Duty of Care and Contractual Agreements in Architecture

business of C be and Contractual Agreements in Architecture sectionalisation 1Clearly explain what particular requirements essentialiness be in place for a Contract to exist betwixt two parties?For a rationalise to exist between two parties in that respect must(prenominal)iness be evidence of trey key principles.An intention between each develop-to doe with parties to discrepancy a legitimately extending blood.A consideration (usu on the wholey monetary) for the compact.The continue and acceptance of the utter symmetry.The intention of a reasonedly binding relationship from each troupe must be formal a clean obligation alone is insufficient. As such, articles such The Memorandum of Agreement abbreviation the requirements of parties when intending to enter a commence.For a vex to exist the promise must be enforceable with a consideration. It is the troupe who pass ons this bargain who enforces the contract. Once a consideration is provided, all parties ar gon bow outn into privity of contract. The consideration is decided by the parties involved and the level of adequacy is ir applicable, it must be offered and reliable for the agreement to mature into a contract. As such, an offer without an acceptance is merely a pre-contractual agreement, not binding in law. In all case, for a contract to exist all terms of the offer must be accepted and a consideration provided.However, at that place is no requirement for a puddle verbally instrument for or so guinea pigs of contract. An oral contract is legally binding providing there has been acceptance of an offer. From a legal stand-point, hassle stooge be avoided if documental evidence is provided of an agreement. The four corners rule allows a contract to be enter and subsequently is easier to enforce in law.Explain what is meant by the term Duty of Cargon and what are the implications upon the architect?A employment of care is a legal obligation in tort law imposed on the Arc hitect requiring they exercise a standard of reasonable care and applications programme whilst carrying out professional represent that could foreseeably harm some others. Any failure in an Architects duty of care laughingstock result in an action in negligence where they become liable in tort law. Furtherto a greater extent, a duty of care is withal applicable in agency outside of any contractual arrangement.It is not required that a duty of care be defined by law, however, it frequently develops with the jurisprudence of common law. In this respect, a duty of care move be interpreted as a formalisation of the social contract and implicit responsibilities of the someone towards others in society.It is an ARB requirement that Architects adhere to the puddleed standards of the profession and exercise cod skill, care and diligence,whilst carrying out professional establish at heart agreed quantify-frames and without extra delay.For a duty of care to be breached, the ch ase must be trueHarm must be reasonably foreseeable of the defendants conduct.A relationship of proximity between the defendant and the claimant.It must be fair, average and reasonableto impose liability.Explain the term Joint and Several Liability and how does it concussion upon particular forms of architectural Practice?Under Joint and Several Liability, a lymph gland may pursue an obligation against any single party as if they were collectively liable. The responsibility past passes to the defendants who must establish their individual percentages of liability and monetary payment. thus, if a claimant pursues a single defendant and receives all the damages, that defendant must then pursue the other libelous parties to start out contributions proportionate to their share of liability. Joint and Several liability is most(prenominal) relevant in tort claims and most often invoked in cases of negligence.Architects explore to establish a clear and properly defined agreement with specific persona to the understanding and expectations of the invitee. These agreements provide an assured basis on which the commission faeces be undertaken. Furthermore, the chosen form of appointment will determine the mend of the Architects liability and accountability.Architects besides seek to limit their risk and liability through their chosen form of architectural practice. For Example, Limited Liability Partnerships and Companies cannot be conjointly or several liable with its members liability determined by their stakehold in the partnership or shareholding in the company.Explain what is meant by the term slight Construction.Lean grammatical facial expression is a system of imageing occupation systems to disparage the era, elbow grease and material waste of a drop to generate the maximum amount of pry. The process itself is derived from the lean production system within the manufacturing industry. It is original that the production system is juted t hrough a collaboration of realize participants (Client, Architect, Engineer, Contractor, bring ining Owner) at the earliest stages of the project. It is found on the premise that desired ends restore the means to achieve these ends, and that available means will affect realized ends.The principles of Lean Construction are as followsAllow prize to flow by systematically removing obstacles to survey creation and dispensable processes that create no value.Optimisation of the system through collaboration and systematic learning. precedency on delivering the Client/End- dor/ pull ining Owners expect value.Creating Pull Production.The pursuit of ne plus ultra/continual return, involving everyone in the system.Lean construction supplements conventional construction care by considering material and sayation flow, foc exploitation on the enhancement of the production systems value generation. Therefore, a project using the Lean Construction system acting shouldDeliver maximum fu nctionality.Benefit end-users with the lowest optimum approach of ownership. reject the inefficiency and waste in the use of labour and materials.Involve specialist suppliers in design from the beginning to achieve integration and