Cover page

Table of Contents

Title page

Copyright page

Acknowledgements

Preface

Chapter 1 The Industry Context

1.1 What is design?

1.2 Procurement routes

1.3 The construction professions: who are the designers?

Chapter 2 Liability under Contract

2.1 Formation of a contract

2.2 Terms of the contract

2.3 Exemption clauses

2.4 Privity of contract

2.5 Assignment

Chapter 3 Liability under Tort: Part 1

3.1 Definition of a tort

3.2 Liability and parties in tort

3.3 Vicarious liability

3.4 Negligence

3.5 Historical perspective

3.6 Anns v Merton London Borough Council (1978)

3.7 Junior Books (1983)

3.8 1985–1988: the retreat

3.9 D & F Estates Ltd v Church Commissioners for England (1988)

3.10 Murphy v Brentwood District Council (1990)

3.11 Tests for establishing a duty of care in respect of economic loss

3.12 Contract and tort concurrently?

3.13 Summary of the position in 1994

Chapter 4 Liability under Tort: Part 2 (Post-Murphy)

4.1 Liability for physical injury and damage to other property

4.2 The ‘complex structure’ theory after Murphy

4.3 What if a defect is patent?

4.4 Liability for economic loss

4.5 Application of the tests following Henderson v Merrett

4.6 Contractors’ liability for pure economic loss

4.7 Consultants’ liability for pure economic loss

4.8 Summary of the position in 2013

Chapter 5 Liability under Statute

5.1 Defective Premises Act 1972

5.2 Building Act 1984

5.3 Health and safety

5.4 Copyright

Chapter 6 Liability for Professional Negligence

6.1 Reasonable skill and care

6.2 Application of the test to designers

6.3 Examples of failure to take care

6.4 Special skills

6.5 ‘State of the art’ defence

Chapter 7 ‘Fitness for Purpose’ Liability

7.1 Contractors’ obligations

7.2 Reliance and partial reliance

7.3 Consultants and strict liability

7.4 Contractor’s duty to warn

Chapter 8 Duties in Detail

8.1 General duties of a designer

8.2 Appraisal and site investigation

8.3 Budget issues

8.4 Design development

8.5 Commenting on/approving others’ designs

8.6 Inspection and certification

8.7 Duty to review the design

Chapter 9 Delegation of Design Duties

9.1 General issues

9.2 Option 1: Declining the commission

9.3 Option 2: Employer engages a specialist consultant direct

9.4 Option 3: Designer engages specialist designer direct

9.5 Option 4: Designer arranges for a contractor or sub-contractor to undertake the work

9.6 Option 5: Designer relies on outside sources

9.7 Is there a difference between delegation and reliance?

9.8 Summary of options

Chapter 10 Liability to Third Parties: Procurement Issues

10.1. Relationship between contract and tort

10.2 Liability in particular situations

10.3 Warranties

10.4 Collaborative working

10.5 BIM

10.6 Insurance solutions

Chapter 11 Damages and Contribution

11.1 General principles

11.2 Damages and designers

11.3 Contributory negligence and contribution

11.4 Damages recoverable on assignment

Chapter 12 Limitation

12.1 Statutory periods

12.2 Limitation and contract

12.3 Limitation and tort

Chapter 13 Measures for Limiting Liability

13.1 Using financial caps

13.2 Limiting liability for loss of profits and consequential losses

13.3 Net contribution clauses

13.4 Agreeing shorter periods for limitation of liability

Chapter 14 Standard Forms of Contract for Design-Build

14.1 Joint Contracts Tribunal (JCT) forms

14.2 GC/Works/1 forms

14.3 NEC3 Engineering and Construction Contract (ECC)

14.4 Project Partnering Contract (PPC2000)

14.5 FIDIC forms

Chapter 15 Standard Forms of Appointment

15.1 RIBA

15.2 ACA

15.3 ACE

15.4 ICE

15.5 RICS

15.6 CIC

15.7 Novation and Switch Agreements

Chapter 16 Professional Indemnity Insurance

16.1 General

16.2 Principles of professional indemnity insurance

16.3 The professional indemnity policy (consultants)

16.4 Avoiding disputes with insurers

16.5 Professional indemnity insurance for design and build contracts

16.6 Professional indemnity – changing insurers

16.7 Other types of insurance

Chapter 17 Design Liability in the EU

17.1 Belgium

17.2 France

17.3 Germany

17.4 Italy

17.5 The Netherlands

Chapter 18 Design Liability in the Rest of the World

18.1 Australia

18.2 China

18.3 The Middle East

18.4 Russia

18.5 USA

Bibliography

Cases and Legislation

Index

Title page

Acknowledgements

The author would like to express her gratitude to David Cornes for his enthusiastic agreement to the author's proposal for this new edition.

