• with other Notes on Documents for Consultancy Agreements

ACKNOWLEDGEMENTS
INTRODUCTION
CONTENTS

FIDIC wishes to acknowledge the efforts of those who have contributed to the preparation of the White Book and the White Book Guide.

The development of the White Book started in early 1986 when Mr. Povl Ahm of Ove Arup and Partners was the Chairman of FIDIC's Client/Consultant Relationships Committee, continued under the Chairmanship of Mr. Eigil Steen Pedersen of COWI consult, and completed and published in 1990 under the Chairmanship of Mr. Mario Asin, Partner of Tippetts-Abbett-McCarthy-Stratton (TAMS).

Mr. Godfrey L. Ackers, a Consultant to Mott McDonald, Ltd. and formerly a Partner of Sir Murdoch MacDonald and Partners, was the principal drafter of the White Book and the Guide. Godfrey Ackers' wife, Wendy, typed many early drafts of these documents.

Mario Asin, assisted by Peter Batty of TAMS, provided extensive reviews, comments and re-edits of the White Book and the Guide.

Mr. Geoffrey Coates, Chairman of Sir Alexander Gibb and Partners, Ltd., was FIDIC's Executive Committee Member in charge of overseeing the preparation of the White Book and the Guide.

Mr. Mark Griffiths of Griffiths and Armour and Mr. Paul Taylor of Berrymans provided liability insurance and legal advice during preparation of the two documents.

Important comments on draft versions of the White Book were provided by the World Bank and the Asian Development Bank. In 1989, a particularly valuable and extremely thorough commentary on the semi-final draft was provided by a joint committee from the Arab Funds under the coordination of Mr. Ismael Elzabri of the Arab Fund for Economic and Social Development.

I. INTRODUCTION

A. Background
B. General Approach
C. Application to Type of Assignment
D. Documents to Complete the Agreement
E. Format of this Guide

II. THE WHITE BOOK PARTS I AND II

A. DEFINITIONS AND INTERPRETATION
B. OBLIGATIONS OF THE CONSULTANT
C. OBLIGATIONS OF THE CLIENT
D. PERSONNEL
E. LIABILITY AND INSURANCE
F. COMMENCEMENT, COMPLETION, ALTERATION AND TERMINATION OF THE AGREEMENT
G. PAYMENT
H. GENERAL PROVISIONS
I. SETTLEMENT OF DISPUTE
J. POSSIBLE ADDITIONAL SUBJECT MATTER

III. THE WHITE BOOK ADDITIONAL DISCUSSION

A. DEFINITIONS AND INTERPRETATION
B. LIABILITY AND INSURANCES
C. COMMENCEMENT, COMPLETION, ALTERATION AND TERMINATION OF THE AGREEMENT
D. GENERAL PROVISIONS
E. POSSIBLE ADDITIONAL SUBJECT MATTER

IV. APPENDIX A SCOPE OF SERVICES

V. APPENDIX B PERSONNEL, EQUIPMENT, FACILITIES AND SERVICES OF OTHERS TO BE PROVIDED BY THE CLIENT

VI. APPENDIX C REMUNERATION AND PAYMENT

ANNEX 1 COMMON PAYMENT TERMINOLOGY
ANNEX 2 LUMP SUM FEES
ANNEX 3 STAFF - TIME BASED FEES
ANNEX 4 FEES AS PERTCENTAGE OF COST OF WORKS

VII. TERMS OF REFERENCE AND THEIR PREPARATION
CLIENT/CONSULTANT MODEL SEVICES AGREEMENT
THE WHITE BOOK
 

The White Bock has been prepared in three stages. The objective of the first stage was to edit the IGRA 1979 (D&S) document into simpler language and a more logical order, and to develop it into a format consistent with the FIDIC style traditionally adopted for its other standard forms of conditions of contract. See References (14) and (15) in Chapter VIII.

The last, more difficult, stage was to refine the provisions for liability, insurance and indemnity.

A draft version of the White Book was reviewed by the World Bank, the Asian Development Bank and a joint committee from the Arab Funds. Many comments resulting from these reviews were incorporated into the final document.

