Architects engaged as secondary or subconsultants

Matters for agreement

The role of the secondary consultant secondary consultant A consultant whose work is subject to the direction and coordination of the primary consultant. The secondary consultant is in contract with the client. View full glossary or subconsultant is more limited than that of the primary consultant. It is likely that the architect, when engaged as a secondary or subconsultant subconsultant A consultant whose work is subject to the direction and coordination of the primary consultant. The subconsultant is in contract with the primary consultant. View full glossary will perform less than a full service.

It is vital that all parties involved, the secondary or subconsultant, the client and the primary consultant have a clear understanding of the services to be provided by each party.

It is recommended that architects engaged as secondary or subconsultants consider all the architectural services that will be necessary for the project. If there is a service that is necessary for the project, which you have not been asked to provide, you should establish who will be providing it.

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Conditions of engagement for architects as secondary or subconsultants

 Conditions of engagement should define the following:

• the scope of the service to be performed by the primary consultant primary consultant A consultant, often the architect, whose responsibilities include direction and coordination of the work of specialist consultants. The primary consultant is in contract with the client. View full glossary and the conditions of engagement, where appropriate – especially the areas of responsibility and the services for which the primary consultant is not responsible
• the scope of the services to be performed by the architect and the primary consultant's responsibility for those services performed by the architect
• arrangements for consultation between the primary consultant and architect during preparation of documents (eg local knowledge, authorities)
• services with shared responsibility and the extent of service to be provided by each of the parties
• identification of the architect and the scope of service for the purposes of documents, correspondence, site sign, etc
• responsibility for the selection and engagement of other specialist consultants and terms for payment of fees incurred
• control of, and attendance at, meetings
• procedure and responsibility for variations
• authority for giving instructions to the contractor
• arrangements for issuing certificates
• fees and methods of payment
• travelling expenses and other reimbursements
• evidence of professional indemnity insurances held by all consultants – if in doubt about the adequacy of the insurance held by others, ask your broker for advice
• copyright ownership and how the moral rights of the authors of designs are to be managed
• If the primary consultant, as agent for the client, appoints the architect as a secondary consultant to the client, the primary consultant should be asked to obtain a letter from the client agreeing to the appointment and to the relevant conditions outlined above.

Copyright and licence

It might be suggested that the copyright should vest in either the client or the primary consultant. This is not necessarily so and architects should not give away their intellectual property without appropriate consideration. In the absence of an agreement, and unless the work has been created under the 'direction and control of the Commonwealth or a State', the author or the author's employer will be the copyright owner. A primary consultant is not a subconsultant’s 'employer' in this context. Where a copyright work is prepared by the architect alone, the architect will own the copyright.

Where prepared by the architect and the primary consultant, in most cases both will own the copyright jointly.

The architect should also ensure that any licence to use designs will only be transferred upon payment of fees. In this arrangement, the architect is able to reserve the right to withdraw the licence if the client or primary consultant breaches the obligation to pay.

Also refer Copyright

Publicity and moral rights

The architect should ensure that attribution is given for the service provided, but no more than for that service. If the agreement includes a provision for the architect to consent to an infringement of their moral rights, this attribution may not be possible.

In any form of publicity, such as a site sign, the name of the persons responsible for other parts of the service should be stated so that the public is aware of the architect's role – for example, that the design architect is not responsible for contract administration.

Also refer Moral rights

Fees

In establishing an appropriate fee, the architect will take into account the fact that some of the normal functions of an architect acting as the primary or only consultant will not be called for. On the other hand, there is also the possibility of extra costs due to the nature of the agreement. For example, documentation of the project in separate packages substantially increases the work of the architect.

It is necessary to establish by whom and on what terms the architect will be paid and, if by the primary consultant, the period for payment. In some jurisdictions, Security of Payment legislation precludes 'pay when paid' conditions.

Professional indemnity insurance

In most circumstances each consultant should carry separate professional indemnity cover. Specialist advice should be sought from a broker or insurance company if it is proposed to depart from this arrangement.

In particular, architects should ensure that the broker checks for gaps between the various insurances which could leave the architect without cover for a risk, even if it is primarily the responsibility of another member of the design or building team.

Documentation

The architect's documentation of a building normally describes the end result, not the means of achieving that result. The responsibility for construction methods rests with the contractor. This is the case whether the architect is a primary consultant or secondary or subconsultant. Documentation and design does not end when tenders are called. Part of contract administration is the resolution of design matters and the provision of additional or detailed documentation. Where contract administration is carried out by others, the architect may lose the power to contribute to the resolution of design or documentation issues. Documentation may need to be more detailed or perhaps simplified.

In all cases, it is important that in the conditions of engagement, the architect makes it clear to the client or the primary consultant that the contract documentation shows only what is to be achieved and that the architect accepts no responsibility for methods used during the execution of the works to achieve that result.

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Conditions of engagement for partial contract administration

Types of building contracts

Where partial contract administration is proposed, it is unlikely that the architect will be the prime adviser concerning the type of contract to be used. It should also be recognised that most Institute standard-form contracts are unsuitable unless administered by an architect.

Contract administration

If you are engaged only for contract administration, as a secondary or subconsultant, adequate time should be given to inspect the documents prior to calling tenders or contract negotiation.

When it is known that the contract is to be administered by the primary consultant or a person other than an architect, you should consider the conditions of engagement carefully.

The common law has established certain well-defined legal responsibilities of architects administering standard forms of building contract. Similarly, the roles of related professional persons, such as engineers or persons with degrees in building are well understood and easily defined.

It is a complex issue for an architect to agree on sharing responsibilities with, say, a consulting engineer who has knowledge of building matters. Additional problems arise when an architect-designed project is to be administered in the construction stage by a primary consultant who is not professionally qualified to do so or who does not understand the design intent.

Inspection

When not engaged for contract administration, the architect should ensure that the construction process is inspected by a competent and effective inspector.

Intermediate examination

Institute contracts provide for a high level of communication between the architect and the contractor for the express purpose of dealing with matters that cannot properly be dealt with in the documentation stage. They generally extend the design and documentation role of the architect into the contract administration stage and give the architect the opportunity to audit the documents and examine the product to confirm that it meets the intended purpose. This is the architect's role of intermediate examination. As a primary consultant in a full commission this role is automatically given to the architect by all common standard forms of contract.

In a partial service commission in which the services of the architect are to be discontinued at tender stage and another person is to administer the contract, you should consider whether to seek to retain an opportunity for intermediate examination.

For changes in design, you should ensure that the client and primary consultant will reproduce your design faithfully and consult you prior to making any changes.

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