Under Silver, you signed for the rock.

Under Silver, you signed for the rock

Fifteen weeks of this track have been read out of one book. The job has been administered as a Red Book contract throughout, and every clause number has come from there.

That was a choice, and it was doing more work than it looked. Take the three events this track has already worked through — the rock, the haul road, the late drawing — and run them across all three books, and one of them stops being claimable entirely.

What actually separates the three

The books are usually described by project type, which is the least useful way to tell them apart. The real difference is who designed the thing and what happens to the risks that follow from designing it.

Red is the employer's design. You build what the Specification describes, priced against a bill of quantities, and the measurement clause from Week 7 exists because quantities are expected to move.

Yellow is your design against the Employer's Requirements, priced as a lump sum. There is no bill and no measurement clause — the words Bill of Quantities do not appear in the book at all. You carry the quantities because you produced them.

Silver is also your design against Employer's Requirements, also a lump sum, and it goes considerably further about certainty. It is written for projects where somebody is lending against a fixed price and a fixed date, and it prices that certainty by moving risk.

The rock, three times

Under Red, sub-clause 4.12 is headed Unforeseeable Physical Conditions, and Risk Week 14 established the test: what an experienced contractor could reasonably have foreseen by the base date. The rock qualifies, and $48,450 is in play.

Under Yellow, the same clause carries the same heading and the same test. You designed the pile; you did not design the ground.

Under Silver the heading changes to Unforeseeable Difficulties, and the clause is a different animal. You are responsible for verifying and interpreting the site data the employer provided. You are deemed to have satisfied yourself that the contract price is correct and sufficient. The price is deemed to cover everything necessary for proper execution. And then three sentences that settle it: you are deemed to have obtained all necessary information about risks and contingencies; by signing, you accept total responsibility for having foreseen all difficulties and costs; and the price is not adjusted for difficulties or costs nobody foresaw.

Same five-letter word in the heading. Physical Conditions is a statement about the ground. Difficulties is a statement about you.

The haul road and the drawing

The other two events move less, which is itself worth knowing.

The haul road from Week 13 lands the same way in all three. The access route obligations are yours under every book, and Silver adds that you bear the cost of any special or temporary rights of way, including access to the site, and obtain any additional facilities outside it at your own risk and cost. It was already yours. Silver just says so twice.

The late drawing from Week 5 is different for a structural reason rather than a risk one. Under Red the employer's designer produces the drawings, so a late one is somebody else's failure. Under Yellow and Silver you are the designer, so the equivalent event is a late review, a late approval, or a late instruction — a smaller category, and one you have to look for in different clauses.

Nobody neutral to write to

The administrative difference is the one people underestimate, and it is not subtle.

Red mentions the Engineer 544 times and Yellow 548. Silver mentions the word once, and not as a role — there is no Engineer. An Employer's Representative runs the equivalent machinery, and the phrase shall act neutrally does not appear anywhere in the book.

So the notice of claim from Week 1 goes to the other party rather than to a professional with a stated duty of neutrality. Every period from Week 10 still runs. The consultation and determination structure still exists. What is missing is the step Week 3 called the cheapest chance you get: a decision from somebody the contract has instructed to be impartial, before anything escalates.

That pushes weight onto the DAAB and onto your own records, and it makes the contemporary records argument from Week 8 more important rather than less.

What the certainty costs

It would be easy to read all this as Silver being unfair. It is not; it is expensive, and the two are different.

An employer choosing Silver is buying a price that will not move and a date that will not slip, usually because a lender requires both. The risks that would otherwise have produced variations have not disappeared. They have been priced into the tender by whoever was willing to carry them.

Which means the estimating question changes completely. Under Red you price the work and manage the risk register. Under Silver you price the work and the risk register, because there is no route back for the items on it. Risk Week 12 argued you cannot win a job at P80. Under Silver, P50 is not a defensible number either — and that tension is the whole commercial problem with turnkey work.

Practical insight

Find out which book you are on before anything else, and be precise about it. A contract described as FIDIC may be Red with heavy amendments, and Week 2 established that the Special Provisions outrank the printed book. Amended Red can be harsher than unamended Silver.

Then run your own register against the book you are actually on. Take the five contractual risks from Risk Week 15 and ask, for each one, whether the clause you relied on says the same thing here. If you are on Silver, expect several of them to come back as priced items rather than claimable events — which is Week 13's lesson arriving at a different door.

Check who receives notices. Write the name and address on the wall, because the recipient changes with the book and a notice sent to a person who no longer exists in your contract is not a notice.

And if you are tendering Silver, price the register. Not a contingency percentage — the actual items, with the actual numbers you produced in Track 3. On this job that would have meant carrying the rock at $48,450 in the bid, against a margin of $48,163.

Key takeaways

✔ The books differ by who designs and what follows from it, not by project type. Red is employer design with a bill; Yellow and Silver are contractor design at a lump sum.

✔ Under Red and Yellow, sub-clause 4.12 is Unforeseeable Physical Conditions and the rock is claimable on the 1.1.85 test.

✔ Under Silver it becomes Unforeseeable Difficulties: by signing, you accept total responsibility for having foreseen all difficulties and costs, and the price isn't adjusted for them.

✔ Silver also puts the cost of special and temporary rights of way, and any facilities outside the site, on the contractor.

✔ There is no Engineer under Silver, and no duty to act neutrally anywhere in the book. Notices go to the other party.

✔ Every notice period still applies. What disappears is the impartial determination that settles most matters before they become disputes.

✔ Silver isn't unfair, it is expensive. The risks were priced into somebody's tender, and on a turnkey job the register belongs in the bid rather than on a register.

What's coming next

Everything so far assumes the job continues. Sometimes it does not. A contractor stops work because payment has not arrived; an employer removes the contractor for default; or somebody terminates for convenience because the scheme no longer makes sense. Each of those has a procedure, a set of notices, and a valuation that follows — and the difference between doing it correctly and doing it in temper is measured in years of litigation. Next week we go through suspension and termination: who may do what, on what grounds, after which notice, and what gets paid on the way out.