UNDEFINED WORK SPECIFICATIONS; REASONABLE SATISFACTION OF ARCHITECT OR ENGINEER

Introduction

•Sometimes a work specification stipulates that work is to be carried out to the “reasonable satisfaction of the Architect or Engineer”.

•There is no definition of what is meant by “reasonable satisfaction” anywhere in the contract …

•Further, the contract stipulates that the Architect or Engineer must act in "a fair and unbiased manner" in his decisions or judgements on ensuring work specifications compliance.

•Example; Work Specifications for Practical Completion 

•Potential Risk

•The specification includes such strong elements of subjectivity, discretion or personal judgement on the part of the Architect or Engineer and gives discretionary powers to the Architect or Engineer in the exercise of his duties on work specifications compliance.

•The Architect or Engineer acting in a fair and unbiased manner in the exercise of these duties cannot be guaranteed.

•There could be a dissatisfaction claim or dispute declared by a  contractor should he/she be dissatisfied with the decisions or judgements of the Architect or Engineer on such undefined work specification compliance.

•Preventative Measures

•The elements of subjectivity must be reduced as much as possible by providing an adequate definition of “reasonable satisfaction of the Architect or Engineer" in the contract.

•Remedy

•Should the contractor or employer be dissatisfied with the decisions or judgements of the Architect or Engineer on such undefined specification compliance.

•Contractor under such circumstances can file a dissatisfaction claim( Refer to the Relevant GCC/JBCC/NEC/FIDIC Clauses) and if not resolved can declare a dispute and refer the matter to adjudication or arbitration for a review of the Architect or Engineer’s  decision.

CASE LAW 

SUTCLIFFE VS THACKRAH(1974)

•The manner in which an architect exercises his duties was examined in the case of Sutcliffe v. Thackrah (1974). In this case, it was stated that the employer and the contractor enter into their contract on the understanding that in all matters where the architect has to apply his professional skill he will act in a fair and unbiased manner.

•It would seem that, under JCT 2011, where the term ‘reasonable satisfaction of the Architect’ is used, the architect when exercising his powers cannot demand standards which exceed those specifically referred to in the specification.

•Further, he must act in a fair and unbiased manner.

•Should the contractor or subcontractor be dissatisfied with the architect’s decision, then the remedy lies in a reference to adjudication in accordance with the Construction Act 1996 or, if the contract so permits, to an arbitrator who has powers to ‘open up, review and revise any certificate, opinion, decision … [of the architect/contract administrator].

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