11:01 07/05/2024 The Role of the Engineer in a FIDIC type of Contract

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The Role of the Engineer in a FIDIC type of

Contract
Luis Esteves Pereira + Follow
TROJENA - NEOM Mountain Region
Published Aug 31, 2021

FIDIC form of contracts are popular in the GCC region and elsewhere in the world.

Developers, Contractors, Consultants and Lawyers all are familiar and love to work with
them due to many years of practice and number of cases that went well with no
conflicts, or ended in arbitration or court but with expectable and predictable results.
We could say that FIDIC is a safe contractual harbor for everyone due to its stability
and accumulated experience of all parties.

This may be because FIDIC contracts are relatively simple and a good base for
elaborating a tailored form, where details, procedures and norms can be slightly
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11:01 07/05/2024 The Role of the Engineer in a FIDIC type of Contract

adjusted to serve better the interest and addressing the issues and experience of a
particular Owner.

Construction contracts are typically settled between The Owner and The Contractor.
The Owner is the entity that owns the works, also designated as The Employer, and
hires The Contractor to execute the works according to certain requirements and an
agreed price and time frame, all settled in the Contract.

FIDIC Contracts, although between The Owner and The Contractor, the parties signing
the contract agreement, need The Engineer to be operated.

The Engineer is the entity hired by the Owner, who administers and manages the
Contract.

In his capacity, The Engineer produces and maintain records, elaborate and emits
opinions and interpretations, prepare and issue certificates, manages conflicts, make
determinations on disputes, and take other actions as required to substantiate and
record the life of the Contract.

Although paid by the Owner, the Engineer is required to maintain independent stance
with equidistance between Owner and Contractor, not taking side of any party in any
dispute or conflict, unless in full compliance with the Contract and his best professional
assessment.

Many times the Engineer becomes himself the focus of the discussion, for instances
when Contractor’s are not happy with whatever action by the Engineer, a frequent and
common approach to the Owner is “We have to talk about the Engineer”. On the other
hand, many times the Owner will not resist to impose a certain point of view to The
Engineer about any subject matter under dispute, exerting a pressure that derives from
the fact that the Owner is actually paying the service and would appreciate to obtain
sympathy of the Engineer to their positions.

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11:01 07/05/2024 The Role of the Engineer in a FIDIC type of Contract

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The Engineer, in each particular contract, will have to approve the Contractor
submittals prior to execution of the works, such as shop drawings, materials, pre-
qualification of sub-contractors, or whatever the Contractor finds necessary to submit
and obtain approval before proceed.

The Engineer will also provide clarifications to doubts raised by Contractor in the
interpretation of the contract documents, usually through the submission of RFIs
(Request For Information). On many occasions, the responses to the Contractor’ RFIs
are a source of disputes in the Contracts, either because the Contractor do not agree
with the response or because they may understand that the response of the Engineer
will require them to execute works beyond their scope or in costlier manner than they
have considered.

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11:01 07/05/2024 The Role of the Engineer in a FIDIC type of Contract

One of the most important actions of the Engineer is to prepare and emit Engineer’s
Instructions to the Contractor. Typically, the EIs are used to request the Contractor to
execute works that may be beyond the scope of works defined by the Contract, in this
case the EIs are the starting point of the Change Management process, leading to a
Variation order that will change the price and/or time of the contract.

The Engineer has also to control and monitor the progress of the works and if the
Contractor is able to complete the scope in accordance with the time stipulated in the
Contract. Whenever the Engineer finds that the work progress is not satisfactory, he
may request another programme of works from the Contractor, using additional
resources or different methodology, to ensure the works will be completed within the
contractual time for completion.

On a monthly basis or any other period as defined in the Contract, the Engineer will
verify the quantity of works executed by the Contractor and issue a certificate, which
will be used for payment to the Contractor.

One important area of responsibility of the Engineer, is to ensure that the works are
executed within the quality requirements specified in the Contract. For that purpose,
the Engineer inspects the works on a regular basis, or upon Contractor’ s request at
certain holding points, as defined in the Quality Plan submitted by Contractor and
reviewed and approved by the Engineer.

Another important duty of the Engineer, is to ensure that the Contractor is executing
the works in respect of the applicable rules and guidelines for protection of life and
health of the labor force. In this respect, the Engineer will review and approve the
Contractor HSE Plan (Health, Safety and Environment) and RAMS (Risk Assessment and
Method Statements) for relevant activities.

Then, the Engineer will ensure that Contractor is executing their works in compliance
and accordance with methods and the requirements of all documents. When regularly
inspecting the works, the Engineer shall raise NCRs (Non-Conformance Reports)
anytime deviations to the approved norms and procedures are detected at site. It will
be Contractor’s responsibility to fix the NCRs, otherwise some penalties may be applied
in accordance with the Contract.

In the FIDIC RED BOOK EDITION 1999, the role of the Engineer is governed by the
Clause 3 and in its sub-clauses addressing: 3.1 Duties and Authority, 3.2 Delegation, 3.3

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11:01 07/05/2024 The Role of the Engineer in a FIDIC type of Contract

Instructions, 3.4 Replacement and 3.5 Determinations. Many discussions are being held
in diversified forums, if The Engineer shall be appointed as a person or an entity, which
could be a firm. Opinions are divided, however many companies will decide to take the
role of The Engineer, and appoint a Resident Engineer with delegation of duties,
responsibilities and authority.

Personally, I have already been in the role in both capacities, either appointed directly
as The Engineer, or in the capacity of Resident Engineer. Clear documentation and
assignment chart should be provided, because the extent of responsibilities and
delegation are slightly different, but this is not to be addressed in this brief and quick
explanation.

I will leave the claims and the role of the Engineer in processing Contractor' claims to
another article specifically dedicated to this highly complex matter,

Richard Patterson 7mo

BA MBA CEng FICE, NEC and Procurement Specialist at Mott MacDonald

Luis Esteves Pereira - good short article for those new to FIDIC.

The family of contracts in which I specialise is the NEC. Its 'Engineering and Construction Contrsct
(ECC) is unusal in the world of contracts as it has TWO people 'on the side' of the Client (but
independent as the FIDIC Engineer is supposed to be):

They are :

The Supervisor who looks after quality, testing and Defects (only) in part 4 of the contract and the

Project Manager who does everything else:

- 1 changing the Scope
- 1 early warning
- 2 accepting designs from the Contractor
- 2 accepting Subcintractors
- 3 accepring programme
- 5 payment
- 6 complensation events
- 7 title
- 8 liabiliry and insurance
- 9 termination

You can use the super flexible ECC as an alternative to FIDIC Red, Yellow and Silver Books.

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11:01 07/05/2024 The Role of the Engineer in a FIDIC type of Contract

If interested, I did s comparison session for ICE in UAE last year:

NEC Introduction and comparison with FIDIC

Recording
https://drive.google.com/drive/folders/1fX5gQR65Yz7gdFoX0AWB0loSSOmWqvw9?usp=sharing

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