1 Introduction

The purpose of this Guide is to provide construction professionals with general guidance on matters affecting their appointment and to explain the provisions and use of the suite of RIBA Professional Services Contracts 2018 for the appointment of an Architect/Consultant together with providing guidance on what to consider when completing the Contract Details and the Schedule of Services.

This Guide aims to provide best practice advice on, and a full understanding of, the legal requirements of the appointment process and to enable an Architect/Consultant to best explain the Contract Terms to the Client.

A good working relationship between an Architect/Consultant and the Client is crucial to the success of any project. The Architect/Consultant should agree on the scope and cost of architectural services with the Client before the project begins and ensure that the agreement is set out in writing as soon as practically possible.

It is important that the Architect/Consultant’s appointment is agreed in writing, to define the scope of services that may be required and the fees to be charged for those services. If the Architect/Consultant is to perform any additional roles such as planning consultant, landscape architect, interior designer, information manager, BIM coordinator, etc this must be clearly defined in the Contract.

However, it should be noted that the services will only be undertaken by the Architect/Consultant if they are specifically identified in the appointment document, and included within the agreed fee on the project. Any further work would be described as ‘Other Services’ which might include surveys, party wall work, disputes, and so on.

1.1 A history of Professional Services Contracts

The Institute of British Architects was formed in London in 1834, becoming known as the Royal Institute of British Architects when it was granted its Royal Charter in 1837. The Institute has been publishing guidance on professional practice and charges for architects since 1862. However, it was not until 1872 that a formal Schedule of Charges was published in the RIBA Kalendar and in 1919 the term ‘Conditions of Engagement’ first appeared. These were subsequently revised regularly and published in the RIBA Kalendar each year up until 1962 with all editions up to 1962 titled as ‘First issued in 1872, last revised [year of publication]’.

After 1962, no further reference was made to the original 1872 document and a complete review and evaluation of the documents was undertaken, resulting in a completely new set of agreements. These were issued in 1966, followed by major revisions or new versions in 1971, 1982, 1992 and 1999:

• 1966 – Conditions of Engagement
• 1971 – Conditions of Engagement
• 1982 – re-titled Architects Appointment
• 1992 – re-titled Standard Form of Agreement for the Appointment of an Architect – SFA/92
• 1999 – Standard Form of Agreement for the Appointment of an Architect SFA/99, revised 2000 and 2004
• 2007 – Completely new edition issued as Standard Agreement for the Appointment of an Architect, S-Con-07-A

In 2010, a substantial review resulted in a brand-new edition issued as the Standard Conditions of Appointment for an Architect 2010. This update presented a suite of forms comprising the Standard, Concise, Domestic and Sub-consultant forms. Unlike other Professional Services Contracts (PSCs), the Domestic Agreement was also fully compliant for projects where the Client is a consumer under the Unfair Terms in Consumer Contracts Regulations 1999 and The Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008.

These Agreements were far more comprehensive and flexible than their predecessors and as well as being available in hard copy, the basic documents were made available online.

These forms were updated in 2012 to the Standard Conditions of Appointment for an Architect 2010 (2012 revision) to reflect changes in legislation, particularly the 2011 revisions to the Construction Act (The Housing Grants, Construction and Regeneration Act 1996).

In April 2015, the RIBA issued an addendum to address the requirements of the Construction (Design and Management) Regulations 2015, which updated the 2007 version.

By 2016 it was considered that a further update was due, to cover further legal changes and to take the opportunity to reformat the manuscripts so that they corresponded to the RIBA Concise and Domestic Building Contracts 2014 and to ensure that the documents were compatible with each other. This exercise has resulted in the publishing of the suite of RIBA Professional Services Contracts 2018 and concurrently the RIBA Concise Building Contract 2018 and RIBA Domestic Building Contract 2018.

1.2 Professional standards

All construction professionals have a requirement to conform to the code of conduct of their respective professional body. All Registered Architects must comply with the Architects Registration Board (ARB) Code of Conduct and those who are RIBA members or Chartered Practices must also comply with the RIBA Code of Professional Conduct.

The ARB and RIBA codes of professional conduct require architects to record the terms of their appointment before starting any work, so some form of written agreement is essential. This will need to set out what tasks the Architect will be doing, the timescale, fees and payment details.

Architects are expected to be guided in both their professional and private lives by the spirit of their codes of conduct as well as their express terms. Whilst failure to comply with the provisions of the codes may not in itself constitute unacceptable professional conduct or serious professional incompetence, it would be considered in disciplinary proceedings by the relevant body.

Section 13 of the Architects Act 1997 requires that the ARB issue a code of conduct laying down standards of professional conduct and practice expected of persons who are registered as architects under the Act. This is intended to be of benefit to the clients they serve and to maintain public confidence in the profession. The latest version of the code, The Architects Code: Standards of Professional Conduct and Practice, came into force on 1 January 2017 (previously updated in 2010).

The RIBA Code of Professional Conduct, applicable to individual RIBA members, and Code of Practice, applicable to RIBA Chartered Practices, set out the standards of professional conduct and practice required of RIBA members and practices. The current edition of the RIBA Code of Professional Conduct came into effect on 1 January 2005. It is supported by a series of guidance notes.

1.3 Summary of key changes to the RIBA Agreements 2010 (2012 revision)

The RIBA Agreements 2010 (2012 revision) have been completely updated and revised by bringing them up to date with current best practice and legislation as well as overhauling the format to be compatible with the RIBA Building Contracts.

