In many construction projects, the client employs so-called project controllers (or project managers) in addition to architects and/or specialist planners. The contracts concluded with them regularly oblige the project manager with standardised clauses to take over typical architectural services of construction supervision. This type of contract, however, entails the great risk for the project manager that he is jointly and severally liable with the architect towards the client in the event of defective execution of the work.
| Axel Kötteritzsch
Liability of the project controller alongside the architect
In the case decided by the Celle Higher Regional Court in its judgment of 11 March 2020 (reference 14 U 32/16), the client had commissioned an architect with work in accordance with service phases 1 - 8 HOAI for his construction project and also commissioned a project manager. In the contract with the project manager it was agreed, among other things, that the project manager was to supervise the construction project and check the execution and quality standards. In addition, the project manager was also assigned the coordination of renovation measures, whereby he was to check the standards to be complied with and their quality.
While the building project was still in the shell construction phase, massive mould appeared on various building components. The architect coordinated the work necessary to combat mould for the client with the specialist company. He also involved the project manager in this work. However, even after the treatment by the specialist company, the affected building components continued to show mould infestation. It was not until an additional expert was called in that the decisive indication for the final elimination of this defect was given.
The architect's liability for the costs of the failed mould abatement was undisputed. However, the OLG Celle also held the project manager jointly and severally liable for the reimbursement of these costs to the client. It was clear from the underlying contract that the project manager was not only to supervise the building project in terms of costs, personnel and organisation. In the court's view, the client's contract with the project manager contained typical architectural objectives of construction supervision. Therefore, according to the contract, it was the project manager's task to ensure that the generally recognised rules of technology were complied with and that the services were provided free of defects. According to the OLG Celle, this would also have included the technical specifications for mould remediation, which the specialist company used had obviously not implemented.
In practice, the client often uses pre-formulated standard contracts for the commissioning of so-called project controllers (or project managers). According to these contracts, the project manager, alongside the architect, must independently and on his own responsibility provide typical construction supervision services, in particular to monitor compliance with the generally recognised rules of technology during construction. If there are then defects in the construction work, the project manager is liable alongside the architect as joint and several debtor. This is a comfortable situation for the client, as in this case he has two debtors at his disposal. For this reason, it is particularly important for the project controller to formulate the service to be provided by him very carefully in the contract with his client. In particular, the project controller should avoid having to check or supervise the services of the architect and/or the executing construction companies for the client.
Düsseldorf 15th of June 2020
Author Axel Kötteritzsch
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