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Engineer’s Duties and Responsibilities as per FIDIC Red Book (Conditions of Contract for Construction) 2017

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Engineer, sometimes also called the Authority Engineer, is an independent entity in the FIDIC contracts, who supervises the works on behalf of authority and recommends payments of the works done. There are many other roles which the engineer plays under the contract and therefore the role of engineer becomes really crucial, especially in case of FIDIC contracts. Let us learn about Engineer’s duties and responsibilities as per FIDIC Red Book (Conditions of Contract for Construction) 2017 in this post.

The Engineer’s duties and responsibilities are mentioned in clause no. 3 of the FIDIC Red Book Document. This clause is divided into eight clauses, from 3.1 to 3.8. The description under the sub- clauses is mentioned in the table below:

Clause 3: The Engineer

The Engineer’s duties and responsibilities are mentioned in clause no. 3 of the FIDIC Red Book Document. This clause is divided into eight clauses, from 3.1 to 3.8. The description under the sub- clauses is mentioned in the table below:

Sub- clause 3.1: The Engineer

The Employer shall appoint the Engineer, who shall carry out the duties assigned to the Engineer in the Contract.

The Engineer shall be vested with all the authority necessary to act as the Engineer under the Contract.

If the Engineer is a legal entity, a natural person employed by the Engineer shall be appointed and authorized to act on behalf of the Engineer under the Contract.

The Engineer (or, if a legal entity, the natural person appointed to act on its behalf) shall be:

(a) a professional engineer having suitable qualifications, experience and competence to act as the Engineer under the Contract; and

(b) shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law and Language].

Where the Engineer is a legal entity, the Engineer shall give a Notice to the Parties of the natural person (or any replacement) appointed and authorized to act on its behalf. The authority shall not take effect until this Notice has been received by both Parties. The Engineer shall similarly give a Notice of any revocation of such authority.

Sub- clause 3.2: Engineer’s Duties and Authority

This Sub- clause specifies duties and authority of the Engineer. The provisions under this sub- clause are as under:

The Engineer shall act as a skilled professional and shall be deemed to act for the Employer.

The Engineer shall have no authority to amend the Contract or, except as otherwise stated in these Conditions, to relieve either Party of any duty, obligation or responsibility under or in connection with the Contract.

The Engineer may exercise the authority attributable to the Engineer as specified in or necessarily to be implied from the Contract. If the Engineer is required to obtain the consent of the Employer before exercising a specified authority, the requirements shall be as stated in the Particular Conditions. There shall be no requirement for the Engineer to obtain the Employer’s consent before the Engineer exercises his/her authority under Sub-Clause 3.7 [Agreement or Determination]. The Employer shall not impose further constraints on the Engineer’s authority.

However, whenever the Engineer exercises a specified authority for which the Employer’s consent is required, then (for the purposes of the Contract) such consent shall be deemed to have been given.

Any acceptance, agreement, approval, check, certificate, comment, consent, disapproval, examination, inspection, instruction, Notice, No-objection, record(s) of meeting, permission, proposal, record, reply, report, request, review, test, valuation, or similar act (including the absence of any such act) by the Engineer, the Engineer’s Representative or any assistant shall not relieve the Contractor from any duty, obligation or responsibility the Contractor has under or in connection with the Contract.

Sub- clause 3.3: The Engineer’s Representative

The Engineer may appoint an Engineer’s Representative and delegate to him/her in accordance with Sub-Clause 3.4 [Delegation by the Engineer] the authority necessary to act on the Engineer’s behalf at the Site, except to replace the Engineer’s Representative.

The Engineer’s Representative (if appointed) shall comply with sub-paragraphs (a) and (b) of Sub-Clause 3.1 [The Engineer] and shall be based at the Site for the whole time that the Works are being executed at the Site. If the Engineer’s Representative is to be temporarily absent from the Site during the execution of the Works, an equivalently qualified, experienced and competent replacement shall be appointed by the Engineer, and the Contractor shall be given a Notice of such replacement.

Sub- clause 3.4: Delegation by the Engineer

The Engineer may from time to time assign duties and delegate authority to assistants, and may also revoke such assignment or delegation, by giving a Notice to the Parties, describing the assigned duties and the delegated authority of each assistant. The assignment, delegation or revocation shall not take effect until this Notice has been received by both Parties. However, the Engineer shall not delegate the authority to:

(a) act under Sub-Clause 3.7 [Agreement or Determination]; and/or

(b) issue a Notice to Correct under Sub-Clause 15.1 [Notice to Correct].

Assistants shall be suitably qualified natural persons, who are experienced and competent to carry out these duties and exercise this authority, and who are fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language].

Each assistant, to whom duties have been assigned or authority has been delegated, shall only be authorized to issue instructions to the Contractor to the extent defined by the Engineer’s Notice of delegation under this Sub-Clause.

