Recommendation of 11 October 1985 on the Application of Article 20 of the Code of Professional Conduct and Practice (Architect - Client Contract)
Approved by the National Council in session on 11 October 1985.
Article 1 The need for a written contract
Article 20 of the Code of Professional Conduct and Practice, approved by the RD of 18 April 1985, confirms the need for a written contract.
This contract must accurately specify the primary elements of the relationship between the client and the architect, in accordance with the steps set out in the article. That which is agreed and specified by the parties must be put in writing; this is self explanatory as regards evidence, as set out in the Civil Code, more particularly Article 1341.
It is also recommended that every engagement, other than the normal engagement, be put in writing.
Article 2 Time at which the contract should be signed
The contract must be signed as soon as is possible.
As soon as the engagement has been described, the architect, and his client, must clarify the architectural design. It is in the client's interests to understand the scope of his obligation. The architect, in turn, must know his engagement and his remuneration.
In some cases it is not possible to specify the extent of an engagement from the outset; in that case the parties will at least agree to notify each other of their intent by an exchange of letters. In other cases an agreement will be signed to provide preliminary services and analyse the programme and budget, or a protocol or a statement of intent will be signed for the preparatory phase of the architectural design and a description of its content given.
Whatever the formula applied, there are two essential elements to be made explicit: the freedom of either party to bring the negotiations to an end, and the remuneration of the architect.
Article 3 Content of the contract
It is impossible for the Order to prescribe a uniform contract as many different situations can occur.
The Order can, however, suggest several model contracts by way of indication. The architect should check the following elements and specify them:
3.1 Identification of the parties A full identification of the client must be given; if it is a natural person the surname (maiden name for a married woman), first names, marital status, profession, nationality and place of residence must be stated.
In the case of a personal build or if the client is married it is recommended to check whether the spouse should also sign the contract.
In the case of legal persons the business name, headquarters, company registration number and statutory representative bodies must be stated. The architect must give the identity of the architect or architects who collaborate on the project and carry civil and professional liability for it.
If it concerns an association it will be necessary to state the registered office. If non-architects are involved the services of these persons must be specified in a separate contract.
3.2 Identification of the construction site
The construction site, if it is already known, must be accurately located. The contract must contain the client's declaration of ownership or other titles. A change of construction site need not necessarily imply a termination of the contract.
3.3 Determination of the building
The contract states the category of building involved (according to the reference standards) and the programme and budget.
The architect informs the client of the options for awarding a contract to a contractor, and the parties agree the method.
3.4 Appointment and obligation of the architect
The architect's appointment is described in accordance with article 20 of the Code of Professional Conduct and Practice and the Order's recommendations.
It is also worth mentioning that:
- unless explicitly specified otherwise, it is the architect's job to check that the work is carried out as agreed and in line with good practice; this is merely general superintendence of the works and not permanent supervision;
- if the client appoints technical consultants to deal with particular problems it is down to the architect to give appropriate instructions so as to coordinate the respective inspections, but to leave these technical consultants responsible for the inspections and how they are conducted;
- if technical consultants are brought in independently, the architect must ascertain that their reports correspond to the architectural design and take responsibility for their coordination and integration. It is not his task to check technical reports in areas that are not within his competence.
When two or more architects act simultaneously or consecutively the services to be undertaken by each must be described. The contract can also indicate the term within which the architect is required to deliver his services.
In that case the architect must give adequate consideration to how his insurance guarantees will be affected in the case of an unwarranted overrun of the terms agreed.
The architect may be given supplementary or extra tasks, such as: architectural model, extra copies of plans and documents, tasks relating to the periodic budget review, equipment construction, site planning, etc.
3.5 Architect's fee
The contract specifies the method by which the fees are calculated (calculation basis and calculation processes); it sets the due dates and payment dates. The contract will also specify the indexation and late payment interest and how they are applied.
Finally, the contract will make provision for the reimbursement of expenses such as travel expenses, special representation expenses, etc.
It will state the hourly rate charged for additional services specified in the contract.
3.6 Liability of the architect and insurance
The contract mentions the insurance guarantee or guarantees that apply in the framework of the engagement. This concerns the architect, on the one hand, and the intentions of the other construction operation partners, more particularly the client.
(See paragraph 2 of article 15 of the Code of Professional Conduct and Practice.)
It is preferable that the architect mentions in the contract that he is not liable for the financial consequences of mistakes or errors on the part of other construction partners such as the contractor, engineer, etc.; and that he cannot be held liable for latent conceptual defects in materials and fabricated or prefabricated elements.
The architect may also agree with his client that, in relation to his client, he does not accept liability in solidum with any other partner on the build.
The contract sets out the rights of the architect in this respect. It may also make provision that the architect reserves the right to reproduce the project or to make use of it again.
3.8 Obligation of the client
The contract sets out the obligation of the client.
By way of example:
- the client sets and provides the budget for the programme and ensures that the funds are released well in advance; he notifies the architect of all sums paid to the contractor;
- the client signs all applications to obtain the permits for the agreed works and personally handles all appeals to the relevant authority or third parties. All administrative or civic documents pertaining to the design are made over to the architect immediately;
- the client selects competent building workers that can produce evidence of accreditation and registration. In making his selection the client takes account of the contractors' solvency and public liability insurance;
- on commencement of the works the client must have insurance covering the risks of fire, water damage, storm damage, hailstone damage, snow damage, glass breakage, civil liability for the building, physical injury to visitors;
- at practical completion the client must maintain the building with due respect and diligence; he will ensure that it is accessible and will take the necessary steps as regards its operation.
The client must also finish the works he executes himself in accordance with good practice and within the terms agreed.
The contract specifies the obligations of the parties on completion.
Finally, it confirms that practical completion and completion must take place in writing, in the form of a report verified and signed by all parties.
The reciprocal transactions on completion, such as payment of the contract balance, occupation of the property and taking unconditional possession may qualify as practical completion.
It is worth remembering that parties may agree that practical completion is to involve acceptance, on the client's part, of the building in its visible condition and as such marks the beginning of the ten-year structural warranty.
Where no specification is made in the contract the courts set the start date for the ten-year structural warranty at completion.
3.10 End of the contract and the engagement of the architect
If completion was not specified within the terms set out in the specifications, the architect's engagement ends on the date for completion.
3.11 Early termination
The contract sets out the conditions of an early termination and any damages that may apply.
3.12 References and competent courts
The contract specifies the elements of reference with regard to the reciprocal obligations of the parties: legislation, ethics, standards, pay scales, recommendations, etc. The contract specifies which authorities are competent to hear disputes between the parties. (Courts, Tribunals, Arbitration Tribunals, Councils of the Order, etc.)