Comparison Of Key Risk Allocation - FIDIC Red/Yellow/Silver/Emerald Books PDF

Comparison of Key Risk Allocation - FIDIC Red/Yellow/Silver/Emerald Books Issue Red (2017) Yellow (2017) Silver (2017) Emerald (2019) Remeasure  Lump-sum  Lump-sum  BQ included as a "Schedule". Quantities produced by Employer & rates by Contractor    BQ must be produced in accor...

Comparison of Key Risk Allocation - FIDIC Red/Yellow/Silver/Emerald Books Issue Red (2017) Yellow (2017) Silver (2017) Emerald (2019) Remeasure  Lump-sum  Lump-sum  BQ included as a "Schedule". Quantities produced by Employer & rates by Contractor    BQ must be produced in accordance with SMM identified in CD (12.2); errors in the BQ effectively 'corrected' No BQ. MAY be a "Schedule of Rates and Prices" for valuing Variations. If not, Variations valued as "Cost Plus Profit" (13.3.1) Same as Yellow except no option to have "part of the Works" remeasured or sample provision in Guidance Notes, as there is in the Yellow  Remeasure of price for "Excavation & Lining Works" using BQ. Lump-sum for other Works (13.8.4) Quantity Risk  (Lump-sum or Remeasure)   re-rate after threshold of quantity & cost change (12.3(b))  BQ may include 'lump-sum items'  Lump-sum Option: Guidance Notes contain provision to convert to a full lump-sum approach, same as Yellow. No option for partial remeasure. Also mentions the option of a 'Cost Plus Profit' approach, but no sample provision.  Quantities in SRP "used for the purposes stated", ie NOT 'corrected', just used for valuing Variations and optionally interim payments (14.1 (d))  Remeasure of time for completion for Underground Works using Schedule of Baselines (13.8.3)  BQ for ELW included in "Schedule of Rates and Prices". Quantities produced by Employer & rates by Contractor Remeasure Option: for "part of the Works", but Special Provisions needed (14.1). Sample provision in Guidance Notes, same as the Red provision  BQ must be produced in accordance with SMM identified in CD (13.8.1); errors in the BQ effectively 'corrected'  no general re-rating due to quantity change (13.8.2) BUT "time related items" & "value related items" have a similar effect Interim Payment (measure and  Option of a "Schedule of Payments". Default assumption is that the instalments in any SOP are "defined by reference to the actual progress Graham Shuttleworth, 11 December 2019  Default is a "Schedule of Payments". Default assumption is that the instalments in the SOP are "defined by reference to the actual  Same as Yellow  'measure & value' for the ELW  option of a "Schedule of © Issue Red (2017) value or Schedule of Payments) achieved", but wording to deal with if they are not (ie date triggers) (14.4)  Cost Risk (ie extent of Contractor design and who takes risk in design) Silver (2017) progress achieved", but wording to deal with if they are not (ie date triggers) (14.4) Emerald (2019) Payments" for other Works. Ambiguity whether this can cover ELW If no SOP, Special Provisions needed to deal with interim payment. Given there is already a measurement provision for the Contract Price, it is common to make use of this and adopt a 'measure and value' approach. BUT this is NOT a default approach written into the General Conditions   Fixed price UNLESS "Schedule of cost indexation" included, in which case 13.7 applies. No indicator in CD  Same as Red  Same as Red  Same as Red  Any SCI normally based on formula - sample in Guidance Notes. Normally does not give full protection, in which case Contractor risk  Contractor designs Permanent Works to the extent specified. To that extent, Works need to be fit for purpose (4.1, 5th para)  Design and build (5.1). Fit for purpose (4.1)  Full design and build (5.1). Fit for purpose (4.1)  Employer's disclaimer for errors in the Employer's Requirements is more limited than in the Silver. 1.9 provides cost/time relief for some errors. BUT Letter of  Employer not responsible for accuracy of the Employer's Requirements and any other information or data supplied by it, except certain 'rely upon  Contractor only designs the Works ‘to the extent specified in the ER’ (5.1). However, full ‘fit for purpose’ obligation remains as in YB (4.1) (fixed price or fluctuation) Design Risk Yellow (2017)  Other design is provided by Employer. Contractor gives notice of any other drawing required from Graham Shuttleworth, 11 December 2019 If no SOP, Special Provisions needed to deal with interim payment. There is no measurement provision in the GC to use for a 'measure and value' approach. Guidance Notes contain sample provision for measure and value, with Contractor to submit a "Bill of Principal Quantities for the Permanent Works". PRELIMS/TW in PW rates  addition of "Milestones" as both a payment trigger and completion obligation  If no SOP for other Works, Special Provisions needed to deal with interim payment.  