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Superintendent
The role of a superintendent in a building contract is complex because in addition to being an agent of the principal, a superintendent has to take independent decisions to resolve issues in accordance with the contract. The reason why a superintendent must take independent decisions is so that costly legal disputes can be avoided, and this is in the long term interest of the principal, and all the other parties to a building contract.
Superintendence requires a sound understanding of the law of contract, building contracts, and construction skills. We have a great deal of superintendence experience with, and are experts in the use of AS 2124 and AS 4000, construction contracts.
The Role of a Superintendent
Introduction
The role of a superintendent is usually set out in most standard building contracts, generally the superintendent has the two distinct roles of acting -
A Superintendent, although not a party to a contract, is usually engaged to administer a contract. So the point of having a superintendent is so that the building works contract can be progressed by resolving potential disputes between the principal and the contractor.
In Australia, government policy often requires that the government uses an Australian Standards building contract, usually AS-2124 or AS-4000, for their own building projects.
To minimise disputes, the principal should ensure that the superintendent’s terms of engagement are consistent with the building contract. The terms of a superintendent’s appointment must allow the superintendent to fulfill the independent functions, free of interference, that are set out in the building contract.
Although the principal appoints the superintendent, the superintendent owes some duties to both the principal, and the contractor. There an obligation on the principal to not interfere with or direct the superintendent when acting in the role of certifier. And in certain circumstances, in government contracts, it can be an offense for the principal to interfere with the superintendent’s certificates.
It is also in the principal’s interest not to interfere in the superintendent’s role as agent for the principal. For example, the principal should not communicate directly with the contractor on subjects which are the responsibility of the superintendent. If the contractor receives conflicting instructions at this level the principal may be disadvantaged later.
Depending on the contract, the superintendent’s main obligations are usually to act fairly and honestly. Therefore the superintendent must be impartial when acting as an independent certifier. Also a superintendent has an obligation to act promptly or, where time is not specified in a contract, within a reasonable time. In addition, the superintendent has a duty of care under the contract to both parties, especially when issuing certificates.
Also, depending on the contract, the superintendent may issue directions to the contractor either in the role of certifier, or as agent for the principal.
The superintendent’s contractual obligations as certifier include issuing certificates, valuing variations, resolving disputes, and granting extensions of time.
The superintendent’s contractual obligations as agent for the principal may include the approval of sub-contractors, the control of employees on site, and to explain, or resolve, any contract document ambiguities, to authorise the examination and test of any work, to direct the replacement of any defective work, the postponement or suspension of any work, and the ordering of any variations.
Conclusion
Therefore from the above, it should be clear that the role of the superintendent is to help progress the work. And not only is there an obligation for the principal not to interfere with the superintendent, but that it is in the principal’s best interests not to do so. For example, if the contractor’s claim is not fairly assessed, then this could precipitate legal action, and this would not be to the principals advantage.
Note
This explanation is a brief summary of the role of a superintendent, and is not intended to articulate any specific contractual obligation, or advice.
If you have a project that you would like to discuss, please contact us.
The role of a superintendent in a building contract is complex because in addition to being an agent of the principal, a superintendent has to take independent decisions to resolve issues in accordance with the contract. The reason why a superintendent must take independent decisions is so that costly legal disputes can be avoided, and this is in the long term interest of the principal, and all the other parties to a building contract.
Superintendence requires a sound understanding of the law of contract, building contracts, and construction skills. We have a great deal of superintendence experience with, and are experts in the use of AS 2124 and AS 4000, construction contracts.
The Role of a Superintendent
Introduction
The role of a superintendent is usually set out in most standard building contracts, generally the superintendent has the two distinct roles of acting -
- as the principal’s agent, and
- as an independent certifier on time, quality, cost and variations.
A Superintendent, although not a party to a contract, is usually engaged to administer a contract. So the point of having a superintendent is so that the building works contract can be progressed by resolving potential disputes between the principal and the contractor.
In Australia, government policy often requires that the government uses an Australian Standards building contract, usually AS-2124 or AS-4000, for their own building projects.
To minimise disputes, the principal should ensure that the superintendent’s terms of engagement are consistent with the building contract. The terms of a superintendent’s appointment must allow the superintendent to fulfill the independent functions, free of interference, that are set out in the building contract.
Although the principal appoints the superintendent, the superintendent owes some duties to both the principal, and the contractor. There an obligation on the principal to not interfere with or direct the superintendent when acting in the role of certifier. And in certain circumstances, in government contracts, it can be an offense for the principal to interfere with the superintendent’s certificates.
It is also in the principal’s interest not to interfere in the superintendent’s role as agent for the principal. For example, the principal should not communicate directly with the contractor on subjects which are the responsibility of the superintendent. If the contractor receives conflicting instructions at this level the principal may be disadvantaged later.
Depending on the contract, the superintendent’s main obligations are usually to act fairly and honestly. Therefore the superintendent must be impartial when acting as an independent certifier. Also a superintendent has an obligation to act promptly or, where time is not specified in a contract, within a reasonable time. In addition, the superintendent has a duty of care under the contract to both parties, especially when issuing certificates.
Also, depending on the contract, the superintendent may issue directions to the contractor either in the role of certifier, or as agent for the principal.
The superintendent’s contractual obligations as certifier include issuing certificates, valuing variations, resolving disputes, and granting extensions of time.
The superintendent’s contractual obligations as agent for the principal may include the approval of sub-contractors, the control of employees on site, and to explain, or resolve, any contract document ambiguities, to authorise the examination and test of any work, to direct the replacement of any defective work, the postponement or suspension of any work, and the ordering of any variations.
Conclusion
Therefore from the above, it should be clear that the role of the superintendent is to help progress the work. And not only is there an obligation for the principal not to interfere with the superintendent, but that it is in the principal’s best interests not to do so. For example, if the contractor’s claim is not fairly assessed, then this could precipitate legal action, and this would not be to the principals advantage.
Note
This explanation is a brief summary of the role of a superintendent, and is not intended to articulate any specific contractual obligation, or advice.
If you have a project that you would like to discuss, please contact us.