Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 12

The Yellow Book is the second oldest member of the 1999 FIDIC suite of contracts. Its origins go back to an electrical and mechanical form of contract, the Electrical and Mechanical Yellow Book, first published in 1963. In contracts for electrical and mechanical works much of the design is carried out off‐site and installation carried out by specialist contractors. In this type of contract it makes more sense for the contractor rather than the employer to be primarily responsible for design. The 1963 Yellow Book was therefore a contractor‐design form of contract under which the Contractor and not the Employer was responsible for all or most of the design.

The Yellow Book underwent various editions, culminating in the third edition in 1987, the same year as the fourth edition of the FIDIC Red Book. When preparing the 1999 Yellow Book the task group mainly had regard to the 1987 version of the Yellow Book, and also to another form, first published in 1995, called Conditions of Contract for Design‐Build and Turnkey; this was known as the Orange Book.

The Orange Book was introduced to accommodate the growing trend for projects to be procured on a design‐build or ‘turnkey’ basis. Its scope was wider than the 1987 Yellow Book because it was not a specifically electrical and mechanical form of contract. Among the distinctive features of the Orange Book was a departure from the use of the Engineer. In the Orange Book there was no Engineer but the Employer administered the Contract. He was not intended to be neutral although when making determinations had still to act fairly, reasonably and in accordance with the Contract. A second significant feature of the Orange Book was that it introduced an independent dispute adjudication board, called the DAB, considered below in Chapter 16.

The 1999 Yellow Book replaced both the Yellow Book 1987 and the 1995 Orange Book. Whereas the 1987 Yellow Book dealt only with electrical and mechanical works, the 1999 Yellow Book covered any building and engineering works designed by the Contractor, reflecting the wider scope of the Orange Book.

 Contractor design

The first feature to note about the 1999 Yellow Book, distinguishing it from the Red, is, therefore, that it is a contractor‐design form of contract; under the form, the Contractor is responsible for all or most of the design.

This is also the case with the 2017 edition, the title of both editions being the same: Conditions of Contract for Plant and Design‐Build, for Mechanical and Electrical Plant and for Building and Engineering works designed by the Contractor.

 Fixed price lump sum

The second important feature of both editions of the Yellow Book, which also distinguishes it from the Red Book forms, is that it is a fixed price lump sum rather than a re‐measurement contract. The Contractor's basic entitlement is to be paid a fixed price, stated in the Contract at the outset and expressed as a lump sum, subject only to adjustments or additions made pursuant to the terms of the Contract for such matters as variations or unforeseeable physical conditions.

 The Engineer

The third main feature of the Yellow Book in both editions is that, like the Red Book forms, an important role is assigned to the Engineer, who performs the same functions under both Books and in the 2017 edition must also act neutrally.

 Risk allocation

The fourth feature of the Yellow Book in both editions is that, also like the Red Book forms, it seeks to strike a fair balance of risk between Contractor and Employer. Many of the circumstances in which the Contractor can claim in the Red Book (for example, where unforeseeable physical difficulties are encountered) are also circumstances in which he can claim in the Yellow Book.