The OECD, in its paper Quality Infrastructure in 21st Century Africa[1], stated that Africa’s infrastructure is still behind other continents. However, a lot of money is being invested into improving the infrastructure of Africa. The same OECD paper found that around 101 billion US Dollars was invested in African infrastructure in 2018. Interestingly, this investment has increased as a result of African institutions providing more finance for such projects.
African infrastructure projects have also historically suffered from issues around inefficiency, political and administrative issues (such as corruption and partisanship) and inability properly to supervise projects.
Dr Tett Walters has recently praised the role of the African Development Bank (‘ADB’) and its strict criteria for providing funding for infrastructure projects. Its requirements include ensuring the projects improve the standard of living for the region’s citizens, that a suitable set of contracts are in place and that an efficient procurement process is undertaken.
Part of the African Development Bank’s procurement requirements include using the FIDIC form of contracts. The ADB does allow the parties to amend the contract to take into account the specific requirements and conditions of the project. However, the ADB also wants to ensure that there is not an imbalance of risk; this is to avoid one party having too much power over the other (which could lead to one party dominating the other).
The ADB is also highly interested in ensuring disputes are avoided on the projects it invests in. The includes incorporating procedures into the contract which try to mitigate any tensions which may arise, and encouraging the use of Dispute Avoidance Boards (‘DAB’) to resolve any dispute(s). The ADB encourages parties to ensure that at least one member of the DAB has an active role in overseeing the project.
One key issue with projects that use the FIDIC form of Contract (in Africa and globally) is the role of the Engineer in the contract. The Engineer named under the contract is employed to make certain determinations about issues that may be in dispute between the parties.
One criticism of the role of the Engineer is that they may not be impartial and may favour the interests of the Employer, as they are paid by the Employer. This is exacerbated by the parties trying to amend the contract to enhance the Engineer’s ability to make certain determinations. This includes any applications for an extension of time which will be made by the Contractor.
The issue here is the Engineer, if utilised properly, can help parties avoid even using the DAB to resolve any disputes.
Dr Walters has stated that the procurement process set out by the ADB includes mandating that a management team (including the Contractor, the Employer and the Engineer) is installed from the beginning of the project. The bank stipulates that any Engineer used on the Project must be independent from the Employer (and Contractor).
With all large projects, there are always likely to be issues to some extent. This may have been especially the case during past African projects, which were susceptible to non-economic interests interfering with them. However, with the ADB’s strict procurement rules and emphasis on trying to ensure the project is run in a way which is impartial and not in favour of the interests of either party, we should see a vast improvement in delivery of projects which will benefit the world’s fastest developing continent.
The ADB reported that, for example, as a result of infrastructure projects, 6.6 million people in Africa (in 2021) gained access to better transport[2]. The investment and strict procurement requirements of the ADB are having a clear, tangible benefit.
African Procurement and infrastructure investment was discussed in our webinar on 31 March 2022 with Dr Tett Walters, Sustainable Procurement Pledge and Karen Gough, 39 Essex Chambers. Click here to view the webinar and detailed notes.
How can Barton Legal help?
At Barton Legal we have extensive experience in all the standard contract forms, including JCT as well as NEC, IChemE, and FIDIC.
We believe that an increased understanding of contractual terms and the roles and responsibilities of all parties ensures a successful conclusion to a project, which is why we always use plain English and ensure you understand and can apply the terms of your contract.
Our aim is to reduce legal gobbledegook and increase collaboration between parties to increase the prospects of completing your project on time and on budget.
We place great emphasis in the early stages of the contract on understanding and preparing thoroughly, in order to avoid costly disputes later.
If you have any queries regarding any of these contracts or any form of construction dispute, please do not hesitate to get in touch by email 
construction@bartonlegal.com or call our office on 0113 202 9550.
[1] Quality Infrastructure In 21St Century Africa’ (OECD, 2020) <https://www.oecd.org/dev/Africa-Quality-infrastructure-21st-century.pdf> accessed 2 August 2022.
[2] African Development Bank Group, ‘2021 Quick Facts’ (African Development Bank – Building today, a better Africa tomorrow, 2022) <https://www.afdb.org/en/annual-report-and-financial-report-2021/2021-quick-facts> accessed 2 August 2022.
