Clause 5 — Design (Contractor’s Design)

The Contractor’s design duties in Yellow/Silver: documents, review, and errors remedied at its own cost.

Applies in: Yellow BookSilver Book

In the Yellow and Silver Books the Contractor designs the works to comply with the Employer’s Requirements and to be fit for the purposes defined in them (fitness for purpose — read together with 4.1). Clause 5 governs the process: designer qualifications, Contractor’s Documents and their Review Period, training, as-built records and O&M manuals. Design errors are remedied at the Contractor’s cost — including consequences in work already executed. The Red Book has no such chapter: there the Employer designs.

Key points

Applies in the Yellow and Silver Books (the Employer designs in Red).
Contractor’s Documents pass a Review Period.
The liability standard is fitness for purpose (with 4.1).
Design errors are corrected at the Contractor’s cost.

How this works in practice

Under the Yellow and Silver Books the Contractor is answerable not for conformity to drawings but for an outcome — the works must be fit for the purpose defined in the Employer’s Requirements. That is a materially heavier obligation and it insures badly: standard professional indemnity policies frequently exclude fitness for purpose. The second practical knot is the quality of the Employer’s Requirements. Where they are contradictory or incomplete, the Contractor ends up answerable for an outcome under a document that does not clearly describe that outcome.

Common traps

Fitness for purpose is not covered by the professional indemnity policy — check the cover before signing, not after a defect.
The Employer’s Requirements mix functional requirements with prescriptive solutions, blurring responsibility for the outcome.
The contractual period for scrutinising the requirements expires with no discrepancies raised, and the risk transfers for good.

Versions: 1999 → 2017 → 2022

1999
Clause 5 in Yellow/Silver 1999 with a similar design-duty structure.
2017
The document review procedure and the Engineer’s objection statuses were detailed.
2022
No substantive change in the 2022 reprint.

Clause FAQ

Which FIDIC books use Sub-Clause 5?

The clause applies in Yellow Book, Silver Book. Particular Conditions may change the standard risk allocation, so always check the project contract.

How does fitness for purpose differ from reasonable skill and care?

Reasonable skill and care is an obligation to apply the standard expected of a competent professional. Fitness for purpose is an obligation to achieve a result: if the works do not perform the specified function, liability follows even where the design process was faultless. The distinction matters for insurance and for pricing risk into a bid, and it should be verified in the text rather than assumed from the book type.

Who is responsible for errors in the Employer’s Requirements?

Under the base structure the Employer is responsible for defined categories of data and requirements, but the contract normally sets a period within which the Contractor must scrutinise the document and give notice of discrepancies found. Once that period passes, the risk allocation shifts. Checking the Employer’s Requirements for internal consistency is therefore work for the first weeks of the contract, not a designer’s task at detailed-design stage.

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Reference material, not legal advice. Always check your contract and the Particular Conditions.