The FIDIC DBO Contract GuideFor the FIDIC Conditions of Contract for Design, Build and Operate Projects. First Edition The purpose of this guide is to. FIDIC Matrix: FIDIC Yellow, Silver & Gold Books + Review of updates, London, January Course/Workshop. 30 January, to 31 January . preckalohotchning.cf - Ebook download as PDF File .pdf), Text File .txt) or read book online.
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The FIDIC Design Build and Operate Contract - Gold Book. By Rechtsanwalt Dr. Götz-Sebastian Hök. In FIDIC has published a standard. preckalohotchning.cf the FIDIC Gold Book being a contract form where the design is made by the Contractor. Additionally the Contractor. criticisms raised against the Gold Book and consider whether these have been addressed in the Contract Guide. NEW FIDIC GOLD BOOK.
Arbitration may not be commenced until 56 d after the Notice of dissatisfaction is issued.
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Both Parties shall attempt to settle the Dispute amicably before commencement of arbitration. Either Party may refer a Dispute ariising under In the Conditions of Contract "these Conditions" , which include Particular Conditions and these General Conditions, the following words and expressions shall have the meanings stated. Words indicating persons or parties include corporations and other legal entities, except where the context requires otherwise.
Asset Replacement Schedule means the schedule referred to in Sub-Clause However, Contractor's Equipment excludes Temporary Works, Employers Equipment if any , Plant, Materials and any other things intended to form or forming part of the Works.
Contract and named as such in the Contract Data, or other person appointed from time to time by the Employer and notified as such to the Contractor under Sub-Clause 3. If there is no such Letter of Acceptance, the expression "Letter of Acceptance" means the Contract Agreement and the date of issuing or receiving the Letter of Acceptance means the date of signing the Contract Agreement. Performance Security means the security under Sub-Clause 4.
Works means the Permanent Works and Temporary Works or either of them as appropriate and the facility to be operated by the Contractor during the Operation Service Period. In the Contract, except where the context requires otherwise: Variation, and which are to be carried out under Clause 11 [Testing] before the Works or a Section as the case may be are deemed to be fit for purpose as defined in the Employers Requirements.
The marginal words and other headings shall not be taken into consideration in the interpretation of these Conditions. Wherever these Conditions provide for the giving or issuing of a Notice or other communication including approvals, certificates, consents, determinations, instructions and requests, such Notice or communication shall be:. Notices and other communications shall not be unreasonably withheld or delayed. When a certificate is issued to a Party, the certifier shall send a copy to the other Party.
When a Notice is issued to a Party, by the other Party or the Employers Representative, a copy shall be sent to the Employers Representative or the other Party, as the case may be. The Contract shall be governed by the law of the country or other jurisdiction stated in the Contract Data. If there are versions of any part of the Contract which are written in more than one language, the version which is in the ruling language stated in the Contract Data shall prevail.
The language for communications shall be that stated in the Contract Data. If no language is stated there, the language for communications shall be the ruling language of the Contract. The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence:. If an ambiguity or discrepancy is found in the documents, the Employer's Representative shall issue any necessary clarification or instruction.
The Parties shall enter into a Contract Agreement within 28 days after the Contractor receives the Letter of Acceptance, unless they agree otherwise. The Contract Agreement shall be based upon the sample form included in the tender documents. The Operating Licence shall only extend to those parts of the Site which it is required to occupy for the purposes of carrying out the Works and Operation Service as set out in the Contract.
The Operating Licence granted pursuant to this Sub-Clause shall not operate nor be deemed to operate as a tenement or a demise of the Site or any part thereof. The Contractor shall not have or be entitled to any estate right, title, or interest in the Site.
The licence will immediately terminate upon the termination of this Contract for whatever reason. Neither Party shall assign the whole or any part of the Contract or any benefit or interest in or under the Contract.
