Tag Archives: employer

The engineer’s duty to provide all necessary drawings to the contractor

Under the ICE conditions the engineer has a duty to provide the contractor with the drawings and further instructions needed to carry out the works. This is additional to the tender drawings issued which do not need to show every detail. The engineer must therefore watch construction progress to ensure any  further drawings the contractor needs are supplied to him in good time. These may include drawings from plant suppliers of the foundations required for their plant and so on. If the engineer does not supply such drawings in time, the construction could be delayed, causing the contractor to claim for delay to part or whole of the job and any extra cost arising, which will have to be met.

If the design of the works (or part of them) has not been undertaken by the engineer for the construction but by some other firm, the engineer will have to ensure they produce any further drawings and information required in good time. The engineer then has less control over the situation, with a greater chance of delays and errors arising. Time must be allowed for the engineer’s checking and possible amendment of designs submitted by others. A prudent engineer will ensure that all such information is in his hands as soon as the construction contract has been let.
The engineer may require the contractor to supply drawings and details for his temporary works, such as formwork, including design calculations for the same. These must be checked and consented to by the engineer to ensure they are suitable and not detrimental to the permanent works. Time must be allowed for this process including time for any possible amendments.
Designs will also have to be checked against safety requirements of the Construction, Design and Management (CDM) Regulations (see Sections 10.2 and 10.3).
On some large jobs or those overseas, there has been a practice to divorce construction from design. The employer uses one firm to produce design drawings and specifications, on receipt of which the employer pays the designer off.
The employer then uses the drawings and specifications to get tenders for construction, and engages another firm to supervise the work of the construction contractor. This approach can be very unsatisfactory because, if constructional difficulties are encountered or variations prove necessary, the measures taken may not be in line with design assumptions made by the designer. The firm supervising construction will have no rights to contact the designer, and the designer has no obligation to provide any further information.
For some types of structures, such as dams or earthworks, where the safety and durability of the structure is highly dependent upon the nature of the foundations and materials used in the construction, a responsible engineer or firm of consultants would not be prepared to undertake the design without also having rights to supervise construction.

Limitations to the engineer’s powers under ICE conditions

Under the ICE conditions the engineer can only instruct a variation of the works which is ‘in his opinion necessary for the completion of the works’, or ‘desirable for the completion and/or improved functioning of the works’.
Thus the engineer cannot order matters which are, for instance, extraneous to The employer and his engineer 91

1Although he has no duty to act impartially, he will in practice do so, to avoid a dispute arising which the contractor takes to adjudication or arbitration.

the works or which add entirely new items; these are matters the engineer must refer to the employer who will need to negotiate with the contractor his agreement to undertake the addition (see Section 17.3).
Although the engineer is given a wide range of powers, he should not use them without reference to the parties to the contract, either of whom may wish to state his view on matters the engineer has to decide. The FIDIC conditions, for instance (see Section 4.3), specifically call for such consultation by the engineer as part of the procedure he must adopt before arriving at his decision.
However, if the employer wishes to restrict the engineer’s powers which would otherwise be exercisable under the contract, the employer must state in the tender documents the specific powers which the employer reserves for himself. Both the ICE conditions Clause 2(1)(b), and the FIDIC 4th edition conditions require this. But it is unwise for the employer to reserve too many powers for himself, because this could affect the basis of contract and reduce the benefit of having an independent engineer. Tenderers might then take a different attitude towards the contract, since a tenderer may only offer his lowest price if he is confident that an independent engineer will administer the contract. Employers should also be aware that prior approving of matters such as extension of time or claims may restrict their ability to dispute them later.
However an employer may sometimes wish to ensure that he is involved in decisions likely to cause additional expenditure above some given limit, or which alter significantly some aspect of the works. In practice, such restrictions  are unlikely to detract from the engineer’s independent position because the engineer should keep the employer advised of such matters and endeavour to agree with him what should be done. Most extra costs arise from having to deal with unforeseen conditions which must necessarily be dealt with, or from alterations required by the employer himself.
A different situation can arise if it becomes evident that the estimated final cost of the contract is approaching or likely to exceed the contract sum. In that case the engineer must forewarn the employer in good time, because an employer such as a government or local government authority, may have no authority to spend more than the contract sum, or may need to go through
a lengthy procedure to obtain sanction for any excess expenditure. In these
circumstances the employer may need to step in and negotiate with the contractor
a change to the works required, or perhaps deferment of construction
of part of the works to some later date.

