Practice management and law Essay

Section 1

  1. Clearly explain what peculiar demands must be in topographic point for a Contract to be between two parties?

For a contract to be between two parties there must be grounds of three cardinal rules.

  • An purpose between all involved parties to organize a lawfully adhering relationship.
  • A consideration ( normally pecuniary ) for the understanding.
  • The offer and credence of the declared understanding.

The purpose of a lawfully adhering relationship from each party must be formal ; a moral duty entirely is deficient. As such, articles such ‘The Memorandum of Agreement ‘ lineation the demands of parties when meaning to come in a contract.

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For a contract to be the promise must be enforceable with a consideration. It is the party who provides this deal who enforces the contract. Once a consideration is provided, all parties are drawn into privity of contract. The consideration is decided by the parties involved and the degree of adequateness is irrelevant, it must be offered and accepted for the understanding to maturate into a contract. As such, an offer without an credence is simply a pre-contractual understanding, non adhering in jurisprudence. In any instance, for a contract to be all footings of the offer must be accepted and a consideration provided.

However, there is no demand for a written papers for most types of contract. An unwritten contract is lawfully adhering supplying at that place has been credence of an offer. From a legal stand-point, trouble can be avoided if documental grounds is provided of an understanding. The ‘four corners ‘ regulation allows a contract to be recorded and later is easier to implement in jurisprudence.

  1. Explain what is meant by the term ‘Duty of Care ‘ and what are the deductions upon the designer?

A responsibility of attention is a legal duty in civil wrong jurisprudence imposed on the Architect necessitating they exercise a criterion of sensible attention and diligence whilst transporting out professional work that could foreseeably harm others. Any failure in an Architect ‘s responsibility of attention can ensue in an action in carelessness where they become apt in civil wrong jurisprudence. Furthermore, a responsibility of attention is besides applicable in bureau outside of any contractual agreement.

It is non required that a responsibility of attention be defined by jurisprudence, nevertheless, it frequently develops through the law of common jurisprudence. In this regard, a responsibility of attention can be interpreted as a formalization of the societal contract and inexplicit duties of the single towards others in society.

It is an ARB demand that Architects adhere to the established criterions of the profession and ‘exercise due accomplishment, attention and diligence, ‘whilst transporting out professional work within agreed time-frames and without unneeded hold.

For a responsibility of attention to be breached, the undermentioned must be true:

  • Injury must be ‘reasonably foreseeable ‘ of the suspect ‘s behavior.
  • A relationship of ‘proximity ‘ between the suspect and the claimant.
  • It must be ‘fair, merely and reasonable’to impose liability.
  1. Explain the term ‘Joint and Several Liability ‘ and how does it impact upon peculiar signifiers of architectural Practice?

Under Joint and Several Liability, a client may prosecute an duty against any individual party as if they were jointly apt. The duty so passes to the suspects who must set up their several per centums of liability and pecuniary payment.

Therefore, if a claimant pursues a individual suspect and receives all the amendss, that suspect must so prosecute the other calumniatory parties to obtain parts proportionate to their portion of liability. Joint and Several liability is most relevant in civil wrong claims and most frequently invoked in instances of carelessness.

Architects seek to set up a clear and decently defined understanding with specific mention to the apprehension and outlooks of the client. These understandings provide an assured footing on which the committee can be undertaken. Furthermore, the chosen signifier of assignment will find the bound of the Architect ‘s liability and answerability.

Architects besides seek to restrict their hazard and liability through their chosen signifier of architectural pattern. For Example, Limited Liability Partnerships and Companies can non be jointly or several apt with its members liability determined by their stakehold in the partnership or shareholding in the company.

  1. Explain what is meant by the term ‘Lean Construction ‘ .

Thin building is a method of planing production systems to minimise the clip, attempt and material waste of a undertaking to bring forth the maximal sum of value. The procedure itself is derived from the ‘lean production system ‘ within the fabrication industry. It is cardinal that the production system is designed through a coaction of undertaking participants ( Client, Architect, Engineer, Contractor, Building Owner ) at the earliest phases of the undertaking. It is based on the premiss ‘that desired terminals affect the agencies to accomplish these terminals, and that available agencies will impact realized terminals. ”

The rules of Thin Construction are as follows:

  • Allow value to flux by consistently taking obstructions to value creative activity and dispensable procedures that create no value.
  • Optimization of the system through coaction and systematic acquisition.
  • Precedence on presenting the Client/End-user/Building Owner ‘s expected value.
  • Making Pull Production.
  • The chase of perfection/continual betterment, affecting everyone in the system.

