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Presentation to the Danish Society for Construction and Consulting Law Mark Roe 29 September 2011.

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Presentation on theme: "Presentation to the Danish Society for Construction and Consulting Law Mark Roe 29 September 2011."— Presentation transcript:

1 Presentation to the Danish Society for Construction and Consulting Law Mark Roe 29 September 2011

2 Topics covered The latest developments on the FIDIC form of contract Partnering and Framework contracts using the NEC form PPP opportunities globally

3 FIDIC Latest Developments Latest Contracts –Gold Book –Sub Contract Form –MDB Form

4 The Gold Book FIDIC published a Guide to the Gold Book this summer Contrary to expectation, the Gold Book was not extended to brownfield sites The Gold Book therefore still applies only to greenfield sites FIDIC has stated its intention to publish a separate document for the brownfield scenario

5 The Gold Book - Notices Amendment to Clause 20.1 –A dilution of the notice provisions –Allows the contractor to refer a notice to the DAB if it has given notice out of time “if the Contractor considers there are circumstances which justify the late submission, he may submit the details to the DAB for a ruling. If the DAB considers that, in all the circumstances, it is fair and reasonable that the late submission be accepted, the DAB shall have the authority to overrule the relevant 28-day limit and, if it so decides, it shall advise the Parties accordingly.” (extract from Clause 20.1(a))

6 New Yellow Book FIDIC are due to publish a new version of the Yellow Book sometime in 2012 So far there are no hints about what form the amendments might take; however –It is likely that the Yellow Book 2012 will include the recent change made to the Gold Book; namely the dilution of the notice provisions in Clause 20.1 –It might seek to address criticisms that certain provisions do not work in a civil law environment

7 The Sub Contract Form - 2009 A new form with amendments is to be published in the near future (FIDIC say 2 October 2011 at FIDIC Davos conference) Overall Philosophy is a pass through of risk from Contractor to Sub Contractor –Cl 1.1. Definitions in main Contract adopted in Sub Contract –Cl 1.3. Where Main Contract Provisions apply to Sub Contract, Sub Contract Clauses are to be interpreted as if amended appropriately –Cl 1.8 Sub Contract adopts Law and Language of Main Contract

8 The Sub Contract Form - 2009 Cl 2.1 Sub Contractor deemed to have knowledge of Main Contract Cl 2.2 Sub Contractor assumes all liabilities of Main Contractor, subject to exceptions for matters such as –Security –Access –Services

9 The Sub Contract Form - 2009 Pass Through Continued No provision that Sub Contractor will not place Main Contractor in breach in performing its Sub Contract Works

10 The Sub Contract Form - 2009 Clause 2.4 Contractor will take all reasonable steps to secure for Sub Contractor like –Benefits –Rights –Entitlements That Contractor has under Main Contract But, Pay when Paid Provisions of Cl 14.6 limit its effect

11 The Sub Contract Form - 2009 Co ordination and Co operation Cl. 3.5 Contractor to co ordinate other Sub Contractor Cl. 6.1Sub contractor has duty to co operate and allow access to others Cl. 8.4 If Sub Contractor is late Contractor can order acceleration at Sub Contractor’s Cost.

12 The Sub Contract Form - 2009 Termination –Cl 15.1 Optional Termination if Main Contract terminated –Sub Contractor entitled to: Contract Value Termination Costs Lost Profit –Subcontractor entitled to immediate payment if Contractor terminated for cause unless Sub Contractor caused termination.

13 The Sub Contract Form - 2009 If Main Contract terminated –for Force Majeure, or –Continued Suspension Pay when Paid Cl 15.6 Contractor may also terminate on any of Main Contract Grounds

14 The Sub Contract Form - 2009 Clause 20 - Claims Regime –Cl. 20.2 - 21 day notice of claim is a precondition –Clause 20.1 Sub Contractor must give notice to Contractor and keep records where Contractor required to do so under Main Contract. –Cl. 20.3 Failure to comply with cl.20.1 entitles Contractor to set off from sums otherwise due to the Sub Contractor.

