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It is essential that adequate and appropriate fees are negotiated for the services to be provided by the architect.
While clients may regard a decrease in the range, extent or scope of service as a reduction in the architect's work, this is not always the case. The fees may not reduce in the same proportion as the reduction in the scope of service and, in some cases, a reduction in the service may increase the architect's risks and liability.
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Typically, under 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 both the client's agent and as an independent assessor of quality, progress and value.
However, it is essential to avoid simply describing the service provided for a particular project in terms such as full or partial but rather to carefully and fully define what is included in the service.
Clients may have a very different understanding of the agreed services and the courts tend 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 2024 Client Architect Agreement (CAA2024) 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, acknowledgment and confirmation should be obtained from the client that the limited or partial service reflects the terms of the agreement.
Design services only
Before accepting a commission for design services only, you should clearly establish the deliverables 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 and circumstances, 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, or
- 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 and
- limitation of liability regarding:
- compliance with planning or building codes,and
- the 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 the intended use of the drawings, and a statement similar to the following:
- The commission is for design only (concept schematic, feasibility), or
- The design drawings are not suitable for building approval or for construction purposes.
Design and documentation only
A commission to the end of the documentation phase should be undertaken with caution. In such cases control over the documents is relinquished, documents may be amended without your consent and there is no opportunity for you to correct discrepancies.
The responsibilities for the certificates, Performance Solutions, and product selections also need to be defined.
Discrepancies in documents are likely to occur in every project (Refer Acumen note Errors and omissions). A full service agreement provides the architect the opportunity to address and resolve such discrepancies that would otherwise be limited. Further, there is no opportunity for the architect to assess substitutions offered by the contractor. Many substitutions have unintended consequences which the designer is in a better position than others to appreciate (Refer Acumen note Substitutions).
Additionally, as the connection between the brief and the final product is broken, the architect has limited ability to explain particular details of the design. In such commissions it is advisable to include provision for a complete review of the documents prior to release. It is critical to clearly define when documentation ends, for instance, at tender document stage or when documents are produced for a defined authority approval.
In cases where the commission concludes at documentation, it is common for the client to request site visits. These site visits may be regular to assist the assessment of progress claims, or irregular to certify the stage of works or to assist the builder with interpretation of the drawings or specification.
These requests should be approached with caution. If accepted without limitation, any of these requests could inadvertently expose you to full liability as though you had been engaged for full contract administration.
Partial or excluded contract administration
Commissions that entirely exclude contract administration or only allow for partial services during construction have the potential to expose you to increased or unexpected risks.
The following guidelines should be observed when preparing agreements for this type of project:
- clearly define the services to be provided and the limitations of those services
- establish realistic fees for the defined services
- establish the responsibilities for the certificates, sign offs, performance solutions, and product specifications
- obtain the client's agreement to the defined services in writing, and
- include clauses within the agreement that will protect the integrity of the design.
Should there be any uncertainty concerning the scope 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 both your professional indemnity insurer and a solicitor.
If the services exclude contract administration completely, you should write to the client recommending that inspections during the construction stage be carried out by a qualified, experienced and independent inspector. Additionally, it should be communicated to the client that issues which arise 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, the associated liability 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 documents presented by the builder, and the architect will only inspect such items of work specifically referred to them by the builder and the client.
It may also be prudent to include the following additional clause to outline the responsibilities that will not be undertaken:
As the builder is responsible for the performance of the work, the architect has no obligation or duty to ensure that the construction work is in accordance with the contract documents and the architect does not assume a general duty to supervise, inspect, or otherwise monitor the quality or progress of the works.
Also refer Acumen note: Requests for issuing certificates
Withdrawal of licence
When negotiating an agreement for services that excludes contract administration, you should consider including a clause withdrawing the client's licence to use the design if there is a breach of the terms or conditions of the agreement. Such a clause should expressly state that the withdrawal is without prejudice to your right to recover damages for any breach. Examples of such breaches could include, but are not limited to:
- a failure to pay the architect's fees as agreed
- significant design changes being made without the architect's consent,or
- the use of the design for another site or project not covered by the agreement.
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.