A request came from one of our blog followers. It was to examine the Engineer’s duty to provide instructions and responses within a reasonable time. In my experience, failure of the Engineer to comply with such obligations often gives rise to claims. Delayed issue of drawings or instructions are a regular feature of projects around the world.

I shall use the 1999 FIDIC Red Book as an example, although other forms of contract also contain similar provisions.

Sub-Clause 1.3 (Communications)

This clause states that ‘Approvals, certificates, consents and determinations shall not be unreasonably withheld or delayed’. Which immediately begs the question, what constitutes unreasonable delay? The contract itself provides guidance in many circumstances. For example, Sub-Clause 14.6 (Issue of Interim payment Certificates) requires the issue of payment certificates within 28 days of receipt of the Contractor’s Statement. Clause 10.1 (Taking Over of the Works and Sections) obliges the Engineer to either issue the Taking Over Certificate or reject the Contractor’s application within 28 days.

Sub-Clause 1.9 (Delayed Drawings or Instructions)

This deals with less specific time frames. It obliges the Contractor to provide a notice ‘whenever the Works are likely to be delayed or disrupted if any necessary drawing or instruction is not issued to the Contractor within a particular time’. If the Engineer does not act within the required time and the Contractor suffers delay or incurs Cost, the Contractor may make a claim.

Good contract administration will ensure that requests for information, submittals and the like contain a ‘response required by date’. That way, the Engineer is aware of matters which may cause delay.

Other Issues and Options

A particular response procedure, often ignored by Engineers are obligations under Sub-Clause 20.1 (Contractor’s Claims) and 3.5 (Determinations). Firstly, the Engineer must ‘respond with approval, or with disapproval and detailed comments’ within 42 days of receiving a claim. The Engineer must ‘consult with each Party in an endeavour to reach agreement’. The Engineer should, ‘give notice to both Parties of each agreement or determination, with supporting particulars’.

You should note that failure by the Engineer to act in accordance with the Contract and cause delay or the incurrence of Cost, entitles the Contractor to make a claim. It is therefore vital that the Engineer respects time frames.

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