buildability.Establish accomplishment and improvement achievements by measurement.Use a single point of contact for rough-and-ready co-ordination and clear responsibility.Explain and define what is meant by a Letter of Intent. What are the circumstances under which it may be issued, what may be its objectives and what are the principal matters that it should contain?A Letter of Intent is a document that outlines an agreement between two or more parties before the agreement is lastised. They resemble written contracts but are not legally binding for the parties involved. However, letters of intent can contain provisions that are legal binding such as a covenant to negotiate in good faith, non-disclosure agreements and stand- belt up provisions that prom ise exclusive negotiation rights. It can too be interpreted as binding if it resembles a formal contract too closely. Therefore, the letter of intent is enforceable by the courts some(prenominal) in terms of the remuneration and the act.However, the letter of intent is not a contract instead it is a unilateral agreement in which one party confirms an intention to enter a contract with another party. Most importantly, it must contain an instruction to act and confirmation of a consideration as payment.Letters of intent are ordinarily issued toClarify the nature of confused transactions for the convenience of the parties involved.Provide safeguards in case of collapsed negotiations.Officially go for please or intent.Allow work to continue quickly based on trust.Architects mainly use letters of intent for the purpose of negotiation. For example, following the first stage of tender, a letter of intent maybe issued to inform a avower of their approval based on their proposal. The asserter can then contribute to the design before the second stage of tendering by providing detailed pricings and an overall building cost. Once the second stage of tendering is complete, a formal contract can be established between the parties.What are the principal factors that determine the choice of a particular contract form?To determine the most appropriate contract form, the Architect and client must first consider the priorities of the project in terms of time, cost and tonicity. These three factors are linked through a trade-off paradigm clock time results in change magnitude cost and decreased eccentric.Cost results in change magnitude time and decreased calibre.Quality results in increase cost and increased time.They are all related and inter-dependant.If time is the priority, then the procurance method must allow sufficient time to consider all of the design issues properly at the pre-contract stage. The client is afforded predictability and additional time can be saved by allowing the avower to resource their own materials, effective management, real time planning and overlapping detailed design phases with actual construction.If cost is the priority, then a financial limit must be established that a contract sum cannot exceed. Certainty of cost is dependant upon comprehensive design, drawings and specification that accurately assesses cost at the tender stage.If quality is the priority, the issue and class of quality in the finished building must be distinctly defined and established from the outset through a specification. Also, the measure of quality must alike be defined.The choice of contract type is also directly related to the chosen type of procural. Each type of procural type uses standard contract forms that are known and accepted by the industry. Most architects exact to use these standard forms as they are comprehensive, court common construction situations and take account of current legal decisions. Factors such as the complexity, size and overall value of the project may also inform the procurement route or contract type.In all situations the Architect as the lead consultant has the duty to advise the client of the long-term implications of their decisions.Section 2The protrude and condition process of procurement has been endorsed by the Public Sector as the favourred procurement option, on the basis that it is claimed that it offers certainty of contract sum and brings certain cost benefits. call back and discuss the merits or otherwise of this approach in comparison with the traditional method of procurement with particular reference to the role of the architect. (70 marks). send off and reconstruct is a procurement method for project delivery whereby an individual avower is contractually responsible for both the design and construction of a project. In young years, the public-sector has moved towards forge and gain as the chosen procurement path as opposed to the traditional, tripar tite arrangement where design and construction are separately contracted. The public-sectors interest in radiation pattern and shape can be attributed to several say-so benefits that are not always obtainable through alternative procurement methods. The following points outline the advantages.The Design and Build procurement route provides a single source of responsibility as the contractor is singularly responsible for any defect in both the construction and design of the project. This is of particular benefit to the building owner or client, who does not stimulate to define whether such defects are brought about by a deficiency in design or construction. Instead, the contractor is jointly and severly liable for the complete works. In a traditional contract, it is the client who must first determine the nature and cause of a problem, before deciding whether it is the designer or contractor who is at fault.Design and Build is also a popular route for the public-sector client as the contractor is obligate to bear any additional cost that results from inadequate or sorry plans provided by the design team. In a traditional contract, the client warrants the adequateness of the plans and as such is liable for any increased cost because of inadequate design. In the Design and Build contract, it is the contractor who is responsible for the projects design as well as the construction. They are hired to meet the clients specific performance