Michael Casey and Architect, Volume I: The Technical Bit
This isn’t the sort of blog that deconstructs other peoples’ articles piece by piece, normally. Nor is it one that gets too technical about stuff related to building, even if I am an architect by day, and even if I do expect my readers to have semi-encyclopaedic knowledge about Doctor Who. This isn’t meant to be a professional blog, after all.
But Michael Casey’s article about architects in the Irish Times… that really can’t be allowed to stand. It isn’t the usual portrayal of architects as a feckless, superpaid elite (unemployment over 50%, many others part-time). It’s a deconstruction of architects’ standard forms of contract, and it’s wildly inaccurate. It’s just… untrue.
I’ll probably write a broader, more contextual article about this in a day or so. I don’t think it’s really about architecture as much as it’s about all professions, and that deserves a brief discussion. But first, it’s necessary to go about the wearisome job of dismantling the article itself. I’ve had to reprint about 80% of the original article, such were the inaccuracies. The thing is that, even if you took it on trust that most of what Casey wrote was nonsense, phrases like “almost entirely untrue” and “scurrilous hyperbole” have lost their meaning. I don’t think anyone would guess how untrue it is.
If you believe me that the article was about as accurate as a Richard Littlejohn opinion piece, then you might want to come back in a couple days for my super-broad socio-economic assertions. For those of you who are interested, here we go. To liven proceedings up, you may wish to visualise Casey’s article keeling slowly to the ground like an enormous wicker effigy of Del Boy.*
Frank McDonald recently quoted the director of the Royal Institute of Architects in Ireland (RIAI) claiming that “architects are not involved in the construction stage of buildings . . . where the problems happen”.
Important point; the quote was taken out of context. It related to developer-lead buildings, from which – on-site – architects were usually excluded.
It’s a small distinction maybe, but important. Casey invokes Priory Hall, a horrible story… but the article he goes on to write ignores the existence of property developers entirely. He deconstructs an RIAI Building Contract (badly, as we’ll see) – but the problem at Priory Hall, and other developments like it, was that this contract wasn’t used. This means his article is gloriously irrelevant from the kick-off.
I want to be clear here because I don’t want to play the apologist. First, the construction trade in Ireland is desperately corrupted and far too many of the buildings built over the last ten years were awful. Second, the architectural profession – simply through a terrible acquiescence to a status quo they knew were wrong – has a chunk of responsibility for this, even if it’s not a primary responsibility. Third, in my opinion the profession needs some reforms.
But what Casey attacks is something the profession has got right. It is where architects save clients a lot of money. It’s why architects exist.
For years now, architects have deflected responsibility from themselves by means of a standard contract that they encourage their clients and building contractors to sign. Take the short form contract, SF-88, drawn up mainly by the RIAI. This neatly encapsulates the mindset of the architectural profession. (My request to the RIAI to provide a copy of this contract fell on deaf ears but I managed to acquire a copy elsewhere.)
A big error from the off: SF-88 is not “a standard form.” It is a deliberately simplified form of construction contract, used for very small jobs – usually internal fit-outs. You want to build a nice reception desk in the lobby of a hotel? SF-88 is your man. Occasionally it might be used for small domestic extensions, but even that’s a stretch. In my ten years of practice I have never used it. The construction contract is called “The Agreement and Schedule of Conditions of Building Contract,” and is about five times as long. Maybe that’s why Michael Casey chose to read SF-88 instead; he’s probably a busy man. One can’t spend more than an afternoon on these matters.
(Small point; all the building contracts are available from the RIAI Bookshop on Merrion Square. They post them, too. Specimen forms are €2.99. Not so hard to get hold of.)
The contract is between the client (employer) and the builder (contractor). The architect does not feature prominently in the standard version. In fact, his relationship with, and duties to, the client/employer are vague.
Focus on this.
Remember how I said SF-88 was a construction contract? That’s because it’s a contract between the client and the builder. The “architect” (it doesn’t have to be a registered architect, it can – theoretically – be anyone at all provided both parties agree) administers the contract between them.
So the architect’s duties to the client / employer are “vague” because this isn’t the agreement between the architect and employer. There’s a completely separate contract, which both the architect and the employer sign, that sets out the architect’s scope of services and duties to the employer; the standard form is very thorough. It’s signed at the beginning of design, months before the job even starts on-site. It isn’t set out in SF-88 because that’s not what the form is for. You might as well criticise the warranty for your car because it doesn’t contain the rules of the road.
So if you think Michael Casey might have expertise in this area, just bear in mind that, on two counts, he hasn’t actually managed to read the right form.
