Hi Shahzad,

It depends on which Form of Contract you are referring to. FIDIC Red Book 4th Edition, for example, doesn’t specifically prevent the Engineer from being an employee of the Owner. The Engineer, however, should be selected having regard to his professional integrity and his ability to fulfil his obligations under the Contract. He is also required to administer the Contract fairly and impartially in the interests of both parties!

Clearly, however, a Contractor may have concerns about the objectiveness of an Engineer who is already in the direct employ of the Owner, but also remember that even if the Engineer was not a direct employee, the Owner would still be responsible for paying for the Engineer’s services in any event, by way of a separate Owner/Engineer Agreement. In that sense, the Engineer is always in the employ of the Owner.

It is important that there be some form of agreement between the Owner and the Engineer in regard to the project, so that his duties and tasks are established and not mixed up with any other duties that he may have towards the Owner outside the project. It would be right for the Contractor to ask for a copy of the Agreement between the Owner and Engineer (and good luck to you if you get it!!).

At the end of the day, of course, remember that the Contractor is not usually finally bound by any decision made by the Engineer, since you should have the Dispute Resolution provisions to fall back on.

However, I do understand your concerns, but it unlikely that you can challenge the appointment unless and until the Engineer shows clear bias in favour of the Owner. You will just have to be vigilant to ensure that the Engineer does administer the Contract appropriately and that if you think otherwise, write to the Owner with your specific concerns, and ask for his replacement if you think that he has not fulfilled his duties under the Contract fairly and fully.

Hope this helps,

Cheers,

Stuart

www.rosmartin.com