Construction Law/Sub-clause 3.2

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Question
Hello,

Sub-clause 3.2 states that the Engineer is not permitted to delegate his authority under Sub-Clause 3.5, except with the agreement of both Parties.
What's happening if the Engineer delegates his authority, receives no confirmation whatsoever from the Parties and after a long period of time from the notice of delegation, when a Dispute arises due to a determination, one of the parties alleges that the Engineer's determination is not valid due to the non compliance with Sub-Clause 3.2.

Can this situation be considered as Parties mutual acceptance of the delegation although FIDIC is silent on this matter?


Regards


Ionut

Answer
Dear Ionut,

Thank you for this question.

In the circumstances you describe I suggest that each action taken by the Engineer through its representative is a breach of contract and each can be actioned separately; however you should observe the notice requirements of sub-clause 20.1 for example. Furthermore, he fact of an instruction or determination being made by the Engineer's representative does not always mean that the instruction/determination is wrong.

If the Engineer's representative issues an instruction you should challenge it and ask for the Engineer's confirmation. Similarly with a determination made by the Engineer's representative. The Engineer can either validate the instruction or determination of its representative or it can over turn the instruction/determination and re-issue.

In the circumstances, are you challenging the determination merely because it was issued by an unauthorised representative or because it is fundamentally wrong? If the former is the case, you should be cautious.


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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