Under the Engineering and Construction Contract (NEC), does a project manager performing contract functions owe a duty of impartiality, or does the project manager act solely as the employer's agent?
An architect must certify impartially. In Costain v Bechtel the court held it at least properly arguable that the same duty binds the project manager under the NEC form when issuing payment certificates, whatever its interest in the outturn, but expressly declined to decide the point on an interim application.
They must act impartially when certifying: Costain v Bechtel held it properly arguable that the Sutcliffe v Thackrah duty of impartial certification applies to a project manager under the NEC form on payment certificates, even where a pain-share or gain-share mechanism gives the project manager a financial interest in the outturn, though on functions such as design change it acts in the employer's interest
They must act impartially when certifying. Costain v Bechtel held it properly arguable that the principle in Sutcliffe v Thackrah, that a certifier must act impartially between employer and contractor, applies equally to a project manager under the NEC form: when issuing payment certificates the project manager must hold the balance fairly, even where a pain-share or gain-share mechanism gives it a financial interest in keeping the certified outturn down. That does not make the project manager impartial in everything: on functions such as changing the design it acts in the employer's interest, just as an architect acts as the employer's agent when issuing variations, but on certification it must be even-handed. In Costain the court refused an injunction, because it could not supervise the project manager, but it did not finally decide the point, and a contractor that doubts a certificate can use the contract's dispute-resolution mechanism.
| The architect's duty | Sutcliffe v Thackrah: certify impartially |
| Extended to NEC | Costain v Bechtel: arguably the same duty binds the project manager |
| Payment certificates | Hold the balance fairly, whatever the interest in outturn |
| Agent for some acts | Design change is in the employer's interest |
| No injunction | The principle stood, but the court would not supervise it |
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