Final Certificate and due payment date
Question
I need some help for the interpretation of Contract Clauses, especially for the Final Certificate and due payment date.
Answer
We should point out that FIDIC is prepared to give some guidance about FIDIC contracts if problems mainly concern interpretation of a contract document. If you seek more detailed advice that relates to actual contracts, then we recommend you discuss the matter with experts whom FIDIC can recommend, on the understanding that they or a colleague would seek remuneration once you entered into detailed discussions. Essentially, you do not seem to be requesting guidance about FIDIC contracts, and your problems do not seem to concern the interpretation of a contract document. Rather, your question seems to be: what do we do next? You give no details whatsoever of the form of contract, FIDIC or otherwise. Based on the presumption that your contract incorporates FIDIC's 1992 Conditions of Contract for Works of Civil Engineering Construction, you seem to be referring to a request for the Engineer's decision under Clause 67, following the lapse in the Clause 60 procedures. In that case, you should be mindful of other procedures described in Clause 67, particularly of the period within which to issue a notice of intention to commence arbitration. If that period has already passed, you may wish to consider taking legal advice.
Arbitration is a lengthy and expensive procedure, so you may wish to consider alternative methods of dispute resolution, as an attempt at amicable settlement under Sub-Clause 67.2. We would be pleased to assist you in these endeavours, if appropriate commercial arrangements can be concluded. Alternatively, an epert proposed by FIDIC could be jointly appointed by the Contractor and Employer, either as a conciliator or as a member of a dispute board (either the sole member or one of three members).
Appointing an Engineer
Question
Is it recommended to have in a contract based on FIDIC's Electrical and Mechanical Works Contract an external expert acting as the Engineer? Or is there no problem in recruiting the Engineer from amongst the Beneficiary (in our case a "public" authority)? We are signing a contract shortly. The Engineer is according to the Red Book, Clause 2.4 Part I bound to act impartially. The question is if there is an internal incompatibility in the relationship to his Employer.
Answer
The basis upon which the 1987 Yellow Book and Red Book is written is that the Engineer is appointed by the Employer, but that he is independent of both parties - i.e., he is an independent third party. In many cases he is required to give impartial decisions - in fact under Clause 2.4 of the Yellow Book he is required to act impartially at all times when exercising his discretion. If the Engineer is an employee of the Employer - e.g., someone from the Employer's Engineering Division - there is a big risk that he will not be in a position to act impartially. Although he may be very experienced and capable from a technical point of view, and able to handle all technical matters, he may not be free to make decisions which involve financial arrangements, etc. in a fair and impartial manner. It is not impossible, nor unknown, for the Employer to nominate himself or one of his own staff as Engineer, but it is rare and certainly causes problems. The text of any clauses referring to the impartiality of the Engineer will probably need revising at some stage, as will the provisions for handling claims and disputes (Clauses 2 and 50). The principle of using an employee of the Employer as Engineer would be more acceptable if a Dispute Adjudication Board (DAB) was introduced to replace the principal provisions of Clauses 2 and 50.1 to deal with claims and disputes.
Model Terms of Appointment of a DAB
Question
What we are wishing to locate is the model terms of appointment published by FIDIC, which are referred to in Clause 20.3(a) of FIDIC's "Conditions of Contract for Design-Build and Turnkey": First Edition 1995. Please could you clarify this reference. If it is a separate publication, we need to get hold of it.
Answer
Model Terms of Appointment for a Dispute Adjudication Board under the Orange Book were issued as a loose-leaf insert and reproduced at pages 151-163 of the Guide. FIDIC has moved on since then, and the best approach would be to base Terms hereafter on those published within the 1999 First Editions of the ne FIDIC Contracts.
Basis for advice
Question
Under what basis does FIDIC offer advice?
Answer
As a matter of policy, FIDIC does not give any official interpretation in respect of any wording in the various documents which it publishes, nor any ruling concerning the rights or wrongs of any actions taken by any parties operating under the terms of a particular Contract. If there is any disagreement or potential dispute between the parties which cannot be settled amicably between them, it will normally be a legal interpretation based on the law of the Contract which will prevail.
How to get advice
Question
To what extent will FIDIC offer advice on its Contracts and Agreements? And how can I get help?
Answer
In general, FIDIC, the International Federation of Consulting Engineers, expects that people using FIDIC Contracts for bids and tenders are fully conversant with the documents. It is generally necessary to prepare Special or Particular Conditions to accompany General Conditions (which remain unchanged). For this one needs to be experienced in drafting contracts. It is not something that can be done by casual readers.
