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:

• RIBA Standard Agreement for the Appointment of an Architect 2010.
• ACA SFA 2010: ACA Standard Form of Agreement for the Appointment of an Architect: (English Law).
• RICS Standard Form of Consultant's Appointment.
• B103 - Appointment of a Structural Engineer.
• B100 - Appointment of Professional Consultant.
• NEC Professional Services Contract.
• RIBA Standard Agreement 2010 - Consultant.
• CIC conditions of contract for the appointment of consultants on major building projects.
• ACE Agreements.
• SCALA (Society of Chief Architects of Local Authorities) Red Book for the appointment of consultants.
• JCT Pre-construction services agreement.
• JCT Consultancy agreement.

Benefits of using a standard form include:

• Provides clarity, comfort and protection to parties.
• Avoids misunderstandings and disputes.
• Defines fees and provisions for payments.
• Clarifies copyright position.
• Fair and reasonable allocation of risks between parties,
• Less expensive and more convenient.
• Current industry practices, procurement and legislation.
• Proven legal basis in case law.

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:

• Can transfer risks.
• Can limit consultant's authority.
• Can limit client's obligations.
• Can impose strict obligations on consultants.

If a bespoke agreement is used:

• This is a matter of professional principle, commercial judgment and negotiation.
• Legal advice should be sought and the consultant's insurers consulted.
• It is important to check there is only a 'duty of care' provision and not a 'fit for purpose' requirement.
• It is important to check clauses relating to warranties, payment provisions, copyright, termination and disputes.
• The provisions of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act) will still apply if the client is not consumer client.

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

• The date of the agreement.
• The name and address of the employer.
• The name and address of the consultant.
• The title and address of the project.
• The formal agreement to the appointment of the consultant.
• The basis of remuneration for the consultant and the arrangements for payment.
• The form and scope of services to be provided.
• The appointment procedure for other consultants.
• The procedure to be followed in the event of the consultant's incapacity.
• The procedure for the termination of the agreement.
• The procedure for resolving disputes between the parties.
• The name of an agreed adjudicator or the agreed nominator of an adjudicator.
• The programme.
• The budget.
• Insurance requirements.

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.

[edit] Related articles on Designing Buildings

• Appointing consultants for building design and construction.
• Architects appointment.
• Consultant team.
• Employer's information requirements.
• Framework agreements.
• Letter of appointment.
• Professional appointments.
• Programme consultant.
• Request for proposals.