Chapter 5 Role of a superintendent

The superintendent’s role will be defined by the relevant terms of the construction contract and by the common law. In general, the superintendent’s role is to ‘administer’ the contract and ensure the contractual obligations are performed.

Under a traditional construction contract, the superintendent has two separate and distinct roles:

  • to act as agent for the principal; and
  • to act as an independent certifier.

Acting as agent for principal

As agent for the principal, the superintendent must act in the principal’s best interests and in accordance with the contractual obligations on the principal.

Specific functions of the superintendent when acting as agent include:

  • issuing directions to the contractor on behalf of the principal;
  • approving programs;
  • approving subcontractors;
  • controlling employees;
  • resolving contract document ambiguities;
  • examining and testing materials;
  • postponement and suspension of work; and
    ordering variations.

There is a view that there is tension between the superintendent’s role as agent and that as a certifier. However, as the following case study outlines, the two roles do co-exist under Australian law where the superintendent is not to act simply to further the principal’s interests.

CASE STUDY

Peninsula Balmain Pty Limited v Abigroup Contractors Pty Limited [2002] NSWCA 211

Facts
  • Peninsula and the superintendent entered into an agreement of agency for the project.
  • Abigroup did not know about the agency agreement before agreeing to contract with Peninsula under an AS 2124 contract.
  • Abigroup was concerned the agency agreement limited the superintendent’s discretion.
Result
  • When exercising functions of honesty and impartiality, the superintendent is not acting as the principal’s agent in the strict legal sense.
  • Therefore, there was no inconsistency between the two agreements as the superintendent was still required to act with honesty and impartiality as a certifier as required under the AS 2124 contract.

Acting as a certifier

In this role, the superintendent must act as a determiner, assessor or valuer under the contract. The superintendent must act honestly, fairly, impartially and without bias when certifying any claims. As the duties of a certifier override the agency obligations the superintendent owes to the principal, the principal cannot direct the superintendent how to act as a certifier.

The types of issues the superintendent may be asked to certify include:

  • extensions of time;
  • payment of liquidated damages;
  • the amount of delay costs payable to the contractor;
  • valuing variations;
  • payment certificates;
  • issuing final certificates and certificates of practical completion;
  • certifying costs incurred by the principal when work is taken out of the hands of the
  • contractor; or
  • disputes.

CASE STUDY

Perini Corporation v Commonwealth of Australia [1969] 2 NSWR 530

Facts
  • When the superintendent was acting as a certifier, assessing an extension of time request, the superintendent made a decision based on the policies of the principal.
  • The contractor argued this was a breach of the role of a certifier and sued for damages.
Result
  • The superintendent acting as a certifier must act independently and exercise his own discretion.
  • The superintendent could consider the policies of the principal but it would be wrong to consider himself controlled by those policies.
  • There was an implied term that the principal would not interfere with the superintendent’s duties as a certifier and a further duty to ensure the superintendent properly performed his duty as a certifier.
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