The Regs: How to manage contracts to avoid fines and prosecutions

A recent case in which the ARB’s professional conduct committee fined an architect for failing to carry out his duties as contract administrator appropriately highlights some issues that architects may be missing when accepting client appointments. In the ARB case, the architect was criticised for a casual and ill-informed approach to contract matters.

I have visited several practices in the past six months to conduct CPD training in the Building Safety Act and was surprised to see the variation in sophistication of office and project management systems and how these fed into contract management. Several practices seemed only to offer a basic package of design to achieve planning permission and an add-on for building control. This could be by a very simple appointment letter in many cases.

I had long assumed that, following the introduction of CDM legislation, architects were providing detailed information to clients on the role of the architect as principal designer and the responsibility of the client. At the very least I expected this would include the CITB guide to CDM for clients. But this does not seem to be the case, as many of the projects might fall outside the remit of the Construction (Design and Management) Regulations (CDM).

However, the introduction of the Building Safety Act should have changed this, because almost every project is now likely to require a building control principal designer. It is a legal requirement that you must not start any design work until you are satisfied the client is aware of their duties under the act. How many of you can honestly answer that you explain this in sufficient detail to ensure that the client is aware before you start work? In my recent experience as a building control approver (BCA) the feedback indicates otherwise.

Under the new operating standard rules for BCAs there is a requirement for building inspectors to obtain the client details and ensure they are included in correspondence. We have had several clients contact us to say they were completely unaware of this, as no one had told them they had responsibility and liability for the success of a building project!

By way of reminder, the client duties include:

• Making suitable arrangements for planning, managing and monitoring a project so it complies with all relevant requirements on completion
• Allocating enough time and resource for the building work to comply with building regulations
• Establishing, reviewing and maintaining systems and arrangements to meet building regulations
• Co-operating with others working on the project so they can comply with their duties
• Enabling co-operation between designers and contractors.

Clients must provide building information to every designer and contractor working on the project. Building information relates to:

• The building work or design work
• The planning and management of the project
• Any issues involving compliance with relevant requirements and how they have been addressed.

Clients must also take all reasonable steps to appoint designers and contractors with the necessary competence or organisational capability to carry out their roles.

If there is more than one designer or contractor working on the project, clients must appoint in writing:

• A principal designer to be in control of design work
• A principal contractor to be in control of the building work.

As architects, remember that if your role terminates before the project reaches site, that is not the end of your duties. When you stop being the principal designer, you must give the client a document that explains the arrangements you have put in place to fulfil your duties and how design issues will be handled during the construction phase. 

You must do this no later than 28 days after your appointment as principal designer ends. You must also ensure that the BCA has been notified of that change. 

If you are appointed to replace a previous principal designer, you must review any arrangements they put in place to meet their legal duties.

So it’s clear that there must be a proper written appointment for both the principal designer and the principal contractor and that the architect must make the client aware of this before undertaking any design work. 

Ensuring that you correctly advise the client on the appropriate type of contract will become increasingly important as projects progress under the new legislation. Not only could you be risking a fine from ARB if you take a casual approach to this, but you could also be breaching your legal duties under the Building Safety Act.

Architects would be well advised to look closely into contract documentation and ensure it is the appropriate type of contract for the type of project that is being proposed.

Geoff Wilkinson is managing director of Wilkinson Construction Consultants