However, either Party:. Each of the Contractor's Documents shall be in the custody and care of the Contractor, unless and until taken over by the Employer. Unless otherwise stated in the Contract, the Contractor shall supply to the Employer's Representative six copies of each of the Contractor's Documents.
The Contractor shall keep, on the Site, a copy of the Contract, publications named in the Employer's Requirements, the Contractor's Documents, and Variations and other communications given under the Contract. The Employer's Personnel shall have the right of access to all these documents at all reasonable times.
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.
The Operating Licence shall automatically come into full force and effect upon the issue of the Commissioning Certificate upon completion of the Design-Build under Sub-Clause 9. Notwithstanding the Contractors obligations to scrutinise the Employers Requirements under Sub-Clause 5. After receiving this Notice, the Employers Representative shall, without prejudice to other rights and obligations of the Parties, promptly confirm to the Contractor: As between the Parties, the Contractor shall retain the copyright and other intellectual property rights in the Contractor's Documents and other design documents made by or on behalf of the Contractor.
The Contractor shall be deemed by signing the Contract to give to the Employer a non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the Contractor's Documents, including making and using modifications of them.
This licence shall:.
The Contractor's Documents and other design documents made by or on behalf of the Contractor shall not, without the Contractor's consent, be used, copied or communicated to a third party by or on behalf of the Employer for purposes other than those permitted under this Sub-Clause. As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Employer's Requirements and other documents made by or on behalf of the Employer.
The Contractor may, at his cost, copy, use, and obtain communication of these documents for the purposes of the Contract. They shall not, without the Employer's consent, be copied, used, or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract. The Contractor shall disclose all such confidential and other information as the Employer's Representative may reasonably require in order to verify the Contractor's compliance with the Contract.
The Contractor shall treat the details of the Contract as private and confidential, except to the extent necessary to carry out his obligations under the Contract. The Contractor shall not publish, permit to be published, or disclose any particulars of the Contract in any trade or technical paper or elsewhere without the previous consent in writing of the Employer.
The said consent shall not be unreasonably withheld. The Employer shall treat all information designated by the Contractor as confidential, as confidential, and shall not disclose it to third parties, except as maybe necessary when exercising his rights under Sub-Clause If the Contractor constitutes under applicable Laws a joint venture, consortium or other unincorporated grouping of two or more persons: The Contractor shall, in performing the Contract, comply with applicable Laws.
Unless otherwise stated in the Employer's Requirements:. The Employer shall give the Contractor right of access to, and possession of, all or part of the Site within the time or times stated in the Contract Data. The right and possession may not be exclusive to the Contractor. If, under the Contract, the Employer is required to give the Contractor possession of any foundation, structure, plant or means of access, the Employer shall do so in the time and manner stated in the Employer's Requirements.
However, the Employer may withhold any such right or possession until the Performance Security has been received. If no such time is stated in the Contract Data, the Employer shall give the Contractor right of access to, and possession of, the Site within such times as may be required. However, if and to the extent that the Employer'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 or cost.
The Employer shall provide, at the request of the Contractor, such reasonable assistance as to allow the Contractor to obtain: The Employer shall be responsible for ensuring that the Employer's Personnel and the Employer's other contractors on the Site:. After receiving this Notice, the Employer's Representative shall proceed in accordance with Sub-Clause 3.
The Employers arrangements for financing the design, execution and operation of the Works, including the provision of the Asset Replacement Fund, shall be detailed in the Financial Memorandum. If the Employer intends to make any material changes to the financial arrangements or has to do so because of changes in his financial or economic situation, the Employer shall give Notice to the Contractor, with detailed particulars.
Within 28 days after receiving any request of the Contractor the Employer shall give reasonable evidence that financial arrangements have been made and are being maintained which will enable the Employer to pay the Contract Price. The Employer's Representative The Employer shall appoint the Employer's Representative prior to the signing of the Contract, who shall be suitably qualified and experienced and who shall carry out the duties assigned to him in the Contract.
