Last edited 06 May 2019

Form of appointment

A form of appointment is the means by which a consultant is appointed to a project. It is important the terms of the appointment are set out in writing as soon as is practically possible, defining the scope of services that are likely to be required and the fee that will be charged for those services.

A number of standard forms of appointment for consultants are available, a range of which are listed below:

Benefits of using a standard form include:

In some circumstances, appointment may be made by letter or by a bespoke agreement. The NBS National Construction Contracts and Law Survey 2012 indicates that approximately 40% of appointments are made using bespoke agreements.

However, this may be inadvisable because of the risk that bespoke agreements or letters might not adequately or fairly make provision for all circumstances, and that they are not supported by a history of case law. The existence of bespoke agreements is seen by some as a poor reflection of how inflexible and ineffective the industry perceives many of the standard forms to be.

If faced with a bespoke appointment (or schedule of amendments), consult your professional indemnity insurers and seek legal advise.

Risks of bespoke appointments:

If a bespoke agreement is used:

Where a contract is not used, it is suggested that the following matters (at least) should be clearly identified in any exchange of letters:

Letters of appointment may be appropriate if a consultant is required for a very insubstantial or minor commission where a full-blown contract could be seen as heavy handed and off-putting.

Sometimes, a letter of appointment is used to appoint consultants in cases when a client wants the consultant to start work quickly, while a full contract is being prepared. Such a letter should include:

  • A brief description of the project.
  • A scope of work to be undertaken.
  • The fee (excluding VAT) to be paid within the time period, and when it is to be paid.
  • Allowable expenses.
  • The date for the start of work and the period covered by the letter.
  • The right of the client to use material generated in the time period.
  • A statement that the letter is an interim arrangement to be substituted by a contract.
  • A statement that there is no guarantee to extend the appointment beyond the time period stated.
  • The amount of professional indemnity insurance cover required for the project.
  • The named staff or sub-consultants who will carry out the commission.
  • The consultant’s reporting lines within the client organisation.
  • A statement allowing termination of the agreement at will by either party, but with a fair proportion of the fee to be paid by the client as well as properly incurred and recorded expenses.
  • A statement confirming that unresolved disputes will be settled by adjudication under English Law.

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