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What’s the Real Purpose of This Clause?
Let’s clear the air: Why does FIDIC even dedicate an entire clause to the Engineer’s duties and powers?
Because the Engineer in FIDIC contracts is not just a bystander ticking boxes. They’re like the referee, project manager, and mediator all rolled into one.
This clause explains:
This clause explains:
- 📋 What the Engineer can do,
- ❌ What they cannot do, and
- 🤝 When they need the Employer’s nod before doing something important.
Without this clause, projects would be chaotic! The Engineer ensures everyone plays by the rules, disputes are managed early, and the project keeps moving. This role protects the Employer, Contractor, and ultimately the project’s success.
In FIDIC, the Engineer’s powers and duties aren’t just paperwork—they set the tone for collaboration and keep the whole contract machinery running smoothly.
In FIDIC, the Engineer’s powers and duties aren’t just paperwork—they set the tone for collaboration and keep the whole contract machinery running smoothly.
1999 Edition – Sub-Clause 3.1: The Engineer’s Appointment & Authority
- Appointed by the Employer,
- Acts as the Employer’s authorized representative, unless the contract says otherwise.
But here’s what’s missing:
i
The clause never bluntly says the Engineer *must* be competent—it just quietly assumes it.
Instead, the focus is mostly on the limits of the Engineer’s authority rather than their professional standards. Some see this as a subtle weakness.
Instead, the focus is mostly on the limits of the Engineer’s authority rather than their professional standards. Some see this as a subtle weakness.
“The Engineer’s staff shall include suitably qualified engineers and other professionals who are competent to carry out these duties.”
📌 Translation: The clause might not say your Engineer must be competent—but everyone they bring on board had better be!
Curious about how this compares in other FIDIC books?
2017 Edition – Sub-Clause 3.2: Raising the Bar for the Engineer
The 2017 version is a bit of a glow-up. It doesn’t just tell us what the Engineer can or cannot do – it sets the tone by saying:
“The Engineer shall act as a skilled professional…”
🎓 This is a huge upgrade. Now, if there’s ever a dispute about whether the Engineer acted recklessly or negligently, this line becomes a yardstick for professional performance.
It gives Contractors much stronger grounds to challenge poor or biased decisions. Suddenly, “how” the Engineer behaves matters as much as “what” they do!
It gives Contractors much stronger grounds to challenge poor or biased decisions. Suddenly, “how” the Engineer behaves matters as much as “what” they do!
So, the purpose of the clause evolves from just saying “Here’s what the Engineer can do”
to “Here’s how the Engineer must behave while doing it.”
Want to see how the Engineer can delegate duties?
Let’s Break Down the Clause, Line by Line 🕵️♀️
-
Line 1: Appointment ▶“The Employer shall appoint the Engineer…”🔍 Simple and to the point. No surprises. But it does set up the key dynamic: the Engineer owes their appointment (and paycheck) to the Employer.
-
Line 2: No Power to Amend ▶“The Engineer shall have no authority to amend the Contract.”Boom 💥. Very clear. No backdoors. The Engineer can’t change the terms. This is like putting guardrails on their power.
-
Line 3: Scope of Authority ▶“…as specified in or necessarily to be implied from the Contract.”This phrase gives wiggle room, but that wiggle room can be dangerous. What exactly is “necessarily implied”? Parties often interpret this differently, which leads to… surprise… disputes.
-
Line 4: Approval-Required Powers ▶“If the Engineer is required to obtain the approval of the Employer… requirements shall be as stated in the Particular Conditions.”This means we don’t get a list here – we have to check the Particular Conditions to know which powers are restricted. That flexibility is good, but it also means parties must draft PC carefully.
-
Line 5: Employer Can’t Add Extra Rules ▶“Employer undertakes not to impose further constraints…”That’s a friendly reminder: once the rules of authority are set, no last-minute changes behind the scenes, please!
Let’s Break Down the 2017 Clause, Line by Line 🕵️♂️
-
Line 1: Professional Standard ▶“…act as a skilled professional”This isn’t just fluff. It’s a performance clause.
You mess up? Someone can say “You didn’t act like a skilled pro” – and that could lead to liability or claims. -
Line 2: No Power to Amend or Relieve Duties ▶“…shall have no authority to amend the Contract or… relieve either Party…”This goes further than 1999.