A note on alternative provisions of the ECC conditions

Under the ECC conditions a project manager is appointed to administer the contract and he has no duty to act independently or impartially.1 He represents the employer, so acts for the employer who is committed by his manager’s decisions. Consequently the employer has no right under the contract to take a dispute with his manager to adjudication or arbitration. But if the contractor disputes any action of the project manager, this comprises a dispute between the contractor and the employer which can be taken to adjudication or arbitration.
Asupervisor on site (with assistants if need be) is also appointed to carry out certain specified duties relating only to the quality of construction. He inspects and tests the work (Clauses 40 and 41) and instructs the contractor to search for and remedy defects (Clauses 42 and 43). He submits reports to the project manager and the contractor. Where his appointment is separate from that of the project manager, their respective responsibilities need to be carefully defined and co-ordinated.
The project manager’s duties include many similar to those listed above for the engineer under the ICE conditions, in particular under the ECC these include:
• giving early warning of changes (Clause 16);
• resolving ambiguities in the documents (Clause 17);
• deciding and certifying completion (Clause 30);
• accepting or not accepting the contractor’s programme (Clause 31);
• instructing a suspension of work (Clause 34);
• certifying take over of the works (Clause 35);
• assessing and certifying payments due (Clauses 50 and 51);
• deciding on compensation events, asking for quotations from the contractor for these and assessing any payment or time extension due (Clauses 60–65).
Further differences between the ECC conditions and ICE conditions are dealt with in Sections 17.3, 17.8, 17.11 and 17.12.

The role of the employer’s engineer under ICE conditions

Under the ICE conditions the employer appoints an independent engineer to administer the contract for construction termed ‘the Engineer’ under the contract. This engineer is required under the ICE conditions to ‘act impartially within the terms of the contract having regard to all the circumstances’ (Clause 2(8)). He (or she) may often be a consulting engineer engaged by the employer, or can be a member of the employer’s staff, but this does not affect the duty to act impartially.

The advantage of employing an engineer who has to administer the contract impartially is that both the employer and the contractor can expect their interests to be dealt with fairly. Also when the contractor can expect fair payment  for extra work ordered or arising from some unforeseen trouble, his risks are reduced, thus enabling him to submit his keenest prices. Both the employer and the contractor can, however, challenge any decision of the engineer by taking the matter in dispute to a conciliation procedure, adjudication, or to arbitration for settlement.
Since the employer does not administer the contract he cannot issue an instruction direct to the contractor, he can only request the engineer to do so.
But the engineer is bound by the terms of the contract, so if he finds he has no power to implement the employer’s request, or thinks to do so would amount to an unfair administration of the contract, then the employer has to put his request direct to the contractor for settlement outside the terms of the contract.
This rarely happens, but as an example, if the employer wants the contractor to stop working for a day so that he can bring a party of visitors on site to view the construction, he has to seek the contractor’s agreement to this because the
engineer usually has no power to order this.
The engineer’s duties set out under the contract are extensive. Under the 7th
(measurement version) of the ICE conditions these duties include the following:
• Clause 5: explaining any ambiguity in the contract documents.
• Clause 7: issuing any further drawings or details needed for construction.
• Clause 12: confirming or deciding on any actions to overcome unforeseen ground conditions should these be encountered.
• Clause 13: ensuring that the works are constructed in accordance with the contract.
• Clause 14: checking that the contractor’s programme and his methods of constructing the works comply with any specified needs and permit the work to be finished without harm to the permanent structures.
• Clause 36: testing or witnessing tests on materials either during manufacture or on the site, and (Clause 38) examining any work such as foundations which will be covered as construction proceeds.
• Clause 41: fixing the date for commencement of the work and, (Clause 40)
ordering suspension of the work or part of it if this proves necessary.
• Clause 44: determining any extensions to the time allowed for completion of the works and (Clause 48) certifying when completion has been achieved.
• Clause 51: ordering and (Clause 52) valuing variations to the works.
• Clause 52(4): keeping records of facts relating to any claims made by the contractor and deciding the amount, if any, of extra payments due as a result.
• Clauses 55–57: measuring and valuing the works constructed.
• Clause 60: considering the amounts of interim and final payments to the contractor and certifying those amounts as are in his opinion due.
• Clause 66: giving his decision on any disputes specifically referred to him;
such decisions being subject to adjudication or arbitration if not accepted by the employer or the contractor.

