PC2 Clients, Users, Delivery of Services Flashcards
Architect’s Appointment Contract
Identify parties to the contract; define scope of work; confirm fee, method of calculation and payment; allocate & define responsibilities and liabilities (Duty of Care); confirm legal framework (form of law, pertinent legislation); set out methods of dispute resolution and complaints handling; define provisions for suspension and termination of contract; inform client of the ARB code of Sanctions; works with RIBA Plan of Work and ARB/RIBA code. Compliance with ARB&RIBA codes: Must have written agreement in place before starting work (ARB4.4 and RIBA 2.1/2.2 codes) otherwise at risk of serious professional misconduct. Using RIBA PSC is advisable. Any variation to a standard form contract is clear, agreed with client and clearly stated on face of document. Any subsequent variations must be agreed with client and recorded in writing. Shall not materially alter scope, objectives or fees of project without client consent in writing.
The Wren Association
Member’s only non-profit mutual insurance association providing alternative platform for coverage of PII for the benefit of a select group of Architects in the UK and internationally for over 30 years. Provides personal and professional service to member firms offering 1.Mutual member based insurance 2. Reliable insurance cover at Cost 3. Commitment and Stability
Building Information’s Management (BIM)
BIM is used in conjunction with British Standards processes to provide a collaborative way of working. People working on a construction project are able to create and share information at defined stages of that project. UK government’s 2011 Construction Strategy defined 4 levels of BIM. Golden Thread of BSA 2022 recommends using UK BIM Framework.
The Contracts (Rights of Third Parties) Act 1999
reforms the rule of “privity of contract” under which a person can only enforce a contract if he is party to it. The Act enabled third parties in certain cases to enforce terms in contract made in their favour. Purpose is to enforce a term of the contract, not the whole contract.
Third Party Rights
Third Party Rights is stipulated by The Contract (Rights of Third Parties) Act 1999 to enable third parties in certain cases to enforce terms in contract made in their favour. The Act reforms the rule of ‘privity of contract’ under which a person can only enforce a contract if he is party to it. It is applicable if the contract expressly gives the right to a third party or if the term purports to confer a benefit on a third party arises in the contract.
In a JCT building contract, the third party is sufficiently identified such as containing an option for the beneficiary/beneficiaries to be named, the rights being conferred are set out as a schedule to the contract, or the employer sending notice to the contractor to grant the rights and identifying the relevant beneficiary and confirming the rights have been conferred.
The Act applies to any sort of rights including a right to rely on the limits on liability in a contract. This is seen as an alternative to collateral warranties, which provides for a duty of care to be extended by one of the contracting parties to a third party who is not party to the original contract. Unless the contract expressly provides the right to cancel or vary without third party’s consent, it will generally not be possible to cancel without prior consent of a third party.
Third Party Rights are important to the profession as they play an important role in construction contracts. It provides for construction security, it can be enforced if a third party is party to it, and enforce obligations between parties if a claim for loss caused by a defect in the building were to occur.
Collateral Warranties
Collateral warranties are supporting documents to a primary contract where an agreement needs to be put in place with a third party outside of the primary contract. It provides for a duty of care to be extended by one of the contracting parties to a third party outside the primary contract. There is no legal obligation for collateral warranties, and this should be agreed in advance of appointment where possible.
Due to the complex legal relationships between the many parties involved in construction projects, collateral warranties offer a way of overcoming the restriction on remedies created by the doctrine of privity. It also allows for future parties to a contract to bring actions if certain conditions are not met. For example, if a future homeowner who is not involved or control over the original contracts has substantial liabilities with a building.
Client may request collateral warranty for the reasons that any person providing finance, future purchases, tenants, freeholders, or other third parties may have a loss if the project is negligently designed or constructed.
