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On surprisingly good form
The new crop of RICS standard contract are about to
make quantity surveyors’ lives a lot easier
“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”
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.
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 …
Readers are invited to forward recent
judgments for reporting in this column (with full
acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple,
London EC4Y 7EU. DX: 37164 Biggleswade
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