Ingenieur Vol 78 ingenieur 2019 apr (2) | Page 68

INGENIEUR to the Forms G1-G21, the PSP has to look to the employer for help in sanctioning delinquent or dilatory third parties so that the CCC procedure is not derailed. Hence, although he is ultimately directly liable to his employer, the scope of his duty of care is considerably wider because he carries out more duties and liabilities. The PSP is liable to other interested parties: Furthermore, as for the previous CFO regime, the PSP is potentially liable to other interested parties such as purchasers, lenders, etc for any breach in his duties vis-à-vis the issue of the CCC. Here again he can be subjected to claims under the tort of negligence; a very real possibility in view of the PSP undertaking self-certification. In the event of either the non-issue or late issue of the CFO under the previous procedure, aggrieved parties rarely ever proceeded against the LA concerned as the latter was protected by immunities granted statutorily and under the relevant case law. The PSP has no Immunity: However under the CCC procedure, since the PSP has no such immunity, many an aggrieved party could be tempted to proceed against him either directly or as a joint defendant with the developer or vendor under the law of tort should he default in his prescribed certification duties. It is even more likely when the PSP is seen to have 'deep pockets' and/or is adequately covered by a Professional Indemnity Insurance Policy. The sum total of which would be the opening up of a floodgate of cases much to the detriment of the professionals, however more to the benefit of long suffering aggrieved parties such as purchasers. INADEQUACIES OF THE CCC PROCEDURE Although much hyped as the definitive solution to the contemporary incompetent and unfavourable CFO regime, the CCC system in its existing form, nevertheless is far from perfect and suffers from a wide range of shortcomings, fluctuating from measly trivial deficiencies at one end of the spectrum to very serious lacunae that may render the procedure in practice a minefield of disputes and claims. 6 66 VOL 2019 VOL 78 55 APRIL-JUNE JUNE 2013 Inadequate Checks and Balances: The power to issue CCC rests predominantly upon the PSP, without an adequate mechanism for checks and balances. The perception of the public is that the PSP would act more in the interest of their clients, who are the developers/employers, than that of the purchasers and endusers. This, and the emergence of case laws and rise in complaints by the public pertaining to the abuse or alleged abuse of the system and breaches by the PSP in the issuance of a CCC has seriously dampened the confidence of the purchasers and the public at large in the CCC system. Non-technical issues left unaddressed: The CCC leaves the non-technical issues to be resolved between the developer/vendor and the LA concerned or through any other alternate mechanism to be worked out between the parties. It effectively means that after the issuance of a CCC, local authorities cannot ensure that the PSP meets his obligations vis-à-vis the relevant non- technical issues. No quality control mechanisms: The CCC regime does not preclude the issuance of a certificate on the grounds of quality nor does it provide a forum to do so. Such matters will have to be taken up as a cause of action in a breach of contract or tort of negligence through arbitration or litigation. Lack of flexibilit y in implementation: Construction projects usually spread over a long period of time and may witness a change in circumstances from the initial project approval to ultimate realisation calling for a review of technical and non-technical conditions. The PSP has no such powers, for non-technical conditions the local authorities still retain some residual power but their ambit remains ambiguous. Consultants’ site supervisors are not included in the CCC procedure: the consultant’s site supervisor is precluded from the matrix of responsibility under the CCC regime. The site supervisors play a crucial role during the execution and construction stage of a building and are the real 'eyes and ears' of the respective consultants. The very essence of the CCC which is to make all