The professional appointment will define the terms of the consultant’s authority. In the case of the architect, he will typically have a very wide-ranging authority. The extent will depend on the extent of services he provides. The general rules of agency apply.
The architects and engineers have no direct relationship with the contractor. They owe duties under the contract to certify in good faith sums properly due. The architect owes a duty of care in issuing certificates. He does not take responsibility for the contractor’s work, beyond this duty of care.
The architect has a duty of supervision. He is said to be captain of the ship. He should detect seriously defective work and require remedial steps. The architect should see the principal parts of the works before being hidden from view. Contractors should be obliged to give notice of the same.
The architect must issue certificates based on knowledge rather than assumptions. He need not undertake ll inspections personally and may delegate in some cases. His broad duty is to oversee and superintend the execution and performance of the work. An architect may be negligent in certifying work.
In engineering contracts, the engineer takes the role of contract administrator. The engineer provides the role in relation to design, tenders and selection of a contractor and acts as contract administrator.
Architects, service engineers, civil engineers, quantity surveyors and other service providers in the construction industry will typically enter conditions of engagement or professional service agreement with the client/employer. Considerable efforts have been made to standardize agreements in various professions. The various institutes have published standard forms of agreements for use by their members.
Typically, there are a set of standard conditions and a menu of possible services which may be provided. In some of the agreements, the types of service are scheduled and can be incorporated by being ticked or listed.
The terms and conditions provide a framework for setting out the professional’s duties. The conditions may seek to limit liability or standardize rights and obligations in the terms and conditions.
Ultimately, the terms and conditions are subject to contract law and the basic provisions of contract law apply. The forms of agreement will generally be signed. They may be incorporated, such as by being referred to.
The traditional role of the architect under general contracting arrangements has been to design the building, obtain requisite consents including in particular planning permission, select other consultants, manage the design, tender for and select the contractor and subcontractors and ultimately administer the contract. As set out in other chapters, the architect must act independently in some contexts and may not simply act at the employer’s / client’s exclusive behest.
Typical Terms of Appointment
The RIAI has published standard terms of appointment. There are a number of different standard terms and conditions. However, most follow the same broad patterns. Most have terms and conditions and a memorandum for the insertion of key details and particulars. This will include the basic details of the parties, the project, and fee provisions. It may include provisions as to professional indemnity, time limits, limits of liability etc.
The memorandum of agreement is typically signed. Schedules typically set out the requirements on the client’s parts and the services or types of services to be provided. A schedule may set out the fees and expenses applicable. There may be provision for details of other professionals to be appointed including structural engineers, services engineers, quantity surveyors, planning advisors, etc.
Some professional institutes provide options for various parties. There may be options in relation to methods of payment and calculation of fees, dispute resolution mechanism, price adjustment clauses and other key matters.
Services and Obligations
The services to be provided must be defined. This is often done in schedules with reference to standard types of service. The service obligations will be linked to the fee obligations. For example, an architect may potentially provide a wide range of services and commonly does. However, an architect may be retained for a much more limited range of services, depending on the circumstances of the particular job.
The appointment sets out standard terms and conditions. The basic obligations of the professional will be defined. The professional concerned is generally obliged to provide the relevant services with reasonable skill and care. Some forms of agreement may make provision for additional services, quality criteria and other substantive provisions.
There is not usually any general obligation to ensure the job is done within a particular timeframe or cost. The consultant will generally have obligations to cooperate with others, provide information. The appointment may define the scope of his authority.
The client’s obligations and duties will be specified. The client is usually obliged to give instructions, supply information, instruct etc. The client’s obligations to pay fees will be set out/
Liability and Insurance
There is commonly provision for liability and insurance obligations. A time limit will be placed on the period during which proceedings may be taken for breach of contract. This will be typically six years. If the agreement is executed as a deed, the period may be 12 years. The period will usually run from the conclusion of the job.
The consultant’s obligation to maintain insurance will commonly be defined. There may be a limitation on the amount of insurance that complements the limitation on overall liability.
It is commonly provided that where the consultant and others are liable, liability would be limited to the extent that is just and equitable, having regard to the relative responsibilities and roles of the various persons involved in the project.
Generally, assignment or subcontracting is not permitted without the express consent of the other party. There are generally mechanisms for payment and reimbursable expenses. There may be provision for accounts’ interest and for a suspension of obligations in the event of non-payment.
In the case of an architect, the clauses will generally deal with copyright. Commonly the architect will own the copyright and give a license to the client to use it for the purpose of the project.
There may be provisions for a suspension and termination of the agreement. If there is failure to pay or other critical circumstances, the other (innocent) party will generally have a right to terminate.
There may be provision for liquidated damages and compensation for failures on the part of the other party. There may be provision for dispute resolution by mediation, negotiation or otherwise.