points noted between fidic 87 and fidic 99: performance

Appendix C

Having used FIDIC 99 as the basis for identifying the modifications made within the analyzed contracts, it was necessary to understand the

differences between FIDIC 87 and FIDIC 99. The below comparison provides an overview on what additions and enhancements were made to

FIDIC 87 reaching the form of FIDIC 99. This also shows the advantages of using FIDIC 99 as the form of general conditions over FIDIC 87,

noting that the below comparison solely addresses the top 30 clauses identified through the analysis. Similar statements between FIDIC 87 and 99

are not copied in the below comparisons, but merely the ones which show the differences.

Points noted between FIDIC 87 and FIDIC 99:

1- Performance Security

FIDIC 87 Statement(s) FIDIC 99 Statement(s) Comparison / Comments

Sub-Clause 4.2:

If the terms of the Performance Security

specify its expiry date, and the Contractor has

not become entitled to receive the Performance

Certificate by the date 28 days prior to the

expiry date, the Contractor shall extend the

validity of the Performance Security until the

Works have been completed and any defects

have been remedied.

FIDIC 99 has added a provision addressing the

case when an expiry date is specified within

the Performance Security, while FIDIC 87 is

silent regarding this point. However, it is

generally stated through both FIDIC editions

that the Performance Security shall be valid

until the completion of the Works and remedial

of defects therein.

Sub-Clause 10.3:

Prior to making a claim under the performance

security the Employer shall, in every case,

notify the Contractor stating the nature of the

default in respect of which the claim is to be

made.

Sub-Clause 4.2:

The Employer shall not make a claim under the

Performance Security, except for amounts to

which the Employer is entitled under the

Contract in the event of:

(a) failure by the Contractor to extend the

FIDIC 87 has only required the Employer to

notify the Contractor whenever a claim under

the Performance Security shall be made while

FIDIC 99 has detailed the cases that entitled

the Employer to make a claim under the

Performance Security. Furthermore, FIDIC 99

validity of the Performance Security as

described in the preceding paragraph, in

which event the Employer may claim the

full amount of the Performance Security,

(b) failure by the Contractor to pay the

Employer an amount due, as either

agreed by the Contractor or determined

under Sub-Clause 2.5 [Employer’s

Claims] or Clause 20 [Claims, Disputes

and Arbitration], within 42 days after

this agreement or determination,

(c) failure by the Contractor to remedy a

default within 42 days after receiving the

Employer’s notice requiring the default

to be remedied, or

(d) circumstances which entitle the

Employer to termination under Sub-

Clause 15.2 [Termination by Employer],

irrespective of whether notice of

termination has been given.

The Employer shall indemnify and hold the

Contractor harmless against and from all

damages, losses and expenses (including legal

fees and expenses) resulting from a claim

under the Performance Security to the extent to

which the Employer was not entitled to make

the claim.

has indemnified the Contractor harmless

against any claims in relation to the

Performance Security to the extent to which

the Employer is not entitled to make the claim.

Sub-Clause 10.2:

“The performance security shall be valid until

the Contractor…”

Sub-Clause 4.2:

“…the Performance Security is valid and

enforceable until the Contractor…”

Various minor differences were identified

between both editions of the FIDIC, such as

this example.

2- Programme of Works / Revised Programme



Sub-Clause 14.1:

The Contractor shall, within the time stated in

Part II of these Conditions after the date of the

Letter of Acceptance, submit to the Engineer

for his consent a programme

Sub-Clause 8.3:

The Contractor shall submit a detailed time

programme to the Engineer within 28 days

after receiving the notice under Sub-Clause 8.1

[Commencement of Works].

FIDIC 99 has specified a duration of 28 days

while FIDIC 87 has referred to Part II of these

Conditions.

Sub-Clause 14.1:

… in such form and detail as the Engineer shall

reasonably prescribe, for the execution of the

Works. The Contractor shall, whenever

required by the Engineer, also provide in

writing for his information a general

description of the arrangements and methods

which the Contractor proposes to adopt for the

execution of the Works.”

Sub-Clause 8.3:

Each programme shall include:

(a) the order in which the Contractor intends

to carry out the Works, including the

anticipated timing of each stage of

design (if any), Contractor’s

Documents, procurement, manufacture

of Plant, delivery to Site, construction,

erection and testing,

(b) each of these stages for work by each

nominated Subcontractor (as defined in

Clause 5 [Nominated Subcontractors]),

(c) the sequence and timing of inspections

and tests specified in the Contract, and

(d) a supporting report which includes:

(i) a general description of the methods

which the Contractor intends to

adopt, and of the major stages, in the

execution of the Works, and

(ii) details showing the Contractor’s

reasonable estimate of the

number of each class of

Contractor’s Personnel and of

FIDIC 87 has not specified certain

requirements for the programme, but has left

such requirements up to the Engineer’s

reasonable prescription.

FIDIC 99, on the other hand, has stated

specific requirements for the programme.

each type of Contractor’s

Equipment, required on the Site

for each major stage.

Sub-Clause 14.2:

If at any time it should appear to the Engineer

that the actual progress of the Works does not

conform to the programme to which consent

has been given under Sub-Clause 14.1, the

Contractor shall produce, at the request of the

Engineer, a revised programme showing the

modifications to such programme necessary to

ensure completion of the Works within the

Time for Completion.

Sub-Clause 8.3:

The Contractor shall also submit a revised

programme whenever the previous programme

is inconsistent with actual progress or with the

Contractor’s obligations.

If, at any time, the Engineer gives notice to the

Contractor that a programme fails (to the

extent stated) to comply with the Contract or to

be consistent with actual progress and the

Contractor’s stated intentions, the Contractor

shall submit a revised programme to the

Engineer in accordance with this Sub-Clause.”

FIDIC 87 has made the requirement of

producing a revised programme up to when it

appears to the Engineer that the actual progress

of the Works does not conform the programme

to which consent has been given under Sub-

Clause 14.1. Such a programme is required to

show the modifications between both

programmes that would allow ensuring

completion of the Works within the Time for

Completion.

FIDIC 99 has obliged the Contractor to submit

a revised programme whenever the previous

one is inconsistent with the actual progress or

with the Contractor’s obligations, with no

consideration as to what may “appear to the

Engineer” regarding the progress of the Works,

as well as whenever requested by the Engineer

through a relevant notice. The requirements

that are to be considered are the same as

mentioned in the previous point.

Sub-Clause 8.3:

Unless the Engineer, within 21 days after

receiving a programme, gives notice to the

Contractor stating the extent to which it does

not comply with the Contract, the Contractor

shall proceed in accordance with the

programme, subject to his other obligations

under the Contract. The Employer’s Personnel

FIDIC 87 is silent regarding this point.

shall be entitled to rely upon the programme

when planning their activities.

Sub-Clause 8.3:

The Contractor shall promptly give notice to

the Engineer of specific probable future events

or circumstances which may adversely affect

the work, increase the Contract Price or delay

the execution of the Works. The Engineer may

require the Contractor to submit an estimate of

the anticipated effect of the future event or

circumstances, and/or a proposal under Sub-

Clause 13.3 [Variation Procedure].

FIDIC 87 is silent regarding this point.

3- Contract Price / Customs / Taxes



Sub-Clause 1.1 (e)“(i) “Contract Price” means

the sum stated in the Letter of Acceptance as

payable to the Contractor for the execution and

completion of the Works and the remedying of

any defects therein in accordance with the

provisions of the Contract.”

Sub-Clause 1.1.4.2:

“Contract Price” means the price defined in

Sub-Clause 14.1 [The Contract Price], and

includes adjustments in accordance with the

Contract.”

FIDIC 87 has briefly referred to Contract Price

as the sum required for the execution and

completion of the Works, while FIDIC 99 has

detailed a definition of “Contract Price”

through Sub-Clause 14.1. The said Sub-Clause

14.1 has specified the inclusion of taxes, duties

and fees related to the Contract within the

Contract Price, as well as other detailed

information.

Sub-Clause 26.1:

“The Contractor shall conform in all respects,

including by the giving of all notices and the

paying of all fees, with the provisions of:

(a) any National or State Statute, Ordinance, or

other Law, or any regulation, or bye-law of any

local or other duly constituted authority in

relation to the execution and completion of the

Works and the remedying of any defects

therein, and

(b) the rules and regulations of all public

bodies and companies whose property or rights

are affected or may be affected in any way by

the Works, and the Contractor shall keep the

Sub-Clause 1.13:

“The Contractor shall, in performing the

Contract, comply with applicable Laws.

Unless otherwise stated in the Particular

Conditions:

(a) the Employer shall have obtained (or

shall obtain) the planning, zoning or

similar permission for the Permanent

Works, and any other permissions

described in the Specification as having

been (or being) obtained by the

Employer; and the Employer shall

indemnify and hold the Contractor

FIDIC 87 and 99 have mainly included similar

provisions with regards to compliance with

laws, statutes and regulations.

Employer indemnified against all penalties and

liability of every kind for breach of any such

provisions.

Provided always that the Employer shall be

responsible for obtaining any planning, zoning

or other similar permission required for the

Works to proceed and shall indemnify the

Contractor in accordance with Sub-Clause

22.3.”

harmless against and from the

consequences of any failure to do so; and

(b) the Contractor shall give all notices, pay

all taxes, duties and fees, and obtain all

permits, licences and approvals, as

required by the Laws in relation to the

execution and completion of the Works

and the remedying of any defects; and

the Contractor shall indemnify and hold

the Employer harmless against and from

the consequences of any failure to do so.”

Sub-Clause 54.3:

“The Employer will use his best endeavours in

assisting the Contractor, where required, in

obtaining clearance through the Customs of

Contractor's Equipment, materials and other

things required for the Works.”

Sub-Clause 2.2:

The Employer shall (where he is in a position

to do so) provide reasonable assistance to the

Contractor at the request of the Contractor:

(a) by obtaining copies of the Laws of the

Country which are relevant to the Contract but

are not readily available, and

(b) for the Contractor’s applications for any

permits, licences or approvals required

by the Laws of the Country:

(i)which the Contractor is required to obtain

under Sub-Clause 1.13 [Compliance with

Laws],

(ii)for the delivery of Goods, including

clearance through customs, and

(iii)for the export of Contractor’s Equipment

when it is removed from the Site.

FIDIC 87 and 99 are similar with regards to

having the Employer assisting the Contractor

with obtaining certain clearances to his best

endeavours or through the provision of

reasonable assistance. FIDIC 99 included more

requirements.

Sub-Clause 9.1:

“The Contractor shall, if called upon so to do,

enter into and execute the Contract Agreement,

Sub-Clause 1.6:

“The Parties shall enter into a Contract

Agreement within 28 days after the Contractor

FIDIC 87 and 99 are mainly similar with

regards to the responsibility of paying costs (if

to be prepared and completed at the cost of the

Employer, in the form annexed to these

Conditions with such modification as may be

necessary.”

receives the Letter of Acceptance, unless they

agree otherwise. The Contract Agreement shall

be based upon the form annexed to the

Particular Conditions. The costs of stamp

duties and similar charges (if any) imposed by

law in connection with entry into the Contract

Agreement shall be borne by the Employer.”

any) related to entering into the Contract

Agreement, with minor wording differences.

4- Language and Law



Sub-Clause 1.4:

The language for communications shall be that

stated in the Appendix to Tender. If no

language is stated there, the language for

communications shall be the language in

which the Contract (or most of it) is written

FIDIC 99 has added a provision addressing the

language of communication, while FIDIC 87 is

silent in this regard. No other considerable

differences were identified between FIDIC 87

and FIDIC 99.

5- Priority of Contract Documents



Sub-Clause 5.2:

(1) The Contract Agreement (if completed);

(2) The Letter of Acceptance;

(3) The Tender;

(4) Part II of these Conditions;

(5) Part I of these Conditions; and

(6) Any other document forming part of the

Contract.

Sub-Clause 1.5:

(a) the Contract Agreement (if any),

(b) the Letter of Acceptance,

(c) the Letter of Tender,

(d) the Particular Conditions,

(e) these General Conditions,

(f) the Specification,

(g) the Drawings, and

(h) the Schedules and any other documents

forming part of the Contract.

FIDIC 99 has addressed some more documents

forming part of the Contract (i.e. Specification,

Drawings and Schedules), and prioritized

them. No other considerable differences were

identified between FIDIC 87 and FIDIC 99.

6- Health, Safety and Environment



Sub-Clause 19.1:

The Contractor shall, throughout the execution

and completion of the Works and the

remedying of any defects therein:

(a) have full regard for the safety of all persons

entitled to be upon the Site and keep the Site

(so far as the same is under his control) and the

Works (so far as the same are not completed or

occupied by the

Employer) in an orderly state appropriate to the

avoidance of danger to such persons,

(b) provide and maintain at his own cost all

lights, guards, fencing, warning signs and

watching, when and where necessary or

required by the Engineer or by any duly

constituted authority, for the protection of the

Works or for the safety and convenience of the

public or others, and

(c) take all reasonable steps to protect the

environment on and off the Site and to avoid

damage or nuisance to persons or to property

of the public or others resulting from pollution,

noise or other causes arising as a consequence

of his methods of operation.