Now the Engineer can’t even let the Contractor or Employer off the hook, unless explicitly permitted. -
Line 3: The Consent Exception – Sub-Clause 3.7 ▶“No requirement to obtain Employer’s consent for actions under Sub-Clause 3.7…”👀 This is HUGE.
Sub-Clause 3.7 is where the Engineer acts as a decision-maker (e.g., resolving disagreements). FIDIC now makes it clear: in that role, the Engineer must be independent – not a puppet of the Employer. -
Line 4: “Engineer’s Acts Don’t Shift Responsibility” ▶This list is way longer in 2017. From “approval” to “No-objection” to “meeting records” — the idea is crystal-clear:
👉 Just because the Engineer said “okay” doesn’t mean the Contractor is off the hook.So, if a drawing is approved but has an error – guess what? That’s still on the Contractor.
Interpretation & Practical Implications 🚦
Authority = Delegated Power
The Engineer can only act within the powers given by the contract—nothing more, nothing less.
This protects both Employer and Contractor. If it’s not in the contract, the Engineer can’t just make it up!
Limitations = Guardrails
No power to change the contract. No power to forgive obligations. Needs Employer consent for serious stuff (except Sub-Clause 3.7).
These built-in limitations are there to keep the project balanced.
- If the Engineer tries to issue a huge variation (like ₹2 Crores extra works) without the Employer’s green light… that variation can be challenged.
Real-World Impact
The 2017 edition strengthens the Contractor’s position if the Engineer is biased or oversteps.
- 💼 If the Engineer makes a biased decision under 3.7, the 2017 version gives Contractors solid grounds to fight back.
Cross-Referencing with Other Clauses 🧩
Understanding Sub-Clause 3.1 (1999) and 3.2 (2017) in isolation is like understanding how a gear works without looking at the machine it’s in. These are the power hub for variations, claims, determinations, and performance management. Let’s connect the dots!
FIDIC 1999: Clause 3.1 + 3.5
Engineer’s Decision Power:
Clause 3.5 says the Engineer consults both Parties and makes a fair decision.
Clause 3.5 says the Engineer consults both Parties and makes a fair decision.
But: The 1999 edition doesn’t clearly shield the Engineer from Employer pressure during determinations. That’s a soft spot.
FIDIC 2017: Clause 3.2 + 3.7
Engineer’s Decision Power:
Clause 3.7 says the Engineer must consult both Parties and make a fair determination.
Clause 3.7 says the Engineer must consult both Parties and make a fair determination.
“There shall be no requirement for the Engineer to obtain the Employer’s consent before exercising his/her authority under Sub-Clause 3.7.”
Translation: The Employer can’t say, “Don’t grant that time extension.” The Engineer is empowered to decide fairly, not just favorably.
Want more context on Engineer’s determinations? See
Clause 3.7: 1999 vs 2017 Explained.
🧭 B. Interaction with Clause 13 – Variations & Adjustments
Sub-Clause 13.1 in both editions is where the Engineer flexes real muscle—initiating Variations that change design, quantities, or sequence. But here’s how Sub-Clause 3.1/3.2 keeps that power in check:
Employer Approval for Major Variations
If a Variation impacts time or money significantly, the Engineer usually needs Employer consent—unless stated otherwise.
- Sub-Clause 3.1 (1999): Approval rules must be set in the Particular Conditions (PC).
- Sub-Clause 3.2 (2017): Same rule, but now the Employer can’t add secret restrictions later—not unless it’s in the PC.
Scenario: Big Variation Proposal
The Engineer wants to add ₹1 crore of extra foundation works. Can they just do it?
Nope! Without PC consent, the Engineer can’t issue major Variations solo. If the PC doesn’t set a limit, they need the Employer’s sign-off.
No Hidden Employer Rules
What if the Employer suddenly says, “Engineer can’t approve above ₹10 Lakhs” (but it’s not in the PC)?
The Engineer doesn’t have to obey surprise new limits. Only the contract/PC rules count.
🚨
Real-World Warning: If boundaries aren’t managed, it creates a claims minefield!