specifications rather than merely construct the building as in the traditional contract procurement. Hence, if the plans are inadequately drafted or designed, the contractor is unable to seek remuneration from the client.It is widely recognised that Design and Build contracts enable a project to be ideal within a shorter time-period than the traditional three-party arrangement. The interface between the designer and contractor, often adversarial in the traditional method, can become more open and hence foster a more co-oper ative arrangement and exchange of ideas that can make the project a windy process. Time savings are also made by fast-tracking construction of known elements before the specifications and drawings of unknown elements are complete. The phased-nature of the design essentially allows work to commence on site whilst the later phases of the project are still being designed. The same time-savings are unable to be made within a traditional contract as the contractor does not usually even submit a tender, let alone start work on-site, before the design and drawings of the Architect are finalised. The responsibility for meeting topical anesthetic controls such as planning, bylaws and legislation is placed with the contractor, which usually results in increased efficiency.The phased nature of the Design and Build method also allows the contractor to work increased control of the project and can result in disappoint costs for the client. The specific control of detailed design enables the contractor to use familiar construction methods and materials which increase the efficiency of the build process. By stupefying the construction process, the contractor is able to order materials for upcoming phases, ahead of time and at a lower cost. The savings made on labour, materials and time are all passed on to the benefit of the client.It is considered that the Design and Build method reduces the requirement for independent professional representation. Public sector clients often prefer to limit the number of points of contact to restrict the amount of time, effort and in-house provide it requires to undertake a project. Often it will use Design and Build in conjunction with privatisation, whereby it contracts an independent party to undertake responsibilities previously held by the Government, such as land acquisition, project finance, design, construction, operation and ownership. This method, in its most complete form is represented by the turnkey and package kettle of fish options, whereby the client is uninvolved for the majority of the project and presented with the completed building.However, it is desirable to have an independent terzetto party (usually an Architect) for the purpose of quality control. Without a third party, the contractor, who is hired to complete the project promptly and frugalally, also has the task of assessing the quality and quantity of its own work. Hence, the contractor has a potential conflict of interest and is likely to reduce quality in order to satisfy the clients other requirements. With the presence of a third-party, the client/owners interests are represented during the design and construction.Clients tell apart Design and Build contracts as usually a fixed terms and contract sum can be negotiated. The client specifies the maximum footing it is willing to pay for the project before it solicits a proposal from the Design and Build contractor for its specifications, configuration and materials. However, di fficulty can arise when there is an increase in the cost of work and construction. The contractor can sometimes abuse the situation by recouping costs in other areas of the project and without a third party, the client finds it far more difficult to happen upon and control such situations than in a traditional contact form. Therefore, most Design and Build contracts are lump-sum and fixed price, but payments are completed on a cost-plus basis to facilitate potential increases in cost. Also, payments tend to be dependant on the achievement of project milestones. This allows the contractors turn over to be measured and assessed by the client, allowing easier negotiation in terms of compensation where costs have significantly increased under a fixed-price contract.However, the Design and Build route is not without potential problems. Many architects, clients, building owners and contractors have varying opinions about the successes of this procurement type. The following points are a mongst the potential disadvantages to using Design and Build in the public-sector.If a public-sector client chooses the Design and Build procurement path it is difficult to actively compare preliminary proposals from fourfold contractors. The contractor is only responsible for satisfying the clients performance specification thence the designs may be wide-ranging in aesthetic and prioritise variant issues depending on the contractors individual stand-point. As in the turnkey approach, the client or eventual building owner has diminutive input into the design and final appearance of the building and as such, may be unsatisfied with the result. Also, as the contract is entered into by negotiation rather than competitive tendering, the client may not always achieve the lowest cost for the building. Therefore, unlike the traditional route, if a client wants to attract multiple preliminary proposals, they must provide an individual consideration for each contractor that submits a des ign package. This is a cost often overlooked in debating the value of Traditional vs. Design and Build procurement, as these fees are separated from the contract sum in the case of Design and Build.Another problem with tendering a Design and Build contract is the potential for the building to become a competition in under-design. Contractors will seek to meet the clients outline requirements whilst sacrificing quality, life-span, ease of maintenance, and value in a bid to offer the minimum price. In placing responsibility for both the design and construction in the contractors hands, the client forfeits control. Therefore the client has little input in assessing