FIDIC Home  Site search  Site map  Contact FIDIC
 New  News  Directories  Calendars  Products  Account   Basket
BOOKSHOP EVENTS USER FORUMS INTERNAL YPs REGIONS FEDERATION  
 Welcome   Contracts   Practice   Capacity Building   Industry
 
FIDIC's Contracts Committee Activities Update
Christopher Wade - Chairman Contracts Committee
FIDIC Annual 2004 Conference
Copenhagen 16 September 2004
 
1. Origin and Role
 
As you are all aware, FIDIC carries out its work through a number of committees, task forces and forums. One of the longest established committees, and one of the most important, is the Contracts Committee. Its principle task is to produce documents which will assist Consulting Engineers to implement projects fairly and efficiently and to achieve completion of projects on time and to budget.

I say it is one of the longest established committees, if not the longest, because its first production, the Red Book first came out in 1957, and was followed by the Yellow Book in 1963. I say that it is one of the most important committees because more than one half of FIDIC's total income comes from the sale of its publications. Without the sale of its documents, FIDIC would most likely have collapsed financially years ago, and without its publications FIDIC would certainly be very much less known within the industry and the world at large.

The CC principal work is - as said - to produce and keep updated useful documents for the use of Consulting Engineers and the construction industry as a whole on the international playing field. To the outside world, FIDIC is best known as being the body that produces standard forms of contract for the construction industry. In fact references such as "We are using FIDIC " means that the FIDIC standard Conditions of Contract for Construction, or other FIDIC standard form, is being used for the construction project in question. FIDIC actually produces a number of standard forms and guidelines for various types of construction contracts for use both between Employers and Contractors and between Consulting Engineers and their Clients. It also has standard forms for joint venture and subcontract agreements between Consulting Engineering firms and subcontracts between contracting companies. It also produces Guides to many of these standard forms.

Historically, the first major production was to assist Consulting Engineers from Europe when they were leading the development of many countries abroad during the period after the Second World War. A standard form was needed as a good-practice guideline for the conduct and management of the many construction projects then being undertaken internationally. Based on the British standard form of construction contract used domestically in UK, FIDIC adapted it for the complications caused by the parties coming from different countries and working in an international environment. Thus the famous Red Book for Civil Engineering Construction was born in 1957, rapidly followed by the Yellow Book for Electrical and Mechanical Plant including Erection on Site in 1963. Updates of these 2 Books were prepared roughly every 10 years, so the last editions were published in 1987 - the 4" Edition of the Red Book and the 3rd Edition of the Yellow Book.

During these years several other standard forms were produced, e.g. the standard forms of Agreement between a Consultant and his Client, which has developed into to-day's White Book, last updated in 1998. The Contracts Committee has had the task of following the use of these publications in practice, and updating them when appropriate. Thus, following the development of design-build type projects, CC produced in 1995 the Orange Book to cope with just this particular type of project. You may note that because of the colloquial use of the colour of their covers, the Books have become known as the FIDIC Rainbow.

 
2. Preparation of Standard Documents
 
The CC carries out its work by allocating a particular task to a group of 4 or 5 volunteers called a Task Group. The preparation of a new standard form of contract is a major undertaking. It is not like writing a narrative. Apart from the necessary research, the drafting requires great competence and long engineering experience,, linguistic ability and skill in the formation of the clauses and wording. Each sentence as to be engineeringly correct and concise, but also has to be legally correct. It has to stand up to scrutiny and analysis by engineers, lawyers and claims experts, and often large amounts of money may depend upon the interpretation of a particular word or phrase. It is also different from normal authorship in that it is not the work of one man, it is the work of a whole group who will have reviewed, discussed and agreed upon the contents and precise wording of each phrase. Clearly, for the sake of consistency, there should be one principle author wherever possible, but that author has to also be receptive to the majority viewpoint of the group.

It is also FIDIC's policy to go out with documents that are in an advanced state of preparation to a large number of 'friendly reviewers' who are asked to comment on the content of the document. This process invariably results in a great many comments which are then considered by the Task Group. Some of the comments will be useful and of such substance that they should be included in a standard work intended to cover most contracts of the type in question. However, many of the comments are the result of the reviewer's own personal experience in perhaps a rather limited field, and are therefore not suitable for inclusion in general conditions. Reviewers are sometimes irritated that their particular 'hobby-horse' has not been included, but that is not because it has not been considered, but is because the Task Group as a whole has judged it not suitable or not applicable to the majority of projects. Invariably, however, as a result of the reviewers' comments, modifications and adjustments will be necessary before the final draft is presented to the Executive Committee for approval.

