Claim against the Superintendent

ie direct communications, it save money , time and bull

Try having a couple of beers with the guys, and matters seem to resolve themselves

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.

Hi Andrew,



I was having a discussion with one of our PQS’s last night, and explained the realities. He wanted a lesson in P3 to try and analyse the contractors claim for eot. The sitution is is simple, rhe EOT was approved, just make sure the P&G’s was acceptable. Why create more problems?

[Rude posting deleted by Moderator.]

Philip,



Alot of claims have nothing to do with planning but those that do are often due to bad planning or even a complete lack of it.



Ideally we all get it right, things go well and you never hear about the job! Unfortunately, it sometimes goes wrong and bad planning is a factor in it, that’s just the way of the world and we will never change it - there are alot of ways the number of bad projects could be reduced and better or greater use of planning resources is one of them.

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.

Philip,



In 99.9% of cases you are correct - contractor claims against client who then if appropriate would claim against the PM (or PM’s company)



However, the answer to the question of whether it’s possible for the contractor to claim directly against the PM is, in very limited circumstances, yes.

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.

Bill,



Generally you are correct as the Project PM will not be site based on larger projects but appoint a site manager who’s title will vary from contract to contract.



We sometimes seem to forget that for every billion + dollar project let there are hundreds of million + dollar projects and 1000’s of smaller value jobs. The bigger jobs are actually the exception, not the norm in the construction industry as a whole. On the smaller jobs, not maybe in the public sector, but often in the private sector, the client will often appoint 1 person to look after the project, on and off site works, as that is all the project warrants. Therefore, as we were not being specific my comments are aimed at trying to cover the whole spectrum of projects, big, medium and small. The same rules and law applies to them all.



Philip,



Try looking up Sika Contracts Ltd v Gill (1978) 9 BLR 15 or John Mowlem v Eagle Star Insurance (1992) 62 BLR 126 - two of admittedly only a few cases that exist where the PM was held personally liable for his actions. Certainly the English courts take a very narrow view of this and as stated before, it is rare, but has happened. One where the courts decided the PM couldn’t be held responsible to the contractor is Pacific Associates v Baxter (1989) 2 All ER 159 - a case that has since been quoted sucessfully to argue the same, however all 3 judges stressed their decision rested on certain express terms that existed in the contract and therefore in a case where the terms don’t exist, the outcome is up for debate.



I’ll ignore your other comments.

[Yet another rude comment deleted by the Moderator.]

[Rude tirate deleted by Moderator.]

Philip,



Maybe we come and work along side you, as it is you who appears to have the problem thinking.

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[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.

Philip,



Depends on the project - the PM may not be the Project Engineer then again he maybe. Often the PM on site is not the "Project Engineer" or the "Engineer" or the "Superindendant" - but he can be.



Varies from project to project as to what powers the person on site is given

Andrew,

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

Uri



Better to improve your relations with Engineer if not possible in any case and the Engineer is consistently showing lethargic attitude beyond his contractual obligations, then you may invoke Clause “Engineer to act as impartial” but keep in mind by doing this you will have to given strengthen proof to justify your statement against the Engineer at any forum.

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!

Philip,



Superintendent (or PM) - assessing extensions of time - Superintendent in different countries will have a different meaning but the (or PM) and what he was doing seemed enough for me and all the others reading it to interpret who we are talking about.

Hi Guys,



I have a problem here, in the sense of who we are talking about. Either I am from a different planet or do not understand projects? How do you get a claim against a superintendent? He normally works for either the construction manager or site manager whether it be for the managing contractor or construction contractor. Is this some new type of contract, or is anybody liable for a claim these days? I actually find this quite funny.



I checked the profiles of all three you guys.



Uri, you asked the question and you claim 1462 out of 1500.

J’S. you replied and claim 1463 out of 1500

Andrew, you claim 1475 out of 1500.



Yet nobody asked for clarification on the term of superintedent.



What are we talking about?

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.

Dear Uri,



In situation where PM is not acting impartially such as not assessing/granting EOT or other, the Conttractor can raise this issue and even a claim (if needed). Generally, the Contractor has to avoid as much as he can to reach this situation with the PM. In his turn, the PM has to act consciously without taking side to the Client even if he is getting paid by him.



Regards,

J.S. Daniel