Contractor is to remove the representative from the works permanently and

replace him with a representative approved by the Engineer.

This clause, although somewhat re-arranged, is essentially the same as the 3rd
Edition.

This clause is designed to tackle the problem of ensuring that the Contractor
maintains on site good quality management right to the end of the project and
throughout the defects liability period. Indeed, the clause may provide additional
incentive for the Contractor to achieve a speedy submission of final account
documentation. However, the Engineer's view of the superintendence necessary
could be challenged and there is little obvious sanction should the Contractor
wish to remove his most experienced management to more rewarding work than
the remedying of defects.

The withdrawal of approval of a manager during the course of the works could,
however, be very disruptive to the Contractor. The Engineer must exercise his
discretion in relation to the approval of the Contractor's authorised representative
in accordance with clause 1.5 (Notices, consents etc) and clause 2.6 (Engineer
to act impartially). Thus, approval shall not be unreasonably withheld and the
Engineer must exercise his discretion impartially. FIDIC, in their Guide, seek to
discourage delegation of the Engineer's power under this clause.

The Contractor's ability to challenge the withdrawal of the Engineer's approval is

of little practical assistance as the representative must be replaced "as soon as is
practicable". An arbitrator could in due course rule that the withdrawal of the
approval was unreasonable whereupon the Contractor may be entitled to
whatever damages he could demonstrate. It must be doubted whether the
arbitrator has power to order the reinstatement of such a representative, even if
an arbitration could be completed in time.

As clause 62.2 (Unfulfilled obligations) contemplates the existence of obligations

beyond the Defects Liability Certificate, the Engineer could seek to require the
Contractor to maintain superintendence well beyond the defects liability period if
he considered it necessary.

"... which approval may at any time be withdrawn ...". This expression does not,
it is submitted, free the Engineer from the constraints placed upon him by clause
1.5 (Notices, consents etc.) and clause 2.6 (Engineer to act impartially).
Compare the words used in clause 3.1 (Assignment of contract) where the
draftsman sought to give the Employer an unfettered right to withhold his consent
to the assignment of the contract. In contrast with assignments, it is plainly right
that the Contractor's top management on site should be left undisturbed unless
the Engineer has good reason to withdraw his approval.

There is a conflict between this clause and clause 68 (Notices) which requires all
certificates, notices or instructions to be sent to the Contractor's principal place of
business or other nominated address by post, telex, etc. Here, instructions may

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be handed to the Contractor's authorised representative on site. Whilst it is
obviously sensible that day to day instructions should not be sent to the
Contractor's head office alone, this conflict should be resolved, preferably by the
requirement that copies of all instructions which are handed over on site should
be sent to the head office or nominated address. That would remove any
possibility of debate as to whether an instruction had in fact been given.

The reference in the current clause to the Engineer's Representative is

superfluous given clause 2 (Engineer and Engineer's Representative). After this
clause, no more is heard about him.

Part II provides an optional clause requiring the Contractor's representative to be

fluent in a particular language and/or for the Contractor to provide a competent
interpreter. ICE 5th and 6th require the contractor's superintendents to be
knowledgeable in safety matters and makes the authorised representative
expressly responsible for safety on site. FIDIC's 4th Edition leaves these matters
to clause 8.2 (Site operations and methods of construction) and clause 19.1
(Safety, security and protection of the environment).

CLAUSE 15.1 (Contractor's superintendence)

The final sentence of the first paragraph in this clause read as follows:-

"Such authorised representative shall receive, on behalf of the Contractor,

instructions from the Engineer or subject to the provisions of clause 2, the
Engineer's representative"

The words in italics have now been deleted. In view of the broad delegation
powers given to the Engineer by clause 2.3 (Engineer's authority to delegate) the
words were unnecessary.

Contrast clause 13.1 (Work to be in accordance with the Contract), referred to

above, where it was not felt safe simply to amend these words.

