Superintendents of Construction Contracts regularly encounter difficulties and we address below some of the more common pitfalls:
The Superintendent is not responsible for supervising the work
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 so.
Communication channels
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 claim.
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 response ineffective.
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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