Giorgiana Teccuci Aisha Nadar

Transcription

1 Giorgiana Teccuci Aisha Nadar

2 Role of the Consulting Engineer in the Context of the New Yellow Book & its Dispute Board Provisions

3 Agenda The FIDIC Contracts The Consulting Engineer and their role What is the Engineer s role during each phase of the construction project? The role of the Engineer under the new Yellow Book [2017 Edition] Engineer s role in dispute avoidance and resolution Selecting based on quality The Agreement

4 The FIDIC Standard Forms First standard form of contract published in 1957 The original Red Book Developed for civil engineering works in the international field Two party Contract [Employer, Contractor] Three Party execution Employer Contractor Engineer,» Employed by Employer» Designer» Impartial, quasi-arbitral role during contract execution

5 The FIDIC Contracts for Works Red Book Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, 1 st Edition 1999 Yellow Book Conditions of Contract for Plant and Design Build, for Electrical and Mechanical Plant, and For Building and Engineering Works, Designed by the Contractor, 1 st Edition 1999 Silver Book Conditions of Contract for EPC/Turnkey Projects, 1 st Edition 1999

6 The Engineer and His Role The Consulting Engineer Relates to intellectual contributions connected with the design of the plant, the preparation of projects and the supervision of the work Supply of intellectual services The Role Procurement Design Contract administration Dispute avoidance and resolution

7 Procurement FIDIC Procurement Procedures Guide, 2011 Covers the path from identifying a need to appointing a contractor Establishing what is to be procurement Deciding on a procurement strategy Soliciting and evaluating tenders Awarding contracts

8 FIDIC s Procurement Guide Takes a multi-disciplined approach to best practice procurement of engineering projects Not confined to procurement of civil engineering projects Focuses on pre-tendering process Focus on establishing a procurement strategy upfront Engineer the Employer s trusted advisor in project preparation

9 Design Responsibility Red book Engineer on behalf of the Employer responsible for detailed design Yellow and Silver books Contractor responsible for detailed design 4.1 The Contractor shall design, execute and complete the Works in accordance with the contract When completed, the works shall be fit for the purposes for which the Works are intended (emphasis added)

10 Contract Administration A full professional service by a Consulting Engineer to a Client for a project comprises five main stages, as follows: 1. investigation and report 2. detailed design and preparation of contract documents 3. arranging a contract 4. services-during-construction 5. acceptance of Works, commissioning of systems, and resolution of final account. (fidic.org/node/753)

11 The Engineer under the new Yellow Book [2017] SC 3.2 Engineer s Duties and Authority The Employer shall appoint the Engineer, who shall carry out the duties assigned to him in the Contract.

12 The Engineer Duties in the Context of the new Yellow Book [2017] Proactive contract administration The Engineer s role in claims process robustly defined Engineer obligated to undertake formal and structured communication Notice as defined term Engineer s obligations in early warning The Role of the Engineer Disputes Dispute avoidance

13 Proactive Contract Administration New Yellow Book [2017] Claims separated from disputes Clause 20: Employer s and Contractor s Claims Clause 21: Disputes and Arbitration Focus on the Engineers positive duty in determination of Claims Clause 20 and Clause 3 provide clear definition of: Actions required Time limits

14 Proactive Contract Administration New Yellow Book [2017] Formal and Structured Communication The Engineer shall give a Notice. SC 1.3 a Notice, it shall be identified as a Notice and include reference to the Sub-Clause of these Conditions under which it is issued.

15 Proactive Contract Administration New Yellow Book [2017] SC 8.4 Advance Warning Proactive duty the Engineer shall endeavor to advise the Parties, in advance of any known or probable future events or circumstances which may: (a) adversely affect the work of the Contractor s Personnel; (b) adversely affect the performance of the Works when completed; (c) increase the Contract Price; and/or (d) delay the execution of the Works or a Section (if any).

16 The new Yellow Book [2017] and Dispute Avoidance and Resolution Decision making Engineer: Determine Claims Dispute avoidance Engineer s duty under Consult to reach agreement Engineer to attend site visits (new DAB rules)

17 The Engineer under the new Yellow Book [2017] SC 3.1 The Engineer The Engineer (or, if a legal entity, the natural person appointed to act on its behalf) shall be: (a) a professional engineer having suitable qualification, experience and competence in the main engineering discipline (or, if there is more than one, in at least one of the main engineering disciplines) applicable to the Works; and (b) shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law and Language ]

18 Selecting the Engineer Based on Quality The Principles Selection of firms for A/E services on the basis of Demonstrated competence qualifications Fair and reasonable fee negotiated An exception to the government's reliance on awarding contracts to lowest bidder A precursor to the 1990s trend to move to best value procurement

19 Selecting the Engineer Based on Quality The Rationale Public procurement of constructed facilities involves billions of euros ROI highly dependent on A/E services feasibility studies design operation and maintenance. Quality of the A/E services determine what the life cycle cost

20 Selecting the Engineer Based on Quality The Results Provides the public with quality, cost effective and efficient A/E services on projects that stand the test of time Fosters a true public-private partnership that stands as a model for how government and private sector can work together to enhance the built environment Tried and tested by the US Government since 1972

21 Selecting the Engineer Based on Quality The Mechanics Two levels of selection criteria Primary: Used for selection Specialized experience and technical competence Professional qualifications Past performance Capacity Familiarity with locality/site conditions Secondary: Used as tie-breaker Money considered at the right time Competence of selection board Negotiation amongst equals Procurement and technical competence required

22 Consulting Engineering Agreements One Client service agreement for entire project life-cycle Contract for services for part of the project Series of contracts, successively concluded Provides more flexibility to parties Each of the parties has the right to refuse to conclude a contract relating to the subsequent project stage FIDIC recommends engagement of full professional services Provides continuity from inception to completion of a project (fidic.org/node/753)

23 Consulting Engineering Agreements Client/Consultant agreement used to define the consulting engineer s role in the project Must clearly and precisely describe all tasks and functions entrusted to the Engineer Ensure back-to-back alignment with duties required under FIDIC Yellow book Include provisions of technical, financial and legal character The new FIDIC White Book