Construction Law/FIDIC Engineer

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Question
Particular Conditions of our contract designate the Engineer as a company and the various Employers Personnel as other consultant companies.

Are these companies (if requested to do so) required to specify a person to be responsible for those duties?

The "Engineer" is a large practice with numerous persons involved. I am particularly concerned that in the event of a determination having to be made it will be done by a principal with no knowledge of the project (except the instructions of the CLient). Fuerthermore with a number of personnel we cannot expect any consistency in interpretation and instruction.

Are we entitle to insist that we know the name of the "Engineer" as a person rather than a company

Answer
Dear Terry,

Thank you for this question.


You have not stated the form of contract governing the project , and you have referred in summary to the particular conditions; both the contract and the full extent of the particular conditions may be of importance.

Under a contract such as the FIDIC 1999 Red Book the Employer must appoint an Engineer. There is no difficulty in theory with the Employer appointing a (large) consulting practice, indeed that is commonplace. However there are potential practical difficulties, as you have alluded to. However, for the reasons following you are entitled to know the identity of any individual who performs any of the functions or duties of the Engineer.

Although the Employer appoints an Engineer, the Engineer can delegate his duties and authority to assistants, who should be suitably qualified PERSONS.

I emphasise the word "persons" as in law there can be a "natural person" and a "legal person". The FIDIC form does not specify which of those is intended, although my opinion is that it should be a natural person (a human being ) and not a legal person (a company) primarily because a "legal person" is legal fiction, a philosophy in law. In addition a legal person cannot, of itself, comply with the FIDIC requirement that the "person" should be fluent in the language of communication under the contract; it requires a human inout to fulfil that role and at the very least a further delegation of responsibility to an individual human being.

How does this translate into a practical resolution for your problem? It is not necessary for you to know the name of an individual acting as the Engineer, however you do need to know the name/identity of any individual to whom the powers of the Engineer are delegated.

As the making of a determination is the act of an individual or individuals, whether alone or in committee with others, you are entitled to know the identity of the person or persons to whom the authority to make determinations has been delegated.

Under the FIDIC contract you can refer any issue you have concerning a determination or an instruction of an assistant to the Engineer. In turn that would necessitate the Engineer notifying you of the identity of the individual performing the review.


I hope that this assists you.

Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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