The Employer's Representative's staff shall include suitably qualified engineers and other professionals who are competent to carry out these duties. The Employer's Representative shall have no authority to amend the Contract. The Employer's Representative may exercise the authority attributable to the Employer's Representative as specified in or necessarily to be implied from the Contract. However, whenever the Employer's Representative 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.
The Employers Representative may from time to time assign duties and delegate authority to assistants, and may also revoke such assignment or delegation. The assignment, delegation or revocation shall be in writing and shall not take effect until copies have been received by both Parties.
However, unless otherwise agreed by both Parties, the Employers Representative shall not delegate the authority to determine any matter in accordance with Sub-Clause 3.
The Employer undertakes not to impose further constraints on the Employer's Representative's authority, except as agreed with the Contractor. Assistants shall be suitably qualified persons, who are competent to carry out these duties and exercise this authority, and who are fluent in the language for communications defined in Sub-Clause 1.
Each assistant, to whom duties have been assigned or authority has been delegated, shall only be authorised to issue instructions to the Contractor to the extent defined by the delegation. Any approval, check, certificate, consent, examination, inspection, instruction, Notice, proposal, request, test or similar act by an assistant, in accordance with the delegation, shall have the same effect as though the act had been an act of the Employer's Representative.
The Employer's Representative may issue to the Contractor at any time instructions which may be necessary for the execution of the Works and the remedying of any defects, all in accordance with the Contract. The Contractor shall only take instructions from the Employer's Representative, or from an assistant to whom the appropriate authority has been delegated under this Clause.
Silver & Gold Books
If an instruction constitutes a Variation, Clause 13 [Variations and Adjustments] shall apply. The Contractor shall comply with the instructions given by the Employer's Representative or delegated assistant on any matter related to the Contract. These instructions shall be given in writing. If the Contractor considers that any instruction of the Employers Representative does not comply with applicable Laws or is technically impossible, he shall immediately notify the Employers Representative in writing.
The Employers Representative shall then either confirm or amend such instruction. If the Employer intends to replace the Employer's Representative, the Employer shall, not less than 42 days before the intended date of replacement, give Notice to the Contractor of the name, address and relevant experience of the intended replacement Employer's Representative. The Employer shall not replace the Employer's Representative with a person against whom the Contractor raises reasonable objection by Notice to the Employer, with supporting particulars.
Whenever these Conditions provide that the Employer's Representative shall proceed in accordance with this Sub-Clause to agree or determine any matter, the Employer's Representative shall consult with each Party in an endeavour to reach agreement. If agreement is not achieved, the Employer's Representative shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances.
The Employer's Representative shall give Notice to both Parties of each agreement or determination, with supporting particulars. Each Party shall give effect to each agreement or determination unless and until revised under Clause 20 [Claims, Disputes and Arbitration]. The Contractor shall design, execute and complete the Works and provide the Operation Service in accordance with the Contract and shall remedy any defects in the Works.
Works are intended as defined in the Contract, and the Contractor shall be responsible for ensuring that the Works remain fit for such purposes during the Operation Service Period.
The Contractor shall provide the Plant and Contractor's Documents specified in the Contract, and all Contractor's Personnel, Goods, consumables and other things and services, whether of a temporary or permanent nature, required to meet the Contractor's obligations under the Contract.
The Works shall include any work which is necessary to satisfy the Employer's Requirements, Contractor's Proposal and Schedules, or is implied by the Contract, and all works which although not mentioned in the Contract are necessary for stability or for the completion, or safe and proper operation, of the Works. The Contractor shall, whenever required by the Employer's Representative, 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 Employer's Representative. The Contractor shall attend all meetings as reasonably required by the Employer or the Employer's Representative. The Contractor shall obtain at his cost the Performance Security for proper performance of the Contract, in the amounts and currencies set out in the Contract Data.
