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The Diary of an Anonymous Architect #7

The seventh in a new series about the day-to-day travails of an embattled practitioner. This week: Fees

‘The sun is up, the sky is blue…….’  Buddy Holly & The Crickets (Boudleaux and Felice Bryant)

It’s a beautiful day but there’s a cloud spoiling the view. It’s fee agreements today, I’ve got five to sort and it should be a joy. But it’s the job I dread so it’s raining in my heart

A structural engineer friend told me once this was the most important letter on the file. It determined whether you made any money or not. He warned his clients they would get a complicated letter, they might not like it but it was necessary.  If only it were still that simple.  Today fee agreements run to forty pages and more with references to RIBA conditions, dispute resolution etc.

A simple fee agreement seems to have become a minefield

For a simple domestic job the fee agreement can be as thick as the rest of the job file – not quite, but you get my drift. Solicitors send out pages and pages of client care addenda. But you expect it from solicitors.  So I sympathise with clients who wonder why they receive such a hefty tome when all they want is a modest extension.

A simple fee agreement seems to have become a minefield. We include certain services and account for certain site visits yet at the end of the job get drawn into endless debate about whether the services were all necessary. Or adequately completed. If we allowed for up to ten site visits the clients may demand a discount if we only did,say, nine. Equally they don’t want to pay extra if we did eleven – we obviously miscalculated didn’t we?  I can’t imagine they would have these conversations with their neurosurgeon.  And clients don’t want an allowance per site visit either because they assume we will, of course, call in time and again to bump up the fee…….

There doesn’t seem to be an easy solution. Our advisers tell us on no account to use the latest version of the Standard Form of Agreement (SFA) because it’s biased against the architect.  We were advised to use the earlier version if necessary, get in a stock of copies even use photocopies.  But that would eventually fail as some contents and references are eventually superseded – or you’d risk copyright infringement……. 

It comes to something when our professional institute can’t put its name to a sufficiently robust agreement for the benefit of its members

One eminent specialist, who should know, said he asked the RIBA officer in charge how they could agree to be party to such a biased agreement (AJ 30.03.2009).  The answer given apparently was that the RIBA exists to promote the practice of architecture – but surely that would be the Royal Institute for the Promotion of British Architectural Practice. I always thought, perhaps now naively, that the institute exists for its architect members.  Perhaps RIPBAP could catch on.

But I was left wondering what I’d have done if I was president enjoying a canapé and overhearing that conversation.  Interviews the following morning would have been accompanied by the sound of heads rolling.  Can it be true that the RIBA thinks so little of its subscription paying members, that they consider their role to be promoting architectural practice rather than protecting architects who practice?

So what have we done about it?  Based on what seems the soundest advice, we had a specialist draw up our own terms and conditions which gives us an alternative to either an over-elaborate letter or the dread SFA. It seems to work for many clients – comprehensive enough without the need for it to become their bedtime reading for a couple of weeks or more.    

But this isn’t the only solution architects are adopting which suggests to me that there must be something wrong.  The subject came up in conversation with another architect who has an enviable portfolio of work. His solution is to send every fee agreement to his lawyers for advice before signing up. So this very experienced practice has had enough of DIY fee agreements with or without the SFA and pays lawyers a fee every time they get a new job. This doesn’t seem right to me, defensive maybe, sensible in the circumstances. But it shouldn’t be necessary.

We are being let down.  The mega-practices write their own agreements and battle hard with often very experienced client property specialists and their lawyers. But surely it comes to something when our professional institute can’t put its name to a sufficiently robust and respected agreement for the benefit and use of its members.  I know how I’d deal with fee agreements if I was president but in my continued absence from Portland Place how will you deal with them?

 

 

Readers' comments (2)

  • A reply from the President.
    The RIBA Agreements (standard appointment forms –no longer called “SFA”s) provide a balanced contractual position of the interests of the architect/consultant and the client. This means that clients (or their legal advisors) would prefer them to be more in favour of the client interests whilst some members would like them to be more protectionist of the architect’s interests. The view of the RIBA Practice committee, Board and Council has always been that neither extreme is helpful or where the RIBA should position itself. But we need to get that difficult message across to all parties, which we try to do in several ways.

    The RIBA extols the virtues of standard and tried and tested balanced contracts to clients, convincing them it is not really in their interests either to stitch up and pile all the risks up on their consultant, because it forces the consultant to be ultra protectionist and sometimes combatative, it may not be insurable (PII cover voided) and if their consultant topples under the load of obligations, the client won’t be best served. However there are many lawyers who make good money out of creating bespoke appointment contracts and in their interests to rubbish any form of standard contract and claim that naything from the RIBA must be all in the architects’ favour.

    Similarly we extol the virtues of standard RIBA contracts to Architects/consultants as they are balanced, PI insurable, tried and tested and often much better and fairer than the client/lawyer bespoke ones. Also, if forced by the client to use their bespoke forms, to use the RIBA standard terms and conditions as the base-line negotiating point, so that due recompense (more fees!) can be got for any additional risks/obligations that the architect has to take on beyond the “RIBA norm".

    One members feedback: 'I use the new 2010/11 domestic agreements every day - they are as simple as we could make them, created by a member team including small and large practitioners, as robust as the lawyers and insurers advising us wanted them to be, and I have NEVER, even once had a client objection despite sending out dozens. It’s how you sell it, and if your attitude is negative, nothing will work for you".

    You say you know how you would deal with Fee agreements if you were president, yet you are not willing to come and talk to us at 66? You are invited now to participate. We are a membership organisation so, if you have good ideas then come and do something with them to make our profession better - like the hundreds of other members that do - and don't moan that the RIBA are doing nothing. We are all the RIBA. ...Johnny Nash.... "I can see clearly now the rain has gone..."

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  • J Burden

    Stephen and Diana Yakeley gave a very informative CPD seminar 'How to stay out of trouble and get paid' outlining exactly why the SFA was a minefield to architects not least because of the issue of a set-off clause which could encourage an unscrupulous client to "set-off" a "negligence" claim against an invoice until claims have gone through.

    The ACA forms are a better choice.

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