15 The Sub Contract Form - 2009 Claims Regime Contd –Cl. 20.4 If Sub Contractor gives notice of dispute Main Contractor may suspend reference to DAB for 112 days –Main Contractor may refer related disputes to Main Contract DAB. –Sub Contract Arbitration not linked to Main Contract

16 New MDB Form Very Similar to First Edition so a very brief reminder of the differences to the Red Book –Cl. 2.4Funding Information –Cl 6.4 &4.4 Local Labour and Sub Contractors –Cl 6.7 Aids –Owner risk for riot and insurrection limited to Jurisdiction of the Works –Cl 17.6 Employer entitled to indemnity for damage to property unless Contractor can prove Employer fault

17 What FIDIC Has not done No Partnering Form No Target Cost Contract New Engineering Contract is becoming a serious Competitor.

18 Partnering and framework contracts using the NEC form Partnering as part of the ethos of the NEC generally Partnering as an optional sub-clause NEC framework contracts

19 NEC Overview UNDERLYING PRINCIPLES A clear division of functions and responsibility helps accountability and motivates people to play their part Foresight applied collaboratively mitigates problems and risks FLEXIBILITY STIMULUS TO GOOD MANAGEMENT CLARITY

20 Stimulus to good management – a “Partnering” approach Modern approach Mutual trust and co-operation The role of the Project Manager Notices and communications Compensation events

21 NEC’s modern approach Traditional forms of contract: –discourage communication and can lead to claims –create uncertainty re the final cost until the Final Account process begins –no early resolution of claims – payments are often on an interim basis –cynicism and suspicion surrounding notices and records NEC approach is very different: –encourages early communication –entitlements based on forecasts –no final account process in NEC But this requires a very different approach and mindset

22 Core clause 1 “10.1 The Employer, the Contractor, the Project Manager and the Supervisor shall act as stated in this contract in a spirit of mutual trust and co-operation” What does this mean? How does it work in practice?

23 The Project Manager The role of the PM –Pro-active –Involved in early warnings, risk reduction, compensation events, ambiguities, subcontractors, accepting programme, programme revisions Costain v Bechtel (2005) “When the project manager comes to exercise his discretion... It would be a most unusual basis for any building contract to postulate that every doubt shall be resolved in favour of the employer and every discretion shall be exercised against the contractor. …Upon examining these provisions, I am unable to find anything which militates against the existence of a duty upon the project manager to act impartially in matters of assessment and certification.”

24 Structure - flexibility Modular –Nine Core Clauses –Six main options (pricing) –Two dispute resolution secondary options –Sixteen secondary options Total design flexibility Separate contracts for consultancy services (PSC), term maintenance (TSC), framework agreement, sub- contracting

25 Main Option (A) Secondary Option (X1) Secondary Option (X2) Secondary Option (X3) Secondary Option (X15) Secondary Option (X18) Secondary Option (Y(UK)2) Contract Data Parts 1 & 2 Main Option (B) Main Option (C) Main Option (D) Main Option (E) Secondary Option (Z) Core Clauses Must select one main option All secondary options are optional Essential information Main Option (F) Dispute Resolution (W1) Dispute Resolution (W2) Must chose 1 Dispute Option Structure – modular form

26 Structure – the Core Clauses 1 General 2 The Contractor’s Main Responsibilities 3 Time 4 Testing and Defects 5 Payment 6 Compensation Events 7 Title 8 Risks and Insurance 9 Termination

27 Secondary Option Clauses Bonds and Guarantees Retentions Inflation and Currencies Construction Act Incentives – KPI, DLAD, Bonus, PLAD Design Responsibility Sectional Completion Changes in Law Partnering Third Party Rights Act Limitations of Liability DisputesAdditional conditions

28 Secondary Option Clauses X1 – price adjustment for inflation X2 – changes in law X4 – PCG X5 – sectional completion X6 – bonus for early completion X7- delay damages (LADs) X12 - partnering X13 – performance bond X14 – advance payment X15 – design liability X16 – retention X17 – low performance damages X18 – limitation of liability X20 – KPIs Y(UK)2&3 – legislation Z – additional conditions