CLAUSE 16 : Contractors Employees

The Contractor shall bring to site for the project skilled and experienced technical
assistants, competent foremen and leading hands to supervise the works and all
necessary labour for the proper execution of the project.

The Engineer shall be entitled to object to anybody he considers has misbehaved

or is incompetent or negligent or otherwise undesirable. The Contractor shall
remove any such person permanently and shall replace him as soon as possible.

This clause is essentially similar to the 3rd Edition subject to a number of

changes in the vocabulary.

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This clause imposes upon the Contractor obligations and gives the Engineer
powers with a view to ensuring the quality of the works. The general obligation is
set out at clause 8.1 (Contractor's general responsibilities) where "the Contractor
shall provide all superintendence, labour...". The Engineer's power must be
exercised impartially as the removal of assistants and labour is action which
"may affect the rights and obligations" of the Contractor under clause 2.6
(Engineer to act impartially).

The Engineer's entitlement to object is not necessarily limited to the categories of

person set out at 16.1 (a) and (b) as he can require the removal of "any person
provided by the Contractor". Thus, management, consultants and subcontractors
could fall within this clause. Clause 1.3 (Interpretation) states that the term
'person' includes firms, corporations and other organisations.

"...otherwise considered by the Engineer to be undesirable...". The duty to act

impartially is an important qualification of an otherwise extremely broad term.
From the Employer's point of view, the Contractor's claims team could be
considered undesirable as could experts brought on to site to look into, for
example, deficiencies in the Engineer's design. As "undesirable" does not cover
misbehaviour, incompetence or negligence, which are specifically referred to, the
term is presumably aimed at trouble-makers or people who disregard site safety.

As with clause 15.1 (Contractor's superintendence), Part II provides an optional

clause whereby the Contractor's superintending staff should have a reasonable
proportion of people with a working knowledge of a given language.
Alternatively, competent interpreters are to be provided.

Part II also provides a clause encouraging the Contractor to employ local staff
and labour. FIDIC, in their Guide, seek to discourage delegation of the Engineer's
power under this clause and clause 15.1.

CLAUSE 17 : Setting out

Once the Engineer has stated in writing the original points, lines and levels of
reference, the Contractor is responsible for the accurate setting-out of all parts of
the work and providing labour and equipment for the purposes of setting out.
The Contractor shall rectify any setting-out error that appears, if required to do so
by the Engineer, at his own cost unless the error is based on incorrect written
data supplied by the Engineer, in which case the Contractor will be reimbursed.
The Contractor will not be relieved of his responsibility if the Engineer checks any
setting-out. The Contractor must protect all bench-marks, site-rails, pegs etc.

This clause uses the vocabulary of the 4th Edition but the principles of the 3rd
Edition are retained.

This clause, like clause 39.1 (Removal of improper work, materials or plant),
gives the Engineer wide power to cause the Contractor to rectify errors

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regardless of their significance. In practice, parties would normally agree to a
reduction in the valuation of the work if a minor defect would be
disproportionately expensive to remedy. At common law, the Employer would be
under an obligation to mitigate his loss, but the terms of this clause and clause
39 seem to negate any such duty. For discussion of the Engineer's power to
waive strict compliance with the specification, see the commentary under clause
2.1 (Engineer's duties and authority) and clause 13 (Work to be in accordance
with contract).

This clause envisages the Engineer giving reference points and data in writing
which is obviously sensible for the avoidance of disputes. However, it is easy to
imagine site conditions in which writing would not assist and the Engineer would
be obliged to provide a physical datum point. In these circumstances, the
Contractor would be well advised to request the Engineer to confirm with
whatever description was appropriate the nature and location of the marker. In
any situation where there is a physical datum point, there is risk that it would be
moved or damaged by heavy machinery hence the obligation upon the
Contractor to protect and preserve it. As the physical datum point would be the
best evidence of the setting out error upon which the Contractor may be seeking
to rely, it is plainly in his interests to do so.

