Can the project manager change the date of possession in the contract?
It is sometimes thought that the architect can issue an instruction to the contractor to change the date of possession in the contract. That view is misguided. The architect can issue only such instructions as are empowered by the terms of the contract (e.g. clause 3.10 of SBC), and changing the date for possession is certainly not empowered by any clause in JCT contracts. With the popularity of the project manager among clients, a slightly different view has taken hold that the project manager can change the date of possession. This is consistent with the view that the project manager, simply on the basis of his or her appointment, has wide powers under the contract. This view is, if anything, even more misguided.
The date for possession is one of the most important terms in the contract. The employer’s obligation is to give the contractor possession of the site on that date (clause 2.4 of SBC, IC and ICD). Failure to give such possession is a serious breach of contract unless the employer has exercised the right to defer possession.The status of a project manager is not easy to define; the powers and duties are not obvious, they depend largely on the discipline of the project manager, but also on the terms of appointment. Usually, a project manager is appointed as the employer’s representative, rarely as the contract administrator, and it is even rarer for the project manager to be given all the powers of the employer. Effectively, therefore, the project manager, as normally appointed, does not even have power to enter site without the permission of the contractor or the authorisation of the architect.
Even if the project manager was appointed agent with full powers by the employer, the project manager would not have the power to unilaterally change the date for possession; the employer does not have that power. Only the employer and the contractor together may vary the terms of the contract.