International Construction Law Review
FIDIC DESIGN BUILD OPERATE—GLITTER OR GOLD?1
SAMANTHA LANDSBERRY
Solicitor, Clayton Utz, Sydney
1. INTRODUCTION
In 1999, the Fédération Internationale des Ingénieurs-Conseils (FIDIC) released its new “rainbow” of standard form international construction contracts; so called because of the memorable colour coding of each separate contract.
The new release overhauled the existing FIDIC suite. Where previously the various forms had been classified according to work type, FIDIC adopted a new division based on responsibility for design. It simplified language, layout and structure across the board, and eliminated meaningless variations between the forms in favour of a more standardised approach.
Since 1999, the FIDIC rainbow has grown, with new forms of contract being added to address Short Form, EPC/Turnkey and Dredging projects, and Client-Consultant agreements.
On the whole, the suite has been well received in the market, although its use in Australia has been limited due to the range of Australian standard forms with strong industry acceptance which pre-dated the FIDIC rainbow.2
In September 2007, FIDIC released, for comment and review, a Pre-Press Seminar Edition of the newest addition to the rainbow: Conditions of Contract for Design Build and Operate Projects (“the Gold Book”). A Contract Edition is due for publication in mid-2008.
The Gold Book builds on the foundation of the Yellow Book Conditions of Contract for Plant and Design-Build, First Edition 1999 (“the Yellow Book”), which is intended for electrical and mechanical plant and building and engineering works designed by the contractor.
This paper considers the perceived need for a form of Design Build Operate (“DBO”) contract in the FIDIC suite and the appropriateness of the Yellow Book as a base, and offers a critique of some of the key provisions. In particular, it analyses how successfully FIDIC has integrated
1 The author gratefully acknowledges the support, assistance and comments on the drafts provided by Doug Jones, AM, Partner, Sergio Capelli, Partner and Stuart Connor, Senior Associate, Clayton Utz. Any errors remain the responsibility of the author.
2 See generally J Hoyle, “The Rainbow Down Under—Part I: Some Reflections from the Antipodes on Aspects of the New FIDIC Design-Build Contracts” [2001] ICLR 5.
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