International Construction Law Review
CHASING RAINBOWS – INITIAL VAGARIES IN THE FIDIC BOOK CLAIMS PROCEDURE
Nicholas A Brown* and Isabelle Chan†
INTRODUCTION
The major FIDIC Books’ claims procedures are designed to encourage the early determination of claims without impeding the progress of the works, and in the case of the Gold Book,1 the operation of the facility. While on the surface the provisions appear coherent, upon closer examination and a moderate amount of desktop-stress testing, there is perhaps more complexity than initially meets the eye. Of particular importance, quite how and when the engineer2 is expected to respond to a claim is far from certain.
This article will draw wider attention to some of the uncertain aspects of the claims assessment procedure under sub-clause 20.1 of the Red,3 Yellow,4 Silver5 and Pink6 Books – highlighting how the FIDIC Contracts Committee has sought to remedy the uncertainties in the Pink Book, and yet, in the process, has managed to create a new area of unclarity. It is not the intention of the authors to propose any change to the definition and apportionment of risks and responsibilities inherent in sub-clause 20.1, but simply to identify a few key areas for improvement in terms of the certainty of its operation within the parameters of the existing procedural architecture.
STEP 1 – THE FULLY DETAILED CLAIM?
This article takes as its starting point the required provision of a fully detailed claim, which the contractor must send to the engineer within, not one, but three alternative periods. The fifth paragraph of sub-clause 20.1 states:
* LL.B (QUT), LL.M (QUT), DipICArb, FCIArb; Partner, Pinsent Masons, an affiliate of Pinsent Masons, LLP, a limited liability partnership registered in England and Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority and the appropriate regulatory body in the other jurisdictions in which it operates.
† LL.B (Lond., LSE), LL.M (HK); Associate, Pinsent Masons.
1 FIDIC Conditions of Contract for Design, Build and Operate Projects (1st Edition) 2008.
2 In this article, the term “engineer” is intended to refer interchangeably to both the engineer under the Red, Yellow and Pink Books and the employer’s representative under the Silver and Gold Books.
3 FIDIC Conditions of Contract for Construction for Building and Engineering Works designed by the Employer (1st Edition) 1999.
4 FIDIC Conditions of Contract for Plant and Design-Build (1st Edition) 1999.
5 FIDIC Conditions of Contract for EPC/Turnkey Projects (1st Edition) 1999. References herein to the “engineer” are intended to include the “employer representative” under the Silver Book.
6 FIDIC Conditions of Contract for Construction (Multilateral Development Bank Harmonised Edition) Version 3, June 2010.
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