Role of the Contract Administrator Flashcards
What is the Bolam test, and in which case was it first established?
The Bolam test, established in Bolam v Friern Hospital Management Committee, is a legal test for the standard of care which states that a professional is not negligent if they acted according to a practice accepted as proper by a responsible body of professional opinion.
In which case was the materiality test introduced, and what does it focus on?
The materiality test was introduced in Montgomery v Lanarkshire Health Board, and it focuses on the patient’s right to make an informed decision for themselves.
What is the purpose of novation in the construction industry?
In the construction industry, novation is a tripartite agreement used to transfer construction professionals to a contractor, initially retained by the employer for design or pre-construction stage services, retaining design continuity and creating a new contract with different parties.
What is the contract administrator’s duty to act impartially?
The contract administrator’s duty to act impartially involves acting fairly and professionally, balancing the interests of both the client and the contractor, and using their professional skills and best endeavors to reach fair decisions.
What are the key terms to consider when negotiating a contract administrator’s appointment?
The key terms to consider when negotiating a contract administrator’s appointment include novation, standard of care, and payment terms.
How does the Bolam test apply to construction professionals like architects, surveyors, and engineers?
The Bolam test applies to construction professionals by assessing whether they acted in accordance with a practice accepted as proper by a responsible body of professional opinion in their respective fields, determining if they have met the required standard of care.
What is the difference between the “materiality test” and the “but for” test when challenging the Bolam test?
The materiality test focuses on the right of a person to make an informed decision for themselves, while the “but for” test examines whether the outcome would have been different if the professional had acted differently or provided different advice.
In which case was the duty of impartiality established for contract administrators, and how does it apply to their role?
The duty of impartiality was established for contract administrators in Sutcliffe v Thackrah, and it applies to their role by requiring them to act fairly and professionally, balancing the interests of both the client and the contractor when making decisions and applying the terms of the construction contract.
How can a professional’s duty of care be extended beyond the Bolam test?
A professional’s duty of care can be extended beyond the Bolam test if they hold themselves out as having a particular skill or expertise, as per Matrix Securities v Theodore Goddard & Anor, or if they impliedly warrant a particular result, as in Greaves & Co v Baynham Meikle.
What are some key considerations for a contract administrator when negotiating payment terms in their appointment?
Key considerations for a contract administrator when negotiating payment terms include ensuring clear, fair, and appropriate terms for calculating fees, provisions for additional services or variations, reimbursements for expenses, regular invoicing, prompt payment, mechanisms for resolving disputes, and compliance with the requirements of the Construction Act.
How can a contract administrator ensure that the standard of care is clearly defined and achievable when negotiating an appointment?
A contract administrator can ensure the standard of care is clearly defined and achievable by considering their expertise, resources, and specific project requirements and discussing these factors with the employer to reach an agreement on a reasonable and attainable standard of care.
How does novation impact the responsibilities and liabilities of a contract administrator in the construction industry?
Novation impacts the responsibilities and liabilities of a contract administrator by discharging the original contract between the employer and the contract administrator and creating a new contract with a third party, usually a contractor. The contract administrator must understand the scope of their responsibilities and liabilities post-novation and how it affects their existing contractual relationship with the employer.
What is the main criticism of the Bolam test when applied to construction professionals?
The main criticism of the Bolam test when applied to construction professionals is that it may be too lenient, as it relies on the consensus of a responsible body of professional opinion, which can sometimes protect professionals from being held accountable for negligence.
In which case was the duty to act independently and honestly clarified as not being the same as the duty to act impartially for contract administrators?
The distinction between the duty to act independently and honestly and the duty to act impartially for contract administrators was clarified in AMEC Civil Engineering v Secretary of State for Transport.
What are some examples of situations in which a contract administrator’s duty of impartiality is particularly important?
Some examples of situations where a contract administrator’s duty of impartiality is particularly important include the issuance of certificates, granting extensions of time, and making decisions that require their professional skill and judgment while balancing the interests of both the client and the contractor.
How do additional tests, such as the “materiality test” and the “but for” test, complement the Bolam test when determining the appropriate standard of care for construction professionals?
The “materiality test” and the “but for” test complement the Bolam test by providing alternative approaches to determining the appropriate standard of care in cases where the Bolam test may not adequately address the specific professional duty, such as in advising clients about material risks or causal factors in negligence claims.
What are some key considerations for a contract administrator when negotiating payment terms in an appointment?
Key considerations for a contract administrator when negotiating payment terms include ensuring the terms are clear, fair, and appropriate for the scope of services provided; including provisions for regular invoicing and prompt payment; establishing mechanisms for resolving disputes related to fees or additional costs; and ensuring compliance with the requirements of the Construction Act.
