Workshop On Obligations Of The Contract Parties
FIDIC Training - Online CourseWorkshop onObligations of the Contract PartiesJustice AcademyAuthor-presenter: Tahseen Saleh1Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
Introduction to FIDIC ContractsOutline1. Introduction2. Structure of FIDIC Forms of Conditions ofContracts (1999 suite of Contracts)3. General Provisions – Definitions4. Parties to the Contracts and their Obligations1. The Employer2. The Engineer3. The Contractor2Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
Introduction to FIDIC Contracts1. Introduction3Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
1- Introduction FIDIC is the abbreviation of the “FédérationInternationale Des Ingénieurs-Conseils ‘FIDIC’”, whichstands for :(The International Federation of ConsultingEngineers) The FIDIC was established in 1913 Promotes and implements the consulting engineeringindustry’s strategic goals Members endorse FIDIC’s statutes and policy statementsand comply with FIDIC’s Code of Ethics. Develops and promotes business practice: BusinessIntegrity management; Project Sustainabilitymanagement;Quality management; Risk Management4Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
1- Introduction Standard Contracts and Agreements:–––––Construction (Red)Plant and Design – Build (Yellow)EPC / turnkey Projects (Silver)Short Form of Contract (Green)Design, Build and Operate Projects (Gold5Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
1- IntroductionFIDIC Releases 2017 New FIDIC Releases Compared with 1999 releases6Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
1- IntroductionFIDIC Releases 20177Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
1- IntroductionFIDIC Releases 20178Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
Obligations of the Contract Parties2. Structure of FIDIC Forms of Conditions ofContracts (1999 suite of Contracts)9Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
2- Structure of FIDIC Forms of Conditions of Contracts (1999 suite of Contracts) Categories of the Clauses in the 1999 suite General Conditions 10 a) Clause 1b) Clauses 2 to 4 General Provisions Rights, duties and obligations of theEmployer, Engineer and Contractor.c) Clauses 5 to 7 Resources (Nominated subcontractors,staff and labor, Plant, material andworkmanship)d) Clauses 8 to 10 Time aspects (Commencement, delaysand suspension; Tests on completionand Employer’s taking over)e) Clause 11 Defects LiabilityTahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
2- Structure of FIDIC Forms of Conditions of Contracts (1999 suite of Contracts) Categories of the Clauses in the 1999 suite General Conditions(Cont’d) f) Clauses 12 to 14 Monetary terms (measurement andevaluation, variations and adjustments,contract price and payments) g) Clauses 15 to 16 Terminations (By the Employer and bythe Contractor) h) Clauses 17 to 19 Risks, responsibilities, insurances andforce majeure i) Clauses 20 (& 21in the 2017 ed.)11 Claims, disputes and their settlementTahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
2- Structure of FIDIC Forms of Conditions of Contracts (1999 suite of Contracts) FIDIC Forms of Conditions of Contracts The General Conditions: 12The FIDIC 1999 Red Book ClausesClause 1General provisionsClause 2The EmployerClause 3The EngineerClause 4The ContractorClause 5Nominated SubcontractorsClause 6Staff and LaborClause 7Plant, Material and WorkmanshipClause 8Commencement, Delays and SuspensionClause 9Tests on CompletionClause 10Employer’s taking OverTahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
2- Structure of FIDIC Forms of Conditions of Contracts (1999 suite of Contracts) FIDIC Forms of Conditions of Contracts The General Conditions: 13The FIDIC 1999 Red Book Clauses (Cont’d)Clause 11Defects liabilityClause 12Measurement and EvaluationClause 13Variations and AdjustmentsClause 14Contract price and PaymentClause 15Termination by EmployerClause 16Suspension and termination by ContractorClause 17Risk and ResponsibilityClause 18InsuranceClause 19Force MajeureClause 20Claims, Disputes and ArbitrationTahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
2- Structure of FIDIC Forms of Conditions of Contracts (1999 suite of Contracts) Differences between the Red, yellow and Silver Books in the1999 suite General Conditions Red Book 1999 1st EditionClause: Yellow Book 1999 1st Silver Book 1999 1stEdition Clause:Edition Clause: Clause 3: The Engineer Clause 3: The Employer’sClause 3: The EngineerAdministration Clause 5: NominatedSubcontractors Clause 5: Design Clause 5: Design Clause 12: Measurement andEvaluation Clause 12:Tests afterCompletion Clause 12: Tests afterCompletion14Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
2- Structure of FIDIC Forms of Conditions of Contracts (1999 suite of Contracts)Which Form to Use .15Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