If no amount is stated in the Contract Data, this Sub-Clause shall not apply. At the end of the Retention Period, the Contractor is entitled to a reduction of the amount of the Performance Security, as stated in the Contract Data. The Contractor shall deliver the Performance Security to the Employer within 28 days after receiving the Letter of Acceptance, and shall send a copy to the Employer's Representative. The Performance Security shall be issued by an entity and from within a country or other jurisdiction approved by the Employer, and shall be based on the sample form included in the tender documents, or in another form approved by the Employer.
The Contractor shall be responsible for the adequacy, stability and safety of all Site operations, of all methods of construction and of all the Works during both the DesignBuild Period and the Operation Service Period. The Contractor shall ensure that the Performance Security is valid and enforceable until the issue of the Contract Completion Certificate. If the terms of the Performance Security specify its expiry date, and the Contractor has not become entitled to receive the Contract Completion Certificate by the date 28 days prior to the expiry date, the Contractor shall extend the validity of the Performance Security until the Works and the Operation Service have been completed or alternatively, until the Contractor has been entitled to receive the Contract Completion Certificate.
Failure by the Contractor to maintain the validity of the Performance Security shall be grounds for termination in accordance with Sub-Clause 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: 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 which the Employer was not entitled to make.
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 Employer's Representative 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 shall not, without the prior consent of the Employer's Representative, revoke the appointment of the Contractor's Representative or appoint a replacement.
The whole time of the Contractor's Representative shall be given to directing the Contractor's performance of the Contract. If the Contractor's Representative is to be temporarily absent from the Site during the execution of the Works or provision of the Operation Service, a suitable replacement person shall be appointed, subject to the Employer's Representative's prior consent, and the Employer's Representative shall be notified accordingly.
The Contractor's Representative shall, on behalf of the Contractor, receive instructions under Sub-Clause 3. The Employer shall return the Performance Security to the Contractor within 21 days after receiving a copy of the Contract Completion Certificate. 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 Employer's Representative has received prior Notice signed by the Contractor's Representative, naming the person and specifying the powers, functions and authority being delegated or revoked. The Contractor's Representative and all these persons shall be fluent in the language for communications defined in Sub-Clause 1.
The Contractor shall not subcontract the whole of the Works. Unless otherwise agreed, the Contractor shall not subcontract the provision of the Operation Service. The Contractor shall be responsible for the acts or defaults of any Subcontractor, his agents or employees, as if they were the acts or defaults of the Contractor.
Unless otherwise stated in the Particular Conditions: If any Subcontractor is entitled under any contract or agreement relating to the Works to relief from any risk on terms additional to or broader than those specified in the Contract, such additional or broader events or circumstances shall not excuse the Contractor's non-performance or entitle him to relief under the Contract.
In this Sub-Clause, "nominated Subcontractor" means a Subcontractor named as such in the Employer's Requirements or whom the Employer's Representative, under Clause 13 [Variations and Adjustments ], instructs the Contractor to employ as a Subcontractor. The Contractor shall not be under any obligation to employ a nominated Subcontractor against whom the Contractor raises reasonable objection by Notice to the Employer's Representative as soon as practicable, with supporting particulars.
The Contractor shall, as specified in the Contract or as instructed by the Employer's Representative, allow appropriate opportunities for carrying out work to: Any such instruction shall constitute a Variation if and to the extent that it causes the Contractor to incur Unforeseeable cost.
Services for these personnel and other contractors may include the use of Contractor's Equipment, Temporary Works or access arrangements which are the responsibility of the Contractor.
The Contractor shall be responsible for his construction and operation activities on the Site, and shall co-ordinate his own activities with those of other contractors to the extent if any specified in the Employer's Requirements.
If, under the Contract, the Employer is required to give to the Contractor possession of any foundation, structure, plant or means of access in accordance with Contractor's Documents, the Contractor shall submit such documents to the Employer's Representative in the time and manner stated in the Employer's Requirements.
