Among the international construction contracts, the contracts of the International Federation of Consulting Engineers (FIDIC) or better known as FIDIC contracts have stood out, which are characterized by being generally recognized and accepted practices at the international level in the legal field of construction projects. building. In addition, they are self regulatory agreements, that allow the unification of engineering contracts in advance and that are compatible with civil and common law [1] .
Thus, FIDIC contracts have been openly recognized, recommended, and even required for project financing by various international organizations such as the World Bank (WB) and the Inter-American Development Bank (IDB). Well, by including different contract models, they allow choosing the most convenient for the specific case, reduce transaction costs and speed up the evaluation, estimation and allocation of risks [2] .
On the other hand, FIDIC contracts have been recognized worldwide for the color of the cover of the book in which they have been published, where among the multiple FIDIC contracts it has been determined that the main ones are the Red Book , the Yellow Book, the Green Book and the Silver Book . In the first place, the Red Book is characterized by imposing on the builder the obligation to bear most of the risks in infrastructure projects. Second, the Yellow Book stands out for imposing on the contractor the obligation to bear most of the risks and is generally paid in a lump sum. Third, the Green Book is used for low-cost or complex projects, that is, less than USD $ 500,000. Finally, the Silver Book is generally used in turnkey contracts in which there is a certain degree of certainty regarding the price and duration of the work.
However, in the Colombian case the application of the FIDIC contracts has been minimal. This given that Colombia Compra Eficiencia has indicated that when Law 1882 of 2018 establishes the authority of the National Government to adopt standard documents, it includes FIDIC contracts as an alternative to achieve the standardization of state contracts, however, this has been little applied.
In particular, the case of Coviandes against INVIAS stands out, where the arbitral tribunal pointed out that it was an error of the Contracting Entity to assume part of the risks that are normally borne by the concessionaire in order to make the project in question “salable” < a href = "#_ ftn3" name = "_ ftnref3"> [3] . Thus, by not applying the principles established in the FIDIC books, there was an economic imbalance in the contract that caused a conflict that could have been avoided if they had been used, as this would have allowed the risk to be assigned to the contractor [4] .
In conclusion, FIDIC contracts are a great tool in national, international and state contracting, since they provide a series of instruments that allow speeding up and facilitating the contracting processes in infrastructure projects by standardizing and making the determination and allocation easier. of the risk and the fixing of the periodicity of the payments, the supervision of the work and the complexity of the work. Hence, it is convenient to promote the implementation and use of these contracts in Colombia for public and private infrastructure projects.
By Martha Sofía Carrillo, student at the Gómez-Pinzón Abogados Seed Plan.
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[1] Juan Eduardo Figueroa, The Contracts of FIDIC Construction versus Chilean Law, https://www.pj.gov.py/ebook/monografias/extranjero/arbitraje/Juan-Figueroa-Valdez-Los-Contraros -de-Construcci% C3% B3n-Fidic-Frente-al-Derecho-Chileno.pdf
[2] Ignacio Almagro and Lukas Klee, The FIDIC International Construction Contracts, (October, 2017), https://fidic.org/books/los-contratos-internacionales-de-construcci%C3 % B3n-fidic
[3] Arbitration award Concesionaria Vial de los Andes (Coviandes) vs. National Highways Institute (INVIAS) (July 29, 2004). Pg.25
[4] Fernando Silva (2007 ), An approach to the vision of the correction of the contractual imbalance from the perspective of arbitration jurisprudence , Revista e-Mercatoria, 6 (2), 1-64. Retrieved from http://revistas.uexternado.edu.co/index.php / emerca / article / view / 2062
BIBLIOGRAPHY:
Daniel Moreanu, What are FIDIC contracts and why should they be used in the construction field? , (April, 2015), https://www.linkedin.com/pulse/what-fidic-contracts-why-should-used-construction-field-moreanu
Ignacio Almagro and Lukas Klee, FIDIC International Construction Contracts , (October, 2017), https://fidic.org/books/los-contratos-internacionales-de-construcci%C3%B3n-fidic
Juan Eduardo Figueroa, FIDIC Construction Contracts versus Chilean Law, https://www.pj.gov.py/ebook/monografias/extranjero/arbitraje/Juan-Figueroa-Valdez-Los -Contraros-de-Construcci% C3% B3n-Fidic-Frente-al-Derecho-Chileno.pdf
Arbitration award Concesionaria Vial de los Andes (Coviandes) vs. National Highways Institute (INVIAS) (July 29, 2004). Pg. 25.
Maximiliano Rodríguez Fernández, The Problem of Risk in Infrastructure Projects and International Construction Contracts , e-Mercatoria Magazine (Volume 6, Number 1, 2007): 1-29.
Fernando Silva (2007), An approach to the vision of the correction of the contractual imbalance from the perspective of arbitration jurisprudence . E-Mercatoria Magazine, 6 (2), 1-64. http://revistas.uexternado.edu.co/index.php/emerca / article / view / 2062