2-Day FIDIC Workshop ME - Case Studies PDF
2-Day FIDIC Workshop ME - Case Studies PDF
2-Day FIDIC Workshop ME - Case Studies PDF
CASE STUDIES
Case Study 1............................................................................................................. 3
Case Study 2............................................................................................................. 7
Case Study 3........................................................................................................... 10
Case Study 4........................................................................................................... 12
Case Study 5........................................................................................................... 14
Case Study 6........................................................................................................... 16
Case Study 7........................................................................................................... 18
Case Study 8........................................................................................................... 22
Case Study 9........................................................................................................... 24
Case Study 10......................................................................................................... 28
Case Study 11......................................................................................................... 31
Case Study 12......................................................................................................... 33
Case Study 13......................................................................................................... 35
Case Study 14......................................................................................................... 36
Case Study 15......................................................................................................... 38
Case Study 16......................................................................................................... 41
Case Study 17......................................................................................................... 45
Case Study 18......................................................................................................... 48
Case Study 18......................................................................................................... 51
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CASE STUDY 1
The parties enter into the Red Book Construction Contract. This contract provides, in
Sub-clause 4.2 [Performance Security], for performance security and states that:
“The Contractor shall deliver the Performance Security to the Employer within
28 days after receiving the Letter of Acceptance and shall send a copy to the
Engineer.”
The Engineer is very sympathetic. He has worked with the Contractor in the past and knows
that he is good for the guarantee. He also happens to have experienced his own delays with
the bank in issue and is therefore understanding of the Contractor's predicament.
Can the Engineer agree to extend the period for the production of the guarantee?
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The Contractor shall then leave the Site and deliver any
required Goods, all Contractor’s Documents, and other design
documents made by or for him, to the Engineer. However, the
Contractor shall use his best efforts to comply immediately with
any reasonable instructions included in the notice (i) for the
assignment of any subcontract, and (ii) for the protection of life
or property or for the safety of the Works.
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CASE STUDY 2
The Works are let under the Construction Contract. The construction period is 16 months.
Halfway through the completion period, the Contractor hears rumours that some of the
Employer's financing has fallen through. He also speaks to another Contractor who is owed a
lot of money by the same Employer and is about to go to court to try to get an order against
the Employer. The Contractor is concerned about this and therefore serves a notice on the
Employer requesting reasonable evidence that financial arrangements have been made and
are being maintained.
“The Employer has approached some six banks to apply for additional financing
for the project. Three of these six have not yet responded but three have. He
presents to the Contractor letters from three of these banks, all of which indicate
that the project appears to be a sound one which the banks are keen to become
involved in. All three of these letters indicate that the banks are in the process of
considering the application. One of the banks has promised to finance the
project for a bridging period of two months while the application for additional
finance is being considered.”
The Contractor does not want to spend more money in executing the Works until he has more
certainty that he will be paid and he therefore gives notice and then suspends work.
The Employer argues that the Contractor is not entitled to suspend the work, that his failure
to complete constitutes a breach and that the Employer is entitled to all the usual remedies for
breach of contract.
The Contractor, on the other hand, argues that he is fully entitled to suspend the Works and
indicates that he intends claiming an extension of time as well as additional moneys for the
period of suspension.
Note: In addressing this case study assume that all the required notices are served.
Refer to Sub-clause 16.1 [Contractor’s Entitlement to Suspend Work] which
provides as follows:
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(b) payment of any such Cost plus reasonable profit, which shall be
to the Contract Price.
After receiving this notice, the Engineer shall proceed in accordance with
Sub-Clause 3.5 [Determinations] to agree or determine these matters.”
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CASE STUDY 3
Employer, E, and Contractor, C, enter into a FIDIC contract for the construction of an office
park. Twelve months later they contract, separately, for the construction of a shopping centre
to sit alongside the office park.
The office park contract does not run as smoothly as would be hoped and E has claims valued
at some USD100 000 against C for defects in these Works.
At this stage the office park is almost complete and E has paid almost all of the money owing
under the contract. E therefore serves notice, under Sub-clause 2.5 of the shopping centre
contract, that he intends setting off the USD100 000 owing on the office park against moneys
owing in terms of the shopping centre contract.
If E fails to serve the notice called for by Sub-clause 2.5, will he be barred from claiming
altogether?
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CASE STUDY 4
A public sector organisation has a number of projects under the Red Book for construction.
The organisation wishes to keep control over the budget and is concerned about variations
which may increase the contract price. The organisation therefore decides to limit Mr Z's
authority to issue variations.
