4. “NOR EXCEPT AS…PROVIDED HEREUNDER TO ORDER ANY WORK INVOLVING DELAY OR ANY EXTRA PAYMENT…TO MAKE ANY VARIATION OF OR IN THE WORKS”. See N. 11 on variations. These words emphasise what is said in the last note: the contractor is not entitled to found a claim for extra payment or to extension of time on an order of the representative, unless there has been delegation under sub-cl. (3).
5. CONTROL OF TEMPORARY WORKS BY ENGINEER’S REPRESENTATIVE. As a result of the extended definition of “Works” in cl. 1 (1) (l), the representative’s supervision now extends to all temporary works (p. 29).
6. TESTING OF MATERIALS is no longer included in the representative’s ordinary duties, and apparently must be delegated under sub-cl. (3).
7. POWERS OF ASSISTANTS OF ENGINEER’S REPRESENTATIVE. The effect of this clause is that an assistant of the representative may issue instructions only if they are both within the functions allotted to him by the representative or engineer and notified to the contractor (which functions may be limited to a particular area or operation of the works) and are issued to ensure that work or materials are acceptable to the assistant as being in accordance with the “Specification and Drawings”. The contractor cannot recover payment for a variation on an assistant’s order under this sub-clause; therefore he should not do work which he considers to be an enhancement of the specification or change in drawings at the behest of an assistant, without complying with cl. 51 (2).
Where the materials or workmanship required are not defined in the specification or drawings, for example in the case of contractor’s own temporary works and items of permanent work of which the engineer’s control is solely under cl. 13 (2), it appears that an assistant can have no function. And there is no reference to the assistant ensuring that the works are in accordance with instructions of the engineer unless embodied in drawings or amounting to a specification (compare cl. 26 (2) (a) and (b)).
Clearly, one function may be allotted to a number of assistants without division between them.
8. DELEGATION “FROM TIME TO TIME”. That is, the engineer may delegate at any time during the contract, or at any time increase, change (for example during holidays or illness) or determine any delegation for the future. For written notification of delegation and changes see N. 13. The engineer has no power to alter these Conditions and therefore delegation binds the employer only if it is in writing as required by this sub-clause, unless he has given the engineer additional authority.
9. DELEGATION BY THE ENGINEER TO “THE ENGINEER’S REPRESENTATIVE OR ANY OTHER PERSON RESPONSIBLE TO THE ENGINEER”. The limitation that delegation may only be to a person “responsible to the Engineer” is long in good intentions—that any person exercising the very important powers and judgments which the engineer may delegate must be responsible to him—but short in precision. Some relevant points:
(a) An employee of the engineer obviously is responsible to him and may receive delegated powers under this sub-clause (but see p. 384, N. 26, for the engineer’s resulting responsibility for the delegate). An engineer who is a whole-time employee of a local or other public authority may presumably delegate functions to an assistant of his although they are fellow employees of the authority.
(b) Where a partnership is named as an engineer, it seems that powers may be delegated to any one partner as a person responsible to the majority of the partners. But where one partner is appointed engineer, he may not delegate power to another partner, since one partner is not “responsible to” another, in the sense of being bound to obey him.
(c) It is not unusual for the employer to employ direct a mechanical services consultant to deal with supply and installation of plant which is part of the construction contract. The engineer may wish to delegate some of his functions to such a consultant, but may not do so under this clause unless the consultant is employed by him (with attendant dangers, p. 384) and not direct by the employer, or some special arrangement is made ((f) below) by which the consultant is made responsible to the engineer.
(d) The engineer is specifically authorised to delegate powers to the engineer’s representative, even though the representative may be appointed by and paid by the employer. The representative may be a long-term employee of a local authority employer, with corresponding duties and loyalties (and pension expectations).
(e) Unless their position is clarified by a special arrangement, it does not seem that the engineer may delegate to assistants of the representative who are employed direct by the employer (by sub-cl. (2) such persons are to “assist the Engineer’s Representative” in the exercise of his functions “under sub-clause (1)”), but in any case they are unlikely to be of sufficiently high grade to justify delegation at least on major matters.
(f) It is implied that any person in the doubtful categories discussed above or any other person may be made responsible to the engineer without becoming his employee, presumably by a (preferably written) agreement to which he is a party with the engineer and his own employers providing that he will be responsible to the engineer in performing any delegated duties. There are problems as to how exactly such an agreement must be worded. Clearly, the delegate must be required to obey the instructions of the engineer and not to obey any instructions from his employer or anyone else, and the engineer must have authority to end his delegated powers. Whether the employer may retain the power to dismiss the delegate from the works or from his employment generally is not clear. The fact that delegation is specifically allowed to the engineer’s representative even if employed by the employer suggests that sole responsibility to the engineer is not required. The question of liability for the delegate, his errors or dishonesty, should be dealt with carefully in the agreement. The engineer may notwithstanding any agreement be liable to outsiders for the delegate and should make certain that his indemnity insurance covers the arrangement. p
The contractor is protected to some extent against mistaken or improper decisions of delegates by the right of appeal to the engineer, as well as the right to arbitrate, unless the engineer is foolish enough to take the not uncommon attitude that he must support his colleagues and subordinates vis-à-vis the contractor even when they are wrong.
Delegates are clearly bound by the same duty of independence and impartiality as the engineer (ch. 14).