CHAPTER 1

INTRODUCTION

1.1 Background of the study

The construction contract practice in Sarawak is quite unique as compared to

the other states because for the government project, it has its own standard form of

contract namely JKR Sarawak Form of Contract PWD 75 (Ver. 2006); also known as

PWD 75/2006. Sabah and all states in Peninsular Malaysia are using the JKR 203

(2007) published by the Ministry of Works Malaysia. The standard form of contract

use in Sarawak was first published by the Public Works Department, Sarawak and

issued in 1961. The latest amendment to this form of contract was in 2006.

The new PWD 75 (Ver. 2006) was officially launched in 2007 to replace the

old form i.e. ‘General Conditions of Contract PWD 75 (Rev. 5/61). The Sarawak

Government has endorsed the PWD 75 (Ver. 2006) and gave its approval for other

government departments and agencies to be used the form for the procurement

government projects. The Guide to The Form of Contract was also published in order

to provide a guide to the construction community of Sarawak. The content of the

Guide is basically the practice note, the relevant certificates, letter and circulars to be

used with the PWD 75 (Ver. 2006).

One of the changes in the new PWD 75 (Ver. 2006) is that it can be used for

lump sum contract and contract with bill of quantities. The new PWD 75 (Ver. 2006)

can be used where the BQ is form part of the contract and where the BQ do not form

part of the contract. Therefore, Clause 8.1 shall apply for Contract based on Bill of

Quantities and Clause 8.2 shall apply for Contract based on Drawings and

Specifications.

Under this new form of contract, there are three people who are given the

responsibilities to manage the project. They are the Superintending Officer (S.O)1,

the Superintending Officer’s Representatives (S.O Representatives)2 and the

Assistants to the Superintending Officer3. They are responsible for the successful

construction and completion of the project. But their roles, duties and responsibilities

are different in term of scope and authority. The S.O is responsible for the overall

supervision and direction of the Works while the duties of the S.O’s Representative

(which can be more than one) is to assist the S.O to inspect and supervise the Work

and tests and examine any material, goods or equipment in connection with the

Work4.

Who should be appointed or employed as a S.O or the S.O’s Representative

or the Assistant to the S.O? The CIDB standard form of contract expressly stated that

the S.O must be a full member of a professional body associated with the

construction industry5. So, the S.O must be a professional architect, engineer or

quantity surveyor. No other person, other than those mentioned professionals, can be

appointed or employed as the S.O for a project.

There is no expressed provision in the PWD 75 (Ver. 2006) form as to who

may be appointed or employed as the S.O or S.O’s representatives for a project. It

1 Clause 11.1(a) JKR Sarawak Form Of Contract PWD 75 (Ver. 2006)2 Clause 11.1( c) supra3 Clause 11.2 (a) supra4 Clause 11.1 supra5 Clause 1.1 Superintending Officer CIDB Standard Form of Contract for Building Works (2000) Edition

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can be assumed that the absent of such provision is due to the fact that the key

employees of the PWD Sarawak are qualified professionals such engineers and

architects. The other reason why this provision was not inserted in the new form of

contract is that it is open for use by other government department and agencies which

may not have qualified professionals.

The discussion has so far touched on the new PWD 75 (Ver. 2006) form of

contract, the S.O as the person in-charged of the project and who may be appointed

as the S.O. But what exactly is the role, duties and authority of the S.O under the

contract? As stated clearly in Sub-Clause 11.1(a) of the PWD 75 (Ver. 2006), “the

S.O shall be responsible for the overall supervision and direction of the Works.

This clause also suggested that the role of the S.O is supervisory in nature i.e.

he is also the project supervisor. It also provided that, as a supervisor with

professional background, the S.O should act reasonably and be timely in carrying

out his duties and responsibilities both during the pre-contract and post-contract

stages. As a professional man himself the S.O must discharge his duties with

reasonable skill, care and diligence.

Most contracts for the engagement of consultants define the standard of care

that is expected from the professional when discharging their duties6. They shall

carry out their duties with reasonable skill, care and diligence7. As Frank (1988)

noted that in law the failure to perform or negligently perform these duties or

responsibilities constitute a breach, therefore he or she will be answerable or

accountable to the other party who may have suffered as a result of his/her wrongful

act.

The question of whether an S.O has acted reasonably and timely or with

reasonable skill, care and diligence depend on what he is required to do when he is

appointed as a S.O. Sub-Clause 11.1(a) of the PWD 75 (Ver. 2006) stated that the 6 BEM Form 1999 and BAM/JKR Form B (Revised 1/83)7 Clause 5.1 supra

3

S.O shall be responsible for the overall supervision and direction of the Works.

The words used here are “the overall supervision” and “direction”. But these

words have a very broad meaning as such it is difficult to ascertain the extent of the

S.O’s duties under the contract.

As stated by Judge Oliver in the case of Midland Bank Trust Co. Ltd v Hett.

Stubbs and Kemp8:

“There are no such things as general retainer in that senses. The expression

“my solicitor”, is as meaningless as the expression “my tailor” or “ my

bookmaker” as establishing a general duty apart from that arising out of a

particular matter in which his services are retained. The extent of his duty

and any duty of care to be implied must be related to what he is instructed to

do”

The judgment of the above case is supported by Wallace in Hudson’s

Building and Civil Engineering Contract that:

“The building owner is entitled to a professional standard of skill in

discharging all the duties necessary until the purposes of the appointment

have been achieved. A mere request to act as an Architect, Engineer or

Quantity Surveyor or Project Manager in connection with the building

project without specifying at the outset, the service required of them may lead

to doubt or disputes as to what are the respective rights and duties of the

parties, particularly where more than one consultants are engaged”

The above cases and statement stress out the need of the S.O to have

knowledge on his duties. He cannot solely rely in the PWD 75 (Ver. 2006) and the

Form of Agreement for the Consultant since it only states very briefly about the

supervision duties. Therefore, it is very important to study what exactly is the extent

of his supervision duties of the S.O.

8 [1979] Ch 384 [1978] All ER 571

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1.2 Statement of issues

The use of the words “overall supervision” in the contract still leaves some

unanswered question of the extent of the duties and responsibilities of the S.O. Do

they mean inspecting or overseeing or something beyond these functions? Is he

expected to monitor, through inspection and testing, the works being carried out and

to make sure that the timely completion of the work? Do the words “overall

supervision” mean that the S.O has to walk the site the whole time to monitor each

and every one of hundreds of works?

The issue here, what is the extent of the supervisory duties of the S.O under

PWD 75 (Ver. 2006), that is considered to be reasonable and timely or as stated in

most contract of engagement of consultants to exercise “reasonable skill, care and

diligence”?

1.3 Objective of Study

The objective of this study is to ascertain the extent of the S.O’s supervisory

duties under JKR Sarawak Form of Contract PWD 75 (Ver. 2006) that will meet the

standard of care required of him.

1.4 Scope of Study

5

The main thrust of this dissertation is on determining the Superintending

Officer’s reasonable supervision duties. The scope of this study will be confined to

the following areas:

a. Under conventional procurement

b. Law Cases related in supervision of construction projects

c. JKR Sarawak Form of Contract PWD 75 (Ver. 2006)

d. Conditions of Engagement for Professional Services

e. By-Law Provisions

f. Documents/Manuals regarding supervision

This study is limited to the law cases which involves in supervision on sites.

The clauses in PWD 75 (Ver. 2006) regarding the supervision will be identified.

1.5 The Significant of Study

This research is very important in order to ensure the S.O’s practice is in line

with the legal aspect. The supervision on sites is one of the most important aspects to

ensure the project is completed in accordance with specification and drawings.

Therefore, it is very important for the S.O to know how to supervise the project

reasonably. Not only they have to gain the technical knowledge about the

construction, but they must also prepare themselves with the legal contract

administration knowledge.

Up to date, no complete manual has been published by JKR Sarawak

regarding on how the S.O should act at the site. It is also noted that, there is yet any

law case disputing the supervision of the S.O under this contract. Thus, this research

perhaps would contribute towards the enhancement of the S.O’s knowledge

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regarding their supervisory duties. With this research, hopefully the S.O can avoid

any claim regarding their negligence supervision.

1.6 Research Method

To achieve the research objectives, a systematic research process had been

drawn up and adhered to. The research process consists of four major stages, namely,

identifying the research issue, data collection, data analysis and writing. Each stage is

depicted in detail below.

1.6.1 1st Stage – Identifying the Research Issue

The research issue is identified following thorough reading of academic

books, seminar papers, journals and articles. Comments on the said issue will

also be sought from lecturers for more insight. Next, the topic, objective and

scope of the research are identified. Other than this, a research outline is prepared

in order to identify the data sources.

1.6.2 2nd Stage – Data Collection

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Two types of data are collected – primary data and secondary data. Data will

be collected through documentary analysis and will be sorted out accordingly.

1.6.2.1 Primary Data

Primary data will be collected mainly from law journals and law reports such

as, Malayan Law Journal, Building Law Reports and Construction Law Reports and

any other relevant sources of cases. These journals and reports are accessed through

the LexisNexis legal database. Clauses in JKR Sarawak Form of Contract PWD 75

(Ver. 2006) will become the key point in studying the cases. Cases relating to the

research topic and scope will be gathered and analyzed at the third stage – the data

analysis stage. The supervisory duties under conditions of engagements, manuals and

clauses in PWD 75 (Ver. 2006) will be compared to get a list of duties during

supervision.

1.6.2.2 Secondary Data

Secondary research data will be retrieved from the books, standard form of

building contract, articles and journals, seminars papers as well as Internet websites.

These sources are important to complete the literature review chapter.

1.6.3 3rd Stage – Data Analysis and Interpretation

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In this stage, the law cases collected in the previous stage is converted

into information that is useful for the research. The relevant law cases collected

will be carefully reviewed, with special attention on the facts of the case, issues

and judgments presented by each case law. This stage also involves data

arrangement so that the information presented can be easily understood. The

information acquired in this stage determines whether or not the objective of the

research is achieved.

1.6.4 4th Stage – Writing

The last stage of the research process involves writing up and checking

of the writing. The author will also review the whole process of the research

to identify whether the research objectives have been achieved.

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CHAPTER 2

THE GENERAL DUTIES OF THE SUPERINTENDING OFFICER

2.1 Introduction

This chapter mainly deals with the ordinary S.O’s duties and under professional

engagement agreement. Basically his/her duty is to supervise the project9. He/she

will be held liable if does not perform duty up to the standard required10.

In carrying out his functions under a contract, the S.O owes a duty of reasonable

care and skill to the employer. If that duty is breached, the S.O will be liable in

damages to the employer for any resulting loss. This is what happened in West

Faulkner Associates v. Newham LBC11, where a contractor was in serious breach of

the obligation to maintain regular and diligent progress. The Court of Appeal held

that the architect should have served a notice determining the contractor’s

employment, and was liable to the employer for various losses flowing from the fact

that no such notice was served.

In considering the S.O’s functions, two areas of special importance relates to the

giving advice and information and to the monitoring of the construction work.

9 Clause 11.1 JKR Sarawak Form Of Contract PWD 75 (Ver. 2006)10 Bolam v. Friern Hospital Management Committee (1957) 1 W.L.R. 582 at p. 58611 ［1994］ 71 BLR 1.

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2.2 Who is the S.O?

The S.O is one of the common designations for the contract administrator12.

Other common designation of the contract administrator can be summarized in

Figure 2.1. Figure 2.1 basically shows the common designation the Contract

Administrator used in the form of contract. The designation of the Contract

Administrator is varying in different types of the contract due to the nature of the

project that will be administered. Though the designation is different, their basic duty

is the same which is to act as a Contract Administrator.