Net Contribution Clauses
Under common law (the Civil Liability (Contribution) Act 1978) all parties can be jointly and severally liable for the loss or damage that flows from breach. Clause states that when more than one person is liable for same loss/damage, the contracting party’s liability will be limited to the fair and reasonable amount that a court would apportion against it. Without clause, if an architect and engineer are each liable to a construction client for same loss, the client could recover up to 100% of its damages from architect, despite the joint liability of engineer. Most common in form of collateral warranty or schedule of third party rights.
Intellectual Property Rights
: Legal rights given to inventor or creator to protect his invention/creation for a given period of time. Copyright, patents, designs and trade marks are all types of intellectual property protection. Copyright laws protect original architectural drawings and plans as literary works under Copyright, Designs and Patent Act 1988. Work of architecture (whether a building or physical model for building) is also protected by copyright law as an ‘artistic works’ under section 4 of the Act. Architects can deal with copyright by assignment or license. Assignment expressly assigns their copyright to the employer in terms of engagement which must be recorded in writing, this must be stated clearly in contract signed by both parties. Architect is allowed to retain the rights to reproduce some parts of the design for development to be reused in another project. Architects prefer licensing rather than assigning copyright of architectural plans because licensing provides architects freedom of future use and modification of their design for development.
Architect’s Liability
Architect may be liable to client for: breach of contract; tort of negligence; under statute. Such as lack of technical understanding, incorrect specifications, not in accordance with building regulations. Question of professional liability: minimum standard of reasonable skill and care is to be exercised in the discharge of professional duties carried out under the contract; potentially higher duty to achieve particular result may be contracted for (contractual duty of result); duties under law of tort to third parties; more specialist duty may be owed in tort when giving advice.
Joint and Several liability
Under common law, the Civil Liability (Contribution) Act 1978, all parties can be jointly and severally liable for the loss or damage that flows from breach. This means that clients can pursue the parties either jointly (more than one person with the obligation to perform the same act) or separate/severally (two or more people have standalone obligations to perform the same obligation) for the full amount of loss.
In construction, defects in the work may arise from multiple factors from different parties, such as a design fault, a failure to inspect, and poor workmanship. For the profession and particularly for consultants (such as architects) and contractors, this liability makes it possible to be subject to large claims as it makes them jointly and severally liable with parties, such as subcontractors, that they did not themselves appointment and whose performance they do not have control or influence over. Therefore, it is critical for architects to maintain good recording keeping such as email trails at all times.
Under Joint and Several Liability, a client may pursue an obligation against any single party as if they were jointly liable. The responsibility then passes to the defendants who must establish their respective percentages of liability and monetary payment.
RIBA Plan of Work
Organises process of briefing, designing, construction and operating building projects into eight stages and explains stage outcomes, core tasks and information exchanges required at each stage: 0. Strategic Definition 1. Preparation and Briefing 2. Concept design 3. Spatial Coordination 4. Technical Design 5. Manufacturing and Construction 6. Handover 7. Use. Should be used as guidance for preparation of detailed professional services and building contracts.
RIBA Professional Service Contract 2020
Five types: Standard; Concise; Domestic; Principal Designer; Sub-Consultant. Choose based on: Type of client (commercial, consumer); Type and complexity of project; Services required; Procurement route; Building contract; Legislation. Components: Agreement; Contract Details; Contract Conditions (Definition of terms; Main Clauses); Schedule of Services; Contract Guidance and Checklist.
Agreement (Standard PSC 2020)
Signed/executed as simple contract or deed (6 or 12 year contractual liability period)
Contract Conditions (Standard PSC 2020)
General Interpretation; Client’s Responsibilities; Architect/Consultant’s Responsibilities; Assignment and subcontracting; fees and expenses; copyright and license; architect/consultant’s liability; PII; Suspension or Termination; dispute Resolution; Information formats.
Architect’s Rights and Obligations (Standard PSC 2020)
Exercise reasonable skill, care and diligence expected of an Architect/Consultant experienced in the provision of such Services for projects of a similar size, nature and complexity to Project; Perform with due regard to Project Brief; Inform client in timely manner of progress in the performance and of any issues of the Services that may materially affect the project, such as Project Brief, Project Programme, Construction Cost or quality of the Project; Collaborating with any Other Client Appointments appointed; Right to retain copyright; Right to suspend or terminate performance of Services due to Client’s failure to pay any fees or amounts due.