A Contractor could execute a Variation on the Engineer’s say-so—only to be told later, “Oops, not authorized.” 💣
A Contractor could execute a Variation on the Engineer’s say-so—only to be told later, “Oops, not authorized.” 💣
🧭 C. Link with Clause 20 – Contractor’s Claims
Sub-Clause 20.1 (1999) and 20.2 (2017) are all about Contractor claims for EOT or extra payment. But who triggers and evaluates? The Engineer!
1999 Edition: No Time Limit
The Engineer reviews the claim, asks for documents, and makes a determination (see 3.5)—but has no set deadline to reply.
Risky for Contractors: The Engineer could take weeks—or months—to respond. This delays EOT and payment, and may push things toward disputes.
2017 Edition: Strict Time Limit
Now the Engineer has just 42 days to respond to a complete claim (per 20.2), or must explain why more time is needed.
Why this matters: Clear deadlines = less Contractor frustration, faster EOT decisions, and more fairness. Silence can trigger escalation to DAAB or arbitration.
🌶️
So, Sub-Clause 3.2 must be read hand-in-hand with Clause 20!
Otherwise, the Engineer’s silence can cause major delays, unresolved payments, or even formal disputes.
🧭 D. Clause 4 – Contractor’s Obligations
Just because the Engineer approved, reviewed, or didn’t object… doesn’t mean the Contractor is off the hook. Here’s how Sub-Clause 3.1(c) (1999) and 3.2 (2017) reinforce Clause 4.1:
“But you approved it!”
“Yes, but that approval doesn’t relieve you of your duty under Clause 4.1 to do the work correctly.”
📌 Boom. Game over.
The Contractor is still responsible—even if the Engineer signed off.
The Contractor is still responsible—even if the Engineer signed off.
Key takeaway:
Approvals are administrative, not technical guarantees.
This keeps Contractors accountable and protects the Engineer from liability.
Approvals are administrative, not technical guarantees.
This keeps Contractors accountable and protects the Engineer from liability.
🧭 E. Clause 1.1.6.4 – Engineer’s Representative
👍😬
Risk scenario: An Assistant Engineer nods approval at site. Contractor acts on it. Later gets penalized because it wasn’t formally signed off.
Why this matters: Sub-Clause 3.2 (2017) makes it clear: site instructions, verbal approvals, or even silence from the Engineer’s team don’t waive Contractor obligations. If you’re the Contractor, always get it in writing!
| 🔗 Clause | 💡 Interaction with 3.1 (1999) / 3.2 (2017) |
|---|---|
| 3.7 (2017) / 3.5 (1999) | Fair determinations must be impartial and don’t need Employer consent (2017 only) |
| 13.1 | Engineer needs Employer approval for major Variations — unless allowed by PC |
| 20.1 / 20.2 | Engineer’s timely action is critical in evaluating Contractor claims |
| 4.1 | Contractor remains responsible even if Engineer approves or reviews documents |
| 1.1.6.4 | Engineer’s team’s actions don’t reduce Contractor obligations |
🖨️ Tip: Screenshot or print this table for quick reference!
What If Scenarios – Let’s Play FIDIC Reality Check
Employer Tells Engineer to Quietly Deny All EOTs
What happens under 1999 and 2017?
1999: The Engineer might comply (since they work for the Employer), so Contractor may need to dispute.
2017: Sub-Clause 3.7 protects neutrality and 3.2 insists the Engineer act as a skilled pro. If they deny EOTs unfairly, that’s grounds for challenge.
2017: Sub-Clause 3.7 protects neutrality and 3.2 insists the Engineer act as a skilled pro. If they deny EOTs unfairly, that’s grounds for challenge.
Engineer Approves Faulty Design Document
Does approval save the Contractor from liability?
Both editions say: No. Contractor is still on the hook. Approval doesn’t remove responsibility.
Moral: Never rely on approval as a substitute for good design checks.
Moral: Never rely on approval as a substitute for good design checks.
Engineer Suddenly Told to Limit Powers (e.g., no approvals > ₹25 Lakhs)
Is this allowed?
Nope! Both versions say “no further constraints” unless mutually agreed in the Particular Conditions. If the Contractor senses political interference, they can push back legally.
🛠️ 6️⃣ Suggestions for Clarity – Golden Principle Style
Let’s turn vague intentions into bulletproof language.
