjudication Board



The decision of the Dispute Adjudication Board



Comparison between the text of the three 1999 Major Books: Red, Yellow and Silver Books



A precise record of the Alterations, Omissions and Additions in the 1999 Yellow & Silver Books as compared with the 1999 Red Book


References


Table of cases


Index