Читать книгу The 2017 FIDIC Contracts - William Godwin - Страница 63

Clause 3.7.4 of the 2017 contracts provides that an agreement or determination is to be binding on both parties, and complied with by the Engineer, unless and until corrected or revised. As pointed out earlier, the parties are also bound by a determination until it is revised in the 1999 editions of the Red and Yellow Books, although not in the 1999 Silver Book, where the Contractor could avoid having to comply with a determination by notifying his dissatisfaction with it within 14 days. This difference may have been attributable to the fact that, in the 1999 edition of the Silver Book, the Employer is able to administer the Contract himself; in any event, the 2017 editions (in which the Employer is never able to administer the Contract himself) have adopted the Red and Yellow Book position.

The 2017 contracts contain a detailed procedure for correcting an agreement or determination for typographical, clerical or arithmetical errors. Clause 3.7.4 enables such errors to be corrected within 14 days after the giving or receiving of the Engineer's notice of agreement or determination. If the Engineer finds the error, he is immediately to advise the parties accordingly; if a party finds it he must give a notice to the Engineer stating that it is given under clause 3.7.4 and clearly identifying the error.¹³ If the Engineer then does not agree that there was an error he is immediately to advise the parties accordingly.

Within seven days of his finding the error, or receiving a notice from a party notifying an error, the Engineer must give a notice to both parties of the corrected agreement or determination. Thereafter, the corrected agreement or determination is to be treated as the agreement or determination for purposes of the Contract conditions.

Although clause 3.7.4 thus refers to the Engineer's notifying the parties of the ‘corrected agreement or determination’ if, on receiving a notice of an error from one or other of the parties, the Engineer decides that there was no error then, as long as he advises the parties accordingly, he is free to decide that the agreement or determination does not require any correcting. Clause 3.7.4 does not deal explicitly with the notifying party's recourse in this situation, but he may be able, if he considers that the Engineer ought to have corrected the agreement or determination, to claim declaratory or other relief under clause 20.1(c) and/or if appropriate money and/or time under clause 20.1(a) and/or (b).

Note that if an agreement or determination concerns the payment of an amount from one party to the other then the Contractor is to include that amount in his next payment statement and the Engineer is to include the relevant amount in the next payment certificate (Red and Yellow Books)/the Employer is to include the relevant amount in his next payment (Silver Book).