Consulting engineer in construction contract
(Правовое руководство по составлению строительных контрактов)
A consulting engineer as dealt with in this chapter is an engineer engaged by the purchaser to render advice and technical expertise to the purchaser, to take certain actions under the works contract on behalf of the purchaser, or to exercise certain independent functions under the contract (paragraphs 1 to 3). It is advisable for the works contract to set forth clearly the authority and functions of the consulting engineer to the extent that they affect the rights and obligations of the contractor (paragraph 4). The contract need not authorize or regulate the rendering by the consulting engineer of advice and technical expertise to the purchaser (paragraphs 5 and 6). It is advisable, however, for the contract to set forth any authority of the consulting engineer to act on behalf of the purchaser, including any limitations on such authority (paragraphs 7 and 8).
In some works contracts, the parties may wish to provide for a consulting engineer to exercise certain functions independently, rather than for or on behalf of the purchaser (paragraphs 9 to 12 and 16). Such independent functions may be limited to matters of a technical nature, and may include, for example, resolving on site technical questions arising during the course of construction, resolving discrepancies, errors or omissions in the drawings or specifications, interpreting the technical provisions of the contract, and certifying the existence of certain facts giving rise to rights and obligations under the contract (paragraphs 13 and 14). The parties may wish to consider whether the consulting engineer should be authorized to decide disputes between the parties (paragraph 15).
It is desirable for the contract to establish the extent to which an act of the consulting engineer pursuant to an independent function is to be considered binding on the parties. This may depend upon whether the act relates to the resolution of routine problems and questions, or is in connection with the settlement of a dispute between the parties (paragraphs 17 to 19).
If the consulting engineer is only to render advice and technical expertise to the purchaser, or to act on behalf of the purchaser, he might be selected by the purchaser alone. However, if he is to exercise independent functions, the contractor may wish to have the right to participate in the selection. It is desirable for the contract to establish procedures relating to the selection and replacement of the consulting engineer (paragraphs 20 to 26). It may be desirable for the parties to deal with the question of delegation by the consulting engineer of his authority, if they are able to do so under the applicable law (paragraphs 27 and 28).
The contract might obligate the contractor to provide to the consulting engineer such information or grant access to the site, places of manufacture and the completed works to the same extent that he must provide the information or grant access to the purchaser under the works contract (paragraph 29).