C:\Users\woontk\Desktop\Doc1.doc

12 Used in CIDB Standard Form of Contract (2000), JKR Sarawak Form of Contract (2006) and PWD 203/203A (2007)

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CONSTRUCTION

MANAGER

SUPERINTENDING

OFFICER/SO

Figure 2.1 Contract Administrators – Common Designations

(Source: H. Singh KS (2002), Engineering and Construction Contracts Management

– Commencement and Administration)

The word ‘S.O’ is the short form for ‘Superintending Officer’ is defined in

PWD 75 (Ver. 2006)13 as:

‘The person indicated by name or by office in the letter accepting the tender and

his successors in office or any other person from time to time appointed in

writing by the Employer and notified in writing to the Contractor as

Superintending Officer for the purposes of this Contract.’’

13 JKR Sarawak Form of Contract PWD 75 (Ver. 2006) Clause 1.1 at p 2

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CONTRACT

ADMINISTRATORS:

COMMON

DESIGNATIONS

PROJECT

DIRECTOR

EMPLOYER’S

REPRESENTATIVEENGINEER

ARCHITECT

His legal position will vary according to the function being performed. Usually

he will not be an employee of the employer (private consultant),14 but an agent, and

in some circumstances an impartial administrator of the contract. In those situations

where the professional is acting as agent, the employer will be liable in respect of

any acts performed in the scope of his authority, where express, implied or

ostensible15.

In 2000, the Construction Industry Development Board (CIDB) published their

standard conditions of contract for building works. These standard conditions

provides for the S.O to be a full member of a professional body connected within the

construction industry.16 Therefore the S.O is likely, under these standard conditions,

to be a professional architect, engineer or quantity surveyor (QS).17

Unlike CIDB, the PWD 75 (Ver. 2006) does not state any requirement for a

person to become the S.O. For JKR Sarawak, there can be two type of the

appointment of the S.O. The first one is the ‘in-house’ appointment whereby the

Divisional Engineer (DE) is appointed as the S.O18. Second, the appointment of the

S.O may be made from any of the professional private consultant.

When a Divisional Engineer is appointed as the S.O, his performance is known

as vicarious performance. Vicarious performance is performance by the employment

of a second party to undertake the task.19 The relationship between the parties may be

that of employer and employee-in which case the employer is required by common

law rules to accept responsibility and liability for the result of the work-or it may be

that of the government and the staffs-wherein the latter accepts responsibility for his

14 It should be noted that the contract between the employer and the architect/engineer is a personal one in the sense that the identity of the latter is an essential part of the contract:Corfield v. Grant (1992) 59 BLR 102.15 Smith, Palmer and Cooper, 1993 Construction Law Manual at p. 18316 Clause 1.1 CIDB Standard Form of Contract for Building Works (2000 Edition)17 Abraham and Singh, 2005 FIDIC – An Analysis of International Construction Contract at p 23318 Guide to Form of Contract at p. 619 Robinson, Lavers, George & Raymond (1996), Construction Law in Singapore and

Malaysia, atp.274

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work.20 The vicarious responsibility of the government for the acts of his staffs derive

from his own failure in direction and control over the operation and arises also in

certain exceptional cases of high risk.

It is a longstanding principle of the common law that an employer will be

vicariously liable for the tortious acts of an employee but not for the acts of an

independent contractor21. In Sweeney v Boylan Nominees Pty Ltd22 the High Court

affirmed that a principal is not vicariously liable for the negligent acts of an

independent contractor. This legal position is applied to the S.O who is the

government’s employee.

The professional private consultant engaged as the S.O by signing the

memorandum of agreement.23 The agreement is normally made between the

government and the consultant’s firm. The consultant firm is registered under the

Architects Act 1967 or Registration of Engineers Act 1967.

2.3 General duties

The S.O’s main duty is to check and confirm that the contractor had carried

out the duties as specified in the contract.24 These include the use of proper materials,

the right level of workmanship, and progress in accordance with the contract

20 Ibid21 Quarman v Burnett (1840) 151 ER 509 is usually cited as authority for this proposition.22 Sweeney v Boylan Nominees Pty Ltd t/as Quirks Refrigeration (2006) 227 ALR 46 (‘Sweeney’).23 Examples are BEM/JKR Form A (Revised 1/83) and BAM/JKR Form B (Revised 1/83)24 S.L. Tan, S.W. Poon, Syed M. Ahmed & Francis K.W. Wong (2003) Modern Construction Project Management at p. 122

14

requirement.25 The actual extent of the duty will depend on the type of contract and

the delegation by the S.O or approval by the client. In general, the S.O duties are

further described as below:

2.3.1 Examination of Site

It is part of the general duties of the architect to examine the site,26 to

ascertain whether it is suitable for the work to be carried out with a view to

determining the plan area available for the proposed works, and the nature of the

subsoil with a view to decide on the correct design for foundations or methods of

underground working.27 He must not rely on what he is told by a third person,28 nor

by a former agent of the employer.29 It would appear also to be part of his duty to

observe whether there are obvious rights of way, light30 and other private rights,

which might be effected by the proposed works.

2.3.2 Prepare and submit plans, specifications and quantities

Plans and the like must not only be complete and not defective, they must be

delivered within a reasonable time.31 What is ‘reasonable’ will be decided having

25 Ibid26 Keating (1969), Building Contracts at p. 22227 Moneypenny v. Hartland (1826) 2 C & P 378. & Columbus Co. v. Clowes (1903) 1 KB 24428 Columbus Co. v. Clowes (1903) 1 KB 24429 Moneypenny v. Hartland, supra30 Armitage v. Planner (1960) CLY 326 (CA)31 Underwood & Holt (1981) Professional Negligence at p. 70

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regard not only to the convenience of the contractors, but also that of the architect

and of the employer.32

The design must be in accordance with sound principles of building.33 It must

also be in accordance with the instructions of the employer. There is authority for the

proposition that an architect negligent in preparing specifications which do not

accord with the employer’s instructions, even though the employer has been

requested to examine them.34 It is submitted, however, that a modern court would

look closely at the actions of the employer in such a case, and judge whether all or

part of the negligence was attributable to him. Where the architect is instructed to

employ a novel method of construction, or incorporate some aspect of design against

his better judgment, failure of the building has been held to be consistent with the

exercise of proper skill.35

The quantities are usually taken out by the quantity surveyor, but if the architect

takes them out and is negligent in doing so, an action will lie.36 Moreover, if the

quantity surveyor takes them out and is obviously wrong, the S.O may be liable to

the employer.

Under the Clause 4.3 PWD 75 (Ver. 2006), duty was expressed as a duty to

furnish the contractor within a reasonable time, with such further drawings as are

reasonably necessary to enable him to carry out all of the S.O’s instructions, and with

any further details, which in the opinion of the S.O are necessary for the execution of

any part of the work.

32 Neodox Ltd v. Swinton & Pendlebury BC (1958) Unreported, QBD

33 Moresk Cleaners Ltd v. Hicks(1966 4 BLR 5034 Smith v. Barton (1866) 15 LT 29435 Turner v. Garland and Christopher (1853) Hudson’s BC 4th ed, Vol.2, p.1.36 McConnell v. Kilgallen (1878) 2 LR Ir. 119

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2.3.3 Estimates

If the architect is asked for an estimate of the cost of the proposed work he

should give an honest and careful estimate.37 He should not enter into a firm

undertaking that the estimate will not be exceeded, unless he discloses this to the

contractor before the building contract is entered into;38 failure to disclose

disqualifies him from carrying out his quasi-judicial duties under the contract.39

2.3.4 Recommending Contractors

The S.O does not guarantee the solvency or the capability of the building, but

it may be that it is his duty to make reasonable inquiries as to the solvency and

capabilities of the builder if he, rather that the building owner, is responsible either

directly or indirectly for the selection of the builder chosen to carry out the work,

particularly in an area which accustomed to practice and may be expected to have

local knowledge.40 In Heys v. Tindal,41 it was held by the jury that the employment of

a house agent to let property, imported an obligation to take reasonable steps to

ascertain the tenant’s solvency. Apart from a duty of care expressed above, an

architect will be liable to his employer, if he carelessly gives a positive

recommendation in favour of contractor.42

2.3.5 Supervision

37 Columbus Co. v. Clowes (1903) 1 KB 24438 Keating (1969), Building Contracts at p. 22239 Kimberley v. Dick (1871) L.R. 13 Eq. 140 Gajria, (2000), Building and Engineering Contracts in India (4th Edn) at p. 15041 (1860) 30 LJQB 36242 Hudson, Building Contract (11th Edn) at p. 331

17

The architect’s duties are to give reasonable supervision, and that means such

supervision as will enable him to certify that the work of the contractors have been

executed according to contract, and if he fails to give such supervision he is liable in

damages to his employer on account of the work which he passes but which does not

conform to the contract.43

He is not expected to notice matters which would require daily or even hourly

watching, but is, for instance, expected to check the bottoming of a cement floor

which will, when covered, not be open to inspection.44

In general, it is accepted that the S.O will visit the site about once a week.45

Clearly, the S.O will often employ assistants who will, on occasion, visit sites for

him and supervise on his behalf. As a matter of principle a master is liable

vicariously for his assistant’s acts, and that principle has been held to apply to S.O.

Thus, in Clemence v. Clark46, Groove J said:

“If an architect is entrusted with the general direction and superintendence of

the work, his duties could not be performed if he were expected to go over

individually every matter in detail, and if his certificate were held to be bad by

a court of law because he has not himself gone into every detail.”

Where an assistant is appointed, the law lays down the division of

responsibility between him and the S.O. Thus in Leceister Board of Guardians v.

Trollope47 an architect was held liable for the default by the clerk of works in laying

a ground floor without the necessary precautions against damp. Channell J said:

“I think there is no difficulty in seeing what are the respective functions and

duties of an architect and of a clerk of the works…the clerk of the works has to

see to matters of detail,…the architect is not expected to do so…the architect is

responsible to see that his design is carried out. That fairly indicates what the 43 Jameson v. Simon (1899) 1 F (Ct of Sess) 1211.44 Underwood & Holt (1981) Professional Negligence at p. 7145 Ibid46 (1880) Hudson’s BC 4th ed, Vol. 2 at p. 5847 (1911) 75 JP 197

18

respective duties of each are, but it leaves one in each case to say whether the

matter complained of is a matter of detail or a matter of seeing whether the

design is complied with… Here a protection was devised and it was an

essential part of the design. Now the architects admitted that they took no steps

to find out whether that was carried out, or whether it was not.”

The architect will still be liable for supervision which is the province of the

clerk of the works if he knows that the clerk of the works is unreliable48.

The standard and degree of supervision will also vary, it is thought, according

to the terms of the contract. So, if the contract provides that the final certificate of the

S.O is binding on the employer, more through supervision will be necessary.49

There is authority for the view that the S.O may vary the standard of work he

will accept, according to the price of the contract.50 In Cotton v. Wallis51, the

employer argued that the architect should not have given his certificate because of

some minor defects. The country court judge held that the architect had acted

reasonably bearing in mind the low contract price. On appeal the Court of Appeal

upheld the decision. Per Morris LJ:

“As I read the judgment of the learned country court judge, he takes the view

that it is reasonable to have in mind that the price of the house being built

was £1,910. The evidence satisfied the learned judge that that was a low

price, and I think he did not err in taking the view that, when measuring the

finish of the work, it was proper to have in mind the kind of house that was

being built and the price of that house. It seems to me only natural that, if

one house is being built at a great expense, and another at a very moderate

price, different quality in the work would be expected… I do not find that the

learned judge here erred in any way in principle when he said that the price

48 Saunders v. Broadstairs Local Board (1890) Hudson’s BC 4th Edn., Vol. 2, p. 164.49 Underwood & Holt (1981) Professional Negligence at p. 7250 Ibid51 (1955) 3 All ER 373

19

here was a low one, and when he tested the conduct of the architect by

considering whether he acted reasonably…”

In summary, the S.O must consider the price of the contract to decide the standard of

work that will be considered as reasonable.

