EM Law are experts in advising clients on professional appointments. Our lead construction lawyer is Anna Rabin who has extensive experience in advising clients on a wide range of construction law matters.
What are professional appointments?
A professional consultant provides specialist design, advice or other services in relation to a construction project. Professional consultants may include architects, engineers, quantity surveyors or project managers. As with any business agreement, it is best practice for a client to appoint a professional consultant under a written contract. Professional appointments are used to appoint one of these consultants.
Should I appoint a professional consultant?
A client will usually benefit from appointing at least one key professional consultant at an early stage of a project. A professional consultant can guide the client through the project and advise on what other professional disciplines the client needs to appoint. If the client is experienced in construction projects, they may delay appointing a professional consultant until later in the project.
Most of the major disciplines of professional consultant are regulated by their own professional bodies. Quantity surveyors, for example, are governed by the Royal Institute of Chartered Surveyors. In fields where a regulating professional body does exist, it is best practice to engage a consultant who is a member of that body. You should also be aware that the law sometimes compels a client to engage certain disciplines of professional consultant. The Construction (Design and Management) Regulations 2015, for example, may require the client to engage a ‘principal designer’.
A typical professional appointment consists of a set of terms and conditions, which set out the obligations and responsibilities of the parties. A professional appointment should also include various schedules which set out, amongst other things, the scope of services, fees and payment and personnel involved. A professional consultant can be appointed in numerous ways. A client may use a standard form of appointment, a bespoke form of appointment, or a letter of appointment. This note focuses on the standard form of appointment.
Construction Act 1996
Most professional appointments in the UK are subject to the requirements of the Construction Act 1996. If the Construction Act 1996 applies, the payment and dispute resolution mechanisms must include certain mandatory provisions. For example, unless it is specified in the contract that the duration of work is to be less than 45 days or is estimated to be less than 45 days, a party is entitled to make payment by instalments, stage payments or other periodic payments. If these are not included, mandatory payment and adjudication provisions will be implied into the contract.
A client may require a professional appointment to provide collateral warranties or third party rights in favour of other parties with an interest in the project. This may include a funder, tenant or purchaser under the building contract.
In a design and build project, the professional consultant engaged by the employer may also be novated to a contractor as the building contract is put in place. For example, if the employer appoints a building contractor, they will typically require a direct contractual relationship with the professional consultant who prepared the design prior to the contractor becoming involved. A novation clause is therefore usually included in the professional appointment stating that the consultant will enter into a deed of novation with the employer and the contractor if requested. Consideration need not be provided for this new contract if the novation is documented in a deed signed by all three parties.
For any questions you may have concerning professional appointments contact Anna Rabin.
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