Views in the last 30 days: 156
Estimated read time: 19 minute(s)
🧭 1️⃣ What’s the Real Purpose of This Clause?
Alright, let’s start with the big question:
Why does FIDIC even bother to 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:
- 📋 What the Engineer can do,
- ❌ What they cannot do, and
- 🤝 When they need the Employer’s nod before doing something important.
Now let’s look at each edition.
📘 1999 Edition – Sub-Clause 3.1
In the 1999 version, the Engineer is basically:
- Appointed by the Employer, and
- Acts as the Employer’s authorized representative, unless stated otherwise.
It assumes that the Engineer is already skilled but doesn’t say that directly. That’s one of the subtle weaknesses – the clause is more focused on authority limits than professional standards.
And here’s the interesting bit:
“The Engineer’s staff shall include suitably qualified engineers and other professionals who are competent to carry out these duties.”
📌 So, while the clause doesn’t outright say the Engineer must be competent, it implies that the people they bring along better be!
📕 2017 Edition – Sub-Clause 3.2
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…”
🎓 That’s a huge upgrade. Now, if there’s ever a dispute about whether the Engineer acted recklessly or negligently, this line becomes a yardstick for performance. It also strengthens the Contractor’s ability to challenge poor or biased decisions.
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.”
🧱 2️⃣ Let’s Break Down the Clause, Line by Line
Okay, let’s zoom into the text and pick it apart – like a detective looking at clues 🕵️♀️:
📘 1999: Sub-Clause 3.1
🧾 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!
📕 2017: Sub-Clause 3.2
This version keeps most of the 1999 structure but adds crucial refinements.
🎓 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.
⚖️ 3️⃣ Interpretation & Practical Implications
Here’s where the rubber hits the road.
🧩 Authority = Delegated Power
Both editions confirm: the Engineer has the power to act only within the contract. Nothing more. Nothing less. That protects both Employer and Contractor.
🛑 Limitations = Guardrails
- No power to change the contract.
- No power to forgive obligations.
- Need Employer consent for serious stuff (except Sub-Clause 3.7).
🧠 Real-World Impact:
- 🔐 If the Engineer tries to issue a huge variation (like ₹2 Crores extra works), and didn’t have the Employer’s green light… that variation could be challenged.
- 💼 If the Engineer makes a biased decision against the Contractor under 3.7, the 2017 version gives the Contractor solid grounds to fight back.
🔗 4️⃣ Cross-Referencing with Other Clauses
“How does the Engineer’s role link with the rest of the contract?”
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 clauses are the power hub for several critical processes like variation orders, claims, determinations, and even performance management. So, let’s connect the dots! 🧩
🧭 A. Connection with Clause 3.7 (Determinations – 2017) / Clause 3.5 (1999)
Let’s start with the BIG one: Engineer’s decision-making power.
🔍 What’s in Clause 3.7 (2017)?
This clause says:
The Engineer must consult with both Parties and make a fair determination based on the Contract and the circumstances.
💥 Here’s the twist: Under Sub-Clause 3.2 (2017), FIDIC explicitly protects the Engineer’s independence when making determinations under 3.7:
“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 the Contractor that time extension.” The Engineer is empowered to decide fairly, not favorably.
🧠 In contrast, FIDIC 1999’s Clause 3.5 simply says the Engineer shall consult both Parties and make a fair decision — but it doesn’t clearly shield the Engineer from Employer pressure. That’s a soft spot in 1999.
🧭 B. Interaction with Clause 13 – Variations and Adjustments
🎯 Sub-Clause 13.1 in both editions deals with the Engineer’s authority to initiate Variations. This is a BIG area where the Engineer flexes real muscle — instructing changes in design, quantities, or even sequence.
But here’s where Sub-Clause 3.1/3.2 kicks in 🔑:
⚠️ If the variation has a significant financial or time impact, the Engineer must first get the Employer’s consent — unless otherwise allowed.
🧩 Example: Let’s say the Engineer wants to add ₹1 crore worth of additional foundation works. Under both editions:
- They can’t just issue that Variation without the Employer’s okay (unless such limits are defined in the Particular Conditions).
- Sub-Clause 3.1 (1999) says the requirement to get approval must be stated in the PCs.