If the Engineer supplies incorrect data, and admits the error, he is given the
choice of requiring the Contractor to rectify the error, whereupon the Contractor
is entitled to be paid in accordance with clause 52 (Valuation of variations); or of
disregarding the error. However as clause 2.1(c) (Engineer's duties and
authority) makes it clear that the Engineer has "no authority to relieve the
Contractor of any of his obligations", the Contractor must obtain evidence that the
Employer has approved the Engineer's decision. As commented under clause
2.1, it is unlikely that a written instruction is sufficient evidence.

The use by the draftsman of the expression "subject as above mentioned" here
and in clause 11.1 (Inspection of site) is an unhelpful practice as in both cases it
far from obvious what is being referred to. Here it presumably refers to "in
relation to original points, lines ... given by the Engineer...".

"The checking of any setting-out ... shall not ... relieve the Contractor of his
responsibility ...". Whilst the Contractor should not be entitled to escape his
liability for inaccurate setting out due to the fact that one of the Engineer's team
was on hand when the setting out was done, it would be equally wrong if some
crucial element of setting out, which the Contractor specifically arranged for the
Engineer to check and verify, could then be held to be inaccurate with the result
that the Contractor is obliged to rectify all work carried out at his own cost. The
Contractor could endeavour to protect himself by requesting that the Engineer
confirm in writing that the setting out is accurate and correct or alternatively he
could treat the approval of the setting out as an oral instruction and write
pursuant to clause 2.5 (Instructions in writing) confirming the instruction.
However, neither of these steps overcome the express words of the clause, it is
submitted. As a last resort, the Contractor could challenge the Engineer's

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decision to require rectification as being unreasonable and contrary to clause 2.6
(Engineer to act impartially). This clause continues a theme in the contract of
maintaining the Contractor's responsibility, regardless of the actions of the
Engineer. See also clause 7.3 (Responsibility unaffected by approval), clause
14.4 (Contractor not relieved of duties or responsibilities), clause 37.2 (Inspection
and testing), and clause 54.8 (Approval of materials not implied) for other
examples. See also clause 61.1 (Approval only by Defects Liability Certificate).

Although this clause provides for additional money, extension of time is not dealt
with. Delay caused by an error by the Engineer must be capable of an extension
of time or else time would be set at large. Clause 44.1 item (d), "any delay,
impediment or prevention by the Employer" could apply, failing which the error
could amount to "special circumstances" under item (e).

Clause 53.1 (Notice of claims) applies to claims under this sub-clause so that the
Contractor has 28 days of the event to notify the Engineer of an intention to
claim. The notice requirement of clause 52.2 (Power of Engineer to fix rates)
does not, it is submitted, apply for the reasons set out under that sub-clause.

CLAUSE 18 : Boreholes and Exploratory Excavation

The Engineer may instruct the Contractor to make boreholes or to carry out
exploratory excavation at any time during the execution of the works. Such
instructions will be dealt with under clause 51 unless an item or a provisional sum
is included in the Bill of Quantities.

This clause is not significantly different from the 3rd Edition although it caters for
the possibility that items will be included in the Bill of Quantities for boreholes or
excavation and are not just dealt with as provisional sums.

The Engineer's right to instruct boreholes or carry out exploratory excavation only
starts, it is submitted, when the Contractor chooses to start on site. Under clause
41.1 (Commencement of works) the Contractor is obliged to start "as soon as is
reasonably possible" after the notice to commence. Thus is may be that the
Contractor is entitled to refuse such an instruction during his mobilisation. As the
Engineer may well require such excavation at a very early stage, it may be
preferable to give the Engineer the right to give such instructions at any time from
the notice to commence until the end of the Defects Liability Period. See also
clause 50.1 (Contractor to search) for a right to require the Contractor to explore
the cause of defects.

If an item for boreholes or exploratory excavation is included in the Bill of

Quantities, clause 58 (Provisional sums) will apply and the work will be valued in
accordance with clause 52 (Valuation of variations). Thus the Contractor's
recovery will be the same whether an instruction is issued in accordance with
clause 51 (Variations) or clause 58.

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