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You are the Contract Manager of the Engineer in a hotel project. In May 2020, the Employer and the Contractor signed a Contract based on the FIDIC Yellow Book (edition 2017), as per which the Contractor will design and build a hotel project with Contract Price of 5,100,000 USD. The Time for Completion for this project is 12 months (May 2021). The Contract also named a nominated Subcontractor (as referred to in Sub-Clause 4.5) who provides mechanical, electrical, and plumbing services for the project (including the fire fighting system), which was accepted by the Contractor without any discussions.

The Project was delayed due to issues with the fire fighting system, and you issued the Taking-Over Certificate in June 2022.

The Employer sent a Notice of Claim to the Contractor on Delay Damages with a maximum value equal to 10% of Contract Price (510,000 USD). The Employer also gave a Notice to the Contractor stating that the Contractor has failed to submit the evidence of payment to the nominated Subcontractor as well as the reason for withholding payment to the nominated Subcontractor. Therefore, the Employer has paid the nominated Subcontractor directly the entire amount due, coming to 100,000 USD. The Employer intends to include this amount as a deduction in the Final Payment to the Contractor.

As Contract Manager of the Engineer, you are tasked to make a fair determination of the Notices of the Employer. In your "Notice of the Engineer's determination", what is your determination for the deduction of the next Interim Payment to the Contractor in relation to the amount directly paid to the nominated Subcontractor?

A.

The Employer is entitled to deduct the amount directly paid.

B.

The Employer is not entitled to deduct the amount directly paid.

If a FIDIC Red, Yellow, or Silver Book (edition 2017) is applied, in which of the following two cases is the Contractor required to submit a revised programme?

Choose all of the correct answers (multiple possibilities).

A.

The Contractor shall revise the Programme only by request from the Engineer or the Employer (in case of FIDIC Silver Book).

B.

To accurately reflect the actual progress of the Works, but only if any Programme ceases to reflect actual progress with at least 42 days.

C.

To accurately reflect the actual progress of the Works, whenever any Programme ceases to reflect actual progress or is otherwise inconsistent with the Contractor's obligations.

D.

Upon a request from the Engineer (under FIDIC Red or Yellow Books) or Employer (under FIDIC Silver Book) notifying it that the Programme fails to comply with the Contract, to a specified extent, or no longer reflects actual progress or is otherwise inconsistent with the Contractor's obligations.

Choose which one statement consists of an example of an unclear and ambiguously drafted Particular Conditions.

A.

Provisions of the General Conditions are deleted and replaced in the Particular Conditions solely by the words "not used".

B.

All deletions of a General Conditions are replaced with new Particular Conditions that cover the same scope.

C.

Clarifications to the meaning of tender documents together with answers to tenderers' inquiries made during the tender period by the Employer should be e-mailed in a Excel table in both PDF and XLS file format.

D.

The clarifications to the Contract given during the tender period are never to be attached to the Contract, as such clarifications are reflected by amending the Particular Conditions.

A large sewage pump installation has been constructed under the FIDIC Yellow Book (edition 1999). Prior to commencement of the Tests on Completion, the Employer requires the Contractor to issue the Operation and Maintained Manuals. All contract documents are to be drafted in the English language as per Sub-Clause 1.4. However, the Employer discovers all documents are drafted in a different language: French. The Contractor explains that the territory where the Plant was constructed is a region with French as a second official language, as result of which, this approach is acceptable. This also works for the proposed maintenance company, which is Paris-based. The Employer is surprised and asks you what to do. Select the best fitting advice you should give the Employer.

A.

The Employer should check on the Appendix to Tender, Employer's Requirements and / or Particular Conditions. There could very well be specific requirements regarding the language in those. If that is not the case, the language of the Contract determined in Sub-Clause 1.4 and the language of the Operation and Maintained Manuals should in this case be English.

B.

If French is indeed an official second language of the region where the Plant is built, the Contractor is entitled to deliver the documents in French. The usability in terms of language is not described in Sub-Clause 5.7, so the Employer should accept the Operation and Mantained Manuals in French.

C.

Golden Principle no. 1 states: The duties, rights, obligations, roles and responsibilities of all the Contract Participants must be generally as implied in the General Conditions, and appropriate to the requirements of the project. In this case this means it is appropriate that the Operation and Maintenance Manuals are in French, as the maintenance is based in France.

D.

As the Contract is written in the English language, Sub-Clause 1.4 dictates that the Operation and Maintenance Manuals should be written in English as well.

You are the Contract Manager of the Engineer for a contract using FIDIC Yellow Book (edition 2017). You are drafting a notice holding the Commencement Date. Which one of the following approaches has the most clear and unambiguous drafting?

A.

I hereby give notice, in accordance with Sub-Clause 8.1 of the Conditions of Contract, the Commencement Date shall be 17 April 2023.

B.

The Contractor is kindly notified that the project shall be started by 17 April 2023.

C.

The commencement date of this project under Sub-Clause 8.1 of the Conditions of Contract will be 10 days from 7 April 2023.

D.

I hereby give notice, in accordance with Sub-Clause 1.1.84 and 8.2 of the Conditions of Contract, that the Time for Completion shall commence from 17 April 2023.

Under the FIDIC Red Book (edition 1999), as part of the Contractor submission of Statement, any amount to be deducted for retention, will be calculated by applying the percentage of retention stated in the Appendix to Tender to the total of: (two correct answers apply)

Choose all of the correct answers (multiple possibilities).

A.

The estimated contract value of the Works executed.

B.

Any amounts to be added and/or deducted for the advance payment and repayments under Sub-Clause 14.2.

C.

Any amounts to be added and deducted for changes in legislation and changes in cost.

D.

Any amounts to be added and deducted for Plant and Materials in accordance with Sub-Clause 14.5.

Which one of the following statements is correct regarding the Provisional Sum under the FIDIC Red, Yellow, and Silver Books (edition 1999)?

A.

The Provisional Sum cannot be issued by instruction either by the Engineer (or Employer in case of FIDIC Silver Book).

B.

The Contractor shall, when required by the Engineer, produce proof to substantiate how it has used the Provisional Sum.

C.

Each Provisional Sum shall not be used, in whole or in part, in accordance with instructions from the Engineer.

Regarding the FIDIC Silver Book (both editions), if a part of the Works is to be paid according to quantity supplied or work done, appropriate provisions must be included in the Particular Conditions. Is this statement true or false?

A.

True

B.

False

Which of the following cases will allow the Employer to claim under the Performance Security? [2017 Edition] (2 correct answers apply)

Choose all of the correct answers (multiple possibilities).

A.

The Contractor failed to renew the Tender Security.

B.

The Contractor abandons the Works and the Employer did not issue Notice of termination.

C.

The Employer had submitted a claim under Sub-Clause 20.2.

D.

The Engineer had issued instruction to replace part of the Works.

E.

The Contractor failed to extend the validity of the Performance Security.

Under the FIDIC Red Book (edition 2017), the Engineer has suspended works to come to a change of the design of a part of the Works. After expiry of 84 days of suspension, the Contractor gave notice thereof. Following this notice, the suspension was not lifted within 28 days. What two statements are correct in such a situation?

A.

Under the Contract the Parties cannot agree on further suspension and the Contractor may immediately terminate the Contract if it affects the whole Works.

B.

The Contractor cannot terminate the Contract.

C.

The Contractor may terminate the Contract if it affects the whole Works, but only after it has given a second notice to the Engineer.

D.

The Contractor may omit the affected part of Works and deny to carry out such Work going forward, but only after it has given a second notice to the Engineer.