Sub-Clause 4.8:

The Contractor shall:

(a) comply with all applicable safety

regulations,

(b) take care for the safety of all persons

entitled to be on the Site,

(c) use reasonable efforts to keep the Site and

Works clear of unnecessary obstruction so as

to avoid danger to these persons,

(d) provide fencing, lighting, guarding and

watching of the Works until completion and

taking over under Clause 10 [Employer’s

Taking Over], and

(e) provide any Temporary Works (including

roadways, footways, guards and fences) which

may be necessary, because of the execution of

the Works, for the use and protection of the

public and of owners and occupiers of adjacent

land.

The Contractor shall take all reasonable steps

to protect the environment (both on and off the

Site) and to limit damage and nuisance to

people and property resulting from pollution,

noise and other results of his operations.

FIDIC 99 has mainly covered the provisions

included within FIDIC 87 with the exception

of minor differences. FIDIC 99 has required

the Contractor to provide fencing, lighting,

guarding and watching of the Works, while

FIDIC 87 has required him to provide similar

items “when and where necessary or required

by the Engineer or by any duly constituted

authority, for the protection of the

Works or for the safety and convenience of the

public...” FIDIC 99 has added the provision of

Temporary Works, as necessary, “for the use

and protection of the public and of owners…”

FIDIC 99 has added various more provision, as

shown below.

Sub-Clause 4.18:

The Contractor shall ensure that emissions,

surface discharges and effluent from the

Contractor’s activities shall not exceed the

values indicated in the Specification, and shall

not exceed the values prescribed by applicable

Laws.

FIDIC 99 has specified a limit for emission,

surface discharges and effluent while FIDIC

87 is silent in this regard.


Conditions:

(a) the Contractor shall be responsible for

keeping unauthorised persons off the Site, and

(b) authorised persons shall be limited to the

Contractor’s Personnel and the

Employer’s Personnel; and to any other

personnel notified to the Contractor, by

the Employer or the Engineer, as

authorised personnel of the Employer’s

other contractors on the Site.

FIDIC 99 has addressed the authorization of

persons allowed to stay onsite, while FIDIC 87

is silent in this regard.

Sub-Clause 6.7:

The Contractor shall at all times take all

reasonable precautions to maintain the health

and safety of the Contractor’s Personnel. In

collaboration with local health authorities, the

Contractor shall ensure that medical staff, first

aid facilities, sick bay and ambulance service

are available at all times at the Site and at any

accommodation for Contractor’s and

Employer’s Personnel, and that suitable

arrangements are made for all necessary

welfare and hygiene requirements and for the

prevention of epidemics.

The Contractor shall appoint an accident

FIDIC 99 has addressed and detailed Health

and Safety Measures that are required onsite

while FIDIC 87 is silent in this regard.

prevention officer at the Site, responsible for

maintaining safety and protection against

accidents. This person shall be qualified for

this responsibility, and shall have the authority

to issue instructions and take protective

measures to prevent accidents. Throughout the

execution of the Works, the Contractor shall

provide whatever is required by this person to

exercise this responsibility and authority.

The Contractor shall send, to the Engineer,

details of any accident as soon as practicable

after its occurrence. The Contractor shall

maintain records and make reports concerning

health, safety and welfare of persons, and

damage to property, as the Engineer may

reasonably require.

7- Variations



Sub-Clause 13.1:

Variations may be initiated by the Engineer at

any time prior to issuing the Taking-Over

Certificate for the Works, either by an

instruction or by a request for the Contractor to

submit a proposal.

FIDIC 99 has specified the time by which

variations may be initiated, while FIDIC 87 is

silent in this regard.

Sub-Clause 13.1:

The Contractor shall execute and be bound by

each Variation, unless the Contractor promptly

gives notice to the Engineer stating (with

supporting particulars) that the Contractor

cannot readily obtain the Goods required for

the Variation.

FIDIC 99 has bounded the Contractor by each

variation and provided him a room for

objecting against following variations

whenever he is unable to obtain related Goods.

Sub-Clause 51.1:

(a) increase or decrease the quantity of any

work included in the Contract,

(b) omit any such work (but not if the omitted

work is to be carried out by the Employer or by

another contractor),

(c) change the character or quality or kind of

any such work,

(d) change the levels, lines, position and

dimensions of any part of the Works,

(e) execute additional work of any kind

necessary for the completion of the Works, or

(f) change any specified sequence or timing of

construction of any part of the Works.

Sub-Clause 13.1:

(a) changes to the quantities of any item of

work included in the Contract (however, such

changes do not necessarily constitute a

Variation),

(b) changes to the quality and other

characteristics of any item of work,

(c) changes to the levels, positions and/or

dimensions of any part of the Works,

(d) omission of any work unless it is to be

carried out by others,

(e) any additional work, Plant, Materials or

services necessary for the Permanent Works,

including any associated Tests on Completion,

boreholes and other testing and exploratory

Minor differences were identified between

FIDIC 87 and FIDIC 99 with regards to this

point.

work, or

(f) changes to the sequence or timing of the

execution of the Works.

Sub-Clause 51.1:

No such variation shall in any way vitiate or

invalidate the Contract, but the effect, if any,

of all such variations shall be valued in

accordance with Clause 52. Provided that

where the issue of an instruction to vary the

Works is necessitated by some default of or

breach of contract by the Contractor or for

which he is responsible, any additional cost

attributable to such default shall be borne by

the Contractor.

FIDIC 87 has addressed the effect of variations

on the Contract, and deemed the Contractor

responsible for any costs arising due to a

variation necessitated due to his default. FIDIC


Sub-Clause 51.2:

Provided that no instruction shall be required

for increase or decrease in the quantity of any

work where such increase or decrease is not the

result of an instruction given under this Clause,

but is the result of the quantities exceeding or

being less than those stated in the Bill of

Quantities.

Sub-Clause 13.1:

(a) changes to the quantities of any item of

work included in the Contract (however, such

changes do not necessarily constitute a

Variation),

Both forms have addressed the increase or

decrease of quantities; however, FIDIC 87 has

stated such changes shall not be deemed as

variations unless they are instructed under the

relevant Sub-Clause, while FIDIC 99 has

generally stated that such changes may not

necessarily constitute a variation.

Sub-Clause 13.3:

If the Engineer requests a proposal, prior to

instructing a Variation, the Contractor shall

respond in writing as soon as practicable,

either by giving reasons why he cannot comply

(if this is the case) or by submitting:

(a) a description of the proposed work to be

performed and a programme for its execution,

(b) the Contractor’s proposal for any

FIDIC 99 has allowed for requesting

proposals, prior to instructing variations, by

the Engineer, and provided the relevant

procedures to be followed. FIDIC 87 is silent

in this regard.

necessary modifications to the

programme according to Sub-Clause 8.3

[Programme] and to the Time for

Completion, and

(c) the Contractor’s proposal for evaluation

of the Variation.

The Engineer shall, as soon as practicable after

receiving such proposal (under Sub-Clause

13.2 [Value Engineering] or otherwise),

respond with approval, disapproval or

comments. The Contractor shall not delay any

work whilst awaiting a response.

Each instruction to execute a Variation, with

any requirements for the recording of Costs,

shall be issued by the Engineer to the

Contractor, who shall acknowledge receipt.

Each Variation shall be evaluated in

accordance with Clause 12 [Measurement and

Evaluation], unless the Engineer instructs or

approves otherwise in accordance with this

Clause.

Sub-Clause 52.1:

All variations referred to in Clause 51 and any

additions to the Contract Price which are

required to be determined in accordance with

Clause 52 (for the purposes of this Clause

referred to as “varied work”), shall be valued

at the rates and prices set out in the Contract if,

in the opinion of the Engineer, the same shall

be applicable. If the Contract does not contain

Sub-Clause 12.3:

Except as otherwise stated in the Contract, the

Engineer shall proceed in accordance with

Sub-Clause 3.5 [Determinations] to agree or

determine the Contract Price by evaluating

each item of work, applying the measurement

agreed or determined in accordance with the

above Sub-Clauses 12.1 and 12.2 and the

appropriate rate or price for the item.

Both forms have specified the use of the

applicable rates and prices set in the Contractor

for the evaluation purposes. Whenever there

are no applicable rates and prices, FIDIC 87

has specified that rates and prices in the

Contract shall be used as the basis for

valuation, while FIDIC 99 has specified the

use of those specified for similar work. FIDIC

99 has provided certain conditions for the

any rates or prices applicable to the varied

work, the rates and prices in the Contract shall

be used as the basis for valuation so far as may

be reasonable, failing which, after due

consultation by the Engineer with the

Employer and the Contractor, suitable rates or

prices shall be agreed upon between the

Engineer and the Contractor. In the event of

disagreement the Engineer shall fix such rates

or prices as are, in his opinion, appropriate and

shall notify the Contractor accordingly, with a

copy to the Employer. Until such time as rates

or prices are agreed or fixed, the Engineer shall

determine provisional rates or prices to enable

on-account payments to be included in

certificates issued in accordance with Clause

60.

For each item of work, the appropriate rate or

price for the item shall be the rate or price

specified for such item in the Contract or, if

there is no such item, specified for similar

work. However, a new rate or price shall be

appropriate for an item of work if:

(a) (i) the measured quantity of the item is

changed by more than 10% from the

quantity of this item in the Bill of

Quantities or other Schedule

(ii) this change in quantity multiplied

by such specified rate for this item

exceeds 0.01% of the Accepted

Contract Amount,

(iii) this change in quantity directly

changes the Cost per unit quantity of

this item by more than 1%, and

(iv) this item is not specified in the

Contract as a “fixed rate item”;

Or

(b) (i) the work is instructed under Clause

13 [Variations and Adjustments],

(ii) no rate or price is specified in the

Contract for this item, and

(iii) no specified rate or price is

appropriate because the item of work is

not of similar character, or is not

executed under similar conditions, as

any item in the Contract.

Each new rate or price shall be derived from

any relevant rates or prices in the Contract,

with reasonable adjustments to take account of

appropriateness of a new rate or price for an

item of work, while FIDIC 87 has left such a

matter open to the agreement between the

Engineer and the Contractor. Both forms have

allowed for determining a certain rate or price

by the Engineer to be used for interim

payments until such an agreement is reached.

the matters described in sub-paragraph (a)

and/or (b), as applicable. If no rates or prices

are relevant for the derivation of a new rate or

price, it shall be derived from the reasonable

Cost of executing the work, together with

reasonable profit, taking account of any other

relevant matters.

Until such time as an appropriate rate or price

is agreed or determined, the Engineer shall

determine a provisional rate or price for the

purposes of Interim Payment Certificates.

8- Payment



Sub-Clause 60.2:

Provided that the Engineer shall not be bound

to certify any payment under this Sub-Clause

if the net amount thereof, after all retentions

and deductions, would be less than the

Minimum Amount of Interim Payment

Certificates stated in the Appendix to Tender.

Sub-Clause 14.6:

However, prior to issuing the Taking-Over

Certificate for the Works, the Engineer shall

not be bound to issue an Interim Payment

Certificate in an amount which would (after

retention and other deductions) be less than the

minimum amount of Interim Payment

Certificates (if any) stated in the Appendix to

Tender. In this event, the Engineer shall give

notice to the Contractor accordingly.

No considerable differences were identified

between FIDIC 87 and 99 with regards to

Minimum amount of Interim payment

Certificates other than that FIDIC 99 has

required the Engineer to notify the Contractor

accordingly.

Sub-Clause 14.6:

An Interim Payment Certificate shall not be

withheld for any other reason, although:

(a) if any thing supplied or work done by the

Contractor is not in accordance with the

Contract, the cost of rectification or

replacement may be withheld until

rectification or replacement has been

completed; and/or

(b) if the Contractor was or is failing to

perform any work or obligation in

accordance with the Contract, and had

been so notified by the Engineer, the

value of this work or obligation may be

withheld until the work or obligation has

been performed.

FIDIC 99 has stated the cases which may lead

to withholding the Interim Payment

Certificates, while FIDIC 87 is silent in this

regard.

Sub-Clause 60.4: Sub-Clause 14.6:

The Engineer may in any Payment Certificate

Minor differences in wording have been

identified between FIDIC 87 and 99 with

The Engineer may by any Interim Payment

Certificate make any correction or

modification in any previous Interim Payment

Certificate which shall have been issued by

him and shall have authority, if any work is not

being carried out to his satisfaction, to omit or

reduce the value of such work in any Interim

Payment Certificate.

make any correction or modification that

should properly be made to any previous

Payment Certificate. A Payment Certificate

shall not be deemed to indicate the Engineer’s

acceptance, approval, consent or satisfaction.

regards to correction of certificates. FIDIC 87

has elaborated on the reason that would allow

the Engineer to correct any payment

certificate, as opposed to FIDIC 99, which was

brief in this regard. FIDIC 99 has added that

payment certificates are not “deemed to

indicate the Engineer’s acceptance, approval,

consent or satisfaction.”