The Contractor shall set out the Works in relation to original points, lines and levels of reference specified in the Contract or notified by the Employer's Representative. The Contractor shall be responsible for the correct positioning of all parts of the Works,. The Employer shall be responsible for any errors in these specified or notified items of reference, but the Contractor shall use reasonable efforts to verify their accuracy before they are used.
The Contractor shall institute a quality assurance system to demonstrate compliance with the requirements of the Contract. The system shall be in accordance with the details stated in the Contract. The Employer's Representative shall be entitled to audit any aspect of the system. Details of all procedures and compliance documents shall be submitted to the Employer's Representative for information before each design, execution and operation stage is commenced.
When any document of a technical nature is issued to the Employer's Representative, evidence of the prior approval by the Contractor himself shall be apparent on the document itself. Compliance with the quality assurance system shall not relieve the Contractor of any of his duties, obligations or responsibilities under the Contract. The Employer shall have made available to the Contractor for his information, prior to the Base Date, all relevant data in the Employer's possession on sub-surface, hydrological and climatic conditions at the Site, including environmental aspects.
Employer shall similarly make available to the Contractor all such data which come into the Employer's possession after the Base Date. The Contractor shall be responsible for interpreting all such data. To the extent which was practicable taking account of cost and time , the Contractor shall be deemed to have obtained all necessary information as to risks, contingencies and other circumstances which may influence or affect the Tender or Works or the provision of the Operation Service.
To the same extent, the Contractor shall be deemed to have inspected and examined the Site, its surroundings, the above data and other available information, and to have been satisfied before submitting the Tender as to all relevant matters, including without limitation:.
The Accepted Contract Amount covers all the Contractor's obligations under the Contract including those under Provisional Sums, if any and all things necessary for the proper design, execution and completion of the Works, the remedying of any defects and the provision of the Operation Service.
In this Sub-Clause, "physical conditions" means natural physical conditions and manmade and other physical obstructions and pollutants, which the Contractor encounters at the Site when executing the Works, including sub-surface and hydrological conditions but excluding climatic conditions.
If the Contractor encounters adverse physical conditions which he considers to have been Unforeseeable, the Contractor shall give Notice to the Employer's Representative as soon as practicable.
This Notice shall describe the physical conditions, so that they can be inspected by the Employer's Representative, and shall set out the reasons why the Contractor considers them to be Unforeseeable. The Contractor shall continue executing the Works, using such proper and reasonable measures as are appropriate for the physical conditions, and shall comply with any instructions which the Employer's Representative may give.
However, before additional Cost is finally agreed or determined under ii , the Employer's Representative may also review whether other physical conditions in similar parts of the Works if any were more favourable than could reasonably have been foreseen when the Contractor submitted the Tender. If and to the extent that these more favourable conditions were encountered, the Employer's Representative may proceed in accordance with Sub-Clause 3. However, the net effect of all adjustments under sub-paragraph b and all these reductions, for all the physical conditions encountered in similar parts of the Works, shall not result in a net reduction in the Contract Price.
The Employer's Representative may take account of any evidence of the physical conditions foreseen by the Contractor when submitting the Tender, which may be made available by the Contractor, but shall not be bound by any such evidence. The Contractor shall also obtain, at his risk and cost, any additional facilities outside the Site which he may require for the purposes of the Works. The Contractor shall indemnify and hold the Employer harmless against and from all damages, losses and expenses including legal fees and expenses resulting from any such unnecessary or improper interference.
The Contractor shall be deemed to have been satisfied as to the suitability and availability of access routes to the Site. The Contractor shall use reasonable efforts to prevent any road or bridge from being damaged by the Contractor's traffic or by the Contractor's Personnel.
These efforts shall include the proper use of appropriate vehicles and routes. Except as otherwise stated in these Conditions: 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.
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 and provision of the Operation Service. The Contractor shall not remove from the Site any major items of Contractor's Equipment without the consent of the Employer's Representative.