FIDIC as an international organisation is very keen to involve persons from all nations. However, whereas there is generally no lack of persons around the world being prepared to act as 'friendly reviewers', as the ruling language of most of FIDIC's productions is English, it is in nearly all cases imperative that those on Task groups preparing standard forms are native English speakers. The work of detailed drafting can therefore be long, painstaking and sometimes exasperating. As all CC and Task Group members give their services voluntarily (meaning that other paid work must take precedence), and as there is a severe lack of suitable persons willing to serve on the necessary Task Groups, production of new documents tends to take a long time.

 
3. Tasks and Activities
 
CC's initial task is to identify the need for certain standard documents or to update existing forms. As the CC members are actively engaged in projects and in seminars etc world wide, it is no difficulty to identify desirable projects. However, development and production of a new publication requires much effort and considerable cost, even if those involved are unpaid, and FIDIC's financial and human resources are strictly limited. Therefore the decision to go ahead with a new project has to be considered very carefully. The CC will prepare the terms of reference and a budget, and the decision will be taken by the Executive Committee after the recommendation of the CC. If it is decided to go ahead, CC will try to find suitable persons to constitute the Task Group who will be asked to do the actual work.

As you will see during this seminar, projects for the development of new or updated standard forms, although extremely important and a necessity for the continued existence of the FIDIC organisation, are only part of the work of the CC. Another almost as important activity is the dissemination of knowledge about the FIDIC Books, and of course the follow-up of their use. Thus members of CC are in constant demand to lecture and participate in conferences, seminars, workshops and training courses where the FIDIC publications, and their use. their provisions for the construction industry, and their interpretation are the subject of discussion and study. There is an ever-increasing demand for teaching and training in the utilisation of the Books for all sorts of construction projects, and in many parts of the world. As the FIDIC documents are recognised world-wide as the leading forms of contract conditions, and as the World Bank and other IFI's mandate their use on projects which they finance, many developing countries are required to expand their knowledge and learn about the use of the FIDIC forms. Many examples can be cited where the need is great - for example.. China and the former Soviet countries now receiving financing from EU and others under e.g. the Phare and Tacis programmes. It is not only in the developing countries where the interest is increasing. Members of CC have, for example, just this year been engaged in training seminars for state organisations, contracting companies, consultant organisations and others in US, Norway, Denmark, Iran, China and Malaysia, to name a few.

 
4. Composition and Task Groups
 
The present composition of the Contracts Committee is just two members very actively supported by several advisers: Christopher Wade (Sweden and UK) is the Chairman, with Philip Jenkinson (UK) as the other Member; John Bowcock and Michael Mortimer-Hawkins (both UK and Past Chairmen) are Special Advisers, and Christopher Seppala (France) is Legal Adviser. Axel Jaeger (Germany) is the responsible Executive Committee member, and Daniel Ivarsson (FIDIC Managing Director) has actively participated in the CC meetings. It is hoped to appoint a third Member shortly.

As mentioned, CC's job is basically to establish Task Groups and to guide them and review their work. However another important duty is to ensure that there is suitable liaison and exchange of viewpoints with other bodies who have an interest in FIDIC's publications, particularly contractor organisations, such as EIC, and employer and financier organisations, such as the World Bank and EBRD. CC's Terms of Reference also mention the handling of queries on the interpretation of the Books, and further to liaise closely with the FIDIC Assessment Panel for Adjudicators.

At the moment CC has 4 or 5 Task Groups. TG 1 under the leadership of Michael MortimerHawkins has started the preparation of a standard form for Design-Build and Operate contracts. It is being based on the FIDIC 1999 Yellow Book, which will be augmented to include the operation phase. (More of this later). TG 2 under the leadership of Philip Jenkinson and myself, and with main drafter John Shaw, is engaged in producing an updated and enlarged version of FIDIC's "blue Book" Tendering Procedures, to be called Project Procurement Procedures. It will cover the various new methods of procuring projects as well as the traditional, and will include a lot of information concerning procurement, such as `procurement strategy'. (More of this later).

Task Group 3 is intended to collect a suitable selection of training and instruction material to enable those conducting training courses in the FIDIC Books to work efficiently and without spending too much time in the preparation of material for each new course. The next Task Group is really not a fully-fledged task group as such, but under the leadership of John Bowcock, is engaged in coordinating the consultancy form for Joint Venture and for Subconsultancy with the latest edition of the White Book, the Client Consultant Agreement form. Task Group 4, which is now under consideration, is preparing to produce a standard form(s) of Subcontract for use with the 3 major Contract forms. (More of this later).

