Bulgarian Society of Construction Law Chair ESCL Board Member Standard forms for public procurement construction contracts in Bulgaria ESCL Conference Bucharest 25 th October 2018 ID: 754076
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Slide1
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
Bulgarian Society of Construction Law Chair ESCL Board MemberStandard forms for public procurement construction contracts in Bulgaria
ESCL ConferenceBucharest 25th October 2018 Slide2
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
The
Bulgarian
PPA (issued 2016) imposes restrictions on construction contracts in relation to variations and subcontracting. It is implementing the EU Directives, but in some cases the wording is much more restrictive,
e.g.:Art. 72 of the Directive stipulates that Contracts and framework agreements may be modified without a new procurement procedure when the overall nature
of the contract or the framework agreement is not altered, while the
PPA
narrows the requirement, forbidding alteration of the
subject (object)
, thus creating
difficulties.Slide3
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
There are no standard forms of construction contract in general use in Bulgaria.
The
IFIs (for example EBRD, KfW) usually require FIDIC Contracts to be used. FIDIC forms started to be used in the EC programmes PHARE and ISPA 20 years ago.In 2016, at the request of the Bulgarian Construction Chamber, the BSCL developed Contract Agreements and Particular Conditions for the FIDIC
Red and Yellow Books, harmonized with the national legislation.Slide4
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
In
April 2018
, the Construction Chamber invited the NGOs in the sector to form task groups for improvement of the construction legislation. A PPA Task Group was formed as well, with representatives from the Construction Chamber, BSCL, Chamber of Engineers in the Investment Design, Bulgarian Association of Consulting Engineers and Architects, Union of Architects in Bulgaria, Chamber of Engineers in Bulgaria, etc. The PPA Task Group
recommended the use of standard forms for construction contracts and PPA amendments, simplifying the selection procedure, subcontracting and modifications.Slide5
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
On
4
th September 2018, the Minister of Finance approved tender documents mandatory from 10th September 2018 for the water sector Programme “Environment 2014-2020” and Programme “Development of Rural Regions 2014-2020”, using the FIDIC Red
and Yellow Book 1999 General Conditions.Slide6
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
A Research Report by the Centre of Construction Law and Dispute Resolution, King’s College
London in 2016“ENABLING BIM THROUGH PROCUREMENT AND CONTRACTS”describes how the foundations for effective collaborative working through BIM are provided by a clear
and integrated contractual framework. Slide7
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
KCL
Report recommends a multi-party BIM protocol that leaves two party contracts in place while: creating direct relationships between project team members in relation to BIM; enabling mutual reliance on agreed deadlines for BIM contributions; creating an agreed forum for resolution of clashes;
creating direct mutual intellectual property rights; establishing clarity as to the reliance on data and BIM software; linking the repair, maintenance and operation of the completed capital project; providing opportunity to bring in additional membersSlide8
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
Coordination
of goals is essential and is generally achieved by a BIM Protocol & a BIM Execution Plan.BIM is founded on a team approach.Successful projects with BIM encourage
collaboration.FIDIC contracts are designed to be fair and are considered suitable for use with projects using BIM providing that the parties recognize the difference in approach and use the contract appropriately.
FIDIC 2017 EditionAdvisory Notes to Users of FIDIC Contracts Where the Project Uses BIMSlide9
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
The RFP for selection of consultant must clearly outline what the employer’s expectations are.
The expectations should focus on the specific BIM goals and benefits desired.FIDIC 2017 EditionAdvisory Notes to Users of FIDIC Contracts
Where the Project Uses BIMSlide10
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
FIDIC recognizes that:
BIM is well suited for integrated project delivery, including DB and DBO projects where early proactive involvement of the design engineer, contractor and employer are essential;Where advanced levels of BIM are used, operation and maintenance elements may be added;
A qualified individual is to be assigned to manage the model, separate from the project manager’s role;Subcontractors should be bound by the BIM Protocol and Execution Plan.Advisory
Notes to Users of FIDIC with BIMSlide11
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
The
risks in working in a BIM environment arise from: Advisory Notes to Users of FIDIC with BIMSlide12
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
Besides the
BIM Protocol and a BIM Execution Plan, FIDIC recommends a thorough review of minimum 29 Sub-Clauses drafting the Particular Conditions: Advisory Notes to Users of FIDIC
