Page 66 - Civil Engineering Project Management, Fourth Edition

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Preparing contract documents
5.2 Roles of the key participants in a
construction contract
Aconstruction contract is made between two parties only – ‘the Employer’ and
‘the Contractor’. Their roles are defined in the contract. However, because
there is a need for day-to-day supervision of civil engineering construction, the
two parties may agree that a third person should carry out such duties. This
third person can have varying powers under the contract and this is reflected
in his designation. He can be designated ‘the Engineer’ under the contract; or he
may be designated ‘the Project Manager’ or ‘Employer’s Representative’ in both
cases occupying a distinctly different position from ‘the Engineer’. The roles
of these participants are described briefly below; the use of a capital letter in
their designation being discontinued except where necessary for clarity.
The employer, referred to as ‘the purchaser’ in some conditions of contract,
initiates the process of acquiring the works. He sets down what he requires
and specifies this in the tender documents, which he issues to firms of con-
tractors to seek their offers to carry out the works. His obligations include
ensuring that the works are legally acceptable and practical, and that the site
for them is freely available. He may also need to arrange that associated
needs, such as the supply of power, drainage and the like which he is providing,
are available. Having set up these basic elements he must, above all, ensure that
he can meet his obligation to pay the contractor in accordance with the con-
tract. If any dispute remains unresolved under the contract, the employer
must decide what action to take; either to negotiate some settlement or, per-
haps, take the dispute to adjudication, arbitration or the courts.
The contractor takes on the obligation to construct the works. In his offer to
the employer he puts himself forward as being able to build the works to the
requirements set out in the tender documents. In order to do this he will have
studied the documents and any geotechnical or other information provided or
otherwise available, visited the site and checked the availability of such labour,
plant and materials as may be needed. Once his offer is accepted and the contract
is formed the contractor takes on the obligation of doing all and anything needed
to complete the works in accordance with the contract, regardless of difficulties
he may encounter. He is responsible for all work done by his sub-contractors and
suppliers, and any design work the contract requires him to undertake.
The engineer designated in the traditional form of contract under the ICE
or FIDIC conditions described in Sections 4.2(a) and 4.3, has a role independent
of the employer and the contractor. He is not a party to the contract; but he is
named in it with duties determined by the parties. Although he is appointed
(and paid) by the employer, he has to supervise the construction of the works
as an independent person, making sure they accord with the specified require-
ments. He also acts as an independent valuer of what should be paid to
the contractor, and as a decider of issues arising in the course of construction.
The engineer will normally be an experienced and qualified professional whose
knowledge and standing should be sufficient to assure both employer and