Thin building addendums traditional building direction by sing stuff and information flow, concentrating on the sweetening of the production system ‘s value coevals. Therefore, a undertaking utilizing the Thin Construction method should:

  • Deliver maximal functionality.
  • Profit end-users with the lowest optimal cost of ownership.
  • Extinguish the inefficiency and waste in the usage of labor and stuffs.
  • Involve specializer providers in design from the beginning to accomplish integrating and buildability.
  • Establish public presentation and betterment accomplishments by measuring.
  • Use a individual point of contact for effectual co-ordination and clear duty.
  1. Explain and specify what is meant by a Letter of Intent. What are the fortunes under which it may be issued, what may be its aims and what are the chief affairs that it should incorporate?

A Letter of Intent is a papers that outlines an understanding between two or more parties before the understanding is finalised. They resemble written contracts but are non lawfully adhering for the parties involved. However, letters of purpose can incorporate commissariats that are legal binding such as a compact to negociate in good religion, non-disclosure understandings and stand-still commissariats that promise sole dialogue rights. It can besides be interpreted as binding if it resembles a formal contract excessively closely. Therefore, the missive of purpose is enforceable by the tribunals both in footings of the wage and the act.

However, the missive of purpose is non a contract ; alternatively it is a one-sided understanding in which one party confirms an purpose to come in a contract with another party. Most significantly, it must incorporate an direction to move and verification of a consideration as payment.

Letterss of purpose are normally issued to:

  • Clarify the nature of complex minutess for the convenience of the parties involved.
  • Provide precautions in instance of collapsed dialogues.
  • Officially declare involvement or purpose.
  • Allow work to go on rapidly based on trust.

Architects chiefly use letters of purpose for the intent of dialogue. For illustration, following the first phase of stamp, a missive of purpose possibly issued to inform a contractor of their blessing based on their proposal. The contractor can so lend to the design before the 2nd phase of tendering by supplying elaborate pricings and an overall edifice cost. Once the 2nd phase of tendering is complete, a formal contract can be established between the parties.

  1. What are the chief factors that determine the pick of a peculiar contract signifier?

To find the most appropriate contract signifier, the Architect and client must first see the precedences of the undertaking in footings of clip, cost and quality. These three factors are linked through a trade-off paradigm:

  • Time consequences in increased cost and reduced quality.
  • Cost consequences in increased clip and reduced quality.
  • Quality consequences in increased cost and increased clip.
  • They are all related and inter-dependant.

If clip is the precedence, so the procurance method must let sufficient clip to see all of the design issues decently at the pre-contract phase. The client is afforded predictability and extra clip can be saved by leting the contractor to resource their ain stuffs, effectual direction, real-time planning and overlapping elaborate design stages with existent building.

If cost is the precedence, so a fiscal bound must be established that a contract amount can non transcend. Certainty of cost is dependent upon comprehensive design, drawings and specification that accurately assesses cost at the stamp phase.

If quality is the precedence, the issue and grade of quality in the finished edifice must be clearly defined and established from the beginning through a specification. Besides, the step of quality must besides be defined.

The pick of contract type is besides straight related to the chosen type of procurance. Each type of procurance type uses standard contract signifiers that are known and accepted by the industry. Most designers choose to utilize these standard signifiers as they are comprehensive, address common building state of affairss and take history of current legal determinations. Factors such as the complexness, size and overall value of the undertaking may besides inform the procurement path or contract type.

In all state of affairss the Architect as the lead adviser has the responsibility to rede the client of the long-run deductions of their determinations.

Section 2

The Design and Build procedure of procurance has been endorsed by the Public Sector as the preferable procurance option, on the footing that it is claimed that it offers certainty of contract amount and brings certain cost benefits. Consider and discourse the virtues or otherwise of this attack in comparing with the Traditional method of procurance with peculiar mention to the function of the designer. ( 70 Markss ) .

Design and Build is a procurement method for undertaking bringing whereby an single contractor is contractually responsible for both the design and building of a undertaking. In recent old ages, the public-sector has moved towards Design and Build as the chosen procurement way as opposed to the traditional, tripartite agreement where design and building are individually contracted. The public-sector ‘s involvement in Design and Build can be attributed to several possible benefits that are non ever gettable through alternate procurance methods. The undermentioned points outline the advantages.

The Design and Build procurement path provides a individual beginning of duty as the contractor is singularly responsible for any defect in both the building and design of the undertaking. This is of peculiar benefit to the edifice proprietor or client, who does non hold to specify whether such defects are brought about by a lack in design or building. Alternatively, the contractor is jointly and severly apt for the complete plants. In a traditional contract, it is the client who must foremost find the nature and cause of a job, before make up one’s minding whether it is the interior decorator or contractor who is at mistake.

