Last call for impartiality: The role of the contract administrator in construction contracts

The role of the contract administrator in construction contracts has long been a subject of debate. Historically, the contract administrator was considered as an independent and impartial decision-maker. However, as the construction industry and the legal framework have developed, the question of whether the contract administrator is impartial or not has often been overlooked by the courts and arbitrators, who have instead focused on the question of whether the contract administrator's decision is right or not. As a result, the notion of the impartial role has just remained relatively static within academic discourse and not moved on from what was understood in the 19th century, while the contractual and legal principles underpinning this role have undergone significant changes.This research employs constructivist grounded theory and utilizes both primary (semi-structured interview) and secondary data (documentary data) to critically examine the impartial role of the contract administrator. The study investigates how impartiality is defined, what roles and functions that the contract administrator fulfils, which decisions require impartiality, and how the contract administrator makes decisions in the context of construction contracts.This thesis finds that the conventional concept of impartiality is misleading and insufficiently defined within construction law. To address this gap, this thesis develops a conceptual framework that reconceptualises impartiality through four fundamental tenets: fairness, reasonableness, honesty, and co-operation.Further, this thesis highlights the diminishing of discretionary decision-making by the contract administrator in modern construction industry, which in turn impacts the interpretation and application of impartiality. With the technical matters gradually removed from the contract administrator's domain, the technical related decisions have been reduced from substantive judgement to procedural compliance such as merely 'review' or 'give consent' subject to a reasonableness test. Similarly, time and cost related decisions have transitioned to 'fair and reasonable' assessments or 'fair determination', while the traditional broad discretionary power have incrementally diminished, remaining only in residual areas particularly where the contract is highly prescriptive and defined by detailed parameters.Furthermore, the findings reveal that, while not necessarily engaging in malpractice, the contract administrator tends to strike a delicate balance when making decisions by favouring the employer just enough to avoid liability while preventing unnecessary disputes that could lead the contractor to initiate adjudication or arbitration. This tendency is driven by the prevailing legal principle where the contract administrator does not ordinarily owe a duty of care to the contractor. The absence of such obligations structurally predisposes the contract administrator to err on the side of the employer, thereby undermining the impartial role envisaged by traditional legal theory.This research contributes to the existing knowledge by developing a conceptual framework that provides a more precise and operational interpretation of impartiality in modern construction contracts. This research also contributes to industrial practices by clarifying the scope of impartial decisions and examining both how the contract administrator should make decisions and how the contract administrator actually makes decisions.