WEBINAR

The FIDIC 2017

Suite of Agreements

Presenter: Vincent Leloup

FIDIC Contracts Committee

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PROGRAMME

1. FIDIC 2017 SUITE OF AGREEMENTS

ROOTS & HISTORY

2. FIDIC 2017 WHITE BOOK MAIN FEATURES

3. FIDIC WHITE BOOK MAIN CHANGES

2017 vs 2006

4. FIDIC 2017 SUB-CONSULTANCY AGREEMENT

5. FIDIC 2017 JV AGREEMENT

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 WEBINAR

The FIDIC 2017 Suite of Agreements

ROOTS AND HISTORY

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FIDIC White Book recent history

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History of other FIDIC Agreements

The Joint-Venture Agreement
(1st Ed. 1992)
For consulting firms bidding & implementing
services agreements in JV or Consortium

Sub-Consultancy Agreement
(1st Ed. 1992)

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FIDIC 2017 Suite of Agreements

Client

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Guides

Guide to the Joint-Venture and

Consultancy Agreement (1st Ed. 1994)

White Book Guide

(2nd Edition 2001)

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For Consultants contracting a Representative

The Model Representative

Agreement (2013)
Following a Test Edition in 2004

For consulting firms willing to

contract the services of a
business representative

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 WEBINAR

The FIDIC White Book 2017

MAIN FEATURES

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Main features of the 2017 White Book
 Agreement is in force as of the Effective Date – date of latest signature of the
Agreement
 Consultant performs the Services which are stated in Appendix 1 as of the

Commencement Date, and shall complete those within the Time for Completion.
 Consultant shall proceed in accordance with the Programme, which is to comply
with requirements stated in Appendix 4 and which it submits within 14 days from
Commencement Date
 Excusable delays are defined and can provide for an EoT
 Standard of performance/care is reasonable skill, care and diligence, although
function & purpose of Services is taken into account
 Client liable for information provided to Consultant, who is under duty to review it
and promptly notify of any adverse finding
 Client may have to provide services, personnel or goods as listed under Appendix 2
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Main features of the 2017 White Book

 Services are subject to possible Variations

 Exceptional Events (formerly referred to as Force Majeure) excuse Parties of
performing their obligations
 Client is to pay the Consultant as per the details stated in Appendix 3
 Any disputed amount in a Consultant’s invoice shall be notified by Client within 7
days of the invoice issue date. Otherwise payment is due.
 Failure to pay amounts due to the Consultant as per the Agreement is ground for
Consultant’s suspension of Services, and possibly termination of the
Agreement
 Client can suspend & terminate at will, and terminate for breach of material term
or condition of the Agreement by the Consultant
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Main features of the 2017 White Book

 Liability of one Party to the other is limited to the reasonably foreseeable losses
that are directly flowing from a breach
 Liability is also limited to a cap, and in time
 Consultant is to take out and maintain a PI insurance and a public liability
insurance, plus any mandatory insurance according to applicable law
 Any dispute is to be first referred to senior representatives of the Parties for an
attempt of amicable settlement
 If it fails, adjudication is the next recourse and arbitration (default: ICC Rules) is the
final tier of dispute resolution
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Main features of the 2017 White Book

Typical use of the 2017

White Book
Consultant acting
as Engineer under
a Works Contract

Consultant
delivering
Consultant
technical
acting as
assistance,
designer for a
project
Design-Build
management or
Contractor
advisory
services

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Time line under the White Book 2017

Effective Date SC 3.3.1 Perform the Services with Completion of

of the
reasonable skill, care and diligence
Agreement the whole of
Commencement
Time for Completion the Services Cl. 8.2
Cl. 4.1 Date of Date
latest signature of the Services of the Services
SC 1.1.24 Duration of liability
As set out under the PC
Cl. 4.5 Cl. 4.4
As per PC /
Default: 14 d Consultant’s non-excusable as may be amended for
delays = Client’s Notice for Consultant’s excusable delays
SC 1.1.5 acceleration of rate of progress
Delay damages
KD1
KD2 Possible key dates
Appendix 4 But failure to meet the Time for
KD3
Completion is a breach of the
14 d Client’s objection Agreement => Consultant liable for
=> resubmit general damages at law
Programme 14 d
SC 4.3.1
No objection = Possible audit of Consultant’s records
SC 4.3.2 proceed Cl. 7.6

