discretion of the Employer".

Thus, the Employer has the right to refuse an

assignment on any grounds. The Contractor's consent to an assignment is
however subject to clause 1.5 (Notices, consents etc) whereby "any such
consent ... shall not be unreasonably withheld or delayed". Thus, the Employer's
ability to assign is greater than that of a Contractor. It is submitted that bona fide
concern over the financial standing of the Employer's proposed assignee would
be reasonable grounds for refusing consent. It is undoubtedly right that having
carefully selected a Contractor to execute the works, the Employer should have a
right of veto over any proposed assignment.

An attempted assignment without the requisite consent would, in English law at

least, be ineffective. Again under English law, an assignment by an Employer
with consent would not relieve that Employer of a primary obligation to pay the
Contractor. The Engineer's contract of engagement would also normally need to
be assigned or novated to the new Employer.

(a)(iii) "Subcontractor" - Under clause 4.1 (Subcontracting), it should be noted

that the Contractor is not required to obtain consent for the provision of labour.
Thus, a labour-only subcontractor does not fall within the definition.

(a)(iv) "Engineer" - By clause 1.3 (Interpretation), the Engineer may be a firm, a

corporation or other organisation having legal capacity. The Engineer must be
named in Part II. It is a new feature of the 4th Edition that there is no ability in the
Employer to replace the Engineer. In the 3rd Edition and ICE 5th and 6th, there
is defined the "Engineer appointed from time to time by the Employer". The
present definition will not be a problem if the Engineer is named as a firm;
however, the Engineer will often be a named individual. According to the Guide
issued by FIDIC on the 4th Edition, the reason for this change from the 3rd
Edition is that the identity of the Engineer (and his reputation) has been a factor
in the calculation of the Contractor's tender. This, it is submitted, is a mistake.
Whilst it is certainly true that a Contractor might well price work differently if the
Engineer is a respected independent professional on the one hand rather than a
government department's Chief Engineer on the other, the functioning of the
contract is so dependent upon the existence of an Engineer there must be a
substantial risk of the project falling apart if its survival is dependent upon the
parties' ability to agree a replacement Engineer in the event that the named
Engineer died or otherwise ceased to act. If the parties were in dispute at the
time, the prospects for agreement must be limited.

In theory, a dispute over the replacement Engineer would be one capable of

resolution under the arbitration clause. However, in the absence of an Engineer,
it is difficult to see how the disputes procedure can commence. It may be
possible to draw a distinction between situations where the Engineer has died
and other circumstances where he is simply failing or refusing to act. In the latter
circumstances, the Engineer is still in existence and the disputes procedure can
advance by default. If he is dead, there does not seem to be any way forward
without agreement between the parties. The Employer is obliged to try to replace
him and obtain the Contractor's agreement, it is submitted. For a case on the

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more traditional position, see Croudace v Lambeth (1986) 33 BLR 20, where the
Court of Appeal held the Employer liable in damages for failing to replace the
certifier after the retirement of the named person.

A similar distinction may be made with regard to the powers delegated to the
Engineer's Representative under clause 2.3 (Engineer's authority to delegate). If
the Engineer is alive, it is arguable that the Engineer's Representative's powers
are unimpaired. However, the Contractor's ability to question any communication
of the Engineer's Representative by reference to the Engineer under clause
2.3(b) could effectively bring the Engineer's Representative's powers to an end.

If the Engineer died or otherwise ceased to act and the parties are unable to
agree to a replacement, the effects, it is submitted, would be as follows:-

(1) The Employer would not be in breach of his obligation to ensure that the
Engineer exercises his functions provided that he has taken reasonable steps to
propose an alternative Engineer and has not been unreasonable in refusing any
nominee of the Contractor. Compare clause 69.1 (Default of Employer) item (b)
"interfering with or obstructing ...any such certificate".

(2) Nor would the Employer be in breach for failing to pay the Contractor in
the absence of interim certificates. The obligation would probably be to pay when
the works were complete.

(3) Clause 66.1 (Release from Performance) is not appropriate as any

impossibility is not "outside the control of both parties". Thus, it may be arguable
that the fundamental obligations of the parties remain intact:-

(i) the Contractor's obligation under clause 8.1 (Contractor's general

responsibilities) to execute and complete the works survives; and

(ii) the obligation of the Employer to pay for those works as expressed in
Article 4 of the Contract Agreement or as stated in the Letter of Acceptance or by
implication will also survive. The Employer may, however, have no obligation to
make any payment until the works are complete.

