Advising clients on the appropriate form of contract

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


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

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