The second editions of the FIDIC Yellow, Red and Silver Books are now on sale:
There are a number of new tricks for users of the 1999 vintage to learn. At the front of the queue (for example, in the Yellow Book) are the strict new definition (1.1.56) and clause (1.3) dealing with Notices. A Notice is a written communication that must be identified as a Notice (1.1.56) and issued in compliance with clause 1.3. A monthly progress report or a programme or supporting report, will not be good enough (4.20 and 8.3). Another form of communication must be identified as such and refer to the relevant contract provision(s), where appropriate (see 1.3(b)). And the Contractor’s Quality Management System (4.9.1) is now expressly required to contain procedures that “ensure” that all Notices and other communications can be traced “with full certainty” to the relevant Works, Goods, work, workmanship or test.
An Employer or Contractor submitting a Notice of Claim under re-modelled clause 20 must therefore not only be sure to be in time (20.2.1), but also be very careful to check that the Notice complies with the new requirements.
In addition, there is the separate, amended, obligation (8.4) to give advance warning of any known or probable future event or circumstance that might:
• adversely affect the work of the Contractor’s Personnel; or
• the performance of the completed Works; or
• increase the Contract Price; or
• cause delay; although there is no express time or money sanction for non-compliance in assessing a Contractor’s entitlement.
And if the “statement of the contractual and/or other legal basis of the Claim” is not filed, with the other items in the “fully detailed Claim” to be submitted within 84 days (unless otherwise agreed) after the claimant becomes aware, or should have become aware, of the claim event or circumstance, the Notice of Claim is deemed to have lapsed, unless the Engineer fails to give the required confirmatory Notice or the late submission is successfully justified (see 20.2.4).