standardy fidic v Čr mezinárodní smluvní ě · pdf filestandardy fidic v...
TRANSCRIPT
29 September 2015
1
Standardy FIDIC v ČR mezinárodní smluvnístandardy v dopravěRound Table DiscussionPrague, Czech Republic
Svend PoulsenProject Director, Atkins
29 September 2015 1
The Use of FIDIC Forms in the Czech Republic –International Contractual Standards in Transport ProjectsRound Table Discussion
Svend PoulsenProject Director, Atkins
29 September 2015 2
29 September 2015
2
Czech Ministry of Transport – Round Table Discussion
Use of the FIDIC Suite of Contracts and the key characteristics
Prerequisites for successful projects
29 September 2015 5Svend Poulsen, Atkins Danmark A/S
The FIDIC Suite of Contracts
29 September 2015 6
FIDIC publishes internationally recognised forms of contract for infrastructure works
Drafted by Consulting Engineers to be used and managed by Engineers
First published in the 1950's
Svend Poulsen, Atkins Danmark A/S
29 September 2015
3
29 September 2015 7
"The Rainbow Suite"
Svend Poulsen, Atkins Danmark A/S
Essential clauses
Detailed definitions
Consistent structure
CLEAR, COHERENT
FAIR, EQUITABLE
THIRD PARTY
COMPLETE, FLEXIBLE
RECOGNISED
Risk allocated to party best placed to control it, bear it, and deal with it
Drafted by consulting engineers who design and manage projects
Range covers most needs
Readily adaptable to fit requirements
29 September 2015 9
Positive FIDIC image
World-wide acceptance
Svend Poulsen, Atkins Danmark A/S
29 September 2015
4
Key FIDIC issues
29 September 2015 10
• 20 clauses in the different CoC
• same structure throughout the different set of conditions
• includes three parties: Employer, Engineer, Contractor.
• all defined terms are written with capital letters to make the interpretation of key words and terms exact
Principles of the FIDIC Conditions of Contract
Svend Poulsen, Atkins Danmark A/S
Intended for building and civil engineering works designed by (or on behalf of) the Employer . The Contract may require the Contractor to supply plant and/or execute some design
Administration by the Engineer (two options):a) the Engineer acts impartially when carrying out certain
actions, which include making pre-arbitral decisions; orb) the Engineer does not act impartially, and pre-arbitral
decisions are made by the Dispute Adjudication Board (DAB) jointly appointed by the Parties.
The Engineer certifies interim and final payments, (Bill of Quantities/Pricing Document)
29 September 2015 11
Conditions of Contract for Construction
Svend Poulsen, Atkins Danmark A/S
29 September 2015
5
Intended for building and civil engineering works designed by (or on behalf of) the Contractor . However, the Employer may have executed some design.
Administration by the Engineer (two options):a) the Engineer acts impartially when carrying out certain
actions, which include making pre-arbitral decisions; orb) the Engineer does not act impartially, and pre-arbitral
decisions are made by the Dispute Adjudication Board (DAB) jointly appointed by the Parties.
The Engineer certifies interim payments and certifies final payment
29 September 2015 12
Conditions of Contract for Plantand Design-Build
Svend Poulsen, Atkins Danmark A/S
Intended for EPC – Engineer, Procure, Construct – Contract, where the responsibility for the design lies solely with the Contractor in accordance with the Employer's RequirementsContactor carries out all engineering, procurement, construction providing a fully-equipped facility, ready for operation at the "turn-of-a-key"Administration by the Employer – unless if he appoints a RepresentativeLump sum Contract Price, interim and final payments as work proceeds, usually against a Schedule of Payments
Contractor takes the majority of risk (if not all)
29 September 2015 13
Conditions of Contract for EPC/Turnkey Projects
Svend Poulsen, Atkins Danmark A/S
29 September 2015
6
In the Contracts Guide for the Rainbow Suite the texts in the Books are reproduced in a three column lay-out
The comments in this Guide are not exhaustive and are only intended to provide general guidance
29 September 2015 14
The FIDIC Contracts Guide, First Edition 2000
The FIDIC DBO Contracts Guide, First Edition 2011
Svend Poulsen, Atkins Danmark A/S
The Participating Banks in the preparation of the MDB Harmonised Editions have mandated this edition in their Standard Bidding Documents for Works
The Harmonised Edition is used by:African Development Bank - Asian Development Bank - Black Sea Trade and Development Bank - Caribbean Development Bank - European Bank for Reconstruction and Development - Inter-American Development Bank -International Bank for Reconstruction and Development -Islamic Bank for Development - Nordic Development Fund
