Avoiding personal contracts

The risk of incorrectly creating personal contracts can be avoided by:

• Ensuring that there is a written contract in place between the architecture firm
  and the client that clearly states the legal entity providing the architectural services.
• Making it clear that individual architects providing the architectural services are providing the services on behalf of the architecture firm (for example, as a director or employee) and not in an individual capacity.
• When providing correspondence to a client an email signature should include not only the individual’s name but also the name of architecture firm to make clear that they are acting on behalf of the architecture firm.

However, in some cases, a client's engagement of a particular architecture firm may be based on an expectation that particular architects or employees of that firm perform the work for that client (for example, due to the individual skill, reputation or personal qualities of that particular architect or employee). Accordingly, a client may seek to ensure that its contract with the architecture firm confirms that particular architects or employees perform certain roles in respect of the work under that contractual engagement. One way that this can be achieved is by including a 'key personnel' clause in that contract.

'Key personnel' clauses typically provide that the architecture firm (which is the party to the contract with the client) must ensure that particular architects or employees of that firm are engaged in particular roles in respect of the relevant work. Clauses may also set out when the architecture firm can replace the nominated 'key personnel' during the course of its engagement (such as if a nominated 'key person' leaves the firm or becomes incapacitated) and the requirements for their replacements (such as their level of experience and qualifications held). The ability to replace nominated 'key personnel' will therefore be governed by the terms of the relevant contractual provision.

Example case study

Client X retains an architectural firm, Firm X, to perform consultancy services on a townhouse development project. However, Client X only wants Senior Architect X and Junior Architect X to perform the architectural services under his contract with Firm X. Client X has received positive feedback about their work performance on other similar projects.

Client X instructs their solicitors to include a 'key personnel' provision in the contract. The provision is drafted to provide that:

• Senior Architect X and Junior Architect X must be retained in the roles of 'Lead Architect' and 'Supporting Architect' (respectively) on the project;
• Firm X is required to ensure that Senior Architect X and Junior Architect X perform their nominated roles; and
• Firm X can only replace Senior Architect X and Junior Architect X:
  • if they are no longer employed by Firm X, are incapacitated and unable to perform architecture services, or otherwise with Client X’s prior written consent; and
  • with individuals who have at least equivalent experience and qualifications as the person they are replacing.