The Emerald Book: The New FIDIC Tunnelling Contract

Author:Mr Jeremy Glover
Profession:Fenwick Elliott LLP
 
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On 7 May 2019 at the World Tunnelling Congress 2019, in Naples, FIDIC launched a new contract, the Conditions of Contract for Underground Works ("the Emerald Book"). Taking the 2017 Yellow Book as its starting point, the new Emerald Book is a joint initiative between FIDIC and the International Tunnelling and Underground Space Association ("ITA") which had set up a joint task group back in 2014.

The Introduction to the new Contract identifies three "unique features" of underground work:

"- the method of excavation and ground support are major factors for the successful realization of the project, and therefore part of the Works;

- physical access to the Works is often limited to just a few locations or even a single location, which places serious constraints on construction logistics and the environment;

- the land, beneath which the Works are to be constructed, typically belongs to a number of third parties."

Laying on top of these three features is the difficulty in predicting, with any certainty, the ground conditions for the entirety of the underground works, meaning that considerable thought had to be given as to how to maintain FIDIC's fundamental principle of balanced risk sharing and/or allocation.

The Geotechnical Baseline Report and unforeseeable ground conditions

The Emerald Book seeks to deal with the difficulties created by unforeseeable ground conditions primarily through the use of the Geotechnical Baseline Report ("GBR"). This is intended to be the sole source or contractual document that describes the anticipated subsurface conditions that are likely to be encountered during the execution of the Works. The GBR should also define the subsurface condition or ground-related risks between the Employer and the Contractor. Such is the importance of the GBR that Appendix A to the Emerald Book provides guidance as to what the GBR should contain. Further, the Emerald Contract provisions are based on the Employer including a GBR and are not intended for use where the Contractor is to construct the Works in accordance with a detailed design provided by the Employer.

Two of the other key documents are the Completion Schedule and the Schedules of Baselines. This is a reflection of the fact that the Time for Completion is largely influenced by ground conditions. The Completion Schedule sets out the Time for Completion of the Milestones, which are "based on and consistent with the production rates provided by the Contractor in the...

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