The MDB Edition is discussed and revised by FIDIC and the banks continuously to respond to the market needs
29 September 2015 17
Conditions of Contract for Construction,MDB Harmonised Edition
Svend Poulsen, Atkins Danmark A/S
29 September 2015
7
Intended for plant and for building and engineering works designed, executed and operated by the Contractor . However, the Employer may have executed some design.Administration by the Employer's Representative:
a) the Representative does not act impartially, and pre-arbitral decisions are made by the DAB jointly appointed by the Parties; or
b) the Representative certifies interim payments which may be specified in Schedules of Payments, the Asset Replacement Fund, and certifies final payment based on the lump sum Contract Price for Design-Build and Operation Service Period
An independent and impartial Auditing Body for the purpose to audit and monitor the performance of the Parties
29 September 2015 18
Conditions of Contract for Design Build and Operate Projects, First Edition 2008
Svend Poulsen, Atkins Danmark A/S
Conditions of Subcontract for Construction
The new form is compatible with the 1999 Editions of the Conditions of Contract (Construction, Plant and Design-Build, EPC/Turnkey and Design-Build and Operate)
Includes the latest provision of improvement and continuous development from the Design-Build and Operation form of Contract
29 September 2015 19Svend Poulsen, Atkins Danmark A/S
29 September 2015
8
� Client - Consultant� Representative� Sub-Consultant� Joint Venture
FIDIC model agreements for professionals services:
29 September 2015 20Svend Poulsen, Atkins Danmark A/S
29 September 2015 21
Procurement Procedures
"User friendly" guide book including:• Development of Project Strategy
• Procurement Management
• FIDIC Contract types described
• Prequalification
• Tendering Procedure
• Appendices giving more detailed guidance by use of flow charts
Svend Poulsen, Atkins Danmark A/S
29 September 2015
9
FIDIC Contracts - Translations
29 September 2015 22
English - French - Spanish - Portuguese - Arabic -German - Russian - Chinese (Mandarin) - Serbian -Croatian - Polish - Japanese – Czech?
Svend Poulsen, Atkins Danmark A/S
Key FIDIC Bookshop
29 September 2015 23
• Online purchase
• Electronic Editions
• Collections
• Contracts & Agreements
• Business Practice
• Guide to Practice Manual
• Risk Management
• Quality & Integrity Management
• Environment & Sustainability
Svend Poulsen, Atkins Danmark A/S
29 September 2015
10
Key FIDIC issues
29 September 2015 24
• the Engineer acts as an agent of the Employer
• the Engineer shall act fairly when deciding matters under the Contract
• to make the FIDIC CoC work properly it is paramount that the Engineer has a technical insight
• the basis for the FIDIC CoC is that the Engineer has a very important role in administering the Contract
• the Engineer shall make fair decisions
The Role of the Engineer
Svend Poulsen, Atkins Danmark A/S
Key FIDIC issues
• his authority is described in the Contract and he cannot amend the Contract
• the Engineer shall act impartially when carrying out certain actions, which include making determinations in accordance with sub-clause 3.5
• if any party is not satisfied with the Engineer’s determination, that party can raise the Engineer’s determination to a Dispute Adjudication Board (DAB)
29 September 2015 25
The Role of the Engineer
Svend Poulsen, Atkins Danmark A/S
29 September 2015
11
Key FIDIC issues
• FIDIC firmly believes that the way to handle project risk is one of fair risk sharing
• FIDIC finds this approach will lead to better and more successful projects
• allocating the risk to the Party that is best placed to control it and deal with it, will result in more efficient and effective risk handling
Reasonable Risk Sharing
29 September 2015 26Svend Poulsen, Atkins Danmark A/S
Key FIDIC issues
29 September 2015 27
Design – Bid - Build
Owner Retains risk
Contractor Assumes risk
Design - Build EPC/Turnkey
Risk Transfer
Risk Allocation
Svend Poulsen, Atkins Danmark A/S
29 September 2015
12
Sharing the Project Risk
29 September 2015 28
Employer's Risk
Contractor's Risk
Employer Specified Project
Employer 's Requirements for Plant, Design – Build
EPC/Turnkey
Employer's Control
Contractor's Control
Svend Poulsen, Atkins Danmark A/S
Key FIDIC issues
The Contractor has design obligations under
• the Plant and Design-Build CoC (The Yellow Book),
