The Role of the Engineer
The engineer is normally a member of one of the engineering professional institutions. The engineer is appointed by the employer/developer or promoter. However, he owes duties to both the contractor and employer under the contract.
The appointment of the engineer will generally by way of the professional institute’s relevant standard terms. It will provide for terms of appointment, duration of engagement, the scope of engineering services, the responsibility of parties, fees, terms of payment and collateral warranty obligations, if applicable.
Although the engineer acts as the agent of the promoter/developer/employer in some context, he owes duties of care under the terms of appointment and at common law.
Appointed by Promoter
The engineer will commonly be appointed by the promoter at the outset of the project. A feasibility study may be made. Once the promoter decides to proceed, the engineer will need to agree to the project requirements. This may require further investigation, recommendations and consultations.
A report may be prepared for the promoter. It is likely to deal with terms of reference, assumptions, details of investigations, site issues, geological and geotechnical aspects, possible alternative schemes, capital costs, operating costs, labour and material costs, master programme, a summary of conclusions and outline drawings.
The promoter may make a decision to proceed or not, based on the report. During preliminary design, the engineer is to define the engineering work involved in a manner that can be understood by the promoter. The engineer must satisfy himself in relation to all site issues.
Specificatios of Job
Outline drawings, estimates and other documents are prepared for approval, in principle by the promoter. There may be
- preparation of topographical surveys,
- investigation of the site, soil conditions,
- investigation of information regarding the work,
- advising on boreholes,
- field investigation,
- hydrological surveys,
- laboratory tests;
- consultation with architect or services engineers appointed by the promoter,
- modifications, changes to the budget.
During the design and tender stage, the engineer should define the works in a manner that can be executed by a contractor and priced by a tender. This will involve the preparation of tender drawings, specifications and other documents. It is critical that the scope of work be clearly defined.
The engineer is likely to
- prepare and design tender drawings, specifications, bills of quantities, schedules;
- assess the prime cost and provisional sums;
- advise on the type of contract appropriate,
- prepare tender drawings, documents, and construction contract;
- prepare tender documents for sub-contractors,
- advise on the appropriate tender procedure;
- consider the qualification and suitability of tenderers;
- update costing estimates;
- provide tenderers from a short-listed tenders;
- evaluate tenders and
- advise in relation to ultimate acceptance, and appointment.
The standard contracts provide that, save insofar as it is legally or physically impossible, the contractor shall construct and complete the works in strict accordance with the contract, to the satisfaction of the engineer and shall comply with and adhere strictly to the engineer’s instructions and directions on any matter connected therewith, whether mentioned in the contract or not. The contractor shall take instructions and directions only from the engineer and subject to the limitations, from the engineer’s representative.
The engineer issues the order to commence work. There will generally be an initial meeting with the contractor to set out procedures and lines of communications. The engineer should ensure that the requisite clearance certificate and proof of insurance is in place.
The contractor will be required to use a programme of works by a certain date. A meeting for handing over the site will follow. Other meetings are required from time to time dealing with matters arising under the contract, including interim certificate measurements, fixing of rates, etc
During the construction phase, the engineer has a range of functions relating to the project.
The engineer will advise the employer on finalisation of the contract documents. Following the accepted tender, further working drawings and schedules may be prepared.
The engineer may make frequent visits to the site to satisfy himself regarding the performance of staff appointed and on the execution of the contract generally.
The engineer must give all necessary instructions required under the contract. This should not significantly increase the value of the works without the prior consent of the employer. The employer should be advised of any increases in costs.
The engineer should keep records and drawings as are necessary to operate and maintain the works. He should assist the employer in settling disputes with the contractor, save for litigation and arbitration, which are dealt with separately.
The engineer’s role under the contract is distinct from his role as a service provider to the employer/promoter. His obligations flow from the standard conditions of contract. The engineer is responsible for decisions, instructions, directions, etc. He may seek legal advice on the interpretation of the contract. The parties to the contract may refer the matters to arbitration if there is a disagreement.
The engineer is obliged to act independently in administering the contract and exercising judgment under it.
Engineer’s Responsibilities during Construction Phase
During the course of the contract, the engineer is responsible for
- supervision of the works,
- issuing further drawings and instructions, examining and consenting to contractor’s proposals, construction techniques;
- satisfy himself regarding the quality of materials to be used,
- inspection and testing,
- the provision of acceptance tests,
- issuing of orders for variation;
- issues of instructions for expenditure under provisional sums and prime cost items in the bill of quantities;
- measurement of works,
- issue of payment certificates;
- assessing claims by the contractor,
- giving decisions on disputes and differences under the contract;
- issuing completion and maintenance certificates.
The engineer is to monitor and supervise the execution and completion of the works. He does not have authority to discharge and relieve the contractor from responsibilities, other than to the extent provided in the standard contracts.
The engineer may delegate functions to an engineer’s representative to act generally on behalf of the engineers or in respect of particular aspects of his functions. Notice should be given to the contractor in writing. The standard conditions of contract specifically allow authorisation in relation to particular types of issues.
The engineer’s representative may be designated the resident engineer. His principal function is to watch and supervise the works. His actual function are varied and depend on circumstances.