Design and Build is besides a popular path for the public-sector client as the contractor is obliged to bear any extra cost that consequences from unequal or faulty programs provided by the design squad. In a traditional contract, the client warrants the sufficiency of the programs and as such is apt for any increased cost because of unequal design. In the Design and Build contract, it is the contractor who is responsible for the undertaking ‘s design every bit good as the building. They are hired to run into the client ‘s specific public presentation specifications instead than simply build the edifice as in the traditional contract procurance. Hence, if the programs are inadequately drafted or designed, the contractor is unable to seek compensation from the client.

It is widely recognised that Design and Build contracts enable a undertaking to be completed within a shorter time-period than the traditional tripartite agreement. The interface between the interior decorator and contractor, frequently adversarial in the traditional method, can go more unfastened and therefore foster a more co-operative agreement and exchange of thoughts that can do the undertaking a faster procedure. Time nest eggs are besides made by ‘fast-tracking ‘ building of known elements before the specifications and drawings of unknown elements are complete. The phased-nature of the design basically allows work to get down on site whilst the ulterior stages of the undertaking are still being designed. The same time-savings are unable to be made within a traditional contract as the contractor does non normally even subject a stamp, allow alone get down work on-site, before the design and drawings of the Architect are finalised. The duty for run intoing local controls such as planning, bylaws and statute law is placed with the contractor, which normally consequences in increased efficiency.

The phased nature of the Design and Build method besides allows the contractor to hold increased control of the undertaking and can ensue in lower costs for the client. The specific control of elaborate design enables the contractor to utilize familiar building methods and stuffs which increase the efficiency of the build procedure. By reeling the building procedure, the contractor is able to order stuffs for approaching stages, in front of clip and at a lower cost. The nest eggs made on labor, stuffs and clip are all passed on to the benefit of the client.

It is considered that the Design and Build method reduces the demand for independent professional representation. Public sector clients frequently prefer to restrict the figure of ‘points of contact ‘ to curtail the sum of clip, attempt and in-house staff it requires to set about a undertaking. Often it will utilize Design and Build in concurrence with denationalization, whereby it contracts an independent party to set about duties antecedently held by the Government, such as land acquisition, undertaking finance, design, building, operation and ownership. This method, in its most complete signifier is represented by the prison guard and bundle trade options, whereby the client is uninvolved for the bulk of the undertaking and presented with the completed edifice.

However, it is desirable to hold an independent 3rd party ( normally an Architect ) for the intent of quality control. Without a 3rd party, the contractor, who is hired to finish the undertaking quickly and economically, besides has the undertaking of measuring the quality and measure of its ain work. Hence, the contractor has a possible struggle of involvement and is likely to cut down quality in order to fulfill the client ‘s other demands. With the presence of a third-party, the client/owner ‘s involvements are represented during the design and building.

Clients choose Design and Build contracts as normally a fixed monetary value and contract amount can be negotiated. The client specifies the maximal monetary value it is willing to pay for the undertaking before it solicits a proposal from the Design and Build contractor for its specifications, constellation and stuffs. However, trouble can originate when there is an addition in the cost of work and building. The contractor can sometimes mistreat the state of affairs by reimbursing costs in other countries of the undertaking and without a 3rd party, the client finds it far more hard to observe and command such state of affairss than in a traditional contact signifier. Therefore, most Design and Build contracts are lump-sum and fixed monetary value, but payments are completed on a cost-plus footing to ease possible additions in cost. Besides, payments tend to be dependant on the accomplishment of undertaking mileposts. This allows the contractor ‘s advancement to be measured and assessed by the client, leting easier dialogue in footings of compensation where costs have significantly increased under a fixed-price contract.

However, the Design and Build path is non without possible jobs. Many designers, clients, edifice proprietors and contractors have changing sentiments about the successes of this procurance type. The undermentioned points are amongst the possible disadvantages to utilizing Design and Build in the public-sector.

If a public-sector client chooses the Design and Build procurement way it is hard to actively compare preliminary proposals from multiple contractors. The contractor is merely responsible for fulfilling the client ‘s public presentation specification ; therefore the designs may be wide-ranging in aesthetic and prioritise different issues depending on the contractor ‘s single stand-point. As in the prison guard attack, the client or eventual edifice proprietor has small input into the design and concluding visual aspect of the edifice and as such, may be unsatisfied with the consequence. Besides, as the contract is entered into by dialogue instead than competitory tendering, the client may non ever achieve the lowest cost for the edifice. Therefore, unlike the traditional path, if a client wants to pull multiple preliminary proposals, they must supply an single consideration for each contractor that submits a design bundle. This is a cost frequently overlooked in debating the value of Traditional vs. Design and Build procurance, as these fees are separated from the contract amount in the instance of Design and Build.

