standardy fidic v Čr mezinárodní smluvní ě · pdf filestandardy fidic v...

29 September 2015

1

Standardy FIDIC v ČR mezinárodní smluvnístandardy v dopravěRound Table DiscussionPrague, Czech Republic

Svend PoulsenProject Director, Atkins

29 September 2015 1

The Use of FIDIC Forms in the Czech Republic –International Contractual Standards in Transport ProjectsRound Table Discussion

Svend PoulsenProject Director, Atkins

29 September 2015 2

29 September 2015

2

Czech Ministry of Transport – Round Table Discussion

Use of the FIDIC Suite of Contracts and the key characteristics

Prerequisites for successful projects

29 September 2015 5Svend Poulsen, Atkins Danmark A/S

The FIDIC Suite of Contracts

29 September 2015 6

FIDIC publishes internationally recognised forms of contract for infrastructure works

Drafted by Consulting Engineers to be used and managed by Engineers

First published in the 1950's

Svend Poulsen, Atkins Danmark A/S

29 September 2015

3

29 September 2015 7

"The Rainbow Suite"


Essential clauses

Detailed definitions

Consistent structure

CLEAR, COHERENT

FAIR, EQUITABLE

THIRD PARTY

COMPLETE, FLEXIBLE

RECOGNISED

Risk allocated to party best placed to control it, bear it, and deal with it

Drafted by consulting engineers who design and manage projects

Range covers most needs

Readily adaptable to fit requirements

29 September 2015 9

Positive FIDIC image

World-wide acceptance


29 September 2015

4

Key FIDIC issues

29 September 2015 10

• 20 clauses in the different CoC

• same structure throughout the different set of conditions

• includes three parties: Employer, Engineer, Contractor.

• all defined terms are written with capital letters to make the interpretation of key words and terms exact

Principles of the FIDIC Conditions of Contract


Intended for building and civil engineering works designed by (or on behalf of) the Employer . The Contract may require the Contractor to supply plant and/or execute some design

Administration by the Engineer (two options):a) the Engineer acts impartially when carrying out certain

actions, which include making pre-arbitral decisions; orb) the Engineer does not act impartially, and pre-arbitral

decisions are made by the Dispute Adjudication Board (DAB) jointly appointed by the Parties.

The Engineer certifies interim and final payments, (Bill of Quantities/Pricing Document)


Conditions of Contract for Construction


29 September 2015

5

Intended for building and civil engineering works designed by (or on behalf of) the Contractor . However, the Employer may have executed some design.

Administration by the Engineer (two options):a) the Engineer acts impartially when carrying out certain

actions, which include making pre-arbitral decisions; orb) the Engineer does not act impartially, and pre-arbitral

decisions are made by the Dispute Adjudication Board (DAB) jointly appointed by the Parties.

The Engineer certifies interim payments and certifies final payment


Conditions of Contract for Plantand Design-Build


Intended for EPC – Engineer, Procure, Construct – Contract, where the responsibility for the design lies solely with the Contractor in accordance with the Employer's RequirementsContactor carries out all engineering, procurement, construction providing a fully-equipped facility, ready for operation at the "turn-of-a-key"Administration by the Employer – unless if he appoints a RepresentativeLump sum Contract Price, interim and final payments as work proceeds, usually against a Schedule of Payments

Contractor takes the majority of risk (if not all)


Conditions of Contract for EPC/Turnkey Projects


29 September 2015

6

In the Contracts Guide for the Rainbow Suite the texts in the Books are reproduced in a three column lay-out

The comments in this Guide are not exhaustive and are only intended to provide general guidance


The FIDIC Contracts Guide, First Edition 2000

The FIDIC DBO Contracts Guide, First Edition 2011


The Participating Banks in the preparation of the MDB Harmonised Editions have mandated this edition in their Standard Bidding Documents for Works

The Harmonised Edition is used by:African Development Bank - Asian Development Bank - Black Sea Trade and Development Bank - Caribbean Development Bank - European Bank for Reconstruction and Development - Inter-American Development Bank -International Bank for Reconstruction and Development -Islamic Bank for Development - Nordic Development Fund

The MDB Edition is discussed and revised by FIDIC and the banks continuously to respond to the market needs


Conditions of Contract for Construction,MDB Harmonised Edition


29 September 2015

7

Intended for plant and for building and engineering works designed, executed and operated by the Contractor . However, the Employer may have executed some design.Administration by the Employer's Representative:

a) the Representative does not act impartially, and pre-arbitral decisions are made by the DAB jointly appointed by the Parties; or

b) the Representative certifies interim payments which may be specified in Schedules of Payments, the Asset Replacement Fund, and certifies final payment based on the lump sum Contract Price for Design-Build and Operation Service Period

An independent and impartial Auditing Body for the purpose to audit and monitor the performance of the Parties


Conditions of Contract for Design Build and Operate Projects, First Edition 2008


Conditions of Subcontract for Construction

The new form is compatible with the 1999 Editions of the Conditions of Contract (Construction, Plant and Design-Build, EPC/Turnkey and Design-Build and Operate)

Includes the latest provision of improvement and continuous development from the Design-Build and Operation form of Contract


29 September 2015

8

� Client - Consultant� Representative� Sub-Consultant� Joint Venture

FIDIC model agreements for professionals services:



Procurement Procedures

"User friendly" guide book including:• Development of Project Strategy

• Procurement Management

• FIDIC Contract types described

• Prequalification

• Tendering Procedure

• Appendices giving more detailed guidance by use of flow charts


29 September 2015

9

FIDIC Contracts - Translations


English - French - Spanish - Portuguese - Arabic -German - Russian - Chinese (Mandarin) - Serbian -Croatian - Polish - Japanese – Czech?


