FIDIC MDB Harmonised Construction Contract

Introduction

A number of the Multilateral Development Banks (MDBs) have, for many years, adopted the FIDIC Conditions of Contract for Construction as part of their standard bidding documents (SBDs), which the MDBs require their borrowers or aid recipients to follow. In using the FIDIC Conditions, it has been the regular practice of the MDBs to introduce additional clauses in the Conditions of Particular Application in order to amend provisions contained in the FIDIC General Conditions. These additional clauses in many cases, which are specific to the MDBs, have standard wording which has had to be repeated whenever procurement documents have been prepared for a new project. Furthermore, the provisions in tender documents, including the additional clauses contained in the Particular Conditions, have varied between the MDBs. This has created inefficiencies and uncertainties amongst the users of the documents and increased the possibilities of disputes.
 
These problems were recognised by the MDBs as significant, as were the benefits of standardisation. In response, the MDBs resolved to harmonise their tender documents on an international basis. For this purpose the MDBs resolved that there should be a modified form of the FIDIC Conditions of Contract for Construction, 1st Edition 1999 ("CONS1"), in which the General Conditions would contain the standard wording which previously had been incorporated by MDBs in the Particular Conditions. FIDIC is pleased to work with the MDBs in producing a special MDB Harmonised Edition ("CONS MDB") of the 1999 conditions for MDB financed contracts. It was not intended to replace the standard 1999 contract, which is still available to all users.
 
The first version of the MDB Harmonised Construction Contract was released in May 2005 (Press Release in PDF) with an amended second version in March 2006 and a third amended version in 2010.

Distribution and downloads

1. FIDIC release

Participating Banks that have a  licence to use the MDB Harmonised Construction Contract General Conditions aim to make the General Conditions available in their standard bidding documents.
 
Some Participating Banks ask users to obtain their own copies of the General Conditions from FIDIC. FIDIC therefore makes available by download an electronic version in PDF of the fully formatted General Conditions. FIDIC only guarantees the accuracy of these General Conditions to those who download the PDF file from FIDIC.org.

As a service to users, FIDIC also publishes a complete Conditions of Contract comprising the General Conditions and suggested sample forms that can be used in Particular Conditions. FIDIC makes the complete, fully formatted contact available in both printed and electronic (PDF) versions from the FIDIC Bookshop. Currently on the latest (June 2010) version is available as a printed document. The electronic version of the complete contract has fully authenticated General Conditions that are encrypted by FIDIC.
 
For the latest version of the General Conditions (June 2010), both printed and electronic versions of the complete, fully formated Conditions of Contract is available from the FIDIC Bookshop. For earlier (May 2005 and March 2006) only electronic version are available.

Some Participating Banks will maintain their own forms for use in the Particular Conditions. The sample forms published by FIDIC are either the original forms used with the 1999 Construction Contract or forms based on those used by the World Bank. Users are advised to consult a Participating Bank's bidding documentation to identify the most appropriate sample form.

2. Participating Bank Release

Participant Banks are required to ensure that the contents of the Harmonised Contract General Conditions they release in SBDs and similar documents are identical to the the FIDIC Release in English. Similarly, translations should be agreed translations of the FIDIC Release. FIDIC cannot guarantee that either is always the case.

 
Participating Banks and Licensed Agencies
 
The Harmonised Contract General Conditions have been licensed by Participating Banks for use on their projects. Most banks will be funding a project to a significant degree (more than 25%) so it generally not necessary to define what is meant by "significant". The working rule is greater than 25%, but this is not specified in the license agreement with the Participating Banks.
 
From 1 March 2007, the Participating Banks have agreed that bilateral aid and development agencies and international agencies can also take out a license from FIDIC to use the Harmonised General Conditions on project which the agencies fund. Several provisions were agreed for such a license. These are detailed in a covering letter that is sent with a license agreement. Agencies wishing to acquire a license to use the harmonised General Conditions should contact FIDIC.
 
Participating Banks are currently:

  • The World Bank
  • African Development Bank (AfDB) 
  • Asian Development Bank (AsDB) 
  • Black Sea Trade and Development Bank (BSDB) 
  • Caribbean Development Bank (CDB) 
  • Council of Europe Development Bank (CEB) 
  • European Bank for Reconstruction and Development (EBRD) 
  • Inter-American Development Bank (IADB)

Participating Agencies are currently:

  • AusAID, Australia
  • AFB, France 
  • JICA, Japan 
  • EXIM, Korea

Resources

Guide
FIDIC has published a Supplement to The FIDIC Contracts Guide that covers the MDB Harmonised Construction Contract. Since the contract does not envisage the incorporation of extensive Particular Conditions, the Guide does not include extensive guidance on preparing Particular Conditions. Instead it focuses on comparing the MDB Harmonised Edition of the Construction Contract with the standard 1999 Edition. The current version only compares the March 2006 Harmonised Contract General Conditions (an update for the June 2010 version is pending).

Get the guide from the FIDIC bookshop:

FIDIC Contracts Guide Supplement: MDB Harmonised Construction Contract (2006). Guide to the March 2006 release of the  MDB Harmonised Construction Contract. 


