Sub-clause 3.5 of FIDIC 2017 (Engineer's Instructions) and Sub-clause 3.3 of FIDIC 1999 (Instruction of the Engineer)

The position concerning the Engineer's Instruction (EI) underwent some changes from the 1999 edition to the 2017 edition of the FIDIC contract. In the 1999 edition, the default position was that an EI was not considered a Variation unless stated otherwise. The Contractor could rely on the Engineer's assessment and was obligated to comply with the instruction promptly. If the Contractor later discovered that the EI constituted a Variation, they were required to give a Notice of Claim.

In the 2017 edition, an additional obligation was placed on the Contractor. They were now required to assess whether the EI constituted a Variation. If it did, the Contractor had to give a Notice to the Engineer before commencing any work related to the EI. While there were no expressed sanctions for the Contractor's failure to give such a Notice, it could potentially create a hurdle for the Contractor's claim.

The modified position in the 2017 edition may have diluted the Engineer's responsibilities owed to both the Employer and the Contractor. It could also potentially encourage ill-practices, as some Engineers might give EIs without stating that they constitute Variations, despite knowing otherwise. Similarly, Contractors might give unwarranted Notices. These practices could negatively impact the project.

The benefits of the modified position for the Employer are questionable, and it seems to provide no clear benefit to the Contractor or the overall project. It is important to consider the potential implications and effects of these changes on the parties involved.

Sub-clause 3.5 of the FIDIC contract states that the Engineer may issue instructions to the Contractor that are necessary for the execution of the works. The Contractor is obligated to comply with these instructions, unless they constitute a Variation, do not comply with applicable laws, reduce the safety of the works, or are technically impossible. If the Contractor believes any of these conditions apply, they must give a Notice to the Engineer with reasons before commencing any work related to the instruction. If the Engineer does not respond within seven days, the instruction is deemed revoked, and otherwise, the Contractor is bound by the Engineer's response.

If an instruction given by the Engineer constitutes a Variation (a change to the scope or character of the Works), the procedures outlined in Clause 13 (Variations and Adjustments) of the FIDIC 1999 Red Book will apply.

Some differences between sub-clause 3.5 of FIDIC 2017 (Engineer's Instructions) and sub-clause 3.3 of FIDIC 1999 (Instruction of the Engineer) are as follows:

1. Scope of instructions: FIDIC 2017 (Sub-Clause 3.5) explicitly mentions that instructions may be necessary for the execution of the Works, while FIDIC 1999 (Sub-Clause 3.3) includes instructions necessary for the execution of the Works and the remedying of any defects.
2. Form of instructions: FIDIC 1999 specifically states that whenever practicable, instructions should be given in writing. FIDIC 2017 does not have the same explicit requirement, although it mentions that the Engineer's response to the Contractor's Notice should be in writing.
3. Timeframe for response: FIDIC 2017 (Sub-Clause 3.5) specifies that if the Engineer does not respond within 7 days after receiving the Contractor's Notice, the Engineer shall be deemed to have revoked the instruction. FIDIC 1999 does not have a similar timeframe mentioned.
4. Written confirmations: FIDIC 1999 introduces the concept of a written confirmation of an oral instruction, which, if received by the Engineer within two working days, constitutes the written instruction of the Engineer or delegated assistant.

Similarities between the two sub-clauses are as follows:

1. Authority to issue instructions: Both clauses grant the Engineer the authority to issue instructions to the Contractor.
2. Compliance with instructions: In both clauses, the Contractor is required to comply with the instructions given by the Engineer or delegated assistant on any matter related to the Contract.
3. Variation instructions: If an instruction constitutes a Variation, both clauses state that the provisions related to Variations (Clause 13 in FIDIC 1999 and Sub-Clause 13.3.1 in FIDIC 2017) shall apply.
4. Delegated authority: Both clauses mention the possibility of the Engineer delegating the authority to give instructions to an assistant.
5. Notice requirements: In both clauses, there are provisions for the Contractor to give a Notice to the Engineer in certain circumstances. This includes situations where the Contractor considers that the instruction constitutes a Variation, involves work that is already part of an existing Variation, does not comply with applicable laws, will reduce the safety of the Works, or is technically impossible. The Engineer's response to the Notice determines the Contractor's obligations.

In summary, while there are similarities between the two sub-clauses, there are some differences as well. The FIDIC 2017 edition explicitly addresses the situation where an instruction is deemed a Variation, while the FIDIC 1999 edition refers to Clause 13 for Variations. Additionally, the FIDIC 1999 edition includes a provision for confirming oral instructions in writing, which is not present in the FIDIC 2017 edition.