CIOB Complex Projects Contract 2013:CPC2013 and FIDIC: A Comparison

8 November 2013, London

Francis Ho, Head of Constructionfrancis.ho@olswang.com | + 44 20 7067 3000 | Twitter: @fkyh

FIDIC 1999 Suite

•Revamped 1999 First Edition

•Rainbow suite (Red, Yellow, Silver, Blue, Green, White, Gold, Pink and Orange)

•Based on common law form (overseas edition of ICE/ACE contract)

•Multi-language (English, Japanese, Polish, Chinese, Russian, amongst others)

•Most popular standard form for international contracting

•Can it work in any jurisdiction without amendment?

•What projects is it suitable for?

•How is it used in the Middle East?

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General Comparisons: CPC2013 and FIDIC

•CPC2013 time management focussed; evolution of Society of Construction Law’s Delay and Disruption Protocol

•FIDIC often used for major real estate projects but engineering contract at heart

•CPC2013 intended for use in UK and internationally –does not need UK adaptation

•FIDIC rarely used in UK and would need substantial adaptation

•CPC2013 a flexible form with no “variants”. Has suite of compatible contracts to enable “joined-up” approach

•FIDIC has certain sub-contracts (to Red and Yellow) but more disjointed approach (e.g. White Book an “outlier” from other FIDIC engineering forms)

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Design and Construction: CPC2013

•Allows for Contractor design of whole, part or none of the Works

•Contractor may rely on site information provided by Employer (clause 10.5)

•Provisions for fitness for purpose

•Requires design execution plan and design stage details (cl 10)

•BIM (cl 11)

•Testing and completion testing in Special Conditions

•Provides for sectional access to Site or sectional completion

•Provision to make good patent defects during Post-Completion Retention Period (cl 48)

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Time and Cost #1: CPC2013

•Single list of items entitling Contractor to time and/or money (Appendix F)

•Requires management information to be transparent

•Provides for dynamic critical path network in three densities with calculations and assumptions (clause 26)

•Requirement to keep detailed progress records (cl 32)

•Remedies for Contractor’s failure to comply, including suspension and termination

•Clear definitions of float and concurrency

•Early warning (cl 36)

•Risk Register (cl 37)

•Requires time impact analysis and windows analysis

•EOTs only permitted if predicted effect cannot be avoided. Can be reduced after award or else issued after relevant completion date if new information (cl 40)

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Time and Cost #2: CPC2013

•Employer can instruct acceleration (clause 43)

•Regular contemporaneous assessment of predicted out-turn cost

•Regular assessment of quantity of work done at contract rates

•Provides for payment based on interim and final assessments

•Can deduct from interim value any loss and expense incurred from Contractor’s default

•Provision for Pay Less Notices (in line with HGCRA 1996, as amended)

•Contractor must issue any requests for information 10 Business Days before needed. Submittals must be made 10 Business Days before logical date needed. Deemed approved if not rejected (cl 9)

•Interest on unpaid amounts if Local Law permits(cl 60)

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Disputes and other matters: CPC2013

•Insurance and performance security: see Special Conditions (clauses 29 and 30)

•No provision for performance liquidated damages (neither has FIDIC)

•Less complex provisions for payment in different currencies

•Employer can terminate for convenience subject to restrictions (cl 61)

•No reference to Operation & Maintenance Manuals on Substantial Completion

•Issue resolution by Principal Expert (but deemed agreed if not referred within specified time) (cl 65)

•Provision for mediation (cl 66.1)

•Provision for adjudication optional (mandatory if required under Local Law)

•Arbitration decisions and awards are public and provision for joinder and/or consolidation of arbitral disputes, defaults to LCIA Rules (cl 66.11)

•Provision for collateral warranties (cl 31)

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