Payment as per Cl. 7.1 and Appendix 3 [Remuneration and Payment]

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FIDIC TRAINING COURSE

The FIDIC White Book 2017

Main changes
against the 2006 Edition

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Main changes against the 2006 Edition
General provisions
Clarification of the order of precedence of Agreement documents (Cl. 1.15 and Form of Agreement)

Formal notification imposed for a wide range of events, under a specified format (SC 1.1.19, 1.1.26 and Cl. 1.3)

Change in Legislation – reference date is now the one of the Consultant’s offer/proposal (Cl. 1.5)

Concept of Exceptional Costs introduced (SC 1.1.12) i.e. those incurred by the Consultant and flowing from an event giving rise to a
Consultant’s entitlement. This contrasts with the payment for regular Services (SC 7.1.1 and Appendix 3)

Intellectual Property – difference in between Background IP and Foreground IP (Cl. 1.7)

Additional anti-corruption representations and warranties (Cl. 1.10)

Joint & several liability of Consultant’s JV Members towards Client (Cl. 1.11)

Amendment to Agreement only in written form (Cl. 1.12)

Parties to act in good faith and in a spirit of mutual trust (Cl. 1.16)
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Main changes against the 2006 Edition
The Client
Information that Client is able to obtain and which pertains to the Services = to be provided by
Client with due regard to the Programme (SC 2.1.1)
Responsibility for errors, omission and ambiguity in Client’s information = rests with Client, and to
be corrected by Client – possible Variation (SC 2.1.3)

Duty of care of the Consultant in reviewing Client’s information (SC 2.1.2)

The Consultant
Performs Services as per scope in Appendix 1 / No more Additional and Exceptional Services =>
only Services which are subject to Variations (Cl. 5), and possibly Exceptional Costs incurred

Function and purpose of Services to be taken into account by Consultant (SC 3.3.2) but that does
not amount to a fitness-for-purpose obligation
Construction administration provisions (Cl. 3.9) – typically when the Consultant acts as engineer,
employer’s representative or project manager under a Works Contract
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Main changes against the 2006 Edition
Time management
Consultant to provide a Programme for the performance of Services, in accordance with Appendix
4, and to proceed accordingly (Cl. 4.3)
Express grounds for extension of the Time for Completion, with possible corresponding
compensation for Exceptional Costs (Cl. 4.4)
Client empowered to instruct acceleration of rate of progress of the Services when delayed for
Consultant’s culpable reasons (Cl. 4.5)
Concept of Exceptional Event introduced, which replaces « changed circumstances »: similar approach
as FIDIC Gold Book, superseding the Force Majeure concept under the 1999 FIDIC Contracts

Variations to Services
A dedicated full new Clause (Cl. 5)
Variations initiated following the issue of a Variation Notice (SC 5.1.1) / Consultant bound by
Variation unless it notifies that it does not possess the relevant skills/resources to perform it, or it
substantially changes the extent of nature of the Services (SC 5.1.4)
Value of Variation to be agreed before Variation proceeds, but if not possible/practicable to do so
Client can instruct commencement => Consultant compensated on a time-spent basis as per
Appendix 3 (Cl. 5.2)
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Main changes against the 2006 Edition

Suspension / Termination
A dedicated full new Clause (Cl. 6) / a process now much further detailed and stream lined

Additional cause for suspension of Services by Consultant – failure by Client to satisfy the
requirements of Clause 2.4 on Employer’s financial arrangements (SC 6.1.2 (c))

Services to resume once cause for suspension ceases (Cl. 6.2)

Effects of suspension detailed, with possible entitlements to extension of Time for Completion and
compensation for Exceptional Costs incurred (SC 6.3.3)
5 grounds for Client’s termination are expressly laid down, with different effects prescribed
depending on termination event (SC 6.4.1 and Cl. 6.5)
5 grounds for Consultant’s termination are expressly laid down, with different effects prescribed
depending on termination event (SC 6.4.2 and Cl. 6.5)
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Main changes against the 2006 Edition
Liabilities
Parties are liable for their breaches of the Agreement (SC 8.1.1) – that is stating the obvious, but is
expressly stated so as to stress the difference with the 2006 WB which introduced a difficulty in this
respect (Consultant only liable if in breach of his duty of care)