Sub-Clause 14.7:

The Employer shall pay to the Contractor:

(a) the first instalment of the advance

payment within 42 days after issuing the

Letter of Acceptance or within 21 days

after receiving the documents in

accordance with Sub-Clause 4.2

[Performance Security] and Sub-Clause

14.2 [Advance Payment], whichever is

later;

FIDIC 99 has added a provision related to the

payment of the Advance Payment, while

FIDIC 87 does not include provisions related

to Advance Payment.

Sub-Clause 60.10:

The amount due to the Contractor under any

Interim Payment Certificate issued by the

Engineer pursuant to this Clause, or to any

other term of the Contract, shall, subject to

Clause 47, be paid by the Employer to the

Contractor within 28 days after such Interim

Payment Certificate has been delivered to the

Employer…

Sub-Clause 14.7:

The Employer shall pay to the Contractor:

(b) the amount certified in each Interim

Payment Certificate within 56 days after

the Engineer receives the Statement and

supporting documents; and

FIDIC 87 has required the Employer to pay the

Contractor within 28 days after the time by

which the Interim Payment Certificate has

been delivered to the Employer, while FIDIC

99 has required such payment to be made

within 56 days after the Engineer received the

statement and supporting documents.

Sub-Clause 60.10:

In the event of the failure of the Employer to

make payment within the times stated, the

Employer shall pay to the Contractor interest

Sub-Clause 14.8:

If the Contractor does not receive payment in

accordance with Sub-Clause 14.7 [Payment],

the Contractor shall be entitled to receive

FIDIC 87 has required the Employer to pay an

interest at the rate stated in the Appendix to

Tender in case it failed to make the

Contractor’s payment within the specified

at the rate stated in the Appendix to Tender

upon all sums unpaid from the date by which

the same should have been paid.

financing charges compounded monthly on the

amount unpaid during the period of delay…


Conditions, these financing charges shall be

calculated at the annual rate of three

percentage points above the discount rate of

the central bank in the country of the currency

of payment, and shall be paid in such currency.

The Contractor shall be entitled to this

payment without formal notice or certification,

and without prejudice to any other right or

remedy.

times. FIDIC 99 has entitled the Contractor to

receive financing charges for the same, for

which criterion of calculation was provided.

9- Insurance



Sub-Clause 21.1:

The Contractor shall, without limiting his or

the Employer’s obligations and responsibilities

under Clause 20, insure: …

Sub-Clause 18.1:

In this Clause, “insuring Party” means, for

each type of insurance, the Party responsible

for effecting and maintaining the insurance

specified in the relevant Sub-Clause.

Wherever the Contractor is the insuring Party,

each insurance shall be effected with insurers

and in terms approved by the Employer. These

terms shall be…

Wherever the Employer is the insuring Party,

each insurance shall be effected with insurers

and in terms consistent with the details

annexed to the Particular Conditions.

FIDIC 87 has deemed the Contractor as the

party that shall make the insurances as required

by the Contract, while FIDIC 99 has added the

possibility that the Employer might become

the insuring party, and has set different

requirements based on each possibility.

Sub-Clause 25.1:

The Contractor shall provide evidence to the

Employer prior to the start of work at the Site

that the insurances required under the Contract

have been effected and shall, within 84 days of

the Commencement Date, provide the

insurance policies to the Employer. When

providing such evidence and such policies to

the Employer, the Contractor shall notify the

Engineer of so doing. Such insurance policies

shall be consistent with the general terms

agreed prior to the issue of the Letter of

Acceptance. The Contractor shall effect all

Sub-Clause 18.1:

The relevant insuring Party shall, within the

respective periods stated in the Appendix to

Tender (calculated from the Commencement

Date), submit to the other Party:

(a) evidence that the insurances described in

this Clause have been effected, and

(b) copies of the policies for the insurances

described in Sub-Clause 18.2 [Insurance

for Works and Contractor’s Equipment]

and Sub-Clause 18.3 [Insurance against

Injury to Persons and Damage to

Property].

FIDIC 87 has detailed the requirements for

submitting certain insurance evidences and

polices, while FIDIC 99 has briefed these

requirements through references to the

Appendix to Tender and other Sub-Clause of

the Contract. Minor differences were identified

between the two forms in relation with this

provision.

insurances for which he is responsible with

insurers and in terms approved by the

Employer.

Sub-Clause 25.2:

The Contractor shall notify the insurers of

changes in the nature, extent or programme for

the execution of the Works and ensure the

adequacy of the insurances at all times in

accordance with the terms of the Contract and

shall, when required, produce to the Employer

the insurance policies in force and the receipts

for payment of the current premiums.

Sub-Clause 18.1:

When each premium is paid, the insuring Party

shall submit evidence of payment to the other

Party. Whenever evidence or policies are

submitted, the insuring Party shall also give

notice to the Engineer.

Each Party shall comply with the conditions

stipulated in each of the insurance policies.

The insuring Party shall keep the insurers

informed of any relevant changes to the

execution of the Works and ensure that

insurance is maintained in accordance with this

Clause.

Minor differences were identified between the

two forms with regards to this provision, such

as requiring the insuring Party to notify the

Engineer whenever evidences or policies are

submitted through FIDIC 99, while FIDIC 87

is silent in this regard. Moreover, FIDIC 99 has

required the insuring Party to submit evidence

of payment to the other Party, while FIDIC 87

has not introduced this as an obligation to be

fulfilled in all circumstances, but only “when

required” by the Employer.

Sub-Clause 18.1:

Neither Party shall make any material

alteration to the terms of any insurance without

the prior approval of the other Party. If an

insurer makes (or attempts to make) any

alteration, the Party first notified by the insurer

shall promptly give notice to the other Party.

FIDIC 99 has required the insuring Party to

notify the other whenever any changes to the

terms of any insurance may take place, without

approval the approval of the other, while

FIDIC 87 is silent in this regard.

Sub-Clause 21.3:

Any amounts not insured or not recovered

from the insurers shall be borne by the

Employer or the Contractor in accordance with

their responsibilities under Clause 20.

Sub-Clause 18.1:

Nothing in this Clause limits the obligations,

liabilities or responsibilities of the Contractor

or the Employer, under the other terms of the

Contract or otherwise. Any amounts not

insured or not recovered from the insurers shall

be borne by the Contractor and/or the

Employer in accordance with these

obligations, liabilities or responsibilities.

FIDIC 87 has referred to Clause 20 for which

provision shall apply in relation to any

amounts not insured or not recovered from the

insurers. The said Clause has detailed the

liabilities and obligations of the Contractor and

the Employer in relation to the “Care of

Works” and “Responsibility to Rectify Loss or

Damage”. FIDIC 99 has required the insuring

Party to pay for the amounts that should have

However, if the insuring Party fails to effect

and keep in force an insurance which is

available and which it is required to effect and

maintain under the Contract, and the other

Party neither approves the omission nor effects

insurance for the coverage relevant to this

default, any moneys which should have been

recoverable under this insurance shall be paid

by the insuring Party.

been recoverable under the insurance with

regards to the same.

Sub-Clause 25.3:

If the Contractor fails to effect and keep in

force any of the insurances required under the

Contract, or fails to provide the policies to the

Employer within the period required by Sub-

Clause 25.1, then and in any such case the

Employer may effect and keep in force any

such insurances and pay any premium as may

be necessary for that purpose and from time to

time deduct the amount so paid from any

monies due or to become due to the Contractor,

or recover the same as a debt due from the

Contractor.

Sub-Clause 18.1:

If the insuring Party fails to effect and keep in

force any of the insurances it is required to

effect and maintain under the Contract, or fails

to provide satisfactory evidence and copies of

policies in accordance with this Sub-Clause,

the other Party may (at its option and without

prejudice to any other right or remedy) effect

insurance for the relevant coverage and pay the

premiums due. The insuring Party shall pay the

amount of these premiums to the other Party,

and the Contract Price shall be adjusted

accordingly.

Various differences were identified between

the two FIDIC forms with regards to failure to

effect and keep in force insurances. FIDIC 87

has unified the consequences of the said failure

with the provision of the policies to Employer

within specified time frame while FIDIC 99

has unified the same with the failure to provide

satisfactory evidence and copies of policies.

FIDIC 87 has specified that such a failure shall

allow the Employer to effect and keep in force

any such insurances and pay the premium, for

which value would be deducted from the

Contractor through certain ways of deduction.

FIDIC 99 has allowed the other party to effect

insurance for the relevant coverage and pay the

premiums due, and required the insuring Party

to pay the amounts resulting from this failure

without further details.

Sub-Clause 21.1:



under Clause 20, insure:

Sub-Clause 18.2:

The insuring Party shall insure the

Contractor’s Equipment for not less than the

full replacement value, including delivery to

Site. For each item of Contractor’s Equipment,

FIDIC 87 has required the insurance related to

the Contractor’s Equipment to be for a sum

sufficient to provide for their replacement at

the Site, while FIDIC 99 has required the same

to be for not less than the full replacement

(c) the Contractor’s Equipment and other

things brought onto the Site by the Contractor,

for a sum sufficient to provide for their

replacement at the Site.

the insurance shall be effective while it is being

transported to the Site and until it is no longer

required as Contractor’s Equipment.

value including delivery to Site. FIDIC 99 has

required that such insurance shall be effective

while it is being transported to the Site and

until it is no longer required as Contractor’s

equipment, while FIDIC 87 is silent in this

regard.

Sub-Clause 21.4:

There shall be no obligation for the insurances

in Sub-Clause 21.1 to include loss or damage

caused by:

(a) war, hostilities (whether war be declared or

not), invasion, act of foreign enemies,

(b) rebellion, revolution, insurrection, or

military or usurped power, or civil war,

(c) ionising radiations, or contamination by

radio-activity from any nuclear fuel, or from

any nuclear waste from the combustion of

nuclear fuel, radio-active toxic explosive or

other hazardous properties of any explosive

nuclear assembly or nuclear component

thereof, or

(d) pressure waves caused by aircraft or other

aerial devices travelling at sonic or supersonic

speeds.

Sub-Clause 18.2:


Conditions, insurances under this Sub-Clause:

(d) shall also cover loss or damage to a part of

the Works which is attributable to the use or

occupation by the Employer of another part of

the Works, and loss or damage from the risks

listed in sub-paragraphs (c), (g) and (h) of Sub-

Clause 17.3 [Employer’s Risks], excluding (in

each case) risks which are not insurable at

commercially reasonable terms, with

deductibles per occurrence of not more than

the amount stated in the Appendix to Tender

(if an amount is not so stated, this sub-

paragraph (d) shall not apply),…


Conditions, insurances under this Sub-Clause:

(e) may however exclude loss of, damage

to, and reinstatement of:

(i) a part of the Works which is in a

defective condition due to a defect in its

design, materials or workmanship (but

cover shall include any other parts which

are lost or damaged as a direct result of

this defective condition and not as

Various differences were noted in the

exclusions related to insurances between the

two forms of FIDIC as herein shown through

the contents of the compared Sub-Clauses.

described in sub-paragraph (ii) below),

(ii) a part of the Works which is lost or

damaged in order to reinstate any other

part of the Works if this other part is in a

defective condition due to a defect in its

design, materials or workmanship,

(iii) a part of the Works which has been

taken over by the Employer, except to

the extent that the Contractor is liable for

the loss or damage, and

(iv) Goods while they are not in the

Country, subject to Sub-Clause 14.5

[Plant and Materials intended for the

Works].

Sub-Clause 18.2:

If, more than one year after the Base Date, the

cover described in sub-paragraph (d) above

ceases to be available at commercially

reasonable terms, the Contractor shall (as

insuring Party) give notice to the Employer,

with supporting particulars. The Employer

shall then (i) be entitled subject to Sub-Clause

2.5 [Employer’s Claims] to payment of an

amount equivalent to such commercially

reasonable terms as the Contractor should have

expected to have paid for such cover, and (ii)

be deemed, unless he obtains the cover at

commercially reasonable terms, to have

approved the omission under Sub-Clause 18.1

[General Requirements for Insurances].

FIDIC 99 has specified the consequences that

shall take place should a described cover

related to certain risks ceases to be available at

commercially reasonable terms, while FIDIC


Sub-Clause 21.1: Sub-Clause 18.2:

The insuring Party shall insure the Works,

FIDIC 87 has required the Contractor to insure

the Works, plant and materials to their full



under Clause 20, insure:

(a) the Works, together with materials and

Plant for incorporation therein, to the full

replacement cost (the term "cost" in this

context shall include profit),

(b) an additional sum of 15 per cent of such

replacement cost, or as may be specified in Part

II of these Conditions, to cover any additional

costs of and incidental to the rectification of

loss or damage including professional fees and

the cost of demolishing and removing any part

of the Works and of removing debris of

whatsoever nature, and

Plant, Materials and Contractor’s Documents

for not less than the full reinstatement cost

including the costs of demolition, removal of

debris and professional fees and profit.

replacement cost with an additional sum of 15

per cent of such cost to cover for any additional

costs, while FIDIC 99 has required the insuring

Party to insure for the same in addition to the

Contractor’s Documents for not less than the

full reinstatement cost including other

additional costs.