She is also grateful to the following people for their extremely helpful advice and, in many cases, for reading and commenting on draft sections of this book: Jerry Abeles of Arent Fox LLP, Tim Browne of Blainey North, Jeff Cooke of Allen Jack + Cottier, Ksenia Bruk of Salens, Professor Monika Chao-Duivis, director of the Dutch Institute of Construction Law and professor of construction law at the Technical University of Delft, Ashley Howlett of Jones Day, Professor Giovanni Iudica and Roberto Panetta of the Università Bocconi di Milano, Joachim Jobi and Alexandra Nicklas of the Federal Chamber of German Architects (Bundesarchitektenkammer), Benoît Kohl, Professor of the University of Liège and attorney of the Brussels Bar, David Lasfargue and Ekaterina Vilenskaya of GIDE, Luciano Lazzari of Studio Architetti Zelco Lazzari, Marlena Lubas of Arup Legal Group, Alasdair Niven and Melinda Parisotti of the Wren Insurance Association Ltd, Dr Jay Palmos of the British University in Dubai, Michel Process of Université Catholique de Louvain, UCL LOCI, Philip Ridgway of aaPGR – Prat Gigou Ridgway Architects, Sam Ross-Gower of RB-Architectes, Eric Teo of Al Tamimi & Company, and Katja Timmermann of Capita Symonds.

She would also like to thank her partner, Manos Stellakis, for his support and encouragement throughout the writing of this book.

Preface

This book examines the nature and extent of the liability of a designer in the construction industry, from the perspective of the consultant providing design services, and of the contractor engaged to design and construct. In doing so it explores how the courts and legislators have dealt with the processes and products of design, and the problems that have resulted when mistakes are made.

A recurring theme of the book is that of interfaces, as these are frequently areas of difficulty. For example there are often technical problems at the interfaces between different elements of a building, particularly if the design or construction of these is split between different tender packages. Where several consultants are involved, it can sometimes be difficult to determine where the role of one ends and another begins. Another grey area can arise in the consultant–contractor relationship when trying to determine the extent of the responsibility of one to point out the design errors of the other. Legally, also there are overlaps, including definitional (what is considered ‘design’ and what ‘workmanship’); and between areas of the law, i.e. contract and tort (e.g. where parallel duties in tort may arise) or tort and statutory law (e.g. the Defective Premises Act 1972).

To set the scene, the book first looks at the industry context, including the role of the designer, who may currently be a professional architect or engineer, or a general contractor, or a specialist company designing, supplying and installing components or systems (simple product liability is covered briefly, but a detailed discussion is beyond the scope of this work). The book then sets out the basic legal framework, i.e. liability under statute, under contract and under tort. It then examines the differing levels of liability normally implied for a consultant or a contractor, i.e. that of negligence, and ‘fitness for purpose’.

The core of the work discusses liability issues that might arise at different stages in the procurement process, including briefing (e.g. how relevant is the client’s level of expertise) detailed design; special or innovative design; inspection; and the duty to review the design during construction. It also considers particular issues that arise in relation to contractual networks, examining the potential for tortious liability between team members, the use of warranties, and the implications of collaborative working and BIM.

Having mapped out the liability in these varying situations, the book then looks more closely at measures for limiting liability, for example through caps and net contribution clauses. It examines the more commonly used standard forms of contract, appointment and warranty and contract, to determine how these affect the nature and extent of the parties’ obligations, particularly to what extent they seek to limit liability. There is also a chapter on PI insurance and its role in protecting the designer and its clients.

Finally, the book closes with two chapters outlining briefly the comparative position in key EU countries, and in selected jurisdictions outside the EU.

This is the fifth edition of the book of the same title by David Cornes. The fourth edition was published in 1994. There have been significant changes since then in all areas of the law relating to design liability, particularly in the law of tort. The full effects of Murphy v Brentwood District Council (1991) had at that time not yet been established, and in fact the last 18 years has witnessed many significant developments in the law of tort. In contract law there have been developments in the areas of letters of intent and contract formation, and there have been several new editions of key standard form contracts, for example 1998, 2005 and 2011 editions of JCT forms, the publication of NEC3 and PPC2000, and of a new suite of FIDIC forms.

