Construction Law/The Engineer

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Question
Dear Sir,

It is well understood the role of the Engineer under FIDIC Red Book 1987 / 1992 (Reprint) for projects in Africa.

What is the option for the Contractor if the Engineer suspends his employment with the Employer midway of the project?

Considering that there is no provision made for this abnormal condition under FIDIC, must the Contractor continues with the Works.

Or assuming it is an implied responsibility of the Employer to have an Engineer on the project, can the Contractor declare the project at large and suspend due to the fact the contractual mechanism has failed and the Employer is in breach.

Finally, is my understanding correct that under the UK Construction Law the Contractor will be in breach if he suspends the Works without any supported contract clauses? How will the Construction Law look at this condition?

Best Regards

Daniel

Answer
Dear Daniel,

FIDIC 99 is a bit better than FIDIC 4 in this respect.  The Employer is allowed to replace the Engineer under FIDIC 99.  In FIDIC 4, there is always a problem if the Engineer dies or resigns, especially as the Engineer was often a person rather than a partnership or company.  

You don't say why the Engineer suspended himself, but it must have been a difficult situation for him.  The Contractual situation is for the Employer to appoint a new engineer.  The Contractor then prices the effect of the change and submits a request fro recompense for extra costs or time or both.  Another problem is that the sanctions for an Employer's breach of contract are rarely specified.  I suggest that you continue to work as normal, while notifying the Employer of any effects and costs.

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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