• the EPC Turnkey CoC (The Silver Book), and
• the Design, Build and Operate CoC (The Gold Book)
The Contractor obligation is to carry out the design in a way that ensures that the Works are fit for the purposes for which the Works are intended (see for instance P&DB scl. 4.1)
Design obligations of the Contractor
29 September 2015 29Svend Poulsen, Atkins Danmark A/S
29 September 2015
13
Key FIDIC issues
The Contractor's design obligations gives the Employer an very important obligation to describe the purpose of the Works in a very unambiguous and exact fashion
This is accomplished in the
Employer’s Specifications or
Employer’s Requirements
depending on which form of contract is used
Design obligations of the Contractor
29 September 2015 30Svend Poulsen, Atkins Danmark A/S
Key FIDIC issues
the Employer delivers the design and the Contractor is to execute the design
the Employer has transferred his vision and ideas for a Project to a set of drawings and specifications
the obligation of the Contractor is to execute the Works according to the Employer's design
the Contractor may have to do some minor design work
specifications and drawings must be precise and ensure that the Contractor firstly can price the Works and secondly can execute the Works
Employer's Specifications – using the FIDIC CoC for Construction (The Red Book)
29 September 2015 31Svend Poulsen, Atkins Danmark A/S
29 September 2015
14
Key FIDIC issues
Employer’s Requirements is the engineering documents and crucial to the success or failure of the Project
Writing Employer’s Requirements will often include the use of consulting engineers, architects and other advisors
It is essential that the Employer’s Requirements are written with clear references to the Conditions of Contract so that it is clear how the Contractor is required to fulfil his obligations
Employer's Requirements – using the Plant, Design-Build CoC, EPC/Turnkey CoC or Design-Build & Operate CoC
29 September 2015 32Svend Poulsen, Atkins Danmark A/S
Key FIDIC issues
The Employer’s Requirements must specify
• extent, purpose, scope, and/or
• design and/or
• other technical criteria for the Works
• but also give the Contractors as much freedom to design and plan the Works as possible
Employer's Requirements – using the Plant, Design-Build CoC, EPC/Turnkey CoC or Design-Build & Operate CoC
29 September 2015 33Svend Poulsen, Atkins Danmark A/S
29 September 2015
15
Key FIDIC issues
Design work will be complicated and extensive
The Employer must define what documents the Contractor shall prepare and describe when and how the Engineer's review will be performed
The Employer’s Requirements must include all matters expressly referred to in the Conditions of Contract,
but must not be in conflict or inconsistent as between disciplines, either directly or indirectly
Employer's Requirements – using the Plant, Design-Build CoC , EPC/Turnkey CoC or Design-Build & Operate CoC
29 September 2015 34Svend Poulsen, Atkins Danmark A/S
29 September 2015 35
This is where the seed for success is laid
Employer's Requirements
Svend Poulsen, Atkins Danmark A/S
29 September 2015
16
Key FIDIC issues
Requirements on quality and performance criteria shall not conflict with the Contractor’s fundamental obligation to provide the Works as “fit for purpose”
The Employer’s Requirements must be complete, but must not inhibit the Contractor’s freedom to innovate, nor compromise his liability for design
The Employer’s Requirements must be sufficiently detailed to define the purpose of the Project but must not limit the Contractor’s ingenuity in finding the best solution and doing the design
The Employer’s Requirements must not contain unrealistic expectations
Employer's Requirements – key thoughts
29 September 2015 37Svend Poulsen, Atkins Danmark A/S
FIDIC supports good project cooperationA fine basis for the projects to become successful
Trust the other Party
29 September 2015
17
Growing a good Project Spirit
The easy way to Success
29 September 2015 Svend Poulsen, Atkins Danmark A/S 64Svend Poulsen, Atkins Danmark A/S
World Trade Center 2 - Geneva Airport - PO Box 311 - CH-1215 Geneva 15Switzerland - Tel: +41 22 799 49 00/Fax:+41 22 799 49 01 - [email protected] September 2015 Svend Poulsen, Atkins Danmark A/S 65
29 September 2015
18
Thank you
If you’d like to find out more about Atkins visit:www.atkinsglobal.com
© Atkins Limited except where stated otherwise.
The Atkins logo, ‘Carbon Critical Design’ and the strapline ‘Plan Design Enable’ are trademarks of Atkins Limited.29 September 2015 66
Plan Design Enable