with BIM
SC
SC Title
SC
SC Title
1.1
Definitions
2.5
Site data & Items of Reference
1.3
Notices &
Communications
3.2
Engineer’s Duties and Authority
1.5
Priority
of Documents
4.1
C’s General Obligations
1.10
E’s Use of C’s Docs
4.6
Co-operation
1.11
C’s Use of E’s Docs
4.7
Setting Out
1.15
Limitation of Liability
4.9
QM & Compliance Verification Systems
2.3
E’s Personnel & Other Cs
4.20
Progress ReportsSlide13
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
Continued: review
of minimum 29 Sub-Clauses drafting the Particular Conditions for the Yellow Book 2017: Advisory Notes to Users of FIDIC with BIM
SC
SC Title
SC
SC Title
5.1
General Design Obligations
8.3
Programme
5.2
C’s
Documents
9.1
C’s Obligations (Tests on Completion)
5.6
As-Built Records
13.3
Variation Procedure
5.7
O&M Manuals
17.3
Intellectual & Industrial
Property Rights
5.8
Design Errors
17.4
Indemnity by the Contractor
6.8
C’s Superintendence
17.5
Indemnity by the Employer
6.10
C’s Records
17.6
Shared Indemnities
19.2.6
Other Insurances Required Slide14
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
In order to have a
collaborative working environment, all participants in the construction process may sign a framework alliance contract. This will ensure easier project management with tools for:Early warning;Innovations;
Time & cost saving;BIM support;Easy transfer of
data;Know-how transfer Slide15
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
The
Framework Alliance Contract
FAC-1 is designed for international use to integrate projects under FIDIC, JCT, NEC and any other project contract forms.It takes into account the KCL Report 2016 and following consultations with 120 commentators from different jurisdictions.FAC-1 is a new type of contract, mapping the strategy that integrates
any number of related two part contracts for works and/or services and/or supplies. Slide16
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
In March 2017 the Bulgarian Society of Construction Law (BSCL), full
ESCL member, signed a license agreement with the Association of Consultant Architects (ACA) and the author of FAC-1 Prof. David Mosey for:amendments
necessary for FAC-1 to comply with Bulgarian law and the creation and use of a Bulgarian language version of FAC-1. Slide17
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
A
BSCL FAC-1 Task Group created the Bulgarian language version and Schedule 6 Part 1 Legal Requirements for the English 2016 Edition, published by
ACA.Slide18
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
An integrated
FAC-1 multi-party Alliance, entered into with a group of selected consultants, contractors, suppliers or other providers, enables:
Increased transparency & improved efficiency through consistent data shared among Alliance MembersStronger joint commitment to share ObjectivesCloser working relationships on agreed Alliance Activities
Improved joint engagement with the Supply Chain &
Stakeholders
Collective self-regulation through the
Core Group
More open measurement against agreed
Targets
More open motivation to earn agreed
IncentivesSlide19
Integrated multi-party framework alliance
Example
: Energy Efficiency Framework
One or several EmployersSeveral Green Book contracts for constructionS
everal White Book contracts for ConsultantsDirect award of project contracts – lots orCompetitive award of project contracts
Adriana Spassova FIDIC Accredited Trainer & Adjudicator
Supervisor 1
Supervisor 2
Supervisor 3
Designer
Contractor 2
Contractor 1
Contractor 4
Contractor 3
Contractor 5
Employer 1
Employer 2
Alliance Manager
StakeholdersSlide20
Integrated multi-party framework alliance
Example
:
School/ Sport InfrastructureOne Employer
1 Red Book contract & SubcontractsWhite Book contracts for design & FIDIC EngineerAdriana Spassova FIDIC Accredited Trainer & Adjudicator
Engineer
Designer
Subcontractor
1
Employer
Alliance Manager
Subcontractor
2
ContractorSlide21
Integrated multi-party framework alliance
Example
: Water & Sewage Infrastructure
One EmployerSeveral Yellow & Red Book contracts for construction
SubcontractsSeveral White Book contracts for ConsultantsProjects: Rehabilitation & new infrastructureAdriana Spassova FIDIC Accredited Trainer & Adjudicator
Engineer 1
Engineer 2
Designer 1
Designer 2
Contractor 1
Contractor 3
Contractor 2
Contractor 4
Employer 1
Alliance Manager
SubcontractsSlide22
Integrated multi-party framework alliance
Example
: High Speed Railway
One EmployerSeveral Yellow & Red Book contracts for construction
Several White Book contracts for ConsultantsProjects: Related railway sections, stations & facilitiesAdriana Spassova FIDIC Accredited Trainer & Adjudicator
Engineer 1
Engineer 2
Designer 1
Designer 2
Contractor 2
Contractor 1
Contractor 4
Contractor 3
Contractor 5
Employer 1
Alliance ManagerSlide23
Linked framework alliances
Example
: High Speed Railway
One Employer, several frameworks Yellow & Red Book contracts for worksWhite Book contracts for Consultants
Projects: Related railway sections & facilitiesAdriana Spassova FIDIC Accredited Trainer & Adjudicator
Engineer
Designer 1
Designer 2
Section 2
Section1
Employer
Alliance Manager
SignalingSlide24
Adriana Spassova
FIDIC Accredited Trainer & Adjudicator
Thank you!!!
aks@eqe.bg