Appendix C
Having used FIDIC 99 as the basis for identifying the modifications made within the analyzed contracts, it was necessary to understand the
differences between FIDIC 87 and FIDIC 99. The below comparison provides an overview on what additions and enhancements were made to
FIDIC 87 reaching the form of FIDIC 99. This also shows the advantages of using FIDIC 99 as the form of general conditions over FIDIC 87,
noting that the below comparison solely addresses the top 30 clauses identified through the analysis. Similar statements between FIDIC 87 and 99
are not copied in the below comparisons, but merely the ones which show the differences.
Points noted between FIDIC 87 and FIDIC 99:
1- Performance Security
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 4.2:
If the terms of the Performance Security
specify its expiry date, and the Contractor has
not become entitled to receive the Performance
Certificate by the date 28 days prior to the
expiry date, the Contractor shall extend the
validity of the Performance Security until the
Works have been completed and any defects
have been remedied.
FIDIC 99 has added a provision addressing the
case when an expiry date is specified within
the Performance Security, while FIDIC 87 is
silent regarding this point. However, it is
generally stated through both FIDIC editions
that the Performance Security shall be valid
until the completion of the Works and remedial
of defects therein.
Sub-Clause 10.3:
Prior to making a claim under the performance
security the Employer shall, in every case,
notify the Contractor stating the nature of the
default in respect of which the claim is to be
made.
Sub-Clause 4.2:
The Employer shall not make a claim under the
Performance Security, except for amounts to
which the Employer is entitled under the
Contract in the event of:
(a) failure by the Contractor to extend the
FIDIC 87 has only required the Employer to
notify the Contractor whenever a claim under
the Performance Security shall be made while
FIDIC 99 has detailed the cases that entitled
the Employer to make a claim under the
Performance Security. Furthermore, FIDIC 99
validity of the Performance Security as
described in the preceding paragraph, in
which event the Employer may claim the
full amount of the Performance Security,
(b) failure by the Contractor to pay the
Employer an amount due, as either
agreed by the Contractor or determined
under Sub-Clause 2.5 [Employer’s
Claims] or Clause 20 [Claims, Disputes
and Arbitration], within 42 days after
this agreement or determination,
(c) failure by the Contractor to remedy a
default within 42 days after receiving the
Employer’s notice requiring the default
to be remedied, or
(d) circumstances which entitle the
Employer to termination under Sub-
Clause 15.2 [Termination by Employer],
irrespective of whether notice of
termination has been given.
The Employer shall indemnify and hold the
Contractor harmless against and from all
damages, losses and expenses (including legal
fees and expenses) resulting from a claim
under the Performance Security to the extent to
which the Employer was not entitled to make
the claim.
has indemnified the Contractor harmless
against any claims in relation to the
Performance Security to the extent to which
the Employer is not entitled to make the claim.
Sub-Clause 10.2:
“The performance security shall be valid until
the Contractor…”
Sub-Clause 4.2:
“…the Performance Security is valid and
enforceable until the Contractor…”
Various minor differences were identified
between both editions of the FIDIC, such as
this example.
2- Programme of Works / Revised Programme
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 14.1:
The Contractor shall, within the time stated in
Part II of these Conditions after the date of the
Letter of Acceptance, submit to the Engineer
for his consent a programme
Sub-Clause 8.3:
The Contractor shall submit a detailed time
programme to the Engineer within 28 days
after receiving the notice under Sub-Clause 8.1
[Commencement of Works].
FIDIC 99 has specified a duration of 28 days
while FIDIC 87 has referred to Part II of these
Conditions.
Sub-Clause 14.1:
… in such form and detail as the Engineer shall
reasonably prescribe, for the execution of the
Works. The Contractor shall, whenever
required by the Engineer, also provide in
writing for his information a general
description of the arrangements and methods
which the Contractor proposes to adopt for the
execution of the Works.”
Sub-Clause 8.3:
Each programme shall include:
(a) the order in which the Contractor intends
to carry out the Works, including the
anticipated timing of each stage of
design (if any), Contractor’s
Documents, procurement, manufacture
of Plant, delivery to Site, construction,
erection and testing,
(b) each of these stages for work by each
nominated Subcontractor (as defined in
Clause 5 [Nominated Subcontractors]),
(c) the sequence and timing of inspections
and tests specified in the Contract, and
(d) a supporting report which includes:
(i) a general description of the methods
which the Contractor intends to
adopt, and of the major stages, in the
execution of the Works, and
(ii) details showing the Contractor’s
reasonable estimate of the
number of each class of
Contractor’s Personnel and of
FIDIC 87 has not specified certain
requirements for the programme, but has left
such requirements up to the Engineer’s
reasonable prescription.
FIDIC 99, on the other hand, has stated
specific requirements for the programme.
each type of Contractor’s
Equipment, required on the Site
for each major stage.
Sub-Clause 14.2:
If at any time it should appear to the Engineer
that the actual progress of the Works does not
conform to the programme to which consent
has been given under Sub-Clause 14.1, the
Contractor shall produce, at the request of the
Engineer, a revised programme showing the
modifications to such programme necessary to
ensure completion of the Works within the
Time for Completion.
Sub-Clause 8.3:
The Contractor shall also submit a revised
programme whenever the previous programme
is inconsistent with actual progress or with the
Contractor’s obligations.
If, at any time, the Engineer gives notice to the
Contractor that a programme fails (to the
extent stated) to comply with the Contract or to
be consistent with actual progress and the
Contractor’s stated intentions, the Contractor
shall submit a revised programme to the
Engineer in accordance with this Sub-Clause.”
FIDIC 87 has made the requirement of
producing a revised programme up to when it
appears to the Engineer that the actual progress
of the Works does not conform the programme
to which consent has been given under Sub-
Clause 14.1. Such a programme is required to
show the modifications between both
programmes that would allow ensuring
completion of the Works within the Time for
Completion.
FIDIC 99 has obliged the Contractor to submit
a revised programme whenever the previous
one is inconsistent with the actual progress or
with the Contractor’s obligations, with no
consideration as to what may “appear to the
Engineer” regarding the progress of the Works,
as well as whenever requested by the Engineer
through a relevant notice. The requirements
that are to be considered are the same as
mentioned in the previous point.
Sub-Clause 8.3:
Unless the Engineer, within 21 days after
receiving a programme, gives notice to the
Contractor stating the extent to which it does
not comply with the Contract, the Contractor
shall proceed in accordance with the
programme, subject to his other obligations
under the Contract. The Employer’s Personnel
FIDIC 87 is silent regarding this point.
shall be entitled to rely upon the programme
when planning their activities.
Sub-Clause 8.3:
The Contractor shall promptly give notice to
the Engineer of specific probable future events
or circumstances which may adversely affect
the work, increase the Contract Price or delay
the execution of the Works. The Engineer may
require the Contractor to submit an estimate of
the anticipated effect of the future event or
circumstances, and/or a proposal under Sub-
Clause 13.3 [Variation Procedure].
FIDIC 87 is silent regarding this point.
3- Contract Price / Customs / Taxes
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 1.1 (e)“(i) “Contract Price” means
the sum stated in the Letter of Acceptance as
payable to the Contractor for the execution and
completion of the Works and the remedying of
any defects therein in accordance with the
provisions of the Contract.”
Sub-Clause 1.1.4.2:
“Contract Price” means the price defined in
Sub-Clause 14.1 [The Contract Price], and
includes adjustments in accordance with the
Contract.”
FIDIC 87 has briefly referred to Contract Price
as the sum required for the execution and
completion of the Works, while FIDIC 99 has
detailed a definition of “Contract Price”
through Sub-Clause 14.1. The said Sub-Clause
14.1 has specified the inclusion of taxes, duties
and fees related to the Contract within the
Contract Price, as well as other detailed
information.
Sub-Clause 26.1:
“The Contractor shall conform in all respects,
including by the giving of all notices and the
paying of all fees, with the provisions of:
(a) any National or State Statute, Ordinance, or
other Law, or any regulation, or bye-law of any
local or other duly constituted authority in
relation to the execution and completion of the
Works and the remedying of any defects
therein, and
(b) the rules and regulations of all public
bodies and companies whose property or rights
are affected or may be affected in any way by
the Works, and the Contractor shall keep the
Sub-Clause 1.13:
“The Contractor shall, in performing the
Contract, comply with applicable Laws.
Unless otherwise stated in the Particular
Conditions:
(a) the Employer shall have obtained (or
shall obtain) the planning, zoning or
similar permission for the Permanent
Works, and any other permissions
described in the Specification as having
been (or being) obtained by the
Employer; and the Employer shall
indemnify and hold the Contractor
FIDIC 87 and 99 have mainly included similar
provisions with regards to compliance with
laws, statutes and regulations.
Employer indemnified against all penalties and
liability of every kind for breach of any such
provisions.
Provided always that the Employer shall be
responsible for obtaining any planning, zoning
or other similar permission required for the
Works to proceed and shall indemnify the
Contractor in accordance with Sub-Clause
22.3.”
harmless against and from the
consequences of any failure to do so; and
(b) the Contractor shall give all notices, pay
all taxes, duties and fees, and obtain all
permits, licences and approvals, as
required by the Laws in relation to the
execution and completion of the Works
and the remedying of any defects; and
the Contractor shall indemnify and hold
the Employer harmless against and from
the consequences of any failure to do so.”
Sub-Clause 54.3:
“The Employer will use his best endeavours in
assisting the Contractor, where required, in
obtaining clearance through the Customs of
Contractor's Equipment, materials and other
things required for the Works.”
Sub-Clause 2.2:
The Employer shall (where he is in a position
to do so) provide reasonable assistance to the
Contractor at the request of the Contractor:
(a) by obtaining copies of the Laws of the
Country which are relevant to the Contract but
are not readily available, and
(b) for the Contractor’s applications for any
permits, licences or approvals required
by the Laws of the Country:
(i)which the Contractor is required to obtain
under Sub-Clause 1.13 [Compliance with
Laws],
(ii)for the delivery of Goods, including
clearance through customs, and
(iii)for the export of Contractor’s Equipment
when it is removed from the Site.
FIDIC 87 and 99 are similar with regards to
having the Employer assisting the Contractor
with obtaining certain clearances to his best
endeavours or through the provision of
reasonable assistance. FIDIC 99 included more
requirements.
Sub-Clause 9.1:
“The Contractor shall, if called upon so to do,
enter into and execute the Contract Agreement,
Sub-Clause 1.6:
“The Parties shall enter into a Contract
Agreement within 28 days after the Contractor
FIDIC 87 and 99 are mainly similar with
regards to the responsibility of paying costs (if
to be prepared and completed at the cost of the
Employer, in the form annexed to these
Conditions with such modification as may be
necessary.”
receives the Letter of Acceptance, unless they
agree otherwise. The Contract Agreement shall
be based upon the form annexed to the
Particular Conditions. The costs of stamp
duties and similar charges (if any) imposed by
law in connection with entry into the Contract
Agreement shall be borne by the Employer.”
any) related to entering into the Contract
Agreement, with minor wording differences.
4- Language and Law
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 1.4:
The language for communications shall be that
stated in the Appendix to Tender. If no
language is stated there, the language for
communications shall be the language in
which the Contract (or most of it) is written
FIDIC 99 has added a provision addressing the
language of communication, while FIDIC 87 is
silent in this regard. No other considerable
differences were identified between FIDIC 87
and FIDIC 99.
5- Priority of Contract Documents
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 5.2:
(1) The Contract Agreement (if completed);
(2) The Letter of Acceptance;
(3) The Tender;
(4) Part II of these Conditions;
(5) Part I of these Conditions; and
(6) Any other document forming part of the
Contract.
Sub-Clause 1.5:
(a) the Contract Agreement (if any),
(b) the Letter of Acceptance,
(c) the Letter of Tender,
(d) the Particular Conditions,
(e) these General Conditions,
(f) the Specification,
(g) the Drawings, and
(h) the Schedules and any other documents
forming part of the Contract.
FIDIC 99 has addressed some more documents
forming part of the Contract (i.e. Specification,
Drawings and Schedules), and prioritized
them. No other considerable differences were
identified between FIDIC 87 and FIDIC 99.
6- Health, Safety and Environment
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 19.1:
The Contractor shall, throughout the execution
and completion of the Works and the
remedying of any defects therein:
(a) have full regard for the safety of all persons
entitled to be upon the Site and keep the Site
(so far as the same is under his control) and the
Works (so far as the same are not completed or
occupied by the
Employer) in an orderly state appropriate to the
avoidance of danger to such persons,
(b) provide and maintain at his own cost all
lights, guards, fencing, warning signs and
watching, when and where necessary or
required by the Engineer or by any duly
constituted authority, for the protection of the
Works or for the safety and convenience of the
public or others, and
(c) take all reasonable steps to protect the
environment on and off the Site and to avoid
damage or nuisance to persons or to property
of the public or others resulting from pollution,
noise or other causes arising as a consequence
of his methods of operation.
