Red, Yellow and Silver Books, 2nd editions

As was the case with earlier versions, the 2017 2nd editions contain guidance for the preparation of particular conditions. The guidance includes pro-forma contract data, notes on the preparation of tender documents and highlights some of the key points that, if missed, could lead to difficulties during the project.

The guidance also sets out, on a contract-by-contract basis, additional clauses and amendments to the general conditions already set out in this isurv section and reminds users and drafters that if using these or seeking to amend the general conditions to include bespoke amendments, the 5 FIDIC ‘golden principles’ should be taken into account. The ‘golden principles’ can be summarised as:

• parties’ duties, obligations and responsibilities should be set out in the published form and appropriate to the project in question;
• amendments should be drafted clearly and unambiguously;
• amendments must not change the risk/reward allocation in the published form;
• any time periods must be reasonable; and
• all formal disputes must be referred to a dispute avoidance/adjudication board (or dispute adjudication board if relevant) for a provisionally binding decision as a condition precedent to arbitration.

FIDIC’s view is that the changes to the general conditions in the 2017 2nd editions editions should be limited:

1. to deal with particular features of a site or to ensure compliance with applicable law;
2. so that the ‘essential fair and balanced character of a FIDIC contract’ is not changed; and
3. so the contract is recognisable as a FIDIC contract. However, this guidance is unlikely to limit the extent and scope of amendments made to the general conditions.

Given the increased interdependence between the drafting in different clauses, a change to one provision may have unintended consequences elsewhere.

Notwithstanding the ‘golden principles’ referred to above, FIDIC recognise that some changes may be needed and, as with previous editions, the guidance contains suggestions for changes to particular conditions. For example, the guidance to the FIDIC Red Book provides suggested alternative drafting for:

• Sub-clause 1.15 – if the parties agree to be responsible for certain types of indirect or consequential loss which would otherwise be excluded;
• Sub-clause 3.2 – if the engineer needs the employer's consent before it takes certain actions; and
• Sub-clause 4.12 – the allocation of risk between the contractor and employer for unforeseeable physical conditions where significant sub-surface work is being carried out.

The guidance also includes drafting for entirely new sub-clauses dealing with the use of milestones and incentives for early completion (among others).