This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
The Complex Projects Contact (CPC)
was published by the Chartered Institute of Building (CIOB)BIM in 2013. This construction contract put effective time and cost management at its heart. It was also the first standard form to focus on digital communication and .
For a construction team to collaborate effectively and transparently its members need to share project parameters and information. This is best achieved by appointing them under contracts with a common philosophy. The CPC is shortly to be joined by a professional appointment.
The CPC’s features filter down into the new “Consultancy Appointment”. BIM remains intact, as does the requirement for the parties to co-operate in mutual trust and fairness. The main attraction, however, remains the time and cost risk provisions.
The Appointment emphasises the importance of design development scheduling. Each design consultant must submit and follow a Design Execution Plan and perform its services to co-ordinate with the works and overall programme. The contractor and consultants must work to an integrated programme. There are consequences for non-compliance.
If an employer’s risk event occurs, the consultant must give early warning. This is similar to the NEC3 Professional Services Contract (PSC3). Unlike in the PSC3, however, the time management duties under the Appointment have teeth. If the consultant does not make a necessary contribution to the programme or fails to provide submissions or progress records in time, the employer may appoint others to investigate and reproduce the necessary documents at the consultant’s cost.
Similar to Option X7 in the PSC3, the Appointment allows for liquidated damages to be levied for late completion of the services. In other places, the CPC includes provisions that employers would expect for a major project such as clauses dealing with intellectual property and collateral warranties. An obligation on the consultant to exercise professional skill, care and diligence in relation to the services is included.
The Appointment addresses key concerns of consultants:
- It is possible to specify a cap on the consultant’s overall liability;
- The consultant may rely on site information supplied by the employer;
- If the employer fails to pay the consultant monies due and does not rectify this default, the consultant maysuspend its services at the employer’s expense and, ultimately, terminate its employment. It may also terminate if the employer is insolvent;
- The employer must keep the consultant’s prices confidential, save in respect of a contractor to whom the Appointment is to be novated (novation makes use of the City of London Law Society Novation Agreement.)
The CIOB will make services schedules for Project Time Managers, Valuers and Contract Administrators available from its website. Services for two BIM-centric positions – a Data Security Manager and a Design Coordination Manager – will follow.
As with the CPC, the Appointment anticipates that, since each project’s circumstances are different (and both agreements are for use globally as well in as domestically), the parties can make requisite modifications through Special Terms.