2.3.6 Advice to the employer

The kind of matters on which it is reasonable to expect the S.O to give advice will

naturally vary with the type of project, the professional background of the S.O and so

on. However, some cases in which the S.O have been held to owe a duty of care may

give some indication.52 In the first of these,53 the architect greatly underestimated the

extent of work required to reinstate an old property. As a result the client, having

purchased the property, could not afford to refurbish it. In the second case54 the

architect, in preparing estimates of the cost of a project, completely overlooked the

effects of inflation. Once again the client was forced to abandon the project. In each

of these cases it was held that the architect was not entitled to any fees, since their

work was worth nothing to the client.

Another matter on which employer depend upon the S.O is advice about rights and

duties under the contract.55 It is extremely important that the S.O explains the terms

of the construction contract to the employer before the construction contract is

executed. In William Tomkinson and Sons Ltd v. Parochial Church Council of St.

Micheal and Others,56 the architect under a JCT minor works contract did not advise

the employer to take out insurance for the works. As a result, when damage to the

works caused losses far in excess of the contract value, the employer had no

insurance protection. The architect was held liable in negligence for the employer’s

52 Murdoch & Hughes (2008)Construction Contracts Law and Management (4th Edn.) at p. 25353 Ralphs v. Francis Horner & Sons (1987, unreported)54 Nye Saunders and Partners v. Bristow (1987) 37 BLR 9255 Murdoch & Hughes (2008)Construction Contracts Law and Management (4th Edn.) at p. 25356 (1990) 6 Const LJ 319.s

20

losses. Similar liability for failing to see that a contractor had the required insurance

in place has been imposed upon the project manager.57

2.3.7 Instructions to the contractor

The S.O has no general right under construction contracts to issue instructions to

contractors.58 However, in practice standard form contracts always contain a clause

permitting instructions to be issued.59 This is because the duration and complexity of

construction projects mean that conditions are likely to change, and it is recognised

that it may thus not be possible to deal in advance with every eventuality that may

arise.

Contractual clauses dealing with this matter are often very widely drafted. PWD 75

(Ver. 2006) for example, lists in Clause 11.3 (a) a large number of matters on which

the S.O may issue instructions. The contractor’s duty of compliance (under clause

11.3(b)) only applies to written instructions that the S.O is expressly empowered by

the conditions to issue. If any instructions are given verbally, the contractor can ask

the S.O to confirm in writing the provision under which the instruction is issued

within seven days. If not dissented from in writing by the S.O to the contractor

within a further seven days shall be deemed to be the S.O’s instructions.

2.3.8 Information to the contractor

57 Pozzolanic Lytag Ltd v. Bryan Hobson Associates (1999) BLR 267.58 Murdoch & Hughes (2008)Construction Contracts Law and Management (4th Edn.) at p. 25459 Ibid

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In addition to issuing instructions, the S.O has an important function as a

source of relevant information to the contractor. Under PWD 75 (Ver. 2006), this is

recognised by clause 4.3, which requires the S.O to furnish the contractor with one

duplicate of the contract documents certified on behalf of the employer, three sets of

the Contract Drawings and Specifications/unpriced Bill of Quantities. These

documents are to be furnished immediately after the execution of the contract.

An important question in this context is the extent to which the S.O may incur

personal liability to a contractor for inaccuracies in information provided. It has been

long settled that in drawing up plans, the architect or engineer does not guarantee

they are practicable, nor that bills of quantities are accurate.60 In principle, therefore,

contractors who wish to tender on the basis of such information must satisfy

themselves as to its soundness. However, there are limits to this principle. For

example, the S.O who fraudulently gives inaccurate information at the pre-tender

stage will be liable to the contractor. This is so even if the contract provides that the

contractor must not rely on any representation contained in the plans.61

There seems no reason why the S.O should not, in similar circumstances, be

held liable for a misstatement that is negligent rather than fraudulent. This was

accepted in principle by the Court of Appeal in J. Jarvis & Sons Ltd v. Castle Wharf

Developments Ltd, 62 where a quantity surveyor was alleged to have misrepresented

the planning position of a proposed scheme to one of the tendering contractors.

However, the Court held that there was no duty of care on the facts, since an

experienced design and build contractor could not reasonably be expected to place

reliance on such statements.

Liability for negligent misstatement was actually imposed in a New Zealand

case63 on an architect who negligently assured a contractor that he would receive full

payment from the employer for certain work. The contractor relied on this assurance

60 Murdoch & Hughes (2008)Construction Contracts Law and Management (4th Edn.) at p. 25561 S Pearson & Son Ltd v. Dublin Corporation (1907) AC 35162 (2001) 17 Const LJ 43063 Day v. Ost (173) 2 NZLR 385

22

in completing the job and, when the employer failed to pay, the architect was held

liable.

The most striking English case in this area is Townsends v. Cinema News,64 in

which a contractor had been held liable to the employer for certain breaches of

statute (installation of toilets in contravention of a by-law, and failure to serve

notices). The Court of Appeal held that, since the architect has led the contractor to

rely on him to serve the relevant notices and ensure compliance with the by-laws, the

contractor was entitled to recover from the architect the damages that he had to pay

the employer.

2.3.9 Inspection and monitoring of the contract work

The limited nature of the S.O’s obligation to monitor work is in any event

well recognized by the English Court65. By contrast, an Australian court held an

architect liable for the collapse of concrete that was poured between site visits, which

took place on a twice-weekly basis.66 This strict view of the architect’s duties should

also be compared with the case of Clayton v. Woodman, which is discussed below.

PWD 75 (Ver. 2006) clearly recognizes that the S.O is entitled to inspect all

work executed. The contractor’s basic obligation, imposed by clause 6.1 (a), is to

produce the building according to the contract documents. While the S.O will

naturally wish to check that this is indeed being done, the actual need to inspect

relates only to those matters required to be to the S.O’s satisfaction. In this context it

may be remembered that any such stipulation means that the work must be to the

reasonable satisfaction and not the absolute satisfaction of the S.O.

64 Townsends (Builders) Ltd v. Cinema News Property Management Ltd ［1959］ 1 All ER 7.65 East Ham BC v. Bernard Sunley & Sons Ltd ［1966］ AC 40666 Florida Hotels Pty Ltd v. Mayo (1965) 113 CLR 588

23

As part of the function of inspecting the contractor’s work, the S.O is given

considerable powers under clause 21 to carry out tests of any materials and to order

that work which has been covered up by other work should be opened up for

inspection. The cost of making good and restoring the covering work, and any work

found to be defective, depends on the status of the inspected work. If no defects are

discovered, then the contractor must be paid for the cost of opening up and making

good as if this was due to a variation. If the inspected work is defective, then this is

to be made good at the contractor’s expense.

The S.O clearly owes a duty of care and skill to the employer to detect bad

workmanship and defects.67 However, due to the limited nature of the duty to inspect

it cannot be said that every failure of detection will amount to negligence. Further,

while it is sometimes said that a similar obligation is owed to contractors, this seems

unlikely; they are responsible for their own monitoring of quality.68 The most that

can be said is that, where the state of the work is positively dangerous, there may be

an obligation to warn the contractor of this.69 Of course, common sense suggests that,

regardless of the strict legal position, the S.O who is aware of some defective work

should certainly communicate this to the contractor.

Mention of danger raises the issue of whether the S.O has power to control

the contractor’s method of working, especially when this method proves to be

dangerous. A power of this nature is undoubtedly given to the engineer by clause

13(2) of ICE 7. However, PWD 75 (Ver. 2006) contracts contain no such provisions,

and this has an important effect on the allocation of responsibility in case of

accidents, as is shown by two contrasting cases.

In Clayton v. Woodman & Son (Builder) Ltd,70 the claimant bricklayer was

injured by the collapse of a wall in which he was cutting a groove to take a concrete

floor. The architect had insisted that this existing wall be incorporated into the new

structure, rather than being demolished and replaced as the bricklayer had suggested.

67 Imperial College of Science & Technology v. Norman & Dawbarn (1987) 8 Con LR 10768 Murdoch & Hughes (2008)Construction Contracts Law and Management (4th Edn.) at p. 25769 Oldschool v. Gleeson (Construction) Ltd (1976) 4 BLR 10370 ［1962］ 2 QB 533

24

It was held that it was not the architect’s duty under the RIBA form of contract to

advise the builder on what safety precautions to take or how to conduct his

operations to take or how to conduct his operations (which specifically included

shoring up and supporting walls and floors). As a result, the architect was not liable.

By contrast, in Clay v. AJ Crump Ltd,71 an architect agreed that demolition

contractors preparing a site should leave a particular wall standing. This was at the

suggestion of the demolition contractors, and the architect did not personally inspect

the wall. The wall subsequently collapsed, killing two men and injuring the claimant,

an employee of the main contractors. On this occasion it was held that the main

contractors were entitled to assume, from the very fact that the wall had been left,

that it had been inspected and declared safe. The architect was accordingly liable in

negligence to the claimant.

2.4 Professional Engagement Agreement

The Government appoints the consultants to provide the professional services

for the Works. The basic professional services are described in Part A of the

Schedule to the Conditions of Engagement. The professional services to be provided

can be divided into preliminary stage, design stage, tender stage and construction

stage.

2.4.1 Preliminary stage

71 ［1964］ 1 QB 533

25

The professional services to be provided by the consultant at this stage are

shown in Part A Clause 1(a).72 In this stage, the consultant will normally deals with

any necessary investigation and survey of the proposed Works. After any

investigation and survey, the consultant will advise and consult the Government the

results by preparing the necessary reports and documents.

2.4.2 Design Stage

The professional services to be provided by the consultant at this stage are

shown in Part A Clause 1(b).73 In this stage, the consultant will prepare the designs

and tender drawing. He is also responsible for pre-qualification of contractors for the

tendering process. Apart from these, he will be responsible for preparing conditions

of contract, specification, schedule and bills of quantities to enable the Government

to obtain tenders and award a contract for carrying out the Works.

2.4.3 Tender Stage

The professional services to be provided by the consultant at this stage are

shown in Part A Clause 1(c).74 He is responsible for advising the Government as to

the suitability for carrying out the Works of the person, firms or companies tendering

and as to the relative merit of tender, including relative merits of alternative tenders,

prices and estimates received for carrying out the Works.

2.4.4 Construction Stage

72 BEM/JKR Form A (Revised 1/83)73 BEM/JKR Form A (Revised 1/83) and BAM/JKR Form B (Revised 1/83)74 BEM/JKR Form A (Revised 1/83) and BAM/JKR Form B (Revised 1/83)

26

The professional services to be provided by the consultant at this stage are

shown in Part A Clause 1(d)75 as below:

(a)advising on and preparing normal contract documents, including Letter of

Acceptance for carrying out the Works or part thereof;

(b)inspecting and testing during manufacture and installation such electrical and

mechanical materials, machinery and plant supplied for incorporation in the

Works as are usually inspected and tested by Consulting Engineers, and

arranging and witnessing acceptance tests;

(c)advising the Government on the need for special inspection or testing other

than that referred to in Sub-clause (ii);

(d)advising the Government on the appointment of site staff;

(e)preparing any further bar bending schedules, designs and drawings;

(f)examining and approving the Contractor’s proposals and working drawings;

(g)making such visits to site considers necessary to satisfy himself as to he

performance of any site staff and to satisfy himself that the Works executed

generally according to contract and otherwise in accordance with good

engineering practice;

(h)giving all necessary instructions to the Contractors;

(i)issuing all certificates as required in the contracts;

(j)performing any duties which the Consulting Engineer may be required to carry

out in any contract for the execution of Works;

75 BEM/JKR Form A (Revised 1/83)

27

(k)delivering to the Government on the completion of the Works such records

and manufacturer’s manuals as are reasonable necessary to enable the

Government to operate and maintain the Works; and

(l)deciding any dispute or difference arising between the Government and the

Contractor referred to the Consulting Engineer for his decision provided that

his professional service shall not extend to advising the Government

following the taking of any step in or towards any arbitration or litigation in

connection with the Works.

