Notices under FIDIC Red, Yellow, and Silver 2017 Editions Part 2

This is part 2 in a multi-part addendum to our previous series on notices under FIDIC Silver Book 2017. This post will focus on some major changes to Clauses 4 and 5 in the Red and Yellow Books.

New Notices in the Red Book

Other new notice provisions in the Red Book include Sub-Clause 4.4.2 (As-Built Records) and Sub-Clause 4.4.3 (Operation and Maintenance Manuals). Both the As-Built Records and Operation and Maintenance Manuals shall be submitted for review, and the work shall not be considered to be completed for the purpose of taking over until the Engineer has given (or is deemed to have given) a notice of No Objection under Sub-Clause 4.4.1 (Preparation and Review).

New Notice in Red & Yellow Books

In both the Red and Yellow Books, Sub-Clause 4.7.2 (Setting Out Errors), if the Contractor finds an error in any items of reference, he shall give a notice to the Engineer describing it:
• within the period stated in the contract data (if not stated, 28 days) from the commencement date,
• or as soon as practicable after receiving the items of reference.
After receiving this notice from the Contractor, the Engineer shall proceed under Sub-Clause 3.7 (Agreement or Determination) to agree or determine as stated in Sub-Clause 4.7.3 (Agreement or Determination of Rectification Measures, Delay and/or Cost) in the Red and Yellow Books.
According to Sub-Clause 4.9.1 (Quality Management System), the Engineer may review the QMS and may give a notice to the Contractor stating the extent to which it does not comply with the contract. Within 14 days after receiving this notice, the Contractor shall revise the QMS to rectify such non-compliance.
If the Engineer fails to give notice within 21 days of the date of submission of the Quality Management System, the Engineer shall be deemed to have given a Notice of No Objection.
In the Red and Yellow Books, Sub-Clause 4.12.1 (Contractor’s Notice) requires the Contractor to give a notice to the Engineer as soon as practicable after discovery of unforeseeable physical conditions with details and its adverse effect on the progress and/or increase in cost.
As stated in the Red and Yellow Books Sub-Clause 4.12.2 (Engineer’s Inspection and Investigation), the Engineer shall inspect or investigate the physical conditions within seven days, or a longer period agreed with the Contractor, after receiving the notice.
According to Sub-Clause 5.1 of the Red Book and Sub-Clause 4.4 of the Yellow Book (Subcontractors) where the Contractor is required to obtain the Engineer’s consent to a proposed Subcontractor, the Contractor shall submit the details of such a Subcontractor and the Engineer shall respond within 14 days by giving a notice of his objection to the proposed Subcontractor. Otherwise, the Engineer is deemed to have given consent.

Differences in Notices
In the Silver and Yellow books, Sub-Clause 5.4 (Technical Standard and Regulations), references in the Contract to published standards shall be the edition applicable on the base date unless stated otherwise. If changed/ new applicable standards come into force in the country after the base date, the Contractor shall promptly give a notice to the Employer and submit proposals for compliance. Such a clause is not applicable in the Red Book.

Moving on to Sub-Clause 5.8 (Design Errors) in the Silver and Yellow Books. If errors, omissions, ambiguities, or other defects are found in the Contractor’s design and/or documents, they and the works shall be corrected in accordance with Sub-Clause 7.5 (Defects and Rejection).

If such Contractor’s documents were previously the subject of a notice of No Objection given by the Employer under Sub-Clause 5.2.2 (Review by Employer), the provisions of Sub-Clause 5.2.2 shall apply as if the Employer had given a notice that the Contractor’s document fails to comply with the Employer’s requirements. This provision is not applicable to the Red Book.

This guest post was written by Mansoor Ali, FICCP and Jishma Joy. This post was originally published as two LinkedIn videos, viewable here and here. The next post will focus on Clauses 10 and 11. The previous post can be read here.

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