Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 86
Completing an Agreement
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scope of the Brief, the Services or the time and cost parameters need significant
development, the Architect/Consultant should write to the Client explaining the
basis on which it is proposed to proceed, enclosing a copy of the Conditions, and
the anticipated basis for fees and asking for instructions in respect of the preliminary
services, the fees and any other relevant matters. Based on what is known at the
time, a preliminary agreement can be entered into, but it should be clearly identified
as such. Indeed, in some circumstances, this may also give the Architect/Consultant
the opportunity to consider whether to accept the overall project and ascertain
whether a working relationship can be built up with the Client. An example of a
suitable letter is shown in Figure 5.4.3.
At this point it is most important that the Architect/Consultant keeps adequate and
appropriate records of all dealings with the Client in connection with the project. The
Architect/Consultant should not sacrifice proper paperwork for assumed goodwill.
These records will be important should any problems arise.
Wherever there is uncertainty or a likelihood of change, the preliminary contract
should not imply to the Client or Architect/Consultant that:
• the Architect/Consultant warrants delivery of any more than is specified at the
time the appointment is made
• the final fee will be the same as the quoted fee
• any variation of the professional service is just a matter of more (or less) money.
If appropriate, these preliminary services can be subsumed into the subsequent
RIBA PSC when the final details of the appointment are fully known.
Speculative or conditional services
The Architect/Consultant may be asked to carry out work speculatively in which
the Architect/Consultant undertakes work at risk on the basis that payment will
only be made in the event of the work proceeding. Special care needs to be taken
when any speculative work is done whether the undertaking is to obtain planning
permission, to assist a Design and Build contractor with a tender or to enter a
competition.
Even for speculative work, it is important that there should be an agreement between
both parties defining the extent of service, payment and the commitment of the
Client to the Architect/Consultant in the event of the project proceeding. The terms
of the copyright licence need to be part of the consideration in these circumstances,
such as whether the Client is to have a licence in any event or on payment of fees or
if the project goes ahead.
An example of a suitable letter is shown in Figure 5.4.4.
When is there a contract?
A contract requires ‘offer and acceptance’ to be complete, which is usually achieved
by both parties signing a PSC or a letter of appointment. It may be reasonable to
assume that a contract has come into force if, after receipt of an offer, the Client’s
actions imply acceptance, but if there is any doubt, it is a wise precaution for the
Architect/Consultant to write to confirm that the Client has accepted the Contract
and that the Services have commenced in accordance with the offered terms.
If no response is received, the decision on whether to proceed will be a matter for
the Architect/Consultant’s commercial judgement. If the Client’s response is ‘please
get on with the services and we can negotiate’, the effect may be to confuse the
Architect/Consultant’s position, particularly with respect to the terms for the work in
hand and any future contract.
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