ie direct communications, it save money , time and bull

Philip,

If a problem can be resolved easilly then it should be resolved.

Your dislike of persons in the claims industry seems to stem from your failure to appreciate that claims are no more than a problem that the parties could not resolve themselves and have therefore asked someone else to help resolve it for them.

I don’t know anyone in the claims industry that goes round knocking on doors asking if they can have a go at creating a claim for someone.

The claim starts on site, fails to get resolved on site, then fails to get resolved higher up the ladder and normally only then does an outside party get invited to look at it.

There’s normally alot of people involved from client and contractor that fail to agree before it goes outside of that circle.

[Rude posting deleted by Moderator.]

Hi Andrew

You claim there is the .1%, and this can be resolved by being pro-active. Thanks for giving the 99.9. The .01% is not actually the problem, the problem is the misconception that the .1% is a problem, and therefore the prolifiration of claims, and so-called claims planners, which is giving the industry a bad name.
If I have any problem with the topics dicussed on PP it is that there is this tendency towards claims.
Any claim is a bad reflection on planning and as such in our perspective an insult. The point being is as planners it is our responsibility that the job runs as planned, and we must explain any deviances without excuse, and ensure that the end result isreached, ASAP.

Hi Andrew,

There is obviously instances where a PM might be found to be incompetent, and if he is a appointed PM company, then he can be ruled against. The point is that at the end of the day the claim is against the client. In a case where the client feels the PM is not performing as a result of the PM not performing, he can claim against the PM company, who he appointed to handle his affairs, however, as he apointed the PM, who was incompetent, the liability rest with him in terms of claims from the contractor. It is simple, if you appoint somebody to do something for you, you are still liable, as it was your lack of due diligence that allowed the contractor to suffer losses, and as such it is your responsibility to recover such claims from the appointee. The contractor does not have to recover losses due to your negligence.

[Yet another rude comment deleted by the Moderator.]

Andrew.

The point I am trying to make is who is responsible in the end, and have its very rare that claims would be towards a supt or even a site manager.

the proper channels, as noted within the contract identify who is responsible for any decisions,, in the end its the pm. No matter who or if employed or not, he is the party to the first part in the contract, his baby. And most pm walk on water or really think they do.
period. If satisfaction cannot be done with him then claims court.

but the site supt, no way

cheers bill

[Rude commetn deleted by Moderator.]

Bill

Agree with all that, not exactly sure what point you’re trying to make though.

Philip,

But the principle of acting within ones authority or being liable etc applies to whether he/she is on site or not. it’s a common law principle, not from the contract, that applies to all - you and me too if our scope of authority is properly defined anywhere.

Andrew,
Despite your remarks. Is the superintendent the PM or not? The implicatioon I wil clarify when I know the truth

Uri,

Andrew’s post is on the money! The PM (as we appear to be calling him on this occasion, but also known as the Engineer, for example, in FIDIC) acts as an agent on behalf of the Owner/Employer/Client to supervise the construction of the Works.

These PM’s are required to interpret and apply the Contract terms in a fair and equitable manner, but inevitably – as Andrew points out – politics and other considerations get in the way, not least of all the fact that the PM is paid by the Owner/Employer/Client.

In my experience, PM’s are often either too closely involved (and therefore interfere unnecessarily with the project), or they are too ‘hands off’ (and you never get an answer!!).

If you think that the PM is being unfair towards the Contractor, the Contractor should present a claim against the Owner/Employer/Client, because that is the party with whom he is in contract. There is no direct contract between the Contractor and the PM.

Again, as Andrew correctly says, there are instances where a Contractor can sue the PM for damages directly, but this is very unusual and is related to when the PM acts outwith his authority. In some cases it is useful to get clarification of the extent of the PM’s authority from the Owner.

Hope this clarifies,

Stuart

www.rosmartin.com

Uri,

Well it only could be if your contract law is based on or similar to that of the UK’s!

Uri,

Although the Project Manager (I’ll call him/her that so no one gets confused!!!!) has a duty to act in a fair and unbiased way when carrying out certain duties (assessing payments and claims, extensions of time, etc) he is still doing this on behalf of his Client or own organisation unless he acts beyond his authority. In this case a contractor who suffers loss may sue the PM personally under an legal action called breach of warranty of authority. This is pretty rare but has happened. If the PM acts beyond his authority the employer is not bound by the PM’s actions.

However, in the more normal case where a PM fails to make a decision on an EoT or other contractual requirement, he will be acting in breach of the contract as Agent of the Employer. He will still be acting within his authority, even if incorrectly. As such the legal princple of "he who does anything by another does it by himself" applies. In other words the PM’s actions as Agent are binding on the employer as if the employer himself had carried it out. Therefore the contractor can use the contract for a remedy and seek damages from the employer.

Unfortunatley, the PM being employed by the employer often results in his or her actions not being as impartial as they should be. This is often when problems arise. Politics of a project or company always plays a part, often a large part which results in things happening which wouldn’t in an ideal world - but we’ll never stop that.

The action a contractor will take when he feels he is being treated unfairly by a PM will often be based on politics rather than the contractual remedies available to him and so we end up with a big claim at the end of the job!

Uri,

There would be a possible claim but it would be against the Client under the contract, not specifically against the PM. The PM is acting as the Agent of the Client and therefore his actions are deemed to be those of the Client, not his personally, in the Client - Contractor relationship.

However, if the Client thought the PM had acted improperly and incurred them additional costs, the Client could sue the PM either through the Client - PM contract or if appropriate, in negligence.

If the PM is a Client direct employee, then whatever action the Client organisation deemed appropriate could be taken.