(4) In the event of any delay which is not the responsibility of the Contractor,
time would be at large because of the absence of the Engineer to grant
extensions of time. If all the delay was the Contractor's responsibility, it may be
arguable that clause 47 (Liquidated damages for delay) would continue to
operate as it is not dependent upon the existence of the Engineer, who is not
mentioned in the clause. However, substantial completion is certified by the
Engineer. The Contractor could be liable for breach of an obligation to complete
within a reasonable time, once time was set at large.

Thus it is just conceivable that a project could limp onwards without an Engineer.
Plainly, it is most unsatisfactory and an Employer might be well advised, having
exhausted attempts to agree a new Engineer simply to appoint one and

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thereafter argue, when the Contractor accepts interim payment as certified by the
Engineer, that the Contractor has effectively consented to the new Engineer.

For a discussion on when the Engineer's role comes to an end and he is functus
officio, see under clause 2.1 (Engineer's duties and authority). See also the
comments under clause 67.1 (Engineer's decision).

(a)(v) "Engineer's Representative" - The Engineer's Representative is referred to

in only three other clauses: clause 2 (Engineer and Engineer's Representative)
which deals with the delegation of powers by the Engineer to his Representative;
clause 13.1 (Work to be in accordance with contract) whereby the Contractor is
obliged to take instructions from the Engineer's Representative and clause 15.1
(Contractor's superintendence) on the same subject. In view of the delegation
provision, express mention of the Engineer's Representative is unnecessary.

(b)(i) "Contract" - There is no significance in the order of contract documents

given here. See clause 5.2 (Priority of contract documents). The reference in
earlier editions to a "Schedule of Rates and Prices, if any" has not been repeated
in this edition. It should be noted that the term "Contract" includes the Drawings
and it is therefore arguable that the term includes future drawings. In order to
make sense of expressions such as "increase or decrease the quantity of any
work included in the Contract" in clause 51.1 (Variations), it is necessary to apply
the exception in the opening words of the current sub-clause: "except where the
context otherwise requires".

(b)(ii) "Specification" - As the specification includes any variations and as the

specification is part of the contract, the contract is itself variable. Thus, strictly
speaking, the expression "increase or decrease the quantity of any work included
in the Contract" in clause 51.1 (Variations) is somewhat circular. Equally, the
definition of Works is defined by reference to the contract and thus incorporates
variability. It must be doubted that this point is ultimately of great significance.

(b)(iii) "Drawings" - The term is very widely defined. The inclusion of samples,
patents and models is perhaps surprising and produces curious results if taken
literally. For example, under clause 6.1 (Custody and supply of drawings and
documents), the Contractor is to provide for copies. This is one of the occasions
when the opening words of this sub-clause, "except where the context otherwise
requires", will be most relevant. It is also important to appreciate that this
definition is not limited to drawings etc in existence at the time time the Contract
is entered into but refers to all future drawings.

(b)(iv) "Bill of Quantities" - Surprisingly, the only other reference to the prices in
the Bill of Quantities is in clause 12.1 (Sufficiency of Tender): there is no express
indication at all that the prices are to be used for valuation other than in relation
to variations. See in particular clause 55 (Quantities) and clause 56 (Works to be
measured). The 4th Edition no longer contains a reference to the Schedule of
Rates.

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(b)(v) "Tender" - It is important to note that the Tender is a document "as
accepted by the Letter of Acceptance". Thus, it is not necessarily the tender as
submitted by the Contractor but the result of any negotiation prior to the placing
of the order. Any programme included in the tender will become part of the
contract as the tender is a contract document: for diccussion of this see under
clause 14.1 (Programme to be submitted).

