Adriana Spassova FIDIC Accredited Trainer Adjudicator Bulgarian Society

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Bulgarian Society of Construction Law Chair ESCL Board Member Standard forms for public procurement construction contracts in Bulgaria ESCL CONFERENCE BUCHAREST 25 TH OCTOBER 2018

Adriana Spassova FIDIC Accredited Trainer & Adjudicator The Bulgarian PPA (issued 2016) imposes restrictions on construction contracts in relation to variations and subcontracting. It is implementing the EU Directives, but in some cases the wording is much more restrictive, e. g. : Ø Art. 72 of the Directive stipulates that Contracts and framework agreements may be modified without a new procurement procedure when the overall nature of the contract or the framework agreement is not altered, while the PPA narrows the requirement, forbidding alteration of the subject (object), thus creating difficulties.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator There are no standard forms of construction contract in general use in Bulgaria. The IFIs (for example EBRD, Kf. W) usually require FIDIC Contracts to be used. FIDIC forms started to be used in the EC programmes PHARE and ISPA 20 years ago. In 2016, at the request of the Bulgarian Construction Chamber, the BSCL developed Contract Agreements and Particular Conditions for the FIDIC Red and Yellow Books, harmonized with the national legislation.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator In April 2018, the Construction Chamber invited the NGOs in the sector to form task groups for improvement of the construction legislation. A PPA Task Group was formed as well, with representatives from the Construction Chamber, BSCL, Chamber of Engineers in the Investment Design, Bulgarian Association of Consulting Engineers and Architects, Union of Architects in Bulgaria, Chamber of Engineers in Bulgaria, etc. The PPA Task Group recommended the use of standard forms for construction contracts and PPA amendments, simplifying the selection procedure, subcontracting and modifications.

Adriana Spassova Adjudicator On 4 th September 2018, the Minister of Finance approved tender documents mandatory from 10 th September 2018 for the water sector Programme “Environment 2014 -2020” and Programme “Development of Rural Regions 2014 -2020”, using the FIDIC Red and Yellow Book 1999 General Conditions. FIDIC Accredited Trainer &

Adriana Spassova FIDIC Accredited Trainer & Adjudicator A Research Report by the Centre of Construction Law and Dispute Resolution, King’s College London in 2016 “ENABLING BIM THROUGH PROCUREMENT AND CONTRACTS” describes how the foundations for effective collaborative working through BIM are provided by a clear and integrated contractual framework.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator KCL Report recommends a multi-party BIM protocol that leaves two party contracts in place while: ü creating direct relationships between project team members in relation to BIM; ü enabling mutual reliance on agreed deadlines for BIM contributions; ü creating an agreed forum for resolution of clashes; ü creating direct mutual intellectual property rights; ü establishing clarity as to the reliance on data and BIM software; ü linking the repair, maintenance and operation of the completed capital project; ü providing opportunity to bring in additional members

Adriana Spassova FIDIC Accredited Trainer & Adjudicator FIDIC 2017 Edition Advisory Notes to Users of FIDIC Contracts Where the Project Uses BIM Coordination of goals is essential and is generally achieved by a BIM Protocol & a BIM Execution Plan. BIM is founded on a team approach. Successful projects with BIM encourage collaboration. FIDIC contracts are designed to be fair and are considered suitable for use with projects using BIM providing that the parties recognize the difference in approach and use the contract appropriately.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator FIDIC 2017 Edition Advisory Notes to Users of FIDIC Contracts Where the Project Uses BIM The RFP for selection of consultant must clearly outline what the employer’s expectations are. The expectations should focus on the specific BIM goals and benefits desired.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Advisory Notes to Users of FIDIC with BIM FIDIC recognizes that: • BIM is well suited for integrated project delivery, including DB and DBO projects where early proactive involvement of the design engineer, contractor and employer are essential; • Where advanced levels of BIM are used, operation and maintenance elements may be added; • A qualified individual is to be assigned to manage the model, separate from the project manager’s role; • Subcontractors should be bound by the BIM Protocol and Execution Plan.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Advisory Notes to Users of FIDIC with BIM The risks in working in a BIM environment arise from: Misunderstanding of scope of services Inappropriate use of data Ineffective data management Cyber security Responsibility for “holding” the models/ data Definition of deliverables & approval

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Advisory Notes to Users of FIDIC with BIM Besides the BIM Protocol and a BIM Execution Plan, FIDIC recommends a thorough review of minimum 29 Sub-Clauses drafting the Particular Conditions: SC SC Title 1. 1 Definitions 2. 5 Site data & Items of Reference 1. 3 Notices & Communications 3. 2 Engineer’s Duties and Authority 1. 5 Priority of Documents 4. 1 C’s General Obligations 1. 10 E’s Use of C’s Docs 4. 6 Co-operation 1. 11 C’s Use of E’s Docs 4. 7 Setting Out 1. 15 Limitation of Liability 4. 9 QM & Compliance Verification Systems 2. 3 E’s Personnel & Other Cs 4. 20 Progress Reports

