In some procurement contexts, the choice of contract may be determined by external factors, such as requirements of the funder. For example the World Bank now require the FIDIC forms of contract to be used on projects of over £6 million, and it appears as if the NEC form may be the preferred choice for the Olympic construction programme. In such cases the form to be used will have been selected before the Architect and other consultants are appointed.
However it is frequently the case that where the Architect provides full professional services, it may be his or her duty ‘to consult with and advise the Employer as to the form of contract to be used’. (Hudson’s Civil Engineering and Building Contracts 10th Edition, 1970). These words might not find favour with the majority of architects today, and it has been said that the best course is to give the ‘for and against’ leaving the Employer to make the choice. Interestingly, the endorsement on many JCT forms of contract refers to the client engaging ‘a professional consultant to advise on and to administer its terms’. The JCT has published a most helpful Practice Note: Deciding on the Appropriate JCT Form of Main Contract, which is clearly written with the interests of the client in mind. The Practice Note and related diagrams can be downloaded from the RIBA Bookshops website.
There are very few cases recorded of an architect being successfully sued for recommending a contract which was later held not to have been appropriate.
But the range of available forms is increasing, and amendments (particularly in the case of JCT form of contract) need to be published to keep them current and consistent. Just keeping up to date with such changes is often a taxing business. Also, there is sometimes a disconcerting time lag between the publication of authorised amendments and instructions confirming their use, particularly by bodies in the public sector who have a strong influence upon such matters. Advising on the edition of a form to be used and whether particular amendments are to be incorporated extends the Architect’s need for care in carrying out this duty and requires a thorough knowledge of the state of the art.
Advising on forms of contract is unlikely to be
easy in the wider European context. Problems can
arise in construing the meaning of provisions which
may have been poorly translated, or which may be
subject to interpretation under a different legal
system than that which obtains in the courts of
England and Wales. Problems can also arise when
working on projects overseas, where the contractor
or suppliers are based in another country, and
perhaps the law of the contract has not been
clearly established. Many standard forms can be
adapted for use under the laws of Northern Ireland
or Scotland but not all. Some specifically state
that they are not for use in Scotland. The Scottish
Building Contracts Committee has published its own
range of forms specifically for use under Scots
law.
Recommending a contract for a particular set of
circumstances is not something to be undertaken
lightly: it requires a knowledgeable and methodical
approach. The contract in question should first be
studied carefully both in respect of the content
and conditions, and also for its appropriateness in
the known circumstances. There are still a few
architects who minimise the significance of
contract wording by referring to the importance of
trust. They blandly talk of the best kind of
contract as being the one which is put into the
drawer and only taken out when things go wrong.
An appropriate contract, fairly and firmly
administered, is the best means of trying to ensure
that things do not go wrong in the first place!
Despite the Egan Report’s stated ambition to
replace contracts with performance measurement and
bring reliance on formal documents to an end, for
most present situations the cautious advice must
remain – never proceed on the basis of a
‘handshake’ agreement. Whilst it cannot be denied
that an atmosphere of trust and confidence is
desirable, it is total folly to rely on some
‘understanding’ that has not been fully documented
and properly executed. Different people can have
genuine but quite different understandings of what
was agreed.
As architect Ronald Green once pointed out in The
Architect’s Guide to Running a Job, Architectural
Press (1986): ‘The difficulty about a gentleman’s
agreement is that it depends on the continued
existence of the gentlemen’!
Watch points
Give thorough consideration to contract matters and choice at the earliest possible time.
Remember that contracts for professional services and building contracts, although distinct, may have implications for each other. The method of procurement has repercussions on roles and documentation.
Assuming that the procurement method has not been decided before the architect is appointed as lead consultant, it may be the architect’s duty to advise on the appropriate contract. If so, do not allow this to be left to other consultants.
Ensure that contract agreements and conditions are set down in writing and the agreement executed before work starts.
Recommend the use of standard forms of contract whenever possible.
If particular circumstances require specially drafted or extensively amended contracts, it is essential that legal advice is taken.
Before recommending a form of contract, study its contents and understand its implications. It is important