No fee (pro bono) or reduced fee services
Architects may from time to time offer their services pro bono (for the public good) whether generally or in response to natural disasters such as bushfires. Even though your services are offered free of charge, or partially free, your professional obligations to the client and your liabilities as an architect in providing those services are not reduced in any way. It is very important to have a formal agreement with the client for the services you deliver for all your engagements. To reflect the nature of pro bono services, you should use the 2019 Client Architect Agreement (CAA2019) contract that includes special conditions tailored to providing pro bono or discounted services.
The Institute has developed special conditions that you can adopt for pro bono or pro bono (Bushfire) commissions when using the CAA2019. The special condition schedules are different, and you should ensure you are using the correct one for your specific engagement.
Special conditions for pro bono work in Bushfire-prone areas
The pro bono (Bushfire) schedule contains conditions specifically written for the risks, qualifications and regulatory environment that applies to designing buildings or structures in bushfire-prone areas. By their nature, these commissions are more complex, require specific knowledge and expertise and are higher risk. The regulation of buildings in bushfire-prone areas has become more stringent over time, while the consensus on design and engineering standards, practices and guidelines may be less certain or may also evolve over time. In particular, specific clauses in the special conditions manage the architect’s risk and clearly set out qualified expectations for an architect’s professional services that apply when designing for a commission in bushfire-prone areas.
Completing the CAA2019 Schedules for No fee or reduced fee services
As for any other commission when using the CAA2019, mark the services that you are going to provide as 'Included' and add in any additional services to be provided in Schedule A to the agreement (see CAA2019 User Guide).
In an ordinary full fee commission, if you do not select one of the fee-basis alternatives for a service your client may be able to use that ambiguity in the contract document to decline to pay for that component of your services that could result in a dispute. When you are putting together the contract for ‘No Fee’ (pro bono) services, it is preferable to make the position clear and unambiguous at the outset so that both you and the client know exactly which component of your services is offered:
- free up to a milestone, value or point in time, after which you will then begin to charge for the service(s); or
- completely for free; or
- at what you would consider a discounted fee.
For those services you are going to provide for free:
- In Schedule B of the CAA2019:
a. If a service is to be free, but only up to limited number of hours spent on it
- In Item 1, cross out the table headed 'Percentage fees' and write ‘Not Applicable’.
- Also, In Item 1, in the table headed 'Lump sum fees', tick the hourly rate box adjacent to that service, and write 'No fee up to {X} hours'. You will determine the figure for ‘X’ number of hours in negotiation with your client.
- Insert your hourly rate(s) in Item 2 as suggested in the CAA2019 User Guide.
- See below for Disbursements.
NOTE: The amended wording of clause D.6 that is included in these template special conditions added to Schedule C, gives you this option to set a cap on the initial hours that you will provide at no fee.
b. If a service is to be entirely free
- In Item 1, for each free service, do not include an amount for the percentage fee or lump sum fee allocated to that service, and instead insert the words 'No Fee' for the relevant service in both tables headed 'Percentage fees' and 'Lump sum fees' (except a service for which paragraph 1a above applies).
- See below for Disbursements.
We strongly recommend against leaving Item 1 or Item 3 blank or merely striking a line through them, because this can leave the schedule and the contractual agreement ambiguous.
- In Schedule A of the CAA2019:
- In Item B.6, insert under the list of 'Other Services' any special or additional services you are going to provide. If these special services are to be provided for free, treat them in the same way as those under paragraphs 1a and 1b above.
Once you have identified the free services, you can treat any full or reduced fee services in the usual way (see CAA2019 User Guide).
Disbursements
Similarly, as for the fee, the contract document should be clear about what is being provided for free, at a discount or at a cost. If you are not seeking reimbursement for amounts ordinarily treated as disbursements, then in Item 3 of Schedule B:
- leave the tick boxes for the relevant disbursement unchecked; and
- in the final column ‘Rate or basis to be charged’ write 'Not reimbursable' for each of the relevant disbursements.
Consultants
It is recommended that the client should directly engage consultants when you are to provide limited, free or partially free services. If you engage the consultant directly, even under a pro bono commission, you are liable for the consultants' mistakes. This would be an additional risk that you then take on, in the absence of any ‘reward’ for your services.
These special conditions assume the client is engaging the consultants – even though they may also be providing the service to the client at no fee. However, this doesn’t change the expectation that the client will engage the consultants on terms where you coordinate their services – this is the effect of section E of the CAA2019 as amended by these special conditions.
Special Conditions
Download the following template as appropriate to your project context and attach the pages to the completed CAA2019 document before the parties sign it. Also arrange for your client to place their initials at the bottom of each page of the template, where provided, so both parties can be certain that the conditions are acknowledged and form part of the whole contract.
- For commissions which are wholly or partly ‘no fee’ but not in bushfire-prone areas nor for bushfire reconstruction, download: Template for pro bono work: CAA2019 Special Conditions not in a bushfire-prone area
- For commissions which are wholly or partly ‘no fee’ and in bushfire-prone areas or for bushfire reconstruction, download: Template for pro bono work: CAA2019 Special Conditions in a bushfire-prone area
It is important that you read and understand these special conditions so that you can both explain the general intent of those conditions to your client and comply with the requirements and modifications made by these Special Conditions.
Disclaimer
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