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3.3.4 Effect of Agreement or Determination
Clause 3.7.4 of the 2017 contracts provides that an agreement or determination is to be binding on both parties, and complied with by the Engineer, unless and until corrected or revised. As pointed out earlier, the parties are also bound by a determination until it is revised in the 1999 editions of the Red and Yellow Books, although not in the 1999 Silver Book, where the Contractor could avoid having to comply with a determination by notifying his dissatisfaction with it within 14 days. This difference may have been attributable to the fact that, in the 1999 edition of the Silver Book, the Employer is able to administer the Contract himself; in any event, the 2017 editions (in which the Employer is never able to administer the Contract himself) have adopted the Red and Yellow Book position.
The 2017 contracts contain a detailed procedure for correcting an agreement or determination for typographical, clerical or arithmetical errors. Clause 3.7.4 enables such errors to be corrected within 14 days after the giving or receiving of the Engineer's notice of agreement or determination. If the Engineer finds the error, he is immediately to advise the parties accordingly; if a party finds it he must give a notice to the Engineer stating that it is given under clause 3.7.4 and clearly identifying the error.13 If the Engineer then does not agree that there was an error he is immediately to advise the parties accordingly.
Within seven days of his finding the error, or receiving a notice from a party notifying an error, the Engineer must give a notice to both parties of the corrected agreement or determination. Thereafter, the corrected agreement or determination is to be treated as the agreement or determination for purposes of the Contract conditions.
Although clause 3.7.4 thus refers to the Engineer's notifying the parties of the ‘corrected agreement or determination’ if, on receiving a notice of an error from one or other of the parties, the Engineer decides that there was no error then, as long as he advises the parties accordingly, he is free to decide that the agreement or determination does not require any correcting. Clause 3.7.4 does not deal explicitly with the notifying party's recourse in this situation, but he may be able, if he considers that the Engineer ought to have corrected the agreement or determination, to claim declaratory or other relief under clause 20.1(c) and/or if appropriate money and/or time under clause 20.1(a) and/or (b).
Note that if an agreement or determination concerns the payment of an amount from one party to the other then the Contractor is to include that amount in his next payment statement and the Engineer is to include the relevant amount in the next payment certificate (Red and Yellow Books)/the Employer is to include the relevant amount in his next payment (Silver Book).
3.3.5 Dissatisfaction with Engineer's Determination
Clause 3.7.5 deals with the procedure where a party is dissatisfied with the determination of the Engineer. In that event, the dissatisfied party may give a notice of dissatisfaction (NOD) to the other party, with a copy to the Engineer. This NOD must state that it is a notice of dissatisfaction with the Engineer's determination in so many words, and set out the reason(s) for the dissatisfaction. The NOD must be given within 28 days after receiving the Engineer's notice of the determination or, if applicable, his notice of the corrected determination under clause 3.7.4 (or, in the case of a deemed determination rejecting a claim, within 28 days after the time limit for determination under clause 3.7.3 has expired); thereafter, either party may proceed to obtain a DAAB's decision under clause 21.4.
If no NOD is given by either party within the above period of 28 days the determination is deemed to have been accepted by both parties and is expressed to become final and binding on them. This is a contractual time bar, therefore, which can render an Engineer's determination final and binding. Unlike a failure to comply, in the case of a money or time claim, with the initial 28‐day notice requirement under clause 20.2 (where in certain circumstances the defaulting party may, in effect, seek an extension of time14 ), the party who fails to give a NOD to a determination in time has no recourse.15
Note that if the dissatisfied party is dissatisfied with only part(s) of the Engineer's determination the NOD must clearly identify it/them and the relevant part or parts are to be treated as severable from the remainder of the determination, this remainder then becoming final and binding on both parties as if the NOD had not been given.
The 2017 contracts enable an agreement achieved pursuant to clause 3.7 and an Engineer's determination which has become final and binding to be enforced by providing, in clause 3.7, that if a party fails to comply with such an agreement or with a final and binding determination then the other party may, without prejudice to any other rights he may have, refer the failure itself directly to arbitration under clause 21.6, thus making the agreement or determination enforceable to the same extent as a final and binding decision of the DAAB.16
3.4 Meetings
In keeping with the greater emphasis on proactive project management, clause 3.8 (2017 Red and Yellow Books)/3.6 (2017 Silver Book) contains a new right for either the Engineer/Employer or the Contractor's Representative to require the other to attend management meetings to discuss arrangements for future works and/or other matters in connection with the execution of the works. If either so requests, the Employer's other contractors, public authorities, or private utility companies and/or subcontractors may also attend such meetings. The Engineer or Employer is to keep a record of each management meeting and supply copies together with an action list.
Notes
1 1 Unless the Contract otherwise provides, in carrying out his duties or exercising authority in connection with the Contract the Engineer is to be deemed to act for the Employer: clause 3.2, first paragraph.
2 2 Unlike the 2017 Red and Yellow Books, the number of the clause dealing with determinations in the 2017 Silver Book, clause 3.5, remains the same as in the 1999 edition (rather than changing to clause 3.7).
3 3 A note on terminology: in the 2017 Silver Book ‘the Employer’ is normally used when a particular function or role is carried out in fact by the Employer's Representative, except in relation to those matters where the Employer's Representative is not to be taken to act on the Employer's behalf, such as in relation to an agreement or determination under clause 3.5, and this usage is followed below.
4 4 See Section 12.1.4 below.
5 5 See Section 15.2.
6 6 The same final say applies under clause 13.1 where the instruction is stated to be a variation and the Contractor objects, on one of the grounds allowed under that clause: see further Section 11.1.4 below.
7 7 See Section 3.3.3 below.
8 8
