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Duty of Loyaty of head Engineer

9 replies [Last post]
Wed, 2007-02-07 06:30
Stom R.
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Hi everybody, I am very new to the field and was wondering if anyone knew what the industry norms are regarding head Engineers on large construction / B.O.T. projects:

I was recently hired to join the Contractor for a major project, where the Govt. is the Client. The concession contract has provisions for the role of "Engineer" who has lots of authority. I believe he is supposed to be impartial, since the contract says he is to make decisions (which are binding) in accordance with the "Project Documentation", or if unspecified, in accordance with "the accepted professional principles and standards in the field of engineering."

Probelm is, the Engineer on the project openly views himself as the employee of the Govt. and always hands down binding decisions that are in the Govt.’s favor. The vast majority of employees of both sides take this for granted. Some of these decisions are having a massive effect on the Contractor’s (now enlarged) scope of work. I believe my superiors are preparing for a long battle in arbitration, but I was hoping first that somebody might know if there is a genreic standard in these kinds of cases. Is the lead Engineer generally supopsed to be impartial with a primary duty to the project, or does it vary by the project and the particular contract? Doesn’t seem right that the lead Engineer can simply act as an extension of one party.

Very much appreciate you reading this and thanks very much to anybody who could enlighten me on the matter...

-Stom
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Replies

Thu, 2007-02-22 21:24
#1
Andrew Flowerdew
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Stom,

Got to be careful what I say as the law in say Ihio is different from in New York etc, America can get quite complicated with it’s slight variations in laws between states. There are a number of cases in state courts and above that have discussed the issue in question. Many of the judgments are available on the internet and as your contract is with the government, I’m sure you’re aware that pretty standard interpretations of various government clauses apply. The general jist of what I’ve said applies but the onus of proof is on you - "He who asserts must prove".
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Wed, 2007-02-21 06:41
#2
Andrew Flowerdew
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Stom

Your last sentence says it all unfortunately.

These contracts, potentially very one sided if the Engineer does as in your case, are allowed because there is recourse to an independent third party to review his decisions.

And sometimes, you have to use it.
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Wed, 2007-02-21 03:32
#3
Stom R.
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Hi Andrew,

Your comment highlights what I think is the main problem- a real lack of clarity in the contracts themselves. On the one hand we’ve got an Engineer who is hired and paid by the Govt. (at least in our case). He is given very broad, binding powers. Even the "Independant Expert" (who, by the way, has not even been appointed yet!!!) does not have the authority under the contract to reverse an Engineer decision- only to grant an extension of time + costs. That being the case, the Engineer can (and does...) make key decisions that invariably come out to benefit the Govt. But as I quoted in my first post below, he’s contractually supposed to base decisions on the Project documentation and good industry engineering practice.

But he clearly sees himself as a Govt. employee, not an independant entity.

So: Is it only because the Govt. hired him and pays his way that he’s their man? Because that in practice give the Govt. a chance to change things to our detriment left and right, to the point where the provisions of the contract that benefit us are moot. To the point where a good chunk of the contract could conceivably become moot. Is this what happens with Engineer in all cases where he’s appointed paid by the Govt./Client?

Thanks for all your attention gentlemen, I think the word of the week/month/year is....arbitration.

-Stom


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Mon, 2007-02-19 03:58
#4
Charleston-Joseph...
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Hi Andrew,

I share your idea.

That the way im doing things.

We deliver to the best we can to achieve deadline.

Unfortunately, some culture just ....... the opposite.

Cheers,

Charlie
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Sun, 2007-02-18 16:18
#5
Andrew Flowerdew
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All,

It’s not so different the world over, just different cultures do things differently. Normally the Engineer should act impartially at times which normally imports the terms of fair and reasonable, BUT:

The Engineer also nomally wears two hats:

1. He IS the Employers man, employed to make decisions on behalf of the Employer where such a decision is required, in the Employers best interest.

2. He is to be impartial and NOT to act as the Employers man when dealing with matters relating the contractual rights between the Contractor and Employer - eg certifying payments, issuing extension of times, deciding disputes.

Unfortunately these two roles seem to completely pass by some Engineers (or similar) and they see their role only to act in the interest of the Employer. This must be the biggest cause of all disputes in the construction industry, the reasons are numerous. But again, check the contract and see what it says with regard the role of the Engineer. Certainly with regard deciding disputes, I can not believe the Engineer will be able to act anything other than impartially.

I’m not going to comment on the American way of doing things except to say that I in my experience, the only people alot of Americans in construction believe can get a job done, is Americans, the American way, which is always the right way!

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Thu, 2007-02-08 12:58
#6
Charleston-Joseph...
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Richard,

I agree with you.

It should be Record, Record and Record.

I hope Stom you will come to terms with this.

You see in my observation, the Americans usually "bark, bark and bark, meaning give order, and the contractor do the work.

While when i first work in commonwealth countries, it was record, record, record, before work. I thought it was isolated case, but as i continue working in different commonwealth countries, it becomes the norm record, record, record before doing the job

So please consider my previous post: IF YOU ARE IN ROME, DO AS THE ROMANS DO"

Cheers,

Charlie

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Thu, 2007-02-08 08:45
#7
Stom R.
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Thanks gents,

Very reassuring. Good thing there’s good evidence...

Will see how things develop further, I guess.

Appreciate the insight very much.

Regards,

Stom
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Thu, 2007-02-08 04:02
#8
Chris Oggham
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Hi Stom/Charlie,

Charlie’s got it right on this one, the Engineer is supposed to be impartial, but from what has been said he doesn’t seem to be. If, when you get to arbitration, you can show that the Engineers decisions were based on factors other than the project documentation or the accepted professional principles or standards you might be in with a chance.

Hopefully it won’t be your problem, Stom, but someone is going to have to get top quality advice on the best course of action to pursue in this matter, and the chances of success.

Regards

Chris Oggham
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Wed, 2007-02-07 06:49
#9
Charleston-Joseph...
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Hi Stom,

You are right. The Engineer should be impartial.

However, as the saying goes "pay to ceasar what belongs to ceasar" You can not blame the Engineer if and only if sometimes he will favor the government side.

You also have to understand that the nature of project implementation is US of A is different to other part of the universe: Europe, UK, Commonwealth Countries. In this part of the universe, we have a very active contract administrator that can intimidate "The Engineer"

I know because I worked for some times in the Philippines that follow the American System, also I worked in Aramco. But it so happened that I worked in Malaysia, Qatar, Indonesia, Papua New Guinea and UAE.

I know the differenc. So my advice, "IF YOU ARE IN ROME, THEN DO AS THE ROMANS DO"

Cheers,

Charlie
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