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In many projects one of the significant risks is that of changed Site and Ground
conditions. The starting point is the responsibility for supply of information
Clauses 4.10 and 4.11 are the relevant provisions in the Red and Yellow Book.
Clause 4.10 requires the Employer to have made available, 28 days prior to the
latest date for submission of the Tender, all relevant data in his possession on
sub-surface conditions at the Site. The Contractor is only responsible for
interpreting the data. Under Clause 4.11(b) the Contractor is deemed to have
based the Contract amount on such data, and in the case of the Yellow Book any
further data relevant to the Contractor's design. This effectively means that the
Employer warrants the accuracy of the information he has provided
Under Clause 4.10 the contractor is also deemed to have obtained all necessary
information as to risks which may influence or affect his Tender or the Works.
He is deemed to have inspected and examined the Site and other available
information. However, these "deeming" provisions are limited to the extent that
the investigation by the Contractor is practicable, taking into account cost and
time
Clause 4.12 defines the allocation of risk forchanged ground which in the Red
and Yellow Books follows the traditional forseeability test. The Employer
carries the risk of physical condition which could not have reasonably been
foreseen by an experienced contractor by the date for submission of the Tender.
Physical Conditions is defined as both natural physical conditions as well as
man-made and other physical obstructions and pollutants. The definition
excludes climatic conditions, but includes hydrological conditions
The Green Book (Short Form) is silent on the matter of supply of information.
Clause 6.1 defines the Employer's risks which include changed ground . Subclause 6.1(b) includes as an Employer's risk any operation of the forces of
nature affecting the Site and/or the Works which were either unforeseeable or
against which an experienced contractor could not reasonably have been
expected to take precautions. Sub-Clause 6.1(e) defines as the Employer's Risks
physical conditions or obstructions other than climatic conditions where were
not reasonably foreseeable by an experience contractor
The Silver Book adopts a different approach. The Employer is required to have
made available to the Contractor all relevant data in the Employer's possession
on hydrological and sub-surface conditions at the Site. The Contractor however
is responsible for verifying as well as interpreting the data. There is therefore no
warranty by the Employer of the accuracy of the information
The Silver Book allocates all the risk of changed ground conditions to the
Contractor. Clause 4.11 provides that the Contractor is deemed to have satisfied
himself as to the sufficiency of the Contract Price, and states that it covers all
things necessary to design, execute and complete the Works. Clause 4.12
provides that the Contractor accepts responsibility for having foreseen all
difficulties and costs of successfully completing the Works.
Controversially the Silver Book at Clause 5.1 also passes to the Contractor
One of the features of the new forms is the stringent notice provisions. Under
the Red, Yellow and Silver forms, Clause 20.1 requires the Contractor to give
notice as soon as practical, and not later than 28 days after the event or
circumstance giving rise to the claim for extension of time or additional
payment. Within 42 days of the event or circumstance the contractor is required
to submit a fully detailed claim with full supporting particulars
If the event or circumstance has a continuing effect then the Contractor is
required to send further claims at monthly intervals giving the accumulated
delay and/or amount claimed. The final claim is to be sent within 28 days after
the end of the effects
The Contractor is only entitled to payment for such part of the claim as he has
been able to substantiate. If the Contractor fails to comply with the provisions,
then there will be no entitlement to extension of time nor to additional payment
In the Red and Yellow Books any notice for unforseen physical conditions is
required to described the physical conditions so they can be inspected by the
Engineer, and set out the reasons why the Contractor considers them to be
unforeseeable
None of the FIDIC forms adopt an "exhaustive remedy" clause, so the absence
of notice may not cause the contractor to lose all entitlements, but clearly will
have a significant effect on the administration of the contract.
Impossibility
The FIDIC forms have kept the impossibility provisions found in many standard
forms
The new Red, Yellow and Silver Books at Clause 19.7 release the parties from
further performance if any event or circumstance outside the control of the
Parties make it impossible or unlawful for either or both parties to fulfill its
obligations
The Green Book at Clause 1.1.14 goes further and defines "Force Majeure" as
any event or circumstance which makes performance of a Party's obligations
illegal or impracticable and which is beyond that Party's reasonable control.
Clause 13.2 allows the Contractor to suspend the execution of the Works but
only "if necessary". If the event continues for a period of 84 Days then either
Party may give notice of termination
Design Liability
A significant feature of all the new forms is that the Contractor has a fitness for
purpose obligation for any design which is his responsibility
The new Red Book at Clause 4.1(c) makes the Contractor responsible for any