How to exercise and demand authorial supervision
Because it is a right under public law, the investor for a construction project can demand supervision by the designer regardless of the contractual provisions.
Performance of “authorial supervision” is a fundamental duty of the designer of a building under Poland’s Construction Law. Under Art. 20(1)(4) of the law, authorial supervision consists of confirming that construction work is being carried out in compliance with the design and also agreeing on the possibility of introducing alternative solutions suggested by the construction supervisor or inspector.
The duty of exercising supervision by the designer (of all or part of the project) is an obligation of public law arising directly under the Construction Law, and exists independently of contractual arrangements among the parties. It is justified by the public interest—protection of public safety, life and property and the valid interests of third parties.
The Construction Law does not provide for how authorial supervision should be performed by the designer or the fee that should be paid for this task. In practice, therefore, it is in the interest of both the designer and the investor to agree on specific rules for exercise of authorial supervision. Under their agreement, the designer will be certain of obtaining a fee for supervision while the investor can establish systematically how supervision will be performed, for example by defining the number and frequency of meetings and coordination of the supervisory tasks by individual designers. This may be covered by the design contract or a separate agreement.
The Construction Law refers to the “designer” in the singular. In practice, however, in the case of more complex projects, the construction design is typically prepared by a group of designers. Thus the agreement may be signed with a design firm with legal personality, such as a company, or with an individual designer who will hire subcontractors.
The Construction Law recognises this issue to a certain extent. Art. 20(1)(1a) imposes an obligation on the designer to ensure if needed the participation in preparation of the construction design of persons holding qualifications for design within a certain specialty, as well as mutual technical coordination of the design work performed by such specialists. On this basis, the commentaries recognise the concept of the “chief designer” (or “general designer”). This regulation applies to the phase of preparing the design. But it cannot be deduced from this regulation that only the chief designer has a duty to exercise authorial supervision during the construction phase. Exercise of authorial supervision is always connected with holding the appropriate qualifications. If the design stage required the involvement of a person certified in a certain specialty, then supervision in this area may be performed by the same person who prepared the design (authorial supervision in the strict sense) or by another person holding the same qualifications (substitute supervision).
Therefore, properly established authorial supervision will involve not only the chief designer, but also as many specialists from different trades as are necessary to provide supervision over performance of the portion of the design by each of these trades. Only when the designer holds the appropriate qualifications can he or she provide the proper supervision over implementation of the design.
Supervision need not be performed by designers from different trades all at the same time. Supervision by specific designers may be spread out in time, as the progress in the work creates a need for their supervision over the relevant portion of the project.
The chief designer may be required to exercise authorial supervision over the project only with respect to the portion of the design for which he or she holds the appropriate qualifications. The chief designer may also be entrusted with coordination of the supervision by the various trades, but this obligation should be provided for in the contract because it is not expressly provided for in the Construction Law.
In the case of more complex projects, the investor typically enters into an agreement for exercise of design supervision with the firm where the design was created covering multiple trades, either as part of the design contract or in a separate contract. Then the firm will select the persons exercising supervision. It should be stressed here that the duty to perform authorial supervision rests on the author of the design (or part of the design). But under Art. 44(1)(3) of the Construction Law, the investor is entitled to appoint another designer to perform supervision. It is now accepted that lack of consent of the author of the design does not exclude performance of supervision by another designer, so long as such supervision involves only the specific activities referred to in Art. 20(1)(4) of the Construction Law (e.g. rulings by the National Appeal Chamber of 24 January 2012, KIO 90/12, and 30 August 2011, KIO 1805/11). In essence, such “substitute” supervision is not “authorial” supervision but supervision over the work being carried out.
In the agreement with the design firm the investor may require that supervision be performed personally by the authors of the design, and by other persons holding the appropriate qualifications only if the original designers are unavailable. Additional conditions may also be provided, such as comparable experience or additional qualifications of the substitutes.
It should also be pointed out that concluding an agreement with a design firm essentially does not deprive the investor of the right to demand that supervision be performed personally by the author or authors of the design, pursuant to Art. 20(1)(4). This is particularly important if the design firm does not properly perform its obligations or is unable to ensure supervision by the authors of the design or other persons holding the appropriate qualifications (or other additional agreed attributes). Designers who have a contract with the design firm for creation of the project but have no direct contract with the investors therefore must consider the possibility that they will be called upon to exercise design supervision also under different procedures and conditions than specified in their own agreement with the design firm. Moreover, even if there is a conflict with the investor over the amount of the fee, or even if the investor ceases to pay the fee under the agreement, this generally does not release the designer from the obligation to perform authorial supervision, as a duty arising directly under the Construction Law (Warsaw Court of Appeal judgment of 13 February 2014, Case VI ACa 1563/12). It is also doubtful whether the designer exercising authorial supervision may in this case exercise the right to withhold performance because of the poor financial condition of the other party (Civil Code Art. 490) and the odds of not receiving payment.
And whether or not the designer is appointed to conduct authorial supervision, and regardless of the contractual provisions, the designer has an obligation to clarify doubts surrounding the design and the solutions employed in the design (Construction Law Art. 20(1)(3)), that is to provide an interpretation of his or her own design. The investor may thus request this help from the designer even without formally appointing the designer to perform authorial supervision.
Refusing to perform authorial supervision or clarify doubts about the design may constitute a violation of the designer’s professional duties and lead to imposition of administrative sanctions under Construction Law Art. 95 (4) and (5).
Excluding the duty to perform authorial supervision in advance in the contract will not be effective, because a civil agreement is generally incapable of releasing a party from a duty under public law. However, there is nothing preventing the parties from including guarantee provisions in their contracts, whether between the investor and the design firm or between the design firm and the designer, providing for financial consequences if the investor exercises the right to demand authorial supervision via the design firm or from the designer directly, or defining the design firm’s responsibility for effective organisation of authorial supervision by individual designers.
Małgorzata Cyrul-Karpińska, Infrastructure & Transport and Public Procurement & PPP practices, Wardyński & Partners