Clause 8 contains all the fundamental provisions relating to the start of the Works, the Time for Completion, delays and the entitlement of the Contractor to an extension of time and of the Employer to delay damages, and finally the circumstances in which a suspension of the Works can occur and the implications for the Parties.
The main changes to Clause 8 are: The enhanced Programme
In London last week, FIDIC launched its Second Editions of the Red, Yellow and Silver Books. They are big, weighing in at almost a kilo each. The general conditions cover 106 pages with more than 50,000 words, over 50% longer than the 1999 forms. Many improvements have been made, addressing issues that have emerged since 1999. Fans of Dispute Boards will be pleased to see that all three books now have standing boards with more emphasis on dispute avoidance; and that appointment of DB members and enforcement of their decisions have been made easier. Disputes and Arbitration are now dealt with in a separate chapter 21. Here are the most interesting changes to the Yellow Book.
Clause 19 deals with two distinct events: (1) Force Majeure; and (2) release from performance under the law. Force Majeure is often narrowly defined under the laws of many countries; however, within the FIDIC 1999 forms of contract it has a much broader meaning. The terminology used by FIDIC has therefore sometimes been criticized as being misleading.
Click through to read Corbett & Co.'s helpful commentary on FIDIC 1999 book Clause 15
Clause 5 defines a ‘nominated Subcontractor’ as either a Subcontractor who is stated in the Contract as being ‘nominated’; or who the Engineer instructs the Contractor to employ as a Subcontractor under clause 13. The Contractor may object to employing a nominated Subcontractor. A number of grounds are deemed to be reasonable for objecting and these include: where there are reasons to believe that the Subcontractor does not have sufficient resources, competence or financial strength to complete the subcontracted works; where the Subcontractor refuses to agree to indemnify the Contractor for any negligence; or where the Subcontractor does not agree to carry out the works so as not to put the Contractor in breach of its own obligations. If the Employer requires that the Contractor employ a nominated Subcontractor where a reasonable objection has been made then it must agree to indemnify the Contractor. The Contractor is required to pay to the nominated Subcontractor the amounts which the Engineer certifies to be due in accordance with the Subcontract. This sum is then added to the Contract Price as well as any amount for overheads and profit as stated in the appropriate schedule or Appendix to Tender. However, before issuing a Payment Certificate to the Contractor the Engineer may ask for evidence that previous payments have been made to the nominated Subcontractor. If evidence is not provided by the Contractor or the Contractor does not satisfy the Engineer that there are grounds for withholding payment then the Employer may at his discretion pay the nominated Subcontractor directly.
