Fault lines

In my article "Call their bluff" (21 February), I explained how the pre-action protocol encourages claimants to put forward unsubstantiated and unmerited claims against defendants without any risk, given that there are no cost penalties for not pursuing a claim that has been through the pre-action protocol. As abuse of the protocol has continued it seems that construction managers are one of the unfortunate victims all too often caught in the client's firing line. If the building has defects, if it finishes late, or if it comes in over budget, then blaming the construction manager has become a popular pastime of clients and their advisers.

More often than not, however, such claims are misconceived and demonstrate a rather frustrating ignorance as to the role of the construction manager, its duties, and why that method of procurement was chosen in the first place. The construction manager, it seems, has become, in many clients eyes, the guarantor of the project and a deep pocket to turn to when things go wrong.

The advantages of construction management are perceived to be that there is an opportunity to reduce the overall project timescales by overlapping design and construction. The fact that the works are divided into packages, means that the preparation for the design, tendering and construction works can go along in tandem (so called "fast-tracking"). There is an opportunity to set up a strong management team able to deal with complex and difficult projects, and there is flexibility allowing change or late decisions where packages have not been tendered, without adverse cost and time implications. Ironically, one of the advantages is perceived to be that the direct relationships between contractors and the client allow the client a higher degree of involvement and control. For the system to work, it is generally understood that the client should be experienced and sophisticated in coping with the direct administration of a large number of trade contracts.

Traditionally, where a large construction project overran in time and costs, claims against construction managers were frowned on by the legal fraternity, primarily because of the difficulties of proving identifiable losses flowing from breaches of construction management appointments. It is not difficult to understand such a view. In such an arrangement, the client is in direct contract with those that design and construct the works and thus is free to pursue its claims directly against those truly responsible.

The unique position of the construction manager is that it has neither designed the works, provided the information on which the works are built, or built the works itself. Usually, it has simply managed that process. However, a typical claim against a construction manager might relate to time and cost overuns or defective works. The claims are usually very general – "failed to manage the design process", or "failed to adopt suitable procurement methods". In one claim it was even alleged that the construction manager had "failed to ensure that the works had zero defects". What is nearly always absent from such claims is demonstration of the loss that is said to flow as a result. The reason is simple. Usually the construction manager has not caused the loss. The loss is caused by the negligent design by the engineer or the provision of late information by the architect or the poor workmanship of the trade contractor. It is not the construction manager's role to "ensure" that the design is produced on time or co-ordinated correctly or is free from defects.

That is not to say that the construction manager is paid money for old rope. Its duties are defined and must be carried out with reasonable skill and care. However, clients must understand what they are getting, namely, a manager that does not guarantee results and is not automatically responsible for the poor performance of the rest of the team. Usually, clients will find that they would be better off relying on their construction manager to assist them in proving claims against trade contractors and consultants that may be the real and underlying cause of the problems rather than seeing the CM as the "guarantor" of the project, which it is not.