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William Godwin. The 2017 FIDIC Contracts
Table of Contents
Guide
Pages
The 2017 Fidic Contracts. The Second Editions of the Red, Yellow and Silver Books
Copyright
Foreword
Preface
About the Author
1 Overview of the 2017 Contracts
1.1 Introduction
1.2 The Rainbow Suite: The Main Features of the 1999 Red, Yellow and Silver Books
1.2.1 The 1999 Red Book
1.2.2 The 1999 Yellow Book
1.2.3 The 1999 Silver Book
1.3 Contractor Risk in the Silver Book: Two Examples
1.3.1 Unforeseeable Difficulties
1.3.2 Errors in Employer's Requirements
1.4 New Potential Risks for Contractor and Employer in the 2017 Books
1.4.1 Contractor Risks
1.4.2 Employer Risks
1.5 FIDIC's Guidance for the Preparation of Particular Conditions
1.5.1 The Contract Data
1.5.2 The Special Provisions
1.5.3 Golden Principles
1.5.4 Tender Documents
1.5.5 Drafting Options
1.5.6 Building Information Modelling
1.6 Forms
Notes
2 Key General Provisions. 2.1 Definitions
2.2 Notices and Other Communications
2.3 Law and Language
2.3.1 Governing Law
2.3.2 Language of the Contract/Communications
2.4 Priority of Documents
2.5 Errors in the Employer's Requirements/Delayed Drawings and Instructions
2.5.1 Errors in Employer's Requirements: Yellow Book Clause 1.9
2.5.2 Delayed Drawings and Instructions
2.6 Use of Documents
2.7 Compliance with Laws
2.8 Limitation of Liability
2.8.1 Indirect or Consequential Loss or Damage
2.8.2 Cap on Contractor's Total Liability
2.9 Contract Termination: Clause 1.16 Red and Yellow Books/1.15 Silver Book
Notes
3 The Employer, the Engineer and Contract Administration. 3.1 The Employer
3.1.1 Right of Access to Site
3.1.2 Assistance
3.1.3 Employer's Personnel and Other Contractors
3.1.4 Employer's Financial Arrangements
3.1.5 Site Data and Items of Reference
3.1.6 Employer‐supplied Materials and Employer's Equipment
3.2 The Engineer/Employer's Administration
3.2.1 Contract Administration in the Three Books: Engineer's/Employer's Representative's Role and Authority
3.2.2 Instructions
3.2.3 Instructions: The 2017 Provisions
3.2.4 Where the Instruction Does Not State that it is a Variation
3.2.5 Clause 3.5/3.4 Sub‐paragraph (a)
3.2.6 Clause 3.5/3.4 Sub‐paragraph (b)
3.3 Agreement or Determination
3.3.1 Consultation
3.3.2 Engineer's Determination
3.3.3 Time Limits
3.3.4 Effect of Agreement or Determination
3.3.5 Dissatisfaction with Engineer's Determination
3.4 Meetings
Notes
4 The Contractor and Fitness for Purpose
4.1 Contractor's General Obligations
4.1.1 Yellow and Silver Books
4.1.2 Red Book
4.1.3 ‘Fitness for Purpose’
4.1.4 Other General Obligations
4.2 Contractor to Provide Performance Security
4.3 Contractor's Representative
4.4 Subcontractors
4.5 Nominated Subcontractors
4.6 Contractor's Documents: The 2017 Red Book
4.7 Cooperation
4.8 Quality Management and Compliance Verification Systems
4.8.1 Quality Management System
4.8.2 Compliance Verification
4.9 Use of Site Data
4.10 Unforeseeable Difficulties/Physical Conditions
4.10.1 Unforeseeable Physical Conditions: Procedure
4.11 Other Contractor's Obligations
Notes
5 Design
5.1 Contractor's General Design Obligations
5.1.1 Silver Book: Errors in Employer's Requirements
5.1.2 Silver Book: Designs by Employer
5.1.3 Silver Book: Design Personnel
5.1.4 Yellow Book: Errors in Employer's Requirements
5.1.5 Yellow Book: Designs by Employer
5.1.6 Yellow Book: Design Personnel
5.2 Contractor's Documents: 2017 Yellow and Silver Books
5.3 Other Design‐related Provisions
Notes
6 Plant, Materials and Workmanship/Staff and Labour
6.1 Staff and Labour