Quality assurance considerations

A contractor may run a quality assurance (QA) system and some employers  take this into consideration when making a list of selected contractors for tendering. QA is an administrative system for checking that the quality of a firm’s output complies with some set standards (see Reference 1). But this does not include a definition of the standards. For example a contractor may issue  a design manual for formwork; this is his ‘quality standard’. His QA system then only stipulates the actions required to ensure conformity to such standards.

Such actions may include:
(a) designers must use the design manual;
(b) must have their designs checked by the firm’s formwork specialist;
(c) the specialist must check and sign the design as approved;
(d) the signed design sheets must be filed, indexed and kept;
(e) the agent or his site engineer must check and sign that the formwork is erected as designed;
(f) the contractor’s safety supervisor is to inspect and sign that the formwork erected is safe for use.
A QA system can cover a few or a whole range of a firm’s operations, but to ensure that it meets the intended objectives (which have to be defined) it has to be audited. Audits can be carried out internally by a member of the firm, or by a client proposing to employ the firm, or by an independent authorized certifying body who can issue a certificate of approval (see Reference 2). In the last case the QA system is said to be certified. Repeat auditing is required from time to time.
A supplier may say he runs a QA scheme to the current standard of ISO 9000, but this has nothing to do with the standards he adopts for his products which need not conform to any quality standard. Also a contractor can have a QA system but people may fail to follow it. A QA manager can be appointed to see the system is operated; but he will not know when checkers have signed without actually checking, nor may he know when checks have been missed.
On site a QA system can be difficult to run because most instructions will be given verbally, checks are visual, and much work is sub-contracted or done by temporary labour. Thus a QA system can exist, but it may not be effective.
A1994 report on seven major projects for the UK Concrete Society gave many instances of defects observed in concrete design and construction despite QA systems being run (see Reference 3).
A further difficulty is that the engineer must have the contractor’s QA system checked. This involves ensuring that (i) check procedures cover all necessary elements of work;
(ii) the procedures have a reasonable chance of providing the standards required;
(iii) auditing such procedures on an irregular and selective basis gives assurance they work effectively.
Setting up QA procedures and auditing are specialized activities and many companies have staff trained to carry out these tasks. A useful publication is  see References 5 and 6). But under ICE conditions the engineer has a responsibility for ensuring the quality of the work is as specified and he cannot pass this duty to others. Even under ICE design and construct conditions and the ECC conditions the employer’s manager has powers, and therefore implied duties, to ensure work is satisfactory or defect-free. Such contracts would have to be radically re-worded if sole reliance were to be placed on a contractor’s QA system for quality of work done.

Only under some kind of turnkey or simple purchase contract might reliance be placed on a contractor’s QA system though, even with that type of contract, an employer may often appoint an inspector to watch over the contractor’s work on his behalf. The presence of a good inspector gives the employer, his engineer, and the contractor assurance that the work is inspected and is satisfactory.
His cost to the job may be no more than the increased price a contractor might charge for running and auditing a QA system and the cost to the employer of having to check the contractor’s QA system, and may give a better guarantee of satisfactory workmanship.
the ISO 9000 pocket guide (see Reference 4).
There has been extensive debate as to whether a contractor’s QA scheme could permit reduction of the engineer’s role in supervising the contract for construction; the idea being that the resident engineer would then only need to check that the contractor’s QA checking system was being properly applied.

Introduction to employer and his engineer

When the employer has drawings and specifications prepared there are two main types of construction contract he can use in the UK to get the works built – the ICE Conditions of Contract (the ‘ICE conditions’) or the ICE Engineering and Construction Contract (the ‘ECC conditions’). These have been described in Sections 4.2(a) and 4.2(f).
The ICE conditions have been used for construction of works for many years, are comprehensive in their provisions, and are still the most widely used conditions. The ECC conditions for the construction of works are not so extensive and detailed as the ICE conditions, and the FIDIC conditions for construction of works overseas are very similar in terms to the ICE conditions.
Hence the provisions of the ICE conditions are fully described below, and any different provisions of the ECC or FIDIC conditions are noted in this chapter or later.