This information is included also in the Particular Conditions of the Construction Contract.
During the course of the project Mr Z issues a number of variations. All are valued at less
than USD50 000. All are included in subsequent payment certificates and paid by the
Employer.
About seven months into the project Mr Z issues a variation valued at USD150 000.
C does the work covered by the variation. In his next payment certificate he claims the value
of the work done, including the USD150 000 for the varied work.
The Employer refuses to pay for the variation, arguing that Mr Z lacked authority to issue the
variation.
Nothing at all?
Why?
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CASE STUDY 5
Consider the FIDIC Example Form of Performance Security - Surety Bond below.
Answer the five questions posed above with respect to this form of performance
security.
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CASE STUDY 6
M delivers the blocks to C together with an invoice which reflects the agreed amount of
USD500 000 for the blocks. On the front of the invoice the following words appear:
“M retains ownership of all goods delivered until the goods are fully paid for.”
C takes delivery of the blocks and paves the parking lot with them.
The cost of the paving blocks and of the actual laying of the blocks (by C) is included in the
next Interim payment Certificate and is paid by E.
Two months later C goes insolvent. He has not, at this stage, paid for the blocks.
On hearing of C’s insolvency, M goes to the site and lifts all the blocks, loads them onto
trucks and takes them to his warehouse.
Note: Ignore issues such as trespass and theft. We are only concerned with the legal
issue of ownership.
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CASE STUDY 7
Employer, E, and Contractor, C, enter into the FIDIC “Yellow Book” for the completion of
certain Works.
The Works achieve taking-over and C hands over possession of the Works to E. C now
makes only occasional visits to the site in order to finish off outstanding work.
After taking over is achieved the Engineer brings another Contractor onto the site in order to
complete certain defective work. C only becomes aware that the other Contractor has
remedied the defective work when he comes onto site next and sees that the work has been
done.
The cost of doing so is USD100 000. The Engineer deducts this USD100 000 from the next
payment certificate due to C.
C is furious, particularly because the Engineer had not even pointed out the defect when he
did his taking-over inspection. There was no mention of the defective work on the taking-
over certificate and it had never been mentioned to him by the Engineer. He argues as
follows:
The Engineer should have advised him that the work was defective. Because the
Engineer failed to do so C has no further obligations in this regard; and
Anyway, the cost of USD100 000 is way too high for the work done.
Note: In coming to your answer assume that the work was indeed defective. Consider
the following provisions:
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(a) the Design of the Works, other than a part of the Design
for which the Employer is responsible (if any),
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CASE STUDY 8
Able Construction entered into a FIDIC Green Book contract to construct a 15Ml reservoir.
The specification prepared and issued by the Employer called for the interior walls of the
reservoir to be waterproofed with “Bitu-Flow Waterproofing Membrane” which was to be
applied in strict accordance with manufacturer’s recommendations.
Able Construction contacted Bitu-Flow prior to commencing with the waterproofing and
arranged for them to inspect and approve the quality of the workmanship on a regular basis,
which Bitu-Flow duly did.
Prior to the expiry of the period for the notifying of defects, damp patches were observed on
the exterior walls of the reservoir which indicated that the waterproofing membrane had
failed. On further investigation it was established that, in terms of Bitu-Flow’s Data Sheet,
the waterproofing system specified is not recommended for use on reservoirs.
The Employer subsequently instructed the Contractor to remove the defective waterproofing
and replace it with an alternative product which the Contractor refused to do on the basis that
he was not responsible for the design.
The Employer appointed IP Knightly & Sons at a total cost of USD325 000 to undertake the
work and duly deducted this amount from Able Construction’s final payment certificate.
Able Construction objected to the Employer’s actions and demonstrated that, if they had
undertaken the work themselves, it would have only cost USD175 000.
Was the Employer entitled to recover the total cost of USD325 000 from
Able Construction and, if not, how much should he have deducted from
Able Construction’s final payment certificate?
Note: In addressing this case study please refer to Sub-clause 9.1 [Remedying Defects]
which states:
“The Employer may at any time prior to the expiry of the period stated in
the Appendix, notify the Contractor of any defects or outstanding work.
The Contractor shall remedy at no cost to the Employer any defects due to
the Contractor’s design, Materials, Plant or workmanship not being in
accordance with the Contract.
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CASE STUDY 9
The Works are for the construction of an office building. The time for completion under the
Red Book is 600 days, approximately 20 months. Work proceeds for some months without
dispute.