29 Option Clause X12 - Partnering Option X12 puts the NEC partnering option into a contract It is used for partnering between more than two parties working on the same project or programme of projects Enables the composition of the partnering team to be changed from time to time as projects evolve Brief set of clauses (4 clauses) Includes agreements for joint pursuit of objectives, & working towards key performance indicators

30 Framework contract Introduced in 2005 when the NEC3 contract was launched Can be used in conjunction with any of the contracts from the NEC suite Designed to allow the Employer to invite tenders from suppliers to carry out work on an ‘as instructed’ basis over a set term. Normally, the Employer will appoint a number of framework suppliers to carry out work within the defined scope.

31 Framework Contract The Employer provides data: –the framework information –Scope –Selection procedure –Quotation procedure The Employer selects a supplier for a ‘work package’ under the framework contract The supplier submits a quotation If the quotation is accepted the Employer issues a package order

32 NEC in general - points to bear in mind NEC3 is in many ways more ‘contractor friendly’ than other forms –As the main and subcontract clauses are the same, you need to amend the standard subcontract form if you are subcontracting on NEC3 Emphasis on project management, and successful project outcome, e.g. early warning, programming, communications –You must watch Cl. 13 when giving notices Time bar provisions in the Comp. Event process –Is it practicable to comply with the CE process in reality? –Assessment is based on forecasts which are not revisited if wrong.

33 NEC in general - points to bear in mind Complete the contract properly! –Watch the Works Information. NB: the Contract Data. –Take care with the secondary option clauses main and subcontract choices do not need to be the same The ‘generosity’ (to the Contractor) of the CE regime –Gear your internal processes so that you take advantage of the ‘deeming’ provisions in 61.4, 62.6 and 64.4 – and watch subcontractors who will try to do the same Programming obligations - onerous! Read the contract carefully. Its different! Do not make assumptions about what it says! It wording is not always clear and is not tested in the Courts.

34 Accessing global PPP opportunities to build business Why does a country need infrastructure?  A sign of economic growth  A sign of ability to compete  A sign of ‘development’  Demands of population increase  Demands of increasing urbanisation Opportunities Global expenditure on infrastructure:  Currently US$1 trillion = 2% global GDP per annum  Anticipated increase by 2030 to US$41 trillion

35 Accessing global PPP opportunities to build busines s Opportunities (cont’d) What types of projects are/will be available?  Major developments E.g. Bahrain Pilot Social Housing PPP – scheme to build 5,000 housing units  Maintenance and improvement E.g. Belmarsh Prison PPP – new correctional facility at existing prison in London  Replacement E.g. Hounslow Highways PPP – repair and replacement of roads and pavements in west London

36 Accessing global PPP opportunities to build business An Example of the Current Situation - Western Europe In first half of 2010,138 projects reached financial close  Spain had 46 projects, total value of US$9.87 billion –leading sectors for value: Transport (US$3.5 billion), Oil & Gas (US$3.1 billion)  France had 18 projects, total value of US$7.5 billion –Includes Exeltium Power Purchase Financing agreement  Portugal had 5 projects, total value of US$5.06 billion –Includes High Speed Rail (value: US$2.3 billion)  UK had 25 projects, total value of US$3.35 billion –Leading sector for number of projects: Social Infrastructure (22)

37 Accessing global PPP opportunities to build business The Future: Ongoing pipeline of European projects PLUS Impact of emerging markets?  Population increase  Demands for higher living standards  Need to replace/maintain existing infrastructure  Lack of budgetary constraints that will affect developed countries = opportunities for construction sector!