Articles and presentations

  • Changes introduced in the June 2010 Version, D. Charrett, charrett june 2010.pdf
  • Changes introduced in the FIDIC Harmonised Contract, March 2006 Version, PDF cons_mdb_changes_8apr08.pdf
  • Comments on differences with Construction Contract 1st Edition, 1999, for the March 2006 Version, in German
  • The FIDIC Contract Forms and the new MDB contract, March 2006 Version, C. Wade, 2005_PDF
  • Contractors' View of the MDB Contract, March 2006 Version: R. Appuhn, April 2006 PDF  appuhn_mdb_apr06.pdf
  •  Dispute Boards and the MDB ContractMarch 2006 Version: G. Jaynes, April 2006 PDF jaynes_mdb_apr06.pdf
  • FIDIC Contract Forms and the new MDB Contract, March 2006 Version: C. Wade, October 2006 PDF wade_mdb_oct06.pdf;
  • Simmons and Simmons, UK, comments

FIDIC Contracts and Agreements Collection

The FIDIC Contracts and Agreements Collection comprises a collection of all of FIDIC contracts and agreements and their accompanying guides. Collections are available in  printed  (a collection of documents) and electronic editions. These electronic editions of Collections have various prices depending on user access and they include the May 2005, March 2006 and June 2010 Versions of the FIDIC MDB Harmonised Construction Contract.

Translations

Some Participants Banks take responsibility for preparing and translations of the Harmonised Contract General Conditions. For languages that are not a bank language, FIDIC takes the responsibility. In both cases, under the license agreement with the Participating Banks, the translations are made available to all Participating Banks through FIDIC.
 
For languages not covered by the banks, FIDIC makes the necessary arrangements by means of a translation agreement with a translating organization. To implement such an agreement, FIDIC seeks the permission of the Participating Banks using an agreed "no-objection" procedure. Organizations wishing to prepare and/or publish a translation of the Harmonised General Conditions should contact FIDIC. In most cases, FIDIC will have entered, or be in the process of entering, an agreement with organizations that have already published a translation of the FIDIC Construction Contract,1st Edition 1999. These organizations are usually a FIDIC national Member Association.

  • Spanish

The IADB has published its Standard Bidding Document for the Procurement of Works in English and Spanish versions. This document is mandatory starting  in September 2006 for all projects financed by IADB. The English version has been translated to Spanish by the IADB. FIDIC has been asked to comment on the translation. The aim will be to harmonise the CONS MDB Spanish version with the Spanish translation of CONS1 published by TECNIBERIA-ASINCE, FIDIC's Member Association for Spain.
IADB Major Works Contract and Guide - Spanish (June 2006) WORD PDF
IADB Major Works Contract and Guide - English version (January 2006): the General Conditions  should be the March 2006 version released by FIDIC (see above), but they are probably the May 2005 version (this is to be checked) WORD PDF - see condc05.iadb.org/idbppi/aspx/ppProcurement.aspx?pLanguage=english under Standard Document - Works

  • Portuguese

The IADB has published its Standard Bidding Document for the Procurement of Works in English and Portuguese versions. This document is mandatory starting  in September 2006 for all projects financed by IADB. The English version has been translated to Portuguese by the IADB. FIDIC has been asked to comment on the translation. The aim will be to harmonise the CONS MDB Spanish version with the Spanish translation of CONS1 to be published by AOPPC, FIDIC's Member Association for Portugal.
IADB Major Works Contract and Guide - Portuguese (June 2006) WORD
IADB Major Works Contract and Guide - English version (January 2006): the General Conditions  should be the March 2006 version released by FIDIC (see above), but they are probably the May 2005 version (this is to be checked) WORD PDF - see condc05.iadb.org/idbppi/aspx/ppProcurement.aspx?pLanguage=english under Standard Document - Works.

  • Arabic

A standard Arabic version of the March 2005 Version has been published by FIDIC.

  • Indonesia-Bahasa

An Indonesia-Bahasa version of the March 2005 Version has been published by FIDIC.

  • Serbian

A serbian version of the June 2012 Version has been publiched by ACRES

Permission to Reproduce

Regarding reproduction or copying on the Harmonised Construction Contract, the relevant phrases in the licence agreement with the Participating Banks are:

  • The sole Copyright Owner is FIDIC.
  • FIDIC's copyright ownership shall be identified clearly in all copies. 
  • The phrase "No reproduction of this document is permitted" must appear on each page of each copy. "No part of this publication may be reproduced .... without prior permission in writing from FIDIC." 
  • FIDIC grants to each Participating Bank a non-exclusive Licence for the reproduction and translation where such reproduction and translation is within the framework of projects financed in whole or in part by the Bank. 
  • The contract "will become part of SBDs that Participating Banks will make available to Executing Agencies". 
  • Any translation by a Participating Bank or by an Executing Agency made under the Licence Agreement shall be made available to FIDIC and, through FIDIC, to the other Participating Banks.

Consequently:

  • Organisations other than a Participating Bank or a Participating Bank's Executing Agency wishing to reproduce the contract or any of its translations for any purpose  should contact FIDIC for permission.
  • A Participating Bank or a Participating Bank's Executing Agency wishing to reproduce the contract or any of its translations outside the framework of a project financed by a Participating Bank should contact FIDIC for permission.

Notes

  • June 2010 version of the General Conditions

The June 2010 Version of the MDB Harmonised Construction Contract contains pages 55 and 56 which is repeated for each Participating Bank. This is because the banks have yet to agreed on a standard Sub-Clause 15.6. Users printing out a fully formatted contract or General Conditions published by FIDIC are asked to remove the copies of pages 55 and 56 that do not apply.  

FIDIC