However, consent shall not be required for vehicles transporting Goods or Contractor's Personnel off Site. The Contractor shall ensure that emissions, surface discharges and effluent from the Contractor's activities shall not exceed the values indicated in the Employer's Requirements, and shall not exceed the values prescribed by applicable Laws. Except as stated below, the Contractor shall be responsible for the provision of all electricity, water and other services he may require.
The Contractor shall be entitled to use for the purposes of the Works and provision of the Operation Service such supplies of electricity, water, gas and other services as may be available on the Site and of which details are given in the Employer's Requirements. In such a case the Contractor shall take over in his own name and shall be responsible for payment of the electricity, water, gas and other services to the utility provider.
The Contractor will be allowed to take over the existing service entry and provision points and shall be responsible for taking and recording such information as is necessary for the utility providers to correctly charge the Contractor from the Commencement Date. The Employer shall make the Employer's Equipment if any available for the use of the Contractor in the execution of the Works in accordance with the details, arrangements and prices stated in the Employer's Requirements.
Unless otherwise stated in the Employer's Requirements: The Employer shall supply, free of charge, the "free-issue materials" if any in accordance with the details stated in the Employer's Requirements.
The Employer shall, at his risk and cost, provide these materials at the time and place specified in the Contract.
The Contractor shall then visually inspect them, and shall promptly give Notice to the Employer's Representative of any shortage, defect or default in these materials. Unless otherwise agreed by both Parties, the Employer shall immediately rectify the notified shortage, defect or default.
After this visual inspection, the free-issue materials shall come under the care, custody and control of the Contractor. The Contractor's obligations of inspection, care, custody and control shall not relieve the Employer of liability for any shortage, defect or default not apparent from a visual inspection. During the Design-Build Period, monthly progress reports, in a format agreed with the Employer's Representative shall be prepared by the Contractor and submitted to the Employer's Representative in one original and five copies, unless otherwise stated in the Employer's Requirements.
The first report shall cover the period up to the end of the first calendar month following the Commencement Date. Reports shall be submitted monthly thereafter, each within 7 days after the last day of the period to which it relates.
Reporting on progress shall continue until the Contractor has received the Contract Completion Certificate.
Details of the content of the progress reports for the DesignBuild Period and the Operation Service Period shall be as specified in the Employer's Requirements. Unless otherwise stated or agreed, each progress report shall include: The appropriate quantities and the amounts due at such stated prices for the use of Employer's Equipment shall be agreed or determined by the Employer's Representative in accordance with Sub-Clause The Contractor shall pay these amounts to the Employer. The Contractor shall be responsible for the security of the Site.
The Contractor shall confine his operations to the Site, and to any additional areas which may be obtained by the Contractor and agreed by the Employer's Representative as working areas. The Contractor shall take all necessary precautions to keep Contractor's Equipment and Contractor's Personnel within the Site and these additional areas, and to keep them off adjacent land.
At all times the Contractor shall keep the Site free from all unnecessary obstruction, and shall store or dispose of any Contractor's Equipment or surplus materials. The Contractor shall promptly clear away and remove from the Site any surplus material, wreckage, rubbish and Temporary Works which are no longer required. Upon the issue of a Commissioning Certificate, the Contractor shall clear away and remove, from that part of the Site and Works to which the Commissioning Certificate refers, all Contractor's Equipment, surplus material, wreckage, rubbish and Temporary Works.
The Contractor shall leave that part of the Site and the Works in a clean and safe condition. The particular reporting requirements during the Operation Service Period shall be as specified in the Employer's Requirements. The Contract Completion Certificate shall not be issued until the Contractor has removed any remaining Contractor's Equipment, surplus material, wreckage, rubbish and Temporary Works from the Site which are not required.
