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Guidance Notes and Checklist For The Preparation of Tender Documents Under The FIDIC Yellow Book - 2017
Guidance Notes and Checklist For The Preparation of Tender Documents Under The FIDIC Yellow Book - 2017
Guidance Notes and Checklist for the Preparation of Tender Documents under the FIDIC
Yellow Book, 2nd Edition 2017
In December 2017 FIDIC has launched the 2nd Edition of the FIDIC Conditions of Contract
for Plant and Design-Build [the FIDIC Yellow Book, 2nd Edition, 2017].
This FIDIC Yellow Book is a suitable basis for the procurement of design and build duties
to a Contractor where the scope of Works is aimed at achieving fitness of the Works for a
[defined] purpose as defined by the Employer.
FIDIC advises FIDIC users that the tender documents should be prepared by suitably
qualified engineers who are familiar with the technical aspects of the required works and
the particular requirements and contractual provisions of a design-build project.
Furthermore, a review by suitably qualified lawyers is advisable.
The Instructions to Tenderers 1may need to specify any constraints on the completion
of the Contract Data and/or Schedules, and/or specify the extent of other information
which each tenderer is to include with his/her Tender. If each tenderer is to produce a
tender security and/or a parent company guarantee, these requirements should be
included in the Instructions to Tenderers: example forms are included at the end of this
publication.
The Instructions to Tenderers may require the tenderer to provide information on the
matters referred to in some or all of the following Sub-Clauses:
The Yellow Book Notes on the Preparation of Tender Documents advise users that the
documents which should normally be included in the tender documents, shall be those as
follows:
The tender documents issued to tenderers should normally include the following:
Letter of invitation to tender
Instructions to Tenderers (including advice on any matters which the Employer
wishes tenderers to include in their Tenders but which do not form part of the
Employer’s Requirements)
Form of Letter of Tender and required appendices (if any)
Conditions of Contract: General and Particular
General information and data
Technical information and data (including the data referred to in Sub-Clause 2.5
[Site Data and Items of Reference] of the General Conditions)
the Employer’s Requirements
Schedules (and perhaps drawings of outline design) from the Employer
details of schedules and drawings and other information required from tenderers
required forms of agreement, securities and guarantees.
Usually a Yellow Book based Contract comprises the documents referred to in Sub-Clause
1.5 such as:
1
The Instructions are not intended to form part of the Contract
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The above documents shall include the data and information which are necessary in
order to implement a design&build construction project. The Employer may or will
provide some of the data or information under the Contract, meaning after Contract
award, such as:
However, most of the required data shall be included in one of the documents forming
part of the Contract2. The General Conditions of Contract list most of those data. For the
publication of the FIDIC Yellow Book the General Conditions were prepared on the
following basis:
The terms of the Conditions of Contract for Plant and Design-Build have been
prepared by the Fédération Internationale des Ingénieurs-Conseils (FIDIC) and
are recommended for general use for the procurement (including design,
manufacture, delivery and installation) of plant, and for the design and execution
of building or engineering works, where tenders are invited on an international
basis.
Each time period stated in the General Conditions is what FIDIC believes is
reasonable, realistic and achievable in the context of the obligation to which it
refers, and reflects the appropriate balance between the interests of the Party
required to perform the obligation, and the interests of the other Party whose
rights are dependent on the performance of that obligation. If consideration is
given to changing any such stated time period in the Special Provisions (Particular
Conditions – Part B), care should be taken to ensure that the amended time
period remains reasonable, realistic and achievable in the particular
circumstances.
The Introduction to the Guidance for the preparation of Special Provisions state:
Modifications to the General Conditions may well be required to account for local
legal requirements, particularly if they are to be used on domestic contracts.