In Month 15 the Contractor submits his monthly payment statement but the agent refuses to
certify the full value of the Contractor’s claim because some of the work is, according to the
Engineer, defective. The same thing happens in Months 16 and 17.
These three certificates are discussed at site meetings. The Contractor argues strenuously that
there are no defects in the Works. It is agreed that work will continue while the issues are
being resolved.
At the end of Month 19 the Engineer advises C that the Employer has entered into lease
agreements with tenants who will be moving in at the middle of Month 21. The Contractor’s
response to this is to say:
“Well, I hope we have resolved the issues around Certificates 15, 16 and 17 by
then.”
At the end of Month 20 the Engineer sends the Contractor a letter saying:
“I hereby inform you that Taking-Over has been achieved. Attached is your
Taking-Over Certificate. Please complete all outstanding work required for
completion in accordance with the contract as soon as possible. As discussed,
tenants will be moving into the office block in two weeks’ time.”
The Contractor does an analysis of his financial situation. The amount specified for penalties
is relatively small, especially in relation to the amount outstanding in terms of Certificates 15,
16 and 17. The Contractor is worried that if he hands over possession he will struggle to get
payment on these certificates. He therefore writes to the Engineer as follows:
The Engineer responds by saying that it is not up to the Contractor to accept or reject the
Taking-Over certificate and that, anyway, the Employer is entitled to take possession.
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Sub-clause 10.1 [Taking Over of the Works and Sections] which states:
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The Employer shall not use any part of the Works (other than as
a temporary measure which is either specified in the Contract
or agreed by both Parties) unless and until the Engineer has
issued a Taking-Over Certificate for this part. However, if the
Employer does use any part of the Works before the
Taking-Over Certificate is issued:
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CASE STUDY 10
The Works have passed the tests on completion and are, in the opinion of the Contractor,
substantially complete. The Contractor sends a notice to the Employer on 2 May, requesting
a Taking-Over Certificate.
On 3 May the Employer comes to the site with his Engineer. They glance around the site and
the Engineer says:
“These Works are obviously not complete. There are numerous major flaws
here. You are wasting my time and I reject your application categorically.”
Note: In addressing this case study refer to Sub-clause 10.1 [Taking Over of the Works
and Sections] which states:
“Except ... the Works shall be taken over by the Employer when (i) the
Works have been completed in accordance with the Contract, including
the matters described in Sub-Clause 8.2 [Time for Completion] and except
as allowed in sub-paragraph (a) below, and (ii) a Taking-Over Certificate
for the Works has been issued, or is deemed to have been issued in
accordance with this Sub-Clause.
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(b) reject the application, giving reasons and specifying the work
required to be done by the Contractor to enable the
Taking-Over Certificate to be issued. The Contractor shall then
complete the work before issuing a further notice under this
Sub-Clause.
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CASE STUDY 11
On the facts given above assume, for the purposes of this case study, that taking over was
deemed to have occurred on 31 May, as the Contractor argued. The Contractor now wishes
to have the performance guarantee reduced. He pulls out his Form of Security, which is the
FIDIC recommended Demand Guarantee Form found at the back of the Contract Document.
This agreement (entered into between the Employer and a recognised banking institution)
provides as follows:
The Contractor goes to the bank and asks to be released from a percentage (in this case 50%)
of the guarantee.
The bank says that it can do no such thing unless and until it receives an authenticated copy
of the Taking-Over Certificate.
The Engineer is unco-operative, arguing that there is no obligation upon him to issue a
certificate where taking over is deemed to have taken place.
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CASE STUDY 12
The Contractor, in the previous case study, is now somewhat desperate and wishes to recover
his retention. He approaches the Engineer and requests that he certify the first half of the
retention for repayment.
The Engineer says that he is unable to certify any part of the retention as there is no
Taking-Over Certificate. He refers the Contractor to Sub-clause 14.9 [Payment of Retention
Money].
Is the agent obliged to certify the first half of the retention for repayment?
Note: In addressing this case study assume that the Construction Contract (which allows
for retention) applies. Sub-clause 14.9 [Payment of Retention Money] states:
“When the Taking-Over Certificate has been issued for the Works, the
first half of the Retention Money shall be certified by the Engineer for
payment to the Contractor. If a Taking-Over Certificate is issued for a
Section or part of the Works, a proportion of the Retention Money shall be
certified and paid. This proportion shall be two-fifths (40%) of the
proportion calculated by dividing the estimated contract value of the
Section or part, by the estimated final Contract Price.
