A very common scene nowadays will feature a garden designer – working under CDM Regulations 2015 – acting for and on behalf of a customer. Having completed the design stages of a project, the designer is commissioned on a further contract, by the customer, who has requested that the designer act on their behalf to project monitor the works. Project monitoring is not the same as Project Managing. A Project Manager has many legal responsibilities and must be fully qualified as such.
As the project monitor, the designer will act of behalf of the customer, and it is incumbent on that person, once commissioned to act as Project Monitor, to become the single conduit of information and communication between the client and the contractor. This fact must be agreed in writing, with both designer and client accepting that restriction. The contractor cannot have two Masters. Once again, this is a matter of record for the CDM Plan.
As the responsible project manager, there are likely to be design issues, usually regarding dimensions and technical factors that need to be discussed and agreed between the project monitor and the contractor. These discussions should never involve the client together with the designer and contractor. Matters of construction and technical detail should not be concerns of the client, but if any issues do arise, the project monitor should convey them directly to the customer. Any alterations become separate matters subject to variation orders, whether as ‘extras’ or reductions in quantity/quality, they should be recorded.
The contractor will be working to drawings and specifications supplied by the designer, and any alterations dealt with under standard Variation Orders (which the project monitor should be authorised to sign and agree under their contract with the customer) supplied by the contractor.
As this arrangement is a separate matter from the original contract, once a project monitor is appointed (it may not necessarily be the original designer as far the customer is concerned), and in order to avoid any situation developing into a dispute, whereby both designer/project monitor and contractor become liable under the laws of Joint and Several, which may see both parties being sued as an enterprise, the financial implications and costs of the contractor when dealing with the project monitor should be paid under Site Preliminaries, along with all other site costs.
This should be shown as an estimated – or preliminary sum – with a likely number of hours charged out at a rate to be decided by the landscaper. Put simply, X number hours @ Y £s have been allowed for working with the project monitor. A record of hours spent should be made available at all times (within the CDM Plan) to all concerned.
Thereby the customer is paying the contractor directly for time spent working alongside the project monitor, as a seamless part of the contract sum and payment terms. It is advisable to include the latest ‘monitoring’ fee with each draw. It is important to keep a open and honest record of time spent by the monitor (who will probably also be charging by the hour) and the landscaper, to avoid any misunderstandings at a future time.