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FIDIC EMERALD BOOK AND GEOTECHNICAL BASELINE REPORTS – DIGGING INTO THE USE OF GBRS IN UNDERGROUND WORKS

International Construction Law Review

FIDIC EMERALD BOOK AND GEOTECHNICAL BASELINE REPORTS – DIGGING INTO THE USE OF GBRS IN UNDERGROUND WORKS

Frédéric Gillion,1 Charles Blamire-Brown,2 Rob Morson3 and Ryan Frye4 5

INTRODUCTION

Discrepancies between the site conditions envisaged at the tender stage and those actually encountered often generate significant delays and costs overruns, particularly in respect of underground works. When combined with an often unclear allocation of contractual risk with regards to subsurface conditions, disputes tend to arise. Therefore, it is no surprise to see “differing site conditions” as a new leading cause of disputes in Continental Europe in Arcadis’ June 2019 report on “Global Construction Disputes”.6
One way of bringing greater clarity to the allocation of risk in respect of subsurface conditions is to use geotechnical baseline reports (“GBRs”) to allocate this. Whilst GBRs have been commonly used in major underground works projects around the world, the risk of subsurface conditions is more typically dealt with by general concepts such as “unforeseeability”; what an experienced Contractor should have foreseen at tender stage. Without a more objective measure setting the parameters for what is or is not foreseeable (e.g. by reference to limits within a GBR), this leaves the matter open for interpretation and debate and in turn creates uncertainty. This has led to a number of court and arbitral decisions in which Contractors have been found to assume the risk for subsurface conditions outside the limits of certain geotechnical surveys provided at tender stage notwithstanding that in practice Contractors often price the risk of subsurface conditions based on these very limits.7
Pt 4] FIDIC Emerald Book and Geotechnical Baseline Reports

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