Obligations of the Contract Parties3. General Provisions – Definitions16Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – Definitions3.1 Clause 1 – General provisions-Definitions for the (capitalised) defined terms in the1999 Editions of the FIDIC contracts are extensive.Definitions are identical across all the FIDIC forms ofcontract, are grouped not alphabetically but in sixdifferent categories:Parties to the Contractdates, Testsperiods and completionmoney and paymentsWorks and Goodsother definitions.17Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsChanges to Clause #1 Clause 1 General ProvisionsMain Changes in 2017 edition––––This Clause is composed of:Red Book became 16 S/C instead of 14 S/C;Yellow Book became 16 S/C instead of 14 S/C;Silver Book became 15 S/C instead of 14 S/C;– The Definitions Sub-Clause (1.1) in the three books becamearranged in alphabetical order instead of the subdivision insix sub-categories18Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsClause 11.1.2: Parties to the ContractParties can be firms, corporations, individuals or otherlegal entities.1.1.2.{1, 1, 1}: “Party” means the Employer or theContractor, as the context requires.19Definition of “Party” only includes the Employer and theContractor, not the Engineer, who is by implication, not aparty to the Contract. The definition has little impact onthe fact that the Engineer is the agent of the Employerwith the legal implications of this.Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsClause 11.1.2.{2, 2, 2}: “Employer” means the person named asemployer in the Appendix to Tender (ContractAgreement) and the legal successors in title to thisperson.1.1.2.{3, 3}: “Contractor” means the person(s) named ascontractor in the Letter of Tender Accepted by theEmployer and the legal successors in title to thisperson(s).1.1.2.{3}: “Contractor” means the person(s) named ascontractor in the Contract Agreement and the legalsuccessors in title to this person(s).20Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsClause 11.1.2.{4, 4}: “Engineer” means the person appointed by theEmployer to act as the Engineer for the purposes of theContract and named in the Appendix to Tender, or otherperson appointed from time to time by the Employerand notified to the Contractor under Sub-Clause 3.4[Replacement of the Engineer].1.1.2.{4}: “Employer’s Representative” means the personappointed by the Employer in the Contract or appointedfrom time to time by the Employer under Sub-Clause 3.1[The Employer’s Representative], who acts on behalf ofthe Employer.21Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsClause 11.1.2.6: Employer’s PersonnelDefinition is wide-ranging and includes not just, as onewould expect, those who work for the Employer but alsothe Engineer and his staff.22Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsClause 11.1.2.7: Contractor’s PersonnelDefinition of “Contractor’s Personnel” is also very wide,as it includes any other personnel assisting theContractor in the execution of the Works.Definition may generate disputes as to what level ofimplication is necessary to constitute “assisting theContractor in the execution of the Works”.Definition casts the net of liability unreasonably wide.Common Law would not extend the Contractor’s liabilityto include any person who assists the Contractor nomatter how informally or minutely in the execution ofthe Works.23Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
3- General Provisions – DefinitionsClause 11.1.2.8: SubcontractorBy Sub-Clause 4.5, any person nominated by theEmployer as a ‘nominated subcontractor’ is consideredas a Subcontractor, and the Contractor is responsible forsuch persons.1.1.2.9: DAB or DAABIn terms of the dispute resolution procedures, the mostimportant change is the advent of Dispute ResolutionBoards whose temporarily binding decisions have effectand replace the traditional Engineer’s Decision.24Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
Obligations of the Contract Parties4. Parties to the Contracts and their Obligations25Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4- Parties to the Contracts and their ObligationsParties to the ContractEmployerCM26EngineerDABContractorTahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4- Parties to the Contracts and their ObligationsParties to the ContractContract iveDAB27Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerClause 2 – The EmployerRole of the Employer is dealt with in Clause 2 of the1999 editions:2.1 Right to Access to the Site;2.2 Permits, Licenses or Approvals;2.3 Employer’s Personnel;2.4 Employer’s Financial Arrangements; and2.5 Employer’s Claims.Employer’s role and obligations can be summarised inthe order in which they appear in the GeneralConditions:.28Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerClause 2 – The Employer This Clause covers the role of the Employer during theoverall project duration. The Employer is required to submit within 28 days ofreceiving the Contractor’s request, reasonable evidencethat financial arrangements have been made and arebeing maintained. In case of Employer’s Claims, the Employer is required togive notice and particulars to the Contractor if theEmployer considers himself entitled for payment.– What is the time bar for the Employer to give his notice?– Is the entitlement for payment the only thing theEmployer can claim for?29Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)1. DefinitionsParticular Conditions require data to be entered for theEmployer.2. Appointment of the EngineerEngineer’s roles are:- continuing design- administrative role as the Employer’s agent- supervisory- certifying- adjudicating.30Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)3. Possession of Site4. Access to SiteEmployer responsible for providing access to the Site inthe time stated in Appendix to Tender.If no time stated, access must be provided in a suchmanner to not delay the Contractor and his programmeof Works.Site Access can be withdrawn if the Contractor fails toprovide a Performance Security.5. Permits and ApprovalsAssist the Contractor for permits: Employer shallreasonably assist the Contractor in obtaining permits,31 licenses and approvals.Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)6. Ensure the co‐operation of his (the Employer’s) personnelSub-Clauses where the Employer and his personnel arerequired to act in a proper manner to fulfil the variousprovisions of the Contract (e.g., safety and environmentalmatters; maintaining the integrity of the insuranceprovisions).Employer shall be responsible for the good co‐operationof his personnel with the Contractor.Employer will take on similar safety measures andenvironment protection as required for the Contractor.7. Employer’s instructions8. Supply of materials and carrying out works32Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)9. Nominate specialist subcontractors10. Payments11. Appointing a DAB12. Submitting his financial arrangements when requiredEmployer shall submit, within 28 days after receiving anyrequest from the Contractor, reasonable evidence thatfinancial arrangements have been made and are beingmaintained enabling the Employer to pay the ContractPrice.13. Employer’s Claims If the Employer considers himself tobe entitled to any payment under any clause of theContract, the Employer or the Engineer shall give noticeand particulars to the Contractor.33Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses2.1: Right of Access to the Site - Key issuesEmployer to give Contractor right of access to andpossession of all parts of the Site as stated in theContract.Right to access to and possession of the Site notexclusive.If Contractor suffers delay or incurs costs due to (a) thefailure by the Employer to give access, (b) if no time isspecified, within such time as may be required to enablethe Contractor to proceed in accordance with hisprogramme, provided he gives notice he may be entitledto an extension of time and payment of any costs (plus34reasonable profitTahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses (Continued)No extension of time granted if Employer’s failure to givepossession or access caused by Contractor’s error ordelay.35Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses (Continued)2.2: Permits, Licenses and Approvals - Key issuesTo the extent that the Employer can, the Employer shallassist the Contractor:- to obtain copies of the relevant laws which are notreadily available; and- in the making of any applications for permits, licensesand approvals which the Contractor will need to makein accordance with those laws.Employer only required to provide this assistance if sorequested by the Contractor.36Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses (Continued)2.3. Employer’s Personnel - Key issuesEmployer shall be responsible for ensuring that theEmployer’s Personnel and his other contractors:- co-operate with the Contractor to the limited extentprovided for in Sub-Clause 4.6; (comply with the health& safety requirements set out in Sub-Clause 4.8);- take all reasonable steps to protect the environmentboth on and off the Site as required by Sub-Clause 4.18.37Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses (Continued)2.4: Employers Financial Arrangements - Key issuesIf the Contractor so requests, the Employer shall providewithin 28 days reasonable evidence that financialarrangements are in place to pay the Contract Price inaccordance with Clause 14.Employer must give notice to the Contractor if heintends to make any material change to his financialarrangements.If that evidence is not provided, Contractor may, subjectto the provision of the necessary notices, suspend workor even terminate the Contract.38Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses (Continued)2.5: Employer’s Claims - Key issuesIf Employer considers himself entitled to either anypayment or an extension of the Defects Notification, theEmployer or Engineer shall give notice and particulars tothe Contractor.Notice relating to payment should be given as soon aspracticable after the Employer has become aware of theevent or circumstance which gives rise to the claim.Any notice relating to the extension of the DefectsNotification Period should be given before the expiry ofthat period.39Tahseen SalehFIDIC – INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS – WWW.FIDIC.ORG – FIDIC@FIDIC.ORG – COPYRIGHT 2019
4.1 Parties to the Contracts and their Obligations – the EmployerThe Employer (Cont’d)Clause 2 Sub-Clauses (Continued)2.5: Employer’s Claims Key issues (continued)Employer must also provide substantiation including the basisof the claim and details of the relief sought.Once notice has been given, the Engineer shall make adetermination in accordance with Sub-Clause 3.5.Any amount payable under Sub-Clause 2.5 may be included asa deduction in the Contract Price and Payment Certificates.Em
Apr 01, 2020 · –Short Form of Contract (Green) –Design, Build and Operate Projects (Gold 1- Introduction . Parties to the Contract. FIDIC –INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS –WWW.FIDIC.ORG –FIDIC@FIDIC.ORG –COPYRIGHT 2019. 27. E
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