Does QS responsible for any overvaluation due to certifying any defective works?

It is an obligation of the consultant QS to assess the progress claim submitted by the Contractor during post contract stage. Does he responsible for any overvaluation due to certifying any defective works?

Below court case outcome will give you some light on the above subject matter.

  

The Employer had appointed an Architect under the contract (JCT); the Architect had employed a QS firm undertake cost management duties including assessing progress claims. The JCT requires the Architect to certify the value of work which were "properly executed', therefore by definition, any defective works shall not be certified by the Architect.

  

However, wrongly, the QS’s valuation had included some defective works

 There was no direct contract with the QS and Employer, so, the Employer argued that the QS had breached implied terms (of the contract) through the overvaluation. The QS counterargued that any such quality issues were for the architect to deal and its duty limited to disregards any works from the valuation only if the Architect have had notified them that such works had not been "properly executed', which was not happened in this case.

They also point out the below statement from Sutcliffe v Chippendale & Edmondson (1971) 18 BLR 149 case.

  

"the architect … should first satisfy himself as to the acceptable quality of the work, before requiring his employer by way of certificate to make payment for it, and in particular should keep the quantity surveyor continually informed of any defective or improperly executed work which he has observed'.

 The above judgement refers few expert witnesses including an expert Quantity Surveyor who witnessed that,

  

“if the architect did not tell the quantity surveyor about the defects, the quantity surveyor would not be expected to make allowance for them…It was  simply for the quantity surveyor to see what work  had been done and, if he had no evidence to the contrary, he was to assume that the work had been done properly”

Employer was trying to establish that, with Contrary to the conclusion of above case, the QS was requiring to inform the architects about defective works, and he is liable for quality matters at least to the extent that the defects were "obviously defective'.

  

However, the court has not found any basis in fact or in law, to allow the alleged implied duty and therefore, the QS is not responsible for inspections on quality matters. However, the court found that there was an implied term, that the QS should act with the reasonable skill and care when valuing the works. 

Author’s note: My opinion is, since QS curriculum(s) are including learning on defects, they shall responsible for certifying any work with ‘oblivious defects’. I can recall that during our undergraduate studies, we learned building defects and did a course work on identifying existing defects in a building and then prepared method statement for rectifications, obtain quotation from suppliers and presented a full report including the rectification cost. However, whether a particular defect is an ‘oblivious defects’ or not is required to decide based on various factors such as extent of the QS involvement for the valuation and his capability. For an example, an assistant QS’s may have no knowledge on the building defects but a Senior QS has; if the QS use to measure work by visiting site may observe any oblivious defects but not the QS value the work from drawing without going to site(e.g. in Lump sum contracts). However, if a claimant could be able to demonstrate that a QS had acted less than ‘reasonable skill and care’, under any circumstance, he may subject to guilty.

  

The Case: Dhamija v Sunningdale Joineries Ltd [2010] EWHC 2396 (TCC); [2011] P.N.L.R. 9; [2010] 10 WLUK 207 (QBD (TCC))