Definition of unforseeable
Question
Reference is made to the definition of unforseeable (Sub-clause 1.1.6.8), how can a time limit or date be specified for an event or circumstance that is unforeseeable? Surely what is unforeseeable before submission of the Tender remains so after it, especially when referred to sub-clause 4.12. It would surely be appropriate to eliminate the seemingly superfluous last part of the sentence, namely ..by the date...?
Answer
We refer to the question "How can a time limit or date be specified for an event or circumstance that is Unforeseeable? Surely what is unforeseeable before submission of the Tender remains so after it, especially when referred to sub-clause 4.12." If additional data (on sub-surface or hydrological conditions at the Site) becomes available on or after the Tender submission date, it might well be possible thereafter to foresee (based upon such additional data) something which was unforeseeable before the Tender submission date (based upon the data available at the Base Date). Therefore, it is essential to define the time at which the question of foreseeability is to be judged.
Role of the Engineer
Question
Please let me know the FIDIC regulations about the role of the Engineer, namely, the terms involving the Designing Engineer of a dam project during the construction period, where the supervision of Construction has been assigned to a different Consulting Engineer. Please note that the International Commission of Large Dams guidlines were significantly involved during construction to ensure that the design intent was met.
Answer
The FIDIC contracts usually involve "the Engineer", who has a defined role to play during construction - and we assume this is the "different Consulting Engineer" referred to. The "Designing Engineer" could be an engineer engaged by the Employer just to design the Works (with the other Engineer taking over to supervise the Works during construction) - or he could be an engineer engaged by the Contractor if it is a design-build or turnkey type project. In the first case, presumably he would be engaged under the FIDIC White Book (or something similar) and his terms of reference under that should define his role (if any) during the construction period. In the second case (if he is engaged by the Contractor), he will presumably be considered to be a part of the Contractor's organisation carrying, in effect, the Contractor's responsibilities in the Contract for design.
Extension of Time
Question
Please assist us in understanding the Extension of Time (EOT): a) Is it necessary for the Engineer to determine the EOT prior to the date of completion; b) If the EOT is not granted within the currency of the contract does it render the time at large and enforcement of liquidated damages as redundant; c) What will be relevance and validity of EOT if the Engineer does not assign any reason for the grant of EOT. What happens to prolongation costs.
Answer
Regarding your recent enquiry regarding Extension of Time and asked me to send you a short reply. Normally, an event causing a delay will occur before the contractual Time for Completion and the Contractor must make his claim within a given time of the event occurring (Red Book Clause 44.2, Yellow Book Clause 26.1). The Engineer must then respond with a given time (or a reasonable time) - he cannot wait until completion to see if the Contract actually needs the time extension. If the event occurs after the contractual time for completion and the Contractor is running late, he may still be entitled to an extension if the circumstances have caused him even more delay (and it was not his fault). If the Engineer does not grant a time extension (or reply to the Contractor's claim) within the currency of the Contract, it would depend very much on the circumstances, and I would suggest that he cannot call liquidated damages until he has replied to the Contractor's claim and definitely rejected it. Normally the Engineer will only grant an extension of time if the Contractor applies for one so I cannot see an Engineer granting an extension "for no reason" - normally it would be in response to the Contractor's claim. The question of costs will depend on the circumstances. If the Contractor can prove he has suffered extra cost, then maybe he is entitled to reimbursement - but it is not an automatic right and will depend on the circumstances.
As you will see, any matters concerning extensions of time depend very much on the circumstances at the time and it is very difficult to give general answers. The intention of the FIDIC Conditions is that the matter shall be dealt with as quickly as possible so that the Contractor knows if he will get an extension and so that he can then plan the rest of his works accordingly. If the Contractor is of the opinion that the Engineer is unreasonably delaying the matter, he should read Clause 5.1 (both books) and see if this can help.
Standard Letters
Question
I am a Civil Engineer, presently working as Contracts Manager. Foreign (non-British nationality) engineers usually have an understanding of the contract document and the associated entitlements/obligations, but always express difficulty in composing (or responding to, if they are on "the other side" , correctly worded "standard" letters to the RE, Engineer or Employer in compliance with the requirements of the various sub-clauses. Do you have such a publication?
Answer
The only book which we can recollect is Musterbriefe in Englisch (ISBN 3-7625-2607-9) although its standard letters are not such as we would prefer to endorse. Although we will review the situation with regard to the new FIDIC Contracts Guide, FIDIC lack enthusiasm for the very concept of standard letters, which seems to be tied up with the concept of avoiding thinking about the situation. However, we do recognise the validity of concerns expressed by those whose first language is not English.