For example: “The architect shall carry out periodic inspections . . . these inspections shall not in any way relieve the contractor of his sole obligation [my emphasis] to carry out the works in accordance with the contract.”
This means that the architect has no responsibility to ensure that the works are up to standard. Periodic inspections are almost always done after work has been done, usually too late to make a proper assessment. Quality control is the contractor’s responsibility. This is extraordinary since it allows the builder/contractor to supervise himself.
There is a very clear division of responsibility in the contract. The architect is responsible for the design in every detail. This means where the lead flashings go; what the skirting boards are made of; the position of light switches. This is obviously a huge responsibility.
The builder is responsible for building the design accurately, and in a workmanlike manner. The architect has a duty to inspect the site to ensure this is happening; if the builder is not following the design, the architect can and will instruct him to make changes. Inspections are usually every 1-2 weeks; if the architect isn’t inspecting the site regularly enough, s/he is being professionally negligent. In practice, the duty of inspection makes the architect partly liable for anything that goes wrong.
Michael Casey’s confusion at this is moronic. Of course it’s the contractor’s sole obligation to carry out the works in accordance with the contract (“the contract” includes all the drawings, specifications, schedules… everything). The architect can’t be responsible for someone else doing their job; they are, however, responsible for inspecting the works to ensure they comply. It’s clear and sensible.
… the builder… is contractually bound to follow all instructions given to him by the architect. Even if these instructions are unsound, the builder has to take responsibility for them, not the architect. This makes no sense.
It makes no sense because it isn’t true. The architect is responsible for every single instruction – be it oral, written, a drawing, or conveyed by interpretive dance. The builder is responsible for carrying them out accurately. The thumbnail is that the architect is responsible for the design, the builder is responsible for workmanship. It’s very clear and it makes sense.
Under this contract, the client/employer has few rights. The architect becomes, through some mysterious process, the administrator of the contract between the client/employer and the builder/contractor. In essence he is the boss. The architect can issue new instructions without invalidating the contract and he can put a value on any additional works he deems appropriate. This is such a sweeping power that one wonders what purpose the initial contract serves.
The architect is the client’s agent; s/he is duty bound to pursue the client’s interests in all regards. That’s in the client-architect agreement and it’s the cornerstone of the profession. The employer is represented through the architect.
There isn’t anything “mysterious” in the process by which the architect becomes the administrator of the contract. It’s written into the contract. Somebody has to administer the contract, and the architect – with knowledge of the design, experience of and training in construction, and a relationship with the client – is the obvious person to do it. The architects powers and duties are very clear, and the most important of all is that the architect be fair and equitable to both parties.
With regard to instructions: buildings tend to vary as they go on. The client might change their mind, or the budget may need to be cut, or their may be a soft spot found in the ground. The architect has to be allowed to issue instructions or no construction job would ever be built.
The idea that architects can value the work themselves, however, is purely fictional.
“The architect can decide when he deems the works to be completed so that they can be taken over by the client/employer for their intended purpose.”
This is nonsense. The building contract specifically sets out when a building is “practically complete,” – it is when the works can be used for their intended purpose, and where any outstanding defects are trivial in nature and their rectification will not interfere with the use of the building. The architect administers the process, that’s all.
“If it happens that the architect and the builder have a long and cosy association then the client could be on a hiding to nothing. In administering the contract, the architect could, if he wishes, always take the builder’s side.”
Wrong again. If the architect takes anyone‘s side, s/he is professionally negligent and will end up in court. The architect has to be fair and impartial in administering the contract. It’s also worth noting that Michael Casey offers no evidence of anything of the kind ever happening.
If the builder runs over time, the architect can grant him an extension.
The contract sets out every single criteria for which a builder can claim an extension of time. These include “exceptionally inclement weather,” “civil disturbance, strike, or lockout” and “force majeure,” amongst others. The architect administers the process, but can’t simply grant extensions.
He can certify stage payments to the builder, thereby accepting and vouching for the quality of the work done. This is surely inconsistent if the architect has no responsibility under the contract for quality control to start with.
The architect isn’t responsible for the contractor’s workmanship, but the duties of inspection mean s/he cannot certify payment for defective work and would be found negligent were s/he to do so. The architect does control stage payments, but it’s a detailed process based on the contractor’s Bill of Quantities**; a Quantity Surveyor*** (or more often, two – the builder will employ one) is usually involved.
There are other weird aspects to this contract: a liquidated damages clause which is more or less unenforceable, the delegation of site safety completely to the builder…
The clause about “liquidated damages” enables the client to be fairly compensated for financial loss suffered as a result of the builder running late. In the case of a house, for example, it would be rental payment on another property. I’m fairly sure it isn’t unenforceable, since – ahem – I’ve previously worked on a job where it was enforced.