Dispute resolution
Mediation is now replaced by adjudication as second-tier of dispute resolution under Cl. 10.2
/ Arbitration remains the third and final tier of dispute resolution under Cl. 10.4
Rules for Adjudication have been inserted under Appendix 5 – they follow the FIDIC Green Book
(1999) approach – ad’hoc adjudication, 56 days from a dispute referral for the adjudicator to issue
his/her decision

Each Party bears its own cost in adjudication, but adjudicator empowered to decide on the
payment apportionment of his/her own fees (SC 10.2.2. and Rule 17 for Adjudication)

Reflection of FIDIC’s view on adjudication decisions – they are binding even if challenged by
either Party, unless and until revised in arbitration / Failure to comply with a decision can be
referred to arbitration (SC 10.5.1)
 FIDIC TRAINING COURSE

The FIDIC Sub-Consultancy Agreement

2017 Edition

STRUCTURE & MAIN FEATURES

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FIDIC Sub-Consultancy Agreement - Structure
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Main features of the 2017 Sub-Consultancy Ag.
 Back-to-back philosophy for obligations of the Consultant (towards the Client
under the White Book) which are subcontracted to the Sub-Consultant
 Similar structure as the FIDIC White Book, and, to a very large extent, similar
(sometimes identical) wording

 2 drafting options were available

1. Using a « mutatis mutandis » approach with the FIDIC White Book 2017,
whereby obligations are stated to be the same as in WB, with WB Client being
replaced by SCA Consultant, and WB Consultant by SCA Sub-Consultant

 Pro: General Conditions are then short and limited to the specificities of
the Sub-Consultancy Agreement
 Con: The Sub-Consultancy Agreement can only be used if the Client /
Consultant Agreement is drafted based on the FIDIC White Book 2017
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Main features of the 2017 Sub-Consultancy Ag.

 2 drafting options were available

2. Or using a « repeat » approach whereby the FIDIC WB 2017
obligations would be replicated to a large extent in the SCA (with WB
Client being replaced by SCA Consultant, and WB Consultant by SCA
Sub-Consultant), with specific Sub-Consultancy provisions to be added
 Pro: The Sub-Consultancy Agreement becomes autonomous from
the White Book, and can be used even if the White Book is not
used as in between the Client and the Consultant
 Con: General Conditions become more extensive in text

The repeat approach was finally selected, for the sake of a wider
use of the SCA even in context where the WB is not used
FIDIC TRAINING COURSE

The FIDIC Model Joint-Venture

(Consortium) Agreement

STRUCTURE & MAIN

FEATURES
 JV Agreement 2nd Edition – 2017
Designed for unincorporated JV, where a
JV of firms acts as Consultant under a Services
Agreement such as the White Book
Structure:
• Agreement General Conditions (24)
• Appendices 1 to 9
1. Particular Conditions – Part A (References/Agreement Data)
+ Part B (Additional or Amended Clauses) – prevailing on GC
2. Financial Administration Services
3. Allocation of the obligations
4. Financial Policy and Remuneration
5. Steering Committee
6. Project Director
7. Project Manager
8. Cross Guarantee and Indemnity Agreement
9. Code of Conduct
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Main features of the 2017 JV Agreement

 Suitable for unincorporated JV (Consortium) i.e. where the JV Members are

forming an association for the implementation of a Services Agreement with a Client,
but are not willing to establish a legal entity for doing so.
 All JV Members are meant to be jointly and severally liable towards the Client
(see SC 14.1, and FIDIC White Book SC 1.11.2)

 JV Agreement promotes an integrated team approach to achieve satisfactory

completion of Services to a Client
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Main features of the 2017 JV Agreement

 JV Agreement is meant to be established as early as before the preparation of a

Proposal to Client – contractual exit route is provided in case the Proposal is not
successful (see SC 13.1)

 JV Agreement sets out:

 the allocation of responsibilities in between the JV Parties,
 their respective financial Shares
 The management framework in between the Members, through a Steering
Committee
 Detailed contractual machinery for handling a defaulting Member
 Dispute resolution provisions
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Thank you for your attention

Q&A

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