- NZS 3910:2023 replaces the single Engineer to the Contract with two roles: the Contract Administrator (CA) and the Independent Certifier (IC).
- The CA acts for the Principal. The IC must act impartially between both parties when certifying payments, practical completion, and defects.
- The IC's impartiality duty is now a structural feature of the contract, not just a sub-obligation within a broader role. The case law behind it goes back to Sutcliffe v Thackrah [1974].
- The same person can hold both appointments, but managing the separation of duties is the Principal's and certifier's responsibility.
- Existing NZS 3910:2013 contracts are not affected. The old EtC structure remains in place for those projects unless the contract is varied.
What was the problem with the Engineer to the Contract role?
The Engineer to the Contract under NZS 3910:2013 was a dual-function role. One appointment covered two sets of obligations that pulled in different directions.
On one side, the Engineer was the Principal's representative for day-to-day administration. They issued instructions, managed correspondence, coordinated information flows, and generally ran the contract on the employer's behalf. This is inherently an advocacy function. The Principal pays the Engineer, engages them, and expects them to represent the project's interests in the contractor relationship.
On the other side, the same person was required to act independently and impartially when making certification decisions. Certifying practical completion. Issuing payment certificates. Assessing the value of variations. These are functions where both the Principal and the Contractor are entitled to an honest, unbiased determination, regardless of who is paying for the certifier.
The structural conflict was obvious. A person engaged and paid by the Principal, managing the project on the Principal's behalf, was simultaneously expected to put that relationship aside and make impartial determinations when a payment certificate was due. In straightforward projects, most engineers managed this reasonably well. In disputed projects, with commercial pressure from principals and cost-conscious project teams, that line was difficult to hold.
Contractors challenged certification decisions regularly. Not always because the numbers were wrong, but because the process itself was compromised. The industry had been dealing with this tension for decades. The 2023 revision decided the cleanest fix was a structural one: separate the functions entirely.
The EtC was appointed by the Principal, paid by the Principal, and managed the project on the Principal's behalf. Then, when a payment certificate was due, that same person was expected to act as though they had no relationship with either party. That is a difficult position to defend, in practice and in litigation.
What does the Contract Administrator do under NZS 3910:2023?
The Contract Administrator takes on the day-to-day project administration functions that were previously part of the EtC role. Their mandate is clear: they act for the Principal.
The CA's responsibilities cover the operational running of the contract. They issue instructions to the Contractor under Clause 2, manage the flow of contract correspondence, process notices, coordinate site activities, and handle the information management between the parties. They review the Contractor's programme and respond to submissions. They manage the variation instruction process on the Principal's behalf. They are the point of contact for day-to-day project matters.
Critically, the CA does not pretend to be neutral. They represent the employer's interests in administering the contract. That clarity is actually an improvement over the old structure. Everyone now knows where they stand. When the CA issues an instruction or takes a position on a contractual matter, the Contractor understands that this is the Principal's position, not a supposedly impartial determination.
The CA role also includes responsibility for managing the contractual notice regime. Under NZS 3910:2023, many time-sensitive obligations flow to or through the CA. The notice of potential claim under Clause 13.3, submissions under the variation regime in Clause 9.8, and the extension of time notice under Clause 10.2 are all processed through the CA's channel.
This matters practically. Getting the right document to the right person within the right timeframe is fundamental to preserving contractual entitlements. Sending a time-bar-sensitive notice to the IC rather than the CA, or vice versa, is not a technicality that will be forgiven in adjudication.
What does the Independent Certifier do?
The Independent Certifier takes on the certification functions that require impartiality. These are the decisions where both parties have a legitimate interest in an honest assessment and where the person making the determination must be, and must be seen to be, independent of both parties.
The IC's core functions under NZS 3910:2023 include certifying practical completion, issuing payment certificates, assessing defects during the Defects Liability Period, and making determinations on matters where the contract requires an impartial decision. These are the highest-stakes decisions in any construction contract. The date of practical completion determines when liquidated damages stop accruing, when the first moiety of retention is released, and when the Defects Liability Period begins. A payment certificate is a legally significant document under the Construction Contracts Act 2002. The IC is the person signing off on both.
The IC's duty of impartiality is now the defining characteristic of the role, not an incidental obligation layered on top of a broader administration function. The IC owes its obligation to the contract and to the fair process contemplated by that contract. Not to the Principal who appointed them, and not to the Contractor whose claim is being assessed.
This impartiality duty has deep roots in the common law tradition that NZ courts draw on. The leading English authority is Sutcliffe v Thackrah [1974] AC 727, where the House of Lords confirmed that an architect acting as certifier under a construction contract owed a duty of care and was not entitled to quasi-arbitral immunity when making negligent certification decisions. The principle: a certifier appointed under a contract must act honestly and in good faith, applying their professional judgement to the facts, regardless of who pays them. Pacific Associates Inc v Baxter [1990] 1 QB 993 (English Court of Appeal) further clarified that the certifier's primary contractual duty is to act fairly between the parties, even where they are engaged by and paid by only one of them.
