The 2017 FIDIC Contracts - William Godwin

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the Contract documents and should not generally be made, but go on to give specific instances where some definitions, such as the Base Date, might be usefully amended, or where the site crosses the border between two countries.

      Example wording is provided under clause 1.15, for example, dealing with limitation of liability where parties wish to take into account liabilities which are to be insured under clause 19 and so provide for specific liability by reference to each potential head of damage. Other examples concern notes on Provisional Sums (clause 13.4), formulae for adjustments for changes in cost (clause 13.7) and notes on Schedules of Payments (clause 14.4) and financing arrangements, with example wording.

      1.5.6 Building Information Modelling

      The 2017 editions also include as part of the Guidance at the back of each form advisory notes on the use of FIDIC Contracts where the project uses Building Information Modelling (BIM) systems, with guidance given on specific clauses of the general conditions needing review when the Particular Conditions are drafted. FIDIC anticipates more detailed guidance being necessary and accordingly intends to publish a ‘Technology Guide’ and a ‘Definition of Scope Guideline Specific to BIM’ at a later date.

      As in the 1999 editions, the back of the 2017 Books contains example forms, in particular forms of required securities (such as an advance payment guarantee), forms of letter of tender, letter of acceptance and contract agreement for the Red and Yellow Books, or letter of tender and contract agreement for the Silver Book, and in each case a form of dispute avoidance/adjudication agreement.

      1 1 The Base Date is defined in clause 1 of both editions of all three Books as 28 days before the latest date for submission of the tender.

      2 2 ‘Unforeseeable’ is defined in clause 1 of the three 2017 Books to mean ‘not reasonably foreseeable by an experienced contractor by the Base Date’.

      3 3 In the 1999 Red Book (clause 4.1), where the Contractor is, under the Contract, to design any part of the works then that part when completed must be fit for such purposes as those for which the part is intended as specified in the Contract. In the 2017 edition, the purposes are to be as specified in the Contract or, where they are not so defined and described, their ordinary purposes.

      4 4 See Section 5.1.4 for a fuller discussion of errors in Employer's Requirements in the Yellow Book.

      5 5 See Section 13.2.1 .

      6 6 The 2008 Gold Book had introduced a fitness for purpose indemnity in the second paragraph of clause 17.9. This indemnity, as in the pre‐release Yellow Book, is excluded from the general exclusion of indirect or consequential loss in clause 17.8 of the Gold Book; but is within the overall liability cap (second paragraph of clause 17.8). The pre‐release Yellow Book thus followed the Gold Book in introducing a Contractor's fitness for purpose indemnity, but went beyond it by excluding the indemnity from both the indirect loss exclusion and the overall liability cap.

      7 7 See Section 2.8.2 .

      8 8 See Section 2.8 .

      9 9 See Section 12.1.3 .

      10 10 See Section 7.6 .

      11 11 See Section 9.2 .

      12 12 See Section 13.1.3 .

      13 13 See Section 13.2.3 .

      14 14 See Section 12.2.2 .

      15 15 See Section 9.4 below.

      16 16 See Section 11.3.1 .

      17 17 See Section 11.4.1 .

      2.1 Definitions

      The definitions at clause 1.1 are listed alphabetically rather than, as in the 1999 editions, under various subject matter headings, and give the meanings of predominantly the nouns‐with‐initial‐capitals which figure throughout the Contracts, such as ‘Works’, ‘Materials’ and ‘Review’. As with the 1999 editions, wherever an expression has an initial capital in the body of the Contract it is a defined expression, the definition appearing in clause 1.1.

      One of the most important general provisions in the 2017 editions is that dealing with notices and other communications in clause 1.3. ‘Notice’ is defined in clause 1.1 of the 2017 contracts to mean a written communication identified as a notice and issued in accordance with clause 1.3. Clause 1.3 of the 1999 editions also contains rules about formal communications under the Contract such as notices, but the 2017 rules are more detailed and require particular attention in view of the greater use of notices and associated time limits in the 2017 editions.

      Clause 1.3 in the 2017 contracts requires that any notice to be given under the Contract, or the issuing, providing, sending or the like of other communications (including, for example, determinations or instructions) should be in writing, and either:

      1 (a) a paper‐original signed by an authorised representative, such as the Contractor's Representative or the Engineer; or

      2 (b) an electronic original generated from a system stated in the Contract Data,1 or acceptable to the Engineer (or in the Silver Book, the Employer); the electronic original must moreover be transmitted by the electronic address uniquely assigned to the authorised representative.

      Further, if it is a notice, the communication must be identified as a notice. If it is another form of communication, it has to be identified as such and include reference to the provision of the Contract under which it is issued, where appropriate.

      Other requirements for communications including notices are that they must be delivered, sent or transmitted to the address for the recipient's communications stated in the Contract Data (or to a notified changed address) and that they should not be unreasonably withheld or delayed.

      An important additional

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