According to the JCT, certifiers are supposed to be impartial even though they're being paid by the client. So does anyone on Planet Earth believe that they are?
Do read Tim Elliott's piece about the duty of a certifier (3 March). The contractor Scheldebouw became terribly upset when the certifier left the job and the employer, St James Homes, took it over. The whole idea in our industry is that the certifier, be it an architect or contract administrator or engineer, is a sort of "guest" in the contract, a go-between between the contractor and employer.
The parties allow that this outsider can certify such things as the value of interim accounts, the value of variations, the value of loss and expense, extensions of time and dates of practical completion pro-tem. After all, he is a professional, he is independent, he is unbiased, impartial … even though he is paid by the employer and is grateful for the commission.
And, I tell you this; if I lined up 10,000 contractors shoulder to shoulder and publically asked each of them "Is the certifier an unbiased, impartial, independent, evenhanded bloke?" almost to a man they would say, "Yes of course." But if I took them to one side, I would be told that the decisions of the certifier are biased in favour of the bloke who pays them.
Time without number the contractor says it is dissatisfied with the certifier's decisions, and almost every time the certifier is regarded as being anti-contractor. Oh it might not actually be true but the certifier is perceived as biased because it is engaged by one of the two parties to the contract while remaining apparently independent of both.
Indeed I cannot fathom why Scheldebouw was so upset by losing the certifier. The days of believing that the certifier "holds the ring" between contractor and employer are long gone.
Now, if those 10,000 contractors are really only pretending that a so-called independent certifier is the bee's knees why would they want to keep it? Well actually the NEC standard form tried to make sure that the contract administrator was not holding the ring. He was representing the employer's interests. So, any decision of this ring holder was biased from the start. The advantage to the contractor is that it can immediately refer its decisions to the in-built adjudicator.
In JCT, the certifier is regarded as a damn nuisance. For example, it is to be allowed 12 weeks to decide an extension of time. This is its impartial thinking time; then it announces its award. And no matter what extension it gives, if any, the decision will be perceived as biased. You might just as well ask the employer to certify.
If I took each contractor on one side I would be told that the decisions of the certifier are regarded as in favour of the bloke who pays the piper
In any case four-fifths of our industry does not have a certifier at all. It only survives between employer and contractor. But in the contractor-subcontractor camp it is the contractor that unilaterally decides what is payable, decides when the subcontract has reached practical completion, decides the value of variations, decides extension of time, decides loss and expense, decides oodles more. True, true, this unilateral decision-making process is a hostage to the disputes business. But I bet you that disputes up in the main contract are just as rife.
It is a fact of life in construction that commercial interests, irrespective of which part of the construction scene they occupy, drive the payer and payee. It is a fact of life, too, that the certifier and his "professional" status are no longer enough to persuade the payee that the professional will not reach a decision that favours its client.
And I tell you this; if I lined up 10,000 architects shoulder to shoulder and asked each one "When you are the certifier engaged and paid by one party to the contract, are you even handed when doling out an extension of time?"
Almost every one will say, "Yes of course." But if I took each architect to one side he would tell me that it is one helluva job awarding an extension of time to prolong and delay completion and award loss and expense and deprive its client of liquidated damages - worse still if the reason for the extension is the architect's own dilatoriness.
And worse again because the architect wants the next job …
Tony Bingham is a barrister and arbitrator specialising in construction. You can email him on firstname.lastname@example.org