(b)(vi) "Letter of Acceptance" - There is no specified form for the Letter of

Acceptance and careful attention must be paid to its contents, particularly in view
of the priority given to the Letter of Acceptance by clause 5.2 (Priority of contract
documents). It is second only to the Contract Agreement which is an optional
document. It is important to ensure that the Letter of Acceptance matches the
tender or, if there have been subsequent negotiations, an amended version of
that tender. Otherwise, the Letter of Acceptance would be no more than a
counter-offer which would require a further acceptance from the Contractor
before a contract was formed. As "the Tender" is a contract document, conflict
would result if the tender was not amended. It is also important to ensure that, if
a Contract Agreement is used, the Letter of Acceptance and Contract Agreement
also match. There are no terms in the contract which govern the Letter of
Acceptance but it is used extensively as a trigger for periods of time by which
certain activities have to be performed. These are as follows:-

Clause 10.1 (Performance security) - 28 days

Clause 14.1 (Programme to be submitted) - period prescribed in Part II
Clause 14.3 (Cashflow estimate to be submitted) - period prescibed in Part II
Clause 41.1 (Commencement of Works) - period stated in the Appendix to
Tender
Clause 57.2 (Breakdown of lump sum item) - 28 days

The importance of the Letter of Acceptance as a starting point in the conditions of

contract reinforces the importance of ensuring that the Letter of Acceptance is an
acceptance and not a counter-offer. It would make a nonsense of the various
time periods if they were running before a contract had been entered into.

(b)(vii) "Contract Agreement" - A form of Agreement is provided and referred to at

clause 9.1 (Contract Agreement). Both the definition of Contract at clause
1.1(b)(i) and clause 5.2 (Priority of contract documents) allow for further
documents to be incorporated as contract documents. The Contract Agreement
should be amended to record such further documents.

(b)(viii) "Appendix to Tender" - As commented under the definition of

Tender above, there may be negotiations which alter the contents of the Tender
and the Appendix to Tender before the contract is entered into. This definition
therefore refers to the Appendix as amended.

(c)(i) "Commencement Date" - This definition determines the date upon which
time begins to run on the project. The notice to commence is not in a specified
form. See generally the commentary to clause 41 (Commencement of Works).

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(c)(ii) "Time for Completion" - This is the contractual completion date as set out
in the contract subject to any extensions under clause 44. Substantial completion
must be achieved under clause 48.1 (Taking-over certificate) by this date, failing
which liquidated damages will be payable under clause 47.1 (Liquidated
damages for delay).

(d)(i) "Tests on Completion" - These tests will often include commissioning and
are referred to in clause 48 (Taking-Over) as being a prerequisite to substantial
completion and the issue of a Taking-over certificate for the whole or any part of
the works for which such a test is prescribed.

(d)(ii) "Taking-Over Certificate" - No form is prescribed for this certificate: clause

48.1 (Taking-Over Certificate) only specifies that it should state the date on
which, in the Engineer's opinion, the works were substantially completed.

(e)(i) "Contract Price" - It is important to appreciate that the Contract Price is a

fixed sum as stated in the Letter of Acceptance and the term does not include
any adjustments to the contract price for variations etc. For more on this point,
see the commentary under clause 69.4 (Contractor's entitlement to suspend
work).

(e)(ii) "Retention Money" - For commentary on the uncertainty of the retention

provisions, see under clause 60.3 (Payment of Retention money).

(f)(i) "Works" - This term is given an adjusted meaning under clause 49.1
(Defects Liability Period). The definition of Temporary Works is not without
difficulty as set out under (f)(iii) below. As there are dangers in including
Temporary Works in the definition of Works, the draftsman has taken the
precaution of putting flexibility ahead of certainty with the words "or either of them
as appropriate". This reinforces the opening words of the sub-clause "except
where the context otherwise requires".

(f)(ii) "Permanent Works" - This definition now includes express reference to

Plant, a recognition of the growing amount of machinery etc. included in civil
engineering projects.

(f)(iii) "Temporary Works" - This definition is circular with the definition of

Contractor's Equipment. As noted in the commentary to clause 41
(Commencement of Works), this is unfortunate as the failure to commence the
Works is a ground for determination under clause 63.1 (Default of Contractor).
See clause 31.2 (Facilities for other contractors) for the obligation to make the
temporary works available to other contractors and clause 32.1 (Contractor to
keep site clear) and 33.1 (Clearance of site on completion) for the obligation to
remove temporary work. It should be borne in mind that temporary works are not
always removed, for example temporary linings to tunnels or temporary roads.
By clause 54 (Contractor's Equipment, Temporary Works and materials) there is

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an obligation upon the Contractor to provide temporary works exclusively for the
project.

(f)(iv) "Plant" - This is a new definition not found in the 3rd Edition or ICE 5th or
6th. It might be confusing as plant is normally regarded as meaning Contractor's
machinery. Instead, this means the plant to be installed as part of the permanent
works. The Contractor's machinery is now defined as Contractor's Equipment.