Under the usual arrangements for these types of contract, the Contractor is
responsible for the design and provision of plant, and/or the design and execution
of building and/or engineering works, in accordance with the requirements of the
Employer. These Conditions allow for the possibility that the Employer may
include (in the Employer’s Requirements) an outline design for the Works, but
they are not intended for use where the Contractor is to construct the Works in
accordance with a detailed design provided by the Employer. In this latter case, it
2
See the list in the Contract Agreement and in Sub-Clause 1.5
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The Letter of Tender as defined in Sub-Clause 1.1.51 means the letter of tender,
signed by the Contractor, stating the Contractor´s offer to the Emplyoer for the
execution of the Works.
FIDIC suggests using the template of the Letter of Tender, which is included in the
attached “Forms” (of the FIDIC Yellow Book). The Letter of Tender should include the
FIDIC suggests using the template of the Letter of Acceptance, which is included in the
attached Forms (of the FIDIC Yellow Book). The Letter of Acceptance should include
the following data and information:
FIDIC advises users that there are a number of Sub-Clauses in the General Conditions
which require data to be provided by the Employer and/or the Contractor and inserted
into the Contract Data (Particular Conditions – Part A). However, and this a novelty
under the 2nd Edition, there are no Sub-Clauses in the General Conditions which require
data or information to be included in the Special Provisions (Particular Conditions – Part
B).
The General Conditions of Contract require the following data to be included in the
Contract Data [formerly the “Appendix to Tender”]:
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for purpose
19.2.3 Period of insurance required for liability for
breach of professional duty
19.2.4 Amount of insurance required for injury to
persons & damage to property
19.2.6 Other insurances required by Laws and by
local practice
21.1 Time for appointment of DAAB
21.1 The DAAB shall comprise
21.1 List of proposed members of DAAB3
Proposed by Employer
Proposed by Contractor
21.2 Appointing Entity
The checklist in the example form of the Contract Data referred to above is neither
exhaustive nor limitative. The Contract Data may include either less or more data than
included in the checklist. For instance the Instructions to Bidders may require the
Contractor to submit further information to the Employer:
The Table of Adjustment Data4 as recommended in the Guidance Notes for the
Preparation of Particular Conditions should include:
Coefficients
Cost indices or reference prices
Values of the indices (quoted in the fourth and fifth columns respectively of the
table)
Source of index
Country of origin
In accordance with Sub-Clause 13.7 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
3
The Contract language in Sub-Clause 21.1 suggests “one” list to form part of the Contract Data. However, it is
submitted that each Party is invited to include a shortlist. The Contract language does not specify the number
of proposals. For practical reasons each Party should suggest not less than three names.
4
Unlike Sub-Clause 13.8 FIDIC 1999 Sub-Clause 13.7 FIDIC 2017 does not include the full wording. It must be
adopted form the Guidance Notes.
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by the Engineer. For this purpose, reference shall be made to the values of the indices at
stated dates (quoted in the fourth column 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.
The Tender Documents and Notes on the Preparation of Special Provisions provide
important advice to drafters of contract documents, in particular the Employer’s
Requirements and Special Provisions. FIDIC advises that in drafting Special Provisions, if
clauses in the General Conditions are to be replaced or supplemented and before
incorporating any example wording, Employers are urged to seek legal and engineering
advice in an effort to avoid ambiguity and to ensure completeness and consistency with
the other provisions of the contract.
The Introduction to the Guidance for the preparation of Special Provisions state:
Modifications to the General Conditions may well be required to account for local
legal requirements, particularly if they are to be used on domestic contracts.
Under the usual arrangements for these types of contract, the Contractor is
responsible for the design and provision of plant, and/or the design and execution
of building and/or engineering works, in accordance with the requirements of the
Employer.
The Notes on the Preparation of Special Provisions show some of the Sub-Clauses in the
General Conditions which may need amending to suit the needs of the project or the
requirements of the Employer. The selected Sub-Clauses and the example wording are
included as examples only. They also include, as an aide-memoire, references to other
documents such as the Employer’s Requirements and the Contract Data, where
particular issues may need to be addressed.
The FIDIC Guidance Notes as published by FIDIC are intended to assist drafters of the
Special Provisions (Particular Conditions – Part B) by giving options for various sub-
clauses where appropriate. In some cases example wording is included between lines,
while in other instances only an aide-memoire is given.