Sub-Clause 4.8:
The Contractor shall:
(a) comply with all applicable safety
regulations,
(b) take care for the safety of all persons
entitled to be on the Site,
(c) use reasonable efforts to keep the Site and
Works clear of unnecessary obstruction so as
to avoid danger to these persons,
(d) provide fencing, lighting, guarding and
watching of the Works until completion and
taking over under Clause 10 [Employer’s
Taking Over], and
(e) provide any Temporary Works (including
roadways, footways, guards and fences) which
may be necessary, because of the execution of
the Works, for the use and protection of the
public and of owners and occupiers of adjacent
land.
The Contractor shall take all reasonable steps
to protect the environment (both on and off the
Site) and to limit damage and nuisance to
people and property resulting from pollution,
noise and other results of his operations.
FIDIC 99 has mainly covered the provisions
included within FIDIC 87 with the exception
of minor differences. FIDIC 99 has required
the Contractor to provide fencing, lighting,
guarding and watching of the Works, while
FIDIC 87 has required him to provide similar
items “when and where necessary or required
by the Engineer or by any duly constituted
authority, for the protection of the
Works or for the safety and convenience of the
public...” FIDIC 99 has added the provision of
Temporary Works, as necessary, “for the use
and protection of the public and of owners…”
FIDIC 99 has added various more provision, as
shown below.
Sub-Clause 4.18:
The Contractor shall ensure that emissions,
surface discharges and effluent from the
Contractor’s activities shall not exceed the
values indicated in the Specification, and shall
not exceed the values prescribed by applicable
Laws.
FIDIC 99 has specified a limit for emission,
surface discharges and effluent while FIDIC
87 is silent in this regard.
Unless otherwise stated in the Particular
Conditions:
(a) the Contractor shall be responsible for
keeping unauthorised persons off the Site, and
(b) authorised persons shall be limited to the
Contractor’s Personnel and the
Employer’s Personnel; and to any other
personnel notified to the Contractor, by
the Employer or the Engineer, as
authorised personnel of the Employer’s
other contractors on the Site.
FIDIC 99 has addressed the authorization of
persons allowed to stay onsite, while FIDIC 87
is silent in this regard.
Sub-Clause 6.7:
The Contractor shall at all times take all
reasonable precautions to maintain the health
and safety of the Contractor’s Personnel. In
collaboration with local health authorities, the
Contractor shall ensure that medical staff, first
aid facilities, sick bay and ambulance service
are available at all times at the Site and at any
accommodation for Contractor’s and
Employer’s Personnel, and that suitable
arrangements are made for all necessary
welfare and hygiene requirements and for the
prevention of epidemics.
The Contractor shall appoint an accident
FIDIC 99 has addressed and detailed Health
and Safety Measures that are required onsite
while FIDIC 87 is silent in this regard.
prevention officer at the Site, responsible for
maintaining safety and protection against
accidents. This person shall be qualified for
this responsibility, and shall have the authority
to issue instructions and take protective
measures to prevent accidents. Throughout the
execution of the Works, the Contractor shall
provide whatever is required by this person to
exercise this responsibility and authority.
The Contractor shall send, to the Engineer,
details of any accident as soon as practicable
after its occurrence. The Contractor shall
maintain records and make reports concerning
health, safety and welfare of persons, and
damage to property, as the Engineer may
reasonably require.
7- Variations
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 13.1:
Variations may be initiated by the Engineer at
any time prior to issuing the Taking-Over
Certificate for the Works, either by an
instruction or by a request for the Contractor to
submit a proposal.
FIDIC 99 has specified the time by which
variations may be initiated, while FIDIC 87 is
silent in this regard.
Sub-Clause 13.1:
The Contractor shall execute and be bound by
each Variation, unless the Contractor promptly
gives notice to the Engineer stating (with
supporting particulars) that the Contractor
cannot readily obtain the Goods required for
the Variation.
FIDIC 99 has bounded the Contractor by each
variation and provided him a room for
objecting against following variations
whenever he is unable to obtain related Goods.
Sub-Clause 51.1:
(a) increase or decrease the quantity of any
work included in the Contract,
(b) omit any such work (but not if the omitted
work is to be carried out by the Employer or by
another contractor),
(c) change the character or quality or kind of
any such work,
(d) change the levels, lines, position and
dimensions of any part of the Works,
(e) execute additional work of any kind
necessary for the completion of the Works, or
(f) change any specified sequence or timing of
construction of any part of the Works.
Sub-Clause 13.1:
(a) changes to the quantities of any item of
work included in the Contract (however, such
changes do not necessarily constitute a
Variation),
(b) changes to the quality and other
characteristics of any item of work,
(c) changes to the levels, positions and/or
dimensions of any part of the Works,
(d) omission of any work unless it is to be
carried out by others,
(e) any additional work, Plant, Materials or
services necessary for the Permanent Works,
including any associated Tests on Completion,
boreholes and other testing and exploratory
Minor differences were identified between
FIDIC 87 and FIDIC 99 with regards to this
point.
work, or
(f) changes to the sequence or timing of the
execution of the Works.
Sub-Clause 51.1:
No such variation shall in any way vitiate or
invalidate the Contract, but the effect, if any,
of all such variations shall be valued in
accordance with Clause 52. Provided that
where the issue of an instruction to vary the
Works is necessitated by some default of or
breach of contract by the Contractor or for
which he is responsible, any additional cost
attributable to such default shall be borne by
the Contractor.
FIDIC 87 has addressed the effect of variations
on the Contract, and deemed the Contractor
responsible for any costs arising due to a
variation necessitated due to his default. FIDIC
99 is silent in this regard.
Sub-Clause 51.2:
Provided that no instruction shall be required
for increase or decrease in the quantity of any
work where such increase or decrease is not the
result of an instruction given under this Clause,
but is the result of the quantities exceeding or
being less than those stated in the Bill of
Quantities.
Sub-Clause 13.1:
(a) changes to the quantities of any item of
work included in the Contract (however, such
changes do not necessarily constitute a
Variation),
Both forms have addressed the increase or
decrease of quantities; however, FIDIC 87 has
stated such changes shall not be deemed as
variations unless they are instructed under the
relevant Sub-Clause, while FIDIC 99 has
generally stated that such changes may not
necessarily constitute a variation.
Sub-Clause 13.3:
If the Engineer requests a proposal, prior to
instructing a Variation, the Contractor shall
respond in writing as soon as practicable,
either by giving reasons why he cannot comply
(if this is the case) or by submitting:
(a) a description of the proposed work to be
performed and a programme for its execution,
(b) the Contractor’s proposal for any
FIDIC 99 has allowed for requesting
proposals, prior to instructing variations, by
the Engineer, and provided the relevant
procedures to be followed. FIDIC 87 is silent
in this regard.
necessary modifications to the
programme according to Sub-Clause 8.3
[Programme] and to the Time for
Completion, and
(c) the Contractor’s proposal for evaluation
of the Variation.
The Engineer shall, as soon as practicable after
receiving such proposal (under Sub-Clause
13.2 [Value Engineering] or otherwise),
respond with approval, disapproval or
comments. The Contractor shall not delay any
work whilst awaiting a response.
Each instruction to execute a Variation, with
any requirements for the recording of Costs,
shall be issued by the Engineer to the
Contractor, who shall acknowledge receipt.
Each Variation shall be evaluated in
accordance with Clause 12 [Measurement and
Evaluation], unless the Engineer instructs or
approves otherwise in accordance with this
Clause.
Sub-Clause 52.1:
All variations referred to in Clause 51 and any
additions to the Contract Price which are
required to be determined in accordance with
Clause 52 (for the purposes of this Clause
referred to as “varied work”), shall be valued
at the rates and prices set out in the Contract if,
in the opinion of the Engineer, the same shall
be applicable. If the Contract does not contain
Sub-Clause 12.3:
Except as otherwise stated in the Contract, the
Engineer shall proceed in accordance with
Sub-Clause 3.5 [Determinations] to agree or
determine the Contract Price by evaluating
each item of work, applying the measurement
agreed or determined in accordance with the
above Sub-Clauses 12.1 and 12.2 and the
appropriate rate or price for the item.
Both forms have specified the use of the
applicable rates and prices set in the Contractor
for the evaluation purposes. Whenever there
are no applicable rates and prices, FIDIC 87
has specified that rates and prices in the
Contract shall be used as the basis for
valuation, while FIDIC 99 has specified the
use of those specified for similar work. FIDIC
99 has provided certain conditions for the
any rates or prices applicable to the varied
work, the rates and prices in the Contract shall
be used as the basis for valuation so far as may
be reasonable, failing which, after due
consultation by the Engineer with the
Employer and the Contractor, suitable rates or
prices shall be agreed upon between the
Engineer and the Contractor. In the event of
disagreement the Engineer shall fix such rates
or prices as are, in his opinion, appropriate and
shall notify the Contractor accordingly, with a
copy to the Employer. Until such time as rates
or prices are agreed or fixed, the Engineer shall
determine provisional rates or prices to enable
on-account payments to be included in
certificates issued in accordance with Clause
60.
For each item of work, the appropriate rate or
price for the item shall be the rate or price
specified for such item in the Contract or, if
there is no such item, specified for similar
work. However, a new rate or price shall be
appropriate for an item of work if:
(a) (i) the measured quantity of the item is
changed by more than 10% from the
quantity of this item in the Bill of
Quantities or other Schedule
(ii) this change in quantity multiplied
by such specified rate for this item
exceeds 0.01% of the Accepted
Contract Amount,
(iii) this change in quantity directly
changes the Cost per unit quantity of
this item by more than 1%, and
(iv) this item is not specified in the
Contract as a “fixed rate item”;
Or
(b) (i) the work is instructed under Clause
13 [Variations and Adjustments],
(ii) no rate or price is specified in the
Contract for this item, and
(iii) no specified rate or price is
appropriate because the item of work is
not of similar character, or is not
executed under similar conditions, as
any item in the Contract.
Each new rate or price shall be derived from
any relevant rates or prices in the Contract,
with reasonable adjustments to take account of
appropriateness of a new rate or price for an
item of work, while FIDIC 87 has left such a
matter open to the agreement between the
Engineer and the Contractor. Both forms have
allowed for determining a certain rate or price
by the Engineer to be used for interim
payments until such an agreement is reached.
the matters described in sub-paragraph (a)
and/or (b), as applicable. If no rates or prices
are relevant for the derivation of a new rate or
price, it shall be derived from the reasonable
Cost of executing the work, together with
reasonable profit, taking account of any other
relevant matters.
Until such time as an appropriate rate or price
is agreed or determined, the Engineer shall
determine a provisional rate or price for the
purposes of Interim Payment Certificates.
8- Payment
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 60.2:
Provided that the Engineer shall not be bound
to certify any payment under this Sub-Clause
if the net amount thereof, after all retentions
and deductions, would be less than the
Minimum Amount of Interim Payment
Certificates stated in the Appendix to Tender.
Sub-Clause 14.6:
However, prior to issuing the Taking-Over
Certificate for the Works, the Engineer shall
not be bound to issue an Interim Payment
Certificate in an amount which would (after
retention and other deductions) be less than the
minimum amount of Interim Payment
Certificates (if any) stated in the Appendix to
Tender. In this event, the Engineer shall give
notice to the Contractor accordingly.
No considerable differences were identified
between FIDIC 87 and 99 with regards to
Minimum amount of Interim payment
Certificates other than that FIDIC 99 has
required the Engineer to notify the Contractor
accordingly.
Sub-Clause 14.6:
An Interim Payment Certificate shall not be
withheld for any other reason, although:
(a) if any thing supplied or work done by the
Contractor is not in accordance with the
Contract, the cost of rectification or
replacement may be withheld until
rectification or replacement has been
completed; and/or
(b) if the Contractor was or is failing to
perform any work or obligation in
accordance with the Contract, and had
been so notified by the Engineer, the
value of this work or obligation may be
withheld until the work or obligation has
been performed.
FIDIC 99 has stated the cases which may lead
to withholding the Interim Payment
Certificates, while FIDIC 87 is silent in this
regard.
Sub-Clause 60.4: Sub-Clause 14.6:
The Engineer may in any Payment Certificate
Minor differences in wording have been
identified between FIDIC 87 and 99 with
The Engineer may by any Interim Payment
Certificate make any correction or
modification in any previous Interim Payment
Certificate which shall have been issued by
him and shall have authority, if any work is not
being carried out to his satisfaction, to omit or
reduce the value of such work in any Interim
Payment Certificate.
make any correction or modification that
should properly be made to any previous
Payment Certificate. A Payment Certificate
shall not be deemed to indicate the Engineer’s
acceptance, approval, consent or satisfaction.
regards to correction of certificates. FIDIC 87
has elaborated on the reason that would allow
the Engineer to correct any payment
certificate, as opposed to FIDIC 99, which was
brief in this regard. FIDIC 99 has added that
payment certificates are not “deemed to
indicate the Engineer’s acceptance, approval,
consent or satisfaction.”
Sub-Clause 14.7:
The Employer shall pay to the Contractor:
(a) the first instalment of the advance
payment within 42 days after issuing the
Letter of Acceptance or within 21 days
after receiving the documents in
accordance with Sub-Clause 4.2
[Performance Security] and Sub-Clause
14.2 [Advance Payment], whichever is
later;
FIDIC 99 has added a provision related to the
payment of the Advance Payment, while
FIDIC 87 does not include provisions related
to Advance Payment.