(f)(v) "Contractor's Equipment" - In the 3rd Edition and ICE 5th, the Contractor's
machinery is called "Constructional Plant". The current definition is circular with
the definition of Temporary Works. As noted in the commentary to clause 41
(Commencement of Works), this is unfortunate as the failure to commence the
Works is a ground for determination under clause 63.1 (Default of Contractor).
ICE 6th has adopted the term Contractor's Equipment.

(f)(vi) "Section" - The Works may be broken down into Sections and parts. The
difference is that a Section is specifically identified in the contract whereas a part,
which is not defined, seems to be any other sub-division including a sub-division
of a Section. See this distinction in operation in clause 47.2 (Reduction of
liquidated damages), clause 48.2 (Taking over of sections or parts) and clause
48.3 (Substantial completion of parts).

(f)(vii) "Site" - This definition is a variant upon the form used in the 3rd Edition
and ICE 5th. This definition falls into two parts:-

(a) Places provided by the Employer where the Works are to be executed;
and

(b) Other places which are specifically designated in the contract as forming
part of the site.

Compare 3rd Edition and ICE 5th which break down as follows:-

(a) places on, under in or through which works are to be executed; and

(b) places provided by the Employer or specifically designated in the contract

as forming part of the site.

The essential difference is that (a) is qualified by the words "provided by the
Employer" in this Edition but (b) contains those words in the 3rd Edition and ICE
5th. One significance of this is that the Employer cannot be in breach of clause
42.1 (Possession of site and access thereto) by failing to give possession of the
site if the site is itself defined as places provided by the Employer. As the Site
will normally be defined in the contract, this should not normally give rise to
problems. Nor, it is submitted, should the omission of the words "on, under, in or
through" create difficulties. If the failure to give possession is the failure of the
Employer to organise the removal, for example, of an underground pipe or cable
conduit, even though the possession of the surface has been given to the

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Contractor, the Contractor's claim under clause 42.2 (Failure to give possession)
should not be hampered by the absence of these words. See also the
commentary under clause 42.1 (Possession of Site and access thereto). See the
comments under clause 42.1 for further discussion of the term "Site". ICE 6th has
added the "other places...designated" formula to the ICE 5th definition.

(g)(i) "cost" - This definition for the first time expressly excludes profit. Thus,
the only occasion on which the Contractor is allowed his profit by the contract is
under clause 69.3 (Payment on termination) where, upon the default of the
Employer, he is entitled to claim "the amount of any loss or damage". This
definition has been adopted with minor amendments by ICE 6th. However ICE
6th expressly permits profit on three occasions in the contract in relation to any
additional temporary or permanent works.

(g)(ii) "day" - This edition has adopted a policy of giving periods of time in
multiples of seven days whereas the 3rd Edition used units of 30 days for longer
periods. Compare, for example, clause 67 (Settlement of disputes) in the two
editions.

(g)(iii) "foreign currency" - It is important to note that foreign currency does not
mean a currency other than the currency in which the Contract Price is
expressed but any other currency than the local currency. Thus, the Contract
Price could itself be expressed in a foreign currency. Part II provides various
amendments to clause 60 and clause 72.2 in relation to currencies.

(g)(iv) "writing" - This definition is of particular relevance to clause 1.5 (Notices,

consents etc) which must be in writing.

CLAUSE 1.1 (Definitions)

The following definitions are new to the 1992 re-print:-

(e)(iii) "Interim Payment Certificate" means any certificate of payment issued by

the Engineer other than the Final Payment Certificate.

(iv) "Final Payment Certificate" means the certificate of payment issued by the
Engineer pursuant to Sub-Clause 60.8.

Whilst it is no doubt a good idea to have defined terms for interim and final
certificates, the definition of Interim Payment Certificate raises the question as to
which clauses other than clause 60.2 (Monthly payments) will give rise to interim
payment certificates. The definition could and, it is submitted, should simply
have referred to certificates issued under sub-clause 60.2.

