Chapter 5 Obligations of a superintendent
Comparison of forms of standard contracts
Some forms of contract require the superintendent to act honestly and fairly while other forms require good faith and reasonableness. The superintendent’s role also varies between the different forms of contract. Some forms provide for the superintendent to be an agent while others require the superintendent to carry out the dual roles of agent and independent certifier.
The main obligations and duties of the superintendent under the various standard forms of contract are set out below.
| Form of Contract | Key Provisions | Comments |
|---|---|---|
| AS 4300 / AS 2124 | Superintendent is appointed by the principal who must ensure at all times there is a superintendent performing his or her role under the contract.
Superintendent must act honestly and fairly, within the prescribed time or, if no time is prescribed, a reasonable time, and arrive at a reasonable measure or value of work, quantities or time. |
Outlines the obligations of the superintendent.
A failure to ensure the superintendent acts in this manner will be a breach of the contract by the principal. |
| AS 4000 / AS 4902 | Principal must ensure there is at all times a superintendent.
Superintendent must fulfil all aspects of the role reasonably and in good faith. |
Widens the duties of superintendent, particularly with regard to role as certifier.
Requirement to act reasonably and in good faith overlaps with, but is broader than requirement to act honestly and fairly in AS4300 & AS2124. |
| PC-1 | Contract administrator (superintendent) is nominated by the principal or under the contractual terms.
Contract administrator will carry out functions as an agent of the principal (and not as an independent certifier, assessor or valuer). |
Different to the underlying presumption in other forms of contracts that superintendent will act as a certifier.
The underlying basis is that the ‘contract administrator’ will act as an agent of the principal. |
| ABIC | ‘Architect’ (superintendent) acts for some purposes as an agent for the principal and for other purposes as an independent certifier.
Distinguishes roles as certifier and agent of the principal. |
There is a specific requirement on the architect to act fairly and impartially in role as certifier. |
Interaction with principal and contractor
Once a superintendent is appointed, the principal must not do anything which would prevent the superintendent performing his or her duties and functions. Similarly, the contractor is required to comply with all directions made by the superintendent.
Replacement of a superintendent
If the superintendent named in the construction contract dies, or due to illness or other reason is unable to perform the role, then the principal must replace that person. In the absence of a specific term of the contract, it is an implied term that it is the principal’s responsibility to find a replacement within a reasonable time. Failure to do so will result in a breach of contract unless there is an express provision in the contract to the contrary (Croudace v London Borough of Lambeth [1986] 33 BLR 20).
The principal may replace the superintendent at any time. In the AS forms of contract, the principal need not obtain the consent, or even forewarn, the contractor of the proposed replacement, but merely notify the contractor in writing once a replacement has been made. In contrast, the ABIC form of contract gives the contractor a right of reasonable objection (such as on the grounds of lack of qualification or ability) to the replacement.