10- Extension of Time for Completion



Sub-Clause 44.1:

(e)other special circumstances which may

occur, other than through a default of or breach

of contract by the Contractor or for which he is

responsible,

Sub-Clause 18.4:

(d) Unforeseeable shortages in the

availability of personnel or Goods

caused by epidemic or governmental

actions,

FIDIC 87 has provided similar events to FIDIC

99 that entitle the Contractor to extension of

time, except for point (e) of FIDIC 87 and

point (d) of FIDIC 99. The said point (e)

entitles the Contractor to extension of time for

special circumstances which may occur other

than through a default or a breach of contract

by the Contractor, leaving a room for

uncertainty as to what could be deemed as

special circumstances. FIDIC 99 has avoided

such an uncertainty through point (d) by

specifying certain circumstances that would

entitle the Contractor to extension of time,

such as unforeseeable shortages in the

availability of personnel or Goods caused by

epidemic or governmental actions. Other

minor differences were noted between the two

forms.

11- Arbitration



Sub-Clause 67.3:

Any dispute in respect of which:

(a) the decision, if any, of the Engineer has not

become final and binding pursuant to Sub-

Clause 67.1, and

Sub-Clause 20.6:

Unless settled amicably, any dispute in respect

of which the DAB’s decision (if any) has not

become final and binding shall be finally

settled by international arbitration.

Minor differences were noted between FIDIC

87 and FIDIC 99. FIDIC 87 has mentioned the

Engineer’s decision while FIDIC 99 has

mentioned the DAB’s (Dispute Adjudication

Board) decision due to the fact that FIDIC 87

does not include provisions relevant to the

formation of a DAB.

Sub-Clause 67.3:

shall be finally settled, unless otherwise

specified in the Contract, under the Rules of

Conciliation and Arbitration of the

International Chamber of Commerce by one or

more arbitrators appointed under such Rules.

Sub-Clause 20.6:

(b) the dispute shall be settled by three

arbitrators appointed in accordance with

these Rules, and

FIDIC 87 has specified that the settlement of

disputes would be implemented by one or more

arbitrators, while FIDIC 99 has specified three

arbitrators.

12- Engineer’s Duties and Authority



Sub-Clause 3.1:

The Engineer’s staff shall include suitably

qualified engineers and other professionals

who are competent to carry out these duties.

FIDIC 99 has addressed the Engineer’s staff

with regards to their qualifications, while


Sub-Clause 3.1:

The Engineer shall have no authority to amend

the Contract.

FIDIC 99 has specified that the Engineer shall

have no authority to amend the Contract, while


Sub-Clause 2.1:

(b) The Engineer may exercise the authority

specified in or necessarily to be implied from

the Contract, provided, however, that if the

Engineer is required, under, the terms of his

appointment by the Employer, to obtain the

specific approval of the Employer before

exercising any such authority, particulars of

such requirements shall be set out in Part II of

these Conditions. Provided further that any

requisite approval shall be deemed to have

been given by the Employer for any such

authority exercised by the Engineer.

Sub-Clause 3.1:

The Engineer may exercise the authority

attributable to the Engineer as specified in or

necessarily to be implied from the Contract. If

the Engineer is required to obtain the approval

of the Employer before exercising a specified

authority, the requirements shall be as stated in

the Particular Conditions. The Employer

undertakes not to impose further constraints on

the Engineer’s authority, except as agreed with

the Contractor.

However, whenever the Engineer exercises a

specified authority for which the Employer’s

approval is required, then (for the purposes of

the Contract) the Employer shall be deemed to

have given approval.


FIDIC 87 and 99 with regards to this point

except that FIDIC 99 has added the

Employer’s undertaking “not to impose further

constraints on the Engineer’s authority, except

as agreed with the Contractor.”

Sub-Clause 3.1:

whenever carrying out duties or exercising

authority, specified in or implied by the

Contract, the Engineer shall be deemed to act


be deemed to act for the Employer whenever

carrying out duties in accordance to the

for the Employer; Contract, while FIDIC 87 is silent in this

regard.

Sub-Clause 3.1:

(c) any approval, check, certificate, consent,

examination, inspection, instruction,

notice, proposal, request, test, or similar act

by the Engineer (including absence of

disapproval) shall not relieve the

Contractor from any responsibility he has

under the Contract, including responsibility

for errors, omissions, discrepancies and

non-compliances.

FIDIC 99 has added a provision that deems the

approvals and other actions by the Engineer as

acts that do not relieve the Contractor from his

responsibilities under the Contract, while


13- Advance Payment – Covered under point no. 9 above “Payment”

14- Confidential Details


Sub-Clause 1.12:

The Contractor shall disclose all such

confidential and other information as the

Engineer may reasonably require in order to

verify the Contractor’s compliance with the

Contract.

FIDIC 99 has addressed confidential details,


15- Drawings



Sub-Clause 6.1:

The Drawings shall remain in the sole custody

of the Engineer…

Sub-Clause 1.8:

The Specification and Drawings shall be in the

custody and care of the Employer.

FIDIC 87 has made the custody of the

drawings to remain with the Engineer while

made it with the Employer within FIDIC 99.

FIDIC 99 has specified the custody of the

specifications along with the drawings, while


Sub-Clause 6.1:

Unless it is strictly necessary for the purposes

of the Contract, the Drawings, Specification

and other documents provided by the

Employer or the Engineer shall not, without

the consent of the Engineer, be used or

communicated to a third party by the

Contractor.

FIDIC 87 has limited the use of the documents

provided by the Employer to the Contractor,

requiring him to obtain a consent from the

Engineer in case it decided to share the use

with third parties.

Sub-Clause 6.1:

Upon issue of the Defects Liability Certificate,

the Contractor shall return to the Engineer all

Drawings, Specification and other documents

provided under the Contract.

Sub-Clause 1.8:

Each of the Contractor’s Documents shall be in

the custody and care of the Contractor, unless

and until taken over by the Employer.

FIDIC 87 has required returning the

documents provided to the Contractor upon

issue of the Defects Liability Certificate, while

FIDIC 99 has kept the custody and care of the

same with the Contractor until taken over by

the Employer.

Sub-Clause 6.1:

The Contractor shall supply to the Engineer

four copies of all Drawings, Specification and

other documents submitted by the Contractor

and approved by the Engineer in accordance

with Clause 7, together with a reproducible

copy of any material which cannot be

Sub-Clause 1.8:

Unless otherwise stated in the Contract, the

Contractor shall supply to the Engineer six

copies of each of the Contractor’s Documents.

FIDIC 87 has required the Contractor to supply

the Engineer with four copies of all documents

submitted by him along with reproducible

copies pertaining to certain conditions. FIDIC

99 has merely required the Contractor to

provide six copies of the same documents.

reproduced to an equal standard by

photocopying.

Sub-Clause 6.1:

In addition the Contractor shall supply such

further copies of such Drawings, Specification

and other documents as the Engineer may

request in writing for the use of the Employer,

who shall pay the cost thereof.

FIDIC 87 has required the Contractor to supply

further copies upon request by the Engineer on

the cost of the Employer, while FIDIC 99 is


Sub-Clause 1.8:

If a Party becomes aware of an error or defect

of a technical nature in a document which was

prepared for use in executing the Works, the

Party shall promptly give notice to the other

Party of such error or defect.

FIDIC 99 has required all parties to report to

the others any identified technical error or

defect, while FIDIC 87 has covered the same

under a different Sub-Clause, being Sub-

Clause 8.1.

Sub-Clause 6.4:

If, by reason of any failure or inability of the

Engineer to issue, within a time reasonable in

all the circumstances, any drawing or

instruction for which notice has been given by

the Contractor in accordance with Sub-Clause

63, the Contractor suffers delay and/or incurs

costs then the Engineer shall, after due

consultation with the Employer and the

Contractor, determine:

Sub-Clause 1.9:

The Contractor shall give notice to the

Engineer whenever the Works are likely to be

delayed or disrupted if any necessary drawing

or instruction is not issued to the Contractor

within a particular time, which shall be

reasonable. The notice shall include details of

the necessary drawing or instruction, details of

why and by when it should be issued, and

details of the nature and amount of the delay or

disruption likely to be suffered if it is late.

If the Contractor suffers delay and/or incurs

Cost as a result of a failure of the Engineer to

issue the notified drawing or instruction within

a time which is reasonable and is specified in

the notice with supporting details, the

Contractor shall give a further notice to the

FIDIC 87 has linked the Engineer’s failure to

provide necessary drawings or instructions

with Sub-Clause 63, while FIDIC 99 has not

made a similar link, leaving less restrictions on

the Contractor with regards to requesting a

compensation resulting from such failure.

FIDIC 99 has required the Contractor to

provide a detailed notice with certain

requirements prior to experiencing impacts of

any delayed drawing or instruction, while

FIDIC 87 has not made similar requirements,

leading to requiring one notice in accordance

to FIDIC 87 and two in accordance to FIDIC

99 in this regard.

Engineer and shall be entitled subject to Sub-

Clause 20.1 [Contractor’s Claims] to:

Sub-Clause 6.5:

If the failure or inability of the Engineer to

issue any drawings or instructions is caused in

whole or in part by the failure of the Contractor

to submit Drawings, Specification or other

documents which he is required to submit

under the Contract, the Engineer shall take

such failure by the Contractor into account

when making his determination pursuant to

Sub- Clause 6.4.

Sub-Clause 1.9:

However, if and to the extent that the

Engineer’s failure was caused by any error or

delay by the Contractor, including an error in,

or delay in the submission of, any of the

Contractor’s Documents, the Contractor shall

not be entitled to such extension of time, Cost

or profit.


take into account any failure by the Contractor,

which has led to the Engineer’s failure to issue

any drawings or instructions, while making his

determination for the Contractor’s entitlement,

if any. FIDIC 99 has not allowed any

entitlement to the Contractor for the same.

16- Monthly Statements



Sub-Clause 60.1:

The Contractor shall submit to the Engineer

after the end of each month six copies, each

signed by the Contractor’s representative

approved by the Engineer in accordance with

Sub-Clause 15.1, of a statement, in such form

as the Engineer may from time to time

prescribe, showing the amounts to which the

Contractor considers himself to be entitled up

to the end of the month…

Sub-Clause 14.3:

The Contractor shall submit a Statement in six

copies to the Engineer after the end of each

month, in a form approved by the Engineer,

showing in detail the amounts to which the

Contractor considers himself to be entitled,

together with supporting documents which

shall include the report on the progress during

this month in accordance with Sub-Clause

4.21 [Progress Reports].


FIDIC 87 and FIDIC 99, expect that FIDIC 99

has specified that progress reports are required

as part of the supporting documents required.

Sub-Clause 60.1:

(a) the value of the Permanent Works

executed,

Sub-Clause 14.3:

(a)the estimated contract value of the Works

executed and the Contractor’s Documents

produced up to the end of the month (including

Variations but excluding items described in

sub-paragraphs (b) to (g) below);

FIDIC 99 has added the requirement of

Contractor’s Documents to be submitted along

with the estimated contract value of the Works

executed up to the end of the month, as

opposed to FIDIC 87 which has briefly

mentioned the requirement of the value of the

Permanent Works executed.

Sub-Clause 14.3:

(c) any amount to be deducted for retention,

calculated by applying the percentage of

retention stated in the Appendix to Tender to

the total of the above amounts, until the

amount so retained by the Employer reaches

the limit of Retention Money (if any) stated in

the Appendix to Tender;

FIDIC 99 has required the submission of any

amount to be deducted for retention, while

FIDIC 87 is silent in this regard in relation with

Sub-Clause 60.1. Payment of Retention has

been addressed by FIDIC 87 separately

through Sub-Clause 60.3.

Sub-Clause 14.3:

(d) any amounts to be added and deducted for

the advance payment and repayments in

FIDIC 99 has required the submission of any

amount to be added and deducted for the

advance payment, while FIDIC 87 is silent in

accordance with Sub-Clause 14.2 [Advance

Payment];

this regard as it does not have a provision for

advance payment.

Sub-Clause 60.2:

(b) any other items in the Bill of Quantities

including those for Contractor’s Equipment,

Temporary Works, dayworks and the like,

FIDIC 87 has specifically mentioned the items

in the Bill of Quantities, including Contractor’s

Equipment, Temporary Works, dayworks and

the like, while FIDIC 99 has not approached

this matter in such details.

Sub-Clause 60.2:

(e) any other sum to which the Contractor may

be entitled under the Contract or otherwise.