Definition of Cost Reimbursable
Question
I am the legal adviser to an oil company. This company has contracted, using FIDIC Conditions of Contract, with a construction company to perform certain construction works during a refinery shutdown period. A portion of the contract is "cost reimbursable" and I am seeking some definition of this phrase as the costs which are to be reimbursed have caused the contract price to increase by 100% due to lack of management by the contractor. Is there an element of "reasonableness" in a cost reimbursable contract or is the contractor entitled to every penny spent by him?
Answer
We refer to your fax to FIDIC, describing how a portion of the contract is "cost reimbursable" and that you are seeking some definition of this phrase. We regret to advise you that FIDIC is unable to give advice on specific contracts, although it is prepared to give some elaboration of its publications. It seems to us that your enquiry solely relates to provisions drafted for the particular contract, and not to provisions published by FIDIC. You pose the question "Is there an element of 'reasonableness' in a cost reimbursable We would have thought that such a question cannot be answered in isolation, but must depend upon the detailed provisions of the contract, the law governing it, the reasons for any alleged overspend, and (possibly) other matters.
Requirement for a CPM schedule
Question
We are interested in whether or not the FIDIC documents include a contractual requirement for the contractor to submit a CPM schedule (or programme) to the project owner. If so what are those requirements? For example, in Canada the Federal Government's Public Works Department (PWGSC) includes in its specifications Division 01014 which sets out in detail the schedule requirements for the project. Are you aware of anything similar to this in Europe?
Answer
FIDIC's General Conditions Of Contract typically include a requirement for the Contractor to submit (and keep up-to-date) a detailed time programme which includes:
a) the order in which the Contractor intends to carry out the Works, including the anticipated timing of each stage of design, Contractor's Documents, procurement, manufacture, inspection, delivery to Site, construction, erection, testing, commissioning and trial operation,
(b) the periods for reviews ... and for any other submissions, approvals and consents specified in the Employer's Requirements,
(c) the sequence and timing of inspections and tests specified in the Contract, and
(d) a supporting report which includes:
(i) a general description of the methods which the Contractor intends to adopt, and of the major stages, in the execution of the Works, and
(ii) details showing the Contractor's reasonable estimate of the number of each class of Contractor's Personnel and of each type of Contractor's Equipment, required on the Site for each major stage.
These are the basic requirements, and users (project owners) are expected to put any particular requirements in their own Special Conditions, Specification or Employer's Requirements. Their particular requirements may, of course, include CPM.
FIDIC's General Conditions of Contract are the most widely accepted form in use internationally. They are used for contracts undertaken by a wide variety of contractors, and for a wide variety of types of work. It would therefore be inappropriate for FIDIC's General Conditions of Contract to specify CPM, particularly for contractors who do not have staff who are fluent in its use, and also for work for which linear programming is more appropriate.
Engineer's response
Question
What is the relationship between the Engineer's response to the Contractor's claim within 42 days stated in Sub-clause 20.1 and Engineer's Determination, also stated in Sub-clause 20.1 and defined in Sub-clause 3.5. I am little bit confused how the Engineer should perform these two tasks, i.e., the response and determination, in case the Contractor's claim is related to additional cost and/or time extension. If his response and determination are identical, "Engineer's endeavour to reach agreement" should be a precursor to his response? Or, if his response is required prior to the determination, the response can be made at only his discretion and when and on which basis he should make determination?
Answer
Firstly, please bear in mind that the Engineer's (first 42-day) response to the Contractor's claim will usually be to comment and to detail what matters the Contractor should take into account in his further particulars to the Engineer. Thus, there may be quite a few sequences of "Engineer's response" / "Contractor's further particulars" before the Engineer can make a determination.
Eventually the Engineer will have no further comment and will be ready to make a determination in accordance with Sub-Clauses 1.3 & 3.5. Before making a determination, the Engineer consults with both Parties in an endeavour to achieve their agreement. Consultation may take such time, so we haven't constrained it to six weeks but merely forbid unreasonable delay (1.3).
One would usually expect the Engineer's (final 42-day) response to express his detailed comments immediately prior to commencing consultation under Sub-Clause 3.5. If the Engineer commenced such consultation with the Parties before making his (final 42-day) response, the Parties wouldn't have his detailed comments and wouldn't know whether they were agreeable.