Sub-Clause 60.10:
The amount due to the Contractor under any
Interim Payment Certificate issued by the
Engineer pursuant to this Clause, or to any
other term of the Contract, shall, subject to
Clause 47, be paid by the Employer to the
Contractor within 28 days after such Interim
Payment Certificate has been delivered to the
Employer…
Sub-Clause 14.7:
The Employer shall pay to the Contractor:
(b) the amount certified in each Interim
Payment Certificate within 56 days after
the Engineer receives the Statement and
supporting documents; and
FIDIC 87 has required the Employer to pay the
Contractor within 28 days after the time by
which the Interim Payment Certificate has
been delivered to the Employer, while FIDIC
99 has required such payment to be made
within 56 days after the Engineer received the
statement and supporting documents.
Sub-Clause 60.10:
In the event of the failure of the Employer to
make payment within the times stated, the
Employer shall pay to the Contractor interest
Sub-Clause 14.8:
If the Contractor does not receive payment in
accordance with Sub-Clause 14.7 [Payment],
the Contractor shall be entitled to receive
FIDIC 87 has required the Employer to pay an
interest at the rate stated in the Appendix to
Tender in case it failed to make the
Contractor’s payment within the specified
at the rate stated in the Appendix to Tender
upon all sums unpaid from the date by which
the same should have been paid.
financing charges compounded monthly on the
amount unpaid during the period of delay…
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.
The Contractor shall be entitled to this
payment without formal notice or certification,
and without prejudice to any other right or
remedy.
times. FIDIC 99 has entitled the Contractor to
receive financing charges for the same, for
which criterion of calculation was provided.
9- Insurance
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 21.1:
The Contractor shall, without limiting his or
the Employer’s obligations and responsibilities
under Clause 20, insure: …
Sub-Clause 18.1:
In this Clause, “insuring Party” means, for
each type of insurance, the Party responsible
for effecting and maintaining the insurance
specified in the relevant Sub-Clause.
Wherever the Contractor is the insuring Party,
each insurance shall be effected with insurers
and in terms approved by the Employer. These
terms shall be…
Wherever the Employer is the insuring Party,
each insurance shall be effected with insurers
and in terms consistent with the details
annexed to the Particular Conditions.
FIDIC 87 has deemed the Contractor as the
party that shall make the insurances as required
by the Contract, while FIDIC 99 has added the
possibility that the Employer might become
the insuring party, and has set different
requirements based on each possibility.
Sub-Clause 25.1:
The Contractor shall provide evidence to the
Employer prior to the start of work at the Site
that the insurances required under the Contract
have been effected and shall, within 84 days of
the Commencement Date, provide the
insurance policies to the Employer. When
providing such evidence and such policies to
the Employer, the Contractor shall notify the
Engineer of so doing. Such insurance policies
shall be consistent with the general terms
agreed prior to the issue of the Letter of
Acceptance. The Contractor shall effect all
Sub-Clause 18.1:
The relevant insuring Party shall, within the
respective periods stated in the Appendix to
Tender (calculated from the Commencement
Date), submit to the other Party:
(a) evidence that the insurances described in
this Clause have been effected, and
(b) copies of the policies for the insurances
described in Sub-Clause 18.2 [Insurance
for Works and Contractor’s Equipment]
and Sub-Clause 18.3 [Insurance against
Injury to Persons and Damage to
Property].
FIDIC 87 has detailed the requirements for
submitting certain insurance evidences and
polices, while FIDIC 99 has briefed these
requirements through references to the
Appendix to Tender and other Sub-Clause of
the Contract. Minor differences were identified
between the two forms in relation with this
provision.
insurances for which he is responsible with
insurers and in terms approved by the
Employer.
Sub-Clause 25.2:
The Contractor shall notify the insurers of
changes in the nature, extent or programme for
the execution of the Works and ensure the
adequacy of the insurances at all times in
accordance with the terms of the Contract and
shall, when required, produce to the Employer
the insurance policies in force and the receipts
for payment of the current premiums.
Sub-Clause 18.1:
When each premium is paid, the insuring Party
shall submit evidence of payment to the other
Party. Whenever evidence or policies are
submitted, the insuring Party shall also give
notice to the Engineer.
Each Party shall comply with the conditions
stipulated in each of the insurance policies.
The insuring Party shall keep the insurers
informed of any relevant changes to the
execution of the Works and ensure that
insurance is maintained in accordance with this
Clause.
Minor differences were identified between the
two forms with regards to this provision, such
as requiring the insuring Party to notify the
Engineer whenever evidences or policies are
submitted through FIDIC 99, while FIDIC 87
is silent in this regard. Moreover, FIDIC 99 has
required the insuring Party to submit evidence
of payment to the other Party, while FIDIC 87
has not introduced this as an obligation to be
fulfilled in all circumstances, but only “when
required” by the Employer.
Sub-Clause 18.1:
Neither Party shall make any material
alteration to the terms of any insurance without
the prior approval of the other Party. If an
insurer makes (or attempts to make) any
alteration, the Party first notified by the insurer
shall promptly give notice to the other Party.
FIDIC 99 has required the insuring Party to
notify the other whenever any changes to the
terms of any insurance may take place, without
approval the approval of the other, while
FIDIC 87 is silent in this regard.
Sub-Clause 21.3:
Any amounts not insured or not recovered
from the insurers shall be borne by the
Employer or the Contractor in accordance with
their responsibilities under Clause 20.
Sub-Clause 18.1:
Nothing in this Clause limits the obligations,
liabilities or responsibilities of the Contractor
or the Employer, under the other terms of the
Contract or otherwise. Any amounts not
insured or not recovered from the insurers shall
be borne by the Contractor and/or the
Employer in accordance with these
obligations, liabilities or responsibilities.
FIDIC 87 has referred to Clause 20 for which
provision shall apply in relation to any
amounts not insured or not recovered from the
insurers. The said Clause has detailed the
liabilities and obligations of the Contractor and
the Employer in relation to the “Care of
Works” and “Responsibility to Rectify Loss or
Damage”. FIDIC 99 has required the insuring
Party to pay for the amounts that should have
However, if the insuring Party fails to effect
and keep in force an insurance which is
available and which it is required to effect and
maintain under the Contract, and the other
Party neither approves the omission nor effects
insurance for the coverage relevant to this
default, any moneys which should have been
recoverable under this insurance shall be paid
by the insuring Party.
been recoverable under the insurance with
regards to the same.
Sub-Clause 25.3:
If the Contractor fails to effect and keep in
force any of the insurances required under the
Contract, or fails to provide the policies to the
Employer within the period required by Sub-
Clause 25.1, then and in any such case the
Employer may effect and keep in force any
such insurances and pay any premium as may
be necessary for that purpose and from time to
time deduct the amount so paid from any
monies due or to become due to the Contractor,
or recover the same as a debt due from the
Contractor.
Sub-Clause 18.1:
If the insuring Party fails to effect and keep in
force any of the insurances it is required to
effect and maintain under the Contract, or fails
to provide satisfactory evidence and copies of
policies in accordance with this Sub-Clause,
the other Party may (at its option and without
prejudice to any other right or remedy) effect
insurance for the relevant coverage and pay the
premiums due. The insuring Party shall pay the
amount of these premiums to the other Party,
and the Contract Price shall be adjusted
accordingly.
Various differences were identified between
the two FIDIC forms with regards to failure to
effect and keep in force insurances. FIDIC 87
has unified the consequences of the said failure
with the provision of the policies to Employer
within specified time frame while FIDIC 99
has unified the same with the failure to provide
satisfactory evidence and copies of policies.
FIDIC 87 has specified that such a failure shall
allow the Employer to effect and keep in force
any such insurances and pay the premium, for
which value would be deducted from the
Contractor through certain ways of deduction.
FIDIC 99 has allowed the other party to effect
insurance for the relevant coverage and pay the
premiums due, and required the insuring Party
to pay the amounts resulting from this failure
without further details.
Sub-Clause 21.1:
The Contractor shall, without limiting his or
the Employer’s obligations and responsibilities
under Clause 20, insure:
Sub-Clause 18.2:
The insuring Party shall insure the
Contractor’s Equipment for not less than the
full replacement value, including delivery to
Site. For each item of Contractor’s Equipment,
FIDIC 87 has required the insurance related to
the Contractor’s Equipment to be for a sum
sufficient to provide for their replacement at
the Site, while FIDIC 99 has required the same
to be for not less than the full replacement
(c) the Contractor’s Equipment and other
things brought onto the Site by the Contractor,
for a sum sufficient to provide for their
replacement at the Site.
the insurance shall be effective while it is being
transported to the Site and until it is no longer
required as Contractor’s Equipment.
value including delivery to Site. FIDIC 99 has
required that such insurance shall be effective
while it is being transported to the Site and
until it is no longer required as Contractor’s
equipment, while FIDIC 87 is silent in this
regard.
Sub-Clause 21.4:
There shall be no obligation for the insurances
in Sub-Clause 21.1 to include loss or damage
caused by:
(a) war, hostilities (whether war be declared or
not), invasion, act of foreign enemies,
(b) rebellion, revolution, insurrection, or
military or usurped power, or civil war,
(c) ionising radiations, or contamination by
radio-activity from any nuclear fuel, or from
any nuclear waste from the combustion of
nuclear fuel, radio-active toxic explosive or
other hazardous properties of any explosive
nuclear assembly or nuclear component
thereof, or
(d) pressure waves caused by aircraft or other
aerial devices travelling at sonic or supersonic
speeds.
Sub-Clause 18.2:
Unless otherwise stated in the Particular
Conditions, insurances under this Sub-Clause:
(d) shall also cover loss or damage to a part of
the Works which is attributable to the use or
occupation by the Employer of another part of
the Works, and loss or damage from the risks
listed in sub-paragraphs (c), (g) and (h) of Sub-
Clause 17.3 [Employer’s Risks], excluding (in
each case) risks which are not insurable at
commercially reasonable terms, with
deductibles per occurrence of not more than
the amount stated in the Appendix to Tender
(if an amount is not so stated, this sub-
paragraph (d) shall not apply),…
Unless otherwise stated in the Particular
Conditions, insurances under this Sub-Clause:
(e) may however exclude loss of, damage
to, and reinstatement of:
(i) a part of the Works which is in a
defective condition due to a defect in its
design, materials or workmanship (but
cover shall include any other parts which
are lost or damaged as a direct result of
this defective condition and not as
Various differences were noted in the
exclusions related to insurances between the
two forms of FIDIC as herein shown through
the contents of the compared Sub-Clauses.
described in sub-paragraph (ii) below),
(ii) a part of the Works which is lost or
damaged in order to reinstate any other
part of the Works if this other part is in a
defective condition due to a defect in its
design, materials or workmanship,
(iii) a part of the Works which has been
taken over by the Employer, except to
the extent that the Contractor is liable for
the loss or damage, and
(iv) Goods while they are not in the
Country, subject to Sub-Clause 14.5
[Plant and Materials intended for the
Works].
Sub-Clause 18.2:
If, more than one year after the Base Date, the
cover described in sub-paragraph (d) above
ceases to be available at commercially
reasonable terms, the Contractor shall (as
insuring Party) give notice to the Employer,
with supporting particulars. The Employer
shall then (i) be entitled subject to Sub-Clause
2.5 [Employer’s Claims] to payment of an
amount equivalent to such commercially
reasonable terms as the Contractor should have
expected to have paid for such cover, and (ii)
be deemed, unless he obtains the cover at
commercially reasonable terms, to have
approved the omission under Sub-Clause 18.1
[General Requirements for Insurances].
FIDIC 99 has specified the consequences that
shall take place should a described cover
related to certain risks ceases to be available at
commercially reasonable terms, while FIDIC
87 is silent in this regard.
Sub-Clause 21.1: Sub-Clause 18.2:
The insuring Party shall insure the Works,
FIDIC 87 has required the Contractor to insure
the Works, plant and materials to their full
The Contractor shall, without limiting his or
the Employer’s obligations and responsibilities
under Clause 20, insure:
(a) the Works, together with materials and
Plant for incorporation therein, to the full
replacement cost (the term "cost" in this
context shall include profit),
(b) an additional sum of 15 per cent of such
replacement cost, or as may be specified in Part
II of these Conditions, to cover any additional
costs of and incidental to the rectification of
loss or damage including professional fees and
the cost of demolishing and removing any part
of the Works and of removing debris of
whatsoever nature, and
Plant, Materials and Contractor’s Documents
for not less than the full reinstatement cost
including the costs of demolition, removal of
debris and professional fees and profit.
replacement cost with an additional sum of 15
per cent of such cost to cover for any additional
costs, while FIDIC 99 has required the insuring
Party to insure for the same in addition to the
Contractor’s Documents for not less than the
full reinstatement cost including other
additional costs.
