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Harmonisation of FIDIC Red Book with Tender
Documents of MDBs Jean-François Maquet
Deputy Vice President EBRD 4 February 2005
Harmonisation of FIDIC Red Book with Tender Documents of MDBs
l Why are MDBs harmonising procurement
l What is being harmonised
l Harmonisation of General Conditions
l Implications for Particular Conditions
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Why are MDBs harmonising procurement
l G-7 call for greater MDB coordination and harmonisation of policies and procedures
l Interest of Borrowers that procurement procedures be common to all MDBs
l Harmonisation of policies is limited by specificity of MDBs mandates and charters
l All Multilateral Banks are involved3
What is being harmonised
l Comparison of policies and procedures to identify differences
l Agreement on best practices to address differences
l Agreement on common minimum requirements for local procurement
l Development of Master Tender Documents
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Master Tender Documents
l Master Tender Documents reflects the majority view of MDBs while allowing for institutional and country considerations
l Tender for Goods - completed l Prequalification for Works – completed l Tender for Works – completed l RFP for consultants – completed l Tender for Plant – under development
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Master Tender Document for Works
l Master used by institutions as a model to issue new and harmonised standard tender documents
l Master suitable for tenders either following or without pre-qualification
l EBRD accepts the use of internationally recognised forms of contract including the FIDIC conditions
l MDBs and FIDIC have agreed on a harmonised version of the General Conditions (Red Book) 6
Changes to FIDIC General Conditions Definitions
l Particular Conditions include Part A (Contract Data) and Part B (Specific Provisions)
l No reference to Appendix to Tender but reference to Contract Data to be completed by the Employer
l Schedules completed by the Contractor
l Dispute Adjudication Board renamed Dispute Board
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Changes to FIDIC General Conditions Risks and Liabilities
l Definition of “unforeseeable” extended to include “against which adequate preventive precautions could not reasonably be taken”
l Employer’s risks (17.3) defined “insofar as they directly affect the execution of the works in the country”
l Force majeure if party prevented from performing “its substantial obligations” rather than “any of its obligations”
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Changes to FIDIC General Conditions Claims
l Employer’s claims (2.15) - after the Employer became aware “or should have become aware”
l Termination by Contractor (16.2) - failure of the Employer must materially and adversely affect the Contractor’s ability to perform
l Disputes referred to a Dispute Board for decision rather then a DAB for adjudication
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Changes to FIDIC General Conditions Payments
l Items or prices not included in BoQ considered included in other rates and prices
l Conditions for new rates or prices are more demanding (12.3)
l Adjustment for changes in legislation (13.7) modified to avoid risk of double counting
l Changes in the provisions for repayment of the advance payment
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Changes to FIDIC General Conditions Other
l Employer does not require the Contractor’s agreement to change the authority of the engineer but Contractor should be informed
l Clauses geared to payments in different currencies
l Additional clauses for social and environmental aspects
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Implications for the Particular Conditions
l Everything in Part A (Contract Data) has to be completed by the Employer
l Several clauses formerly in PC are now in GC
l Particular Conditions likely to be shorter than before
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MDB Specific Clauses in Particular Conditions
l Inspection and Audit by the Bank l Arrangements in case of suspension of
disbursements l Conditions of eligibility (not for EBRD) l Health and Safety l Treatment of taxes and duties l Measures against corrupt or fraudulent
practices13
Issues
l Consistency across Master Tender Documents
l Consistency across FIDIC Forms
l Implementation of FIDIC first and second editions of the Conditions of Contract for Construction
l Issue of applicable law and usability of some clauses
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Harmonisation of FIDIC Red Book with Tender
Documents of MDBs Jean-François Maquet
Deputy Vice President EBRD 4 February 2005
