The 12 Worst Things About

FIDIC 2017 – A Christmas

Special
Written by Victoria Tyson

The FIDIC 2017 forms first appeared at the December

FIDIC Users' Conference four years ago. No one has
suggested that the FIDIC 2017 forms of contract did
not rectify some of the problems in the FIDIC 1999
forms, and in Edward Corbett's articles, 'Cherry Picking
FIDIC 2017' and 'FIDIC 2017 – First Impressions of the
3-Kilo Suite', he considered some of these changes.

This new suite of contracts had, at best, a lukewarm

reception when they were first reviewed, with some
commentators complaining about the length of these
new contracts and that the contracts had not taken
account of criticisms that had been made by
reviewers. This article looks at the twelve worst 'gifts'
that FIDIC gave to us for Christmas 2017.
Victoria Tyson
Number 12 Partner

The 2017 Red Book has 128 pages of conditions (up to T +44 (0)20 3755 5733
the Guidance Section). Commentators have M +44 (0)7546 695 614
complained that it is too prescriptive and unsuitable [email protected]
for simpler projects of higher value. FIDIC are updating
its Green Book, which borrowed ideas from the NEC
forms of contract, and this will be issued on 8
December 2021. However, the new Green Book will
only be suitable for projects up to US$10 million. It Number 10
seems, therefore, that there is likely to be a colour The FIDIC drafters have changed the Notice to Correct
missing in the new FIDIC rainbow. procedure. Sub-Clause 15.1 now provides that it is the
Contractor who is responsible for describing the
Number 11 measures it will take to remedy the failure and stating
when it will commence such measures. This is likely to
There are 90 definitions within the Definitions section be a source of contention where the Contractor
of the FIDIC Yellow Book. One would have thought attempts to resolve problems using the cheapest
that everything that needed a definition would be option. Employers should also note that they cannot
defined therein, but the FIDIC drafters decided to add terminate the Contract for non-compliance with a
other definitions in the Contract – see Notice to Correct where this is not a "material breach
Sub-Clause 5.2.1 where 'nominated Subcontractor' is of the Contractor's obligations under the Contract."
defined. Some definitions are unnecessary; for
example, does 'FIDIC' need to be a defined term? The
word 'year' is defined as 365 days, which of course Number 9
takes no account of leap years and is only used in one Sub-Clauses 20.1 and 20.2 contain both subjective and
other definition (see the Defects Notification Period). objective intentions. Sub-Clause 20.1(b) states that if
the Contractor "considers that the Contractor is
entitled…" a Claim may arise. This is a subjective test.
However, Sub-Clause 20.2.1 states that if the
Contractor does not give Notice describing the event

1
or circumstance giving rise to the loss "as soon as EOTs under the governing law of the contract. The
practicable, and no later than 28 days after the Notes to the Special Provisions seem to suggest the
claiming Party became aware, or should have become latter but the wording suggests some sort of
aware, of" it, it loses its right to additional payment or proportional approach.
an EOT. This contains both a subjective test and an
objective test. What this appears to be saying is that Number 5
the Contractor might be time barred from claiming an
additional payment or EOT if it should have known of 'Exceptional Event' is defined without reference to the
its right to claim, irrespective of the fact that it did not event being exceptional. An Exceptional Event must be
know it had a claim. FIDIC had an opportunity in the beyond a party's control, which a party could not
2017 contracts to clarify precisely when a Notice of reasonably have provided against before entering into
claim should be given. However, they chose not to the contract, which such party could not reasonably
take this opportunity and the ambiguity that existed in have avoided, and is not substantially due to the other
the 1999 suite of contracts, about when a claim starts party. A road traffic accident on a road maintenance
to run, remains in the 2017 suite. project, which was not due to the fault of the
Contractor or Employer, could therefore fall within the
definition. Clearly this was not intended.
Number 8
There are now five distinct time bars in the 2017 Number 4
Contract. In the FIDIC 1999 contracts there were two
(one at Sub-Clause 20.1 and in relation to the Notice The Engineer can now issue an instruction requesting
of Dissatisfaction). There is a general reluctance by acceleration measures to reduce the scope of an EOT.
adjudicators and arbitrators to strike out genuine While this sounds superficially attractive it could lead
claims just because a time bar has been missed, to significant problems if the Engineer attempts to
especially where the opposing party had caused the specify how this is to be achieved.
delay and was fully aware of its consequences. To add
more time bars into the 2017 is an unnecessary and Number 3
onerous step.
The Variation provisions of the Contract allow for a
Contractor to object to a Variation if it is
Number 7 Unforeseeable, which is defined as not reasonably
FIDIC has introduced a claims procedure that has foreseeable by an experienced contractor at the Base
different routes depending on the type of claim it is. If Date. A cardinal change in the Works, i.e., a change
you get this wrong you can waste time and, at worst, which is so drastic that this requires the Contractor to
find that you are barred from going down the other carry out something materially different from what is
route. in the Contract, would therefore be Unforeseeable.
However, the Variation clause then permits the
Engineer to confirm the Variation despite the
Number 6 Contractor's objection that it is Unforeseeable.
One of the most common areas of dispute in
construction contracts relates to whether a contractor Number 2
is entitled to an extension of time. FIDIC decided to
address the issue of concurrency in the final paragraph The 2017 contracts contain a multitude of deeming
of Sub-Clause 8.5. The clause refers to the rules and provisions – there are nine deeming provisions in
procedures as stated in the Special Provisions (which Clause 20 alone. There are situations where one set of
fortunately is a defined term meaning Part B of the deeming provisions apply to confirm another set of
Particular Conditions). However, if it is not addressed deeming provisions. There are also 'un-deeming'
in the Special Provisions then the EOT is awarded provisions so that under Sub-Clause 20.2.2, a Notice of
"taking due regard to all relevant circumstances." This Claim will be deemed to be valid if the Engineer does
therefore leaves open the question of whether it is not issue a Notice stating a claim is invalid. However,
intended that the Contractor should be awarded time the other Party may disagree with this deeming
on a proportional basis or by applying the rules about provision and give its own Notice, whereupon the

2
Engineer must then determine the disagreement as to
whether the deeming provision applies. Clause 1.3 has
an interesting deeming provision in that an
electronically transmitted Notice will be deemed to be
received the day after transmission. Contractors
should think twice about firing off a Notice by email
on the last day of a time period.

Number 1
Sub-Clause 21.4.1 requires that Disputes be referred
to the DAAB within 42 days of giving or receiving a
Notice of Dissatisfaction under Sub-Clause 3.7.5. If the
Dispute is not referred to the DAAB within 42 days, it
shall be deemed to lapse and no longer be valid. Many
lawyers will see this as an early Christmas present
from FIDIC, however, for many Employers and
Contractors this will be an extremely costly provision.

The raison d'etre, according to FIDIC, for the new suite

of contracts was to increase clarity and provide
greater certainty. One can make a case for arguing
that these aims have been achieved, but, at what
cost? This is a suite of contracts that appear to push
the parties towards a DAAB at the earliest possible
opportunity and then create a myriad of hurdles for
the parties to jump through. It is fortunate therefore
that FIDIC are training scores of new DAAB members.
In this author's view the 2017 contracts, which were
issued just before Christmas four years ago, are a bit
of a turkey.

Please get in touch at

[email protected] with your
thoughts or to discuss any concern