The new edition draws to a certain extent on earlier editions, particularly on the very clear and authoritative sections introducing the fundamental principles of the law, for example of contract, tort, statute and insurance, which have been retained largely as they were in the fourth edition. However the majority of the book has been extensively re-written. The sections on dispute resolution have been removed, and some new sections have been added, including the chapters on liability in the EU and on other jurisdictions. Apart from the fourth edition, the sources of information used have been wide-ranging, including primary sources such as case law and legislation and secondary sources such as authoritative texts, research work and reports (all of which are referenced). With respect to case law, the emphasis has been in using cases that relate directly to the construction industry and design disputes, although others are also referred to where they are of fundamental legal importance. The material for the EU and other jurisdictions was drawn primarily from research studies, and cross checked by the author wherever possible with professionals working in the relevant country.

Sarah Lupton

Chapter 1

The Industry Context

This work explores the nature and extent of liability for design. Modern construction is a complex process, with many parties contributing to the design of buildings, including consultants, contractors and specialist manufacturers. When problems occur, questions arise as to who made the relevant decisions, whether they are liable for any resulting losses, and if so, to whom?

Many things will determine who is liable. The procurement route selected and the skills of those involved might provide an overall indication of the intended distribution of liability, but are by no means determinative. The next step is to examine the contract documents agreed between the parties. Often these will purport to precisely describe design duties, but sometimes will be unclear or incomplete.

External factors will also play a part. Legislation can affect the contractual provisions, operating to imply terms into an agreement, or to render terms void. It can also create a separate duty to third parties outside the contract. Designers can also become liable in tort to third parties. Consultants may therefore find themselves liable in ways they did not anticipate.

A simple model of design liability might be that the party that makes a design decision will bear liability if the decision is wrong. However, that simple model does not always arise. First, the parties might agree a different system, for example under a partnering or collaborative arrangement they might agree to share the risk of errors. Second, one party may be liable for the decisions of another, even when they thought they had delegated those decisions, for example a consultant will normally be liable for sub-consultants, and may be liable for design delegated to a specialist sub-contractor.

Therefore, even in simple procurement arrangements, the distribution of design liability can become quite difficult to pin down, and in modern complex procurement systems with many participating in the design process, the network of responsibility can become extremely intricate.

1.1 What Is Design?

In the author’s view the answer to this question is very simple: any decision that affects the final form or composition of the building is a design decision. This covers a wide spectrum, from strategic space planning choices down to the smallest level of detail, such as the choice of fixings, adhesives, size of pipes and type of circuit breaker. As Sir Hugh Casson once put it, ‘to design is to decide’.1 A similar approach can be seen in this definition: ‘Design is … the coming-into-being of an object which could be other than it is’2 and in Hudson’s Building and Engineering Contracts: ‘… the essential element of the function of design is choice’. 3 A more complex definition along the same lines was developed by the Design Council in relation to engineering education:

Conceptual design involves identifying needs or requirements, weighing up and analysing possible solutions (including those that are already known) and coming to a properly thought out decision as to which design or designs will be most promising. The next, and equally important, phase is to reduce the concept to a practical scheme design that will show whether a useful product is likely to emerge. The detailed design must then be completed. This may mean that a set of detailed drawings, specifications and other documents have to be produced so that manufacturing and quality targets, together with satisfactory service in the field, can be achieved. The designer’s task is not finished until it has been shown that the product can be manufactured, tested and maintained to cost targets, and that it performs properly at all points in the specified performance envelope, even when it is made from components at the extremes of the tolerances and degraded by reasonable wear.4

In practice an alternative approach is sometimes taken, for example some would say that smaller levels of detail are ‘not really design’, but something else, perhaps ‘workmanship’, and the term ‘workmanship’ is commonly used to refer to finer details of construction.5 Often such details are worked out not by the consultant who is considered the primary ‘designer’ of a building, but often by manufacturers or craftsmen, through a process of preparing shop drawings. This approach is described in Building Contract Disputes: Practice and Precedents:6

In the normal case of traditional contracts (i.e., where the design is not the responsibility of the contractor but that of the employer’s architect) then much importance can be attached to the question of whether a defect is a design defect or a defect of workmanship. It is impossible to lay down hard and fast rules as to whether any particular defect will be one or another, for the choice between a flat roof and a pitched roof will be a matter of design, but the choice between a screw and a nail may well be a matter of workmanship. As a rule of thumb, the shape, dimensions, choice of material and other matters apparent from the drawings are generally regarded as design matters and the things left over for the good sense of the contractor are generally regarded as matters of workmanship.

