First Edition 2004

Edited by
C.Haselgrove-Spurin

Published by

Nationwide Mediation Academy and Nationwide Academy of Dispute Resolution

UK Ltd Company No 4734831

Registered Office : Stockland Cottage, 11 James St, Treforest, Pontypridd, RCT CF37 1BU

NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT

NOTES AND COMMENTARY ON THE FIDIC GREEN SHORT FORM OF CONTRACT 1999

FIRST EDITION 2004 By

Corbett Haselgrove Spurin, LLB LLM F.CIArb F.NADR

Senior Law Lecturer, University of Glamorgan

Nick Turner, BSc Hons, LL.M MRCIS, MCIArb FNADR Int,

Construction Consultant, MJN Southwest.

Geoffrey Michael Beresford Hartwell

Consultant Engineer, Chambers, 1 Chancery Lane Professor of Arbitration, University of Glamorgan Dr. Jeff Jones Senior in construction management and civil engineering lecturer, University of Glamorgan

If the search for a universal international construction contract is a quest of truly Don Quixote proportions, given the problems of satisfying domestic law and local customs and practices around the globe, none the less it must be said that the FIDIC Rainbow Suite of Construction contracts represent a serious tilt at the windmill. C.H.Spurin 2004.

LONDON NATIONWIDE ACADEMY OF DISPUTE RESOLUTION 2004

Short Form Contract FIDIC 1999 : Commentary NADR UK Ltd 2004

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NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT

Electronically published at www.nadr.co.uk/publications by The E-Book Division NADR UK Ltd and Nationwide Mediation Academy Stockland Cottage 11 James Street Treforest Pontypridd CF37 1BU Copyright in the following title vests with the authors, the Nationwide Mediation Academy and the Nationwide Academy of Dispute Resolution UK Ltd. Notes and Commentary on the FIDIC Short Form of Contract 1999 First published 2004
Copyright, Professor G.M.Beresford-Hartwell, C.Haselgrove-Spurin, Dr.J.Jones, and N.Turner. All rights reserved by the authors; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the copyright holder. The reproduction and distribution of this publication, or any part thereof, for commercial gain or profit without the prior written permission of the copyright holder is strictly forbidden.

First Edition 2004.

This book is published for educational purposes. No part of the book may be used for contracting purposes. For construction contracting purposes, copies of the FIDIC Green Form Contract should be purchased from The Federation Internationale des Ingenieurs-Conseils (FIDIC). World Trade Centre II, P.O.Box 311, 1215 Geneva 15, Switzerland. All rights in the text of the FIDIC Green Form Contract are reserved by and vest in the Federation Internationale des Ingenieurs-Conseils (FIDIC). Printed and bound in Great Britain by and available from : Nationwide Mediation Academy Press Stockland Cottage,, 10 James Street, Treforest, Pontypridd. CF37 1BU, United Kingdom Tel : ++ 44 (0) 1443 486122. Fax : ++44 (0) 1443 404171. E-mail : [email protected]

Website : http://www.nadr.co.uk
LEGAL NOTICE The views expressed in this text-book and the material contained therein are provided for educational purposes only. Detailed professional advice should be obtained before taking or refraining from action based on any aspect of it. In particular, legal advisers should conduct their own research and reach their own conclusions on all matters before providing advice to clients and for litigation purposes. In particular, it should be noted that the way that domestic courts interpret the provisions of the contract are likely to vary. Whilst the authors endeavour to ensure the accuracy and completeness of the contents of the book, NADR and the authors accept no responsibility for loss occasioned as a result of reliance placed on any part of its contents.
Short Form Contract FIDIC 1999 : Commentary NADR UK Ltd 2004

iii

NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT EDITOR AND CONTRIBUTER
Corbett Haselgrove-Spurin LL.B. LL.M FCIArb FNADR (US), MDRBF Construction Adjudicator, Arbitrator, Educator, Mediator, Scheme Leader, LLM Commercial Dispute Resolution, Senior lecturer, Commercial & Construction Law at Glamorgan University. One time visiting Lecturer on Maritime Law to The University of Wales, Cardiff. Court appointed mediator and party neutral, Dallas, Texas. Construction Law and Maritime Law Consultant. Director Nationwide Academy for Dispute Resolution UK Ltd and Middle East Co Ltd. He is a widely travelled international speaker on International Dispute Resolution, particularly in respect of construction and maritime affairs, presenting papers at conferences and lecturing in Universities in Brunei, England and Wales, Greece, Jordan, Malaysia, the Peoples Republic of China and the USA. Author of texts and papers on construction law, maritime law and ADR including inter alia seminar papers on Development of a New Legal Framework for the Construction Industry in the PRC. 1