Clients, Rights, and Obligations (Standard PSC 2020)
Inform Architect/Consultant of Project requirements and of any subsequent changes required and agreeing steps to mitigate consequences; Provide information necessary for proper and timely performance of Services; make decisions and give approvals as necessary; pay Architect/Consultant for services performed; appointment any Other client Appointments required to perform work under separate agreements and require those appointed to collaborate with Architect/Consultant. Client acknowledge that the architect/consultant does not warrant factors beyond their control, including planning and building regulation approvals.
Assignment & Sub-Contracting (Standard PSC 2020)
Architect/Consultant cannot sub-contract any part of the Servcices without prior written consent of the client; Architect/Consultant has duty to inform client of need for other consultant services.
Novation (Standard PSC 2000)
Client has provision to novate the Contract to a Contractor (D&B) but the Architect/Consultant is not obliged to be novated and can then terminate the contract.
Fees & Expenses (Standard PSC 2000)
Basic fee for services can be percentage of the construction cost (based on latest cost estimate then contract sum on completion excluding VAT, fees, claims); Lump Sum; or Time Charge based on agreed rate by amount of time reasonably spent. Basic fee should be adjusted for loss or expense for material changes made to brief, construction, cost, programme; services varied by agreement; compensation for deflation of construction cost. Additional fee calculated on time basis for work outside construction cost; repeated revisions; late alterations; delay disruption promulgation; additional meetings or site visits. Maintain records of time spend for any expenses. Payment Notices for invoicing fees at agreed intervals to be paid 14 days of issue.
Copyright & License (Standard PSC 2000)
Architects/Consultant owns copyright and grants a license to the Client and asserts moral rights (Registered Designs Regulations 2011). Client can use license for purpose intended if all due fees are paid.
Liability & PI Insurance (Standard PSC 2000)
Defined time limit for actions against breach of duty (6-12 years from date of last Services performed or date of Practical completion, whichever is earlier); Limit Liability by net contribution; Limit Liability by Insurance Cap; No personal Liability; PII covered limited.
Suspension & Termination
Client may suspend by giving 7+ days notice; Architect may suspend by giving 7+ days notice but only if Client has not paid fees due; Client is in material/persistent breach of their obligations; Architect prevents from performing services; Architect does not agree with Novation of contract. Client entitled to license for material paid for to that point.
Dispute Resolution
Negotiation, Mediation, Adjudication (final), Arbitration (final) or onto Litigation. Ensure client is aware of your complaints procedure and they understand the ADR options.
Schedule of Services
To describe scope of work to be done by the Architect/Consultant on which fee is based: Roles Specification; The Services; Other Services; Additional Services. State which services are not included or being carried out by others. Principal Designer covered by a separate PSC
Duty of Care
Tort Law. Legal obligation requiring adherence to standard of reasonable care while performing acts that could foreseeably harm others. Breaching a duty may subject an individual to liability. Architect owes a duty of care to prevent damage or loss; to provide services with reasonable skill and care (Supply of Goods and Services Act 1982) (can carry out work to same standard as another reasonably competent member of their profession). Owes to third parties a duty to care that design does not cause injury or damage to their property. Duty of care for a subsequent occupier for a defect will depend on the design and level supervisory obligations. Check Clause 3.1 in PSC – useful new additional wording not in previous RIBA Appointments and provides protection from any ‘fitness for purpose’ duties and obligations.
Donoghue vs. Stevenson (1932)
Landmark case in tort law. The wider importance of the case is that it established the general principle of the duty of care concept in law. Created following tests to prove negligence in any duty of care: 1. Existing of duty of care owed by the defendant to the claimant 2. Breach of that duty 3. Damage/Loss suffered 4. Breach caused by damage/loss 5. Damage suffered was reasonably foreseeable.