10- Extension of Time for Completion
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 44.1:
(e)other special circumstances which may
occur, other than through a default of or breach
of contract by the Contractor or for which he is
responsible,
Sub-Clause 18.4:
(d) Unforeseeable shortages in the
availability of personnel or Goods
caused by epidemic or governmental
actions,
FIDIC 87 has provided similar events to FIDIC
99 that entitle the Contractor to extension of
time, except for point (e) of FIDIC 87 and
point (d) of FIDIC 99. The said point (e)
entitles the Contractor to extension of time for
special circumstances which may occur other
than through a default or a breach of contract
by the Contractor, leaving a room for
uncertainty as to what could be deemed as
special circumstances. FIDIC 99 has avoided
such an uncertainty through point (d) by
specifying certain circumstances that would
entitle the Contractor to extension of time,
such as unforeseeable shortages in the
availability of personnel or Goods caused by
epidemic or governmental actions. Other
minor differences were noted between the two
forms.
11- Arbitration
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 67.3:
Any dispute in respect of which:
(a) the decision, if any, of the Engineer has not
become final and binding pursuant to Sub-
Clause 67.1, and
Sub-Clause 20.6:
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.
Minor differences were noted between FIDIC
87 and FIDIC 99. FIDIC 87 has mentioned the
Engineer’s decision while FIDIC 99 has
mentioned the DAB’s (Dispute Adjudication
Board) decision due to the fact that FIDIC 87
does not include provisions relevant to the
formation of a DAB.
Sub-Clause 67.3:
shall be finally settled, unless otherwise
specified in the Contract, under the Rules of
Conciliation and Arbitration of the
International Chamber of Commerce by one or
more arbitrators appointed under such Rules.
Sub-Clause 20.6:
(b) the dispute shall be settled by three
arbitrators appointed in accordance with
these Rules, and
FIDIC 87 has specified that the settlement of
disputes would be implemented by one or more
arbitrators, while FIDIC 99 has specified three
arbitrators.
12- Engineer’s Duties and Authority
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 3.1:
The Engineer’s staff shall include suitably
qualified engineers and other professionals
who are competent to carry out these duties.
FIDIC 99 has addressed the Engineer’s staff
with regards to their qualifications, while
FIDIC 87 is silent in this regard.
Sub-Clause 3.1:
The Engineer shall have no authority to amend
the Contract.
FIDIC 99 has specified that the Engineer shall
have no authority to amend the Contract, while
FIDIC 87 is silent in this regard.
Sub-Clause 2.1:
(b) The Engineer may exercise the authority
specified in or necessarily to be implied from
the Contract, provided, however, that if the
Engineer is required, under, the terms of his
appointment by the Employer, to obtain the
specific approval of the Employer before
exercising any such authority, particulars of
such requirements shall be set out in Part II of
these Conditions. Provided further that any
requisite approval shall be deemed to have
been given by the Employer for any such
authority exercised by the Engineer.
Sub-Clause 3.1:
The Engineer may exercise the authority
attributable to the Engineer as specified in or
necessarily to be implied from the Contract. If
the Engineer is required to obtain the approval
of the Employer before exercising a specified
authority, the requirements shall be as stated in
the Particular Conditions. The Employer
undertakes not to impose further constraints on
the Engineer’s authority, except as agreed with
the Contractor.
However, whenever the Engineer exercises a
specified authority for which the Employer’s
approval is required, then (for the purposes of
the Contract) the Employer shall be deemed to
have given approval.
Minor differences were identified between
FIDIC 87 and 99 with regards to this point
except that FIDIC 99 has added the
Employer’s undertaking “not to impose further
constraints on the Engineer’s authority, except
as agreed with the Contractor.”
Sub-Clause 3.1:
whenever carrying out duties or exercising
authority, specified in or implied by the
Contract, the Engineer shall be deemed to act
FIDIC 99 has specified that the Engineer shall
be deemed to act for the Employer whenever
carrying out duties in accordance to the
for the Employer; Contract, while FIDIC 87 is silent in this
regard.
Sub-Clause 3.1:
(c) any approval, check, certificate, consent,
examination, inspection, instruction,
notice, proposal, request, test, or similar act
by the Engineer (including absence of
disapproval) shall not relieve the
Contractor from any responsibility he has
under the Contract, including responsibility
for errors, omissions, discrepancies and
non-compliances.
FIDIC 99 has added a provision that deems the
approvals and other actions by the Engineer as
acts that do not relieve the Contractor from his
responsibilities under the Contract, while
FIDIC 87 is silent in this regard.
13- Advance Payment – Covered under point no. 9 above “Payment”
14- Confidential Details
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 1.12:
The Contractor shall disclose all such
confidential and other information as the
Engineer may reasonably require in order to
verify the Contractor’s compliance with the
Contract.
FIDIC 99 has addressed confidential details,
while FIDIC 87 is silent in this regard.
15- Drawings
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 6.1:
The Drawings shall remain in the sole custody
of the Engineer…
Sub-Clause 1.8:
The Specification and Drawings shall be in the
custody and care of the Employer.
FIDIC 87 has made the custody of the
drawings to remain with the Engineer while
made it with the Employer within FIDIC 99.
FIDIC 99 has specified the custody of the
specifications along with the drawings, while
FIDIC 87 is silent in this regard.
Sub-Clause 6.1:
Unless it is strictly necessary for the purposes
of the Contract, the Drawings, Specification
and other documents provided by the
Employer or the Engineer shall not, without
the consent of the Engineer, be used or
communicated to a third party by the
Contractor.
FIDIC 87 has limited the use of the documents
provided by the Employer to the Contractor,
requiring him to obtain a consent from the
Engineer in case it decided to share the use
with third parties.
Sub-Clause 6.1:
Upon issue of the Defects Liability Certificate,
the Contractor shall return to the Engineer all
Drawings, Specification and other documents
provided under the Contract.
Sub-Clause 1.8:
Each of the Contractor’s Documents shall be in
the custody and care of the Contractor, unless
and until taken over by the Employer.
FIDIC 87 has required returning the
documents provided to the Contractor upon
issue of the Defects Liability Certificate, while
FIDIC 99 has kept the custody and care of the
same with the Contractor until taken over by
the Employer.
Sub-Clause 6.1:
The Contractor shall supply to the Engineer
four copies of all Drawings, Specification and
other documents submitted by the Contractor
and approved by the Engineer in accordance
with Clause 7, together with a reproducible
copy of any material which cannot be
Sub-Clause 1.8:
Unless otherwise stated in the Contract, the
Contractor shall supply to the Engineer six
copies of each of the Contractor’s Documents.
FIDIC 87 has required the Contractor to supply
the Engineer with four copies of all documents
submitted by him along with reproducible
copies pertaining to certain conditions. FIDIC
99 has merely required the Contractor to
provide six copies of the same documents.
reproduced to an equal standard by
photocopying.
Sub-Clause 6.1:
In addition the Contractor shall supply such
further copies of such Drawings, Specification
and other documents as the Engineer may
request in writing for the use of the Employer,
who shall pay the cost thereof.
FIDIC 87 has required the Contractor to supply
further copies upon request by the Engineer on
the cost of the Employer, while FIDIC 99 is
silent in this regard.
Sub-Clause 1.8:
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.
FIDIC 99 has required all parties to report to
the others any identified technical error or
defect, while FIDIC 87 has covered the same
under a different Sub-Clause, being Sub-
Clause 8.1.
Sub-Clause 6.4:
If, by reason of any failure or inability of the
Engineer to issue, within a time reasonable in
all the circumstances, any drawing or
instruction for which notice has been given by
the Contractor in accordance with Sub-Clause
63, the Contractor suffers delay and/or incurs
costs then the Engineer shall, after due
consultation with the Employer and the
Contractor, determine:
Sub-Clause 1.9:
The Contractor shall give notice to the
Engineer whenever the Works are likely to be
delayed or disrupted if any necessary drawing
or instruction is not issued to the Contractor
within a particular time, which shall be
reasonable. The notice shall include details of
the necessary drawing or instruction, details of
why and by when it should be issued, and
details of the nature and amount of the delay or
disruption likely to be suffered if it is late.
If the Contractor suffers delay and/or incurs
Cost as a result of a failure of the Engineer to
issue the notified drawing or instruction within
a time which is reasonable and is specified in
the notice with supporting details, the
Contractor shall give a further notice to the
FIDIC 87 has linked the Engineer’s failure to
provide necessary drawings or instructions
with Sub-Clause 63, while FIDIC 99 has not
made a similar link, leaving less restrictions on
the Contractor with regards to requesting a
compensation resulting from such failure.
FIDIC 99 has required the Contractor to
provide a detailed notice with certain
requirements prior to experiencing impacts of
any delayed drawing or instruction, while
FIDIC 87 has not made similar requirements,
leading to requiring one notice in accordance
to FIDIC 87 and two in accordance to FIDIC
99 in this regard.
Engineer and shall be entitled subject to Sub-
Clause 20.1 [Contractor’s Claims] to:
Sub-Clause 6.5:
If the failure or inability of the Engineer to
issue any drawings or instructions is caused in
whole or in part by the failure of the Contractor
to submit Drawings, Specification or other
documents which he is required to submit
under the Contract, the Engineer shall take
such failure by the Contractor into account
when making his determination pursuant to
Sub- Clause 6.4.
Sub-Clause 1.9:
However, if and to the extent that the
Engineer’s failure was caused by any error or
delay by the Contractor, including an error in,
or delay in the submission of, any of the
Contractor’s Documents, the Contractor shall
not be entitled to such extension of time, Cost
or profit.
FIDIC 87 has specified that the Engineer shall
take into account any failure by the Contractor,
which has led to the Engineer’s failure to issue
any drawings or instructions, while making his
determination for the Contractor’s entitlement,
if any. FIDIC 99 has not allowed any
entitlement to the Contractor for the same.
16- Monthly Statements
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 60.1:
The Contractor shall submit to the Engineer
after the end of each month six copies, each
signed by the Contractor’s representative
approved by the Engineer in accordance with
Sub-Clause 15.1, of a statement, in such form
as the Engineer may from time to time
prescribe, showing the amounts to which the
Contractor considers himself to be entitled up
to the end of the month…
Sub-Clause 14.3:
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].
Minor differences were identified between
FIDIC 87 and FIDIC 99, expect that FIDIC 99
has specified that progress reports are required
as part of the supporting documents required.
Sub-Clause 60.1:
(a) the value of the Permanent Works
executed,
Sub-Clause 14.3:
(a)the estimated contract value of the Works
executed and the Contractor’s Documents
produced up to the end of the month (including
Variations but excluding items described in
sub-paragraphs (b) to (g) below);
FIDIC 99 has added the requirement of
Contractor’s Documents to be submitted along
with the estimated contract value of the Works
executed up to the end of the month, as
opposed to FIDIC 87 which has briefly
mentioned the requirement of the value of the
Permanent Works executed.
Sub-Clause 14.3:
(c) any amount to be deducted for retention,
calculated by applying the percentage of
retention stated in the Appendix to Tender to
the total of the above amounts, until the
amount so retained by the Employer reaches
the limit of Retention Money (if any) stated in
the Appendix to Tender;
FIDIC 99 has required the submission of any
amount to be deducted for retention, while
FIDIC 87 is silent in this regard in relation with
Sub-Clause 60.1. Payment of Retention has
been addressed by FIDIC 87 separately
through Sub-Clause 60.3.
Sub-Clause 14.3:
(d) any amounts to be added and deducted for
the advance payment and repayments in
FIDIC 99 has required the submission of any
amount to be added and deducted for the
advance payment, while FIDIC 87 is silent in
accordance with Sub-Clause 14.2 [Advance
Payment];
this regard as it does not have a provision for
advance payment.
Sub-Clause 60.2:
(b) any other items in the Bill of Quantities
including those for Contractor’s Equipment,
Temporary Works, dayworks and the like,
FIDIC 87 has specifically mentioned the items
in the Bill of Quantities, including Contractor’s
Equipment, Temporary Works, dayworks and
the like, while FIDIC 99 has not approached
this matter in such details.
Sub-Clause 60.2:
(e) any other sum to which the Contractor may
be entitled under the Contract or otherwise.
Sub-Clause 14.3:
(f) any other additions or deductions which
may have become due under the Contract or
otherwise, including those under Clause 20
[Claims, Disputes and Arbitration]; and
Minor differences were identified between the
two form except that FIDIC 99 has mentioned
the inclusion of Clause 20 as a requirement
under this provision.
Sub-Clause 14.3:
(g) the deduction of amounts certified in all
previous Payment Certificates.
FIDIC 99 has required the deduction of
amounts certified in all previous Payment
Certificates as a requirement, while FIDIC 87
is silent regarding any deductions’
requirements.
17- Increase or Decrease in Cost
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 13.8:
In this Sub-Clause, “table of adjustment data”
means the completed table of adjustment data
included in the Appendix to Tender. If there is
no such table of adjustment data, this Sub-
Clause shall not apply.
FIDIC 99 has included a provision for a “table
of adjustment data”, and deemed this Sub-
Clause inapplicable in case this table was not
included within the Appendix to Tender.
FIDIC 87 has not accounted for a similar
provision.
