Romanian Experience with FIDIC Forms in Road and Bridge Construction
The International Construction Law Review, Pt. 4, 2013
8 Pages Posted: 8 Jul 2015
Date Written: July 6, 2015
Nowadays, FIDIC forms of contract are intended to be suitable for projects being carried out around the world by all types of Employers, often in a civil law environment with extensive support of large investors such as World Bank, European Union etc.
FIDIC documents, being the most popular conditions of construction contracts worldwide, are used also as contract conditions in Romania for public procurement mainly within the area of Roads and Bridges construction projects by the local Employer – Ministry of Transportation/RNCMNR (Romanian name: CNADNR further referred to as the Employer).
FIDIC recommends its conditions for international use and that is why they are created on a two part basis. There are the specific and general conditions. FIDIC warns from changing the general part and recommends to do all the changes because of local law requirements or project specialties in the specific part. There is no doubt that the FIDIC standard forms are helpful for the domestic use as well, mainly in regions with lack of traditional sample forms of contracts and/or with strong international competition.
Romanian Authorities have previously (from 2000 to 2010) worked mainly with the CONS/Red Book (1999 First Edition) given the fact that Romanian legislation (related to Design, Quality in Constructions and Finances) imposed the measuring of the actually completed works, using the unit and item prices that are invariable in fact.
The Employer has constantly faced several problems in developing the proposed projects such as:
- Slow procedure of insuring due access to the site according to cl. 2.1 [Right of Access to the Site]; - Errors in the initial setting out data under cl. 4.7 [Setting Out]; - Inadvertences in the site data under cl. 4.10 [Site Data]; - The Design needs adjustment to become applicable to the actual site data; - Slow procedure in ensuring permits under cl. 2.2 [Permits, Licenses or Approvals].
One other impediment has constantly been the Utilities that interfered with the works, given that these are Privately Owned the Utilities Owners must be involved directly in the designing and the relocation of their networks (water, gas, oil and mainly electricity); they approve the final Design. These third parties are mostly foreign companies with Administration Boards outside Romania. The approval procedures usually go on for months or years. There are no clear, uniform procedures that must be followed by the Contractors; the Utilities Owners are changing the requirements at their choice and sometimes even imposing to the Employer and Contractors conditions outside the legal frame or with disregard for the power hierarchy of legal texts.
Keywords: Claim, Claim Management, FIDIC, Romania, Risk Allocation, Construction Law
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