Use Particular Conditions to tighten up Sub-Clause 3.1 / 3.2 and prevent disputes.
Use Particular Conditions to tighten up Sub-Clause 3.1 / 3.2 and prevent disputes.
Ambiguity: “Necessarily to be Implied from the Contract”
The Issue: What counts as “necessarily implied”?
– Instructing to repaint a wall?
– Changing sequence of work?
– Modifying access arrangements?
– Instructing to repaint a wall?
– Changing sequence of work?
– Modifying access arrangements?
Risk: Unclear scope = uncertainty, disputes, and possible invalidation of Engineer’s actions if challenged (esp. those affecting time/cost).
Suggested Fix: Spell Out Implied Authorities
List “implied” powers directly in the Particular Conditions.
This creates a clear boundary between admin tweaks and big, cost/time-sensitive changes.
This creates a clear boundary between admin tweaks and big, cost/time-sensitive changes.
Why it helps: Both Engineer and Contractor know exactly what “implied authority” covers. Less grey = fewer disputes!
🔧 Proposed PC Addition:
The following powers of the Engineer shall be deemed to be ‘necessarily implied’ under Sub-Clause 3.1 / 3.2:
(i) issuing site instructions that do not affect the critical path,
(ii) directing minor adjustments in method or sequence of work,
(iii) instructing non-substantive design clarifications,
(iv) reallocation of working areas, and
(v) minor remeasuring where quantities are approximate.
The following powers of the Engineer shall be deemed to be ‘necessarily implied’ under Sub-Clause 3.1 / 3.2:
(i) issuing site instructions that do not affect the critical path,
(ii) directing minor adjustments in method or sequence of work,
(iii) instructing non-substantive design clarifications,
(iv) reallocation of working areas, and
(v) minor remeasuring where quantities are approximate.
Ambiguity #2: “Significant Effect”—but How Significant?
The Issue: Both editions require Employer approval for “significant” time/cost changes. But what does “significant” mean?
₹5 Lakhs on a ₹500 Cr contract? Probably not.
A 3-day delay in a 900-day schedule? Unlikely.
₹1 Cr in final handover? Maybe yes.
₹5 Lakhs on a ₹500 Cr contract? Probably not.
A 3-day delay in a 900-day schedule? Unlikely.
₹1 Cr in final handover? Maybe yes.
Risk: If “significant” isn’t quantified, it’s open to interpretation—and future disputes.
Suggested Fix: Define the threshold in the Particular Conditions.
Suggested Fix: Define the threshold in the Particular Conditions.
🔧 Proposed PC Addition:
For the purposes of Sub-Clause 3.1 / 3.2, ‘significant effect’ shall mean any instruction or variation which:
(a) increases the Contract Price by more than 2%, or
(b) extends the Time for Completion by more than 14 days,
unless the Employer provides written consent otherwise.
For the purposes of Sub-Clause 3.1 / 3.2, ‘significant effect’ shall mean any instruction or variation which:
(a) increases the Contract Price by more than 2%, or
(b) extends the Time for Completion by more than 14 days,
unless the Employer provides written consent otherwise.
Ambiguity #3: No Timeframe for Employer’s Consent
The Issue: How long can the Employer take to approve? With no deadline, urgent work can be held up—and the Contractor suffers.
Suggested Fix: Timebox the Employer’s response window, so projects don’t stall.
🔧 Proposed PC Addition:
Whenever the Engineer is required to obtain the Employer’s consent before exercising authority, the Employer shall respond within 7 working days of receiving the Engineer’s written request.
If no response is received within this period, consent shall be deemed to have been granted.
Whenever the Engineer is required to obtain the Employer’s consent before exercising authority, the Employer shall respond within 7 working days of receiving the Engineer’s written request.
If no response is received within this period, consent shall be deemed to have been granted.
Ambiguity #4: Engineer’s Neutrality and Conflict of Interest
The Issue: What if the Engineer is influenced by the Employer, or perceived as biased? The contract doesn’t say how to handle this directly.
Suggested Fix: Tie neutrality to the Notice of Dissatisfaction and DAAB procedures, and make neutrality a clear, contractual right.
🔧 Proposed PC Addition:
When performing duties under Sub-Clause 3.7, the Engineer shall act impartially and independently of either Party’s influence.