CONTRIBUTING AUTHORS
Nick Turner BSc Hons, LL.M MRCIS, MCIArb FNADR Int, 2
He is a quantity surveyor, construction consultant, claims consultant, practicing out of Bristol in the United Kingdom, as Director of MJN Consultants, having previously worked for many of the major names in the British construction industry as a valued quantity surveyor of widespread experience. He is an active client representative with a 100% track record in construction adjudication.

Professor Geoffrey Michael Beresford Hartwell3

Professor Geoffrey Michael Beresford Hartwell is both a Mechanical and Electrical Engineer and a Professor of dispute resolution and arbitration law. He is a chartered engineer and a registered mediator and conciliator, practicing consultant and regularly acts as an Expert Witness. He has acted as an arbitrator with experience in the UK, Switzerland, India, France, Nigeria, Korea & Hong Kong, with thirty years experience in arbitration and dispute resolution in construction and manufacturing world wide, in addition to being a member of the DRBF and a qualified DRB panellist/chairman for FIDIC. He is President of the Society of Construction Arbitrators and past chairman and Senior Vice-President at the Chartered Institute of Arbitrators (CIArb). He is Professor of Arbitration, University of Glamorgan, visiting lecturer in arbitration to University of Kingston, London, NMA Director of Education. Author of articles on Expert Witness Practice, Arbitration, Dispute Resolution and technical engineering papers.

Dr. Jeff Jones

He is a chartered engineer with extensive construction experience on both U.K. and international contracts. He has also worked with London based firm of Consulting Engineers and with The Road Research Laboratory in the U.K. He has worked for 12 years with a construction company on civil engineering and building contracts including motorways, gas compressor stations, bridge and multistory building construction. He is currently a senior lecturer in construction management and civil engineering at the School of Technology at the University of Glamorgan and supervising several industry based U.K. and overseas based Ph.D. students on applied research programmes.

1 2 3

see publications section www.nadr.co.uk to access papers. for publications visit www.nadr.co.uk to access papers. See further at http://www.hartwell.demon.co.uk ; http://www.cromwell.dial.pipex.com

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NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT

CONTENTS TOPIC PRELIMINARIES Authors Contents Preface TEXT Introduction : The general nature of standard form contracts FIDIC Foreword Agreement, Offer, Acceptance Appendix General Conditions 1 GENERAL PROVISIONS 1.1 Definitions The Contract Persons Dates, Times and Periods Money and Payments Other Definitions Interpretation Priority of Documents Law Communications Statutory Obligations 1 2 5 6 11 11 11 11 12 12 13 14 16 16 16 16 17 18 18 18 18 19 20 20 20 22 22 23 23 24 25 25 27 28 28 33 33 34 35 36 v iii v vii PAGE

1.2 1.3 1.4 1.5 1.6 2

THE EMPLOYER 2.1 Provision of Site 2.2 Permits and Licences 2.3 Employers Instructions 2.4 Approvals EMPLOYERS REPRESENTATIVES 3.1 Authorised Person 3.2 Employers Representative THE CONTRACTOR 4.1 General Obligations 4.2 Contractors Representative 4.3 Subcontracting 4.4 Performance Security DESIGN BY CONTRACTOR 5.1 Contractors Design 5.2 Responsibility for Design EMPLOYERS LIABILITIES 6.1 Employers Liabilities TIME FOR COMPLETION 7.1 Execution of the Works 7.2 Programme 7.3 Extension of Time 7.4 Late Completion