6.2 Plant, Materials and Workmanship
6.2.1 Execution, Samples and Inspection
6.2.2 Testing by the Contractor
6.2.3 Defects and Rejection
6.2.4 Remedial Work
6.2.5 Ownership of Plant and Materials/Royalties
Notes
7 Commencement, Delays and Extensions of Time, and Employer's Suspension of the Works. 7.1 Commencement
7.2 Time for Completion
7.3 The Programme
7.3.1 Contents of the Initial and any Revised Programme
7.3.2 Other Provisions: Clause 8.3
7.4 Advance Warning
7.5 Extensions of Time
7.5.1 Yellow and Red Books
7.5.2 Silver Book
7.5.3 Completion
7.6 The Specified Causes of Delay to Completion. 7.6.1 Variations
7.6.2 A Cause of Delay Giving an Entitlement to an Extension Under Another Clause
7.6.3 Exceptionally Adverse Climatic Conditions: Red and Yellow Books
7.6.4 Unforeseeable Shortages
7.6.5 Delays, Impediments or Preventions Caused by or Attributable to the Employer
7.7 Concurrent Causes
7.8 Delay Damages
7.8.1 Clause 8.8: First Paragraph
7.8.2 Clause 8.8: Second and Third Paragraphs
7.8.3 Other Delay‐related Provisions
7.9 Employer's Suspension of the Works
7.9.1 Right to Instruct Suspension
7.9.2 Effects of Suspension
7.9.3 Payment for Plant and Materials After Suspension: Clause 8.11
7.9.4 Prolonged Suspension: Clause 8.12
7.9.5 Instruction to Resume Work: Clause 8.13
Notes
8 Testing on and After Completion and Employer's Taking Over
8.1 Testing on Completion. 8.1.1 Contractor's Obligations
8.1.2 Delayed Tests
8.1.3 Retesting
8.1.4 Failure to Pass Tests on Completion
8.2 Employer's Taking Over
8.2.1 The 1999 Contracts
8.2.2 The 2017 Yellow Book
8.2.3 The 2017 Red and Silver Books
8.2.4 Procedure Under Clause 10.1
8.2.5 Wording of the Deeming Provision
8.2.6 Taking Over of Parts: Clause 10.2
8.2.7 Other Clause 10 Provisions
8.3 Tests After Completion
8.3.1 The Yellow Book
8.3.2 The Silver Book
Notes
9 Defects After Taking Over, Acceptance of the Works and Unfulfilled Obligations
9.1 Contractor's Basic Obligation
9.2 Who Is Responsible for the Cost?
9.3 Extending the DNP
9.4 Other Obligations
9.5 Performance Certificate
9.6 Unfulfilled Obligations
Notes
10 Measurement, the Price and Payment
10.1 Measurement and Valuation: Clause 12 of the 2017 Red Book. 10.1.1 Measurement Procedures
10.1.2 Method of Measurement
10.1.3 Valuation
10.1.4 Omissions
10.2 The Contract Price
10.2.1 Yellow Book
10.2.2 Red Book
10.2.3 Silver Book
10.3 Advance Payment
10.4 Plant and Materials Intended for the Works
10.5 The Payment Process
10.5.1 Interim Payments
10.5.2 Statement at Completion
10.5.3 Final Statement
10.5.4 Discharge
10.5.5 Issue of Final Payment Certificate/Final Payment
10.5.6 Payment
10.5.7 Delayed Payment
10.6 Cessation of Employer's Liability
Notes
11 Variations and Adjustments to the Contract Price
11.1 Variations
11.1.1 Meaning of ‘Variation’
11.1.2 The Right to Vary: Omitting Works to Be Carried out by Others
11.1.3 Contractor's Objections to a Variation
11.1.4 Engineer/Employer's Response
11.2 Value Engineering. 11.2.1 The 1999 Editions
11.2.2 The 2017 Books
11.3 Variation Procedure
11.3.1 Variation by Instruction: Clause 13.3.1
11.3.2 Variation by Request for Proposal: Clause 13.3.2
11.3.3 New Applications of the Variation Procedure
11.4 Other Adjustments to the Contract Price
11.4.1 Adjustments for Changes in Laws
11.4.2 Adjustments for Changes in Cost
Notes
12 Termination and Suspension
12.1 Employer Termination: For Contractor Default
12.1.1 The Grounds of Termination: Clause 15.2, 1999 Editions
12.1.2 The Termination Procedure Under Clause 15.2, 1999 Editions
12.1.3 Valuation and Payment After a Clause 15.2 Termination
