International Construction Law Review
FIDIC CONDITIONS OF CONTRACT FOR DESIGN, BUILD AND OPERATE PROJECTS, FIRST EDITION 2008—A NEW APPROACH
AXEL-VOLKMAR JAEGER1 AND DR GÖTZ-SEBASTIAN HÖK2
Dipl-Ing, Dipl-Wirt-Ing
Partner, Dr Hök, Stieglmeier & Collegen, Berlin
In September 2007 FIDIC published, as a pre-press seminar edition, a new contract form suitable for design, build and operate projects (the DBO form). This form, which is also referred to as the Gold Book, joins the series of contract forms published by FIDIC since 1999 and was first presented at the FIDIC Annual Conference in Singapore in 2007. It has now been followed by the First Edition, published in September 2008. The drafting work has been done by the DBO Task Group under the excellent chairmanship of Michael Mortimer-Hawkins with direct responsibility to the FIDIC Contracts Committee supported by special advisers, legal advisers, and reviewed by a number of reviewers worldwide.
Today three basic types of contracts or procurement methods may be identified in conjunction with construction works, ordinary build contracts (Construction), design and build contracts (D & B) and design, build and operate contracts (DBO). Two of the aforementioned types of contract are already covered by FIDIC, known as the new Red Book and the new Yellow Book and its complementary book, the Silver Book (EPC).
A simple construction contract presupposes that the design has been prepared by the employer (by himself or by engaging a consultant). This has been a normal contracting format in the world until today. By contrast a design and build contract presupposes that the design has been prepared by the contractor. A design, build and operate contract comprises an operation and maintenance phase. One of the basic principles of this type of contract is that the contractor assumes the responsibility for the operation and maintenance of plant before the facility is finally handed
1 Axel-Volkmar Jaeger is a Consulting Engineer and the former past Chairman of the FIDIC Contracts Committee and a member of the DBO Task Group. Dr Hök is a lawyer (Rechtsanwalt) in Berlin and self- confessed friendly reviewer of the DBO form. However, this article expresses the personal points of view of both the authors and does not represent an official FIDIC statement. An official complementary guide to the FIDIC Gold Book is in preparation.
2 Both authors warmly thank Mr Michael Mortimer-Hawkins and Dr Nael Bunni for their very useful and inspiring comments and they also deeply thank His Honour Humphrey LLoyd, QC, for his very helpful final review and comments.
Pt 1] The FIDIC Gold Book—A New Approach
37