Promptly after the latest of the expiry dates of the Defects Notification
Periods, the outstanding balance of the Retention Money shall be certified
by the Engineer for payment to the Contractor. If a Taking-Over
Certificate was issued for a Section, the relevant percentage of the second
half of the Retention Money shall be certified and paid promptly after the
expiry of the Defects Notification Period for the Section. This proportion
shall be two-fifths (40%) of the proportion calculated by dividing the
estimated contract value of the Section by the estimated final Contract
Price.
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CASE STUDY 13
On 1 April the Employer’s labour force goes on strike which results in the Contractor being
denied access to the site. The strike ends on 10 April at which time the Contractor is once
again given access to the Works.
On 5 April the Contractor notifies the Engineer, in terms of Sub-clause 20.1 [Contractor’s
Claims], of the delay and advises him that he will be submitting a claim for an extension of
Time for Completion. On 7 July the Contractor submits its fully detailed claim to the
Engineer for an extension of time of 9 days.
The Engineer subsequently rejects the claim on the basis that the Contractor failed to submit
its fully detailed claim within 42 days of the Contractor becoming aware of the event or
circumstance.
Would your answer be different if the Contractor had submitted its notification of the
delay together with the claim itself on 1 May?
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CASE STUDY 14
The Works are the construction of a 20km road with two bridges.
Halfway through the construction period, the Engineer issues an instruction increasing the
extent of the road by 10km and adds an additional bridge.
The Contractor says that he lacks the resources to fulfil and cannot be expected to do so.
Note: In addressing this case study, please refer to the following clauses:
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Sub-clause 1.1.5.2:
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CASE STUDY 15
The parties enter into a FIDIC Yellow Book contract. During the course of the contract the
Engineer, in terms of Sub-clause 13.1 [Right to Vary], has prepared his own estimate of the
value of this variation order and has determined it to be approximately USD100 000. In
terms of Sub-clause 13.3 [Variation Procedure] the Engineer requests a proposal from the
Contractor prior to confirming the instruction relating to the variation.
Two weeks after this request the Contractor submits a price for the variation of USD200 000.
The Engineer believes the cost is excessive and the Contractor has elsewhere stipulated
reasonable profit as being 10%.
Can the Engineer insist that the work be carried out before there is agreement on the
price?
Can the Engineer insist that the work be carried out for his assessment of USD100 000?
Note: In addressing this case study please refer to the following clauses:
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CASE STUDY 16
The parties enter into the Yellow Book FIDIC contract. No period for statements is
stipulated.
In Months 1, 2, 3 and 4 the last day of the month happens to be a working day and the
Contractor accordingly submits his statement on the very last day of the month.
In Month 5 the last day of the month is a Sunday. The Contractor therefore submits his
statement on the preceding Friday.
The Engineer refuses to certify this work, arguing that the Contractor will have to wait until
the end of Month 6 before issuing this statement. The Engineer argues that Statement 5 was
not issued in accordance with the contract and that he is therefore not obliged to certify the
work. He refers the Contractor to Sub-clause 14.3 [Application for Interim Payment
Certificates] and argues that the clause is clear that the statement cannot be issued before the
end of the month.
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CASE STUDY 17
The Contractor has received the Taking-Over Certificate and eighty days later has submitted
a Statement at Completion in accordance with Sub-clause 14.10 [Statement at Completion] in
which it summarises:
The value of all work done up to the date of the Taking-Over Certificate is the
sum of USD25m,
The balance of retention being 50% of the amount retained in the sum of USD1m;
and that
What amount will the Contractor receive in the next interim certificate?
Note: In addressing this case study please refer to the following clauses:
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CASE STUDY 18
The Works to be completed is the erection of an oil production facility to be used to increase
oil production on an oil field in Kazakhstan.
Part of the permanent Works is to be manufactured at the Contractor’s factory in Turkey and
is to be stored there. Before the Contractor can transport the plant to Kazakhstan, it is
damaged when the warehouses in which they are being stored are invaded by anti-
government protesters. The anti-government protesters assume control of the warehouses
and refuse to release the plant or equipment.
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Sub-clause 1.1.6.2:
““Country” means the country in which the Site (or most if it)
is located, where the Permanent Works are to be executed.”
Sub-clause 1.1.6.7:
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CASE STUDY 18
Would it have been better for the Contractor to have based his claim on the force
majeure clause rather than basing it in “Employer’s Risk”?
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