FIDIC Blue Book 2016 - Some observations

The FIDIC Form of Contract for Dredging & Reclamation Works has been in existence for some 14 years from its first edition, the 2nd edition came out in 2016. A useful webinar discussing the 2nd edition is available here and a review is available here

Some of my thoughts and observations.

The Contract Data is the key section where key contract specifics are detailed. In the Notes for Guidance, it is assumed that the parties just print the FIDIC hard copy and fill in the details by hand. This never happens in practice. It would have been handy if FIDIC had published the Contract Data section in WORD or amendable PDF format to allow the parties to fill in the details. As it is, the entire FIDIC document is in fixed PDF format. This does not make the contract drafters life easy at all.

The Agreement page assumes a simple offer and acceptance. Again this never happens in practice, however, it is easy for parties to come up with their own Form of Agreement and many parties often do this.

In the Notes for Guidance, there is no comment about possible issues surrounding applicable law and the issues which may arise as to the use of FIDIC Blue Book in a civil law jurisdiction, so, for instance, civil law definitions of force majeure compared to FIDIC Blue Book's "Exceptional Event". There is also a potential issue with respect to the use of a dispute adjudication board as espoused in the FIDIC Blue Book there are jurisdictions in which adjudication of construction disputes is subject to statutory adjudication such as in the United Kingdom, Australia, Singapore, Malaysia as examples.

The payment provisions and regime as to when a due or reference date and payment arises also need to be checked as some jurisdictions have mandatory time periods for both. Advice from a local lawyer should be sought when FIDIC Blue Book is intended to be used in such jurisdictions.

From a number of contract reviews that I have carried out I have observed that a number of client lawyers feel the need to make extensive amendments and omissions to the FIDIC Blue Book General Conditions by way of Particular Conditions. These can run to many pages and significantly alter the balance of risk which the FIDIC Contracts Committee sought to achieve. It begs the question then if the contract is a 'true' FIDIC Blue Book. This is a fact recognised by FIDIC in their Golden Principles and their advice to users not to amend core clauses.

Whilst I have mentioned some potential issues the FIDIC Blue Book is, on the whole, a well thought out contract which addresses most, if not all, of the key issues which may befall dredging and reclamation projects. Very often, bespoke contracts (i.e. non-standard contracts) are drafted by lawyers for clients when neither have any in-depth knowledge or experience of the project requirements and the potential issues which need to be addressed. If a client is either advised or feels the need for a bespoke contract then I would suggest comparing it against the FIDIC Blue Book and checking how the potential Defined Risk issues listed in FIDIC Blue Book Clause 6.1 are dealt with.