contracts management and administration (based on fidic ... · pdf filefidic red and green...

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Contracts Management and Administration

(Based on FIDIC Standard)

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“Outlining the Similarities

and Differences between

FIDIC Red and Green Book

Conditions of Contract”


Differences


Overview – Scope and Content

Generally speaking –

• Red Book for large Construction Projects

• Green Book for smaller, less complicated

Construction Projects – not necessarily

defined by money value.

• Red Book (1999) contains 20 Clauses and over

166 Sub-Clauses over 62 pages

• Green Book contains only 15 Clauses and

only 52 Sub-Clauses over 10 pages.


Overview – Engineer Duties

• Red Book: “Engineer” empowered to be

“impartial” with regards to making “fair

determinations” between the Contractor and

the Employer.

• Green Book: SC 3.2 - “Engineer” formal

position eliminated; “EmployeesRepresentative” – who COULD BE an Engineer

- acts for and in the interests of the Employer.

There is no dual role or duty to be impartial.


Overview – Risk Ownership

• Green Book: Overall, the risk allocation has

moved slightly in the contractor's favor. The

contractor allowed to recover time and money

for rectifying damage to works, goods and

documents caused by employers risks which

are most of the force majeure list plus use or

occupation and design by the employer. (GBSC

2.3, 7.3, 10.3 and 10.4)



• Green Book: Inclement weather is NOT provided for

in the Green form, though it is possible for the

parties to insert an express provision, allocating risk

to one party or the other for such eventuality.

• Since inclement weather is not a risk of the

employer, the contractor is not entitled under 7.3. to

an extension of time.

• Given any unjustified over-run will lead to liquidated

damages, (rate set out in the Appendix under 7.4 up

to a max of 10% of the contract sum) this represents

a considerable shift of liability onto the contractor.




• Red Book: Risk is “balanced” between the

Employer and Contractor;

➢ Contractor responsible for execution of all

work prior to the Take-Over Certificate.

➢ Employer is responsible for all designs and

specifications, providing access to the site to

the Contractor.




• Red Book: Inclement Weather remains a

legitimate reason for an extension of time

claim under these Conditions of Contract.

➢ SC 19.1, “Definition of Force Majeure” – (v)

“natural catastrophes such as earthquake,hurricane, typhoon or volcanic activity.”


Overview – Design Ownership


• Red Book: “The Employer, under the 1999 Red

Book Conditions of Contract – is completely

responsible for the specifications, drawings

and overall design of the project.

• “For Buildings and Engineering works

Designed by the Employer” – Title Page


Overview – Design Ownership


• Green Book: SC 5.2 - “The Contractor shall

remain responsible for his tendered design

and the design under this Clause, both of

which shall be fit for the intended purposes

defined in the Contract and he shall also

remain responsible for any infringement of any

patent or copyright in respect of the same”.• The Employer shall be responsible for the

Specification and Drawings however.


Alternative Dispute Resolution

• Red Book:

• SC 20.4; Obtaining Dispute Adjudication

Boards Decision

• SC 20.5; Amicable Settlement

• SC 20.6; Arbitration



• Red Book: SC 20.4; Obtaining Dispute

Adjudication Boards Decision

• If a dispute (of any kind whatsoever) arises between

the Parties in connection with, or arising out of, the

Contract or the execution of the Works, including any

dispute as to any certificate, determination,

instruction, opinion or valuation of the Engineer,

either Party may refer the dispute in writing to the

DAB for its decision, with copies to the other Party

and the Engineer. Such reference shall state that it is

given under this Sub-Clause..





• Within 84 days after receiving such reference,

or within such other period as may be

proposed by the DAB and approved by both

Parties, the DAB shall give its decision, which

shall be reasoned and shall state that it is

given under this Sub-Clause.





• The decision shall be binding on both Parties,

who shall promptly give effect to it unless and

until it shall be revised in an amicable

settlement or an arbitral award as described

below. Unless the Contract has already been

abandoned, repudiated or terminated, the

Contractor shall continue to proceed with the

Works in accordance with the Contract.



• Green Book: SC 15.1; Adjudication

• Unless settled amicably, any dispute or difference

which arises between the Contractor and the

Employer out of or in connection with the Contract,

including any valuation or other decision of the

Employer, shall be referred by either Party to

adjudication in accordance with the attached Rules

for Adjudication ("the Rules"). The adjudicator shall

be any person agreed by the Parties. In the event of

disagreement, the adjudicator shall be appointed in

accordance with the Rules.



• Red Book: SC 20.5; Amicable Decision

• Where notice of dissatisfaction has been given

under Sub-Clause 20.4 above, both Parties shall

attempt to settle the dispute amicably before the

commencement of arbitration. However, unless

both Parties agree otherwise, arbitration may be

commenced on or after the fifty-sixth day after the

day on which notice of dissatisfaction was given,

even if no attempt at amicable settlement has

been made.



• Green Book: SC 15.2;

“Notice of Dissatisfaction”

• If a Party is dissatisfied with the decision of the

adjudicator or if no decision is given within the

time set out in the Rules, the Party may give

notice of dissatisfaction referring to this Sub-

Clause within 28 days of receipt of the decision or

the expiry of the time for the decision.



