Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 19
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Guide to RIBA Professional Services Contracts 2018
There may also be implied terms, which should be uncovered and expressed.
For instance, if the Client intends to operate specific procedures for such matters
as change control, consideration should be given to attaching or identifying the
relevant documentation.
Problems may arise where the Client is inexperienced or has not appointed
a project manager with a duty to advise on the practicality or fairness of the
requirements and manage the process on the Client’s behalf.
It is not unusual for such agreements to limit the Client’s obligations in addition to
the provision of the brief to:
• providing information in the possession of, or only obtainable by, the Client
• procuring the cooperation of other Consultants
• paying fees and other amounts due.
Conversely, the Architect/Consultant may find that many of the services usually
performed with ‘reasonable skill and care’ become strict obligations, such as the
requirement to comply with the brief, the programme or the budget.
It is also not unusual to find wordy clauses that appear to spell out additional
or strict obligations, but on closer examination, do not add to the Architect/
Consultant’s usual obligations.
Finally, there is the matter of the cap on liability. Most standard agreements
published by the professional institutions provide for the maximum liability to be
equated with the amount of professional indemnity insurance that the Architect/
Consultant is required to carry under the Contract with the Client, or with the net
contribution of the Architect/Consultant to the relevant loss.
Often bespoke agreements spell out the amount of professional indemnity
insurance required, without limiting the liability. Alternatively, some agreements
may be similar to the standard contracts, but could specifically state that the
liability for the cost of repair, renewal and/or reinstatement of any part of the works
shall be unlimited.
Clearly, although the Architect/Consultant would prefer a standard contract, it
goes without saying that, when faced with a bespoke contract, the Architect/
Consultant should consult their professional indemnity insurers and, if necessary,
a legal adviser. However, whatever advice is given, the final decision on accepting
a bespoke contract lies with the Architect/Consultant on the basis of the likely
commercial risk involved.
The relationship and interface between consultants on the project needs to be
clearly defined to ensure compatibility of terms and that there is a coordinated scope
of work to ensure that responsibility for all aspects of the design and procurement
services have been covered. On small projects this could be addressed with the
use of a Roles and Responsibility Table whereas on larger, more complex projects a
Design Responsibility Matrix may be more appropriate.
3.2 What to consider when choosing the contract form
When considering the type of form to use, choices should not be made on an
arbitrary basis but always after careful analysis of the situation. Factors to consider
are the type of Client, the type, size and complexity of the project, and the form of
procurement.
Type of Client
Unless the work is to be undertaken on a Client’s own home, the Client is deemed
to be a ‘commercial’ or business client. Business clients can include charities,
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