The consultant shall exercise all reasonable skill, care and diligence in the

discharge of his professional services as listed above. If in the performance of his

professional services the consultant has discretion exercisable as between the

Government and the Contractor, the consultant shall exercise his discretion fairly.

2.5 The S.O owes duty to clients and third parties

A contractual duty of care is owed to the other party to the contract.76 For the

S.O, this is usually to his client. The S.O has a duty to use reasonable care and skill

in the course of his engagement. If not expressly agreed, this duty is implied into

contracts. This extent of duty was described by McNair J. in Bolam v. Friern

Hospital Management Committee.77

‘Where you get a situation which involves the use of some special skill or

competence, then the test as to whether there has been negligence or not is

not the test of the man on the top of a Clapham omnibus because he has not

76 Speaight and Stone (2004), Architect’s Legal Handbook, 8th Edition at p. 36777 (1957) 1 W.L.R. 582 at p. 586.

28

got this special skill. The test is the standard of the ordinary skilled man

exercising and professing to have that special skill. A man need not possess

the highest expert skill; it is well established law that it is sufficient if he

exercises the ordinary skill of an ordinary competent man exercising that

particular art.’

In summary, the S.O will be tested against the conduct of other S.O.

The S.O’s duties to his client are defined by the contract between them. Third

parties, such as contractors or suppliers, may not have a contract with the S.O.

If there is no contract between them and the S.O, any remedy they may have

against the S.O will be in tort, or in some cases, statute.78 A common law duty in the

tort of negligence can be summarized as being a duty to take care not to cause injury

or loss to those whom it is foreseeable might be affected by the acts causing such

damage.

The House of Lords revolutionized the law of tort in Murphy v. Brentwood

District Council79. This case severely limited the remedies available to third parties

by restricting the losses which can be recovered in tort. Recoverable losses are now

limited to personal injury and physical damage to property. Pure economic loss

cannot be recovered, and that includes reduction in the value of property as a result

of physical damage. Consequently there is usually no duty owed in tort to protect

building owners or occupiers from the cost of repairing defects in their buildings or

financial losses incurred by reason of remedial works.

78 Speaight and Stone (2004), Architect’s Legal Handbook, 8th Edition at p. 36879 ［1990］3 WLR 414

29

CHAPTER 3

THE SUPERINTENDING OFFICER’S DUTIES UNDER JKR SARAWAK

FORM OF CONTRACT PWD 75 (VER. 2006): SUPERVISION

30

3.1 Introduction

The preceding chapter elaborated on normal duties of the S.O and his duties

under professional engagement agreement. This chapter mainly deals with the S.O’s

duties under PWD 75 (Ver. 2006). The discussion is based on the clauses in the

PWD 75 (Ver. 2006) and will focus on the supervision duties.

The S.O has many duties during the construction phase. Hudson, a practising

architect as well as a lawyer, has suggested a list of duties of the S.O’s duties. One of

them is to supervise the work, doing his best to ensure in the employer’s interest that

the contract is complied with, in every respect. 80 Therefore, during supervision, the

S.O is responsible to monitor the Contractor's design, construction, commissioning

and maintenance of the project and to ensure that the quality of materials and

standard of workmanship is in accordance with the contract documents.

3.2 The S.O’s proactive duties

The S.O’s proactive duties are set out in the Table 3.1, corresponding to the

clauses of the PWD 75 (Ver. 2006). Where a duty includes the obligation to give

notice to the employer or the contractor or to both, the word ‘Notify’ in bold type is

used. The proactive duty of the S.O is shown in italics with the first letter capitalised.

80 Gajria, 1999 Law Relating to Building and Engineering Contracts in India at p. 100

31

Table 3.1 The S.O’s proactive duties under PWD 75 (Ver. 2006)

Sub-clause No. Duties where an action is initiated by the S.O

11.4

-Obtain the approval of the Employer before exercising any

authority for which he is required to obtain such approval, as set out

in Appendix of the form

11.1

-Appoint the S.O’s representatives

-Delegate to the S.O’s representatives, in writing, any of the duties

and authorities vested in the S.O, with a copy to the contractor.

32

11.2 - Appoint assistants to the S.O or the S.O’s representatives. Notify

the contractor of the names, duties and scope of authority of

assistants.

4.3 - Provide 3 set of the drawings to the contractor, free of charge.

5 (e)

- Determine, after due consultation, EOT and amount of costs, if

any, due to failure or inability of the S.O to issue any dug or

instruction for which notice has been given under sub-clause and

Notify the contractor accordingly.

Table 3.1 The S.O’s proactive duties under PWD 75 (Ver. 2006) (Cont’d)

Sub-clause No. Duties where an action is initiated by the S.O

30.1 - (The S.O shall take into account any failure by the contractor to

submit drawings, specifications, or other documents which he is

required to submit under the contract.)

28

- Determine the provisional sum to be used, in whole or in part, and

instruct and Notify the contractor accordingly with a copy of the

notification to the employer.

33

26.5 - Consider and, if appropriate, Instruct the contractor on the matter

of payments to the sub-contractors

26.6 - Consider and, if appropriate, Demand the contractor reasonable

proof that all payments less retention included in previous

certificates for sub-contractors have been discharged. If proof is not

supplied, Follow the procedures laid down in sub-clause 26.6

38.2

- Upon the issue of the practical completion of the Works, Certify

for payment one half of the relevant retention money. Upon the

issuance of Final Certificate, Certify the second half of the relevant

retention money.

Table 3.1 The S.O’s proactive duties under PWD 75 (Ver. 2006) (Cont’d)

Sub-clause No. Duties where an action is initiated by the S.O

39.1 - Within three (3) months after the expiry of defect liability period

or three (3) months after the issue of Certificate of Making Good

Defects under clause 37, Issue a Final certificate to the contractor.

37.2 - Within the period, and the procedure set out in the sub-clause 37.1,

Issue to the contractor a schedule of defect.

34

37.3 - If the contractor is unable or unwilling to make good the defect,

Determine, all costs consequent thereon which are recoverable from

the contractor by the employer. Notify the contractor accordingly.

9.1 (b) - Comply with procedures laid down in sub-clause 9.1 (b) regarding

notices and change of address.

3.3 The S.O’s reactive duties

The S.O’s reactive duties are set out in Table 3.2, corresponding to the clauses of

the conditions of contract. Where the duty includes the obligation to give notice to

the employer or the contractor or both, the word ‘Notify’ in bold type is used. The

reactive duty or authority of the S.O is shown in italics with the first letter

capitalised.

Table 3.2 The S.O’s reactive duties under PWD 75 (Ver. 2006)

Sub-clause no. Duties which are in response to an action initiated by the

employer or the contractor

18 & 19 - If requested and if appropriate, Consent to the contractor’s removal

of equipment, temporary works, and material from the site.

35

34.2

- When the contractor submits a statement at completion (within 30

days after receipt of such notice) in writing, and if appropriate,

Certify payment in accordance with sub-clause 33.1

44.3

- Where the employer enters upon the site and the works and

terminates the employment of the contractor, Fix, Determine and

Certify as soon thereafter as may be practicable a valuation of the

work done under the contract and unused or partially used materials,

any contractor’s equipment and any temporary work. Furthermore, if

appropriate, Instruct the contractor to assign to the employer the

benefits of agreements for the supply of goods or materials or

services and/or for the execution of any work for the purposes of the

contract, which the contractor may have entered into.

Table 3.2 The S.O’s reactive duties under PWD 75 (Ver. 2006) (Cont’d)

Sub-clause no. Duties which are in response to an action initiated by the

employer or the contractor

45 ( c )

- If the contractor is terminated under the provisions of the sub-

clause 45(a), Determine after due consultation, any sums payable

under sub-clause 45(c) and Notify the contractor with a copy to the

employer.

36

43.3(aa) - If a dispute is referred to the S.O in writing, he shall as soon as

possible thereafter, Notify his decision to the Contractor.

42

- If notified by the contractor under sub-clause 42 that the work will

be suspended or the rate of work reduced, and following such

suspension or reduction the contractor suffers delay or incurs costs,

Determine after due consultation amount of costs to be added to the

his claim and Notify the contractor.

3.4 The S.O’s passive duties

The S.O’s passive duties are set out in Table 3.3, corresponding to the clauses

of the conditions of contract. Where the duty includes the obligation to give notice to

the employer or the contractor or to both, the word ‘Notify’ in bold type is used. The

passive duty or authority of the S.O is shown in italics with the first letter capitalised.

Table 3.3 The S.O’s passive duties under PWD 75 (Ver. 2006)

Sub-clause no. Duties expressed as rules to be followed

11.1 (c ) (i)

- The operation of clause 11.1 (c ) does not imply approval by the

S.O nor does it prevent him from rejecting such material or other

matters referred to in the clause.

37

28.1 (a)

- The S.O, as a rule, has the authority when necessary, to issues

instructions in respect of the provisional sum included under the

contract.

44.1 - The S.O, as a rule, has the authority, when necessary, to certify, if

appropriate, to the contractor, any default by the contractor.

3.5 The S.O as a supervisor

Clause 11.1 of PWD 75 (Ver.2006) on the role of the S.O during construction

provides some insight into supervision, but unfortunately it deals mainly with the

recommendation that the S.O should be appointed to act reasonably and be timely in

carrying out his service inclusive of pre-contract and post activities. This clause still

leaves unanswered the question of whether supervisions mean inspecting or

overseeing or something beyond those functions. Obviously, it does not mean one

supervisor for each worker. In the PWD 75 (Ver.2006), the S.O as a supervisor is

expected to monitor, through inspection and testing, the work being carried out and

to make sure that on completion the employer, for whom the project has been

constructed, has a project completed in accordance with the contract and with any

supplementary instructions which may have been given. The main aspects which

need to be monitored by the S.O are:

(a) compliance with the specified quality;

(b) progress in accordance with the planned programme;

(c) budget control in accordance with the cost plan; and

(d) compliance with other matters specified, such as safety,

environmental controls, etc.

38

The relevant clause of the PWD 75 (Ver. 2006) dealing with these four

aspects include clauses 6, 7, 14 and 39. In considering these clauses, it should be

borne in mind that the contractor must employ supervisory staff who should also

ensure the quality of the work being executed through direct contact with the site

personnel. Such contact includes giving direct instructions which no one else,

including the S.O, can give.

3.6 Nature and Meaning

The terms supervision, have rarely been ascribed an exact definition. A

relatively recent attempt to explain the meaning was made in the English case of

Equitable Debenture Assets Corporation Ltd v. William Moss Group and Ors81

where Newey J proposed a working definition as listed below:82

Supervision of construction involves the ‘Architect’ for the purposes of the

form of contract to inspect the works as they proceeded until practical

completion…

It has been argued that there is a distinction between ‘supervision’ and

‘inspection’ as the latter, in certain circumstances, imposes a lesser duty than the

former.83 However, this is subject to the caveat that in the absence of express

contractual provisions to the contrary, the courts will tend to imply a duty of

supervision rather than inspection.84

3.7 Purposes

81 (1984) 3 Constr. LRI82 In the contest of the building contract83William Tompkin and Sons v. St. Micheal in the Hamlet (1991) Chartered Surveyor Weekly 4 July84 Alexander Corfield v. David Grant (1992) 59 BLR 102

39

The purposes of supervision, namely85:

- To ensure that the works are carried out by the contractor in accordance with

the requirements of the engineering and construction contract at hand; and

- To enable the S.O to discharge his obligations to supervise/inspect as

stipulated in the Conditions of Engagement and/or the applicable statutory

provisions.