5. The Major Books
It is not FIDIC's custom to produce new updates of its Standard Forms at close time intervals - as is the case within the computer industry. FIDIC believes that the content of its Books should remain unchanged for as long as reasonable so that the industry may learn and know what the various clauses entail, and so that users do not have to start from scratch when every new project using FIDIC arises. However, CC realises that updates and improvements are necessary from time to time, and when the time arises updates are prepared.

The 1999 suite of Books - the New Red and Yellow Books.. and the Silver Book, as well as the Green Book, which has now virtually universally overtaken the previous Red. Yellow and Orange Books, was prepared by a Task Group who were about 1994 given the initial task of `updating the (old) Red and Yellow Books'. As you will know, not only did the TG update the existing Books, but also enlarged the compass of the Books to cover EPC/Turnkey type projects - where it is imperative that the final price and time is as certain as can humanly be possible at the time of signature - the Silver Book, and also to cover projects involving relatively simple and/or repetitive works, the Green Book. Whereas the Green book was prepared by a separate TG, the 3 major Books were prepared together to tie in with one another as far as possible. The chief drafter of this suite was Peter Booen, who had prepared the Orange Book (1995), who did a tremendous job as everyone realises, and who later followed up that work with the preparation of the most impressive Guide to the suite. CC has severely felt the sad loss of Peter Booen, the man who for many years carried out the bulk of CC's drafting work, and whom it has found impossible to replace.

Since the introduction of the new suite in late 1999, early 2000, an increasing amount of feedback has begun to be received as the use of the Books has gained speed. The general reception of the Books has been overwhelmingly positive, although there was early disgruntlement from contractors in regard to the balance of risk of the Silver Book. However, with increasing understanding of the reasons for the Silver Book - which FIDIC, if given the choice, would normally not recommend - contractors have more and more come to appreciate the Silver Book, and to realise that in many cases its provisions are much more satisfactory that the provisions often forced upon them by the home-made conditions of many employers that they are required to accept.

With regard to the Green Book, this is proving extremely popular and useful for many smaller construction projects, for example the construction of roads, water supply and drainage networks, transmission lines, simpler buildings, etc., particularly in developing countries and former Soviet countries. The Contract is only 10 pages long, it is in the simplest English, making translation easy, and it is flexible for all types of construction work. It has been adopted in its entirety in the World Bank's Standard Bidding Documents for Simple Works. The Green Book has also been adopted, with some slight modifications, for the FIDIC new 'Brown Book'- the Dredging Form - prepared together with the International Association of Dredging Contractors. Their work is often of large financial value, but the basic work is relatively simple and repetitive.

With regards to feedback from experience with the new 1999 Books, a number of minor improvements have been identified. CC has been collecting these few items with the intention of improving the wording when the time comes to prepare an update - or 2nd edition of the Book(s). At the same time a new development has occurred. The World Bank together with the other Multilateral Development Banks (some 15-20 in number) have been considering the production of a single standard book dealing with the whole procurement policy for all construction projects for which each of them is providing financing. After study of available standard forms throughout the world, and the difficulties of producing a new form of their own, the WB has approached FIDIC to discuss the possibility of using, in the first case, the FIDIC 1999 Red Book, as the basis for their `harmonised' procurement standard book. Consultations were commenced with FIDIC towards the end of 2003, which resulted in detailed discussions during the spring of 2004. Clearly the WB had a number of adjustments they wished to see in the harmonised documents, most of which were of minor importance. FIDIC have been insistent that the risk allocation and other essential matters of the Conditions should not be affected. The outcome is that FIDIC has reached agreement with WB on necessary adjustments, and at the same time CC has the chance to include those improvements that it wishes to make to the existing text. (More of this later).

 
6. Call for Contributors
 
As you will have understood from the foregoing, the CC has a considerable burden to bear. Not only is it engaged in an unpaid voluntary capacity in `keeping up with the times', and arranging for and guiding the various Task Groups (most of which include a member of the CC), preparing lectures and for seminars, workshops and course, including most considerable travelling, liaising with WB and other employer and contractor organisations, etc., and with the update of existing and the production of new standard documents, but the members have first and foremost to earn their own livings and have time over for a private life. As mentioned, although there would seem to be many who are prepared to act as reviewers of nearly-ready documents, the basic activities of CC in regard to development of new documents are severely limited by the lack of suitable persons willing to serve on the necessary Task Groups. CC would be grateful for offers from suitably experienced and qualified FIDIC members prepared for duty of a fairly long duration to work on the various present and foreseen document preparation Task Groups.
 
Christopher Wade
Chairman Contracts Committee

International Federation of Consulting Engineers
FIDIC Bookshop- Box 311 - CH-1215 Geneva 15 - Switzerland
Tl +41-22-799 49 00 - Fx +41-22-799 49 01 - fidic.pub@fidic.org - FIDIC Bookshop