Construction Law/Appointment of The Engineer
QUESTION: Sir,FIDIC and PEC documents are silent about procedure to be adopted for the appointment of The Engineer on a construction project.
Various practices are as under.
1.Supervision Consultant is designated as The Engineer through its Head.
2.Employer designates one of its professional employee as The Engineer.
3.A professional known to Employer is taken on board as The Engineer.
We are a Government organization and have been advised to hire services of The Engineer through competition following PPRA rules .We have the apprehension that following this procedure we may end in chaos.
Will you kindly throw some light and by referring to some document recommend about the right way The Engineer should be hired for a project.
Engineer Abdul Hafeez
ANSWER: Dear Abdul Hafeez
You have raised a very interesting and important question. Generally the Employers use all the options mentioned in your question. The basic issue is the appointment of a person who can do the job vested in him by the Contract and it may be a person whom the Employer can trust, based on his professional capabilities to handle not only technical issues but also the complicated contractual issues. It also depend on the nature, size and complexity of the Project concerned.
I will now discuss each option:
(i) This is a good option if the Supervision Consultants show in their resume that they posses such capabilities and are in a position to take decision independently and professionally. In this case the Head of the Organization authorizes a senior professional from the organization to act as the Engineer and this is a common practice in Pakistan.
(ii) This is not a good option to adopt. How can a professional from the Employer Organization give decisions which is to be considered as neutral no matter how professional it may be. The Engineer should be a person who should command respect from both the Employer and the Contractor regarding his professionalism, integrity and neutrality. How can a person from the Employer's organization display such qualities. Adopting this option should be discouraged.
(iii) This is a better option in case the Employer is interested in independent decision making. Depending on the size and complexity of the issues expected to be encountered, the Employer may select a professional very well known for his professional ability and integrity to act as the Engineer. Such an Engineer commands the respect of both the Employer and the Contractor. He is not involved in the day to day matters of construction supervision and therefore his decisions can be trusted to be neutral and without any bios.
Frankly speaking, and as you have rightly pointed out there is no specific method of selecting the Engineer mentioned in FIDIC or PEC documents. Actually FIDIC or PEC are the Organizations who prepare the Contract Conditions and are not interested in such matters.
As far as PPRA is concerned, Option (i) is compliant. But as I said earlier it is the Employer's trust and confidence that matters and if such professionalism is lacking there, especially for large projects, then he should look for option (iii). This is why some organizations opt for hiring the services of their retired employees for such assignments.
As for as option (iii) is concerned, PPRA allow negotiations with specialists. Following procedure of competition generally result in the selection of the inefficient professional as any professional with sound knowledge and relevant experience will not appear in such competition as they do not compromise on their fees. Such professionals consider appearing in such competition, a mere waste of time. Just on a lighter note, have you ever seen a Specialist Surgeon appearing in competition for doing surgery of even a VVIP. Frankly speaking,I have yet to come across a case where the services of the Engineer is hired through competition except when a whole package of consultancy services are required.
I hope this answers your question.
Abdul Majid Khan
---------- FOLLOW-UP ----------
QUESTION: Sir,Thanks for your deliberations on the subject.Can you guide me to specific reference in PPRA where negotiations with specialists are allowed without adoption of competition criteria in the first instance.Specialist will be defined as The Engineer in our case.
Dear Abdul Hafeez
Thanks for the follow up question. I tried to find out specific reference for you but PPRA rule, though prepared for all procurement, generally deal with contractors and suppliers. Currently I am working on a project and is using PPRA Rules Punjab. The latest PPRA Rules, Government of Punjab, under Rule 46 explains the procedure for hiring individual consultants. Under this rule the individuals are not required to submit proposals and selection is based on qualification and experience for the assignment among those who have shown interest or have been approached by the procuring agency. Please visit http//ppra.punjab.gov.pk for more details.
I hope the question is answered.
Abdul Majid Khan