"EtC is a dark art, not a science." – John Kerr, Octa

What does it take to become an Engineer to Contract*?

In legal terms, not a lot. NZS 3910:2013, the current standard contract between a principal and contractor for building and civil engineering construction defines the “Engineer” appointed to the project under the contract as “one natural person… not a body corporate or a firm”.

The soon-to-be-published revision of the standard, NZ3910:2023, renames the position as “Independent Certifier” (with some changed roles and responsibilities) and interprets the role as: “The one natural person not being a body corporate or firm identified in the Specific Conditions or such other one natural person as may be subsequently appointed by the Principal under 6.1 to act as Independent Certifier”.

You have to be a real person to fulfil this vital role. It helps to be a particular type of person (we’ll get to that), but as far as qualifications go, the only one you must have… is a pulse.

The members of the Engineering New Zealand EtC Panel know that doing the job properly requires a lot more than that.

But that isn’t necessarily a widespread view. One of our Panel members tells a story about when they originally expressed interest in working as an EtC. The senior staff member assigned to do training was asked about his qualification for the role, and replied that he'd read the document (NZS3910), so what else was there to know about being Engineer to Contract?

That’s not a satisfactory viewpoint. Yet without any formal qualification required for the position (or that of the Engineer’s Representative – soon to be Contract Administrator under the revised NZS3910), it’s understandable that such attitudes persist.

Despite current terminology, the contract administration practitioners that work in these roles are not always engineers but come to the positions from a wide range of backgrounds: quantity surveyors, project managers, builders, principals, contractors, consultants, designers – often with a mixture of experience across a range of occupations.

Technical skills are important for the role. So is worked experience. But even more important are the interpersonal skills required to best function as an EtC.

Interpersonal Skills

Some of these skills can be learned, but more are innate. These include but are not limited to:

  • Great communication: listening and responsiveness.
  • Calmness and a cool head, with grace under pressure.
  • Impartiality and the ability to act independently.
  • Fair but firm decision making.
  • Negotiation and mediation skills.
  • Proactivity and a commitment to problem solving.

Worked Experience

A traditional pathway into the EtC role is that of the Engineer’s Representative or ER (to be renamed Contract Administrator with expanded role responsibilities under NZS3910:2023).

Historically, before practitioners start work as an ER they will have gained experience in the field with construction sector experience. This can be as an engineer, quantity surveyor, project manager builder, procurer, contractor, consultant (or a combination of those roles) over a period of five to ten years.

Ideally, the ER will have worked closely with experienced EtCs, being assigned a range of delegated tasks, working in different environments, experiencing difficult people and unexpected and challenging situations; learning the ropes and learning not to get snagged in them.

There is no substitute for on-the job, in-the-field learning, dealing with conflict situations, and the inevitably humbling yet rewarding experiences that come from this. Working under a mentor or as part of a self-supporting group is desirable, if not essential.

Knowledge of Contract Law

The EtC must have a thorough knowledge of both NZS3910:2013 and its more recently revised version, NZS3910:2023.

The key sections of 3910 that EtCs must be intimately familiar with are Section 9 (Variations), Section 10 (Time for Completion) and Section 12 (Payments), but a personally annotated standard should be an essential part of their toolkit.

Knowledge of and experience with common and recurring special conditions likely to be appended to 3910 contracts is also vital.

Knowledge of the Constructions Contract Act (including the October 2023 amendment) is vital, as is that of the Health and Safety at Work Act.

In-house and external training

A practising EtC should be able to access training relevant to the EtC role from their organisation on a regular basis (in one-on-one sessions, group sessions, Learning Lunches. and the like).

Similarly, external training should be provided as CPD, utilising courses provided by Engineering New Zealand, Āpōpō, the University of Auckland, AUT, Concordia Resolution and others.

EtC Panel Recommendation

Until a formal qualification or accreditation process is established, the EtC Panel recommends that any person intending to become an Engineer to Contract or Independent Certifier should have:

  • a commitment to impartiality, integrity, proactivity, and firm but fair decision-making
  • a commitment to ensuring thorough documentation by all parties to a contract
  • a commitment to ensuring proper commitment to process by all parties to a contract
  • at least ten years’ construction industry experience as an engineer, quantity surveyor, project manager or similar role
  • at least five years’ field experience as an ER or CA, or extensive senior practitioner experience in a senior role
  • a thorough knowledge of NZS3910:2013, particularly of Sections 9, 10 and 12
  • a thorough knowledge of NZS3910:2023, including the ways in which this differs from NZS3910:2013
  • a thorough knowledge of the main special conditions likely to occur in a contract (including concurrent delay, time bars, caps on liquidated damages, issues around subcontractors)
  • a thorough knowledge of the Constructions Contract Act (including the October 2023 amendment)
  • demonstratable soft skills (leadership, communication, listening, responsiveness, decision-making, negotiation, mediation)
  • experience with disputes and litigation
  • membership of a professional organisation (Engineering New Zealand, IQS, PMINZ, ACE etc)
  • membership of the Society of Construction Law
  • completion of the two Engineering New Zealand learning modules on NZS39109:2013 and NZS39109:2023 (available February 2024)
  • completion of a relevant tertiary course (Āpōpō, AUT, University of Auckland etc) within the last three years
  • access to regular training and knowledge-raising sessions with their organisation
  • an interest in collaborating with their peers for mutual raising of expertise

*This article is written while NZS3910:2013 is the standard form of contact and uses the term “EtC”. The revised standard, NZS3910:2023, will not immediately supersede the current contract, but run parallel to it until all principals adopt the new contract.