NBS Contract Administrator

NBS Contract Administrator enables you to administer a construction contract by completing forms and certificates and tracking costs.

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Advising clients on the appropriate form of building contracts

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 forms 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

Extract from Which Contract? 4th Edition by Hugh Clamp, Stanley Cox, Sarah Lupton , RIBA Publishing, August 2007

To order a copy of this book, please visit RIBA Bookshops.

Related information

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