Sub-Clause 70.1:
There shall be added to or deducted from the
Contract Price such sums in respect of rise or
fall in the cost of labour and/or materials or any
other matters affecting the cost of the
execution of the Works as may be determined
in accordance with Part II of these Conditions.
Sub-Clause 13.8:
If this Sub-Clause applies, the amounts
payable to the Contractor shall be adjusted for
rises or falls in the cost of labour, Goods and
other inputs to the Works, by the addition or
deduction of the amounts determined by the
formulae prescribed in this Sub-Clause.
FIDIC 87 has allowed the rise or fall in cost to
determined in accordance with Part II of
“these” conditions; however, FIDIC 99 has
specified that such determination would be
made using a formulae prescribed within the
relevant Sub-Clause.
Sub-Clause 13.8:
To the extent that full compensation for any
rise or fall in Costs is not covered by the
provisions of this or other Clauses, the
Accepted Contract Amount shall be deemed to
have included amounts to cover the
contingency of other rises and falls in costs.
FIDIC 99 has deemed any rise or fall not
covered by the provisions of the Clauses of
these Conditions as included within the
Accepted Contract Amount, while FIDIC 87 is
silent in this regard.
Sub-Clause 13.8:
The adjustment to be applied to the amount
otherwise payable to the Contractor, as valued
in accordance with the appropriate Schedule
and certified in Payment Certificates, shall be
determined from formulae for each of the
currencies in which the Contract Price is
payable. No adjustment is to be applied to
FIDIC 99 has provided various information
related to the use of the formulae.
work valued on the basis of Cost or current
prices. The formulae shall be of the following
general type:
Pn = a + b Ln + c En + d Mn +
......
Lo Eo Mo
where:
“Pn” is the adjustment multiplier to be applied
to the estimated contract value in the relevant
currency of the work carried out in period “n”,
this period being a month unless otherwise
stated in the Appendix to Tender;
“a” is a fixed coefficient, stated in the relevant
table of adjustment data, representing the non-
adjustable portion in contractual payments;
“b”, “c”, “d”, … are coefficients representing
the estimated proportion of each cost element
related to the execution of the Works, as stated
in the relevant table of adjustment data; such
tabulated cost elements may be indicative of
resources such as labour, equipment and
materials;
“Ln”, “En”, “Mn”, … are the current cost
indices or reference prices for period “n”,
expressed in the relevant currency of payment,
each of which is applicable to the relevant
tabulated cost element on the date 49 days
prior to the last day of the period (to which the
particular Payment Certificate relates); and
“Lo”, “Eo”, “Mo”, … are the base cost indices
or reference prices, expressed in the relevant
currency of payment, each of which is
applicable to the relevant tabulated cost
element on the Base Date.
The cost indices or reference prices stated in
the table of adjustment data shall be used. If
their source is in doubt, it shall be determined
by the Engineer. For this purpose, reference
shall be made to the values of the indices at
stated dates (quoted in the fourth and fifth
columns respectively of the table) for the
purposes of clarification of the source;
although these dates (and thus these values)
may not correspond to the base cost indices.
In cases where the “currency of index” (stated
in the table) is not the relevant currency of
payment, each index shall be converted into
the relevant currency of payment at the selling
rate, established by the central bank of the
Country, of this relevant currency on the above
date for which the index is required to be
applicable.
Until such time as each current cost index is
available, the Engineer shall determine a
provisional index for the issue of Interim
Payment Certificates. When a current cost
index is available, the adjustment shall be
recalculated accordingly.
If the Contractor fails to complete the Works
within the Time for Completion, adjustment of
prices thereafter shall be made using either (i)
each index or price applicable on the date 49
days prior to the expiry of the Time for
Completion of the Works, or (ii) the current
index or price: whichever is more favourable
to the Employer.
The weightings (coefficients) for each of the
factors of cost stated in the table(s) of
adjustment data shall only be adjusted if they
have been rendered unreasonable, unbalanced
or inapplicable, as a result of Variations.
18- Currencies of Payment
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 71.1:
If, after the date 28 days prior to the latest date
for submission of tenders for the Contract, the
Government or authorised agency of the
Government of the country in which the Works
are being or are to be executed imposes
currency restrictions and/or transfer of
currency restrictions in relation to the currency
or currencies in which the Contract Price is to
be paid, the Employer shall reimburse any loss
or damage to the Contractor arising therefrom,
without prejudice to the right of the Contractor
to exercise any other rights or remedies to
which he is entitled in such event.
FIDIC 87 has provided a provision addressing
governmental restrictions over currencies, for
the occurrence of such a circumstances will
oblige the Employer to pay for any relevant
damages or losses. FIDIC 99 is silent in this
regard.
Sub-Clause 72.1:
Where the Contract provides for payment in
whole or in part to be made to the Contractor
in foreign currency or currencies, such
payment shall not be subject to variations in
the rate or rates of exchange between such
specified foreign currency or currencies and
the currency of the country in which the Works
are to be executed.
Sub-Clause 14.15:
(e) if no rates of exchange are stated in the
Appendix to Tender, they shall be those
prevailing on the Base Date and determined by
the central bank of the Country.
FIDIC 87 has specified that foreign currencies
shall not be subject to variations in the rate(s)
of exchange between currencies, while FIDIC
99 has specified that those rates shall be
determined in accordance to the the rates
specified within the Appendix to Tender or in
accordance to the central bank of the Country
in consideration with the Base Date.
Sub-Clause 72.2:
Where the Employer has required the Tender
to be expressed in a single currency but with
payment to be made in more than one currency
and the Contractor has stated the proportions
Sub-Clause 14.15:
(a) if the Accepted Contract Amount was
expressed in Local Currency only:
(i) the proportions or amounts of the Local and
Both forms have made a reference to the
Appendix to Tender with regards to the
proportions or amounts that are to be paid in
different currencies. In case the Appendix to
Tender has not included such information,
or amounts of other currency or currencies in
which he requires payment to be made, the rate
or rates of exchange applicable for calculating
the payment of such proportions or amounts
shall, unless otherwise stated in Part II of these
Conditions, be those prevailing, as determined
by the Central Bank of the country in which the
Works are to be executed, on the date 28 days
prior to the latest date for the submission of
tenders for the Contract, as has been notified to
the Contractor by the Employer prior to the
submission of tenders or as provided for in the
Tender.
Foreign Currencies, and the fixed rates of
exchange to be used for calculating the
payments, shall be as stated in the Appendix to
Tender, except as otherwise agreed by both
Parties;
FIDIC 87 has specified that the rates shall be
determined in accordance to the Central Bank
of the Country, based on a certain date, while
FIDIC 99 has left this matter to be determined
as agreed by both Parties.
Sub-Clause 72.3:
Where the Contract provides for payment in
more than one currency, the proportions or
amounts to be paid in foreign currencies in
respect of Provisional Sums shall be
determined in accordance with the principles
set forth in Sub-Clauses 72.1 and 72.2 as and
when these sums are utilised in whole or in part
in accordance with the provisions of Clauses
58 and 59.
Sub-Clause 14.15:
(ii) payments and deductions under Sub-
Clause 13.5 [Provisional Sums] and Sub-
Clause 13.7 [Adjustments for Changes in
Legislation] shall be made in the applicable
currencies and proportions;
Minor differences were identified between the
two forms, who have made references to other
clauses by which the currencies and
proportions of payments related to provisional
sums are to be made.
Sub-Clause 14.15:
(iii) other payments and deductions under sub-
paragraphs (a) to (d) of Sub-Clause 14.3
[Application for Interim Payment Certificates]
shall be made in the currencies and proportions
specified in sub-paragraph (a)(i) above;
FIDIC 99 has made references to other
provisions by which the currencies and
proportions of payments related to Sub-Clause
14.3 [Application for Interim Payment
Certificates] are to be made.
Sub-Clause 14.15:
(b) payment of the damages specified in the
Appendix to Tender shall be made in the
FIDIC 99 has made a reference to the
Appendix to Tender through which the
currencies and proportions of payments related
currencies and proportions specified in the
Appendix to Tender;
to payment of the damages specified in the
Appendix to tender are defined.
Sub-Clause 14.15:
(c) other payments to the Employer by the
Contractor shall be made in the currency in
which the sum was expended by the Employer,
or in such currency as may be agreed by both
Parties;
FIDIC 99 has addressed the currency of “other
payments”, while FIDIC 87 is silent in this
regard.
Sub-Clause 14.15:
(d) if any amount payable by the Contractor to
the Employer in a particular currency exceeds
the sum payable by the Employer to the
Contractor in that currency, the Employer may
recover the balance of this amount from the
sums otherwise payable to the Contractor in
other currencies; and
FIDIC 99 has addressed the circumstance
whereby the Contractor’s payable money to
the Employer exceeds the sum payable by the
Employer to the Contractor in a certain
currency. FIDIC 87 has not accounted for a
similar provision.
Sub-Clause 13.4:
If the Contract provides for payment of the
Contract Price in more than one currency, then
whenever an adjustment is agreed, approved or
determined as stated above, the amount
payable in each of the applicable currencies
shall be specified. For this purpose, reference
shall be made to the actual or expected
currency proportions of the Cost of the varied
work, and to the proportions of various
currencies specified for payment of the
Contract Price.
FIDIC 99 has addressed the currencies for
payments related to variations, while FIDIC 87
is silent in this regard.
19- Risks/Force Majeure
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 20.4:
(b) rebellion, revolution, insurrection, or
military or usurped power, or civil war,
Sub-Clause 17.3:
(b) rebellion, terrorism, revolution,
insurrection, military or usurped power, or
civil war, within the Country,
Minor differences were identified between
FIDIC 87 and FIDIC 99 with regards to this
point. FIDIC 99 has added terrorism and
specified that these events would be “within
the Country”.
Sub-Clause 20.4:
(c) ionising radiations, or contamination by
radio-activity from any nuclear fuel, or from
any nuclear waste from the combustion of
nuclear fuel, radio-active toxic explosive or
other hazardous properties of any explosive
nuclear assembly or nuclear component
thereof,
Sub-Clause 17.3:
(d) munitions of war, explosive materials,
ionising radiation or contamination by radio-
activity, within the Country, except as may be
attributable to the Contractor’s use of such
munitions, explosives, radiation or radio-
activity,
FIDIC 87 and FIDIC 99 have shared various
points; however, FIDIC 87 had more focus on
nuclear related matters, while FIDIC 99 has
generalized munitions of war, explosive
materials, etc. FIDIC 99 has specified that
these events would be “within the Country”
and “except as may be attributable to the
Contractor’s use…”
Sub-Clause 20.4:
(e) riot, commotion or disorder, unless solely
restricted to employees of the Contractor or of
his Subcontractors and arising from the
conduct of the Works,
Sub-Clause 17.3:
(c) riot, commotion or disorder within the
Country by persons other than the Contractor’s
Personnel and other employees of the
Contractor and Subcontractors,
Minor differences were identified between
FIDIC 87 and FIDIC 99 with regards to this
point. FIDIC 99 has specified that these events
would be “within the Country”.
Sub-Clause 20.4:
(g) loss or damage to the extent that it is due to
the design of the Works, other than any part of
the design provided by the Contractor or for
which the Contractor is responsible
Sub-Clause 17.3:
(g) design of any part of the Works by the
Employer’s Personnel or by others for whom
the Employer is responsible,
Minor differences were identified between
FIDIC 87 and FIDIC 99 with regards to this
point.
Sub-Clause 20.3:
In the event of any such loss or damage
happening from any of the risks defined in
Sub-Clause 20.4, or in combination with other
risks, the Contractor shall, if and to the extent
Sub-Clause 17.4:
If and to the extent that any of the risks listed
in Sub-Clause 17.3 above results in loss or
damage to the Works, Goods or Contractor’s
Documents, the Contractor shall promptly give
FIDIC 99 has required the Contractor to notify
the Engineer in the event that any Employer’s
risk takes place, while FIDIC 87 has not made
a similar provision.
required by the Engineer, rectify the loss or
damage and the Engineer shall determine an
addition to the Contract Price in accordance
with Clause 52 and shall notify the Contractor
accordingly, with a copy to the Employer. In
the case of a combination of risks causing loss
or damage any such determination shall take
into account the proportional responsibility of
the Contractor and the Employer.
notice to the Engineer and shall rectify this loss
or damage to the extent required by the
Engineer.
If the Contractor suffers delay and/or incurs
Cost from rectifying this loss or damage, the
Contractor shall give a further notice to the
Engineer and shall be entitled subject to Sub-
Clause 20.1 [Contractor’s Claims] to:
(a) an extension of time for any such delay,
if completion is or will be delayed, under
Sub-Clause 8.4 [Extension of Time for
Completion], and
(b) payment of any such Cost, which shall be
included in the Contract Price. In the case
of sub-paragraphs (f) and (g) of Sub-
Clause 17.3 [Employer’s Risks],
reasonable profit on the Cost shall also
be included.
After receiving this further notice, the
Engineer shall proceed in accordance with
Sub-Clause 3.5 [Determinations] to agree or
determine these matters.
