FIDIC Forms of Contract: Tender and Contract

Documents
By Frederic Gillion, Senior Associate
Published in PLC Construction

FIDIC publishes its 1999 suite of contracts (FIDIC Books) in a form that requires
the parties to agree additional documents to complete and supplement the
printed forms. This note highlights the contents of the FIDIC Books, identifying
what documents are usually submitted by the Employer at tender stage, what
documents will form part of the contract, and what considerations the parties
should take into account when preparing the Particular Conditions.
Defined terms used in this note are defined in the FIDIC contracts.
Contents of the FIDIC Books (1999 Suite)
The FIDIC Books are divided into three sections:
• General Conditions (see note, General Conditions).
• Guidance for the preparation of Particular Conditions (see note, Guidance for
the preparation of Particular Conditions).
• Sample Forms (see note, Sample Forms).
General Conditions
The General Conditions contain the standard clauses that FIDIC considers are
applicable to most contracts. FIDIC does not intend that the clauses are altered.
The general conditions section also includes the Appendix and Annex for the
Dispute Adjudication Board (DAB) agreements (see Practice note: overview,
Dispute boards: what are dispute boards?).
The General Conditions are mostly identical (or at least similar) in the 1999 Red,
Yellow and Silver Books. The key differences include those clauses that relate to
the allocation of the design function or to the Engineer. This is because the 1999
Red Book is for projects designed by the Employer (or designed on its behalf)
with an Engineer administrating the contract; the Yellow Book is for projects
designed by the Contractor also with an Engineer in place; and the Silver Book is
for projects designed by the Contractor but with no Engineer in place (see
Practice note: overview, FIDIC Forms of Contract).

Guidance for the preparation of Particular Conditions

The Guidance provides some comments relating to the preparation of the tender
documents and also sets out proposed amendments and additions to the General
Conditions to suit the local and project requirements.
The proposed amendments and additions to the General Conditions of Contract
will form the Particular Conditions.
The General Conditions of Contract and the Particular Conditions will together
comprise the Conditions of Contract, governing the rights and obligations of the
parties. The Conditions of Contract must be included in the tender documents.
The Guidance also includes a number of sample forms:
• Parent Company Guarantee.
• Tender Security.
• Performance Security.
• Advance Payment Guarantee.
• Retention Money Guarantee.
• Payment Guarantee by the Employer.
Sample Forms
The final section of the FIDIC Books contains further sample forms of letters and
agreements referred to in the General Conditions:
• The Letter of Tender (including the Appendix to Tender for the Red and Yellow
Books).
• The Contract Agreement.
• The Dispute Adjudication Agreement.
The Appendix to Tender (which is appended and forms part of the Letter of
Tender) is a schedule of essential information that provides a checklist of the sub-
clauses that refer to the Letter of Tender. Most parts of the Appendix to Tender
need to be completed by the Employer before it issues the tender documents.
The Appendix to Tender specifies, for example:
• The Time for Completion of the Works (sub-clauses 1.1.3.3).
• Governing Law and ruling language (sub-clause 1.4).
• Language for communications (sub-clause 1.4).
• Time for access to the Site (sub-clause 2.1).
• Amount of Performance Security (sub-clause 4.2).
• Delay damages to the Works (sub-clauses 8.7 and 14.15(b)).
Tender documents issued by the Employer
In addition to the letter of invitation itself (an example of which is reproduced in
The FIDIC Contracts Guide, published by FIDIC in 2000), the Employer normally
issues the following documents to prospective tenderers:
• Instructions to the tenderer (again, an example of which can be found in
the FIDIC Contracts Guide).
• The Letter of Tender (including the Appendix to Tender for the Red and
Yellow Books), which should be based on the sample form contained in each
Book. This document is to be completed by the tenderer and includes the
signed offer to the Employer to carry out the Works. For a list of all the sub-
clauses that refer to information in the Appendix to Tender, see box, Sub-
clauses of the General Conditions of Contract that refer to information in the
Appendix to Tender.
• Any Schedules referred to in sub-clauses (Red and Yellow Books), which may
include a Bill of Quantities or schedules of rates and/or prices to be completed
by the tenderer. For a list of all these sub-clauses, see box, Sub-clauses of the
General Conditions of Contract that refer to Schedules.
• Conditions of Contract: the FIDIC General Conditions (unchanged) and the
Particular Conditions. For more information on preparing the Particular
Conditions, see note, Points to consider when preparing the Particular
Conditions.
• Specification andDrawings (Red Book) or Employer's Requirements
(Yellow and Silver Books). For a list of all the sub-clauses referring to
information in the Specification or Employer's Requirements, see box, Sub-
clauses of the General Conditions of Contract that refer to information in the
Specification (Red Book) or Employer's Requirements (Yellow Book).
• Site conditions: information and data on hydrological and sub-surface
conditions at the Site in accordance with sub-clause 4.10.
Contract Documents
In accordance with sub-clause 1.1.1.1, the contract comprises the following
documents:
• The Contract Agreement (to be entered into within 28 days of the Contractor
receiving the Letter of Acceptance in accordance with sub-clause 1.6).
• The Letter of Acceptance.
• The Letter of Tender (including the Appendix to Tender for the Red and Yellow
Books).
• The Conditions of Contract.
• The Specification and Drawings (Red Book).
• The Employer's Requirements (Yellow Book).
• The Schedules (Red and Yellow Books).
• The further documents (if any) listed in the Contract Agreement or in the
Letter of Acceptance.
All the information contained in these documents becomes part of the contract, so
it is essential that the parties ensure that the necessary information is provided
accurately at the tender stage.
Points to consider when preparing the Particular Conditions
When drafting the Particular Conditions, the Employer should review not only the
Guidance for the preparation of Particular Conditions but also the Appendix to
Tender (when using the Red and Yellow Books). For example, when considering
any amendment to sub-clause 20.6 (Arbitration), the Employer should bear in
mind that the language for communication defined in the Appendix to Tender will
also determine the language to be used in arbitration: an international contractor
tendering for the Works may not be able to accept this.
The Employer should then review the General Conditions and the FIDIC Contracts
Guide in order to establish whether each provision is applicable for the particular
contract (see, for example, Practice note, FIDIC Red Book (1999)). Project
financial institutions may also have particular requirements which would need to
be reflected in the Particular Conditions. Additional amendments often need to be
made to the General Conditions (and included in the Particular Conditions) to
ensure that the contract and the parties' obligations under the contract comply
with the requirements imposed by the applicable Laws. (Local laws may include,
for example, local health and safety legislation.)

