The Royal Institute of British Architects (RIBA) has recently published ‘Ten Principles for Procuring Better Outcomes’, developed it says “to help decision-makers in public client organisations get the best possible outcomes when they procure architectural services.” While much of the guidance is sound, RIBA takes the opportunity to promote its own form of consultant appointment. This advice may protect the architect at the expense of the client and so legal advice is advisable. To see the complete list of the ten Principles, please click here.
RIBA’s main message is that “there are a range of different procedures that can be used to procure design services suited to different project outcomes.” This statement is uncontroversial and the principles themselves are all relatively sensible in isolation.
The accompanying guidance provides more detail. As you might expect from RIBA, there is an underlying message that architects should be appointed “as early as possible” and should not be selected “solely on the basis of lowest fee”. While this advice will suit the commercial interests of RIBA members, it is certainly true that we have seen many projects which would have benefited from the design team being appointed at an earlier stage and for a more realistic fee.
However, there is another ‘architect-friendly’ assertion that causes greater concern and which we would question. The guidance states that:
“You can use standard forms of contract and the RIBA Standard Form of Agreement for all but the largest and most specialist projects. Bespoke agreements and contracts are an unnecessary cost.”
THE RIBA STANDARD FORM OF AGREEMENT
It is important for public sector (and private) clients to appreciate that the RIBA Standard Form of Agreement contains a number of provisions which are intended to protect the consultant at the expense of the client. For example:
- There are wide grounds for the architect to claim additional fees; prior written consent from the client is not a necessary pre-condition.
- There is provision for the architect’s liability to be limited to the lesser of an overall cap or the sum due under a net contribution clause.
- The duty of care which the architect is required to exercise is lower than the standard usually imposed by bespoke appointments.
- The architect can require the client to appoint other specialist consultants “where in the opinion of the Architect it would benefit the Project to do so”.
- Lump sum fees are revised every 12 months in accordance with changes in the Average Earnings Index and the Consumer Prices Index.
While RIBA may argue that these clauses represent a legitimate attempt to protect its members, it cannot be said that their Standard Form of Agreement represents the market standard for client-friendly appointments: most well advised clients will insist on bespoke consultant appointments drafted so as to properly protect the client’s interests.
AMENDMENTS TO STANDARD FORM BUILDING CONTRACTS
Entirely bespoke forms of building contract may well be an unnecessary cost in most cases, as RIBA suggests. However, there are many important reasons why a client might want to amend the standard forms of contract. For example:
- The insurance provisions frequently need to be tailored to reflect the specific requirements of the project.
- Clients will often wish to narrow the grounds under which the contractor can claim an extension of time and additional remuneration (to exclude, for example, delays and costs caused by the contractor’s own negligence or unforeseen events).
- The payment provisions may require amendment: when using NEC contracts the Cabinet Office recommends that public sector clients insert the Z clause included in its Fair Payment Information Note 1/2011.
We are therefore happy to endorse the RIBA’s acknowledgement that “Appropriate legal advice should be sought in respect of individual project circumstances”!