FIDIC glossary · Procedures
Determination
Determination
In short
The Engineer’s decision to agree or determine a matter where the parties have not agreed (Sub-Clause 3.7).
What is a Determination?
A determination is the Engineer's decision under Sub-Clause 3.7 on a matter the parties could not agree. It is the central joint in the FIDIC machine, and it is the one that seizes up most often in practice.
The procedure has two stages. First the Engineer must consult and try to bring the parties to agreement — not an optional courtesy but a duty. If agreement is not reached in time, the Engineer makes a determination: fair, reasoned, and supported by detailed particulars.
The 2017 editions expressly require the Engineer to act neutrally when determining. That is worth stressing: the Engineer is appointed and paid by the Employer, but in this particular function it does not represent the Employer's interests. Conflating the two roles is the source of most disputes about determinations themselves.
There is a deadline, usually 42 days. The Engineer's silence is not neutral — if no determination is made in time, it is deemed a rejection of the claim, which opens the route to the DAAB.
The practical point for a contractor: a determination is a step, not a verdict. Disagreement must be recorded by a Notice of Dissatisfaction in time, or the determination becomes final and binding.
Where it sits in the contract
Related terms
Need this read against your own contract?
This explains how the mechanism works in the standard form. How it works in your contract, after the Particular Conditions, is a separate question.
Talk to an expert →A reference explanation of the FIDIC standard conditions. Not legal advice, and not a reproduction of the FIDIC books.