38 PPP: the basics – important considerations when starting out in PPP Public Procurement Short term contract Funded by public sector Risk shared between public and private sectors Delivery of infrastructure asset = end of contract Payment – by public sector for duration of construction period PPP Long term contract (20+years) Funded wholly or largely by private sector Risk allocated to party ‘best suited to manage the risk’ Delivery of infrastructure asset is usually integrated with ongoing maintenance/operating services Payment – by public sector when asset is delivered and operational (‘unitary charge’) Conventional Public Procurementvs PPP

39 PPP: the basics – important considerations when starting out in PPP Conventional Procurement vs PPP PROJECTCO “SPV” PROCURING AUTHORITY PROCURING AUTHORITY CONSTRUCTION CONTRACTOR

40 PPP: the basics – important considerations when starting out in PPP Procedure: Procuring Authority runs pre-contract Competition - Competitive dialogue / Negotiated Procedure ↓ Preferred Bidder selected – Project Company contracts with Procuring Authority ↓ Project Company contracts with Construction Contractor ↓ Financial Close – funding secured by Project Company - Construction Period begins

41 PROCURING AUTHORITY HOLDCO BANKOPERATINGMAINTENANCE PROJECTCO “SPV” PPP: the basics – important considerations when starting out in PPP PPP Project Structure CONSTRUCTION CONTRACTOR Construction Agreement Operations Agreement Maintenance Agreement Subscription Agreement Project/Concession Agreement Facility and Security Agreements

42 PPP: the basics – important considerations when starting out in PPP Differences between non-PPP and PPP Construction Agreement –PPP Construction Agreement Will seek to “step down” (or pass-through) Project Company’s construction related obligations to Contractor Therefore will often not be in the form of a FIDIC or NEC contract but will have bespoke clauses Will contain new provisions which are Project Agreement (PA) driven: –Termination (with compensation) if PA terminates –Procuring Authority’s independent certifier/engineer likely to have influence –Project equivalent relief (time/cost)

43 Lessons learned from recent PPP projects – international best practice Country Analysis:  Country Risk Perception Consider: domestic legal system, financial stability of the country, level of government support offered, query if awards are made at national or state level  Government flexibility and willingness Consider: government’s willingness to see that the project is completed – will it recognise that events may not run according to plan and that some compromise may be needed between the parties?

44 Lessons learned from recent PPP projects – international best practice Project Selection: ‘Pipeline of projects’ – to encourage investment by private sector Clear and transparent procurement process – candidates have confidence that the competition is run fairly Projects need to be well-structured – to be attractive to private sector and to satisfy private sector investors that PPP is the right approach for this project

45 Impact of role of international funding institutions (IFIs) Remit of IFIs is consistent with implementation of PPP  International Finance Corporation (part of 'World Bank Group'): "[to] further economic development by encouraging the growth of productive private enterprise in member countries, particularly in the less developed areas"  European Bank for Reconstruction and Development (EBRD): "[to] foster the transition toward open market oriented economies and to promote private and entrepreneurial initiative in the Central and Eastern European countries...“  European Investment Bank (EIB): "[to] the balanced and steady development of the common market in the interest of the Community"

46 Impact of role of international funding institutions IFIs: investing in PPP projects (cont’d):  Investment is largely in the form of direct loans to Project Companies (but some grant funding is available too)  Examples of current PPP investment: Metro de Barcelona Estaciones (Spain) – rail – loan value EUR400 million Douro Litoral (Portugal) – motorway toll concession – loan value EUR600 million A2A Servizi Idrici Brescia – water/waste – loan value EUR70 million

47 Opportunities in Global PPP Conclusions: –Countries will continue to need infrastructure –Rise of emerging markets will be crucial Population growth Replace / build new infrastructure Lack of budgetary constraints –Support of IFIs Already active (e.g. Structural Fund )

48 Working hard to make it easier LONDON DUBAI BEIJING SHANGHAI HONG KONG SINGAPORE OTHER UK LOCATIONS: BIRMINGHAM BRISTOL EDINBURGH GLASGOW LEEDS MANCHESTER International: T 44 (0)20 7418 7000 UK: T 0845 300 32 32 Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) and regulated by the Solicitors Regulation Authority. The word 'partner', used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who is a lawyer with equivalent standing and qualifications A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP's registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use 'Pinsent Masons' to refer to Pinsent Masons LLP and affiliated entities that practise under the name 'Pinsent Masons' or a name that incorporates those words. Reference to 'Pinsent Masons' is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. Further information about us is available at © Pinsent Masons LLP 2011

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