Another means by which smaller decisions are left to the contractor is through the use of performance specifications. As indicated in the Design Council definition, the result of the design process is usually communicated through detailed drawings, specifications and other documents. There are two types of specification, a prescriptive and a performance specification, and the distinction is significant. The former involves the precise and complete description of the materials and arrangement of these, whereas the latter specifies the performance required, together with provisions as to testing, assumed usage and maintenance, and leaves the means of achieving it up to the supplier or contractor. Therefore, when something is specified by performance, an element of design is always left to be completed.7

What people mean when they refer to ‘design’ can therefore vary. In practice this can sometimes cause confusion between parties, especially when agreeing the extent of respective parties’ duties. It would only be critical with respect to liability if a court was to use its definition of design to assign liability, for example if a court were to start by deciding who is responsible for design, and then look at the error in question and decide if it constitutes design. If, on the other hand, the court simply analyses the contractual framework to determine who was responsible for that particular decision, then whether or not it is considered ‘design’ is a moot point.

The borderline between design and ‘workmanship’, the effect of any delegation of a detailed design decision, and the court’s approach to these issues are recurring themes in this book. For clarity, the simple ‘to design is to decide’ definition is adopted throughout this book, and ‘workmanship’ is taken to be the manner in which the work is carried out, not what that work comprises, unless stated otherwise in the context of a particular discussion.

1.2 Procurement Routes

Below is a brief outline of alternative procurement routes, included in order to highlight where in the process the design activity will occur. For a full explanation of the various advantages and problems, readers should consult one of the texts listed in the Bibliography.8

1.2.1 Traditional

‘Traditional’ procurement, as the name suggests, is the oldest formalised system for undertaking a building project, and is still the most commonly used system in the UK (together with 'traditional plus design' as described below, accounting for around 76% of projects in 2010, and 41% of the total value).9 In fact standard form construction contracts reflecting the traditional route can be traced back to the late nineteenth century. In traditional procurement it is assumed that the main role of the contractor is to carry out and complete the work, and that the design will be prepared by consultants engaged separately by the client. It is normally assumed that, subject to any express provisions to the contrary, the contractor has no obligation as to design, although in some circumstances a limited design obligation may arise. Usually a standard form traditional contract is administered by an independent contract administrator appointed by the client. A single stage tender procedure is normally adopted with full, detailed design information issued to the tendering firms, although an alternative two-stage tender process is sometimes used. Here the first tender is on limited design information, and the successful tenderer is then involved in the design finalisation, advising on its buildability and cost implications.

1.2.2 Traditional Plus Design

It is increasingly common within the context of traditional procurement, where the contractor is to carry out and complete the work, for the contractor to have limited obligations as to the design of discrete parts or aspects of the project. In fact it is rarely the case, at least in the UK, that the entire project, including the finest levels of detail and specialist systems such as structural glazing and heating, are designed entirely by the employer’s directly engaged consultants. The contract can still be considered ‘traditional’ in the sense that the contractor’s ‘design’ obligation is limited to an identifiable part or aspect of a project that is primarily designed by others. As above, the terms are usually administered by an independent contract administrator appointed by the client.

Frequently responsibility for the part to be designed will be delegated to a specialist company (common examples are cladding, glazing systems, tanking, and mechanical and/or electrical service systems). Less frequently the design of the discrete part will be sub-contracted to a consultant. In either case, the selection of the specialist sub-contractor or consultant can be left entirely to the contractor, and the contractor will retain responsibility for that design. However often the client will seek to retain a degree of control over that choice, either by requiring the contractor to engage a particular firm, or by limiting the choice to specific companies, or by being involved in the contractor’s selection process and having the right to approve or reject the contractor’s proposed company. For any of these options, the firm undertaking the design will usually be asked to enter into a collateral warranty with the employer. These contractual arrangements often give rise to complex issues regarding liability for any design errors that subsequently become apparent.

1.2.3 Design-Build

Design-build procurement emerged in the 1960s, largely in an attempt to speed up the production of new housing after the Second World War, but also with the aim of including the contractor’s expertise in buildability in the design process. It is now the most common method of procurement for larger projects, accounting for around 39% of the value of projects undertaken in 2010.10 In design-build procurement the contractor is required to carry out and to complete the work and in addition to design or to complete the design for the project. There is usually no independent contract administrator, although there is frequently a named employer’s agent.

