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Legalese: Project managers

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Project managers can help projects finish on time, but clients shouldn’t pay for the same service twice, says Mark Klimt

Project management appears to be an imperfectly understood role characterised by a series of contradictions.

It is a new and evolving profession that has long been a presumed function within project teams. Now an emerging discipline in its own right, it is also a position that can be filled by consultants from many more established disciplines with various qualifications. Against an increasingly litigious construction backdrop, claims against project managers are still comparatively rare and there is limited case law on the liabilities of consultants performing these duties.

Historically, clients have tended to presume that the lead consultant, typically the architect, will manage and organise the construction team as a matter of course. However, project management is a separate and distinct discipline, and it is important for architects to understand and recognise this if they are not to be called to account for breach of duty, unwittingly assumed.

The role of planning co-ordinator is a statutory creation, but some argue that the separate role of project manager (PM) has arisen from architects’ preference for the design stages of projects and their reluctance to police the performance of the parties who implement their design, let alone to supervise information flow and report the breaches of co-consultants. Potential overlap with the responsibilities of other consultants and the possible tensions means that, where a PM is appointed, all consultancies need to be set up and implemented carefully and co-operatively.

First, the employer needs to properly authorise the PM to receive information from other consultants and the contractor, to make decisions and to issue instructions. If there is any ambiguity about a PM’s authority this may be exploited and an appointment aimed at tightening project controls will have fallen at the first hurdle.

The level of service to be expected of a PM needs to be defined, under the principles of professional responsibility similar to those that apply when appointing other consultants. It should also be underpinned by a requirement to exercise reasonable skill and care. A net contributions clause, limiting loss (where there is joint responsibility) to what would be fair for the consultant to bear, is particularly relevant in these appointments because a PM’s activities straddle various disciplines. It is important for employers to understand that, even where they have appointed PMs to oversee projects, these professionals cannot guarantee that the employer’s objectives will be realised. It is therefore appropriate to cap the PM’sliability as with other consultants.

The RIBA, which publishes a form of appointment for project managers (PM/99), has sought to define PMs. They refer to the authority and responsibility vested in the PM; first, to help clients identify the objectives of a project and second, to apply technical expertise to gauge progress by referring to cost, time, quality and function. Using the limited case law, it is just about possible to discern what functions and responsibilities the courts attribute to PMs. A key tenet appears to be that PMs must ‘add value’. In other words, they must do something over and above the contribution of other consultants.

The fundamental principle is that an employer should not have to pay twice for the same service, so any supervision or checking by the PM will not be verifying the accuracy of other people’s work, but will be assessing whether it has been done, and in a timely manner. PMs are entitled to assume that other consultants are competent, but if they fail to identify missing items of work that particular consultants should have provided, gaps in responsibilities between consultants, lax cost control or inadequate protection (for example, insurance) they may be culpable.

The emergence of project management as a separate discipline is probably, like Design and Build contracting, a manifestation of the trend for employers to give overall responsibility for a project to a single person. Grafting a PM on to an existing construction team places everyone in an ambivalent position: the PM is, by necessity, in a separate, overseeing role. Yet the success of the project will depend upon interlinking roles, with everyone functioning in an open and co-operative manner.

If these structures are not set up properly, or if there is poor co-operation between all of the parties, employers will merely add an additional tier of cost, with no discernible gain and possibly increased confusion, in which case, rather than achieving their objective of reducing disputes by using PMs to impose greater management control, they will instead foster a climate of disputes and claims, to everyone’s detriment.

Mark Klimt is a partner at Fishburns. He is legal adviser to the RIBA and operates the RIBA Legal Helpline

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