Any act by an assistant, in accordance with the Engineer’s Notice of delegation, shall have the same effect as though the act had been an act of the Engineer. However, if the Contractor questions any instruction or Notice given by an assistant, the Contractor may by giving a Notice refer the matter to the Engineer.

The Engineer shall be deemed to have confirmed the assistant’s instruction or Notice if the Engineer does not respond, within 7 days after receiving the Contractor’s Notice, reversing or varying the assistant’s instruction or Notice (as the case may be).

Sub- clause No. 3.5: Engineer’s Instructions

The Engineer may issue to the Contractor (at any time) instructions which may be necessary for the execution of the Works, all in accordance with the Contract. The Contractor shall only take instructions from the Engineer, or from the Engineer’s Representative (if appointed) or an assistant to whom the appropriate authority to give instruction has been delegated under Sub-Clause 3.4 [Delegation by the Engineer].

Subject to the following provisions of this Sub-Clause, the Contractor shall comply with the instructions given by the Engineer or the Engineer’s Representative (if appointed) or delegated assistant, on any matter related to the Contract.

If an instruction states that it constitutes a Variation, Sub-Clause 13.3.1 [Variation by Instruction] shall apply.

If not so stated, and the Contractor considers that the instruction:

(a) constitutes a Variation (or involves work that is already part of an existing Variation); or

(b) does not comply with applicable Laws or will reduce the safety of the Works or is technically impossible the Contractor shall immediately, and before commencing any work related to the instruction, give a Notice to the Engineer with reasons.

If the Engineer does not respond within 7 days after receiving this Notice, by giving a Notice confirming, reversing or varying the instruction, the Engineer shall be deemed to have revoked the instruction. Otherwise the Contractor shall comply with and be bound by the terms of the Engineer’s response.

Sub- clause No. 3.6: Replacement of the Engineer

If the Employer intends to replace the Engineer, the Employer shall, not less than 42 days before the intended date of replacement, give a Notice to the Contractor of the name, address and relevant experience of the intended replacement Engineer.

If the Contractor does not respond within 14 days after receiving this Notice, by giving a Notice stating an objection to such replacement with reasons, the Contractor shall be deemed to have accepted the replacement.

The Employer shall not replace the Engineer with a person (whether a legal entity or a natural person) against whom the Contractor has raised reasonable objection by a Notice under this Sub-Clause.

If the Engineer is unable to act as a result of death, illness, disability or resignation (or, in the case of an entity, the Engineer becomes unable or unwilling to carry out any of its duties, other than for a cause attributable to the Employer) the Employer shall be entitled to immediately appoint a replacement by giving a Notice to the Contractor with reasons and the name, address and relevant experience of the replacement.

This appointment shall be treated as a temporary appointment until this replacement is accepted by the Contractor, or another replacement is appointed, under this Sub-Clause.

Sub- clause No. 3.7: Agreement or Determination

When carrying out his/her duties under this Sub-Clause, the Engineer shall act neutrally between the Parties and shall not be deemed to act for the Employer.

Whenever these Conditions provide that the Engineer shall proceed under this Sub-Clause to agree or determine any matter or Claim, the following procedure shall apply:

3.7.1 Consultation to reach agreement

The Engineer shall consult with both Parties jointly and/or separately, and shall encourage discussion between the Parties in an endeavor to reach agreement. The Engineer shall commence such consultation promptly to allow adequate time to comply with the time limit for agreement under Sub-Clause 3.7.3 [Time limits].

Unless otherwise proposed by the Engineer and agreed by both Parties, the Engineer shall provide both Parties with a record of the consultation.

If agreement is achieved, within the time limit for agreement under Sub-Clause 3.7.3 [Time limits], the Engineer shall give a Notice to both Parties of the agreement, which agreement shall be signed by both Parties. This Notice shall state that it is a “Notice of the Parties’ Agreement” and shall include a copy of the agreement.

If:

(a) no agreement is achieved within the time limit for agreement under Sub-Clause 3.7.3 [Time limits]; or

(b) both Parties advise the Engineer that no agreement can be achieved within this time limit whichever is the earlier, the Engineer shall give a Notice to the Parties accordingly and shall immediately proceed as specified under Sub-Clause 3.7.2 [Engineer’s Determination].

3.7.2 Engineer’s Determination

The Engineer shall make a fair determination of the matter or Claim, in accordance with the Contract, taking due regard of all relevant circumstances.

Within the time limit for determination under Sub-Clause 3.7.3 [Time limits], the Engineer shall give a Notice to both Parties of his/her determination.

This Notice shall state that it is a “Notice of the Engineer’s Determination”, and shall describe the determination in detail with reasons and detailed supporting particulars.

3.7.4 Effect of the agreement or determination

Each agreement or determination shall be binding on both Parties (and shall be complied with by the Engineer) unless and until corrected under this Sub-Clause or, in the case of a determination, it is revised under Clause 21 [Disputes and Arbitration].

