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 specification of services to be prepared separately by the parties in connection with the signing of an agreement under the FWB. According to the FWB, the parties must describe functional requirements where appropriate, see clause 3.2.1.

'Reasonable skill, care and diligence' – how to assess it

GC, clause 3.3.1, see no. 5 above, can be regarded as the general clause governing the consultant's liability. Its ABR18 counterpart is clause 42, according to which a defect exists if the assignment has not been performed in compliance with consultancy agreements, good consultancy practices and the client's instructions. The level of the consultant's services must meet the standard that can be expected from a consultant experienced in projects of the same type, size and complexity. In other words, the assessment of the consultant's performance is based on a bonus pater standard within the relevant profession, and the consultant is therefore subject to professional liability.

Accordingly, as also stated in the introduction to the FWB, the consultant cannot be held liable for faulty or defective services if such faults or defects are due to unforeseen circumstances or events beyond the consultant's control. The consultant is therefore (only) subject to a best endeavours obligation, the endeavours being assessed based on the professional liability. Thus, the FIDIC White Book differs from the FIDIC contracts (including the FIDIC Yellow Book 2017) that impose on the supplier a performance obligation, including a "fit for purpose" clause.

Right to remedy defects?

According to the FWB – as well as clause 43 of ABR18 – the consultant has a right to remedy defects. In the event that the consultant (without good cause) is in breach of a material term of the contract, the consultant has a right to remedy the defect within 28 days, see clause 6.4.1 (a) of the GC. If the consultant fails to remedy the defect within the deadline, the client may terminate the contract on 14 days' notice.

The FWB does not require a material breach, but rather a breach of a material term of the contract. Thus, the FWB differs (at least in wording) from clause 55 of ABR18. Whether there will be much of a difference in practice depends on the specific circumstances.

Do the general remedies for defects apply?

The FWB does not exhaustively regulate the parties' relationship. The remedies for breach therefore also depend on the chosen background law (PC***, 1.4.1).

***PC is an abbreviation for Particular Conditions.

If the background law is Danish, the general law of obligations will apply, which means that, in addition to termination with immediate effect (see GC 6.4.1), a client may have a claim for compensation and for a proportionate reduction, provided that the conditions for such compensation and reduction are met.


Read more about the special rules on limitations of liability in this article:

Do you need advice on FIDIC or ABR?

The decision whether to invite tenders for, or enter into, a contract on FIDIC terms or ABR terms is not always easy.

We have advised on many different projects and are ready to help you. If, for example, you are the client, we can guide you on the most appropriate contract choice for your project. If you are a consultant, we can discuss pitfalls and points requiring attention in the contract chosen by the client.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.