(Previously known as Agreements that do not include full architectural services)
It is essential that adequate and appropriate fees are negotiated for the services to be provided. While clients will regard a decrease in the range or extent of service as a reduction in the architect's work, this may not always be the case. The fee may not reduce in the same proportion as the reduction in the scope of service, or in some cases, a reduction in the service may increase the architect's risks and liability.
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Under a standard full-service agreement the client briefs the architect, the architect designs the building, prepares contract documents and calls tenders, and the contractor prices and builds from the contract documents. During construction the architect acts as the client's agent and as an independent certifier of quality, progress and value.
However, it is essential to avoid simply describing the service provided for a particular project as full or partial, and carefully and fully define what is included in the service.
Clients, and particularly their lawyers, frequently have a different understanding of the service that the architect has agreed to provide, and the courts are often quick to conclude that the architect is committed to see a project through to completion, unless the conditions of engagement clearly state otherwise.
All client and architect agreements should include a clear description of the services to be provided during each stage of a project. Refer to the Institute's Client Architect Agreement (CAA2019) and the Client Architect Agreement for Limited Services (CAALS2019) as a guide. The client's written agreement to the defined scope of service should always be obtained.
Where the service is limited or partial, confirmation should be obtained from the client that the service provided meets the terms of the agreement.
Design services only
Before accepting a commission for design services only, clearly establish what the client wants you to provide and what will be done with the designs produced.
Clients may seek to engage an architect to provide design services only for a variety of reasons, including:
- as part of a feasibility study to assess the viability of a project
- to facilitate the sale of an existing building or site
- to avoid the fees for a full service
- as part of a selection process
- as part of a competition.
In these cases you should consider:
- the terms of agreement in relation to the licence granted to the client
- your copyright and moral rights
- limitation of liability regarding compliance with planning or building codes, and purpose of the documents provided (seek advice from your professional indemnity insurer).
Client and architect agreements used for design services only should include an explicit description of the proposed level of design detail to be provided, an indication of what the drawings are to be used for and contain a statement similar to the following:
- the commission is for design only (preliminary, schematic, indicative)
- the design drawings are not suitable for building approval or for construction purposes.
Design and documentation only
A commission to the end of documentation should be undertaken with caution. In such cases control over the documents is relinquished, documents can be amended without your consent and there is no opportunity for you to correct discrepancies.
Discrepancies in the documents occur in every project (Refer Acumen note: Errors and omissions). A full service agreement offers the opportunity to address and resolve these. Limiting the architect's service during construction denies this benefit to the project. There is also no opportunity for you to assess substitutions offered by the contractor. Many substitutions have unintended consequences which the designer is in a much better position than anyone else to appreciate (Refer Acumen note: Substitutions).
The ability for you to explain particular details of the design is also lost, as the link between the brief and the final product is broken. In such commissions it is advisable to include provision for a careful review of the documents prior to release. It is critical to clearly define when documentation ends, eg at tender document stage or when documents are produced for a defined authority approval.
In commissions that end at documentation, it is common for the client to ask you to visit the site either regularly (to keep an eye on things), fairly regularly (to help assess progress claims) or occasionally, to certify the stage of the job or to assist the builder in interpretation of the drawings or specification.
All of these requests should be approached with caution. If accepted without limitations, any of these requests could unwittingly expose you to full liability just as if you had been engaged for full contract administration.
Partial or excluded contract administration
Commissions that exclude contract administration entirely or only allow for partial services during construction have the potential to expose you to increased or unexpected risks. Such projects should be approached with caution. The following guidelines should be observed when preparing agreements for projects of this type:
- clearly define the services to be provided and the limitations of those services
- establish realistic fees for the defined services
- obtain the client's agreement to the defined services in writing
- include clauses within the agreement that will protect the integrity of the design.
If there is any serious doubt concerning the extent of your responsibilities, or if the form and extent of the service is unfamiliar, it is prudent to have the conditions of engagement reviewed by your professional indemnity insurer and a solicitor.
If the services exclude contract administration completely, you should write to the client and recommend that inspection during the construction stage is carried out by a competent, experienced and independent inspector. Advise the client that issues will need to be addressed during construction to assist the contractor in completing the works.
If it is deemed necessary to provide partial services during construction, liability associated with the provision of these services can be limited by including the following disclaimer in your Client and Architect Agreement:
During monthly site attendances, the architect's duty will be to confer with the builder and the client, to answer specific questions concerning design problems or concerning the documents put to them by the builder, and the architect will inspect such items of work specifically referred to them by the builder and the client only.
It may also be prudent to include the following clause to indicate which responsibilities will not be undertaken:
Because the builder is responsible for the superintendence of the work, the architect has no obligation or duty to ensure that the construction work is in accordance with the contract documents and there is no general duty cast on the architect to supervise, to inspect, or generally to observe the progress of the works.
Also refer Acumen note: Requests for issuing certificates
Withdrawal of licence
When negotiating an agreement for services that exclude contract administration, you should consider including a clause withdrawing the client's licence to use the design in circumstances where there is a breach of the terms or conditions of the agreement. Such a clause should specifically state that the withdrawal is without prejudice to your right to recover damages resulting from the breach. Such breaches could include:
- a failure to pay the architect
- significant design changes being made without the architect's consent, or
- the design being used for another site.
Disclaimer
This content is provided by the Australian Institute of Architects for reference purposes and as general guidance. It does not take into account specific circumstances and should not be relied on in that way. It is not legal, financial, insurance, or other advice and you should seek independent verification or advice before relying on this content in circumstances where loss or damage may result. The Institute endeavours to publish content that is accurate at the time it is published, but does not accept responsibility for content that may or has become inaccurate over time. Using this website and content is subject to the Acumen User Licence.