The said purposes are neatly summed up by Keating in the following words in

terms of works involving the S.O:86

It is part of the normal duties of the architect to supervise the work and there

is implied such authority as is necessary to ensure that the work is carried

out according to the terms of the contract.

It can be summarized that the S.O duty is to supervise the work in accordance with

the drawings and the specifications.

3.8 Duration

Although the critical factor determining the duration of supervision to be

undertaken by the S.O is the very nature of the works under the contract itself, the

limiting element is the actual duration of such service expressly agreed upon by the

employer and the S.O. At the very least, such supervision should cover the period up

to practical completion.87 More often than not, the supervisory role extends up to the

end of the Certificate of Making Good of Defects as the contractor’s rectification of

85 Singh H.KS (2002), Engineering and Construction Contracts Management – Commencement and

Administration at p. 230.86 D Keating, Building Contracts (6th Edn) at p. 20187 Singh H.KS (2002), Engineering and Construction Contracts Management –

Commencement andAdministration at p. 230.

40

defects and his undertaking of the relevant servicing and maintenance have to be

necessary supervised/inspected.88

3.9 Level of Supervision Required

It is clear that there is a primary responsibility for the S.O especially

‘qualified person’ to supervise/inspect the works under the contract. The next

question that begs an answer resolves around the level of such supervision required,

i.e. concerning both ‘quality’ and ‘quantity’ facets inclusive of the identification of

the elements/activities requiring such consideration. The possible sources of an

answer to the above query can be89:

1. the conditions of engagement of the S.O especially the terms governing the issue

of supervision; and/or

2. the applicable statutory provisions imposing such a duty.

However, none of the above references are much use either because of the

divergence in ‘quality’ and/or ‘quantity’ prescribed or the widely differing

terminology adopted.

Upon reviewing the said sources, the prevailing forms of supervision required

can be reduced to the following:

(a) Full time supervision90 – more onerous and/or meticulous form of supervision

(b) Part-time supervision91 - lesser and not so burdensome form of supervision

88 Ibid89 Ibid90 See Clause 8.1 BEM Form 199991 Ibid

41

To appreciate the level of supervision actually required in the eyes of the law,

it is pertinent to look at some authorities who have expounded certain views on the

matter; principal extracts of which are reproduced below:

Keating in ‘Building Contract’ believes that the level of supervision is not to the

extent that the S.O must be at the site the whole time:92

The architect must give such reasonable supervision to the works as enables

him to give an honest certificate that the work has been properly carried out.

He is not required personally to measure or check every detail, but should

check substantial and important matters, such as, for example the bottoming

of a cement floor, especially if failure to do so will result in works being

covered up and therefore not being capable of inspection at a later stage…

Meanwhile Lord Justice Clerk in Jameson v. Simon93 held that the S.O must

supervise the important work before they are covered:

… it is contended that the architect cannot be constantly at work, and this is

obviously true. But he or someone representing him should undoubtedly see

to the principal parts of the work before they are hidden from view…

According to John Uff 94, there is no accurate amount of supervision since it depends

on the nature of the work:

The amount of supervision required depends on the nature of the works. The

building of a house may require visits every two weeks; while engineering

operations may require constant attention from a resident staff… but

whatever the frequency of inspections, they must be sufficient to check

important items, especially those which will be covered up by the later

work…

92 At p. 21393 (1899) 1 F (Ct of Sess) 1211:7 SLT 133.94 Uff, Construction Law (5th Edn) at pp 180 and 181

42

Robinson and Lavers95 examine the subject in the context of the Singapore scenario,

opining:

… the key to fulfilling the supervision obligation can be expressed as ‘quality’

rather than ‘quantity’. Even the rigorous Singapore regime does not expect constant

supervision from the QP personally, although the presence, during the key structural

phases, of the site supervisor is mandatory, so that the supervision certificates

required by the DBCD can be fully completed. There is no real conflict between this

expectation and the common law view expressed in Jameson v. Simon by the Lord

Justice Clerk…

Therefore, the adequate supervision should be access by the quality of the

time spent on site and not the quality.

3.10 Reasonable skill, care and diligence

A contractual duty of care is owed to the other party to the contract. For the

S.O, this is usually his client. The S.O has a duty to use reasonable care and skill in

the course of his engagement. It is expressly agreed in BEM Form (1999) as below:

Engineer’s Agreement BEM Form (1999)

Clause 5.1 stipulates:

The Consulting Engineer shall exercise all reasonable skill, care and diligence

in the discharge of the professional services agreed to be performed by him.

If in the performance of his professional services the Consulting Engineer has

a discretion exercisable as between the Client and the Contractor, the

Consulting Engineer shall exercise his discretion fairly.

95 Robinson and Lavers Construction Law in Singapore and Malaysia (2nd Edn) at p. 150

43

The extent of this duty was described by McNair J. in Bolam v. Friern

Hospital Management Committee:96

‘Where you get a situation which involves the use of some special skill or

competence, then the test as to whether there has been negligence or not is

not the test of the man on the top of a Clapham omnibus because he has not

got this special skill. The test is the standard of the ordinary skilled man

exercising and professing to have that special skill. A man need not possess

the highest expert skill; it is well established law that it is sufficient if he

exercises the ordinary skill of an ordinary competent man exercising that

particular art.’

So the courts recognize that failure is not conclusive evidence of breach of

duty. The S.O can defend himself and avoid liability by showing that he used

reasonable skill and care. In this respect the S.O differs from the builder and does

not, as a rule, guarantee that he will achieve the desired end result.

3.11 Supervision

The S.O under the terms of their employment will normally be required to

visit the site, at intervals appropriate to the stage of construction, to inspect the

progress and quality of the works and to determine that they are being executed in

accordance with the contract documents.97 While on site, it is often possible for them

to make sure that problems, which are bound to arise even on the smallest project,

96 (1957) 1 W.L.R. 582 at p. 586.97 Hacket, Robinson and Statham (1999) The Aqua Group Guide To Procurement, Tendering

&Contract Administration at p. 258

44

are satisfactorily resolved. However, the S.O is not normally required to make

frequent or constant inspections. The term ‘inspection’ has far reaching implications,

implying a depth and rigour of examination to which many the S.O would not wish

to be committed, and for which they might be open to legal recourse should any

problems arise arguably should have been discovered during ‘inspections’. The term

‘observation’ is less onerous. Some bespoke forms of agreement and contract

describe the architect as having to ‘observe’ the work on site.

The nature and extent of supervision arrangements will depend on the size

and complexity of works98. On a small project, for example, the contractor may be

able to rely on a competent general foreman, while on large projects, if the job is to

be properly supervised, a number of foremen and assistants may be required, all

working under a site agent or a contracts manager.

Similarly, the S.O on a small project may be able to undertake his normal

duties by periodic visits; however on large and complex projects, one or more S.O

representatives or assistants to the S.O may be needed.99 There will be S.O

representatives acting pursuant to PWD 75 (Ver. 2006) clause 11.1(d), ‘as inspector

on behalf of the Employer under the directions of the S.O’.

The role of the S.O representatives may vary slightly depending on whether

the appointment is made by the employer or the S.O. If appointed by the employer,

the role may approach that of a project manager, looking after the employer’s

broader interests.100

3.11.1 Routine site visits

98 Ibid99 Ibid100 Hacket, Robinson and Statham (1999) The Aqua Group Guide To Procurement, Tendering & Contract Administration at p. 259

45

The S.O will normally have more time to observe the work when making

routine site visits than on those occasions when a formal site meeting is held.101 Site

visits which are followed by site meetings shall thereafter be scheduled on a

forthnightly or monthly basis.102

The S.O and their representatives are given right of access to sites under most

forms of contract, as well as places where work is being fabricated by contractors

off-site.103

As a matter of safety and courtesy, the S.O should make his presence on site

known, preferably by prior arrangement, to the S.O’s representatives and the site

agent.104 The latter will normally accompany the visiting S.O around the job. The S.O

should never give instructions to a workman directly. The site agent or general

foreman employed by the main contractor is usually the only person designated as

‘the competent person-in-charge’ under the PWD 75 (Ver. 2006) to receive and act

upon the S.O’s instructions. Any oral instructions given during a site visit should be

confirmed in writing.

When making a site visit to observe the works it is easy to be distracted and

to overlook items that require attention. It is a good plan, therefore, for the S.O to list

in advance particular points to be looked at and any special reason for doing so. For

this purpose a standard checklist is a helpful aide memoire. Provided that the

contents of such a list are of a general nature, they can then be amplified or adapted

for each job according to the type of work and form of construction involved. 105

101 Ibid102 Clause 6.5.4 Project Management & Administration JKR-CP-PM-01 (2009) at p. 6103 Ibid104 Ibid105 Hacket, Robinson and Statham (1999) The Aqua Group Guide To Procurement, Tendering

&Contract Administration at p. 260

46

It is important that accurate and full records are kept of all site visits, together

with the results of any tests ordered or completed. One of the key reasons the S.O

visits a site is to observe and check the quality of the contractor’s work against the

agreed method statement.106 Carefully structured reports should contain site

photographs, notes and sketches.

3.11.2 Consultant’s site visits

In addition to the S.O, the consultants will also make regular site visits to

observe the works.

Depending upon the nature of the work, it is often necessary, in the early

stages of a project, for the structural engineer to confirm or adjust foundation designs

following excavation and to advise on work necessary to stabilise existing buildings.

Subsequently, the structural engineer’s main concern is in the testing of concrete and

other structural elements.

Once the services installations are under way, the services consultants are

likely to undertake site visits to ensure that the works are meeting the specified

requirements.

3.11.3 Site Diary

106 Ibid

47

T he site diary (Borang PWD 15)107 is a formal record of the progress of the

works including any events which may have affected the progress and quality of the

finished works. This document usually includes:108

• The date and weather conditions

• The number of workers in various trades

• Materials delivered to the site, the quantity used and retained

• Items of plant on site, working or idling, including reasons for being idle

• Any concreting activity, the location and quantity of the mixes poured

• A brief description of the completed work with the approximate amount done

• Any work carried out in connection with the utility service

• Instructions issued to the contractor

The site diary must be kept in safe custody at the Site from the date of

commencement of the work to the date of its completion, after which the site diary

must be kept in safe custody in the office of the S.O.

One of the supervisory staff must be specifically assigned the responsibility

of maintaining and safekeeping of the site diary at the Site, apart from his normal

duties. Entries in the site diary must be made daily. An authorised agent of the

Contractor must sign the site diary each day as acknowledgement of the accuracy of

the entries made. For this purpose, the officer assigned the responsibility of

maintaining the site diary and the authorised agent of the Contractor must meet at the

end of each day to examine and agree on the accuracy of the entries made.109

To ensure that it is properly maintained by the officer assigned the

responsibility of the same; the site diary must be checked by his superiors and the

Superintending Officer each time they visit the site.110

107 Clause 6.5.5 Project Management & Administration JKR-CP-PM-01 (2009) at p. 6108 S.L. Tang, S.W. Poon, Ahmed S.M. and Francis K.W. Wong, (2003) Modern Construction Project Management at p 128109 Clause 3.3.18(d) Manual of Instruction JKR Sarawak (2006)110 Clause 3.3.18(e) Ibid

48

3.11.4 Monthly reports

This report is intended to be read by members of the owner’s organisation as

well as the project team. It is often presented to the owner when the monthly

requisition is submitted and may be part of a special administrative meeting that

includes a larger number of owner representatives-for example, the financial people.

