Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 46
Contract terms
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any subsequent problems with the services or the building. The Architect/Consultant
then has the option to accept the requirement and mitigate their liabilities or decline
the appointment. If the appointment proceeds, the Architect/Consultant should
ensure that any agreements with any Sub-consultant are signed off before the
Contract with the Client is signed.
Before proceeding, the Architect/Consultant should check with insurers and brokers
to ensure that their insurances cover the employment of Sub-consultants. Then the
other Consultant should agree the scope of services and sign a copy of the RIBA
Sub-consultant Professional Services Contract 2018 and the Architect/Consultant
should amend their Schedule of Services with the Client to reflect the enhanced
services. Notwithstanding this, an enlightened Client, or indeed the Architect/
Consultant, may require the Sub-consultant to enter into a Collateral Warranty to
retain a direct contractual link.
Appointing Sub-consultants
In item 4.1 it was said that the Architect/Consultant should take steps to reduce
their exposure to risk before agreeing to and signing a contract with the Client by
carrying out checks on the Client at the outset. These checks are equally valid for
any other party the Architect/Consultant plans to work with, even if they have worked
together before as, for example, their financial status may have changed. This is
relevant with Sub-consultants as there will not only be a contractual relationship
with the Architect/Consultant, but also a contractual relationship with the Client if the
Subconsultant signs a Collateral Warranty.
The guidance on the Bribery Act 2010 from the Ministry of Justice, which is relevant
to the appointment of a Sub-consultant by an Architect or Consultant, states that the
following should be considered:
‘Doing due diligence on persons who will actually perform services for you, or on
your behalf.’
‘If you assess the risk as low then all you may need to do is satisfy yourself that
people performing services for you (for example, an agent) are genuine and
someone you can trust to do your business without bribing. You could do this
by making enquiries with business contacts, local chambers of commerce or
business associations or via the internet for example.’
‘Where you think the risks are higher, then you may need to do more.’
Detailed guidance about the Act and the procedures that organisations can put in
place to prevent bribery are available at www.justice.gov.uk/guidance/bribery.htm.
The appointment of Sub-consultants needs to be agreed with the Client and, as
the Client has no direct contractual relationship with the Sub-consultant, they may
also require a Collateral Warranty in their favour. This will allow them to make a direct
claim against the Sub-consultant if necessary and to have step-in rights into the
Sub-consultancy agreement if the Architect/Consultant is no longer able to act for
whatever reason. The principles of Collateral Warranties are addressed in item 4.3
(Assignment) and they remain the same for Sub-consultant Warranties. A suitable
Collateral Warranty would be the CIC Collateral Warranty Consultant/Employer
(2018)4 for use where a Collateral Warranty is to be given by an Architect/Consultant
who has been employed throughout by a Design and Build contractor to the
Contractor’s employer.
In addition to checking basic competence, insurances and social media,
the Architect/Consultant should consider these issues when appointing a
Subconsultant and taking these into account when negotiating their own scope of
work and fees.
[4] See www.cic.org.uk
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