FIDIC 87 has obliged the Contractor to rectify
any damages as required by the Engineer, who
shall directly make his determination of an
addition to the Contract Price and notify the
Contractor accordingly. FIDIC 99 has required
the Contractor to give a further notice to the
Engineer in case it suffered delays and/or
incurred costs due to rectifying damages, and
the Engineer shall proceed with making a
determination of extension of time and
payment, if any.
Sub-Clause 65.2:
The special risks are:
(a) the risks defined under paragraphs (a), (c),
(d) and (e) of Sub-Clause 20.4, and
(b) the risks defined under paragraph (b) of
Sub-Clause 20.4 insofar as these relate to the
country in which the Works are to be executed.
Sub-Clause 19.1:
In this Clause, “Force Majeure” means an
exceptional event or circumstance:
(a) which is beyond a Party’s control,
(b) which such Party could not reasonably have
provided against before entering into the
Contract,
FIDIC 87 is specific with regards to the
definition of special risks as it has specified the
events that are deemed as so. FIDIC 99 has
introduced the expression “Force Majeure”
and has generalized its definition to
exceptional events or circumstances, stating
some of such events or circumstances.
(c) which, having arisen, such Party could not
reasonably have avoided or overcome, and
(d) which is not substantially attributable to the
other Party.
Force Majeure may include, but is not limited
to, exceptional events or circumstances of the
kind listed below, so long as conditions (a) to
(d) above are satisfied:
(i) war, hostilities (whether war be declared or
not), invasion, act of foreign enemies,
(ii) rebellion, terrorism, revolution,
insurrection, military or usurped power, or
civil war,
(iii) riot, commotion, disorder, strike or
lockout by persons other than the Contractor’s
Personnel and other employees of the
Contractor and Sub- contractors,
(iv) munitions of war, explosive materials,
ionising radiation or contamination by radio-
activity, except as may be attributable to the
Contractor’s use of such munitions,
explosives, radiation or radio-activity, and
(v) natural catastrophes such as earthquake,
hurricane, typhoon or volcanic activity.
Moreover, FIDIC 99 has not limited Force
Majeure events to some of those defined as
Employer’s Risks.
Sub-Clause 19.2:
If a Party is or will be prevented from
performing any of its obligations under the
Contract by Force Majeure, then it shall give
notice to the other Party of the event or
circumstances constituting the Force Majeure
FIDIC 99 has specified certain required
notifications and procedures to be fulfilled
whenever a Force Majeure takes place, while
FIDIC 87 is silent in this regard.
and shall specify the obligations, the
performance of which is or will be prevented.
The notice shall be given within 14 days after
the Party became aware, or should have
become aware, of the relevant event or
circumstance constituting Force Majeure.
The Party shall, having given notice, be
excused performance of such obligations for so
long as such Force Majeure prevents it from
performing them.
Notwithstanding any other provision of this
Clause, Force Majeure shall not apply to
obligations of either Party to make payments to
the other Party under the Contract.
Sub-Clause 65.1:
The Contractor shall be under no liability
whatsoever in consequence of any of the
special risks referred to in Sub-Clause 65.2,
whether by way of indemnity or otherwise, for
or in respect of:
(a)destruction of or damage to the Works, save
to work condemned under the provisions of
Clause 39 prior to the occurrence of any of the
said special risks,
(b)destruction of or damage to property,
whether of the Employer or third parties, or
(c) injury or loss of life.
Sub-Clause 65.3:
If the Works or any materials or Plant on or
near or in transit to the Site, or any of the
Contractor's Equipment, sustain destruction or
Sub-Clause 19.4:
If the Contractor is prevented from performing
any of his obligations under the Contract by
Force Majeure of which notice has been given
under Sub-Clause 19.2 [Notice of Force
Majeure], and suffers delay and/or incurs Cost
by reason of such Force Majeure, the
Contractor shall be entitled subject to Sub-
Clause 20.1 [Contractor’s Claims] to:
(a) an extension of time for any such delay,
if completion is or will be delayed, under
Sub-Clause 8.4 [Extension of Time for
Completion], and
(b) if the event or circumstance is of the kind
described in sub-paragraphs (i) to (iv) of
Sub-Clause 19.1 [Definition of Force
Majeure] and, in the case of sub-
FIDIC 87 has provided various more details
with regards to the Contractor’s liability to
special risks, its consequences and other
related information as compared with FIDIC
99. FIDIC 87 has stated that the Contractor
shall have no liability in consequence of
special risks, having stated a number of such
consequences, including but not limited to
projectiles and war. Both forms have
acknowledges the Contractor’s right for
compensation to rectify damages in
accordance to the different determination
procedures of each form. FIDIC 99 has
specifically mentioned the Contractor’s right
to extension of time.
damage by reason of any of the said special
risks, the Contractor shall be entitled to
payment in accordance with the Contract for
any Permanent Works duly executed and for
any materials or Plant so destroyed or damaged
and, so far as may be required by the Engineer
or as may be necessary for the completion of
the Works, to payment for:
(a)rectifying any such destruction or damage to
the Works, and
(b)replacing or rectifying such materials or
Contractor’s Equipment, and the Engineer
shall determine an addition to the Contract
Price in accordance with Clause 52 (which
shall in the case of the cost of replacement of
Contractor's Equipment include the fair market
value thereof as determined by the Engineer)
and shall notify the Contractor accordingly,
with a copy to the Employer.
Sub-Clause 65.4 of FIDIC 87 has stated:
Destruction, damage, injury or loss of life
caused by the explosion or impact, whenever
and wherever occurring, of any mine, bomb,
shell, grenade, or other projectile, missile,
munition, or explosive of war, shall be deemed
to be a consequence of the said special risks.
Sub-Clause 65.5 of FIDIC 87 has stated:
Save to the extent that the Contractor is entitled
to payment under any other provision of the
Contract, the Employer shall repay to the
paragraphs (ii) to (iv), occurs in the
Country, payment of any such Cost.
After receiving this notice, the Engineer shall
proceed in accordance with Sub-Clause 3.5
[Determinations] to agree or determine these
matters.
Contractor any costs of the execution of the
Works (other than such as may be attributable
to the cost of reconstructing work condemned
under the provisions of Clause 39 prior to the
occurrence of any special risk) which are
howsoever attributable to or consequent on or
the result of or in any way whatsoever
connected with the said special risks, subject
however to the provisions in this Clause
hereinafter contained in regard to outbreak of
war, but the Contractor shall, as soon as any
such cost comes to his knowledge, forthwith
notify the Engineer thereof. The Engineer
shall, after due consultation with the Employer
and the Contractor, determine the amount of
the Contractor’s costs in respect thereof which
shall be added to the Contract Price and shall
notify the Contractor accordingly, with a copy
to the Employer.
Sub-Clause 19.3:
Each Party shall at all times use all reasonable
endeavours to minimise any delay in the
performance of the Contract as a result of
Force Majeure.
A Party shall give notice to the other Party
when it ceases to be affected by the Force
Majeure.
FIDIC 99 has required each party to minimize
delays, and to provide notice to the other
whenever the effects of a Force Majeure
ceases. FIDIC 87 has not made a similar
provision.
Sub-Clause 19.5:
If any Subcontractor is entitled under any
contract or agreement relating to the Works to
FIDIC 99 has addressed the distinction
between a Subcontractor’s entitlement to a
relief due to Force Majeure and the same in
relief from force majeure on terms additional
to or broader than those specified in this
Clause, such additional or broader force
majeure events or circumstances shall not
excuse the Contractor’s non-performance or
entitle him to relief under this Clause.
relation to the Contractor. FIDIC 87 has not
accounted for a similar provision.
20- Subcontractors
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 4.4:
(c) the Contractor shall give the Engineer not
less than 28 days’ notice of the intended date
of the commencement of each Subcontractor’s
work, and of the commencement of such work
on the Site;
FIDIC 99 has specified a certain period of time
within which the Contractor is required to
notify the Engineer of the intended date of the
commencement of each of the Subcontractor’s
work and other relevant information. FIDIC 87
has not accounted for a similar provision.
Sub-Clause 4.4:
(d) each subcontract shall include provisions
which would entitle the Employer to require
the subcontract to be assigned to the Employer
under Sub-Clause 4.5 [Assignment of Benefit
of Subcontract] (if or when applicable) or in
the event of termination under Sub-Clause
15.2 [Termination by Employer].
FIDIC 99 has included a provision that entitle
the Employer to require subcontracts to be
assigned to him, while FIDIC 87 has not
accounted for a similar provision.
Sub-Clause 4.1:
Provided that the Contractor shall not be
required to obtain such consent for:
(a) the provision of labour,
(b) the purchase of materials which are in
accordance with the standards specified in the
Contract,
FIDIC 87 has addressed certain matters that do
not require obtaining a consent, such as
provision of labour and purchase of Contract
materials. FIDIC 99 has not accounted for a
similar provision.
Sub-Clause 4.2:
In the event of a Subcontractor having
undertaken towards the Contractor in respect
of the work executed, or the goods, materials,
Plant or services supplied by such
Subcontractor, any continuing obligation
extending for a period exceeding that of the
Sub-Clause 4.5:
If a Subcontractor’s obligations extend
beyond the expiry date of the relevant Defects
Notification Period and the Engineer, prior to
this date, instructs the Contractor to assign the
benefit of such obligations to the Employer,
then the Contractor shall do so. Unless
FIDIC 87 has specified that any assignment
required by the Engineer shall be implemented
on the cost of the Employer, while FIDIC 99
has not made a similar provision. FIDIC 99 has
specified that the Contractor shall not be liable
to the Employer for the work carried out by the
Subcontractor after the assignment takes
Defects Liability Period under the Contract,
the Contractor shall at any time, after the
expiration of such Period, assign to the
Employer, at the Employer’s request and cost,
the benefit of such obligation for the unexpired
duration thereof.
otherwise stated in the assignment, the
Contractor shall have no liability to the
Employer for the work carried out by the
Subcontractor after the assignment takes
effect.
effect, while FIDIC 87 has not made a similar
provision.
21- Taking Over
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 10.1:
the Works shall be taken over by the Employer
when (i) the Works have been completed in
accordance with the Contract, including the
matters described in Sub-Clause 8.2 [Time for
Completion] and except as allowed in sub-
paragraph (a) below, and (ii) a Taking-Over
Certificate for the Works has been issued, or is
deemed to have been issued in accordance with
this Sub-Clause.
FIDIC 99 has directly made a statement
specifying the conditions that are to be fulfilled
to deem the Works as taken over by the
Employer, while FIDIC 87 has not made a
similar provision.
Sub-Clause 48.1:
the Contractor may give a notice to that effect
to the Engineer, with a copy to the Employer,
accompanied by a written undertaking to finish
with due expedition any outstanding work
during the Defects Liability Period.
Sub-Clause 10.1:
The Contractor may apply by notice to the
Engineer for a Taking-Over Certificate not
earlier than 14 days before the Works will, in
the Contractor’s opinion, be complete and
ready for taking over. If the Works are divided
into Sections, the Contractor may similarly
apply for a Taking-Over Certificate for each
Section.
FIDIC 99 has specified a duration within
which the Contractor may apply for a Taking
Over Certificate prior to the Completion of the
Works, while FIDIC 87 has not made a similar
provision. FIDIC 87 has allowed the
Contractor to apply for the said Certificate
notwithstanding the possibility of existing
outstanding work that would be completed
during the Defects Liability Period, while
FIDIC 99 has not made a similar provision.
FIDIC 99 has applied the same conditions to
the Taking Over of the Works and the Sections,
while FIDIC 87 has made a distinction
between the conditions the same.
Sub-Clause 48.1:
The Engineer shall, within 21 days of the date
of delivery of such notice
Sub-Clause 10.1:
The Engineer shall, within 28 days after
receiving the Contractor’s application
FIDIC 87 has required the Engineer to respond
within 21 days from the date of the
Contractor’s application, while FIDIC 99 has
made the said duration to be 28 days.
Sub-Clause 48.1:
The Engineer shall also notify the Contractor
of any defects in the Works affecting
substantial completion that may appear after
such instructions and before completion of the
Works specified therein. The Contractor shall
be entitled to receive such Taking-Over
Certificate within 21 days of completion, to the
satisfaction of the Engineer, of the Works so
specified and remedying any defects so
notified.
FIDIC 87 has made a provision for a
notification to be provided by the Engineer to
the Contractor should more defects appear
between the Engineer’s instruction specifying
the Works that are to be completed and the
Completion of the Works. FIDIC 99 has not
made a similar provision.
Sub-Clause 10.1:
If the Engineer fails either to issue the Taking-
Over Certificate or to reject the Contractor’s
application within the period of 28 days, and if
the Works or Section (as the case may be) are
substantially in accordance with the Contract,
the Taking-Over Certificate shall be deemed to
have been issued on the last day of that period.
FIDIC 99 has identified the consequences of
the Engineer’s failure to respond to an
application of a Taking Over Certificate within
the specified period, while FIDIC 87 is silent
in this regard.
Sub-Clause 10.2:
The Employer shall not use any part of the
Works (other than as a temporary measure
which is either specified in the Contract or
agreed by both Parties) unless and until the
Engineer has issued a Taking-Over Certificate
for this part.
