Superman – Obligations of a Superintendent as Independent Certifier and Agent for the Principal

The role of the superintendent will typically be defined in the head contract between the principal and the contractor. That is, the contract will specify the specific duties and obligations the superintendent must perform as:

1. independent certifier; and
2. agent of the principal.

For ease of reference, in standard form contracts the applicable clause which prescribes these duties is clause 20 in a AS4902-2000 and clause 23 of a AS2124-1992.

Superintendent as Independent Certifier

In its capacity as independent certifier on a project, the role of the superintendent ordinarily includes:

1. assessing and certifying the value of payment claims;
2. assessing and certifying the duration of extensions of time claimed by the contractor;
3. inspecting the quality of materials and workmanship and issuing directions to rectify any defective work;
4. the issuing of progress certificates and final certificates;
5. determining whether the work have achieve practical completion in accordance with the contract.

When carrying out these functions, the superintendent must do so fairly, reasonably and independently. These duties ultimately override obligations the superintendent owes to the principal in its capacity as agent and therefore the principal cannot direct the superintendent how to act as a certifier. We will explore this duty of impartiality in greater detail next week, in the third instalment of the series.

Further, when exercising its functions as certifier, the superintendent owes a duty of care to:

1. the principal for negligent certification;[1] and
2. the contractor where it clearly relies on the advice and actions of the superintendent.

As such, the superintendent ought to ensure that all certifications are made accurately, in strict adherence to the contract terms and accepted industry standards. Failure to do so may lead to breaches of their duty of care, potentially exposing them to liability for negligent certification.

Superintendent as Agent for the Principal  

In addition to its certification duties, the contract may provide that the superintendent can act as agent for the principal, carrying out and exercising the principal’s functions, discretion, rights and duties under the contract. In doing so, the superintendent must act in the principal’s best interest and in accordance with their contractual obligations.

Specific functions that may be required in this capacity may include:

1. issuing directions to the contractor on behalf of the principal;
2. approving programs;
3. approving subcontractors;
4. resolving ambiguities in contract documents;
5. examining and testing materials; and
6. postponing and suspending works.

 

Why Understanding These Roles Matters

It is critically important that all parties to a contractor, even subcontractors have a comprehensive understanding of the roles and responsibilities of the superintendent to ensure:

1. contractors are aware when the superintendent is acting independently to avoid mistakenly divulging sensitive information when acting as agent for the principal; and
2. the principal does not mistakenly disclose information which may unduly influence the superintendent’s impartiality when assessing claims.

Best Practices

Superintendents must carefully navigate their dual role to avoid disputes and potential liabilities. As such, superintendents must ensure they:

1. undertake a clause-by-clause review of the head contract to familiarise themselves with all contractual terms and their responsibilities, particularly those related to certification, variations, extensions of time and dispute resolution;
2. clearly understand the scope of their authority and responsibilities;
3. employ appropriate mechanisms to ensure certifications are based solely on the terms of the contract and independent decision-making, free from influence by the principal or contractor;
4. keep comprehensive and contemporaneous records of site inspections and communications; and
5. maintain written records which evidence that decisions were made independently, including the rationale and supporting evidence.

Adhering to these best practices ensures that superintendents not only fulfil their contractual duties but also protect themselves from potential liabilities. By maintaining impartiality and keeping meticulous records, superintendents will mitigate the risk of disputes or claims arising from the certification works under the contract.

Lamont Project & Construction Lawyers

The Lamont Project & Construction Lawyers team has extensive knowledge regarding the appointment and role of Superintendent’s on large commercial projects. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advise on projects with respect to the functions of a Superintendent in administering a commercial contract.

If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.

The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.

Contact: Peter Lamont or Kathryn Easton

Email: [email protected] or [email protected]

Phone: (07) 3248 8500

Address: Suite 2, Level 2, 349 Coronation Drive, Milton Qld 4064

Postal Address: PO Box 1133, Milton Qld 4064

[1] Sutcliffe v Thackrah [1974] AC 727.