Civil Engineering Reference
In-Depth Information
contractor's obligation to perform the work. Contractors may, however, be personally
barred from insisting on the appointment of the architect if, for example, they
commence work and the contract proceeds without the appointment of an architect.
If for any reason the architect, contract administrator or quantity surveyor becomes
unable to act, the employer has a duty to appoint a replacement, see clause 3.5 of
the SBC. They should do so within a reasonable time and their refusal to do so may
amount to a repudiation of the contract entitling the contractor to rescind. Repudia-
tion and rescission are considered in Chapter 9.
Unless there is an express term to the contrary, the employer cannot appoint itself
to perform the architect's, or any other professional's, certification or decision-making
functionspart way througha building contract,see
Scheldebouw BV
v.
St James Homes
(Grosvenor Dock) Ltd
(2006). The position is different under a design and build con-
tract. There is no reason in principle why the employer cannot undertake such func-
tions, and indeed the wording of the SBC/DB suggests that it is the Employer who has
the primary obligation to undertake such roles, with the Employer's Agent acting in
adelegatedcapacity.
he NEC3 provides for specific roles to be undertaken by both the Project Manager
andtheSupervisor.heProjectManager'sroleincludesassessingamountsduefor
payment, certifying completion and determining the cost and time consequences of
compensationevents.heSupervisor'sroleincludessupervisingtestsandinspections,
notifying the Contractor of defects and issuing the defects certificate. The Project
Manager's focus is therefore the management of the contract, and the Supervisor deals
with inspections and quality. However, in practice, the two roles are often carried out
by the same organization. Clause 10.1 provides that the Employer, the Contractor, the
Project Manager and the Supervisor shall act as stated in the contract and in a spirit
of mutual trust and co-operation. This suggests that the Employer under an NEC3
contract is under an obligation to complete the appropriate entries for such appoint-
ments in the Contract Data in order to make the contract operable. However, there
is nothing in the NEC3 which prevents the Employer from naming himself as project
manager or supervisor, or both, and there seems to be no reason in principle why the
Employer should not do so.
Whileinmostcontractstheidentityofthearchitectwillbeexpresslystated,itwould
be wise for the contract to be worded to refer to the appointment of the individual
architect 'or such other person as may be nominated by the employer'. his is to avoid
a situation where there may be confusion surrounding the existence of an obligation
to appoint a successor should the appointment fail for any reason. In
Croudace Ltd
v.
London Borough of Lambeth
(1986), it was held that there had been a breach of con-
tract on the part of the council where the architect employed by them on a contract,
and who had been dealing with the contractor's claim for loss and expense, retired
and the council delayed in appointing a successor. In that case, the architect named
in the contract had a responsibility to ascertain the contractor's claims. There would
appear to be an obligation on the employer to ensure that the successor to the original
architect is reasonably competent to perform the job, see
London Borough of Merton
v.
Stanley Hugh Leach
(1985).
It should be noted that clause 3.5.1 of the SBC allows the Contractor, except
where the Employer is a local authority and the nominated replacement is one of its