sub-standard work, claiming for variations, debating extensions of time or even using a termination clause due to excessive delay.To combat against this, it is again wise to use a third-party design professional who can check the value and realism of the tendered bid. However, the monetary and time savings inherent to Desig n and Build contracts then become nominal as the time-period and expertise needed by the third-party to check the work of the contractor is both expensive and time-consuming. Such a third party can be appointed independently by the client, or be appointed through consultant switch or novation if they are the original designer/design team. Also, contractors seek to recoup the spending of unsuccessful tenders with their successful tenders so, the client will always pay a small premium for the work of their chosen contractor.Another disadvantage to the Design and Build arrangement is the difficulty of obtaining long-term contractual protection in terms of the suitability of the work. Many contractors use contracts where such insurance is prohibitively expensive and resultantly, commercially unviable for the client. Therefore, it is the clients responsibility to be aware of the extent of coverage of the contractors liability insurance. In the event of a defect in the design or const ruction of the project, the client may be unable to repossess anything if the contractors insurance coverage or assets are insufficient to pay compensation, unheeding of whether liability can be determined. Public sector clients often choose the Design and Build procurement route as the available financial resources of a contractor are normally greater than that of the professional individual or architectural practice, in the event of a post-completion failure.A potential problem with liability can arise when the Design and Build contractor hires an Architect as a sub-consultant. Most contractors professional indemnity insurance does not cover damages caused by defective design or specifications prepared by the Architect. Conversely, the Architects professional indemnity insurance does not cover damages caused by defective labour, materials or operations during the contractors construction process. Therefore, the contractor offers a warranty for an agreed (but usually limited) tim e-period based on the touch sensation of negligence.However, the commercial and financial pressures of the Design and Build contract compel the contractor to essentially under-design the building as far as possible qualification failures within the building an increased likelihood. As a result, there is often a need for litigation to define whether the economy of the project surpasses the expected level of professional responsibility at the time of design and construction. Therefore in order to protect their building, the client should seek to obtain a warranty that guarantees the completed building is suitable for its intended purpose, regardless of defects incurred by the contractor.In the public sector, Design and Build contracts are usually awarded on subjective criteria such as value, experience and qualification. The public sector in particular has developed contractor evaluation and selection policies that try to decline against the risk of such subjective judgments. In ma ny cases this is achieved by honor contracts based on a point-scoring system with the highest scorer being appointed. However, this discretionary points system implemented by public managers offers little objectivity in determining the adequate point allocation for individual elements of the proposed scheme. For instance, there is simply any way to decide whether one contractors foundation system warrants 20 points or a different contractors warrants 22, it is completely subjective. Also the criteria used for fool generally do not relate to the specific building type, therefore analysing a contractors qualifications and experience presents a measure of competence but does not guarantee a successful project outcome. There is also difficulty in reasonably comparing alternative design proposals in an effort to determine which represents the best value. For example, some contractors may offer higher quality plumbing whilst others offer better electrical systems. Therefore it is impos sible to draw reasonable conclusions from dissimilar bids in terms of which proposal offers best value. Often, value can only be determined after the building has been completed.In conclusion, public owners look for procurement systems that meet the needs of the public whilst mitigating against legal problems and reducing administrative burden. The public-sector has favoured the Design and Build approach as the client can guarantee a total fixed project cost early in the process and the building can be constructed in a shorter time-period with more efficiency than other procurement systems. The contract type also allows an exploration of new solutions through an open dialogue between architect and contractor, in which the public benefit from the innovation and lower costs. As a result, the public-sectors involvement with Design and Build has increased over recent years.Fundamentally, the public requires its construction projects to be durable, environmental, functional and most impo rtantly, fit for purpose. At the same time, it expects the government funded projects to represent good value and be economic in nature. Therefore, the public itself has little involvement or interest in which procurement system is utilised, however, they expect each project to fulfill its stated requirements within its allocated budget. It is the view of the public-sector, that Design and Build is the system best provide to meet the publics expectations and provide the most transparent value for projects that are lastly funded by the tax-payer.BibliographyLupton S. Architects Job Book. (RIBA Enterprises 7th ed.)Chappell D Wills A. The Architect in Practice. (Blackwell make 10th ed.)ARB. Architects Code Standards of Conduct and Practice. (November 2002)http//en.wikipedia.org/wiki/Design_and_Buildhttp//www.lao.ca.gov/2005/design_build/design_build_020305.htm