Sub-clauses of the General Conditions of Contract that refer to

information in the Appendix to Tender
1.1.2.2 Definition of 'Employer'
1.1.2.3 Definition of 'Contractor'
1.1.2.4 Definition of 'Engineer'
1.1.3.3 Definition of 'Time for Completion'
Time for Completion of Sections

1.1.3.7 Definition of 'Defects Notification Period'

1.1.5.6 Definition of 'Section'
1.3(a) Systems of electronic transmission
1.3(b) Addresses for communications
1.4 Governing Law
Ruling Language
Language for Communications

2.1 Times for access and possession of Site

4.2 Amount of Performance Security
5.1 Period for notice of errors (Yellow Book)
6.5 Normal working hours
8.7 Delay damages, Works and Sections
13.5(b) Percentage for Provisional Sums
13.8 Table of Cost adjustment data
14.2 Advance payment, currencies, proportions, repayment
provisions
14.3(c) Retention percentage and limit
14.5 Lists for Plant and Materials payments
14.6 Minimum Interim Payment Certificate
14.9 Percentage value of Sections (Yellow Book)
14.15 Currencies of payment
18.1 Submission of insurance information
18.2(d) Maximum insurance deductible
18.3 Minimum limit per occurrence for insurance
20.2 Date for appointment of DAB (Red Book)
Number of DAB members

20.3 DAB appointing authority

Sub-clauses of the General Conditions of Contract that refer to Schedules

1.1.1.1 Contract includes Schedules
1.1.1.6 Defines Schedules (Yellow Book)
1.1.1.7 Defines Schedules, which may include Bill of Quantities (Red
Book)
1.1.1.10 Daywork schedule (Red Book)
1.5 Schedules ranking at the bottom of Contract documents (Red
Book)
1.5 Schedules have priority above Contractor’s Proposals (Yellow
Book)
13.6 Daywork Schedules
14.1 Refers to quantities and price data in Schedules (Yellow Book)
14.4 Schedule of Payments

Sub-clauses of the General Conditions of Contract that refer to

information in the Specification (Red Book) or Employer's Requirements
(Yellow Book)
1.1.6.3 Definition of 'Employer's Equipment'
1.13(a) Permissions obtained by Employer
4.6 Opportunities for work by others
4.18 Values for emissions and discharges
4.19 Details of Employer's Equipment and free-issue materials
5.1 Criteria for designers (Yellow Book)
5.2 Technical documents to be included in Contractor's Documents
and language for Contractor's Documents (Yellow Book)
5.3 Contractor's Documents to be submitted for review and/ or
approval (Yellow Book)
5.4 Other standards for compliance (Yellow Book)
5.5 Training to be provided for Employer's Personnel (Yellow Book)
5.6 Numbers and types of copies of as-built drawings (Yellow
Book)
5.7 Manuals for operation and maintenance (Yellow Book)
6.1 Arrangements for staff and labour
6.6 Facilities for staff and labour
7.8 Payment of royalties
(a) natural material from outside the Site
(b) disposal of demolition, excavation and surplus materials

Reproduced from PLCConstruction with the permission of the publishers. For

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