In many cases, although a design-build procurement route is adopted, the project will have been partly designed by a consultant appointed by the client before the contractor is approached. The design-build contractor may then be required either to take over responsibility for the entire design (as if it had been the designer from the start), or (a more limited obligation) to complete the partially finished design and to be liable for the design of only the completed part. In such cases establishing the cut-off point and the split of design responsibility between client and contractor must be handled carefully. As with traditional procurement, a two stage tender process is sometimes used. In design-build, this allows a period for the consultants to work with the contractor in developing the design proposals, prior to the contract being finalised. During this period the contractor may be appointed separately for advice and design services.

The role of the design consultant is to act throughout the project for one party, ie for the client or the contractor.11 An alternative is for the consultant to swap from the employer to the contractor at the time the main design-build contract is let to the contractor, a process which is often (and sometimes inaccurately) termed ‘novation’.

In a true novation (also called novation ab initio), the contract between employer and consultant is replaced by a contract on identical terms between the architect and the contractor. A simpler (although less accurate) way of describing the process is that the contractor will replace the employer as client under the original appointment. The contractor accepts all the obligations and liabilities that had formerly been the employer’s under the appointment, and the consultant’s prior and future obligations/liabilities are now owed to the contractor. A deed of variation to the appointment is required to reflect this change, which should include any necessary or preferred alterations. All three parties enter into a novation agreement. In reality, a novation of a consultant’s services is rarely a true novation in this sense, as the services undertaken for the contractor are usually different to those undertaken for the employer. A novation ab initio may occur in other circumstances when, for example, a funder steps in and runs a project on behalf of an insolvent contractor.

An alternative arrangement, also often referred to as novation, but sometimes termed ‘consultant switch’, is for the original appointment with the employer as client to be brought to an end and a new appointment entered into between the consultant and the contractor. An agreement between all three parties is necessary to permit this change.12 The consultant will normally remain liable to the employer for any breach of duty under the earlier appointment with the employer, but will not be liable to the employer for any default in services performed for the contractor (unless a consultant–employer warranty is entered into, which is often the case).13

1.2.4 Management Methods

Management procurement is a more recent development, at least within the UK, dating from around the 1980s. In this system the contractor is appointed on a fee basis for managing the carrying out and completion of the work; the actual construction work is divided into ‘packages’ to be undertaken by specialist ‘works’ or ‘trade’ contractors. In the variant termed ‘management contracting’ the contractor enters into contracts on a rolling programme basis with successive trade contractors. In the other variant, ‘construction management’, the client enters into contracts with the specialist companies, the management contractor acting purely as an advisor to the client, arranging for the tendering of the packages and coordinating the specialist companies’ work.

So far as design responsibility is concerned, this can lie entirely with the client’s directly appointed design consultants, in the same way it would with traditional procurement. Each separate trade contractor is supplied with all information it needs to construct its section, and carries no design liability. More usually at least some of the packages are let on a design-build basis, with the trade contractor responsible for design and construction of its part. Usually the interfaces between packages are critical to the success of the project, particularly when packages are designed by different parties.

1.2.5 ‘Turnkey’ Contracting

There are several variants of design and build, whereby in addition to the contractor designing and constructing the project, the contractor takes on further responsibilities, for example running and maintaining the installation.

The term ‘turnkey’ contracting is often used where the contractor designs and builds the project, usually for a fixed price. The project is fully equipped, commissioned and handed over ready to operate. The system can also be termed Engineering, Procurement and Construction (EPC). In some cases the contractor can also provide financing and/or land procurement services.14 In a turnkey arrangement the owner provides a brief that describes the required outputs, including detailed performance specifications for the completed facility. Turnkey arrangements are typically used in large international engineering, power or process plant construction projects. A further variant is Build Operate Transfer (BOT) or Build Own Operate Transfer (BOOT; the terms are used synonymously), where the supplier will finance, design, build, operate, manage and maintain the facility, and then transfer it to the client (normally a government) following a concession period where the costs are recovered through, for example, levying a toll. As with turnkey contracting this is often used for utility projects, and also for transport and infrastructure projects such as major bridges and tunnels.

In the UK the Private Finance Initiative (PFI) is a particularly significant variant of these systems. Introduced by the Conservative Government in 1992, it is a means of transferring the risks associated with public service projects to the private sector in part or in full.15 PFI is a form of public–private partnership (PPP) whereby a public infrastructure project is initially funded with private capital. In PFI a legal entity, known as a ‘special purpose vehicle’ (SPV), takes on the obligation for maintenance and, possibly, operation as well as design and construction of the facility. In PFI the costs are recouped from the public body during the operation period. In other types of PPP, the cost will be recouped from the users.

