Aconstruction contract is made between two parties only – ‘the Employer’ and ‘the Contractor’. Their roles are defined in the contract. However, because there is a need for day-to-day supervision of civil engineering construction, the two parties may agree that a third person should carry out such duties. This third person can have varying powers under the contract and this is reflected in his designation. He can be designated ‘the Engineer’ under the contract; or he may be designated ‘the Project Manager’ or ‘Employer’s Representative’ in both cases occupying a distinctly different position from ‘the Engineer’. The roles of these participants are described briefly below; the use of a capital letter in their designation being discontinued except where necessary for clarity. The employer, referred to as ‘the purchaser’ in some conditions of contract, initiates the process of acquiring the works. He sets down what he requires and specifies this in the tender documents, which he issues to firms of contractors
to seek their offers to carry out the works. His obligations include ensuring that the works are legally acceptable and practical, and that the site for them is freely available. He may also need to arrange that associated needs, such as the supply of power, drainage and the like which he is providing, are available. Having set up these basic elements he must, above all, ensure that he can meet his obligation to pay the contractor in accordance with the contract. If any dispute remains unresolved under the contract, the employer must decide what action to take; either to negotiate some settlement or, perhaps, take the dispute to adjudication, arbitration or the courts.
The contractor takes on the obligation to construct the works. In his offer to the employer he puts himself forward as being able to build the works to the requirements set out in the tender documents. In order to do this he will have studied the documents and any geotechnical or other information provided or otherwise available, visited the site and checked the availability of such labour, plant and materials as may be needed. Once his offer is accepted and the contract is formed the contractor takes on the obligation of doing all and anything needed to complete the works in accordance with the contract, regardless of difficulties he may encounter. He is responsible for all work done by his sub-contractors and suppliers, and any design work the contract requires him to undertake.
The engineer designated in the traditional form of contract under the ICE or FIDIC conditions described in Sections 4.2(a) and 4.3, has a role independent of the employer and the contractor. He is not a party to the contract; but he is named in it with duties determined by the parties. Although he is appointed (and paid) by the employer, he has to supervise the construction of the works as an independent person, making sure they accord with the specified requirements.
He also acts as an independent valuer of what should be paid to the contractor, and as a decider of issues arising in the course of construction.
The engineer will normally be an experienced and qualified professional whose knowledge and standing should be sufficient to assure both employer and contractor that the decisions he makes are likely to be satisfactory, and given independently and impartially.
In the most widely used conditions of contract, decisions made by the engineer can be accepted by the parties to the contract; but, if either party should so choose, the engineer’s decisions can be challenged and if need be taken to external decision. This ability to challenge the engineer’s rulings can be seen as supporting the effectiveness of his role (see Sections 8.2, 17.15 and 17.16).
Given efficient contract documents and completion of the designs before construction starts, the appointment of an independent engineer to administer the contract encourages contractors to submit their keenest prices. Many contractors will seek out the reputation of such an engineer for his experience and ability to apply fair dealing, and will adjust their prices accordingly. This benefits both the employer and contractor since it gives assurance that their interests will be protected. It also facilitates the resolution of any constructional problems that arise, so that disputes arising over contractors’ claims are rare. Few civil engineering contracts handled in this manner need settlement by resort to arbitration or a court of law.
A project manager holds a different appointment from the independent engineer described above. His appointment is designated under the relatively recent ICE’s ECC form of contract described in Section 4.2(f). He may carry out many similar duties as the engineer under the traditional form of contract, but he is not fully independent. The specific content of the contract will define the limit of his powers to act independently. Decisions made by the project manager on matters that are subject to assent by the employer will commit the employer, who will not be able to dispute them. From the contractor’s point of view, the project manager’s decisions will be regarded as the employer’s;
so he may feel it necessary to increase his prices to cover the risk the employer might tend to interpret the contract in his own favour. If the contractor is to offer his lowest prices he has to be assured the terms of the contract will be interpreted impartially; for this reason an adjudicator is appointed to whom the contractor can take his disputes with the project manager.
The supervisor under the ECC has a role which is mostly restricted to watching over construction and attending tests, etc. although he has some powers to issue instructions and for correction of defects.
The resident engineer is the engineer’s representative on site under the ICE conditions or an assistant of the engineer under FIDIC. He may be delegated some of the engineer’s powers depending on his experience and the type of work as well as the remoteness of the site from the engineer’s office. His main role, however, is to ensure the works are carried out as required by the contract.