It is worth to emphasize in line with what FIDIC has included in the Guidance Notes:
FIDIC strongly recommends that the Employer, the Contractor and all
drafters of the Special Provisions take all due regard of the five FIDIC
Golden Principles:
GP1: The duties, rights, obligations, roles and responsibilities of all the
Contract Participants must be generally as implied in the General
Conditions, and appropriate to the requirements of the project.
GP2: The Particular Conditions must be drafted clearly and
unambiguously.
GP3: The Particular Conditions must not change the balance of
risk/reward allocation provided for in the General Conditions.
GP4: All time periods specified in the Contract for Contract Participants to
perform their obligations must be of reasonable duration.
GP5: All formal disputes must be referred to a Dispute
Avoidance/Adjudication Board (or a Dispute Adjudication Board, if
applicable) for a provisionally binding decision as a condition precedent
to arbitration.
Unlike the under the 1st Edition 1999 the General Conditions of Contract do not require
data or information to be included in the Special Provisions (Particular Conditions – Part
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B). However, the General Conditions of Contract leave it sometimes to the Parties to
agree on specific items as follows
Employer´s Requirements
The Notes on the Preparation of Tender Documents and Notes on the Preparation of
Special Provisions provide important advice to drafters of contract documents, in
particular the Employer’s Requirements and Special Provisions.
It should be noted that under the General Conditions for Plant and Design-Build, the
Contractor is responsible for plant and design and provision of plant, and/or the design
and execution of building and/or engineering works, in accordance with the requirements
of the Employer. These Conditions allow for the possibility that the Employer may include
(in the Employer’s Requirements) an outline design (in other words the outline of
performance specifications) for the Works, but they are not intended for use where the
Contractor is to construct the Works in accordance with a detailed design provided by the
Employer. In this latter case, it is recommended that the Employer consider using
FIDIC’s Conditions of Contract for Construction, Second Edition 2017. This advice should
be taken seriously because design specifications can only be modified by Variations which
are frequently more expensive than under FIDIC’s Conditions of Contract for
Construction, Second Edition 2017 because the adjustment of the Contract Price will
reflect mark ups for the increased risk under eth design and build approach.
The General Conditions of Contract require or suggest the following data to be included in
the Employer´s Requirements:6
5
In principle the relevant data shall be included in the Contract Data; however additional wording may be
appropriate.
6
However, it may also be necessary under other Sub-Clauses for the Employer to give specific information in
the Employer’s Requirements (for example, under Sub-Clause 7.2 [Samples]).
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7
The specification of „purpose“ and the definition of suitable and appropriate performance specifications based
on an outline design are key for the success of a design and build project.
8
Sub-Clause 4.7 refers to Sub-Clause 2.5 which in itself refers to the Employer´s Requirements
9
The current wording refers to „Specifications” which do not exist under the FIDIC YB.
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It follows from Sub-Clause 5.1 (b) Silver Book 2nd Edition 2017 that the definition of
intended purpose of the Works is a key responsibility remaining with the Employer.
The Notes on the Preparation of Tender Documents in the FIDIC Silver Book state:
It follows from Sub-Clause 5.1 (c) Silver Book, 2nd Edition 2017, that the definition of
criteria for testing and performance of completed Works is a key responsibility remaining
with the Employer.
Training requirements may lead into difficult situations. Sub-Clause 5.5 Yellow and Silver
Book as well as Sub-Clause 10.5 in the Gold Book refer to (further) training specifications
in the Employer´s Requirements. From the legal point of view the Contractor may
become excused from any liability since the result depends in part on Employer´s
sending the staff and personnel to the training sessions, on those staff and labour skills
and on their attentiveness at the sessions (see article 5.1.5 Unidroit Principles).
However, it is quite obvious that an express carve out, as the Employer´s responsibility,
may be wise. At least clear requirements as to the skills and education of staff and labour
to be trained are a helpful and effective means of carving out unreasonable risk and
responsibility.