If either Party considers that the Engineer has not acted neutrally, that Party may issue a Notice of Dissatisfaction under Sub-Clause 3.7.5.
The matter shall then be referred to the Dispute Avoidance/Adjudication Board (DAAB) under Sub-Clause 21.4 for review of the Engineer’s determination and process.
Additionally, the Engineer shall not be subject to incentives, directions, or pressures that compromise neutrality while acting under Sub-Clause 3.7.
When performing duties under Sub-Clause 3.7, the Engineer shall act impartially and independently of either Party’s influence.
If either Party considers that the Engineer has not acted neutrally, that Party may issue a Notice of Dissatisfaction under Sub-Clause 3.7.5.
The matter shall then be referred to the Dispute Avoidance/Adjudication Board (DAAB) under Sub-Clause 21.4 for review of the Engineer’s determination and process.
Additionally, the Engineer shall not be subject to incentives, directions, or pressures that compromise neutrality while acting under Sub-Clause 3.7.
Ambiguity #5: What About Verbal Instructions?
The Issue: Engineers often give verbal instructions, but unless documented, they’re not legally recognized under Clause 1.3 (2017).
Risk: Disputes arise from undocumented instructions. Alignment with Clause 1.3 is essential.
Suggested Fix: Make written confirmation mandatory, with a short time frame.
Suggested Fix: Make written confirmation mandatory, with a short time frame.
🔧 Proposed PC Addition:
In accordance with Sub-Clause 1.3 [Notices and Other Communications], all instructions issued verbally by the Engineer or Engineer’s Representative shall be confirmed in writing and delivered to the Contractor within 2 working days.
Only such written confirmation shall be deemed contractually binding.
In the absence of such documentation, the Contractor shall not be bound to act upon the instruction.
In accordance with Sub-Clause 1.3 [Notices and Other Communications], all instructions issued verbally by the Engineer or Engineer’s Representative shall be confirmed in writing and delivered to the Contractor within 2 working days.
Only such written confirmation shall be deemed contractually binding.
In the absence of such documentation, the Contractor shall not be bound to act upon the instruction.
Bonus Improvement: Empowering the Contractor to Challenge Overreach
The Issue: What if the Engineer oversteps authority and the Contractor is pressured to comply?
Suggested Fix: Allow the Contractor to challenge instructions that exceed the Engineer’s powers—quickly and safely.
🔧 Proposed PC Addition:
If the Contractor reasonably believes that an instruction issued by the Engineer exceeds the Engineer’s authority under the Contract, the Contractor shall notify the Engineer in writing within 5 days.
The Engineer shall then confirm, modify, or withdraw the instruction within 3 days of such notice.
If the Contractor reasonably believes that an instruction issued by the Engineer exceeds the Engineer’s authority under the Contract, the Contractor shall notify the Engineer in writing within 5 days.
The Engineer shall then confirm, modify, or withdraw the instruction within 3 days of such notice.
Visual Summary of Suggested PC Tweaks
| 🔍 Issue | 🔧 Suggested PC Language |
|---|---|
| “Necessarily implied” is vague | List examples of implied authority (e.g., site instructions not affecting critical path; minor sequence changes; non-substantive design clarifications; area reallocations; minor remeasuring) |
| “Significant” not defined | Define threshold: any instruction or variation increasing Price by >2% or extending Time by >14 days, unless Employer consents otherwise |
| No response deadline for Employer | Require Employer to respond in 7 working days of Engineer’s request, or consent is deemed granted |
| Engineer’s neutrality not protected | Declare Engineer’s impartiality under 3.7; link to Notice of Dissatisfaction and DAAB procedures; prohibit incentives or pressures |
| Verbal instructions cause confusion | Mandate written confirmation of all verbal instructions within 2 working days, only written confirmations binding |
| Engineer overstepping authority | Allow Contractor to notify overreach within 5 days; Engineer must confirm, modify, or withdraw instruction within 3 days |
Engineer’s Role Flowchart – Project Life Cycle (Clause 3.1)
🖼️
Click the image to view the flowchart in full size.
1
Start: Project Initiation
Marks the beginning of the construction project.
2
Appointment of Engineer
The Employer appoints the Engineer, a critical step in establishing project management.
