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Simmons and Simmons, UK, newsletter
October 2006
 
The FIDIC Rainbow suite of contracts for International Engineering Works was published in 1999. A number of the Multilateral Development banks (MDBs) have now resolved to harmonise their tender documents on an international basis. In May 2005, they produced a special edition of the 1999 Red Book (Employer's Design) with an amended version being released in March 2006. The contract is available as a free download on the FIDIC web site, where copyright conditions are explained. Some of the principal changes to the Red Book are listed below. First, those which tend to favour the Employer:
  • Clause 1.15 - the Bank is entitled to inspect the Contractor's accounts and records relating to the performance of the Contract;
  • Clause 3.4 - The Contractor can object to (not veto) a replacement Engineer he considers to be unsuitable;
  • Clause 4.2 - limitations on conditions for calling bonds are reduced;
  • Clause 12.3 - new rates will only become appropriate if there is a change in quantities in excess of 25 per cent; and
  • Clause 19.4 - force majeure can only be relied on by the Contractor if affecting his substantial obligations.

Some amendments which are generally more favourable to the Contractor are as follows:

  • Clause 2.4 - The Employer must notify the Contractor and give evidence of alternative funding if available if the Bank suspends payment;
  • Clause 7.7 - materials become the property of the Employer on incorporation rather than delivery to site;
  • Clause 14.7 - the Employer must pay the amount shown on the Contractor's application if the Bank suspends the loan;
  • Clause 16.1 - the Contractor can suspend work if the Bank suspends payment and there are no alternative funds; and
  • Clause 16.2 - the Contractor may terminate if the Employer's failure to perform affects the economic balance of the contract or his ability to perform.

It is not clear whether these amendments will eventually be subsumed into a new edition of the Red Book and in some cases (for example the provisions on payment following the Bank's suspension) the ultimate beneficiary is likely to be the Bank itself. However, whilst there is some scope for flexibility referred to in the notes as to Particular Conditions, it is likely that in the future all MDB-funded contracts will contain substantially or entirely the revised conditions now introduced and parties will need to price accordingly for the revised distribution of risk.


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