The 2017 FIDIC Contracts. William Godwin

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СКАЧАТЬ Contractor has raised the matter quickly enough might give rise to argument.

The Engineer's/Employer's response may well not resolve the question whether the instruction constitutes a variation since within the seven days he might simply confirm the instruction and need not give any reasons in response to the Contractor's reasons why he (the Contractor) considers that the instruction was a variation. It does, however, at least give the Contractor the opportunity to raise the matter in a considered way as it arises, and the Engineer or Employer an occasion to consider or reconsider if what he has instructed is a variation; the Engineer/Employer may be as eager to avoid unnecessary disputes as the Contractor. If the Contractor believes the response fails to address his points and that the instruction constitutes a variation he may, subject to clause 20.2,⁵ claim an extension of time and/or additional payment for any delay or additional cost resulting to him from complying with the instruction as if the instruction were treated as a variation under clause 13.3.1.

      3.2.6 Clause 3.5/3.4 Sub‐paragraph (b)

      If an instruction is not stated to be a variation, and the Contractor does not consider that it is, but does believe that the instruction fails to comply with applicable laws or will reduce the safety of the works or is technically impossible, then under sub‐paragraph (b) of clause 3.5/3.4 he must, again before commencing any work related to the instruction, immediately give a notice to the Engineer/Employer with reasons for his view. The same seven‐day response is required from the Engineer/Employer confirming, reversing or varying the instruction, with the Contractor being bound to comply with the terms of the Engineer's /Employer's response, provided the notice is given in time.

The purpose of this provision is to deal with instructions which are not stated or considered by the Contractor to be variations but where the Contractor considers that the instruction fails to comply with applicable laws, will reduce the safety of the works or is technically impossible. The 2017 Books thus introduce a specific right to object to an instruction in three specific situations where there would otherwise not be (and was not in the 1999 editions) any right to object. The Engineer/Employer has the final word, however, and may confirm the instruction despite the Contractor's objection.⁶

3.3 Agreement or Determination

      The procedure for obtaining the parties' agreement or issuing a determination if no agreement is forthcoming has become far more detailed and structured than in the 1999 editions of the contracts, with greater emphasis on consultation involving the parties and the Engineer/Employer's Representative. The procedure is the same in all the 2017 contracts, although, as noted above, it is set out in clause 3.7 of the 2017 Red and Yellow Books and clause 3.5 of the Silver Book. As also noted above, the process of agreement or determination covers not merely claims but applies whenever the conditions of contract require the Engineer or Employer's Representative to proceed to determine any matter or claim.

      In what follows clause references will be to clause 3.7 of the 2017 Red and Yellow Books and the contract administrator will be referred to as ‘the Engineer’.

      3.3.1 Consultation

Clause 3.5 of the 1999 editions of the three contracts provides merely for the Engineer or Employer to consult each party in an endeavour to reach agreement. This quite often does not happen in practice, or, if it does, is often perfunctory. Clause 3.7.1 now requires the Engineer to consult both parties jointly and/or separately and to encourage discussion between the parties in an endeavour to reach agreement. The Engineer must commence such consultation promptly to allow adequate time to comply with the time limit for obtaining agreement under clause 3.7.3, which specifies a default period of 42 days from certain start points which are set out in that clause.⁷ The Engineer must also provide the parties with a record of the consultation, unless this is agreed to be dispensed with.

      If agreement is achieved within the time limit for agreement under clause 3.7.3, the Engineer must give a notice of the agreement to both parties, stating on its face that it is a notice of their agreement (which they must sign) and including a copy of it. If no agreement is achieved within the time limit, or both parties advise the Engineer that no agreement can be achieved within that time, whichever is the earlier, then the Engineer is to give a notice to the parties accordingly. He must then immediately proceed under clause 3.7.2 to a determination.

      3.3.2 Engineer's Determination

      Under clause 3.7.2 the Engineer must make a fair determination of the matter or claim, in accordance with the Contract, taking due regard of all relevant circumstances. Within the time limit set out in clause 3.7.3 (see next section), he must give a notice to both parties of his determination. The notice must state on its face that it is a notice of the Engineer's determination and describe the determination in detail, with reasons and detailed supporting particulars.

      3.3.3 Time Limits

      Clause 3.7.3 sets out the time limits for the various stages in the agreement or determination process.

      The Engineer must give notice of agreement, if agreement is reached, within 42 days, or within whatever other time limit he proposes and the parties agree, after:

      1 in the case of a matter to be agreed or determined which is not a claim, whatever date of commencement of the time limit for agreement may be stated in the relevant Contract clause; or

      2 where there is a claim by either party, for relief other than under clause 20.1(a) or (b),⁸ the date the Engineer receives a clause 20.1 notice from the claiming party; or

      3 where there is a claim under clause 20.1(a) or (b), the date the Engineer receives:a fully detailed claim under clause 20.2.4,⁹ orwhere there is a claim of continuing effect under clause 20.2.6,¹⁰ an interim or final fully detailed claim, as appropriate.

The Engineer must give the notice of his determination referred to in clause 3.7.2 within 42 days, or whatever other time he proposes and the parties agree, after either (a) no agreement is reached under clause 3.7.1 within the 42 days (or other agreed time limit) or (b) the parties advise that no agreement can be achieved within that period, whichever is the earlier.

If the Engineer does not give his notice, of either agreement or determination, within the relevant time limit then (a) in the case of a claim, the Engineer is deemed to have given a determination rejecting the claim, or (b) in the case of any matter to be agreed or determined other than a claim, a dispute is deemed to have arisen under clause 1.1.29 which may then be referred by either party to a Dispute Avoidance/Adjudication Board (DAAB)¹¹ for a decision under clause 21.4, without the usual notice of dissatisfaction (NOD)¹² being given.

      Thus time limits reinforced by deeming provisions apply in order to seek to ensure both that adequate consultation takes place between the parties, facilitated by the Engineer, and that, if despite that process agreement cannot be achieved, the matter or claim is resolved within a defined period by the Engineer's determination, failing which it may be referred to a DAAB.

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