1.2.6 Partnering

Partnering was first used by the US Army Corps of Engineers in the late 1980s and was first applied in the UK in the North Sea oil and gas industries in the early 1990s.16 Shortly afterwards the UK Government commissioned Sir Michael Latham to review the construction industry’s procurement routes and contracts, and to propose solutions to problems the industry was facing. The resulting report17 criticised the fragmented nature of the industry, finding the normal procurement routes inefficient and fostering an adversarial culture. It called for a more integrated and collaborative approach, and advocated the use of partnering. This influential report was swiftly followed by further initiatives and reports, including ‘Partnering in the Team18 andTrusting the Team: the Best Practice Guide to Partnering in Construction’.19 In 1998 the new concept of partnering was given further support by the government-sponsored Egan report.20

The partnering approach focuses on cooperative (rather than adversarial) working, to achieve common aims. It has been defined as:

a management approach used by two or more organisations to achieve specific business objectives by maximising the effectiveness of each participant’s resources. It requires that the parties work together in an open and trusting relationship based on mutual objectives, an agreed method of problem resolution and an active search for continuous measurable improvements.21

In theory, therefore, partnering can be used along with any of the above forms of procurement. There are two principle ways of doing this: the first is for all parties to agree to a simple ‘mission statement’, which sets out the parties’ intention to work in a cooperative manner, in good faith, to achieve mutual goals. The second is to incorporate mechanisms for shared risks and rewards, linked to defined targets (e.g. that any cost savings below the target cost will be shared between the parties). In design terms, the collaborative working will often involve all parties contributing their expertise to the design process, including the contractor and specialist sub-contractors. The pain/gain mechanism may be linked to a quality objective such as a ‘minimal defects’ target or the measurement of the building’s performance in use.

Although it was initially envisaged that the partnering team would be retained over several projects, the approach is often used on single contracts, termed ‘single project partnering’. Since 2000 dedicated standard forms of contract have been published to cover this procurement method (e.g. see PPC2000 and the JCT Constructing Excellence). As partnering has received government approval, it has been used on many public projects, including those under the Private Finance Initiative.

1.2.7 Prime Contracting

Prime contracting is a process that was advocated in the UK in the late 1990s as one of the three preferred government methods of procurement (along with design-build and PFI),22 and is still used for a significant number of projects, particularly by the Ministry of Defence. It is often used with partnering, and the MOD has defined the prime contractor as responsible for ‘the management and delivery of a project using a system of incentivisation and collaborative working to integrate the activities of the Supply Chain members to achieve a project that is on time, within budget and is in accordance with the specified outputs and it is fit purpose’.23 Typically the prime contractor is required to design and construct the facility to meet stated purposes and to maintain it for up to seven years after completion to prove the design as constructed meets the stated performance requirements and operating costs.

1.2.8 Integrated Project Delivery and BIM

A recent development to emerge in the US is that of Integrated Project Delivery (IPD). This was first defined by the American Institute of Architects (AIA) in 2007 as ‘a project delivery approach that integrates people, systems, business structures and practices into a process that collaboratively harnesses the talents and insights of all participants to reduce waste and optimise efficiency through all phases of design, fabrication and construction’.24 Like partnering, it can be used with a variety of contractual structures, but it advocates the appointment of the whole team at an early stage, and the use of synchronised contracts, incentives and risk sharing. Standard form contracts drafted for use with IPD include the American Institute of Architects (AIA) A295 and C195 families of forms and ConsensusDocs 300, developed by a pan-industry group including contractor and sub-contractor organisations.

IPD is in turn is closely linked with developments in computer technology, such as Building Information Modelling (BIM). BIM has been defined as ‘a model-based technology linked with a database of project information’25 or, more fully as:

a digital representation of physical and functional characteristics of a facility. As such it serves as a shared knowledge resource for information about a facility forming a reliable basis for decisions during its lifecycle from inception onward. A basic premise of BIM is collaboration by different stakeholders at different phases of the life cycle of a facility to insert, extract, update or modify information in the BIM to support and reflect the roles of that stakeholder. The BIM is a shared digital representation founded on open standards for interoperability.26

