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13 Constr. Law. 1 (1993)

handle is hein.journals/conlaw13 and id is 1 raw text is: . ... . . * * SA .. .. ..I. .. Contractor's Claims under the FIDIC Civil Engineering Contract Christopher R. Seppala I. Introduction The Conditions of Con- tract for Works of Civil Engineering Construction, prepared by the Fdiration Internationale des Ing'n- ieurs-Conseil (the Condi- tions), are the only standard form of condi- tions of contract issued at the international level spe- cifically for civil engineer- ing construction. They are Christopher R. Seppala the most widely used stan- dard conditions for projects (building or civil engineer- ing) in which tenders are invited on an international basis. While frequently modified in practice and some- times criticized, they nonetheless constitute the norm or standard by which other forms of construction contracts used internationally are judged. So as far as standard conditions of contract for use internationally are con- cerned, the Conditions represent the state of the art. The Conditions derive from, and remain modelled on, a form of conditions of contract used for civil engineer- ing work in England, the Conditions of Contract of the English Institution of Civil Engineers (ICE Conditions). ' Thus, the Conditions incorporate, among other things, the traditional English contract system under which im- portant administrative and quasi-judicial powers are conferred on the person supervising execution of the works on the employer's behalf, the engineer (herein and in the Conditions called the engineer).2 While this system was exported from the United Kingdom in the nine- teenth century to countries of the former British Empire Christopher R. Seppala is a partner of White & Case, and was chairman of the Subcommittee on the FIDIC (Civil Engineering) Conditions of Contract of the SBL's Committee T (International Construction Con- tracts) from 1985 to 1989. In 1991, he became a member of FIDIC's Civil Engineering Contracts Committee. The views expressed herein are those of the author and do not necessarily reflect those of any other person or organization. (Canada, Australia, South Africa, etc.) and adopted in the United States, it remains fundamentally different from construction contract practices on the European continent, and elsewhere, where the powers of the con- tract supervisor, if any,3 are more attenuated and the authority of the employer (herein and in the Conditions called employer(s)) is commensurately greater. The occasion of a new, fourth edition in 19874 and the publication of an official FIDIC Guide to the Use of the Conditions (FIDIC Guide) in 1989 make it an opportune time, now that the fourth edition is entering into wide use, to review again the matter of contractor's claims under this form of contract.' Like the English contract conditions from which they derive, the Conditions confer important claim rights on the contractor. More than thirty different clauses pro- vide that the contractor may, in specified circumstances, be entitled to claim from the employer additional money or an extension of time for completion of the works, or both, if conditions change or differ from those existing or reasonably foreseeable at the date of tender. Unlike a fixed price contract, the Conditions allow, indeed they invite, claims from the contractor in speci- fied circumstances when unexpected events, such as un- foreseeable site conditions, occur. As the Conditions entitle the contractor to claim in specifically defined sit- (continued on page 33) Copyright © 1993 American Bar Association Produced by the ABA Press

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