Sub-Clause 14.3:

(f) any other additions or deductions which

may have become due under the Contract or

otherwise, including those under Clause 20

[Claims, Disputes and Arbitration]; and


two form except that FIDIC 99 has mentioned

the inclusion of Clause 20 as a requirement

under this provision.

Sub-Clause 14.3:

(g) the deduction of amounts certified in all

previous Payment Certificates.

FIDIC 99 has required the deduction of

amounts certified in all previous Payment

Certificates as a requirement, while FIDIC 87

is silent regarding any deductions’

requirements.

17- Increase or Decrease in Cost



Sub-Clause 13.8:

In this Sub-Clause, “table of adjustment data”

means the completed table of adjustment data

included in the Appendix to Tender. If there is

no such table of adjustment data, this Sub-

Clause shall not apply.

FIDIC 99 has included a provision for a “table

of adjustment data”, and deemed this Sub-

Clause inapplicable in case this table was not

included within the Appendix to Tender.

FIDIC 87 has not accounted for a similar

provision.

Sub-Clause 70.1:

There shall be added to or deducted from the

Contract Price such sums in respect of rise or

fall in the cost of labour and/or materials or any

other matters affecting the cost of the

execution of the Works as may be determined

in accordance with Part II of these Conditions.

Sub-Clause 13.8:

If this Sub-Clause applies, the amounts

payable to the Contractor shall be adjusted for

rises or falls in the cost of labour, Goods and

other inputs to the Works, by the addition or

deduction of the amounts determined by the

formulae prescribed in this Sub-Clause.

FIDIC 87 has allowed the rise or fall in cost to

determined in accordance with Part II of

“these” conditions; however, FIDIC 99 has

specified that such determination would be

made using a formulae prescribed within the

relevant Sub-Clause.

Sub-Clause 13.8:

To the extent that full compensation for any

rise or fall in Costs is not covered by the

provisions of this or other Clauses, the

Accepted Contract Amount shall be deemed to

have included amounts to cover the

contingency of other rises and falls in costs.

FIDIC 99 has deemed any rise or fall not

covered by the provisions of the Clauses of

these Conditions as included within the

Accepted Contract Amount, while FIDIC 87 is


Sub-Clause 13.8:

The adjustment to be applied to the amount

otherwise payable to the Contractor, as valued

in accordance with the appropriate Schedule

and certified in Payment Certificates, shall be

determined from formulae for each of the

currencies in which the Contract Price is

payable. No adjustment is to be applied to

FIDIC 99 has provided various information

related to the use of the formulae.

work valued on the basis of Cost or current

prices. The formulae shall be of the following

general type:

Pn = a + b Ln + c En + d Mn +

......

Lo Eo Mo

where:

“Pn” is the adjustment multiplier to be applied

to the estimated contract value in the relevant

currency of the work carried out in period “n”,

this period being a month unless otherwise

stated in the Appendix to Tender;

“a” is a fixed coefficient, stated in the relevant

table of adjustment data, representing the non-

adjustable portion in contractual payments;

“b”, “c”, “d”, … are coefficients representing

the estimated proportion of each cost element

related to the execution of the Works, as stated

in the relevant table of adjustment data; such

tabulated cost elements may be indicative of

resources such as labour, equipment and

materials;

“Ln”, “En”, “Mn”, … are the current cost

indices or reference prices for period “n”,

expressed in the relevant currency of payment,

each of which is applicable to the relevant

tabulated cost element on the date 49 days

prior to the last day of the period (to which the

particular Payment Certificate relates); and

“Lo”, “Eo”, “Mo”, … are the base cost indices

or reference prices, expressed in the relevant

currency of payment, each of which is

applicable to the relevant tabulated cost

element on the Base Date.

The cost indices or reference prices stated in

the table of adjustment data shall be used. If

their source is in doubt, it shall be determined

by the Engineer. For this purpose, reference

shall be made to the values of the indices at

stated dates (quoted in the fourth and fifth

columns respectively of the table) for the

purposes of clarification of the source;

although these dates (and thus these values)

may not correspond to the base cost indices.

In cases where the “currency of index” (stated

in the table) is not the relevant currency of

payment, each index shall be converted into

the relevant currency of payment at the selling

rate, established by the central bank of the

Country, of this relevant currency on the above

date for which the index is required to be

applicable.

Until such time as each current cost index is

available, the Engineer shall determine a

provisional index for the issue of Interim

Payment Certificates. When a current cost

index is available, the adjustment shall be

recalculated accordingly.

If the Contractor fails to complete the Works

within the Time for Completion, adjustment of

prices thereafter shall be made using either (i)

each index or price applicable on the date 49

days prior to the expiry of the Time for

Completion of the Works, or (ii) the current

index or price: whichever is more favourable

to the Employer.

The weightings (coefficients) for each of the

factors of cost stated in the table(s) of

adjustment data shall only be adjusted if they

have been rendered unreasonable, unbalanced

or inapplicable, as a result of Variations.

18- Currencies of Payment



Sub-Clause 71.1:

If, after the date 28 days prior to the latest date

for submission of tenders for the Contract, the

Government or authorised agency of the

Government of the country in which the Works

are being or are to be executed imposes

currency restrictions and/or transfer of

currency restrictions in relation to the currency

or currencies in which the Contract Price is to

be paid, the Employer shall reimburse any loss

or damage to the Contractor arising therefrom,

without prejudice to the right of the Contractor

to exercise any other rights or remedies to

which he is entitled in such event.

FIDIC 87 has provided a provision addressing

governmental restrictions over currencies, for

the occurrence of such a circumstances will

oblige the Employer to pay for any relevant

damages or losses. FIDIC 99 is silent in this

regard.

Sub-Clause 72.1:

Where the Contract provides for payment in

whole or in part to be made to the Contractor

in foreign currency or currencies, such

payment shall not be subject to variations in

the rate or rates of exchange between such

specified foreign currency or currencies and

the currency of the country in which the Works

are to be executed.

Sub-Clause 14.15:

(e) if no rates of exchange are stated in the

Appendix to Tender, they shall be those

prevailing on the Base Date and determined by

the central bank of the Country.

FIDIC 87 has specified that foreign currencies

shall not be subject to variations in the rate(s)

of exchange between currencies, while FIDIC

99 has specified that those rates shall be

determined in accordance to the the rates

specified within the Appendix to Tender or in

accordance to the central bank of the Country

in consideration with the Base Date.

Sub-Clause 72.2:

Where the Employer has required the Tender

to be expressed in a single currency but with

payment to be made in more than one currency

and the Contractor has stated the proportions

Sub-Clause 14.15:

(a) if the Accepted Contract Amount was

expressed in Local Currency only:

(i) the proportions or amounts of the Local and

Both forms have made a reference to the

Appendix to Tender with regards to the

proportions or amounts that are to be paid in

different currencies. In case the Appendix to

Tender has not included such information,

or amounts of other currency or currencies in

which he requires payment to be made, the rate

or rates of exchange applicable for calculating

the payment of such proportions or amounts

shall, unless otherwise stated in Part II of these

Conditions, be those prevailing, as determined

by the Central Bank of the country in which the

Works are to be executed, on the date 28 days

prior to the latest date for the submission of

tenders for the Contract, as has been notified to

the Contractor by the Employer prior to the

submission of tenders or as provided for in the

Tender.

Foreign Currencies, and the fixed rates of

exchange to be used for calculating the

payments, shall be as stated in the Appendix to

Tender, except as otherwise agreed by both

Parties;

FIDIC 87 has specified that the rates shall be

determined in accordance to the Central Bank

of the Country, based on a certain date, while

FIDIC 99 has left this matter to be determined

as agreed by both Parties.

Sub-Clause 72.3:

Where the Contract provides for payment in

more than one currency, the proportions or

amounts to be paid in foreign currencies in

respect of Provisional Sums shall be

determined in accordance with the principles

set forth in Sub-Clauses 72.1 and 72.2 as and

when these sums are utilised in whole or in part

in accordance with the provisions of Clauses

58 and 59.

Sub-Clause 14.15:

(ii) payments and deductions under Sub-

Clause 13.5 [Provisional Sums] and Sub-

Clause 13.7 [Adjustments for Changes in

Legislation] shall be made in the applicable

currencies and proportions;


two forms, who have made references to other

clauses by which the currencies and

proportions of payments related to provisional

sums are to be made.

Sub-Clause 14.15:

(iii) other payments and deductions under sub-

paragraphs (a) to (d) of Sub-Clause 14.3

[Application for Interim Payment Certificates]

shall be made in the currencies and proportions

specified in sub-paragraph (a)(i) above;

FIDIC 99 has made references to other

provisions by which the currencies and

proportions of payments related to Sub-Clause

14.3 [Application for Interim Payment

Certificates] are to be made.

Sub-Clause 14.15:

(b) payment of the damages specified in the

Appendix to Tender shall be made in the

FIDIC 99 has made a reference to the

Appendix to Tender through which the

currencies and proportions of payments related

currencies and proportions specified in the

Appendix to Tender;

to payment of the damages specified in the

Appendix to tender are defined.

Sub-Clause 14.15:

(c) other payments to the Employer by the

Contractor shall be made in the currency in

which the sum was expended by the Employer,

or in such currency as may be agreed by both

Parties;

FIDIC 99 has addressed the currency of “other

payments”, while FIDIC 87 is silent in this

regard.

Sub-Clause 14.15:

(d) if any amount payable by the Contractor to

the Employer in a particular currency exceeds

the sum payable by the Employer to the

Contractor in that currency, the Employer may

recover the balance of this amount from the

sums otherwise payable to the Contractor in

other currencies; and

FIDIC 99 has addressed the circumstance

whereby the Contractor’s payable money to

the Employer exceeds the sum payable by the

Employer to the Contractor in a certain

currency. FIDIC 87 has not accounted for a

similar provision.

Sub-Clause 13.4:

If the Contract provides for payment of the

Contract Price in more than one currency, then

whenever an adjustment is agreed, approved or

determined as stated above, the amount

payable in each of the applicable currencies

shall be specified. For this purpose, reference

shall be made to the actual or expected

currency proportions of the Cost of the varied

work, and to the proportions of various

currencies specified for payment of the

Contract Price.

FIDIC 99 has addressed the currencies for

payments related to variations, while FIDIC 87

is silent in this regard.

19- Risks/Force Majeure



Sub-Clause 20.4:

(b) rebellion, revolution, insurrection, or

military or usurped power, or civil war,

Sub-Clause 17.3:

(b) rebellion, terrorism, revolution,

insurrection, military or usurped power, or

civil war, within the Country,



point. FIDIC 99 has added terrorism and

specified that these events would be “within

the Country”.

Sub-Clause 20.4:

(c) ionising radiations, or contamination by

radio-activity from any nuclear fuel, or from

any nuclear waste from the combustion of

nuclear fuel, radio-active toxic explosive or

other hazardous properties of any explosive

nuclear assembly or nuclear component

thereof,

Sub-Clause 17.3:

(d) munitions of war, explosive materials,

ionising radiation or contamination by radio-

activity, within the Country, except as may be

attributable to the Contractor’s use of such

munitions, explosives, radiation or radio-

activity,

FIDIC 87 and FIDIC 99 have shared various

points; however, FIDIC 87 had more focus on

nuclear related matters, while FIDIC 99 has

generalized munitions of war, explosive

materials, etc. FIDIC 99 has specified that

these events would be “within the Country”

and “except as may be attributable to the

Contractor’s use…”

Sub-Clause 20.4:

(e) riot, commotion or disorder, unless solely

restricted to employees of the Contractor or of

his Subcontractors and arising from the

conduct of the Works,

Sub-Clause 17.3:

(c) riot, commotion or disorder within the

Country by persons other than the Contractor’s

Personnel and other employees of the

Contractor and Subcontractors,



point. FIDIC 99 has specified that these events

would be “within the Country”.

Sub-Clause 20.4:

(g) loss or damage to the extent that it is due to

the design of the Works, other than any part of

the design provided by the Contractor or for

which the Contractor is responsible

Sub-Clause 17.3:

(g) design of any part of the Works by the

Employer’s Personnel or by others for whom

the Employer is responsible,



point.

Sub-Clause 20.3:

In the event of any such loss or damage

happening from any of the risks defined in

Sub-Clause 20.4, or in combination with other

risks, the Contractor shall, if and to the extent

Sub-Clause 17.4:

If and to the extent that any of the risks listed

in Sub-Clause 17.3 above results in loss or

damage to the Works, Goods or Contractor’s

Documents, the Contractor shall promptly give

FIDIC 99 has required the Contractor to notify

the Engineer in the event that any Employer’s

risk takes place, while FIDIC 87 has not made

a similar provision.

required by the Engineer, rectify the loss or

damage and the Engineer shall determine an

addition to the Contract Price in accordance

with Clause 52 and shall notify the Contractor

accordingly, with a copy to the Employer. In

the case of a combination of risks causing loss

or damage any such determination shall take

into account the proportional responsibility of

the Contractor and the Employer.

notice to the Engineer and shall rectify this loss

or damage to the extent required by the

Engineer.

