The new crop of RICS standard contract are about to make quantity surveyors’ lives a lot easier
Heads up, you quantity surveyors! The RICS is about to publish a new suite of professional services contract documents. Impressive! And let me give you QS boys and girls a nudge: keep on the right side of the RICS by using these forms. Why? Well, when someone whinges to the RICS about your service, the complaints will inevitably contain the grenade you failed to enter into the form. And that little health warning goes for you big boys, too.
There is a new short form and a standard form. Let’s look at the latter first. It is meant for, well, standard building projects. I think that means commercial “millions” are to be looked after. It probably refers to the sort of building contract where employer and contractor would use JCT2005 middle size and large size, if you get my drift. The RICS says the short form is for the “more straightforward project”. Perhaps they should say “more straightforward on paper”.
The standard RICS consultancy form comes in two booklets, plus a third to explain the other two. Booklet one carries all the clauses and booklet two is a tick-box affair, which I love. The clauses take up 11 pages and deserve top marks from the Plain English Campaign. Even more helpful is that booklet three explains what is going on with the 20 contract clauses intended to create the duties between client and QS. It explains very fairly to the client that it is daft to load risk on the other bloke unless he is big enough to take it. So this appointment contract includes a limit on the liability of the QS if it drops a clanger. In practical terms, the amount that a client is able to recover from the QS will be limited to its professional indemnity insurance. The reason is ever so straightforward. If things go belly up and the QS consultant is the culprit, you can’t get blood from a stone. Sue the QS for millions, by all means, but it’s pointless if it can’t pay you.
The standard RICS consultancy form comes in two booklets, with a third to explain the other two. The clauses take up 11 pages and deserve top marks from the plain English campaign.
Bear in mind the RICS is not saying all this to protect its members. Its number one priority is protecting customers – the clients of its members. That’s a controversial priority, but the RICS sticks to its guns. So when this consultancy contract discusses capping liability for QS folk, the RICS really does intend it to be the best way for clients to proceed. Mind you, if the client doesn’t like the proposed cap, it can just lift the level of insurance cover and pay a premium.
Move then to “What the RICS member is going to do for their money”. This is the document with tick boxes instead of words. It’s like filling in one of those insurance policy questionnaires. Tick the box when asked if you’ve ever had leprosy or two heads. The RICS form has precisely 100 boxes begging a tick. Yes, 100. Some bright spark has sat down and worked out that “quantity surveying services” potentially have 100 jobs to do. So, if eventually there is a row about the QS not measuring the gross floor area, look to see if that box (yes there really is a box) is ticked. A box begs a tick if the QS is to “prepare, maintain and develop a cost plan and cash flow forecast” or “prepare bills of quantities for inclusion in tender documents”. It’s brilliant. This sort of thing is required of every participant in the building business. We could have a tick box system for every plastering subcontract. It’s a “who-does-what-for-his-money” idea. And when the roofer complains about a bill for clearance of his rubbish, look up the tick box. So maybe box 101 on the consultants’ tasks is to produce a tick box for each trade contractor.
The same standard form rules apply to “building survey services” as distinct from QS services. Tick boxes have listed tasks in separate sections for construction, measured surveys, asset management, insurance, feasibility, property, landlord and tenant, together with a miscellaneous section (insolvencies, grants and more).
The form has 100 boxes begging a tick. Yes, 100. Some bright spark has worked out that quantity surveying services have 100 jobs to do.
The whole point of a contract document is to set out the rights and duties of the parties involved. I make a living deciding what the contract actually means, what it objectively intends, then, heaven help me, whether promises were broken – all the time fathoming the promises surrounded by arguments about words in the contract.
This tick box system goes a long way to sorting all that out. One day you might not even need me …
Tony Bingham is a barrister and arbitrator