The 2017 FIDIC Contracts. William Godwin

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СКАЧАТЬ sets out a detailed step‐by‐step process with time limits and deeming provisions for the Engineer to agree or determine a matter and involves him far more closely in seeking to facilitate agreement and to resolve issues as they arise.

Under the 2017 Books the Engineer's determinations are also to be fair, in accordance with the Contract and take account of all relevant circumstances but he is also now expressly required to act neutrally between the parties in discharging his functions under clause 3.7 and is not to be deemed to act for the Employer in doing so, thus affecting the process as well as the outcome of a determination.¹ The Engineer's enhanced role in the 2017 editions reflects the greater emphasis placed on active project management and the avoidance of disputes. The qualities of the Engineer, his powers and authority, including appointing a Representative to act on his behalf at the site, are set out more clearly and fully in the two new Books and are considered in Section 3.2.1 below.

Instead of an Engineer, the Employer in the 2017 Silver Book must appoint an Employer's Representative. Unlike the 1999 edition, this is no longer optional for the Employer. The Contractor's Representative now has a single point of contact during the course of the project, including when instructions are issued, and the Employer's Representative alone is now responsible for agreeing or determining claims and other matters under clause 3.5 of the 2017 Silver Book.²

      The procedure for dealing with claims and other matters set out in clause 3.5 of the 2017 Silver Book is the same as in clause 3.7 of the other two Books, and the qualities of the Employer's Representative, his powers and authority are similar to those of the Engineer, as described in more detail below. One significant difference, however, is that the Employer's Representative is not required to act neutrally in carrying out his duties under clause 3.5 whereas the Engineer is so required, under clause 3.7 of the other two Books; the Employer's Representative is, however, still not to be deemed to act for the Employer in discharging these duties and any determination he makes must also be fair, in accordance with the Contract and take due regard of all relevant circumstances.

      3.2.1 Contract Administration in the Three Books: Engineer's/Employer's Representative's Role and Authority

       The Engineer/Employer's Representative

      Clause 3.1 of the 2017 Red and Yellow Books provides for the appointment of the Engineer and the vesting of all authority necessary to act as the Engineer under the Contract; requirements are also specified for the qualifications and background of the Engineer and fluency in the ruling language as defined in clause 1.4.

      The 1999 Red and Yellow Books provide, by clause 3.1, that the Engineer's staff are to include suitably qualified engineers and other professionals competent to carry out the Engineer's duties, but the 2017 Books go further and provide that the Engineer must be a professional engineer with suitable qualifications, experience and competence and fluent in the language of the Contract.

The first editions of the Red and Yellow Books expressly state that the Engineer has no authority to amend the Contract or, except where otherwise provided, authority to relieve either party of any duties, obligations or responsibilities under the Contract (clause 3.1). Clause 3.2 of the 2017 editions contains a very similar provision.

      Clause 3.1 of the 2017 Red and Yellow Books provides for the Engineer to be a legal entity rather than an individual or firm. If the Engineer is a legal entity, notice of the natural person appointed and authorised to act on its behalf has to be given (clause 3.1, fourth paragraph).

Clause 3.1 of the 2017 Silver Book requires the Employer to appoint an Employer's Representative, who, unless otherwise stated in the Contract conditions, is to be deemed to act on the Employer's behalf under the Contract. The Employer's Representative is also vested with the full authority of the Employer, except in respect of clause 15 relating to termination of the Contract by the Employer; this contrasts with the Red and Yellow Books, where no such limit on the Engineer's authority applies. Requirements as to competence and the notice to be given if the Employer's Representative is a legal entity are set out in clause 3.1 in terms similar to those in clause 3.1 of the other two Books.³

       Authority and duties

      Clause 3.2 of the 2017 Red and Yellow Books sets out the Engineer's duties and authority. He may exercise the authority attributable to the Engineer as specified in or necessarily to be implied from the Contract. If the Engineer is required to obtain the Employer's consent before exercising a specified authority, such a requirement must be stated in the Particular Conditions. However, there is no requirement for the Engineer to obtain the Employer's consent before he exercises his authority under clause 3.7; and the Employer must not impose further constraints on the Engineer's authority. But where the Engineer exercises a specified authority for which the Employer's consent is required, then for the purposes of the Contract such consent is deemed to have been given.

      The 2017 Silver Book (like the 1999 edition) states no similar constraints on the Employer with respect to exercise of his Representative's authority, clause 3.2 in both editions dealing only with delegated authority to assistants.

      Under clause 3.2 of the 2017 Red and Yellow Books any acceptance, agreement, approval, instruction, notice, no‐objection and the like by the Engineer, his representative or any assistant does not relieve the Contractor of any duty, obligation or responsibility which he has under or in connection with the Contract. This provision of clause 3.2 in the 2017 editions is similar to the terms of clause 3.1(c) of the 1999 editions of the Red and Yellow Books.

      Clause 3.3 of the 2017 and 1999 Silver Book relates to delegated persons (including the Employer's Representative) and provides that any approvals, acceptances, notices and the like do not, unless otherwise stated, relieve the Contractor of any of his responsibilities under or in connection with the Contract (see further below).

       Engineer's Representative/assistants

Clause 3.3 of the 2017 Red and Yellow Books provides for the Engineer to appoint, if he wishes to do so, an Engineer's Representative to whom authority may be delegated to act on his behalf at the site. Clause 3.4 provides for the delegation of duties and authority to assistants, with the limitation, however, that the Engineer may not delegate authority to act under clause 3.7 or to give a notice to correct under clause 15.1.⁴ Each assistant's authority is to be carefully defined by reference to the notice delegating the relevant authority; in particular his or her authority to issue instructions to the Contractor extends only to the extent defined in the Engineer's notice of delegation under clause 3.4.

      Clause 3.2 of the 2017 Silver Book provides for the appointment, by a notice to the Contractor, of assistants to whom authority may be delegated by the Employer or Employer's Representative, subject however to the Employer's Representative's being unable to delegate authority to act under clause 3.5 (determinations) or to issue a notice to correct under clause 15.1. Clause 3.3 limits the extent of any delegated authority to what is defined in a notice under clauses 3.1 (relating to the Employer's Representative) or 3.2 (other Employer's personnel) and provides that the Contractor is not to be relieved of any duty or responsibility by a delegated person's (including the Employer's Representative's) acceptance, agreement, approval, instruction, notice, no‐objection and the like (in accordance with the notice of delegation), unless otherwise stated in the delegated person's communication relating to such an act.

      3.2.2 СКАЧАТЬ