Under a new GC 3.1, if the engineer is a legal entity, it is required to appoint a “natural person” to act on its behalf who must have suitable qualifications, the experience and competence to act under the contract and “… be fluent in the ruling language …”.
A new GC 3.2 boldly provides that there is no requirement for the engineer to obtain the employer’s consent before exercising his authority under GC 3.7 (as to which, see below) and, additionally, that the employer “shall not impose further constraints on the Engineer’s authority”. In addition, whereas YB99 made provision for delegation by the engineer, YB17 now goes further with a new definition – the “Engineer’s Representative”.
GC 3.5 contains an interesting new provision concerning any instruction issued by the engineer which does not state that it is variation: if the contractor considers the instruction to be a new variation or part of an existing variation or that it will reduce safety of the works or does not comply with applicable laws or is “technically impossible”, the contractor is required to give immediate notice. If the engineer does not respond within 7 days, his original instruction is deemed to have been revoked.
YB99 GC 3.5 has been wholly rebuilt as a three-page GC 3.7 under the heading Agreement or Determination. The first paragraph states that the engineer is “to act neutrally” between the parties (but there is no definition of “neutrally”) and “shall not be deemed to act for the Employer”. In order to encourage dialogue between the parties and reach an agreement, the engineer is required to consult with both parties “jointly and/or separately”.
As before, the engineer is then required to make a “fair determination, in accordance with the Contract, taking due regard of all relevant circumstances”. The engineer is now given a time limit within which to issue his notices (of agreement / determination), namely 42 days (or other time period put forward by him and agreed to by both parties). Agreements reached and determinations made are binding unless and until revised by the DAAB or in arbitration.
The new GC 3.7 also makes provision for either party to give the other a “Notice of Dissatisfaction” with reasons as to why it is not happy with any part of the engineer’s determination which is the pre-cursor to proceeding to the DAAB.
Many of the new and amended provisions have been introduced to emphasise the independence of the engineer and to detail procedures and powers.