Although BIM is often referred to as if it were a procurement method in itself, it is essentially a digital tool that might be used in any context.27 However, as reflected in the above definition, it is generally considered that to be used effectively it requires close collaboration between the parties. Similarly, although IPD is possible using traditional IT systems28 these are seen not to be conducive to collaborative working, for example the AIA maintains ‘Building Information Modelling … is essential to efficiently achieve the collaboration required for Integrated Project Delivery’.29 Collaborative procurement methods and BIM are therefore seen as interdependent. BIM can be used at various levels:

0. Unmanaged CAD probably 2D, with paper (or electronic paper) as the most likely data exchange mechanism.
1. Managed CAD in 2D or 3D format using BS1192:2007 with a collaboration tool providing a common data environment, possibly some standard data structures and formats. Commercial data managed by standalone finance and cost management packages with no integration.
2. Managed 3D environment held in separate discipline ‘BIM’ tools with attached data. Commercial data managed by an ERP. Integration on the basis of proprietary interfaces or bespoke middleware could be regarded as ‘pBIM’ (proprietary). The approach may utilise 4D program data and 5D cost elements as well as feed operational systems.
3. Fully open process and data integration enabled by ‘web services’ compliant with the emerging IFC/IFD standards, managed by a collaborative model server. Could be regarded as iBIM or integrated BIM potentially employing concurrent engineering processes.30

BIM is widely used in the US, where two protocols were published in 2008 to allow its use with standard form contracts: the AIA E202 – 2008 BIM Protocol Exhibit and the ConsensusDOCS 301: BIM Addendum. It has also been adopted in other countries, for example BIM has been compulsory on public projects in Finland and Denmark since 2007.31

The UK government has confirmed its commitment to the adoption of BIM in its 2011 Construction Strategy, which stated that the government ‘will require fully collaborative 3D BIM (with all project and asset information, documentation and data being electronic) as a minimum by 2016’.32 BIM has already been used on high-profile projects in the UK (e.g. St Bartholomew’s Hospital, Heathrow Express and Heathrow Terminal Five) and has been adopted by many larger practices within the UK, one recent survey indicating that 31% professionals are using BIM.33 A BIM Protocol has recently been published by the Construction Industry Council (February 2013), and several of the more widely used standard forms of contract now include references to the use of BIM.

The use of IPD and BIM with its closely integrated development of the design on a common digital model, often accessed by all parties through an intranet system, is an interesting development that may raise particular problems when it comes to allocating and identifying design responsibility (see section 10.6).

1.3 The Construction Professions: Who Are the Designers?

1.3.1 Architect

An ‘architect’ is one who possesses, with due regard to aesthetic as well as practical considerations, adequate skill and knowledge to enable him (i) to originate, (ii) design and plan, (iii) to arrange for and supervise the erection of such building or other works calling for skill in design and planning as he might in the course of his business, reasonably be asked to carry out or in respect of which he offers his services as a specialist.34

Architects are recognised throughout the world as the profession with the key role in the design of buildings. Depending on jurisdiction, the actual role, function and legal status of an architect varies considerably, as does their influence and significance within the construction industry. In the UK, the title ‘architect’ is protected by statute, in that only those who are registered with the Architects Registration Board (ARB) may use it.35 In fact in the UK architecture is the only construction profession that has a protected title and is subject to statutory regulation. However there is no protection of function, as there is no requirement under the law to engage an architect (or other design professional) for any stage of the building design or construction process. This is not the case in other countries, where function but not title may be protected, and in some jurisdictions neither, or both, may be protected by that national legal system.

1.3.1.1 ARB and Registration

There are currently around 33,500 registered architects, of which about 21% are women.36 ARB is established through the Architects Act 1997, which replaced the former larger Architects Registration Council of the UK (ARCUK) and repealed the Architects (Registration) Act 1931. The Board comprises seven members elected by persons on the register and eight persons appointed by the Privy Council in consultation with the Secretary of State. ARB is entirely funded through the subscriptions of the registered architects.

The primary role of ARB is consumer protection, in other words to ensure that those practicing under the title ‘architect’ are competent to do so. The competence levels are established through setting standards of entry onto the register, and through the requirement to comply with ARB’s Code, which in turn refers to standards of conduct and practice.37

Persons are eligible for registration if they hold such qualifications and have gained such experience as ARB may prescribe, or if they have an equivalent standard of competence. For UK nationals this normally means that they must pass recognised Parts 1, 2 and 3 qualifications.38 ARB prescribes these qualifications using published Criteria (agreed jointly with the RIBA) which set out required learning outcomes. In addition, applicants for registration are required to complete a minimum period of two years’ professional experience which complies with rules agreed jointly with the RIBA.