One cannot see how the Engineer's (final 42-day) response can be the determination, unless it is the Engineer's "approval" of the claim and he has obtained the Employer's agreement also. The response is specified to be either "approval" or "disapproval and detailed comments", but not "determination".
Sub-Clause 20.1 sets out a detailed framework for resolving each claim unless it becomes impossible to do so. However, it should be regarded as a practical framework, essentially comprising:
(a) "Contractor's claim" / "Engineer's response"
(b) "Contractor's further particulars" / "Engineer's response"
(c) maybe another "Contractor's further particulars" / "Engineer's response"
(d) possibly another "Contractor's further particulars" / "Engineer's response"
(e) rarely, yet another "Contractor's further particulars" / "Engineer's response"
(f) "consultation" / "agreement or Engineer's determination".
Frankly, one would think that competent/experienced personnel should be adopting such a practical framework without it being detailed in the General Conditions. FIDIC has put it in so as to assist others and to discourage procrastination.
Payment by a third party
Question
The purpose of this message is to seek clarification as regards an on-going Contract under the am procedures which presents a peculiarity. Trying to keep it simple:
The Employer is not being payed directly the Contractor;
European Commission is financing this Project and consequently paying the Contract price to the Contractor, without being a contracting party;
There is a procedure for suspending works to be commenced;
Now my question is which provision if any, regulates such a case where the Employer is not paying the Contractor?
Answer
The direct answer is that the FIDIC General Conditions contain no provisions regulating payment by a third party. It is the Employer who is required to pay the Contractor, and who has to set up procedures for making payment. Such procedures typically involve a commercial bank, but may also involve other third parties (for example, the European Commission). Before suspending works, legal advice may be desirable.
Where to start to find out about FIDIC contracts
Question
I am a junior lawyer working at Bangkok, Thailand. I am very interested in the legal area of Project Financing. I have learnt that the FIDIC Form of Contracts have been used worldwide in the field of construction.I am wondering, therefore would like to ask you some questions that which book of contracts published by FIDIC I should read first, e.g. the Red Book or Orange Book or some guideline?
Answer
A good place to start is the "Which Contract?" text on the FIDIC website. If you then go to the Contracts and Agreements resources you can find many articles and presentations. Then maybe consider buying the 1999 suite of contracts (Construction, Plant and EPC-Turnkey). Descriptions are online (Construction, Plant, EPC/Turnkey). Then you should consider buying the FIDIC Contracts Guide.
FIDIC contracts are copyrighted
Question
Please advice whether contracting parties can make use of the standard form of FIDIC contracts, amending portions of the Conditions of Contract and which terms and conditions apply to the use of FIDIC standard form agreements. I am particularly concerned about questions of copyright.
Answer
The FIDIC approach is to leave the General Conditions unaltered and to place all ammendments and additions in Particular Conditions. FIDIC copyrights the entire contract, but grants legitimate users the right to make use of Guidance for Particular Conditions that is included in a section of the published contract. So when you receive a FIDIC contract as a printed docuement or as an electronic whole-document, you incorporate the General Conditions "as is", (by say printing out the General Conditions part from an electronic version, or by adding to tender documents the entire bound contract supplied by FIDIC). You also draw up your Particular Conditions, possibly by copying text provided by FIDIC in the Guidance for Particular Conditions. This Guidance material is copyrighted, but is made available to purchasers of authenicated FIDIC contracts. The printed and electronic contracts also contain forms. Once again, these are subject to copyright, but are made available to authorised users of the contracts (i.e., those that have purchased an electronic or printed document). I hope we have not been tedious, but it is perhaps important to understand the situation since FIDIC guarantees the authenticity of its General Conditions.
I would like to scan a FIDIC contract
Question
I would like to know if the electronic version of the Plant and Design-Build Contract 1st Ed (1999) can be converted from PDF to the Microsoft Word. The reason why I am asking this is that we are thinking of using the electronic file as sort of model form for drafting a contract for customers, but I heard a scanned PDF file cannot be converted to another file.
Answer
We are afraid that what you propose is 100% illegal, and not advised. FIDIC's PDF contracts are encrypted, and indeed you could print and scan them, but you are then infringing copyright. However, FIDIC would consider agreeing to licence your firm to adapt the contract. The fee would depend on the planned usage. It would be at least USD 1000. In general terms, the General Conditions of a FIDIC contract should not be modified. The Special Conditions are for the changes, and the contract gives guidance that you can copy, if you purchase a contract.
Differences between contracts
Question
I would like to know about FIDIC based contracts: what are they about and their diffrences with other contracts.
