2022-04-10（208）Engineering law and the ICE Contracts

1. SUPERVISORS—DEFINITIONS—APPOINTMENT—POWERS—APPEAL FROM DECISIONS. Under this very complicated clause the contractor is subject to control by no fewer than four categories of supervisor:

(a) One engineer. Appointed by the employer (cl. 1 (1) (c)). For powers and duties see chs. 13 and 14. The contractor’s right of appeal from an engineer’s decision is under cl.66—back to the engineer himself and thence to an arbitrator provided a request for arbitration is made in time.

(b) One (see N. 10) engineer’s representative. Appointed by the employer or engineer (cl. 1 (1) (d) and N. 2). His ordinary powers are to watch and supervise the construction of both permanent and temporary works (sub-cl. (1) of this clause and N. 3, 4, 5 and 6), subject to extension by written delegation by the engineer under sub-cl. (3). Right of appeal by the contractor to the engineer under sub-cl. (3). Right of appeal by the contractor to the engineer under sub-cl. (4), appeal from the engineer’s decision back to the engineer under cl. 66 and then to arbitration.

(c) Any number of assistants to the engineer’s representative. Appointed by the engineer or the engineer’s representative (sub-cl. (2)). Powers discussed in N. 7. Four tiers of appeal by the contractor—to the engineer’s representative under sub-cl. (4), and then presumably to the engineer under that sub-clause, back to the engineer again under cl. 66 and finally to an arbitrator.

(d) Any other person responsible to the engineer to whom all or any of his powers are delegated by the engineer by written authorisation under sub-cl. (3). Discussed in N. 8 to 15. Appeal to the engineer as in (b). 

Unless and until any decision of a supervisor is reversed on appeal, the decision generally must be obeyed by the contractor and employer. The employer’s right of appeal is dealt with in N. 17. See also cl. 60 (7).

2. ENGINEER’S REPRESENTATIVE. For definition and written notification of appointment to the contractor see cl. 1 (1) (d); for appointment by the engineer or employer see p. 385, N. 27. The representative may be a resident on site or assistant in the engineer’s office.

3. ENGINEER’S REPRESENTATIVE’S ORDINARY DUTIES. The engineer’s representative is appointed to continually supervise the construction of the works. By this clause, he is merely the inspector and assistant of the engineer and has only negative powers, to condemn bad work or material. A contractor therefore acts at his peril on a representative’s orders or approval:

Under the terms of a contract the plans were subject to the approval in writing of the employer’s principal engineer. The contractor carried out work on the basis of plans approved by the resident engineer, whose approval was held not to bind the employer. o

For extension of the representative’s powers see N. 9. See also cl. 17 on the employer’s liability for incorrect setting out data supplied by a representative.