Chapter 14 The consulting engineer's appointment

This chapter discusses principles of contract law where these apply to consulting engineers’ professional services contracts. Bespoke and standard forms are compared and different levels of duty of care reviewed. Obligations that cause difficulties are emphasised and measures to mitigate such obligations are suggested. Attention is paid to the consequences of accepting warranties for fitness for purpose, strict obligations and the issuing of certificates. Commencement of work and suspension and termination are examined. Indemnities, limitations and exclusions of liability are discussed and the dangers explained. The importance of describing services unambiguously is highlighted. The meaning of liquidated damages, set-off and retention is explained. Health and safety obligations through the Construction (Design and Management) Regulations are introduced and discussed. The desirability of engaging sub-consultants on a ‘back-to-back’ basis is stressed and the consequences of not doing so are pointed out. The problems of working for a design-and-build contractor are reviewed and the meaning of ‘supervision’ explained. Methods of calculating fees are compared in detail and the pros and cons of each method discussed. Dispute resolution is introduced. Observations are made on the effect of the Construction Act on consulting engineers’ forms of appointments. Finally, the 2009 ACE Agreements are compared with other standard forms of appointment.