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The General Conditions of Contract require or suggest the following data to be included in
the Contract (without reference to a specific contract document):
Contractor´s Proposal
The Contractor's Proposal” meaning pursuant to Sub-Clause 1.1.17 the part of the
Tender stated or implied as being the Contractor’s proposal for execution of the Works,
as included in the Contract. It shall or may include:
The Employer’s Requirements should describe the tests which the Contractor is to carry
out before being entitled to a Taking-Over Certificate. It may also be appropriate for the
Contractor’s Proposal to include detailed arrangements, instrumentation, etc.
Schedule of Payments
The General Conditions of Contract require or suggest the following data to be included in
the Schedule of Payments [Sub-Clause 1.1.73].
Sub-Clause 13.4 provides that „the sum for overhead charges and profit, calculated as a
percentage of these actual amounts by applying the relevant percentage rate (if any)
stated in the applicable Schedule“.12
It is worth to note that the Schedule of Payments does not necessarily constitute a
Contract document. Rather it is intentionally included, if appropriate.
Further advice on Payment Schedules is available in the FIDIC Yellow Book Guidance
Notes.
10
See Guidance Notes at Clause 9.
11
See Guidance Notes at Clause 12
12
Sub-Clause 13.4 adds that if nothing is indicated, the percentage rate stated in the Contract Data shall be
applied.
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Sub-Clauses 1.1.63 and 9.1 refer to the Schedule of Performance Guarantees. Unlike
under FIDIC 1999 [in respect of the former “Schedule of Guarantees”] , the General
Conditions of Contract specify what shall be included in the Schedule of Performance
Guarantees.
Pursuant to Sub-Clause 12.4 Performance Damages may only become due if applicable
Performance Damages are set out in the Schedule of Performance Guarantees. Hence the
Schedule must indicate the relevant applicable Performance Damages if the Works fail to
pass the tests.
Daywork Schedule
Schedule of Quantities
FIDIC advises users in the Guidance Notes (at Clause 14) as follows:
The Plant and Design-Build Contract does not address measurement and evaluation but
provides a lump sum Contract Price. In a summary
the Contract Price shall be the lump sum Accepted Contract Amount and be
subject to adjustments in accordance with the Contract
any quantities set out in a Schedule are estimated and are not to be taken as
actual and correct
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any quantities or price data set out in a Schedule shall be used for the purpose
stated in the Schedule
However, if any part of the Works shall be measured the Particular Conditions may
include a clause headed Measurement and Evaluation. The relevant Sub-Clause in the
Particular Conditions should specify the part of the works to be measured and evaluated
for payment and the method of measurement according the Bill of Quantity / Schedules
shall be stated. Also the evaluation procedures the rules for omission of any work
forming part of a Variation should be addressed.
The Guidance for the Preparation of Particular Conditions includes further detailed
guidance on how to introduce measurement provisions.
If the wording from the Guidance Notes was adopted the following data and information
would be required:
If major parts of the Works shall be re-measured it might become appropriate to adopt a
further Sub-Clause like Sub-Clause 12.3 Red Book. The above amendment as suggested
in the Guidance do not address changes in quantities and remedies for changes in
quantities. Also it might then be wise to adjust Sub-Clause 13.3 Yellow Book regarding
the evaluation of Variations which are related to parts of the Works which shall be
measured.
Other Notes:
FIDIC advises users in the Guidance Notes for the Preparation of Particular Conditions
[Clause 1] that the opening words of Sub-Clause 1.1 mean that the definitions apply, not
only to the Conditions of Contract, but to all the documents of the Contract. Therefore,
the Employer should take care (particularly when drafting the Employer’s Requirements)
and the Contractor should take care (particularly when drafting the Contractor’s
Proposal) to use terms in accordance with those as defined in the definitions.
13
The FIDIC proposal in the Guidance Notes for the Preparation of Particular Conditions does not refer to
details.
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