Other certificates to be issued by the Engineer include the Taking-Over

Certificate under clause 48 for the whole or part of the works, a certificate of the
Contractor's default under clause 63.1 (Default of Contractor) and the Defects
Liability Certificate under clause 62.1. These all lead to payments being made

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but are not the certificates for payment themselves. Under clause 59.5
(Certification of payments to nominated Subcontractors), the Engineer certifies
payment to nominated subcontractors where the Contractor fails to supply proof
that previous sums certified in relation to nominated subcontractors' work have
been passed on. Such certificates fall within the definition of Interim Payment
Certificates. The certificate under 63.2 (Valuation at date of termination) is a
certificate of value only and not a certificate for payment. In contrast, the
certificate under sub-clause 63.3 (Payment after termination) is a certificate of
payment and falls within the definition of Interim Payment Certificate despite
being final in nature. Curiously, a certificate under Sub-Clause 63.3 could show
a balance in favour of the Employer. However, such a certificate is deemed to be
a debt and is not strictly therefore a certificate for payment.

Within clause 60 (Certificates and payment) there are certificates under sub-
clause 60.3 (Payment of retention money), sub-clause 60.5 (Statement at
completion) and under sub-clause 60.6 (Final statement) where part only of the
Contractor's draft final statement is not in dispute.

Clause 60.3(a) has always raised the question whether the release of the first
half of the Retention Money following the issue of the taking-over certificate
should be the subject of a special payment certificate or included in the next
monthly interim certificate. Practice varies but more often than not, the first
moiety of retention is released in the next interim certificate. The fact that the
certification falls within the definition of Interim Payment Certificate, does not
resolve the issue.

In one respect, Contractors are ill-served by this amendment. Where the

practice would otherwise have been to issue a special certificate for the release
of retention, the Contractor was able to argue that he was entitled to immediate
payment by the Employer. Now, such a certificate is an Interim Payment
Certificate and the Employer is given 28 days under Clause 60.10 (Time for
payment).

The entry in the Appendix for the "minimum amount of interim payment
certificates" applies only to clause 60.2 and does not therefore restrict small
payments under other payment clauses despite the application of the definition.

As is plain from the list of the amendments contained in the 1992 re-print, and
the extracts set out later in this supplement, the definition has not been used
wherever it is applicable. The term is now used in sub-clauses 60.2, 60.4
(Correction of certificates) and 60.10 (Time for payment).

Perhaps surprisingly, the result is that three interim payment certificates could be
issued in the same month under clauses 60.2, 60.3 (Payment of Retention
Money) and 59.5 (Certification of payments to nominated Subcontractors).

Under clause 69.1 (Default of Employer), interference with the issuing of certain
certificates is a ground for the Contractor to terminate his employment. The

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relevant certificates are those for which time-limits for payment are given under
clause 60.10 (Time for payment). The effect of the definition of Interim Payment
Certificate and the application of that definition to a number of certificates other
than monthly certificates under clause 60.2 (Monthly payments) has been the
extention of the scope of the interference ground for termination. For example,
interference with a certificate under clause 59.5 (Certification of payment to
nominated Subcontractors) would not have been a ground for determination
hitherto. Whilst interference with any form of certification is plainly contrary to the
spirit of the contract, it is unlikely that the draftsman intended to enlarge the
ground for termination to such an extent.

1.2: This rule of interpretation will on occasion be signficant. For example,

clause 12.2 is entitled "Adverse physical obstructions or conditions" but the word
"adverse" does not feature in the clause. Similarly, the titles of clause 63
(Default of Contractor) and clause 69 (Default of Employer) both include the word
"default" which is not found in either clause. This may be just as well given the
fact that "default" is used as an alternative to breach of contract in clause 40.1
(Suspension of work), clause 44.1 (Extension of time for completion) and clause
51.1 (Variations). It is always questionable whether any tribunal is capable of
entirely ignoring such clear evidence of the intentions of the draftsman.

1.3: Clause 1.1(a)(iv) defines the Engineer as "the person appointed...". This
sub-clause is a reminder in relation to the Engineer that the Employer may name
a firm of Engineers as distinct from an individual. In view of the lack of any
provision for the replacement of an Engineer who dies or retires, this course may
be adopted more often.

1.4: This is a standard clause and was contained in the 3rd Edition and ICE
5th.