6 7

Short Form Contract FIDIC 1999 : Commentary NADR UK Ltd 2004

NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT

CONTENTS Continued TOPIC 8 TAKING-OVER 8.1 Completion 8.2 Taking-Over Notice REMEDYING EFFECTS 9.1 9.2 10 Remedying Defects Uncovering and Testing PAGE 37 37 37 38 38 38 39 39 40 41 41 45 46 46 47 47 48 48 49 49 49 50 50 50 51 51 52 52 53 54 54 55 56 57 57 58 60 61 72 73 80

VARIATIONS AND CLAIMS 10.1 Right to Vary 10.2 Valuation of Variations 10.3 Early Warning 10.4 Right to Claim 10.5 Variation and Claim Procedure CONTRACT PRICE AND PAYMENT 11.1 Valuation of the Works 11.2 Monthly Statements 11.3 Interim Payments 11.4 Payment of First Half of Retention 11.5 Payment of Second Half of Retention 11.6 Final Payment 11.7 Currency 11.8 Delayed Payment DEFAULT 12.1 Default by Contractor 12.2 Default by Employer 12.3 Insolvency 12.4 Payment upon Termination RISK AND RESPONSIBILITY 13.1 Contractors Care of the Works 13.2 Force Majeure INSURANCE 14.1 Extent of Cover 14.2 Arrangements 14.3 Failure to Insure RESOLUTION OF DISPUTES 15.1 Adjudication 15.2 Notice of Dissatisfaction 15.3 Arbitration

11

12

13

14

15

RULES FOR ADJUDICATION PARTICULAR CONDITIONS WORK SHOP QUESTIONS INDEX

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NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT NOTES AND COMMENTARY ON THE FIDIC GREEN SHORT FORM OF CONTRACT 1999

CONTAINING AN ANALYSIS OF THE AGREEMENT GENERAL CONDITIONS RULES FOR ADJUDICATION

Preface The purpose of this book is to provide a guide to construction practitioners on the use of the new Short Form Contract issued by FIDIC in 1999. Each provision is set out in turn, juxtaposed against the FIDIC NOTES FOR GUIDANCE (not forming part of the Contract) and commentary. Guided by the principle that learning is doing at various stages in the text, examples of problems that can be worked through are provided under the heading of WORK SHOP QUESTIONS. It is hoped that the book will be of assistance to those professionals engaged in advising the construction industry on the legal rights and responsibilities arising out the Short Form Contract, be they construction claims consultants and advisors or legal practitioners. The contents however should not be considered to be legal advice, merely the expression of academic views, which might act as a spring board for practitioners to examine given situations. It is further hoped that students of dispute resolution and or construction law and practice at both undergraduate and post-graduate level will benefit from an analysis of the contract. Two problems arise in providing such a guide. The first is that this is a brand new contract, so little commentary exists elsewhere from which to draw inspiration, particularly since the courts have not as yet had many occasions on which to rule on the application of the contract and secondly, because the common law courts whose decisions are published get very few opportunities to rule on a contract which will by enlarge be subject to unreported private dispute resolution processes with limited subsequent recourse to the courts. Consequently, much of the commentary is based around an examination of the terminology adopted by the contract, identifying areas of potential difficulty and uncertainty, contrasting where relevant the way the courts have treated similar provisions under contracts both in the UK and the US. Some recourse has been had to comparison between the latest provisions and the earlier Red Book and also to the provisions of the other books within the Rainbow Suite, namely the Red, Silver and Yellow books, though clearly the risk allocation under the Turnkey contract means that comparison is of less relevance here. Whilst readily acknowledging the valuable contributions made by my colleagues, Professor Geoffrey M. Beresford-Hartwell, Richard Faulkner, Dr.Jeff Jones, Larry Rogers and Nick Turner, as general editor I accept responsibility for overall content and as such all errors and omissions are mine and mine alone. Grateful thanks to Gareth R Thomas for suggestions on clause 14, insurance and particularly to Annie McCartney for all her support and assistance in proof reading the text and for her insights and valuable suggestions, many of which have found their way into this book. To the extent that it is possible, the law is stated as of March 2004. Corbett Haselgrove-Spurin

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NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT

INDEX
. .