NZS 3910:2023 does not change the underlying legal principles. It reinforces them structurally, by making impartiality the entire point of the IC role rather than one obligation within a dual-function role.
Sutcliffe v Thackrah [1974] AC 727: the House of Lords confirmed that a certifier under a construction contract is not a quasi-arbitrator and does not enjoy immunity from negligence claims. If the IC issues a certificate negligently, they can be liable. This is why the IC role requires genuine professional independence. It is not just a contractual nicety. It carries real liability exposure.
Can the same person be both CA and IC?
Yes. NZS 3910:2023 does not prohibit a single person or firm from holding both the CA and IC appointments. On smaller projects, this may be the practical reality. A single engineering firm might be engaged to administer the contract (as CA) and to certify payments and practical completion (as IC).
The problem is not the dual appointment in itself. The problem is how it is managed. When that person or firm is acting as CA, they are doing the Principal's bidding. When they switch to their IC function, they must act impartially. Those two functions must be kept genuinely separate in practice, not just in name.
The risks with a dual appointment include: the IC being influenced by knowledge gained in the CA role, the Principal attempting to communicate preferences for certification outcomes through the CA channel, and the IC's decisions being challenged on grounds that genuine independence was not maintained. In high-value or disputed projects, holding both appointments creates exposure that the structural reform was designed to eliminate.
The cleaner arrangement is separate appointments. The CA function sits with the Principal's project management team or a dedicated project manager. The IC function sits with an independent professional, a quantity surveying firm or engineering firm with no other relationship to the project. This is how PPP and alliance contracts have long handled certification, and the 2023 revision brings that same discipline to standard NZS 3910 contracts.
If the same firm holds both appointments, they need to manage the roles through separate individuals and maintain clear internal separation. The Principal should not be communicating certification preferences through the CA channel. If it later emerges that the CA and IC functions were effectively exercised by the same people without genuine separation, expect that to be front and centre in any dispute over a certification decision.
CA vs IC: a side-by-side comparison
| Aspect | Contract Administrator (CA) | Independent Certifier (IC) |
|---|---|---|
| Primary function | Day-to-day contract administration | Certification decisions requiring impartiality |
| Whose interests they represent | The Principal | Neither party. The contract and fair process. |
| Impartiality requirement | No. Openly acts for the Principal. | Yes. Core obligation of the role. |
| Key decisions | Instructions, notices, information flow, variations process, programme review | Payment certificates, practical completion, defect determinations |
| Who appoints them | The Principal | The Principal (but must be genuinely independent) |
| Who pays them | The Principal | Typically the Principal, with costs sometimes shared or built into the contract sum |
| Legal duty | Contractual obligation to the Principal | Impartial certification consistent with Sutcliffe v Thackrah principles |
| Typical appointment | Principal's project manager or PMC firm | Independent QS firm, independent engineer, or dedicated certifier |
| Fee arrangement | Included in Principal's project management costs | Separate appointment and fee, disclosed to both parties |
What does this mean for existing contracts on NZS 3910:2013?
Nothing changes automatically. Contracts entered into under NZS 3910:2013 continue to operate under that edition. The Engineer to the Contract role remains in place. The 2023 revision does not retrospectively alter contracts that have already adopted the 2013 standard.
This is an important practical point. Right now, the majority of live NZS 3910 contracts in New Zealand are 2013 contracts. The EtC is still the relevant role. The obligations, timeframes, and impartiality duty under the 2013 edition still apply. The difference is structural: under the 2013 edition, the EtC holds both functions in a single role. The obligation to act impartially when certifying exists; the structure just does not enforce it through separation.
Projects starting now are the transition point. Principals drafting new contracts need to choose which edition to adopt and draft their Special Conditions accordingly. The 2023 edition is increasingly the default for new procurement. For a new project starting under NZS 3910:2023, the IC and CA appointments should be established before the contract is executed, not retrofitted once the project is underway.
If you are mid-project on a 2013 contract and want to adopt the 2023 structure, that requires a formal variation to the contract agreed by both parties. It cannot be done unilaterally by the Principal.
Check your Agreement document and Special Conditions. The edition adopted should be expressly stated. If it says NZS 3910:2013, you are on the old structure. If it says NZS 3910:2023 (or simply NZS 3910:2023 in the relevant conditions schedule), you are on the new structure with separate CA and IC roles.
Practical implications for projects starting under NZS 3910:2023
The role split creates operational changes that need to be addressed at project setup, not during delivery.
Appointments and resourcing
The Principal needs to make two separate appointments. For the CA, this will typically be the Principal's project manager or a PMC firm engaged to administer the contract. For the IC, the Principal needs an independent professional whose only function is impartial certification. This is a separate engagement with separate terms, separate fee, and separate lines of communication.