1.5: This clause is new and puts beyond doubt what may have been implicit
from clause 68 (Notices) that notices, consents etc must be in writing. Writing is
also required by the following clauses:-

clause 2.3 Engineer's delegation to Engineer's Representative

clause 2.5 Engineer's instructions

clause 6.1 Engineer's requests for further drawings

clause 6.2 Authorisation of persons to inspect drawings

clause 14.1 Contractor's general description of methods etc

clause 17.1 Setting out

clause 31.2 Engineer's request for facilities for other Contractors.

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clause 48.1 Undertaking to finish outstanding work

clause 54.5 Requests regarding hire of Contractor's Equipment

clause 56.1 Request for Contractor to attend

clause 59.5 Contractor's statement of cause for withholding payment from

nominated Subcontractor and notification by Contractor to nominated
Subcontractor.

clause 60.7 Contractor's discharge.

clause 63.1 Warning to Contractor.

clause 67.1 Reference of dispute to Engineer.

There are additional references to written instructions but clause 2.5 (Instructions
in writing) makes this plain.

A comparison of this clause with clause 2.6 (Engineer to act impartially), clause
67.1 (Engineer's decision), clause 67.3 (Arbitration) and clause 68 (Notices)
reveals an inconsistency in the use of terms such as notices, consents etc.
Table 6 indicates the clauses in which the various terms appear.

"Any such consent, approval, certificate or determination shall not unreasonably

be withheld or delayed." Notices are excluded from this list. Notices are given
under some 37 clauses by the Employer, the Engineer and the Contractor. Most
commonly, it is the Engineer notifying the Contractor of a determination of costs
and/or extension of time. A determination is covered by this clause and thus may
not unreasonably be withheld or delayed. Neither the notices nor the
determinations are directly covered by clause 2.6 (Engineer to act impartially) but
they are plainly actions affecting the rights of the parties and are thus covered by
clause 2.6(d). Notices by the Contractor or the Employer are normally given in
their own best interest, and if no time frame is specified, none is normally
necessary. As this part of the clause refers as much to the Employer and the
Contractor as to the Engineer, it is significant in relation to clauses such as
clause 10.1 (Performance security) as the right of the Employer to withhold his
approval is subject to the test of reasonableness.

Under clause 3.1 (Assignment of contract), the Employer is given an absolute

discretion to withhold his consent "notwithstanding the provisions of sub-clause
1.5".

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CLAUSE 2 : Obligations of the Engineer

This clause sets out the powers and obligations of the Engineer and his team.
The Engineer will carry out his duties and exercise the authority given to him by
the contract but is to obtain the prior approval of the Employer before exercising
his authority in relation to the list of items in Part II. The Contractor does not
have to check that the necessary approval has been given. The Engineer has no
general authority to relieve the Contractor of any of his obligations.

The Engineer may appoint and delegate duties and/or authority to the Engineer's
Representative.

Delegation to the Engineer's Representative must be in writing and must be

copied to the Employer and the Contractor before it takes effect. Instructions, etc
given by the Engineer's Representative after powers have been delegated will
have the same effect as if given by the Engineer. However, the Engineer may
reject work despite the failure of the Engineer's Representative to do so. The
Contractor may query any action of the Engineer's Representative with the
Engineer who may vary or overrule it.

The Engineer and his representative may appoint assistants and inform the
Contractor of their duties and authorities. The assistants may only give
instructions necessarily within the scope of their duties and to record their
acceptance of work, material etc. Such instructions are treated as having been
given by the Engineer's Representative.

Instructions must be in writing unless the Engineer finds it necessary to give an

instruction orally. Such an oral instruction will only be treated as an instruction if
either the Engineer confirms it in writing or the Contractor confirms it in writing
within 7 days and the Engineer does not object within a further 7 days.

The Engineer must act impartially in exercising his discretion. His decisions may
be reviewed by an arbitrator.

This clause has been substantially re-cast and reorganised. Sub-clauses 2.4 and
2.6 are wholly new to the 4th Edition.

2.1: It is a novel feature of the 4th Edition that the Employer is unable to
replace the Engineer should he die or for any other reason cease to carry out his
duties. For a discussion of this, see the commentary to clause 1.1(a)(iv).

(a) As the Engineer is not a party to the contract, this clause must impose
upon the Employer an obligation to ensure that the Engineer duly performs.
Under English law, this duty is taken to be to ensure that the Engineer certifies
where the contract requires a certificate or makes decisions where the contract
gives the Engineer a choice whether to act or not. The Employer is not held
responsible for the contents of the decision i.e. he has no obligation to ensure

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