Last edited 15 Feb 2021

Employer's requirements for building design and construction

Employer's requirements are typically used on design and build projects (such as Joint Contracts Tribunal (JCT) DB16) or on a traditional contract where the contractor is to design discrete parts of the works.

They provide a description of the client's requirements, including; the specification for the building, the scope of services required from the contractor and an allocation of risk for unknown items. Contractor's proposals are then prepared in response to the employer's requirements. These present the contractor's suggested approach for designing and constructing the building, along with their price.

The level of detail in the employer's requirements and the extent of design required from the contractor is very variable. Employer's requirements can range from a very simple specification to a fully developed performance specification and concept design.

The employer's requirements is a very important document as it defines the success of the outcome. The better prepared they are, the keener the price from the contractor and the less likely there will be disputes. If the employer's requirements are not properly developed, the client can incur significant additional costs, as any requirements which are not properly specified, or are changed, will require the issue of instructions for which the client will be charged by the contractor.

Contracts may be awarded on either a single-stage or two-stage tender processes. A single-stage process is suitable where the information presented in the employer's requirements is sufficiently well developed for the contractor to be able to calculate a realistic price.

This can be the case either if a concept design has already been prepared by consultants working for the client, or if the building is very straight-forward, in which case much of the design work might be carried out by the contractor during the tender process.

A two-stage tender is suitable where the employer's requirements are not sufficiently well developed for the contractor to be able to calculate a realistic price. In this case, the contractor may tender a fee for designing the building along with a schedule of rates that can be used to establish the construction price for the second stage tender.

Employer's requirements might include:

A project overview.
Scope of services required, including identification of elements requiring contractor design.
The form of contractor's proposals required.
Format required for the contract sum analysis.
Procedures that will be adopted upon award of the contract.
Parts of the strategic brief (or project brief if this has been developed).
Prescriptive or performance specifications (or a combination).
Site information.
Existing design drawings (if they exist), or perhaps an existing building information model.
Programme and delivery process (including phasing).
Proposed form of contract, perhaps including a model enabling amendment making a BIM protocol part of the contract documents.
Procedures for inspection, testing, commissioning and handover.
Responsibility for statutory approvals (such as planning permission and building regulations approvals) and information about any existing approvals or consultations.
Design liability.
Requirements for warranties.
Professional indemnity and other insurance requirements.
Allocation of risk.
Requirements for samples and items for comment or approval.
Tender pricing document (or form for contract sum analysis).
Pre-construction Information.
Client policies (such as environmental or health and safety policies).
Collaborative practices.
Employer's information requirements for building information modelling.
Request for details of named or nominated sub-contractors.
Any requirement for consultants to be novated or switched to the contractor once the contract has been executed.
Targets for post-occupancy evaluation.

Once the client has received the contractor's proposals, there is likely to be period of negotiation during which any inconsistencies between the contractor's proposals and the employer's requirements are discussed and either the contractor's proposals or the employer's requirements are amended to ensure agreement between them. This is an important part of the tender process as it is not always entirely clear which document prevails after the contract has been entered into.

Dealing with a complaint:

If the client alleged that a defect was due to our negligent design. The first action would be to contact the Insurance company and warn them of a possible claim for negligence being made.

Professional Indemnity Insurance is required by Architects under the ARB and RIBA codes of conduct, and under clause 7.4 of the RIBA standard conditions of appointment for an Architect 2012. Its purpose, in part, is to protect the Architect from claims in negligence . Clause 7.3 in the RIBA standard conditions of appointment for an Architect 2012, provides a limit of the Architects Liability with a Net Contribution clause. This is an express term in the contract and only allows a claim of damages to be brought against them for their fair share of losses incurred.

For example, a judge may find that 70% of the damage is down to poor workmanship from the contractor, with 30% resulting from negligent design. The architect can only be liable for 30% of the work. If this clause was not in the contract, it would leave the architect open to very large claims from the client for the full amount.