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Advisory Notes to Users of FIDIC with BIM Continued: review of minimum 29 Sub-Clauses drafting the Particular Conditions for the Yellow Book 2017: SC SC Title 5. 1 General Design Obligations 8. 3 Programme 5. 2 C’s Documents 9. 1 C’s Obligations (Tests on Completion) 5. 6 As-Built Records 13. 3 Variation Procedure 5. 7 O&M Manuals 17. 3 Intellectual & Industrial Property Rights 5. 8 Design Errors 17. 4 Indemnity by the Contractor 6. 8 C’s Superintendence 17. 5 Indemnity by the Employer 6. 10 C’s Records 17. 6 Shared Indemnities 19. 2. 6 Other Insurances Required

Adriana Spassova FIDIC Accredited Trainer & Adjudicator In order to have a collaborative working environment, all participants in the construction process may sign a framework alliance contract. This will ensure easier project management with tools for: Ø Early warning; Ø Innovations; FAC Ø Time & cost saving; Ø BIM support; Ø Easy transfer of data; DB Services Ø Know-how transfer Designer Sub 2 Sub 1 Supplier

Adriana Spassova FIDIC Accredited Trainer & Adjudicator The Framework Alliance Contract FAC-1 is designed for international use to integrate projects under FIDIC, JCT, NEC and any other project contract forms. It takes into account the KCL Report 2016 and following consultations with 120 commentators from different jurisdictions. FAC-1 is a new type of contract, mapping the strategy that integrates any number of related two part contracts for works and/or services and/or supplies.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator In March 2017 the Bulgarian Society of Construction Law (BSCL), full ESCL member, signed a license agreement with the Association of Consultant Architects (ACA) and the author of FAC-1 Prof. David Mosey for: (i) amendments necessary for FAC-1 to comply with Bulgarian law and (ii)the creation and use of a Bulgarian language version of FAC-1.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator A BSCL FAC-1 Task Group created the Bulgarian language version and Schedule 6 Part 1 Legal Requirements for the English 2016 Edition, published by ACA.

Adriana Spassova FIDIC Accredited Trainer & Adjudicator An integrated FAC-1 multi-party Alliance, entered into with a group of selected consultants, contractors, suppliers or other providers, enables: ü Increased transparency & improved efficiency through consistent data shared among Alliance Members ü Stronger joint commitment to share Objectives ü Closer working relationships on agreed Alliance Activities ü Improved joint engagement with the Supply Chain & Stakeholders ü Collective self-regulation through the Core Group ü More open measurement against agreed Targets ü More open motivation to earn agreed Incentives

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Stakeholders Supervisor 1 Contractor 2 Contractor 3 Contractor 4 Contractor 5 Supervisor 2 Employer 1 Supervisor 3 Employer 2 Designer Alliance Manager Integrated multi-party framework alliance Example: Energy Efficiency Framework One or several Employers Several Green Book contracts for construction Several White Book contracts for Consultants • Direct award of project contracts – lots or • Competitive award of project contracts

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Alliance Manager Employer Engineer Designer Subcontractor 1 Subcontractor 2 Contractor Integrated multi-party framework alliance Example: School/ Sport Infrastructure One Employer 1 Red Book contract & Subcontracts White Book contracts for design & FIDIC Engineer

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Subcontracts Engineer 1 Engineer 2 Contractor 1 Contractor 2 Contractor 3 Employer 1 Alliance Manager Designer 1 Designer 2 Contractor 4 Integrated multi-party framework alliance Example: Water & Sewage Infrastructure One Employer Several Yellow & Red Book contracts for construction Subcontracts Several White Book contracts for Consultants Projects: Rehabilitation & new infrastructure

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Engineer 1 Contractor 2 Contractor 3 Contractor 4 Engineer 2 Employer 1 Designer 1 Alliance Manager Designer 2 Contractor 5 Integrated multi-party framework alliance Example: High Speed Railway One Employer Several Yellow & Red Book contracts for construction Several White Book contracts for Consultants Projects: Related railway sections, stations & facilities

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Engineer Section 1 Designer 1 Employer Signaling Alliance Manager Section 2 Designer 2 Linked framework alliances Example: High Speed Railway One Employer, several frameworks Yellow & Red Book contracts for works White Book contracts for Consultants Projects: Related railway sections & facilities

Adriana Spassova FIDIC Accredited Trainer & Adjudicator Thank you!!! aks@eqe. bg