Answer
It is suggested that you read the articles kept in the resources site under http://fidic.org/node/149.
Photocopying
Question
To order to turn a FIDIC contract such as the EPC/Turney Contract into a form of a contract for a contractor, I do not want to include certain clauses (minimal), and I do not want to include the Part called "Guidance for the Preparation of Particular Conditions". Are we allowed to photocopy the EPC/Turnkey Contract with an appendix for the Particular Conditions but excluding the "Guidance for the Preparation of Particular Conditions", or may we obtain an electronic copy (from which we would print up to five copies with certain minimum amendments) and again exclude the Guidance portion? I have read the explanations at the FIDIC.org Bookshop web-site but I am not clear on extracting the electronic copy (but I can get help in this task) and I am concerned about breach of copyright.
In short, I want to turn out a well prepared contract agreement, dispute adjudication agreement, General Conditions and Particular Conditions in a bound form that would keep the FIDIC logo and full name.
Answer
Normally, for a contract based on a FIDIC Conditions of Contract you would leave the General Conditions untouched, and simply include Particular Conditions and relevant appendices. For maximum effect, we would urge you to purchase an electronic copy so that you can print out a PDF file that includes the General Conditions. You are authorised to include this print out of the General Conditions in your own document. There is no copyright infringement if you have purchased and installed an authorised, encrypted version of a FIDIC contract. Under the terms of the users aggreement for an electronic version of a FIDIC contract, you can also print out forms and appendices which are supplied as a PDF file and/or in word processing formats.
Accusations of impartiality
Question
Can you please advise what action can be taken with FIDIC where there is no dispute between the Contractor and the Employer, but the Engineer (a FIDIC member engaged and funded by a third party on behalf of the Employer) has acted with apparent (but unrequested) partiality, but whose actions are leading the Employer towards needless expense and probable arbitration.
Answer
It is not whether the question originated from someone who is likely to be the Contractor, or from someone who is likely to be the Employer/Client. One should bear in mind that serious allegations are being made, which may not be valid. If the question seems to have originated from a Contractor, the appropriate course of action would be for a very, very senior member to request a meeting with a very, very senior member of the Employer, so that the allegations may be discussed in confidence. If the question seems to have originated from an Employer (which seems unlikely), if he is a member of a Member Association, the Association would be consulted. The Contractor's Contract MAY (or may not) constrain the Employer from replacing the Engineer. In either case, NO ACTION CAN BE TAKEN WITH FIDIC, because the Engineer is not a member of FIDIC as such. If an IFI (e.g., the World Bank) is providing funds for the project, they could also be appraised of the situation.
Prime cost items
Question
I want to ask a question regarding the prime cost items in the tenders which are supposed to be used by clients. In Dubai the clients asks the consultants to insert the prime cost against some items espcially for the finishes.
I would like to know the following: for a lumpsum teder where the BOQ is to be prepared by the contractor based on the quantities worked out from the tender drawings.
The floor tile p.c. rate specified in BOQ is 30.00 per m2 ( for supply only ) and contractor had quoted 50.00 per m2 for supplying fixing the tiles considering supply rate of 30.00 for suppose 2500 m2 of tiles worked out from the tender drawings ( this quantity might be the adjusted quantity and may not represant the exact quantity).
Now if the client supplies it @at 25.00 per m2, the contractor has to offer a saving for the item. What is the criteria for submiting the saving to the client.
a) It is on the BOQ quantity, actual quantity or ordered quantity, which includes the wastage?
b) At what rate the savings is to be submitted? Is it the difference between the p.c. rate specified and the supplied rate, i.e. 30.00 - 25.00 = 5.00.
Answer
The FIDIC Conditions of Contract do not include provision for prime cost items. If an Employer wishes to include a pc item in the Contract then it is necessary to explain suitable procedures in the contract documents.
Lien contractor
Question
Does a FIDIC contract have a clause about lien contractor?
Answer
The question is not clear what is meant by a 'lien contractor'.This is not a phrase which is used in FIDIC Contracts.
Extension of time
Question
I would like to ask a question related with a time extension to be given to the contractor as per Clause 44.1 of the Red Book 4th Edition contract. One of our contractors due to his default has not completed his works in the contractual time. The contractor has applied us for an extension of time due to adverse weather conditions occured in the delayed period by stating that if time extension is not given to him he will be double penaltized due to his own costs in the prolongation period and penalty deductions.