Users who wish to adopt these conditions for use on a different scenario or with an operation period significantly different to the year period assumed, are referred to the FIDIC DBO Contract Guide planned for publication by FIDIC at a later date , which identifies the areas which will require amending and gives comprehensive guidelines and suggestions on how they should be addressed.
However, the Guide will not claim to address all issues requiring attention, and users should seek expert advice from FIDIC before attempting to make any significant changes to the document via Particular Conditions Part B — Special Provisions.
Drafters of contract documents are reminded that the General Conditions of all FIDIC contracts are protected by copyright and trademark and may not be changed without specific written consent, usually in the form of a licence to amend, from FIDIC. If drafters wish to amend the provisions found in the General Conditions, the place for doing this is in the Particular Conditions Part B — Special Provisions, as mentioned above, and not by making changes in the General Conditions as such.
FIDIC also recognises that the successful performance of a long-term DBO contract requires that the Parties understand the overall time framework and the need for a long-term commitment by both the Employer and the Contractor. In trying to achieve this understanding and commitment, it has been necessary to introduce new procedures and new terminology which are not to be found in the other FIDIC forms of contract. The document also includes a number of sample forms to help both Parties have a common understanding of what is required by third parties such as providers of securities and guarantees, and what is considered to be accepted good practice by FIDIC and the major international funding agencies.
While copyrighted, these forms are expressly provided to users of the Conditions of Contract for completion by users. These provisions must be read together to obtain a full understanding of the rights, obligations and liabilities of the parties. For this reason, the authors have adopted an issue-based approached, as opposed to providing a commentary on a clause-by-clause basis. Individual sub-clauses have been considered in detail, but the authors have then sought to place these sub-clauses into the context of the contract as whole.
The book is intended to be read alongside the relevant form of contract. The book opens with a general discussion of FIDIC as an institution and the background to the contract forms; chapter two considers the FIDIC forms and other forms published by FIDIC and the structure of a FIDIC Contract; chapters three, four and five are concerned with the parties' obligations in relation to what and how the works are to be constructed and, in the Gold Book, operated, their payment obligations and their obligations as to time; chapter six deals with the administration of the contract, and in particular two central features of the FIDIC forms: the role of the third-party contract administrator except in the Silver Book and the administration of claims; chapter seven concerns the mechanisms found in the FIDIC forms for the allocation and management of specific risks; chapter eight collates and discusses the various remedies available to the parties; and the book concludes with chapter nine — the resolution of disputes under the FIDIC forms.
The choice of governing law adopted will, of course, affect the particular application and operation of the provisions the FIDIC forms for any given project. It is for this reason that the authors have sought to adopt a 'jurisdiction-neutral' approach, concentrating on the provisions of the forms themselves.FIDIC has chosen to adopt the green-field Design-Build-Operate scenario, with a year operation period, and has opted for a single contract awarded to a single contracting entity which will almost certainly be a consortium or joint venture to optimise the coordination of innovation, quality and performance, rather than award separate contracts for design-build and for operation.
This change is however in line with the principles of natural justice more specifically the principle of audi alterem partem and those entrenched in our jurisprudence as time bars are already narrowly interpreted by the South African Courts due to the limitations they place on a parties right to redress.
When preparing these Conditions of Contract for Design, Build and Operate Projects, the drafting group attempted to include all conditions of a general nature, which were likely to apply to the majority of DBO contracts, into General Conditions. Each of these aspects, and much more, is covered in this guide. Watermarked Compilation of all Collections English electronic version. However, the Guide will not claim to address all issues requiring attention, and users should seek expert advice from FIDIC before attempting to make any significant changes to the document via Particular Conditions Part B — Special Provisions.
Following their publication, it became clear that there was a growing need for a document which combined a design-build obligation with a long-term operation commitment. The FIDIC forms are probably the most widely used 'international' standard form contracts and are used worldwide on all types of construction and engineering projects, from the construction of simple structures, to bridges, tunnels and massive infrastructure projects, to power and process plants.
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