Contractor may not be © Issue Red (2017) Employer and entitled to EOT/Cost Plus Profit if provided late     Yellow (2017) Silver (2017) information' (5.1), and except loss/damage to the Works (17.2 (c)). 17.2 is weaker in this respect for Employer than Red/Yellow. Arguably this conflicts with 5.1 Tender stronger and has priority  Contractor has limited obligation to check the Drawings and Specification for errors in settingout information (2.5/4.7.2), with time/cost relief for certain errors Contractor liable for loss to the Works due to Employer design error (including in Drawings/Spec) if an experienced contractor exercising due diligence would have discovered pre-Tender (17)  "Contractor's Proposal" forms part of the Contract. No specific obligation to comply with it as there is in Yellow, but "execute the Works in accordance with the Contract" will capture this. No provision dealing with risk of an error in CP. Spec/Drwgs priority over CP   Contractor liable for loss to the Works due to Employer design error (including in ER) if an experienced contractor exercising due diligence would have discovered pre-Tender (17) "Contractor's Proposal" forms part of the Contract and needs to be complied with (4.1, 3rd para). No provision dealing with risk of an error in CP. ER priority over CP Design review by the Engineer does not reduce the Contractor's risk for design error (5.8 and 3.2, 5th para.) Guidance Notes: Employer's Requirements "may include an outline design...not intended for use…[where] detailed design provided by Employer"    Contractor's Proposals not specifically incorporated into Contract, but captured by definition of "Tender" Design review by the Employer does not reduce the Contractor's risk for design error (5.8) Guidance Notes: Employer's Requirements "may include an outline design...not intended for use…[where] detailed design provided by Employer" Emerald (2019) fully responsible for methods of construction some ambiguity (4.1). Gets additional time/payment due to changes in method of construction for ELW through remeasure (4.24)  1.9 applies as in YB, but extended to cover GBR. Letter of Tender also extended to cover GBR  17 applies as in YB, but has more significance as Contractor design obligation is less  Contractor’s Proposal obligation same as YB  3.2 and 5.8 apply as in YB Guidance Notes: "Contractor constructs in accordance with design of Employer";"Contractor may be required to design a small proportion or minor element of the Permanent Works…not intended for use where significant design input by the Contractor is required" Graham Shuttleworth, 11 December 2019 © Issue Red (2017) Yellow (2017) Silver (2017) Emerald (2019) Site conditions risk   same as Red   extra provision for Cost/EOT claim for some ‘errors in the Employer’s Requirements’, which may include information about the Site (1.9) Employer must make available all information in its possession on the conditions at the Site (2.5)  Contractor responsible for verifying and interpreting Employer’s information (4.10)  Employer must make available all information in its possession on the conditions at the Site, including GDR and GBR (2.5)   Employer must make available all information in its possession on the conditions at the Site (2.5) Contractor responsible for interpreting Employer’s information and obtaining own further information (4.10) Contractor gets EOT/Cost (and if necessary a Variation) for Unforeseeable physical conditions at the Site (4.12)  Contractor responsible for Unforeseeable difficulties or costs (4.12)  4.10 applies as in the Red EXCEPT deemed to have relied on ‘subsurface physical conditions and ground reactions described in the GBR’  4.12 applies as in the Red EXCEPT impact of ‘conditions described in GBR’ is dealt with under 13.8, ie remeasure for price/time  1.9 applies as in the Yellow, but also covers the GBR Limits on Liability  neither Party liable for loss of profit or consequential loss except: delay damages, omission by Variation, termination for c onvenience/Employer default & some indemnities (1.15)  total liability of Contractor limited to ACA or amount in Contract Data, with some exceptions  duration of defects liability not limited to DNP, but Plant limited to 2 years after end DNP (11.10)  general carve-outs: fraud, gross negligence, deliberate default, reckless misconduct (1.15 &11.10) Graham Shuttleworth, 11 December 2019 ©