Contract administration used to be architects' work but these days, many professions can bid for the job. Here's what the new kids need to know
Life used to be easy to understand. phones were for talking to people on and supermarkets were where you bought your food. Now phones are for taking pictures and playing music, and supermarkets are where you buy your TVs and car insurance.
In construction a similar change has affected contract administrators, a role traditionally occupied by the architect. The main force for change has been an increase in the use of design-and-build contracts. This frequently means that the architect is novated to the contractor, which has left the job of contract administrator open to project managers and quantity surveyors. The JCT05 contracts have done nothing to stop this, as they use the term "architect/contract administrator" rather than architect.
Although the role of contract administrator has been around for years, some of its new occupants are still coming to terms with what is expected of them, particularly when it comes to taking responsibility for quality, supervision and inspections.
So what is the contract administrator's responsibility? It flows from three main factors: The building contract and what it requires the contract administrator to do, their appointment from the employer and case law.
Taking the building contract first, the contract administrator will have to supervise, approve the materials and workmanship (where the contract says they have to), certify practical completion and issue schedules of defects and a final certificate. None of these is any "guarantee" of quality, as it is the contractor's obligation to deliver this in accordance with the contract.
Issuing the final certificate still causes concern to some contract administrators as they believe it leaves them, rather than the contractor, liable for quality. This is an ancestral memory of a flaw in JCT contracts that was sorted out many years ago. On quality, a final certificate just says the contract administrator agrees that where he was to approve materials, he has. The contractor remains responsible for the quality of the works.
This does not let the contract administrator off the hook, though, if they do not do their job properly. It they fail to spot some defective work that was obvious, that could well be negligence.
Although most case law has involved architects, there is no reason to think it will not affect project managers or QSs
The contract administrator's appointment will set down the detail of the services required. It should cover practical issues such as visiting the site and inspecting the progress and quality of the work. Employers' advisers often try to include quality "guarantees" from the contract administrator in the appointment. For example, they can be asked to "ensure quality of workmanship and fitness of materials". While site inspections and quality checks are an integral part of the contract administrator's role, clearly this is an impossible obligation. First, nobody can "ensure" such a thing and second, as already mentioned, this is the contractor's obligation.
What is needed is a mature discussion about what both parties want - a decent quality building - and the frequency of site visits that will give the contract administrator the best chance of achieving this aim. If this affects the fee, that needs to be recognised.
The final factor is case law. There have been plenty of cases involving architects administering contracts over the years. For instance, case law says that although there is no requirement for architects to check every detail of work, they should check important matters. Although most case law has involved architects, there is no reason to think it
will not affect the interpretation of project managers and QSs' obligations when they act as contract administrators.
Those project managers and QSs would be well advised to scan the relevant sections of Hudson Building and Engineering Contracts or Emden's Construction Law on the position of the architect relating to supervision. They might also want to talk to an architect, as they fought these battles years ago. Whether any architect would tell them, now that they are competition, is another question.
Andrew Hemsley is managing director of consulting at Cyril Sweett and can be reached on 020 7061 9007 or at firstname.lastname@example.org