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Construction Law/the Engineer is a company or an individual

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Further to your answer about the 'Engineer' being a company, I would add that the 'Engineer' shall assign duties and delegate his authority (Sc.3.2) - except Determinations as per Sc.3.5 - to assistants, who may include a 'RESIDENT ENGINEER'; this one  is an individual, and usually is referred to as 'the Engineer', thus creating the confusion.
Sub-clause 3.4 - [Replacement of the Engineer] requires that the Employer gives 42 days notice to the Contractor of the intended replacement Engineer, and gets the Contractor's 'no objection'.
Does the replacement of the 'Resident Engineer' (the individual) requires a 42 days notice and the Contractor's 'no objection'?
I think NO, the 'Resident' Engineer' is a member of the 'Engineer' and is not replaced by the Employer, but by the 'Engineer' - the company (most probably with the consent of his client, the Employer).
If, as most often happens, the Engineer is not named in the Appendix to Tender / Tender Data, and is nominated after the awarding of the work contract, has the Employer the obligation to give the 42 days notice to the Contractor, and secure the Contractor's 'no objection' ?  
Thank you very much for your attention, best regards. Alfonso

Answer
Dear Alfonso,

Thank you for your contribution.

Some of your comments highlight the very different practices and lax approach that is adopted around the world. In my 30+ years of experience I have never yet encountered a situation where the Engineer was not named prior to the contract being executed. Further, whilst the term 'Resident Engineer' is in common usage, it is a term that is not recognised in the standard FIDIC form of contract. I remember the term being used from the English ICE Form of Contract; perhaps it is a hang over from those days.

Under the FIDIC general conditions the Engineer may delegate powers to assistants. Whilst the Engineer's Assistants are those who tend to be resident on site (the resident engineer) that person is not the Engineer and the full powers of the Engineer cannot be deleted to the assistant. (See sub-clause 3.2) You are correct, therefore, to say that the Engineer's Assistant (the resident engineer) is appointed by the Engineer, not by the Employer; indeed the Employer has no right under the FIDIC contract to be involved in the appointment of the Engineer's Assistant unless agreed with the Contractor. (See sub-clause 31.; the Employer undertakes not to impose further constraints on the Engineer.)

If the Engineer's Assistant (resident engineer) is to be replaced the replacement is named by the Engineer. The FIDIC contract is silent upon the period of notice, if any, that the Engineer is to give when the Engineer's Assistant is to be replaced and, in theory, the Engineer's Assistant can be replaced at a moment's notice.

Finally, if the Engineer is not named prior to the Contract being executed the Employer is at immediate risk of delaying the Project as it is the Engineer who determines the Commencement Date. In many cases the project starts before the contract is signed. The FIDIC contract provides for a default commencement date timed from the contractor receiving the Letter of Acceptance. In that case the project would begin and the Employer would have no one in place to give direction.



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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