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Construction contracts often refer to a ‘superintendent’. Indeed, the superintendent is a third party to a construction contract, appointed to evaluate and certify payment claims, variation claims, and claims for extensions of time. This article examines the role of the superintendent in a construction contract and will examine the key responsibilities and obligations of the superintendent. It is important to note that the relevant construction contract will define the precise duties of each particular superintendent.

What Is the Superintendent’s Position?

The superintendent is a third party, and their essential role is to administer and oversee a construction contract.

The superintendent is not a party to the construction contract themselves. However,  the contract will typically define the superintendent’s obligations, and generally, these will include:

  • attending meetings to facilitate project aims;
  • making decisions on the value of payment claims made by the contractor;
  • assessing variables, such as the value of variations and claims for extensions of time;
  • supervising the workmanship of the contractor; and 
  • considering whether the works are complete in accordance with the contract.

Indeed, the contract may require the superintendent to act reasonably, fairly and impartially in carrying out their role. However, the construction contract may specify that the superintendent is to act as the principal’s agent. Therefore, this superintendent is not required to act reasonably or independently.

Who Appoints the Superintendent?

The construction contract lists who the superintendent is. Therefore, the principal usually engages the superintendent, often under separate project management or other services agreement.

Often, the superintendent’s role under a construction contract is two-fold. Indeed, in some circumstances, the principal appoints the superintendent as both a certifier and its agent. As an agent of the principal, the superintendent will perform functions on behalf of the principal and also act as a certifier. The superintendent can be a business, a consulting business’ individual employee, or an employee of the principal.

The Superintendent’s Functions as Agent

As an agent of the principal, the principal may task the superintendent with the following responsibilities:

  • reviewing and approving project programs;
  • directing the contractors and employees on behalf of the principal;
  • issuing a suspension of work direction; and
  • instructing the contractor to vary the works or the works program.

The construction contract will outline the superintendent’s tasks and responsibilities. Furthermore, if the superintendent is permitted to act on behalf of the principal, they are typically the principal’s representative outside their role as superintendent.

What if There Is No Superintendent?

Construction contracts often dictate that a superintendent must be appointed. For example, most major standard form contracts expressly necessitate the principal appointing a superintendent. 

For an example, see clause 20 of the AS 4000 Contract. 

Some construction contracts, however, do not require a superintendent. For example, bespoke agreements that are not based on Australian Standard contracts may not require one.

If your construction contract does not allow for the superintendent’s role, the contract must incorporate:

  • well-drafted payment clauses;
  •  extension of time and variation mechanisms;
  •  a solid dispute resolution clause, including to set out who makes the determination in respect of any such claims. 

Key Takeaways

Ultimately, a principal appoints the superintendent. Indeed, the wording of the particular construction contract will set out the scope of the superintendent’s role in administering the construction contract. However, sometimes the principal employs the superintendent as an agent. On the contrary, sometimes both parties ask the superintendent to act fairly or with reasonableness.

If you have any questions about the role of the superintendent, get in touch with LegalVision’s building and construction lawyers on 1300 544 755 or fill in the form below. 

Frequently Asked Questions

What is a superintendent?

The superintendent is a third party to a construction contract, appointed to evaluate and certify payment claims, variation claims, and claims for extensions of time.

Who appoints the superintendent?

The construction contract lists who the superintendent is, so is determined during contract creation. The superintendent is often engaged by the principal under separate project management or other services agreement.

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