10. “THE ENGINEER’S REPRESENTATIVE OR ANY OTHER PERSON”. It is reasonably clear that under this sub-clause the engineer may delegate his powers to one person only—either the representative or some other person responsible to him. This interpretation is strongly suggested by the contrast between the wording quoted at the head of this note and “any number of persons” in sub-cl. (2)—see p. 45. The context does not require “person” to be interpreted under cl. 1 (2) as including “persons”, because to allow the engineer to divide delegated functions amongst a number of persons, or even to give the same function to two or more concurrently, would produce considerable possibilities for confusion in the control of the works. If “other person” were interpreted to include the plural, logically so should “Engineer” and “Engineer’s Representative”, which interpretation would make the contract unworkable.
It appears that the engineer may himself continue to perform functions which he has delegated, but he is bound by any decision of his delegate unless the contractor refers the decision back to him under sub-cl. (4) or the contractor or employer asks for his decision under cl. 66. The contractor should particularly act under one of those provisions to obtain the engineer’s ruling in a case of conflicting instructions. q
11. “ANY ACT OF ANY SUCH PERSON”. “act”—not omission. For an omission to disapprove work see p. 127, N. 2. May a failure to contradict a confirmation of an oral variation order under cl. 51 be classed as an “act” ?
12. DELEGATION BINDS EMPLOYER “FOR THE PURPOSES OF THE CONTRACT”. This clause is, of course, purely for the contractor’s protection under this contract and binds the employer in relation to the contractor only. The engineer cannot rely on the clause as a defence to liability to the employer for breach of his duty to supervise, if he delegates too freely to a representative (p. 384,N. 26), and the engineer may also be liable outside the contract to third parties for an act of a delegate.
13. NOTICE TO CONTRACTOR OF APPOINTMENT OF SUPERVISORS AND DELEGATION OF FUNCTIONS. The contractor is entitled to receive:
(a) From the engineer, written notice of the name of the person appointed engineer’s representative (cl. 1 (1) (d)).
(b) From the engineer or the engineer’s representative, notice (not specifically required to be in writing or to be prior notice as in (c) below) of the names and functions of the representative’s assistants. This requirement appears to apply to all assistants, even inspectors who are not intended to give any instructions under sub-cl. (2).
(c) Prior written notice of any delegation of the engineer’s functions under sub-cl. (3), specifying either the particular clauses of the contract in respect of which powers are being delegated or that the delegation is generally in respect of all the engineer’s powers under the contract except those not delegable.
(d) Written notification of any change of engineer (cl. 1 (1) (c)) or of the engineer’s representative (cl. 1 (1) (d)) and of change or determination of delegation under sub-cl.(3). Notice of determination of the powers of any assistant of the engineer’s representative is not referred to (nor indeed is any right of determination specified). However, under the general law the contractor will be entitled to rely on the instructions of any such assistant until (but only until) he receives notice of determination of his powers in such a form and from such a source that a prudent contractor would rely on it.
The contractor should be written to with clear-cut notification of the appointment and functions of supervisors as soon as possible after acceptance of tender. Until he receives this notice the contractor should act only on orders from or confirmed by the engineer.
Despite the extreme particularity of this cl. 2, which aims to contribute to the practical administration of the contract by allowing the contractor to determine exactly where he stands in dealing with resident staff, difficulties have been reported in practice due to the engineer’s refusal to follow this clause and to letters of delegation which fail to define delegated powers “specifically in respect of particular Clauses of these Conditions” as required by cl. 2 (3).
These clauses do not differentiate between minor and major variations and instructions, and particularly the absolute restriction on the powers of assistants to the representative (N. 7) may cause delays in practice while minor changes are confirmed.
There may be much to be said for a minuted meeting between the parties at the start of the works to devise a sensible and workable system of delegation of functions, under this clause and cl. 15 (2), and of co-operation between supervisors.
14. ENGINEER’S DECISIONS EXCLUDED FROM DELEGATION. The exclusion of cl. 12 (3) refers to action following notification of unforeseen physical conditions or obstructions, cl. 44 to extension of time, cl. 48 completion certificates, cl. 60 (3) the final certificate, cl. 61 the maintenance certificate, cl. 63 forfeiture, and cl. 66 a decision on referral back to the engineer of a dispute or difference.
Some important functions are not excluded from delegation, e.g. valuation of variations under cl. 52 and interim certificates. The engineer has no power under this clause of his own motion to alter a delegate’s valuation or reverse a decision that work is Engineering law and the I.C.E. contracts 44 an extra. The solution for the engineer is to advise the employer to refer the matter to him for a decision under cl. 66, but pending reversal of the delegate’s decision the employer must pay certificates based on it. For correction of a certificate under cl. 60 (7) refer to p.272.
15. “AUTHORISED BY THE ENGINEER UNDER SUB-CLAUSE (3)” appears to refer to “other person” and not to “act” so that there is a right of appeal to the engineer from acts of the engineer’s representative whether done under sub-cl. (1) in his ordinary supervision of the works, or under sub-cl. (3) in performing delegated powers.
16. APPEAL BY THE CONTRACTOR TO THE ENGINEER FROM A SUPERVISOR’S DECISION. This right of appeal provides a useful alternative to referral back to the engineer under cl. 66. The time for claiming arbitration does not run from the decision under this paragraph and the contractor is left with a right to a further engineer’s decision under cl. 66. The contractor particularly may apply for a review of a decision under this paragraph where he wishes to allow himself a further approach to the engineer when passions have cooled, but not of course if he wishes to go to arbitration as quickly as possible. For the scheme of appeals see N. 1.
17. APPEAL BY EMPLOYER FROM SUPERVISOR’S DECISIONS. The employer’s only way of appeal from a decision (of the engineer, his delegate, the engineer’s representative or his assistants) is to notify the contractor that a dispute exists and refer the dispute to the engineer under cl. 66, and then to arbitration provided he gives notice in time. The engineer should keep the employer advised of his right of appeal, and in particular should notify him of any doubtful decision made by a supervisor. For correction of a certificate refer to p. 272.
18. THE FORMER CLAUSE 2 (a) is moved to cl. 39 (3), and expanded (failure of supervisor to disapprove work or materials does not prejudice power subsequently to do so).