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.