An overview of the two main roles of a contract administrator on a generic construction project. The Contract Administrator acts as both agent of the employer and as decision-maker for critical certificates. This notes sets out some of the questions to ask, case law to understand and tips for avoiding disputes arising from the administration of a contract. Prepared by Sarah Fox, 500 Words Ltd, who lectured final year students at Salford University to help them become better contract administrators. www.500words.co.uk

1. Page 1 © 500 Words Ltd, 2015
Guide to Contract Administrator Role
the contract administrator’s position “is one of great delicacy. He is placed in that position
to act judicially, when, to the knowledge of both parties, the person who is his master and
his paymaster is one of the parties to the contract”1
Contract administrators are a common feature of all building contracts. The contract
administrator (whether employer’s agent, quantity surveyor or engineer2
) has two distinct
but critical roles in relation to the development:
1. acting as the agent for the employer – the employer bears responsibility for the
contract administrator’s failure to meet her obligations under the main contract, both
express duties such as providing information, circulating documents or issuing
instructions, as well as the implied duty to co-operate with the other members of the
project team;
2. acting in a quasi-judicial3
capacity – where the contract administrator exercises
decision-making functions under the main contract. Not all certificates come under
within the certifier role – the test is whether the certificate is “intended to embody a
decision that is final and binding on the parties.”4
In Scheldebouw BV v St James Homes (Grosvenor Dock) Ltd, these functions were referred
to, respectively, as the ‘agency function’ and the ‘decision-making’ function.5
In both roles,
the precise extent of her duties and powers are determined by the terms of the contract
under which the contract administrator acts.
As Agent
In its agency function, the contract administrator owes the ordinary duties of an agent to her
principal. These are:
 To act within her authority, and
 To act with reasonable skill and care.
As the contract administrator is paid by and under contract to the employer, she can never
be truly independent of the employer and his influence.

2. Page 2 © 500 Words Ltd, 2015
As Decision-Maker
In the decision-making role, the contract administrator has to act fairly and impartially
between the parties,6
and not merely implement the employer’s instructions.7
From the 1947 decision in Panamena v Frederick Leyland8
(duty to act independently), to
Perini v Australia9
(to act fairly and justly and with skill to both parties to the contract, to act
independently and in the exercise of her own volition), to Hounslow v Twickenham10
(independent actions) the position of the certifier is clearly one of independence, but falling
short of being an arbitrator.11
In Sutcliffe v Thackrah,12
Lord Reid stated:
“The building owner and the contractor make their contract on the
understanding that in all such matters the architect will act in a fair and
unbiased manner and it must therefore be implicit in the owner's contract with
the architect that he shall not only exercise due care and skill but also reach
such decisions fairly, holding the balance between his client and the contractor.”
In Scheldebouw, the court said:
“When performing that function, it is the [contract administrator’s] duty to act
in a manner which is independent, impartial, fair and honest. In other words, he
must use his professional skills and his best endeavours to reach the right
decision, as opposed to a decision which favours the interests of the
employer.”
13
In Costain v Bechtel, which considered a bespoke contract based on the NEC, Mr Justice
Jackson did not think that Sutcliffe could be dismissed for different types of contract:
“It would be a most unusual basis for any building contract to postulate that
every doubt shall be resolved in favour of the employer and every discretion
shall be exercised against the contractor…I am unable to find anything which
militates against the existence of a duty upon the project manager to act
impartially in matters of assessment and certification… I quite accept that in
discharging many of its functions under the contract, the project manager acts
solely in the interests of the employer. This is the case, for example, when the
project manager is deciding which of two alternative quotations to accept.
Nevertheless, I do not see how this circumstance detracts from the normal duty
which any certifier has on those occasions when the project manager is holding
a balance between employer and contractor.”
14
Based on these statements, it is clearly not possible for the employer to act as the contract
administrator, except under an express provision to that effect.15
Process for Certification
Each standard form contract will contain procedures relating to certificates and these tend
to follow a common pattern. The conditions will set out:
 the particular issue(s) that the certifier is required to decide,
 the information to be provided to the certifier to allow her to reach that decision, and
when it must be provided; and