It serves as an executive document and is often distributed to the owner’s

management. The format is usually worked out between the owner and the contractor

at the start of job. It includes a narrative of the job progress to date, a list of

subcontractors under contract, cash flow actual and projected, an updated schedule

with critical path shown, equal opportunity goals and actual, safety report, log of

construction change requests, change orders, and shop drawings submittals.111 It is, in

effect, a summary of the project on a monthly basis.

Monthly reports contained at least the following information:112

• Contract Particulars

• Physical Progress

• Financial Progress

• Photographs

• Critical Issues

3.11.5 Weekly Report

111 Gould and Joyce, (2000) Construction Project Management at p. 322112 Clause 6.5.6 Project Management & Administration JKR-CP-PM-01 (2009) at p. 6

49

The Weekly Report summarizes the progress of work in a particular week

and includes other relevant information such as problems which have caused delays,

together with the course of action being taken to overcome them.113 This is a report

sent regularly to the S.O by the S.O Representatives.

3.11.6 Site Meeting Minutes

Site meetings, chaired by the S.O or S.O representative, are held forthnightly

or monthly basis114. The meeting is attended by the S.O’s supervisory staff, the

contractor’s representatives and sub-contractors. Problems encountered, the work

programme and progress recorded, actions to be taken etc., together with any other

relevant matters will be discussed and resolved at the meeting.115 After the meeting, a

copy of the minutes is sent to the contractor for his confirmation, retention as well as

action if necessary.

3.11.7 Progress photographs

Progress photos and other forms of visual recording can be taken periodically

or when a specific event warrants it.116 Photos and videos record work progress in a

way that narrative and other reports cannot. Videos and time-lapse photography

capture methods, process, and progress.

113 S.L. Tang, S.W. Poon, Ahmed S.M. and Francis K.W. Wong, (2003) Modern Construction Project Management at p 129114 Clause 6.5.4 Project Management & Administration JKR-CP-PM-01 (2009) at p. 6115 S.L. Tang, S.W. Poon, Ahmed S.M. and Francis K.W. Wong, (2003) Modern Construction Project Management at p 130116 Gould and Joyce, (2000) Construction Project Management at p. 322

50

Digital cameras are a way of sharing this information electronically. Details,

conditions around the site, quality of installation, progress over time, and critical

activity sequences all can be captured much more vividly in a visual format. The

primary intent of progress photos is to disclose the quantity and kind of work that

was completed since the last batch of photos was taken.117 The photos should be

labelled with the date they were taken and some notation regarding location and

subject matter. As with other types of records, photos should be stored so that they

are readily retrieved.

3.11.8 Samples and testing

The S.O may call for samples of various components and materials used in

the building to be submitted for approval, in order that they can satisfy themselves

that they meet the specified requirements of the employer and, where applicable, the

local authority. Some of the items, of which samples would normally be required,

are:118

• External cladding materials such as facing bricks, artificial and natural stone,

precast concrete, marble, terrazzo, slates and roofing tiles

• Internal finishes such as timber, joinery, ironmongery, floor tiles and wall

tiles

• Services such as plumbing components, sanitary goods and electrical fittings

In addition to samples of individual components or materials, the S.O will

often require sample panels to be prepared on the site to enable them to judge the

effect of the materials in the situations in which they will be used, for example, a

117 Ibid118 Hacket, Robinson and Statham (1999), The Aqua Group Guide To Procurement, Tendering

&Contract Administration at p. 263

51

panel of facing bricks to demonstrate a particular bond or pattern, the colour of

mortar and type of pointing.119

It is also quite normal to require laboratory tests of basic materials such as

concrete.120 The testing of concrete should be carried out on a regular basis. Cubes

should be cast from each main batch of concrete used, and each cube should be

carefully labelled and identified. An approval laboratory should carry out the tests

and the test reports should be submitted by the contractor to the S.O. Full instructions

for such testing procedures are usually included in the specification.

The crushing strength of bricks may also be tested in a laboratory although

unless the design requirements are particularly stringent a certificate from the

manufacturer giving their characteristics may well suffice.121

If required, manufacturers of external cladding will provide test rigs not only

to investigate and demonstrate the appearance and structural performance of their

products but also to test for water penetration under simulated wind pressure.122

Malaysian Standard Specifications and Building Specifications are specified

for many building materials, components and processes, and in carrying out tests it is

essential to refer to the appropriate standard or code to ensure that the requirements

are complied with. In addition, the Malaysian Standard Specifications set down

acceptable tolerances for manufactured goods. Copies of all relevant standards and

codes should always be kept on site by the clerk of works or the contractor.

119 Hacket, Robinson and Statham (1999), The Aqua Group Guide To Procurement, Tendering &

Contract Administration at p. 263120 Ibid121 Ibid122 Ibid

52

The S.O is empowered under most forms of contract to order tests and also

the removal of defective work from site-a notice merely condemning the work is

insufficient, and clauses of contracts (for example clause ) are formulated to ensure

fair play.123

3.12 Conclusion

Generally, there hardly exists any formula governing the manner or intensity

of supervision that is expected of the S.O. If this is not established by the parties

themselves, it is then left to the law to imply both the ‘quality’ and ‘quantity’ of such

practice.

The amount of supervision required depends on the nature of works, e.g. it is

usually common for there to be more full time or standing supervisions for

engineering works as compared to the building works.

In the final analysis, both the ‘quality’ and quantity of the supervision must

meet the following criteria:

(a) these must be reasonable for the works involved;

(b) the supervision must be sufficient to check the important elements, e.g. structural

elements, etc, and items that will be covered up by later work or may be ‘cast-in’;

and

(c ) the supervision undertaken must meet the obligations of the parties under both

the engineering and/or construction contract and the professional services agreement.

123 Hacket, Robinson and Statham (1999), The Aqua Group Guide To Procurement, Tendering &

Contract Administration at p. 263

53

As a general rule, full time or standing supervision124 is normally required for:

- Works that will either be ‘cast-in’ or covered up by the later works; and

- Important elements or activities, e.g. piling work, structural work, work

below ground level, etc.

To undertake this duty, full time resident site personnel, e.g. resident

engineer, clerk-of works, etc are usually employed either by the employer or the

professional although the latter remain ultimately liable for any defaults/breaches;

Part time or periodic supervision is expected of the S.O for the remaining

elements or activities of the works. This is not necessarily limited to ‘on-site’ matters

but may extend to ‘off-site’ inspections at the fabrication yards, manufacturer’s

premises, etc. depending on the nature of the items or activities being subject of such

checks.

CHAPTER 4

124 Or constant supervision

54

THE SUPERINTENDING OFFICER’S SUPERVISORY DUTIES

4.1 Introduction

The preceding chapter elaborated a S.O's duties and roles. The S.O must

perform his/her duties up to the standard of care expected of him as a professional

man: ‘A professional man must bring to his task 'a fair, reasonable and competent

degree of skill,'125 and the usual way of testing this is to ask 'whether other persons

exercising the same profession or calling, and being men of experience and skill

therein, would or would not have come to the same conclusion as the defendant'.126’

What is considered “a fair, reasonable and competent degree of skill? Since there is

no complete manual or guideline on how the S.O should carry out or perform their

supervisory duties, so disputes may arise.

Even though it had been outlined in the above paragraph concerning on how

the S.O can perform his supervision duties, the problem of defining the extent of his

supervisory duties still exist. As Wallace stated that in the book Hudson’s Building

and Civil Engineering Contract:

A mere request to act as an Architect, Engineer or Quantity Surveyor or

Project Manager in connection with the building project without specifying at

the outset, the sentence required of them may lead to doubt or disputes as to

what are the respective rights and duties of the parties, particularly when more

than one consultants are engaged.

Therefore, it is important to really define what kind of actions or scopes in

supervision is to be implemented by the S.O. This chapter looks into the nature of

125Lamphier v. Phipos (1831) 8 C. & P. 475, 479126Chapman v. Walton (1833) 10 Bing. 57, 63

55

the S.O’s supervisory duties based on the Conditions of Engagements, reference

books, supervision manuals, law journals and law reports.

4.2 Duty of Care and Standard of Care

Atiyah (1981) stated that “generally speaking, contractual obligations are

absolute and absence of fault is no defence”. This statement shows that, contractual

parties have a strict liability to really perform according to the contract. Does this

apply to the S.O duties in supervising a project?

The test of the standard was described by McNair J. in Bolam v. Friern

Hospital Management Committee (1957) 1 W.L.R. 582 at p. 586.

‘Where you get a situation which involves the use of some special skill or

competence, then the test as to whether there has been negligence or not is

not the test of the man on the top of a Clapham omnibus because he has not

got this special skill. The test is the standard of the ordinary skilled man

exercising and professing to have that special skill. A man need not possess

the highest expert skill; it is well established law that it is sufficient if he

exercises the ordinary skill of an ordinary competent man exercising that

particular art.’

Further to the above case, the standard of care for an architect was defined by

Judge Windeyer in the Australian case of Voli v. Inglewood Shire Council:

An architect undertaking any work in the way of his profession accepts the

ordinary liabilities of any man follows a skilled calling. He is bound to

exercise due care, skill and diligence. He is not required to have an

extraordinary degree of skill or the highest professional attainment. But he

must bring to the task that he undertakes the competence and skill that is

usually among architect practising their profession. And he must use due

56

care. If he fails in these matter and the person who employer him thereby

suffers damage, he is liable to that person. This liability can be said to arise

either from a breach of his contract or intent.

The above cases judgement is now applied to the Form of Agreement of

consultant. The S.O has a duty to use reasonable care and skills in the course of his

engagement. It is expressly agreed in BEM Form (1999) as below:

Engineer’s Agreement BEM Form (1999)

Clause 5.1 stipulates:

The Consulting Engineer shall exercise all reasonable skill, care and

diligence in the discharge of the professional services agreed to be

performed by him. If in the performance of his professional services the

Consulting Engineer has a discretion exercisable as between the Client and

the Contractor, the Consulting Engineer shall exercise his discretion fairly.

So the courts recognize that, failure is not conclusive evidence of breach of

duty. The S.O can defend himself and avoid liability by showing that he used

reasonable skill and care. In this respect, the S.O differs from the builder. He does

not as a rule, guarantee that he will achieve the desired end results.

4.3 The extent of the supervision

One of the S.O’s principal duties as listed by Hudson’s is involving

supervision127: ‘to supervise the work, doing his best to ensure in the employer’s

interest that the contract is complied with, in every respect.’ Unfortunately, the book

does not elaborate further on the extent of the supervision duties. Therefore, this may

lead to disputes and confusion for the S.O on his extent of supervision duties.

127 Gajria, 1999 Law Relating to Building and Engineering Contracts in India at p. 100

57

For this study, the analysis will comprises of the clause in the Form of

Consultant Agreement, By-Laws Provision, clauses in PWD 75 (Ver. 2006), manuals

and secondary data from reference book

a) Typical Clauses in Agreements.

One of the primary duties of the S.O in a typical engineering and construction

contract is to supervise the works until completion. Such a duty is normally

enshrined in the conditions of engagement of the S.O, e.g Clause 8 Conditions of

Engagement BEM Form 1999, etc.128 Even if it is not required by the said terms of

engagements, there may be an overriding statutory obligation for the designer to

undertake the necessary supervision as reflected, for example, in the governing

statutory enactments; a classic illustration being By-Law 6 of the Building (Federal

Territory of Kuala Lumpur) By-Law 1985.129

Hence, notwithstanding the terms and conditions of the contractual

arrangement entered into by the parties, the fact remains that the works under the

contract must be supervised/inspected at least, as a minimum, for the satisfaction of

the applicable statutory requirements.130

To appreciate the significance of the nature and duty agreed upon by the

parties in particular applications, it is useful to refer to some specific clauses that

have been included in some of the many standard forms of engagement of the S.O.