One single document

Each of the RIBA Professional Services Contracts 2018 has been updated into a single document divided into four main parts incorporating the Contract Details, the Agreement, the Contract Conditions and a Schedule of Services, together with a Contract Checklist to consider before signing the Contract.

The Consumer Rights Act 2015

The RIBA Domestic Professional Services Contract 2018 continues to be for use wholly as an agreement with a consumer client, whereas the Standard and Concise PSCs would not be fully compliant with the Consumer Act without amendments to the terms and conditions.

Reasonable skill and care

The obligation for the Architect/Consultant to exercise ‘reasonable skill, care and diligence’ has been amended to ‘... reasonable skill, care and diligence to be expected from an Architect/Consultant experienced in the provision of such services for projects of similar size, nature and complexity to the Services’ to accord with the standard expected from Common Law and Section 13 of the Supply of Goods and Services Act 1982.

Fully compliant with the CDM Regulations 2015

The Contracts have been fully updated to comply with the CDM Regulations 2015. For legal reasons, the Principal Designer should be appointed under a separate and distinct PSC, for which the RIBA Principal Designer Professional Services Contract 2018 has been produced. This can be used on all forms of Contract but, where the Architect/Consultant is to be appointed as Principal Designer on a domestic project, a Principal Designer appointment has been incorporated into the RIBA Domestic Professional Services Contract 2018 to simplify the appointment process to ensure that the lay client fully understands, and meets, their obligations under the CDM Regulations 2015.

Other Client Appointments

Clarification of the need for the Client to appoint other consultants, in addition to the services provided under this Contract, has been improved and simplified to give the Client a better understanding of the requirement.

Fees and charges

The ‘Fees’ section has been simplified by removing the boxes that aligned fees to stages of the Plan of Work. This is now a ‘free-hand’ text box so that users can simply set out their fees as the Architect/Consultant prefers.

Fee payments

The payment frequency options have been expanded as well as having the additional option of using a draw-down schedule. The payment provision in the Standard and Concise versions already complies with the Housing Grants, Construction and Regeneration Act 1996 (as amended) and, although the Act does not apply to residential occupiers/domestic projects, similar efficient provisions have now been included in the Domestic version for ease of use.

Meetings and site visits

Options for the frequency or number of design meetings have been added into the Schedule of Services for each stage to supplement the frequency or number of site visits previously available.

Dealing with the complex world of insurance

The Contract Details have been revised so that they clearly set out the main insurance policies that should be in place.

The insurance guidance and clauses have been checked and approved by the RIBA Insurance Agency.

Liability and insurances

Liability and insurances have been split into two distinct sections. The Architect/ Consultant’s liability has been amended, so that liability is now limited to the project in question. Net contribution clauses have been reintroduced into the RIBA Domestic PSC due to recent developments in case law, namely the case of West & West v Ian Finlay & Associates, in which the Technology and Construction Court confirmed in its judgement that a net contribution clause does not offend the Consumer Protection Regulations as being ‘unfair’.

Dispute resolution process

The guidance on dispute resolution has been expanded but completing the documents has been simplified and made easier to understand.

For the Standard and Concise versions, the Parties may choose which dispute resolution method(s) they will use should a dispute arise. Adjudication is still available to either party to select at any time, as the parties to the Contract are legally obliged, under statute, to have access to this method for resolving their dispute. However, the Contract advocates that the parties choose mediation as an initial step in the process, as mediation can be less expensive than other methods, and is therefore encouraged by the courts.

For the Domestic Contract, the Client has the right to refer any dispute to the courts but may wish to attempt to settle the matter by alternative means such as negotiation or mediation – and the courts will often make it a precondition to hearing a case that the parties have attempted an Alternative Dispute Resolution (ADM) method. Therefore, mediation and adjudication are highlighted as the initial/preferred forms of settling any dispute in the Contract Details.

Information formats

There is an expanded ‘Electronic Data Transfer Protocol’ to give greater clarity on Building Information Modelling (BIM). If information, drawings and documents are to be produced for the Project using BIM, Computer Aided Design (CAD) and/or other proprietary software, this can now be provided to the Client in one of the following three options:

• 1) in PDF format only
• 2) in PDF format and in the file format(s) listed in the Contract (but only on the condition that the PDF format files take precedence)
• 3) in accordance with an agreed BIM protocol.

An ‘interoperability clause’ has been added to the Conditions to cover any future software compatibility issues, interoperability being the capacity for different computer systems to ‘talk to each other’.

Assignment

In addition to standard assignment clauses the Standard version now includes provision for the Architect/Consultant to be novated to the contractor in the event that it is decided that the project, which starts off as a traditional contract, should become a Design and Build contract. As well as drafting suitable clauses for the Novation Agreement the contract allows for the Architect/Consultant to be novated or to terminate their contract with the Client should they not wish to be novated for whatever reason.

Schedule of Services

The Schedule of Services has been redrafted to suit the specific form of contract for all stages of the Plan of Work 2013. However, although they appear in the schedules, it is envisaged that Stages 0 and 7 would be separate appointments as these stages would either pre-date the signing of the PSC or may inadvertently extend liability beyond the normal terms of the Contract.

Contract Checklist

The Contracts now include a Contract Checklist which both parties should review before signing. This is to ensure that in particular the Client is fully aware of what they are agreeing to, that all of the appropriate documents and information have been provided and that all of the provisions, such as scope of the works, timescale, fees, insurance and the process for dispute resolution, have been adequately considered.

Unused optional items removed from the Contracts

Optional electronic items such as the Public Authority Supplement, Third Party Schedule and Specialist Schedules of Work have been removed from the Contracts. The reason for this is that these items were hardly ever selected by users of the Contract.