3.2 ‘DETERMINATIONS’ IN THE YELLOW AND SILVER BOOKS IN THE YELLOW BO...
In the Yellow Book, the Engineer makes his determinations pursuant to
clauses in the contract that provide for the Engineer to ‘
agree or determine any
matter ’. Before he does so, the Engineer is to consult the parties (Employer and
Contractor) to try if possible to reach agreement; it is only where agreement
cannot be reached that he is to make his decision, a decision which (as we saw
above) must be:
●
fair;
●
in accordance with the terms of the contract; and
●
have due regard to all relevant circumstances.
Once he makes his determination, the Engineer is to give notice to the
interested parties with supporting details.
The position here is much the same in the Silver Book, clause 3.5, except
that the Employer himself makes the decision. Although in many cases he will
in a sense judge his own cause, he is still meant to make decisions fairly, in
accordance with the contract and taking into account all relevant circum-
stances.
One significant difference, however, as we have noted already, is that
whereas in the Yellow (and Red) Book the parties are to give effect to the
determination unless and until it is revised by a DAB, under clause 3.5 of
the Silver Book the Contractor can hold off from giving immediate effect to
the Employer ’ s determination by giving notice of his dissatisfaction with it
14 days after receiving it; in which case the matter is referred to a DAB. This
difference is probably attributable to the fact that in the Silver Book there is no
non-party decision-maker such as the Engineer.