The purpose of the White Book Guide is twofold, namely:

• to assist those who wish to draft Consultancy Agreements using the White Book as published or as the main reference, and
• to provide some insights into the rationale for the White Book's provisions and the content of the Guide dealing with completing an Agreement based on the White Book.

B. GENERAL APPROACH
 
As far as practicable, the construction of the White Book took note of a number of underlying general precepts, namely that:

- it should be even-handed between Client and Consultant;

- it should be capable of wide application;

- its language should be simple and therefore more reliably translatable;

- it should promote cooperation and mutual trust and avoid promoting adversarial attitudes;

- it should recognize the realities of international commerce and take account of the circumstances and difficulties peculiar to consultancy assignments;

- legal jargon or other terms and expressions which are common only to particular geographic regions should be avoided; and

- it should cause the parties to consider the risks and responsibilities each will assume rather than merely the technical content of the assignment.


C. APPLICATION TO TYPES OF ASSIGNMENT

As indicated in its foreword, Part 1 of the White Book provides general rules common to most consultancy agreements. Therefore, it omits some of the detail included in the documents which it now supersedes, namely IGRA 1979 D&S, IGRA 1979 PI and IGRA 1980 PM. lt is one of the objectives of these Notes to indicate what material may be needed to complete the commercial, nontechnical, part of an agreement for particular circumstances and types of assignment.

lt is recommended that legal counsel be taken at an early stage during preparation of an Agreement, on all terms but particularly on Part 11 and the Appendices, including questions of the legal admissibility of all terms in local, applicable law and legal Systems.


D. DOCUMENTS TO COMPLETE THE AGREEMENT

Clause 1 (vii) of the White Book defines the documents forming the Consultancy Agreement namely:

- Part I    Standard Conditions

- Part II   Conditions of Particular Application

- Appendix A     Scope of Services

- Appendix B     Personnel, Equipment, Facilities and Services of Others to be Provided by the Client

- Appendix C Remuneration and Payment

lt is recommended that Clients' initial invitations be analyzed under the above headings and that proposals be prepared to fit into this format because this will facilitate making agreed amendments without oversight arising from inconsistent treatment of the original.

Part II of the White Book provides in Section A for entering particulars necessary to complete Part I and in Section B for entering additional clauses of a general and commercial nature appropriate to the particular assignment. This would cover such matters as joint ventures, powers of a manager in a management consultancy, liquidated damages, etc., Chapters II and III in this Guide deal with some of these matters giving suggestions for wording some of the provisions.

Although the recital in the Agreement Form refers to the Consultant's proposal having been accepted, it will be noted that the proposal is not included in the printed list of agreement documents. This is because experience indicates that proposals are of-ten amended to such a degree during subsequent negotiations that it is better to prepare the Agreement incorporating terms as finally agreed and following the prescribed format.

Clause 1 (vii) of the White Book, however, permits inclusion of the proposal by reference in Part II. In such cases, if a formal agreement is also required, paragraph 2 of the Agreement Form should be extended to include it, e.g.

"d) The Consultant's proposal dated ..."

The Agreement Form provides for a two party agreement. lf other parties are to be joined in the Agreement, the wording will need to be altered. Two circumstances, at least can give rise to this:

a) When the Consultant is a Joint Venture; see Clause 1 (v) (e) in Chapter III of this Guide;

b) When the Client is not the ultimate beneficiary, e.g. the Client is the "National Planning Commission" and the beneficiary is the "Roads and Bridges Public Corporation".


E. FORMAT OF THIS GUIDE

Chapter II is devoted to the subject matter of Part I of the White Book and to related matters for consideration in completing Part II. A and compiling Part IIB.
 
Chapter III includes additional discussion on a selected number of those White Book Clauses presented in Chapter II.

Chapters IV, V and VI include comments relevant to compiling Appendices A (Scope of Services), B (Personnel, Equipment, Facilities and Services of Others) and C (Remuneration and Payment) of the Agreement respectively.

Chapter VII contains a few general comments on Terms of Reference (TOR) and on their preparation.

Chapter VIII lists the details of publications referred to in the other chapters of the Guide.

International Federation of Consulting Engineers
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