If an agreement or determination concerns the payment of an amount from one Party to the other Party, the Contractor shall include such an amount in the next Statement and the Engineer shall include such amount in the Payment Certificate that follows that Statement.

If, within 14 days after giving or receiving the Engineer’s Notice of agreement or determination, any error of a typographical or clerical or arithmetical nature is found:

(a) by the Engineer: then he/she shall immediately advise the Parties accordingly; or

(b) by a Party: then that Party shall give a Notice to the Engineer, stating that it is given under this Sub-Clause 3.7.4 and clearly identifying the error.

If the Engineer does not agree there was an error, he/she shall immediately advise the Parties accordingly.

The Engineer shall within 7 days of finding the error, or receiving a Notice under sub-paragraph (b) above (as the case may be), give a Notice to both Parties of the corrected agreement or determination. Thereafter, the corrected agreement or determination shall be treated as the agreement or determination for the purpose of these Conditions.

3.7.5 Dissatisfaction with Engineer’s determination

If either Party is dissatisfied with a determination of the Engineer:

(a) the dissatisfied Party may give a NOD to the other Party, with a copy to the Engineer;

(b) this NOD shall state that it is a “Notice of Dissatisfaction with the Engineer’s Determination” and shall set out the reason(s) for dissatisfaction;

(c) this NOD shall be given within 28 days after receiving the Engineer’s Notice of the determination under Sub-Clause 3.7.2 [Engineer’s Determination] or, if applicable, his/her Notice of the corrected determination under Sub-Clause 3.7.4 [Effect of the agreement or determination] (or, in the case of a deemed determination rejecting the Claim, within 28 days after the time limit for determination under Sub-Clause 3.7.3 [Time limits] has expired); and

(d) thereafter, either Party may proceed under Sub-Clause 21.4 [Obtaining DAAB’s Decision].

If no NOD is given by either Party within the period of 28 days stated in sub-paragraph (c) above, the determination of the Engineer shall be deemed to have been accepted by both Parties and shall be final and binding on them.

If the dissatisfied Party is dissatisfied with only part(s) of the Engineer’s determination:

(i) this part(s) shall be clearly identified in the NOD;

(ii) this part(s), and any other parts of the determination that are affected by such part(s) or rely on such part(s) for completeness, shall be deemed to be severable from the remainder of the determination; and

(iii) the remainder of the determination shall become final and binding on both Parties as if the NOD had not been given.

In the event that a Party fails to comply with an agreement of the Parties under this Sub-Clause 3.7 or a final and binding determination of the Engineer, the other Party may, without prejudice to any other rights it may have, refer the failure itself directly to arbitration under Sub-Clause 21.6 [Arbitration] in which case the first and the third paragraphs of Sub-Clause 21.7 [Failure to Comply with DAAB’s Decision] shall apply to such reference in the same manner as these paragraphs apply to a final and binding decision of the DAAB.

Sub- clause 3.8 Meetings

The Engineer or the Contractor’s Representative may require the other to attend a management meeting to discuss arrangements for future work and/or other matters in connection with execution of the Works.

The Employer’s other contractors, the personnel of legally constituted public authorities and/or private utility companies, and/or Subcontractors may attend any such meeting, if requested by the Engineer or the Contractor’s Representative.

The Engineer shall keep a record of each management meeting and supply copies of the record to those attending and to the Employer. At any such meeting, and in the record, responsibilities for any actions to be taken shall be in accordance with the Contract.

Conclusion

Engineer plays a crucial role in the execution of the contract. He not only supervises the contract on behalf of the authority but also decides matters of dispute for both the parties. The Engineer therefore should be competent and fair in fulfilling his duties and obligations because both the client and the contract depend on him for successful execution of the contract.

Also read: Clause 18: Exceptional Events Under FIDIC 2017

References:

  1. FIDIC Conditions of Contract for Construction, Second Edition, 2017 (FIDIC Red Book)
  2. https://fidic.org/

Disclaimer

  1. The description of sub- clauses given in this article is only a part of the whole clause which is relevant to the duties and responsibilities of the Consultant. For whole provision under the sub clauses refer to FIDIC Conditions of Contract for Construction, Second Edition, 2017
  2. The content of this article is only for education purpose and it cannot be used as a legal advice. For any legal issue a suitable professional may be consulted
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Rajesh Pant
Rajesh Panthttps://managemententhusiast.com
My name is Rajesh Pant. I am M. Tech. (Civil Engineering) and M. B. A. (Infrastructure Management). I have gained knowledge of contract management, procurement & project management while I handled various infrastructure projects as Executive Engineer/ Procurement & Contract Management Expert in Govt. Sector. I also have exposure of handling projects financed by multi-lateral organizations like the World Bank Projects. During my MBA studies I developed interest in management concepts.
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