Conclusions
In response to criticism and modern developments some attempt has been made by FIDIC to move away from the
traditional concept of the engineer in three directions. First, it is provided expressly in the contract that the engineer is deemed to act as an agent of the employer unless in relation to any particular duty or power a different capacity is indicated. Second, parties who wish to contract on the basis of further reduced independence of the engineer may do so by stating in the Particular Conditions the powers the engineer is not to exercise without the employer’s approval. Third, the contract provides for a DAB to which the parties may refer any dispute, including any dissatisfaction with the engineer’s determinations. The DAB’s decision must be implemented pending final resolution of the dispute by arbitration.
There may be disappointment in some quarters that FIDIC has not gone all the way to provide that the engineer is to act as the agent of the employer in relation to everything done as contract administrator. However, there is sufficient flexibility in the structure of the contract to support appropriate amendments where parties wish to contract on the basis that the engineer is to act solely as the employer’s agent.