ame seminars seminar on fidic and edf 1

386 Pages·2012·2.57 MB·English

by  Mike Tilbury

AME SEMINARS
SEMINAR ON FIDIC AND EDF
1 – 2 MARCH 2012, INTERCONTINENTAL HOTEL, NAIROBI
Welcome and Introduction
Day 1 09:00
Speaker: SIMON DELVES
In association with
AME SEMINARS
SEMINAR ON FIDIC AND EDF
1 – 2 MARCH 2012, INTERCONTINENTAL HOTEL, NAIROBI
Key Note Address – Keso Msita
Day 1 09:10
Speaker: KESO MSITA
In association with
GENERAL COMMENTS
• Commend the organisers of this seminar
• It is an honour and privilege on my part being required to give
introductory remarks at the commencement of the seminar
• Intend to give some perspectives with respect to the use of FIDIC
contracts
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GENERAL COMMENTS
• FIDIC conditions of contracts are the mostly used standard conditions
internationally
• They are equally mostly used for major infrastructure projects within the
region
• The ever growing interest on their use in our region is partly an
outcome of the demand by multilateral funding agencies and also lack
of such comprehensive conditions of contracts in many jurisdictions
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FEATURES WITH RESPECT TO PROJECT IMPLEMENTATION
• The quality of pretender information upon which tender/contract
documents are prepared has not been encouraging
• Thus, poor tender/contract documents are encountered which reflect as
poorly prepared projects
• These result into variations, additional works , and claims and disputes
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FEATURES WITH RESPECT TO PROJECT IMPLEMENTATION
• A number of employers are not familiar with FIDIC contracts
• Not all contractors are familiar with FIDIC contracts
• In the region, we are witnessing an influx of contractors who are not
familiar with FIDIC contract management features and procedures; and
indeed some employers also have the same weaknesses
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ROLE OF THE ENGINEER NOT WELL UNDERSTOOD
• FIDIC’S traditional approach has been to give authority to an independent
and skilled third party called the engineer, in order to ensure projects are
well managed and for holding a fair balance between the parties
• Unfortunately, employers expect the engineer to solely work as their agent.
The situation is partly an outcome of the requirement for approval from the
employer prior to giving decisions on contractual matters
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SOME ISSUES OF CONCERN
• Wrong amendments made to standard forms, that mutilates the envisaged interdependence
of provisions and severely tempers with the envisaged risk sharing policy
• In one Design and Build case, involving six contracts, major employer’s risks were shifted to
contractors; a number of credible contractor’s did not tender as a result. Almost all projects
encountered problems
• In certain situations amendments are not done in spite of the situation demanding so.
Example is that of an un amended arbitration clause in a contract between a government
agency and a local contractor that required disputes to be referred to the International
Chamber of Commerce in Paris
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SOME ISSUES OF CONCERN
• The definition of ‘cost’ is not understood and its implication with respect
risk sharing policy
• That it excludes profit on matters which are beyond the control of both
parties
• Where profit is payable, that is explicitly provided for and it will be an
outcome of a default the employer
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SOME ISSUES OF CONCERN
• Price fluctuation clause is wrongly applied
• Wrong indices are equally used
• As a result, employer’s find themselves have to pay more than they
should
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