Certificates - Construction Contracts - page 234

143 If the employer and the contractor agree
the final account, should the architect issue a
final certificate in that amount?
All the standard form contracts require certificates to be issued by the person named in the
contract as the architect or the contract administrator. A certificate is the formal expres-
sion of the architect's professional opinion. 7 In short, it is a very serious document and not
something to be issued without careful thought.
Itisquitecommonfortheemployerandthecontractortoeffectively'doadeal'attheend
of a project and agree between them the amount the employer will pay to close the contract.
Such an agreement is often based onthe age-old principle ofa figure more than the employ-
erreallywantstopayandlessthanthecontractorexpects.Asettlement issometimessaidto
be successful when both parties are dissatisfied with it.
In the normal course of events, the issue of the final certificate under any of the standard
formswillbetheculminationofaprocessthathasbeencontinuingfromthecommencement
of work on site. During this time, the contract sum is constantly adjusted to take account
of variations and any other matters that the particular contract allows to change the contract
sum. After practical completion of the Works, if the contractor wishes to submit any further
information to the architect (or to the quantity surveyor if the contract stipulates that the
quantitysurveyoristovalue),thereisaspecifictimewithinwhichthismaybedone,usually
six months. The quantity surveyor completes the adjustment of the contract sum and after
consultation with the architect sends this figure to the contractor. Within a contract-stipu-
lated timescale, the architect issues the final certificate. This certifies the amount that is due
tothecontractorandthattheamounthasbeencalculatedinaccordancewiththetermsofthe
contract.
Obviously, where a settlement figure has been agreed between the parties to the contract,
it has not been calculated in accordance with the terms of the contract. Therefore, the archi-
tect cannot certify that it is the amount which is objectively due to the contractor. It follows
that if the parties agree the amount payable from employer to contractor (usually) to settle
the contract, the architect cannot issue a certificate to that effect. That is because the issue
of the final certificate is a procedure under the contract, and the architect has the power to
doonlythatwhichthecontractempowers.Anysettlement agreementcannotbeasettlement
under the contract, but merely a settlement of the contract. The settlement should be separ-
ately recorded and signed by the parties as bringing the contract to an end. It is best done in
the form of a deed to avoid any question that there is a lack of consideration. Proper legal
advice is required.