If the Contractor suffers delay and/or incurs

Cost from rectifying this loss or damage, the

Contractor shall give a further notice to the

Engineer and shall be entitled subject to Sub-


(a) an extension of time for any such delay,

if completion is or will be delayed, under

Sub-Clause 8.4 [Extension of Time for

Completion], and

(b) payment of any such Cost, which shall be

included in the Contract Price. In the case

of sub-paragraphs (f) and (g) of Sub-

Clause 17.3 [Employer’s Risks],

reasonable profit on the Cost shall also

be included.

After receiving this further notice, the



determine these matters.

FIDIC 87 has obliged the Contractor to rectify

any damages as required by the Engineer, who

shall directly make his determination of an

addition to the Contract Price and notify the

Contractor accordingly. FIDIC 99 has required

the Contractor to give a further notice to the

Engineer in case it suffered delays and/or

incurred costs due to rectifying damages, and

the Engineer shall proceed with making a

determination of extension of time and

payment, if any.

Sub-Clause 65.2:

The special risks are:

(a) the risks defined under paragraphs (a), (c),

(d) and (e) of Sub-Clause 20.4, and

(b) the risks defined under paragraph (b) of

Sub-Clause 20.4 insofar as these relate to the

country in which the Works are to be executed.

Sub-Clause 19.1:

In this Clause, “Force Majeure” means an

exceptional event or circumstance:

(a) which is beyond a Party’s control,

(b) which such Party could not reasonably have

provided against before entering into the

Contract,

FIDIC 87 is specific with regards to the

definition of special risks as it has specified the

events that are deemed as so. FIDIC 99 has

introduced the expression “Force Majeure”

and has generalized its definition to

exceptional events or circumstances, stating

some of such events or circumstances.

(c) which, having arisen, such Party could not

reasonably have avoided or overcome, and

(d) which is not substantially attributable to the

other Party.

Force Majeure may include, but is not limited

to, exceptional events or circumstances of the

kind listed below, so long as conditions (a) to

(d) above are satisfied:

(i) war, hostilities (whether war be declared or

not), invasion, act of foreign enemies,

(ii) rebellion, terrorism, revolution,

insurrection, military or usurped power, or

civil war,

(iii) riot, commotion, disorder, strike or

lockout by persons other than the Contractor’s

Personnel and other employees of the

Contractor and Sub- contractors,

(iv) munitions of war, explosive materials,

ionising radiation or contamination by radio-

activity, except as may be attributable to the

Contractor’s use of such munitions,

explosives, radiation or radio-activity, and

(v) natural catastrophes such as earthquake,

hurricane, typhoon or volcanic activity.

Moreover, FIDIC 99 has not limited Force

Majeure events to some of those defined as

Employer’s Risks.

Sub-Clause 19.2:

If a Party is or will be prevented from

performing any of its obligations under the

Contract by Force Majeure, then it shall give

notice to the other Party of the event or

circumstances constituting the Force Majeure

FIDIC 99 has specified certain required

notifications and procedures to be fulfilled

whenever a Force Majeure takes place, while


and shall specify the obligations, the

performance of which is or will be prevented.

The notice shall be given within 14 days after

the Party became aware, or should have

become aware, of the relevant event or

circumstance constituting Force Majeure.

The Party shall, having given notice, be

excused performance of such obligations for so

long as such Force Majeure prevents it from

performing them.

Notwithstanding any other provision of this

Clause, Force Majeure shall not apply to

obligations of either Party to make payments to

the other Party under the Contract.

Sub-Clause 65.1:

The Contractor shall be under no liability

whatsoever in consequence of any of the

special risks referred to in Sub-Clause 65.2,

whether by way of indemnity or otherwise, for

or in respect of:

(a)destruction of or damage to the Works, save

to work condemned under the provisions of

Clause 39 prior to the occurrence of any of the

said special risks,

(b)destruction of or damage to property,

whether of the Employer or third parties, or

(c) injury or loss of life.

Sub-Clause 65.3:

If the Works or any materials or Plant on or

near or in transit to the Site, or any of the

Contractor's Equipment, sustain destruction or

Sub-Clause 19.4:

If the Contractor is prevented from performing

any of his obligations under the Contract by

Force Majeure of which notice has been given

under Sub-Clause 19.2 [Notice of Force

Majeure], and suffers delay and/or incurs Cost

by reason of such Force Majeure, the

Contractor shall be entitled subject to Sub-


(a) an extension of time for any such delay,

if completion is or will be delayed, under

Sub-Clause 8.4 [Extension of Time for

Completion], and

(b) if the event or circumstance is of the kind

described in sub-paragraphs (i) to (iv) of

Sub-Clause 19.1 [Definition of Force

Majeure] and, in the case of sub-

FIDIC 87 has provided various more details

with regards to the Contractor’s liability to

special risks, its consequences and other

related information as compared with FIDIC

99. FIDIC 87 has stated that the Contractor

shall have no liability in consequence of

special risks, having stated a number of such

consequences, including but not limited to

projectiles and war. Both forms have

acknowledges the Contractor’s right for

compensation to rectify damages in

accordance to the different determination

procedures of each form. FIDIC 99 has

specifically mentioned the Contractor’s right

to extension of time.

damage by reason of any of the said special

risks, the Contractor shall be entitled to

payment in accordance with the Contract for

any Permanent Works duly executed and for

any materials or Plant so destroyed or damaged

and, so far as may be required by the Engineer

or as may be necessary for the completion of

the Works, to payment for:

(a)rectifying any such destruction or damage to

the Works, and

(b)replacing or rectifying such materials or

Contractor’s Equipment, and the Engineer

shall determine an addition to the Contract

Price in accordance with Clause 52 (which

shall in the case of the cost of replacement of

Contractor's Equipment include the fair market

value thereof as determined by the Engineer)

and shall notify the Contractor accordingly,

with a copy to the Employer.

Sub-Clause 65.4 of FIDIC 87 has stated:

Destruction, damage, injury or loss of life

caused by the explosion or impact, whenever

and wherever occurring, of any mine, bomb,

shell, grenade, or other projectile, missile,

munition, or explosive of war, shall be deemed

to be a consequence of the said special risks.

Sub-Clause 65.5 of FIDIC 87 has stated:

Save to the extent that the Contractor is entitled

to payment under any other provision of the

Contract, the Employer shall repay to the

paragraphs (ii) to (iv), occurs in the

Country, payment of any such Cost.

After receiving this notice, the Engineer shall

proceed in accordance with Sub-Clause 3.5

[Determinations] to agree or determine these

matters.

Contractor any costs of the execution of the

Works (other than such as may be attributable

to the cost of reconstructing work condemned

under the provisions of Clause 39 prior to the

occurrence of any special risk) which are

howsoever attributable to or consequent on or

the result of or in any way whatsoever

connected with the said special risks, subject

however to the provisions in this Clause

hereinafter contained in regard to outbreak of

war, but the Contractor shall, as soon as any

such cost comes to his knowledge, forthwith

notify the Engineer thereof. The Engineer

shall, after due consultation with the Employer

and the Contractor, determine the amount of

the Contractor’s costs in respect thereof which

shall be added to the Contract Price and shall

notify the Contractor accordingly, with a copy

to the Employer.

Sub-Clause 19.3:

Each Party shall at all times use all reasonable

endeavours to minimise any delay in the

performance of the Contract as a result of

Force Majeure.

A Party shall give notice to the other Party

when it ceases to be affected by the Force

Majeure.

FIDIC 99 has required each party to minimize

delays, and to provide notice to the other

whenever the effects of a Force Majeure

ceases. FIDIC 87 has not made a similar

provision.

Sub-Clause 19.5:

If any Subcontractor is entitled under any

contract or agreement relating to the Works to

FIDIC 99 has addressed the distinction

between a Subcontractor’s entitlement to a

relief due to Force Majeure and the same in

relief from force majeure on terms additional

to or broader than those specified in this

Clause, such additional or broader force

majeure events or circumstances shall not

excuse the Contractor’s non-performance or

entitle him to relief under this Clause.

relation to the Contractor. FIDIC 87 has not

accounted for a similar provision.

20- Subcontractors



Sub-Clause 4.4:

(c) the Contractor shall give the Engineer not

less than 28 days’ notice of the intended date

of the commencement of each Subcontractor’s

work, and of the commencement of such work

on the Site;

FIDIC 99 has specified a certain period of time

within which the Contractor is required to

notify the Engineer of the intended date of the

commencement of each of the Subcontractor’s

work and other relevant information. FIDIC 87

has not accounted for a similar provision.

Sub-Clause 4.4:

(d) each subcontract shall include provisions

which would entitle the Employer to require

the subcontract to be assigned to the Employer

under Sub-Clause 4.5 [Assignment of Benefit

of Subcontract] (if or when applicable) or in

the event of termination under Sub-Clause

15.2 [Termination by Employer].

FIDIC 99 has included a provision that entitle

the Employer to require subcontracts to be

assigned to him, while FIDIC 87 has not


Sub-Clause 4.1:

Provided that the Contractor shall not be

required to obtain such consent for:

(a) the provision of labour,

(b) the purchase of materials which are in

accordance with the standards specified in the

Contract,

FIDIC 87 has addressed certain matters that do

not require obtaining a consent, such as

provision of labour and purchase of Contract

materials. FIDIC 99 has not accounted for a

similar provision.

Sub-Clause 4.2:

In the event of a Subcontractor having

undertaken towards the Contractor in respect

of the work executed, or the goods, materials,

Plant or services supplied by such

Subcontractor, any continuing obligation

extending for a period exceeding that of the

Sub-Clause 4.5:

If a Subcontractor’s obligations extend

beyond the expiry date of the relevant Defects

Notification Period and the Engineer, prior to

this date, instructs the Contractor to assign the

benefit of such obligations to the Employer,

then the Contractor shall do so. Unless

FIDIC 87 has specified that any assignment

required by the Engineer shall be implemented

on the cost of the Employer, while FIDIC 99

has not made a similar provision. FIDIC 99 has

specified that the Contractor shall not be liable

to the Employer for the work carried out by the

Subcontractor after the assignment takes

Defects Liability Period under the Contract,

the Contractor shall at any time, after the

expiration of such Period, assign to the

Employer, at the Employer’s request and cost,

the benefit of such obligation for the unexpired

duration thereof.

otherwise stated in the assignment, the

Contractor shall have no liability to the

Employer for the work carried out by the

Subcontractor after the assignment takes

effect.

effect, while FIDIC 87 has not made a similar

provision.

21- Taking Over



Sub-Clause 10.1:

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.

FIDIC 99 has directly made a statement

specifying the conditions that are to be fulfilled

to deem the Works as taken over by the

Employer, while FIDIC 87 has not made a

similar provision.

Sub-Clause 48.1:

the Contractor may give a notice to that effect

to the Engineer, with a copy to the Employer,

accompanied by a written undertaking to finish

with due expedition any outstanding work

during the Defects Liability Period.

Sub-Clause 10.1:

The Contractor may apply by notice to the

Engineer for a Taking-Over Certificate not

earlier than 14 days before the Works will, in

the Contractor’s opinion, be complete and

ready for taking over. If the Works are divided

into Sections, the Contractor may similarly

apply for a Taking-Over Certificate for each

Section.

FIDIC 99 has specified a duration within

which the Contractor may apply for a Taking

Over Certificate prior to the Completion of the

Works, while FIDIC 87 has not made a similar

provision. FIDIC 87 has allowed the

Contractor to apply for the said Certificate

notwithstanding the possibility of existing

outstanding work that would be completed

during the Defects Liability Period, while

FIDIC 99 has not made a similar provision.

FIDIC 99 has applied the same conditions to

the Taking Over of the Works and the Sections,

while FIDIC 87 has made a distinction

between the conditions the same.

Sub-Clause 48.1:

The Engineer shall, within 21 days of the date

of delivery of such notice

Sub-Clause 10.1:

The Engineer shall, within 28 days after

receiving the Contractor’s application

FIDIC 87 has required the Engineer to respond

within 21 days from the date of the

Contractor’s application, while FIDIC 99 has

made the said duration to be 28 days.

Sub-Clause 48.1:

The Engineer shall also notify the Contractor

of any defects in the Works affecting

substantial completion that may appear after

such instructions and before completion of the

Works specified therein. The Contractor shall

be entitled to receive such Taking-Over

Certificate within 21 days of completion, to the

satisfaction of the Engineer, of the Works so

specified and remedying any defects so

notified.

FIDIC 87 has made a provision for a

notification to be provided by the Engineer to

the Contractor should more defects appear

between the Engineer’s instruction specifying

the Works that are to be completed and the

Completion of the Works. FIDIC 99 has not

made a similar provision.

Sub-Clause 10.1:

If the Engineer fails either to issue the Taking-

Over Certificate or to reject the Contractor’s

application within the period of 28 days, and if

the Works or Section (as the case may be) are

substantially in accordance with the Contract,

the Taking-Over Certificate shall be deemed to

have been issued on the last day of that period.

