Content of the pre-2017 FIDIC forms

Clause 12

Clause 12 in the Red Book deals with measurement and evaluation. Measurement is a central feature of clause 12 and is the basis ultimately upon which payment to the contractor is calculated. Sometimes called a 'measure and value' type of contract, the arrangements proceed on the basis that the works are to be measured by the Engineer, and those quantities and measured amounts of work are then to be paid for alternatively at the rates and prices in the Contract, or else on the basis of adjusted rates or entirely new rates (if there is no basis for using or altering contract rates for the work).

If a fixed price lump sum contract is required, clause 12 (and consequential clauses) should be deleted and/or amended in the particular conditions.

In the Yellow Book, clause 12 provides for tests after completion (as the Yellow Book is a fixed price contract and it is designed for use on electrical and mechanical plant projects, a post completion performance regime is appropriate).

Clause 12 in the Yellow Book also includes the ability for the employer to apply performance liquidated damages in the event that the works fail to perform in accordance with the criteria set out in the contract documents.

Clause 13

Clause 13 addresses variations and incorporates adjustments for changes in legislation and in costs. However, if the contractor notifies an inability to obtain goods required to perform the variation, a variation is not binding. Equally, it is not binding in the case of contractor design if the proposed variation would have an adverse impact on safety, suitability or the achievement of performance criteria as specified.

Clause 14

Clause 14 sets out the process and timing for payment of the contract price, and, if applicable, any advance payment and retention money.