Design Responsibility Introduction The Red Book does not dedicate a Clause to design but that does not

mean that Contractors will be completely exempted from all design responsibility.Under a FIDIC Contract the term design is not a defined term. Sub-Clause 5.1 of the Yellow Book simply states that the Contractor is responsible for the design of the Works which he shall carry out. In fact it has proved practically impossible to find a harmonized definition of design stages. Due to different traditions, legal provisions and practice in the various countries worldwide no clear detailed specification of design for international business exists. Instead each project has its own particularities and requirements to be met. Thus FIDIC has been reluctant to define the term design. However it has ruled in detail the procedures for design carried out by the Contractor within the Yellow, the Silver and the Gold Book. The normal design stages of an architect or engineer vary from country to country. Employers Design If the contractual relationship is regulated on the basis of the Red Book, the design shall be carried out by the Employer. The Contractor shall execute and complete the Works designed by the Employer. But of course FIDIC is not naive and inexperienced in this regard. Thus, even though the design is an Employers task the Contractor shall design the Works to the extent specified in the Contract. This is often ignored by the Contractor who does not bear in mind that the Employer expects him to carry out the designed Work by providing a lot of design input in its largest sense. All this is important to know because according to Sub-Clause4.1 the Contractor shall be responsible for his design, which, when completed, shall be fit for the intended purposes. In fact, from a legal point of view the design requirement under a Red Book contract is an essential characteristic of any construction contract. If the Contractor becomes discharged from all design liability he will only carry out services under the supervision and superintendence of the Employer. He will then not be liable to achieve a specific result but only to comply with due skill and care. One could also say the Employer has hired services to be carried out (Civil law) or a man who carries out services (Common law). Contractors Design The Contractors design shall and will be based on the Employers Requirements and Specifications which are incorporated in the Contract. Even though the Employer has accepted the Proposal which becomes incorporated as part of the Contract, he may instruct the Contractor to strictly comply with the Requirements. In any case, the design responsibility includes all design services which are necessary for the completion of the Works. The Contract may specify design details, design stages and approval requirements. The Contractor shall then comply with all of them. A change of design

requirements or method requirements is not allowed without prior approval by the Engineer. Any such changes may constitute a Variation. Contractors Design Liability Contractor assumes the responsibility for the design or for parts of the design it shall be fit for the intended purposes. Most Contractors will feel uncomfortable with this. The designer must ensure that the Contractor will only carry out work which is in accordance with the Contract. On the other hand the Contractor enjoys complete freedom to choose the materials and methods of working, unless the Contract sets out limits to this effect. The Engineer is therefore not allowed to reject design because he believes that the design includes materials or methods of working which should be replaced by better or more appropriate materials or methods of working, if the design is in full compliance with the Employers Requirements.

Design Update Even though the Contractor has complied with all design obligations during the course of the Works he remains under a duty to update his design if new technical standards and regulations or even new legislation requires him to do so. The Works shall comply with technical standards, building, construction and environmental Laws. Thus even if a few days before Taking-Over new technical standards come into force the Contractor shall reopen his design and submit a new design. Engineer The Role and Function of the Engineer The Engineer (or Employers Representative) is thus a very powerful person who is also referred to as a decision-maker, a function which requires a certain degree of impartiality and fairness from him. In common law, generally, the role of the Engineer will be divided between actions taken as the employers agent and those involving a professional opinion. In the latter case the role of the engineer is best explained in the decision Sutcliffe v. Thackrath: The building owner and the contractor make their contract on the understanding that in all such matters the Engineer will act in a fair and unbiased manner and it must therefore be implicit in the owners contract with the Engineer that he shall not only exercise due care and skill but also reach such decisions fairly, holding balance between his client and the contractor. It is not acceptable for the employer and the engineer to stem from the same organization. However, in this case the FIDIC conditions included an expressed clause of impartiality. However, even if there is a clause stating that the Engineer must protect the Employers interests and ensure that the Employer does not pay more than he should, the Engineer must act equitably towards the Contractor.

Under no circumstances should the Contractor assume from the fact that the Engineer belongs to the Employer that the Engineer in its role as a contract administrator would act partially. On the contrary the Contractor should expect the Engineer to act independently and impartially according to his professional judgment, even though he was engaged by the Employer and will often act as his agent.Moreover the FIDIC based Engineer, although not being allowed to amend the contract, has powers to instruct Variations. Unfortunately it is often the case for Employers and their consultants to attempt to limit the powers of the Engineer under an express condition of prior approval by the Employer. He is intended to be an engineer with complete engineering skills and experiences having also a good understanding of the contract and the required contract administration procedures. Thus he should be able to determine new rates under a Red Book contract (see Sub- Clause 12.2) or to agree or determine adjustments to the Contract Price under a Yellow Book contract. He should also be capable to review and/or approve the Contractors design against the Employers Requirements as the case may be. Again he should be able to foresee all legal, commercial and technical consequences of any instructions, in particular those leading to variations. FIDIC does not only require from the parties to enable the Engineer to do his work. Instead they are required to follow the contracts procedural rules. In this context FIDIC expects the Engineer to be a sufficiently experienced and skilled person in order to satisfy all the requirements of the contract. The Engineer is not only an agent of the Employer who exercises the rights and duties of the Employer. Constraints and Restrictions on the Engineer It is clearly stated that the Engineer is not allowed to amend the contract (see Sub-clause 3.1). He is also not allowed to relieve either Party to the contract of any duties, obligations or responsibilities under the Contract. In particular any approval, check, certificate, consent, examination, inspection, instruction, notice, proposal, request, test, or similar act shall not relieve the Contractor from any responsibility he has under the Contract Thus the Engineer never changes the contract or deviates from that which has been agreed by the parties. Powers of the Engineer Anyway, the Engineer (or Employers Representative) has many powers, which may be summarized as such: 1. The Engineer is responsible of the kick-off, because he must notify the Commencement date (Sub-Clause 8.1). 2. The Engineer may reject any submitted programme (Sub-clause 8.3). 3. The Engineer participates at the tests and is allowed to reject any Plant, Materials or workmanship (Sub-Clause 7.5). 4. The Engineer inspects the Works (Sub-Clause 7.3). 5. The Engineers shall measure the Works (Sub-Clause 12.1 Red Book). 6. The Engineer shall determine new rates (Sub-Clause 12.3 Red Book). 7. The Engineer shall evaluate and determine variations (Sub-Clause 13.3).

8. The Engineer shall review and approve the design, if so specified (Sub-clause 5.2 Yellow Book). 9. The Engineer shall certify payments (Clause 14). 10. The Engineer shall issue Taking-Over Certificates, Performance Certificates (Sub-clauses 10.1, 11.9). 11. The Employers Representative shall issue Commissioning Certificates (Gold Book) 12. The Engineer shall approve or disapprove and determine claims (Sub- Clause 3.5). 13. The Engineer shall give instructions (Sub-Clause 3.1, 1.5, 13.1). 14. The Engineer shall request proposals (Sub-Clause 13.3).