12.1.4 The Grounds of Termination: Clause 15.2.1, 2017 Editions
12.1.5 Termination: Clause 15.2.2, 2017 Editions
12.1.6 Termination Procedure Under Clauses 15.2.3 and 15.2.4, 2017 Editions
12.1.7 Valuation and Payment After a Clause 15.2 Termination
12.2 Employer's Termination: For Convenience
12.2.1 Clause 15.5, 2017 Editions
12.2.2 Clauses 15.6 and 15.17, 2017 Editions
12.3 Contractor's Right to Suspend
12.4 Contractor's Termination
12.4.1 The Grounds of Termination: Clause 16.2, 1999 Editions
12.4.2 Termination Under Clause 16.2, 1999 Editions
12.4.3 Effects of Termination and Payment
12.4.4 The Grounds of Termination Under Clause 16.2.1, 2017 Editions
12.4.5 Termination Under Clause 16.2, 2017 Editions
12.4.6 Contractor's Obligations After Termination
12.4.7 Payment After Contractor's Termination
Notes
13 Care of the Works, Indemnities and Insurance
13.1 Care of the Works
13.1.1 Clause 17.1: Responsibility for Care of the Works
13.1.2 Clause 17.2: Liability for Care of the Works
13.1.3 The Clause 17.2 Events
13.1.4 Consequences of a Clause 17.2 Event
13.1.5 Combined Causes
13.2 Indemnities
13.2.1 Indemnities by Contractor: 2017 Yellow and Silver Books
13.2.2 Indemnities by Contractor: 2017 Red Book
13.2.3 Indemnities by Employer
13.2.4 Shared Indemnities
13.3 Intellectual and Industrial Property Rights
13.4 Insurance
13.4.1 The 2017 Books
13.4.2 The Works: Clause 19.2.1
13.4.3 Goods: Clause 19.2.2
13.4.4 Liability for Breach of Professional Duty: Clause 19.2.3
13.4.5 Injury to Persons and Damage to Property: Clause 19.2.4
13.4.6 Injury to Employees: Clause 19.2.5
13.4.7 Other Insurances Required by the Applicable Law and by Local Practice: Clause 19.2.6
Notes
14 Exceptional Events
14.1 Examples of Exceptional Events
14.2 Notice Requirements
14.3 Duty to Minimise Delay
14.4 Consequences of an Exceptional Event
14.5 Optional Termination
14.6 Release from Performance Under the Applicable Law
Notes
15 Employers' and Contractors' Claims
15.1 The Categories of Claim: Clause 20.1
15.2 Claims for Money and/or Time
15.2.1 The Notice of Claim: Clause 20.2.1
15.2.2 The Clause 20.2.1 Time Bar
15.2.3 Initial Response to the Claim: Clause 20.2.2
15.2.4 Contemporaneous Records: Clause 20.2.3
15.2.5 The Fully Detailed Claim: Clause 20.2.4
15.2.6 The Clause 20.2.4 Time Bar
15.2.7 Agreement or Determination of the Claim: Clause 20.2.5
15.2.8 Comparison with 1999 Forms
15.2.9 Agreeing or Determining Time Bar Issues
15.2.10 Other Time Bars Affecting the Claim
15.2.11 The Time Bars: Summary
15.2.12 Further Details
15.2.13 Claims of Continuing Effect: Clause 20.2.6
15.3 General Requirements: Clause 20.2.7
Notes
16 Dispute Resolution
16.1 The Three‐tier Process in the 1999 Contracts
16.2 The 2017 Contracts
16.2.1 Disputes
16.2.2 Procedure for Obtaining the DAAB's Decision
16.2.3 Referring the Dispute: Clause 21.4.1
16.2.4 Parties' Obligations After Dispute Referred: Clause 21.4.2
16.2.5 The DAAB's Decision: Clause 21.4.3
16.2.6 Dissatisfaction with the DAAB's Decision: Clause 21.4.4
16.3 Appointment of the DAAB
16.3.1 Sole Member or Three
16.3.2 The DAAB Agreement and DAAB Procedural Rules
16.4 Failure to Appoint DAAB Members
16.5 Avoidance of Disputes
16.6 Amicable Settlement
16.7 Arbitration
16.7.1 Party Commencing Arbitration
16.7.2 Time for Commencing an Arbitration
16.7.3 Choice of Arbitration
16.7.4 ICC Arbitration
16.7.5 The Tribunal's Powers
16.7.6 Payment of Sums Awarded
16.7.7 Costs
16.8 Failure to Comply with the DAAB's Decision
Notes
Index
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