Foreign investors in the real estate field in Romania contemplating construction or refurbishment often request legal advice in respect of their obligation to appoint a consultant or a project manager within the process of constructing a new building or refurbishing an existing structure. They further request clarification regarding the differences between the definitions of project manager, supervisor (diriginte de șantier) or consultant that can be found in the Romanian legislation applicable to building works.
Introduction
The Romanian construction legislation is not as precise or accurate in respect of the terms used for the specialists involved in a building operation. Therefore, we have analysed the relevant legislation from the perspective of the investor’s rights and obligations to appoint a specialist to supervise construction works.
The project manager
The definition of “project manager” is provided for by Government Decision no. 300/2006 on the minimum safety and health requirements for temporary or mobile construction sites (the “GD no. 300/2006”). He is defined as any natural or legal person, authorized under the law and designated by the beneficiary, and who is in charged with organizing, planning, programming and controlling the execution of works on the site and is responsible for carrying out the project in respect of the quality, costs and deadlines as mentioned in the building contract. Please note that GD no. 300/2006 only refers to the minimum safety and health requirements while working on construction sites from the labour legislation perspective.
There is no obligation for the investor/beneficiary to appoint a project manager for dealing with the safety and health requirements on the construction site, but in this case, it will be the investor/beneficiary who will be directly responsible for compliance with the requirements provided for by the legislation. One of these obligations is to appoint a safety and health coordinator during the development of the project and the building works.
The construction site supervisor
The construction site supervisor (“diriginte de șantier” in Romanian) is defined by the Regulation regarding the verification and technical expertise of the projects (the “Regulation”). They are responsible from the technical aspect for the execution of building and construction works as well as the verification of the quality of the works as an authorized construction specialist with responsibility to verify the correct execution of the works in accordance with the relevant technical / technical-economic documentation. The construction site supervisor deals with checking and approving the quality and the execution of the construction works.
They carry out this activity and are appointed by the investor according to provisions of Law no. 10/1995 and the associated regulations on quality in construction (“Law no. 10/1995”). This law stats that the verification of the quality of the building works is carried out by the investors through their own authorised site supervisors.
They carry out this activity and are appointed by the investor according to provisions of Law no. 10/1995 and the associated regulations on quality in construction (“Law no. 10/1995”). This law stats that the verification of the quality of the building works is carried out by the investors through their own authorised site supervisors.
According to the Methodological norm applying Law no. 50/1991, with effect from 12th October 2009 (the “MN”), the monitoring of the building works is mandatory and must be carried out by an authorised site supervisor, as the representative of the beneficiary (the investor) and he will ensure that the building works are carried out in full compliance with the authorisation and the technical documentation and regulations in force. In addition, there should be a qualified person who will be responsible as the representative of the contractor carrying out the building works.
Within the same project, an authorised person can carry out only one of the activities of site supervisor (appointed by the investor) or the person responsible for the building works (appointed by the executor/builder).
The construction-specialised consultant
The notion of a consultant in the construction sector was introduced into the Romanian legislation on 21st September 2020 by Romanian Law no. 204/2020. This happened because in practice such experts have often been appointed by the investors in order to supervise their investment, but these experts could not take any responsibility and therefore liability as there was no regulation covering this. However, the law does not provide an express definition of the notion of consultant.
The consultants are responsible for the following in terms of the quality of the buildings:
a) hiring the authorized specialists in all fields of consultancy as per the service contracts concluded with the investors/beneficiaries.
b) notifying the investor about any nonconformity and inconsistency found in the projects and in the execution of the building works.
c) ensuring the quality as per the requirements of their own certified quality assurance system.
d) receiving the projects in accordance with the design basis and the requirements of quality.
e) participating through certified specialists in the main buildings phase.
f) drawing up daily reports for the investor during the building period.
g) drawing up quarterly reports for the investor during the guarantee period following completion of the building works, and
h) complying with the contractual terms of design and execution jointly with the designers and/or executors.
The above-mentioned obligations are separate from the general and specific provisions of the contract concluded with the investor/beneficiary.
The consultant or supervisor is jointly and severally liable with the construction site supervisor for the proper quality of the building works for which they have been appointed.
The investor’s obligation to appoint a Construction Site Supervisor or a Consultant / Project Manager
One of the investor’s obligations, as provided for in Law no. 10/1995 is to ensure the verification of the correct execution of the building works through specialised construction site supervisors or specialised consultants.
Failure to comply with the above obligation is sanctioned by fine of between RON 10,000 and RON 20,000, if the act has not been committed in those circumstances in order to be considered a crime.
Conclusions
The obligation to appoint specialist in order to verify the quality of the works of a construction site belongs to the investor/beneficiary, as well as to the builder.
One person cannot carry out the activity for both the investor and the builder in relation to the same project.
The investor can opt either for a construction site supervisor or a general consultant. The difference between them is that the site supervisor deals with the verifications of the quality and the correct execution of the building works, whilst the consultant handles the entire project (in respect of designs, works, hiring specialists etc.) on behalf of the investor. In the second case, the consultant must by authorised to carry out the activity of a construction site supervisor or must hire an authorised person in this respect to assist him.
Av. Narcis Bogoiu