Another job with tendering a Design and Build contract is the possible for the edifice to go a competition in under-design. Contractors will seek to run into the client ‘s lineation demands whilst giving quality, life-span, easiness of care, and value in a command to offer the minimal monetary value. In puting duty for both the design and building in the contractor ‘s custodies, the client forfeits control. Therefore the client has small input in measuring sub-standard work, claiming for fluctuations, debating extensions of clip or even utilizing a expiration clause due to inordinate hold.

To battle against this, it is once more advisable to utilize a third-party design professional who can look into the value and pragmatism of the tendered command. However, the pecuniary and clip nest eggs built-in to Design and Build contracts so become nominal as the time-period and expertness needed by the third-party to look into the work of the contractor is both expensive and time-consuming. Such a 3rd party can be appointed independently by the client, or be appointed through adviser switch or novation if they are the original designer/design squad. Besides, contractors seek to reimburse the spending of unsuccessful stamps with their successful stamp ‘s ; hence, the client will ever pay a little premium for the work of their chosen contractor.

Another disadvantage to the Design and Build agreement is the trouble of obtaining long-run contractual protection in footings of the suitableness of the work. Many contractors use contracts where such insurance is prohibitively expensive and resultantly, commercially unviable for the client. Therefore, it is the client ‘s duty to be cognizant of the extent of coverage of the contractor ‘s liability insurance. In the event of a defect in the design or building of the undertaking, the client may be unable to recover anything if the contractor ‘s insurance coverage or assets are deficient to pay compensation, irrespective of whether liability can be determined. Public sector clients frequently choose the Design and Build procurement path as the available fiscal resources of a contractor are usually greater than that of the professional person or architectural pattern, in the event of a post-completion failure.

A possible job with liability can originate when the Design and Build contractor hires an Architect as a sub-consultant. Most contractors ‘ professional insurance insurance does non cover amendss caused by faulty design or specifications prepared by the Architect. Conversely, the Architect ‘s professional insurance insurance does non cover amendss caused by faulty labor, stuffs or operations during the contractor ‘s building procedure. Therefore, the contractor offers a guarantee for an agreed ( but normally limited ) time-period based on the impression of carelessness.

However, the commercial and fiscal force per unit areas of the Design and Build contract compel the contractor to basically under-design the edifice every bit far as possible devising failures within the edifice an increased likeliness. As a consequence, there is frequently a demand for judicial proceeding to specify whether the economic system of the undertaking surpasses the expected degree of professional duty at the clip of design and building. Therefore in order to protect their edifice, the client should seek to obtain a guarantee that guarantees the completed edifice is suited for its intended intent, irrespective of defects incurred by the contractor.

In the populace sector, Design and Build contracts are normally awarded on subjective standards such as value, experience and making. The public sector in peculiar has developed contractor rating and choice policies that try to extenuate against the hazard of such subjective judgements. In many instances this is achieved by presenting contracts based on a point-scoring system with the highest scorer being appointed. However, this discretionary points system implemented by public directors offers small objectiveness in finding the equal point allotment for single elements of the proposed strategy. For case, there is barely any manner to make up one’s mind whether one contractor ‘s foundation system warrants 20 points or a different contractor ‘s warrants 22, it is wholly subjective. Besides the standards used for taging by and large do non associate to the specific edifice type, hence analyzing a contractor ‘s makings and experience nowadayss a step of competency but does non vouch a successful undertaking result. There is besides trouble in moderately comparing alternate design proposals in an attempt to find which represents the best value. For illustration, some contractors may offer higher quality plumbing whilst others offer better electrical systems. Therefore it is impossible to pull sensible decisions from dissimilar commands in footings of which proposal offers best value. Often, value can merely be determined after the edifice has been completed.

In decision, public proprietors look for procurance systems that meet the demands of the public whilst extenuating against legal jobs and cut downing administrative load. The public-sector has favoured the Design and Build attack as the client can vouch a entire fixed undertaking cost early in the procedure and the edifice can be constructed in a shorter time-period with more efficiency than other procurement systems. The contract type besides allows an geographic expedition of new solutions through an unfastened duologue between designer and contractor, in which the populace benefit from the invention and lower costs. As a consequence, the public-sector ‘s engagement with Design and Build has increased over recent old ages.

Basically, the public requires its building undertakings to be lasting, environmental, functional and most significantly, tantrum for intent. At the same clip, it expects the authorities funded undertakings to stand for good value and be economic in nature. Therefore, the populace itself has small engagement or involvement in which procurance system is utilized, nevertheless, they expect each undertaking to carry through its declared demands within its allocated budget. It is the position of the public-sector, that Design and Build is the system best equipped to run into the populace ‘s outlooks and supply the most crystalline value for undertakings that are finally funded by the tax-payer.


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