International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
This issue of the International Construction Law Review
, the first for 2008, contains articles addressing a broad range of topics. The first article in this issue is by one of our Swiss Correspondents, Hubert Stoeckli, Professor at the University of Fribourg, Switzerland (page 4), which tells the interesting tale of some of the issues arising from the tender process for the construction of new railway tunnels in the Swiss Gotthard region as part of the New Transalpine Rail Links project to modernise Swiss rail infrastructure. The article outlines the disputes surrounding the process, including two successful appeals by the unsuccessful tenderer, before the contract was finally concluded after the third award to the winning consortium. Professor Stoeckli examines in detail selected issues, including the interlocutory remedies awarded by the Board of Appeals, the tendering method employed by the owner known as the “guillotine” method, and the issue of pricing variants between the contemplated pricing model and that tendered by the consortia and the admissibility of these variants in administrative review of the decision to award the tender.
The next article deals with the topical subject of the new addition to the FIDIC rainbow: the Gold Book for Design, Build and Operate (DBO) projects (page 14). Christopher Wade, who was the Chairman of FIDIC’s Contracts Committee 1999–2006, begins by outlining the work of the Task Group that drafted the Gold Book, including some early drafting choices. Considerations of the structuring of projects to be operated and maintained by the owner/employer or the contractor are then discussed, which lead into an overview of the new Gold Book and its key provisions and issues. This includes a discussion of the risk and insurance clauses in the contract that represent a change to the traditional FIDIC approach due to the significant difference between risks in the Design-Build period and risks in the Operation Service Period of a DBO project. The restructured claims clause also receives treatment by Wade, with the article concluding by outlining the advantages of the DBO form and extolling the benefits that the new FIDIC Gold Book can bring to such projects.
This is followed by an analysis by Franco Mastrandrea of “What Makes a Sound Quantum Analyst?” (page 28), which examines the role of a financial appraiser of construction claims and some of the conceptual skills required to be successful in that role. The article identifies detailed skills required of a quantum analyst in the area of costs, highlighting that those from different conceptual backgrounds (for example, law, economics, architecture) will bring differing considerations into play, exploring whether there is a more appropriate background for a quantum analyst, and exposing some of the difficulties faced by a quantum analyst in making determinations. Mastrandrea then outlines a detailed approach to the evaluation performed by quantum analysts, including issues of “no loss”
The International Construction Law Review
[2008
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