- Sub-Clause 3.2 (2017) reinforces this but adds clarity: the Employer can’t later restrict the Engineer’s power with extra rules not in the contract. 🙅♂️
So, if your Employer suddenly says, “Engineer can’t approve anything above ₹10 Lakhs,” — and that’s not in the PC — the Engineer doesn’t have to obey that.
🚨 Real-World Warning: If this boundary isn’t managed well, it creates a claims minefield. Why? Because the Contractor might execute a Variation based on the Engineer’s instruction — only to be told later, “Oops, that wasn’t authorized.” 💣
🧭 C. Link with Clause 20 – Contractor’s Claims
Ah, claims — the heart of most disputes.
Sub-Clause 20.1 (1999) and Sub-Clause 20.2 (2017) talk about the Contractor’s right to claim for EOT or additional payment.
But who triggers or evaluates that process?
👀 You guessed it: the Engineer.
Under Sub-Clause 3.1/3.2, the Engineer:
- Reviews the claim
- Requests supporting documents
- Makes a determination (in line with 3.5 or 3.7)
Now here’s where things get spicy 🌶️:
🚦 What If the Engineer Ignores the Claim?
- Under 1999: There’s no defined time limit for the Engineer to respond to claims. It’s open-ended and risky for Contractors.
- Under 2017: FIDIC introduces strict time limits (within 42 days of receiving a fully detailed claim), which brings clarity and fairness.
So, Sub-Clause 3.2 must be read hand-in-hand with Clause 20. Otherwise, the Engineer’s silence can cause:
- Delays in EOTs,
- Unresolved payments,
- And even potential referrals to DAAB or arbitration. 🎭
🧭 D. Clause 4 – Contractor’s Obligations
This one is a bit subtle but super important.
Sub-Clause 3.1(c) (1999) and 3.2 (2017) make it crystal clear:
Just because the Engineer approved, reviewed, or didn’t object to something… doesn’t mean the Contractor is off the hook.
Let’s say the Contractor submits a design drawing and the Engineer “approves” it. Later, it turns out the design caused a structural defect.
Contractor says:
“But you approved it!”
Engineer says (pointing to Sub-Clause 3.2):
“Yes, but that approval doesn’t relieve you of your duty under Clause 4.1 to do the work correctly.”
📌 Boom. Game over.
This preserves the Contractor’s accountability and keeps the Engineer out of liability trouble. It also reinforces the message:
👉 Approvals are administrative, not technical guarantees.
🧭 E. Clause 1.1.6.4 – Engineer’s Representative
This is often overlooked, but the Engineer’s Representative or Assistants can act on behalf of the Engineer.
Sub-Clause 3.2 (2017) says that acts by the Engineer’s team — such as site instructions, comments on reports, or even silence (no reply) — still don’t waive the Contractor’s duties.
Why does this matter?
Because sometimes:
- An Assistant Engineer nods approval at site verbally,
- Contractor acts on it,
- Then gets penalized later because it wasn’t formally signed off.
This clause protects the Employer AND the Engineer by making it clear:
Even if the Engineer’s assistant gives you the thumbs up, the risk is still yours, dear Contractor. 👍😬
🎁 Wrap-Up: Cross-Referencing Key Table
Let’s sum up the most crucial cross-references in a table you can screenshot or print out 🖨️📸:
| 🔗 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 |
🔮 5️⃣ What If Scenarios – Let’s Play “FIDIC Reality Check”
🧪 Scenario 1: Employer Tells Engineer to Quietly Deny All EOTs
If this happens under 1999: the Engineer might comply (they work for the Employer), and the Contractor may need to go to dispute.
Under 2017: Sub-Clause 3.7 protects neutrality, and 3.2 reminds the Engineer to act as a skilled professional. So, if they deny EOTs unfairly — that’s grounds for challenge.
🔍 Scenario 2: Engineer Approves Faulty Design Document
Both editions say: “Not our problem.” Contractor is still on the hook. That approval doesn’t remove responsibility.
Moral of the story? ✅ Never rely on approvals as a substitute for good design checks.
🚨 Scenario 3: Engineer Suddenly Told to Limit Powers (e.g., no approvals > ₹25 Lakhs)
That’s not allowed. Both versions say “no further constraints” unless mutually agreed (especially in PCs). So, if the Contractor smells political interference, they can push back legally.
