The Engineer's determination under Sub-Clause 3.7: a checklist

Consult first

Sub-Clause 3.7.1 asks the Engineer to consult the Parties, jointly and separately, and to encourage agreement. Keep a record of each meeting and of what each Party submitted. If there is no agreement within the time limit, the Engineer moves to a determination.

Determine fairly, with reasons

Sub-Clause 3.7.2 requires a fair determination in accordance with the Contract, taking due regard of all relevant circumstances, with reasons and supporting particulars. A figure without reasons invites a Notice of Dissatisfaction.

Keep the clock

Sub-Clause 3.7.3 gives 42 days to reach agreement and a further 42 days to give the determination. If the Engineer gives no notice within the time limit for a Claim, the Claim is deemed rejected, which moves the dispute forward rather than settling it.

Checklist before you sign

• Was the Notice of Claim given within 28 days (20.2.1)?
• Was the fully detailed claim received within 84 days, with its contractual basis (20.2.4)?
• Is the time assessed against the accepted programme, with concurrent delay considered?
• Is the cost assessed from records, not from claimed rates?
• Does every item have a reason the Parties can read and check?

After the determination

Clerical or arithmetical errors can be corrected on Notice within 14 days (3.7.4). Either Party may give a Notice of Dissatisfaction within 28 days (3.7.5); otherwise the determination becomes final and binding.

This note is general information, not legal advice for a specific contract.