The resident engineer will commonly have duties in relation to
- the organisation and supervision of works,
- agreement of the detailed programmes in accordance with the overall construction programme, checking of progress he works at regular intervals,
- supervision of works and ensuring materials and workmanship comply with specifications, checking of setting out works,
- examination of method statements,
- issue of site instructions by way of clarification of construction drawings,
- measurement of works in agreement with contractor’s site representatives,
- issue of work instructions for day work,
- agreement of on-account rates,
- maintenance of records or measurements,
- the passing on claims to the engineers,
- ordering work stoppages in event of dangers.
The resident engineer and staff will maintain constant contact with the site agents and staff during the performance of contracts. In large-scale projects, the resident engineer may have a significant team dealing with multiple matters. There may be ongoing, formal progress meetings, weekly. Minutes should be kept. They should discuss the progress of the contract. The resident engineer will usually produce monthly ongoing weekly and monthly reports to the engineer on important matters under the contract.
Tenders and Costs
The engineer will play a central role in project costs. He will prepare an estimate of costs to deal with pricing issues and rate fixing. His initial cost will be very approximate, based on experience of similar projects and scales adopted as appropriate.
The next stage, the feasibility stage will involve estimates based on approximate quantities and pricings, and previous rates indexed as appropriate. He may be able to draw on existing projects and unit rates as far as they are of assistance.
A further more defined estimate may be based on the tender documents and drawings prepared for the tender. Tenders generally are based on underlying direct cost together with ac contribution and profits to cover overheads and the economic return required.
Tendering is a complex operation from the contractor’s point of view. The cost must be built up in terms of direct material and labour costs, plant costs, subcontract costs, provisional and prime sum items, site costs, head office costs and profit.
Contractual claims are made under the contract. Extra contractual claims are those not made under the contract. Claims may arise due to inadequacy of the initial documents, lack of clarity or omissions. They may be due to a loss arising other than in breach of contract. An ex gratia payment may be made to settle a claim.
The standard conditions of contract provide for submission of a claim to the engineer during the currency of the contract and up to three months after the date of the maintenance certificate. It must relate to something the contractor is entitled to under the terms of the contract. It y may arise from such matters as adverse physical conditions, artificial obstructions, an extension of time, or variations.
A claim may be made the contractor for payment of works undertaken, which are not readily identifiable under the contract documents. It is made to the employer and submitted to the engineer.
Topographical and soil conditions may have a significant impact on costs. One of the most common form of claim arises for adverse physical conditions or obstructions. The physical conditions must be outside the scope of those contemplated under the tender.
Artificial obstructions might be matters such as sewers or manholes, old structures, services, lifts, shafts and tunnels.
The engineer is obliged to consider claims and resolve disputes in an impartial manner. The contractor must abide by the engineer’s decision on any dispute, unless the matter is referred to [arbitration]. The engineer makes a decision on the validity of the claim and its quantum.
Delays and Extensions
Applications for an extension of time or completion are commonly made. The contractor must deliver full particulars of the claim and the extension to which it claims to be entitled. It may be due to a variation order, increased quantities or other causes of delay.
The engineer may grant an interim extension if he considers it justified on the basis of the information submitted. He assesses the application for extensions of time, reviews the circumstances relevant to the extension and determines and certifies the overall extension he considers due. He must notify the contractor of extensions.
Many delays will entitle the contractor to an additional payment. These will be the subject of a relevant claim for extension included in the relevant claim for an extension. These includes
- delays and extra cost due to delay in issuing drawings and instructions,
- delays arising from adverse physical conditions and artificial obstructions,
- delay arising out of engineering instructions including those to clarify ambiguities and discrepancies in the documents,
- delay in relation to consent to methods of construction, design criteria and each relevant matters,
- delay attributable to variations required by utility companies,
- delays due to suspension in work,
- delays arising out of failures to give possession in time.
If a variation is ordered, additional payment, variation of payment, time variation is inevitable. The contractor must forward proposals for costs of variations, principles of measurements as set out above.
The engineer is to value varied works on the basis of work of a similar character carried on under similar conditions to those contained in the bills of quantities at rates and prices contained therein where such are applicable. Where work is not a similar character, or not carried out under similar conditions, it is to be valued on the basis of the rates and prices contained in the bill of quantities insofar as may be reasonable. Otherwise, a fair valuation is to be made.
The valuation of varied work is undertaken by the engineer in consultation with the contractor. The engineer is to determine the matter if there is a disagreement and notify the contractor of the appropriate prices and rates, in accordance with the above principles.
The engineer may fix prices or rates that are reasonable and proper for varied work when in his or the contractor’s opinion, the rates or prices contained in the tender are rendered unreasonable or inapplicable due to a variation.
Claims must be notified in the appropriate timeframe under the contract. The relevant records will be required to vouch the claim. The engineer may without admitting liability, instruct the contractor to keep such reasonable contemporary records and give the engineer the right to inspect them.
The contract provides the procedure for submitting accounts and particulars after the notice of a claim has been given. If the contractor fails to comply with the provisions of the clause, it is entitled to payment only to the extent the engineer has not been prevented or substantially prejudiced in investigating the claim.
The contractor is entitled to be paid the amounts certified on claims by the engineer through interim payment certificates. The engineer must be provided with sufficient details to determine the amount due.