FIDIC 99 has identified the consequences of

the Engineer’s failure to respond to an

application of a Taking Over Certificate within

the specified period, while FIDIC 87 is silent

in this regard.

Sub-Clause 10.2:

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.

FIDIC 99 has prohibited the Employer’s use to

any part of the Works except for certain

conditions, while FIDIC 87 has not made a

similar provision.

Sub-Clause 48.2:

the Contractor may request and the Engineer

shall issue a Taking-Over Certificate in respect

of:

Sub-Clause 10.2:

However, if the Employer does use any part of

the Works before the Taking-Over Certificate

is issued:

FIDIC 87 has specified that the Contractor may

request and the Engineer shall issue a Taking

Over Certificate in certain conditions;

however, FIDIC 99 has specified a condition

where Taking Over could be deemed to have

(b) any substantial part of the Permanent

Works which has been both completed to the

satisfaction of the Engineer and, otherwise

than as provided for in the Contract, occupied

or used by the Employer, or

(c) any part of the Permanent Works which the

Employer has elected to occupy or use prior to

completion (where such prior occupation or

use is not provided for in the Contract or has

not been agreed by the Contractor as a

temporary measure).

(a) the part which is used shall be deemed to

have been taken over as from the date on

which it is used,

(b) the Contractor shall cease to be liable for

the care of such part as from this date, when

responsibility shall pass to the Employer, and

(c) if requested by the Contractor, the Engineer

shall issue a Taking-Over Certificate for this

part.

occurred by default for certain part(s), for

which the Contractor may request the Engineer

to issue the said Certificate in relation to that

part or parts. FIDIC 99 has added a provision

waiving the Contractor’s liability to any part

that has been used by the Employer, while

FIDIC 87 has not made a similar provision.

FIDIC 87 has allowed the Engineer to issue a

Taking Over Certificate to any part of the

Works that has been substantially completed

and passed any Tests on Completion

prescribed by the Contract.

Sub-Clause 48.3:

If any part of the Permanent Works has been

substantially completed and has satisfactorily

passed any Tests on Completion prescribed by

the Contract, the Engineer may issue a Taking-

Over Certificate in respect of that part of the

Permanent Works before completion of the

whole of the Works and, upon the issue of such

Certificate, the Contractor shall be deemed to

have undertaken to complete with due

expedition any outstanding work in that part of

the Permanent Works during the Defects

Liability Period.

Sub-Clause 10.2:

After the Engineer has issued a Taking-Over

Certificate for a part of the Works, the

Contractor shall be given the earliest

opportunity to take such steps as may be

necessary to carry out any outstanding Tests on

Completion. The Contractor shall carry out

these Tests on Completion as soon as

practicable before the expiry date of the

relevant Defects Notification Period.

FIDIC 99 has addressed fulfilling the

obligations related to Tests on Completion

after the issuance of the Taking Over

Certificate and before the expiry of the relevant

Defects Notification Period. FIDIC 87 has

addressed the same by requiring the Tests on

Completion to be completed prior to the

issuance of the Taking Over Certificate.

Sub-Clause 10.2:

If the Contractor incurs Cost as a result of the

Employer taking over and/or using a part of the

Works, other than such use as is specified in

the Contract or agreed by the Contractor, the

Contractor shall (i) give notice to the Engineer

and (ii) be entitled subject to Sub-Clause 20.1

FIDIC 99 has specified that the Contractor

shall be entitled to a compensation in case it

incurs costs as a result of the Employer taking

over and/or using a part of the Works,

whenever this is not specified within the

Contract. FIDIC 87 is silent in this regard.

[Contractor’s Claims] to payment of any such

Cost plus reasonable profit, which shall be

included in the Contract Price. After receiving

this notice, the Engineer shall proceed in

accordance with Sub-Clause 3.5

[Determinations] to agree or determine this

Cost and profit.

Sub-Clause 10.2:

If a Taking-Over Certificate has been issued

for a part of the Works (other than a Section),

the delay damages thereafter for completion of

the remainder of the Works shall be reduced.

Similarly, the delay damages for the remainder

of the Section (if any) in which this part is

included shall also be reduced. For any period

of delay after the date stated in this Taking-

Over Certificate, the proportional reduction in

these delay damages shall be calculated as the

proportion which the value of the part so

certified bears to the value of the Works or

Section (as the case may be) as a whole. The



determine these proportions. The provisions of

this paragraph shall only apply to the daily rate

of delay damages under Sub-Clause 8.7 [Delay

Damages], and shall not affect the maximum

amount of these damages.

FIDIC 99 has specified the criteria related to

the reduction of delay damages in relation with

any parts that becomes taken over. FIDIC 87

has addressed the same through Sub-Clause

47.2 entitled “Reduction of Liquidated

Damages”.

22- Delay Damages



Sub-Clause 47.1:

If the Contractor fails to comply with the Time

for Completion in accordance with Clause 48,

for the whole of the Works or, if applicable,

any Section within the relevant time prescribed

by Clause 43, then the Contractor shall pay to

the Employer the relevant sum stated in the

Appendix to Tender as liquidated damages for

such default and not as a penalty (which sum

shall be the only monies due from the

Contractor for such default) for every day or

part of a day which shall elapse between the

relevant Time for Completion and the date

stated in a Taking-Over Certificate of the

whole of the Works or the relevant Section,

subject to the applicable limit stated in the

Appendix to Tender. The Employer may,

without prejudice to any other method of

recovery, deduct the amount of such damages

from any monies due or to become due to the

Contractor.

The payment or deduction of such damages

shall not relieve the Contractor from his

obligation to complete the Works, or from any

other of his obligations and liabilities under the

Contract.

Sub-Clause 8.7:

If the Contractor fails to comply with Sub-

Clause 8.2 [Time for Completion], the

Contractor shall subject to Sub-Clause 2.5

[Employer’s Claims] pay delay damages to the

Employer for this default. These delay

damages shall be the sum stated in the

Appendix to Tender, which shall be paid for

every day which shall elapse between the

relevant Time for Completion and the date

stated in the Taking-Over Certificate.

However, the total amount due under this Sub-

Clause shall not exceed the maximum amount

of delay damages (if any) stated in the

Appendix to Tender.

These delay damages shall be the only

damages due from the Contractor for such

default, other than in the event of termination

under Sub-Clause 15.2 [Termination by

Employer] prior to completion of the Works.

These damages shall not relieve the Contractor

from his obligation to complete the Works, or

from any other duties, obligations or

responsibilities which he may have under the

Contract.


FIDIC 87 and FIDIC 99.

Sub-Clause 47.2 entitled “Reduction of

Liquidated Damages”

The same has been covered by FIDIC 99

through Sub-Clause 10.2 under the “Taking

Over of Parts of the Works” with minor

differences.

23- Contractor’s General Obligations



Sub-Clause 4.1 Sub-Clauses 8.1 and 8.2 No significant differences were identified

between FIDIC 87 and 99. FIDIC 99 has

covered a number of points within one Sub-

Clause, having been divided into three Sub-

Clauses within FIDIC 87. This includes

“Contractor’s General Obligations”, “Site

Operations and Methods of Construction” and

“Permanent Works Designed by the

Contractor”. FIDIC 87 has pointed out the

Contractor’s responsibility of notifying the

Engineer whenever it discovers errors, faults,

etc. FIDIC 99 has covered the same through a

different Sub-Clause 1.8 entitled “Care and

Supply of Documents”

Sub-Clause 4.1:

The Contractor shall, whenever required by the

Engineer, submit details of the arrangements

and methods which the Contractor proposes to

adopt for the execution of the Works. No

significant alteration to these arrangements

and methods shall be made without this having

previously been notified to the Engineer.

FIDIC 99 has obliged the Contractor,

whenever required by the Engineer, to submit

certain details, which are not allowed to be

altered without notifying the Engineer.

24- Commencement Date



Sub-Clause 41.1:

The Contractor shall commence the Works as

soon as is reasonably possible after the receipt

by him of a notice to this effect from the

Engineer, which notice shall be issued within

the time stated in the Appendix to Tender after

the date of the Letter of Acceptance.

Thereafter, the Contractor shall proceed with

the Works with due expedition and without

delay.

Sub-Clause 8.1:

The Engineer shall give the Contractor not less

than 7 days notice of the Commencement Date.


Conditions, the Commencement Date shall be

within 42 days after the Contractor receives the

Letter of Acceptance.

The Contractor shall commence the execution

of the Works as soon as is reasonably

practicable after the Commencement Date, and

shall then proceed with the Works with due

expedition and without delay.

No significant differences were identified

between FIDIC 87 and FIDIC 99. FIDIC 99

has added a requirement of a notice that is to

be submitted by the Engineer to the Contractor

not less than 7 days of the Commencement

Date. The Commencement Date was defined to

be within 42 days after the Contractor receives

the Letter of Acceptance in FIDIC 99, while


Appendix to Tender in this regard.

25- Contractor’s Representative, Superintendence and Personnel



Sub-Clause 15.1:

The Contractor, or a competent and authorised

representative approved of by the Engineer,

which approval may at any time be withdrawn,

shall give his whole time to the

superintendence of the Works. Such authorised

representative shall receive, on behalf of the

Contractor, instructions from the Engineer.

If approval of the representative is withdrawn

by the Engineer, the Contractor shall, as soon

as is practicable, having regard to the

requirement of replacing him as hereinafter

mentioned, after receiving notice of such

withdrawal, remove the representative from

the Works and shall not thereafter employ him

again on the Works in any capacity and shall

replace him by another representative

approved by the Engineer.

Sub-Clause 4.3:

The Contractor shall appoint the Contractor’s

Representative and shall give him all authority

necessary to act on the Contractor’s behalf

under the Contract.

Unless the Contractor’s Representative is

named in the Contract, the Contractor shall,

prior to the Commencement Date, submit to

the Engineer for consent the name and

particulars of the person the Contractor

proposes to appoint as Contractor’s

Representative. If consent is withheld or

subsequently revoked, or if the appointed

person fails to act as Contractor’s

Representative, the Contractor shall similarly

submit the name and particulars of another

suitable person for such appointment.

The Contractor’s Representative shall, on

behalf of the Contractor, receive instructions

under Sub-Clause 3.3 [Instructions of the

Engineer].

FIDIC 99 has allocated a Sub-Clause solely for

the Contractor’s Representative while FIDIC

87 has considered the same through the Sub-

Clause related to Contractor’s

Superintendence. A limited number of

differences were identified between these two

statements. FIDIC 87 has specified that a

Contractor’s Representative, who is

withdrawn, shall not be thereafter employed

again on the Works, while FIDIC 99 is silent

in this regard. FIDIC 99 has pointed out that a

Contractor’s Representative may be named

within the Contract, while FIDIC 87 has

merely mentioned that the Contractor or a

Contractor’s represented would be approved

by the Engineer. FIDIC 99 has required the

Contractor to appoint a Contractor’s

Representative while FIDIC 87 has stated “The

Contractor, or a competent and authorised

representative” shall give his whole to the

superintendence of the Works”, signifying that

FIDIC 87 has allowed either the Contractor

himself or his Representative to manage the

Works.

Sub-Clause 4.3:

The Contractor shall not, without the prior

consent of the Engineer, revoke the

appointment of the Contractor’s

FIDIC 99 has prohibited the Contractor from

revoking the appointment of the Contractor’s

Representative or appoint another without the

Representative or appoint a replacement. consent of the Engineer, while FIDIC 87 is


Sub-Clause 4.3:

If the Contractor’s Representative is to be

temporarily absent from the Site during the

execution of the Works, a suitable replacement

person shall be appointed, subject to the

Engineer’s prior consent, and the Engineer

shall be notified accordingly.

FIDIC 99 has specified the actions to be taken

whenever the Contractor’s is absent, while


Sub-Clause 4.3:

The Contractor’s Representative may delegate

any powers, functions and authority to any

competent person, and may at any time revoke

the delegation. Any delegation or revocation

shall not take effect until the Engineer has

received prior notice signed by the

Contractor’s Representative, naming the

person and specifying the powers, functions

and authority being delegated or revoked.

FIDIC 99 has allowed the Contractor’s

Representative to delegate any powers,

functions and authority to any competent

person, and may at any time revoke the

delegation, addressing the conditions related to

such actions. FIDIC 87 is silent in this regard.

Sub-Clause 4.3:

The Contractor’s Representative and all these

persons shall be fluent in the language for

communications defined in Sub-Clause 1.4

[Law and Language].

FIDIC 99 has required the Contractor’s

Representative and persons to be fluent in the

Language of communications of the Contract,


Sub-Clause 15.1:

The Contractor shall provide all necessary

superintendence during the execution of the

Works and as long thereafter as the Engineer

may consider necessary for the proper

fulfilling of the Contractor's obligations under

the Contract.