Key FIDIC Bookshop


• Online purchase

• Electronic Editions

• Collections

• Contracts & Agreements

• Business Practice

• Guide to Practice Manual

• Risk Management

• Quality & Integrity Management

• Environment & Sustainability


29 September 2015

10

Key FIDIC issues


• the Engineer acts as an agent of the Employer

• the Engineer shall act fairly when deciding matters under the Contract

• to make the FIDIC CoC work properly it is paramount that the Engineer has a technical insight

• the basis for the FIDIC CoC is that the Engineer has a very important role in administering the Contract

• the Engineer shall make fair decisions

The Role of the Engineer


Key FIDIC issues

• his authority is described in the Contract and he cannot amend the Contract

• the Engineer shall act impartially when carrying out certain actions, which include making determinations in accordance with sub-clause 3.5

• if any party is not satisfied with the Engineer’s determination, that party can raise the Engineer’s determination to a Dispute Adjudication Board (DAB)


The Role of the Engineer


29 September 2015

11

Key FIDIC issues

• FIDIC firmly believes that the way to handle project risk is one of fair risk sharing

• FIDIC finds this approach will lead to better and more successful projects

• allocating the risk to the Party that is best placed to control it and deal with it, will result in more efficient and effective risk handling

Reasonable Risk Sharing


Key FIDIC issues


Design – Bid - Build

Owner Retains risk

Contractor Assumes risk

Design - Build EPC/Turnkey

Risk Transfer

Risk Allocation


29 September 2015

12

Sharing the Project Risk


Employer's Risk

Contractor's Risk

Employer Specified Project

Employer 's Requirements for Plant, Design – Build

EPC/Turnkey

Employer's Control

Contractor's Control


Key FIDIC issues

The Contractor has design obligations under

• the Plant and Design-Build CoC (The Yellow Book),

• the EPC Turnkey CoC (The Silver Book), and

• the Design, Build and Operate CoC (The Gold Book)

The Contractor obligation is to carry out the design in a way that ensures that the Works are fit for the purposes for which the Works are intended (see for instance P&DB scl. 4.1)

Design obligations of the Contractor


29 September 2015

13

Key FIDIC issues

The Contractor's design obligations gives the Employer an very important obligation to describe the purpose of the Works in a very unambiguous and exact fashion

This is accomplished in the

Employer’s Specifications or

Employer’s Requirements

depending on which form of contract is used

Design obligations of the Contractor


Key FIDIC issues

the Employer delivers the design and the Contractor is to execute the design

the Employer has transferred his vision and ideas for a Project to a set of drawings and specifications

the obligation of the Contractor is to execute the Works according to the Employer's design

the Contractor may have to do some minor design work

specifications and drawings must be precise and ensure that the Contractor firstly can price the Works and secondly can execute the Works

Employer's Specifications – using the FIDIC CoC for Construction (The Red Book)


29 September 2015

14

Key FIDIC issues

Employer’s Requirements is the engineering documents and crucial to the success or failure of the Project

Writing Employer’s Requirements will often include the use of consulting engineers, architects and other advisors

It is essential that the Employer’s Requirements are written with clear references to the Conditions of Contract so that it is clear how the Contractor is required to fulfil his obligations

Employer's Requirements – using the Plant, Design-Build CoC, EPC/Turnkey CoC or Design-Build & Operate CoC


Key FIDIC issues

The Employer’s Requirements must specify

• extent, purpose, scope, and/or

• design and/or

• other technical criteria for the Works

• but also give the Contractors as much freedom to design and plan the Works as possible

Employer's Requirements – using the Plant, Design-Build CoC, EPC/Turnkey CoC or Design-Build & Operate CoC


29 September 2015

15

Key FIDIC issues

Design work will be complicated and extensive

The Employer must define what documents the Contractor shall prepare and describe when and how the Engineer's review will be performed

The Employer’s Requirements must include all matters expressly referred to in the Conditions of Contract,

but must not be in conflict or inconsistent as between disciplines, either directly or indirectly

Employer's Requirements – using the Plant, Design-Build CoC , EPC/Turnkey CoC or Design-Build & Operate CoC



This is where the seed for success is laid

Employer's Requirements


29 September 2015

16

Key FIDIC issues

Requirements on quality and performance criteria shall not conflict with the Contractor’s fundamental obligation to provide the Works as “fit for purpose”

The Employer’s Requirements must be complete, but must not inhibit the Contractor’s freedom to innovate, nor compromise his liability for design

The Employer’s Requirements must be sufficiently detailed to define the purpose of the Project but must not limit the Contractor’s ingenuity in finding the best solution and doing the design

The Employer’s Requirements must not contain unrealistic expectations

Employer's Requirements – key thoughts


FIDIC supports good project cooperationA fine basis for the projects to become successful

Trust the other Party

29 September 2015

17

Growing a good Project Spirit

The easy way to Success

29 September 2015 Svend Poulsen, Atkins Danmark A/S 64Svend Poulsen, Atkins Danmark A/S

World Trade Center 2 - Geneva Airport - PO Box 311 - CH-1215 Geneva 15Switzerland - Tel: +41 22 799 49 00/Fax:+41 22 799 49 01 - [email protected] September 2015 Svend Poulsen, Atkins Danmark A/S 65

29 September 2015

18

Thank you

If you’d like to find out more about Atkins visit:www.atkinsglobal.com

© Atkins Limited except where stated otherwise.

The Atkins logo, ‘Carbon Critical Design’ and the strapline ‘Plan Design Enable’ are trademarks of Atkins Limited.29 September 2015 66

Plan Design Enable