The Concept Of Defects In FIDIC White Book

• Published date: 15 January 2024
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Contracts and Commercial Law, Construction & Planning
• Law Firm: Kromann Reumert
• Author: Jan Hvarre, Trine Gydemand Bielefeldt and Cecilie Anthony Berno Hald

In this article, we discuss when a consultant's services will be deemed defective and the position of the parties in the event of defects if the contractual basis is FIDIC White Book.

What is FIDIC White Book?

FIDIC White Book ("FWB") is an international counterpart to the Danish General Conditions for Consultancy Services for Building and Construction Works (ABR18).
FIDIC is an acronym for Fédération Internationale des Ingénieurs-Conseils and is characterised by being a set of rules that can be applied across national borders.

Thus, the advantage of FIDIC is that foreign consultants do not have to study completely new (national) regulations every time they bid for international consultancy assignments. This is highly attractive as it opens up a wider range of competences for the given assignment, for example in connection with large and complex construction projects.

Be careful to specify the background law: It is important to specify the background law in clause 1.4.1 of the Particular Conditions. If it is a Danish project or client, the background law will probably be Danish. If the chosen background law is not Danish, you should consult a lawyer in the relevant country about the local meaning of the terms used in the FWB.

In this article on the FIDIC White Book, you can read more about that and why the choice of background law is important:

How does a consultant ensure that the services performed are not defective?

The FWB sets out a number of requirements for the consultant's services. The requirements can be summarised as follows:

1. The consultant's performance must be in conformity with the agreement (clause 3 of the Form of Agreement)
2. The services must be performed as stated in the Scope of Services (Appendix 1), which corresponds to a service description.
3. The services must be performed in accordance with the Programme (GC*, clause 3.1.2)
4. As a minimum, the consultant must perform the services in compliance with a bonus pater standard for the relevant profession ("Reasonable skill, care and diligence") (GC, clause 3.3.1)
5. The consultant must perform the services so that the results to the greatest possible extent (within the framework of clause 3.3.1) satisfy the function and result described in Appendix 1 (Scope of Services)** (GC, clause 3.3.2)
6. The consultant must comply with relevant legislation, customs and codes of practice (GC, clause 3.3.3).

* GC is an abbreviation for General Conditions

** FWB Appendix 1 "Scope of Services" is a...