Sub-Clause 6.8:

Throughout the execution of the Works, and as

long thereafter as is necessary to fulfil the

Contractor’s obligations, the Contractor shall

provide all necessary superintendence to plan,

arrange, direct, manage, inspect and test the

work.

FIDIC 99 has elaborated on the properties of

the superintendence while FIDIC 87 has

merely required them to be able to fulfil the

relevant obligations of the Contract.

Superintendence shall be given by a sufficient

number of persons having adequate knowledge

of the language for communications (defined

in Sub-Clause 1.4 [Law and Language]) and of

the operations to be carried out (including the

methods and techniques required, the hazards

likely to be encountered and methods of

preventing accidents), for the satisfactory and

safe execution of the Works.

Sub-Clause 6.10:

The Contractor shall submit, to the Engineer,

details showing the number of each class of

Contractor’s Personnel and of each type of

Contractor’s Equipment on the Site. Details

shall be submitted each calendar month, in a

form approved by the Engineer, until the

Contractor has completed all work which is

known to be outstanding at the completion date

stated in the Taking-Over Certificate for the

Works.

FIDIC 99 has required the Contractor to submit

certain details and information related to the

Contractor’s Personnel and Equipment on

interim basis, while FIDIC 87 has not a similar

requirement.

26- Working Hours



Sub-Clause 45.1:

Subject to any provision to the contrary

contained in the Contract, none of the Works

shall, save as hereinafter provided, be carried

on during the night or on locally recognised

days of rest…

Sub-Clause 6.5:

No work shall be carried out on the Site on

locally recognised days of rest, or outside the

normal working hours stated in the Appendix

to Tender,


Appendix to Tender in which the Working

Hours would be defined, while FIDIC 87 has

not accounted for similar details to be provided

through the Appendix to Tender.

Sub-Clause 45.1:

Provided that the provisions of this Clause

shall not be applicable in the case of any work

which it is customary to carry out by multiple

shifts.

FIDIC 87 has deemed this Clause as

inapplicable to any work which is customary to

carry out by multiple shifts, while FIDIC 99

has not accounted for a similar provision.

27- Termination by Employer



Sub-Clause 15.2:

(a) fails to comply with Sub Clause 4.2

[Performance Security] or with a notice under

Sub-Clause 15.1 [Notice to Correct],

FIDIC 99 has added a condition related to the

Contractor’s compliance with the obligations

of the Performance Security, for which failure

entitles the Employer to terminate the

Contract.

Sub-Clause 63.1:

If the Contractor is deemed by law unable to

pay his debts as they fall due, or enters into

voluntary or involuntary bankruptcy,

liquidation or dissolution (other than a

voluntary liquidation for the purposes of

amalgamation or reconstruction), or becomes

insolvent, or makes an arrangement with. Or

assignment in favour of, his creditors, or agrees

to carry out the Contract under a committee of

inspection of his creditors, or if a receiver,

administrator, trustee or liquidator is appointed

over any substantial part of his assets, or if,

under any law or regulation relating to

reorganization, arrangement or readjustment

of debts, proceedings are commenced against

the Contractor or resolutions passed in

connection with dissolution or liquidation or if

any steps are taken to enforce any security

interest over a substantial part of the assets of

the Contractor, or if any act is done or event

occurs with respect to the Contractor or his

assets which, under any applicable law has a

Sub-Clause 15.2:

(e) becomes bankrupt or insolvent, goes into

liquidation, has a receiving or administration

order made against him, compounds with his

creditors, or carries on business under a

receiver, trustee or manager for the benefit of

his creditors, or if any act is done or event

occurs which (under applicable Laws) has a

similar effect to any of these acts or events,

While the contents of both forms are mainly

similar with regards to these statements, FIDIC

87 has provided further elaboration and details.

substantially similar effect to any of the

foregoing acts or events…

(f) gives or offers to give (directly or

indirectly) to any person any bribe, gift,

gratuity, commission or other thing of value, as

an inducement or reward:

(i) for doing or forbearing to do any action in

relation to the Contract, or

(ii) for showing or forbearing to show favour

or disfavour to any person in relation to the

Contract,

or if any of the Contractor’s Personnel, agents

or Subcontractors gives or offers to give

(directly or indirectly) to any person any such

inducement or reward as is described in this

sub-paragraph (f). However, lawful

inducements and rewards to Contractor’s

Personnel shall not entitle termination.

FIDIC 99 has added a condition related to

bribes, gifts and the like that entitles the

Employer to terminate the Contract.

Sub-Clause 63.1:

(b)without reasonable excuse has failed

(i) to commence the Works in accordance with

Sub-Clause 41.1, or

(ii) to proceed with the Works, or any Section

thereof, within 28 days after receiving notice

pursuant to Sub-Clause 46. 1,

Sub-Clause 15.2:

(c) without reasonable excuse fails:

(i) to proceed with the Works in accordance

with Clause 8

[Commencement, Delays and Suspension],

FIDIC 99 has broadened this point to include

provisions related to the Programme,

suspension and others as relevant to Clause 8.

Sub-Clause 63.1:

then the Employer may, after giving 14 days’

notice to the Contractor, enter upon the Site

and the Works and terminate the employment

of the Contractor

Sub-Clause 15.2:

In any of these events or circumstances, the

Employer may, upon giving 14 days notice to

the Contractor, terminate the Contract and

expel the Contractor from the Site. However,

FIDIC 99 has allowed the Employer to

terminate the Contract immediately without

requiring a 14 days notice in certain

conditions, while FIDIC 87 has required a 14

in the case of sub-paragraph (e) or (f), the

Employer may by notice terminate the

Contract immediately.

days notice for all stated conditions that entitle

the Employer to termination.

Sub-Clause 63.1:

The Employer or such other contractor may

use for such completion so much of the

Contractor’s Equipment, Temporary Works

and materials as he or they may think proper.

Sub-Clause 15.2:

After termination, the Employer may complete

the Works and/or arrange for any other entities

to do so. The Employer and these entities may

then use any Goods, Contractor’s Documents

and other design documents made by or on

behalf of the Contractor.

FIDIC 87 has allowed the use of the

Contractor’s Equipment, Temporary Works

and materials to be used by the Employer or

other related contractors upon termination,

while FIDIC 99 has allowed the use of any

Goods, Contractor’s Documents and other

design documents.

Sub-Clause 15.2:

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.

FIDIC 99 has required the Contractor to

deliver any required Goods, all Documents and

other documents to the Engineer. Moreover, it

has required him to comply immediately with

any reasonable instructions related to

assignment of any subcontract or in relation

with the protection or safety of the Works.

FIDIC 87 has not accounted for similar

provisions.

Sub-Clause 15.2:

The Employer shall then give notice that the

Contractor’s Equipment and Temporary

Works will be released to the Contractor at or

near the Site. The Contractor shall promptly

arrange their removal, at the risk and cost of

the Contractor. However, if by this time the

Contractor has failed to make a payment due to

the Employer, these items may be sold by the

Employer in order to recover this payment.

Any balance of the proceeds shall then be paid

to the Contractor.

FIDIC 99 has set the procedures related to the

delivery of the Contractor’s Equipment and

Temporary Works, as well as the possibility of

selling them in order to recover payments due

to the Employer. FIDIC 87 has not made

similar provisions.

Sub-Clause 15.5:

The Employer shall be entitled to terminate the

Contract, at any time for the Employer’s

convenience, by giving notice of such

termination to the Contractor. The termination

shall take effect 28 days after the later of the

dates on which the Contractor receives this

notice or the Employer returns the

Performance Security. The Employer shall not

terminate the Contract under this Sub-Clause

in order to execute the Works himself or to

arrange for the Works to be executed by

another contractor.

After this termination, the Contractor shall

proceed in accordance with Sub- Clause 16.3

[Cessation of Work and Removal of

Contractor’s Equipment] and shall be paid in

accordance with Sub-Clause 19.6 [Optional

Termination, Payment and Release].

FIDIC 99 has entitled the Employer to

terminate the Contract for convenience, having

set the related procedures. FIDIC 87 has not


28- Cash Flow



Sub-Clause 14.3:

The Contractor shall, within the time stated in

Part II of these Conditions after the date of the

Letter of Acceptance, provide to the Engineer

for his information a detailed cash flow

estimate, in quarterly periods, of all payments

to which the Contractor will be entitled under

the Contract and the Contractor shall

subsequently supply revised cash flow

estimates at quarterly intervals, if required to

do so by the Engineer.

Sub-Clause 14.4:

If the Contract does not include a schedule of

payments, the Contractor shall submit non-

binding estimates of the payments which he

expects to become due during each quarterly

period. The first estimate shall be submitted

within 42 days after the Commencement Date.

Revised estimates shall be submitted at

quarterly intervals, until the Taking-Over

Certificate has been issued for the Works.

Since FIDIC 99 has introduced the concept of

schedule of payments, it has specified the

requirement of cash flow submission

whenever a schedule of payments has not been

included within the Contract. Minor

differences were identified between both

forms.

29- Plant, Materials, Equipment and Temporary Works



Sub-Clause 54.1:

All Contractor’s Equipment, Temporary

Works and materials provided by the

Contractor shall, when brought on to the Site,

be deemed to be exclusively intended for the

execution of the Works…

Sub-Clause 4.17:

The Contractor shall be responsible for all

Contractor’s Equipment. When brought on to

the Site, Contractor’s Equipment shall be

deemed to be exclusively intended for the

execution of the Works.

FIDIC 87 has made the application of this

Clause to include all Contractor’s Equipment,

Temporary Works and materials provided by

the Contractor, while FIDIC 99 has merely

included the Contractor’s Equipment.

Sub-Clause 54.4:

In respect of any Contractor’s Equipment

which the Contractor has imported for the

purposes of the Works, the Employer will use

his best endeavours to assist the Contractor,

where required, in procuring any necessary

Government consent to the re-export of such

Contractor’s Equipment by the Contractor

upon the removal thereof pursuant to the terms

of the Contract.

Sub-Clause 2.2:

The Employer shall (where he is in a position

to do so) provide reasonable assistance to the

Contractor at the request of the Contractor:

(b) for the Contractor’s applications for any

permits, licences or approvals required

by the Laws of the Country:

(iii) for the export of Contractor’s

Equipment when it is removed from the

Site.


FIDIC 87 and 99 with regards to these

statements.

Sub-Clause 39.1:

The Engineer shall have authority to issue

instructions from time to time, for:

(a) the removal from the Site, within such time

or times as may be specified in the instruction,

of any materials or Plant which, in the opinion

of the Engineer, are not in accordance with the

Contract,

(b) the substitution of proper and suitable

materials or Plant, and

Sub-Clause 7.6:

Notwithstanding any previous test or

certification, the Engineer may instruct the

Contractor to:

(a) remove from the Site and replace any Plant

or Materials which is not in accordance with

the Contract,

(b) remove and re-execute any other work

which is not in accordance with the Contract,

and

FIDIC 99 has added a condition related to

urgently required works for the safety of the

Works, while FIDIC 87 has not made a similar

provision. Furthermore, FIDIC 99 has made a

provision identifying the consequences of the

Contractor’s failure to comply by the

instructions of the Engineer in this regard,

while FIDIC 87 has not made a similar

provision.

(c) the removal and proper re-execution,

notwithstanding any previous test thereof or

interim payment therefore, of any work which,

in respect of

(i) materials, Plant or workmanship, or

(ii) design by the Contractor or for which he is

responsible, is not, in the opinion of the

Engineer, in accordance with the Contract.

(c) execute any work which is urgently

required for the safety of the Works, whether

because of an accident, unforeseeable event or

otherwise.

The Contractor shall comply with the

instruction within a reasonable time, which

shall be the time (if any) specified in the

instruction, or immediately if urgency is

specified under sub-paragraph (c).

If the Contractor fails to comply with the

instruction, the Employer shall be entitled to

employ and pay other persons to carry out the

work. Except to the extent that the Contractor

would have been entitled to payment for the

work, the Contractor shall subject to Sub-

Clause 2.5 [Employer’s Claims] pay to the

Employer all costs arising from this failure.

Sub-Clause 7.7:

Each item of Plant and Materials shall, to the

extent consistent with the Laws of the Country,

become the property of the Employer at

whichever is the earlier of the following times,

free from liens and other encumbrances:

(a) when it is delivered to the Site;

(b) when the Contractor is entitled to payment

of the value of the Plant and Materials under

Sub-Clause 8.10 [Payment for Plant and

Materials in Event of Suspension].

FIDIC 99 has made a provision related to the

ownership of Plant and Materials, deeming

them to be owned by the Employer upon the

occurrence of certain circumstances. FIDIC 87

has not made a similar condition.

30- Adjustments for Changes in Legislation



Sub-Clause 70.2 Sub-Clause 13.7 FIDIC 87 has elaborated more on the types of

Law of the Country, while FIDIC 99 has

maintained its statements in a brief form.

FIDIC 99 has addressed the Contractor’s time

entitlement resulting from this Sub-Clause as

well as the cost, while FIDIC 87 has merely

addressed the cost entitlement.