2022-04-09（207）Engineering law and the ICE Contracts

19. “EXCEPT WHERE THE CONTRARY is EXPRESSLY STATED”. The contrary is not expressly stated anywhere in the general conditions. It is important to state the contrary in any special conditions in which “cost” is not intended to include overheads.

ENGINEER’S REPRESENTATIVE—FUNCTIONS AND POWERS

2. (1)1 The functions of the Engineer’s Representative2 are to watch and supervise the construction completion and maintenance of the Works. He shall have no authority to relieve the Contractor of any of his duties or obligations under the Contract3 nor except as expressly provided hereunder to order any work involving delay or any extra payment by the Employer nor to make any variation of or in the Works.4,5,6

APPOINTMENT OF ASSISTANTS

(2) The Engineer or the Engineer’s Representative may appoint any number of persons to assist the Engineer’s Representative in the exercise of his functions under sub-clause (1) of this Clause. He shall notify to the Contractor the names and functions of such persons.13 The said assistants shall have no power to issue any instructions to the Contractor save in so far as such instructions may be necessary to enable them to discharge their functions and to secure their acceptance of materials or workmanship as being in accordance with the Specification and Drawings and any instructions given by any of them for those purposes shall be deemed to have been given by the Engineer’s Representative.7

DELEGATION BY ENGINEER

(3) The Engineer may from time to time8 in writing authorise the Engineer’s Representative or any other person responsible to the Engineer9,10 to act on behalf of the Engineer either generally in respect of the Contract or specifically in respect of particular Clauses of these Conditions of Contract and any act of any such person11 within the scope of his authority shall for the purposes of the Contract12 constitute an act of the Engineer.

Prior notice in writing of any such authorisation shall be given by the Engineer to the Contractor. Such authorisation shall continue in force until such time as the Engineer shall notify the Contractor in writing that the same is determined.13 Provided that such authorisation shall not be given in respect of any decision to be taken or certificate to be issued under Clauses 12 (3), 44, 48, 60 (3), 61, 63 and 66.14

REFERENCE TO ENGINEER OR ENGINEER’S REPRESENTATIVE

(4) If the Contractor shall be dissatisfied by reason of any instruction of any assistant of the Engineer’s Representative duly appointed under sub-clause (2) of this Clause he shall be entitled to refer the matter to the Engineer’s Representative who shall thereupon confirm reverse or vary such instruction. Similarly if the Contractor shall be dissatisfied by reason of any act of the Engineer’s Representative, or other person duly authorised by the Engineer under sub-clause (3) of this Clause15 he shall be entitled to refer the matter to the Engineer for his decision.16,17,18