Terms of Engagement 101: Ensuring a Contract is in Place Prior to Providing Architectural Services
One of the B.C. architectural profession’s fundamental practice and professional conduct expectations is that a written contract (agreement) for architectural services be in place with a client before ‘architecture begins’. The expectation is based upon and reinforced through institute bylaws and rulings in the Code of Ethics and Professional Conduct (“Code of Ethics”) as well as via practice advice, AIBC courses, Bulletins and in the standard forms of agreement themselves.
Surprisingly, some architects and firms continue to operate without a written contract or with an inadequate contract, or enter into an agreement well after professional services are under way. This article provides a summary of the basic requirements related to an architect’s “terms of engagement”. The next Regulatory Review article will canvass the range of standard form agreements available to the profession and provide information and advice on how to select the most suitable contract for your commission.
Foundations: Bylaws and Rulings in the Code of Ethics
Longstanding Bylaws 28.0 and 28.1 establish the requirement for an architect’s professional services, responsibilities and general conditions to be based upon and generally consistent with an approved Canadian standard form of agreement between architect and client (e.g., AIBC Documents 6C or 8C, among others).
One-off or ‘do-it-yourself’ client-architect agreements can satisfy these requirements, but the institute often sees non-standard agreements that are missing critical contractual terms related to services, responsibilities and conditions. While a basic contract for services that identifies the parties, the service and a price may be a valid contract in law, it would not satisfy the bylaws and rulings. Architects who choose not to use standard form agreements should be sure to have them reviewed by legal counsel, who should in every case be alerted to the bylaws and council rulings mentioned in this article.
Bylaw 34.10 states that (other than through approved competitions) architects can’t provide services until retained and instructed by the client. The bylaw includes important and binding council rulings with respect to engagement:
- Ruling (b) restricts architects from providing services in any format to clients prior to being retained;
- Ruling (d) requires architects to confirm terms and conditions of engagement, in a written, executed contract with the client, prior to working on any commission;
- Ruling (e) requires architects to notify clients in writing as to their professional liability insurance status, before entering into an agreement for services; and
- Ruling (f) requires all proposals and client-architect agreements to contain the specific statement that such proposal or contract “is in compliance with the AIBC Bylaws, including especially (but not limited to) Bylaw 28: Professional Engagement and Bylaw 34.16; the Tariff of Fees for Architectural Services; and the Code of Ethics.”
Specific advisory commentary in the Code of Ethics provides practical information and advice about compliance with this important bylaw and its rulings. The commentary notes that both architect and client benefit from articulating mutual understanding and expectations prior to commencing services.
This advice would apply regardless of the very clear and mandatory requirements for architects to ‘get it in writing’, signed and in place before providing services. Working without a contract, or with an inadequate agreement, significantly elevates the risk of poor client understanding of the scope of services being provided and of inadequate client appreciation for the value and limits of architectural services. Not surprisingly, liability risks are heightened when architects operate without a contract’s safety net. Finally, as we see too often, the lack of an appropriate contract can lead to complaints of unprofessional conduct and to disciplinary action.
Members and firms unclear on the requirements for client-architect agreements are invited to contact the institute for timely information and advice.