International Construction Law Review
RELATIONSHIP BETWEEN FIDIC CONDITIONS AND PUBLIC PROCUREMENT LAW—RELIABILITY OF TENDER DOCUMENTS
DR GÖTZ - SEBASTIAN HÖK
Partner, Dr Hök, Stieglmeier & Collegen, Berlin 1
1. FIDIC based procurement
FIDIC Books are available and are widely used on a global scale, be it in the new European States such as Poland, Romania, Bulgaria, or ranging across the continents to the Middle East, Africa and Asia. Polish translations of the FIDIC contracts exist and are increasingly used in the country. For example, Polish versions of FIDIC contracts are available from the Polish FIDIC Member Association (SIDIR). Moreover French, Arabic, Russian, Chinese and other translations do exist and are sometimes available from FIDIC itself, the French version being an example. FIDIC aims to have its standard forms adopted by governments for public procurement, but, even though this has not yet happened in Poland, it is envisaged for Rumania. However quite a large number of public authorities already frequently use FIDIC Conditions for public works contracts. Quite often, however, users encounter particular constraints and conditions arising from complementary national law.
Some relevant examples would include the following: in Croatia the application of the Act on Public Procurement is mandatory. Thus, the procedures and relationships regulated by FIDIC cannot always be applied. However, Croatian Motorways Ltd in practice makes use of the FIDIC standard form of contracts. The harmonisation of these FIDIC contracts with the Republic of Croatia’s legal regulations is implemented through the use of agreement supplements, which take into account FIDIC elements and regulate their harmonisation with Croatian legal regulations. Moreover an increasing number of modern laws worldwide have adopted the compulsory French decennial liability, which is already the case in Algeria, Angola, Egypt, Malta, Morocco, Rumania, Tunisia, the United Arab Emirates and a number of South-American countries.
In addition multilateral development banks and other funding organisations require borrowers to use the appropriate standard procurement documents issued by them for international competitive bidding. Thus, the World Bank and other multilateral development banks such as the Asian Development Bank and the African Development Bank recommend FIDIC forms of contract within their standard bidding documents. In fact, they use
[2009
The International Construction Law Review
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