FIDIC Acceptance Adjudication Adjudicators Agreement Agreement (Contract) Appendix Approvals Arbitration Arrangements, Insurance Authorised person Communications Completion Contractors Care of the Works Contractors Design Contractors Representative Currency Default by Contractor Default by Employer Definitions Delayed Payment Early Warning, Claims Employers Instructions Employers Representative Employers Liabilities Execution of the Works Extension of Time Extent of Cover, Insurance Failure to Insure Final Payment Force Majeure General Provisions - Definitions General Obligations, Contractor Insolvency Interim Payments Interpretation i 10 18 i ii 3 10 10 3 2 5 9 3 3 7 8 8 1 7 6 3 3 4 5 5 9 10 7 9 1 3 8 7 2

Sub-Clause

Page 5 57 5, 71 5 6 3, 19 60 55 20 16 37 52 25 23 49 50 50 11 49 41 18 20 28 33 35 2, 54 56 49 53 11 22 51 47 16
80

15.1

2.4 15.3 14.2 3.1 1.5 8.1 13.1 5.1 4.2 11.7 12.1 12.2 1.1 11.8 10.3 2.3 3.2 6.1 7.1 7.3 14.1 14.3 11.6 13.2 1.1 4.1 12.3 11.3 1.2

Short Form Contract FIDIC 1999 : Commentary NADR UK Ltd 2004

NOTES AND COMMENTARY ON THE FIDIC SHORT FORM OF CONTRACT

INDEX CONTINUED . .

Insurance Late Completion Law Minor Works Monthly Statements Notice of Dissatisfaction Offer Particular conditions Payment upon Termination Performance Security Permits and Licences Priority of Documents Programme Provision of Site Rainbow Suite Remedying Defects Responsibility for Design Retention, First Half Retention, Second Half Right to Claim Right to Vary Rules for Adjudication Standard Form Contracts Statutory Obligations Subcontracting Taking-Over Notice Tender Process Uncovering and Testing Valuation of the Works Valuation of Variations Variation and Claim Procedure

FIDIC 9 5 2

Sub-Clause 14 7.4 1.4

Page 2, 54 36 16 2 47 58 5 72 51 24 18 16 34 18 3 38 27 48 48 41 39 61 1 17 23 52 4 38 46 40 45
81

7 10 i 13 8 3 2 2 5 2

11.2 15.2

12.4 4.4 2.2 1.3 7.2 2.1

5 4 7 7 6 6 15

9.1 5.2 11.4 11.5 10.4 10.1

2 3 5

1.6 4.3 8.2

6 7 6 6

9.2 11.1 10.2 10.5

Short Form Contract FIDIC 1999 : Commentary NADR UK Ltd 2004

First Edition 2004, Edited by C.Haselgrove-Spurin This book provides a guide to construction practitioners on the use of the new Short Form Contract issued by FIDIC in 1999. Each provision is set out in turn, juxtaposed against the FIDIC NOTES FOR GUIDANCE (not forming part of the Contract) and commentary Guided by the principle that learning is doing at various stages in the text, examples of problems that can be worked through are provided under the heading of WORK SHOP QUESTIONS. The Editor and Principal Author, Corbett Haselgrove-Spurin LL.B. LL.M FCIArb is a Construction Adjudicator, Arbitrator, Educator, Mediator, Scheme Leader, LLM Commercial Dispute Resolution, Senior lecturer, Commercial & Construction Law at Glamorgan University. Court appointed mediator and Construction Law Consultant and Director Nationwide Academy for Dispute Resolution UK Ltd and Middle East Co Ltd. He is a widely travelled international speaker on International Dispute Resolution, presenting papers at conferences and lecturing in Universities in Brunei, England and Wales, Greece, Jordan, Malaysia, the Peoples Republic of China and the USA. He is the author of texts and papers on construction law, maritime law and ADR.

Published by

Nationwide Mediation Academy and Nationwide Academy of Dispute Resolution UK Ltd

Company No 4734831

Registered Office : Stockland Cottage, 11 James St, Treforest, Pontypridd, RCT CF37 1BU