FIDIC 99 has prohibited the Employer’s use to
any part of the Works except for certain
conditions, while FIDIC 87 has not made a
similar provision.
Sub-Clause 48.2:
the Contractor may request and the Engineer
shall issue a Taking-Over Certificate in respect
of:
Sub-Clause 10.2:
However, if the Employer does use any part of
the Works before the Taking-Over Certificate
is issued:
FIDIC 87 has specified that the Contractor may
request and the Engineer shall issue a Taking
Over Certificate in certain conditions;
however, FIDIC 99 has specified a condition
where Taking Over could be deemed to have
(b) any substantial part of the Permanent
Works which has been both completed to the
satisfaction of the Engineer and, otherwise
than as provided for in the Contract, occupied
or used by the Employer, or
(c) any part of the Permanent Works which the
Employer has elected to occupy or use prior to
completion (where such prior occupation or
use is not provided for in the Contract or has
not been agreed by the Contractor as a
temporary measure).
(a) the part which is used shall be deemed to
have been taken over as from the date on
which it is used,
(b) the Contractor shall cease to be liable for
the care of such part as from this date, when
responsibility shall pass to the Employer, and
(c) if requested by the Contractor, the Engineer
shall issue a Taking-Over Certificate for this
part.
occurred by default for certain part(s), for
which the Contractor may request the Engineer
to issue the said Certificate in relation to that
part or parts. FIDIC 99 has added a provision
waiving the Contractor’s liability to any part
that has been used by the Employer, while
FIDIC 87 has not made a similar provision.
FIDIC 87 has allowed the Engineer to issue a
Taking Over Certificate to any part of the
Works that has been substantially completed
and passed any Tests on Completion
prescribed by the Contract.
Sub-Clause 48.3:
If any part of the Permanent Works has been
substantially completed and has satisfactorily
passed any Tests on Completion prescribed by
the Contract, the Engineer may issue a Taking-
Over Certificate in respect of that part of the
Permanent Works before completion of the
whole of the Works and, upon the issue of such
Certificate, the Contractor shall be deemed to
have undertaken to complete with due
expedition any outstanding work in that part of
the Permanent Works during the Defects
Liability Period.
Sub-Clause 10.2:
After the Engineer has issued a Taking-Over
Certificate for a part of the Works, the
Contractor shall be given the earliest
opportunity to take such steps as may be
necessary to carry out any outstanding Tests on
Completion. The Contractor shall carry out
these Tests on Completion as soon as
practicable before the expiry date of the
relevant Defects Notification Period.
FIDIC 99 has addressed fulfilling the
obligations related to Tests on Completion
after the issuance of the Taking Over
Certificate and before the expiry of the relevant
Defects Notification Period. FIDIC 87 has
addressed the same by requiring the Tests on
Completion to be completed prior to the
issuance of the Taking Over Certificate.
Sub-Clause 10.2:
If the Contractor incurs Cost as a result of the
Employer taking over and/or using a part of the
Works, other than such use as is specified in
the Contract or agreed by the Contractor, the
Contractor shall (i) give notice to the Engineer
and (ii) be entitled subject to Sub-Clause 20.1
FIDIC 99 has specified that the Contractor
shall be entitled to a compensation in case it
incurs costs as a result of the Employer taking
over and/or using a part of the Works,
whenever this is not specified within the
Contract. FIDIC 87 is silent in this regard.
[Contractor’s Claims] to payment of any such
Cost plus reasonable profit, which shall be
included in the Contract Price. After receiving
this notice, the Engineer shall proceed in
accordance with Sub-Clause 3.5
[Determinations] to agree or determine this
Cost and profit.
Sub-Clause 10.2:
If a Taking-Over Certificate has been issued
for a part of the Works (other than a Section),
the delay damages thereafter for completion of
the remainder of the Works shall be reduced.
Similarly, the delay damages for the remainder
of the Section (if any) in which this part is
included shall also be reduced. For any period
of delay after the date stated in this Taking-
Over Certificate, the proportional reduction in
these delay damages shall be calculated as the
proportion which the value of the part so
certified bears to the value of the Works or
Section (as the case may be) as a whole. The
Engineer shall proceed in accordance with
Sub-Clause 3.5 [Determinations] to agree or
determine these proportions. The provisions of
this paragraph shall only apply to the daily rate
of delay damages under Sub-Clause 8.7 [Delay
Damages], and shall not affect the maximum
amount of these damages.
FIDIC 99 has specified the criteria related to
the reduction of delay damages in relation with
any parts that becomes taken over. FIDIC 87
has addressed the same through Sub-Clause
47.2 entitled “Reduction of Liquidated
Damages”.
22- Delay Damages
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 47.1:
If the Contractor fails to comply with the Time
for Completion in accordance with Clause 48,
for the whole of the Works or, if applicable,
any Section within the relevant time prescribed
by Clause 43, then the Contractor shall pay to
the Employer the relevant sum stated in the
Appendix to Tender as liquidated damages for
such default and not as a penalty (which sum
shall be the only monies due from the
Contractor for such default) for every day or
part of a day which shall elapse between the
relevant Time for Completion and the date
stated in a Taking-Over Certificate of the
whole of the Works or the relevant Section,
subject to the applicable limit stated in the
Appendix to Tender. The Employer may,
without prejudice to any other method of
recovery, deduct the amount of such damages
from any monies due or to become due to the
Contractor.
The payment or deduction of such damages
shall not relieve the Contractor from his
obligation to complete the Works, or from any
other of his obligations and liabilities under the
Contract.
Sub-Clause 8.7:
If the Contractor fails to comply with Sub-
Clause 8.2 [Time for Completion], the
Contractor shall subject to Sub-Clause 2.5
[Employer’s Claims] pay delay damages to the
Employer for this default. These delay
damages shall be the sum stated in the
Appendix to Tender, which shall be paid for
every day which shall elapse between the
relevant Time for Completion and the date
stated in the Taking-Over Certificate.
However, the total amount due under this Sub-
Clause shall not exceed the maximum amount
of delay damages (if any) stated in the
Appendix to Tender.
These delay damages shall be the only
damages due from the Contractor for such
default, other than in the event of termination
under Sub-Clause 15.2 [Termination by
Employer] prior to completion of the Works.
These damages shall not relieve the Contractor
from his obligation to complete the Works, or
from any other duties, obligations or
responsibilities which he may have under the
Contract.
Minor differences were identified between
FIDIC 87 and FIDIC 99.
Sub-Clause 47.2 entitled “Reduction of
Liquidated Damages”
The same has been covered by FIDIC 99
through Sub-Clause 10.2 under the “Taking
Over of Parts of the Works” with minor
differences.
23- Contractor’s General Obligations
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 4.1 Sub-Clauses 8.1 and 8.2 No significant differences were identified
between FIDIC 87 and 99. FIDIC 99 has
covered a number of points within one Sub-
Clause, having been divided into three Sub-
Clauses within FIDIC 87. This includes
“Contractor’s General Obligations”, “Site
Operations and Methods of Construction” and
“Permanent Works Designed by the
Contractor”. FIDIC 87 has pointed out the
Contractor’s responsibility of notifying the
Engineer whenever it discovers errors, faults,
etc. FIDIC 99 has covered the same through a
different Sub-Clause 1.8 entitled “Care and
Supply of Documents”
Sub-Clause 4.1:
The Contractor shall, whenever required by the
Engineer, submit details of the arrangements
and methods which the Contractor proposes to
adopt for the execution of the Works. No
significant alteration to these arrangements
and methods shall be made without this having
previously been notified to the Engineer.
FIDIC 99 has obliged the Contractor,
whenever required by the Engineer, to submit
certain details, which are not allowed to be
altered without notifying the Engineer.
24- Commencement Date
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 41.1:
The Contractor shall commence the Works as
soon as is reasonably possible after the receipt
by him of a notice to this effect from the
Engineer, which notice shall be issued within
the time stated in the Appendix to Tender after
the date of the Letter of Acceptance.
Thereafter, the Contractor shall proceed with
the Works with due expedition and without
delay.
Sub-Clause 8.1:
The Engineer shall give the Contractor not less
than 7 days notice of the Commencement Date.
Unless otherwise stated in the Particular
Conditions, the Commencement Date shall be
within 42 days after the Contractor receives the
Letter of Acceptance.
The Contractor shall commence the execution
of the Works as soon as is reasonably
practicable after the Commencement Date, and
shall then proceed with the Works with due
expedition and without delay.
No significant differences were identified
between FIDIC 87 and FIDIC 99. FIDIC 99
has added a requirement of a notice that is to
be submitted by the Engineer to the Contractor
not less than 7 days of the Commencement
Date. The Commencement Date was defined to
be within 42 days after the Contractor receives
the Letter of Acceptance in FIDIC 99, while
FIDIC 87 has made a reference to the
Appendix to Tender in this regard.
25- Contractor’s Representative, Superintendence and Personnel
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 15.1:
The Contractor, or a competent and authorised
representative approved of by the Engineer,
which approval may at any time be withdrawn,
shall give his whole time to the
superintendence of the Works. Such authorised
representative shall receive, on behalf of the
Contractor, instructions from the Engineer.
If approval of the representative is withdrawn
by the Engineer, the Contractor shall, as soon
as is practicable, having regard to the
requirement of replacing him as hereinafter
mentioned, after receiving notice of such
withdrawal, remove the representative from
the Works and shall not thereafter employ him
again on the Works in any capacity and shall
replace him by another representative
approved by the Engineer.
Sub-Clause 4.3:
The Contractor shall appoint the Contractor’s
Representative and shall give him all authority
necessary to act on the Contractor’s behalf
under the Contract.
Unless the Contractor’s Representative is
named in the Contract, the Contractor shall,
prior to the Commencement Date, submit to
the Engineer for consent the name and
particulars of the person the Contractor
proposes to appoint as Contractor’s
Representative. If consent is withheld or
subsequently revoked, or if the appointed
person fails to act as Contractor’s
Representative, the Contractor shall similarly
submit the name and particulars of another
suitable person for such appointment.
The Contractor’s Representative shall, on
behalf of the Contractor, receive instructions
under Sub-Clause 3.3 [Instructions of the
Engineer].
FIDIC 99 has allocated a Sub-Clause solely for
the Contractor’s Representative while FIDIC
87 has considered the same through the Sub-
Clause related to Contractor’s
Superintendence. A limited number of
differences were identified between these two
statements. FIDIC 87 has specified that a
Contractor’s Representative, who is
withdrawn, shall not be thereafter employed
again on the Works, while FIDIC 99 is silent
in this regard. FIDIC 99 has pointed out that a
Contractor’s Representative may be named
within the Contract, while FIDIC 87 has
merely mentioned that the Contractor or a
Contractor’s represented would be approved
by the Engineer. FIDIC 99 has required the
Contractor to appoint a Contractor’s
Representative while FIDIC 87 has stated “The
Contractor, or a competent and authorised
representative” shall give his whole to the
superintendence of the Works”, signifying that
FIDIC 87 has allowed either the Contractor
himself or his Representative to manage the
Works.
Sub-Clause 4.3:
The Contractor shall not, without the prior
consent of the Engineer, revoke the
appointment of the Contractor’s
FIDIC 99 has prohibited the Contractor from
revoking the appointment of the Contractor’s
Representative or appoint another without the
Representative or appoint a replacement. consent of the Engineer, while FIDIC 87 is
silent in this regard.
Sub-Clause 4.3:
If the Contractor’s Representative is to be
temporarily absent from the Site during the
execution of the Works, a suitable replacement
person shall be appointed, subject to the
Engineer’s prior consent, and the Engineer
shall be notified accordingly.
FIDIC 99 has specified the actions to be taken
whenever the Contractor’s is absent, while
FIDIC 87 is silent in this regard.
Sub-Clause 4.3:
The Contractor’s Representative may delegate
any powers, functions and authority to any
competent person, and may at any time revoke
the delegation. Any delegation or revocation
shall not take effect until the Engineer has
received prior notice signed by the
Contractor’s Representative, naming the
person and specifying the powers, functions
and authority being delegated or revoked.
FIDIC 99 has allowed the Contractor’s
Representative to delegate any powers,
functions and authority to any competent
person, and may at any time revoke the
delegation, addressing the conditions related to
such actions. FIDIC 87 is silent in this regard.
Sub-Clause 4.3:
The Contractor’s Representative and all these
persons shall be fluent in the language for
communications defined in Sub-Clause 1.4
[Law and Language].
FIDIC 99 has required the Contractor’s
Representative and persons to be fluent in the
Language of communications of the Contract,
while FIDIC 87 is silent in this regard.
Sub-Clause 15.1:
The Contractor shall provide all necessary
superintendence during the execution of the
Works and as long thereafter as the Engineer
may consider necessary for the proper
fulfilling of the Contractor's obligations under
the Contract.
Sub-Clause 6.8:
Throughout the execution of the Works, and as
long thereafter as is necessary to fulfil the
Contractor’s obligations, the Contractor shall
provide all necessary superintendence to plan,
arrange, direct, manage, inspect and test the
work.
FIDIC 99 has elaborated on the properties of
the superintendence while FIDIC 87 has
merely required them to be able to fulfil the
relevant obligations of the Contract.
