Contrary to popular belief, the majority of consultants are still under the same fee pressure being experienced by contractors with contract pricing.
It is easy to arrive at a situation where you take on responsibility for the management of a substantial construction project, which by midway through is regarded as a burden rather than a benefit.
The fee time has been swallowed up, but the obligation to visit site, to draft and issue contract notices and generally advise are ongoing.
So what can you do?
Scope of works
Do not make the scope of your work unlimited; try to make sure that whatever list you agree it is possible to determine when you will have completed everything and when ‘something’ becomes extra.
Many appointments and engagement letters do not clearly define start and finish dates and/or events, and make little or no attempt to be specific. For example:
- How many site visits are included?
- Are you to advise on contractual notices or draft them?
- Are you to prepare all the accompanying documents to the notices?
- A compliant contract notice may be required every month or more often. Do you know?
This is another area where professionals frequently fail to limit their exposure. You might have set a start date but does the agreement make clear that your obligations will end on or before a specific date or event?
Is that date or event actually ascertainable? What if the contract is extended – are your obligations extended?
Form of contract
The form of the contract or agreement to which you are getting your client to sign really should be well known to you and should be provided in full.
“Just because it is a standard form for a professional appointment does not mean to say it will favour you over your client”
It is common to find agreements where the back page was signed with no other pages attached, or reference to a standard form of agreement that when the consultant was asked they had never used, had no real idea as to its contents and certainly no understanding of its limits, liabilities and obligations.
Just because it is a standard form for a professional appointment does not mean to say it will favour you over your client.
Take time to talk
An old fashioned conversation is also useful.
Bizarre though this may sound in 2014, actually speaking to and discussing with the other parties involved in a project may be incredibly helpful in not only understanding exactly where you will sit among the other consultants, but also to help highlight to you the dangers and concerns they have.
These will not necessarily be the same as yours. If not, then why not? Have all of these been discussed with the client? Again, if not, why not?
Critically, notes of such a meeting may be essential in the event of a later dispute (subject to an entire agreement clause being present in any agreement) as you can demonstrate what was discussed, the range of questions covered and why.
Your obligation as a consultant is to identify issues which may be or become an issue. Thus you need to know the extent of your client’s current knowledge and then identify potential risks.
You must discuss those with your client and decide upon the extent to which further advice is needed as to any consequences of those risks.
Bill Barton is a director at Barton Legal