• Green Book: SC 15.2;

“Notice of Dissatisfaction”

• If no notice of dissatisfaction is given within the

specified time, the decision shall be final and

binding on the Parties. If notice of dissatisfaction

is given within the specified time, the decision

shall be binding on the Parties who shall give

effect to it without delay unless and until the

decision of the adjudicator is revised by an

arbitrator.



• Red Book: SC 20.6; Arbitration

• Unless settled amicably, any dispute in respect of

which the DAB’s decision (if any) has not become

final and binding shall be finally settled by

international arbitration. Unless otherwise agreed

by both Parties:



• Red Book: SC 20.6; Arbitration

a) The dispute shall be finally settled under the

Rules of Arbitration of the International Chamber

of Commerce,

b) The dispute shall be settled by three arbitrators

appointed in accordance with these Rules, and

c) The arbitration shall be conducted in the

language for communications defined in Sub-

Clause 1.4 [Law and Language].



• Green Book: SC 15.3; Arbitration

• A dispute which has been the subject of a notice

of dissatisfaction shall be finally settled by a

single arbitrator under the rules specified in the

Appendix. In the absence of agreement, the

arbitrator shall be designated by the appointing

authority specified in the Appendix. Any hearing

shall be held at the place specified in the

Appendix and in the language referred to in Sub-

Clause 1.5.


Similarities


Duty to Report


Red Book: SC 1.8;

“Care and Supply of Documents”

• “If a Party becomes aware of an error or

defect of a technical nature in a document

which was prepared for use in executing the

Works, the Party shall promptly give notice to

the other Party of such error or defect.”


Duty to Report


Green Book: SC 10.3;

“Early Warning”

• “A Party shall notify the other as soon as he

is aware of any circumstance which may

delay or disrupt the Works, or which may give

rise to a claim for additional payment. The

Contractor shall take all reasonable steps to

minimise these effects.”


Claims – Time Bar

Red Book: SC 20.1;

“Contractors Claims”

• “If the Contractor considers himself to be entitled to

any extension of the Time for Completion and/or any

additional payment, under any Clause of these

Conditions or otherwise…, the Contractor shall give

notice to the Engineer, describing the event or

circumstance giving rise to the claim. The notice shall

be given as soon as practicable, and not later than 28

days after the Contractor became aware, or should

have become aware, of the event or circumstance.”


Claims – Time Bar



“Early Warning”

• “The Contractor shall submit to the Employer an

itemized make-up of the value of Variations and

claims within 28 days of the instruction or of the

event giving rise to the claim. The Employer shall

check and if possible agree the value. In the

absence of agreement, the Employer shall

determine the value.


Claims – Entitlement

Red Book: SC 20.1;

“Contractors Claims”

• “If the Contractor fails to give notice of a claim

within such period of 28 days, the Time for

Completion shall not be extended, the Contractor

shall not be entitled to additional payment, and

the Employer shall be discharged from all liability

in connection with the claim. Otherwise, the

following provisions of this Sub-Clause shall

apply.”


Claims – Entitlement



“Variation and Claim Procedure”

• “The Contractor's entitlement to extension to

the Time for Completion or additional

payment shall be limited to the time and

payment which would have been due if he had

given prompt notice and had taken all

reasonable steps.”


– Interim Payment

Red Book: SC 14.3;

“Application to Interim Payment Certificates”

• “The Contractor shall submit a Statement in six

copies to the Engineer after the end of each month,

in a form approved by the Engineer, showing in

detail the amounts to which the Contractor

considers himself to be entitled, together with

supporting documents which shall include the

report on the progress during this month in

accordance with Sub-Clause 4.21 [Progress

Reports].”


– Interim Payment

Red Book: SC 14.6;

“Issue of Interim Payment Certificates”

• “…Thereafter, the Engineer shall, within 28 days

after receiving a Statement and supporting

documents, issue to the Employer an Interim

Payment Certificate which shall state the amount

which the Engineer fairly determines to be due,

with supporting particulars.”


– Interim Payment


“Monthly Statements”

• “The Contractor shall submit each month to

the Employer a statement showing the

amounts to which he considers himself

entitled.”


– Interim Payment


“Interim Payments”

• “Within 28 days of delivery of each statement, the

less retention

at the rate stated in the Appendix, and less any

amount for which the Employer has specified his

reasons for disagreement.”

• Also, the Employer shall not be bound by any sum

previously considered by him to be due to the

Contractor.


– Final Payment

Red Book:

Applicable Sub-Clauses;

SC 11.9, Performance Certificate

SC 14.10, Statement at Completion

SC 14.11, Application for Final Payment

Certificate

SC 14.12, Discharge

SC 14.13, Issue of Final Payment Certificate


– Interim Payment

Red Book: SC 14.10; “Statement at Completion”

Within 84 days after receiving the Taking-Over

Certificate for the Works, the Contractor shall

submit to the Engineer six copies of a

Statement at completion with supporting

documents, in accordance with Sub-Clause 14.3

[Application for Interim Payment Certificates],

showing:


– Interim Payment

Red Book: SC 14.10; “Statement at Completion”

a) The value of all work done in accordance with

the Contract up to the date stated in the Taking-

Over Certificate for the Works,

b) Any further sums which the Contractor considers

to be due, and

c) An estimate of any other amounts which the

Contractor considers will become due to him

under the Contract. Estimated amounts shall be

shown separately in this Statement at

completion.