Superintendence shall be given by a sufficient
number of persons having adequate knowledge
of the language for communications (defined
in Sub-Clause 1.4 [Law and Language]) and of
the operations to be carried out (including the
methods and techniques required, the hazards
likely to be encountered and methods of
preventing accidents), for the satisfactory and
safe execution of the Works.
Sub-Clause 6.10:
The Contractor shall submit, to the Engineer,
details showing the number of each class of
Contractor’s Personnel and of each type of
Contractor’s Equipment on the Site. Details
shall be submitted each calendar month, in a
form approved by the Engineer, until the
Contractor has completed all work which is
known to be outstanding at the completion date
stated in the Taking-Over Certificate for the
Works.
FIDIC 99 has required the Contractor to submit
certain details and information related to the
Contractor’s Personnel and Equipment on
interim basis, while FIDIC 87 has not a similar
requirement.
26- Working Hours
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 45.1:
Subject to any provision to the contrary
contained in the Contract, none of the Works
shall, save as hereinafter provided, be carried
on during the night or on locally recognised
days of rest…
Sub-Clause 6.5:
No work shall be carried out on the Site on
locally recognised days of rest, or outside the
normal working hours stated in the Appendix
to Tender,
FIDIC 99 has made a reference to the
Appendix to Tender in which the Working
Hours would be defined, while FIDIC 87 has
not accounted for similar details to be provided
through the Appendix to Tender.
Sub-Clause 45.1:
Provided that the provisions of this Clause
shall not be applicable in the case of any work
which it is customary to carry out by multiple
shifts.
FIDIC 87 has deemed this Clause as
inapplicable to any work which is customary to
carry out by multiple shifts, while FIDIC 99
has not accounted for a similar provision.
27- Termination by Employer
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 15.2:
(a) fails to comply with Sub Clause 4.2
[Performance Security] or with a notice under
Sub-Clause 15.1 [Notice to Correct],
FIDIC 99 has added a condition related to the
Contractor’s compliance with the obligations
of the Performance Security, for which failure
entitles the Employer to terminate the
Contract.
Sub-Clause 63.1:
If the Contractor is deemed by law unable to
pay his debts as they fall due, or enters into
voluntary or involuntary bankruptcy,
liquidation or dissolution (other than a
voluntary liquidation for the purposes of
amalgamation or reconstruction), or becomes
insolvent, or makes an arrangement with. Or
assignment in favour of, his creditors, or agrees
to carry out the Contract under a committee of
inspection of his creditors, or if a receiver,
administrator, trustee or liquidator is appointed
over any substantial part of his assets, or if,
under any law or regulation relating to
reorganization, arrangement or readjustment
of debts, proceedings are commenced against
the Contractor or resolutions passed in
connection with dissolution or liquidation or if
any steps are taken to enforce any security
interest over a substantial part of the assets of
the Contractor, or if any act is done or event
occurs with respect to the Contractor or his
assets which, under any applicable law has a
Sub-Clause 15.2:
(e) becomes bankrupt or insolvent, goes into
liquidation, has a receiving or administration
order made against him, compounds with his
creditors, or carries on business under a
receiver, trustee or manager for the benefit of
his creditors, or if any act is done or event
occurs which (under applicable Laws) has a
similar effect to any of these acts or events,
While the contents of both forms are mainly
similar with regards to these statements, FIDIC
87 has provided further elaboration and details.
substantially similar effect to any of the
foregoing acts or events…
(f) gives or offers to give (directly or
indirectly) to any person any bribe, gift,
gratuity, commission or other thing of value, as
an inducement or reward:
(i) for doing or forbearing to do any action in
relation to the Contract, or
(ii) for showing or forbearing to show favour
or disfavour to any person in relation to the
Contract,
or if any of the Contractor’s Personnel, agents
or Subcontractors gives or offers to give
(directly or indirectly) to any person any such
inducement or reward as is described in this
sub-paragraph (f). However, lawful
inducements and rewards to Contractor’s
Personnel shall not entitle termination.
FIDIC 99 has added a condition related to
bribes, gifts and the like that entitles the
Employer to terminate the Contract.
Sub-Clause 63.1:
(b)without reasonable excuse has failed
(i) to commence the Works in accordance with
Sub-Clause 41.1, or
(ii) to proceed with the Works, or any Section
thereof, within 28 days after receiving notice
pursuant to Sub-Clause 46. 1,
Sub-Clause 15.2:
(c) without reasonable excuse fails:
(i) to proceed with the Works in accordance
with Clause 8
[Commencement, Delays and Suspension],
FIDIC 99 has broadened this point to include
provisions related to the Programme,
suspension and others as relevant to Clause 8.
Sub-Clause 63.1:
then the Employer may, after giving 14 days’
notice to the Contractor, enter upon the Site
and the Works and terminate the employment
of the Contractor
Sub-Clause 15.2:
In any of these events or circumstances, the
Employer may, upon giving 14 days notice to
the Contractor, terminate the Contract and
expel the Contractor from the Site. However,
FIDIC 99 has allowed the Employer to
terminate the Contract immediately without
requiring a 14 days notice in certain
conditions, while FIDIC 87 has required a 14
in the case of sub-paragraph (e) or (f), the
Employer may by notice terminate the
Contract immediately.
days notice for all stated conditions that entitle
the Employer to termination.
Sub-Clause 63.1:
The Employer or such other contractor may
use for such completion so much of the
Contractor’s Equipment, Temporary Works
and materials as he or they may think proper.
Sub-Clause 15.2:
After termination, the Employer may complete
the Works and/or arrange for any other entities
to do so. The Employer and these entities may
then use any Goods, Contractor’s Documents
and other design documents made by or on
behalf of the Contractor.
FIDIC 87 has allowed the use of the
Contractor’s Equipment, Temporary Works
and materials to be used by the Employer or
other related contractors upon termination,
while FIDIC 99 has allowed the use of any
Goods, Contractor’s Documents and other
design documents.
Sub-Clause 15.2:
The Contractor shall then leave the Site and
deliver any required Goods, all Contractor’s
Documents, and other design documents made
by or for him, to the Engineer. However, the
Contractor shall use his best efforts to comply
immediately with any reasonable instructions
included in the notice (i) for the assignment of
any subcontract, and (ii) for the protection of
life or property or for the safety of the Works.
FIDIC 99 has required the Contractor to
deliver any required Goods, all Documents and
other documents to the Engineer. Moreover, it
has required him to comply immediately with
any reasonable instructions related to
assignment of any subcontract or in relation
with the protection or safety of the Works.
FIDIC 87 has not accounted for similar
provisions.
Sub-Clause 15.2:
The Employer shall then give notice that the
Contractor’s Equipment and Temporary
Works will be released to the Contractor at or
near the Site. The Contractor shall promptly
arrange their removal, at the risk and cost of
the Contractor. However, if by this time the
Contractor has failed to make a payment due to
the Employer, these items may be sold by the
Employer in order to recover this payment.
Any balance of the proceeds shall then be paid
to the Contractor.
FIDIC 99 has set the procedures related to the
delivery of the Contractor’s Equipment and
Temporary Works, as well as the possibility of
selling them in order to recover payments due
to the Employer. FIDIC 87 has not made
similar provisions.
Sub-Clause 15.5:
The Employer shall be entitled to terminate the
Contract, at any time for the Employer’s
convenience, by giving notice of such
termination to the Contractor. The termination
shall take effect 28 days after the later of the
dates on which the Contractor receives this
notice or the Employer returns the
Performance Security. The Employer shall not
terminate the Contract under this Sub-Clause
in order to execute the Works himself or to
arrange for the Works to be executed by
another contractor.
After this termination, the Contractor shall
proceed in accordance with Sub- Clause 16.3
[Cessation of Work and Removal of
Contractor’s Equipment] and shall be paid in
accordance with Sub-Clause 19.6 [Optional
Termination, Payment and Release].
FIDIC 99 has entitled the Employer to
terminate the Contract for convenience, having
set the related procedures. FIDIC 87 has not
accounted for a similar provision.
28- Cash Flow
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 14.3:
The Contractor shall, within the time stated in
Part II of these Conditions after the date of the
Letter of Acceptance, provide to the Engineer
for his information a detailed cash flow
estimate, in quarterly periods, of all payments
to which the Contractor will be entitled under
the Contract and the Contractor shall
subsequently supply revised cash flow
estimates at quarterly intervals, if required to
do so by the Engineer.
Sub-Clause 14.4:
If the Contract does not include a schedule of
payments, the Contractor shall submit non-
binding estimates of the payments which he
expects to become due during each quarterly
period. The first estimate shall be submitted
within 42 days after the Commencement Date.
Revised estimates shall be submitted at
quarterly intervals, until the Taking-Over
Certificate has been issued for the Works.
Since FIDIC 99 has introduced the concept of
schedule of payments, it has specified the
requirement of cash flow submission
whenever a schedule of payments has not been
included within the Contract. Minor
differences were identified between both
forms.
29- Plant, Materials, Equipment and Temporary Works
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 54.1:
All Contractor’s Equipment, Temporary
Works and materials provided by the
Contractor shall, when brought on to the Site,
be deemed to be exclusively intended for the
execution of the Works…
Sub-Clause 4.17:
The Contractor shall be responsible for all
Contractor’s Equipment. When brought on to
the Site, Contractor’s Equipment shall be
deemed to be exclusively intended for the
execution of the Works.
FIDIC 87 has made the application of this
Clause to include all Contractor’s Equipment,
Temporary Works and materials provided by
the Contractor, while FIDIC 99 has merely
included the Contractor’s Equipment.
Sub-Clause 54.4:
In respect of any Contractor’s Equipment
which the Contractor has imported for the
purposes of the Works, the Employer will use
his best endeavours to assist the Contractor,
where required, in procuring any necessary
Government consent to the re-export of such
Contractor’s Equipment by the Contractor
upon the removal thereof pursuant to the terms
of the Contract.
Sub-Clause 2.2:
The Employer shall (where he is in a position
to do so) provide reasonable assistance to the
Contractor at the request of the Contractor:
(b) for the Contractor’s applications for any
permits, licences or approvals required
by the Laws of the Country:
(iii) for the export of Contractor’s
Equipment when it is removed from the
Site.
Minor differences were identified between
FIDIC 87 and 99 with regards to these
statements.
Sub-Clause 39.1:
The Engineer shall have authority to issue
instructions from time to time, for:
(a) the removal from the Site, within such time
or times as may be specified in the instruction,
of any materials or Plant which, in the opinion
of the Engineer, are not in accordance with the
Contract,
(b) the substitution of proper and suitable
materials or Plant, and
Sub-Clause 7.6:
Notwithstanding any previous test or
certification, the Engineer may instruct the
Contractor to:
(a) remove from the Site and replace any Plant
or Materials which is not in accordance with
the Contract,
(b) remove and re-execute any other work
which is not in accordance with the Contract,
and
FIDIC 99 has added a condition related to
urgently required works for the safety of the
Works, while FIDIC 87 has not made a similar
provision. Furthermore, FIDIC 99 has made a
provision identifying the consequences of the
Contractor’s failure to comply by the
instructions of the Engineer in this regard,
while FIDIC 87 has not made a similar
provision.
(c) the removal and proper re-execution,
notwithstanding any previous test thereof or
interim payment therefore, of any work which,
in respect of
(i) materials, Plant or workmanship, or
(ii) design by the Contractor or for which he is
responsible, is not, in the opinion of the
Engineer, in accordance with the Contract.
(c) execute any work which is urgently
required for the safety of the Works, whether
because of an accident, unforeseeable event or
otherwise.
The Contractor shall comply with the
instruction within a reasonable time, which
shall be the time (if any) specified in the
instruction, or immediately if urgency is
specified under sub-paragraph (c).
If the Contractor fails to comply with the
instruction, the Employer shall be entitled to
employ and pay other persons to carry out the
work. Except to the extent that the Contractor
would have been entitled to payment for the
work, the Contractor shall subject to Sub-
Clause 2.5 [Employer’s Claims] pay to the
Employer all costs arising from this failure.
Sub-Clause 7.7:
Each item of Plant and Materials shall, to the
extent consistent with the Laws of the Country,
become the property of the Employer at
whichever is the earlier of the following times,
free from liens and other encumbrances:
(a) when it is delivered to the Site;
(b) when the Contractor is entitled to payment
of the value of the Plant and Materials under
Sub-Clause 8.10 [Payment for Plant and
Materials in Event of Suspension].
FIDIC 99 has made a provision related to the
ownership of Plant and Materials, deeming
them to be owned by the Employer upon the
occurrence of certain circumstances. FIDIC 87
has not made a similar condition.
30- Adjustments for Changes in Legislation
Points noted between FIDIC 87 and FIDIC 99:
FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments
Sub-Clause 70.2 Sub-Clause 13.7 FIDIC 87 has elaborated more on the types of
Law of the Country, while FIDIC 99 has
maintained its statements in a brief form.
FIDIC 99 has addressed the Contractor’s time
entitlement resulting from this Sub-Clause as
well as the cost, while FIDIC 87 has merely
addressed the cost entitlement.