3. Page 3 © 500 Words Ltd, 2015
 the circumstances in which the certifier will then decide the answer to the issue before
her, on the basis of the information provided by both sides.
A certificate is the final step in this process which should (and is designed to) ensure
fairness. If any certificate is intended to be final then that must be made plain in the clearest
possible terms.16
Role of a Certificate
The effect of a certificate is whatever the parties have agreed it will be – as set out in the
contract. The certificate acts as a record of that agreement.
There are three different types of certificate on construction projects:
1. interim certificates – these indicate the progress of works and related payments to
be made;
2. final certificates - these indicate the completion of the works and the contractor’s
main obligations in relation to the construction of the works (but not defects
rectification);
3. event certificates – these record a state of affairs, such as the non-completion, or
practical completion of the works.
Certificates become important because the certifier may be expressing her opinion as to
whether the works, for example, meet the standards set out in the contract; or whether all
monies due to the contractor have been determined and paid.
No Contract Administrator?
Under JCT 2011 DB, the contract tasks the Employer with many of the duties and powers
typically associated with the Contract Administrator.
If these tasks are to be performed effectively, the Employer must appoint a professional
consultant to undertake his duties and exercise his powers. This will help ensure they are
carried out in “an impartial and balanced manner”.
If not, then the Employer may base his actions on his own vested interests, which would
undoubtedly lead to disputes:
“The employer's agent must therefore, as would the employer,
implement these functions in the manner in which the contract requires
and in that sense is required to act impartially, relying on his own
professional integrity and judgment.”17
Understanding the Role
If you are acting as the Contract Administrator, you should consider these questions:
1. Does the contract administrator have a dual role i.e. acting as agent and certifier?
2. Does the contract expressly or implicitly refer to the duty of the contract administrator
to be impartial, etc. for certain functions?

4. Page 4 © 500 Words Ltd, 2015
3. Does the contract expressly or implicitly provide that employer/contractor can challenge
your decisions?
4. Does the contract set out your duty to co-operate with the employer and contractor
(and vice versa)?
5. Does the contract prohibit the employer and contractor from influencing you, fettering
your decisions or preventing you carrying out your role?
‘The contract’ means either the construction contract that you are administering or your
appointment.
Can A Contract Administrator Cause Disputes?
The Arcadis Global Disputes Survey 201418
highlighted that:
“The single largest impact in avoiding a dispute was:
1. Proper contract administration;
2. Fair and appropriate risk and balances in contract; and
3. Accurate contract documents.
These findings demonstrate that it is of utmost importance to make sure that
contracts are administered appropriately by both parties.”
In their 2013 survey,19
Arcadis noted that nearly half of the disputes were affected by the
acts of the Contract Administrator due to failing to be impartial, not understanding the
contract procedures or controls on their authority. They recommended Contract
Administrators and the Employer are trained to understand their role and the impact of
failing to implement their duties and powers.
Author
Sarah Fox of 500 Words Ltd developed this note. She is a speaker and trainer who helps you
write simpler contracts and understand (and implement) complex ones. She is also author of
the 500-Word Contract™.
To find out how Sarah can help your staff administer contracts effectively, ring her: 07767
342747 or email: sarah@500words.co.uk
Further Information
JONES, N.F and O’CARROLL, C (2007) The independence and impartiality of contract
administrators under various standard forms of construction contracts. Construction law
Journal. Const. L.J. 2007, 23(7), 475-504
Footnotes
1
Hickman & Co v Roberts [1913] AC 229, HL.
2
In engineering projects the contract administrator may be termed the Engineer, and be responsible for approving
designs on behalf of the employer.
3
Note however that contract administrators, while carrying out their judicial functions are not afforded immunity
from suit, see Sutcliffe v Thackrah and others [1974] 2 WLR 295.
4
Devlin LJ in Minster Trust Ltd v Traps Tractors Ltd [1954] 3 All ER 136.
5
Noted below, at [21].

5. Page 5 © 500 Words Ltd, 2015
6
Where the contract administrator is considering disputes or differences (e.g. under ICE 6
th
) there is no requirement
for her to comply with the rules of natural justice. Amec Civil Engineering Ltd v Secretary of State for Transport
[2005] EWCA Civ 291.
7
The article cited in the further information section argues that should the employer instruct the contract
administrator to act in a way contrary to the express or implied terms of the contract would be evidence that the
employer no longer wished to be bound by the contract’s terms and it was potentially a repudiatory breach.
8
Panamena Europea Navigacion Compania Limitada v Frederick Leyland & Co [1947] AC 428.
9
Perini Corporation v Commonwealth of Australia [1969] 12 BLR 82.
10
London Borough of Hounslow v Twickenham Garden Developments Ltd [1971] 1 Ch 233.
11
Lord Morris in Sutcliffe v Thackrah.
12
Sutcliffe v Thackrah (1974) 4 BLR 16.
13
Noted below, [35] and [45] of the judgment.
14
Costain Ltd & Ors v Bechtel Ltd & Anor [2005] EWHC 1018 (TCC), paragraphs 44, 46 and 48 of the judgment.
15
Scheldebouw BV v St James Homes (Grosvenor Dock) Ltd [2006] EWHC 89 (TCC).
16
London and Regional (St George's Court) Ltd v Ministry of Defence [2008] EWHC 526 (TCC)
17
See the article listed in the further information section.
18
Available from EC Harris.
19
Available from EC Harris.