– Interim Payment

Red Book: SC 14.11;

“Application for Final Payment Certificate”

“Within 56 days after receiving the Performance

Certificate, the Contractor shall submit, to the

Engineer, six copies of a draft final statement

with supporting documents showing in detail in

a form approved by the Engineer:


– Interim Payment

Red Book: SC 14.11;


a)The value of all work done in accordance

with the Contract, and

b)Any further sums which the Contractor

considers to be due to him under the

Contract or otherwise.


– Interim Payment

Red Book: SC 14.11;


• “If the Engineer disagrees with or cannot verify

any part of the draft final statement, the

Contractor shall submit such further information

as the Engineer may reasonably require and shall

make such changes in the draft as may be agreed

between them. The Contractor shall then prepare

and submit to the Engineer the final statement as

agreed. This agreed statement is referred to in

these Conditions as the “Final Statement”.


– Interim Payment

Red Book: SC 14.12; “Discharge”

• “When submitting the Final Statement, the

Contractor shall submit a written discharge which

confirms that the total of the Final Statement

represents full and final settlement of all moneys

due to the Contractor under or in connection with

the Contract. This discharge may state that it

becomes effective when the Contractor has

received the Performance Security and the

outstanding balance of this total, in which event

the discharge shall be effective on such date.”


Claims – Final Payment

Red Book: SC 14.13;

“Issuance of Final Payment Certificate”

• “Within 28 days after receiving the Final

Statement and written discharge in

accordance with Sub-Clause 14.11

[Application for Final Payment Certificate]

and Sub-Clause 14.12 [Discharge], the

Engineer shall issue, to the Employer, the

Final Payment Certificate which shall state:


– Final Payment

Red Book: SC 14.13;

“Issuance of Final Payment Certificate”

a)The amount which is finally due, and

b) After giving credit to the Employer for all

amounts previously paid by the Employer and

for all sums to which the Employer is

entitled, the balance (if any) due from the

Employer to the Contractor or from the

Contractor to the Employer, as the case may

be.


– Final Payment


“Final Payment”

1. “Within 42 days of the latest of the events listed in

Sub-Clause 11.5 above, the Contractor shall submit

a final account to the Employer together with any

documentation reasonably required to enable the

Employer to ascertain the final contract value.


– Final Payment


“Final Payment”

2. “Within 28 days after the submission of this final

account, the Employer shall pay to the Contractor

any amount due. If the Employer disagrees with any

part of the Contractor's final account, he shall

specify his reasons for disagreement when making

payment.”


– Delayed Payment

Red Book: SC 14.8;

“Delayed Payment”

• If the Contractor does not receive

payment in accordance with Sub-Clause

14.7 [Payment], the Contractor shall be

entitled to receive financing charges

compounded monthly on the amount

unpaid during the period of delay.


– Delayed Payment

Red Book: SC 14.8;


• This period shall be deemed to

commence on the date for payment

specified in Sub-Clause 14.7 [Payment],

irrespective (in the case of its sub-

paragraph (b)) of the date on which any

Interim Payment Certificate is issued.


– Delayed Payment

Red Book: SC 14.8;


• Unless otherwise stated in the Particular

Conditions, these financing charges shall

be calculated at the annual rate of three

percentage points above the discount rate

of the central bank in the country of the

currency of payment, and shall be paid in

such currency.


– Delayed Payment



• The Contractor shall be entitled to interest at

the rate stated in the Appendix for each day

the Employer fails to pay beyond the

prescribed payment period.


– Care of Works

Red Book: SC 17.2;

“Contractor’s Care of the Works”

• The Contractor shall take full responsibility for

the care of the Works and Goods from the

Commencement Date until the Taking-Over

Certificate is issued (or is deemed to be issued

under Sub-Clause 10.1 [Taking Over of the Works

and Sections]) for the Works, when responsibility

for the care of the Works shall pass to the

Employer.


– Delayed Payment

Red Book: SC 17.2;


If a Taking-Over Certificate is issued (or is

so deemed to be issued) for any Section or

part of the Works, responsibility for the

care of the Section or part shall then pass

to the Employer.


– Delayed Payment



The Contractor shall take full responsibility for the

care of the Works from the Commencement Date

until the date of the Employer's notice under Sub-

Clause 8.2. Responsibility shall then pass to the

Employer. If any loss or damage happens to the

Works during the above period, the Contractor shall

rectify such loss or damage so that the Works

conform with the Contract.


– Delayed Payment



Unless the loss or damage happens as a result of an

Employer's Liability, the Contractor shall indemnify

the Employer, the Employer's contractors, agents

and employees against all loss or damage

happening to the Works and against all claims or

expense arising out of the Works caused by a

breach of the Contract, by negligence or by other

default of the Contractor, his agents or employees.