Appendices

Appendix A

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Appendix A Conditions of Contract for Plant and Design-Build (1999) (P & DB) The Yellow Book
The P & DB Conditions of Contract are intended for use where the Contractor designs and provides, in accordance with the Employers requirements, fully functional plant and other works which may include architectural, civil, mechanical, electrical or other works. The Employers requirements, which are to be provided with the Invitation to Tender, have to be precisely defined if future claims concerning the scope and quality of the Works are to be avoided. Not only is the Contractor responsible for design of the Works, but he also carries primary responsibility for the commissioning of the Works (including training of the Employers or end-users operational staff). In addition he will also be required to provide extensive documentation including as-built documents and operation manuals. The Red Book, CONS form of contract requires that the Works are to be valued by a process of admeasurement based on a Bill of Quantities. In contrast, P & DB contracts are based on a lump sum (The Accepted Contract Amount), which for evaluation purposes is to be broken down into convenient smaller lump sums. Occasionally hybrid P & DB contracts are encountered, which provide for some of the Works to be evaluated by reference to a Bill of Quantities and other parts to be valued as lump sums. The Employer risks the possibility that the Contractors designer may not be overly concerned at the possibility of quantity overruns. Those clauses of the P & DB contract that are amended from CONS, primarily as a consequence of the Contractors design and commissioning responsibilities, are commented upon below.

Sub-Clause 1.5 Priority of Documents

The Employers Requirements are given a lower priority than both the General and Particular Conditions of Contract, but have a higher priority than the Contractors Proposal provided with his tender.

An Employers and Engineers Guide to the FIDIC Conditions of Contract, First Edition. Michael D. Robinson. 2013 John Wiley & Sons, Ltd. Published 2013 by John Wiley & Sons, Ltd.

Appendix A

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Appendices

Sub-Clause 1.9 Errors in Employers Requirements

The consequences of any oversight made by the Contractor in the preparation of the Contractors Proposal are to the account of the Contractor. The Contractor is required to demonstrate that there was an error in the Employers Requirements if he intends to notify a claim under this sub-clause. A review of tender correspondence (including Questions and Answers exchanges) is likely to be a factor in adjudicating the validity of any Contractors claim. Evidently the Engineers responses to tender queries are to be clearly and comprehensively expressed.

Sub-Clause 4.6 Co-operation

The Contractor is required to coordinate the activities of other contractors and to the extent specified in the Employers Requirements. If there are important consequences, these should be evaluated in the preparation of the Programme.

Sub-Clause 5.5 Training Sub-Clause 5.6 As-Built Drawings Sub-Clause 5.7 Operation and Maintenance Manuals
These three activities are closely interconnected and their preparation and execution can be time-consuming. Adequate time for these activities must be allowed in the preparation of the Programme. Both the Employer (Sub-Clause 5.5 Training) and the Engineer (Sub-Clause 5.6 As-Built Drawings and Sub-Clause 5.7 Operation and Maintenance Manuals) will be involved in the timely completion of these tasks.

Sub-Clause 9.1 Contractors Obligations

The following Tests on Completion are specified: pre-commissioning tests (dry tests) commissioning tests (operational tests) trial operation (group or full load tests). The Contractor is required to give 21 days notice of the intended date of executing these tests. There is a linkage to Sub-Clauses 5.5, 5.6 and 5.7. In particular it is important that the Employers staff are involved in the performance of these tests as part of their training programme.

Appendix A

Appendix A

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Sub-Clause 11.2 Remedying Defects

This sub-clause makes the Contractor responsible for not only the consequences of faulty design or sub-standard Plant, Material or workmanship, but also for any improper operation or maintenance which was attributable to matters for which the Contractor is responsible (under Sub-Clauses 5.5 to 5.7 or otherwise). Consequently the Contractor is responsible for any faulty operation or maintenance by the Employer if a failure arises as a consequence of any failure of the Contractor to fulfil the requirements of Sub-Clauses 5.5 5.7.

Sub-Clause 12.0 Tests on Completion

Reference may be made to the summary quoted in Sub-Clause 9.1 above. This sub-clause deals with the execution of the Tests on Completion and with the remedies available to a Party in the event of a failure of the other Party to comply.

Sub-Clause 13.1 Right to Vary

The detailed definition of a Variation given in CONS is replaced with a simple statement that either the Engineer or the Contractor can initiate a Variation. Further explanation can be found in the FIDIC Contracts Guide.

Sub-Clause 14.1 The Contract Price

The Contract Price shall be the lump sum Accepted Contract Amount and is subject to adjustments in accordance with the Contract. The Works, once completed, are not required to be re-measured or re-evaluated.

Appendix A