These are spelt out below:

128 See also Clause 9 Conditions of Engagement of An Architect, Architect (Scale of Minimum Fees) (Amendment) Rules 1992.129 See also By-Law 23(1) and 1975 Earthworks by Law 5(1)130 Especially for obtaining the ‘Occupational Permit”.

58

Engineer’s Agreement BEM Form (1999)

Clause 8.1 stipulates:

If in the opinion of the Consulting Engineer the nature of the Works,

including the carrying out of any geotechnical investigation pursuant to

paragraph 1(1)(a)(iii) and paragraph 1(2)(a)(iii) of Part A of the

Notification as may be applicable, warrants full- time or part-time

engineering supervision on site, the Client shall not unreasonably object to

the appointment of such site staff.

Clause 8.7 further states:

Site inspection visits by the Consulting Engineer as described in paragraph

1(1)(d)(vii), paragraph 1(2)(d)(viii) and paragraph 1(3)(d)(v) of Part A of

the Notification as may be applicable are entirely distinct from the

continuous and/or detailed supervision which would be secured by the

employment of full-time or part-time engineering supervisors on the site.

Architect’s Agreement

Clause 5(4)(iv)131 of the Architects (Scale of Minimum Fees) (Amendment) Rules:

1992 reads:

Inspecting the works at periodic intervals so as to ensure that the Works are

being executed in general accordance with the building contract and to

enable the Architect to certify the completion of the various stages of the

Works required in support of an application for a certificate of fitness for

occupation from the relevant approving authority.

131 Part II: Professional Advice and Services

59

This is further amplified in Clause 9132 of the Conditions of Engagement of an

Architect which stipulates:

An Architect shall inspect the Works at periodic intervals as required under

paragraph 5(4)(iv) of Part II of the Architects (Scale of Minimum Fees)

(Amendments) Rules 1992 and where more frequent or constant inspection is

considered by the Architect to be necessary, the Architect shall recommend to

the client the employment of a clerk-of-works, resident Architect or such

other personnel for that purpose. The cost of employing such person shall be

borne by the client or, if the client agrees, the Architect may second to the

Works personnel under the Architect’s employment for which the Architect

shall be reimbursed on the basis of time costs multiplied by the multiplier.

b) Typical Provisions in By-Laws.

An obligation of supervision has been expressly placed on the ‘qualified

person’133 under the applicable statutory enactments; typical examples include, for

the Federal territory of Kuala Lumpur:

- Building (Federal Territory of Kuala Lumpur) By-Laws 1985 (PUCA)

537/85; amended 1989 (PUCA) 37/89; and

- City of Kuala Lumpur (Earthworks) By-Laws 1975 (PUCA) 82/75; amended

1978 (PUCA) 314/78, 1988 (PUCA) 396/88.

As an illustration, some of the important Building (Federal Territory of Kuala

Lumpur) By-Laws are reproduces below:

1. By-Law 6: Supervision of Works

132 Entitled ‘Inspection of Works’.133 As defined in Part I BL 3 Building (Federal Territory of Kuala Lumpur) By-Laws and Clause 3 Street, Drainage and Building Act 1974 (Act 133)

60

Where under these By-Laws any plan or calculation in relation to any

building is required to be submitted by a qualified person, no erection or

continued erection of that building shall take place unless the qualified

person or any person duly authorized by him undertakes the supervision of

the erection and the setting out, where applicable, of that building.134

2. By-Law 23(1): Certificate of Occupation

Certificate for Occupation of a building shall be given when:-

(a) the qualified persons during the course of the work have certified in Form

E as set out in the Second Schedule to these By-Laws that they have

supervised the erection of the building, that to the best of their of knowledge

and belief the building has been constructed in accordance with these By-

Laws and any conditions imposed by the Commissioner and that they accept

full responsibility for those portions which they are respectively concerned

with….

Similar obligations are imposed for supervision under the various other By-Laws,

e.g. By-Law 5(1) City of Kuala Lumpur (Earthworks) By-Laws 1975, etc.

However, none of the above clauses are much used. Because the extent of

the duties in supervision is not further elaborated. The clauses only mentioned

that the level of supervision must be done periodically by a qualified person.

Therefore, we can summarize that the clauses in the agreement is just a brief

statement for informing the S.O that he must perform supervision on the

Works.

134 See also BL 5(1) Earthworks By-Laws 1975

61

c) Clauses in PWD 75 (Ver. 2006)

The S.O is responsible for the supervision and the direction of the Work as

stated in Clause 11 of the PWD 75 (Ver. 2006). However, this responsibility includes

his roles as a supervisor, certifier, adjudicator, and an agent. Since this study focuses

on supervision, it is appropriate to analyse the form of contract and to extract the

clauses associated with the supervisions.

In order to meet the standard of care required of him under the JKR Sarawak

Form of Contract PWD 75 (Ver. 2006), it is important to analyse the list of the

supervisor’s duties shown in Table 4.1. It is the comparison between PWD 75 (Ver.

2006), Manual of Instruction JKR Sarawak, A.C.E Conditions of Engagement 1981

(Agreement 3) and Manual of the BPF System: The British Property Federation

System for Building Design and Construction. The result of the comparison can be

seen in Table 4.1

62

PWD 75 (Ver. 2006) Manual of Instruction JKR

Sarawak

Clause 3.3.5

A.C.E Conditions of

Engagement 1981

Clause 6.4

Manual of the BPF System

Cl. 11.1 (a) Overall supervision of the works by visiting the site

Ensure that the quality of the materials used and the standard of workmanship employed are in accordance with the Contract;

e) Visit to site to satisfy himself that the Work are executed according to the contract

Report to the Client's Representative when any design, construction or commissioning decision is made which does not comply with the contract drawings, specification, schedules of activity or the contract document.

Cl. 11.1 (a) Gives direction to the Contractor where necessary

f) Giving all necessary instructions to the Contractor

Issue directions to the Contractor where work does not comply with the contract documents and copy to the Client's Representative and Design Leader.Ensure that all correspondence or technical information is provided when early warning notices are issued by the Contractor, Design Leader or the Client's Representative. Assist the Client's Representative in the interpretation of any details provided by the Contractor when he gives any early warning.

Initiate early warning notices on any matters likely to cause additional cost or delay.

Table 4.1: Comparison of Supervisory Duties

63

PWD 75 (Ver. 2006) Manual of Instruction

JKR Sarawak

A.C.E Conditions of

Engagement 1981

Manual of the BPF System

Clause 6.4 (b) Explain and adjust the discrepancy and issue instruction to the contractor

Examine drawings and specifications on issue and refer discrepancies to the Design Leader

Cl. 14 Progress monitoring by keeping a site diary

Monitor the progress of the Works by the Contractor

e) Satisfy himself that the Works are executed generally according to the contract

Maintain a site diary to record the progress of the Contractor's design and construction, delay, weather conditions, site visitors and other significant facts.

Cl. 14 Preparing and issuing necessary progress report to HQ

Monitor the progress of the Works by the Contractor

Submit weekly reports to the Client's Representative and Design Leader showing weekly site labour returns and any deficiencies.

Cl. 14.3 Endorsement of work progress submitted by the contractor

Monitor the progress of the Works by the Contractor

Endorse records of work carried out on a basis of time charges, distinguishing between sanctioned and disputed work.

Cl 6.2 Monitor Site Operations and Methods of Construction

Ensure that the Contractor protects the works in accordance with the contract documents.

Cl. 21 Inspection of Work

Inform the Client's Representative of errors, omissions, bad workmanship by the Contractor or of any default by the Contractor.

Table 4.1: Comparison of Supervisory Duties (Cont’d)

64

PWD 75 (Ver. 2006) Manual of Instruction

JKR Sarawak

A.C.E Conditions of

Engagement 1981

Manual of the BPF System

Cl. 34 Inspect Completion of Works after received notice

Arrange a first inspection of a completed section or sections of the work. Prepare and agree snagging lists.

Cl. 37 Monitoring rectification of defects

Ensure that the items in the snagging lists are rectified when required and carry out such further inspections as necessary to ensure that the work is completed.

Clause 6.4 (b) Explain and adjust the discrepancy and issue instruction to the contractor

Pass requests for clarification of drawings and specifications made by the Contractor to the Design Leader.

Cl. 4.5 Checked of manuals and as-built drawings

Obtain and check as-built drawings and manuals and hand to Client's Representative.

- Arrange inspections of plant or mechanical equipment by Client's insurance inspectors where appropriate.

Cl. 7.6 Participating in testing and commissioning

h) Supervision of any specified test

Table 4.1: Comparison of Supervisory Duties (Cont’d)

65

66

Table 4.1 shows that the S.O’s supervision duties are many and are different in

each document. Each of the documents listed the supervisory duties of the S.O, which

are applicable to its form. Some duties may appear in one document but not in other

documents.

From Table 4.1, we can compare and summarize the list of the duties during

supervision. Table 4.2 shows the summary of the supervision duties for the four

documents. The duties listed are based on the combination of four documents that have

been analyzed which is applicable for the S.O in performing his supervision.

67

Summary of the extent of supervision1) To visit and inspect the works on the site, to ensure the project is in

accordance with the contract

2) To give all the necessary instruction and directions, when the work is not

comply in accordance with the contract

3) To provide all the necessary information and the drawings requested by the

contractor.

4) To remind or to warn the delay of the project to the contractor and the client

5) To examine all discrepancies in the drawings and the specification and to

give clarification

6) To monitor the work in progress by keeping the site diary, preparing the

weekly reports and checking the work’s progress

7) To ensure the contractor comply with the statutory requirements

8) To remind or to warn the contractor for the non-compliance or bad

workmanship and materials

9) To go for inspection for the sectional or when the whole work is completed

10) To ensure all defects are rectified during the defects liability period

11) To check as-built drawing and manual provided by the contractor

12) To do inspection when requested by the other party, such as the insurance

company

13) To so testing for the work done on site e.g. Electrical services

Table 4.2 Summary of the duties during supervision

For the purpose of this study, the duties listed in the documents were analyzed.

The analysis is shown in Table 4.2, where it summarized the duties of the S.O from the

four documents. The summary of the duties in Table 4.2 is deemed to be applicable and

reasonable for the S.O or any other construction practitioner.

68

The supervision duties range from the site visit and the inspection of the works

until the defect liability period ended. It is important for the S.O to ensure that the Work

comply with the specification of the drawings and rectify the defects work. If not, he

shall give the directions to the Contractor so that, the works will comply with the

contract. He must remind or warn the contractor if the works are not properly done.

The S.O is also responsible for providing information, checking drawings and

give clarifications when it is required or discrepancies appear. He shall reply any query

to the contractor as soon as possible to prevent the delay of work.

The S.O must monitor the contractor’s working progress. He must keep and

maintain all the necessary records such as the site diary and the work programmes in

order to monitor the progress. He must warn the contractor if the work is delayed.

Once the project is completed, he must do all the necessary testing. The water

supply system and electricity must be properly tested to ensure that the building

functions properly. He shall list down the entire defects that occurred during the testing

and to ensure the contractor rectify the works.

The S.O must also ensures that the contractor comply with other statutory

requirements. The non-compliance can cause the contractor to be suspended from his

work. This will affect the work’s progress

The above listed duties are not rigid but it can become a guideline for the entire

contract administrator. Therefore, it is important to study some of the relevant law cases

in order to determine the extent of the duties which comply to the standard of care

required of him.