In addition to the Board, the Architects Act 1997 makes provision for a statutory Professional Conduct Committee (PCC) which is responsible for disciplinary matters. This also comprises registered and appointed members, and it is notable that the majority on both the Board and the PCC lies with non-registered persons (i.e. outside the architectural profession). If a complaint is referred to the PCC it will consider all the evidence, including any alleged breach of the Code, and may dismiss the complaint, or implement a fine, a reprimand or suspend or remove the person from the register.

The ARB Code is primarily concerned with the protection of the interests of the public and relations between architects and their clients. It consists of an Introduction, 12 Standards and Guidance which are intended to be read together (although sections B and C of the Guidance do not form part of the Code). A section of the Code that is particularly relevant to design competence would be Standard 2:

Standard 2 Competence:

1. You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.
2. You are expected to make appropriate arrangements for your professional work in the event of incapacity, death, absence from, or inability to, work.
3. You are expected to ensure that the necessary communication skills and local knowledge are available to you to discharge your responsibilities.
4. You are expected to keep your knowledge and skills relevant to your professional work up to date and be aware of the content of any guidelines issued by the Board from time to time.

ARB publishes additional guidance on maintaining competence to practise as required under this Standard. The Code applies to all architects whatever the form of practice or business they choose to adopt. Employer architects and employee architects are equally bound to respect and observe the Code obligations. UK registered architects are still subject to the ARB Code when they practise abroad, and only if it can be shown that compliance would be inconsistent with local law and customs will any relaxation be possible.

1.3.1.2 RIBA

The largest professional body for architects, and the only one with exclusively architect membership, is the Royal Institute of British Architects (RIBA). The RIBA was founded in 1834 and currently has over 28,000 chartered members.39 The RIBA is established by Royal Charter, and is a registered charity. Membership is voluntary, and the organisation is funded through the subscription of its members, the commercial activities of its various companies, and to a certain extent through bequeath.

The RIBA Council, a body of 60 members elected by ballot to ensure national and regional representation, is presided over by the President. This is an honorary office, and the Charter allows for ‘such other Honorary Officers to be elected as the Byelaws prescribe’. At present these include Vice Presidents, an Honorary Secretary, and an Honorary Treasurer. The RIBA has recently set up a governing Board, responsible for directing the overall business of the RIBA. It operates under the overall authority and policy of the elected Council, and co-ordinates the operations of the subsidiary companies.

The RIBA Supplemental Charter 1971, in paragraph 2.1, states that ‘the objects of the Royal Institute are the advancement of Architecture and the promotion of the acquirement of the knowledge of the Arts and Sciences connected therewith’. Ever since the original Charter, primacy has been given to the advancement of architecture, not to the advancement of architects. The RIBA therefore plays a key role in setting and upholding design standards, both generally and in the requirements for competence of its members. Currently RIBA efforts to advance the cause of architecture are expressed in many ways, for example through seeking to influence government and public opinion, providing support services for practitioners, and by striving to improve the status and competence of architects through continuing professional education and research.

As with ARB, two key mechanisms for achieving competence are through setting standards for entry, and through disciplining those who fail to display an accept­able level of competence as required by the RIBA Code.40 Through its Code, its admission standards, appointing documents, and range of other publications, the Institute is able to assure the public of the standards of integrity and competence of its members.

The RIBA sets standards for entry through validating qualification, using the jointly held Criteria referred to above. The RIBA takes a keen interest in the way that architecture is handled in school curricula, and closely monitors the way that architecture is taught in higher education. It reviews courses and examinations in Schools of Architecture on a quinquennial basis, including through a visit to the school.

The most recent version of the RIBA Code of Professional Conduct came into effect in January 2005. The 2005 Code comprises an introduction, a statement of the Royal Institute’s values, three principles of professional conduct, and brief notes that explain how the principles can be upheld. A series of nine related Guidance Notes are published separately. The RIBA website explains that these guidance notes are intended ‘to provide both advice and information on best practice and to act as a support and aide to members in their professional work. They distinguish between conduct and practice which is obligatory and that which is only advisable or preferable. This distinction will be taken into account when a formal complaint of professional misconduct is made against a member.’

Inevitably the RIBA Code of Professional Conduct and Standard of Professional Performance has much in common with the ARB Code of Conduct although there are some differences. In particular, the RIBA Code’s provisions covering the behaviour of members to each other has no equivalent in the ARB Code.

The Values are stated as follows: