Superintendents of Construction Contracts regularly encounter
difficulties and we address below some of the more common
The Superintendent is not responsible for supervising the
Generally, Contracts Superintendents are not required to
supervise the contract works. In fact, the Australian Standards
("AS") form of Contract specifically states that the
Superintendent does not assume, nor shall have any duty to
supervise or control the Contractor's performance of work under
Contract (see for example clause 8.3(d) of AS 4902).
Superintendents often cannot resist the urge to supervise the
works but must be aware that there are a number of very serious
implications, such as transference of risk, if they insist on doing
Most Construction Contracts will set out a specific procedure
for communication to take place between the parties.
This sounds simple enough, but parties often ignore the
prescribed procedure and end up compromising their ability to
enforce their contractual rights and entitlements. In cases where
the correct procedure has been persistently ignored, it may amount
to a waiver of that party's contractual rights.
Failing to respond to claims
A common problem, and one with potentially catastrophic results,
happens when a Superintendent fails to respond to a communication
or claim because he or she believes it lacks merit.
Great care should be exercised as there may be a contractual
provision which treats the other party's communication or claim
as being accepted if there is no response from the Superintendent
within a certain period of time.
For example, clause 42.1 of AS 2124 states that if within 28
days of receipt of a claim for payment the Superintendent fails to
issue a Certificate, the principal becomes liable to pay the
A similar provision is found in clause 37.2 of AS 4000 where
failure to issue a Progress Certificate within 14 days of a valid
claim results in the claim being deemed to be the Certificate.
Read the Contract
We have mentioned before the dangers of a party failing to be
fully across the terms of the relevant Contract. This is a problem
that comes up time and time again and has the unintended effect of
keeping the lawyers busy.
If an event occurs during a project which may give rise to a
claim, or there is some other contentious item or event, there will
often be a specific contractual procedure to dictate what should
happen, and when, in order for any such claim to be successful.
Failure to observe the proper process, and to give the correct
notices, may deny entitlement.
Similarly, any response to a notice or claim is also likely to
be the subject of a contractual term or provision and failure to
respond in the time and in the correct manner may render any
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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