A basic point to specify when appointing a consultant is what they will actually be doing. Here’s a handy guide to the behaviour of the most common species
Regrettably, it is uncontroversial to suggest that claims against consultants have risen as the recession bites ever deeper.
So, when negotiating the ever-decreasing number of new appointments that are available, consultants and their insurers are understandably keen to limit their exposure to claims. Clients are equally keen to ensure that they have adequate contractual recourse against their professional team and may well consider that it is a buyer’s market when it comes to bargaining strength.
In our experience, negotiations are becoming increasingly drawn out and contentious, often involving issues such as caps on liability (including the controversial net contribution clause), notice periods for termination and suspension and whether or not the copyright licence should be conditional on payment of fees.
One area of possible contention that can sometimes be overlooked is the question of just what services the consultant will be performing. Which raises the interesting question of what services should clients look to their consultants to provide; and what should consultants be willing to commit to? Although each project may have its own quirks and requirements, there are a number of key terms that the parties need to consider.
So, here are some broad brush (but hopefully helpful) pointers.
• Project manager The key point is that they are (or should be) directly accountable to the employer and responsible for the successful outcome of the project from inception through to completion. This includes programming, monitoring and management as well as advising on the appointments of the other professionals.
Once the team is appointed, the project manager should drive them forward to develop a clear plan and ensure that the interest of any third parties, project sponsors and stakeholders are dealt with.
Finally, they have responsibility to manage status reports for the duration of the project.
• Quantity surveyor The key tasks are to advise on budget, procurement and cost management; then, as the design progresses, the QS would be expected to cost plan the project.
Negotiations between clients and consultants are becoming increasingly contentious
Another key role is to lead on the procurement of the contractor and advise on the best form of contract for the project. During construction, they advise on any cost changes, value the works and agree the final cost with the contractor.
From the initial calculations to the final account, the QS will seek to minimise the costs of a project while still achieving the required standards and quality.
• Architect Has the difficult task of interpreting the client’s vision and transforming it into a reality. They often take the lead in obtaining planning permission.
Key roles include formulating the design and then helping the rest of the team to achieve it. This involves creating a structure that will meet the client’s requirements while balancing any constraints and ensuring that the other designers and contractor are able to realise the architectural vision.
On a more practical note, the architect will produce the detailed design and solve any design problems that might occur during building. They also have a role to play in reviewing the quality of the works.
• Services engineer Plays an important role in relation to energy use and conservation, aiming to minimise the environmental impact and reduce the carbon footprint; the modern emphasis is on whole-life cycle costing techniques.
They also design or produce performance specifications for M&E installations and commissions and organise and assess the work of contractors. In particular, this involves supervising the installation of building systems and specifying maintenance and operating procedures.
• Structural engineer Their main responsibility is to analyse suitable configurations of the basic structural components of the building.
Other important roles include communicating the design of a structure through drawings, specifications and computer models so that others can construct it, and liaising with and closely monitoring the contractors to ensure that the building is structurally sound.
Stuart Pemble is a partner in Mills & Reeve and David Martin is a director of GVA Grimley