🛠️ 6️⃣ Suggestions for Clarity – Golden Principle Style
🛠️ 6️⃣ Suggestions for Clarity and Improvement
“Let’s turn vague intentions into bulletproof language.”
Both Sub-Clause 3.1 (1999) and Sub-Clause 3.2 (2017) do a solid job of laying out the Engineer’s role — but like any general-purpose contract, they leave room for interpretation. And that’s both a strength and a risk.
If you’re drafting a contract or advising on one, here’s how we can use Particular Conditions to make Sub-Clause 3.1 / 3.2 tighter, clearer, and dispute-resistant.
🔍 A. Ambiguity #1: “Necessarily to be Implied from the Contract”
📌 The Issue:
The clause says:
“…Engineer may exercise the authority specified in or necessarily to be implied from the Contract.”
Now, what exactly is “necessarily implied”? 🤔
Is instructing the Contractor to repaint a wall implied?
What about changing the sequence of installation?
Or modifying access arrangements on-site?
All three could fall into this grey zone.
⚠️ Risk:
This imprecise phrasing creates uncertainty, and if challenged, could invalidate actions taken by the Engineer — especially if they affect time or cost.
✅ Suggested Fix:
Introduce a list of implied authorities in the Particular Conditions.
🔧 Proposed Clause (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.”
This draws a clear line between admin-level instructions and cost/time-sensitive actions. 🧾
📉 B. Ambiguity #2: “Significant Effect” — but How Significant?
📌 The Issue:
Under both editions, when a proposed instruction or Variation would have a “significant effect on cost or time,” the Engineer must first seek the Employer’s approval.
But… what counts as “significant”? 🤷♂️
- ₹5 Lakhs on a ₹500 Cr contract? Probably not.
- A delay of 3 days in a 900-day schedule? Unlikely.
- ₹1 Cr in the final stages of handover? Possibly yes.
✅ Suggested Fix:
Quantify the threshold in the Particular Conditions.
🔧 Proposed Clause (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.”
📊 This gives the Engineer and the Contractor a crystal-clear test for when Employer input is mandatory.
🧭 C. Ambiguity #3: No Timeframe for Employer’s Consent
📌 The Issue:
When Employer approval is needed, how long can the Employer take to respond? There’s no deadline — so things can stall.
Imagine this:
- Contractor proposes an urgent Variation due to unforeseen site conditions.
- Engineer agrees, but needs Employer sign-off.
- Employer takes 30 days to reply… and guess what? Contractor is bleeding costs.
✅ Suggested Fix:
Timebox the Employer’s response window.
🔧 Proposed Clause (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.”
⏳ This forces decisions on time — which is crucial in fast-moving EPC or D&B contracts.
⚖️ D. Ambiguity #4: Engineer’s Neutrality and Conflict of Interest
📌 The Issue:
While Sub-Clause 3.2 (2017) clarifies that the Engineer need not obtain consent for determinations under 3.7, it doesn’t explicitly address conflict of interest scenarios — nor the practical mechanism to challenge perceived bias beyond Clause 3.7.
What if the Engineer:
- Is employed directly by the Employer’s engineering wing?
- Is taking internal instructions on how to interpret the contract?
That undermines neutrality, and fairness may become questionable. 🕵️♀️
✅ Suggested Fix:
Tie neutrality to the Notice of Dissatisfaction (NOD) and DAAB procedures clearly outlined in Sub-Clause 3.7.5 and Clause 21.
🔧 Proposed Clause (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.”
📌 This language not only reaffirms neutrality but gives Contractors and Employers a clear, contractual right to challenge it through existing FIDIC mechanisms.
🔁 E. Ambiguity #5: What About Verbal Instructions?
📌 The Issue:
Engineers often give verbal instructions on site — “shift that pipe,” “hold concrete here,” “remove that scaffold” — but unless they’re documented, they can create confusion or disputes.
This becomes even more critical when we consider Clause 1.3 [Notices and Other Communications] in the 2017 edition, which states:
“…approvals, certificates, consents, determinations, notices and requests, these communications shall be: (a) in writing and delivered by hand (against receipt), sent by mail or courier, or transmitted using any of the agreed systems of electronic transmission…”
🛑 So verbal instructions are not legally recognized under Clause 1.3 unless followed by a valid written form.