On a $50M infrastructure project, the IC fee for the certification function is not a significant cost relative to the contract value. Getting the appointment wrong, and having a major certification decision challenged on independence grounds, is potentially a much larger problem.
Communication protocols
Project teams accustomed to the old single-role structure need to adjust their communication habits. Not every document goes to the same person anymore. The Contractor's payment claim goes to the IC for certification. The extension of time notice goes to the CA. The practical completion application goes to the IC. The request for design information goes to the CA.
This sounds straightforward, but in a project with dozens of concurrent obligations and multiple parties, getting the routing wrong creates procedural risks. A payment claim sent to the CA instead of the IC may not trigger the IC's certification obligation. A time-bar-sensitive notice sent to the IC rather than the CA may not constitute valid notice for the purposes of Clause 13.3. The Special Conditions for any NZS 3910:2023 project should include a clear communication protocol specifying which documents route to which role.
Payment certification process
Under the old structure, the EtC received the payment claim and issued the payment certificate (the payment schedule for Construction Contracts Act 2002 purposes). Under the new structure, the payment claim goes to the IC, who must assess and certify it. The CA is not in that chain for certification purposes, although they may coordinate the submission process.
The CCA deadline remains critical. If the IC fails to issue a payment schedule within the prescribed period (20 working days under the default CCA position, often shortened in Special Conditions), the full claimed amount becomes a debt immediately due. That consequence does not change under the 2023 revision. What changes is who carries the obligation to issue the schedule: the IC, not the CA.
Practical completion
Practical completion certification is now squarely the IC's decision. The CA may coordinate the PC inspection process and manage the snag list with the Contractor, but the formal certification decision, and the date that appears on the PC certificate, is the IC's determination. That date triggers the retention release, the bond reduction, the cessation of liquidated damages, and the start of the Defects Liability Period.
A Principal who tries to delay PC certification by pressuring the IC is in a much more exposed position under the 2023 structure than under the old EtC model. The IC has a clear, standalone obligation to certify impartially. Documented attempts to influence that decision through the CA channel, or directly, will be exactly the kind of evidence a contractor needs in an adjudication or arbitration.
Dispute boundary questions
One area that will generate disputes in the early years of NZS 3910:2023 projects is the boundary between CA decisions and IC decisions. Where does the CA's administrative function end and the IC's certification function begin? The variation process is a good example: the CA issues the variation instruction, the Contractor prices the variation, but who determines the final value if it is disputed? The contract should address this expressly. If the Special Conditions do not draw the line clearly, expect that ambiguity to be exploited.
The NZS 3910:2023 standard creates the framework. The Special Conditions define how that framework operates on your specific project. Appointments, communication protocols, the boundary between CA and IC decisions, and the IC's certification timelines should all be addressed in the Special Conditions before the contract is executed. Leaving these questions for the project team to work out under pressure is how disputes start.
What this means for AI project intelligence
From a systems perspective, the IC/CA split makes obligation mapping more precise, not more complicated. The ambiguity of the old EtC structure (where the same person held obligations in different directions) is replaced by two clean sets of responsibilities. A contract intelligence system can map obligations to role with greater confidence under the 2023 structure.
What this requires is that the system understands the distinction. A platform built on the 2013 EtC structure routes everything through a single role. Under 2023, the system needs to know whether a given obligation belongs to the CA channel or the IC channel, and whether the relevant deadline is tracking correctly against the right person's obligations.
For a live project with 50 or more concurrent contractual obligations, getting that routing wrong is not a theoretical risk. A payment claim deadline tracked against the CA rather than the IC, or an EOT notice routed to the IC when the time bar runs to the CA, is a real operational failure with real commercial consequences.
Provan deploys AI-powered operating systems for infrastructure and engineering businesses. The Contracts domain maps every NZS 3910:2023 obligation to the correct role, tracks CA and IC deadlines separately, and surfaces what your team needs to act on and when. The system is configured from 10 years of hands-on project management experience across $10M to $750M projects. Built for the way the contract actually works, not just the way it reads.
The 2023 revision reflects where the industry was already heading
PPP and alliance contracts in New Zealand have used independent certification models for years. The Waikeria Prison PPP, like most major public-private partnership projects, separated the certifier function from the project management function because the stakes were too high to leave that conflict unresolved. The 2023 NZS 3910 revision extends that discipline to the broader construction market.
The question for most project teams is not whether the change is justified. It is how to implement it cleanly. The answer is: at contract formation, not after problems arise. Define the appointments, define the communication channels, define the boundary between the roles, and document it in the Special Conditions before the project starts.
Projects that do this well will find the 2023 structure reduces friction, not increases it. The CA handles administration without any pretence of impartiality. The IC certifies without any conflict. Both parties know exactly who to engage and for what purpose. That clarity is worth the setup cost.
This article provides a practical project management perspective on the NZS 3910:2023 roles and their implications. It is not legal advice. For specific guidance on how the IC and CA structure applies to your project's contractual arrangements, consult the updated standard and your legal advisors.