The 2017 FIDIC Contracts. William Godwin
to be carried out by the Employer or others. In the 1999 contracts there was a blanket prohibition against the Employer's instructing the Contractor to omit work in order for it to be carried out by others (clause 13.1). This has been modified in the 2017 editions by permitting work to be omitted which is to be carried out by the Employer or others but (unless there has been a failure to remedy defects and clause 11.4 applies)15 only where the Contractor agrees to this (clause 13.1). In that case, however, the Contractor can include in his proposal for an adjustment to the Contract Price under clause 13.3.1 any loss of profit and other loss or damage suffered or to be suffered by him as a result of such an omission (clause 13.3.1(c)).16
Change in laws
Another important new risk for the Employer in the 2017 forms is that the scope for claiming additional time and/or money as a result of changes in the laws and regulations affecting the project has been significantly increased in a new clause 13.6.17 In the 1999 editions the Contractor can claim time and/or money where the laws of the country where the project is situated or the judicial or official interpretation of them, after the Base Date, gives rise to delay and/or additional cost (clause 13.7). The new clause 13.6 adds to this by providing for changes made or published after the Base Date in:
(a)any permit, permission, licence or approval obtained by the Employer or Contractor according to their respective obligations under clause 1.13 (Red and Yellow Books)/1.12 (Silver Book); or
(b)the requirements for any permit, permission, licence and/or approval to be obtained by the Contractor under clause 1.13(b)/1.12(b)
to entitle the Contractor to claim an extension of time and/or additional payment for any delay caused and/or cost incurred as a result.
This additional risk to the Employer is counterbalanced, however, by a new provision in clause 13.6 that provides for the Employer to be entitled to claim a reduction in the Contract Price should a change in the laws, including the above changes in or requirements for permits, permissions, licences and/or approvals, result in a decrease rather than an increase in cost.
1.5 FIDIC's Guidance for the Preparation of Particular Conditions
As mentioned in Section 1.1 above, the Particular Conditions in the 2017 contracts comprise (a) the Contract Data and (b) the Special Provisions. The 1999 contracts also provide for Particular Conditions but do not divide them up into these two categories; instead, the relevant details are included more generally. The division of the Particular Conditions into Contract Data and Special Provisions was introduced in the 2008 Gold Book for greater clarity, and has been adopted accordingly in the 2017 editions. Together with the general conditions, the Contract Data and Special Provisions comprise the conditions of contract for each of the 2017 Books.
1.5.1 The Contract Data
An example of the Contract Data is given at the back of each of the 2017 forms in the section headed ‘Guidance for the Preparation of Particular Conditions’. As the brief notes accompanying the example explain, the Contract Data identify the specific information needed to be provided before the documents forming the Contract are complete and in order to avoid the default provisions to be found in some of the clauses of the general conditions taking effect. Thus the Contract Data, which are to be completed by the Employer in preparing the tender documents, set out each of the sub‐clauses of the general conditions which require such specific further information. So, for example, clause 1.1.20 defines ‘Cost Plus Profit’ to mean Cost plus the applicable percentage for profit stated in the Contract Data or, if not so stated, 5%; the first item in the Contract Data example sheet then refers to clause 1.1.20 and leaves a space to be completed by the Employer for identifying the specific percentage profit to be added to Cost. The Employer will ensure that this item is completed if he wishes to avoid the default 5% applying. Similarly, the second item in the Contract Data refers to clause 1.1.27, which requires the Defects Notification Period which is to apply to the Contract to be stated, failing which the default one‐year period will apply. Other Contract Data items include the time for completion, the governing law, the ruling language and a host of other important specific details which need to be addressed.
1.5.2 The Special Provisions
The Special Provisions enable the parties to amend the general conditions. Amendments of one kind or another are inevitable in any contract in order to meet the specific needs of the project. As FIDIC points out in its Guidance, local legal requirements may necessitate modifications to the general conditions, particularly if they are to be used on domestic contracts. Where any amendments are made to the general conditions great care needs to be taken to ensure both that the amendments are internally consistent and that they are consistent with the unamended general conditions; confusion and disputes are otherwise likely to arise.
As FIDIC points out in the Guidance, the Special Provisions have priority over the general conditions, with the Contract Data having priority over the Special Provisions. This is consistent with clause 1.5 of the general conditions, which sets out the priority of documents forming the contract in the event of any conflict, ambiguity or discrepancy between them.
1.5.3 Golden Principles
As part of its Guidance FIDIC urges the parties to have regard to certain ‘Golden Principles’ when drafting Special Provisions. These Golden Principles are intended to ensure that amendments to the general conditions be limited to those necessary for the particular features of the project and compliance with applicable law; in the case of the Red and Yellow Books, do not change the essential fair and balanced character of the FIDIC Contract; and that the Contract remain recognisably a FIDIC Contract. There are five such Principles set out in the Guidance, some of which might be easier to follow in practice than others. For example, General Principle 1 is that the duties, rights, obligations, roles and responsibilities of all the Contract participants must be generally as implied in the general conditions and appropriate to the requirements of the project; however, it might not be very obvious how this is to be applied in practice, or even whether it ought to be attempted to be applied in a particular project. General Principle 2, on the other hand, which is that the Particular Conditions must be drafted clearly and unambiguously, is certainly salutary general advice.
1.5.4 Tender Documents
The FIDIC Guidance provides useful notes on the preparation of tender documents. These notes develop the notes which also appear at the back of the 1999 editions.
Particularly helpful is the guidance on the contents of the Employer's Requirements in the case of the Yellow and Silver Books. FIDIC also places more emphasis in the 2017 notes on the need for the tender documents to be prepared by suitably qualified engineers who are not only familiar with the technical aspects of the required works but also the particular requirements and contractual provisions of a design‐build project (in the case of the Yellow and Silver Books) or a construction project (in the case of the Red) and recommends a review by suitably qualified lawyers. The notes also refer to FIDIC's intention to update the FIDIC Procurement Procedures Guide, planned for publication at a later date, to provide guidance on the content and format of the tender documents issued to tenderers specifically by reference to the 2017 editions.
1.5.5 Drafting Options
The FIDIC Guidance gives options for various sub‐clauses, with in some cases example wording and in others notes and suggestions. These are set out in the Notes on the Preparation of Special Provisions forming part of the Guidance. They are well worth taking into account.
The notes on definitions (clause 1.1), for example, give some useful warnings about how any changes