3
Define Engineer’s Authority (Clause 3.1)
The Engineer’s duties and limitations are defined as per Clause 3.1.
4
Review Project Requirements
The Engineer reviews the project’s requirements to ensure understanding and alignment with the contract.
5
Provide Guidance to Contractor
The Engineer offers guidance to the Contractor, ensuring that the project execution aligns with the contractual terms.
6
Oversee Project Execution
Continuous oversight of the project by the Engineer to ensure compliance and quality.
7
Decision: Need for Variations?
The Engineer assesses if there is a need for variations in the project.
8
Yes: Propose Variations
If variations are needed, the Engineer proposes them.
9
Seek Employer’s Approval for Variations
The Engineer seeks approval from the Employer for the proposed variations.
10
No Variations Needed
If no variations are needed, the Engineer continues with project oversight.
11
Continue Project Oversight
Ongoing supervision and management of the project.
12
Assess Contractor’s Claims
The Engineer evaluates any claims made by the Contractor.
13
Issue Certificates and Approvals
The Engineer issues necessary certificates and approvals throughout the project lifecycle.
14
Project Completion
Marks the completion of the construction project.
15
End of Engineer’s Role
The Engineer’s role concludes with the completion of the project.
This flowchart and step-by-step guide show the Engineer’s key decisions and responsibilities from start to finish, as structured by FIDIC Clause 3.1.
✉️ Sample Letters for Sub-Clause 3.1 / 3.2 Scenarios
Letter 1: Contractor Challenging the Engineer’s Determination via NOD
Scenario: Contractor believes the Engineer acted without neutrality under Sub-Clause 3.7.
To: The Employer & The Engineer
Subject: Notice of Dissatisfaction with Engineer’s Determination – Sub-Clause 3.7.5
Reference: Sub-Clause 3.7.5 and Clause 21 of the FIDIC 2017 Contract
Dear [Recipient Names],
We refer to the Engineer’s determination dated [date] concerning [matter – e.g., EOT Claim Ref. XX].
Pursuant to Sub-Clause 3.7.5, we hereby issue this Notice of Dissatisfaction, as we believe the determination was not made in a neutral and impartial manner. Specifically:
[Brief description of concern, e.g., failure to consider relevant evidence, reliance on Employer’s position without proper consultation, etc.]
We request that the matter be referred to the Dispute Avoidance/Adjudication Board (DAAB) in accordance with Sub-Clause 21.4.
This Notice is issued within the prescribed 28-day period. We remain committed to cooperating in good faith toward a resolution.
Sincerely,
[Contractor’s Name]
[Designation]
Letter 2: Engineer Confirming Written Follow-Up to Verbal Instruction
Scenario: Site verbal instruction needs formal follow-up under Clause 1.3.
To: The Contractor
Subject: Written Confirmation of Verbal Instruction Issued on Site
Reference: Clause 1.3 and Sub-Clause 3.2 of the Contract
Dear [Contractor’s Name],
This letter serves as formal written confirmation of the verbal instruction issued on-site on [date] at [time] by [Engineer/Representative Name].
Instruction Summary: [e.g., Relocation of trench works by 2.5 meters to avoid underground service line]
This instruction is issued pursuant to Sub-Clause 3.2 and complies with the written communication requirements under Clause 1.3.
Please proceed accordingly. Should this instruction cause any disruption or require further clarification, notify this office immediately.
Yours faithfully,
[Engineer’s Name]
[Designation]
Letter 3: Contractor Requesting Clarification on Engineer’s Instruction
Scenario: Instruction received is unclear or ambiguous.
To: The Engineer
Subject: Request for Clarification on Instruction Ref. [XXX]
Reference: Sub-Clause 3.2 – Engineer’s Duties and Authority
Dear [Engineer’s Name],
We refer to your instruction Ref. [XXX], dated [date], regarding [summary of instruction]. We find the instruction ambiguous and seek clarification on the following points before proceeding:
> – [Point 1]
> – [Point 2]
> – [Any assumptions made or potential conflicts with specifications]
In line with our obligation to execute the Works in accordance with the Contract, we kindly request clarification within 3 working days to prevent any misinterpretation or unintended deviation.
Thank you for your attention.
Yours sincerely,
[Contractor’s Name]
[Designation]