✅ Suggested Fix:
Align with Clause 1.3 and make instruction documentation mandatory — with a time frame.
🔧 Proposed Clause (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.”
🗂️ This protects both sides — no more “he said, she said” disputes! It also ensures alignment with the formal communication framework mandated by FIDIC.
🧠 F. Bonus Improvement: Empowering the Contractor to Challenge Overreach
Let’s say the Engineer oversteps their authority, issues a cost-impacting instruction without Employer approval, and insists the Contractor proceed.
What happens next?
Without clarity, the Contractor is in a bind:
- If they don’t comply, they risk delay accusations.
- If they do comply, they may not get paid.
✅ Suggested PC Solution:
“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.”
This gives Contractors a safe challenge window — preventing one-sided actions.
✍️ Wrap-Up: Practical Language Summary
Here’s a visual-style summary of all the tweaks we just covered:
| 🔍 Issue | 🔧 Suggested PC Language |
|---|---|
| “Necessarily implied” is vague | List examples of implied authority |
| “Significant” not defined | Add cost/time thresholds (e.g., 2% or 14 days) |
| No response deadline for Employer | Employer must respond in 7 days or consent is deemed |
| Engineer’s neutrality not protected | Declare independence and link to NOD/DAAB procedure |
| Verbal instructions cause confusion | Require written follow-up within 2 working days |
| Engineer overstepping authority | Let Contractor challenge unclear instructions safely |
🧾 7️⃣ Final Takeaways – What You Should Remember
| 🔍 Focus Area | Key Insight |
|---|---|
| 📌 Authority Limits | Both clauses make it clear – the Engineer isn’t a mini-Employer or contract editor. |
| ⚖️ Neutrality | 2017 steps up – especially under Sub-Clause 3.7. |
| 🧰 Practical Role | Think of the Engineer as a regulated manager with limited freedom. |
| 👀 No Liability Shifting | Engineer’s approval ≠ Contractor’s free pass. Stay responsible. |
| 🧑💻 Drafting Tip | Use Particular Conditions to lock in what “significant” means and define approval timeframes. |
Flowchart:
Detailed Explanation of the Flowchart
- Start: Project Initiation
- Marks the beginning of the construction project.
- Appointment of Engineer
- The Employer appoints the Engineer, a critical step in establishing project management.
- Define Engineer’s Authority (Clause 3.1)
- The Engineer’s duties and limitations are defined as per Clause 3.1.
- Review Project Requirements
- The Engineer reviews the project’s requirements to ensure understanding and alignment with the contract.
- Provide Guidance to Contractor
- The Engineer offers guidance to the Contractor, ensuring that the project execution aligns with the contractual terms.
- Oversee Project Execution
- Continuous oversight of the project by the Engineer to ensure compliance and quality.
- Decision: Need for Variations?
- The Engineer assesses if there is a need for variations in the project.
- Yes: Propose Variations
- If variations are needed, the Engineer proposes them.
- Seek Employer’s Approval for Variations
- The Engineer seeks approval from the Employer for the proposed variations.
- No Variations Needed
- If no variations are needed, the Engineer continues with project oversight.
- Continue Project Oversight
- Ongoing supervision and management of the project.
- Assess Contractor’s Claims
- The Engineer evaluates any claims made by the Contractor.
- Issue Certificates and Approvals
- The Engineer issues necessary certificates and approvals throughout the project lifecycle.
- Project Completion
- Marks the completion of the construction project.
- End of Engineer’s Role
- The Engineer’s role concludes with the completion of the project.
This flowchart provides a clear and detailed visualization of the Engineer’s role throughout a construction project, as governed by Clause 3.1. It highlights the decision-making points, responsibilities, and the structured process followed by the Engineer from the project’s initiation to completion. This explanation is designed to be accessible to a broad audience, ensuring clarity and understanding of the Engineer’s critical role in construction projects.
✉️ 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:\n> – [Point 1] \n> – [Point 2] \n> – [Any assumptions made or potential conflicts with specifications]\n\nIn 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]