Answer
Clause 44.1 does not specifically refer to further delay causes which may occur after the expiry of the Time for Completion. The Engineer should consider all the circumstances, including the Contract and the applicable law, consult with the Employer and the Contractor and decide whether the circumstances are such as fairly to entitle the Contractor to an extension of time. If no extension is granted then the Contractor is correct to say that he will be liable for Liquidated Damages/Penalties in addition to his own costs.
Failure during the maintenance period
Question
What is responsibility of contractor if a structure like a bridge iha partially failed after 3 years of maintinace period.
Answer
You refer to the situation when there has been a partial structural failure, 3 years after the end of the maintenance period. The Contractor has completed his work under the Contract, it has been accepted by the Engineer and Employer and the Defects Liability Certificate should have been issued. If the Employer thinks that the Contractor is, in some way, to blame for the failure then his only recourse is through the liability provisions and procedures under the applicable law.
Subcontractor contract
Question
We are employed as main contractor to carry out a 40 story building. The contract used by the Employer is FIDIC Conditions of Contract 1st edition 1999. The employer has now nominated the MEP works and instructed us to use the same conditions of contract to administor the subcontractor. Can you pls advise the legal and administration implications of using the conditions of contract to administor the subcontractor. The employer is represented by an establised uk based company.
Answer
The FIDIC Conditions of Contract are intended to be used for Contracts between the Employer and the Main Contractor. The wording is not suitable for use as a Subcontract and a considerable number of carefully prepared Particular Conditions would be necessary. For example the powers and duties of the Engineer are not appropriate for a Subcontract. The legal postion under the applicable law, which is presumaby UAE Law, would also need careful consideration. FIDIC can not comment on legal matters or on the preparation of Particular Conditions.
Role for supervision consultant or construction manager
Question
In a FIDIC contract with supplementary conditions, there is a role for supervision consultant for all technical matters, and a role for construction manager for administrative matters. can we say that the SC is the "The Engineer", although some of his duties and responsibilities were given to a costruction manager (CM)? This situation arises in a few cases in the middle-east.
Answer
FIDIC The FIDIC position stated in a draft position paper is clear, and clearly the best. It says: "Some people say that the system (a separate CM) works well, but this is probably a matter of personalities rather than organisation. There are obvious potential problems of divided responsibility, with consequences for the efficient management of the project, particularly if there are claims to be considered. The FIDIC system of an Engineer in charge, with suitably qualified assistants, must be preferable when the project only has a single construction contract." It says that making the SC the "Engineer" is the best if there are the are a SC and a CM. But the role of the CM must be clear, and the SC/Engineer must have all the responsibilities specified in the contract. The SC can of course delegate. How this delegation of duties to a CM is best done is unclear. One way is a separate Client-Consultant Agreement with the Client for specified services, and the main contract refers to this. ........................ QUESTION I still have some ambiguity about the issue. The client needed the services of the Construction manager ( CM ). In fact, the client already signed an agreement with the CM. the role of the CM is clearly stated in his contract with the owner, as to take care of the administrative issues, scheduling and monitoring and cost control and budgeting, also all correspondence shall be through the CM. The CM shall monitor the coordination between all T.C's ON SITE. Conduct progress meetings. Furthermore, the client needed the services of the consultant ( Design & Supervision ), and signed an agreement with an engineering firm. The responsibilities of the DC and SC are clearly mentioned in this contract agreement; responsible for quality and technical issues and review & comment and approval of shop drawings and other responsibilities, with a clear emphasis that there will be a CM with specific role(as specified earlier). Still, the consultant raises the issue of WHO IS THE ENGINEER"? My question: is this a valid issue? If the special contract agreement specifies the scope of responsibilities of the consultant during design and supervision phases, which are somewhat different than what is defined in FIDIC as ENGINEER, is this a legal defect in the contract between the client and the consultant? ........................ FIDIC Any separation of the duties of the Engineer would need to be thought through very carefully. If the project only includes a single construction contract then there seems to be no benefit in a separation of duties. However, if the project includes a number of simultaneous construction contracts, then there are important issues of co-ordination of contracts. Different designers, and even different Engineers, may have been appointed for the different construction contracts, so an overall manager is necessary. If it is desired to separate the roles then the exact responsibilities and authorities of the different organisations would need to be decided by the Employer and clearly defined in the Contracts between the Employer and each Party, including the Contracts with the Contractors. The drafter would also need to consider any statutory supervision requirements in the applicable law. All this would have implications for a number of different clauses in the FIDIC Contracts and would certainly require very careful drafting to avoid problems during construction and dispute resolution.