Given that it’s the builder who runs the site and is there every day and all day, it’s difficult to see what’s “weird” about him being responsible for site safety.
Notwithstanding the lack of responsibility, architects were able to charge lucrative fees during the Celtic Tiger period. For some jobs, they could charge up to 30 per cent of the total cost of works.
Unsubstantiated, and utterly ludicrous. I don’t know an architect who has charged one-third that figure. During the boom, a domestic job generally cost about 8%. Larger jobs varied according to their complexity, but 5-6% would be a decent fee. At the moment, many architects are bidding at about 2%.
[Architects] were protected by a one-sided contract which should, in the public interest, be scrapped immediately. If retained in anything like its present form, no client should ever sign it.
Let’s be clear about this. The contract is not “one-sided.” It is fair.
The first standard form of contract appeared in 1910. The current contract grew out of a liaison committee between architects, surveyors, contractors and engineers that was set up in 1950; it isn’t a unilateral architect’s document. It’s been tweaked on numerous occasions to keep up-to-date, but has been more or less unchanged since the early 80s.
This contract has been tested in court many, many times. Building is an expensive business; people tend to look for weaknesses in contracts as there’s a lot of money in it. And the whole point of contract law is that contracts have to be fair and equitable. If they aren’t, they aren’t valid contracts.
The fact is, the standard building contract still exists because it is fair – if it wasn’t, a court would have thrown it out years ago. It’s a touch overcomplicated, yes. It’s written in some legalese that’s difficult to understand (there is a plain-language form that is much clearer, and isn’t used half enough in my opinion), and this can alienate clients. Because of this, architects have to study it very carefully for months, and there is a guidance book that’s something like 350 pages long.
But it is not one-sided. It’s court-tested and repeatedly found to be equitable. On the other hand the person who is calling for it to be “scrapped immediately,” based – apparently – on reading it for maybe half a day, wasn’t even reading the right contract.
The director of the RIAI seemingly accepts that architects should do more. He believes that, from now on, “the design team on each project should carry out inspections during the construction phase and, on completion, to ensure building works have been carried out in line with the original drawings”.
Note where Casey’s quotation marks are located. I doubt that the RIAI said this should be the case “from now on,” because it is already the case when the contract is used.
This represents some improvement, but “inspections” are not the answer. Supervision is. Otherwise the builder will continue to supervise himself. If the architectural profession is not prepared to step up to the mark, we should bring back clerks of works or other hands-on professionals to ensure works are carried out properly.
First of all, I’m going to ask two people in my office to ring the Clerk of Works on their jobs and inform him he doesn’t apparently exist any more.
Second; the answer, it seems, is “supervision.” This means an architect on-site, all day, every day, fully devoted to the job. The good news is that there’s a lot of unemployed architects around at the moment, so you won’t struggle to find candidates. It does mean for – say – a six month house extension, that if you want a properly experienced candidate you’ll have to shell out an extra €20k or so for something that’s completely unnecessary. Did I mention the bloke with this thorough an understanding of value for money was a board member of the IMF?
Existing standard contracts need to be fundamentally re-examined, with input from the Competition Authority and consumer representatives. The International Monetary Fund-led troika will also be able to advise on this matter. The efficiency and fee-structures of professional groups in this country have an important bearing on the competitiveness of the country.
And here’s the crux of the matter. Quite apart from the absurdity of the IMF advising on private construction contracts – and let’s fact it, Michael Casey’s attempt at understanding the contract doesn’t exactly suggest that IMF board members are particularly gifted here – the paragraph is a code for the meme of opening up these inward-looking, inefficient professions. Except Casey offers no evidence of the fee-structures beyond his batshit, unverified 30% comment (architects don’t even have imposed fee-structures – they have competitive tendering for all jobs), or their inefficiency. It’s also interesting that a former member of the Central Bank and the IMF is castigating another group as an unpaid, unaccountable elite with enormous power over ordinary people. The word “transference” springs to mind.
And yet, if we accept that Casey wants to open up the construction trade, what this actually means is deregulation. For all the obvious reasons, that’s a word no-one wants to hear in relation to construction.
It leaves the question of why. There are two answers. One is that an architect once keyed his car. The other… oh look, I’m going to write about that in the next day or so. You’ll love it. You know you will.*Image courtest of Stewart Lee. Citation, baby. **Best described as an itemised list of every single thing in the building, and what the contractor is charging for it. They’re about one-third as interesting as you think they are. ***The accountants of the building world. They’ll love me for saying that.