69

d) Law cases

The S.O extent of the supervision duties is based on the standard of care as

interpreted by the judges. Therefore, it is important to analyse the cases which show the

standard of care in supervision. With this kind of knowledge, the S.O will be able to

performed reasonable skills, care and diligence, according to the requirement by PWD

75 (Ver. 2006)

The basic principle is that, the S.O owes no duty to advise the contractor on the

choice of the method, sequence of construction or to offer a technical solution if the

contractor has committed error or, is otherwise, confronted with an event which

threatens only the contractor’s commercial interest. The decision was held in case

Clayton v. Woodman & Sons (Builders) Ltd ［1962］2 QB 533, Pearson LJ delivered

the judgment by saying:

“He was not asked to give any such advice and he did not profess to give any

such advice, and I cannot see that it can be regarded as fault on his part that

he did not step out of his province and advise the builder in what manner the

builder should carry out his own building operations”.

Therefore, it is not wise for the S.O to interfere or to advise the contractor on how they

must perform their jobs.

The above judgement is also supported in Oldschool v. Gleeson (Construction)

Ltd (1976) 4 BLR 103 where Judge Stabb QC held that an architect did not owe a duty to

tell the contractor how to carry out the work. He said:

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‘ ….I do not consider that the consulting engineer’s duty of supervision extents to

instructing the contractors as to the manner in which they are to execute the

works…’

It can be concluded that, the S.O’s duty of supervision is not to give instructions to the

contractor on how to carry out the works.

The S.O must ensure that he does ample supervision when it involves dangerous

matter. He must go to the site himself to look at the situation. It is not reasonable for him

to rely on the contractor’s judgment, since it involves safety matters. In Clay v. A.J

Crump & Sons Ltd ［1964］ 1 QB 533, the Court of Appeal held that the architect

owed a duty of care to the plaintiff, since it must have been reasonably within his

contemplation that a workman would be affected by his decision. Therefore, the S.O

must go to the site himself to check the situation if it involves danger before giving any

instructions.

The S.O is generally under no duty to instruct the contractor in the manner of

performance his works. There may, however, be a duty to warn. It was suggested in

Victoria University of Manchester v. Hugh Wilson and Lewis Momersley (1984) 1 Const

LJ 162 that if an architect knew that the contractors were making a major mistake which

would involve them in expense, the architect would probably owe a duty to the

contractors to warn them. The judge said, ‘In those circumstances the architect would

not be instructing the contractors in how to do their work, but merely warning them of

the probable consequences of persistence in the particular method which they had

adopted.’ The S.O extent of supervision duties is up to warn the contractor when they

deviate from the contract.

The S.O may delegate his duties to his representatives or assistants. But in

certain circumstances, he cannot delegate his supervision duties. It was held in Equitable

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Debenture Assets Corporation Ltd v. William Moss (1984) 1 Const LJ 131 by Judge

Newey that that Morgan, the architects, could not delegate the design duty, to supervise

and to inspect owed to EDAC. Unless EDAC accepted the need to do so: ‘In the

absence of agreement to the contrary architects cannot escape liability to their clients

by delegating their duties to others’. They had breached that duty in the negligent

selection of sub-contractors, in failing properly to scrutinise the sub-contractor’s design,

in failing to obtain proper advice from the specialist consultants and in negligent

supervision.

The above decision is also applied in the case of: Kirkwood v. Morrison. (1877)

5 R (Ct of Sess) 79, 82. When it comes to important matter, the S.O should it for

himself and he cannot delegate to subordinate. The S.O cannot blame his

subordinates by saying that they failed to report to him and he could not see the matter

on his normal periodic visit.

Obviously, the S.O must properly supervise the works and inspect them

sufficiently frequently to ensure that the materials and workmanship suits the contractual

requirement. As Lord Justice Clerk in Jameson v. Simon135 said:

‘There may, of course, be many things which the architect cannot be expected

to observe while they are being done-minute matters that nothing but daily or

even hourly watching could keep a check upon. But as regards substantial and

important a matter as the bottoming of a cement floor of a considerable area,

such as this is shown in the plans to have been, I cannot hold that he is not

chargeable with negligence if he fails before the bottoming is hid from view by

the cement to make sure that unsuitable rubbish of a kind that will rot when

covered up with wet cement has not been thrown in quantities as bottoming

contrary to the specification. And Lord Trayner said: ‘Admittedly, the duty of

the defender was to give reasonable supervision, and I think that means such

supervision as would enable him to certify that the work had been executed 135 (1899) (Ct of Sess) 1211

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according to contract, which he had to certify before tradesmen could call for

payment of the sums due under the contract.

The S.O is not necessary to be at the whole site all the times to supervise the project. It

is enough for him to check on the important matters such as, the bottoming of a cement

floor and to ensure that the Work is in accordance with the contract.

When an assistant to the S.O is appointed, the laws lay down the division of

responsibility between him and the S.O. Thus in Leicester Board of Guardian v.

Trollope (1911) 75 JP 197 an architect was held liable for the default done by the clerk

of the works in laying a ground floor, without the necessary precautions against damp.

Channel J said:

‘I think there is no difficulty in seeing what are the respective functions and

duties of an architect and of a clerk of the works… the clerk of the works has to

see to matters of detail …the architect is not expected to do so…the architect is

responsible to see that his design is carried out: That fairly indicates what the

respective duties of each are, but it leaves one in each case to say whether the

matter complained of is a matter of detail or a matter of seeing whether the

design, is complied with…Here a protection was devised and it was an essential

part of the design. Now the architects admitted that they took no steps to find

out whether that was carried out, or whether it was not.’

The S.O cannot put the total responsible on his assistant to supervise the work. He must

take all the reasonable actions to ensure that the work is carried out in accordance with

the contract.

The S.O may have many other important problems which demand his attention

and decision when visiting a site. So, it is suggested, to rely on the contractor to do

his work properly on that occasion while dealing with the problems. This suggestion

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was suggested in the case of East Ham BC v. Bernard Sunley Ltd ［1966］ AC 406. The

suggestion that he should make a thorough examination of every part of the building in a

large contract on each site visit seems, somewhat perfectionist.

In both inspecting and supervising the works and in certifying, the S.O is

ascertaining whether the works have been carried out to the required standard. Particular

attention may therefore be required at certain stages, for example, if part of the works is

to be covered over. A pragmatic approach was advocated by the court in Alexander

Corfield v. David Grant (1992) 59 BLR 102, where the judge said, ‘What is adequate by

way of supervision and other work is not in the end to be tested by the number of

hours worked on site or elsewhere, but by asking whether it was enough.’ At some

stages exclusive attention is needed, while to some, attention from time to time will be

sufficient.

4.4 Conclusion

Generally, the objective of this research had been achieved through the

documentary analysis of the relevant clauses and law cases. It is found that, there are

many duties that need to be done by the S.O during supervision. Below are the summary

of the important supervision duties:

(i) To supervise and inspect the works on the site and to ensure that it is in accordance

with the contract. He may delegate the supervision to his assistants when he is not

really required to go to site;

(ii) To give direction to the contractor when the works are delay or not in accordance

with the contract

(iii) To give all necessary information and drawings when required by the contractor

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(iv) To check all the necessary drawings and documents those are submitted by the

contractor

(v) To ensure the contractor that they follow all the statutory legislation

(vi) To participate in any testing required

(vii) To monitor the work progress by keeping the work programme, site diary and work

progress

The summary of the duties above can become the guidance on how a S.O can

achieve a reasonable skill, care and diligence supervision. The list did not state on how

many the S.O needs to go to the site since it depends on the different nature of the work.

But the most important thing is that, the S.O must ensure the work is completed in

accordance with the contract.

The extent of the S.O’s supervision duties can also be seen in the law cases. To

achieve a reasonable supervision, he must perform his duties according to the standard

of care required of him. He is to monitor the work until the completions, which will

enable him to certify the work is accordance with the contract. There is no requirement

for him to be on the site all the times.

The S.O must give reasonable supervision to the works, as it enables him to give

an honest certificate that, the work has been properly carried out. He is not required

personally to measure or check every detail, but only to check substantial and important

matters, such as, the bottoming of cement floor, especially, if failure to do so will result

in the work being covered up and therefore, not being capable of inspection at a later

stage. The adequate supervision is tested by not counting the number of hours spent

doing it. The S.O is generally under no duty to instruct the contractor in the manner of

performing his work. In the task of supervision, the S.O, though he may be assisted by

his assistants, cannot escape from the responsibility, except perhaps in the smallest

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matters of detail, by delegation. He may make use of the assistants, provided he retains

control of the work and does not cease to exercise his own supervisions and judgements.

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CHAPTER 5

CONCLUSION AND RECOMMENDATIONS

5.1 Introduction

This is the last chapter that summarizes the findings of the research according to

the research objective. It also contains the problems encountered during the research. It

also provided the necessary recommendations for future researches.

5.2 Summary of Research Findings

Generally, the objective of this research had been achieved through the

documentary analysis of the relevant clauses and law cases. It is found that, there are

many duties that need to be done by the S.O during his supervisions. Below are the

summary of the important supervision duties:

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(i) To supervise and inspect the works on the site and to ensure that it is in accordance

with the contract. He may delegate the supervision to his assistants when he is not

really required to go to site;

(ii) To give direction to the contractor when the works are delay or not in accordance

with the contract

(iii) To give all necessary information and drawings when required by the contractor

(iv) To check all the necessary drawings and documents those are submitted by the

contractor

(v) To ensure the contractor that they follow all the statutory legislation

(vi) To participate in any testing required

(vii) To monitor the work progress by keeping the work programme, site diary and work

progress

The summary of the duties above can become the guidance on how the S.O can

achieve a reasonable skill, care and diligence supervision. The supervision duties may

vary depending on the nature of the work. Though the above summary did not state on

how many times the S.O must go to the site, the most important thing is that the S.O

ensures the work is completed in accordance with the contract. There is no need for him

to perform much more than his main responsibility.

The extent of the S.O’s supervision duties also can be seen in law cases. It can be

concluded that the S.O owes duty to perform his supervision to the employer. He has no

duty to instruct or advice the contractor to do their work. But it is his duty to warn the

contractor if they make major mistakes which will cost major expenses.

To achieve a reasonable supervision, he must perform his duties up to the extent

of standard of care required of him. The S.O is not required to be constantly on the site

but he must afford such supervision as will enable him to issue honest certificate as to

the sufficiency of the work. Again, he needs not to attend to every detail but he must

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ensure that the major aspects of the work are properly executed. It would not be

sufficient for him to rely on the judgement of his assistants in relation to these issues.

5.3 Problems Encountered During Research

The main problems in this study is insufficient duration and references. Only 3

months’ time provided for this research and the references need to be obtained from

UTM’s library. Everything needs to be done rapidly, from the data collection process up

to the data analysis process. Plus, the LexisNexis is very slow and communication with

the lecturer is very limited. This results in less cases being found to support the findings.

If there were more time given, perhaps more cases regarding the supervision can be

found and can be illustrated and thus the study will be more comprehensive and

thorough.

5.4 Future Researches

The followings are recommendations for future researches:

a) This research discusses the extent of the S.O’s supervisory duties. Perhaps a

future research can focus on other S.O’s duties such as an agent or a certifier

under PWD 75 (Ver. 2006).

b) This research discusses the extent of the S.O supervisory duties under traditional

procurement method which is PWD 75 (Ver. 2006). Perhaps a future research

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can focus on the other types of the standard form of contract such as design and

build or turnkey.

5.5 Conclusion

The S.O is not required to be constantly on the site but he must afford such

supervision as will enable him to issue honest certificates as to the sufficiency of the

work. Again, he need not attend to every detail but he must ensure that the major aspects

of the work are properly executed. It would not be sufficient for him to rely on the

judgement of his assistants or representatives in relation to these issues.

Under a building contract, the S.O’s duty was to supervise the work. In larger

contracts, the S.O may arrange for the S.O’s representatives or assistants to the S.O to be

present on occasions when he himself is not and perhaps somewhat more frequently than

he would visit himself. The S.O, relying on the S.O representatives or the assistants,

cannot escape from his liability. He may be held liable if the S.O representative or his

assistant is incompetent.