The design and construction of a building is a challenging process. It requires understanding and cooperation between all concerned, be they the architect, client, or contractor.
There may be obstacles, setbacks, differences of opinion, and disagreements. These are probably inevitable to an extent. But none of these need to escalate provided everyone has an understanding of what is expected of them.
Kathy Gal is an architect and an experienced adjudicator in construction disputes. She will be discussing architects' appointments and how to handle changes arising in the course of a project at the 澳门王中王 conference from 8 to 10 November 2022.
When we talk of 鈥榗ontract administration', we are usually referring to building contracts: the contractual relationship between a client and contractor, often administered by an architect. But Gal points out that it is equally important to also consider the appointment contract between client and architect. Similar issues can arise in both contractual relationships.
A transparent appointment contract
There is a minimum of specific matters that architects must include in their appointment contracts: this is set out in the ARB Code of Conduct, with which architects must comply. They include: what the architect's and their client's responsibilities are; their scope of work; and their fees.
Gal appreciates that many standard appointment contracts are lengthy. But they are lengthy for a reason: they are designed to be as clear and comprehensive as possible, to cover the roles and responsibilities of and to protect both the client and architect.
If you are concerned that a client may be intimidated or put off by the length of a standard contract, think carefully before amending it or writing your own. Gal warns that there are very few issues that are irrelevant. There is little that could in practice be safely omitted.
Consider how much worse the situation might be if later in the project the client were to insist that your responsibilities included work you had not allowed for, or for which you did not have sufficient resources; or if it transpired that you had given away the copyright to your design.
Gal advises architects to think ahead and embed room for manoeuvre in an appointment contract, even if they are considering working for a fixed fee. Clients may prefer the certainty of knowing exactly what the architect will charge, but circumstances can change and modifications are almost inevitable.
Fee payments and 'scope creep'
Scope creep is a frequent occurrence. Too often, architects tie themselves to a fee that does not allow for extra work requested at a later stage, or which becomes necessary.
Architects should endeavour to be specific about what they will be providing for a fixed fee: include the number of design options, meetings, or site visits, and specify that anything more will incur additional fees. Never rely on the assumption that a client will not ask for additional design options if not expressly agreed upon in advance.
This is a two way street, however. Gal has experienced disputes in which architects have failed to act on a client鈥檚 instructions. They must never be presumptuous.
鈥淪ometimes a designer might think they know better than the client,鈥� she points out. 鈥淭hey might be correct to think so, but if a client expects them to do something and they do something else, it is unsurprising if it leads to a dispute.鈥�
The timing of fee payments is of course an important issue. Gal suggests architects avoid tying themselves to a payment regime that is subject to a client's (or anyone else's) agreement that the particular stage is complete, such as when planning permission has been achieved.
Administering the building contract
When it comes to the building contract, there are numerous issues that arise frequently. Disputes between clients and contractors often involve payment issues, and queries over building quality, standards, or workmanship.
The contract administrator must understand how the contract works and who is responsible for what. The scope of the project, the required standards, the time constraints, and the nature of the payment regime must be understood by all parties - and the contract administrator in particular.
"The building contract has to suit the requirements of the project and is between the client and the contractor," states Gal.
"Inexperienced clients may rely on the architect to advise which form of building contract is best. Architects need to make sure they do not just suggest a building contract simply because they have used it on all their projects in the past."
Friendly early discussions can anticipate problems
Early discussions with the client and contractor, long before work starts on site, are essential. These are opportunities to set out the project and its protocols, think ahead, anticipate issues and problems and establish strategies for dealing with them. As well as setting the scene, holding these early also capitalises on the large amount of goodwill between all the participants.
Gal recommends factoring in early and possibly lengthy meetings to ensure that the client understands the contract and how it will work, particularly if the client is less experienced.
Are the contractor's tender documents comprehensive?
Disputes often arise when the contractor is instructed to do something further or different from what was initially expected. Gal suggests making sure that tender documents if they are required, are appropriate and complete; and that the contract documents are the same as the tender and do not introduce changes.
She also advises architects to be wary of ambiguities in a contractor's tender, for example, a large number of 'provisional sums' against items of work which could lead to significant increases in costs when actual prices are obtained.
Many practices are currently reporting delays to projects due to materials shortages. It is all the more important to make clear to clients that there could be delays and changes to the costs of the build. Gal counsels architects to be clear to the client that there may be supply chain problems that are outside the control of the contractor, even if they have every intention to fulfil their responsibilities in the agreed period of time.
Gal also suggests architects might encourage domestic clients to have a contingency sum that does not appear in any of the formal documents. In this way, they will have a buffer that might help to accommodate price increases.
Thanks to Kathy Gal, Director, gal.com Architects.
Text by Matt Milton. This is a Professional Feature edited by the 澳门王中王 Practice team. Send us your feedback and ideas.
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Updated: 19 August 2022
