A quick guide to appointing a professional consultant

What is a professional consultant?

A professional consultant provides specialist design advice or other services in relation to a construction project, whereas a contractor carries out the physical building work (or procures it through sub-contractors). Together, the group of professional consultants engaged on a project is known as the “professional team”.

What services does a professional consultant provide?

Professional consultants can be engaged to provide a variety of services. Common roles include:

• Architect.
• Mechanical and electrical (or services) engineer.
• Quantity surveyor.
• Structural engineer.

The law sometimes compels a client to engage certain disciplines of professional consultant. For example, the Construction (Design and Management) Regulations 2007 (SI 2007/320) (CDM 2007) require the “client” under the CDM 2007 to engage a CDM co-ordinator.

Many professional consultants are organised by a professional institution

The major disciplines of professional consultant are organised by professional institutions. For example, quantity surveyors are governed by the Royal Institution of Chartered Surveyors. In fields where a professional institution does exist, it is best practice to engage a professional consultant who is a member of that professional institution.

When should I appoint a professional consultant?

An inexperienced client usually benefits from appointing at least one key professional consultant (such as an architect) at an early stage of a project. That professional consultant can then guide the client through the project and advise on what other professional disciplines the client needs to appoint. In contrast, an experienced client may delay appointing any professional advisers until slightly later in the project, especially if it has relevant in-house expertise.

How do I appoint a professional consultant?

As with any business agreement, it is best practice for a client to appoint a professional consultant under a written contract.

A typical professional appointment consists of a set of terms and conditions, setting out the obligations of the parties, to which are attached various schedules. The schedules usually include a scope of services, which lists the services that the professional consultant is providing. Other schedules depend on the circumstances of the project.

The client may choose to appoint the professional consultant using a:

• Standard form of appointment, published by a professional body or other organisation connected with the construction and engineering sector. There are numerous “standard” forms of professional appointment currently in print.
• Bespoke form of appointment, drafted by the client’s legal adviser to reflect the client’s needs on one particular project.
• Letter of appointment, which may be in a standard form published by a professional institution or a bespoke document. It creates a binding contract between the parties, but is shorter and less sophisticated than a formal appointment. It may be suitable for straightforward services of a shorter duration, for a smaller fee.

Construction Act 1996 applies to most professional appointments

Most professional appointments in the UK are subject to the requirements of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996). The Construction Act 1996 applies to “construction contracts” (section 104, Construction Act 1996).

If the Construction Act 1996 applies to a professional appointment, its payment and dispute resolution mechanisms must include certain mandatory provisions. If they do not, mandatory payment and adjudication provisions will be implied into the contract.

Are any other contract documents required?

A client may require a professional appointment to provide collateral warranties or third party rights (under the Contracts (Rights of Third Parties) Act 1999, in favour of other parties with an interest in the project. This may include a funder, tenant, purchaser or the employer under the building contract, in some situations.

In a design and build project, the professional consultant engaged by the employer may be novated to the contractor after the building contract is in place.